People v. Von Latta

• Citation: 258 Cal.App.2d 329,65 Cal.Rptr. 651
• Decision Date: 26 January 1968
• Docket Number: Cr. 2682
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Clifford VON LATTA, Defendant and Appellant.

Page 651

65 Cal.Rptr. 651

258 Cal.App.2d 329

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clifford VON LATTA, Defendant and Appellant.

Cr. 2682.

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

Jan. 26, 1968.

Rehearing Denied Feb. 14, 1968.

Hearing Denied April 17, 1968.

John H. Gilbert, Jr., Tustin, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jerold A. Prod, Deputy Atty. Gen., for plaintiff and respondent.

COUGHLIN, Associate Justice.

Defendant was charged with the offenses of possession of marijuana, a violation of Health and Safety Code, Section 11530, and the unlawful possession of a firearm, a violation of Penal Code, Section 12560; was convicted of the former and acquitted of the latter; was granted summary probation; and appeals, asserting as grounds for reversal: (1) Insufficiency of the evidence to support the conviction; (2) admission of evidence of prior misconduct and of a prior conviction was error; (3) defendant was denied a speedy trial; (4) the conviction is based on evidence which was the product of an unlawful search and seizure; (5) defendant was denied the right to represent himself; and (6) his prosecution and sentence violated his constitutional guarantee against double jeopardy and the multiple prosecution and punishment proscriptions of Penal Code, Section 654.

On April 22, 1966 defendant was on parole from a prison sentence for armed robbery. On the late morning of that day he entered a house at 113 Coral Street, Newport Beach. His parole officer, a man named Slater, wanted to take him into custody for parole violation; had solicited the assistance of two police officers named Epstein and Amburgey; and with the latter, from a place across the street, observed defendant enter the house, which they had under surveillance. It was known defendant previously had visited this house, which was occupied by three men, two of whom were ex-convicts. Slater was unarmed; advised the police officers he believed defendant was dangerous; and took a position about 20 feet distant while Epstein went to the front door of the house and Amburgey went to the rear. A third officer who had been called in the meantime, and was armed with a shotgun, also went to the rear. Epstein knocked on the front door which was opened by one of the occupants named Luna; identified himself as a police officer; and asked permission to enter and talk with Luna. Permission was granted. Epstein entered and stated the purpose of his presence. Slater followed. Defendant came into the room from the kitchen; started up a stairway; was stopped by Slater, who took him into custody; held one hand behind him out of sight of the officers; and in response to an order from Epstein placed both hands in front of him, revealing a pipe in the hidden hand which was warm and contained marijuana. Epstein was familiar with the odor of marijuana; detected its presence; and placed defendant under arrest.

On a table in the room, in plain sight, were a cellophane bag, a ceramic bowl, and four handrolled cigarettes, all containing marijuana; also several packages of wheatstraw papers, a paper bag and a flour sifter containing fragments of marijuana. Thereupon the three occupants also were arrested. The pipe and the foregoing items were taken into custody and subsequently introduced in evidence.

A search of the automobile defendant had used to come to the house revealed traces of marijuana, and a rifle which was the subject of the gun possession charge.

Approximately six hours after defendant's arrest, Slater, accompanied by two police officers, searched defendant's residence in Garden Grove, about 30 miles from the place of his arrest, for other evidence of parole violation in connection with narcotics; found approximately 4 pounds of marijuana hidden in the garage; and seized the same. Defendant was charged and convicted of possession of this marijuana with intent to sell. Judgement was pronounced on August 11, 1966. Defendant appealed. This court affirmed by a non-published opinion filed November 21, 1967. Trial of the instant action commenced on August 22, 1966, i.e., 11 days after pronouncement of judgment on the possession with intent to sell charge.

