People v. Smyre, Cr. 3424

• Decision Date: 16 October 1958
• Docket Number: Cr. 3424
• Citation: 164 Cal.App.2d 218,330 P.2d 489
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lafayette SMYRE, Defendant and Appellant.

Page 489

330 P.2d 489

164 Cal.App.2d 218

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lafayette SMYRE, Defendant and Appellant.

Cr. 3424.

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

Oct. 16, 1958.

Rehearing Denied Nov. 14, 1958.

Hearing Denied Dec. 10, 1958.

Benjamin M. Davis, San Francisco, Yin Soon Wong, San Francisco, of counsel, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Richard S. L. Roddis, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

On February 5, 1957, the defendant and one Mary Frazer were charged by information with the possession of heroin on January 18, 1957, in violation of Health & Safety Code, section 11500. The information was amended to allege three prior convictions as to Mary Frazer and one prior conviction as to the defendant for violation of Health & Safety Code, section 11500. The defendant entered a plea of not guilty and denied the prior conviction. Mary Frazer entered a plea of not guilty and admitted the prior convictions. On March 7, 1957, defendant was charged by indictment with two counts of violation of Health & Safety Code, section 11500; one, for the possession of heroin on February 20, 1957, and the second, for the sale, furnishing or giving away of heroin on February 20, 1957. The indictment was amended to also charge a prior conviction. On April 5, 1957, defendant entered his plea of not guilty to each count of the indictment and denied the alleged prior conviction. Trial date was set for June 10, 1957. On June 10, 1957, the information was dismissed as to Mary Frazer, under Penal Code, section 1099, on motion of the District Attorney. By permission of the court the indictment and information as to the appellant were consolidated for trial. The defendant changed his plea to admit the prior conviction charge.

At the trial, after the conclusion of the prosecution's case in chief, the defendant moved to strike certain evidence, for an advised verdict on the information, and for a dismissal of the possession charge of the indictment. All of these motions were denied. No evidence was offered on behalf of the defendant. A jury trial resulted in a verdict of guilty on both counts charged in the indictment and on the charge of the information. On June 14, 1957, the court granted defendant's motion to dismiss the possession count of the indictment and denied defendant's motions for a new trial and in arrest of judgment. Defendant was sentenced to consecutive terms on the remaining two charges for the possession charged in the information and the sale and furnishing charge of the indictment. This appeal is taken from the judgment of conviction, the order denying a new trial and the order denying the motion for arrest of judgment.

On appeal defendant urges that the following prejudicial errors compel a reversal of the judgment.

1. Insufficiency of the evidence as to the sale count charged in the indictment.

2. The trial court submitted both the possession and sale counts of the indictment to the jury and then dismissed the possession count after verdicts had been rendered on both.

3. The trial court instructed the jury that the defendant could be convicted on all offenses charged.

4. The erroneous admission of evidence obtained by illegal search and seizure to prove the possession of heroin charged in the information.

5. Insufficiency of the evidence as to the possession count charged in the information.

As to defendant's first contention, the evidence is entirely circumstantial and amply supports the verdict of the jury. Agent Nickoloff, of the Federal Bureau of Narcotics, testified that on February 20, he first searched informant Howard and ascertained that Howard had no narcotics on his person. He then gave Howard $20 in currency belonging to the United States Government, the serial numbers of which had been recorded. Nickoloff and Howard then drove to the intersection of Fulton and Webster Streets in San Francisco. They were looking for one 'Smiley'. After parking the car, Howard walked to Fillmore Street and continued walking north. Nickoloff followed Howard and kept him in view continually. Nickoloff watched Howard meet the defendant in Foster's Cafe. He saw that some object was passed between the two men but could not determine its nature. He then saw the defendant and Howard enter a pool hall and then a barbershop next door to the pool hall. The defendant went to the rear of the barbershop and disappeared from Nickoloff's view for about 30 seconds to a minute. Howard remained well in view in front of the barbershop. The two men left the barbershop and reentered the pool hall. There, he again observed a meeting of their hands. Howard then left the defendant, rejoined Nickoloff and handed him a small bindle which was later found to contain heroin. Nickoloff and Howard returned to the Bureau of Narcotics Office. Nickoloff again searched Howard and found no funds or narcotics. The defendant was arrested the next day. People v. Richardson, 152 Cal.App.2d 310, 313 P.2d 651, cited by the defendant, is not applicable here; in that case the police did not witness the transaction and the purchaser was not searched.

The trial court did not err in submitting both counts of the indictment to the jury and then dismissing count one after the verdict. Penal Code, section 954, expressly authorizes the prosecution to plead 'different statements of the same offense,' under separate counts. Penal Code, section 654, provides that a single act or omission may not be punished under more than one theory of criminal liability. Here, the count was dismissed before sentencing. It does not appear that the action of the trial court was erroneous or prejudicial. People v. Lyons, 50 Cal.2d 245, 324 P.2d 556. The same is true of the instruction that the defendant could be convicted of all the offenses charged. People v. Smith, 36 Cal.2d 444, 447-448, 224 P.2d 719.

Defendant's fourth contention is that the evidence introduced to prove the offense charged in the information, possession of heroin on January 20, was obtained by unlawful search and seizure. The facts of that occurrence, as related by the two police officers and Mary Frazer are as follows: About 5 A.M. on January 18, 1957, Officers Engler and Caulfield saw Mary Frazer leave an automobile in front of the New Fillmore Hotel with an unidentified male. She entered the hotel with the man, and after a brief conversation at the desk, the man left alone. Both officers knew Mary Frazer and from past observation and information suspected she was engaging in prostitution. The officers had previously talked to her at another hotel and asked her to cease her activities and leave the area. They saw Mary Fraser leave the hotel and enter a restaurant a few doors from the hotel. Mary Frazer testified that she met the defendant, then unknown to the police officers, in the restaurant and discussed narcotics with him. She stated she was then a user of heroin and that the defendant had told her he had some good heroin. About 5:30 A.M. she and the defendant left the restaurant and entered the hotel in order to use narcotics. They walked up the hotel stairway without stopping at the desk. The officers followed them, and inquired at the...