People v. Bustamante

• Decision Date: 24 March 1971
• Docket Number: Cr. 18233
• Citation: 16 Cal.App.3d 213,94 Cal.Rptr. 64
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Tomasa BUSTAMANTE, Defendant and Appellant.

Page 64

94 Cal.Rptr. 64

16 Cal.App.3d 213

The PEOPLE of the State of California, Plaintiff and Respondent, v. Tomasa BUSTAMANTE, Defendant and Appellant.

Cr. 18233.

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

March 24, 1971.

Hearing Denied May 19, 1971.

Richard S. Buckley, Public Defender, James L. McCormick and Leighton A. Nugent, Deputy Public Defenders, for appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty Gen., and Jane C. Liebman, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

A jury found defendant guilty of possession of heroin (§ 11500, Health & Saf.Code). She appeals from the judgment and order denying her motion under section 1538.5, Penal Code. While the order itself is not appealable, it is reviewable on an appeal from the judgment of conviction. (People v. Jasso, 2 Cal.App.3d 955, 962, 82 Cal.Rptr. 229.)

On October 17, 1969, between 6 and 7:30 p.m. Officer Waers and Marine approached apartment 3 at 4925 Slauson Avenue in order to execute a warrant authorizing a search thereof and of several persons, including defendant. They walked up the stairs leading to apartment 3 and found Ruben Armenta, one of the persons named in the warrant, sitting approximately two feet from the apartment door on the top step; they walked past him and knocked on the door. Within a few seconds a little girl came up the stairs, walked past Armenta and the officers and opened the door. Through the open door Officer Waers was able to see defendant and her husband sitting in the front room; he informed them that he was a police officer, had a search warrant and was going to enter the apartment in order to search it; he showed them the warrant and began the search which disclosed narcotics and narcotic paraphernalia concealed in various places, and a check stub bearing defendant's name and the address of the apartment in defendant's purse.

Appellant contends that the search of the apartment was illegal because the warrant authorizing it was invalid and the execution of the warrant failed to comply with section 1531, Penal Code. In any case, she claims that the evidence was insufficient as a matter of law to sustain her conviction.

Appellant's attack on the validity of the warrant is directed to the legal sufficienty of the affidavit in support of the application therefor. In the affidavit Officer Waers stated that on September 19, 1969 (about one month before the search) he received a telephone call from a female, 'Angie,' who stated that defendant was furnishing dangerous drugs and narcotics to a runaway juvenile and other juveniles at 4925 Slauson Avenue, apartment 3, and that Ruben Armenta, who she said was a parole violator, was living there, using narcotics and peddling narcotics from that address; that a check of a police report on September 19 revealed that Arthur Marestein had died of an overdose of narcotics at the Slauson Avenue address about two weeks before (September 4); that on the same day (September 19) around 6 p.m. on the basis of the foregoing, Officers Kline and Zink went to the Slauson Avenue address and arrested five persons including defendant for being under the influence of narcotics; all except defendant were juveniles; that on October 13 he read a police report which showed that on September 29, 1969, around 8:30 p.m. Benedict Cotionia had been furnished three seconal capsules by a female Latin named 'Tommy' at 4925 Slauson Avenue, apartment 3; that the next day (October 14) he checked with the Department of Corrections which informed him that Ruben Armenta was on parole on a narcotic (heroin) conviction (§ 11500, Health & Saf.Code) and a parole violator; he then obtained 'mug' shots of Armenta and defendant from the police department; that he then staked out the Slauson Avenue address and on October 15 between 7 and 9:45 p.m. observed Ruben Armenta at the apartment; the next day (October 16) around 8:30 p.m., he observed a male Latin about 35, who appeared to be normal, enter the apartment and in 10 minutes come out excited and unsteady on his feet; while this man was inside the apartment a second man, who also appeared to be normal, entered, stayed 45 minutes and then emerged with Ruben Armenta and a female Latin, all three of whom appeared to be under the influence of some type of dangerous drug or narcotic because they all staggered, swayed and assisted one another down the stairs; that the next day (October 17) 'Angie' again called him and said that a narcotics party was to take place at the Slauson Avenue address at 7 o'clock that evening and dangerous drugs and narcotics were at the apartment; and that the utilities in the apartment were registered to Frank Bustamante and the telephone to Mary Anne Bustamante. The search warrant was executed by the officers on that day (October 17, 1969) around 7:30 p.m.

The issue is whether the affidavit as a matter of law sets forth sufficient competent evidence supportive of the magistrate's finding of probable cause. (People v. Benjamin, 71 Cal.2d 296, 302, 78 Cal.Rptr. 510, 455 P.2d 438.) While it is true, as argued by appellant, that the informant's tip alleged in the affidavit was itself insufficient to support the warrant under the 'two- pronged' test announced in Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, since there is nothing in the affidavit to indicate that Angie spoke from personal knowledge, this deficiency does not render her tip 'so insubstantial that it could not properly have counted in the magistrate's determination' in light of the remaining allegations of the affidavit which would permit the suspicions engendered by Angie's information to ripen into a judgment that defendant and the narcotics would be in the apartment on the evening of October 17. (Spinelli v. United States (1969) 393 U.S. 410, 413, 89 S.Ct. 584, 21 L.Ed.2d 637, 641.) Too, although information from those allegations may in itself be insufficient to support the warrant, combined with that given by the informant there is sufficient cause set up in the affidavit to believe that the narcotics and defendant would be where she said they would be (People v. Scott, 259 Cal.App.2d 268, 275--276, 66 Cal.Rptr. 257; People v. West, 237 Cal.App.2d 801, 807, 47 Cal.Rptr. 341; People v. Layne, 235 Cal.App.2d 188, 191, 45 Cal.Rptr. 110) and justified issuance of the search warrant. A comparison of the case at bench with Spinelli reveals a crucial difference. Spinelli involved a tip from an informant corroborated only as to unessential details which were not themselves incriminatory; here all of the corroborative information tended to substantiate the very portions of the informant's accusations which were incriminatory. The address given by the informant, who was not totally untested since she had previously conveyed information to police which led to the arrest of several including defendant, had a history as a center of narcotics activities--five weeks before Arthur Marestein had died there from an overdose of narcotics; one month earlier, five persons, including defendant, had been arrested there for narcotics violations;...