People v. Winters

• Decision Date: 27 June 1990
• Docket Number: No. F011905,F011905
• Citation: 270 Cal.Rptr. 740,221 Cal.App.3d 997
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Dale WINTERS, Defendant and Appellant.

Page 740

270 Cal.Rptr. 740

221 Cal.App.3d 997

The PEOPLE, Plaintiff and Respondent, v. John Dale WINTERS, Defendant and Appellant.

No. F011905.

Court of Appeal, Fifth District, California.

June 27, 1990.

Review Denied Sept. 26, 1990.

[221 Cal.App.3d 998] Gregory M. Chappel, under appointment by the Court of Appeal, Oakhurst, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Maureen A. Daly, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Acting Presiding Justice.

On September 30, 1988, defendant waived his right to a preliminary examination in the West Kern Municipal Court on a charge of possession of methamphetamine for sale (Health & Saf.Code, § 11378). Thereafter, the Kern County District Attorney filed an information in superior court charging defendant with possession of methamphetamine for sale (Health & Saf.Code, § 11378).

Defendant initially moved to suppress evidence of the alleged offense (Pen.Code, § 1538.5), ¹ but on November 14, 1988, defendant withdrew his suppression motion.

On February 6, 1989, jury trial commenced in superior court. During trial, the superior court granted the People's motion to amend the information by adding a charge of transportation of methamphetamine (Health & Saf.Code, § 11379). On February 9, 1989, the district attorney filed the amended information and the jury found defendant guilty of both counts.

On March 15, 1989, defendant's motion for new trial was denied and the trial court denied defendant probation and sentenced him to the middle term of three years in state prison for transportation of methamphetamine (count II). The court imposed a concurrent two-year term on count I (possession of methamphetamine for sale), but suspended the latter term pending a medical examination of the defendant. (Welf. & Inst.Code, § 3051.) The next day, defendant filed a notice of appeal "from the judgment and sentence."

On March 20, 1989, the court ordered the proceedings adjourned and appointed a medical examiner to determine whether defendant was a narcotic drug addict or in imminent danger of becoming a narcotic drug addict. On April 5, 1989, the court found defendant was a narcotic drug addict and committed him to the California Rehabilitation Center.

FACTS

On August 23, 1988, Kern County Deputy Sheriff Michael Helton, along with his reserve deputy partner, left the Kern County jail at approximately 10:25 p.m. Helton and his partner noticed an older model Dodge Charger traveling southbound on Baker Street. The vehicle accelerated rapidly, the tires smoked, and the car fishtailed. The deputies activated the lights on their patrol vehicle and stopped the Charger at East Truxtun and Beale Avenues. The driver (defendant) alighted and went to the front of the vehicle. Deputy Helton informed him he was under arrest for exhibition of speed. Helton conducted a patdown search and took a knife from defendant's waistband and a brown vial from defendant's right front pocket. The vial contained a white, powdery substance which Deputy Helton suspected was methamphetamine.

While still at the scene of the traffic stop, Deputy Helton looked through defendant's wallet and found $4,715 in currency of various denominations. Helton began searching the vehicle but found nothing else inside. He requested defendant's consent, searched the trunk, and found a blue bag containing empty plastic baggies.

The officers handcuffed the defendant, placed him in the back seat of their patrol vehicle, and took him to the Inmate Receiving Center at the main jail. During this trip, Deputy Helton noticed the defendant was moving from side to side in the back Deputy Helton returned to the patrol vehicle, conducted a more thorough search, and found two leather pouches under the front passenger seat. One contained a chunky substance and the other a powdery substance. Brenda Smith, an analyst with the Kern County Regional Crime Laboratory, examined the contents of the brown vial, the baggie containing a white, powdery substance, and the two leather pouches. She concluded all of those items contained methamphetamine with a total combined weight of 46.07 grams.

seat. The officer also heard something scraping on the bottom of the passenger seat. When they arrived at the Inmate Receiving Center, Deputy Helton noticed the defendant's right boot was partially off. Defendant pulled the boot all the way up before getting out of the patrol vehicle. Defendant entered the Inmate Receiving Center and officers conducted a more thorough search of his person. The officers found several baggies of marijuana and a bag of white, powdery substance in defendant's right boot. Deputy Helton also found a piece of paper in defendant's wallet which contained a column of names and a column of dollar amounts.

