People v. Hambarian

• Decision Date: 16 April 1973
• Docket Number: Cr. 5699
• Citation: 31 Cal.App.3d 643,107 Cal.Rptr. 878
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Alexander HAMBARIAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 878

107 Cal.Rptr. 878

31 Cal.App.3d 643

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Alexander HAMBARIAN, Defendant and Appellant.

Cr. 5699.

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

April 16, 1973.

Rehearing Denied May 4, 1973.

Hearing Denied June 13, 1973.

Keith C. Monroe, and George H. Chula, Santa Ana, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, and Michael S. Klein, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

Defendant appeals from a judgment of conviction of various violations of the Health and Safety Code relating to narcotics and dangerous restricted drugs.

Defendant was charged in an indictment with six counts, all arising out of alleged conduct on December 15, 1971: count I, manufacturing LSD (Health & Saf.Code, § 11912); count II, possession of LSD for sale (Health & Saf.Code, § 11911); count III, possession of marijuana for sale (Health & Saf.Code, § 11530.5); count IV, possession of mescaline for sale (Health & Saf.Code, § 11500.5); count V, maintaining a place for sale of narcotics (Health & Saf.Code, § 11557); and count VI, conspiracy to commit the other offenses (Pen.Code, § 182, subd. 1). By an amendment to the indictment, it was charged that defendant had suffered a prior conviction of a violation of Health and Safety Code, section 11530 (possession of marijuana), which defendant admitted.

The case was tried to a jury. During the trial, counts I (manufacturing LSD) and VI (conspiracy) were dismissed on motion of the prosecution. The jury found defendant guilty of counts II (possession of LSD for sale), III (possession of marijuana for sale), and IV (possession of mescaline for sale.) As to count V (maintaining a place for sale of narcotics), the jury found defendant guilty of two necessarily included offenses, possession of paraphernalia for smoking a narcotic (Health & Saf.Code, § 11555) and knowingly being in a place where narcotics are being unlawfully used (Health & Saf.Code, § 11556).

At sentencing, the admitted prior conviction was stricken, defendant was sentenced to state prison for the term prescribed by law on the conviction of court II (possession of LSD for sale), and sentence was suspended as to the other convictions pending service of the sentence imposed with respect to count II.

Preliminary Fact Statement

It was the theory of the prosecution that defendant, using his own name Donald Hambarian and an alias, David Talbert, was engaging in the charged unlawful conduct primarily at a residence at 1180 Miramar Street, Laguna Beach. Quite correctly, defendant does not challenge the sufficiency of the evidence to support his convictions, for the evidence of his guilt can only be characterized as overwhelming. Substantial quantities of narcotics, dangerous drugs and paraphernalia were found in numerous locations throughout the residence; defendant alone was found present at the residence; personal effects belonging to defendant were found scattered throughout the residence; and his occupancy of the premises, at least as a cotenant, was established by at least two disinterested witnesses. Nevertheless, a statement of some of the pertinent facts is necessary at this point to understand the contentions made by defendant and our disposition thereof. Further facts, most of them procedural, will be set forth hereinafter in connection with the contentions to which they pertain.

