People v. Mardian

• Decision Date: 09 April 1975
• Docket Number: Cr. 7123
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Joseph MARDIAN, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 269

121 Cal.Rptr. 269

47 Cal.App.3d 16

PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Joseph MARDIAN, Jr., Defendant and Appellant.

Cr. 7123.

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

April 9, 1975.

Hearing Denied July 3, 1975.

[47 Cal.App.3d 24] George H. Chula and Bernard L. November, Santa Ana, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

STATEMENT OF THE CASE

On April 4, 1973, a felony complaint was filed in the Riverside Municipal Court charging Frank Joseph Mardian, Jr. (hereinafter 'Defendant') and Cliff Wyatt with unauthorized possession of a controlled substance for sale (1-phenyl-1-piper idinecyclohexane, more commonly known as 'PCP'), in violation of Health and Safety Code section 11911. ¹

On June 22 a preliminary hearing was begun, which was continued to and concluded on July 27, at which time the magistrate denied defendant's motion to suppress evidence and held him to answer for violation of Health and Safety Code section 11910 (possession of a controlled substance).

On August 1, the Riverside County District Attorney filed an information charging defendant with possession of a controlled substance for sale (Health & Saf.Code, § 11911). Defendant, accompanied by counsel, was arraigned, advised of his constitutional rights, and entered a plea of not guilty in the Riverside superior court on August 13.

On August 21, defendant noticed a motion in the superior court to remand his case back to municipal court on the ground that the magistrate had denied him a full and complete hearing on his motion to suppress evidence at the preliminary hearing. The motion to remand was denied on September 27.

In October, the date of defendant's trial was set for December 10. In November, defendant moved to set aside the information pursuant to section 995 of the Penal Code, and concurrently, to suppress particular pieces of evidence pursuant to section 1538.5 of the Penal Code. On December 7, both motions were denied, the latter 'without prejudice to its being entertained by the court conducting trial in this matter.' (Defendant's petition to this court for a writ of prohibition/mandate in regard to the superior court's ruling on his 995 motion was denied on December 27.)

On January 18, 1974, defendant made yet another motion to suppress 'all of the evidence seized . . . pursuant to the execution of a search warrant' in this matter. (Pen.Code, § 1538.5.) A hearing was held on this motion, and on March 14 it was denied.

On April 8, defendant's jury trial commenced. On May 1, the jury returned a verdict finding the defendant guilty of violating section 11910 of the Health and Safety Code (possession of PCP, a controlled substance)--a lesser offense necessarily included within the one charged in the information. (Health & Saf.Code, § 11911, possession of a controlled substance for sale.)

The matter was referred to the probation department, and sentencing was set for May 22, 1974. On May 22, defendant's motion for new trial was denied, and he was ordered committed to the Department of Corrections (Chino) for evaluation pursuant to section 1203.03 of the Penal Code. On August 30, defendant was returned to court, probation was denied, and he was sentenced to state prison. (Pen.Code, § 1168.) Defendant's motion for bail pending resolution of this appeal was denied.

Notice of appeal was filed in this court on August 30. ²

FACTS

On January 26, 1973, Mrs. Barbara Bockleman, a citizen informant, telephoned the Riverside County Sheriff's office and reported that she knew of the presence of contraband in a county residence. In response to Mrs. Bockleman's call, Deputy Sheriff Gerald Driscoll contacted her at her home in Norco. Mrs. Bockleman told Driscoll that a friend of hers, Dixie Hardesty (aka Hanson)--a woman for whom her 13-year-old daughter, Connie, sometimes babysat--had informed her in mid-January that she (Dixie) had allowed her brother (Cliff Wyatt) and 'Frank' (the defendant) to store a suitcase filled with narcotics and money at her home, but assured her that the suitcase had been removed. Mrs. Bockleman then told the deputy that her daughter, Connie, while babysitting at the Hardesty residence in Glen Avon the preceding day, had seen a black suitcase containing several small plastic bags filled with a white powdery substance. Mrs. Bockleman also told the officer that Connie reported that defendant 'had been into the suitcase.'

