People v. Feeley, Cr. 6821

• Decision Date: 21 March 1960
• Docket Number: Cr. 6821
• Citation: 179 Cal.App.2d 100,3 Cal.Rptr. 529
• Parties: PEOPLE of the State of California, Plaintiff and Pespondent, v. Leo F. FEELEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 529

3 Cal.Rptr. 529

179 Cal.App.2d 100

PEOPLE of the State of California, Plaintiff and Pespondent, v. Leo F. FEELEY, Defendant and Appellant.

Cr. 6821.

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

March 21, 1960.

As Modified on Denial of Rehearing April 5, 1960.

Hearing Denied May 18, 1960.

Leo F. Feeley, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., A. Douglas MacRae, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment of conviction (three counts) of selling narcotics.

In an indictment returned in Los Angeles on February 17, 1959, the appellant was charged in Count I thereof with unlawfully selling amidone on or about December 2, 1958, and in Count II thereof with unlawfully selling amidone on or about December 4, 1958. In another indictment returned on February 18, 1959, the appellant with Russell J. Fonseca and Mary Fonseca was charged with selling heroin on or about December 11, 1958. The appellant appeared in propria persona and pleaded 'Not Guilty.' At the request of the appellant the causes were consolidated for trial. The jury found the appellant guilty as charged in each count. A motion for a new trial was made. The public defender was appointed to assist the defendant in the preparation of the motion for new trial. A probation officer's report was ordered. The motion for a new trial was denied. Probation was denied and appellant was sentenced to imprisonment in the state prison for the term prescribed by law on each count, the sentences to run consecutively.

A resume of the facts is as follows:

At about 11:50 a. m. on December 2, 1958, Policeman Villalba, assigned to the narcotics squad, as an unercover agent, approached the appellant at the southwest corner of Temple Street and Beaudry Avenue and said, 'Sell me a half, Leo, so I can split.' Appellant replied, 'I still don't know you, do I?' Villalba answered, 'I don't see why not. Everybody else does.' Appellant then went to the rear of a hot dog stand nearby and returned and handed the officer a portion of a yellow ballon containing five capsules filled with a powdery substance, which later was determined to be amidone. The officer gave the appellant a $10 bill. On December 4, 1958, at about 12:35 p. m. Villalba again approached appellant at the hot dog stand at the same intersection heretofore mentioned and inquired if he had 'any stuff.' Appellant replied that he did have and Villalba stated that he wanted a one-half gram and he gave appellant a $10 bill. Appellant then pointed to a rock or piece of asphalt over which he was standing close by the west wall of the hot dog stand and said, 'It's under that rock. Pick it up.' The officer turned the rock over, saw a blue ballon, picked it up and returned it to the Police Building. The ballon contained five capsules filed with a powdery substance which was determined to be amidone.

At about 12:00 noon on December 11, 195, Villalba, still operating as an undercover narcotic agent, approached Russell Fonseca at the same intersection heretofore mentioned and asked if anybody was around and Fonseca stated, 'Are you trying to make it?' The officer stated that he was. About that time appellant and a female who later was identified as Mary Fonseca drove up in a 1955 green Dodge station wagon. Fonseca handed appellant the $10 bill which Villalba had given Fonseca and appellant and the female drove away. At about 12:15 p. m. that same day appellant and the female returned and told Fonseca and the appellant to get into the car. Appellant then drove south on Beaudry Avenue. Appellant said to the female, 'This guy puts me to sleep. One of these days I am going to fix with him. Give him 5 caps.' She then handed Villalba 5 capsules containing a white powdered substance which was later examined and found to be heroin. The female handed the officer a piece of paper and suggested that he put the capsules in the paper. The appellant drove the car to Second Street where he stopped and told Villalba he could catch a bus from there. Villalba got out of the car.

Appellant introduced into the record evidence to the effect that he knew Villalba to be a policeman and that he did not sell him any narcotics. He further stated that he did have some 'stuff' in November but not in December; that in December he took a blood test and 'wasn't fooling with no stiff in December.' He also said that in February he was 'just chipping now and then' and that he had 'scored' 'right there on the corner' but he refused to name his supplier.

