People v. Alvarado

• Decision Date: 01 May 1967
• Docket Number: Cr. 12571
• Citation: 58 Cal.Rptr. 822,250 Cal.App.2d 584
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Borraza ALVARADO, Defendant and Appellant.

Page 822

58 Cal.Rptr. 822

250 Cal.App.2d 584

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Borraza ALVARADO, Defendant and Appellant.

Cr. 12571.

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

May 1, 1967.

Rehearing Denied May 11, 1967.

Hearing Denied June 28, 1967.

Herbert & Levine, Morton Herbert, Hollywood, for appellant by appointment of Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip L. Siracuse, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was charged with possession of heroin (§ 11500, Health & Saf.Code), and two prior state felony narcotic convictions and one in the federal court. The People's case was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing; no defense was offered. The trial judge found defendant guilty as charged and the allegation of the first prior to be true; the second was stricken and no finding was made on the third. Defendant was sentenced to the state prison; it was ordered that the sentence run concurrently with that imposed in a previous case. He appeals from the judgment.

On August 31, 1965, around 12:05 a.m., Officers Morales and Croft, in uniform and on duty in a marked police vehicle, saw defendant walking westbound on Brooklyn Avenue; as he approached, he was facing the police car and when he came to the entrance of an alley off of Brooklyn, he turned into it and began running northbound down the alley. Because of numerous burglaries in the area, the officers decided to investigate defendant; they made a left turn into the alley and followed him. The officers saw him run past Cincinnati Street down the alley 'into an apartment in the house' and up the rear stairway to the second floor. Officer Morales got out of the vehicle and followed him up the stairs to the second floor and down a hallway; it was dark and he did not see defendant again until he approached the second stairway leading to a possible attic when he turned on his flashlight. In the ray of light he saw defendant sitting down in a corner holding a newspaper (Exh. 2) on his lap. The officer drew his gun and ordered defendant to come down with the newspaper in his hand so that he could 'watch the newspaper'; as defendant walked to the end of the stairs, the officer ordered him to drop the newspaper and escorted him out to the police car. There the two officers made a cursory search of defendant to determine if he had any weapons. In the course of the search, Officer Morales noticed that defendant was very nervous, shaking and sweating, and when he turned the flashlight into his eyes, noticed beads of perspiration on his forehead and that his eyes remained pinpointed, indicating to Officer Morales that defendant had 'probably just had a fix in the arm.' He testified that he could tell defendant was nervous also by the manner in which he spoke. Officer Morales found a pearl handle knife about two inches long in defendant's back pocket; Officer Croft found a package of Camel cigarettes and two match boxes in his front pocket. When Officer Croft laid the cigarettes and match boxes on the trunk of the patrol car, some white powdery substance (5 milligrams of heroin) fell onto the car. Thinking that the white powdery substance might be heroin, Officer Morales proceeded back to inspect the area where defendant originally had been found at the top of the stairs. There he saw a bunched-up piece of newspaper about 12 inches from where defendant had been sitting; he picked it up and inside the paper found a balloon containing a white powdery substance. He then picked up the newspaper (Exh. 2) which defendant had previously dropped; examining it, he found that the lower left-hand corner of the newspaper had been torn out. He proceeded out to the patrol car where he arrested defendant. In the balloon were 6.82 grams of heroin.

Appellant contends that the search was illegal, thus the evidence obtained as a result thereof was inadmissible. The evidence consisted of three exhibits--5 milligrams of heroin (which fell on the trunk of the police car from the package of Camels and match boxes taken from defendant's pocket) and the balloon containing 6.82 grams of heroin (Exh. 1), the newspaper (Exh. 2) and defendant's shirt (Exh. 3). This is the first time defendant has raised the issue of admissibility.

The record shows that by stipulation the cause was submitted to the trial court on the testimony contained in the transcript of the proceedings had at the preliminary hearing; therein each side reserved the right to offer additional evidence, and all stipulations entered into at the preliminary hearing were deemed entered into in the trial court. The stipulation also provided that 'all exhibits received at the preliminary hearing are deemed received in evidence (at the trial), subject to (the trial) Court's ruling.' The transcript demonstrates that during the course of the preliminary hearing defense counsel interposed no objection to any of the testimony given, and made neither objection to the admission of the three exhibits nor motion to strike. The only action taken by defendant was at the end of the People's case when he moved to dismiss on the ground that the officer had no legal right to make the search. Even then no argument or citation of authority was given in support of the motion, and the same was denied by the committing magistrate. Even at the trial in the superior court, after the submission of the cause, at which time it was stipulated that the three exhibits received in evidence at the preliminary hearing be deemed received in evidence for the purpose of the trial, subject 'to any legal objection of Mr. Osterman (defense counsel),' defense counsel made neither objection to the admission of the evidence nor a motion to strike, and offered no defense on behalf of his client. In arguing the cause to the trial judge, defendant's counsel made no mention of the search or the evidence; his sole argument was that defendant 'was in a drunken stupor at the time' which, while no defense, 'would go only to the mitigation of sentence.'

Having called to the attention of the trial judge nothing concerning the admissibility of the evidence, defendant gave him no opportunity to rule on the specific evidentiary questions he now raises; having failed to properly object in the trial court, he cannot now be heard to argue these matters on appeal for the first time. 'Apparently it is appellant's contention that even though he stipulated that the People's case might be submitted upon the testimony taken at the preliminary examination, and even though at the trial he made no objection to or motion to strike out that testimony, the trial judge should have announced or in some manner indicated that he would not follow that particular ruling of the committing magistrate. There was no such responsibility on the part of the trial judge. It was the duty of appellant to object to such testimony as he deemed objectionable. The trial judge was entitled to rely, in the absence of an objection to particular testimony, upon the stipulation that the People's case was submitted on the testimony taken at the preliminary examination. This contention of appellant is not sustained.' (People v. Graves, 84 Cal.App.2d 531, 535, 191 P.2d 32, 34; People v. Jackson, 177 Cal.App.2d 181, 183, 1 Cal.Rptr. 857; People v. Miller, 205 Cal.App.2d 116, 121--122, 22 Cal.Rptr. 786.) The burden is on defendant in the trial court to make any objections to evidence which he deems to be inadmissible; in the absence thereof, the trial judge may rely upon the stipulation submitting the cause on the testimony taken at the preliminary hearing. 'The law is clear that where no question of search and seizure was raised in the trial court the appellant cannot raise it for the first time on appeal.' (People v. Gurrola, 218 Cal.App.2d 349, 354, 32 Cal.Rptr. 368, 371; People v. Hyde, 51 Cal.2d 152, 157, 331 P.2d 42; People v. Martin, 228 Cal.App.2d 677, 678, 39 Cal.Rptr. 669; People v. Saldana, 233 Cal.App.2d 24, 33, 43 Cal.Rptr. 312.)

However, the record supports the conclusion that the search was lawful and the evidence acquired by reason thereof was admissible. A little after midnight, the officers, in the exercise of their official duties and in uniform in a marked police vehicle, were patroling an area in which numerous burglaries had taken place; defendant was walking toward the police vehicle when suddenly he turned into an alley and ran; it is obvious that recognizing the police vehicle, defendant wanted to avoid an encounter with the...