People v. Perry

• Decision Date: 26 March 1969
• Docket Number: Cr. 5517
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward PERRY, Defendant and Appellant.

Page 725

76 Cal.Rptr. 725

271 Cal.App.2d 84

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward PERRY, Defendant and Appellant.

Cr. 5517.

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

March 26, 1969.

Rehearing Denied April 17, 1969.

Hearing Denied May 21, 1969.

Thomas J. Clancy, San Francisco, for appellant (by appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant, individually, and through his trial attorney, filed notices of appeal from a judgment of conviction sentencing him to state prison following a jury trial in which he was found guilty of possession of heroin in violation of section 11500 of the Health and Safety Code, and found to have suffered a prior conviction of a violation of section 11530 of that code.

He makes the following contentions through his court appointed attorney: ¹ (1) The evidence introduced at the preliminary hearing did not constitute proper cause to bind the defendant over to the superior court; (2) The search warrant in the possession of the arresting officers was invalid; (3) The evidence at the trial was insufficient to sustain the guilty verdicts; (4) Prejudicial evidence was improperly admitted at the trial; (5) Defendant was inadequately represented by counsel; and (6) Defendant was improperly sentenced. These contentions and those made by the defendant in propria persona, have been examined. No reversible error is found, and the judgment must be affirmed.

The evidence offered by the prosecution if accepted as true, as it must be on this appeal, shows that a semi-concealed package, known to contain heroin, was deliberately retrieved and carried off by the defendant. The defendant not only questions the sufficiency of the evidence to sustain that conclusion but also asserts that he was prejudiced because evidence of collateral events and conduct was received, and that his trial counsel's acts and omissions demonstrate that he was denied the effective assistance of counsel. The particular facts are set forth below.

Sufficiency of the Evidence at the Preliminary Examination

The defendant made a timely motion to dismiss the information ² pursuant to the provisions of section 995 of the Penal Code which was denied. He is, therefore, entitled to a review of the legality of his commitment. (People v. Elliot (1960) 54 Cal.2d 498, 503, 6 Cal.Rptr. 753, 354 P.2d 225; People v. Hellum (1962) 205 Cal.App.2d 150, 154, 22 Cal.Rptr. 724.)

Both parties agree 'that to establish unlawful possession of narcotics it must be shown that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character.' (People v. Redrick (1961) 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 825, 359 P.2d 255, 257. See also People v. Showers (1968) 68 Cal.2d 639, 642--643, 68 Cal.Rptr. 459, 440 P.2d 939; People v. Winston (1956) 46 Cal.2d 151, 158--161, 293 P.2d 40; People v. Gorg (1955) 45 Cal.2d 776, 780, 291 P.2d 469; People v. Gory (1946) 28 Cal.2d 450, 454--456, 170 P.2d 433; People v. Solorio (1965) 232 Cal.App.2d 527, 530, 42 Cal.Rptr. 914; People v. Juvera (1963) 214 Cal.App.2d 569, 573, 29 Cal.Rptr. 653; People v. Estrada (1960) 185 Cal.App.2d 435, 437, 8 Cal.Rptr. 308; People v. Stanford (1959) 176 Cal.App.2d 388, 390, 1 Cal.Rptr. 425; People v. Tabizon (1958) 166 Cal.App.2d 271, 273, 332 P.2d 697; People v. Jackson (1958) 164 Cal.App.2d 772, 778, 331 P.2d 218; and People v. Rodriquez (1957) 151 Cal.App.2d 598, 601, 312 P.2d 272.) Moreover, it is recognized 'that proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.' (People v. Redrick, supra, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 825, 359 P.2d 255, 257 and see review of cases pp. 285--288. See also People v. Stanford, supra, 176 Cal.App.2d 388, 391--392, 1 Cal.Rptr. 425; and People v. Tabizon, supra 166 Cal.App.2d 271, 273--274, 332 P.2d 697.)

'Possession and knowledge may be proved by circumstantial evidence and any reasonable inferences drawn therefrom. (Citations.) Neither exclusive possession of the premises nor physical possession of the narcotic is necessary. (Citations.)' (People v. Solorio, supra, 237 Cal.App.2d 527, 530, 42 Cal.Rptr. 914, 916. See also People v. Juvera, supra, 214 Cal.App.2d 569, 573, 29 Cal.Rptr. 653; People v. Estrada, supra, 185 Cal.App.2d 435, 437, 8 Cal.Rptr. 308; and People v. Stanford, supra, 176 Cal.App.2d 388, 390, 1 Cal.Rptr. 425.)

