People v. Schumacher

• Decision Date: 13 December 1967
• Docket Number: Cr. 12535
• Citation: 256 Cal.App.2d 858,64 Cal.Rptr. 494
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Russell W. SCHUMACHER, Defendant and Appellant.

Page 494

64 Cal.Rptr. 494

256 Cal.App.2d 858

The PEOPLE of the State of California, Plaintiff and Respondent, v. Russell W. SCHUMACHER, Defendant and Appellant.

Cr. 12535.

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

Dec. 13, 1967.

Rehearing Denied Jan. 11, 1968.

Hearing Denied Feb. 21, 1968.

Joseph C. Battaglia, Beverly Hills, for appellant, by appointment of the Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

On March 1, 1966, a jury found defendant guilty (No. 313918) of possession of heroin on November 5, 1965 (§ 11500, Health & Saf.Code); of a subsequent sale of heroin on December 30, 1965 (§ 11501, Health & Saf.Code) he was convicted by a jury on April 5, 1966 (No 317725). Tried separately, the two cases were consolidated on appeal. Before us are appeals from both judgments and order denying motion for a new trial. The purported appeal from the order is dismissed (§ 1237.2, Pen.Code).

First Case (No. 313918)

Narcotic Officers Waers and Hill had information that there were two outstanding traffic warrants for defendant's arrest. On November 5, 1965, around 12:30 p.m., the officers, riding in an unmarked police car, saw defendant on crutches enter a liquor store on Windward Avenue and come out in a few minutes; he was out of their sight only one minute while in the store. They approached him on the street, identified themselves and asked his name; he answered, 'Russell Schumacher.' They asked for identification, and as defendant reached into his left rear pants pocket Officer Waers observed red and blue balloons cupped inside his hand. He had seen many such balloons and knew their common use by addicts for carrying heroin; thus, when he saw the balloons he believed that defendant was carrying a narcotic. He asked defendant, 'What do you have in your hand?' and with defendant's reply, 'Nothing,' the officer reached for defendant's left hand and removed therefrom three toy balloons--one was torn, and the red and blue balloons were rolled and tied as if containing a substance. Believing the substance to be heroin, the officer poked a hole in the balloons and saw what appeared to him to be heroin; he then arrested defendant for possession of heroin and advised him of his constitutional rights. In defendant's rear left pocket he found multicolored balloons in cellophane packages, and in his sweater pocket a holder commonly used to carry a hypodermic needle. Officer Waers asked him where he got the red and blue balloons; defendant said that a guy he knew only as 'Joe' gave them to him to hold and was to come by later to pick them up. Referring to the hypodermic needle holder, the officer asked where his 'fit' (outfit) and needle were; defendant said nothing. Asked if he was 'hooked,' defendant said no, that he just uses once in a while. An examination of his right arm disclosed what appeared to be three to ten fresh hypodermic needle marks inside the elbow; defendant said he just used a little bit, that he wasn't hooked.

Defendant testified that he was on crutches as a result of an injury; thirty seconds or a minute before the officers approached him, a 'fellow, what I call Joe * * * or Slim' whom he had known for six months, gave him the balloons and said 'hold this' for a minute and he'd be right back; 'Joe' disappeared and he hasn't seen him since; he knew he had some traffic warrants outstanding; he had no idea what the balloons were and had never seen similar objects; he did not know what heroin looked like (at time of trial) or at the time of his arrest (November 5, 1965).

On rebuttal, to impeach defendant's testimony that he did not know what heroin looked like, the People presented the testimony of Officer Cardenas to the effect that less than two months after his arrest defendant sold him heroin on December 30, 1965, around 4:25 p.m., right across the street on Windward where he was arrested on November 5, 1965 (this is the second case against defendant--No. 317725).

In surrebuttal defendant and his mother testified he was at his mother's house in Manhattan Beach at 4:25 p m on December 30, 1965.

Second Case (No. 317725)

On December 30, 1965, undercover Officer Cardenas and a third person entered a bar on Windward around 4:25 p.m.; there defendant approached them and they had a conversation in which defendant said he could 'score' and asked if they had a car. Officer Cardenas said he did, and defendant suggested they 'go see this guy I know.' The officer drove them to Brooks Street where he handed defendant a $10 bill; defendant left, returned in five minutes and handed the officer a multi- colored bindle containing heroin. Defendant was using a cane.

