People v. Pedercine

Decision Date24 November 1967
Docket NumberCr. 4452
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Shirley Yvonne PEDERCINE, Defendant and Appellant.

Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and James T. McNally, Deputy Attys. Gen., Sacramento, for defendant.

PIERCE, Presiding Justice.

The appeal is from a judgment following a conviction for two counts of violation of Business and Professions Code section 4390 1 (passing fictitious prescriptions).

There are three contentions: (1) Unlawful search and seizure; (2) spurious methods by the police in the use of photographs to bolster testimonial identification of defendant; and (3) insufficient evidence to support the verdict. Contention (1) is insubstantial. Contention (2) is correct, but we will explain why prejudicial error does not always flow from the police practice complained of and why it did not here. Contention (3) is not only frivolous, in addition, proof of guilt by evidence unquestionably admissible was so firmly established we must say there was no miscarriage of justice. (Cal.Const., art. VI, sec. 13.) To establish the latter point we discuss the evidence in some detail.

On September 16, 1966, defendant first visited Kenneth Johnson, a Sacramento physician. She called as a patient with a weight problem. She gave her name as Mrs. Yvonne Marvich. After examination the doctor prescribed Preludin a drug described by Dr. Johnson as one which curbs appetite. It is also regarded, and the tablets are sometimes used as, 'pep pills.' Taken in excessive doses, i.e., 9 or 10 a day for 5 to 6 days, it is a very dangerous drug, causing respiratory failure and extreme excitation. The doctor wrote a prescription for 100, 25-milligram tablets, one to be taken 30 minutes before each meal. Defendant who testified in her own behalf admitted this incident.

A day or two later, according to Dr. Johnson's testimony, defendant telephoned the doctor. She said a cleaning woman had mistakenly disposed of the unfilled prescription. She asked the doctor to replace it by phoning a pharmacy. He did so. Defendant in her testimony denied this conversation.

On September 21, 1966, defendant visited Dr. Johnson's office again; this time she did not call as a patient. She accompanied a Mrs. Pearl Ortega and the latter's daughter. The daughter was being treated for a dog bite. Defendant went into a treatment room with the Ortegas. There was a prescription pad in the treatment room. Each prescription sheet bore the doctor's printed name, address, telephone number and United States registry number at the top. The pad was accessible to defendant (or to Mrs. Ortega) while the doctor treated the child. (Defendant testified she saw Mrs. Ortega take the pad. Mrs. Ortega, a prosecution witness, denied she had done so; she denied ever using 'pep pills.' No evidence contradicted this.)

Dr. Johnson described defendant. On both visits she wore trousers and a shirt, wore her hair short with a masculine-type cut. This fits her facial description in photographs, profile and front views, taken by the police after defendant's arrest. Dr. Johnson, a prosecution witness, identified defendant positively at the trial. He also described Mrs. Ortega. Her description does not fit that of defendant. Mrs. Ortega, having been a prosecution witness as stated, was, of course, seen by the jury. 2

We reach the incident which comprises the first count of the information. On the morning of September 22, 1966, a woman tried to obtain Preludin at Zarett's Pharmacy in Sacramento. She presented a prescription to a clerk, Emma Harrington. The prescription (in evidence) was written on a prescription blank identified by Dr. Johnson as being one of his. It was made out to 'Bobbie Jones.' It prescribed '25 Mg #100 one 30 min before each meal.' It was signed 'Kenneth M. Johnson.' It was a forgery. (The forged prescription, however, called for the same dosages of the same number of tablets of the same drug of the same strength as the valid prescription defendant had admittedly obtained from the doctor for her own use.) The clerk presented the prescription to Dr. Philip Lee, the pharmacist. First, however, she asked the woman for her address. Initially the woman told her it was 1229 29th Street. Then she corrected the address to 1220 29th Street. In her own handwriting Miss Harrington wrote both the first given and corrected addresses on the prescription form. Defendant actually lived at 2728 29th Avenue. When the slip was presented to the pharmacist, he, being familiar with Dr. Johnson's handwriting, suspected the prescription was a forgery. During the delay for identification the woman departed stating she had to get to work. Miss Harrington, a prosecution witness, made a courtroom identification of defendant as the woman who had presented the prescription. She also described her as she had appeared when she presented the prescription. She said she was a person who at first could have been taken for either a 'boy or girl,' with very short hair combed straight back, with a voice that was deep and could have been either male or female. She was wearing dark blue trousers and a sweater. She was shown the photograph profile described above (see footnote 2) and again identified defendant--stating, however, that the hair arrangement (in the photograph) was unlike that during the drug store visit. Then it had been combed straight back and was slicked down. (We will discuss the identification further below.)

