People v. Cooper, Cr. 4233

Decision Date24 May 1965
Docket NumberCr. 4233
Citation234 Cal.App.2d 587,44 Cal.Rptr. 483
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Joe Nathan COOPER, Defendant and Appellant.

Michael Traynor, San Francisco, for appellant (under appointment of the District Court of Appeal).

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Charles W. Rumph, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

Defendant was charged in an indictment with selling heroin (Health & Saf.Code, § 11501) and in a second count with assault by means of force likely to produce great bodily injury. (Pen.Code, § 245.) An amended indictment filed during the trial charged the above offenses and in addition charged two previous convictions of felonies. Defendant pleaded not guilty to each count of the indictment and amended indictment and admitted the two previous convictions. The court sitting without a jury found defendant guilty of violation of Health and Safety Code, section 11501 as charged in count one of the amended indictment and of the lesser and included offense of simple assault as charged in count two of the amended indictment. Defendant appeals from the judgment of conviction.

On December 21, 1961 at about 5:30 or 6:00 a. m., one Frank Green was arrested in his hotel room in Richmond by state narcotic agents and a Richmond police officer for selling heroin. The officers then took Green to the Richmond Police Department where he was interrogated. He agreed to act as an informer. Green's person and clothing were thoroughly searched at the time of his arrest and again at the police department at about noon of the same day.

After the second search was completed, Green was taken by state narcotic Agent Armenta and federal narcotic Agent Lee to a public telephone booth in downtown Richmond. He had been furnished with $20 in marked money. Green and Agent Armenta entered the phone booth together and the latter placed a twin phone as a listening apparatus on the receiving end of the telephone. Green thereupon dialed a number identified as that of defendant's residence. A woman answered and Green asked for defendant, 'Joe.' When 'Joe' answered, Green said, 'How about a deuce?' 'Joe' said 'Yes.' Green suggested that they meet at 'Newell's,' and then the two agreed to meet there right away. Armenta testified that he recognized the voice of 'Joe' as being that of defendant. He also testified that in the narcotic traffic the word 'deuce' is used in referring to bindles or capsules of heroin. The parties are in agreement that the telephone call took place between 12:30 and 1 p. m. on December 21.

On this date defendant lived with his aunt Mrs. Leona Gulley at 536 South 20th Street in Richmond. Louis Stumpf, a Richmond police officer assigned to the vice detail and one of the officers who had arrested Green early that morning, together with state narcotic Agent Yates, had defendant's residence under surveillance during the time the above telephone conversation was taking place. Stumpf and Yates were in a car on 19th Street just north of Cutting Blvd. and could see defendant's house on 20th Street across the intervening corners which had no structures on them. Stumpf had observed defendant prior to this date and testified that he knew defendant when he saw him. At about 12:50 p. m., the officer 'saw a person that fit the description' of defendant leave defendant's house, walk to a blue 1957 Oldsmobile parked in front, open the trunk of the car, stand at the rear of the car for two or three minutes, then enter the car and drive north to Cutting, east to 22nd Street and then south on 22nd Street.

Newell's Market was located on the corner of 23rd and Cutting. Adjacent to it on the west side, extending westerly along Cutting for the rest of the block to 22nd Street, was a large parking lot. After Green completed the telephone call, Agents Armenta and Lee took him to the vicinity of the market and dropped him off at 23rd and Virginia Streets, just one block north of the market. Armenta left the vehicle a short distance away. Both men then proceeded to the front of Newell's Market, Green approaching it on the west side of 23rd Street and Armenta on the east side, eventually crossing both Cutting and 23rd Street to the front of the market, which was located on the southwest corner. All during this time Armenta had Green in plain sight and observed that the latter contacted no persons.

Armenta then saw Green walk into the parking lot, saw defendant alone in a 1957 blue Oldsmobile drive into the parking lot from 22nd and Cutting, lost sight of Green for about two or three minutes, and then saw him emerge from the lot and return to the vicinity of 23rd and Virginia Streets where Agent Lee was waiting. According to Armenta, Green was in the parking lot about five minutes all together and after defendant's car entered the lot it was 'Just a couple of minutes, one or two' before Green walked out.

