People v. Lapin, Cr. 5439

• Decision Date: 03 January 1956
• Docket Number: Cr. 5439
• Citation: 291 P.2d 575,138 Cal.App.2d 251
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert LAPIN. Defendant and Appellant.

Page 575

291 P.2d 575

138 Cal.App.2d 251

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert LAPIN. Defendant and Appellant.

Cr. 5439.

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

Jan. 3, 1956.

Arthur J. Crowley, Hollywood, for appellant.

Edmund G. Brown, Atty. Gen., W. B. Thayer, William E. James, Deputy Attys. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County defendant was accused of the crime of violation of Section 11500, Health and Safety Code of the State of California, a felony, in that he did wilfully, unlawfully and feloniously have in his possession marijuana on or about September 3, 1954. The information further alleged: 'That before the commission of the offense hereinbefore set forth in this information, said defendant, Albert Lapin, was, on or about the 31st day of May, 1945, in the Superior Court of the State of California, in and for the County of Los Angeles, convicted of the crime of Violation of Section 11160 of the Health and Safety Code.' Defendant entered a plea of not guilty and admitted the prior conviction. Trial by jury resulted in a verdict of guilty as charged. His motion for a new trial was denied and he was sentenced to State Prison. From the judgment of conviction and from the order denying his motion for a new trial defendant prosecutes this appeal.

As to the factual background surrounding this prosecution, the record reflects that at 10:30 a. m. on the morning of September 3, 1954, Officer Yocham in the company of Sergeant Kennedy and Officers Cohen and Cryar, assigned to the Narcotic Division of the Los Angeles Police Department, went to 1775 Sycamore in Hollywood, in the city of Los Angeles. They contacted the landlady and proceeded to Apartment 8. The landlady knocked on the door and advised defendant he had visitors. He opened the door and the officers entered, identified themselves as police officers, and announced they were going to conduct a search for narcotics. In this regard Officer Yocham testified: 'When we went to the apartment and told him what we were going to do, Mr. Lapin said that we were perfectly welcome to search the apartment, that he had nothing to hide and he was getting tired of being under suspicion or being stopped by narcotic officers, or something to that effect.' Defendant, however, testified that he protested and told the officers that they had no right to search his apartment and that he wanted to call his lawyer, but that the officers told him he could call nobody. A thorough search of the apartment revealed no narcotics whereupon, the officers escorted defendant out on the street in front of his apartment where they searched his automobile, but found no narcotics therein.

Defendant testified that while the search of his apartment was in progress, one of the officers handed him his wallet and told the defendant to remove his money therefrom. As this officer handed the wallet to the defendant, another officer was standing beside the defendant with his hand on defendant's arm. The wallet slipped from the defendant's hand and he made a motion to grab it. As he did so, one of the officers grabbed him by the neck and the defendant was knocked to the floor on his face. The officers pulled on defendant's arms and one of them struck the defendant on the neck. The defendant was then struck again on the right side of his neck and then again on the left side of his neck. One officer reached over and pulled the defendant's head backwards and another held defendant's nose. The defendant further testified that he thought the officers were going to kill him, and he was knocked unconscious. As he regained consciousness, he heard someone say, 'Shoot him,' and someone else told him to get up.

That as the defendant started to get up, one of the officers grabbed him by the head and smashed his forehead against the floor three times.

That the officers pulled defendant up and sat him on the bed with one officer holding each of defendant's arms. Then Officer Cohen said, 'You s-o-b,' and struck the defendant in the mouth. The defendant became nauseated and went into the bathroom. He looked into the mirror and saw blood on his face. He then stated to Officer Kennedy that the officers shouldn't have hit him, and Officer Kennedy replied, 'Nobody hit you.'

