People v. Thomas

• Decision Date: 02 November 1966
• Docket Number: Cr. 239
• Citation: 54 Cal.Rptr. 409,246 Cal.App.2d 104
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frederic George THOMAS, Defendant and Appellant.

Page 409

54 Cal.Rptr. 409

246 Cal.App.2d 104

The PEOPLE, Plaintiff and Respondent, v. Frederic George THOMAS, Defendant and Appellant.

Cr. 239.

District Court of Appeal, Fifth District,

California.

Nov. 2, 1966.

J. M. Lopes, Visalia, for appellant.

Thomas C. Lynch, Atty. Gen., Sacramento, Raymond M. Momboisse, John L. Giordano, Nelson P. Kempsky, Deputy Attys. Gen., for respondent.

CONLEY, Presiding Justice.

The information accused the defendant of '* * * the crime of Felony, to wit: Violation of Section 11530 of the Health and Safety Code--Illegal possession of marijuana committed as follows:

'The said FREDERICK GEORGE THOMAS on or about the 29th day of June, A.D., 1965, at the County of Tulare, State of California, and before the filing of this Information, did willfully, unlawfully and feloniously have in his possession marijuana.'

An amended information repeated the charge and, in addition, accused him of a prior conviction of possession of marijuana on or about the 8th day of September, 1964, in Tulare County. At arraignment, the defendant entered a plea of not guilty, but admitted the prior felony conviction. At the same time, the defendant and his counsel waived a jury trial, and, in due course, the case proceeded before the court sitting without a jury; at the conclusion of the trial, the court found '* * * that there is sufficient evidence that the Defendant is guilty as charged,' and referred the matter to the probation officer. Probation and a motion for new trial were denied, and the defendant was committed to prison.

One undercover agent, Richard F. Walley of the Bureau of Narcotics Enforcement of California, went to 1731 South 'K' Street in Tulare, the apartment residence of Marion Owings, to attempt to make a purchase of marijuana in the line of duty. When Walley entered the apartment, he saw the appellant, who was introduced as 'Fred,' seated at a table. Walley asked Owings if he had 'a pound of marijuana to sell,' and Owings said that he did not have any. Walley then asked if Owings could 'trip' for a pound (i.e. go some other place to buy it); Owings answered, 'No.'

Walley testified that Owings then asked the defendant, 'Do you think there is quite a pound in that sack?' And defendant got up, walked toward a water cooler by the front door, and said, 'No, I don't think there's quite a pound.' A Nancy Newton was also in the room at intervals. Owings went over to a closet, took out two paper sacks, put them on the table and said, 'I have twenty cans of marijuana that I will sell you,' and Walley stated that he had $200. Owings said, '* * * that would be approximately $10 for a can.' Owings dropped the contends of one large brown paper sack on a table, and also disclosed several small brown paper bags. Walley picked up the small sacks and, counting aloud, placed them, twenty in all, in one of the large paper bags. Owings also offered marijuana stems as a bonus, which Walley took. The agent told Owings he had the money out in his car, and that if Owings would go there with him, he would pay him. Defendant took no part in this conversation.

As Walley and other agents were busy with the arrest of Owings, Agent Mannen noticed that appellant had left the apartment; he arrested and handcuffed appellant and put him temporarily in charge of another officer. Mannen entered the apartment and stood by while Agents Ambrose and Lacey searched the premises.

Then, an hour or an hour and a half after the arrest, Mannen took defendant to the Tulare County jail, where he was placed in a room and left for a short period of time. Mannen returned later and asked defendant about the sale negotiated at the apartment; defendant stated he had no knowledge of the sale and that he had not heard anything of the conversation there. According to his own testimony, Mannen asked defendant if the clothing he was wearing belonged to him and appellant replied, 'I could lie to you and tell you it's not, but I won't, it's mine.' Mannen then took off defendant's shirt and shook out the pocket debris and said that it looked like there were 'fragments of marijuana' there. In fact, later, it was found under the laboratory miscroscope that nine minute pieces of the debris were fragments of marijuana. When Agent Mannen again asked appellant if the shirt were his, defendant Thomas stated that the shirt was not his. In the ensuing conversation, Mannen suggested that defendant was extremely nervous and defendant stated, according to Mannen's testimony, 'I always get nervous when a deal goes down.'

