People v. Cornejo

• Decision Date: 02 May 1979
• Docket Number: Cr. 33229
• Citation: 92 Cal.App.3d 637,155 Cal.Rptr. 238
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Russell Steven CORNEJO et al., Defendants and Appellants.

Page 238

155 Cal.Rptr. 238

92 Cal.App.3d 637

The PEOPLE, Plaintiff and Respondent, v. Russell Steven CORNEJO et al., Defendants and Appellants.

Cr. 33229.

Court of Appeal, Second District, Division 4, California.

May 2, 1979.

Hearing Denied June 27, 1979.

Thomas Kallay, Los Angeles, under appointment by the Court of Appeal, for defendant Cornejo.

Patrick M. Thompson, Los Angeles, under appointment by the Court of Appeal, for defendant Ramirez.

George Deukmejian and Evelle J. Younger, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

ALARCON, Associate Justice.

Appellants have appealed from their judgments of conviction following a trial by jury. Their appeal is consolidated; however, they were represented by separate counsel at trial and on appeal, and some distinct issues are raised by each.

Appellant Ramirez was convicted of violation of Health and Safety Code section 11352, sale of heroin, and the jury made a special finding that he sold less than one-half ounce of heroin. Appellant Ramirez was found not guilty of count II, violation of Health and Safety Code section 11352, sale of cocaine, and count III, violation of sections 496 and 664 of the Penal Code, attempted receipt of stolen property.

Appellant Cornejo was found guilty of count I, violation of Health and Safety Code section 11352, sale of heroin, and the jury found that defendant Cornejo sold more than one-half ounce of heroin. Defendant Cornejo was found guilty of count II, violation of Health and Safety Code section 11352, sale of cocaine, and guilty of count III, violation of Penal Code sections 496 and 664, attempted receipt of stolen property.

Prior to trial, defendants moved under Penal Code section 1538.5 to suppress all evidence seized within defendant Cornejo's apartment on the grounds that the entry into the apartment and the seizure were unlawful. The motion to suppress evidence was denied. Thereafter defendant Cornejo moved for a severance of his trial from that of defendant Ramirez. The motion for severance was also denied.

Contentions on Appeal

A. Cornejo

1. The warrantless arrest of defendant Cornejo in his home was unlawful, in violation of People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333.

2. The entry of the arresting officers into defendant's home was effected in violation of Penal Code section 844.

3. The court erred in denying defendant Cornejo's motion for severance of the trials.

4. The trial court erroneously ruled that an informant could exercise his Fifth Amendment privilege not to testify.

5. The trial court erroneously deprived appellant of his right to testify on his own behalf during the motion to suppress evidence.

B. Ramirez

1. The trial court erred in allowing the informant to exercise his Fifth Amendment privilege and refuse to testify for defendants.

2. The trial court erroneously accepted a jury verdict which was contrary to the evidence presented.

3. The court erred in denying defendant Cornejo's motion for severance.

Summary of the Facts

The following evidence was presented at the hearing on the motion to suppress evidence:

Officer Bruce Biggins testified that he is an investigator assigned to the South Gate Police Department, burglary assault team. Some time before July 14, 1977, Officer Biggins worked with an informant by the name of Ernest Leonard Kelly. Kelly told Biggins that an individual by the name of Bobby Ramirez was dealing in heroin and that Kelly would introduce Biggins to Ramirez so that Biggins could try to arrange an exchange of guns for heroin. The officer asked the informant to set up a meeting between him and Ramirez, which meeting occurred on July 14 at room 28 of the Jackmar Motel.

On that date, Ramirez and Kelly came to Biggins' motel room. Ramirez asked to see injection marks on Biggins' arm, searched the motel room, and asked what kind of weapons Biggins had. Biggins informed Ramirez that he had three machine guns and eleven handguns and stated that he wanted at least two ounces of high-grade heroin in exchange therefor.

Ramirez asked to see the weapons, and Biggins took him outside and showed him the weapons in the trunk of his vehicle. Back in the motel room, Ramirez told him he knew of two persons who might be interested in the purchase of the guns. He stated that an individual "by the name of Stevie would be interested in probably the whole package." Mr. Ramirez left the motel room several times during the conversation to make telephone calls and ultimately informed Biggins that he could not set up anything at that time. Ramirez offered to meet with him again the next day and left with Kelly.

