People v. Label

• Decision Date: 22 November 1974
• Docket Number: Cr. 12140
• Citation: 43 Cal.App.3d 766,119 Cal.Rptr. 522
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles LABEL, Defendant and Appellant.

Page 522

119 Cal.Rptr. 522

43 Cal.App.3d 766

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles LABEL, Defendant and Appellant.

Cr. 12140.

Court of Appeal, First District, Division 3, California.

Nov. 22, 1974.

As Modified Dec. 10, 1974.

Hearing Denied Feb. 19, 1975.

[43 Cal.App.3d 769] Robert Dorne, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, James D. Hurwitz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

GOOD, ^* Associate Justice.

A jury found appellant guilty of violating section 11912 (now 11352) of the Health and Safety Code (unlawful administration of a restricted dangerous drug). Judgment entered, he was sentenced to prison for the term prescribed by law. He appealed.

The charge arose out of the following facts:

Rebecca Rickel (18 years of age) was arrested on November 6, 1972 for possession of dangerous drugs (barbiturates ('yellows') and codeine). While in custody, she apparently adopted a cooperative attitude and wrote a statement of her activities during the weekend preceding her arrest. She also responded to interrogation by several officers and her statements were taken down in shorthand. She executed an affidavit that was either written by her or prepared by the sheriff's office from the information secured at the interrogation. The affidavit, dated November 10, alleged that appellant had given her an intravenous injection of barbiturates on November 4 at a cabin at Lakecrest Cottages, Clear Lake Park, that was rented by appellant and one David Johnson (a codefendant who apparently entered a negotiated plea to secure a sentence concurrent with one still outstanding in Oregon). This affidavit was used in procuring a search warrant and was incorporated in the form for affidavits for search warrant used in Lake County. Therein it is recited that Ms. Rickel was personally present and sworn by the issuing magistrate, a judge of the superior court.

A search of the cabin discovered needles and hypodermic syringes in a waxed paper bag and 'some tablets' under the front bottom of the refrigerator, where the affidavit stated she had seen David Johnson place them. A rent receipt issued to appellant and Johnson was also found. After the first witness had testified and at the commencement of the afternoon session of the first day of trial, appellant moved to suppress all evidence that was seized pursuant to the search. It was argued that the warrant was issued solely upon the affidavit of Ms. Rickel and that in the absence of an affirmative showing of her reliability there was no probable cause for the search. The motion was denied.

I. Appellant contends that Rickel was an accomplice as a matter of law and that the trial court erred in not giving Sua sponte instructions concerning the necessity of corroboration of accomplice testimony. We find no merit in this contention because section 1111 of the Penal Code defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' Rickel could no more be charged with 'administering' than a buyer of marijuana or other restricted substance may be charged with 'selling.' The purchaser is not an accomplice of the seller either as to illegal possession or as to sale. (People v. Galli (1924) 68 Cal.App. 682, 684--685, 230 P. 20; People v. Mimms (1952) 110 Cal.App.2d 310, 314, 242 P.2d 331; People v. Hernandez (1968) 263 Cal.App.2d 242, 247--248, 69 Cal.Rptr. 448.) Hernandez points out that purchasers could not be prosecuted for selling a forbidden narcotic to themselves (p. 248, 69 Cal.Rptr. 448).

In Health and Safety Code section 11352 ('every person who . . . sells, furnishes, administers, or gives away' etc.) it is obvious that the word 'administers' is used as defined in Webster's Third International Dictionary: '2a: to mete out; DISPENSE.' One cannot 'sell' or 'give away' to himself. Although one can 'furnish' himself with an article and diabetics and persons suffering from allergies 'administer' prescribed insulin or allergens to themselves, in the context of the section and its place in the penal provisions designed to control illicit substances we cannot believe that the Legislature intended to proscribe the self-administration of such substances and used 'furnish' and 'administer' as intransitives rather than in the same transitive sense that necessarily applies to the companion words, 'sell' and 'give away.' The fact that we have never heard of a prosecution based upon self-administration of a controlled substance indicates that the construction here adopted is the construction given to the section by peace officers in its application since it was originally enacted. If a defendant were so charged, we believe that, as to him, the language of the section would be deemed unconstitutionally vague and uncertain (cf. 1 Witkin, California Crimes (1963) p. 23) and that the construction we here adopt would be required by the rule that 'When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.' (People v. Ralph (1944) 24 Cal.2d 575, 581, 150 P.2d 401, 404.)

