People v. Dillard

• Decision Date: 24 February 1959
• Docket Number: Cr. 6211
• Citation: 168 Cal.App.2d 158,335 P.2d 702
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Carclyn V. DILLARD, Defendant and Appellant.

Page 702

335 P.2d 702

168 Cal.App.2d 158

PEOPLE of the State of California, Plaintiff and Respondent, v. Carclyn V. DILLARD, Defendant and Appellant.

Cr. 6211.

District Court of Appeal, Second District, Division 1, California.

Feb. 24, 1959.

Rehearing Denied March 24, 1959.

Hearing Denied April 22, 1959.

Ettinger & Deutsch, Warren L. Ettinger, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of Section 11500, Health and Safety Code, in that on or about February 19, 1957, she unlawfully had in her possession flowering tops and leaves of Indian Hemp (cannibis sativa). It was further alleged that on September 28, 1954 defendant suffered a prior felony conviction for violation of Section 11500 of the Health and Safety Code. Defendant pleaded not guilty and denied the prior conviction. Trial by jury was duly waived and the cause submitted on the transcript of the preliminary examination, each side reserving the right to offer additional evidence, and that all exhibits received at the preliminary examination be deemed received in evidence at the trial, subject to the court's rulings thereon. Defendant was adjudged guilty as charged. Although no evidence was offered by the prosecution as to the prior conviction, on cross-examination, defendant admitted the same. While the court made no finding as to the prior, it appears that defendant was on probation therefor, and at the time judgment was rendered sentencing defendant to state prison, the court revoked the probation granted her on the previous conviction, and sentenced her to state prison, the sentence to run concurrently with the one pronounced in the instant action. From the judgment of conviction in the present case, defendant prosecutes this appeal.

The factual background surrounding this prosecution as revealed by the record is that at approximately 12:30 a. m. on the morning of February 19, 1957, Officers V. Jones and Douglas Roy MacGregor of the Los Angeles Police Department went to the residence of defendant, an apartment at 947 North Vendome Street, in the city of Los Angeles. Officer MacGregor testified that 'I received information from a confidential source that the defendant was using narcotics and had a quantity of narcotics in her possession.'

'Q. In your opinion was that information reliable? A. It has proven so in the past.

'Q. What do you mean by that, by past? A. I have used this informant on prior occasions.

'Q. Successfully? A. And the information has proved reliable; yes, sir.

'Q. All right. Was the defendant also know to you? A. Yes, sir.

'Q. In what way other than being a dancer, I take it? A. I have known the defendant for a period of approximately two years and I have known her as a narcotic user.

'At that particular time it was heroin.'

When they arrived at defendant's apartment, the officers knocked several times on the door of the apartment but received no answer. They were able to observe that the wall fireplace was 'going full blast' and formed the opinion that someone was in the apartment. They went to the manager's apartment, identified themselves, explained the circumstances of the visit and asked him whether he would admit them to the apartment. The manager opened the apartment and the officers entered it in his company. A quantity of marihuana seeds was found on the bed. The officers left the apartment and awaited the return of defendant. The latter returned at 2:40 a. m. and was placed under arrest when she reached the front door of the apartment. The officers and appellant entered the apartment and a further search was made. When shown the marihuana seeds defendant asked, 'What are they?' Subsequently she stated that some friends of hers had brought the marihuana to her apartment, 'Manicured' it, and smoked it and left some for her own use. When questioned about a pipe she stated that she had not used it to smoke marihuana 'for a couple of years'. She indicated a quantity of marihuana concealed in the toe of a slipper hanging on the closet door.

Officer MacGregor testified further that he had known defendant for some two years prior to the arrest here in question, that when she arrived at her apartment he placed her under arrest. The officer also testified as follows:

'Q. And you put the handcuffs on her and told her she was under arrest? A. I did.

'Q. And did you at that time demand the key to the apartment? A. From her?

'Q. Yes. A. Yes, sir.

'Q. She asked you if you had a warrant? A. Yes, sir.

'Q. And that she would not let you in unless you had a warrant: is that correct? A. That is correct.

