People v. Ott

• Decision Date: 22 August 1978
• Docket Number: Cr. 17015
• Citation: 84 Cal.App.3d 118,148 Cal.Rptr. 479
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David Wally OTT, Defendant and Appellant.

Page 479

148 Cal.Rptr. 479

84 Cal.App.3d 118

PEOPLE of the State of California, Plaintiff and Respondent, v. David Wally OTT, Defendant and Appellant.

Cr. 17015.

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

Aug. 22, 1978.

Carl B. Shapiro, Shapiro, Shapiro & Shapiro, San Anselmo, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen. Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., R. Gordon Baker, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KANE, Associate Justice.

Defendant appeals from a judgment of conviction ¹ entered upon a jury verdict finding him guilty of sale of a controlled substance (methamphetamine) in violation of Health and Safety Code, section 11379. The charge and conviction grew out of an undercover narcotics operation, the circumstances of which may be summarized as follows:

At about 5:20 p.m. on May 18, 1976, Inspector John Eisler, an officer of the Solano County Bureau of Narcotic Enforcement and his informant, one Robin Saunders, went to Traveler's Inn Motel (aka Kentwig Motel), Vallejo, California. Saunders had informed Eisler that Larry Hershman, known to him as "Cherokee," was residing in room 53 of the motel and was selling narcotics.

Upon entering the room, Eisler and Saunders negotiated to buy a quantity of amphetamine, a controlled substance from Hershman. While Hershman agreed to sell them a quarter ounce of amphetamine for $80, he stated that he did not have any drugs at the moment, but was expecting his supplier appellant to arrive within an hour to an hour and a half; that if Eisler returned after his supplier came, he could purchase the drug.

After agreeing to the terms of the sale, Eisler and Saunders left room 53. On leaving, they encountered appellant who was sitting on the steps leading from the sidewalk to the parking lot and was listening to police calls through his four-channel radio scanner. Since Saunders and appellant had been old acquaintances, Saunders greeted Ott and introduced Eisler to him. Ott inquired why Saunders and Eisler were in Hershman's room. On learning that they were attempting to purchase drugs from Hershman, he stated: "Why are you scoring from that turkey for? That's my dope he's selling. Why go through the middleman? You and I can do something better." When asked if he had any drugs, appellant patted a wallet in his rear pocket and replied, " 'Right here.' "

After the above described encounter and discussion, appellant started walking towards Hershman's motel room, inviting Eisler, Saunders and James Exxon, a friend of appellant who had arrived during the conversation, to accompany him. Shortly after entering the room and exchanging greetings, Hershman, appellant, Exxon and Hershman's girlfriend Cheryl Rickard, had a conversation in the rear of the room behind a partition. Exxon and Rickard were the first to emerge from behind the partition. Hershman followed and, holding a plastic bag which contained a white powdery substance, stated that he had just "scored a half ounce" and that they could consummate the sale when he found his "rig, kit," necessary for packaging the drug.

At Hershman's direction, Eisler and Saunders searched Hershman's car for the "rig, kit." While searching the car, they noticed that the trunk was filled with men's and women's clothes. After the "rig, kit" was found, Hershman and Eisler went to the rear of the motel room and packaged the drugs behind the partition. Eisler selected four of the bags into which the powder had been "cut," and paid Hershman $80 as they had previously agreed. Upon leaving the room, appellant told them that they should contact him next time they wanted to buy drugs by repeating " 'That turkey (Hershman) is dealing my drugs.' " The powdery substance purchased from Hershman was subsequently analyzed and found to be nonpharmaceutically produced methamphetamine.

At trial Hershman, Rickard and appellant denied that appellant had delivered drugs to Hershman. Appellant advanced the explanation that he and Exxon went to the Travelers Inn to deliver some clothes that belonged to Hershman. He stated that he did not give any drugs to Hershman while they were behind the partition. However, during his trial testimony, appellant admitted that at a certain point of his conversation with Eisler he had stated " 'I have got all kinds of drugs,' " and also that he had told them that "they ought to score off of me instead of that turkey Cherokee."

