People v. Estrada

• Decision Date: 03 May 1965
• Docket Number: Cr. 4504
• Court: California Court of Appeals Court of Appeals
• Parties: , 11 A.L.R.3d 1307 PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Ramirez ESTRADA, Defendant and Appellant.

Page 165

44 Cal.Rptr. 165

234 Cal.App.2d 136, 11 A.L.R.3d 1307

PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Ramirez ESTRADA, Defendant and Appellant.

Cr. 4504.

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

May 3, 1965.

As Corrected on Denial of Rehearing May 25, 1965.

Hearing Denied June 30, 1965.

Bernard F. Cummins, Martinez, for appellant (under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

A jury found defendant guilty of possession of a narcotic (heroin) (Health & Saf. Code § 11500), receiving stolen property (Pen.Code § 496) and possession of a weapon by a person convicted of a felony (Pen.Code § 12021). ¹ He appeals from the judgment of conviction.

On April 23, 1963 a search warrant was issued to San Jose Police Sergeant Donald Ewing by a judge of the Municipal Court for the San Jose-Alviso Judicial District, County of Santa Clara, authorizing the search of three houses including 'the apartment house occupied by MANUEL ESTRADA at 18 S. 19th Street, San Jose,' automobiles in the custody of defendant at each place including 'in particular, a 1955 Chevrolet automobile, California license number DFA 066 used by said MANUEL ESTRADA,' and of the person of said defendant. The warrant was directed to the discovery of narcotics and narcotic paraphernalia.

In the afternoon of the same day Sergeant Ewing went to 18 South 19th Street and from a vehicle parked across the street kept the apartment house under surveillance. At about 4 p. m. he saw defendant leave the building in a car. Ewing immediately radioed other officers to follow and overtake defendant. He himself remained where he was with the search warrant in his possession.

San Jose Police Sergeant Stanley M. Hardman and Deputy Sheriff Stanley E. Shaver, who had been participating in the 'stake-out' at the apartment house, followed defendant in separate cars and eventually intercepted him about a mile away. The two officers approached the car on different sides. Shaver ordered defendant out of it, placed him under arrest, handcuffed him and proceeded to search his person. He had no warrant for defendant's arrest. Although Shaver testified on direct examination that up to the time defendant alighted from the car he had committed no misdemeanor in his presence, he also stated under cross-examination that he had arrested defendant for marked drug addiction in violation of Health and Safety Code section 11721, a misdemeanor. Recalled by the prosecution later in the trial, Shaver testified that at the time he arrested defendant and in response to the latter's request as to 'what this was all about,' he told defendant that he was under arrest for the sale of heroin.

The search of defendant's person produced $630 in currency, a wallet and a toy balloon. Although Officer Shaver testified that in making the search they were operating under the above-mentioned search warrant, he also stated that he did not have the warrant in his possession at the time of the search and defendant was never provided with a copy of it.

After he was searched, defendant was taken back to his apartment house in Hardman's car. Hardman drove and defendant sat in the rear seat in the custody of Deputy Sheriff Aslanian who, on defendant's complaint that his handcuffs were too tight, handcuffed him in front instead of behind. During the ride defendant was smoking a cigarette, a circumstance claimed to be of some significance. At the time of the arrest, about 4:15 p. m., both Shaver and Hardman had seen needle marks on defendant's arms. While no one saw defendant burn his arms, at 7:30 p. m. the marks were no longer visible and in their place were burns and blisters showing a charring and discoloration of the flesh. Defendant told Shaver that he received the burns at work on a hot pipe.

On arrival at the apartment house, Hardman left defendant in the car in the custody of another officer and handed over to some of the other officers a key to an 'Apartment C' which he had taken from defendant. Although Shaver testified that defendant was not provided with a copy of the warrant, Sergeant Ewing testified that at about this time he went down to the car where defendant was, showed him the search warrant and started to read it, whereupon defendant stated 'I can read.' Ewing then showed defendant the original warrant and gave him a copy.

Shaver and another officer then attempted to enter defendant's apartment by using the key but, finding the door locked on the inside, had to kick it in. They found there one Dolly Gonzalez, a person known to the police as a narcotics addict. Sergeant Ewing and the other officers followed them in and all of the group then commenced a search.

