People v. Campuzano

• Decision Date: 31 August 1967
• Docket Number: Cr. 12570
• Citation: 61 Cal.Rptr. 695,254 Cal.App.2d 52
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joe CAMPUZANO, Defendant and Appellant.

Page 695

61 Cal.Rptr. 695

254 Cal.App.2d 52

The PEOPLE, Plaintiff and Respondent, v. Joe CAMPUZANO, Defendant and Appellant.

Cr. 12570.

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

Aug. 31, 1967.

Hearing Denied Oct. 25, 1967.

Worrell & Niles and Claude Vibart Worrell, Sr., Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was charged with possession of a narcotic for sale (Health & Saf.Code, § 11500.5). Defendant pled not guilty; jury trial was duly waived. Pursuant to stipulation the cause was submitted on the testimony in the transcript of the preliminary hearing with each side reserving the right to offer additional evidence. Defendant was found guilty; motion for new trial was denied; probation was denied; and defendant was sentenced for the the term prescribed by law. Defendant appealed from the judgment and from the order denying new trial. ¹

Prior to May 27, 1965, Officer Fesler had information that Alex Marquez and another person, unknown, were dealing in heroin at a service station at 1100 West Temple Street.

On May 27, 1965, Officer Fesler and Sergeant Durrell were given permission by the service station owner, Al Moret, to search the station. Officer Fesler saw a work bench where he observed two shirts and a pair of trousers in a pile. The officer picked up one of these shirts, which bore the name 'Joe.' Under that shirt was another shirt and under the second shirt he observed a portion of a white bag. Examination of the contents of the bag disclosed six condoms of powder. Mr. Moret said 'Joe' was the defendant and that the shirt bearing his name belonged to defendant. The officer arrested defendant and informed him that he had a right to an attorney and a right to remain silent, and that anything he said could be used in evidence against him.

The officer asked defendant where he lived, and defendant gave his address. This was the same address previously given by Al Moret as defendant's address. Defendant was handcuffed and they left the station. The officer asked whether they could search his house and defendant replied, 'Yes, you can search my house, I don't have any narcotics there.' When they reached defendant's address and got out of the car, defendant pointed out one of the courts and stated that was where he lived. Officer Fesler reached in defendant's pocket and pulled out some keys. Defendant stated that the big key fit the front door. Defendant assisted in opening the door or instructed the officers in opening it. In the apartment, Sergeant Durrell found two cans of milk sugar under the sink, and a box labeled '3 dozen Trojan prophylactics.' Only 30 condoms were in the box. The kitchen wastebasket had a torn portion of a white paper sack that appeared to be the same color and material as that found at the service station.

An expert chemist examined the contents of three of the condoms seized at the service station and found 25 percent heroin. Milk sugar is commonly used to dilute pure heroin prior to selling it.

An expert criminalist testified that, in his opinion, the portion of the paper sack in the wastebasket in defendant's apartment and the sack at the service station had formerly been joined and were one paper sack.

Defendant and Al Moret, the station owner, testified that the work bench was the place other employees used to change clothes and that was where they left clothes to be taken to the laundromat. Defendant testified that he never consented to the search; that the police never asked permission; that he was handcuffed; that he did give his address; and that he did point out where he lived.

Defendant makes three contentions on this appeal. He argues that the evidence is insufficient, that the identities of the informants should have been disclosed, and that the search of the house was illegal because defendant did not consent to it.

I

The evidence is sufficient, assuming that all of it was admissible. The discovery of the scrap of paper in defendant's house, where he lived alone, effectively tied defendant to the possession of the heroin which was found in the paper beg beneath defendant's shirt in the service station. The quantity and quality of the heroin, its packaging and location, reasonably support the inference that it was held for sale.

II

Defendant did not, in the trial court, request disclosure of the identity of the informants. Nor did defendant make any objection, either in the trial court or at the preliminary examination, upon the ground that he had been arrested illegally. Had either point been raised, the trial court would have had an opportunity to rule, and the prosecution would have had the opportunity to produce additional evidence if the trial court had ruled in defendant's favor on those matters.

