People v. Garcia

Decision Date20 May 1964
Docket NumberCr. 8950
Citation38 Cal.Rptr. 670,227 Cal.App.2d 345
PartiesThe PEOPLE, Plaintiff and Respondent, v. Roberto Vargas GARCIA, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Mattews & Cooney and Al Matthews, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for respondent.

FORD, Justice.

By an information filed on November 27, 1962, the defendant was accused of a violation of section 11500 of the Health and Safety Code, a felony. It was alleged that on or about November 5, 1962, in the County of Los Angeles he 'did willfully, unlawfully and feloniously have in his possession a narcotic, to wit, heroin.' In the information it was also alleged that defendant had suffered two prior felony convictions, both being for violations of section 11500 of the Health and Safety Code. In a trial by the court without a jury the defendant was found guilty as charged and the allegations as to the prior convictions were found to be true. The court found him to be ineligible for proceedings under the provisions of section 6451 of the Penal Code. 1 (See Pen.Code, § 6452.) The defendant's counsel agreed that the defendant was not eligible for probation. The defendant declined to file an application for probation and stated that he refused probation. He requested that he be sentenced immediately. He was sentenced to imprisonment for the term prescribed by law. This appeal is from the judgment.

Since one of the defendant's contentions on appeal relates to the admission in evidence of certain exhibits over the defendant's objection made on the ground that they were inadmissible because secured as the result of an illegal search and seizure, a summary of the testimony as to the circumstances under which that evidence was obtained will be given.

Howard C. Evans, a police officer for the City of Los Angeles assigned to the narcotic division, testified that he had received information that one Richard Madrid was selling narcotics at Charley's Bar and the Manila Cafe at Second and Hill Streets. Officer Evans and his partner went to Second and Hill Streets where, at approximately 9 p. m., Officer Evans observed the defendant walking on the sidewalk. Defendant appeared to give recognition to an individual in the cafe. He then entered Charley's Bar on the corner. The officer thought that the defendant was Richard Madrid and followed him into the bar. When the defendant observed the two officers he '[s]huffled his feet and jumped in the air off the floor approximately a foot or so, and he appeared to swallow at the same time.' The defendant then walked out of the bar to the sidewalk, where Officer Evans stopped him. With the aid of a flashlight, the officer observed the defendant's eyes and noticed that they were contracted. Officer Evans asked the defendant if he was a user of narcotics and he stated that he was. Officer Evans asked him how long it had been since 'he had a fix' and the defendant mentioned the time of 5 o'clock that evening. Defendant was then taken to the police car where he displayed his arms to the officers. Officer Evans observed a fresh needle mark on the defendant's right arm, as well as several other marks. At this time the defendant was under arrest for being under the influence of narcotics. 2

Upon further questioning, the defendant stated that he lived on 37th Street. At this time Officer Evans observed a small round tag hanging from the defendant's waistband or by his belt. The tag had the number 311 on it. He asked the defendant what it was and the defendant produced a key. Officer Evan's partner examined the defendant's papers to determine his identity and place of residence and found a rent receipt of the Rose Hotel. On the top of the receipt was the number 311, corresponding to the number on the tag. The officers asked the defendant if he lived at the Rose Hotel. He replied that he did not but had occupied a room there the night before and was currently living with his aunt at First and Clarence. Officer Evans further testified as follows: 'At this time I said, 'Well, how about going over and looking at your room here at the Rose Hotel,' and he said, 'Sure, let's go.' He said, 'I don't live there any more.' So I asked him the location of the Rose Hotel, and he said it was near First and Clarence Street, somewhere around there. So we proceeded in that direction, and while outbound on First Street, I passed Rose Street. I am acquainted with that area, and there is a Rose Hotel south of First Street. * * * We asked the defendant first if this was the hotel, and he was evasive, said he wasn't sure. We went to the * * * hotel and checked with the manager, and he stated no, the defendant was not registered there, and he had no room 311. We then proceeded out First Street to Soto Street and northbound to 150 North Soto Street, the Rose Hotel. And upon going inside, we located room 311. I inserted the key in the lock, and the door unlocked.'

