People v. Robarge

• Decision Date: 11 June 1957
• Docket Number: Cr. 5797
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Paul ROBARGE, Defendant and Appellant.

Page 70

312 P.2d 70

151 Cal.App.2d 660

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Paul ROBARGE, Defendant and Appellant.

Cr. 5797.

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

June 11, 1957.

Eugene V. McPherson, Joseph A. Armstrong, Gladys Towles Root, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

An information filed by the District Attorney of Los Angeles County charged defendant with a violation of Section 11500 of the Health and Safety Code, in that on or about February 20, 1956, he unlawfully had in his possession flowering tops and leaves of Indian Hemp (cannabis sativa), commonly referred to as marijuana. The information further alleged a prior conviction of the crime of robbery and a prior conviction of Section 11500 of the Health and Safety Code. Following denial of a motion to set aside the information pursuant to Section 995 of the Penal Code, defendant entered a plea of not guilty. The prior convictions alleged were subsequently admitted. When the cause was called for trial a jury was duly waived and it was stipulated that 'the People's case may be submitted on the testimony taken at the preliminary examination as it is contained in the transcript of that proceeding, subject to any objections that counsel made there, or any additional objections that he wishes to make here; and that either side may offer additional testimony if desired.' Defendant was found guilty of the offense charged against him and sentenced to State Prison. From the judgment of conviction he prosecutes this appeal.

Concerning the factual background surrounding this prosecution the record reflects that defendant had previously been convicted of the crime of Robbery on December 2, 1947 and on July 23, 1952, was found guilty of a violation of Section 11500 of the Health and Safety Code. He was released on parole from the State Prison on March 2, 1955. Two of the conditions of his parole were that he notify the parole officer of any change in his address, and that he not have marijuana or any narcotic in his possession.

On February 20, 1956, Frank Robert Haydis, parole officer, Adult Authority of the State of California, was the defendant's parole officer. On that date Officer Haydis had a conversation with the defendant's ex-wife. Mrs. Robarge told him that the defendant had moved from his address at Norwalk (which address his parole officer had), approximately two to three weeks before, and had established residence in Carl's Motel at 12124 Atlantic Boulevard in Compton. Mrs. Robarge told Officer Haydis that she had talked to the defendant at about the time of the move, that the defendant had informed her that while he was living with his sister or sister-in-law in Norwalk, the sister-in-law had discovered a paper sack with marijuana in his room. She had requested him to move because of the presence of her children. The parole officer, accompanied by Officer Lyons, went to Carl's Motel at about 6:00 p. m. They went to Room 7, which was registered to defendant, and knocked on the door, but received no answer. They then contacted the owner of the motel who opened the room and let them enter. Both officers thereupon searched the room. Officer Haydis found a white paper-wrapped cigarette (People's Exhibit 1) in a pocket of a semi-dress blue shirt which was hanging in a closet of the apartment. The shirt was admittedly owned by the defendant. Four or five minutes after the discovery of the cigarette, Officer Lyons found some cigarette papers which he showed to Officer Haydis. Immediately after the discovery of these items, Officers Lyons and Haydis went to the manager's office and telephoned the Firestone Sheriff's Office. They then returned to the apartment. Officer Haydis took the cigarette with him and turned possession over to Mr. Erven and Mr. Bailey, Sheriff's Officers from the Firestone Station.

Clifford Erven, a Deputy Sheriff assigned to Firestone Park Sheriff's Station, placed the cigarette given to him by Officer Haydis in a small envelope and put the envelope into his pocket. The cigarette paper was either given to him by Officer Haydis or picked up by the witness after Officer Lyons called his attention to it in the motel apartment.

The Deputy Sheriff had Officers Lyons and Haydis initial the envelope.

The defendant was arrested on February 20 as he got out of a borrowed car at the apartment at 12124 South Atlantic in the East Compton area. He was wearing a suede jacket (People's Exhibit 2) at that time. Deputy Sheriff Erven folded the jacket inside out in a newspaper and turned it over to Patrol Sergeant Sewards of the Firestone Park Sheriff's Station, along with the blue shirt from the apartment and the small envelope which he sealed and stapled, containing the cigarette to be placed in the Evidence Locker.

Los Angeles County Deputy Sheriff Frank Vacio who was assigned to the Narcotic Detail, had a conversation with the defendant on February 22, 1956. The latter's statements were free and voluntary. Deputy Sheriff Vacio asked defendant if the marijuana cigarette was his. The defendant denied this. He was then asked if the blue shirt in which the marijuana cigarette had been found belonged to him. The defendant stated, 'Yes'.

Deputy Sheriff Vacio inquired as to the usage of marijuana on the part of the defendant and the latter stated that he had used marijuana a few times since his release from prison. The defendant, when asked if anyone else had worn the shirt said no, it had been a Christmas present and he had been the only person to wear it.

Martin Kline, forensic chemist in the Los Angeles County Sheriff's Criminological Laboratory, examined the cigarette (People's Exhibit 1) and testified that it contained a green leafy material which were portions of cannabis sativa (marijuana). The chemist also examined the aforesaid brown suede jacket which defendant admitted was his, and in the pockets thereof found debris and several marijuana leaf fragments.

Sworn as a witness for the defendant, Patricia Robarge testified she was the wife of defendant's brother, LeRoy Robarge. That she lived at 9609 Adoree Street, Downey, in Los Angeles County, and was acquainted with defendant. That she was also acquainted with defendant's ex-wife. That defendant lived at her home for about a year following his parole in early 1955. That at no time while defendant was residing at her home did she ever see him in possession of marijuana. The witness further denied that she ever told defendant's ex-wife that she (the witness) '* * * had found marijuana in his (defendant's) possession, and had to force him to leave the place.'

As a witness in his own behalf, defendant testified that the aforesaid jacket and shirt belonged to him. He denied any knowledge of the cigarette found in his shirt or of the debris and several marijuana leaf fragments found in the pockets of his jacket. He testified that at no time did he violate the terms of his parole by the use or possession of narcotics.

As his first ground for reversal of the judgment, appellant contends that the search of his room and the seizure of the incriminatory evidence therein contained was without reasonable or probable cause; therefore in violation of his constitutional rights and should have been excluded at the trial.

Appellant concedes that because he was on parole, thereby being in custodia legis the question whether the search by the parole officer was illegal is largely governed by the special character of the relation between such officer and his parolee, analyzed ably and with great clarity by Mr. Justice Fox, speaking for the court in People v. Denne, 141 Cal.App.2d 499, 507-510, and wherein it is said, at page 510, 297 P.2d 451, at page 458, '* * * By accepting the privilege of parole a prisoner consents to the broad supervisory and visitorial powers which his parole officer must exercise over his person and property until the term of his sentence shall have expired or been terminated. * * * Having constructive custody of his prisoner at all times, there is nothing unreasonable in a parole officer's search of the prisoner's premises where, as here, he has reasonable cause to believe the parole has been breached. * * *' See also People v. Triche, 148 Cal.App.2d 198, 306 P.2d 616.

However, in the case now engaging our attention, appellant contends that notwithstanding the constructive custody which the parole officer had over him at all times as his prisoner, the officer in the instant case did not have reasonable cause to believe that appellant had breached his parole. With this we cannot...