At the preliminary examination Officer Fesler testified that he had received information from several different sources concerning narcotics activity at the service station, and that some of these informants told of having themselves purchased narcotics there. The officer also testified that he had made observations of activities at the station on numerous occasions. In the course of cross-examining Officer Fesler at the preliminary, defendant's attorney asked for the names of the informants, the officer refused to answer, citing Code of Civil Procedure section 1881, subdivision 5, and the magistrate denied defendant's request that he be ordered to answer.

Officer Fesler was present at the trial and testified in rebuttal, but defendant never gave any indication to the trial court that he desired further cross-examination of the witness with respect to the events preceding the arrest.

The stipulation by which the parties agreed to use the preliminary transcript at the trial was in the following form:

'MR. McCORMICK: * * * The People offer to stipulate that the matter may be heard by this Court sitting without a jury on the basis of the testimony given at the preliminary hearing; that the witnesses there called, sworn, and testified, are deemed to be here called, sworn, and testified in a like manner; that all exhibits entered into evidence at the preliminary hearing are deemed entered into at this proceeding, subject to whatever objections either side may make.

'That all stipulations entered into at the time of the preliminary hearing are deemed entered into for this proceeding, with each side reserving the right to call what additional witnesses they desire.

'MR. WORRELL: So stipulated.'

This stipulation, unlike the one considered and criticized in People v. Giffin, 250 A.C.A. 615, 58 Cal.Rptr. 707, clearly indicates that objections to evidence made at the preliminary examination are waived unless restated in the trial court. By this stipulation, the entire preliminary transcript and exhibits are made admissible, 'subject to whatever objections either side may make,' i.e., may make in the trial court. No objection to any of that evidence was made in the trial court except the objection to the evidence found in the house, which will next be considered.

III

Defendant contended at the trial, and argues here, that the search of the house, not being at the place of arrest, could be legal only if there had been consent, and that defendant had not consented.

The applicable rule is stated in People v. Michael (1955) 45 Cal.2d 751, 753, 290 P.2d 852, 854:

'Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.'

In People v. Smith (1966) 63 Cal.2d 779, 48 Cal.Rptr. 382, 409 P.2d 222, one of the appellants, Mrs. Walker, had been arrested and taken to the police station, where she gave the police her consent to search her house and also made statements which incriminated her. The Supreme Court held (at p. 801, 48 Cal.Rptr. 382, 409 P.2d 222) that the statements were inadmissible because of failure of the police to give the warning required by Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, but the search of the house was held to be lawful, by reason of consent. The court said (at p. 798, 48 Cal.Rptr. at p. 395, 409 P.2d at p. 235):

'Mrs. Walker also contends that her consent was involuntary and was given only 'because of assertion of authority by police officers.' While permission obtained by means of such an assertion of authority is constitutionally inadequate (People v. Shelton (1964) 60 Cal.2d 740, 746, 36 Cal.Rptr. 433, 388 P.2d 665, and cases cited), there is no showing of a compulsion of this type in the present case. It is true that Mrs. Walker was under arrest at the time; but that fact, although relevant (People v. Shelton, supra, at p. 745, 36 Cal.Rptr. 433, 388 P.2d 665), is 'not conclusive' (Castenada v. Superior Court (1963) 59 Cal.2d 439, 443, 30 Cal.Rptr. 1, 380 P.2d 641). 'It cannot be said as a matter of law that consent given by a defendant is involuntary because it is given while he is under arrest.' (People v. Fischer (1957) 49 Cal.2d 442, 448, 317 P.2d 967, 971.) Rather, the question is one of fact 'to be determined in the light of all the circumstances.' (People v. Michael (1955) supra, 45 Cal.2d 751, 753, 290 P.2d 852, 854; accord, People v. Bilderbach (1965) 62 Cal.2d 757, 762--763, 44 Cal.Rptr. 313, 401 P.2d 921.)'

In the case at bench the evidence as to consent is in conflict. Giving the People the benefit of the evidence most favorable to the judgment, we have this:

The police made only a simple request, without any assertion of authority. The defendant consented verbally and cooperated throughout. Although handcuffed he assisted the officers in removing the keys from his pocket and identified the one...