Opinion
Cr. 5388
9-27-1955
PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred Leonzo BEARD, Defendant and Appellant.*
Joseph H. Lewis, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Marvin Gross, Deputy Atty. Gen., for respondent.
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Alfred Leonzo BEARD, Defendant and Appellant.*
Sept. 27, 1955.
Rehearing Denied Oct. 10, 1955.
Joseph H. Lewis, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Marvin Gross, Deputy Atty. Gen., for respondent.
WHITE, Presiding Justice.
In an information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of section 11500 of the Health and Safety Code in that on or about September 17, 1954 he had in his possession flowering tops and leaves of Indian Hemp (Cannabis Sativa), commonly known as marijuana. The information further alleged that defendant had previously, on April 11, 1952, been convicted of the crime of violation of section 11500 of the Health and Safety Code, a misdemeanor. Defendant entered a plea of not guilty and subsequently admitted the prior conviction as alleged.
When the cause was called for trial it was stipulated that the court hear the case without a jury upon the testimony adduced at the preliminary examination with the reservation that either the People or the defendant might submit additional evidence. The exhibits introduced into evidence at the preliminary examination were received in evidence at the trial. The court read the reporter's transcript of the preliminary examination. Defendant was sworn and testified in his own behalf. He was found guilty as charged. Defendant's motion for a new trial was denied and he was sentenced to State Prison. From the judgment of conviction and the order denying his motion for a new trial defendant prosecutes this appeal.
We consider the following a fair epitome of the factual background surrounding this prosecution. Milford B. Buckner, a Los Angeles city police officer and one of the arresting officers, first observed defendant Beard's automobile parked at 253 E. 29th Street, then observed it proceeding westerly on said street. When the vehicle arrived at 229 E. 29th Street, the officers stopped it. Defendant and his companion, one Joseph J. Fortier, were ordered to get out of the automobile, and the officers searched it, finding a brown paper wrapped cigarette under the left front seat of the vehicle. A few minutes later defendant accused the police officers of 'planting him'. A search of defendant's person resulted in the discovery of some brown cigarette papers in his rear pocket.
The officers then went back to 253 E. 29th Street, where they had previously observed the automobile parked, and just inside a white picket fence, found a brown piece of wax paper containing six brown paper-wrapped cigarettes. The seven cigarettes were taken to police headquarters where they were delivered to Daniel C. McCauley, a qualified chemist, who testified that upon examination he found them to contain marijuana. However, only the cigarette found in the automobile was admitted in evidence.
As a witness in his own behalf defendant testified that he was driving along 29th Street when the officers stopped him. He did not see the officers remove any object from his automobile and was not shown a cigarette. He had no knowledge of any narcotics being in his automobile. Preceding the arrest his vehicle was parked several times with the door open. Defendant testified that he had parked the car twice, once to pick up his friend Fortier, and the second time because Fortier desired to make a purchase at a nearby store. On one of these occasions defendant got out of the automobile for the purpose of 'fixing my foot pedal'.
It is the contention of appellant that the search and seizure made in this case was in violation of the Fourth Amendment to the Constitution of the United States, and Section 19 of Article I of the Constitution of California, which provide that 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' However, since the challenged testimony was admitted in the trial court without objection, the error cannot be claimed for the first time on appeal. Under such circumstances, any objection which might have been made to such testimony was waived, People v. Hurst, 36 Cal.App.2d 63, 65, 96 P.2d 1003; People v. Kozakis, 102 Cal.App.2d 662, 665, 228 P.2d 58; People v. Odom, 72 Cal.App.2d 72, 74, 164 P.2d 68. And the rule announced in the cases just cited has not been changed by the recent decisions in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, and People v. Berger, 44 Cal.2d 459, 282 P.2d 509, relied upon by appellant. People v. Brooksher, 134 Cal.App.2d 266, 285 P.2d 298. In both the Cahan and Berger cases timely objection was interposed to the admission of the evidence allegedly obtained in violation of the provisions of the federal and state constitutions against unreasonable search and seizure.
