People v. Chrisman
| Decision Date | 28 November 1967 |
| Docket Number | Cr. 5908 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony Lloyd CHRISMAN, Defendant and Appellant. |
R. Donald Chapman, Public Defender, San Jose, for appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, C. Michael Buzzell, San Francisco, for respondent.
A seven count indictment charged Anthony Lloyd Chrisman with furnishing heroin to another, in violation of section 11501 of the Health and Safety Code, on August 12 and August 13, 1965; Chrisman, Patricia Marie Haydon, and Conrad A. Berger with conspiracy (Pen.Code, § 182) to commit burglary (Pen.Code, § 459), and grand theft (Pen.Code, § 484) in the month of August 1965; Berger with receiving stolen property in violation of section 496 of the Penal Code in the month of August 1965; Chrisman and Haydon with conspiracy (Pen.Code, § 182) to possess heroin (Health & Saf. Code, § 11500) in August 1965; Chrisman and Haydon with transportation of heroin, in violation of section 11501 of the Health and Safety Code, on August 28, 1965; and Haydon with driving a vehicle while addicted to and under the influence of narcotics, in violation of section 23105 of the Vehicle Code, on August 28, 1965.
Chrisman was found guilty on each of the counts in which he was charged following a trial by the court on a stipulated record of prior proceedings. The court granted him a new trial on the charge of transportation of heroin and the People have appealed from that order. He was sentenced to concurrent terms in state prison, with six charged and proved prior convictions, on each of the two counts of furnishing heroin, and on each of the conspiracy charges. He has appealed from the judgment convicting him of these offenses.
Chrisman attacks his conviction on the first two counts on the grounds of insufficiency of the evidence because there was no evidence that the substance supplied by him to the alleged recipient was in fact a narcotic, and because the only evidence supporting the charges of supplying a narcotic to another was the uncorroborated testimony of an accomplice. He contends that the evidence supporting his conviction on the two conspiracy charges was obtained by an illegal search and seizure. This conclusion is postulated upon the premise that the arrest of defendant, which accompanied the search, was based on a warrant of arrest which had been issued without reasonable cause, and was not otherwise supported by probable cause. Finally, he asserts that one of the convictions for conspiracy must be set aside to prevent multiple punishment in violation of the provisions of section 654 of the Penal Code. It is concluded the principles upon which defendant relies do not control the record before this court; that there is sufficient evidence to sustain the convictions on the first two counts; that the evidence which sustains the defendant's convictions on the two conspiracy counts was not the product of an illegal search and seizure, and that no prohibited multiple punishment is involved.
The People, on their appeal, contend that the trial court, in granting a new trial, erroneously concluded that the evidence offered in support of the charge of transportation failed to show more than a legally unrecognizable trace of contraband. Although there may be circumstantial evidence of a greater amount, it cannot be held, as a matter of law, that the court abused its discretion in granting a new trial.
On August 25, 1965, a complaint was filed in the municipal court charging Chrisman with two counts of violation of Health and Safety Code, section 11501, and a warrant was issued for his arrest. On August 28, 1965, Chrisman and Haydon, were arrested by investigators from the office of the Santa Clara district attorney. On August 30, 1965, a complaint was filed in the municipal court charging Chrisman and Haydon with a violation of Health and Safety Code, section 11501, transportation of heroin, and with conspiracy to commit a violation of Health and Safety Code, section 11500, possession of heroin. Haydon was also separately charged with a violation of Vehicle Code, section 23105, driving a vehicle while under the influence of narcotics. On august 30, 1965, the municipal court issued a warrant for the search of the premises of Berger. On the same day, a complaint was filed in municipal court charging Berger with a violation of Penal Code, section 496, receiving stolen property, and a warrant was issued for his arrest.
On September 1, 1965, the grand jury of Santa Clara County heard testimony concerning Chrisman, Haydon and Berger, and returned the indictment referred to above.
The accused were arraigned in superior court, and on September 17, 1965, each moved that the indictment be set aside, pursuant to Penal Code, section 995. Hearing on the motion to dismiss was continued so that proceedings could be taken in the municipal court to attack the warrant issued for Chrisman's arrest.
On October 5, 1965, Chrisman filed a notice of a motion in the municipal court to quash the warrant of arrest and to suppress evidence secured as a result of the execution of that warrant. On October 6, 1965, Berger filed a motion to quash the search warrant issued against him, and to suppress evidence secured on its execution. The two motions were joined together by order of the municipal court, and heard on October 7, 1965. On October 8, 1965 the motions were denied.
On October 15, 1965, at the request of the defendants, the records of the proceedings in the municipal court were admitted into evidence in the superior court in support of the motion to dismiss. The following week, Chrisman filed his motion to suppress evidence in the superior court.
On November 26, 1965, the motion to dismiss, and the motion to suppress evidence were heard, and each was denied. On the same day, Chrisman and the other defendants entered pleas of not guilty as to each count of the indictment. Chrisman also denied each of his alleged priors.
On December 9, 1965, Chrisman, and the other defendants, filed a petition for a writ of prohibition and for writ of mandamus in this court (1 Civ. 23325). On January 4, 1966, the petition was denied without a hearing. On January 12, 1966, the defendants filed a petition for hearing in the Supreme Court. On February 2, 1966 the petition for hearing was denied.
On February 16, 1966, the matter came on for trial of the defendant Chrisman. 1 He personally, and through his counsel, waived a jury trial. It was stipulated that the matter be submitted upon the transcript of the proceedings before the grand jury, and the transcript of the proceedings held in the municipal court, together with all the documents filed in both the municipal and superior courts in connection with either the Chrisman or Berger proceedings. Evidence was also offered and received to prove the prior convictions.
The facts as adduced in the foregoing proceedings are set forth below as they bear upon the issues presented.
Joy Anne Osborne testified that she became addicted to heroin and was using it for about three and one-half months prior to September 1, 1965; that, through other addicts, she became acquainted with Chrisman, who was also addicted to heroin, about a month after she started using that narcotic; that he bought heroin in San Francisco and they used it together; that she got narcotics from him throughout the period of their acquaintanceship; and that he furnished her with heroin specifically on August 12 and August 13, 1965.
She described the place, the person from whom, and the manner in which the heroin was obtained in San Francisco, and the balloons in which it was packaged. She related that she and Chrisman would have an injection of heroin before driving back to Santa Clara, and that he had instructed her to swallow any heroin in her possession if they were stopped by the police. She described and identified the type of paraphernalia used by Chrisman for heating and injecting the heroin, and told the manner in which it was used.
She stated that she confided in her gynecologist that she was addicted and wanted to kick the habit; that the doctor referred her to the district attorney's office; and that after last using heroin on August 13 she went to Agnews State Hospital on that day; and that there she underwent withdrawal symptoms and was very sick.
A doctor who examined Chrisman on August 28, 1965, testified that he was then actively addicted to heroin. The doctor testified that if a person is actively addicted to narcotics he will undergo a withdrawal syndrome if the narcotics are discontinued. He described the physical symptoms of such withdrawal.
A technician testified that tests indicated the presence of heroin on the paraphernalia taken from Chrisman. Mrs. Osborne had identified this equipment as similar to that which she had used with him.
From the outset, defendant has contended that the testimony of Mrs. Osborne alone was insufficient to establish the nature of the substance she was allegedly furnished. In any charge of furnishing contraband to another at a time which antedates the apprehension of the furnisher, the prosecution may be faced with the fact that it was intended that the recipient consume the contraband, and that it was in fact so expended.
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