People v. Moore, Cr. 7745

• Court: California Court of Appeals
• Writing for the Court: LILLIE; WOOD, P. J., and FOURT
• Citation: 209 Cal.App.2d 345,26 Cal.Rptr. 36
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Wadie MOORE, Defendant and Appellant.
• Docket Number: Cr. 7745
• Decision Date: 08 November 1962

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26 Cal.Rptr. 36 209 Cal.App.2d 345 PEOPLE of the State of California, Plaintiff and Respondent,
v.
James Wadie MOORE, Defendant and Appellant. Cr. 7745. District Court of Appeal, Second District, Division 1, California. Nov. 8, 1962.

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[209 Cal.App.2d 347] Virgil V. Becker, Pasadena, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was convicted by a jury of possession of marijuana; he admitted a prior narcotic misdemeanor conviction.

Viewing the evidence in a light most favorable to respondent the following is a resume of the events leading up to defendant's arrest. Defendant quarrelled with one Gloria Hernandez who also occupied his apartment; thereafter she made to police a report charging him with assault with a deadly weapon, alleging that he had a small nickel-plated automatic in his apartment. Pursuant thereto officers went to the apartment house around 5 p. m. on December 9, 1960; they asked the manager's wife for a key to defendant's apartment.

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Officer Norris went with her to get the key, but when they arrived at defendant's apartment they found the door already open and officers Wapato and Guzy inside. The pass key was not used to open the door. The officers had been admitted by defendant. Officer Wapato had knocked on defendant's door; [209 Cal.App.2d 348] defendant opened it several inches. The officer asked him his name; he answered, 'Jimmy Moore.' He asked him under what name he had rented the apartment; defendant said, 'James Roberts.' The officer then told defendant that Gloria had gone to the Wilshire Station and made an assault with a deadly weapon report naming him as a suspect, stating that he had a small nickel-plated automatic in the apartment; he asked defendant if he minded if they came in and talked to him. Defendant replied, 'No,' backed up a couple of steps, opened the door wide and said, 'Come on in.' The officers then talked to defendant and asked him if he had a gun in the apartment and if he minded if they looked around for it; he responded, 'Go ahead. I have nothing to hide.' Officer Norris questioned him concerning some bullet holes in the closet and bathroom doors. The officers looked around and under the pillow on the left side of the bed they found a white napkin containing 4 marijuana cigarettes and 2 red capsules. They also found a half-smoked marijuana cigarette on the floor near an ash tray; they found no gun. Asked about the 4 cigarettes defendant said, 'That is my marijuana. I should have throwed it out the window when you knocked on the door, but I was sleepy.' When asked about the cigarette butt, defendant said he did not know to whom it belonged.

Defendant took the witness stand and denied he opened the door to the officers. He said he had been asleep while they entered by the landlady's pass key; he denied giving the officers permission to search the apartment, and testified that Gloria also occupied his apartment, they had a quarrel the night before, he had no knowledge of the four cigarettes, and did not tell the officers that they were his or that he knew anything about them.

Appellant claims that inasmuch as there is no testimony of any illegal activity in his apartment, the lower court erred in finding the officers' entry without a warrant to be legal; he also complains that the jury was not properly instructed concerning knowledge and possession of the narcotic.

Acting upon information that defendant had committed an assault upon a woman, it was not unreasonable for the officers to call upon him at his apartment for the purpose of seeking an interview with him. (People v. Michael, 45 Cal.2d 751, 290 P.2d 852.) Defendant voluntarily opened the door to their knock, and upon being asked if he minded if they come in, defendant not only responded, 'No,' but opened the door wide and told them to, 'Come on in.' [209 Cal.App.2d 349] This clearly constituted a voluntary consent to the entry by the officers, and the trier of fact so found. (People v. Michael, 45 Cal.2d 751, 290 P.2d 852; People v. Elliott, 186 Cal.App.2d 178, 8 Cal.Rptr. 795; People v. Neal, 181 Cal.App.2d 304, 5 Cal.Rptr. 241.) Also established in the evidence is defendant's voluntary consent to the officers' search. They held a 'rather lengthy conversation' with defendant; they advised him of the report made by Gloria and her statement regarding the gun. They asked him if he had a gun and he said, 'No.' Officer Norris questioned him about some bullet holes in the closet and the bathroom doors. They then asked him if he minded if they looked around for the gun; defendant responded, 'Go ahead. I have nothing to hide.' While the evidence is in conflict on this point, defendant having denied that he either admitted the officers to the premises or permitted them to search, the trial judge on the issue of probable cause, as he had a right to do, (People v. Neal, 181 Cal.App.2d 304, 5 Cal.Rptr. 241), rejected the defendant's testimony as not credible and accepted the officers' version of what occurred. If one freely consents to an entry or search his constitutional rights are not violated and

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any search and taking of evidence pursuant thereto is not unreasonable. (People v. Burke, 47 Cal.2d 45, 301 P.2d 241; People v. Davis, 178 Cal.App.2d 887, 3 Cal.Rptr. 465.)

Without weight is appellant's argument that the jury was not properly instructed relative to his knowledge and possession of the marijuana, for he neither sets forth the instructions given nor therein points up the error; moreover, no instructions were included in the record for our consideration and they are not before us. (People v. Roberts, 182 Cal.App.2d 431, 6 Cal.Rptr. 161; People v. Casado, 181 Cal.App.2d 4, 4 Cal.Rptr. 851.) Thus we assume them to be correct. (People v. Danielson, 203 A.C.A. 545, 21 Cal.Rptr. 469.)

Appellant claims he was denied the right to independent counsel. He says he was unaware of his right to counsel, the full nature and extent of his deprivation of counsel and the effect of his waiver thereof; and that he was not represented at the time of sentence.

On January 4, 1961, prior to arraignment, the public defender was appointed to represent defendant; he represented him at...