People v. Navarez

Decision Date28 June 1985
Docket NumberCr. F001903
Citation169 Cal.App.3d 936,215 Cal.Rptr. 519
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Benny NAVAREZ, Defendant and Appellant.
OPINION

MARTIN, Associate Justice.

Defendant Benny Navarez was convicted after trial by jury of possession of heroin for sale (Health & Saf.Code, § 11351), driving under the influence (Veh.Code, § 23152, subd. (a)), and driving a motor vehicle without a license (Veh.Code, § 12500, subd. (a)). Defendant admitted a prior prison term. The trial court denied probation and sentenced defendant to state prison for the upper term of four years on count I. The court also sentenced defendant to the Kern County jail for concurrent terms of six months each on counts II and III. The probation report and sentencing transcript are devoid of any mention of the admitted prior felony conviction for which defendant's sentence should have been enhanced for one additional year. (Pen.Code, § 667.5, subd. (b).)

Defendant filed a timely notice of appeal.

FACTS

On July 18, 1982, at approximately 2:30 a.m. defendant was arrested by a City of Delano police officer, Officer Harold White, for driving under the influence of alcohol.

Officer White transported defendant to the Delano jail where Diana Boyd was the custodial officer on duty. Ms. Boyd booked defendant at 2:42 a.m. She removed the property from his pockets and placed it on the counter. The property included a belt, matches, comb, papers, $22 in currency, and $2.05 in change. Ms Boyd then searched defendant. The search included defendant's hair and body, but excluded the buttocks and crotch area.

Defendant was then seated in a chair and asked for factual information for booking purposes. 1 While defendant was seated in the chair, he placed his hands behind his back for about five minutes. He was not wearing handcuffs at the time. While defendant was seated, Ms. Boyd "heard like something of paper being crumpled or crunched up." After the booking paper work was completed, Officer White advised defendant of his Miranda 2 rights and defendant declined to give any statement.

Defendant was then taken to be fingerprinted. When Ms. Boyd asked him to return to the booking area, he resisted. Ms. Boyd brought defendant back forcibly and seated him in the same chair. He was later taken to a detoxification cell. After placing defendant in the cell, Ms. Boyd returned to the booking area to complete her work. She took defendant's chair to rest her leg while finishing his paper work. As she picked up the chair, she saw a tinfoil package on the floor. She opened the package and found several smaller packets inside. One of the packets contained a brownish powder. The tinfoil package was found approximately two inches from the back leg of the chair and three to four inches from a nearby wall.

Delano Police Detective Larry C. Jones contacted defendant on July 19 at about 1:30 p.m. Another officer had advised Jones the tinfoil package contained heroin and Jones wanted to question defendant about it. Jones advised defendant of his rights and he agreed to waive them. Jones asked defendant about the suspected heroin found in the booking room. He initially denied all knowledge of the heroin and accused the officers of attempting to frame him or set him up. Upon further questioning, defendant admitted the heroin was his and that he had obtained it from a friend in Delano.

When first taken to the jail, defendant consented to a blood sample. After the tinfoil package was discovered, Officer White examined defendant's arms. White saw no injection/pin hole marks on defendant's arms except for the needle mark caused by the drawing of the blood sample. The Kern County Sheriff's crime laboratory determined the blood sample contained a 0.29 percent blood alcohol level.

Dan E. DeFraga, a criminalist with the Kern County sheriff's crime lab, analyzed the brown powder found in the tinfoil package. He concluded the substance was heroin. DeFraga indicated the large tinfoil package contained four smaller foil bindles with a light brown substance containing heroin, two smaller bindles with a darker brown substance containing heroin, and one empty bindle. The total amount of powder in the bindles was 933 milligrams, which DeFraga considered "a usable amount."

Bakersfield Police Officer Al Matthews testified he had served six years in the vice narcotics section of the Bakersfield Police Department and had extensive experience in street contact with heroin. In response to a hypothetical question, Officer Matthews concluded a person possessed heroin for sale where he was arrested with seven small tinfoil bindles containing a total of 933 milligrams of heroin, the suspect had no track marks, and he did not appear to be under the influence of heroin. Matthews believed the empty bindle was for a "burn," i.e., going to be sold for heroin although actually empty.