Following his interview with Mrs. Bockleman, Deputy Driscoll (accompanied by Detective Ludtke) went to the Hardesty residence in Glen Avon to talk with Connie Bockleman. Connie told the officers that she had seen a black suitcase hidden in a closet in a bedroom of the Hardesty house. She had observed the contents of the suitcase, and told the officers that it contained several small plastic bags packed with white powder. She further stated that Frank had come to the residence, 'been in the suitcase,' and had placed white powder from the suitcase into a cardboard box with which he had left. Finally, Connie said that she had asked Donny (one of Dixie's children), a seven-year-old, what was in the suitcase and that he had responded, 'there's dope . . . in the suitcase.'

Armed with the information furnished by the Bocklemans, Deputy Driscoll filled out an affidavit for the issuance of a search warrant for the Glen Avon residence. On the evening of January 26, Driscoll presented the affidavit to a magistrate of the Riverside Municipal Court, who reviewed and discussed it with the deputy for some 30 minutes before issuing a search warrant at 10:40 p.m. The warrant authorized nighttime service (e.g., after 10:00 p.m.). ³

Immediately upon securing the warrant Driscoll, accompanied by Detective Frank Andrews, proceeded to the Hardesty residence in Glen Avon. The officers served and executed the warrant at 11:25 p.m. Andrews discovered a black briefcase, with a combination lock, in a closet in the master bedroom of the house. The briefcase was seized along with some papers. Subsequent analysis of the four plastic bags of white powder secreted in the briefcase revealed that one of the bags (weighing 384 grams) contained PCP (a controlled substance), and that the other three bags contained thiodiphenylamine (a chemical similar to PCP, but one whose possession is not prohibited by Healty & Saf.Code, §§ 11910 and 11911). ⁴

Apparently Dixie and Joe Hardesty were taken into custody upon conclusion of the search, and Cliff Wyatt and the defendant were arrested sometime later.

Defendant's preliminary hearing on the charge of possession, for sale, of PCP commenced on June 22, 1973.

The People called Dixie Hardesty as a witness, but she exercised her Fifth Amendment privilege against self-incrimination and refused to testify. The preliminary hearing was then continued and in the interim Mrs. Hardesty was granted immunity. She resumed the witness stand on July 27 and delivered the following testimony: In mid-January 1973, her brother (co-defendant Cliff Wyatt), accompanied by Frank (Mardian, the defendant) brought a black briefcase to her Glen Avon residence. She, on more than one occasion, had the opportunity to view the contents of the attache case, and noted that it (at various times) contained white powder, money, and newspaper. During the two week interim between the arrival of the briefcase at the residence and its seizure by the sheriff's deputies, defendant visited the home on a dozen occasions whereupon he went directly to the satchel's hiding place. The day Wyatt and defendant brought the briefcase to the house for safekeeping, it was secreted in a cubbyhole off a child's bedroom in the attic, but was subsequently moved to her bedroom closet by Wyatt. Though defendant did not accompany Wyatt when he removed the satchel from the cubbyhole he, nonetheless, on his very next visit to the Hardesty residence, went directly to its new hiding place in the master bedroom closet. (And, though defendant had been at the Hardesty home a number of times, Mrs. Hardesty testified that he had never entered the master bedroom before.)

Detectives Frank Andrews and Gerald Driscoll also testified at the hearing. Andrews related that he had found the briefcase in the bedroom closet the night the warrant was executed, and that upon finding it contained a white powdery substance, extracted a small amount of the powder and tested it with a chemical reagent to determine if it was contraband. The results of Andrews' tests led him to believe the powder was indeed contraband, and he thereupon took the briefcase into custody. Driscoll testified briefly concerning the securing of the search warrant.

Michael White, a criminalist, testified that the four bags of powder found in the briefcase were analyzed in his Riverside lab on January 30, 1973. Three of the plastic bags contained a white powder, the fourth, yellow. One of the white powders, and the yellow, were subjected to a series of chemical tests. PCP was found to be present in both powders. White testified that the chemical analysis was made on a one milligram sample of each of the powders, but that no quantitative analysis was made as to the percentage concentration of PCP that was present in the compounds, ⁵ though White was able to say that he doubted his chemical tests would have revealed the presence of PCP in the compounds if its percentage concentration was less than one percent.

Upon conclusion of the hearing, defendant was held to answer for violation of Health and Safety Code section 11910, possession of a controlled substance.

After defendant's motion to set aside the information was denied (December 7, 1973), he moved the court to suppress the evidence seized pursuant to...