People v. Von Latta

258 Cal. App. 2d 329, 65 Cal. Rptr. 651, 1968 Cal. App. LEXIS 2419

• Court: California Court of Appeal
• Decided: January 26, 1968
• Docket: Crim. No 2682
• Status: Published

Opinions

COUGHLIN, J.

Defendant was charged with the offenses of possession of marijuana, a violation of Health and Safety Code, section 11530, and the unlawful possession of a firearm, a violation of Penal Code, section 12560;-was convicted of the former and acquitted" of the latter; was granted - summary probation; and appeals, asserting asgrounds for reversal: (1) Insufficiency of the evidence to'support' the conviction; (2) admission of evidence of prior misconduct and of a prior conviction was error; (3) defendant was denied a speedy trial; (4) the conviction- is. based on evidence which was the product of an uniawfujsearch; and- seizure; (5) defendant was denied the right to represent himself; and (6) his prosecution and sentence violated his constitutional guarantee against double jeopardy and the multiple prosecution and punishment proscriptions of Penal Code, section 654.

On April 22, 1966, defendant was on parole from a prison sentence for armed robbery. On the late morning of that day he entered a house at 113 Coral Street, Newport Beach. His parole officer, a man named Slater, wanted to take him into custody for parole violation; had solicited the assistance of two police officers named Epstein and Amburgey; and with the latter, from a place across the street, observed defendant enter the house, which they had under surveillance. It was known defendant previously had visited this house, which was occupied by three men, two of whom were ex-convicts. Slater was unarmed; advised the police officers he believed defendant was dangerous; and took a position about 20 feet distant while Epstein went to the front door of the house and Amburgey went to the rear. A third officer who had been called in the meantime, and was armed with a shotgun, also went to the rear. Epstein knocked on the front door which was opened by one of the occupants named Luna; identified himself as a police officer; and asked permission to enter and talk with Luna. Permission was granted. Epstein entered and stated the purpose of his presence. Slater followed. Defendant came into the room from the kitchen; started up a stairway; was stopped by Slater, who took him into custody; held one hand behind him out of sight of the officers; and in response to an order from Epstein placed both hands in front of him, revealing a pipe in the hidden hand which was warm and contained marijuana. Epstein was familiar with the odor of marijuana; detected its presence; and placed defendant under arrest.

On a table in the room, in plain sight, were a cellophane bag, a ceramic bowl, and four handrolled cigarettes, all containing marijuana; also several packages of wheatstraw papers, a paper bag and a flour sifter containing fragments of marijuana. Thereupon the three occupants also were arrested. The pipe and the foregoing items were taken into custody and subsequently introduced in evidence.

A search of the automobile defendant had used to come to the house revealed traces of marijuana, and a rifle which was the subject of the gun possession charge.

Approximately six hours after defendant’s arrest, Slater, accompanied by two police officers, searched defendant’s residence in Garden Grove, about 30 miles from the place of his arrest, for other evidence of parole violation in connection with narcotics,- found approximately 4 pounds of marijuana hidden in the garage; and seized the same. Defendant was charged and convicted of possession of this marijuana with intent to sell. Judgment was pronounced on August 11, 1966. Defendant appealed. This court affirmed by a nonpublished opinion filed November 21, 1967. Trial of the instant action commenced on August 22, 1966, i.e., 11 days after pronouncement of judgment on the possession with intent to sell charge.

Defendant’s contention the evidence is insufficient to support the conviction is based upon the claim that as to possession of the marijuana in the pipe there is no showing he had knowledge the substance in the pipe was marijuana, and that as to the marijuana on the table there is no showing he had actual or constructive possession thereof. A defendant’s knowledge of the narcotic character of a substance in his possession may be shown by circumstantial evidence. (Rideout v. Superior Court, 67 Cal.2d 471, 475 [62 Cal.Rptr. 581, 432 P.2d 197].) The conclusion defendant knew the substance in the pipe and on the table was marijuana is supported by the fact he sought to conceal the pipe from view, marijuana fragments were found in his automobile, he had a large quantity of marijuana hidden in the garage of his home at Garden Grove, and he testified, in response to a question whether he knew anybody in the house was smoking marijuana, “No, not one of us were under the influence of narcotics or anything like that. Just in possession.’’

