People v. Anderson

• Decision Date: 26 January 1962
• Docket Number: Cr. 7806
• Citation: 18 Cal.Rptr. 793,199 Cal.App.2d 510
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nevins ANDERSON, Defendant and Appellant.

Page 793

18 Cal.Rptr. 793

199 Cal.App.2d 510

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nevins ANDERSON, Defendant and Appellant.

Cr. 7806.

District Court of Appeal, Second District, Division 2, California.

Jan. 26, 1962.

Hearing Denied March 21, 1962.

Ellery E. Cuff, Public Defender, Edward B. Olsen, and James L. McCormick, Deputies Public Defender, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was found guilty of possession of heroin, Health & Safety Code, § 11500. He admitted a prior felony conviction under the federal law. He appeals from the judgment and order denying motion for new trial.

On September 19, 1960, at about 9:25 p. m., police officers Hunnel and Janowicz, dressed in civilian clothes, were driving a 'plain clothes car' (a 1957 Ford, egg shell color) southbound on Wilmington Street. As they approached the intersection of 115th Street and Wilmington, with their attention drawn to another person, they saw two Negroes standing on the southwest corner of the intersection. As the police stopped the car south of the intersection these two persons moved away from the corner and started running west on 115th Street. Both were male Negroes; no other 'mental impression in the way of identification' was obtained at that time by the officers. Officer Janowicz left the vehicle and gave pursuit. He testified that after he got out of the vehicle and reached the corner he saw one of the men running through a gate and south into the side yard of the house on the corner; the other was running west, about half way between the gate and the officer. He pursued the latter person who ran into a back yard at 1832 East 115th Street where he was apprehended.

In the meantime, Officer Hunnel parked the car and went looking for his partner. He saw no one and started checking between the buildings. Near the first, the corner house, a person stood in the back yard whom Hunnel identified as appellant. It was dark; there were no yard lights and the only illumination was from the street lights. He talked to appellant for about 30 seconds. Hunnel asked him if he had seen anyone go by there and he said 'No.' He was then asked if he had seen anyone running and he said 'Yes, there was two guys running down the street with another guy after them.' He told Hunnel they had run westward down 115th Street, and had run in between the buildings there, five or six houses down the street. Hunnel immediately went to that location where he found Officer Janowicz coming from between the buildings with one of the men that had been standing on the corner. Officer Janowicz arrested this person, one Joseph Miller, and took him to the police vehicle.

Officer Hunnel returned to the location where he first talked to appellant, in the back yard of the corner house; this was seven or eight minutes after talking with appellant. Appellant was not there, but Hunnel found, at the spot where appellant had been standing urinating, a multicolored balloon containing a quantity of white capsules, later shown to contain a narcotic; it was lying on the wet spot and was not wet on top. He then searched the immediate area of the pool halls, beer bars and cafes looking for the appellant but was unable to find him. This took about three minutes. He returned to the police vehicle and saw appellant crossing Wilmington, from west to east, behind the parked police car; he called to the appellant and started in his direction. 'The defendant turned toward me and then the other way, took about three fast steps and then slowed down and then walked on across the street and stopped when I hollered to him again. I caught up with him.' Hunnel asked appellant 'where he had been since I talked to him behind the building. He asked me what I meant. And I said 'I talked to you about ten minutes ago maybe over there behind the house there on the corner.' He said, 'No, this is the first time I have been down here, that is, tonight.' I said 'Well, I talked to you over there and you dropped a package on me, so you are under arrest.' 'What do you mean?' [he] said, 'Well, you are under arrest; that is all I will tell you right now.' I searched him for weapons and so forth.' The officer removed from appellant's left shirt pocket a capsule which, he testified, 'had a small residue in it but the capsule itself was clear.' 'I asked him what it was, how it got there. He said he didn't know. I asked him if he used the stuff. He said he had used it. I then asked him when was the last time and he said * * * 'Wednesday evening" (five days previously). Based upon his 11 years experience as a policeman Officer Janowicz testified, over objection, that in his opinion appellant was under the influence of narcotics the night of the arrest. Apparently his observation of appellant took place at or about the time of the arrest. There was no warrant for arrest or search. Officer Hunnel testified that the arrest of appellant was based upon his finding of the balloon in the back yard of the corner house.

