People v. Superior Court

In a petition for rehearing on behalf of the People, the Attorney General seeks a modification of the opinion which will construe Business and Professions Code section 25662 and Vehicle Code section 23123.5 as coexistent so that an officer may have the option to proceed under either statute. He contends that the decision will have an adverse effect upon enforcement officers of the Department of Alcoholic Beverage Control because the course to be followed in the event of a violation of the prohibition of possession of an alcoholic beverage by a minor will vary in accordance with whether the beverage is found in or out of a vehicle.

This consequence does not necessarily ensue. Section 24209 of the Business and Professions Code authorizes an officer arresting a person for a violation of any provisions of the Alcoholic Beverage Control Act to “release such person without taking such person before a magistrate upon such person’s signing an agreement to appear. . . .” (See also Pen. Code, § 853.6.) In the case of a minor under the age of 18 years the procedure following arrest is governed by the provisions of sections 625 and 626 of the Welfare and Institutions Code which provide the…

The People by petition for writ of mandate (Pen. Code, § 1538.5, subd. (o)) seek appellate review of an order of the trial court which granted *939 a motion to suppress evidence consisting of a plastic bag allegedly containing marijuana. The motion was interposed on behalf of a defendant who is accused by an information of possession of marijuana in violation of section 11530 of the Health and Safety Code, and possession of an alcoholic beverage by a minor in violation of section 25662 of the Business and Professions Code. The evidence in question 1 was secured from the defendant when he was subjected to a strip search in connection with his being placed in custody in the county jail following his arrest for possession of alcohol by a minor, 2 and for contributing to the delinquency of a minor (see Pen. Code, § 272).

*940 An alternative writ of mandate has been issued commanding respondent superior court to vacate and set aside its order granting defendant’s motion, or to show cause why it has not done so. Following return to the alternative writ the matter has been reviewed on a record consisting of the petition, the return, the clerk’s transcript in respondent court,…