In the instant case, an automobile was involved. If the officers had reasonable cause to justify them in believing appellant committed a felony then they were authorized to arrest him without a warrant. Penal Code, § 836. And upon doing so, it was proper for them, as an incident to a lawful arrest, to search appellant, the vehicle, and to seize any article being used by appellant in the commission of the crime for which he was arrested. In re Dixon, 41 Cal.2d 756, 761, 762, 264 P.2d 513. And, as was said in People v. Coleman, 134 Cal.App.2d 594, 286 P.2d 582, 585: 'The Cahan case, reversing the tenor of California law, held that evidence obtained by police officers in violation of federal and state constitutional prohibitions against unreasonable search and seizure, in inadmissible. It does not purport to inhibit the right of law enforcement officers to conduct a reasonable search or seizure incident to a valid arrest.' (Emphasis included.) Had a timely objection been interposed at the trial, it may well be that the district attorney, as we read the record in the instant case, could have brought out what reasonable and probable cause the officers had to justify them in following appellant's automobile, halting it, placing appellant under arrest, and conducting a reasonable search incidental to such arrest. A proper objection would have presented this issue to the court, allowed opportunity for a ruling thereon, which if adverse to appellant, would have afforded a proper ground for appeal. Without the benefit of an objection and evidence on the issue thereby raised, we are asked to speculate upon the facts surrounding the apprehension and search of appellant and his vehicle. This we are not authorized to do.
Finally, appellant earnestly urges that the court committed prejudicial error in denying his motion for a new trial upon the ground of newly discovered evidence. In support of his motion for a new trial appellant filed two affidavits, one of them was made by Joseph James Fortier, the person who was riding with appellant in the latter's automobile when the officers intercepted them. This affiant stated that he witnessed the search of appellant's vehicle, and that the officers did not find any marijuana cigarette therein. The second affidavit was by Mrs. Opal Dixon who lived in the vicinity where the arrest and search took place. She averred that she was standing on the sidewalk and observed the search of the vehicle. That the officers 'did not at any time bring out from any part of this auto anything that looked like cigarettes wrapped in brown paper'.
Penal Code, § 1181, contains the grounds upon which a motion for a new trial may be granted. In part, the section reads as follows:
'* * * When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: * * * * * *
'8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. * * *'
With regard to the application of this section it was said in People v. McGarry, 42 Cal.2d 429, 433, 267 P.2d 254, 256:
'The elements of the standard by which a trial court in its discretion may properly grant a new trial on the ground of newly discovered evidence are set forth in People v. Sutton, 73 Cal. 243, 15 P. 86. At page 247 of 73 Cal., at page 88 of 15 P. it is stated that 'it must appear--'First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence is not cumulative merely; third, that it is such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial; and, fifth, that these facts be shown by the best evidence of which the case admits.' 1 Hayne, New Trial & App. § 83.' More recent cases have turned on a lack of one or more of the foregoing requirements, but the overall rules have withstood the test of time and properly state the existing law. See People v. Richard, 101 Cal.App.2d 631, 635-636, 225 P.2d 938.'
In the case at bar it is at once apparent that the evidence offered by appellant in support of his motion for a new trial cannot be characterized as 'newly discovered evidence'. It consisted of the testimony of Fortier and Mrs. Opal Dixon. The former was with appellant in the latter's automobile at the time the officers testified they found the marijuana cigarette in the vehicle. Fortier was also charged with a violation of section 11500 of the Health and Safety Code, which charge was later dismissed. Manifestly, appellant was aware of Fortier as a potential witness before the time of trial. Mrs. Dixon resided near the location of appellant's arrest and in her affidavit states she was standing on the sidewalk adjacent to where the search of the vehicle occurred. Why she could not have been subpoenaed as a witness at the trial is not made to appear other than by the affidavits of appellant and his present counsel. The former states that, 'I was in custody until after my trial and unable to obtain the witnesses in my affidavit at the time of my trial', while the latter avers that, 'I have no knowledge as to why defendant's witnesses were not produced at his trial'. Then, there is the further fact that the proffered testimony of the foregoing witnesses Fortier and Mrs. Opal Dixon would be merely cumulative to appellant's testimony that the officers did not remove any cigarettes from the former's automobile.
Motions for a new trial on the ground of newly discovered evidence are not regarded with favor and are addressed to the discretion of the trial judge whose decision thereon will not be disturbed on appeal except for a clear showing of abuse of that discretion. Such discretion is to be exercised in determining the diligence shown, the truth of the matters stated and the materiality and probability of the effect of them, if believed to be true. People v. Richard, 101 Cal.App.2d 631, 635, 225 P.2d 938; People v. Weber, 149 Cal. 325, 350, 83 P. 671. Under the facts and circumstances present in the case now engaging our attention, we cannot say that the action of the trial judge amounted to an abuse of the wise discretion vested in him.
For the foregoing reasons, the judgment and the order denying defendant's motion for a new trial are, and each is affirmed.
DORAN, J., and DRAPEAU, J., concur.