There were four apartments in the building, apartments A and D on the lower floor and apartments B and C on the upper floor. Only apartments A and C were occupied--the former by the manager Mrs. Smith and the latter by defendant. Defendant had moved into apartment C approximately a month before; prior to that time it had been vacant for three months.

The search made by the officers revealed the following: Deputy Sheriff Shaver found some toy balloons on an ironing board in the center of the dining area where the woman, Dolly Gonzalez, was standing. Shaver and Hardman found pieces of balloons, bindles, or squares of paper, inside a paper sack used to hold trash in defendant's kitchen. Four of the used bindles or pieces of paper contained the residue of a powdery substance later found to be heroin. Hardman found some unused bindle papers in the top of a shoe box on top of the refrigerator. Shaver was also present when a garbage can located outside the building marked 'Apartment C' was searched and found to contain more pieces of balloons and squares of paper.

In defendant's room, Sergeant Ewing found some empty balloons on the night stand and a torn piece of the San Jose Mercury-News dated April 21. Sergeant Ewing then searched a back porch connected to defendant's apartment and the apartment next door, discovered a trap door, and upon searching the interior leading from the trap door, discovered a small piece of brown wrapping paper containing a green leafy substance later identified as marijuana.

Deputy Shaver searched the exterior of the building. His first discovery on a ledge underneath the building was of two packages of balloons. He then searched a growth of ivy on a fence alongside the building and discovered a bag containing seven balloons which were untied but rolled in such a way that the contents wouldn't spill out. Each balloon contained paper bindles in each of which there was a powdery substance later identified as heroin.

In the ivy, about two feet from where he found the balloons, he also found a package wrapped in a piece of the San Jose Mercury-News dated April 21, 1963 containing a blackened spoon, three hypodermic needles, two eyedroppers and needle holders. The spoon was subsequently tested and the results of the test revealed that traces of heroin remained on the spoon. The piece of newspaper which was wrapping the paraphernalia was subsequently found to match the piece of newspaper discovered in defendant's bedroom.

Sergeant Hardman found some weapons buried in the ground between the building and the ivy covered fence, about three feet from the place where Shaver found the balloons. The weapons which were found were later identified as belonging to one Frank Cortez, the owner of a sports shop at 979 North Main Street, Salinas, from which the weapons, two Derringers and four revolvers, were stolen sometime during April 22 or 23. At least one Derringer and five rifles stolen from the shop were not recovered. Among the rifles was a Browning .22 automatic.

On April 24, 1963, the day after defendant's arrest and the search of his apartment, Sergeant Hardman made a search of defendant's car and discovered a Browning automatic .22 registration card. In the trunk of the car he found a shovel which had some soil on it. Hardman took a sample of the soil on the shovel and a sample of soil from the area where he found the weapons buried, together with a sample of grass from that area, and took all three samples to the Criminalistics Laboratory for the Santa Clara County District Attorney's office. The tests showed that the two samples of soil were very similar and that the grass in both samples was of the same species. No fingerprint tests were taken from the shovel. The registered owner of the car was not the defendant but a Mr. David Rios Garcia, who had been convicted for possession of narcotics paraphernalia.

On April 29, 1963, Deputy Shaver resumed his search of the exterior of the building at 18 South 19th Street with the manager's permission. He found, buried in the ground, a jar containing a rubber prophylactic. The contents of the prophylactic were later identified as heroin.

Defendant did not take the stand nor did he call any witnesses in defense. After the prosecution rested at the conclusion of its case in chief, counsel for both parties stipulated that David Rios Garcia, the registered owner of the car driven by defendant, had pleaded guilty to a violation of Health and Safety Code section 11555 (possession of narcotic paraphernalia) as charged in a complaint filed in the Municipal Court for the San Jose-Alviso Judicial District on December 4, 1961. ²

The legality of the search warrant.

Defendant contends that the search warrant under which the search and seizure were carried out was void since it failed to describe the premises to be searched with sufficient particularity to satisfy constitutional and statutory requirements. ³

In the instant case, after stating that there was probable cause for believing that certain narcotics and narcotic paraphernalia were concealed 'in the...