People v. Nieto

• Decision Date: 20 December 1966
• Docket Number: Cr. 11390
• Citation: 247 Cal.App.2d 364,55 Cal.Rptr. 546
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Roy NIETO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 546

55 Cal.Rptr. 546

247 Cal.App.2d 364

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Roy NIETO, Defendant and Appellant.

Cr. 11390.

Court of Appeal, Second District, Division 2, California.

Dec. 20, 1966.

Hearing Denied Feb. 15, 1967.

Caryl Warner, ^* Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Roger E. Venturi, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

Appellant was charged by information with violation of the dangerous weapons' controls law, section 12021 of the Penal Code, in that he had '* * * in his possession * * * a .38 Cal. Revolver and a .22 Cal. Revolver, capable of being concealed * * * and having a barrel less than twelve inches in length,' appellant having previously been convicted of robbery, a felony.

On May 26, 1965, a jury being duly waived, appellant was tried by the court. Appellant's prior conviction of a felony was stipulated. He was found guilty and sentenced to state prison.

Appellant contends that the evidence is insufficient to support the conviction; that he was deprived of his right to counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution; and that the guns introduced in evidence were the subject of a wrongful search and seizure in violation of the Fourth Amendment to the Constitution. Appropriate motions to exclude the guns and the two statements of appellant allegedly elicited in violation of his rights to counsel were made at the proper times at trial, and were considered and denied by the court.

On the evening of February 10, 1965, appellant and his passenger, Jesse Lomeli, were driving on Wilmington and San Pedro Road at approximately 50--55 miles per hour in a 40 mile zone. The car had no taillights or license plate illumination and was spotted by Officers Pitman and Wilkinson. The car continued at the 50--55 mile speed for a brief distance before it was stopped by the officers.

Appellant pulled to the curb, got out, and walked toward the police car with his hands raised. He was recognized by Officer Pitman as a parolee. Pitman testified he asked for appellant's driver's license, looked into the car, and asked appellant for the name of his passenger. Appellant said it was Johnny Martinez. Pitman recognized the passenger as Jesse Lomeli, and advised his partner Wilkinson that the identification given by appellant was incorrect. Pitman testified: 'My partner then asked Mr. Lomeli to step from the car, which he did. At that point my partner reached down and extracted something from the car and walked back to where I was standing and showed me a gun.

'* * *. ask

'Shortly after my partner showed me the other gun, the .22, I walked up to Mr. Nieto's car and saw this gun laying partially protruding from the center portion. It was on the floor board, partially protruding from under the seat in the center part of the car.'

Both men were handcuffed and arrested. They were advised of their constitutional rights.

Pitman testified that later at the police station: 'I asked him (referring to Nieto) where the guns came from and he said he did not know, that he had never saw (sic) them before. I also asked him if he knew anything about any of the robberies that had been occurring in the Wilmington area and he stated, 'In my position I can't tell you anything about any guns or any robberies. I'm going, anyway, but I'm not going to help you."

Lomeli testified that the guns found by the officers were his, and that he had found them earlier in the evening in a lot behind the Golden Garter. The guns were in his waist-band and were hidden by a zippered jacket he was wearing. When the car was stopped, Lomeli attempted to hide the guns under the front seat. As he got out of the car, he said he attempted to close the door, but the officer held it open, shone a flashlight inside, and found the guns. Lomeli said further he denied ownership of the guns at the scene of the arrest because he had previously been convicted of a felony and '* * * felt that if I admitted the guns were mine, I was admitting my crime.'

Appellant denied the guns were his, that he knew Lomeli had guns on his person, or that he had ever seen the guns before. He stated that he had lied to the officers at the scene of the arrest about Lomeli's identity because he had observed Lomeli to be under the influence of narcotics and knew it was a violation of his parole to be associated with people who use narcotics. He also stated that he raised his hands in the air when the car was stopped as a joke.

In challenging the sufficiency of the evidence to support his conviction, appellant must clearly show that the evidence is insufficient to support the verdict. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Alonzo, 158 Cal.App.2d 45, 47, 322 P.2d 42; People v. Gonzalves, 158 Cal.App.2d 98, 101, 322 P.2d 255.) This is particularly true where trial is to the court and not a jury. People v. Kittrelle, 102 Cal.App.2d 149, at page 153, 227 P.2d 38, at page 40, one of the numerous cases on the point, says: 'The function of this court is to correct errors of law and, where a jury has been waived, before the judgment may be set aside on appeal it must clearly appear that upon no hypothesis is there sufficient evidence, circumstantial or otherwise, to support the conclusion reached by the trial court. People v. Hills, 30 Cal.2d 694, 701, 185 P.2d 11 * * *.'

Appellant argues that the evidence is insufficient to support a finding that he had 'ownership, possession, custody or control' of the weapons found in his car.

The evidence clearly shows that the guns were found under the front seat of appellant's car at a time when he was driving the vehicle. At the very least, this is circumstantial evidence supportive of a finding of joint or constructive possession, custody or control of the guns by appellant, and sufficient to sustain his conviction. (See People v. Hunt, 221 Cal.App.2d 224, 227, 34 Cal.Rptr. 421; People v. Garcia, 187 Cal.App.2d 93, 101--102, 9 Cal.Rptr. 493; People v. Pearson, 150 Cal.App.2d 811, 818, 311 P.2d 142.) In People v. Young, 197 Cal.App.2d 129, at page 132, 17 Cal.Rptr. 283, at page 285, the court, quoting from People v. Torres, 98 Cal.App.2d 189, 193, 219 P.2d 480, pointed out:

"Where the circumstances in evidence are such as would reasonably justify an inference of guilt, and the court so found, the fact that an inference of innocence might also just as reasonably have been predicated on such circumstances does not present a question of law reviewable by an appellate court."

Penal Code, section 12021 requires no specific criminal intent (People v. Vanderburg, 214 Cal.App.2d 455, 462, 29 Cal.Rptr. 553), but is violated when ownership, possession, custody or control of a firearm capable of being concealed upon the person is proven against one who has previously been convicted of a felony. (People v. Hunt, supra, 221 Cal.App.2d at page 225, 34 Cal.Rptr. 421; People v. Hilliard, 221 Cal.App.2d 719, 724, 34 Cal.Rptr. 809; People v. De Prima, 172 Cal.App.2d 109, 114, 341 P.2d 840.)

Appellant contends that his Sixth Amendment rights were violated in two instances: by the admission of testimony of his false identification of Lomeli, and his statement to Pitman in the police station without a foundation that it was free and voluntary. Appellate cites People v. Anderson, 63 Cal.2d 351, 46 Cal.Rptr. 763, 406 P.2d 43 People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and People v. Stewart, 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, in support of his position.

Reliance on these cases is misplaced. The routine stopping of a motorist for a traffic violation is not an arrest, but merely a detention (People v. Jackson, 241 A.C.A. 267, 269, 50 Cal.Rptr. 437; People v. Galceran, ...