People v. Farina

California Court of Appeal Sep 17, 1963 No. Crim. 4206Published

Before: Salsman

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Holding. The court held that Vehicle Code section 10852 is a special statute that precludes a felony conspiracy charge under Penal Code section 182 for the same conduct, as the legislature intended the special statute to govern such acts. The court otherwise affirmed the conviction, finding the arrest and search lawful and the alleged prosecutorial misconduct insufficient to warrant reversal.

Issues

Whether tampering with a motor vehicle in violation of Vehicle Code section 10852 can be the object of a conspiracy charge under Penal Code section 182.
Whether the arrest and subsequent search of the defendant were supported by probable cause.
Whether alleged prosecutorial misconduct during closing argument requires reversal of the judgment.

Disposition. reversed in part and affirmed in part

Quotations verified verbatim against the opinion

“Appellant Farina contends that tampering with a motor vehicle in violation of Vehicle Code section 10852 cannot he the object of a conspiracy under Penal Code section 182. This contention has merit, and requires reversal”

“There can be no doubt that Vehicle Code section 10852 is a special statute within the meaning of that term as used in In re Williamson, supra.”

“The judgment of conviction of conspiracy in violation of Penal Code section 182 is reversed; in all other respects the judgment is affirmed.”

SALSMAN, J.

Patrick Farina and Albert Gloria were charged with burglary (Pen. Code, § 459) and conspiracy to tamper with a motor vehicle (Pen. Code, § 182). After trial by jury both defendants were found guilty on both counts. The appeal of defendant Gloria has been withdrawn, and only the appeal of defendant Farina is before us.

Deputies of the San Mateo County Sheriff’s office had been detailed to observe the parking lot at the San Francisco International Airport. Deputy Pipkin was stationed on the second tier of the airport building and was scanning the parking lot through 10-power binoculars. Deputies Richardson and Eng were in the parking lot, and in communication

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with Deputy Pipkin by radio. Pipkin observed the defendants in the parking lot, and saw them attempt to gain entry to a blue Ford automobile. Pipkin also saw the driver of a Mercury station wagon park and lock his ear near defendants. When the driver left the Mercury station wagon, the defendants approached it and after some effort at the doors and tailgate succeeded in gaining entry through the right front door. Officer Pipkin saw the interior light of the Mercury vehicle as the door of the car was opened, and saw defendant Farina enter the car. The officers in the parking lot were alerted by radio, and also observed both Farina and Gloria in their activities, and arrested them as they left the Mercury. Defendants first claimed the Mercury belonged to a friend. Defendants were searched and each had a set of keys capable of opening the Mercury. Both defendants explained their possession of numerous car keys on the ground they were automobile wholesalers.

Appellant Farina contends that tampering with a motor vehicle in violation of Vehicle Code section 10852 cannot he the object of a conspiracy under Penal Code section 182. This contention has merit, and requires reversal of his judgment of conviction on the conspiracy charge.

Vehicle Code section 10852 provides: “No person shall either individually or in association with one or more other persons, wilfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.”

People v. Farina

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SALSMAN, J.

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