People v. Schenk, Cr. 6297

• Decision Date: 16 March 1972
• Docket Number: Cr. 6297
• Citation: 24 Cal.App.3d 233,101 Cal.Rptr. 75
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Fredrick SCHENK, Defendant and Appellant.

Page 75

101 Cal.Rptr. 75

24 Cal.App.3d 233

PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Fredrick SCHENK, Defendant and Appellant.

Cr. 6297.

Court of Appeal, Third District, California.

March 16, 1972.

Hearing Denied May 10, 1972.

Evelle J. Younger, Atty. Gen. by Daniel Kremer and Nelson Kempsky, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Harold C. Wright, Palo Alto, for defendant-appellant.

RICHARDSON, Presiding Justice.

Defendant, having been convicted by a jury of possession of a restricted dangerous drug (barbiturate) (Health & Saf.Code, § 11910), appeals from an order granting him probation and suspending imposition of sentence. On appeal he contends first that a statement taken from him in violation of his Miranda ^* rights was impermissibly admitted into evidence against him, and secondly, that the court improperly directed the jury to determine a question of law and improperly instructed it in regard to 'usable quantity.'

On February 26, 1971, defendant was arrested in a Chico super market for shoplifting. He was fully advised at that time as to his Miranda rights and stated that he understood those rights. He then was taken to the city jail for booking. The interval between initial arrest and commencement of the booking process was approximately 20 minutes. During the latter procedure, defendant, upon instructions, emptied the contents of his pocket. Among the items contained therein were two loose, small red pills, subsequently identified as a barbiturate, each pill weighing two-tenths of a gram. Defendant readily admitted ownership of the pills and further admitted that he had no prescription for them and that they were 'sleeping pills or downers.' He was then placed under arrest for possession of a restricted dangeroud drug, and was again admonished as to his Miranda rights. A waiver was made and a written statement repeating what he had previously told the booking officer was signed by the defendant. At trial defendant's oral and written statements were introduced.

The Claimed Miranda Violation

Defendant contends that his responses to the questions of the booking officer regarding the pills and the written statement embodying those responses were unlawfully admitted, his principal claim being that although there was a full Miranda admonition at the time of the initial arrest on the shoplifting charge, approximately one-half hour elapsed before discovery was made of the barbiturates. Defendant contends that the admonition given at the time of the original arrest does not carry over so as to permit police interrogation in regard to the subsequent felony charge. He contends further that a new and separate Miranda warning is required when an accused is subjected to questioning designed or liable to elicit incriminatory statements referable to an offense other than the one connected with the original admonition, and that the observation by the booking officer of possible contraband terminated the routine booking process and transformed it into a custodial interrogation in regard to the suspected commission of the felony beyond the investigatory phase permitting such interrogation.

The trial court held that the challenged evidence was admissible as obtained not in the process of a custodial interrogation but in the context of routine booking procedures.

The issue then is whether a new Miranda warning must precede any questions relating to a crime of which a defendant is suspected if it is distinct from the crime in regard to which his rights have previously been enunciated. While acknowledging that under a different factual context new warning may be required where substantial intervals of time occur between the initial warning and the succeeding interrogation, and that further and more adequate Miranda instructions may be required where the original instructions are deficient, we hold that a repeated and continued Miranda warning need not precede every twist and turn in the investigatory phase of the criminal proceedings. Rather, as was stated in People v. Brockman (1969) 2 Cal.App.3d 1002, 1006, 83 Cal.Rptr. 70, 73, 'The determination, in each case, is whether the Miranda warning sufficiently informs a defendant of his constitutional rights so that he has an understanding of these rights during subsequent interrogations. (Citation.)' If the record reflects that the defendant comprehended during subsequent interrogation the precedent Miranda warning, the requirements of Miranda have been satisfied. We note in the instant case that the time lapse between initial booking and subsequent interrogation was 20 minutes to half an hour, and we conclude that the circumstances of the instant case show a defendant who reasonably understood and fully comprehended his Miranda rights during the booking procedure.

The Jury Instruction on the Issue of 'Usable Quantity'

Defendant contends that in order to convict it was necessary for the jury to determine that the pills in question contained a quantity of barbiturate sufficient to produce a drug effect upon defendant, and accordingly that the prosecution's failure to produce any evidence of the amount of barbiturate present in each two-tenths of a gram pill required a directed verdict in defendant's favor. He bases his contention upon People v. Leal (1966) 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665, as interpreted in People v. Johnson (1970) 5 Cal.App.3d 844, 848--849, 85 Cal.Rptr. 238. The prosecution claims, however, that it was sufficient for the jury to find that the barbiturate was present in a form suitable for ingestion in the manner such preparation is normally intended for use as a drug or narcotic, and that accordingly no quantitative breakdown of the constituent part of the pills need be offered. The court denied defendant's motion for a directed verdict of acquittal under section 1118.1 of the Penal Code but did not advise the jury that such interpretation was controlling and permitted counsel to argue their conflicting theories on 'usable quantity' to the jury. The court instructed the jury on this issue, using the following language from CALJIC No. 12.20 (3d ed.): 'To...