People v. Stafford

• Decision Date: 30 October 1972
• Docket Number: Cr. 21581
• Citation: 104 Cal.Rptr. 754,28 Cal.App.3d 405
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy James STAFFORD, Defendant and Appellant.

Page 754

104 Cal.Rptr. 754

28 Cal.App.3d 405

The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy James STAFFORD, Defendant and Appellant.

Cr. 21581.

Court of Appeal, Second District, Division 5, California.

Oct. 30, 1972.

Clifford Douglas, Los Angeles, under appointment by the Court of Appeal for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div.; William E. James, Asst. Atty. Gen., Appeals Section, Norman H. Sokolow, Robert W. Hatton, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Defendant was charged by information with possession of heroin in violation of section 11500 of the Health and Safety Code. Five prior convictions were alleged. At defendant's preliminary hearing the arresting officer testified to the circumstances of defendant's arrest for the crime charged. Evidence concerning the narcotic nature of the People's physical evidence was received by stipulation.

Defendant pleaded not guilty, denied the priors, and waived his right to a jury trial.

Defendant moved to suppress the heroin under section 1538.5 of the Penal Code. A waiver of defendant's right to confrontation as to the 1538.5 hearing was secured, and the transcript of the preliminary hearing was received by stipulation.

Each side was to be free to offer additional evidence at the motion to suppress. In addition, at the outset of the hearing, the prosecutor announced:

'Your Honor, as far as the 1538.5 motion, which is a motion to suppress, I don't believe the chemist is necessary in regards to this motion.

'However, to accommodate counsel we have entered a stipulation that if the Court denies the 1538.5 motion, it is going to be a--it has already been submitted on the transcript, and the Court may consider all of the testimony it hears at the 1538.5 motion.

'So for those reasons we would like to call the chemist at this time.'

Defense counsel replied: 'That is agreeable, Your Honor.' The chemist then testified to his analysis of the contents of four capsules which, according to the People's evidence, had been found in defendant's possession.

Officer Thomas testified that on May 5, 1971, he was assigned to 'Central Vice' when, at about 2:20 in the morning, he and his partner were patrolling in plain clothes in an unmarked car. He saw a Los Angeles policeman parked in an alley holding one male prisoner. Defendant and an unidentified woman were nearby. The woman appeared to be drunk and was yelling abusive language. Thomas and his partner stopped to back up the uniformed officer. The partner stopped the woman. When Thomas saw defendant take a step toward his partner's back, he ordered defendant to remove his hands from his pockets. Defendant removed his right hand. In it Officer Thomas saw a piece of paper. Defendant threw the paper to the ground. Thomas retrieved it. It was an empty cigarette package containing pills and capsules.

Defendant testified at the hearing on his motion to suppress that after eating at the Greyhound Bus Depot he was walking back to the hotel where he was staying with his wife when officers drove by and stopped to question or arrest a woman who had been walking in front of him. She had been yelling to someone in a nearby hotel window. He stopped walking because the scuffle between the woman and the officers was blocking his path. He was attempting to walk around the disturbance when he was approached by one of the officers and told to take his hands out of his pockets, which he did. Under directions from the officer defendant placed his hands on the police car and was patted down. The officer then showed him a cigarette package, apparently from the debris in the alley, and asked him if it was his. He denied that it was. Nothing had dropped from his pocket. The capsules were not his.

At the close of the hearing the court denied the motion to suppress, saying 'All right, there is a credibility question here.' A stipulation was then entered into that the case be submitted for trial on the transcript of the preliminary hearing and the testimony taken at the 1538.5 hearing. Defendant waived his rights to confrontation and cross-examination. Defendant's counsel again objected to the introduction of the heroin. He was overruled. Defendant was found guilty of possession of heroin, but no findings were made as to the prior convictions. After his motion for a new trial was denied, defendant was referred to department 95 for a determination of eligibility for commitment to the California Rehabilitation Center. He was found unsuitable, and was sentenced to state prison for the term prescribed by law.

