People v. Simpson

• Decision Date: 20 May 1959
• Docket Number: Cr. 1407
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Albert SIMPSON, Gary Fenton Taylor, and Francine Donalee Stevens, Defendants and Appellants.

Page 156

339 P.2d 156

170 Cal.App.2d 524

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Albert SIMPSON, Gary Fenton Taylor, and Francine Donalee Stevens, Defendants and Appellants.

Cr. 1407.

District Court of Appeal, Fourth District, California.

May 20, 1959.

Hearing Denied July 15, 1959.

Thomas J. Fanning, San Diego, for appellant Joseph Albert Simpson.

Gary Fenton Taylor, in pro. per.

Enright, Von Kalinowski & Levitt, by William B. Enright, San Diego, for appellant Francine Donalee Stevens.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

Defendants-appellants Joseph A. Simpson, Gary F. Taylor, and Francine D. Stevens were convicted by a jury of the crime of possession of narcotics (marijuana) on May 31, 1958, in violation of section 11500 of the Health and Safety Code. Defendant Simpson was charged with a prior conviction of a felony (grand larceny, first degree) in New York on June 5, 1947. What disposition, if any, was made of this charge is not indicated by the record. On request of defendant Taylor, his appeal was dismissed on January 19, 1959. Defendant Stevens appealed from the judgment and order denying a new trial, and defendant Simpson appealed from the judgment.

The principal contentions involved on this appeal are (1) that the court erroneously received in evidence a narcotic obtained by means of unreasonable search and seizure; (2) that the trial judge made various comments and rulings throughout the trial indicating bias and prejudice on his part and by reason thereof a fair hearing of the defendants was precluded; (3) that the evidence is insufficient to support the verdict; and (4) that the court erred in not instructing the jury on significant points of law.

