People v. Howell

• Decision Date: 26 January 1973
• Docket Number: Cr. 21608
• Citation: 105 Cal.Rptr. 748,30 Cal.App.3d 228
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. J. H. HOWELL, Defendant and Appellant.

Page 748

105 Cal.Rptr. 748

30 Cal.App.3d 228

The PEOPLE, Plaintiff and Respondent, v. J. H. HOWELL, Defendant and Appellant.

Cr. 21608.

Court of Appeal, Second District, Division 4, California.

Jan. 26, 1973.

Clifford Douglas, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., William R. Pounders and Gaye W. Herrington, Deputy Attys. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

After a court trial, defendant was convicted of possession of heroin (Health & Saf.Code, § 11500). He is appealing from the judgement. We are called upon to decide whether the arrest of an intoxicated motorist was unlawful because the arresting officer could not determine the cause of the intoxication and cited an inapplicable code section as the justification for the arrest. We have concluded that, under the circumstances shown here, the arrest and the search of defendant's person incidental to the arrest were lawful, but the judgment must be reversed because defendant's agreement to submit the issue of guilt on the preliminary transcript was not accompanied by the form of waiver which is required by the recent decision in People v. Levey (1973) 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452.

The Arrest

At about 6:00 p.m. on August 22, 1971, Officer Abbey was engaged in investigation of an automobile accident which had occurred a few minutes earlier. The officer had not seen the accident, but witnesses pointed out defendant as the driver of one of the vehicles involved. After conversing with defendant and observing his condition, Officer Abbey arrested defendant and took him to the police station, where he was searched. A package of heroin was thus discovered on his person.

At defendant's preliminary examination his objection to the introduction of the heroin was overruled. In the superior court he moved under Penal Code section 995 to set aside the information, arguing that the evidence of guilt was the product of an illegal arrest and search. This motion was denied. Defendant then moved to suppress the heroin under Penal Code section 1538.5. A hearing was held, at which the preliminary transcript was, by stipulation, received in evidence. Defendant's witnesses at the hearing on the motion included himself, Officer Abbey, who had testified at the preliminary hearing and who was called for further examination, and four other persons. The motion to suppress was denied.

Defendant then agreed to submit the issue of his guilt upon the preliminary transcript, with the understanding that he would be found guilty of the offense of possession (Health & Saf.Code, § 11500) rather than the alternatively charged offense of possession for sale (Health & Saf.Code, § 11500.5).

The evidence which supports the trial court's finding as to the legality of the arrest is in the testimony of Officer Abbey. His testimony in the superior court differed in some details from what he said at the preliminary examination, but his superior court testimony added nothing of substance.

Officer Abbey testified that when he asked defendant for a driver's license, defendant stated he had left it at home. Asked for other identification, defendant produced a credit card in the name of Joseph P. Hickey, signed by 'Mrs. Nikka B. Hickey.' When asked for a registration slip on the car he produced, instead, a 'pink slip' made out in the name of another person, but he was unable to tell the officer what that person's name was. When defendant was asked by the officer if there was someone he could call to verify his identity, defendant said there was no one 'we could call at that time.'

Officer Abbey observed that defendant was unsteady on his feet, weaving, having trouble maintaining his balance, his speech was slurred, he stammered and repeated and had trouble enunciating, his eyes were bloodshot, watery and glassy, and the pupils were constricted. There was no odor of alcohol.

The grounds of arrest, as stated by Officer Abbey at the preliminary examination, were 'For the culmination of driving under the influence, no identification. . . . I believe I informed him that I felt he was loaded, and he has no indication, no identification, and I don't believe that he was Joseph Hickey. . . . Like I said, under the influence, no identification, and also the possibility that the credit card might be a stolen credit card. . . .'

He testified that at the time of the arrest he had intended to book defendant under Vehicle Code section 23106. ¹

Testifying in the superior court, Officer Abbey stated the reasons for the arrest in these words: 'Driving under the influence, no identification, the possibility of possessing a credit card other than his own, possibly a stolen credit card. Also no registration on the vehicle, no proof of ownership.'

