People v. Gimenez

Opinion

Pursuant to a plea agreement, defendant pleaded guilty to second degree vehicle burglary. Defendant was granted supervised probation for three years with one hundred eighty days to be served in the county jail. The court imposed certain conditions on defendant’s probation including the condition that defendant submit to warrantless searches. The court also made a finding that a motor vehicle was used in the commission of the crime and ordered the Department of Motor Vehicles (DMV) to revoke defendant’s driving privilege for one year pursuant to Vehicle Code section 13350.

Facts

Approximately 12:30 a.m., a San Bernardino County sheriff’s deputy was driving past a car lot when he saw defendant getting out of a red Camaro. The deputy made a U-turn but when he arrived at the scene defendant had left. Shortly thereafter, defendant was located in a parking lot adjacent to the car lot. A check of the red Camaro revealed that its radio had been removed and placed on its front seat. Tools used to remove the radio were found in defendant’s truck. Defendant admitted to the theft during a taped interview.

Discussion

On appeal, defendant argues that the trial court erred in (1) ordering his driving privilege be revoked, and (2) ordering a warrantless search condition as one of his probation conditions.

Revocation of Defendant’s Driving Privilege Valid

Defendant contends that there was insufficient “use” of a motor vehicle in the commission of a crime to justify the trial court’s revocation of his driver’s license. We disagree.

In Paulsen, the defendants were involved in an elaborate scheme to defraud merchants and used an automobile and a U-Haul to transport and store stolen merchandise. We held that the motor vehicles were “instrumental in carrying out the crimes charged” and were “necessary in order to haul away the merchandise acquired in the fraudulent purchases.” (People v. Paulsen, supra, 217 Cal.App.3d at p. 1423.) We agree that defendant does not fall within the confines of our holding in Paulsen. We disagree, however, with defendant’s contention that he falls within the factual framework of our holding in Poindexter.

In Poindexter, defendant and an accomplice happened upon a car parked at the side of the road. They pulled up behind the car and, by intimidating the victim, they removed a “bra” that was on the front of the victim’s car and put it on their own car. Upon entry of a plea of nolo contendere to grand theft person, the trial court ordered DMV to suspend defendant’s driver’s license pursuant to Vehicle Code section 13350. On appeal, we struck the finding that an automobile was involved in the offense and the order to suspend defendant’s driver’s license. We held that the Legislature must have intended the term “used” in the commission of a felony to mean that there was a nexus between the offense and the vehicle, not merely that a vehicle was incidental to the crime. Under the facts of Poindexter the crime was not carried out by means of the car, nor was the car used as an instrumentality in the crime. (People v. Poindexter, supra, 210 Cal.App.3d at p. 808.)

The facts we are currently faced with fall between the clear “use” of a vehicle in the commission of a felony as set out in Paulsen and the equally clear non-“use” of a vehicle depicted in Poindexter. Indeed, these facts are more closely aligned with the facts of In re Gaspar D. (1994) 22 Cal.App.4th 166 [ 27 Cal.Rptr.2d 152 ], In Gaspar D., defendant, a minor, was spotted sitting in the victim’s car, parked in her driveway. Parked across the driveway was a blue and white car with defendant’s accomplice behind the wheel. Defendant, after realizing he had been spotted, ran to the front passenger seat of the blue and white car. The car left. The police found broken window glass in the driveway and discovered that the stereo had been removed from the victim’s car. The officer pulled over a car meeting the description of the blue and white car about a quarter of a mile from the