People v. Warren

• Decision Date: 25 August 1958
• Docket Number: Cr. 6265
• Citation: 328 P.2d 858,163 Cal.App.2d 136
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Hannah WARREN and General Bell, Defendants, General Bell, Defendant and Appellant.

Page 858

328 P.2d 858

163 Cal.App.2d 136

The PEOPLE of the State of California, Plaintiff and Respondent, v. Hannah WARREN and General Bell, Defendants General Bell, Defendant and Appellant.

Cr. 6265.

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

Aug. 25, 1958.

General Bell, in pro. per.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

The District Attorney of Los Angeles County filed an information wherein appellant was charged in two counts with a violation of Section 11500 of the Health and Safety Code. Count I alleged that on or about November 18, 1957, appellant unlawfully sold a preparation of heroin. In Count IV it was alleged that on the same day, appellant transported and offered to sell a preparation of heroin. (Counts II and III of the information contained charges against Hannah Warren, the codefendant of appellant at the trial.) Reference might here be made to the preliminary examination where the committing magistrate dismissed Count I of the complaint charging that appellant sold, furnished, and gave away a preparation of heroin but added and held appellant to answer to Count IV of the complaint charging appellant did unlawfully transport and offer to sell and furnish and give away a preparation of heroin.

The information also alleged that before the commission of the offenses charged against him, appellant had been convicted of two prior felonies and served terms of imprisonment in the state prison. The first prior felony alleged was the crime of burglary and possession of marijuana with judgment rendered in the District Court of the State of Texas, on or about March 30, 1950; the other for the crime of possession of marijuana with judgment rendered by the District Court of the State of Texas on or about June 19, 1952.

To the offenses charged against him in Counts I and IV, appellant pleaded not guilty. Trial by jury was duly waived and by stipulation the cause was submitted on the transcript of the testimony adduced at the preliminary examination, each side reserving the right to offer additional evidence.

Following a reading of the aforesaid transcript and consideration of additional testimony offered at the trial, the court adjudged appellant guilty as charged in Count I and not guilty on Count IV. No finding was made on the prior felony convictions as alleged. Probation was denied and appellant was sentenced to state prison. From the judgment of conviction he prosecutes this appeal.

The following will serve as a fair epitome of the factual background surrounding this prosecution. There was evidence that at about five o'clock on the evening of November 18, 1957, Justin B. Burley, an undercover investigator for the sheriff's office assigned to the narcotics detail, went to defendant Hannah Warren's residence. He was accompanied by a confidential informant known as Maggie.

Approximately one hour later Burley and the confidential informant returned to Warren's residence and for the first time met appellant as he was leaving. Appellant asked them if they had the 'stuff' (meaning heroin). They hold him 'No' that they had been trying to 'pick up' (meaning to purchase or obtain narcotics). Appellant stated he had a 'connection' (meaning a person from whom one gets his heroin) that lived near 94th and San Pedro and would be willing to take them to that location.

They entered defendant Warren's residence and told the latter that her 'connection' was going to be too long and they would try to 'score' (meaning to purchase) with appellant Bell. Defendant Warren asked if she could hold the money and in the meantime if her 'connection' should call she would be able to 'score'. Burley let defendant Warren hold $15.

Burley, the informant, and appellant entered the latter's car and drove to the vicinity of 94th and Broadway. Appellant took $20 and left the automobile saying he had to make a phone call. He returned and said his 'connection' was not home. Appellant gave back the $20 and no sale took place. They then returned to defendant Warren's residence. Some person called Mrs. Warren from next door and when she returned Mrs. Warren stated she had made contact with her 'connection' and they were to meet her 'connection' at 56th and McKinley. Appellant asked defendant Warren if he could accompany them to the location because he wanted to 'score' himself. Appellant stated he would drive them over in his automobile.

Defendant Warren and her little girl, the confidential informant, Burley and appellant entered appellant's vehicle and drove to the vicinity of 56th and McKinley. Defendant Warren then left the car and Burley observed a brown Studebaker driven by a male Negro. Appellant stated that this was Mrs. Warren's 'connection' and he had seen him on several occasions. Defendant Warren returned and appellant asked her 'did she pick up'. Defendant Warren said 'Yes' that everything was 'straight'.

The parties in appellant's car returned to 2043 East 115th Street, which is defendant Warren's residence. They entered the location and Mrs. Warren produced a small paper bindle and proceeded to put white powder into capsules. Appellant purchased one of the capsules from defendant Warren, went into the bathroom and took a 'fix' meaning an injection of a solution of white powder and water into his veins. Defendant Warren then gave Burley five capsules. The powder in the capsules upon analysis contained the narcotic drug heroin. After Burley received the five capsules appellant approached him and asked Burley to sell him one but Burley told appellant he needed the capsules for himself.

Appellant and his co-defendant Hannah Warren testified for the defense. Their testimony may be summarized as follows: On the evening here in question, appellant was at defendant Warren's residence. As the former was leaving the house, Officer Burley and the confidential informant, Maggie Magee, approached. The latter asked appellant if he would 'drive her down 94th and Broadway'. Appellant responded in the affirmative but that they would have to put gas in his automobile. When they were approaching Broadway, Maggie Magee told Officer Burley it 'didn't look like anyone was home'. Appellant said he would have to make a phone call before he took them back. He called a friend who wanted appellant to get him a job where appellant was working. The phone call was not in connection with the purchase of narcotics. At no time during this trip was there any discussion of narcotics. Maggie Magee gave appellant a dollar for taking her over to 94th Street.

Later on the same evening Mrs. Warren, Officer Burley, Maggie Magee and appellant went on a second trip in appellant's car with the latter driving. Defendant Warren had asked appellant if he would take her to some market that was open. Appellant didn't know why Officer Burley and Maggie Magee happened to go along; he thought maybe they were friends. Appellant got no money for this trip as he was doing Mrs. Warren a favor. There was no discussion of narcotics before this trip started nor anytime during the trip. Appellant did not at any time ask Maggie Magee or defendant Hannah Warren if 'she had picked up'; nor at any time did appellant offer to sell narcotics to Officer Burley and Maggie Magee. Appellant did not see Mrs. Warren get out of the car and go to a Studebaker nor did he say 'that is her connection'. Appellant did not know at any time that he was transporting narcotics. After the trip they went back to defendant Warren's house. Appellant went into the house, but he did not take a 'fix'. There was never any mention of narcotics. Appellant has been convicted of the crimes of burglary and possession of marijuana and served terms of imprisonment in the state prison.

As his first ground for reversal of the judgment appellant urges that since Count I of the information involved the same facts and allegations as contained in Count I of the complaint filed in the municipal court, and which was dismissed by the committing magistrate, the trial court was without jurisdiction and therefore erred in finding him guilty on Count I of the information. In this contention appellant cannot be sustained. While appellant appears in propria persona on this appeal, he was represented by counsel at both the preliminary examination and his trial in the court below. Any objection appellant had to Count I of the information in the he was not legally committed by a magistrate or had been committed without probable cause has been waived because of his failure in the trial court, to move to set aside the information pursuant to the provisions of section 995 of the Penal Code, which, insofar as here pertinent, provides that the court must set aside an information in either of the following cases:

'1. That before the filing thereof the defendant had not been legally committed by a magistrate.

'2. That the defendant had been committed without reasonable or probable cause.'

This is followed by Section 996 which provides that:

'If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections...