People v. Simons

• Decision Date: 01 October 1962
• Docket Number: Cr. 4115
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Austin SIMONS, Defendant and Appellant.

Page 57

25 Cal.Rptr. 57

208 Cal.App.2d 83

PEOPLE of the State of California, Plaintiff and Respondent, v. James Austin SIMONS, Defendant and Appellant.

Cr. 4115.

District Court of Appeal, First District, Division 2, California.

Oct. 1, 1962.

Hutton & Foley, by Edward J. Foley, King City, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Eric Collins, Deputies Atty. Gen., San Francisco, for respondent.

KAUFMAN, Presiding Justice.

Convicted by a jury of possession of narcotics, in violation of section 11500 of the Health and Safety Code, defendant appeals from the judgment of conviction and from the order denying his motion for a new trial. He argues that the judgment must be reversed because the narcotics were obtained by an unlawful search and seizure.

We turn first to the appeal from the order denying the motion for a new trial. The record indicates that the notice of appeal was filed on November 24, 1961, after the effective date [September 15, 1961] of the 1961 amendment to section 1237 of the Penal Code, which abolished the appeal from an order denying a motion for a new trial in criminal cases, except in special circumstances not applicable here. Therefore, the purported appeal from the order denying the motion for a new trial must be dismissed as an appeal from a nonappealable order (People v. Britton, 205 A.C.A. 626, 22 Cal.Rptr. 921).

The record reveals the following facts: On Friday, August 18, 1960, at about sundown, the defendant, who was driving to Los Angeles with a male companion, had mechanical difficulties with his Volvo automobile three or four miles south of San Ardo in Monterey County. He parked the car on the side of the highway and flagged down a passing Texaco truck driven by Gerald Johnson.

Johnson, after refusing defendant's offer of $20 to tow him to Paso Robles, because it was against company rules, agreed to take the defendant to San Ardo for a mechanic. The defendant was very excited and nervous but not drunk; the defendant's rapid conversation did not make much sense, and he fidgeted so much that Johnson began to doubt whether he should have given the defendant a ride. Johnson left the defendant at a Shall service station in San Ardo, after telling the mechanic, Conner, that the defendant was acting odd and was highly excited.

Conner and the defendant drove out to the Volvo. Before leaving, Conner telephoned his employer, Kearns, at home. Kearns indicated he would drive directly out to the Volvo. The defendant told Conner he was a male nurse and was looking for work, was on his way to Los Angeles, but would do field work if any was available.

When Conner and the defendant arrived at the Volvo, the defendant's male companion was waiting for them with a woman in a station wagon. The defendant's companion said: 'Hurry up, we got a ride to L. A.' Conner thought it was very strange that the woman in the station wagon was waiting to pick up the defendant and his companion, as it was dusk and the area was a sparsely populated one. All three also appeared drunk to him. In arranging for the repairs, the defendant gave Kearns an AAA card with the last name of Simons but with a different first name. Conner hitched up the Volvo while Kearns took the defendant's AAA card and then left. On his way back to San Ardo, Conner stopped to check the tow chain at the Tidewater station owned by Bill Standard. Standard told Conner that the defendant had stopped in earlier and had mentioned wanting only $1 worth of gas to go to Los Angeles, and that he thought the car might be stolen.

Because of this statement and the peculiar circumstances of the defendant's hurried departure, Conner stopped Highway Patrol Officer Silliman on the way back and asked the officer to come by and check the Volvo. Silliman arrived shortly after 8:30 p. m. After hearing Conner's story, including the fact of an AAA card with the name of James Simons, Silliman radioed the license number to Salinas to find out whether the car was stolen. He was told it was not but proceeded to search the vehicle for the registration. He did not check with Sacramento. As the door on the driver's side was blocked, he entered from the passenger side, and looked for the registration slip on the steering post, on the visor and in the glove compartment, the three most common places for the display of the registration certificate. He did not look at the fourth most common place, the dashboard.

In the glove compartment, he found several slipts of paper bearing names. He also noticed an assortment of items in the back seat: paraphernalia from an encyclopedia company [which appeared to indicate that the car belonged to an encyclopedia salesman]; bows and arrows,...