People v. Garcia

• Decision Date: 05 December 1960
• Docket Number: Cr. 7018,7167
• Citation: 9 Cal.Rptr. 493,187 Cal.App.2d 93
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel GARCIA, Jr., et al., Defendants, Manuel Garcia, Jr., Defendant and Appellant.

Page 493

9 Cal.Rptr. 493

187 Cal.App.2d 93

PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel GARCIA, Jr., et al., Defendants Manuel Garcia, Jr., Defendant and Appellant.

Cr. 7018, 7167.

District Court of Appeal, Second District, Division 2, California.

Dec. 5, 1960.

Claude Vibart Worrell, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Dep. Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant has appealed from the judgment of conviction on Counts II and III of the information and from his later conviction on Count I. He has also appealed from the orders denying his motions for a new trial.

In Count I appellant and four others were charged with a conspiracy under section 182, subdivision 1, of the Penal Code to violate section 11500 of the Health and Safety Code. In Count II these same persons were charged with possession of heroin, and in Count III appellant alone was charged with violation of section 12021 of the Penal Code (Dangerous Weapons Control Law). Appellant was also charged with three prior convictions, which he admitted. Appellant was found guilty on Counts II and III but the jury failed to reach a verdict on the conspiracy charge. He was later re-tried on the conspiracy count and found guilty. He was sentenced to the state prison, the sentences to run concurrently.

In view of appellant's contentions that the narcotics evidence was illegally obtained and that the evidence is insufficient to sustain his conviction on any of the charges, it is necessary to delineate the evidence in considerable detail leading up to his arrest and the discovery of heroin and the firearms.

Edward J. Sanchez, a Los Angeles police officer, placed appellant under arrest along with co-defendants Rodriguez and Mary Ventura on February 16, 1959. Prior to these arrests the officer had accumulated considerable information concerning appellant and his activities. The first information he had was received from Officer McCarville on July 25, 1958. It was to the effect that Bobby Luera and Sara Cruz had been arrested for the possession of 12 ounces of heroin. They told Officer McCarville that the heroin belonged to a person known as Manuel or 'Boxie.' Sanchez then went to the county jail where he talked to Miss Cruz; she told him that Manuel or Boxie owned the narcotics; that he lived around the 3700 block on East Third Street in East Los Angeles, but that she did not know his full name. Sanchez first ascertained appellant's name by checking the 'monicker' file in the police records bureau; he learned that the name 'Boxie' was associated with Manuel Garcia, Jr. Officer McCarville later informed Sanchez that he had had a conversation with a person by the name of Lalo Gandera; that this person had told him that he had been a runner in narcotics for Manuel or Boxie. Gandera explained to the police the method by which he contacted appellant, viz., by calling a certain telephone number and asking for Mary Ventura, appellant's sister, who would put him in touch with appellant. Gandera gave this number to the officer, who called the number but was not able to locate the sister in that way. He then went to the vicinity of the 3700 block on East Third Street and ascertained that the sister and her family had moved; the neighbors did not know her address.

In December, Officer Sanchez received a telephone call from a person who did not identify himself, but the officer recognized his voice as that of Lalo Gandera. He asked the officer if he still wanted to get in touch with Manuel or Boxie. The officer said 'Yes.' Whereupon Gandera gave him a telephone number and told him that it was the number of Mary Ventura, appellant's sister. Sanchez called the number, which was answered by a female voice. He asked for Mary, and the voice responded, 'This is her, what do you want?' Sanchez said, 'This is Lalo.' He told her that he wanted to get hold of Manuel to pick up an ounce of stuff. She asked for his telephone number, which the officer gave. About a minute and a half later the telephone rang and a male voice greeted the policeman. Officer Sanchez said, 'This is Lalo.' The voice replied, 'You are not Lalo' and hung up.

Early in January, 1959, Sanchez made a second call to the telephone number that Gandera had given him. A female voice answered, 'This is Mary. What do you want?' Sanchez said he wanted Manuel so he could get five grams of narcotics. He told her where he was, and she stated, 'I'll be right down.' No one came, however. The officer later had an opportunity to talk to appellant and his sister, Mary Ventura, and then recognized their voices as being those of the persons to whom he had talked on the above mentioned occasions.

