PEOPLE v. WEBB

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

PEOPLE of the State of California, Plaintiff and Respondent, v. George L. WEBB, Defendant and Appellant.

Cr. 5354.

Decided: July 05, 1966

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.

Procedural Background

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.

The Facts

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.

Double Jeopardy

 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 “defendant is tried but once when he is subjected to only one prosecution;  i.e., to but one criminal action although under modern rules of pleading and procedure that prosecution may be for different offenses, or different statements of the same offense, either alleged as separate counts of one accusatory pleading or in separate accusatory pleadings consolidated for trial.  (Penal Code, § 954.)”  (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:  “In a single criminal action (pleading any number of counts), no plea of guilty to, or order of dismissal or acquittal of, any separately pleaded offenses, included or otherwise, will bar the progress of that prosecution as to the other counts.   The prosecution on such other counts may continue until each, on its own merits, has been severally and finally disposed of by bringing the defendant to conviction and sentence or to acquittal.”  (Emphasis added;  p. 583, 21 Cal.Rptr. p. 212, 370 P.2d p. 1012.)   Applying this rule to the instant case we must hold that the acquittal of defendant on the transportation charge did not subsequently bar prosecution on the possession charge.   We do so upon the rationale of Tideman that since the People were authorized to charge both offenses in separate counts in the same accusatory might be included offenses, there was only one prosecution of defendant.   That prosecution commenced when the accusatory pleading was filed and continued until punishment was imposed on defendant on the possession charge of which he was convicted.   His acquittal on the transportation charge in the interim was merely a part of the same prosecution.   Accordingly, since defendant was subjected to only one prosecution he cannot avail himself of the double jeopardy defense.

We are not unmindful that Tideman held that, under the facts of that case, the abortion charge in count I of the information and the murder charge in count II were not included offenses, and that each offense had its own distinct and essential elements.   It is apparent, however, that under the rationale of Tideman the result would have been the same even if one of the offenses was included in the other.   After noting that neither of the offenses there charged stated as follows:  “Furthermore, it is obvious that we do not have ‘another’ prosecution for any offense;  we have only the one criminal action—a single prosecution the jeopardy bar does not arise as to any count by reason of the disposition of any other count.”  (P. 584, 21 Cal.Rptr. p. 213, 370 P.2d 1013.)

In view of the conclusion reached by us that the jeopardy bar did not arise in the instant case, we need not discuss defendant's contentions (1) that his failure to enter a double jeopardy plea should not be considered as a waiver of this defense because he was not afforded an opportunity to enter such a plea and (2) that he was deprived of the effective aid of counsel because his trial counsel did not urge this defense.4

Illegal Search and Seizure

 Defendant contends that the introduction into evidence of the various balloons and the packet containing heroin was error in that these items of evidence were obtained as a result of an illegal search.5  As to the search of defendant's car which Alves made at the scene of the arrest, which search led to the discovery of one balloon containing heroin, defendant contends that this search, which was made without a search warrant, was illegal in that (1) defendant's arrest was merely a pretext for searching his automobile, and (2) there was no pressing necessity for searching defendant's car since defendant was already in custody and his car under police guard.   And as to the other items containing heroin which were discovered in defendant's car after it had been towed to the police parking lot, defendant contends that since the search which produced these items was not incidental to his arrest, these items were the product of an illegal search under the rule announced in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, and People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67.

Considering first the legality of the search of defendant's car made at the time of his arrest, we conclude that since Alves and Carreker had probable cause to arrest defendant, they were entitled to search the car as an incident to a lawful arrest.

