People v. Caylor
| Decision Date | 26 March 1970 |
| Docket Number | Cr. 16822 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Darryl Wesley CAYLOR, Defendant and Appellant. |
Dahlstrum, Walton & Butts and Nancy Cunningham, Hollywood, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.
By consolidated informations the defendant was charged with violation of section 11500 of the Health and Safety Code (), with violation of section 11555 of the Health and Safety Code (), a misdemeanor, with violation of section 11721 of the Health and Safety Code (), a misdemeanor, with burglary (count 4), and with receiving stolen property (count 5). By amendment he was charged with having suffered a prior conviction of violating the Marijuana Tax Act, a felony, on November 30, 1955, in the District Court of the United States, Southern District of California, and with having served a term of imprisonment therefor in a federal prison.
The defendant entered a plea of not guilty, and denied the truth of the allegation of prior conviction. His motions under sections 995 and 1538.5 of the Penal Code were denied. He waived trial by jury and it was stipulated that the cause be heard on the evidence taken at the preliminary examination and the evidence taken on the hearing of the 1538.5 motion, with both sides reserving the right to introduce additional evidence.
The defendant was found guilty upon counts 1 and 5, and not guilty upon counts 2, 3 and 4. A motion for a new trial was denied and the prior conviction was stricken. Proceedings were suspended and probation was granted, after hearing, for the period of five years. The appeal is from the judgment (order granting probation). (Pen.Code, § 1237.)
Kenneth Briscoe, a deputy sheriff of Los Angeles County, was on routine patrol with his partner on the evening of April 4, 1968. At approximately 11:30 p.m., he observed the defendant walking in a westerly direction on Edmond Drive along the edge of the road. Edmond Drive is a dark residential street with no sidewalks and little or no street lighting. It is situated in the City of Rosemead.
This particular area was being patrolled because there had been numerous prowler complaints and residential burglaries in the neighborhood. When the defendant subdenly appeared 'out of nowhere,' Deputy Briscoe felt that it would be in the best interest to stop the defendant to determine who he was, where he lived, and why he was in the neighborhood at this time of night.
Deputy Briscoe and his partner stopped the defendant, approached him, and asked him for some identification. The defendant slowly reached into his pocket and withdrew a wallet. He began to thumb through the wallet as if he were looking for identification. While doing this, the defendant shielded the wallet so that the officers could not see in it. The officers asked the defendant his name at least six times, but the latter remained silent and continued to thumb through his wallet. After searching through his wallet for approximately two minutes, the defendant stated
When asked where he lived, the defendant replied 'A couple blocks from here on Delta.' He stated that he was on his way home. Deputy Briscoe intended to take the defendant home, but the latter refused to divulge his name or his address. Deputy Briscoe testified that there was a Delta Street in the area but that it was nearly a mile from the point where the defendant was stopped. Later, it was stipulated that Delta Street was approximately two and one-half blocks away from the point where the defendant was stopped. When stopped the defendant was walking toward Delta Street.
The defendant was placed under arrest for failing to identify himself when Deputy Briscoe felt that he was not going to furnish identification. Deputy Briscoe thought that the defendant might commit a burglary if he were permitted to go. The defendant's constitutional rights were read to him and he was searched for weapons. During the search, narcotic paraphernalia was found in the defendant's right hand front pants pocket. A white powdery substance, which was contained in a small packet folded in newspaper, was found in the defendant's left hand front pants pocket. Checks were found tucked into his waistband. The defendant was then informed that he was also under arrest 'for burglary, the checks, and possession of heroin and narcotics paraphernalia.'
On the way to the station, the defendant was asked where he got the checks. He claimed that 'a friend gave them to me.' He also stated that the white powder was milk sugar. On April 5, the defendant was interviewed by Deputy Sheriff O'Neil at the Temple City Station. He was again advised of his constitutional rights. During this interview, the defendant stated that at about 4:30 p.m. on April 4, 1968, he had purchased the checks from a person known to him as Johnny Zamora for $22 cash. 1 When asked if Zamora had informed him that the checks were stolen, the defendant replied 'no, but * * * he felt himself that they were hot.'
It was established that the white powder was heroin and that morphine or a morphine derivative was present on the paraphernalia.
The defendant did not testify at either preliminary examination which resulted in the filing of the two informations, later consolidated for trial.
On the hearing of the 1538.5 motion, the defendant testified that on the night of his arrest, he was walking along Edmond Drive toward his house, two and one-half blocks away from the point where he was stopped; that about 11:30 that evening, police officers stopped him and asked him for identification; he did not produce any identification, but within two minutes from the time he was first stopped he gave the officers his name. He testified further that he gave the officers his address, stating he 'could prove it if you (the officers) would take me to my house.'
The defendant urges that the officers did not have probable cause to arrest him for violation of section 647, subdivision (e) of the Penal Code; that because there was lack of probable cause for the arrest, the search and seizure which followed was unlawful and the evidence seized as the result of such search should have been suppressed.
At the time of the arrest, section 647 of the Penal Code read in pertinent part as follows: (Stats., 1967, ch. 1317, § 1, p. 3141.)
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