People v. Wade

• Decision Date: 11 April 1963
• Docket Number: Cr. 7868
• Citation: 29 Cal.Rptr. 822,215 Cal.App.2d 49
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Don WADE, Defendant and Appellant.

Page 822

29 Cal.Rptr. 822

215 Cal.App.2d 49

The PEOPLE, Plaintiff and Respondent, v. Don WADE, Defendant and Appellant.

Cr. 7868.

District Court of Appeal, Second District, Division 3, California.

April 11, 1963.

Rehearing Denied May 8, 1963.

Hearing Denied June 4, 1963.

Burton Marks, Beverly Hills, under appointment by the Dist. Ct. of App., for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. atty. Gen., Stanley X. Cook, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Donald Tyler Wade appealed, in propria persona, from a judgment of conviction in a jury trial of violating section 11501 of the Health and Safety Code in that, on or about September 8, 1960, he did unlawfully and feloniously sell, furnish, and give away a narcotic, to-wit, heroin. He was charged with a prior narcotic conviction, a misdemeanor, which he admitted. Subsequent to the filing of appellant's and respondent's briefs, counsel for appellant was appointed and supplemental briefs were thereupon filed.

Defendant first assigns error in the court's failure to dismiss the action, pursuant to Penal Code, § 1382, upon the ground that he was not brought to trial within 60 days after the filing of the information.

The information was filed March 7, 1961; on March 10, when defendant was represented by the public defender, the date for trial was set for May 8, 1961, a lapse of 62 days. No objection was registered to that order.

On May 8, 1961, on motion of the defendant, the public defender was relieved, defendant was substituted in propria persona and his motion for continuance was denied. The action was not subject to dismissal. When the trial date was set, defendant was represented by counsel and since no objection to the 2-day extension of the period was then made by defendant or his counsel, defendant thereby consented to the date set for trial and waived his rights under Penal Code, § 1382. (See, People v. Anderson, 126 Cal.App.2d 702, 272 P.2d 805; People v. Akers, 143 Cal.App.2d 224, 299 P.2d 398.)

Defendant next contends that the evidence was insufficient to support the verdict in that the People's evidence was contradictory and therefore incredible and that the testimony of an accomplice was not corroborated. The People's evidence consisted of the testimony of Harry Edward McKeehan, a forensic chemist at the Los Angeles County Sheriff's crime laboratory, who testified that the capsules in question contained heroin; Allen Jerace, deputy sheriff, assigned to the Narcotic Detail; and Edmund D. Tromanhauser, who volunterred information and assistance to the sheriff's department in obtaining evidence. The testimony of Jerace and Tromanhauser disclosed the following facts: Tromanhauser contacted defendant; they came to a car in which Jerace was waiting for them; it was arranged that defendant would obtain heroin for Jerace in the amount of "half a G"; Jerace handed Tromanhauser $10 which he, in turn, handed to defendant; the three of them proceeded to an underpass where defendant left while he went to his connection; he returned with a package which was found to contain heroin, handed it to Tromanhauser, who handed it to Jerace.

In his defense Wade testified that he did not 'recall anything particularly taking place on the 8th day of September, 1960,' that he had never seen Agent Jerace anywhere except in court, but that he had known Tromanhauser for approximately two years, during which time Tromanhauser was his connection for heroin.

In questioning the sufficiency of the evidence against him, the defendant cites as inconsistent various statements made by both Jerace and Tromanhauser in their testimony. The matters alluded to were of a trivial nature and inconsequential. There was substantial evidence to support the conviction. The credibility of the witnesses was for the jury to determine and its determination will not be disturbed on appeal. (People v. Barbera, 50 Cal.2d 688, 328 P.2d 973; People v. Hadley, 84 Cal.App.2d 687, 191 P.2d 517; People v. Tillman, 142 Cal.App.2d 404, 298 P.2d 631.)

The testimony of Tromanhauser that he received the heroin from defendant did not require corroboration since he was not an accomplice to the crime committed by defendant, but was working under the direction of Agent Jerace and was immune from prosecution. (See, section 11710 of the Health and Safety Code.)

Defendant next contends he was denied the right to counsel an assigns error in the court's denial of his motion for a continuance. The record discloses that, on the date of trial, the defendant intelligently waived his right to counsel, the court taking care to ascertain that defendant had knowledge of the nature and effect of such a waiver. In an extended colloquy the court endeavored to convince defendant that it would be a mistake for him to dispense with the services of the public defender....