 Adverting initially to the propriety of defendant's arrest, we note that Alves and Carreker had probable cause to arrest defendant, primarily because they had received information via teletype that there was a warrant outstanding for his arrest, and also because of the circumstances attendant defendant's attempt to drive away in his car after Alves told defendant that he had a warrant for defendant's arrest and the latter's attempt to flee after his car had collided with another car.6  With respect to the teletype information that there was an outstanding arrest warrant for defendant, Alves and Carreker were justified in relying upon the trustworthiness of this information because it was received through official channels (People v. Kraps, 238 A.C.A. 791, 795, 48 Cal.rptr. 89;  People v. Hood, 150 Cal.App.2d 197, 201, 309 P.2d 856;  People v. Jackson, 202 Cal.App.2d 569, 574, 21 Cal.Rptr. 44;  People v. Stewart, 189 Cal.App.2d 176, 178;  10 Cal.rptr. 879;  People v. Schellin, 227 Cal.App.2d 245, 251, 38 Cal.Rptr. 593);  and they were entitled to make an arrest thereon even though they were not in possession of the outstanding arrest warrant (§ 842;  People v. Kraps, supra, 238 A.C.A. p. 795, 48 Cal.Rptr. 89, see also People v. Feeley, 179 Cal.App.2d 100, 105, 3 Cal.Rptr. 529;  People v. Stewart, supra, 189 Cal.App.2d p. 179, 10 Cal.Rptr. 879).   While the outstanding arrest warrant sufficed as a basis for the arrest, the existence of reasonable cause justifying the arrest is bolstered by the furtive and suspicious conduct attendant defendant's attempt to flee.   Assuming arguendo that the arrest could not be sustained solely on the basis of the information, when coupled with defendant's suspicious and furtive conduct, formed a combination of elements that supplied probable cause for defendant's arrest without a warrant.  (People v. Cedeno, 218 Cal.App.2d 213, 224–226, 32 Cal.Rptr. 246;  People v. Vegazo, 191 Cal.App.2d 666, 670–671, 13 Cal.Rptr. 22;  see People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57;  People v. Cisneros, 166 Cal.App.2d 100, 102, 332 P.2d 376.)

 Having concluded that defendant's arrest was lawful, we turn to a consideration of the legality of the search of defendant's care which immediately followed this arrest.   It is well established that a search which follows a lawful arrest is proper because it is incident to such arrest.   (People v. Torres, 56 Cal.2d 864, 866, 17 Cal.rptr. 495, 366 P.2d 823;  People v. Burke, supra, 61 Cal.2d 575, 580, 39 Cal.Rptr. 531, 394 P.2d 67;  People v. Loomis, 231 Cal.App.2d 594, 599, 42 Cal.Rptr. 124;  People v. Cedeno, supra, 218 Cal.App.2d p. 218, 32 Cal.Rptr. 246;  People v. Gilmore, 211 Cal.App.2d 35, 39, 27 Cal.Rptr. 59;  People v. Moulton, 210 Cal.App.2d 673, 676, 27 Cal.Rptr. 132.)   Defendant's contention that the Supreme Court's opinion in Burke prohibits a search of an arrestee's automobile incidental to arrest when there is no pressing necessity for that search constitutes a misapplication of the principles announced in Burke.   There the search which the Supreme Court held to be illegal in the absence of a search warrant was that of the defendant's car which was not incidental to the defendant's arrest.   It was specifically noted in Burke that the right to make a search without a search warrant as an incident to a lawful arrest is a recognized exception to the rule that, where officers are not responding to an emergency, there must be compelling reasons and exceptional circumstances to justify a search in the absence of a search warrant.  (See United States v. Rabinowitz, 339 U.S. 56, 60–61, 70 S.Ct. 430, 94 L.Ed. 653;  In re Dixon, 41 Cal.2d 756, 761–762, 264 P.2d 513.) 7  As noted in Burke, “The right to make a contemporaneous search without a warrant upon lawful arrest extends to things under the accused's immediate control and, to an extent depending upon the circumstances, to the place where he is arrested.”  (61 Cal.2d pp. 579–580, 39 Cal.Rptr. p. 533, 394 P.2d p. 69.)

Defendant also argues that the initial search of his automobile was illegal because his arrest was merely a pretext for the search.   The basis for this contention is the fact that the officers who arrested defendant were attached to the Narcotics Detail of the Oakland Police Department and not to the Burglary Detail of said Department;  that Alves had stopped defendant on two different occasions prior to the instant arrest, searching him one of these times;  and that, according to defendant's testimony, Alves, in talking to defendant while the latter was sitting in his parked car, called defendant “dirty.”   This argument is without merit.   We are unaware of any authority, nor has defendant cited any, for the proposition that a narcotics officer cannot execute a warrant of arrest for an offense unrelated to narcotics.   We cannot comprehend, moreover, how the fact that Alves had previously stopped defendant and searched him impels the inference that defendant's arrest in the instant case was merely a pretext for a search;  nor can we perceive that such conclusion is warranted merely because Alves, as testified by defendant, called defendant “dirty.”

