People v. Haeberlin

• Decision Date: 09 May 1969
• Docket Number: Cr. 13424
• Citation: 77 Cal.Rptr. 553,272 Cal.App.2d 711
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John B. HAEBERLIN, III, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 553

77 Cal.Rptr. 553

272 Cal.App.2d 711

The PEOPLE of the State of California, Plaintiff and Respondent, v. John B. HAEBERLIN, III, Defendant and Appellant.

Cr. 13424.

Court of Appeal, Second District, Division 5, California.

May 9, 1969.

Cooper & Nelsen and Thomas P. Breslin, II, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Larry Ball, Deputy Atty. Gen., for plaintiff and respondent.

AISO, Associate Justice.

Defendant John B. Haeberlin, III, was charged along with his co-defendants, Peter Fonda, Stephen Alsberg, and John R. Robischon, with illegal possession of marijuana (Health & Saf. Code, § 11530) on or about June 8, 1966. Trial was set for November 3, 1966, but continued to November 29, 1966, upon defendants' motion that an essential witness was unavailable. The case went to trial before a jury on the latter date. On December 19, 1966, the jury returned verdicts finding defendant Haeberlin guilty, co-defendant Alsberg not guilty, and reported inability to reach a verdict as to either of the other two co-defendants, Fonda and Robischon. Imposition of sentence was suspended and Haeberlin was granted probation for a period of four years upon certain stated conditions, one being that he spend the first 90 days in the County Jail. He appeals from the order granting probation (judgment and sentence) and is on bail pending disposition of this appeal.

He contends that the prosecution's use of the testimony of a witness, missing at time of trial, given at the preliminary hearing constituted error because (1) the witness was not properly sworn at the preliminary hearing, and (2) the People failed to exercise due diligence to obtain the witness' attendance at the trial. Finally, he contends that the witness was an accomplice and that her testimony was not sufficiently corroborated.

We have concluded that there was no error and that the order granting probation (judgment) should be affirmed.

The Facts ¹

On June 7, 1966, the Narcotic Division, Valley Detail, of the Los Angeles Police Department received an anonymous telephone call that marijuana plants were being cultivated next door at 5180 Avenida Hacienda (hereafter '5180') in the Tarzana area of Los Angeles. The following evening, about 7:30 p.m., the officers (Sergeants Olsen, Trotsky, and Detective Walsh) went to the area and found 5180 to be a corner lot. They went to 5172 Avenida Hacienda which was next door to and on slightly higher ground than 5180. They advised the apparent owners of 5172 of the previous night's phone call and obtained permission to enter their back yard to observe the back yard area of 5180. Sergeant Olsen observed marijuana plants growing in the area behind the garage on the 5180 property. The officers discussed the plants with the neighbor, Mr. Beighley and his wife. Mrs. Beighley stated that she had seen the plants being watered. She stated that she had observed some young men, who appeared to live next door, carry the plants in pots to the rear yard when they moved their personal belongings into the house. It was stipulated that Sergeant Olsen was an expert in the knowledge of and familiarity with marijuana and marijuana plants. He formed the opinion that the plants growing in the back yard of 5180 Avenida Hacienda were of the genus cannabis sativa, commonly known as marijuana or Indian hemp. The officers proceeded to 5180 to make arrests for the illegal cultivation of marijuana.

Two officers (Trotsky and Walsh) went to the front door, which was opened by a Marilyn Caskey. The officers identified themselves and stated that there was marijuana growing on the premises. Sergeant Olsen (who had gone to the rear door) observed Marilyn Caskey turn and come back towards the rear of the residence, where he was standing. Then he heard her speak on the telephone saying, 'The cops are here.' At this time, he believed this to be a prelude to the destruction of evidence, so he entered through the kitchen and took the phone from Caskey's hand and hung it up. A cellophane package of marijuana was lying in plain view in an open purse on an ironing board next to where Marilyn Caskey, Sergeant Trotsky, and Sergeant Olsen were standing. After she was informed of her rights, she was placed under arrest as she had stated that the purse was hers. She said that she had been at the premises seven to ten days, visiting at the location until 'she could get on her feet.' At the time of arrest, the premises at 5180 were leased to defendant. At the trial, portions of the testimony which Marilyn Caskey had given at the defendants' preliminary hearing were read into evidence: She was visiting at 5180, having arrived there on the afternoon of June 1, 1966. Defendant Haeberlin was present at that time. She identified him. She stayed there temporarily and was there on June 8, 1966. Following June 1st, she had stayed overnight at 5180 except for two nights. When she stayed overnight, defendant was one of those who also stayed overnight at the residence. While there, she had smoked cigarettes in the presence of the four defendants. At times, she supplied her own. At other times, defendants supplied the cigarettes. Some of the cigarettes she smoked at the residence 'got her high.' The effect was different from smoking standard brand cigarettes. The cigarettes were rolled in paper and 'capped' at one end. The appearance of the material inside the cigarettes was green, like oregano. She saw defendant Haeberlin smoke this type of cigarette more than once on the premises. Defendant Haeberlin also rolled these cigarettes in her presence. She did not observe any of the other co-defendants roll any in her presence. The witness had been alone in the house for approximately 45 minutes prior to her arrest.