Kern County Deputy Sheriff Rob Castaneda, a member of the narcotics task force, testified the paper found in defendant's wallet was a "pay and owe sheet." Castaneda concluded defendant possessed the methamphetamine for purposes of sale.

Defense

Defendant testified on his own behalf. During 1983, he suffered an accident which resulted in numerous broken bones and a back injury. As a result of these injuries, he later obtained a personal injury settlement in the net amount of approximately $50,000. Defendant purchased a clean-up business with a portion of the settlement money. The business entailed site cleanup, earth moving, and house demolitions.

In February 1988, defendant separated from his wife. Defendant testified he kept funds in a safe at his mother's residence after the date of separation. He had a net income of approximately $15,000 for the first eight months of 1988. Defendant explained the money he carried on the evening of the arrest had been earned from different jobs and included a portion of the personal injury settlement money.

Defendant acknowledged he was driving his car, a 1970 Dodge Charger, at the time of his arrest. Defendant said he was en route first to his house and then to his mother's house. He denied having possession of the two leather pouches. Defendant explained he was moving from side to side in the rear seat of the patrol vehicle due to his back injury. Defendant said being handcuffed behind his back aggravated his back injury. As defendant got out of the patrol vehicle at the Inmate Receiving Center, he caught his boot on a part of the car and the boot pulled off his foot. Defendant said the document in his wallet was part of an old record book. He explained the numbers were estimates for moving yards of dirt.

Defendant admitted regular use of methamphetamine since late 1983 to stimulate him to work in spite of the pain from his accident. He also admitted possessing the brown vial taken from his right pocket and the small package taken from his right boot. However, he denied possession of the two leather pouches found in the patrol vehicle.

Rebuttal

Deputy Helton testified he was standing next to the patrol vehicle when defendant alighted at the Inmate Receiving Center. Deputy Helton assisted defendant by placing his hand on defendant's arm. When defendant got out of the car, his boot was almost off his foot. Deputy Helton did not recall the boot getting caught on any part of the patrol vehicle.

DISCUSSION

Defendant contends the trial court erroneously allowed the prosecution to amend the information.

On the second day of trial, the prosecution concluded its case-in-chief and moved to amend the information by adding a charge of transportation of methamphetamine (Health & Saf.Code, § 11379). The court stated it would conduct a hearing on the motion before ruling. The defense did not request a continuance but instead proceeded with its case and rested. The court finally heard argument on the motion to amend after the People presented rebuttal evidence. Defendant opposed the motion on the grounds (1) the motion did not comply with section 1009 and (2) the delayed filing of the motion prejudiced defendant.

At the request of defense counsel, the trial court took judicial notice of the following facts: (1) the defendant was arrested on August 23, 1988; (2) the district attorney filed Kern County Municipal Court case No. 3490 on September 2, 1988, and the only charge was possession of methamphetamine for sale (Health & Saf.Code, § 11378); (3) defendant was arraigned in the municipal court, department F, on September 6, 1988; (4) the court set defendant's preliminary hearing for September 30, 1988; (5) defendant waived the preliminary hearing and the case was certified to the superior court where defendant appeared for arraignment on October 17, 1988; (6) the district attorney filed an information in superior court charging defendant with possession of methamphetamine for sale (Health & Saf.Code, § 11378) and no other offense; (7) the court set a pretrial conference for January 20, 1989, and set trial for January 30, 1989; (8) due to court congestion, the court continued trial until Monday, February 6, 1989, and on that date the matter was assigned to the trial court judge's department; (9) the prosecution did not move to amend the information between September 2, 1988, the date the complaint was filed, and September 6, 1988, the date of defendant's arraignment; (10) the prosecution did not move to amend between the date of defendant's arraignment in municipal court and the date of his arraignment in superior court, September 30, 1988; and (11) the People did not file a motion to amend in the superior court and the defendant first received notice of a proposed amendment at a conference in chambers on February 6, 1989.

The trial court granted the prosecution's motion, stating:

"The Court is going to grant the motion. The Court finds it does have the discretion to allow the amendment at this stage of the proceeding in light of statutory...