People v. Morrow

• Decision Date: 08 August 1969
• Docket Number: Cr. 15925
• Citation: 275 Cal.App.2d 507,80 Cal.Rptr. 75
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronnie Duane MORROW, Defendant and Appellant.

Page 75

80 Cal.Rptr. 75

275 Cal.App.2d 507

The PEOPLE, Plaintiff and Respondent, v. Ronnie Duane MORROW, Defendant and Appellant.

Cr. 15925.

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

Aug. 8, 1969.

Paul A. Jacobs, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Rose-Marie Gruenwald and Howard Lee Halm, Deputy Attys. Gen., for plaintiff and respondent.

FOURT, Acting Presiding Justice.

This is an appeal from a judgment of conviction of two counts of driving a motor vehicle while under the influence of an amphetamine. The notice of appeal states that the appeal is 'from the judgment entered herein on August 22, 1968.'

In an information filed on May 28, 1968, in Ventura, defendant was charged in count I with driving a vehicle upon a highway on March 21, 1968, while he was under the influence of an amphetamine (a violation of § 23105, Veh.Code); count II charged that defendant possessed a dangerous drug on March 21, 1968 (a violation of § 11910, Health & Saf.Code); count III charged as a separate offense from that alleged in count II that defendant possessed a dangerous drug on March 21, 1968; count IV charged that on March 21, 1968, defendant possessed a restricted, dangerous drug for sale and count V charged that defendant drove a vehicle upon the highway on April 11, 1968, while under the influence of an amphetamine. It was further charged that defendant previously, namely on June 18, 1963, had been convicted of the crime of violation of section 11530, Health and Safety Code (possession of marijuana).

The Public Defender was appointed to represent defendant and defendant pleaded not guilty to each count as charged and denied the charged prior offense. A motion was made by counsel under the provisions of section 1538.5, Penal Code and subsequently was withdrawn. On July 16, 1968, at the time of the start of the trial the deputy district attorney, for some reason not apparent from the record, moved to strike counts III and IV (the latter being the most serious of the charges) and to renumber count V as count III. That motion was granted. Defendant then admitted the charged prior conviction. Defendant had served a term in the state prison on the prior felony and was on parole at the time the offenses herein charged were committed.

In a jury trial in which defendant was represented by private counsel he was found guilty as finally charged in the information as amended. Defendant made an application for probation. A date was set for the pronouncement of judgment.

A re sume of some of the facts is as follows: Deputy Sheriff Taylor of the narcotics detail was an expert in the investigation of dangerous drug use and had examined many persons who were suspected of being under the influence of or who were using Methedrine, a dangerous drug sometimes referred to as 'speed.' Apparently this drug is sometimes injected intravenously as a liquid and a person under its influence will exhibit dilated pupils, will be restless and nervous and will display a hyperactive disposition. On March 21, 1968, at about 8:45 p.m. Taylor and another officer were parked in an unmarked police vehicle across from La Barranca Motel in Ventura. The officers had the motel under surveillance and they saw appellant with two other persons leave the motel, get into a white Cadillac car and drive away with appellant doing the driving. Taylor knew that the car belonged to appellant and he could see that the car was being driven without the headlights turned on. Information from the Department of Motor Vehicles previously received had revealed that appellant's driving privilege had been suspended. Taylor radioed a request to other officers that appellant's car be stopped.

Deputy Sheriffs Haynie and Dye were engaged in patrolling activities at about 8:50 p.m. March 21, 1968, and received the radio call of Taylor. Haynie was advised of appellant's position, of the suspended license and of the inoperative headlights; further Haynie knew appellant as he had had ten or twelve contacts with him in the past. Haynie saw appellant's car and as he followed it, he turned on a flashing red light whereupon appellant accelerated the speed of his car, turned on the headlights and quickly turned into a parking lot of an oil service station. The officer pursued appellant's car and both cars stopped; appellant got out from the driver's side of the Cadillac and approached Haynie. Appellant was angry, nervous and excited. The pupils of his eyes were dilated. Taylor shortly thereafter arrived at the parking lot and made a physical check of appellant. The pupils of appellant's eyes were observed to be dilated, he was restless and had difficulty in standing still, his speech was rapid and his arms revealed several inflamed red, fresh puncture marks. Appellant was then placed under arrest and a subsequent search for contraband and weapons revealed that appellant had in a shirt pocket three plastic bags each of which contained a white powdery substance (Methedrine or 'speed').