The appellant called Officers Schubach and Walker as witnesses and their testimony indicated that such officers had received information from Sergeant Logue and Captain Madden of the narcotics division that appellant was wanted for the sale of narcotics. A warrant for appellant's arrest had been issued and the officers were so informed. However, they did not have the arrest warrant within their immediate possession. The officers went to 1147 West 54 th Street where an apartment house is located and there recognized the appellant's automobile which was parked in front of the address just named. The officers parked the police car about one-half block away and walked to the apartment house. They did not know which apartment the appellant occupied, but upon looking through the front window they saw appellant sitting in the front room. Sergeant Walker went to the rear door which was unlocked and entered while Schubach and Frederickson went to the front door, opened it, walked in and placed appellant under arrest. Appellant asked Officer Schubach if he had a search warrant and Schubach answered that he did not have one and that he did not need one. Officer Walker stated that he did have a search warrant to enter the house but they did not have it with them in their immediate possession. Schubach asked appellant if he had any narcotics in the house and appellant answered, 'No.' Schubach said, 'Well, I am going to search anyway.' In the course of the search the officer found a black leather jacket containing 15 capsules of heroin. The time of the entrance into the appellant's apartment was about 2:30 a. m., Saturday, February 21, 1959.

Appellant stated at first the the heroin was not his. The appellant thereafter inquired about the penalty for possessing narcotics and was told 'Two to twenty.' Schuback indicated that everybody in the house would have to go to the station until it was determined who owned the narcotics in the jacket and appellant thereupon stated, 'Well, it's my stash. It's my narcotics. So, I will take it.' Appellant was asked if he was still dealing in narcotics and he answered, 'No, I am not dealing any more because of the fact that after Barber arrested me I quit.'

Appellant contends that (1) he was denied 'due process at time of arrest'; (2) he was denied 'due process at time of trial'; (3) 'the Court committed prejudicial misconduct'; (4) 'the prosecutor was guilty of misconduct'; (5) 'the Court was in error in consolidating cases'; (6) 'the Court lost jurisdiction in continuance'; and (7) 'the Court was in error in pronouncing judgment.'

Appellant asserts under his first contention that the arresting officer failed to produce the warrants at the time of the arrest and that under Section 842, Penal Code the arrest is illegal. Section 842 of the Penal Code reads as follows:

'An arrest by a peace officer acting under a warrant is lawful even though the officer does not have the warrant in his possession at the time of the arrest, but if the person arrested so requests it, the warrant shall be shown to him as soon as practicable.'

The wording clearly provides for the very course of conduct which was followed in this case.

Appellant further insists that the officers must have had to walk around the house and look into the windows, otherwise they could not have seen him. It is settled in this state that simply looking through a window does not constitute an unreasonable search. People v. Martin, 45 Cal.2d 755, 762, 290 P.2d 855.

Appellant also complains that the officers entered the apartment without asking his permission to enter or 'without stating their purpose for admittance' and that such conduct was in violation of the provisions of Section 844, Penal Code which reads as follows 'To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.'

The officers in this case clearly had a right to enter the apartment for the purposes of arresting the appellant and there would seem to be no compelling need under the circumstances to adhere meticulously to the provisions of the code section in question. In any event, the officers did not break open a door or a window of the house in which the appellant was then located. Further, in this case none of the narcotics uncovered as a result of the entry and search were offered in evidence and hence it is difficult to see how the matter of entry could affect the real question involved in this particular case; namely, did the appellant sell narcotics on the days mentioned in the indictment.

Appellant was arrested on February 21, 1959 and was not brought before a magistrate until February 26, 1959. The contention to the effect that the delay was fatal was first raised on appeal. This cannot be done. People v. Watts, 126 Cal.App.2d 659, 662, 272 P.2d 814; People v. Blankenship, 171 Cal.App.2d 66, 340 P.2d 282.

Furthermore, appellant does not make any claim that there was any adverse effect resulting from the delay. Under Section 825 of the Penal Code the delay must materially affect the outcome of the trial. People v. McCrashky, 149 Cal.App.2d 630, 637, 309 P.2d...