People v. Kennedy, Cr. 2848

• Citation: 256 Cal.App.2d 755,64 Cal.Rptr. 345
• Decision Date: 07 December 1967
• Docket Number: Cr. 2848
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Wayne KENNEDY and Charles Eugene Nitz, Defendants and Appellants.

Page 345

64 Cal.Rptr. 345

256 Cal.App.2d 755

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Wayne KENNEDY and Charles Eugene Nitz, Defendants and Appellants.

Cr. 2848.

Court of Appeal, Fourth District, Division 1, California.

Dec. 7, 1967.

Rehearing Denied Jan. 2, 1968.

Michael S. Hegner, San Diego, under appointment by Court of Appeal, for appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., Los Angeles, for respondent.

WHELAN, Associate Justice.

Defendants James Wayne Kennedy (Kennedy) and Charles Eugene Nitz (Nitz) appeal from judgments imposing prison sentences upon defendants respectively for possession of heroin.

Kennedy and Nitz were found guilty of possession of a narcotic, heroin (Health & Saf.Code, § 11500), transporting heroin (Health & Saf.Code, § 11501), and possessing marijuana (Health & Saf.Code, § 11530).

Kennedy was found, also, to have suffered two prior convictions for possession of a narcotic; Nitz to have had three prior convictions for sale of a narcotic and one for conspiracy to violate Health and Safety Code, section 11500.

The points raised on appeal are these: a claim that the contraband received in evidence over the objections of defendants was the product of an illegal search and seizure; that the evidence is insufficient to support a finding of guilt; that the trial judge had actual bias against defendants; and that the trial judge did not have jurisdiction to try defendants because he erred in not allowing a challenge intended to be made under section 170.6, Code of Civil Procedure.

WAS THERE AN ILLEGAL SEARCH?

No. The claim of defendants is premised upon the claimed lack of probable cause to make an arrest with a search incidental thereto.

In fact the searches made were with the express consent of defendants and two other persons, Ypma and May, who were their companions at the time of the arrests. While the question of probable cause to make the arrests is not of controlling materiality, we are of opinion that there was such probable cause.

Deputy Sheriffs Cornette and Burroughs stopped a northbound 1954 Ford on Highway 101 between Del Mar and Solana Beach at about 2:00 a.m. on March 3, 1966. They had observed it being driven in an erratic manner in the right lane at about 30 to 35 miles per hour. When the officers turned on their red lights, the Ford slowed to 5 to 10 miles per hour and continued northbound on the shoulder for about four blocks before coming to a stop. After it had gone at that rate of speed for two blocks, the officers flashed a spotlight through the rear window of the Ford to attact the driver's attention so that he would come to a complete stop, and observed three men and a woman moving around very actively, and leaning over.

When the Ford stopped, the driver, Kennedy, alighted, stepped back quickly toward the police car, and was met by the officers between the two vehicles. Kennedy produced his driver's license, but had no evidence of being the registered owner of the car. He invited the officers to look for the registration certificate in the glove compartment where one of them found a box of pills issued under a prescription in a name other than that of any of the four occupants of the car. The deputies noticed that Kennedy was hyperactive, appeared nervous and that the pupils of his eyes remained contracted under bright light.

The Ford did not have its 1966 license tabs, a fact which had not been observed before the car came to a stop because there was no light over the license plate.

The other three occupants of the car were asked to alight; all four were asked if they objected to emptying their pockets and if Miss May objected to showing the contents of her purse. What appeared to be part of a marijuana cigarette was in Miss May's coin purse; a part of another marijuana cigarette was among cigarettes in a packet produced by Ypma.

Kennedy several times spontaneously invited the officers to look through the car; declared that it was 'clean' and he was 'clean.' He had earlier told them he had been convicted of a narcotic offense and was on parole.

On looking again in the car, one of the deputy sheriffs found a hypodermic needle behind the back seat cushion where Nitz and Ypma had been sitting. All four were placed under arrest and taken to the Encinitas office of the sheriff, to which Kennedy drove his car. There all four were asked if the officers might make a further search of the car, to which all signified consent. That search disclosed a rubber container filled with heroin on the drive shaft tunnel directly under the front edge of the front seat on the driver's side.

