People v. Jasso

• Citation: 2 Cal.App.3d 955,82 Cal.Rptr. 229
• Decision Date: 04 December 1969
• Docket Number: 16022,Cr. 15590
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frederick JASSO, Defendant and Appellant. In re Frederick JASSO on habeas corpus.

Page 229

82 Cal.Rptr. 229

2 Cal.App.3d 955

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frederick JASSO, Defendant and Appellant In re Frederick JASSO on habeas corpus.

Cr. 15590, 16022.

Court of Appeal, Second District, Division 5, California.

Dec. 4, 1969.

As Modified on Denial of Rehearing Dec. 30, 1969.

Hearing Denied Jan. 28, 1970.

Fred Kilbride, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Frederick Jasso.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent People of the State of California.

AISO, Associate Justice.

Frederick Jasso, defendant and appellant in superior court cases Nos. A--228982 and NDA--8728 and the subject of the habeas corpus proceedings, was an outpatient from the California Rehabilitation Center (CRC) on January 2, 1968. He had been committed (Welf. & Inst.Code, § 3051), to the CRC following his conviction for illegal possession of heroin (Health & Saf. Code, § 11500), but had been released on outpatient status on October 11, 1967.

On January 2, 1968, Allan H. Wiggenhorn, a state parole agent, received a telephone call from a person identifying himself as Arthur Garcia. Garcia stated that Jasso lived at a certain address in Los Angeles and inquired whether Jasso was under the supervision of that particular parole office.

Wiggenhorn checked the office files and ascertained that Jasso was a person under supervision of his office. He further found in the file a report that Jasso's present whereabouts was unknown, that he was 'an absconder' 'in violation of his parole' who had failed to report for a narcotics' testing in November 1967, and who had changed his residence without his supervising agent's approval. The file also included an all-points bulletin for Jasso which the Narcotic Addict Evaluation Authority (Welf. & Inst.Code, § 3150) had put out.

Jasso's supervising agent, Sexton, was ill and unavailable on that date. So Wiggenhorn contacted the police and his assistant office supervisor, and decided to go out to apprehend Jasso. He and another parole agent met with two police officers about two blocks away from Jasso's residence around 6 p.m. that evening. They had a description of the residence on Hyde Park Terrace where Jasso was reportedly living, but not the exact house number. They also had a description of the car Jasso was reported to be driving. As they were searching the neighborhood, Jasso walked out of a house and got into the car which tallied with the description which Wiggenhorn had. Wiggenhorn approached him and inquired, 'Are you Mr. Jasso?' When Jasso replied, 'yes,' he was taken into custody. A search of the car revealed no incriminating evidence.

At one point during this arrest and search, Jasso called out just his wife's name, 'Teresa,' in a very loud voice. Thereupon Wiggenhorn proceeded immediately to the house which Jasso had told him was his residence. He estimated that the distance between the point of Jasso's arrest and the house was around 30 feet. Jasso testified that it was around 100 feet.

Wiggenhorn knocked on the door. A person who identified herself as Mrs. Jasso opened the door. Wiggenhorn identified himself and ascertained that she knew of Mr. Sexton. He told her, 'I am from Mr. Sexton's office, and we have taken your husband into custody, and it is my duty to search your home.' He was standing right at the threshold of the door, which Mrs. Jasso had opened. Mrs. Jasso made no statement in response to Wiggenhorn's representation resentation before he entered the residence. After he told her that he was 'coming in' and that he 'was going to search the premises,' he and the two police officers entered the residence. The other parole agent remained outside with Jasso, but eventually came in after some time had elapsed.

The search of the apartment turned up the real evidence upon which the People instituted two separate criminal actions: (1) No. A--228553 for illegal possession of heroin for sale (Health & Saf.Code, § 11500.5), and (2) No. A--228982 for two counts of burglary (Pen.Code, § 459) and one count of receiving stolen property (Pen.Code, § 496). Convictions in both criminal actions led to a single consolidated narcotics addiction commitment proceeding (No. NDA--8728) which culminated in defendant's commitment to the California Rehabilitation Center (CRC) as a narcotic addict (Welf. & Inst.Code, § 3051 et seq.)

No reason appears in the record why the two criminal actions growing out of one search and seizure were not consolidated for the trial court proceedings, except that No. A--228553 was filed about two weeks earlier than No. A--228982 and that defendant was represented by a privately retained counsel in the former and by a public defender in the latter.