Defense

Defendant did not testify on his own behalf to avoid impeachment with his prior conviction. However, defendant's counsel made an offer of proof as to his proposed testimony. Counsel indicated defendant would deny any confession or admission to police and would deny possession of any narcotic.

Evaristo Pesina testified he was the custodial officer whose shift followed Diana Boyd's. He did not recall removing defendant from his cell for an interview with any Delano Police Department officers.

DISCUSSION

I. DID THE TRIAL COURT PROPERLY DENY APPELLANT'S MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL? **

II. DID THE TRIAL COURT PROPERLY RULE DEFENDANT'S CONFESSION WAS ADMISSIBLE?

Defendant contends his confession to Detective Jones should have been suppressed. He argues that once he invoked his privilege against self-incrimination, the police could not lawfully subject him to a new round of interrogation after repeating warnings of his constitutional rights.

On the first day of trial, defendant moved to suppress his confession to Detective Jones. Arresting Officer Harold White and Jones testified about the circumstances preceding the confession. White arrested defendant on July 18 for driving under the influence of alcohol. He transported defendant to the Delano jail and read defendant his Miranda rights at about 3:06 a.m. Defendant did not waive his rights and did not talk to White. White did not question defendant any further. Between July 18 and July 20, White did not talk to Jones about defendant. Jones contacted defendant at about 1:30 p.m. on July 19. He read defendant his Miranda rights and defendant waived his rights and agreed to talk. Jones questioned defendant only about the suspected heroin found in the booking area. Jones did not ask any questions about the driving under the influence charges or defendant's whereabouts on July 18. Jones was unaware White previously read Miranda rights to defendant nor did Jones talk to White before interviewing defendant. Defendant initially denied any knowledge of the heroin. Upon further questioning, defendant admitted possession of the heroin and said he obtained it from a friend in Delano. Defendant would not disclose the friend's name and declined to talk further. Jones terminated the questioning. Both counsel argued the motion and the court held the confession admissible, relying upon People v. Lopez (1979) 90 Cal.App.3d 711, 719-720, 153 Cal.Rptr. 541. 4

Defendant argues the court's ruling was erroneous under People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 and People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108. In Fioritto, defendant and two companions were arrested for burglary and taken to a police station. Police gave defendant Miranda warnings and he refused their request for a written waiver of his rights. Later, the police confronted him with his two accomplices who had previously confessed and implicated him. The police again gave defendant the Miranda warnings and renewed their request for a signed waiver. This time defendant complied and confessed to the burglary. The Supreme Court reversed his conviction for second degree burglary, stating:

"By his refusal to waive his constitutional rights initially, defendant indicated that he intended to assert his rights--the privilege had been once invoked --and all further attempts at police interrogation should have ceased. Although the confrontation of defendant with his two juvenile accomplices who had confessed injected a new factor into the questioning, the didactic language of the United States Supreme Court shows no disposition to permit subsequent interrogation in the absence of counsel even if authorities believe there has been a change of circumstances. Thus we have no alternative but to hold that the confession thereafter secured constituted inadmissible evidence at trial." (People v. Fioritto, supra, 68 Cal.2d 714, 719, 68 Cal.Rptr. 817, 441 P.2d 625.)

In Pettingill, defendant and three companions were arrested for burglary. The arresting officer read defendant his constitutional rights at the scene, defendant declined to talk, and the officer terminated questioning. Two hours later at the police station, the arresting officer again advised defendant of his constitutional rights and asked if he wished to talk about the charge. Defendant again declined and the officer terminated questioning. Two days later defendant's companions confessed to several unrelated burglaries to a detective from another county. The following day that detective confronted defendant with the confessions and read him his constitutional rights. Defendant then agreed to talk and confessed to the burglaries. The Supreme Court reversed defendant's...

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