The conclusion defendant jointly participated in possession of the marijuana on the table and, in any event, aided and abetted the offense of its possession by the other occupants of the house is supported by evidence showing the marijuana on the table was in plain sight, and appeared to be in the process of being made into cigarettes; that he came into the house through the room in which this table was located and must have seen what was in plain sight; that, according to his testimony, he did not bring any marijuana into the house; and that he had a warm pipe filled with marijuana which, inferentially, he must have taken from the table. (Gen. see People v. Fleming, 191 Cal.App.2d 163, 168 [12 Cal.Rptr. 530] ; People v. Hood, 150 Cal.App.2d 197, 201 [309 P.2d 856] ; People v. Moore, 120 Cal.App.2d 303, 306 [260 P.2d 1011].)

Over objection the court admitted evidence tending to show the reason the parole officer decided to take defendant into custody was because the latter had been associating with known ex-felons, with persons of ill repute, and with a prostitute; had been living off of the earnings of a prostitute; had been using a fictitious name; and had driven an automobile at 75 miles per hour in a 35-mile zone in an attempt to elude officers following him. The objection to this testimony was made upon the ground it was immaterial and hearsay. After the parole officer had testified respecting information which had been brought to his attention concerning defendant’s conduct, counsel for defense stated: “I’m going to object to all this as hearsay. They’re trying to bring in garbage that doesn’t even apply. If they can prove it, let them prove it.” The court overruled the objections on the ground the evidence was offered on the issue of probable cause to take defendant into custody and forthwith gave the following instruction: ‘1 The jury will consider this part of the evidence only for the purpose of the reasonableness of the parole officer’s decision to proceed with the arrest, is that clear to all of you? Is there any person on the jury who doesn’t clearly understand that? All right. You may proceed.” Previously defense counsel had questioned the good faith of the parole officer in taking defendant into custody. The inquiry to which objection was made appears to have been prompted by the good faith issue. The objection properly was overruled. On appeal defendant directs attention to the rule that the issue of probable cause should be determined by the court outside the presence of the jury {People v. Holmes, 237 Cal.App.2d 795, 797 [47 Cal. Rptr. 246]), and contends the proceedings in question violated this rule. Objection to the evidence was not made upon the ground it should be taken outside the presence of the jury. Even assuming defendant may assert the alleged error on appeal without previous objection before the trial court, no prejudice resulted. The instruction of the court limiting consideration of the evidence to the issue of the reasonableness of the parole officer’s decision to arrest was direct and forceful. Thereafter the parties stipulated the officer had a right to arrest defendant on the date in question, and the court thereupon instructed the jury it was to accept the stipulation as a fact in the ease. After an examination of the entire cause, including the evidence and determinable issues in the case, we are of the opinion it is not reasonably probable a result more favorable to defendant would have been reached in the absence of the error. Under these circumstances no cause for reversal exists. (People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243].)

Upon cross-examination, defendant, without objection, testified he had been convicted of the felonious offense of possession of marijuana with intent to sell. This was proper impeachment evidence. Thereafter he was questioned about certain details of that offense. His objection thereto was overruled. Under the circumstances, no error occurred as the inquiry was directed to evidence relevant to the issue of knowledge of the narcotic character of the substance in the pipe and on the table. (People v. Horn, 187 Cal.App.2d 68, 75 [9 Cal.Rptr. 578] ; People v. Valenzuela, 174 Cal.App.2d 759, 762 [345 P.2d 270].)

Defendant contends the ease should have been dismissed pursuant to Penal Code, section 1382 because the trial occurred more than 60 days after the information was filed. In support of his position he poses and answers the argument he consented to trial after the 60-day period with the claim his consent was ineffectual because he was not then represented by counsel and the court did not explain to him his rights and the effect of his consent, as is required by section 1382. However, he disregards, and does not mention the fact the trial was set at a date beyond the 60-day period at his request. Under these circumstances, he may not assert he was not afforded a speedy trial as required by law. In any event, prior to and at the time of trial he was represented by counsel. No objection was made to the trial beyond the 60-day period and, under settled law, his contention may not be raised for. the first time on appeal. (People v. Wilson, 60 Cal.2d 139, 146, 148 [32 Cal.Rptr. 44, 383 P.2d 452] ; People v. Hill, 251 Cal.App.2d 391, 393 [59 Cal.Rptr. 369].)

