People v. Aguilar

• Decision Date: 10 February 1965
• Docket Number: Cr. 9825,9826
• Citation: 42 Cal.Rptr. 666,232 Cal.App.2d 173
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent v. James Cosio AGUILAR, Defendant and Appellant.

Page 666

42 Cal.Rptr. 666

232 Cal.App.2d 173

The PEOPLE, Plaintiff and Respondent v. James Cosio AGUILAR, Defendant and Appellant.

Cr. 9825, 9826.

District Court of Appeal, Second District, Division 4, California.

Feb. 10, 1965.

Robert W. Stanley, Los Angeles, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Irwin M. Friedman, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

In case No. 277334 defendant was charged with possession of heroin for purposes of sale in violation of section 11500.5 of the Health and Safety Code. Four prior felony convictions were alleged. Defendant entered a plea of not guilty and denied the alleged prior convictions. He was convicted by the court after waiver of jury, the prior convictions were found to be true, and he was sentenced to state prison for the term prescribed by law. He appeals from the judgment.

In case No. 272147, defendant was charged with petty theft with a prior conviction of same, in violation of Penal Code, section 667. Three prior felony convictions were alleged. Defendant pleaded not guilty, denied the alleged prior convictions and waived a jury trial. The matter was submitted on the transcript of the preliminary hearing. The court found defendant guilty as charged and the alleged prior convictions to be true. Probation was denied and defendant was sentenced to one year in the county jail, the sentence to run concurrently with the sentence in case No. 277334. Although defendant appeals from the judgment in case No. 272147 he raises no grounds of error in his brief on appeal. After examination of the record before us in case No. 272147, we conclude that defendant was properly convicted, and that the judgment should be affirmed. The remainder of this opinion relates to case No. 277334.

The case for the prosecution rested on the testimony of police officer Walter Burke. Officer Burke testified that he was experienced in the field of narcotics law enforcement. On July 20, 1963, at approximately 6:15 p. m. he, accompanied by two fellow police officers, went to a motel located at 9137 South Figueroa Street, Los Angeles. The officers were told by the manager that a Mr. Bravo was living in Apartment 14. Officer Burke then went 'around' to a window of Apartment 14. The window faced on Figueroa Street. Between the Figueroa Street sidewalk and the window was a row of bushes located directly in front of the window and approximately six to eight inches from it. The row was not a formal hedge, but there were breaks between the several bushes. Burke stepped between these bushes, crouched down, and looked through the window into the apartment. Defendant and Ralph Bravo were inside. Defendant was in the process of looping a belt around his arm. On a nightstand next to where defendant was standing, the officer observed a needle, a spoon, an eye-dropper and a small package which appeared to contain narcotics. Burke also observed that defendant had needle marks on his arms. From these observations the officer concluded that defendant was preparing to give himself an injection of narcotics.

Immediately thereafter, Officer Burke and the other officers went to the manager of the motel, obtained a key to Apartment 14 and, using the key, opened the door to the apartment. They had no warrant for arrest or search. Upon entering the room Officer Burke saw defendant standing with a belt looped over his arm. Burke inspected the small package he had seen through the window and, in his opinion, it appeared to contain narcotics. Defendant was placed under arrest and the apartment was searched. In addition to the 'small package' on the nightstand, the officers found twelve fingerstalls (which are used to package heroin), and a condom, each containing a white powdery substance. The powder in the condom was 'uncut.' In Mr. Bravo's coat the officers discovered a quarter of an ounce of a white powderly substance. (It was stipulated at the trial that if a forensic chemist were called he would testify that these items contained heroin.) The apartment was also found to contain two 'outfits,' a small scale, a bag containing empty fingerstalls, a large quantity of rubber bands, mixing spoons, a can of milk sugar and a can of lactose. Officer Burke testified that in his opinion the narcotics were being held for sale. All the aforementioned items found in the apartment were admitted in evidence over objections.

Defendant contends that the items found in the apartment were the product of an illegal search and seizure and thus were erroneously admitted in evidence. In particular, defendant argues that the arresting officer's conduct in looking through the apartment window from a vantage point not open to the public constituted an illegal search.

Defendant relies on Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 and People v. Regalado, 224 Cal.App.2d 586, 36 Cal.Rptr. 795, neither of which involved observations made through a window. In Bielicki, supra, police officers climbed upon the roof of a restroom in an amusement park at the invitation of the amusement park owner and spied on the occupants of the enclosed toilet stalls therein through a small pipe installed in the ceiling. The Supreme Court held that...