People v. Label

Opinion

A jury found appellant guilty of violating section 11912 (now 11352) of the Health and Safety Code (unlawful administration of a restricted dangerous drug). Judgment entered, he was sentenced to prison for the term prescribed by law. He appealed.

The charge arose out of the following facts:

Rebecca Rickel (18 years of age) was arrested on November 6, 1972 for possession of dangerous drugs (barbiturates (“yellows”) and codeine). While in custody, she apparently adopted a cooperative attitude and wrote a statement of her activities during the weekend preceding her arrest. She also responded to interrogation by several officers and her statements were taken down in shorthand. She executed an affidavit that was either written by her or prepared by the sheriff’s office from the information secured at the interrogation. The affidavit, dated November 10, alleged that appellant had

A search of the cabin discovered needles and hypodermic syringes in a waxed paper bag and “some tablets” under the front bottom of the refrigerator, where the affidavit stated she had seen David Johnson place them. A rent receipt issued to appellant and Johnson was also found. After the first witness had testified and at the commencement of the afternoon session of the first day of trial, appellant moved to suppress all evidence that was seized pursuant to the search. It was argued that the warrant was issued solely upon the affidavit of Ms. Rickel and that in the absence of an affirmative showing of her reliability there was no probable cause for the search. The motion was denied.

Appellant contends that Rickel was an accomplice as a matter of law and that the trial court erred in not giving sua sponte instructions concerning the necessity of corroboration of accomplice testimony. We find no merit in this contention because section 1111 of the Penal Code defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” Rickel could no more be charged with “administering” than a buyer of marijuana or other restricted substance may be charged with “selling.” The purchaser is not an accomplice of the ■seller either as to illegal possession or as to sale. (People v. Galli (1924) 68 Cal.App. 682 , 684-685 [ 230 P. 20 ]; People v. Mimms (1952) 110 Cal.App. 2d 310 , 314 [ 242 P.2d 331 ]; People v. Hernandez (1968) 263 Cal.App.2d 242 , 247-248 [ 69 Cal.Rptr. 448 ].) Hernandez points out that purchasers could not be prosecuted for selling a forbidden narcotic to themselves (p. 248).

In Health and Safety Code section 11352 (“every person who . . . sells, furnishes, administers, or gives away” etc.) it is obvious that the word “administers” is used as defined in Webster’s Third International Dictionary: “2a: to mete out; Dispense.” One cannot “sell’’ or “give away” to him

In People v. Galli, supra, 68 Cal.App. at page 685, in discussing the Connecticut counterpart of Penal Code section 31, the court quotes with approval the following language: “The ‘abetting’ intended by it is a positive act in aid of the commission of the [defined] offense—a force, physical or moral, joined with that of the perpetrator in producing it. . . . The abettor, within the meaning of the statute, must stand in the same relation to the crime as the criminal—approach it from the same direction, touch it at the same point.” The recipient of the injection is not a participant in the criminal act of administering in the same sense that the willing, if “passive,” participant in sexual crimes participates in the proscribed act (clearly forbidden to both participants) and is therefore subject to prosecution, as held in People v. Bond (1955) 136 Cal.App.2d 572 [ 289 P.2d 44 ], People v. Siegel (1934) 2 Cal.App.2d 620 [ 38 P.2d 450 ] and People v. Cox (1951) 102 Cal.App.2d 285 [ 227 P.2d 290 ]. In addition to the cases cited supra holding that the purchaser of narcotics is not an accomplice to either the sale or possession of the seller, analogous conclusions were reached in abortion cases where the aborted woman has been held not to be an accomplice even though she procured the purchase of a catheter and other paraphernalia required by a defendant abortionist. (People v. Alvarez (1946) 73 Cal.App.2d 528 [ 166 P.2d 896 ]; cf. People v. Wilson (1944) 25 Cal.2d 341 [ 153 P.2d 720 ]; People v. Clapp (1944) 24 Cal.2d 835 [ 151 P.2d 237 ].)

