People v. Foster

• Decision Date: 26 August 1971
• Docket Number: Cr. 8716
• Citation: 97 Cal.Rptr. 94,19 Cal.App.3d 649
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James W. FOSTER, Defendant and Appellant.

Page 94

97 Cal.Rptr. 94

19 Cal.App.3d 649

PEOPLE of the State of California, Plaintiff and Respondent, v. James W. FOSTER, Defendant and Appellant.

Cr. 8716.

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

Aug. 26, 1971.

Hearing Denied Oct. 21, 1971.

Frank O. Bell, Jr., Goorjian & Bell, San Francisco, by appointment of the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Robert R. Granucci, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment entered upon a jury verdict finding him guilty of violation of Health and Safety Code, section 11500 (possession of heroin). Defendant contends that the trial court erred in not instructing on its own motion on the issue of voluntary intoxication and in its comment upon the evidence. He also contends that the arresting officers violated his Fourth Amendment rights. We find none of these contentions to be meritorious.

At approximately 3 p.m. on May 5, 1969, Inspector Martin of the San Francisco Police Narcotic Unit, and three other inspectors, arrived at a 'multi-story apartment house' at 745 Fillmore Street. Martin testified that their purpose in going to the premises was to pursue a 'narcotic investigation.' The four officers entered through the main door of the apartment building and proceeded to apartment number 102. Martin stood outside the apartment door for approximately 15 minutes 'listening or trying to determine words of conversation emitting from the premises.' He could hear male and female voices inside, but could not determine what was being said. At one point he did hear someone use the term 'two-hundred-dollar bag.' Based on his experience, Martin understood that the term, in narcotics parlance, referred to a toy ballon containing heroin worth $200.

As Martin was standing in front of the door, he heard a male voice state that 'he was going to leave the premises.' The door was opened by a male identified as a Mr. Dibbles. Martin identified himself by stating 'Police' and by exhibiting his badge. Dibbles immediately 'popped a couple of colored objects into his mouth.' These objects appeared to be 'toy balloons tied down to a ball shape.'

Martin observed defendant standing inside the apartment approximately four or five feet behind Dibbles. When defendant saw Martin, he placed a colored object in his mouth. The object resembled the colored toy balloons disposed of by Dibbles. Martin entered the room and approached defendant. Inspector Arrieta, who had joined Martin, told defendant to spit out the object he had placed in his mouth. Defendant then spat out a toy balloon containing a substance subsequently determined to be 1.6 grams of heroin. Martin also testified that another person in the room had 10 balloons containing heroin in his possession.

Defendant testified that he had been drinking about three days when he arrived at the apartment. After approximately 45 minutes inside the apartment, he heard voices outside saying, 'Okay, get 'em up; get 'em up.' Dibbles then passed by defendant and told him to 'Hold this bag. I think I hear somebody in the doorway or the bathroom window.' According to defendant, he took the object from Dibbles and 'put it in my mouth.' When asked the reason for placing the object in his mouth, defendant replied, 'I don't know why.' With regard to his knowledge of heroin, defendant testified that he had 'an idea what it is,' but that he had not 'possessed any since 1960.' He testified that he did not know that the object he had placed inside his mouth contained heroin.

Martin testified that he did not detect 'any smell of alcohol' on defendant, and that defendant did not appear to be intoxicated. Martin also testified that he did not observe any contact between defendant and Dibbles or anyone else prior to defendant placing the balloon in his mouth.

We advert, first, to the Fourth Amendment contention. The main thrust of defendant's argument is that the police officers had no right to intrude on his reasonable expectations of privacy by listening at the door of the locked apartment for an extended period of time with the hope that someone might open the door. The basis for this contentions is the holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713.

