People v. Russell

• Citation: 16 Cal.Rptr. 228,196 Cal.App.2d 58
• Decision Date: 03 October 1961
• Docket Number: Cr. 7568
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence Murl RUSSELL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 228

16 Cal.Rptr. 228

196 Cal.App.2d 58

PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence Murl RUSSELL, Defendant and Appellant.

Cr. 7568.

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

Oct. 3, 1961.

Warren L. Ettinger, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow and Matthew M. Kearney, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

The jury found defendant guilty of possession of heroin in violation of Section 11500, Health and Safety Code and a prior narcotic felony conviction in 1953.

Deputy Copping had been with the Sheriff's narcotic detail since February, 1958; he was established bty experience, training and study as qualified to testify concerning narcotic use and addiction. Deputy Burley had been 4 1/2 years with the narcotics division and was similarly qualified.

Between 5:30 and 6:00 p. m., in the course of a narcotic investigation, Deputies Copping and Burley went to 12306 South Wilmington. Around 6:40 p. m. they observed one Goodrey drive an automobile into the driveway; seated in front with the driver were defendant and Brenda Wagner. Goodrey and Brenda ascended the stairway over the garage and went into defendant's apartment; defendant, who had walked to the rear, followed, Several seconds later the officers went to defendant's door and knocked. Brenda came to the door, opened it and asked what they wanted. The officers saw old scar tissue and puncture wounds in her inner arm area. Copping formed the opinion she was addicted to the use of narcotics; Burley formed the opinion as to her illegal use of narcotics and arrested her. The officers then stepped inside the apartment; Burley saw Goodrey, whom he recognized as having handled in reference to narcotics about a month before, in the bathroom. Copping saw defendant standing in the kitchen next to a table. As he talked to him, defendant turned away and put his left forefinger and his thumb in his left pants' pocket; Copping told defendant to keep his hands on the table, that a narcotics investigation was going on. During this time Copping observed on defendant's arms scar tissue indicative of illegal intravenous injections of a narcotic; the defendant had some puncture wounds over which were scabs revealing recent use of narcotics (between 10 and 14 days.) It was Copping's opinion defendant was addicted. Defendant again put his forefinger annd thumb in his left pants' pocket; Copping then 'shock' him down for weapons; he 'patted' the outside of the pocket then put his hand in along with defendant's hand and pulled out a cigarette package. Copping held it up, looked at it and saw seven capsules of heroin (Exhibit 1) between the wrapper and the cellophane. Asked where he got it, defendant said he found it in the park, put it in his pocket and came home without knowing heroin was in it. He denied all knowledge of heroin.

Defendant took the stand only to give his name; he neither testified nor put on a defense.

Appellant contends that the trial court erred in permitting evidence on the issue of probable cause to be received in the presence of the jury. It is settled that reasonable or probable cause is a question of law to be decided by the trial court (People v. Brite, 9 Cal.2d 666, 72 P.2d 122; People v. Jaurequi, 142 Cal.App.2d 555, 298 P.2d 896); the lower court did rule that probable cause existed for defendant's arrest before the issue of guilt was submitted to the jury. Appellant relies upon People v. Gorg, 45 Cal.2d 776, 291 P.2d 469, to the effect that 'it is incumbant (sic) upon the court to determine the question of admissibility in the absence of the jury.' (A.O.B., p. 22). This is not the holding of the Gorg case. There defendant contended that the trial court erred in determining the question of admissibility of marijuana and certain paraphernalia outside of the presence of the jury and in not submitting it to the jury. The court held that the question was one of law for the court; it could see no purpose in having the jury determine the issue and 'evidence that was otherwise inadmissible and prejudicial would frequently be presented to them if the jury were required to pass on the legality of the search or seizure.' (45 Cal.2d at page 781, 291 P.2d at page 472) (emphasis added). The ruling of the court was that it was not error for the trial court to determine the admissibility of the evidence outside of the presence of the jury, and not error for the court not to submit the issue to it. Following People v. Gorg, 45 Cal.2d 776, 291 P.2d 469, the court in People v. Thompson, 144 Cal.App.2d Supp. 854, 301 P.2d 313, held that the determination of reasonable cause shall be made by the trial court and not left in whole or in part to the jury. Both cases hold that reasonable cause is for the trial court; in neither does the court say it is error to permit the jury to hear such evidence although they both indicate that if otherwise inadmissible hearsay is received it should not be heard by the jury. Thus, the manner in which the issue of probable cause is heard during the trial of a case and determined by the lower court appears to be a matter within its discretion; and in the absence of any showing here of abuse of discretion or prejudice, we hold there was nothing in the procedure used by the trial court requiring a reversal.

First, defendant did not interpose timely proper objections (People v. Millum, 42 Cal.2d 524, 267 P.2d 1039), indeed invited the court to proceed as it did; second, the record discloses no hearsay offered on the issue of probable cause; and third, the evidence was also relevant and material on the issue of guilt.

Neither the testimony of Deputy Burley nor that of Deputy Copping relative to the arrest of Brenda Wagner was objected to by defendant; nor did he at any time move to strike this testimony for any cause. The only objection made during the testimony of Brenda's arrest went to Copping's qualification to testify concerning narcotic use and addiction. It was only after Copping testified to Brenda's arrest and his entry into the apartment that defendant mentioned probable cause and then only with relation to further testimony. Defendant's counsel then sought to inquire of Copping on voir dire 'to find out the justification for entry into an apartment.' What transpired thereafter bears on the apparent willingness of defense counsel to have the matter proceed before the jury over the objection of the Deputy District Attorney. The latter objected to the voir dire examination on the ground of irrelevancy and immateriality; then he said to the court, '* * * if it is...