People v. Lopez

• Decision Date: 14 October 1960
• Docket Number: Cr. 7078
• Citation: 185 Cal.App.2d 301,8 Cal.Rptr. 184
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joe H. LOPEZ, Joe Ramirez and Isabel Ramirez, Defendants, Joe Ramirez and Isable Ramirez, Defendants and Appellants.

Page 184

8 Cal.Rptr. 184

185 Cal.App.2d 301

PEOPLE of the State of California, Plaintiff and Respondent, v. Joe H. LOPEZ, Joe Ramirez and Isabel Ramirez, Defendants, Joe Ramirez and Isable Ramirez, Defendants and Appellants.

Cr. 7078.

District Court of Appeal, Second District, Division 3, California.

Oct. 14, 1960.

Robert A. Ortiz, Los Angeles, for appellant.

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

FORD, Justice.

The appellant, Joe Ramirez, was accused by information of the crime of possession of heroin in violation of section 11500, Health and Safety Code. He waived his right to trial by jury and was found guilty. This appeal is from the denial of his motion for a new trial and from the judgment. While Isabel Ramirez was also convicted of the offense and filed a notice of appeal, she has failed to prosecute her appeal and it has been dismissed.

On this appeal, the evidence is to be viewed in the light most favorable to the prosecution. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Carnavacci, 119 Cal.App.2d 14, 16, 258 P.2d 1121; People v. Renek, 105 Cal.App.2d 277, 281, 233 P.2d 43; People v. Von Benson, 38 Cal.App.2d 431, 434, 101 P.2d 527. In that light we will summarize the evidence which tends to support the conclusions reached by the trial court. In addition, matters upon which the appellant bases his contentions on appeal will be stated.

Officer Velasquez testified that on July 23, 1959, he arrived in the vicinity of 1712 East 62nd Street at about 5 o'clock in the afternoon. Two other officers were with him. At that time, he had certain information. Such information had its sources in complaints of neighbors to law enforcement officials as to the amount of traffic there and in statements from addicts to whom the witness talked as they were being processed through the Firestone Station on narcotic charges. Such neighbors said that many people would go onto the premises at all hours of the day and night, stay a few minutes and then leave. While the officer had personally received information of that kind 'from people around the location,' he could not identify his informants because they 'wouldn't give their names.' The addicts stated that they had obtained their narcotics 'from Chello, on 62nd Street.' On July 23, the witness kept the premises under surveillance for about one-half hour. He noticed one Joe H. Lopez, whom the officers knew had been convicted of 'narcotic addition,' enter the premises, remain two or three minutes, and then depart. The officers followed him while he went east on 62nd Street for a distance of four or five houses. The witness saw some pink tissue paper leave Lopez' hand and fall to the ground near his foot. In the paper were three gelatin capsules containing a powdery substance which appeared to be heroin and which was later found, upon analysis, to be heroin. Lopez was arrested. The witness and another officer then returned to 1712 East 62nd Street. The witness went onto the front porch, knocked on the door, displayed his badge, and called out, 'Police officers.' The front door was open but the screen door was closed. The officer looked in the screen door and through the living room into the kitchen where the appellant and Isabel Ramirez were sitting at a table. He saw appellant put a white object (which later turned out to be a piece of bread) in his mouth. The officers then entered and the witness told the appellant that he was under arrest for violation of the state narcotic laws. He searched the appellant and found in his left front trouser pocket 'two blue pieces of balloons containing gelatin capsules.' The contents of the capsules were later analyzed as being heroin. The appellant stated that the substance so found was his and that he knew it was heroin. The officer then said, 'Isn't it true that it belongs to Isabel?' He also said that they had information that they belonged to 'Chello,' referring to Mrs. Ramirez. The appellant did not reply but then called out to Mrs. Ramirez, who was in the living room, and asked her, 'Do you want to tell these police officers about that?' She came into the kitchen and stated that the substance was hers and that the appellant 'didn't have anything to do with it.' She produced certain paraphernalia for the use of narcotics.