In People v. Galli, Supra, 68 Cal.App. at 685, 230 P. 20, in discussing the Connecticut counterpart of Penal Code section 31, the court quotes with approval the following language: 'The 'abetting' intended by it is a positive act in aid of the commission of the (defined) offense--a force, physical or moral, joined with that of the perpetrator in producing it. . . . The abettor, within the meaning of the statute, must stand in the same relation to the crime as the criminal--approach it from the same direction, touch it at the same point.' The recipient of the injection is not a participant in the criminal act of administering in the same sense that the willing, if 'passive,' participant in sexual crimes participates in the proscribed act (clearly forbidden to both participants) and is therefore subject to prosecution, as held in People v. Boud (1955), 136 Cal.App.2d 572, 289 P.2d 44; People v. Siegel (1934), 2 Cal.App.2d 620, 38 P.2d 450 and People v. Cox (1951), 102 Cal.App.2d 285, 227 P.2d 290. In addition to the cases cited Supra holding that the purchaser of narcotics is not an accomplice to either the sale or possession of the seller, analogous conclusions were reached in abortion cases where the aborted woman has been held not to be an accomplice even though she procured the purchase of a catheter and other paraphernalia required by a defendant abortionist. (People v. Alvarez (1946) 73 Cal.App.2d 528, 166 P.2d 896; cf. People v. Wilson (1944) 25 Cal.2d 341, 153 P.2d 720; People v. Clapp (1944) 24 Cal.2d 835, 151 P.2d 237.)

II. Appellant contends that probable cause was not shown for the issuance of the search warrant in that there was no showing that Rickel was a reliable informant. He asserts error in the denial of the Penal Code section 1538.5 motion to suppress made during the course of the trial. The trial judge rested his ruling upon the grounds (a) that under subdivision (h) of the code section, the motion was belated, and (b) that affiant Rickel was not an informant and that the affidavit was 'a direct statement of a declarant as to what she saw and observed.'

Subdivision (h) of section 1538.5 provides: 'If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial . . ..' The existence of the affidavit and its use in procuring the search warrant was succinctly referred to at the preliminary. It cannot be said that appellant was not aware of the affidavit and that opportunity to make his motion to suppress did not exist prior to the commencement of the trial. The denial of the motion as not timely was warranted. (People v. Superior Court of Butte County (1971) 4 Cal.3d 605, 610, 94 Cal.Rptr. 250, 483 P.2d 1202.)

Appellant further claims that counsel's neglect to make the motion reduced the trial to a farce and sham and cites People v. Aikens (1969), 70 Cal.2d 369, 74 Cal.Rptr. 882, 450 P.2d 258 and People v. Martinez (1974), 36 Cal.App.3d 527, 111 Cal.Rptr. 570 to support his contention Aikens is inapplicable. The decision in Martinez was rendered by the Court of Appeal of the State of California, Third Appellate District on January 3, 1974, being numbered Crim. 6998, and a hearing was granted by the Supreme Court on March 13, 1974 and is now pending in that court. Compliance with all of the procedures regulating the issuance of a search warrant were meticulously observed by the police authority in the case at bench. The affiant Rickel was taken before the issuing magistrate who had opportunity to observe her demeanor and to question her. Her affidavit contained admissions of illegal possession of drugs and set forth in specific detail her personal observation of criminal activity as well as incriminating statements she had heard appellant make. When a search warrant is issued by a judge before whom a confidential informant had appeared, 'the question is not whether the informant was reliable but whether the magistrate could reasonably rely upon the information supplied to him under the circumstances.' (People v. Sanchez (1972) 24 Cal.App.3d 664, 676, 101 Cal.Rptr. 193, 201.)

In re Golia (1971), 16 Cal.App.3d 775, 781, 94 Cal.Rptr. 323, 327, analogizes the rule that 'the uncorroborated Testimony of an accomplice is sufficient to establish probable cause to hold a defendant to answer' (citing cases) to reject the proposition that information received from a previously untested informant may never constitute...