Subdivision (h) of section 1538.5 provides: “If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial . . .” The existence of the affidavit and its use in procuring the search warrant was succinctly referred to at the preliminary. It cannot be said that appellant was not aware of the affidavit and that opportunity to make his motion to suppress did not exist prior to the commencement of the trial. The denial of the motion as not timely was warranted. (People v. Superior Court (1971) 4 Cal.3d 605 , 610 [ 94 Cal.Rptr. 250 , 483 P.2d 1202 ].)

Appellant further claims that counsel’s neglect to make the motion reduced the trial to a farce and sham and cites People v. Aikens (1969) 70 Cal.2d 369 [ 74 Cal.Rptr. 882 , 450 P.2d 258 ] and People v. Martinez (1974) to support his contention. Aikens is inapplicable. The decision in Martinez was rendered by the Court of Appeal of the State of California, Third Appellate District on January 3, 1974, being numbered Crim. 6998, and a hearing was granted by the' Supreme Court on March 13, 1974 and is now pending in that court. Compliance with all of the procedures regulating the issuance of a search warrant were meticulously observed by the police authority in the case at bench. The affiant Rickel was taken before the issuing magistrate who had opportunity to observe her demeanor and to question her. Her affidavit contained admissions of illegal possession of drugs and set forth in specific detail her personal observation of criminal activity as well as incriminating statements she had heard appellant make. When a search warrant is issued by a judge before whom a confidential informant had appeared, “the question is not whether the informant was reliable but whether the magistrate could reasonably rely upon the information supplied to him under the circumstances.” (People v. Sanchez (1972) 24 Cal.App.3d 664 , 676 [ 101 Cal.Rptr. 193 ].)

Appellant contends that he was denied due process in violation of the Sixth Amendment because the trial court sustained Rickel’s invocation of the Fifth Amendment, thereby restricting or limiting cross-examination as to her use, possession or sale of drugs before November 3, 1972. Pursuant to Penal Code section 1324 the court had entered its order granting immunity from prosecution on any drug offenses she was involved in during the period November 3 to 6, 1972, in exchange for her testimony as to events during that time. Oh cross-examination, she asserted her Fifth Amendment privilege as set out in footnote 1 which we append post, at page 776. Appellant argues another instance wherein an objection was placed by the prosecution to a question that went to the substance of what the witness had told the probation officer, apparently during an interview in connection with her probation report. The objection was predicated upon the confidentiality of such conversations and was properly sustained. The invocation of the Fifth Amendment privilege was not involved.

It is the burden of the defense to challenge such invocation. Where challenged, the invocation of the privilege calls for a determination of legal and factual issues. (Witkin, Cal. Evidence (2d ed.) p. 832.) Where a question is one that is incriminating on its face, no difficulty is presented. If it does not clearly call for an incriminating answer, the court must determine the danger of incrimination and rule in favor of or against the privilege. (Witkin, supra, at p. 869.) The record here shows no challenge was made nor any request that the court require answer to questions that drew the claim of

Appellant now contends that “where significant question was raised at sentencing as to the potential bias of the diagnostic report, the trial court’s pronouncement of sentence was arbitrary and a violation of the Sixth Amendment due process right to confrontation.” But defendant did not ask that any counselor or member of the corrections staff be produced for cross-examination. The point not having been properly raised in the trial court cannot be considered on appeal. (People v. Clements (1962) 202 Cal.App.2d 284 , 287 [ 20 Cal.Rptr. 766 ]; People v. Walker (1968) 266 Cal.App.2d 562 , 567-568 [ 72 Cal.Rptr. 224 ].) Again, because of the claim of inadequate representation, we comment that we cannot fault trial counsel for not making such request. The diagnostic report is fair on its face and the adverse recommendation is explained in detail. Further, the record also shows that the probation officer had first recommended probation but changed that recommendation the next day because an updated arrest record, not available when the first recommendation was made, showed that on January 22, 1973 (with the present charges pending), appellant had been granted probation for a three-year term for a Health and Safety Cod e section 11530 violation that had occurred less than one month before the present involvement. But 17 days after this grant of probation appellant was arrested in Contra Costa County for drunk driving and possession of narcotics. The second recommendation was for sentencing pursuant to Penal

The judgment is affirmed.

Draper, P. J., and Brown (H. C.), J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied February 19, 1975.

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