People v. Contreras, Cr. 2756

• Decision Date: 08 October 1957
• Docket Number: Cr. 2756
• Citation: 315 P.2d 916,154 Cal.App.2d 321
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel CONTRERAS, Defendant and Appellant.

Page 916

315 P.2d 916

154 Cal.App.2d 321

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel CONTRERAS, Defendant and Appellant.

Cr. 2756.

District Court of Appeal, Third District, California.

Oct. 8, 1957.

Rehearing Denied Nov. 7, 1957.

Robert J. Cook, Sacramento, for appellant.

Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.

WARNE, Justice pro tem.

The appellant and his codefendant were charged with possession of narcotics, a violation of Section 11500 of the Health and Safety Code. Appellant was also charged with a prior conviction of burglary and a prior conviction of a violation of Section 11500 of the Health and Safety Code, a felony. Appellant aldmitted the two prior convictions. The case was tried by a jury and appellant was found guilty as charged. He has appealed from the judgment and a purported order denying a motion for a new trial. However, the record does not show that a motion for a new trial was made. At the time of arrest in the instant case, and for some time prior thereto, appellant had been on parole from prison and under the supervision of Parole Officer Edward Boulton.

Parole Officer Boulton and received reports from a reliable, confidential informant that the appellant was peddling narcotics and was also using them. For several days prior to September 19th, Inspector House of the State Division of Narcotic Enforcement also had received information from a reliable informant that defendant had been using and selling narcotics, namely, heroin, and that appellant had been making regular trips to Los Angeles for the purpose of obtaining large quantities of this narcotic. The record then shows that Boulton contacted the narcotic enforcement officers and some discussion followed which resulted in his request that the narcotic enforcement officers accompany him to arrest appellant. Accordingly, Mr. House instructed three of his deputies, Inspectors Best, Murphy and McHugh, to proceed to the defendant's apartment in the City of Sacramento with Boulton and arrest Contreras.

The three inspectors and Officer Boulton went to the above-mentioned address for the specific purpose of arresting the appellant for possession of narcotics and for violation of his parole. Upon arriving at the premises, Inspector Best ascertained from the manager that appellant was in his room. He then knocked at the front door of the apartment, stating his purpose, and upon receiving no answer, but hearing movement inside the apartment, went to the rear door. There was no response to Inspector Best's demand that he be permitted to enter and, upon hearing further noise which sounded as if someone were moving about in the apartment, he broke open the door and entered the room. The appellant, Contreras, was standing at the foot of the bed and defendant Ramos was in bed. The appellant was fully clothed and at his feet Officer Best recovered items which were introduced in evidence as People's Exhibit No. 1, consisting of a rubber container with a small amount of powder in it, a dripper, a piece of cellophane, several pieces of cotton, a hypodermic needle, a piece of tissue paper, and a bent spoon.

These items were shown to appellant, and he was asked if there were any more narcotics. The appellant replied, 'No, that is all there is.' Appellant's codefendant, Celia Ramos, testified that the items belonged to her. The objects recovered by Officer Best were turned over to a chemist who analyzed them and testified that the powder in the container was heroin, and that the other items, including the bent spoon, contained traces of an unidentified opium alkaloid. While Celia Ramos testified that the items belonged to her, there is sufficient evidence to warrant the jury in finding that the items contained in People's Exhibit No. 1 were in the joint possession of both defendants.

The inspectors, upon further search of the room, also found some empty capsules similar to those commonly used by narcotic peddlers.

The defendant contends that the trial court erred in denying a motion to strike certain prejudicial testimony of the witness Best. During the course of the trial the prosecuting attorney asked the following questions of Officer Best, a witness called for the prosecution, and received the following answers: 'Q. Had you ever arrested these defendants before? A. Yes sir. Q. Had you arrested both of them? A. Yes sir. Q. At different times, is that correct, sir? A. That is correct. Mr. Gibbert [appellant's attorney]: Your Honor, of course I believe that this line of questioning is out of order at the present time, but to make it in order we do intend to raise the issue of the legality of the entrance into the apartment. Mr. De Cristoforo (Interposing): That is the entire purpose of this, your Honor.'

At this stage of the proceeding there followed a discussion between counsel and the court as to whether the matter should be pursued in the presence of the jury, resulting in the jury being excused until the court had determined the issue. It was not until then that an objection was made to the above questions or the motion to strike the answers was made. While these questions should not have been asked in the presence of the jury, we feel that the defendant, by failing to object at the time the evidence was offered, waived objection to its reception and that the court did not err in denying appellant's motion to strike. As stated in People v. Caritativo, 46 Cal.2d 68, 73, 292 P.2d 513, 516: 'The rule is settled that where a defendant deliberately permits evidence to be given without objection in the first instance and then moves to...