People v. One 1957 Ford 2-Door, License No. MLS842, Serial No. D7FH165947

• Decision Date: 02 May 1960
• Citation: 180 Cal.App.2d 545,4 Cal.Rptr. 793
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. ONE 1957 FORD 2-DOOR, LICENSE NO. MLS 842, SERIAL NO. D7FH165947, Defendant, King Motor Company, a co-partnership, et al., Answering Claimants and Appellants. Civ. 23312.

Page 793

4 Cal.Rptr. 793

180 Cal.App.2d 545

PEOPLE of the State of California, Plaintiff and Respondent, v. ONE 1957 FORD 2-DOOR, LICENSE NO. MLS 842, SERIAL NO. D7FH165947, Defendant King Motor Company, a co-partnership, et al., Answering Claimants and Appellants.

Civ. 23312.

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

May 2, 1960.

R. D. Sweeney and John R. Y. Lindley, Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., Herschel T. Elkins, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment which forfeited the automobile in question to the State of California.

In this proceeding the People seek to forfeit the automobile, particularly described, because of the claim that it was used in violation of Section 11610 Health and Safety Code. The notice of seizure and intended forfeiture proceedings was directed to Joseph Olguin Gonzales, the registered owner, and King Motor Company, the legal owner. Gonzales defaulted. King Motor Company filed an answer denying that the car was used in violation of the narcotic laws.

On July 2, 1958, Officers Hector Garcia and Jose Castellanos of the Los Angeles Police Department were 'cruising and patrolling the area' in an unmarked police car at about six or seven o'clock in the evening, and saw two known female narcotic users standing at the partially opened door of the men's restroom of a service station located on the corner of First and Soto Streets. The police saw one 1957 Ford 2-door automobile, License Number MLS 842 'in the gas station parked by the pumps.' The police drove their car up the street, turned around and came back and drove into the gasoline station. Garcia heard one of the women who was then standing near the men's restroom door say 'Watch it. Here is the narcos.' 'Narcos' is slang for narcotics officers. The officers got out of their car and identified themselves as policemen whereupon the door to the restroom was slammed shut. Officer Garcia had a master key and opened up the door to where Joseph Gonzales was standing. The officers heard Gonzales flush the toilet. They searched Gonzales and found ten capsules of heroin on his person and placed him under arrest. The officers asked him where he had purchased the heroin and he said that he had bought it 'on Temple Street about half an hour prior.' The officer then asked Gonzales where his car was and he said 'it was parked by the pumps, by the gasoline pumps.' The question was then put to Gonzales, 'How did you get from Temple Street over here?' and Gonzales answered, 'In my automobile.'

Gonzales appeared to be under the influence of narcotics at the time of the arrest; there were fresh puncture marks on his arm and he was known to the police department as a user of narcotics. After the arrest Gonzales told the police in effect that he blamed them for picking him up and that he had 'turned himself in once before for care voluntarily and he was glad it was over.'

The heroin capsules were marked by the police and placed in envelopes for safe keeping. At the time of trial Officer Garcia at first stated that there were nine capsules of heroin found on the person of Gonzales and then corrected his statement to say that there were ten such capsules. The report of the police chemist showed that there were ten capsules delivered to him and the chemist testified that he analyzed the powder contained in such capsules and found it to be heroin. There was testimony that the capsules in evidence were the capsules taken from the possession of Gonzales. The capsules were marked by various identification marks by the various officers. A stipulation was entered into between counsel to the effect that the capsules might be returned to the police laboratory.

The investigation made by the legal owner of the car at the time of the purchase of the same by Gonzales was meager. At the trial the office manager of the appellant testified that she checked a customer's credit statement with reference to the purchase of the automobile. She further stated that she called and verified the employment of Gonzales but that she did not ask how long Gonzales had been employed. It was stated that the employer of Gonzales had stated that Gonzales was new with them and that they knew of nothing derogatory about Gonzales. The credit statement of Gonzales set forth that he had been with his last employer for six months which was untrue.

By stipulation the People introduced two statements of employers of Gonzales into evidence: the first statement had to do with Gonzales' employment for Nason Manufacturing Company from March 29, 1956 to August 10, 1956 and the second statement had to do with his employment which started on December 13, 1956. The car was purchased on December 26, 1956.

The value of the car on the date of the seizure was $3,566.50 which amount was less than the unpaid balance. Gonzales was delinquent in his payments on the car at the time of the seizure and the appellants were preparing to repossess the same. No check was made by the appellants with any of the persons listed by Gonzales as personal references and the first company named which had employed Gonzales was not even contacted by the appellants. The credit statement of Gonzales reflected that he made many other payments on contracts with other concerns in considerable amounts when the amount of his salary was considered. In other words, the appellant did not inquire about how long Gonzales had worked at his most recent employment, and they did not even consult with the named former employer. The judge stated that 'there was not an investigation nor compliance with the statute.' (Section 11620 Health and Safety Code.)

The appellants in their brief make no point of the judge's ruling in this respect except to mention it in their contentions. No authority is cited to support a view to the effect that the appellants did make a 'reasonable investigation of the moral responsibility, character and reputation' of Gonzales at the time of the purchase of the automobile.

We have, therefore, assumed that this phase of the case has been abandoned by appellants.

Appellants assert that it was error for the trial court:

(1) to find that the car sued upon was the property of Gonzales and that it was error to admit the statement of Gonzales as they were hearsay as to appellants;

(2) to find that the person arrested was Joseph Olguin Gonzales described in the pleadings;

(3) to find the following, because of insufficiency of the evidence: (a) that the car described in the pleadings was seized by the police officers on July 2, pending the outcome of the proceeding; (b) that on the issue of unlawful use, the car was used on July 2, 1957 to transport and convey heroin; (c) that the legal owner of the car failed to establish that a reasonable investigation as to the moral responsibility, character and reputation of the purchaser was made prior to the creation of the interest therein and without any knowledge that the car was being or was to be used for the purpose charged; (d) that on July 2, 1957 the car was being used by Joseph Olguin Gonzales, registered owner, to unlawfully conceal, convey, carry and transport heroin with full knowledge thereof;

(4) to admit into evidence the capsules containing heroin because there...