At the preliminary examination the People produced a search warrant dated October 30, 1964 which authorized search of the defendant and a woman, and the motel unit allegedly occupied by them, the affidavit upon which it was predicated, and the return made on it. Defendant's attorney, who was replaced in the trial court, indicated that he had no intention of controverting the search warrant at that time. Sergeant Hilliard testified that on October 30th, while armed with the search warrant, he observed the defendant leave the unit on two occasions, on each of which he disappeared from the observer's sight toward the rear of the motel for a few minutes; that he observed the defendant's female companion walk from the same unit to the front of the motel and apparently deposit an object in the rain gutter, and that about five minutes later he ascertained by inspection that the object was a hypodermic needle and an eyedropper wrapped in a white 'Kleenex'. The court's attention was directed to the fact that the complaint alleged an offense in November. Following discussion between court and counsel, the evidence was not stricken, as stated by defendant, but the prosecutor was admonished to proceed with evidence of the offense on November 6th.

The witness further testified that on November 5th, about 11 p.m., he had a conversation with and arrested a young lady whom he had observed leave a position in front of the unit occupied by defendant; that thereafter he found a white 'dixie' cup containing a substance packaged in a balloon in the rain gutter of the motel; that he removed a portion of the substance and delivered it to a criminologist (for the purposes of the preliminary hearing it was stipulated that the portion so removed was heroin with a powder weight of 0.90 grams); that he placed his initials on the cup; that he dusted the cup and the balloon with fluorescent powder; that he returned the cup with the balloon and its remaining contents to the rain gutter; and that he arranged for surveillance of the scene. Other officers testified that the cup was kept under surveillance until about noon on November 6th; that at that time the defendant left unit 105 and walked toward the front of the building toward the street and disappeared; that a few minutes later he returned up the back stairs with a brown paper bag in his right arm; that he looked around, reached up with his left hand and pulled the object under surveillance out of the gutter; that his subsequent actions were hidden from the observer by the defendant's body, but within seconds his left arm gave a throwing motion, and an object, which subsequently proved to be a paper cup marked with Hilliard's initial, fell to the pavement below.

The observing officer testified that the defendant then entered unit 105 and remained there for approximately a half hour; that he then came out with a young lady, walked back to the rear stairs and descended to an automobile parked at the back of the apartment house. The officer pursued the couple, showed them a copy of the search warrant and placed them under arrest. He searched the defendant, went back and searched the room, and brought the defendant to the vice control office where he was exposed to a light which revealed fluorescent powder on the fingers of his left hand, on his shoelaces, on his socks, and on the front of his trousers. The officer testified that nothing was found in the search of defendant, and his apartment, or in the area except the empty paper cup. The return on the search warrant indicates that six balloons--2 red, 2 yellow, 1 green and 1 white, two eyedroppers, and a package of cigarette papers were removed from unit 105 on November 6th.

In People v. Showers, supra, the court observed, 'Ordinarily, it can be inferred that the person who first returned to search and who searched the most times was the one who dropped the narcotics. When such an inference may reasonably be made the conviction must be affirmed even though other inferences may similarly be drawn pointing to innocence. (Citations.)' (68 Cal.2d at pp. 644--645, 68 Cal.Rptr. at p. 463, 440 P.2d at 943.) In Showers the inference was found to be unreasonable because the searcher was not the only one who might have dropped the contraband, and because his lack of success in his search indicated that he did not know where it had been placed. In this case, however, the prosecution is not based upon the inference that defendant, who had no difficulty in locating the apparently concealed paper cup, was the possessor at the time it was placed in the rain gutter, but upon the inference that he took the balloon with the remainder of the heroin into his possession at the time he discarded the cup.

Defendant's objection to the sufficiency of the evidence introduced at the preliminary hearing is predicated on the theory that the evidence compels the inference that the defendant's conduct was innocent in nature, unless, as was the case at the trial, it is viewed with evidence of prior activities which occurred at the scene. Since there was in fact evidence of those prior activities at the preliminary examination there is no substantial difference in the evidence. He asserts that his removal, inspection and disposal of the cup are consistent with the conclusion that he found nothing in it; that thereafter, while unaware that he was...