Defendant's contention the evidence is insufficient to support the conviction is based upon the claim that as to possession of the marijuana in the pipe there is no showing he had knowledge the substance in the pipe was marijuana, and that as to the marijuana on the table there is no showing he had actual or constructive possession thereof. A defendant's knowledge of the narcotic character of a substance in his possession may be shown by circumstantial evidence. (Rideout v. Superior Court etc., 67 A.C. 475, 478, 62 Cal.Rptr. 581, 432 P.2d 197.) The conclusion defendant knew the substance in the pipe and on the table was marijuana is supported by the fact he sought to conceal the pipe from view, marijuana fragments were found in his automobile, he had a large quantity of marijuana hidden in the garage of his home at Garden Grove, and he testified, in response to a question whether he knew anybody in the house was smoking marijuana, 'No, not one of us were under the influence of narcotics or anything like that. Just in possession.'

The conclusion defendant jointly participated in possession of the marijuana on the table and, in any event, aided and abetted the offense of its possession by the other occupants of the house is supported by evidence showing the marijuana on the table was in plain sight, and appeared to be in the process of being made into cigarettes; that he came into the house through the room in which this table was located and must have seen what was in plain sight; that, according to his testimony, he did not bring any marijuana into the house; and that he had a warm pipe filled with marijuana which, inferentially, he must have taken from the table. (Gen. see People v. Fleming, 191 Cal.App.2d 163, 168, 12 Cal.Rptr. 530; People v. Hood, 150 Cal.App.2d 197, 201, 309 P.2d 856; People v. Moore, 120 Cal.App.2d 303, 306, 260 P.2d 1011.)

Over objection the court admitted evidence tending to show the reason the parole officer decided to take defendant into custody was because the latter had been associating with known ex-felons, with persons of ill repute, and with a prostitute; had been living off of the earnings of a prostitute; had been using a fictitious name; and had driven an automobile at 75 miles per hour in a 35 mile zone in an attempt to elude officers following him. The objection to this testimony was made upon the ground it was immaterial and hearsay. After the parole officer had testified respecting information which had been brought to his attention concerning defendant's conduct, counsel for defense stated:

'I'm going to object to all this as hearsay. They're trying to bring in garbage that doesn't even apply. If they can prove it, let them prove it.'

The court overruled the objections on the ground the evidence was offered on the issue of probable cause to take defendant into custody and forthwith gave the following instruction:

'The jury will consider this part of the evidence only for the purpose of the reasonableness of the parole officer's decision to proceed with the arrest, is that clear to all of you? Is there any person on the jury who doesn't clearly understand that? All right. You may proceed.'

Previously defense counsel had questioned the good faith of the parole officer in taking defendant into custody. The inquiry to which objection was made appears to have been prompted by the good faith issue. The objection properly was overruled. On appeal defendant directs attention to the rule that the issue of probable cause should be determined by the court outside the presence of the jury (People v. Holmes, 237 Cal.App.2d 795, 797, 47 Cal.Rptr. 246), and contends the proceedings in question violated this rule. Objection to the evidence was not made upon the ground it should be taken outside the presence of the jury. Even assuming defendant may assert the alleged error on appeal without previous objection before the trial court, no prejudice resulted. The instruction of the court limiting consideration of the evidence to the issue of the reasonableness of the parole officer's decision to arrest was direct and forceful. Thereafter the parties stipulated the officer had a right to arrest defendant on the date in question, and the court thereupon instructed the jury it was to accept the stipulation as a fact in the case. After an examination of the entire cause, including the evidence and determinable issues in the case, we are of the opinion it is not reasonably probable a result more favorable to defendant would have been reached in the absence of the error. Under these circumstances no cause for reversal exists. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)

Upon cross-examination, defendant, without objection, testified he had been convicted of the felonious offense of possession of marijuana with intent to sell. This was proper impeachment evidence. Thereafter he was questioned about certain details of that offense. His objection thereto was overruled. Under the circumstances, no error occurred as the inquiry was directed to evidence relevant to the issue of knowledge of the narcotic character of the substance in the pipe and on the table. (People v. Horn, 187 Cal.App.2d 68, 75, 9 Cal.Rptr. 578; People v. Valenzuela, 174 Cal.App.2d 759, 762, 345 P.2d 270.)

Defendant contends the case should have been dismissed pursuant to Penal Code, Section 1382 because the trial occurred more than 60 days after the information was filed. In support of his position he poses and answers the argument he consented to trial after the 60 day period with the claim his consent was ineffectual because he was not then represented by cou...