At about 2 a.m. on December 15, 1971, at the Laguna Beach police station, Agent Michael Barnes of the Bureau of Narcotics Enforcement obtained a search warrant for the premises at 1183 Miramar Street, Laguna Beach, a residence structure consisting of three levels, the lowest level being a cellar or at least having a dirt floor. At about 4 a.m. that same morning, Agent Barnes, in the company of other law enforcement personnel, executed the warrant. They approached the front door of the house and twice knocked and loundly amounced their identity, their possession of a search warrant and their intention of serving the warrant. They heard some noise inside the residence, but no one came to the door, and after waiting a moment or two, they opened the unlocked front door and entered. The only person found in the premises was defendant, who appeared to be asleep, in an alcove near the kitchen. A light was on in the kitchen. Agent Barnes looked into the kitchen, saw marijuana in ash trays and ice trays on the kitchen table and placed defendant under arrest. Within the house were found numerous documents bearing the names Talbert or Hambarian. A wallet was found containing a receipt bearing the name David Talbert and the address 1183 Miramar. In the same wallet there was a California driver's license in the name of Donald Hambarian. Also found was a receipt from an automotive repair agency made out to David Talbert. In one of the kitchen cabinets there were found a temporary driver's license and a receipt for the same in the name of defendant. In a closet on the lower level of the house were found photographs of defendant with other persons. In an overhead cabinet in the kitchen was found a glass flask with oily substance in it later determined to be hashish oil. In the storage area below the house in an ammunition box there were found nine plastic baggies containing numerous pills later determined to be LSD. Within a plaid convas bag in a hall closet there were found white plastic bags containing what appeared to be marijuana and numerous bottles containing various colored powders appearing to be restricted dangerous drugs. It was later determined that these containers did in fact contain mescaline sulfate, DMT and LSD. Also found within the plaid canvas bag was material later determined to be hashish. Found buried beneath the house (in the ground floor of the lower level) was a plastic bottle containing approximately $7,799 in currency. Also found in various places in the house were sizable quantities of ethyl alcohol (commonly used as a solvent to extract the active ingredient from hashish into hashish oil), a scale of a type commonly associated with the measurement and sale of narcotics and numerous vessels and smoking pipes of various sizes and descriptions containing residue of marijuana or hashish.

Mr. Redick was a real estate broker who negotiated the rental of the premises at 1183 Miramar Street in the spring of 1971 with a man named James Cowie. The rental agreement indicated that the premises were to be occupied by Cowie, Cowie's wife and another adult person. Mr. Redick saw Cowie early in May 1971 but did not see him thereafter.

Jo Ann Redick, the wife of the aforementioned Mr. Redick, was also a real estate broker in business with her husband in Laguna Beach. She received a number of communications from the owner of the premises at 1183 Miramar Street, Reverend Merwin, expressing some concern about the property. As a result of these communications, she went to the residence on a number of occasions. The first occasion was in early August 1971. She was greeted by defendant. She asked defendant if Mr. Cowie was there, and defendant said Mr. Cowie was in Hawaii but that he, defendant, was the third person on the rental agreement. Defendant paid her the rent and promised to keep up the premises. In October 1971, Mrs. Redick again went to the house where she had a conversation with defendant. Defendant stated that his name was David Talbert; that Mr. Cowie was no longer there; that he and another person named 'Cappie' 'were now in the property' and, again, that he was the third person on the rental agreement. 'Cappie' was also present on this occasion. Just before Thanksgiving, in November 1971, Mrs. Redick again went to the house, saw defendant and had a conversation with him. Mrs. Redick told defendant that Reverend Merwin was worried about the condition of the house and wanted to make a physical inspection. Defendant gave her a telephone number and said he and the other residents would be more than happy to show the owner through. Although defendant's hair was somewhat shorter at the time of trial than when she had previously seen him, Mrs. Redick was positive that defendant was the same person she met and talked to at the house in August, October and November 1971 who identified himself as David Talbert.

Reverend Merwin, having been unable to communicate with Mr. Cowie and having been supplied by Mrs. Redick with the telephone number furnished by defendant, telephoned that number and asked for Dave Talbert. The person to whom he spoke on the telephone made an appointment for Reverend Merwin to inspect the property. Reverend Merwin then went to the property and was shown through by defendant, who indicated that he was the person to whom the Reverend had spoken on the phone.

Mr. Grimm was the service manager for a Datsun dealer in Laguna Beach in 1971. He had dealings with defendant and worked on his car in August, October and November or December 1971. On each occasion, defendant represented himself to be David Talbert and gave his address as 1183 Miramar, Laguna Beach.

The defense was that on the morning defendant was found and arrested at the residence at 1183 Miramar, he was not a cotenant or regular occupant of the premises but, rather, a casual visitor. Defendant, however, did not testify at trial. The only significant evidence presented by the defense in support of this theory was the testimony of Dennis Soiffer, a friend of defendant. Mr. Soiffer testified that on the evening of December 14, 1971, defendant came to Mr. Soiffer's residence at 989 Miramar Street, Laguna Beach and that Mr. Soiffer, his girlfriend Debra Hogan and defendant went in defendant's automobile to see a motion picture in Hollywood. They returned to Laguna Beach sometime after 2 a.m. on December 15. ...