People v. Bonner
| Decision Date | 30 August 1978 |
| Docket Number | Cr. 30598 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Roland BONNER, Defendant and Appellant. |
Stephen Gilbert, Santa Monica, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., Robert S. Henry, Deputy Attys. Gen., for plaintiff and respondent.
Defendant was convicted of two counts of possession for sale of a controlled substance (Health & Saf.Code, § 11351). In count 1 the substance was heroin; in count 2, cocaine. He was sentenced to serve a term in the state prison. He now appeals the judgment of conviction, asserting (1) insufficiency of evidence, (2) ineffectiveness of trial counsel, and (3) issues relating to the applicability and constitutionality of Penal Code section 1203.07.
A search warrant was issued authorizing a search of defendant's home at 11021/4 West 98th Street for narcotics, narcotics paraphernalia, and "items of personal identification." The warrant was served upon defendant at a location away from his home and he pointed out the key which would open his front door. Inside the residence, officers discovered a number of papers and bills bearing defendant's name.
In a bedroom dresser drawer, the searching officer found: forty-two balloons, each containing heroin; five capsules, each containing cocaine; a quantity of marijuana, a gun, money, "paraphernalia," and keys to the residence. Elsewhere in the residence, the officer found a funnel, a sifter, and two packages of balloons. In the expert opinion of the officer, the "paraphernalia collectively" would commonly be used for packaging narcotics for sale.
No defense was presented.
Conceding that the above evidence adequately supported a finding that he had dominion and control over the narcotics, defendant contends that the evidence was totally lacking as to two other necessary elements of the offense knowledge of presence of the narcotics and knowledge of their narcotic character. We find the circumstantial evidence of knowledge of both facts was sufficient.
It is certainly inferable from the presence of the various narcotics in defendant's bedroom dresser drawer that he was aware of the presence of the contraband. (People v. White (1969) 71 Cal.2d 80, 83, 75 Cal.Rptr. 208, 450 P.2d 600; People v. Bustamente (1971) 16 Cal.App.3d 213, 219-220, 94 Cal.Rptr. 64.) And while even "the mere possession of a narcotic constitutes substantial evidence that the possessor of the narcotic knew of its nature" (People v. White, supra, 71 Cal.2d, at p. 83, 75 Cal.Rptr. at p. 210, 450 P.2d at p. 602), here we have far more: the dresser drawer contained a smorgasbord of drugs, and items appropriate for packaging the narcotics were found both in the drawer and elsewhere in the residence. The trial court could reasonably infer that one who possessed the facilities for commercially packaging these substances knew well what they were used for.
The record reflects that defense counsel filed a written motion to suppress evidence in which he argued that the affidavit in support of the search warrant did not contain sufficient facts to constitute probable cause to search defendant's residence. Apparently the motion was never heard. On the day of trial, both defense counsel and the deputy district attorney appeared to be under the impression that the motion had been heard and denied. Defendant now claims that "the failure of his attorney to obtain a ruling on the motion to suppress" constituted a deprivation of his constitutional right to adequate assistance of counsel. He argues that the affidavit was inadequate on its face and consequently the failure to obtain a ruling resulted in the withdrawal of a crucial defense. (In re Beaty (1966) 64 Cal.2d 760, 764, 51 Cal.Rptr. 521, 414 P.2d 817; People v. Mattson (1959) 51 Cal.2d 777, 790-791, 336 P.2d 937.) Since we conclude that the affidavit supported the issuance of the search warrant, there was no denial of the right to effective counsel.
The affidavit supporting the search warrant was prepared by Officer George E. Robison. Officer Robison had had six years experience investigating narcotics violations and had testified as an expert on illicit drugs on "over three hundred occasions . . ." The information in the affidavit had been supplied by three confidential informants, all of whom had proved reliable in the past. Moreover, the three informants corroborated each other by telling substantially the same story.
Each of the informants knew a John Brown as "the head of a major narcotics trafficking organization in the South Central Los Angeles area." Brown used the "telephone order method" of trafficking heroin: a prospective purchaser would dial 299-7660 Brown's answering service and ask for John. When the call was returned, Brown would arrange for a meeting at a given location. Either Brown or one of his "runners" would then meet the purchaser and consummate the transaction. Informant number one identified the runners as Gerald Pariot and defendant. He provided detailed physical descriptions of both men and supplied the year, make, model and license number of each of the cars used by Brown, Pariot and defendant to make deliveries. Defendant's automobile was described as a 1972 Ford Thunderbird, dark brown, license number 459 FFA. Informant number one also stated that Brown utilized the residences of three women who "sat on" his "working stash" of narcotics. Informant number one had seen two of the women and had been to their homes, where he had seen substantial quantities of drugs. Brown had described the third woman to him and said that she both "sat on" narcotics and made deliveries for him.
In December 1975 and January 1976, informant number one stated that he was purchasing heroin "on almost a daily basis" from Brown, Pariot and defendant. During November and December of 1975, police officers observed three meetings between informant number one and John Brown and one meeting between informant number one and defendant; during those meetings, the officers saw an "exchange" between the participants. Informant number one reported that he had purchased heroin on each of these occasions. After the purchase from defendant during the week of December 29, 1975, officers followed the dark brown Thunderbird he was driving to 11021/4 West 98th Street, the address at which the automobile was registered.
Informant number two provided substantially the same information as informant number one. He had been purchasing heroin from Brown, Pariot and defendant using the telephone order method "on a continuous basis over several months." He had also been to Gerald Pariot's residence and obtained heroin from him at that location. He described defendant, defendant's car and the location of defendant's residence and stated that he had last purchased heroin from defendant at a prearranged location during the week of December 28, 1975.
Informant number two had received considerable information about the operation from Brown himself. Brown told him that when he received a telephone order he would either make the delivery himself or would contact Pariot or defendant to make the delivery. Brown also told informant number two that he frequently made deliveries of "large quantities of heroin" to Pariot and defendant for distribution to their customers. Informant number two had ridden with Brown "on a few prior occasions" when Brown delivered heroin to Pariot and defendant.
Informant number three generally corroborated the facts which had been provided by informants one and two.
Based on the above information and his prior experience investigating drug-related crimes, Officer Robison formed the opinion that the residences of Brown, Pariot, the three women, and that of defendant (11021/4 West 98th Street) "are either locations where narcotics are kept as primary working locations where narcotics are kept for deliveries to users, or as a secondary stash location from which narcotics are transferred to the primary locations."
Defendant first argues that the affidavit "fails to meet the first prong of the Aguilar (Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) test" in that "(n)one of the informants could have had personal knowledge of the existence of heroin in Bonner's apartment, for none of them were alleged ever to have been inside that apartment."
The "first prong" of the Aguilar test requires that, "the affidavit . . . allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; . . ." (People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 787, 454 P.2d 681, 683.) Defendant does not argue however that the affidavit was deficient in its failure to provide a factual basis for the information recounted by the informants; 1 instead he contends that there was no factual basis for Officer Robison's inference that narcotics would be found at defendant's residence. His contention does not raise an Aguilar problem, but rather goes to the fundamental question whether the facts reported by the informants constituted probable cause to search the residence.
We conclude that the facts related in the affidavit provided a reasonable basis for the magistrate's conclusion that defendant was storing contraband at his residence. Although there was no observation of defendant making uninterrupted trips from his residence to a sales location (Cf., People v. Flores (1968) 68 Cal.2d 563, 565-566, 68 Cal.Rptr. 161, 440 P.2d 233; People v. Hernandez (1974) 43 Cal.App.3d 581, 585, 118...
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