Other facts will be detailed where relevant to the issue under discussion.

Witness Properly Sworn

Defendant contends that witness Caskey's testimony should not have been received, because she had not been properly sworn in compliance with section 710 of the Evidence Code, which provides: 'Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law.'

A search warrant apparently had been obtained after Caskey's arrest. Preceding the preliminary hearing proper, but before the same magistrate, defendants had made a motion under sections 1539 and 1540 of the Penal Code of quash the warrant and for return of the property seized under the warrant. For this purpose, Caskey was called as a defense witness.

The reporter's transcript of the preliminary hearing reflects the following:

'THE COURT: Call Miss Caskey * * *.

'MISS CASKEY: Yes.

'THE COURT: All right, will you step around, please. * * *

'THE COURT: Swear the witness.'

'MARILYN CASKEY

Was called as a witness by and on behalf of the defendants and, having been first duly sworn, was examined and testified as follows:

'THE CLERK: Will you state your name for the record, please?

'THE WITNESS: Marilyn Caskey * * *.'

After the motions of the defendants under sections 1539 and 1540 of the Penal Code were denied, the preliminary hearing proper was immediately commenced. The reporter's transcript reports the calling of the witness Caskey as follows:

'MARILYN CASKEY

was called as a witness by and on behalf of the People, and, having been previously sworn, was examined and testified as follows:

'THE CLERK: You have been sworn. Will you state your name for the record once again?

'THE WITNESS: Marilyn Caskey.'

For all intents and purposes, the hearing was one continuous session conducted at one sitting. The purpose of administering an oath is to make the witness aware that he is testifying under the sanction of an oath. Here the witness was reminded that she had been sworn and impliedly admonished that she was still under the sanction of her earlier oath. 'In any event, if defendant was unsatisfied with the adequacy of the oath-taking, he should have called the matter to the attention of the court. Any short-comings in the procedure were waived * * * by failure to object * * *.' (People v. Thomas (1967) 65 Cal.2d 698, 708, 56 Cal.Rptr. 305, 312, 423 P.2d 233, 240; accord, People v. Berry (1968) 260 Cal.App.2d 649, 653, 67 Cal.Rptr. 312.) The objection must be raised in the proceeding where the witness is testifying and at a time when the defect can be easily remedied. (Estate of Wilson (1953) 116 Cal.App.2d 523, 526, 253 P.2d 1011; Estate of Da Roza (1947) 82 Cal.App.2d 550, 556, 186 P.2d 725; Tennant v. Civil Service Commission (1946) 77 Cal.App.2d 489 498, 175 P.2d 568.) Advantage of the defect must be taken immediately upon the fact becoming known, otherwise it is waived. (Trigueiro v. Skow (1937) 24 Cal.App.2d 253, 256, 74 P.2d 836; People v. Duffy (1930) 110 Cal.App. 631, 635--636, 294 P. 496.) The defect is similar to a defect in the form of a question which was not raised at the earlier proceeding. Reported testimony is not vulnerable to objection as to form when used in a later proceeding. (Evid.Code, § 1291, subd. (b)(1).) A similar rationale applies to a defect in the manner of administering the oath, if any, which was not raised at the time when it could have been easily cured.

Good Faith Effort to Secure Absent Witness' Presence

The trial of this case took place during the latter part of 1966, which was prior to the United States Supreme Court handing down Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. Portions of the testimony of the witness Marilyn Caskey given at the preliminary hearing were admitted under former section 686, subd. 3 of the Penal Code, then in effect, upon the theory that the People had established unavailability of the witness, the witness being out of state. However, the rule in Barber v. Page, Supra, 'that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless...