People v. Webb
| Decision Date | 05 July 1966 |
| Docket Number | Cr. 5354 |
| Citation | 52 Cal.Rptr. 495 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. George L. WEBB, Defendant and Appellant. |
For Opinion on Hearing, see 56 Cal.Rptr. 902, 424 P.2d 342.
Robert N. Beechinor, San Francisco, for appellant (Under appointment of District Court of Appeal).
Thomas C. Lynch, Atty.Gen. of State of California, Edward P. O'Brien, John F. Kraetzer, Deputy Attys.Gen., San Francisco, for respondent.
On this appeal from the judgment of conviction entered upon a verdict finding defendant guilty of violating section 11500 of the Health and Safety Code (possession of heroin), defendant contends as follows: (1) The trial resulting in defendant's conviction constituted double jeopardy; (2) defendant was deprived of the effective aid of counsel as a result of the public defender's failure to urge the bar of double jeopardy; (3) the evidence leading to defendant's conviction was the product of an unlawful search and seizure; (4) the evidence is insufficient to support the jury's verdict in that defendant's knowing possession of narcotics was not shown; and (5) the trial court erred in instructing the jury as to the effect of circumstantial evidence at the commencement of the trial rather than at the conclusion of the trial.
By amended information defendant was charged in two counts with violations of Health and Safety Code sections 11501 (transportation of heroin) and 11500 (possession of heroin). In addition the amended information alleged three prior felony convictions. Defendants entered a plea of not guilty to both counts of the amended information and admitted the three alleged prior felony convictions. Thereafter following a jury trial, defendant was found not guilty on the transportation charge and a mistrial was declared as to the possession charge, the jury having been unable to reach a verdict on this charge. Upon a retrial on the possession charge defendant was convicted and it is from the judgment upon this conviction that the instant appeal is prosecuted.
Officers Alves and Carreker of the Narcotics Detail of the Oakland Police Department, who arrested defendant and participated in the search of his automobile, which search resulted in discovery of the heroin upon which defendant's conviction was based, testified as to these events as follows: On July 9, 1964 at approximately 9:50 p.m., Alves and Carreker were driving in their unmarked police car in the vicinity of Seventh and Willow Streets in Oakland when they observed defendant sitting behind the wheel of a parked automobile. Since they were looking for defendant based on information which they had received via teletype that there was a warrant for defendant's arrest, 1 they stopped their police car alongside defendant's car and Alves approached defendant's car. Upon seeing the officers, defendant locked the door of his car. After a brief conversation between Alves and defendant, wherein Alves asked defendant to open the door, defendant rolled down the car window about three and one-half inches and Alves reached inside the car to pull up the lock button. At the same time Alves told defendant he had a warrant for defendant's arrest, whereupon defendant made a rapid downward motion with his right hand, started up the engine of his car and started to drive away. As defendant's car started to move, Carreker, who had meanwhile alighted from the police car, fired one shot into defendant's car, grabbed Alves, whose arm was stuck in the window of the car, and pulled him free. Carreker then fired two more shots at defendant's car, which traveled some 30 yards in a semi- circular path and finally crashed into a parked vehicle. When the car stopped, defendant alighted from the passenger side and ran several feet down the street, but stopped upon Carreker's order. Defendant was then apprehended and placed in the police car. Meanwhile Alves, noticing that defendant was bleeding, called for an ambulance. While waiting for the ambulance to arrive, Alves looked into defendant's car and discovered a red balloon containing a powdery substance on the floorboard of the car in front of the driver's seat. Alves then accompanied defendant in the ambulance to the Alamede County Hospital. At the hospital Alves examined defendant's clothing and discovered a sum of money in excess of $100. Alves then returned to police headquarters and he and Carreker again searched defendant's car, which had been towed to the police parking lot following defendant's arrest. As as result of this search Alves and Carreker found an orange balloon on the floor of the car behind the driver's seat and a vial containing four more balloons and small white paper packet on the convertible rail above the driver's door.
Officer Burke of the Oakland Police Department testified that he arrived at Seventh and Willow Streets shortly after defendant had been placed in custody; that he kept the numerous bystanders away from defendant's automobile and followed it while it was being towed to the police parking lot; and that he remained with the car at police headquarters until Alves arrived. 2 In addition Burke testified that while he was keeping defendant's car under surveillance, both at the scene of the arrest and en route to police headquarters, no one other than police officers approached the car. Mr. Davis, a criminalist with the Oakland Police Department, testified as an expert witness that he examined the six balloons and the paper packet which were found in defendant's automobile and that they all contained heroin. Following Davis' testimony, all of these items were introduced into evidence by the prosecution.
Defendant took the stand in his own behalf and testified that he was the owner of the automobile in which the heroin was found; that the car was kept under his control and possession; that the narcotics found in his automobile did not belong to him and he had no knowledge of their presence in his car; that he could not recall whether anyone else had been in his car on the day of his arrest, but that he had on occasion allowed several of his friends and relatives to use his car, and that it was last used by someone other than defendant two days prior to his arrest. In addition defendant testified that he had a general knowledge of narcotics and narcotic terminology and that he knew that balloons were used as containers for narcotics. Finally defendant testified that the movement of his car immediately prior to his arrest was accidental and that he at no time attempted to flee from Alves and Carreker.
In considering defendant's contention that the trial in which resulted in his conviction constituted double jeopardy we first note that it is well established in California that a defendant is not placed in double jeopardy by being retried on a charge as to which the jury at the prior trail was unable to reach a verdict. (People v. Demes, 220 Cal.App.2d 423, 433, 33 Cal.Rptr. 896; People v. Westwood, 154 Cal.App.2d 406, 409, 316 P.2d 23; see also Pen.Code, §§ 1140 and 1141. 3 Defendant, recognizing this principle, argues, however, that since his first trial resulted in an acquittal on the transportation of narcotics charge he cannot, by virtue of the provisions of section 1023, be subsequently retried for possession of narcotics, an offense which, according to defendant, is necessarily included in the transportation charge. Section 1023 provides as follows: "When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading."
While defendant poses the double jeopardy issue in terms of whether possession of narcotics is an offense which is necessarily included in the offense of transporting narcotics, it is apparent that the more basic issue before us is whether, in the language of section 1023, defendant's trial on the possession charge constituted another prosecution. In People v. Tideman, 57 Cal.2d 574, 21 CAl.Rptr. 207, 209, 370 P.2d 1007, 1009, the Supreme Court, noting that no plea of jeopardy can properly be made where the defendant is tried but once (see People v. Brown, 49 Cal.2d 577, 592, 320 P.2d 5), stated that a (Pp. 578-579, 2 Cal.Rptr. p. 209, 370 P.2d p. 1009.) Noting further that under section 683 "The 'prosecution' (or criminal action) is defined as 'The proceeding by which a party charged with a public offense is accused and brought to trial and punishment,' " Justice Schauer pointed out that "The prosecution * * * commences when the indictment or information is filed in the superior court and normally continues until (as to each and every count) the accused is 'brought to trial and punishment' or is acquitted." (P. 579, 21 Cal.Rptr. p. 210, 370 P.2d p. 1010.) It was further noted in Tideman that section 1023 must be read together with section 954 which provides in part that "An acquittal of one or more counts shall not be deemed an acquittal of any other count."
From the foregoing principles the Supreme Court, in Tideman, distilled the following rule: ...
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