People v. Vermouth

Decision Date04 October 1974
Docket NumberCr. 5477
Citation116 Cal.Rptr. 675,42 Cal.App.3d 353
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Jon Wayne VERMOUTH et al., Defendants and Appellants.
OPINION

AULT, Associate Justice.

Jon Wayne Vermouth and Harold W. Buker appeal from judgments (orders granting probation) entered after a jury found them guilty of possession of marijuana (a lesser included offense of possession of marijuana for sale, the crime charged in Count I of the information) and cultivation of marijuana (Count II). A motion for new trial was granted as to a third conviction (possession of restricted dangerous drugs). A fourth charge, maintaining a place for the sale of marijuana, had been dismissed on motion of the People at the beginning of the trial.

On appeal defendants raise the following contentions:

(1) their constitutional right to counsel of their choice was violated by the trial court's refusal to grant their motion for the return of money seized by the police from their residence ($6,424), on their motion to continue the criminal trial until their right to the money had been resolved;

(2) their motion to suppress evidence was erroneously denied;

(3) the evidence is insufficient to support their convictions of cultivation of marijuana;

(4) the prosecutor was guilty of prejudicial misconduct during his argument to the jury.

RIGHT TO COUNSEL

On July 28, 1971 law enforcement officers searched defendants' residence pursuant to a warrant. They seized many items including: (1) documents tending to establish the defendants were the lessees of the residence, (2) marijuana plants growing in pots and planters on the sun deck of the house, (3) marijuana, restricted dangerous drugs and a small amount of cocaine and (4) $6,424 in currency. On the basis of the evidence seized, defendants, and two other persons who were present in the house at the time of the search, were arrested and charged with possessing marijuana for sale, cultivating marijuana, possessing restricted dangerous drugs, and maintaining a place for selling marijuana (Health & Saf.Code §§ 11530.5, 11530.1, 11910 and 11557). The four were held to answer after a preliminary hearing at which they were represented by a single attorney, Mr. Tarlow, apparently having waived any conflict of interest for the purpose of that hearing. 1 After the four-count information was filed against them, defendants filed a non-statutory motion for return of the $6,424 seized from their residence, contending there was a conflict of interest and that the money was needed to hire separate counsel to represent them. Despite the fact the defendants offered to stipulate that currency in the amount seized was found in and taken from the residence, the People opposed the motion, contending the money itself was necessary evidence to prove the defendants' intention to sell marijuana.

On December 17, 1971 the trial court denied defendants' motion to return the money, finding 'some color' on which it could be admitted in evidence to prove intention to sell.

In January 1972 defendants brought on for hearing their statutory motions under Penal Code sections 1538.5 and 1540 to suppress the evidence seized in the search of their residence. In these motions defendants challenged the legality of the warrant and the search of their residence. The People argued the trial court should not hear the motions because it had heard and ruled upon defendants' previous motion for the return of the $6,424. The motions were later dismissed by the trial court on the ground it had no jurisdiction to hear them.

Defendants Buker and Vermouth then petitioned this Court for relief and obtained a writ of mandate directing the superior court to set aside its previous orders, to hear the statutory motions to suppress and return evidence which it had dismissed (Pen.Code §§ 1538.5 and 1540), and to conduct a further hearing on the non-statutory motion for the return of the $6,424 (Buker v. Superior Court, 25 Cal.App.3d 1085, 102 Cal.Rptr. 494). We held the denial of the non-statutory motion for return of the money upon the ground it should be retained in the custody of the court because there was 'some color' upon which it could be admitted in evidence, constituted an abuse of discretion as a matter of law (Buker, supra, p. 1090, 102 Cal.Rptr. 494). A further hearing on the motion was required because hearsay statements in the record cast doubt on defendants' claim they were the owners and entitled to possession of the money. 2

After the People's petition for a hearing in Buker was denied by the Supreme Court on August 2, 1972, defendants' motion for the return of the $6,424 again came before the superior court on November 17. Although the United States authorities who had filed the lien were notified of the hearing by letter by defendants' attorney, they did not appear. The prosecutor again called the court's attention to the tax lien and urged the court not to turn over the money to defendants' attorney. Defendants' attorney presented an assignment of the funds signed by the defendants which predated the federal lien. He urged the court to release the funds to him so separate counsel could be hired.

The court concluded it could not adjudicate the dispute because the United States was not a party to the action. It ordered the county clerk to file an action in interpleader pursuant to Code of Civil Procedure section 386, joining the defendants, Mrs. Tarlow, and the Internal Revenue Service and to deposit the $6,424 in those proceedings.