For the purpose of showing that defendant knew what heroin was on December 30, 1965, evidence that he had heroin in his possession on November 5, 1965 (No. 313918) was presented to the jury.

Defendant and his mother offered the same alibi he gave on surrebuttal in the first case.

In connection with case No. 313918, appellant contends that it was a denial of right to counsel for the trial judge to refuse his first request for continuance to permit him to consult with private counsel. On November 26, 1965, almost three months prior to the date set for trial, a public defender was appointed to represent defendant. No request or motion for continuance was made until the day of trial, February 21, 1966, at which time an unidentified attorney, not defendant's attorney of record, advised the judge 'there will be a substitution,' stating, 'I would request a continuance, inasmuch as I have just been retained in the matter, * * *' It developed that defendant waited until three days before trial 'to want to hire private counsel'; the unnamed attorney said defendant had been on crutches and unable to earn funds with which to retain him.

No request for continuance was made by either defendant or the deputy public defender, defendant's attorney of record; the latter was prepared and ready to proceed to trial. Both defendant and the public defender remained silent. The attorney who made the request did not represent defendant, and at no time identified himself to the court. The judge stated that defendant had since November 26, 1965, to arrange for counsel and prepare the case for trial; 'last minute substitutions only for the purpose of gaining a continuance is (sic) frowned upon mightily'; and since the public defender is ready for trial, the witnesses should not be inconvenienced and made to lose a day's pay simply because defendant waited until the last minute. The request was denied on the ground that defendant made 'no proper showing'; the record supports the denial.

Contrary to appellant's present claim that the case was 'complicated' and even the public defender did not have adequate time to prepare for trial, the record shows that the facts arose out of simple direct testimony; and that the public defender was prepared and ready to proceed to trial, cross-examined the People's witnesses at length, interposed numerous objections and made various motions arguing the same, offered a vigorous defense and successfully sought a continuance to subpoena additional witnesses. If defendant was dissatisfied with his representation, he made no mention of it on the trial level and, in fact, without objection permitted the same deputy public defender to represent him several months later in the second case (No. 317725).

In both cases defendant was advised of his Dorado rights, but was not told in accord with Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that if he did not have funds to employ an attorney one would be appointed to represent him. However, Miranda, decided June 13, 1966, has only prospective application (Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; People v. Rollins, 65 Cal.2d 681, 691, 56 Cal.Rptr. 293, 423 P.2d 221; People v. Rivers, 66 Cal.2d ---, ---, 59 Cal.Rptr. 851, 429 P.2d 171) ^a and is not here applicable, for the trial of the first case terminated March 1, 1966, and the second, April 5, 1966.

Appellant's argument that there was no probable cause for the first arrest thus the subsequent search and seizure were illegal, is predicated on his contention that he was not a narcotic suspect and 'cannot be arrested merely because he has balloons in his possession,' citing People v. Garrett, 237 Cal.App.2d 701, 47 Cal.Rptr. 194. Knowing that there were two outstanding traffic warrants for defendant's arrest, the officers on the street stopped defendant, whom obviously they knew, identified themselves and, in what was proper and normal procedure, asked defendant to verify his identification. Observing the balloons when defendant reached for his pocket and receiving a denial that he had anything in his hand, the officer believed that defendant was committing a felony, i.e., possession of heroin. Unlike the facts in Garrett, supra, the officers had the right to approach defendant and arrest him on the two outstanding traffic warrants; and if, as a natural outgrowth of the initial approach, the facts known to the officers was warranted them, as reasonable persons, to believe that defendant was committing a felony, they not only had the right but the duty as police officers to arrest him. (§ 836, Pen.Code.) A search incidental to a lawful arrest is valid. (People v. Cruz, 61 Cal.2d 861, 866, 40 Cal.Rptr. 841, 395 P.2d 889; People v. Ross, 67 Cal.2d ---, ---, 60 Cal.Rptr. 254, 429 P.2d 606.) ^b While the officer removed the balloons from defendant's hand and pierced them finding the heroin before defendant was arrested, a search may precede an arrest as long as the search is supported by evidence sufficient to constitute probable cause apart from that discovered in the search. (People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531.)

Arguing that...