In its attack upon the competency as evidence of the articles so obtained by the officers, the defense offered certain testimony. The appellant testified that he was eating in the kitchen. The officers entered and one officer pulled something out of the appellant's pocket and placed him under arrest. Frances Garcia, who was present at the time, testified to the same effect. Isabel Ramirez testified that she heard no knock before the officers entered. The court held that the evidence was not illegally obtained and that it was competent.

Thereupon, the appellant resumed the witness stand. He testified that he had slept until about 4:30 p. m. Thereafter, he put on his pants which had been on a table. He did not know that any narcotics were in his pocket and had not seen the capsules before the officer removed them from his pocket. He told the officer that he knew nothing about it. Isabel Ramirez testified that she was the wife of the appellant and that he had not been living on the premises except that he would stay 'a couple of days' and then leave. She said that she had left the capsules in his pants pocket when she went into his pants pockets, while he was not wearing the pants, when someone came in to borrow money. She placed the capsules there because she had them in her hand. The loan was for Joe Lopez. As to the appearance of the defendant at the time of his arrest, aside from the fact that he was wearing his pants, Mrs. Ramirez testified: 'He was in his underwear.'

In People v. Ingle, 53 Cal.2d 407, at pages 412-413, 2 Cal.Rptr. 14 at page 17, the applicable law with respect to an arrest such as the one of which appellant complains is thus stated by Mr. Justice White: 'Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision. There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances (Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374; People v. Washington, 163 Cal.App.2d 833, 844, 330 P.2d 67; People v. Ambrose, 155 Cal.App.2d 513, 521, 318 P.2d 181)[185 Cal.App.2d 305] --and on the total atmosphere of the case. People v. Scott, 170 Cal.App.2d 446, 452, 339 P.2d 162; People v. Denne, 141 Cal.App.2d 499, 506-507, 297 P.2d 451, citing United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653. Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967; People v. Kilvington, 104 Cal. 86, 92, 37 P. 799, 43 Am.St.Rep. 73; People v. Silvestri, 150 Cal.App.2d 114, 117, 309 P.2d 871; People v. Soto, 144 Cal.App.2d 294, 298, 301 P.2d 45; People v. Smith, 141 Cal.App.2d 399, 402, 296 P.2d 913; People v. Rodriguez, 140 Cal.App.2d 865, 869, 296 P.2d 38. Probable cause has also been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344; People v. Novell, 54 Cal.App. 2d 621, 623-624, 129 P.2d 453; Ex parte Heacock, 8 Cal.App. 420, 421, 97 P. 77. It is not limited to evidence that would be admissible at the trial on the issue of guilt. People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535. The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. People v. Fischer, supra, 49 Cal.2d 442, 446, 317 P.2d 967.

'Where an arrest is lawful the search incident thereto is not unlawful merely because it precedes rather than follows the arrest. People v. Boyles, supra, 45 Cal.2d 652, 655, 290 P.2d 535; People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531. Here the officers testified that the arrest preceded the search. The arrest is not sought to be justified by what the search produced.'

Although information furnished by an anonymous informer is relevant on the issue of reasonable cause, it is clear that such information alone would not have justified the arrest of the appellant in the present case. Willson v. Superior Court, 46 Cal.2d 291, 294, 294 P.2d 36. But, in addition to such information, the officer who testified had talked to addicts who stated that they had obtained their narcotics 'from Chello, on 62nd Street.' Such information is not to be excluded from consideration because of the fact that it is hearsay. People v. Hood, 150 Cal.App.2d 197, 200, 309 P.2d 856; People v. Easley, 148 Cal.App.2d 565, 568, 307 P.2d 10. However, it is clear that the officers understood that Mrs. Ramirez, and not the appellant, was known as 'Chello.' While the appellant was seen to put a white object in his mouth, the officer quickly examined his mouth and found that the object was a piece of bread. Consequently, the determinative factor would appear to be the weight to be given to the fact that Lopez, a man having a record as an addict, was seen to enter the premises, stay a short while, and then depart, having narcotics in his possession as the officers approached him. The Lopez incident lent weight to the information previously possessed by the officers (cf. People v. Easley, supra, 148 Cal.App.2d 565, 568, 307 P.2d 10) and justified their reliance on the information they had theretofore received from anonymous sources. Willson v. Superior Court, supra, 46 Cal.2d 291, 295, 294 P.2d 36. In view of the knowledge they...