People v. Lopez

• Decision Date: 02 April 1959
• Docket Number: Cr. 6412
• Citation: 169 Cal.App.2d 344,337 P.2d 570
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Alex LOPEZ, Defendant and Appellant.

Page 570

337 P.2d 570

169 Cal.App.2d 344

PEOPLE of the State of California, Plaintiff and Respondent, v. Alex LOPEZ, Defendant and Appellant.

Cr. 6412.

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

April 2, 1959.

Morris Schachter, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Robert M. Sweet, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

By way of information, defendant was charged in three counts with possession of heroin, marijuana and amidone, in violation of Section 11500, Health & Safety Code; and with three prior felony narcotic convictions. He waived his right to a trial by jury, and by stipulation the matter was submitted to the court on the transcript of the preliminary hearing, subject to the right of each party to offer additional evidence. The trial court found defendant guilty on each count and the three prior felony convictions to be true, denied probation and sentenced him to the state prison on each count, the terms to run concurrently. From the judgment defendant appeals.

Appellant contends that the arrest, search and seizure were without probable cause because the police officer refused to name his informant; that the evidence was insufficient to support any finding he knowingly possessed narcotics; and that by convicting him on all three counts, he was punished three times for a single act in violation of Section 654, Penal Code.

As to appellant's first point, the record discloses that at the preliminary hearing Officer Breckenridge testified that he and another officer, acting on information given to him 30 minutes earlier by an informant that one 'Alex' was operating a 'shooting gallery' in a place in the rear of a certain address where a 'hype' could buy any kind of narcotics, went to the location at approximately 1 a. m.; that the place was an apartment behind a store building; that approaching it, they walked up to a window through which they watched several persons in the kitchen for about a minute; that he saw a man (defendant) sitting at a table and a woman standing at the kitchen stove, and observed their eyes were glassy and they were sniffling; that one of the persons, upon hearing them outside, went to the door in an attempt to leave and as he opened it, he (the officer) stepped inside, identified himself, and arrested all five occupants; that after ascertaining from the defendant it was his apartment they searched the premises and found two cellophane packages--one containing nine marijuana cigarettes and the other amidone tablets; that they then placed defendant in the hands of uniformed police, removed him from the premises and, continuing their search, found 24 capsules of heroin in a rubber container, a plastic package containing a spoon, eyedropper and hypodermic needle, and two paper bags of marijuana.

The informant did not accompany the officers, was not present at the time of arrest and took no part therein than to supply information of defendant's activities and location. The officers had neither an arrest nor search warrant when they went to the premises. At the preliminary hearing, the officer testified the informant had on more than one prior occasion given him information upon which he had made arrests resulting in successful prosecutions, and it was upon the information he gave him concerning defendant he relied in arresting him.

The record discloses that at the preliminary hearing defendant made no objection to the officer's testimony relative to his reliance on the informer's communication to him; on cross-examination defendant asked the officer the name of the informant ('so that the record may show he refused to answer') which he refused to reveal under Section 1881, subd. 5, Code of Civil Procedure and was sustained by the trial judge; thereafter, defendant made no motion to strike the testimony given by the officer relative to the informant and his reliance upon his communication in making the arrest; at the conclusion of the People's case when the narcotics found in defendant's apartment were offered in evidence, defendant made no objection thereto; and although defendant moved to dismiss the charge his motion was based solely on the ground the prosecution had not proved possession, without mention of an illegal arrest, search or seizure.

At the outset of the trial, the prosecution again offered the narcotics into evidence, to which defendant made no objection. Although the officer was present at the trial and testified for the People, defendant made no demand of disclosure of the informer's identity, no motion to strike the officer's testimony relative to the informant and his communication, and no objection concerning this matter. The officer's reliance upon information supplied by the informer was neither mentioned nor discussed by defendant in the court below and at no time until this appeal has he relied upon the officer's refusal to identity the informant to establish the illegality of the arrest and search.

Appellant seeks a reversal on the basis of Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39, but the recent case of Coy v. Superior Court, 51 Cal.2d 471, 334 P.2d 569, 570, is a complete answer to his first contention. In that matter appellant unsuccessfully sought a writ of prohibition to prevent his trial on the ground the officer at the preliminary hearing, upon objection of the People, refused to divulge the name of the informer, which was sustained by the committing magistrate. No motion to strike the officer's testimony was made upon refusal to reveal his identity and defendant neither objected to the introduction of the narcotics in evidence nor argued the legality of the arrest and seizure. Citing Priestly v. Superior Court, 50 Cal.2d 812, at page 819, 330 P.2d 39, at page 43: 'When the prosecution seeks to show reasonable cause for a search by testimony as to communications from an informer, either the identity of the informer must be disclosed when the defendant seeks disclosure or such testimony must be struck on proper motion of the defendant,' the Supreme Court affirmed the magistrate's ruling and held that the prosecution was entitled to elect between disclosure and having the officer's testimony struck. Said the court at page 473 of 51 Cal.2d, at page 570 of 334 P.2d: 'It was incumbent on defendant to compel this election, however, by moving to strike or otherwise making his position clear. The prosecution may have had evidence other than the information of the informer to justify the search or it may have been willing to waive the privilege of nondisclosure if its case would otherwise fail, and it was entitled to an opportunity to produce such evidence or waive nondisclosure. It was not called upon to do so, however, while evidence of reasonable cause stood unchallenged in the record.' Commenting further that neither the magistrate nor trial court has the duty to strike the evidence on its own motion, and defendant should not be permitted to gamble on an acquittal at his trial secure in the knowledge the conviction would be reversed on appeal, the court continued: 'No undue burden is placed on the defendant by requiring him to make a motion to strike when the basis for excluding evidence theretofore properly admitted becomes apparent, and there is no basis for departing from the settled rule requiring such a motion (City of Venice v. Short Line Beach Land Co., 1919, 180 Cal. 447, 453, 181 P. 658; Ballos v. Natural, 1928, 93 Cal.App. 601, 608, 269 P. 972; Brandt v. Krogh, 1910, 14 Cal.App. 39, 56, 111 P. 275; Fricke California Criminal Evidence, 444-445 (4th ed. 1957)) in the present situation.'

Concerning appellant's second point that there is insufficient evidence in the record to show he had possession of the narcotics, we again refer briefly to the testimony of Officer Breckenridge that defendant and another in the apartment were sniffling and their eyes were glassy (both physical signs of heroin use); that defendant, who had been seated at the table in the kitchen, admitted he...