Officer Abbey was questioned extensively concerning his belief as to the cause of defendant's intoxication. A fair summary of his answers is that he could not say what caused it. He said he considered it could be alcohol, an opiate, a barbiturate or an amphetamine. He had had training and experience in the field of narcotics investigation, and he had been arresting persons under the influence of all kinds of drugs over a period of five years. At the scene of the accident, Officer Abbey asked defendant if he used heroin. Defendant replied 'that he had not shot heroin for quite a while.' They 'had quite a discussion about his background in narcotics.'

Abbey also testified that, although he did not detect the odor of alcohol, 'there is always a possibility.' At the police station he asked defendant if he would like to take a breathalizer test. The record does not show that such a test was given.

Officer Abbey testified that defendant's slightly constricted eyes were 'bordering on the symptoms of opiate intoxication.' He said he considered heroin intoxication to be a possibility but 'I do not make the opinion that someone is under the influence of an opiate unless . . . I have got the objective symptoms that I have been trained in right down the line.'

Explaining why he selected Vehicle Code section 23106 as his ground of arrest, the officer said: 'It's a section that, in my knowledge, is for all other drugs. In the absence of alcohol, if I can't pinpoint what particular drug it is, then, my opinion is that, if it is not an opiate, it falls under 23106.'

In analyzing the legality of the search, we put aside the officer's belief that defendant may have been guilty of theft, and defendant's failure to produce identification. (See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205.) Neither do we consider the possibility that defendant might have been arrested under Penal Code section 647, subdivision (f), since a violation of that section involves other elements not shown in the record here. It does not appear in this record that either the arresting officer or the trial court believed that the elements of a violation of section 647, subdivision (f), were present.

In attacking the validity of the arrest, defendant's attorney points out that a violation of Vehicle Code section 23106 is a misdemeanor, that the offense was not committed in Officer Abbey's presence, and the general rule is that an arrest for a misdemeanor is lawful only when the officer has reasonable cause to believe it occurred in his presence. (See Pen.Code, § 836.)

An exception to the general rule is found in Vehicle Code section 40300.5, enacted in 1969, which provides:

'Notwithstanding any other provision of law a peace officer may, without a warrant, arrest a person involved in a traffic accident when the officer has reasonable cause to believe that such person had been driving while under the influence of intoxicating liquor or under the combined influence of intoxicating liquor and any drug.'

The ground of arrest referred to in Vehicle Code section 40300.5 corresponds to the offense defined in Vehicle Code section 23102, I.e., driving under the influence of liquor or the combined influence of 'liquor and any drug.' ² Read literally, section 40300.5 does not cover driving under the influence of certain drugs without liquor, which could be a violation of section 23106.

The trial court, in ruling on defendant's motion to dismiss under Penal Code section 995, and again in denying defendant's motion to suppress under section 1538.5, expressed the opinion that the search was valid under People v. Wilkin (1971) 20 Cal.App.3d 872, 97 Cal.Rptr. 925. The Wilkin case involved a search incident to an arrest of a motorist for a violation of Vehicle Code section 23102. The rulings here indicate a finding by the trial court that the officer had reasonable cause to believe that defendant had been driving under the influence of intoxicating liquor or under the combined influence of liquor and any drug. This finding, if supported by the evidence in the record, supports the decision. ³

Reasonable cause is defined in People v. Fischer (1957) 49 Cal.2d 442, 446, 317 P.2d 967, 970.

'Probable cause for an arrest is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Citations.) Probable cause may exist even though there may be some room for doubt. (Citations.) The court and not the officer must make the determination whether the officer's belief is based upon reasonable cause. (Citations.) The test in such case is not whether the evidence upon which the officer made the arrest is sufficient to convict but only whether the prisoner should stand trial.'

A measure of uncertainty on the part of the officer as to which offense has been committed does not necessarily preclude a lawful arrest. In People v. Kilvington (1894) 104 Cal. 86, 37 p. 799, the Supreme Court reversed the...