Defendant contends the officers entered the Newport Beach house using his arrest as a pretext to search for evidence ; cites the rule stated in People v. Haven, 59 Cal.2d 713, 719 [31 Cal.Rptr. 47, 381 P.2d 927], declaring such a search illegal; and claims it was error to admit the evidence obtained by this search. The record does not support the contention defendant’s arrest was used as a pretext to search the premises. The parole officer had reason to take him into custody as a parole violator; had been trying to locate him; had the Newport Beach house under surveillance as one of the premises defendant might visit; and properly entered the house for the purpose of taking him into custody. Actually no search was conducted. Defendant had the marijuana-filled pipe in his hand; and the marijuana on the table was in plain sight. The contention is without merit.

Shortly before and during the trial defendant was represented by counsel. Previously he had represented himself. After all parties had rested defendant personally and through his attorney requested he be permitted to represent himself for the purpose of arguing to the jury. He did not claim his counsel had not adequately represented him during the trial. His purported reason for wishing to address the jury was that his presentation could more readily convince them of his sincerity and honesty. Although he represented to the court his argument would be based upon the evidence, it is apparent he intended to support his position by reference to all matters within his knowledge whether or not they were included in his testimony as a witness.¹ The court concluded it would not be for his best interest to permit him to argue the case; observed he had “a tendency to make statements that are not supported by the evidence ’ ’; and expressed the belief, “I think in a closing argument he would be his own worst enemy. ’ ’

The trial court may refuse to permit a defendant to represent himself where his request to do so is made after the trial has commenced; is limited to the sole purpose of presenting the arguments in his ease; is not based on any inadequacy of representation by his counsel; and would not be for his best terests. (Gen. see People v. Maddox, 67 Cal.2d 647, 648 [63 Cal.Rptr. 371, 433 P.2d 163] ; In re Connor, 16 Cal.2d 701, 709 [108 P.2d 10] ; People v. Shroyer, 203 Cal.App.2d 478, 482 [21 Cal.Rptr. 460]; People v. Gaither, 173 Cal.App. [343 P.2d 799].) Furthermore, a defendant does not have the right to have his ease presented in court by-counsel and by himself alternately as his pleasure dictates. (People v. Mattson, 51 Cal.2d 777, 789 [336 P.2d 937].) The order denying defendant’s request was not error.

Defendant may not urge the defense of double jeopardy on appeal because he did not enter a plea of once in jeopardy in the trial court. {In re Harron, 191 Cal. 457, 467 [217 P. 728].)

Defendant’s contention it was error to prosecute and sentence him in the instant ease after he had been prosecuted, convicted and sentenced in the previous Garden Grove case, is premised upon the multiple prosecution and multiple punishment proscriptions in Penal Code, section 654; upon the scope of those proscriptions as delineated in Kellett v. Superior Court, 63 Cal.2d 822 [48 Cal.Rptr. 366, 409 P.2d 206], In re Johnson, 65 Cal.2d 393 [54 Cal.Rptr. 873, 420 P.2d 393], and similar decisions; and upon the conclusion the offense of possession of marijuana in his Garden Grove residence with intent to sell and the offense of possession of marijuana in the Newport Beach residence are the product of a single act or indivisible course of conduct.

The elements of the offense of possession of marijuana are actual control and dominion or the right to exercise control or dominion over the drug, with knowledge of its presence and narcotic character. {People v. Groom, 60 Cal.2d 694, 696 [36 Cal.Rptr. 327, 388 P.2d 359] ; People v. Blanton, 195 Cal.App.2d 278, 281 [15 Cal.Rptr. 568].) The element of concern in the case at bench is that of control or dominion which, in substance, is the ‘1 act of possession. ’² A person has possession of marijuana when he “has physical control thereof with intent to exercise such control, or having had such physical control has not abandoned it, and no other person has that possession.” {People v. Lunbeck, 146 Cal.App.2d 539, 541 [303 P.2d 1082] ; People v. Gory, 28 Cal.2d 450, 455 [170 P.2d ].) The control incident to possession may be actual or constructive. {People v. Thomas, 210 Cal.App.2d 553, 556 [26 Cal.Rptr. 843].) As a consequence, a person is in actual possession of marijuana which he holds in his hand, and is in constructive possession of other marijuana which he keeps at a place where it is subject to his control and dominion even though he is not present at that place. {People v. Bock Leung Chew, 142 Cal.App.2d 400, 403 [298 P.2d 118]; People v. Crews, 110 Cal.App.2d 218, 221 [242 P.2d 64].)