Biggins, Ramirez, and Kelly met the next day at the motel room. Ramirez again searched the motel room and stated "I brought you a sample." Ramirez produced a lump of heroin for Biggins to examine. Ramirez took a portion of the heroin, prepared the portion and injected it into his system. Thereafter, Officer Biggins went into the bathroom with the remainder of the sample and pretended to inject it into himself.

Ramirez informed Biggins that they were going to "Stevie's house in Montebello" and told Biggins that his fee for setting up the transaction would be "12 spoons." The three men left the motel room; Ramirez looked at the guns in the trunk once again, and then Ramirez got into Kelly's car, and Biggins followed in his own car. Fellow officers who were keeping the motel room under surveillance followed Biggins to the apartment building in Montebello.

On arrival at the apartment building, Biggins saw that his fellow officers were also there. Biggins, Ramirez, and Kelly went to apartment No. 19 at 852 Mines Street and knocked on the door. The door was opened by Mr. Cornejo, who looked at the officer and said, "How do you like the sample?" Biggins responded that it was satisfactory and Cornejo then opened the door, stepped back, and allowed the three men to enter the apartment.

Shortly after Biggins, Ramirez, and Kelly entered the apartment, Cornejo answered the telephone. After some discussion, he informed Biggins that there were police all around the apartment building. Biggins indicated he did not want to do business under those circumstances and Cornejo reassured him that the apartment was a "cool place," and that the Montebello police "were only good for finding lost dogs and children."

Biggins and Cornejo discussed the weapons; Cornejo expressed a desire to see them, and Biggins and Cornejo went out to the car and looked at the weapons in the trunk.

When Cornejo and Biggins approached Biggins' automobile, Biggins observed Investigator Christ standing by the back of the surveillance camper. Biggins said he did not want to open the trunk until that man was gone, since he could be a police officer. Cornejo looked in the direction of Investigator Christ and said there was no way "he could be a policeman."

After inspecting the guns, Cornejo went to a locker in the back of the carport area where Biggins' car was parked, produced a key, removed a padlock from the lock, and removed a brown shopping bag from the locker. He brought the shopping bag to Biggins, reached in and removed therefrom a plastic baggie containing a brown substance which the officer believed was heroin. The officer looked in the bag and saw several plastic baggies containing a material which appeared to be heroin, and a number of tin foil rolls of pills.

Cornejo then reached into the trunk of the car and brought out all of the weapons, wrapped in a blanket; Biggins carried the paper sack and the two men returned to the apartment. During this walk, Officer Biggins could see that his fellow officers still had the apartment under surveillance.

The two men returned to the apartment, Cornejo examined the weapons, and then Cornejo and the officer took the weapons into a back bedroom. The officer then demanded the two ounces of heroin and Cornejo reached into a paper bag and removed the same plastic bag he had previously shown to Biggins. Biggins examined it and told Cornejo he felt it was "a little light." Cornejo produced a postal scale and the officer weighed the heroin. It weighed slightly under one ounce. Cornejo explained that business had been "very brisk" and that he had only one ounce of heroin on hand. The officer complained that he was being ripped off and threatened to cancel the transaction. Cornejo then offered the officer two plastic containers which he stated held pure Columbian cocaine, two ounces of it, each worth $3,600 and advised Officer Biggins to hold the two ounces of cocaine until Cornejo could come up with the additional ounce of heroin. He anticipated that he could deliver the heroin the next day.

During the discussions with Mr. Ramirez and Mr. Cornejo, both had inquired about the source of the weapons. Biggins informed them that the weapons were stolen from a police armory in Central Los Angeles. After giving Biggins the heroin and cocaine, Cornejo took the brown paper bag into the back bedroom and placed it beside a bed. The officer could see him do this from his vantage point in the living room. The officer then indicated that he wanted to leave. Ramirez stood up to leave with him. Ramirez opened the door and walked outside, followed by Biggins. Biggins stayed near the doorway, making a conscious effort to keep the door open, and signaled to his fellow officers. Ramirez said to Biggins "It's not cool" and indicated that they should go back inside the apartment. Biggins kept the door open two to three feet, and after he gave a predetermined signal to the officers, they ran up to the door. Officer Biggins had gotten a few feet back inside the apartment when the officers arrived. They ran up shouting "Police," with their identification showing and their guns drawn. The officers were not in uniform.

Once inside, the...