On the stand, defendant denied any conversation at the apartment as to there being a pound of marijuana in the big paper bag and said that when Mannen first asked him, 'Are these your clothes?' he said, 'No,' and then later said, 'Well, I could lie to you, but I am not going to, they are mine'; he testified that Mannen then took the shirt away and was gone for about half an hour, during which time another agent came in and talked with him; when Mannen again returned, defendant said, 'No, these aren't my clothes.' Appellant testified that he had borrowed the shirt, had taken it out of Owings' closet, because the one he had on was dirty. Owings also testified at the trial that defendant had borrowed a shirt of his hanging in the closet, which had been previously worn by him and that the debris in the pocket must have been in the shirt before defendant put it on.

While the specifications of the grounds of appeal are numerous, the points raised by the defendant may be adequately covered under three categories shown by the following questions:

1) Was the defendant taken before an arraigning magistrate within two days after his arrest as required by section 825 of the Penal Code? (See also Cal.Const., art. I, § 8.)

2) Was the evidence found in the pocket of the shirt worn by defendant inadmissible because of an improper arrest or an illegal search and seizure?

3) Was the evidence received sufficient to sustain the judgment of conviction?

Appellant claims that he was jailed on June 29, 1965, and not arraigned by a magistrate until July 2, 1965. The clerk's transcript indicates that the information was filed in the superior court on the 29th day of July, 1965, and the defendant was arraigned there on August 2, 1965, but there is no showing with respect to proceedings in the justice court. As a matter of fact, this point was not raised in any way in the superior court, and it, therefore, could not be taken advantage of on this appeal even if it were reported in the record. (People v. Blankenship, 171 Cal.App.2d 66, 81, 340 P.2d 282.) Furthermore, if the record were adequate on this point it would not necessarily follow that the judgment should be reversed, in the absence of a showing of prejudice suffered by the defendant as a result of the violation of the time requirement. (People v. Combes, 56 Cal.2d 135, 142, 14 Cal.Rptr. 4, 363 P.2d 4; People v. Smith, 175 Cal.App.2d 396, 401, 346 P.2d 484; People v. McCrasky, 149 Cal.App.2d 630, 637, 309 P.2d 115; People v. Dosier, 180 Cal.App.2d 436, 440--441, 4 Cal.Rptr. 309.

The second point is similarly unavailable to defendant on this appeal without the necessity of inquiry as to the basic merits of his specification of error. He contends that the evidence of marijuana contained in the shirt worn by him at the time of his arrest is not admissible on the ground that the arrest and the search were illegal. However, the evidence shows that Agent Mannen was outside of the Owings home listening by electronic apparatus to what was going on in the apartment. Agent Walley was wearing an electric transmitter, and Mannen, seated in his automobile outside in the street, heard what was said by Owings and Thomas as heretofore outlined. Mannen saw the defendant leave the house and at that time arrested him. Agent Mannen had heard the voice of the defendant in the apartment saying that in his opinion there was not a pound of marijuana in the large sack shown by Owings to Walley. This logically led Mannen to believe that the defendant was criminally involved as a participant in the sale; thus before he saw the defendant come out of the house he had been given ground to think that appellant was involved in the current narcotics transaction. Mannen did not know at that time that the appellant had been previously convicted of possession of marijuana, and, of course, he could not take that fact into consideration in deciding whether he had the right to make the arrest; furthermore he was not justified in so acting by reason of what subsequently transpired. However, it seems to us that, in view of the circumstances attending the proposed sale of marijuana to Walley, the agent had legitimate ground to make the arrest, even though it appeared later to prosecuting officials that there was insufficient ground to charge Thomas with the crime of which Owings was accused.

The defendant was not searched for at least one of one and one-half hours after his arrest; he was taken to jail; there his shirt was removed and Mannen shook out the debris, which was used as the sole basis for the later conviction of the appellant. Citing cases with respect to the right to search the residence or home of a defendant at a distance in space or time after his arrest (Tompkins v. Superior Court, 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; Casteneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641), the defendant contends that the delay in making a search of his person at the time he was taken to jail was improper. We cannot approve this assertion; we find that the search at the jail was entirely proper not only for the purpose of acquiring any...