People v. Montes

• Decision Date: 25 August 1959
• Docket Number: Cr. 6579
• Citation: 173 Cal.App.2d 256,343 P.2d 141
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Cano MONTES and Oscar Joe Chavez, Defendants. Oscar Joe Chavez, Defendant and Appellant.

Page 141

343 P.2d 141

173 Cal.App.2d 256

PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Cano MONTES and Oscar Joe Chavez, Defendants Oscar Joe Chavez, Defendant and Appellant.

Cr. 6579.

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

Aug. 25, 1959.

As Modified on Denial of Rehearing Sept. 24, 1959.

Oscar Joe Chavez, appellant, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment of conviction after the appellant was found guilty of grand theft from the person and the further finding that he previously had been convicted of an escape, a felony.

On June 16, 1958 in an information filed in Los Angeles County, the appellant, Chavez and the defendant Montes were charged with violating the provisions of Section 487, subd. 2, Penal Code (grand theft from the person). A prior conviction of the appellant was also alleged in the information. The codefendant, Montes, was also charged in a second count with violating the provisions of Section 11500, Health and Safety Code (possessing heroin).

Chavez pleaded not guilty on June 18, 1958. There appears to be nothing in the minutes or in the court reporter's notes with reference to the matter of the alleged prior conviction excepting the supposed findings of the judge who sentenced Chavez and to which reference will later be made.

Chavez waived a jury trial and it was stipulated that the cause be submitted on the transcript of the preliminary hearing. Each side reserved the right to introduce additional evidence and each side did introduce such evidence at the trial. Chavez was found guilty. The court at the time of sentencing Chavez found the prior conviction to be true. On October 24, 1958 Chavez was sentenced to the state prison.

A notice of appeal was filed with the clerk on November 6, 1958. The notice was dated November 2, 1958 at the top of the page and directed to 'Judge Fildew' who was the judge who heard the case and found the appellant guilty but who was not the judge who found with reference to the prior conviction and sentenced the appellant. There is no envelope attached to the notice of appeal which might disclose when it was mailed or whether it was mailed or delivered within the legal time limit. There is no motion upon the part of the respondent to dismiss the appeal. We will consider that the notice was mailed on time.

A resume of the facts is as follows:

On May 17, 1958 about 4:45 p. m. Mrs. Anna Holder was taking a walk on Rosewood Avenue near her home on said street. She had the feeling that someone was behind her and as she turned holding her purse in her left hand someone crushed her hand and she dropped the purse. The thief picked up the purse and started to run toward a car which was in the street and was being driven by a man. The appellant got into the car and it was driven away. Mrs. Holder saw the person who took her purse and screamed and attempted to chase the thief. She identified the appellant as the person who crushed her hand and took the purse. She identified Montes, the co-defendant, as the driver of the car in the street. In the purse there were, among other things, about $5.00 in money and a bank book belonging to Mrs. Holder.

Officer Traylor of the Los Angeles Police Dapartment testified that sometime prior to May 20, 1958, he had received information from an informant that two male Mexicans, ages 23 to 30, of medium height and complexion, driving a blue-gray four-door sedan, California license No. LZX 184, had attempted to sell merchandise, and, among other things, some automobile tires, at a reduced rate. The informant also stated that in his opinion both of the men were narcotic users. The officer stated that the informant was reliable.

On May 20, 1958, at about 1:15 p. m., Officer Traylor was driving north on Indiana Street where he noticed the car above described win front of him. He checked his record with reference to the license number of the car and then followed it for some blocks. The officer then pulled up behind the car and blew his horn and had the car pull over the the curb. Montes, the co-defendant, was driving the car and Chavez, the appellant, was a passenger. Each of the occupants got out. The officer recognized Chavez who was known to him as a user of narcotics and as one who had once been the subject of a search in which the officer had participated. Both men came toward the police car. Officer Traylor requested assistance by police radio. The officer then got out of the police car. Montes and Chavez each had on shortsleeved shirts and the officer noticed immediately that each of them had what appeared to him to be recent puncture wounds on their arms and the officers recognized such wounds as being associated with narcotics.

After the officer saw and recognized the puncture wounds he directed Montes to step over to the curb. Chavez was standing there also. Montes asked the officer what he was being stopped for and the officer did not answer him immediately. The officer wanted to separate Chavez and Montes, and Chavez seemed to be reluctant to move to the front of the car. The officer finally commanded Chavez to move up and he did so. Montes again asked the officer what he was being arrested for and he was told that it was upon 'suspicion of narcotics'. While the officer was attempting to put handcuffs on Montes, Chavez started to move away from the front of the car toward the corner and several times was told by the officer to stop. Chavez kept moving until the officer drew his revolver and demanded that he stop, at which time Chavez came back. Montes was handcuffed and placed in the back of the police car. Chavez was watched. The second police car arrived. At the point where Montes and Officer Traylor had been standing there was lying on the sidewalk a finger stall which contained white capsules containing a white powder which was afterwards determined to be heroin.

The officers then searched the automobile, California license No. LZX 184 and found a spoon, a hypodermic needle and eyedropper in a package above the sun visor; and a green box containing gelatin capsules in a shirt pocket which Montes said belonged to him. They also found in the glove compartment of the car a bank book which was identified by Mrs. Holder as being her bank book and as having been in her purse at the time it was stolen. In a conversation with the police Chavez admitted that he used heroin two or three times a week. Montes said that he owned the capsules in the green box and the hypodermic outfit.

Chavez testified that at the time of the purse stealing he was washing the car of a friend. The sister of Chavez and two friends also testified to the same effect. Montes testified that he was the one who had stolen the purse and that Chavez had nothing to do with it.

At the preliminary hearing counsel for Chavez cross-examined Mrs. Holder but he did not cross-examine Officer Traylor. No motion was made in behalf of Chavez to strike the testimony of the officers nor was any contention made by him that the arrest, search and seizure was anything other than proper.

At the trial in the superior court, Mrs. Holder testified and counsel for Chavez cross-examined her and offered to have his client take a lie detector test and use the results in evidence. The district attorney would not stipulate to such.

Chavez testified at the trial and denied...