People v. Castro
Decision Date | 05 January 1968 |
Docket Number | Cr. 13620 |
Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Adolph CASTRO, Defendant and Respondent. |
Court | California Court of Appeals Court of Appeals |
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty., (Ventura), for appellant.
James McGahan, Ventura, for respondent.
On December 29, 1966, the District Attorney of Ventura County filed a complaint against respondent charging him with violations of sections 11500, 11500.5, 11530 and 11530.5 of the Health and Safety Code.
We take our summary of the facts which were adduced at the preliminary hearing from defendant's brief: 'At 5:00 p.m. on December 6, 1966, five officers went to defendant Adolph Castro's residence in Ventura. The officers were James Burgess, a Detective Sergeant for the Ventura County Sheriff's Department; John Thompson, a State Bureau of Narcotics agent; Detective Bowen, of the Oxnard Police Department; Detective Taylor, of the Sheriff's Department; and Detective Hurly, of the Oxnard Police Department. Detective Bowen 'had information that there was a large quantity of narcotics at the residence at 106 Sunny Way, including heroin, marijuana and some dangerous drugs.' The purpose of their visit was 'to pick up some narcotics.'
'106 Sunny Way is a single dwelling. Detective Burgess knocked and defendant Castro came to the door. There was an elderly lady inside the house, and three or four small children. Detective Burgess identified himself 'and his compatriots,' showed defendant a form of identification, and asked him to 'please step outside, I would like to talk to him.'
'Defendant came outside the house, stepped off the porch and stood on a walk with Detective Burgess and Detective Bowen. Burgess thereupon 'advised defendant that I was thereon a follow-up from a previous arrest of Benny Castro,' defendant's nephew, and that 'there was a reason to believe there was narcotics at the residence.' Burgess said:
'After a 'slight delay,' defendant advised Detective Burgess to come on and follow him. Defendant took the officers to a shed at the back of the premises, opened the garbage can, took out a paper sack, and handed it to Agent Thompson. Thompson examined it, and Burgess asked, 'Isn't there any marijuana?' Defendant said 'Maybe there is another sack in here' and took out another sack which he gave to Thompson.
At the preliminary hearing there was no objection of any kind to the admission of evidence.
After defendant was bound over on all four counts and the information filed in the superior court, a motion to dismiss under section 995 of the Penal Code was granted. The specific basis for the granting of the motion was that defendant's helpfulness amounted to 'assertive conduct,' that he was in custody and that he had not been advised of his constitutional rights. The superior court also found that, the question of the violation of defendant's Miranda rights aside, there was sufficient evidence in the record that he should stand trial.
The question whether the evidence discloses a consent search, as urged by the People, or a communication by defendant after he was placed in custody within the meaning of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Arnold, 66 Cal.2d 438, 446--447, 58 Cal.Rptr. 115, 426 P.2d 515 and People v. Kelley, 66 Cal.2d 232, 246, 57 Cal.Rptr. 363, 424 P.2d 927, is interesting but in view of the lack of an objection at the preliminary hearing not really before us. The People point out that Robison v. Superior Court, 49 Cal.2d 186, 316 P.2d 1, squarely holds that failure to object to illegally obtained evidence at a preliminary hearing allows the magistrate to consider such evidence. (Cf. People v. Hyde, 51 Cal.2d 152, 157, 331 P.2d 42.) Defendant argues that Robison involved a writ of prohibition after a 995 motion was denied. We do not see the difference. In Robison the question was whether the 995 motion was properly denied. In the case at bar we must decide whether it was properly granted. The criteria are the same.
Defendant also argues that the problem is not his failure to object but the prosecution's failure to sustain its burden of showing that his Miranda rights were not violated. (People v. Arnold, supra, 66 A.C. p. 459, 58 Cal.Rptr. 115, 426 P.2d 515; People v. Davis, 66 Cal.2d 175, 180--181, 57 Cal.Rptr. 130, 424 P.2d 682; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.)
While it is perfectly true that in the area of coerced confessions the lack of an objection in the trial court does not preclude review on appeal (People v. Matteson, 61 Cal.2d 466, 469, 39 Cal.Rptr. 1, 393 P.2d 161; People v. Rand, 202 Cal.App.2d 668, 672--674, 21 Cal.Rptr. 89), cases involving confessions obtained without compliance with the rules announced in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, have uniformly required an objection as a prerequisite for appellate...
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