On November 25, 1958, Officer Sanchez had a conversation with Raymond Acuna, who said that he had handled narcotics for appellant in the past; he stated that the narcotics he got from appellant were peculiar in that they made his arm numb. The officer explained that this effect was produced by the narcotic having been cut with novocain. The officer inquired of Acuna as to the manner in which the narcotic transaction had been handled. Acuna said that appellant would come to his house at night and pick up the money and then the next day a runner would bring the narcotic to him. The narcotic always came packaged in rubber containers. Acuna and Gandera told the officers that they received $100 a week plus all the narcotics they could use, for their services as runners.

Sanchez looked up appellant's record and discovered that he had been convicted of violating the laws relating to narcotics. Sanchez also spoke to Policeman Joe Aguirre, who said that he had bought heroim from appellant a few years ago, and that he had been sent to the state prison for that offense.

The officers observed a meeting between appellant and a person named Edward Vega Casto. Various narcotic addicts had told the police that he was a dealer for appellant. During the course of their conversation, the officers observed something change hands.

At about this time Officer Sanchez spoke to one Martin Mendoza, whom he had known for years. Mendoza informed him that appellant drove a white '58 T Bird, and was called 'T Bird Boxie.' The officer had received reliable information from Mendoza on a prior occasion.

Early in February, Sanchez and Officer McCarville went to the Monterey Park Police Department when investigating a narcotic dealer by the name of Ira Leonard Lamb. The Los Angeles Police had, on several occasions, arrested Lamb on charges of narcotic possession. The Monterey Park Police showed them a list of license numbers that frequented Lamb's residence. One of the numbers was RFS-347, which was registered to appellant's sister and used by him. Sanchez checked the records for purchases of new homes in the Montebello area under appellant's name. He found that a recent purchase had been made of the property at 2425 Via Camille by appellant and Frances Garcia. At this address the officers saw a 1958 Thunderbird in the driveway, bearing license No. RFS-347. A check with the Department of Motor Vehicles disclosed that the car was registered to Mary Ventura, appellant's sister.

At approximately 2:00 p. m. on February 16th, the day of the arrest, Philip Rodriguez arrived at 2425 Via Camille, in Los Angeles, with a woman and a small child. About half an hour later he left alone and drove to a drug store. Officers Sanchez and McCarville followed him. He came out of the drug store in a few minutes carrying a package. Officer McCarville went inside and spoke to the druggist, who informed him that Rodriguez had just purchased three dozen prophylactics and a can of milk sugar. Sanchez followed Rodriguez back to the house on Via Camille. Prophylactics are commonly used to package heroin, and milk sugar is used to cut it. Rodriguez, with his wife and child, left the house about 4:45. The police followed and had him pull over to the curb. In his conversation with the police, Rodriguez said he knew no one living on Via Camille. The officers asked what he did with the purchase he had made at the drug store. Rodriguez said he knew nothing about any purchase; that they must have the wrong person. A search of his car was nonproductive. Sanchez told him they had seen him make the purchase. Rodriguez then said he probably left them in the house. The occupants of the Rodriguez car were left with another policeman; Sanchez and McCarville returned to the Via Camille address. McCarville went to the rear of the house while Sanchez approached the front. He knocked on the door and a female voice said, 'Who is this?' Sanchez replied, 'Police officers, open the door.' The female voice said, 'No, I won't.' He also overheard the woman say, 'Quick, let's get out of here,' and he heard what seemed to be someone running through the house. He forced the front door open and ran to the bathroom. In the center of a cocktail table in the living room there was a blue milk sugar can; he looked into it and saw a quantity of rubber containers tied with knots, each having a portion of whitish powder in it. At approximately this time, Rodriguez and his wife, as well as appellant and Edith Diaz, were brought in by other officers. The police proceeded to search the house. In the rear bedroom closet were found several jars containing a whitish powder; a pharmacist's mixing bowl, and 18 prophylactics, all in a brown satchel with another can of milk sugar. The whitish powder proved to be heroin. The narcotics were valued at $25,000.00. Appellant stated that he knew nothing about this narcotic paraphernalia; that possibly someone else had left it there. A police fingerprint expert compared appellant's fingerprints with prints that he lifted from the narcotic paraphernalia in the satchel. He formed the opinion that the fingerprints were those of appellant. During the search the...