People v. Johnson
| Decision Date | 16 November 1971 |
| Docket Number | Cr. 19820 |
| Citation | 98 Cal.Rptr. 393,21 Cal.App.3d 235 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. David JOHNSON and Diane Johnson, Defendants and Appellants. |
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Robert F. Katz, Deputy Atty. Gen., for plaintiff and respondent.
Defendants David and Diane Johnson, who are husband and wife, appeal from convictions of various violations of the Health and Safety Code and of an attempt to violate section 12090 of the Penal Code ().
On August 5, 1969, the grand jury of Santa Barbara County returned two indictments. In indictment number 86075, David Johnson was jointly charged with one Robert Wilson in nine counts alleging violations of Health and Safety Code section 11500 (possession of Demerol), 11500.5 (possession of Demerol for sale), 11555 (possession of paraphernalia), 11910 (possession of LSD and Benzedrine), 11911 (possession for sale of LSD and Benzedrine), and a violation of section 12220 of the Penal Code (). These offenses were all alleged to have occurred on July 23, 1969.
In indictment number 86076, David and Diane were jointly charged in five counts with violating Health and Safety Code section 11530 (possession of marijuana), 11910 (possession of Seconal and amphetamine), 11911 (possession for sale of Benzedrine), and with violating section 12090 of the Penal Code (). These offenses were alleged to have occurred on July 24, 1969.
The two indictments were consolidated for trial. The jury found defendants guilty of some counts, not guilty of others and failed to agree on yet other counts.
Specifically, David was convicted as follows:
Under indictment number 86075:
(1) Possession of LSD on July 23, 1969, a violation of section 11910 of the Health and Safety Code;
(2) Possession of Demerol on July 23, 1969, a violation of section 11500 of the Health and Safety Code:
(3) Possession of Benzedrine on July 23, 1969, a violation of section 11910 of the Health and Safety Code;
(4) Possession of paraphernalia for injection of narcotics on July 23, 1969.
Under indictment number 86076:
(1) Possession of amphetamine on July 24, 1969, a violation of section 11910 of the Health and Safety Code;
(2) Possession of Seconal on July 24, 1969, a violation of section 11910 of the Health and Safety Code;
(3) Possession of marijuana on July 24, 1969, a violation of section 11530 of the Health and Safety Code;
(4) Attempting to obliterate the manufacturer's number on a revolver on July 24, 1969, a lesser included offense in violation of section 12090 of the Penal Code.
Diane was convicted under indictment number 86076 of (1) Possession of Seconal on July 24, 1969, and (2) Attempting to obliterate the manufacturer's number on a revolver on July 24, 1969, a lesser included offense in violation of section 12090 of the Penal Code.
The case against the two defendants rested primarily upon evidence seized by law enforcement agents at two locations in Santa Barbara County.
For some time prior to July of 1969, the two defendants resided at 4693 Atasco Drive, Santa Barbara.
On July 8, 1969, David Johnson, using a fictitious name, rented an apartment at 6778 Abrego in the Isla Vista area of Santa Barbara County. He advised the manager he wanted the apartment for just one month.
On July 23, 1969, police officers, armed with a search warrant, entered the apartment at 6778 Abrego. No one was on the premises. They seized in excess of 173,000 pills, 600 tablets of LSD, powdered methamphetamine (speed) of a value of $9600, together with paraphernalia for the packaging There was no evidence that the apartment was being used for living purposes.
for sale of the drugs and paraphernalia for the use of narcotics.
The officers instituted a surveillance inside the apartment. Subsequently the defendant David Johnson, in company with his codefendant Wilson, entered the apartment and was arrested. He had a key to the apartment and gave the officers a patently fictitious account of his possession of the key and his reason for being there.
The officers then obtained another search warrant and went to defendants' residence at 4693 Atasco Drive. Diane answered the door. Upon seeing the officers and learning that they had a search warrant she hurriedly headed through the premises into a bedroom. An officer followed her in time to see her throw a small can out of the window. The officer grabbed Diane who turned and landed on a bed. When Diane was removed from the bed the officers discovered a loaded .22 caliber revolver on the bed in the spot where she had been lying. The serial number of the revolver had been filed off.