In view of the foregoing, we conclude that the search which Alves made of defendant's car upon arresting defendant was legal and that the trial court did not err in allowing the balloon and its contents which were discovered as a result of this search to be admitted into evidence.   We now turn to the more difficult question which has to do with the legality of the search of defendant's automobile made after it had been towed to the police garage.

 In Preston v. United States, supra, 376 U.S. 364, 84 S.Ct. 881, it was held that a search made under the following circumstances was too remote in time and place to have been made as incidental to the arrest and failed to meet the test of reasonableness under the Fourth Amendment to the United States Constitution:  The defendant and two companions, who were sitting in a parked car, were arrested for vagrancy, searched for weapons and taken to police headquarters;  the car was not searched at the time of the arrest, but was driven by a police officer to the police station and then towed to a garage;  soon after the arrestees had been booked at the station, some of the officers went to the garage, conducted a search of the car, and found various articles which could be used in the commission of a crime;  in a subsequent trial for conspiracy to rob a bank these articles were admitted in evidence over objection.   Similarly in Burke two men were arrested because of their unsatisfactory explanations of suspicious circumstances.   The automobile they had been driving was towed to the police impound and a search made of the trunk of the car, the search revealing articles taken in a burglary earlier that day.8  This search, which was made without a search warrant, was held to be unlawful because it was too remote in time and place to be treated as incidental to arrest, even though the arresting officers had made an attempt to search the trunk at the time of arrest, but were unable to do so because the keys in the defendant's possession at that time did not open the trunk.

We perceive little, if any, distinction between the facts in the instant case and those in Preston and Burke.   Accordingly, we are constrained to hold that the rationale of those cases is applicable here and, therefore, that the subject search was too remote in time and place to be treated as a search incidental to arrest.   Since the search of the car in the police parking lot was not incidental to the arrest and was made without a warrant it was unlawful and the evidence obtained as a result of such search was improperly admitted.   This conclusion, compelled by the rationale of Preston and Burke, negates the argument advanced by the People in the instant case that the search which was made of defendant's car at the parking lot was merely a continuation of the initial legal search and that, as such, this second search may also be properly characterized as incidental to defendant's arrest.   This circumstance, namely, that the arresting officers made a search of defendant's automobile at the time of the arrest, was also present in Burke.   Moreover, the contention is put to rest by the statement in Preston that “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.  [Citation.]”  (P. 367, 84 S.Ct. p. 833.)   As indicated in both Preston and Burke, the right to make a contemporaneous search without a warrant is justified by such factors as the need to seize weapons which might be used to assault an officer and the need to prevent the destruction of evidence of the crime.   It was pointed out in those cases that such considerations are not present after the arrestee has been taken into custody, and, particularly where the arrestee's vehicle is in police custody and there is no danger that it will be moved out of the locality or jurisdiction.  (See Preston v. United States, supra, pp. 367–368, 84 S.Ct. 881;  People v. Burke, supra, 61 Cal.2d pp. 579–580, 39 Cal.Rptr. 531, 394 P.2d 67.)