While the civil action was instituted and pending, the criminal case proceeded. In January 1973, pursuant to this Court's order in Buker, supra, the superior court heard the motions to suppress and return evidence (Pen.Code §§ 1538.5 and 1540). On February 1, by minute order, it denied the motions based upon its findings that (1) the officers complied with Penal Code section 1531 in entering the residence, and (2) the affidavit underlying the search warrant established probable cause to search.

Trial of the criminal action was set for March 7, 1973. On March 5 defendants' motion to continue the trial until the interpleader action could be heard, was heard and denied. An attorney from Mr. Tarlow's office argued that there was a possible conflict of interest between the defendants and that the money held by the court was crucial to the defense and necessary to hire separate counsel. The prosecutor vigorously opposed the continuance on the ground the case had already been pending for a year and a half, adding the 'dangers of this kind of delay to the People's case are very obvious.' In answer to the charge that the issues raised were well known long before and should have been raised earlier, defendants' attorney stated:

'It is only because the trial court in this matter delayed in effect the return of the money which . . . (it) . . . was ordered to do by the appeal . . . we had hoped that the interpleader action would go forthwith. What had happened, the reason it was delayed was that the clerk had served the wrong person in the United States government and it was determined someone else had to be served. And so as of yet the interpleader action has not been determined . . ..'

The court responded:

'I think this is too late to make such a motion. The matter is set for Wednesday. The People are ready. The motion for continuance is denied.'

Defendants' jury trial began a few days later and ended in the guilty verdicts recited above on March 13. Buker and Vermouth were both represented by a single attorney from Mr. Tarlow's office. Neither testified at the trial.

In August 1973 the interpleader action came on for trial. It required about five minutes time. Although the United States Attorney had filed an answer in the action, putting the right to possession of the money in issue, he did not attend the trial. County counsel, representing the clerk, announced the United States government had withdrawn its lien. Mrs. Tarlow's assignment was received in evidence. The court ordered the $6,424 paid to Mr. Tarlow and later signed a judgment to that effect.

Defendants first contend the criminal court's refusal to determine the issue and order the return of their money constituted an abuse of discretion, a violation of their Sixth Amendment right to be represented by counsel of their choice as well as their right to the effective assistance of counsel, and a failure to comply with this Court's mandate in Buker v. Superior Court, Supra, 25 Cal.App.3d 1085, 102 Cal.Rptr. 494. They argue the interpleader action was unnecessary and that the issue could and should have been resolved by the criminal court on November 17, 1972. They point out the Internal Revenue Service had not levied upon the funds pursuant to 26 United States Code section 6331 et seq. but had merely assessed a tax against the defendants and given notice of lien pursuant to 26 United States Code sections 6321, 6322 and 6323. They contend such a lien, in contrast to a levy under section 6331 et seq., does not operate to prevent transfer of the property which is subject to the lien but merely constitutes an encumbrance which continues after the transfer is made. They assert the criminal court should have ordered the funds released to Mr. Tarlow subject to the lien rights, if any, of the federal authorities.

While the argument is persuasive and appears to interpret the federal tax statutes correctly, we prefer to rest our decision on the alternate ground urged, i.e., an abuse of discretion in denying defendants' motion for a continuance of the criminal trial.

Our ...

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  • People v. Holland
    • United States
    • California Supreme Court
    • 29 Dicembre 1978
    ...have the assistance of counsel. (Glasser v. United States (1942) 315 U.S. 60, 71, 62 S.Ct. 457, 86 L.Ed. 680; People v. Vermouth (1974) 42 Cal.App.3d 353, 359, 116 Cal.Rptr. 675.) 10 If a defendant's right to counsel is abridged, a reversal of a subsequent conviction is required. (Holloway ......
  • People v. Gzikowski
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    ...right to return of money seized on his arrest, which he had intended to use for retaining counsel. (See also People v. Vermouth (1974) 42 Cal.App.3d 353, 116 Cal.Rptr. 675.) Here, defendant says he was denied his right to counsel by being denied a continuance to find a replacement for Sutto......
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    ...plant. (CALJIC No. 12.24; People v. Villa (1983) 144 Cal.App.3d 386, 389-390, fn. 3, 192 Cal.Rptr. 674; People v. Vermouth (1974) 42 Cal.App.3d 353, 362, 116 Cal. Rptr. 675.) There is no dispute defendant was cultivating marijuana. Detective Hyatt found 12 large healthy marijuana plants gro......
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