People v. Bracamonte

• Decision Date: 24 July 1961
• Docket Number: Cr. 7283
• Citation: 194 Cal.App.2d 167,15 Cal.Rptr. 54
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Antonio Gilbert BRACAMONTE, Defendant and Appellant.

Page 54

15 Cal.Rptr. 54

194 Cal.App.2d 167

PEOPLE of the State of California, Plaintiff and Respondent, v. Antonio Gilbert BRACAMONTE, Defendant and Appellant.

Cr. 7283.

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

July 24, 1961.

Rehearing Denied Aug. 15, 1961.

Antonio Gilbert Bracamonte, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Herbert Davis, Deputy Atty. Gen., for respondent.

WOOD, Presiding Justice.

In two counts of an information the defendant was accused of burglary. He admitted allegations of the information that he had been convicted previously of two felonies (burglary, and violation of section 11500 of the Health and Safety Code). In a jury trial he was convicted on both counts, of burglary in the second degree. He appeals from the judgment and the order denying his motion for a new trial.

Appellant contends that there was no probable cause for his arrest, and that the court erred in receiving evidence as to articles obtained from defendant, for the reason such evidence was obtained by illegal search and seizure.

On December 23, 1959, a burglary was committed at the home of Mr. L. R. Smith in Los Angeles, and a 'Webcor' phonograph-radio and an 'American Flyer' electric train (in an unopened box) were stolen from his home.

On December 27, 1959, a burglary was committed at the home of Mrs. Demytrack, and an 'Admiral' table radio, a watch, and some money were stolen therefrom.

In the evening of December 27, 1959, Officers Pearce and Cochran, who were on duty and were traveling in a 'plain-clothes car,' entered a parking lot on Temple Street. While Officer Pearce was driving the car into the lot, the light from the headlights of the car was on a parked car in the lot. At that time he saw the defendant and a woman (later identified as Miss Leventis) sitting in the parked car. Officer Pearce stopped his car about 20 feet from the parked car, and at that time the light from the police car was on the other car. Then defendant and the woman got out of the car and walked hurriedly toward a cafe which was at the side of the lot. The officers approached them and engaged them in conversation. Officer Pearce knew the defendant and the woman--he had talked with them on prior occasions, and he had arrested the defendant on prior occasions. Officer Pearce testified that both of those persons were users of narcotics and both of them had 'records' for narcotics. After the officers had approached the two persons on the occasion here involved, Officer Pearce asked them if they were still using narcotics. They replied, 'Yes.' He asked if they were 'high.' They replied, 'Yes.' He asked them how their marks were. They replied, 'Not too bad.' Then defendant showed his arm to the officers--there were several needle marks on his arm. Officer Pearce testified that some of the marks were old and some were fresh; the defendant appeared to be 'messed up' or 'high,' and his eyes appeared to be puffy; the defendant talked in a slow, sleepy manner; the fresh marks on defendant's arm led the officer to believe that defendant had had a recent injection of narcotics; he (officer) believed that defendant was under the influence of narcotics. After such observations, Officer Pearce arrested defendant and the woman (Miss Leventis) 'for narcotics.' Then Officer Cochran searched defendant and took a watch from his pocket. That officer asked defendant who owned the watch. Defendant said it belonged to a girl friend, but later hs said it belonged to Miss Leventis. He (officer) asked Leventis if the watch belonged to her. She replied, 'No.' In response to questions by the officers, defendant said that he owned the car (in which he and Leventis had been sitting) and that he had the keys to it.

Officer Cochran testified that he asked the defendant for permission to look into his car; and thereupon the defendant handed the car keys to the officer. Officer Pearce also testified that defendant handed the car keys to officer Cochran and said that the officer 'could search' the car.

Officer Cochran searched the car and found therein a 'Webcor' phonographradio, an 'American Flyer' electric train that was 'still in the [unopened] box,' and an 'Admiral' table radio. Defendant said he purchased the electric train from a man on the street for $10, and that the record player and radio belonged to him. Two days later, the defendant said that he bought the train, radio, and the other articles from somebody on Temple Street, but he could not tell his name because he did not want to get him into trouble.

Mr. L. R. Smith went to the police station and identified the electric train and phonograph-radio as property which was taken from his home. Mrs. Demytrack identified the radio and watch as property that belonged to her.

Defendant testified that on December 27, 1959, about 7 p. m., he was in the Carioca Cafe on Temple Street talking and drinking with friends; about 9 p. m., when he was on the street (in front of the cafe), a man by the name of 'Rudy,' whom he had seen twice, asked him if he was interested in buying a radio; defendant replied in the affirmative, and they went to the man's car which was across the street in the same lot where defendant's car was; the man asked him if he was interested in buying a radio, record player, and train set (which were in the car) for $55; defendant offered $37 for the articles, and the man accepted the offer and 'threw in the watch' as a part of the transaction; the man and the defendant carried the things to defen...