One of the officers testified to the consents to search. Miss May also testified that the other three occupants voluntarily disclosed the contents of their pockets and she of her purse; and as to the requests made and the consents given to a search of the car.

The second officer, Burroughs, was called as a witness by defendants, and in so testifying corroborated that Kennedy had spontaneously invited a search of the car.

A urine sample taken at the county jail was analyzed and showed both Kennedy and Nitz to be under the influence of an opium derivative.

WAS THE EVIDENCE SUFFICIENT TO SUPPORT A FINDING OF GUILT?

Yes. In addition to the other matters hereinbefore set forth, Miss May testified in effect that Nitz, when the car was still in motion, had passed to her a marijuana cigarette which she ingested orally; that in response to a request from one of the persons in the back seat that she get rid of the stuff, she picked up the partially consumed cigarette from the front seat and put it in her purse.

Nitz testimonially stated that the heroin in the rubber container and the hypodermic needle were his. However, the place where the heroin was found is indicative that Kennedy, too, may have exercised dominion and control over it.

IS THE CLAIM OF ACTUAL BIAS AGAINST THE TRIAL JUDGE SUSTAINED?

No. The basis of the claim is that, because Judge Thomas had passed upon the application for probation of Miss May and, perhaps, of Ypma, and had read the probation report, he had 'knowledge of * * * facts which,' under section 170 of the Code of Civil Procedure, disqualified him to sit in the trial.

We are of opinion that a judge is not disqualified to try a criminal case against certain defendants merely because he may have previously in a separate trial heard the case of a codefendant or may have passed upon the application of a codefendant who has pleaded guilty. The knowledge of 'fact or facts' mentioned in section 170 is not the information gained at second hand from the

lips of witnesses in a trial or from a probation report. SHOULD THE ATTEMPTED CHALLENGE OF JUDGE THOMAS UNDER SECTION 170.6, CODE OF CIVIL PROCEDURE, HAVE BEEN ALLOWED?

No. Section 170.6 declares that any affidavit filed pursuant to its provisions shall be substantially in the form set out in the section, which provides for inclusion of the name of the judge intended to be challenged. The affidavit filed here did not include the name of any judge. True, a written notice of motion filed two days after, and dated one day after, the affidavit, set out the name of Judge Thomas and referred to the affidavit. No doubt if the affidavit had referred to another document already in existence naming Judge Thomas and incorporated it by reference, that might have satisfied the requirements of the statute; but the affidavit made no such reference and no such document appears to have been in existence when the affidavit was filed; the written notice of motion was a superfluity.

The affidavit of challenge is not intended to be a blanket to cover any judge known or unknown at the time the affidavit is filed. It must, therefore, set out the name of the judge against whom the challenge is directed. If it fail to do so and it be not amended in the trial court to show such name, it is insufficient as an affidavit under section 170.6. The insertion of the name of the judge intended to be challenged is a matter of substance.

Additionally, the attempted challenge was not timely.

On April 18, 1966, both defendants with counsel appeared in department 9 when the judge supervising the master criminal calendar gave the case a trial date of June 3, 1966 at 10:00 a.m. The minutes recite as to defendant Kennedy: 'The defendant reserves the right to make appropriate motions within a reasonable time.'

On June 2 both defendants appeared in the department of the judge supervising the master criminal calendar for the purpose of making motions to dismiss the indictment and to suppress evidence. The cause was then continued in the same department until June 3, at 9:00 a.m. The case was assigned to Judge Thomas by the judge supervising the master criminal calendar on June 3, 1966. On that day defendants personally waived a trial by jury before Judge Thomas, who permitted the waiver to be made and dismissed the jury panel that was in attendance. Defendants then argued to Judge Thomas the motions to dismiss under section 995, Penal Code, and to suppress evidence claimed to have been seized unlawfully. The case was then continued by Judge Thomas until June 6 in his own department.

On June 6, with all parties present, Judge Thomas announced his denial of the two pending motions made by defendants. At that time he was engaged in the trial of People v. Ballard and ordered the trial of Kennedy and Nitz to trial in his own department until the end of the Ballard trial.

The records of this court show that after the denial of their motion, made under section 995, Penal Code, defendants...