'Q. What did you do after that when she refused to let you into the apartment? A. I told her that if she refused to open the door to her apartment that we would only secure the key from the manager.

'Q. And did you go to the manager? A. My partner did, sir.

'Q. And you or your partner opened the door and you went inside? A. I don't recall whether it was myself or my partner. One of us did; yes, sir.

'Q. But all this time the defendant was demanding that you show a warrant before going into the apartment; is that correct? A. Yes, sir.' (Emphasis added.)

Sworn as a witness in her own behalf, defendant denied knowledge of the presence of the marihuana seeds on the bedspread and denied that she showed the officers any marihuana concealed in a slipper, denying all knowledge of its presence in her apartment.

Don William Andre who was with defendant at the time of her arrest corroborated her testimony concerning her demands that the officers show her a warrant and of their refusal to do so.

Defendant's estranged husband Joseph Hamilton Dillard testified that on the night here in question he visited her at her apartment and that, 'I had a big argument and fight with her about 8:30. I came over there to borrow a few dollars and she was going out to dinner with some friends, so she wouldn't give me the money, and I yanked the purse out of her hand and everything, and she ended up giving me a couple of dollars--in fact, she ended up giving me about $5 and the landlord came up and broke the scene up and--you want me to go on with the whole story?' Then the following ensued:

'Q. No. I wanted to know what time it was when you came back the second time. A. The second time--well, she went downtown and I was pretty juiced up. I am not an alcoholic----

'Q. But you were under the influence, you think? A. Yes.

'Q. What did you do while she was downtown? A. Well, I used to work on Main Street for a year and a half down there at the Tip Top. I know a lot of people down there. So I went down there and I kept on staggering around until I ran into somebody and purchased some marijuana and then I went and planted it.

'Q. What do you mean you planted it? A. Well, I went back through the window--I had been through that window a couple of times before. It's covered and pull the curtains down like that and I went in and spread a little bit around and then just took the rest and put it in a container and shoved it into one of her shoes. I did that with the pure intentions, believe me, of just getting her to go back to me. She said, 'You are goofing off too much and when you straighten out, okay.'

And I got drunk--stone drunk--and I did it.

'Q. Did you later go to the Police Department to tell them? A. I certainly did.

'Q. When was that? A. That was after the preliminary. I couldn't know she was going to get into all this trouble over that. I came back to recuperate all the stuff and to see if she had made up her mind and she wasn't there, and so I just went downtown--after I saw what happened on the preliminary, I went and told Officer O'Grady and Mr. Jones that I wanted to confess, that I done it, and that I was sorry, and I was slightly intoxicated.

'Q. How many times did you go to the Police Department to tell them? A. That was the first time. They said, 'Fine, we can't accept it,' and they took me by the hand and gave me a merry heigh-ho and said, 'Come back tomorrow with Carolyn.'

'So I came back with Carolyn and her mother and the landlord and that displeased them completely so they yanked us out in the car--they put us out in the hall and they wouldn't let the witnesses talk and they had three officers and he says to me, 'Well, we are not going to accept your testimony,' and he says, 'Shut your mouth or I'll shove you through the wall.'

'Q. Which officer told you that? A. That was Officer O'Grady and he grabbed my arm and shoved me down and he says they can't accept my confession.'

As her first ground for reversal appellant urges that the entry of the officers into her apartment during her absence was in violation of her constitutional rights and that the evidence produced against her was obtained through an illegal search and seizure. In this regard, as heretofore set forth, when the officers arrived at appellant's apartment they knocked on the door several times and receiving no response they approached the manager who in response to their request opened the door for them. When they entered they discovered the marihuana seeds on the bed. Appellant does not contend that the manager had no authority to enter the apartment, and the manager testified that he voluntarily permitted the officers to enter. On the occasion of the first visit of the officers to appellant's apartment, there was no search. The contraband was plainly visible when the officers entered. The situation here presented is analogous to that existing in People v. Ambrose, 155 Cal.App.2d 513, at page 523, 318 P.2d 181, at page 188, wherein we said:

'The officers asked the hotel manager for authority to enter the room whereupon he opened the door and let them in. The question of consent is to be determined by the trier of fact (citing cases). Upon the...