People v. Schroeder
| Decision Date | 22 July 1968 |
| Docket Number | Cr. 13364 |
| Citation | 264 Cal.App.2d 217,70 Cal.Rptr. 491 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Raymond SCHROEDER, Defendant and Appellant. |
W. F. Rylaarsdam, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Phillip G. Samovar, Deputy Atty. Gen., for plaintiff and respondent.
*
By information, defendant Daniel Raymond Schroeder was charged with illegal possession of opium and morphine derivatives (counts I through IX) in violation of section 11500 of the Health and Safety Code, with receiving stolen property (count X) in violation of section 496 of the Penal Code, and burglary (count XI) in violation of section 459 of the Penal Code. A jury found him not guilty of burglary (count XI), but guilty on each and every other count. Probation was denied and defendant was sentenced to the state penitentiary on counts V and X. Execution of sentence on count X was 'stayed until final determination of sentence on count No. (V) when it will then be stayed permanently.' No sentence was pronounced nor imposition thereof suspended on the counts other than V and X. Defendant appeals from the judgment.
Defendant contends: (1) he cannot be guilty as a matter of law of either receiving stolen property (Pen.Code, § 496) or of illegal possession of narcotics (Health & Saf.Code, § 11500), because the narcotics and containers had been recovered by law enforcement authorities prior to his possession and control, if any; and (2) the evidence is insufficient to support the verdicts on the counts on which he was convicted.
We also noticed that various units of narcotics of the same classification under the Health and Safety Code had been made the subjects of separate counts in the information. We requested counsel to file additional briefs as to whether this constituted error, and if so, whether it was prejudicial.
Sometime during the night of August 25--26, 1966, the Gutierrez Drug Store, located in the Park Building, 635 State Street (corner of State and Ortega), in Santa Barbara was burglarized. Practically all of the narcotics in stock, plus tranquilizers, nembutal, and sleeping capsules, were stolen.
The Capri Restaurant, also located in the Park Building next to the Gutierrez Drug Store, likewise was burglarized and $30 to $40 taken. Holes large enough for a man to get through were found in the wall connecting with the Gutierrez Drug Store and in the ceiling connecting with the second floor of the building.
About 11:30 a.m. on September 15, 1966, Detective Joel Honey, of the Santa Barbara sheriff's office, received a phone call from a person, whose voice sounded like that of an adult male. The caller reported that he had been shooting, with his two sons, in the area of Bella Vista Road south of Romero Canyon Road, approximately 30 to 35 yards south of the firebreak road off of Bella Vista, when he came upon a wooden box under an oak tree. He thought it contained a 'bunch of dope.' The box was not visible from the road. He gave directions to the location of the box. The caller declined to give his name, stating that he might have been violating the law by shooting in the area and that 'he didn't want to get involved in any testimony regarding 'dope'.'
Around 1:00 p.m. Detective Honey went to the location described. He found the wooden box behind an oak tree. It had a lid on it and was wired shut, with a stick through one of the wires. There was some debris on top. He lifted the lid and observed a yellow towel. Underneath the towel he observed many bottles appearing to contain drugs and narcotics. The name 'Gutierrez Drug Store,' with address and telephone number, was on the tops of bottles containing pills. Detective Honey felt certain that the contents of the box were the loot taken in the Gutierrez burglary, which had occurred about three weeks before. He then closed the box, put some dirt and leaves on top of it, and returned to Santa Barbara, where he contacted Detective Sergeant George C. Evans, of the Santa Barbara Police Department, in charge of vice and narcotic investigations.
The two officers picked up some photographic equipment and returned to the area of the box. To avoid detection, they proceeded to the location in Detective Honey's private Ford pickup truck and parked it around the bend in the road. Sergeant Evans took photographs of the area and of the box and contents, with the box lid open. Sergeant Evans had with him a list of items stolen in the Gutierrez Drug Store burglary. A visual check of the contents of the box against this list revealed a similarity of items. The two detectives then concealed themselves at separate points in proximity to the box and commenced a surveillance from around 3:00 p.m.
