People v. Washington

• Decision Date: 02 October 1958
• Docket Number: Cr. 3499
• Citation: 330 P.2d 67,163 Cal.App.2d 833
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nolan WASHINGTON, Defendant and Appellant.

Page 67

330 P.2d 67

163 Cal.App.2d 833

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nolan WASHINGTON, Defendant and Appellant.

Cr. 3499.

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

Oct. 2, 1958.

Rehearing Denied Oct. 17, 1958.

Thomas Francis Lyons, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

ST. CLAIR, Justice pro tem.

Appellant was charged in the first count, with violating section 11500 of the Health and Safety Code, possession of marijuana; and in the second count with violating section 11714 of the same code, unlawfully offering to sell, furnish and give a narcotic to a minor. The complaint set out four prior narcotic convictions, all misdemeanors, and a felony forgery conviction. All prior convictions were admitted. The jury found the appellant guilty on the first count and not guilty on the second count.

The nature of the points raised by appellant on appeal is such as to require a rather detailed statement of the facts. The points are:

I. There was no reasonable or probable cause for the original arrest of the appellant.

II. There was no reasonable or probable cause for the search of the appellant's automobile, or there was no reasonable relationship between the arrest and the search.

III. It was error for the trial court to admit certain evidence seized in violation of the rights of a third party.

IV. The People committed error in introducing, in rebuttal, evidence linking the appellant to possession of the very marijuana which was the basis of the proof of the violation proved in the case in chief.

V. The court erred in denying a motion for a continuance or other extension of time to permit the appellant to submit the rebuttal evidence to his own chemist for analysis.

VI. The errors were prejudicial.

Statement of Facts

At 2:00 a. m. on August 20, 1957, a police officer approached a car parked in the vicinity of DeFremery Park in Oakland, California. The appellant and a 17 year old girl named Mrs. Charlsetta Cross were sitting in the car. The officer could see both of their heads. As he approached the car, he saw the appellant make an arm motion in or towards the back seat. The officer approached the car on the passenger side where Mrs. Cross was seated. The officer asked the girl if everything was all right, to which she replied in the affirmative.

The officer asked for and was shown appellant's driver's license and then checked the registration. Appellant having stated the car was his, a discrepancy arose as the car was registered to another Washington. In addition, the appellant's license carried a notation that he was not permitted to own a car. The officer ordered the appellant to descend from the car, which he did. As he descended the officer recognized the appellant as an ex-convict but could not remember the crime of which he had been convicted.

The officer requested the appellant to turn his back so that he, the officer, 'could pat him down for weapons.' The appellant was also requested to place his hands on the automobile so that the officer could determine whether or not he was armed. Appellant refused to co-operate in either way. Thereupon the officer handcuffed the appellant and radioed for help.

One of the answering officers found the remains of a marijuana cigarette wrapped in a cardboard 'crutch' next to the car. (The theory of a 'crutch' apparently being that by wrapping it around a cigarette one could smoke it down to a shorter length than otherwise.) The crutch matched and came from a torn matchbook discovered in the girl's purse.

The torn matchbook had been discovered in the girl's purse under circumstances which the appellant claimed shows that she was coerced into showing the contents to the police. At the trial admission of the matchbook was challenged on various grounds, including illegal search. After examination on voir dire by appellant's counsel and by the court, the court made a finding that the showing of the contents of the purse was voluntary on the part of the girl.

The girl's testimony definitely linked the appellant to the marijuana and to the crutch and its use by him.

Mrs. Cross testified that she had joined the appellant at about 9:30 on the evening of the 19th. After a series of excursions to a hamburger place, to Union Street near her house, to a restaurant and bar, and to some 'projects,' they arrived at DeFremery Park. While they were parked and conversing, appellant asked her 'did [she] want to get loaded,' holding up a brown cigarette. She declined. Appellant lit the cigarette with a match borrowed from Mrs. Cross and smoked it. Later appellant asked for the matchbook again. He wrapped the cigarette in part of the matchbook. The police arrived shortly thereafter. The matchbook had been placed on the dashboard and Mrs. Cross put it in her purse.

