People v. Contreras

• Decision Date: 19 June 1968
• Docket Number: Cr. 14264
• Citation: 263 Cal.App.2d 281,69 Cal.Rptr. 548
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Adrian CONTRERAS, Defendant and Respondent.

Page 548

69 Cal.Rptr. 548

263 Cal.App.2d 281

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

Cr. 14264.

Court of Appeal, Second District, Division 2, California.

June 19, 1968.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Chief, Appellate Div., and Robert J. Lord, Deputy Dist. Atty., for plaintiff and appellant.

Sanz & Gelber by Sidney L. Gelber, Los Angeles, for defendant and respondent.

HERNDON, Acting Presiding Justice.

The People have appealed from the order of the trial court setting aside an information charging defendant and respondent with possession of marijuana. The order presented for review was entered upon the granting of defendant's motion made under Penal Code section 995 which authorizes such order upon a showing (1) that 'the defendant had not been legally committed by a magistrate;' or (2) that 'the defendant had been committed without reasonable or probable cause.'

The determinative issue is whether or not the record supports the trial court's implied conclusion that the magistrate acted illegally or without reasonable or probable cause in committing respondent and requiring him to answer to the charge. More specifically, the issue is whether or not sufficient competent and admissible evidence was offered by the prosecution and received by the magistrate at the preliminary examination to show such 'a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the accused.' (Cf. People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344; Kind v. Superior Court, 143 Cal.App.2d 100, 102, 299 P.2d 414; People v. Jablon, 153 Cal.App.2d 456, 458, 314 P.2d 824; People v. Malki, 181 Cal.App.2d 118, 121, 5 Cal.Rptr. 207.)

Our review leads to the conclusion that the magistrate's order of commitment is legally supported by the record indicating the presence of properly admitted evidence sufficient to show the existence of probable cause. It follows that the order setting aside the information must be reversed. We shall summarize the testimony of the two witnesses upon which the defendant was ordered held to answer.

The witness, Delbert J. McCuen, testified that he was a State Parole Agent and that the defendant had been placed under his supervision. Because defendant had failed to respond to two surprise Nalline test notices, this witness went to his house to arrest him on the date in question. The witness had his partner with him. When repeated knocks failed to produce an answer, the witness called the Montebello police for assistance.

Thereafter, but prior to the arrival of the Montebello police officers, the witness 'went around to the back door and knocked again, and called to Mr. Contreras, and he finally came to the door and opened it * * *' Officer McCuen entered the premises and engaged in a conversation with defendant. As stated by the witness: 'I immediately began a conversation with him, and I asked him if he had been using narcotics, and he admitted that he had. I then checked his arm. He showed me his arm, and the veins were quite swollen.'

Officer McCuen thereupon placed defendant under arrest for violation of parole. A few minutes later two officers from the Montebello Police Department arrived and entered the house. Officer McCuen informed them that defendant was under arrest for violation of parole. Officer Swietanski testified that he was a police officer for the City of Montebello assigned to the Narcotics Division; that on the date in question he went to the residence of the defendant. When asked his purpose in going there, the witness responded: 'I had received a request by the desk sergeant, and which in turn he received a telephone call from Officer McCuen, requesting assistance by officers in apprehending a parole violator at this location.' The testimony of the witness continued with the following questions and answers:

'Q. When you got there did you notice anything unusual about the defendant's appearance? A. Not about his appearance, no. Q. Did you examine his arms at any time? A. Yes, I did. Q. When was that? A. After I arrived Officer McCuen stated he was in his custody for parole violation, and also that he had admitted to using narcotics. And at this time I asked the defendant if I could look at his arms, and he showed me his arms. Q. Did you notice anything unusual about them? A. Yes, I observed numerous what appeared to be illegal narcotics injection wounds on both arms. Q. Were these old marks? A. Some were old and some were fresh puncture wounds. Q. After you noticed these marks what did you do next? A. I had asked him myself if he had been using, and he stated yes, he had. And I said--MR. CHAVEZ: Just a moment, Officer. I think that should go out as an improper foundation for any asking or telling of this officer a this time. THE COURT: Probably so. With this officer now it's a little different. MR. GOLDSTEIN: Q. Did you ever advise constitutional rights at any time? A. No, I did not. Q. Did your partner ever do that in your presence? A. Not in my presence. Q. And after a conversation with the defendant what did you to next? A. I asked him where his kit was. Q. After the conversation. A. We began a search of the premises. Q. Did you discover anything in the search? A. Yes, we did. Q. ...