People v. Tomita

• Decision Date: 14 March 1968
• Docket Number: Cr. 13831
• Citation: 260 Cal.App.2d 88,66 Cal.Rptr. 739
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Victor TOMITA, Defendant and Appellant.

Page 739

66 Cal.Rptr. 739

260 Cal.App.2d 88

The PEOPLE of the State of California, Plaintiff and Respondent, v. Victor TOMITA, Defendant and Appellant.

Cr. 13831.

Court of Appeal, Second District, Division 1, California.

March 14, 1968.

Rehearing Denied April 4, 1968.

Hearing Denied May 9, 1968.

Robert Valentino, Los Angeles, under appointment by the Court of Appeals, for appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Elliott D. McCarty, Deputy Attys. Gen., for respondent.

FOURT, Associate Justice.

This is an appeal from a judgment of conviction of possession of marijuana.

In an information filed in Los Angeles on November 16, 1966, defendant was charged in count 1 with possessing marijuana on October 16, 1966, and in count 2 with possessing marijuana on October 16, 1966, while in the Los Angeles County jail. Defendant was found guilty in a jury trial as charged in court 1 and not guilty of the charge as stated in count 2. Defendant was sentenced to the state prison.

A re sume of some of the facts is as follows: On October 16, 1966, Deputy Sheriff Robert E. Payne was security officer on duty at the second floor infirmary of the Los Angeles County jail. That afternoon defendant was brought up in the elevator to be admitted to the infirmary, and Officer Payne instructed him to change his clothes in an adjacent room. Officer Payne, standing in the hallway some 15 or 20 feet away observed defendant through a well-lighted open doorway. He saw defendant, while changing his clothes, make a furtive movement as though removing from his mouth some object which he then placed in an empty cigarette carton on the table before him. This movement aroused the watching officer's suspicion and he requested that defendant submit to a search of his belongings. Among defendant's possessions Officer Payne found what appeared to be a slightly curved, moist marijuana cigarette, distinguishable from the other cigarettes in the carton because the paper wrapping had a yellow tinge. Officer Payne promptly advised defendant that he had the right to remain silent, that anything he might say could be used against him in court, that he had the right to have his own private attorney, and that if he was indigent a county public defender would be contacted on his behalf. The next day Officer Raymond Velasquez similarly advised defendant of his constitutional rights. Both officers testified that defendant indicated that he understood these admonitions.

Defendant was arraigned on the charges October 18, 1966, and on that morning he summoned Officer Payne to his jail cell to inquire of him what event had prompted his search. Officer Payne described the suspicious movement which he had observed defendant make and then asked how he had gotten the marijuana cigarette into the jail. Defendant said that he had smuggled it in through the booking process when he was being admitted to jail.

The foregoing testimony was introduced by the prosecution. Counsel stipulated that the cigarette introduced into evidence contained marijuana. Defense counsel called no witnesses and appellant did not testify.

Appellant now contends that the evidence is insufficient to sustain the judgment, that certain evidence was improperly received, that he was not correctly advised of his constitutional rights, that he was deprived of his right to the aid of counsel, and that he was prejudiced in several minor respects. There is no merit to appellant's contentions. Where the findings of the trier of fact are supported by evidence in the record, the appellate court should not reverse the judgment. (People v. Widener, 220 Cal.App.2d 826, 829, 34 Cal.Rptr. 130.) The possession of a narcotic drug and knowledge of its narcotic qualities may be established by circumstantial evidence. (People v. Powell, 236 Cal.App.2d 881, 883, 46 Cal.Rptr. 415.) Officer Payne's uncontroverted testimony clearly established that appellant furtively removed the cigarette from his mouth and placed it in the carton containing his personal belongings, from which appellant's knowledge of the illicit character of the cigarette may be inferred. Unquestionably, the bent, moist marijuana cigarette resting in the cigarette carton on the table directly in front of appellant at the time of the search was under his possession and control. His admission that he smuggled the cigarette into the jail further supported his conviction. (People v. McGlory, 226 Cal.App.2d 762, 766, 38 Cal.Rptr. 373.)

Appellant objected to the introduction of the admission he made to Officer Payne and he contends that his motion to strike this testimony was improperly denied, because he was not adequately advised of his constitutional rights. (People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) Appellant, however, was on several occasions advised of the full extent of his constitutional rights and thereafter initiated a conversation with Officer Payne. Only when a defendant who is under custody and surveillance is subjected to interrogation calculated to elicit incriminating statements without being advised of his constitutional rights are his statements rendered inadmissible. 'Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police wihtout the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop * * * a person who calls the police to offer a confession or any other statement he desires to make.' (Miranda v. State of Arizona, supra, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630.) Where adequate protective devices have been employed to dispel the compulsion inherent n custodial surroundings, the police are not precluded from using any voluntary statements made by a defendant in custody.

Officer Payne was in a position to testify to circumstances sufficient to support appellant's conviction before the admission was made. When app...