Opinion
PARAS, J. In proceedings under Welfare and Institutions Code section 602, defendant, a minor, was found by the juvenile court to have [25]committed a misdemeanor violation of Penal Code section 459 and a felony violation of Penal Code section 496. He appeals from the denial of his section 1538.5 motion to suppress evidence relating to the misdemean- or count.
Sometime between December 31, 1977, and January 2, 1978, the Centro-Mart store in Stockton was burglarized. Food, cigarettes, liquor, and clothing were removed. The police investigator assigned to the case, Detective Kenneth McGuire, was contacted by a confidential reliable informant on January 4, 1978; the informant stated that on the evening of January 3, he had been present at a house party less than a city block from Centro-Mart. There he observed many items of food, liquor, and cigarettes, and was told by the party’s hosts “Sheiyl Sandstrum and Donnie R.” that these had been stolen from the Centro-Mart over the holidays.
McGuire promptly prepared an affidavit for a search warrant which included a request for an indorsement for night service, stating that the stolen items “are primarily perishable items and easily disposed” of. A list of the stolen items was attached. The warrant, endorsed for night service, was issued on January 4 at 11-11:30 p.m., and was served at 12:30 a.m. on Januaiy 5.
Defendant’s sole contention is that no good cause was shown to justify the warrant’s night service. Penal Code section 1533 states that a magistrate, upon a showing of good cause, may in his discretion authorize a night search between 10 p.m. and 7 a.m.
Defendant asserts that the standard to be applied to “good cause” is that enunciated by the court in People v. Watson (1977) 75 Cal.App.3d 592 [142 Cal.Rptr. 245], There the magistrate endorsed a search warrant for night service simply on the basis of a police officer’s unsworn oral statement that the defendant did not get home until 6 p.m. or later and was not always present at his home. The officer indicated no reason why it couldn’t be served between 6 p.m. and 10 p.m. and presented no information indicating that the contraband would not still be there in the morning. The court held that the affidavit must set forth specific facts which show a necessity for night service, including facts from which it can be concluded that the contraband to be seized will not be at the place to be searched between 7 a.m. and 10 p.m. The showing of good cause may be contained either in the affidavit or in a sworn statement. (People v. Watson, supra.)
[26]Defendant asserts that the Watson standard was not fulfilled in this case because the only information in the affidavit supportive of a night search is the statement of McGuire that the stolen items were primarily perishable and easily disposed of.
Section 1533 does not require a separate statement of good cause for a nighttime search. “[I]f the affidavit, read in a commonsense manner and as a whole reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service, provision for such service in the warrant is proper. . . . Absent an abuse of discretion, the magistrate’s finding of a reasonable necessity of nighttime service will not be disturbed on appeal.” (People v. Mardian (1975) 47 Cal.App.3d 16, 35 [121 Cal.Rptr. 269].)
Viewing the affidavit in its totality, we deem it reasonable here for the magistrate to have concluded that nighttime service was proper; he did not thereby abuse his discretion.
McGuire’s statement relating to the perishable nature of the stolen goods, without more, would not have been sufficient. (People v. Mardian, supra.) But the affidavit further stated that the informant had been at a party the night before where he had seen the stolen items. Even though he didn’t expressly aver that the goods were actually being consumed, the inference is clear that at least the liquor, food, and cigarettes were being so consumed. The fact of the party the preceding evening raises a reasonable inference that the stolen goods were being and would further be dissipated with the passage of each day and hour. The instant case is thus in direct contrast to Watson because of the distinct possibility that the evidence might disappear by the next morning. We agree with the juvenile court judge when he stated, “not only are the People of the state . . . entitled to have some of the evidence of what was taken in the burglaiy, . . . they are also entitled to have as much of the evidence as possible . . . -”1 (Italics added.)
The defendant cites People v. Mardian, supra, for the proposition that Detective McGuire’s general statement about the perishable nature of the goods is not sufficient. But in Mardian, the court also stated: “Where, as here, an affiant’s general knowledge concerning the disposability of narcotics is coupled with specific facts which lend themselves to the reasonable inference that contraband is soon to be removed from the [27]premises to be searched, sufficient facts are presented to justify the magistrate’s authorization of a nighttime search.” (People v. Mardian, supra, 47 Cal.App.3d at p. 35.) Here the disposability of the stolen goods, coupled with facts concerning defendant’s actions with reference thereto, is sufficient to demonstrate the propriety of a nighttime search.
In view of the foregoing, we need not consider the claim that the standard set in People v. Watson overly restricts police action.
The judgment is affirmed.
Puglia, P. J., concurred.
The justification for this is dual. First of course, the evidence will be used at trial; second, it will presumably be returned to its lawful owner (Pen. Code, § 1407 et seq.).