The cases which the People cite in support of their contention that the subject search was part of a single transaction initiated at the time of arrest and culminating with the search in the police parking lot are actually supportive of the conclusion herein reached by us.   In People v. Evans, 240 A.C.A. 301, 49 Cal.Rptr. 501, the search of the trunk of a car was made at the time of arrest and contemporaneously therewith.   That search disclosed an outboard motor, which because of its size was not removed until the car had been driven to the police station.   This circumstance was held not to have detracted from the legality of the search and ensuing seizure “made at the scene of the arrest.”  (Emphasis added;  p. 309, 49 Cal.Rptr. p. 506).   Similarly, in People v. Robertson, 240 A.C.A. 100, 49 Cal.Rptr. 345, the later opening at the police station of a locked bag seized at the defendant's apartment when he was arrested was held not to be too remote in time and place from the arrest because the bag had been lawfully seized during a lawful search of the premises under circumstances furnishing the police with reasonable cause to believe that the bag might reveal incriminating evidence.   Accordingly, it was determined by the reviewing court that the place where the bag was opened was of “no legal consequence.”  (P. 106, 49 Cal.Rptr. 345.)   Again, in People v. Green, 235 Cal.App.2d 506, 45 Cal.Rptr. 371, the search of the appellant's car took place approximately an hour after the appellant had been arrested in a parking area outside a store and delivered into the custody of police officers by the store's security officer, the intervening time having been consumed in locating the appellant's car which was found in an adjoining parking lot.   It was there held that the search was conducted at the place of arrest and was “essentially contemporaneous in time.”  (P. 513, 45 Cal.Rptr. 371.)   In People v. Robinson, 62 Cal.2d 889, 44 Cal.Rptr. 762, 402 P.2d 834, the defendant was lawfully arrested when the car in which he was riding as a passenger was stopped directly in front of a police station.   The defendant was taken inside the police station and while he was being booked for drunkenness an officer was assigned to search the car.   The search was held not too remote in time or place to have been made as incidental to arrest because “the police conducted their search at the place of arrest i.e., in front of the police station, at a time virtually contemporaneous to that of arrest.”  (P. 895, 44 Cal.Rptr. p. 766, 402 P.2d p. 838.)   Robinson equated the situation of the defendant being taken a few steps into the interior of the police station with the situation of an arrestee being ordered by the police to stand in front of his car while they conduct a search of the car.

Instructions to the Jury

 Defendant contends that the trial court erred in giving the instructions relating to circumstantial evidence at the commencement of the trial without repeating these instructions at the conclusion of the trial.   The procedure adopted by the court in the giving of instructions was as follows:  At the commencement of the trial the court told the jury that it would at that time give the jury some general instructions which would not later be repeated but which should be considered by the jury in deliberating upon its verdict.   In addition the court stated that it would later give the jury some additional instructions and that in deliberating upon a verdict the jury should consider all of the instructions as a whole.   The court then proceeded to instruct the jury as to their role as jurors, the kinds of evidence and how each kind was to be considered by the jury, and how the jury should judge witnesses and weigh their testimony.   At the conclusion of the trial, following argument on behalf of the prosecution and the defense, the court gave the jury further instructions.   However, before giving those instructions the court reminded the jury that in addition to those instructions, it was to consider the instructions which the court had given the previous day at the commencement of trial.

Section 1093, which sets forth the order of proceedings at trial, prescribes the manner of giving instructions as follows:  “ * * * 6. The judge may then [following argument by the prosecution and the defense] charge the jury, and must do so on any points of law pertinent to the issue, if requested by either party;  * * *.   At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as he may deem necessary for their guidance on hearing the case.  * * * ” It is apparent from this statutory language that the trial court is authorized to give instructions on the law applicable to the case at the beginning of the trial.   This procedure was approved in People v. Jones, 184 Cal.App.2d 464, 473, 7 Cal.Rptr. 424, 429,9 wherein the court stated:  “Calling the attention of the jury at the commencement of the trial, to legal problems to be met, if fairly done, may be of great value in enabling the jury to understand the purpose and thus properly evaluate various bits of the evidence.   The law authorizes it.  [Citation.]”

 It should be noted that under the language of subdivision 6 of section 1093 which states that the “judge may then charge the jury, and must do so on any points of law pertinent to the issue, if requested by either party” (emphasis added), it is not mandatory that the court instruct the jury at the conclusion of the trial in every instance.   Rather it is clear from the statute that the court is only required to instruct at the conclusion of the trial in the situation where it has been requested by either party to instruct “on any points of law pertinent to the issue * * *.”   However, as to those instructions which the court is required to give on its own motion even though not requested by the parties—namely, instructions on the general principles of law governing the case (People v. Atwood, 223 Cal.App.2d 316, 331–332, 35 Cal.Rptr. 831;  People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116;  People v. Putnam, 20 Cal.2d 885, 890, 129 P.2d 367;  People v. Jones, 225 Cal.App.2d 434, 437, 37 Cal.Rptr. 406;  People v. Bernhardt, 222 Cal.App.2d 567, 591, 35 Cal.Rptr. 401)—these instructions may, under the language of section 1093, be given by the court “At the beginning of the trial or from time to time during the trial.  * * * ”   Accordingly, in the instant case since the instructions which the trial court gave at the commencement of the trial dealt with general principles of law governing the case, it is clear that the court was entitled to give these instructions at this time rather than at the conclusion of the trial.