Defendant Schroeder, with a full beard, appeared on the scene around 5:15 p.m. He was standing next to the box with a shovel in his hand. Detective Honey knew him by name and sight. He had seen the defendant previously in June 1966 as the defendant was leaving room 207, located on the second floor of the Park Building, with a Carol Feiger, who was then renting room 207. He was wearing the full beard and dressed in Levi's, sandals, and a sport shirt or T-shirt, just as he was attired on September 15, 1966.
A Mrs. Jenny Perry was the tenant of room 207 of the Park Building on the night of the Gutierrez burglary. She was aroused from her sleep shortly after midnight when she was a figure in her room near a window. She heard someone say, 'Carol?' She replied, 'No.' The figure then remarked, 'Oh, a friend of mine used to live here,' and later, 'It does look different.' Although unable to perceive detailed features of the person silhouetted against the light coming from outside the window, she noted that the figure had a chopped-off, squarish beard.
Just prior to seeing defendant next to the box, Detective Honey had heard a car driving along Bella Vista Road and stop. Sergeant Evans heard somebody walk through the brush towards the box, return to the car, and again go towards the box. Detective Honey heard a car door open and then some voices.
One voice was the defendant's. It said, 'Thank God.' The other voice, which seemed to come from the direction of the vehicle, asked, 'Is it still there?' The voice was not that of the unknown caller on the telephone. Defendant replied, 'Yeah, it's still here.' The other voice said, 'Good.' Defendant then said, Sounds of persons moving about were heard. Then the voice other than that of defendant asked, 'Are you going to bury the stuff there?' Defendant replied, 'I don't know.' The other voice asked, 'Is it too hard there?' Defendant replied, 'I don't know.' The other voice asked, 'How about across the road?' Defendant replied, 'No, this is good here.' The other voice asked, 'Does it look like it could be flooded out?' Defendant replied,
Then Detective Honey heard a car door shut. The vehicle sounded as if it were leaving the area, going towards Honey's pickup and Romero Canyon Road in the direction of Santa Barbara. Thirty seconds or so later, Honey heard the rapid blowing of a vehicle horn and the sound of an engine running in the distance.
At this juncture, the officers came out from their respective vantage points and identified themselves. Detective Honey placed the defendant under arrest for illegal possession of narcotics and for receiving stolen property. Honey then gave defendant the warning required by Miranda v. State of Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
In addition to the shovel which defendant was holding and the wooden box, the officers saw a green footlocker nearby. The box and its contents had been moved to the right of the oak tree, a distance of about four feet from where the officers had previously left it. Sergeant Evans had heard a sound that could have been made by the moving of the box. It appeared that defendant 'was beginning to clear an area next to the oak tree' with the shovel. The green footlocker was about six feet away from him.
The photographs taken by Sergeant Evans, depicting the area, the box and its contents, and the green footlocker, were received in evidence.
Anthony Martin, owner of the Gutierrez Drug Store and a licensed pharmacist, identified Exhibits 1 through 12, which consisted of bottles and vials and their contents which had been removed from the wooden box. He based his identifications on cost codes he had placed on them and the fact that some of the containers were not of the type in which the store would dispense the drugs in its normal (retail) trade. He testified that around 200 bottles of drugs were taken in the burglary, including a quantity of small bottles containing amphetamines or sleeping capsules. In addition to Exhibits 1 through 12, there was a cardboard box containing many other bottles which had also been removed from the wooden box.
John P. Thompson, an identification officer of the Santa Barbara Sheriff's office, had dusted approximately 200 bottles from the wooden box. From two amber-colored bottles (Exhibits 8 and 12), Which were nearer the bottom of the wooden box, he lifted a print corresponding to defendant's right thumb print from Exhibit 8 and a print identifiable as defendant's right middle fingerprint from Exhibit 12. Exhibit 8 had 26 points of comparison and Exhibit 12 had 17 points. Thompson's findings were confirmed by his supervisor, Lieutenant Edward K. Smith, of the Santa Barbara Sheriff's identification office.
Dr. John Blanchard, a licensed physician, pathologist, and director of the Blanchard-Dickson Laboratory, to which...
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