Opinion
[Copyrighted Material Omitted] David A. Brown for defendant and appellant.
Gary Yancey, Dist. Atty., for plaintiff and respondent.
OPINION
MARCHIANO, Judge.
Appellant was found guilty of a violation of Vehicle Code section 23223. Appellant contends that the evidence is insufficient to support his conviction.
SUMMARY OF FACTS
At 10:52 p.m. on Monday, August 21, 1990, Officer Seipert contacted appellant, and another person, regarding a disturbance on Redwood Road. Appellant was standing by his Chevrolet pickup truck with another person. Officer Seipert observed two half-full containers of what appeared to be beer on the console of the pickup truck and numerous empty cans on the floor of the pickup truck. The two half-full containers had condensation on the outside and there was a smell of beer. Officer Seipert cited appellant for violation of Vehicle Code section 23223.
The traffic commissioner found appellant guilty.
DISCUSSION OF LAW
Appellant contends that the evidence was insufficient for a conviction. The test for sufficiency of the evidence is whether substantial evidence supports the conclusion of the trier of fact. The court must review the whole record in the light most favorable to the judgment below to determine if there is substantial evidence such that a reasonable trier of fact could have found that the prosecution sustained its burden of proving beyond a reasonable doubt that defendant was guilty. (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228.)
Vehicle Code section 23223 states that "no person shall have in his or her possession on his or her person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed." Appellant contends that the plain language of the statute requires that the open container of alcoholic beverage be in his possession on his person. People v. Squadere (1978) 88 Cal.App.3d Supp. 1, 151 Cal.Rptr. 616, a decision from the Appellate Department of the Superior Court of Los Angeles County, agrees with appellant's interpretation of the statute. That court held that the section is not violated unless the evidence establishes that the open container of alcoholic beverage was literally connected to the person of the defendant.
The legislative history of Vehicle Code section 23223 also supports appellant's position. Vehicle Code section 23223 was originally introduced by Assemblyman McAllister as part of Assembly Bill No. 516, 1979-1980 Regular Session, a comprehensive bill to fine and punish owners, drivers, and occupants of motor vehicles having an open receptacle for alcoholic beverage or consuming alcohol in a vehicle. As originally introduced in Assembly Bill No. 516, Vehicle Code section 23122.5, the predecessor statute of section 23223, read: "No person shall have in his possession on his person, or immediately accessible to his person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed." (Italics added.) During committee hearings, section 23122.5 was amended to delete the phrase "or immediately accessible to his person." The bill continued through the Senate and was passed on July 19, 1979, and, as signed by the Governor, read: "No person shall have in his possession on his person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed." In 1981, Vehicle Code section 23122.5 was renumbered and became Vehicle Code section 23223 without any change in the language. The Legislature has never broadened the concept of "possession" in Vehicle Code section 23223.
See copy of Assembly Bill No. 516 as amended April 5, 1979, attached in an appendix.
At the same time that Vehicle Code section 23122.5 became section 23223, the companion Vehicle Code sections pertaining to possession of alcohol in a vehicle were reviewed and renumbered, and amendments were made thereto. For example, Vehicle Code section 23224, involving the possession of an alcoholic beverage in a vehicle by persons underage, specifically states that "no passenger in any motor vehicle who is under the age of 21 years shall knowingly possess or have under that person's control any alcoholic beverage unless the passenger is accompanied by a parent or legal guardian...." The Legislature broadened the concept of who may be punished in Vehicle Code section 23224 to include someone under the age of 21 who not only knowingly possessed an alcoholic beverage but also had an alcoholic beverage under his control.
The legislative history indicates that the Legislature narrowly defined the concept of possession in Vehicle Code section 23223. In order for an occupant of a motor vehicle to be found guilty of violation of Vehicle Code section 23223, the occupant must have the open receptacle "in his possession on his person while in the motor vehicle."
Division 11, chapter 12, article 2 of the Vehicle Code contains a comprehensive statutory scheme for offenses involving alcohol and drugs. For example, Vehicle Code section 23220 applies to drinking while driving a motor vehicle upon a highway; Vehicle Code section 23221, drinking in a motor vehicle upon a highway; Vehicle Code section 23222, possession on the person of an open container containing an alcoholic beverage or marijuana while driving a motor vehicle; Vehicle Code section 23223, possession on the person of an open container in a motor vehicle; Vehicle Code section 23224, possession of a alcoholic beverage in a vehicle by a person under age 21; Vehicle Code section 23225, storage of an open container in a vehicle; and Vehicle Code section 23226, keeping an open container in the passenger compartment of a motor vehicle, with certain exceptions. In other words, the Legislature has given to law enforcement a number of tools to enforce cases such as the one before us.
For example, Vehicle Code section 23225, in particular, would be applicable to the facts of this case. That code section prohibits the driver of a motor vehicle from keeping in the motor vehicle, when it is upon any highway, any open container containing an alcoholic beverage unless it is kept in the trunk or kept in some other area of the vehicle not normally occupied by the driver or passengers if it is not equipped with a trunk. In addition, Vehicle Code section 23226 prohibits any person from keeping in the passenger compartment, when the vehicle is upon any highway, any container, containing any alcoholic beverage, which has been opened.
STANDARD OF REVIEW
Does the evidence in this case support a conviction for a violation of Vehicle Code section 23223? The trial transcript clearly indicated that the investigating officer did not see an open container on the person in the possession of the defendant. Was there sufficient circumstantial evidence to support the trier of fact's determination of guilt? On appellate review where the evidence is in substantial conflict, the finding of the judge on issues of fact will not be disturbed. In other words, the judgment is presumed correct and the evidence will not be reweighed by the appellate court in the manner of a trial judge on a motion for new trial (see 6 Witkins&sEpstein, Cal. Criminal Law (2d ed. 1989) § 3206, p. 3964).
The principle of presumption in favor of a judgment pertains to the sufficiency of circumstantial evidence. Reversal may only occur if upon no rational hypothesis is there substantial evidence to support the judgment (6 Witkins&sEpstein, Cal. Criminal Law, supra, § 3206, p. 3965). The test for substantial evidence is whether the evidence is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt (id., at § 3205, p. 3964).
Even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant's innocence, this, alone, does not warrant interference with the determination of the trier of fact. The relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Towler (1982), 31 Cal.3d 105, 118, 181 Cal.Rptr. 391.)
A review of the transcript in the light most favorable to the judgment reveals reasonable inferences and direct evidence to support the trial court's finding of guilt. The officer saw the defendant drive onto Redwood Road, stop, and get out of his truck. Two one-half-filled cans of beer, with condensation on the cans, were on the truck console. There were only two persons in the truck, defendant and a passenger. The trier of fact could find by circumstantial evidence that the defendant, while driving, had the open container of beer on his person in his hand and had set it down on the console upon arriving at Redwood Road. Condensation indicated a freshly opened can of beer. The judgment is affirmed.
The officer was competent to give lay-opinion testimony regarding the smell of beer from the cans. (Evid.Code, § 800.)
SWAGER, P.J., and SPINETTA, J., concur.
APPENDIX
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