 Assuming arguendo that it is mandatory that all relevant instructions be given at the conclusion of the trial, we do not think that the procedure followed by the court in the instant case resulted in defendant's prejudice so as to require a reversal of his conviction.   Defendant concedes that the substance of the instructions given by the court on the subject of circumstantial evidence was a correct statement of the law.   He argues, however, that because of the importance of instructions on circumstantial evidence in the instant case, and because “The presentation of additional instructions at the conclusion of the trial would tend only to diminish whatever memory might remain of the instructions given at the commencement of the trial,” it was prejudicial error for the trial court to give the circumstantial evidence instructions at the commencement of the trial without repeating them at the conclusion of the trial.   We are of the opinion, however, that in view of the fact that that trial court informed the jury both at the commencement and the conclusion of the trial that it was to consider as a whole the instructions given at both of these times no prejudice resulted to defendant due to the manner in which the jury was instructed.

Summary

 In view of the foregoing, the outcome of this appeal turns upon a determination of whether the improperly admitted evidence resulted in prejudice to defendant.   We are satisfied that defendant's conviction can be sustained solely on the basis of the properly admitted evidence consisting of the heroin contained in the red balloon found in defendant's car during Alves' search at the time of arrest.   The crime of possession of narcotics is established when it is shown that the accused had physical or constructive possession with actual knowledge of the presence of the narcotic substance and knowledge of the narcotic character of the article possessed.  (People v. Winston, 46 Cal.2d 151, 160–161, 293 P.2d 40;  People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255;  People v. Melendez, 225 Cal.App.2d 67, 70, 37 Cal.Rptr. 126;  People v. Bowens, 229 Cal.App.2d 590, 594, 40 Cal.Rptr. 435, 439.)  “The fact of knowledge may be proved circumstantially, and it may be inferred from other facts” (People v. Bowens, supra, p. 596, 40 Cal.Rptr. p. 439;  People v. Mateo, 171 Cal.App.2d 850, 855, 341 P.2d 768;  People v. Magdaleno, 158 Cal.App.2d 48, 51, 322 P.2d 89;  People v. Groom, 60 Cal.2d 694, 696–697, 36 Cal.Rptr. 327, 388 P.2d 359), and such knowledge may be established by other incriminating circumstances such as conflicting statements, admissions, previous use of narcotics, or furtive conduct (People v. Torres, 98 Cal.App.2d 189, 192–193, 219 P.2d 480;  People v. Neely, 183 Cal.App.2d 403, 405, 6 Cal.Rptr. 488;  People v. Tennyson, 127 Cal.App.2d 243, 246, 273 P.2d 593;  People v. MacCagnan, 129 Cal.App.2d 100, 105, 276 P.2d 679;  People v. Baltazar, 159 Cal.App.2d 595, 598, 323 P.2d 1062;  People v. Bean, 149 Cal.App.2d 299, 302, 308 P.2d 27;  2 Witkin, California Crimes (1963) § 705, pp. 642–643).   In this regard, it is established that evidence of flight is a circumstance tending in some degree to prove consciousness of guilt.   (People v. Anderson, 57 Cal.App. 721, 727, 208 P. 204;  People v. Moore, 211 Cal.App.2d 585, 600, 27 Cal.Rptr. 526;  People v. Waller, 14 Cal.2d 693, 702, 96 P.2d 344;  People v. Cooper, 81 Cal.App.2d 110, 116, 183 P.2d 67;  People v. Santo, 43 Cal.2d 319, 327, 273 P.2d 249;  People v. Dabb, 32 Cal.2d 491, 500, 197 P.2d 1.)