Officer Evans did not recall that the defendant said anything when they reached room 311 and the officer inserted the key in the lock. The defendant was then standing by his side. Inside the room the officers found articles of clothing, which the defendant admitted were his, 3 a letter addressed to the defendant, three balloons containing a white powdery substance, 4 and a 'hype kit.'

On cross-examination, Officer Evans stated that he did not have a warrant for defendant's arrest and that he did not have a search warrant with respect to the defendant or any dwelling in which he lived.

No testimony in his own behalf was presented by the defendant.

In view of the defendant's appearance which warranted a belief in good faith on the part of Officer Evans that the defendant was then under the influence of a narcotic, the arrest at Second and Hill Streets was proper. (People v. Rogers, 207 Cal.App.2d 254, 259, 24 Cal.Rptr. 324.) The defendant contends, however, that the search of room 311 cannot be justified as incident to his arrest for it was distant from the place of arrest and not contemporaneous therewith. Since the search was made without a warrant, the burden was on the prosecution to show proper justification. (People v. Shelton, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665.) As stated in the recent case of Stoner v. California, 376 U.S. 483, at page 486, 84 S.Ct. 889, at page 891, 11 L.Ed.2d 856: 'But a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.' In accord is Castaneda v. Superior Court, 59 Cal.2d 439, 30 Cal.Rptr. 1, 380 P.2d 641. The evidence herein indicates that the search took place some blocks away from the place of arrest and, under the rule just stated, it cannot be justified as incident to the arrest. (People v. Shelton, supra, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665.)

If, however, the defendant freely consented to the search of the hotel room, it was not necessary for the People to show that the search and seizure were reasonable as incident to a proper arrest before the articles found could be received in evidence. (People v. McLean, 56 Cal.2d 660, 664, 16 Cal.Rptr. 347, 365 P.2d 403.) But the defendant contends that there was not a free and voluntary consent on his part because he was in custody, was evasive and non-cooperative, and was under the influence of a narcotic.

Whether in a particular case consent to a search was voluntarily given is a question of fact to be determined by the trier of fact in the light of all the circumstances. (People v. Shelton, supra, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665.) The fact that the defendant was under arrest was a circumstance of particular significance in the determination of the question of consent (see Castaneda v. Superior Court, supra, 59 Cal.2d 439, 443, 30 Cal.Rptr. 1, 380 P.2d 641), but it was not conclusive with respect to that issue. (People v. Fischer, 49 Cal.2d 442, 448, 317 P.2d 967.) Moreover, the fact that the defendant was under the influence of a narcotic did not necessarily preclude the giving of a voluntary consent. (See People v. Waack, 100 Cal.App.2d 253, 256-257, 223 P.2d 486; People v. Sanchez, 191 Cal.App.2d 783, 790, 12 Cal.Rptr. 906; cf. People v. Dorman, 28 Cal.2d 846, 854, 172 P.2d 686.) It is true that conduct on the part of a defendant subsequent to his giving an apparent consent to a search may establish that the apparent consent was not voluntarily given. (People v. Shelton, supra, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665; Castaneda v. Superior Court, supra, 59 Cal.2d 439, 443, 30 Cal.Rptr. 1, 380 P.2d 641.)

In the present case, however, the trial court was warranted in finding that the defendant voluntarily consented to the search of room 311 of the Rose Hotel. The stop at the first hotel was brought about by Officer Evans rather than by the defendant. The defendant's uncertainty as to whether the Rose Hotel on Rose Street was the one in which he had registered was equivocal on the issue of whether he was then engaging in evasive conduct. A review of the evidence leads to the conclusion that there was no conduct on the defendant's part subsequent to his statement that the officers could look at the room which, as a matter of law, made it mandatory for the trier of fact to find that the consent to the search was not voluntary. (Cf. People v. McCoy, 195 Cal.App.2d 655, 16 Cal.Rptr. 117; People v. White, 159 Cal.App.2d 586, 592-594, 324 P.2d 296.) Apropos is the reasoning of the court in the McCoy case which was expressed as follows (195 Cal.App.2d, at page 658, 16 Cal.Rptr., at page 119): 'In the instant case appellant's denial of residency did not affect, and certainly did not destroy, the fact of his consent to the search of the room. Appellant did reside in the room; he had...

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