However, Officer Yocham testified that while searching a desk in defendant's apartment, he observed a wallet on this desk which contained money and he asked the defendant to remove the money from the wallet. The defendant then came over from the bed where he was seated, and he was handed the wallet. As he received the wallet, his hands began to shake. He removed a piece of 'brown paper or something wrapped in a piece of brown paper' from the wallet, and then turned and ran towards the door. As he ran, he put his right hand to his mouth. Officers Yocham, Cohen and Cryer chased the defendant, a struggle ensued, all fell to the floor, and they succeeded in handcuffing the defendant. During this struggle, defendant appeared to be chewing something in his mouth, and one of the officers asked defendant to spit it out. To handcuff the defendant, Officer Yocham found it necessary to pull one of the defendant's arms behind his back while Officer Cryar held the other arm. Because it also appeared to Officer Cohen that defendant was attempting to swallow something as he fled, he 'lunged for the defendant, placing a police stranglehold upon his neck in an attempt to secure the item he was trying to swallow.' According to Officer Cohen, the defendant headed towards the door, threw himself on the floor next to the door, meanwhile holding what appeared to be a 'crudely wrapped white paper cigarette' in his mouth.

Defendant was then taken to a beauty parlor operated by him at 7555 Sunset Boulevard. There was testimony that when defendant arrived at the beauty parlor, his face was badly bruised and swollen, and that he appeared to have sustained injuries to his eye, lip and head. Upon arrival at the beauty parlor the officers and defendant entered through the rear door. The other occupants were a patron, and a male and female beauty parlor operator. According to the officers the beauty operators were permitted to carry on their work, the door to the beauty parlor remaining unlocked, and the male beauty operator was allowed to leave the premises to go next door and return. This operator however, testified that one of the officers, 'grabbed my right wrist and hit it with those type of handcuffs that snap immediately on the wrist, and he pulled my left hand behind me and held me so I couldn't move. I didn't struggle but he held me.' And as to the female operator, that, 'they (the officers) grabbed her wrists right in front of Al (the defendant)'.

At the beauty parlor each officer began to search different portions of the premises. There was testimony on behalf of the prosecution that after a 30 or 40 minute search Officer Cohen found eight small brown bags of marijuana in a small room to the rear of defendant's beauty parlor. The bags were beneath certain boards, one of which the officer had noticed was only nailed down on one end. This board was closest to Officer Cohen and was unlike the other boards in that it was not dusty. After moving crates and boxes, Officer Cohen pulled the board nearest to him up from the floor and found the bags of marijuana. Officer Cohen then called to the others and showed them what he had found. The other officers and occupants including the defendant arrived at the door to the small storage room, and Officer Cohen pointed to the brown paper bags located on the floor and asked, 'What is that?' Defendant answered, '* * * That's mine.' Sergeant Kennedy advised defendant that he was not to say anything that was not true, and that all the officers wanted was the truth concerning the bags of marijuana. Again the defendant asserted that the bags belonged to him. Officer Yocham then advised the defendant: '* * * Listen, Al, if it is not yours, if it is somebody else's, if it belongs to any other people or somebody else, that is what we want to know, * * *.' Again defendant asserted the bags belonged to him.

Later, while the officers and defendant were at the front of the beauty parlor, defendant admitted he had paid $100 to a fellow named Rudy the day before, that Rudy had come to his apartment carrying a brown shopping bag, that defendant had dipped his hands into the bag and removed a certain quantity of this material and placed it on a newspaper which defendant had laid on a coffee table; that he had not had time to 'manicure' the marijuana; that he used marijuana for himself and did not sell marijuana; that he used marijuana because of the type of work he did; that he was overworked and that the use of marijuana gave him a lift; that he believed it was sensible to buy marijuana in large quantities, as he had done in this case, because it was cheaper that way, and also in that way detection was less likely as he did not come in contact with the seller so often; and that he put the marijuana in small brown bags because it was easier for him to use it in that form.

One of the officers then asked defendant: 'I asked him--I think Officer Cohen asked him at the time, or someone there asked him if it was worth the hassle there of eating that marihuana cigarette, or that cigarette that he eaten, and Mr. Lapin said it was better than going to jail, that he just took his chances that we wouldn't find the rest of the stuff.' Cross-examination brought out that Officer Cohen also asked defendant in the police car why defendant took the chance of trying to eat the marijuana cigarette at defendant's apartment, to which defendant replied, 'I took my best shot.'

Sergeant Kennedy and Officer Cryar corroborated the events and their sequence as above stated by Officers Yocham and Cohen.

The...