In the case at bench defendant was at his residence in Garden Grove on the morning of the day of the charged offense of possession of marijuana with intent to sell. Thereafter, on the same day, he came to the residence at Newport Beach where he was arrested for possession of marijuana in a pipe in his hand. Six hours after his arrest in Newport Beach, but on the same day, the officers discovered the marijuana in the garage of his residence in Garden Grove. Defendant had actual possession of the marijuana in his garage during the time he was at his Garden Grove residence on the day in question; had actual possession of the marijuana in the pipe in his hand at the Newport Beach residence; participated in the joint possession of the marijuana on the table in that residence; and while at Newport Beach, had constructive possession of the marijuana in the garage at Garden Grove.

Defendant’s conduct constituting actual possession of the marijuana in his garage at Garden Grove on the morning before he came to Newport Beach was distinct from his conduct constituting actual possession of the marijuana in the pipe or on the table at Newport Beach. The subject matter of each “act of possession” was different. (Cf. People v. Winchell, 248 Cal.App.2d 580, 596 [56 Cal.Rptr. 782]; People v. Wasley, 245 Cal.App.2d 383, 386 [53 Cal.Rptr. 877].) Defendant testified he did not bring any marijuana with him into the Newport Beach residence.³ However, even assuming the marijuana in the pipe and on the table may have been a part of the marijuana in the garage, this fact is not determinative. {People v. Buchanan, 106 Cal.App.Supp. 765, 767 [288 P. 50].) A finding of separate “acts of possession” has been upheld where the subject matter of a later possession was part of the subject matter of a prior possession. {People v. Tenney, 162 Cal.App.2d 458, 463 [328 P.2d 254].) The fact the two “acts of possession” occurred on the same day does not establish per se they were not separate and distinct. (People v. Wasley, supra, 245 Cal.App.2d 383, 387.) In People v. Holliday, 120 Cal.App.2d 562, 564-565 [261 P.2d 301], it was held possession of a narcotic occurring as an incident to the offense of transportation, and possession thereof occurring before or after the transportation, are separate and distinct even though occurring on the same day; the transportation with incident possession, on the one hand, and the possession before or after such, on the other hand, were separate criminal acts; and each supported a separate conviction. (See also People v. Buchanan, supra, 106 Cal.App.Supp. 765, 767—-transportation and possession of liquor.) Similar holdings were made in cases involving a sale, and possessing subsequent to the sale. (People v. Rodriguez, 202 Cal.App.2d 191, 197 [20 Cal.Rptr. 556] ; People v. Tenney, supra, 162 Cal.App.2d 458, 463.)

The contention the offense of possession of marijuana in Garden Grove with intent to sell and the offense of possession of marijuana in Newport Beach were the product of one “act of possession ’ ’ is without merit.

Also without merit is the contention the two offenses were part of an indivisible course of conduct which, under the decision in Neal v. State of California, 55 Cal.2d 11, 19 [9 Cal.Rptr. 607, 357 P.2d 839], subjects them to the section 654 proscriptions. Separate criminal acts are not part of an indivisible course of conduct unless they are incident to a single intent and objective. (Neal v. State of California, supra, 55 Cal.2d 11, 19; People v. Jackson, 255 Cal.App.2d 584, 587 [63 Cal.Rptr. 359]; People v. Winchell, supra, 248 Cal.App. 2d 580, 586-587, and cases cited.) Defendant’s intent and objective respecting the marijuana in the Garden Grove house was distinct from his intent and objective respecting the marijuana in the Newport Beach house. (See People v. Wallace, 199 Cal.App.2d 678, 681 [18 Cal.Rptr. 917]; People v. Rodriguez, supra, 202 Cal.App.2d 191, 197.) As to each offense the specific conduct evidencing possession was different; the purpose was different; and the subject matter of the possession was different. (See People v. Wasley, supra, 245 Cal.App.2d 383, 386-387—involving possession of two different weapons.)