While Armenta was standing in front of the market he observed state narcotic Agent Howard Groom, who, along with Lieutenant Sullivan of the Richmond Police Department, had taken a position in a service station on the northeast corner of 23rd and Cutting, diagonally across from the market. Armenta, from his position in front of the market, saw Groom leave the service station, cross 23rd Street, and proceed to a vantage point on the north side of Cutting opposite Armenta, where Groom could see the parking area.

Groom and Sullivan had observed Green and Armenta making the telephone call and then in a separate car had accompanied them to Newell's Market. They parked in the service station and watched both Armenta and Green approach the market. Groom testified that he then left the service station, crossed 23rd Street and stood on the porch of a house fronting on 22nd Street, from which position he had a clear view of the entire front of the market and of the easterly half of the parking lot. He stated that he could see Agent Armenta and Green at all times and he continued to watch Green. After a short time Green walked out into the parking lot from a position close to the wall of the building. At this point, Groom left the porch of the house and took another position alongside the house where he had a view of the entire parking lot. He then saw Green 'go up to the Oldsmobile, which I recognized as the car that Joe Cooper usually drove, and talk to a man in that car who appeared to me to be Joe Cooper.' Green stood by the driver's side of the car for a minute or so and then walked out of the lot and up 23rd Street to Virginia. Groom kept him in sight all the time until he saw Green coming into Agent Lee's view.

Lieutenant Sullivan generally confirmed the activities of Armenta, Green and Groom at Newell's Market. Sullivan, who was parked in the service station, received a radio call from Agent Yates who had seen defendant leave his house. After receiving the message, Sullivan saw the 1957 Oldsmobile pull into the parking lot, saw Green walk over to it and sit in the front seat with the driver for a few minutes and then saw Green walk back toward 23rd Street. He testified that there was only one person in the car when it entered the lot and that 'It appeared to me to be Joe Cooper.' Sullivan had seen Cooper in a vehicle about two weeks previously. During all of the time Sullivan had Green under surveillance he did not see him contact or communicate with anyone other than defendant.

When Green returned to Agent Lee's car, he handed Lee, in Armenta's presence, a small package and the group thereupon returned to the Richmond Police Department. The package consisted of two white paper bindles of heroin wrapped in brown wrapping paper apparently from a grocery sack. Groom and Sullivan also returned there. A field test was made of the contents of the package, indicating that the substance was possibly an opium derivative. After the test was made the officers attemped to locate defendant's car.

Eventually Agent Groom, federal Agents Yates and Lee and Richmond Police Officers Stumpf and Billingsley participated in placing defendant under arrest. The blue Oldsmobile was finally located at 7th and MacDonald in Richmond at 2:15 p. m. on December 21 and kept under surveillance until about 3:45 p. m. when defendant walked toward the car with a woman and two children. As defendant started to unlock the car door Groom and Yates closed in on him and placed him under arrest. Groom grabbed defendant's right wrist and defendant motioned and said, 'It's there in the car over the sun visor.' When asked what was there, defendant bent down and said, 'The marijuana cigarettes. * * But I didn't put them there, someone else put them there.'

At this point defendant put his left hand into his right shirt pocket, removed an object wrapped in brown paper and started to put it in his mouth. Both Groom and Yates grabbed defendant's left arm: Groom grabbed the hand, whereupon both hand and package went into defendant's mouth and were stubbornly chewed by defendant. Groom grabbed defendant by the nose, shouted in pain to Cooper to let go of his finger, and after a scuffle, managed to pull his finger out of defendant's mouth. An attempt was made to get defendant to open his mouth while he was still chewing away, but defendant had apparently swallowed whatever had been in his mouth. Defendant was pressed against the hood of the car, placed in handcuffs and taken as a state prisoner to the police station.

Defendant's Oldsmobile was seized and taken into state custody. The car, defendant and his woman companion were searched but the marked money furnished Green was not found. No heroin was found in the car, on defendant's person or in his clothing, or in his room at his home on South 20th Street, which was subsequently searched. Defendant was interrogated at...

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