Appellant assails the judgment of conviction on multiple grounds. Thus it is contended that (1) the trial court erred in denying appellant's motion to suppress evidence pursuant to Penal Code, ² section 1538.5; (2) evidence of other crimes was erroneously admitted and the prosecution's failure to give adequate notice that evidence of other crimes would be offered violated appellant's right to a fair trial; (3) the trial court erroneously instructed the jury on the elements of aiding and abetting; (4) the corpus delicti of the crime was proved by appellant's admission rather than independent evidence; and (5) the trial court made improper remarks with respect to the elements of aiding and abetting. Appellant's contentions are discussed Seriatim.

Suppression of Evidence: Appellant first contends that the trial court committed prejudicial error by admitting in evidence a fictitious driver's license and a vehicle registration report, both of which were obtained as a result of a warrantless search of the premises at 5092 Black Oak Drive, Concord, California. Appellant maintains that the search in dispute was an unjustified parole search not necessitated by the the legitimate demands of the operation of the parole process (In re Martinez (1970) 1 Cal.3d 641, 647, fn. 6, 83 Cal.Rptr. 382, 463 P.2d 734; People v. Coffman (1969) 2 Cal.App.3d 681, 688, 82 Cal.Rptr. 782), and involved premises which did not serve as appellant's residence. Appellant's argument cannot be accepted for several reasons.

One, while parolees are protected against unreasonable search and seizure (In re Martinez, supra, fn. 5; People v. Coffman, supra ), it is well established that a parole officer may enter and search a parolee's residence even if the information relied on by the parole officer does not reach the level of probable cause required under the Fourth Amendment (People v. Lamb (1972) 24 Cal.App.3d 378, 382, 101 Cal.Rptr. 25). As stated in People v. Thompson (1967) 252 Cal.App.2d 76, 85, 60 Cal.Rptr. 203, 209, "The rationale underlying this principle is that a parolee is at all times in Custodia legis. Although he is not a prison inmate in the physical sense, he is serving the remainder of his term outside rather than within the prison walls. (Citations.) Accordingly, so far as necessary for the maintenance of parole guardianship, the status of a parolee as a prisoner is no different than that of one who remains in confinement, and, therefore, for the purpose of maintaining the restraints and social safeguards accompanying such status, the correctional authorities who supervise the parolee on parole may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them." (Accord: People v. Ford (1975) 54 Cal.App.3d 149, 153, 126 Cal.Rptr. 396; People v. Anglin (1971) 18 Cal.App.3d 92, 95, 95 Cal.Rptr. 588). It is likewise well settled that where a parole officer initiates a supervisory parole search, he may enlist the assistance of the police (People v. Thomas (1975) 45 Cal.App.3d 749, 758, 119 Cal.Rptr. 739; People v. Coffman, supra ). The fact that a parole officer cooperates with ordinary peace officers does not render a parole search invalid. On the contrary, when the parole officer exercises independent judgment and undertakes the search for the purpose of supervising the parolee, discovering parole violations and the protection of the public, the search is legal and unassailable (People v. Gilkey (1970) 6 Cal.App.3d 183, 190, 85 Cal.Rptr. 642; People v. Coffman, supra ).

When viewed in light of the foregoing principles, the facts indicate that the parole search of appellant's residence was fully justified, and the items in dispute which had been developed as a result of a lawful search were admissible in evidence. Briefly described, the facts reveal that after appellant had been arrested, Sergeant Morrison informed appellant's parole officer, Cardoza, that during appellant's arrest goods were observed in appellant's residence which appeared to be stolen merchandise and also that appellant acted "kind of strangely" upon being booked. Based upon this information, which raised the suspicion that appellant may have been under the influence of narcotics ³ when he was arrested and/or may have otherwise violated his parole, Cardoza initiated a parole search of the residence, which included the garage as well. The license plate of the automobile which led to the evidence appellant sought to suppress was discovered during the search of the garage. In sum, since the search was parole oriented (i. e., it was not for the purpose of discovering evidence that appellant participated in the May 1976 drug transaction, but rather was to determine if appellant had violated his parole by unlawfully possessing narcotics), and since the license plate leading to the incriminating fictitious documents was found in the course of a permissible parole search, the evidence in dispute was clearly admissible at trial.

Appellant's reliance on People v. Coffman, supra, 2 Cal.App.3d 681, 82 Cal.Rptr. 782, is obviously misplaced. In Coffman, the police initiated the search of the parolee's apartment and the parole officer was invited solely in order to supply color of legality to a warrantless entry of the apartment and to serve as a "front" for the police. In contrast, in the case at bench Cardoza exercised...