 In the case at bench the fact that the red balloon was found on the floorboard of the front of the car in close proximity to the driver's seat was in itself circumstantial evidence of defendant's knowledge of the presence of the narcotic substance, particularly since he was the owner of the car and its driver and sole occupant at the tie of the arrest.  (See People v. Neal, 122 Cal.App.2d 749, 751, 265 P.2d 525;  People v. Grayson, 172 Cal.App.2d 372, 378, 341 P.2d 820;  People v. Estrada, 185 Cal.App.2d 435, 438, 8 Cal.Rptr. 308.)   Moreover, proof of access to the subject vehicle, together with the circumstance of defendant's flight and attempt to evade arrest, indicative of a consciousness of guilt, satisfied the element of knowing possession.10  (See People v. Torres, supra, 98 Cal.App.2d 189, 193, 219 P.2d 480;  2 Witkin, supra.)   Such flight and attempt to avoid arrest also had the effect of satisfying the element of knowledge of the narcotic character of the substance in the red balloon.  (See People v. Tennyson, supra, 127 Cal.App.2d p. 246, 273 P.2d 593;  People v. MacCagnan, supra, 129 Cal.App.2d p. 105, 276 P.2d 679;  People v. Baltazar, supra, 159 Cal.App.2d p. 598, 323 P.2d 1062;  People v. Groom, supra, 60 Cal.2d p. 697, 36 Cal.Rptr. 327, 388 P.2d 359.)

 At oral argument defendant advanced the further contention that the evidence in the present case was insufficient to sustain a conviction in view of the recent Supreme Court decisions holding that where the prosecution proves no more than the defendant's possession of traces of narcotics it must show that such residue was usable for consumption or sale.  (See People v. Leal, 64 A.C. 529, 50 Cal.Rptr. 777, 413 P.2d 665, and People v. McCarthy, 64 A.C. 538, 50 Cal.Rptr. 783, 413 P.2d 671.)   In the instant case the prosecution proved by the testimony of the forensic chemist that the subject red balloon “contained .43 grams of a powder, and that there was heroin in this powder.”   This witness testified, moreover, that he ran a qualitative but not a quantitative test of the amount of heroin contained in the balloon.   We judicially notice that the total quantity of powder in this balloon, which amounted to approximately one-half a gram, was the equivalent of approximately .017 of an ounce.   Although this circumstance might well indicate, in view of the fact that a quantitative test of heroin was not made, that the powder contained only traces of heroin, the forensic chemist did testify that heroin, as generally used by narcotic addicts, is “cut” by mixing it with a powdery substance.   He also testified that the subject balloon contained five or ten times the amount of powder typically contained in a bindle or “paper,” the usual measure used in the narcotic traffic.   This testimony would, in our opinion, suffice to allow the inference that the trace or residue contained in the powder was usable for sale or consumption.   However, since, as we shall hereinafter discuss, this case must be reversed, the presence of the necessary factual elements required by Leal and McCarthy may be inquired into and ascertained in the event the evidence discloses a minute residue or trace of narcotics.

Adverting to the items discovered as a result of the search at the police parking lot—namely, an orange balloon found on the floor behind the driver's seat and four balloons and a white paper packet found on the rail of the convertible top above the driver's door—the forensic chemist testified that these items contained an aggregate of 2.03 grams of powder and that this powder “contained heroin.”   When we consider this amount of powder (2.03 grams) as against the less than one-half gram (.43 grams) found in the balloon recovered in the first search, we must conclude that there is a reasonable possibility that the trier of fact, but for the admissibility of the products of the second search, would have reached a result more favorable to defendant.   Accordingly, we must, under Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, hold that the admission of the items found as a result of the search of defendant's car in the parking lot was prejudicial and warrants a reversal.   The conclusion we have reached is impelled primarily by the circumstance that since defendant's defense was predicated upon a denial of knowledge of the presence of narcotics in his car, there is a strong likelihood that this defense was rejected because the jury was not inclined to believe that a person could be oblivious to the presence of as many items as the second search revealed, particularly when these items were located in two different places in his automobile.   It is reasonably possible, in the instant case, that had the jury been restricted to a consideration of the narcotic in the red balloon found at the time of arrest, it would have believed defendant's testimony that he had no knowledge of the presence of narcotics in his car, particularly in view of the fact that the evidence adduced by the prosecution to show defendant's knowing possession of the narcotic and knowledge of its narcotic character was substantially circumstantial in nature.