During a subsequent examination at the jail, appellant refused to give a urine sample. Photographs were later taken of appellant's arms which depicted the fresh puncture marks, and part of a police report was prepared by Taylor with reference to the location and condition of the marks. Throughout the examination appellant was talkative, restless and unable to sit still; Taylor formed the opinion that appellant was under the influence of an amphetamine to the extent that his ability to drive a car was appreciably impaired.

Appellant was also examined by Officer Peebles of the narcotics detail of the Ventura Police Department and for the reasons heretofore stated and related he also thought appellant was under the influence of an amphetamine. Appellant apparently was released from jail on bail.

On April 11, 1968, at about 8:10 p.m. Deputy Haynie, who was in uniform and riding in a patrol unit, saw appellant drive his Cadillac car from a drive-in establishment onto a main street in Ventura and then straddle the line dividing the two eastbound lanes of such street. Deputy Haynie knew of appellant's driving status and when he saw him driving his Cadillac car followed him and turned on a red light: appellant drove into a parking lot of a nearby service station. Haynie followed in the police car and stopped close by appellant's car. Appellant appeared nervous, agitated and angry. The pupils of his eyes were dilated. The physical appearance of appellant was such as to lead Haynie to believe that appellant was again under the influence of an amphetamine and appellant was placed under arrest. Following the arrest appellant was examined by Deputy Taylor who when he observed the conditions as heretofore mentioned formed the opinion that appellant was under the influence of an amphetamine to the extent that his ability to drive was appreciably impaired. Defendant again refused to give a urine sample for the purpose of a test.

On behalf of appellant, Donna Carmona testified that appellant was a part-time resident or visitor of her household and that on March 21, 1968, he had arrived at her house at about 7:30 or 8 p.m. and that he then appeared normal to her and that she had seen appellant about fifteen minutes before he was arrested on April 11, 1968, and she had seen nothing unusual about him. The appellant did not testify in his own behalf. On rebuttal the prosecution called the manager of a restaurant where Mrs. Carmona was employed and according to the employment timecard kept with reference to Mrs. Carmona she worked from 6 to 10 p.m. on March 21, 1968, at the restaurant which is a considerable distance from where the arrests occurred.

Appellant now contends that the arrest of April 11, 1968, was without probable cause and therefore illegal as was the search and seizure on March 21, 1968, and that it was prejudicial error to permit Deputy Taylor to read from a police report which did not conform to the requirements of section 1237, Evidence Code.

There was no question or objection raised at the trial with reference to any claim of illegal arrest, search or seizure. It is too late to raise such objections for the first time on appeal. (See People v. Demery, 187 Cal.App.2d 613, 614, 10 Cal.Rptr. 135; People v. Irvin, 264 Cal.App.2d 747, 70 Cal.Rptr. 892; People v. Rivera, 202 Cal.App.2d 839, 842, 21 Cal.Rptr. 182; People v. Richardson, 51 Cal.2d 445, 447, 334 P.2d 573; People v. Saldana, 233 Cal.App.2d 24, 33, 43 Cal.Rptr. 312.) The essence of the rule is stated in Nelson v. People of State of California, 346 F.2d 73, 80, fn. 4 (9th Cir. 1965):

'* * * The contemporaneous-objection rule is but an application of the universal rule that material and relevant evidence, excludable on any ground, is admissible unless objection is made, and the grounds of objection are stated, when the evidence is offered. The rule is as old as the American common law. Our method of trying cases would be well nigh unworkable without it. Its specific application to evidence obtained by an unlawful search and seizure is well established in California. (Citations.)'

There can be not the slightest question under the facts as here set forth that the officers had probable cause on each occasion here related to believe that appellant had committed a felony and it was proper to proceed as was done.

The next contention is that it was prejudicial error to allow Deputy Taylor to read from a police report which did not conform to the requirements of section 1237, Evidence Code. No objection was made by appellant and what is stated in People v. Walker, 181 Cal.App.2d 227, 229--230, 5 Cal.Rptr. 283, 284, is appropriate, namely: 'No objection whatever was made to this procedure. If objection had been made, a further foundation could have been laid, and the contents of the memorandum could have been presented...