Six of defendant's eight issues on appeal require only brief discussion.

1. Defendant argues that his motion to suppress the heroin was improperly denied, because he was unlawfully detained and ordered to remove his hands from his pockets; further the cigarette package was unlawfully searched.

Officer Thomas testified, not implausibly, that it appeared to him that defendant and the boisterous woman were together. When one officer spoke to the woman, Thomas saw defendant step toward the rear of that officer with his hands in his pockets. Because of concern for his partner's safety, Thomas ordered defendant to remove his hands from his pockets.

Defendant's testimony as to the operative facts of the encounter did not significantly conflict with Officer Thomas' account. Defendant, however, explained that he did not know the woman, and was merely attempting to walk around the disturbance.

The court hearing the motion to suppress determined that Officer Thomas had a reasonable belief, based on specific facts, that defendant presented a potential danger to his partner's safety and that Thomas Chose a means of neutralizing that danger which involved a minimum intrusion. (People v. Figueroa, 268 Cal.App.2d 721, 726--727, 74 Cal.Rptr. 74; see Terry v. Ohio, 392 U.S. 1, 10, 88 S.Ct. 1868, 20 L.Ed.2d 889.) The court did not err.

The officer testified, and the court apparently believed, that defendant withdrew the cigarette package when he removed his hand from his pocket. Once defendant discarded the wrapper, Officer Thomas' examination of the contents did not even constitute a search. (People v. Harris, 15 Cal.App.3d 498, 501, 93 Cal.Rptr. 285.)

2. Defendant argues that he was denied due process of law because the woman with whom the police thought he was walking at the time of his arrest was not arrested and her identity was not disclosed at his hearing on the motion to suppress evidence. The record does not disclose that defendant ever requested that the woman's identity be disclosed or that the People knew her identity. Defendant was not deprived of any rights by the fact that the woman was not tried for some unrelated offense.

3. Defendant complains that because he had denied the prior felony convictions alleged against him, the court erred in overruling an objection to cross-examination as to the priors. The court noted at the time of the objection that use of prior felony convictions to attack credibility is specifically provided for in the Evidence Code. (Evid.Code § 788.) The case was tried before January 5, 1972, the date People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 was filed. (See Id. pp. 454--455, 99 Cal.Rptr. 313, 492 P.2d 1, fn. 2.) The objection was properly overruled.

4. Defendant contends that the evidence was not substantial because not all of the tablets found in the cigarette wrapper were produced by the prosecution. The wrapper contained twenty-six tablets and four capsules. The only contents of the wrapper which were determined to contain heroin were four capsules, which were placed in evidence. The tablets, six of which were in evidence, did not contain heroin. Defendant does not indicate any way in which their production could have aided him, nor was there any request made at trial for their production. Defendant had ample opportunity to examine Officer Thomas and the chemist as to the chain of custody of the evidence. There is no apparent reason why the tablets not produced have any bearing at all on the substantiality of the evidence that was produced.

5. Defendant contests the chemist's test for heroin in that he did not test for morphine, from which heroin is derived. The chemist did, however, test for heroin, which he found, and for the possession of which defendant was convicted. There is no indication why further tests might have been necessary.

6. Defendant complains that he was deprived of due process of law 'because at the preliminary hearing counsel stipulated regarding the testimony of the criminalist and defendant did not personally waive his right to question the chemist at that time.' Defendant did, however, question the chemist at length at the time of the hearing on his motion to suppress. Furthermore, counsel's stipulation at the preliminary hearing must be viewed as a tactical decision, not requiring the personal waiver of defendant. (See In re Mosley, 1 Cal.3d 913, 924, 83 Cal.Rptr. 809, 464 P.2d 473.)

Finally, defendant never made a motion under section 995 of the Penal Code to set aside the information. (People v. Harris, 67 Cal.2d...