Defendant, under circumstances to be related hereinafter, was questioned by the authorities. She gave a statement. In it she When the woman identified as defendant left the store, Miss Harrington, the clerk, noted her departure; this at the request of Dr. Lee, the pharmacist. She saw her depart in a white car and took down the license number. She noted it as AVV--722. (The car which defendant drove was actually a white Buick. Its correct license number is AAV--722.) Miss Harrington observed no one else in the car with defendant nor did anyone join defendant at the car. Defendant denied ever driving the white Buick (which, however, was in her garage when she was arrested), saying it would have been a parole violation for her to do so. She said the car belonged to Bernice Hulbert who lived with her. Miss Hulbert, a prosecution witness, confirmed she was 'supposed to be' the owner of the Buick but stated that defendant drove it.

admitted having presented the prescription at Zarett's Pharmacy. At the trial she admitted she had been a previous customer at that store (which is at least 2 miles from her home); she denied, however, the incident described.

On the evening of September 25, 1966, there was a repeat performance of attempted prescription passing at another pharmacy. (That incident is the basis of the second count.) Appellant and her roommate, Bernice Hulbert, entered the Tower Drug, and one of them, using one of Dr. Johnson's prescription blanks, offered another forged prescription. That one (in evidence) was purportedly for 'Pearl Carter' and called for the same quantity of Preludin as had the former one. The pharmacist, Dr. Edwin Goman, a prosecution witness at the trial, positively identified defendant as one of the two women. He could not recall whether it was she or Miss Hulbert who had handed the prescription to him, although he believed it was defendant. He was sure, however, it was defendant who conversed with him and said the prescription was for a friend. Defendant admitted she had been at Tower Drug but said it was Miss Hulbert who had tried to fill the prescription and added the latter was doing this for Pearl Ortega. She said she had not seen the face of the prescription. The pharmacist questioned the authenticity of the prescription. He kept it, however, and the women left.

Dr. Goman called the authorities. A narcotics agent, Shierloh, called at the store. The incident was described and the prescription was handed to the officer.

On September 29, 1966, at 5:40 p.m., defendant was arrested at her home. Officer Shierloh made the arrest. He had an arrest warrant. He was accompanied by Officer Nugent from the police department and Officer Ryan from the Division of Investigation of the state department of Professional and Vocational Standards. Meager evidence as to the manner in which the officers gained entry was offered by the prosecution. None was offered by the defense. Officer Shierloh testified that defendant answered the door. He also stated a full warning--one satisfying all of the standards fixed by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694--preceded any questioning. A search disclosed an empty vial in an electrical switch box affixed to the outside of the house. The label showed it was filled by Payless Drug Store, that it was issued to 'Bobby Jones' by a Dr. VanDenBerg. The drug was specified as 'Somoxadrine,' an amphetamine, a 'pep pill.' Defendant admitted having obtained and filled That prescription. She explained the use of the name 'Bobby Jones' as a name she adopted because she was a parolee and did not want to use her true name.

Defendant was interrogated at the Narcotics Bureau office.

Dr. Goman, in addition to his testimonial identification of defendant, identified her outside Tower Drug when she was seated in a police automobile. Although the record is not entirely clear, this was probably at the time of her arrest.

At the Narcotics Bureau office defendant and Miss Hulbert were questioned separately. As stated, defendant admitted both

visits to Dr. Johnson's office and the incident at Zarett's Pharmacy. She sought to place blame on Mrs. Ortega for the theft of the prescription blanks and upon...

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