The officers recovered the can which Diane had thrown out of the window. It contained a number of pills and capsules, marijuana, an eyedropper and a homemade syringe.
While the officers were on the premises Diane talked with David on the telephone. An officer interrupted the conversation and David stated to him
At the trial Diane admitted throwing the can out of the window because she knew it contained illegal drugs. She also admitted possession of the gun but denied having obliterated the number.
It is not surprising that neither defendant attacks the sufficiency of the evidence.
Their contentions are:
(1) The two search warrants were invalid in that the affidavits upon which they were based were insufficient; 1
(2) Diane was prejudiced by an improper consolidation of the two indictments;
(3) The defendants were improperly convicted of attempting to violate section 12090 of the Penal Code in that the evidence indicated that the number was obliterated and thus the verdict should have been either a conviction of the completed offense or an acquittal.
On July 23, 1969, Guido Hanek, the maintenance supervisor for the company which owned the apartment, lawfully entered the apartment in the course of his duties and observed the large quantity of drugs and a fully loaded machine gun. He removed the machine gun, the possession of which is a crime, and delivered it to the police. He told the police about the drugs he had seen.
A deputy sheriff obtained a search warrant on the basis of an affidavit in which he recounted the information imparted by Mr. Hanek.
It is conceded that Mr. Hanek did not act as an agent for the police and that until he reported his findings there had been no contact between him and the police. In the hearing under Penal Code section 1538.5, no evidence was presented, nor is any contention now made that Mr. Hanek was other than a reputable citizen of the community. His status, his description of the items he had seen and his delivery of the machine gun to the police, constitute a combination of factors which clearly establish that reliance upon his information by the police and the magistrate was reasonable. (See Ming v. Superior Court, 13 Cal.App.3d 206, 91 Cal.Rptr. 477; People v. Hogan, 71 Cal.2d 888, 80 Cal.Rptr. 28, 457 P.2d 868; People v. Gardner, 252 Cal.App.2d 320, 60 Cal.Rptr. 321.)
This search and seizure was so patently valid that we discuss it in some detail only because the evidence obtained provided the foundation for the second warrant which was issued.
The officers went to defendants' residence armed with a search warrant which was obtained following the search and seizure which has been described above. This warrant was based on the affidavit of an officer who had participated in that search.
With nothing more than the knowledge of the illegal machine gun and the quantity of drugs and paraphernalia possessed by defendant at the apartment, a reasonable layman, let alone an experienced police officer, would have been justified in believing that defendant was a large scale trafficker in illicit drugs.
The question here presented is whether the affidavit presented in support of the search warrant for defendants' residence was adequate to support the magistrate's conclusion that reasonable cause existed to believe that yet more contraband would be found at that residence.
The affidavit recounted the circumstances and results of the previous search and seizure. That information was augmented by two additional averments. First, the officer stated that a fellow officer, one Sgt. Evans, had identified defendant David Johnson to him as a major supplier of illegal drugs in the Santa Barbara area. While defendant labors mightily to assail the value of this averment his attack is misdirected. Sgt. Evans' information provided nothing that defendant himself had not already established by his maintenance of a veritable warehouse of illegal drugs at the above mentioned apartment.
Secondly, and significantly, the officer related that his experience in the field had provided him with knowledge of the habits and modus operandi of suppliers of illegal drugs. Of importance here is the statement of the officer that such persons routinely maintain their major stock pile away from their residence and a smaller quantity at or near their residence for the purpose of immediate sale.
The officer, based on this knowledge, swore to an honest belief that additional drugs would be found at defendants' residence. The magistrate entertained a similar belief. We are of the opinion that that belief was reasonable.
No contention is made that the officer lacked expertise. It is a matter of common knowledge that in California, officers of the major police and sheriffs' departments receive intensive training in narcotic...
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