The judgment is reversed.

FOOTNOTES

1.   Although the officers' testimony reveals nothing as to the nature of this warrant, it was brought out in a colloquy between counsel and the court outside the presence of the jury that the warrant was for burglary.

2.   The record does not disclose the time at which the search by Alves and Carreker took place in the police parking lot.   However, we note the following evidence relating to this issue:  Burke testified that he arrived at the scene of the arrest after defendant had been arrested and that the ambulance arrived about five minutes later;  Alves testified that he rode in the ambulance with defendant to the Alameda County Hospital and that he remained there about 15 minutes and then went to the Vice Control Office and from there to the police lot;  and Burke testified that Alves came to the parking lot about 15 minutes after Burke's arrival there.

3.   Unless otherwise indicated all statutory references are to the Penal Code.

4.   Among the pleas authorized by § 1016 are those relating to double jeopardy.  (Subds. 4 and 5.)   Failure of a defendant to set up the special plea prescribed by this section has been held to constitute a waiver of the defense.  (People v. Gomez, 229 Cal.App.2d 781, 784, 40 Cal.Rptr. 616;  People v. Venturi, 196 Cal.?App.2d 244, 245, 16 Cal.rptr. 505;  People v. Rogers, 150 Cal.App.2d 403, 415, 309 P.2d 949;  People v. Garcia, 166 Cal.App.2d 141, 144–145, 333 P.2d 69.)   AS to defendant's contention that he had no opportunity to enter a plea of double jeopardy in the trial court, the record discloses that defendant and his counsel appeared in court at least twice before the retrial on the possession charge commenced.   On either of these occasions defendant could have entered a plea of double jeopardy.

5.   The record discloses that no objection was made to the admission of this evidence when it was presented and offered in evidence.   The record does disclose, however, that during a colloquy between counsel and the trial court outside the presence of the jury at the commencement of the trial relative to the issue of search and seizure counsel for defendant stated:  “My objection goes to unconstitutional invasion of the Defendant's right to be free from unreasonable searches and seizure.  * * * May I just ask, Your Honor, the search and seizure question, as to whether he had a right to stick his hand in the door, in the window, and the subsequent events are ruled upon adversely by Your Honor;  is that correct.”   (Emphasis added.)   To this last query the court responded:  “Yes.”   The broad nature of the objection and the emphatic ruling of the court justifies the conclusion, in view of the fundamental constitutional question involved, that it was deemed by the parties and the court that a continuing objection was made to the admission of this evidence on the ground of illegal search and seizure.   Accordingly, we shall consider that a proper objection to the admission into evidence of the subject items was in fact made.

6.   Although defendant's testimony that the movement of his care was accidental and that he at no time attempted to flee created a conflict in the evidence on these points, it was incumbent upon the trial court to resolve this conflict in making its determination, as as matter of law, as to the legality of the arrest and the resultant search and seizure.  (See People v. Gorg, 45 Cal.2d 776, 780–781, 291 P.2d 469.)

7.   It should be noted that the Supreme Court, in Burke, specifically upheld an earlier search made of the defendant's car at the time of his arrest on the ground that that search was incidental to the defendant's arrest.

8.   The opinion indicates that the search was made sometime prior to 3 p.m. on the day of the arrest, the arrest having taken place at approximately 6:30 a.m.

9.   The opinion in that case does not indicate whether the instructions given at the commencement of the trial were repeated at the conclusion of the trial, or whether, at the conclusion of the trial, the jury's attention was called to the preliminary instructions.

10.   In this regard the conflict in the testimony as to whether defendant did in fact attempt to flee was for the resolution of the jury as the trier of fact.

MOLINARI, Justice.

SULLIVAN, P.J., and SIMS, J., concur.