Defendant's reliance on Katz and Edwards is misplaced. Katz held that the listening to and the recording of the defendant's words by means of an electronic device while he was in a telephone booth violated the privacy upon which he justifiably relied and therefore constituted a 'search and seizure' within the meaning of the Fourth Amendment. (389 U.S. at p. 353, 88 S.Ct. 507, 19 L.Ed.2d 576.) Edwards held that the search of a trash can within a few feet of the back door of the defendant's home constituted an unreasonable search and seizure in violation of the Fourth Amendment. (71 Cal.2d at p. 1104, 80 Cal.Rptr. 633, 458 P.2d 713.) In the present case the police did not obtain evidence by the use of an electronic device nor was the evidence obtained by them the product of an illegal search and seizure. The conversation heard by the police officers was such as could be heard by anyone present in the common area outside the apartment. The common hallway of an apartment building is not a constitutionally protected area within the purview of Katz. (People v. Seals, 263 Cal.App.2d 575, 577, 69 Cal.Rptr. 861.)

Even assuming that the listening by the officers at the apartment door was improper, such impropriety has no bearing on the validity of defendant's conviction since what was heard in no way affected the legality of the arrest or the discovery of the contraband. It was the officers' observations through the open door from an area which was not constitutionally protected and not the content of what was heard that gave rise to the probable cause for defendant's arrest. The opening of the door was not occasioned by any act or conduct of the officers. In Seals we held that the observations of police officers of what was in plain view while they stood in the common hallway of an apartment building, which they had entered without express permission and without a warrant, did not do violence to the Constitution. (At p. 577, 69 Cal.Rptr. 861.) (See Mann v. Superior Court, 3 Cal.3d 1, 7, 88 Cal.Rptr. 380, 472 P.2d 468.)

Defendant's next contention dealing with the alleged failure of the trial court to instruct on its own motion on the issue of voluntary intoxication must be considered in the light of the general rule 'that the trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence, even though not requested to do so, but need not instruct on its own motion on specific points developed at the trial. (Citations.)' (People v. Hood, 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 620, 462 P.2d 370, 372; see People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116.) In Wade the Supreme Court pointed out that the "general principles of law governing the case" are 'those principles of law commonly or closely and openly connected with the facts of the case before the court.' (At p. 334, 1 Cal.Rptr. at p. 691, 348 P.2d at p. 124.) We must, therefore, determine whether, in a prosecution for possession of narcotics, evidence of voluntary intoxication is 'commonly or closely and openly connected with the facts of the case before the court,' thus requiring an instruction on the issue by the court on its own motion.

Voluntary intoxication is neither an excuse for nor a defense to a crime. (Pen.Code, § 22; People v. Hill, 22 Cal.2d 863, 866, 141 P.2d 418; People v. Dorman, 28 Cal.2d 846, 853, 172 P.2d 686.) In some cases, however, voluntary intoxication may be considered by the trier of fact. The applicable principle is stated thusly in Penal Code, section 22: 'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.'

Penal Code, section 22 has been construed to mean that voluntary intoxication may not be considered when the crime charged is a 'general intent' crime, i.e., one requiring nothing more than the intent to do the proscribed act, but that it may be considered in determining whether a particular purpose, motive or intent actuated the accused. (See People v. Hood, supra, 1 Cal.3d 444, 458--459, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Woods, 157 Cal.App.2d 617, 622, 321 P.2d 477; People v. Avanzi, 25 Cal.App.2d 301, 302, 77 P.2d 237; People v. Murphy, 1 Cal.2d 37, 40, 32 P.2d 635; People v. Burkhart, 211 Cal. 726, 731, 297 P. 11.) Accordingly, where specific intent is a necessary element of the crime, the jury may consider the fact of the defendant's voluntary intoxication. (People v. Houghton, 212 Cal.App.2d 864, 868, 28 Cal.Rptr. 351; People v. Baker, 42 Cal.2d 550, 572--573, 268 P.2d 705.)

Where the statutory rule that the jury may consider voluntary intoxication when the actual existence of a particular purpose, movive or intent is a necessary element is applicable, the court has a duty to convey this rule to the jury by a proper instruction and the failure to do so constitutes error. (People v. Baker, supra, 42 Cal.2d 550, 572--573, 268 P.2d 705; see People v. Spencer, 60 Cal.2d 64, 87, 31 Cal.Rptr. 782, 383 P.2d 134; People v. Arriola, 164 Cal.App.2d 430, 435, 330 P.2d 683.)

To establish unlawful possession of narcotics, the People must prove three elements: (1)...