The police minutely searched the automobile but found no contraband, nor did they at any time find any on the appellant.

At the start of the trial the court ordered 'the marijuana evidence that will be introduced' to be made available that same day to a defense chemist to be appointed by the court. The material found in the crutch alongside of the car was turned over to the defense chemist. At the trial the prosecution's chemist testified that the material in the crutch was marijuana. The defense chemist did not testify. By stipulation his report went into evidence and was read or exhibited to the jury. The defense chemist agreed that the contents of the crutch were marijuana and further stated that colored stains on the brown paper surrounding the marijuana were lipstick. The girl had testified that neither she nor the appellant had on any lipstick on the night in question.

Appellant went on the stand. On cross-examination the People examined him at length concerning the trousers that he had on the night of his arrest. He identified them and denied that he had ever carried any marijuana in these trousers. On rebuttal, the People produced evidence to the effect that 14 days before the trial a police officer had scraped the dust and lint out of each pocket in the clothes of the appellant and had turned the scrapings over to the prosecution chemist. The prosecution chemist testified that by microscopic examination he could come to the conclusion that the tracings contained marijuana. Photographs were introduced of the alleged tracings of the scrapings in the pocket.

The appellant's counsel claimed surprise but did not object on the grounds of illegal search. He did request that the tracings be submitted to the defense chemist. On the alleged grounds of pressure of time the court denied this motion. The case was sent to the jury and before the verdict the jury came back in and requested that they have read to them certain testimony concerning the trousers. The jury found the appellant guilty of the possession of marijuana as charged in the first count but not guilty of giving marijuana to a minor, as was alleged in the second count.

On the motion for a new trial the defense chemist testified that the tracings from the pocket had been made available to him, that there was not sufficient quantity to make a determination by microscopic examination, that the photographs could be that of either marijuana or other vegetable material and that with such a small amount the only positive test would be a chemical test. The court denied a motion for a new trial.

I

Was there reasonable or probable cause for the arrest of the appellant?

The appellant relies on California Penal Code, section 836, which lays down the rule for officers making an arrest without a warrant. The section reads as follows 'A peace officer may make an arrest in obedience to a warrant, or may, without a warrant, arrest a person:

'1. Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.

'2. When a person arrested has committed a felony, although not in his presence.

'3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.'

Appellant cites and relies on People v. Simon, 45 Cal.2d 645, 290 P.2d 531, holding that arrest and search is not justified merely because appellant was parked in an automobile with a woman at late and unusual hours, and People v. Sanders, 46 Cal.2d 247, 294 P.2d 10, holding that the fact that a person is a past offender is not probable cause to arrest him. Also, People v. Gale, 46 Cal.2d 253, 294 P.2d 13, where the original stopping of the defendant who was driving an automobile was proper and when the questions of the officer brought replies consistent with innocence, no probable cause was established to arrest the defendant and search his car.

The vice of the appellant's position is that he ignores the sequence of events. The original answers of the appellant to the officer's first question developed inconsistencies, as did the fact that appellant's claimed ownership of the car was not consistent with the registration card in the car. The officer asked the appellant to step out of the car which he did, apparently voluntarily.

On brief, the respondent refers to the appellant's actions as 'the appellant resisted arrest'; 'resistance by the appellant'; and 'the appellant became argumentative to a degree so as to necessitate handcuffing him.' Appellant, on brief, states, 'The defendant was arrested * * * He was handcuffed. * * *'

It is not clear whether the parties considered the order to descend from the car as the arrest or whether it was the handcuffing. Both appear to agree that the arrest was completed upon the handcuffing.

There have been many cases construing section 836 of the Penal Code. In People v. Jaurequi, 142 Cal.App.2d 555, at pages 559-560, 298 P.2d 896, at page 899, the...