By way of summary and as background to discussion of appellant's contentions we point to the following facts which afforded reasonable ground for arrest and search of appellant and his companion Miller. Though no man pursued they both began to run down the street when two men in plain clothes and a plain automobile stopped near them at a street intersection; each of the two ran into the yard of a house on a dark street; appellant was overtaken in the first available yard, where he stood urinating (from fright or as an evidence of equanimity, we do not know); Officer Hunnel talked with him for about 30 seconds and had ample time to see his face though it was dark; he gave the officer correct information about the flight of a man pursued by an officer, a man later identified as his own companion Miller; as the officer followed them appellant disappeared. The officer, after finding Janowicz with Miller in custody, spent some three minutes searching for appellant in bars and pool halls and then returned to the spot where they had talked; there he found the balloon containing the narcotics lying in the wet spot but dry on top, thus indicating it had been dropped after the evacuation; appellant not being present at that time, Hunnel returned to the police car and soon saw him crossing Wilmington Street behind that car; he called appellant and started toward him; '[t]he defendant turned toward me and then the other way, took about three fast steps and then slowed down and then walked on across the street and stopped when I hollered to him again. I caught up with him.' Defendant denied having talked to the officer on the previous occasion. He was then arrested and searched, his shirt pocket yielding the capsule with heroin debris inside.

Appellant's car key was taken from him, a General Motors key. He said it was the key to a 1949 Pontiac which he had junked two or three weeks prior to that conversation. Parked immediately behind Miller's Studebaker car was a 1950 Chevrolet which defendant's key fit, opening the locked door and starting the ignition. It did not fit or work any one of several other General Motors cars in the vicinity,--two Buicks and an Oldsmobile. The court asserted that this was no evidence because '[a]ny one of a number of General Motor car keys is interchangeable,'--a fact which, if it be a fact, is not the subject of such common knowledge as to make it a matter of judicial notice. After considerable discussion outside the presence of the jury a pending objection to the question whether the officer had tried the keys in the 1950 Chevrolet was sustained, but the evidence theretofore given was not stricken so it remains a part of the showing upon reasonable cause, the matter we are now discussing. (See, People v. Valencia, 30 Cal.App.2d 126, 128-129, 86 P.2d 122; People v. Olds, 154 Cal.App.2d 78, 83-84, 315 P.2d 881.)

Appellant was arrested and searched and his left shirt pocket yielded a capsule which had in it a few milligrams of white powder or debris later found to be heroin. After the capsule had been taken from his pocket defendant was asked by the officer whether he 'used the stuff'; defendant said he had used it, did not recall when he had last done so, and then said it was Wednesday evening. Officer Janowicz, after qualifying to do so, expressed the opinion that defendant was at that time under the influence of a narcotic.

The court ruled that the officers had reasonable cause for an arrest and a search. This was based upon evidence somewhat conflicting, but this question is for the judge alone (People v. Gorg, 45 Cal.2d 776, 780-781, 291 P.2d 469), and his ruling where the evidence is conflicting is conclusive unless it shows as matter of law that there was no reasonable probable cause. (People v. Muniz, 172 Cal.App.2d 688, 691, 342 P.2d 53.) We hold that the ruling that the officers had reasonable cause for arrest and search is correct.

1. Appellant's major contention is that he was deprived of his right to a fair and impartial jury trial in violation of his constitutional rights. It is claimed that the trial judge committed prejudicial error in advising the jury as to his decision regarding the right of Officer Hunnel to arrest and search appellant.

Throughout the trial the judge labored with a vociferous dislike of the ruling in People v. Gorg, supra, 45 Cal.2d 776, 291 P.2d 469, which he conceives to be a partial denial of the right to jury trial. When the time came for instructions to the jury the judge reacted in the other direction and conceived it to be his duty to explain the rule of People v. Gorg to the jury,--a wholly unnecessary and inadvisable procedure because of its tendency to confuse. The attorneys' arguments to the jury are not in the record but they seem to be the springboard for the remarks of ...