A. No. A--228553:

The information was filed on January 24, 1968. On February 8, 1968, in department 72 of the superior court, defendant's motions under sections 995 to set the information aside and 1538.5 to suppress evidence were denied. No pretrial review of the denials was sought by way of extraordinary writs.

The case was transferred for trial to department 109, where it was tried to the court sitting without a jury upon the transcript of the preliminary hearing. On March 21, 1968, the court found defendant guilty as charged. On April 11, 1968, the court denied defendant's motion for a new trial, adjourned criminal proceedings, and referred defendant to department 95 of the superior court pursuant to section 3051 of the Welfare and Institutions Code.

Department 95 committed defendant to the CRC as a narcotic addict on April 25, 1968, as shall be more fully explained below.

No appeal from the order denying defendant's motion for new trial was taken. Court-appointed appellate counsel seeks a review of this criminal conviction by a petition for a writ of habeas corpus, which this court ordered to be consolidated for purposes of hearing with the appeals from No. A--228982 and No. NDA--8728.

B. No. NDA--8728:

Following the reference of defendant to it under case No. A--228553, department 95, Commissioner James B. Reese, judge pro tempore of the superior court, presiding, ¹ by its order made on April 25, 1968 (but not entered until April 29, 1968) committed defendant to the CRC. Review of this order of commitment is sought by virtue of a notice of appeal filed by a deputy public defender. ²

After defendant's conviction in No. A--228982 and his reference to department 95, that department on May 7, 1968, ordered the petition upon which the proceedings were commenced to be amended to reflect a conviction for a Penal Code section 496 violation in addition to the Health and Safety Code section 11500.5 violation. Defendant seeks review of this order by way of the notice of appeal filed in the criminal action No. A--228982, infra, which characterized the order of May 7, 1968, as one 'committing defendant to the CRC.'

C. No. A--228982:

The information in this case was filed February 6, 1968, and later amended to charge a previous conviction for a violation of section 11500 of the Health and Safety Code. On April 16, 1968, department 74 of the superior court denied defendant's motion to suppress evidence under section 1538.5 of the Penal Code. No pretrial review by way of petition for an extraordinary writ was sought.

Following defendant's commitment on April 25, 1968, to the CRC (No. NDA--8728) under proceedings stemming from the other criminal action (No. A--228553), defendant then on May 3, 1968, pleaded 'guilty' to count III (receiving stolen property) in this case. The allegation of a prior felony conviction was ordered stricken and defendant was referred to department 95 pursuant to section 3051 of the Welfare and Institutions Code.

On May 6, 1968, department 74 made another order which ordered the criminal proceedings in this case adjourned ³ and the defendant referred to department 95, and which also showed defendant's commitment to the CRC on April 25, 1968, in case No. NDA--8728. ⁴

On May 14, 1968, the judge presiding in department 74 issued a certificate of probable cause, purportedly pursuant to section 1237.5, subdivision (b), of the Penal Code, which reflected that the court's denial of defendant's motion to suppress evidence made under section 1538.5 of the Penal Code raised a constitutional question.

On May 16, 1968, the deputy public defender filed a notice of appeal indicating that defendant was appealing from (1) his guilty plea, (2) the order of April 16, 1968, denying his motion made under Penal Code section 1538.5, (3) the judgment of conviction, (4) the order of referral to department 95, and (5) the order of May 7, 1968, 'committing defendant to the CRC.'

On June 6, 1968, the criminal proceedings in this case were ordered off calendar. ⁵

I.

The gravamen of Jasso's plaint is that the two criminal convictions and his resultant commitment to the CRC all rest upon real evidence obtained by an illegal search and seizure, which the trial courts in the two criminal actions erroneously refused to exclude under his motions to suppress under section 1538.5 of the Penal Code. He seeks reviews of these rulings by the three-pronged attack detailed above. The only matters properly before this court in these consolidated appellate proceedings are: (1) in No. A--228982: the appeal from the 'judgment of conviction'; (2) in No. NDA--8728: the order of commitment made by department 95 on April 25, 1968; and (3) in No. A--228553: the petition for writ of habeas corpus seeking a belated review of the order denying defendant's motion for a new trial.

In No. A--228982, no sentence had been pronounced, so there was no appealable judgment as of May 16, 1968, when defendant's notice of appeal was filed. ⁶ (People v. Murphy (1969) supra fn. 6, 70 Cal.2d 109, 116, 74 Cal.Rptr. 65, 448 P.2d 945.) However, for reasons we...