The evidence shows defendant Simpson (aged about 28) and defendant Taylor (aged 18) lived in Oregon. Taylor owned a 1953 Chevrolet sedan with an Oregon license on it. Defendant Stevens (aged 18 on May 7, 1958) and Miss Struzen (aged 17) were considering leaving their homes in Oregon. Defendant Stevens said she intended to visit her father in Arcata, in Northern California. Miss Struzen decided to run away from home and go with her. She knew defendant Simpson and suggested he take her to California. Defendant Simpson contacted defendant Taylor and they all left that same day in Taylor's automobile. Taylor was told that defendant Stevens agreed to pay the gasoline expenses and that Miss Struzen suggested they first go by way of Mexico. They left on May 27, and went to Reno, Las Vegas and Tucson, crossed the international border at Nogales, Mexico, obtained visa cards, and continued on to Hermosillo, where they stayed in a hotel overnight and returned to the border the next day. The previous nights they slept in the car while it was being driven by the two men drivers. They ate groceries obtained on the way. The girls said no improprieties occurred on the trip. On their return to Nogales, Mexico, Taylor ordered some 'tea' (vernacular for marijuana) from a nearby taxi driver, and said he paid 25cents for it. He testified he smoked a part of it in a pipe belonging to defendant Simpson, while waiting for the other occupants of his car to return, and that thereafter they drove to San Diego, arriving about midnight on the 31st of May. They pulled the car up the curb in the lower part of town and all fell asleep. About 7 a. m. Officer Justice's suspicion became aroused. Miss Struzen was in the front seat next to the driver Taylor. Defendant Simpson (Negro) was asleep in the back seat on the left-hand side and defendant Stevens was asleep on the right-hand side. This officer testified he noticed the immaturity of the girls and he was suspicious they were juveniles under the age of 18 years and thought they may have run away from home. He observed the clothing they were wearing and they looked soiled 'as though they had slept' in them. He awakened all of them and asked for identification. Both girls said they were 18. Defendant Stevens produced a vaccination certificate obtained at the border indicating she was 18. He questioned them as to the reason they were thus parked and they replied they were resting, just having returned from Mexico, and that they had originally started from Portland, Oregon. The car had Oregon license plates. A superficial observation was made of the car through the windows, and considerable clothing was strewn about in it. The officer asked Taylor if he would mind if he looked in the trunk of the car and Taylor opened it for him. Several suitcases were therein contained. No minute search was made. The officer called headquarters about the situation and defendants were asked to come out of their car. Subsequently they were asked if they would go to the police headquarters and answer a few questions. They left in the police car. There is a question as to whether Taylor's car was left locked at that time. The wind-wing had been broken out. To unlock it was not difficult. On arrival at the station defendants were questioned. After relating their stories, which were conflicting, the officer placed charges of vagrancy (violation of sec. 647, subd. 3 of the Penal Code, roaming about from place to place without any lawful business) against all of the defendants. The additional charge of suspicion of violation of the Mann Act, 18 U.S.C.A. § 2421 et seq. and contributing to the delinquency of a minor was placed against the men defendants and all were lodged in jail. Miss Struzen was placed in the Juvenile Hall as a runaway. At the interview, one of the officers recognized defendant Taylor and asked if he had been implicated in a burglary and possession of marijuana on a prior occasion in San Diego about September, 1957, which involved this same car with an Oregon license. He denied it. A record so indicating was obtained and shown to him. In addition it showed he was then an escapee from Juvenile Hall. He still denied this but later admitted it. One narcotic officer then said he suspicioned they were transporting marijuana in that car and he wanted to search it. Another officer said he was going out to impound the car and take it to the garage where they ordinarily kept impounded cars. They left together. This latter officer put his hand through the broken wind-wing and opened the left front door. He definitely testified he was returning to the car to impound it. It does appear that he did not make this positive statement at the preliminary hearing, but said he was returning to search it. He said he seated himself at the wheel and then, readying himself to take an inventory of the impounded car, as required, he looked up and saw something in a brown paper bag placed over the visor, and that he examined it and it had the appearance of marijuana. Another brown paper bag containing some substance was found tucked between the right rear seat cushion and the back cushion, partially protruding. Marijuana seeds and debris were found on the floor of the car, both front and back, and also an envelope containing a picture of Miss Struzen, together with other personal articles belonging to her, as well as an envelope addressed to defendant Stevens showing her father's address. All this evidence was taken by the officers. The car was taken to the garage. The officers returned to the station and again interviewed defendants. Defendant Taylor then admitted he paid 25cents for some 'tea' in Nogales, Mexico and said he and Simpson smoked part of it in a pipe the officers found in the car over the right visor.

At the trial he denied defendant Simpson had a part in the smoking of the marijuana or in its possession. Taylor said he knew nothing about the bag of marijuana on the back seat but said Miss Struzen, in her sleep overturned a bag of marijuana which was lying in the car, and that seeds and debris fell out and he put the bag over the visor. Simpson was asked if he ever had associations with the police and he replied he had once been a 'look-out for a mugging'. After the marijuana was shown to Taylor one officer asked him if he could go and make further search of his car and he told him he could do so. Marijuana seeds and debris were found on the floor in various places and the pipe was discovered over the visor. A chemist testified this debris, as well as the contents of the bags and the pipe, contained marijuana substance. It is conceded no search warrant was obtained to search the car at any time.

The question is, under this showing, was the trial court nevertheless authorized to admit exhibits in evidence over objection on the ground that the search of the car was unreasonable and unlawful. Defendants' argument is that the search was without consent, that from the evidence produced the officers were not justified in believing the offense here charged was being committed, either prior to or at the time the car was searched; and that such search was not an incident to the arrest; that no offense was committed in the presence of the officers; and that defendants' arrest for vagrancy and other charges indicated was, under the evidence, unauthorized, citing such authority as People v. Wilson, 145 Cal.App.2d 1, 301 P.2d 974; People v. Sanders, 46 Cal.2d 247, 294 P.2d 10; People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57; People v. Molarius, 146 Cal.App.2d 129, 303 P.2d 350; Hernandez v. Superior Court, 143 Cal.App.2d 20, 299 P.2d 678; and People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.

To defendants it might appear, as claimed by them, that their entire escapade was free from any suspicion or immoral propensities and the officer's suspicion that they were vagrants or violators of the Juvenile Court Law was unjustified. We would not want to hold that under this...