People v. Howard

• Decision Date: 18 February 1976
• Docket Number: Cr. 27144
• Citation: 127 Cal.Rptr. 557,55 Cal.App.3d 373
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth Leroy HOWARD, Defendant and Appellant.

Page 557

127 Cal.Rptr. 557

55 Cal.App.3d 373

The PEOPLE, Plaintiff and Respondent, v. Kenneth Leroy HOWARD, Defendant and Appellant.

Cr. 27144.

Court of Appeal, Second District, Division 4, California.

Feb. 18, 1976.

Rehearing Denied March 3, 1976.

Hearing Denied April 15, 1976.

Burton Marks, Jonathan K. Golden, Beverly Hills, and Stephen Gilbert, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Marc E. Turchin, Deputy Attys. Gen., for plaintiff and respondent.

DUNN, Associate Justice.

By information filed in September 1972 defendant, alone, was charged under count I with selling a narcotic (cocaine) on 22 Feb 72, a felony, in violation of Health & Saf.Code § 11501 (now Health & Saf.Code § 11352); count II jointly charged defendant and Roberta Moore with possessing for sale a narcotic (cocaine) on 17 Mar 72, a felony, in violation of Health & Saf.Code § 11500.5 (now Health & Saf.Code § 11351); count III made the same allegation against both persons but for possessing heroin for sale; counts IV and V charged Roberta Moore, alone. Defendant pled not guilty to counts I, II and III. His codefendant's motion to sever her trial from his was granted. Ultimately, defendant pled guilty to count II, counts I and III being dismissed in furtherance of justice. Defendant was sentenced to state prison but the sentence was suspended and defendant placed upon probation under various conditions. The trial court signed a certificate of probable cause (Pen.Code § 1237.5) permitting defendant to appeal from certain orders made prior to judgment, i.e.: on his motion to set aside his guilty plea and on his motion to produce the informant. In his notice of appeal, however, defendant appeals from the judgment and only from the order denying his motion to withdraw his plea of guilty, thus eliminating (People v. Castro, 42 Cal.App.3d 960, 965, 117 Cal.Rptr. 295 (1974)) from his notice of appeal the other order made prior to judgment. Defendant may, and does, argue the merits of his motion to traverse a search warrant and to suppress evidence, the motion having been made pursuant to Pen.Code § 1538.5.

Defendant first contends the trial court erred by denying his motion to dismiss made on the basis of the alleged failure of the police 'to undertake reasonable efforts to obtain information by which the defense could locate the participating informant.' The motion was made pursuant to Eleazer v. Superior Court, 1 Cal.3d 847, 83 Cal.Rptr. 586, 464 P.2d 42 (1970). We review this order to an extent (Pen.Code § 1259; and see Pen.Code § 1237) even though no direct appeal was taken from it. Defendant had filed a formal motion seeking disclosure of the whereabouts of informant, Cortis Toney. The record discloses that police officer Stanford E. Nelson had made an affidavit for the search warrant and that he testified at a hearing, disclosing efforts he made to find Toney.

However, '(a)n order denying a motion to disclose the identity of an informant is not subject to review on appeal after the defendant has entered a plea of guilty (citation). This is so because the purpose of the motion relates solely to the defendant's guilt or innocence, an issue which is removed by the guilty plea. A judgment entered upon a plea of guilty is not appealable on the merits, and irregularities not going to jurisdiction or to the legality of the proceedings will not be reviewed (citation).' (People v. Castro, supra 42 Cal.App.3d at p. 963, 117 Cal.Rptr. at p. 297; also see People v. Archuleta, 16 Cal.App.3d 295, 299, 93 Cal.Rptr. 881 (1971).) Defendant's claim to the right to review the outcome of his motion fails, particularly since he made the right to such review no part of his plea bargain.

Defendant seeks to distinguish Castro and Archuleta on the ground that those cases dealt with disclosure of an informant's identity, whereas, here, the question was not disclosure but the efforts of the police to maintain contact with Toney. We reject the assumed distinction. The same reasons apply and, therefore, the same rule.

Defendant next claims the trial court erred in denying his motion (Pen.Code § 1538.5) to suppress the use of money as evidence. The money was discovered and seized in apartment No. 6 at 1118 South Fairfax Avenue in Los Angeles. Police officer Willie Tusan, Jr., armed with a search warrant, seized $1,845.00 in money, of which $630.00 was in funds having numbers prerecorded by the police. Defendant contends that the search warrant did not mention currency ¹ (although the affidavit did).

We disagree with appellant's conclusions. The warrant, although not mentioning 'currency,' did mention 'articles of personal property tending to establish the identification of person or persons having dominion or control' of the premises. 'Currency' would seem to qualify as personal property. ² We believe the warrant's language was adequate to describe the money seized and there was no error on the trial court's part in declining to suppress it as evidence.

Next, defendant contends the affidavit supporting the issuance of the search warrant fails to establish probable cause to search apartment No. 6 at 1118 South Fairfax Avenue in Los Angeles.

Rules for examining affidavits are many. In Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964), (cited in Halpin v. Superior Court, 6 Cal.3d 885, 888, 101 Cal.Rptr. 375, 495 P.2d 1295 (1972)), it is said that such an affidavit may be based upon hearsay information, but the affidavit must inform the issuing magistrate of (1) some of the underlying circumstances from which the informant concluded that narcotics were where he claimed they were and (2) some of the underlying circumstances upon which the affiant concluded that the informant was reliable.

In our case, there is no contention that informant No. 3 was not reliable. Indeed, the affidavit clearly shows the basis of the affiant officer's conclusion that informant No. 3 was reliable. (See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).)

It is as to the informant's information that defendant objects, having raised the issue by the traverse of the warrant. The affidavit indicates that on 22 Feb 72, with informant No. 3's consent, affiant police officer listened to a telephone call made by the informant to defendant. Defendant was out at the time but was requested to return the call. He soon did, the voice stating, 'This is 'K--9 ". 'K--9' was a nickname of defendant listed on official police records. The informant made arrangements to meet defendant (K--9) and did so at 1118 South Fairfax Avenue apartment 6; defendant exited, entered the informant's automobile and, soon thereafter, the informant produced for the police officers 20 grams of cocaine telling them that defendant had sold it to him for $650.00 of the $700.00 previously handed to him by the affiant. The informant further stated that, at the time of the sale, defendant had told him that he need not state on the telephone how much narcotics he wanted but '. . . just come over after the call and I'll have it for you.'

Defendant argues that the foregoing in insufficient to provide a magistrate with probable cause to believe that 1118 South Fairfax Avenue, apartment 6, was a 'stash pad' (location) belonging to defendant. Citing Irwin v. Superior Court, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12 (1969), defendant argues that the fact police officers saw him two or three times leaving the premises is insufficient, because those events is unlawful. . . .' While p. 14 of Irwin): 'Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. . . .' While defendant makes a correct statement of the law, his attempted application of it to these facts is not correct, since it overlooks the telephone call to defendant, his return of the call and defendant's statement that the informant need not state on the telephone how much narcotics he wanted; rather 'just come over.'

Defendant next contends that affiant's (police officer Nelson's) statement that he 'recognized 'K--9's' voice...