It is proper to note the offense of possession of the marijuana in the Garden Grove garage was a continuing offense, occurring through conduct constituting actual possession while defendant was in the house, and through conduct constituting constructive possession while he was in Newport Beach. (Cf. People v. Ford, 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].) However, this fact does not furnish a basis for holding the possession incident to the Garden Grove offense and the possession of the marijuana in Newport Beach were parts of an indivisible course of conduct. Bach offense was the product of an independent transaction. (Gen. see People v. Fernandez, 242 Cal.App.2d 351, 360 [51 Cal.Rptr. 385].)

A further matter for consideration is the difference between the scope of the multiple prosecution and the multiple punishment proscriptions. The former is broader than the latter. The multiple prosecution proscription applies where “the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part.” (Kellett v. Superior Court, supra, 63 Cal. 2d 822, 827.) Upon this basis particular circumstances may foreclose multiple prosecution even though they may not foreclose multiple punishment. (Kellett v. Superior Court, supra, 63 Cal.2d 822, 824-826.) The reason for the broader basis of the multiple prosecution proscription is to effect the purpose of the statute as a safeguard against harassment and the waste of public funds. (Kellett v. Superior Court, supra, 63 Cal.2d 822, 827.) In the case at bench the offense at Garden Grove and the offense at Newport Beach were not offenses in which the same act or course of conduct played a significant part. Noteworthy, in addition to what heretofore has been stated regarding this matter, is the fact the prosecution of the Newport Beach offense involved four defendants actually participating in or aiding and abetting the offense. Defendant’s conduct at the Newport Beach house encompasses actual possession of the marijuana in the pipe, and joint participation with the other defendants in possession of the marijuana on the table as well as aiding and abetting them in the commission of that offense.⁴ Defendant moved for and was granted a separate trial. Although sentence was imposed for the Garden Grove offense before trial of the Newport Beach offense, both cases were pending at the same time. Defendant did not request a consolidation of the two cases. (See Pen. Code, § 954.) In the former, trial was hy the court; in the latter, trial was by a jury. Viewed in the light of the circumstances noted, the instant prosecution did not subject defendant to harassment or involve a waste of public money within the letter or spirit of the multiple prosecution proscription statute. (Gen. see People v. Winchell, supra, 248 Cal.App.2d 580, 591.)

The judgment is affirmed.

Brown (Gerald), P. J., concurred.

1 Defendant made the following statement to the court:

‘ ‘ This thing, your Honor, has revolved from a jury trial for possession, an ex-con with a gun charge to a battle of character, and I think the jurors now see me as a black-hearted monster.

“As I said to my attorney, a dope-smoking pimp with a gun, and this isn’t the ease, and I think if I stand in front of the jury, talk to them, attempt to tell them my side of the story, present them a little bit of myself, they will become a little more aware of the fact that I am not this black-hearted monster they think I am. ‘ ‘ This is the reason I’d like to go pro per, present myself rather than the evidence to the jury.

“There’s been evidence introduced with no substantial foundation at all, absolutely none, and this evidence that has been introduced, character evidence, evidence to support my lack of character, supposedly can be challenged by me on a moment’s notice with absolutely no trouble at all, challenged by the very evidence that I can present within the bounds of evidence in argument to the jury ....’’

2 In People v. Wasley, 245 Cal.App.2d 383, 386 [53 Cal.Rptr. 877], which concerned the issue of double punishment of different offenses of possession of different weapons, the court said, in response to defendant’s contention the possession of the two weapons which occurred at the same time was a single act, that: “It is difficult to classify possession as an ‘act’ although acquisition clearly would be”; indicated possession might better be considered the product of a course of conduct; and held the offenses of possession of each of the weapons were not the product of “a single act or single course of conduct.” We use the phrase “act of possession” to describe the conduct of the defendant in the exercise of control and dominion over the narcotics.

3 The evidence on the issue at hand must be viewed in the light most favorable to the judgment. (People v. Jackson, 255 Cal.App.2d 584, 587 [63 Cal.Rptr. 359].)

4 Whether this conduct constituted one or more offenses (Gen. see People v. Greer, 30 Cal.2d 589, 604 [184 P.2d 512]), is not material to the issue at hand, and no consideration need be given this phase of the ease.