People v. Ortiz

• Citation: 26 Cal.Rptr. 677,210 Cal.App.2d 489
• Decision Date: 06 December 1962
• Docket Number: Cr. 7917
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio Perez ORTIZ, Manuel Rosales and Rafael Padilia, Defendants and Appellants.
• Court: California Court of Appeals

Page 677

26 Cal.Rptr. 677

210 Cal.App.2d 489

The PEOPLE, Plaintiff and Respondent, v. Antonio Perez ORTIZ, Manuel Rosales and Rafael Padilia, Defendants and Appellants.

Cr. 7917.

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

Dec. 6, 1962.

Paul Augustine, Jr., Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Louis L. Selby, Deputy Atty. Gen., for respondent.

FORD, Justice.

In the first count of an information the defendants Ortiz, Rosales and Padilla were accused of selling heroin on or about March 11, 1961, in violation of section 11501 of the Health and Safety Code. In the second count Ortiz alone was charged with such a sale which was alleged to have occurred on or about March 13, 1961. All of the defendants were accused in the third count of having made such a sale on or about March 17, 1961. Rosales was charged in the fourth count with a violation of section 12021 of the Penal Code in that on or about March 17, 1961, he, being a person theretofore convicted of a felony, had in his possession and under his custody and control a .45 caliber Colt automatic which was capable of being concealed upon the person, the firearm having a barrel less than 12 inches in length.

In a trial in which each defendant waived his right to trial by jury, Ortiz was found guilty as charged in each of the first three counts, Rosales was found guilty of the offenses charged in the third and fourth counts and acquitted with respect to the first count, and Padilla was found guilty as charged in the third count and acquitted of the charge contained in the first count. Ortiz has appealed from the judgment. Each of the other defendants has appealed from the judgment against him and from the order denying his motion for a new trial.

In considering the sufficiency of the evidence to support a conviction, the duty of an appellate court is to determine whether there is substantial evidence in the record, either direct or indirect, contradicted or uncontradicted, which justifies the conclusion reached. (People v. Moore, 196 Cal.App.2d 91, 96, 16 Cal.Rptr. 294.) Viewing the record in the light most favorable to the People (see People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049), there was evidence of the facts hereinafter related.

Agent Velasquez of the State Bureau of Narcotic Enforcement met the defendant Ortiz in a bar on March 10, 1961. Ortiz said that the price of heroin was $200 an ounce. A meeting was arranged for the next day. On March 11, about 10 o'clock in the morning Agent Velasquez and Ortiz met in East Los Angeles. Ortiz walked to the intersection and to a telephone booth and then went out of the officer's sight. After returning and talking to one Rodriquez, who had accompanied the officer on both occasions, Ortiz again walked toward the intersection and disappeared from view. When Ortiz returned he said, 'Everything is ready. Give me the money and I'll tell you where to go.' Agent Velasquez gave $200 to Ortiz. Ortiz then directed him to a service station at the intersection of Slauson and Pacific and told him that the 'stuff' would be underneath the wash basin in the men's lavatory. The officer followed Ortiz's automobile to that location and found in the place indicated a rubber container wrapped in two paper towels. There was scotch tape on the container. In the container was a powdery substance which was later determined by analysis to be heroin. Agent Velasquez then talked to Ortiz, who was waiting nearby in his parked car, and arranged for a meeting at noon on the following Monday near the intersection of Studebaker Road and Firestone in Norwalk.

On Monday, March 13, 1961, Agent Velasquez met Ortiz at the appointed place, but Ortiz said he did have any heroin and that they would have to meet that night between 5 and 8 p. m. in the parking lot of a market on Brooklyn Avenue. At about 5:35 p. m. Ortiz drove into the parking lot in a car other than that which he had used on the prior occasions. It was a 1958 Chrysler bearing license number PMA273. The defendant Rosales was a passenger in the car. Ortiz left the car and met Agent Velasquez. Ortiz said everything was ready. The officer handed him $400 and was directed to a service station at Old River School Road and Florence where, he was told, two ounces would be underneath the wash basin of the men's lavatory. At the place indicated Agent Velasquez found two rubber containers wrapped in two paper towels. There was scotch tape around the ends of the containers and there was 'a staple in the scotch tape and a staple on the end of one of the rubber' containers. The powdery substance in the containers was later determined by analysis to be heroin.

In the course of the conversation at the parking lot on March 13, Agent Velasquez and Ortiz arranged for further communication on Friday, March 17, 1961. As a result thereof they met on the latter date at the same place. Agent Velasquez entered Ortiz's automobile at about 7:15 p. m. and they drove some distance away from the parking lot. The officer gave Ortiz $800 in currency, the serial numbers of which had been previously recorded by the Bureau of Narcotic Enforcement. Ortiz told him to go to the service station at Old River School Road and Florence and that he would find four ounces underneath the wash basin. Agent Velasquez went to that location and found four rubber containers wrapped in two paper towels in the men's lavatory. In each container was a powdery substance which was later determined by analysis to be heroin. About 9 o'clock that night, Ortiz was arrested at his home. In the ensuing search no narcotics were found.

At about 10:30 p. m. on Friday, March 17, 1961, the defendants Rosales and Padilla were arrested at 11336 Studebaker Road in Norwalk. That house had been under surveillance since earlier in the evening. The Chrysler automobile which Ortiz had used on March 13, was driven to the house by a woman who alighted therefrom, accompanied by two children, and entered the residence. Three state agents went to the front door and knocked. They had no search warrant or warrant for the arrest of anyone. A woman came to the door. Agent Byram identified himself as a state narcotic agent, exhibited his credentials and inquired as to her identity. She said that she was Mrs. Alice Rosales. He asked if the house was her house and she replied that it was. Agent Byram further testified: 'I told her that we thought there might be narcotics or money concealed on the premises and asked for her permission to search. She readily admitted all of the agents, and we entered the front room at this time.' The defendant Rosales, who was Mrs. Rosales' son, and the defendant Padilla, her nephew, were present, as was the woman who had previously entered with the children. Mrs. Rosales asked that they search the bedroom first so as not to disturb the children who were being put to bed. In the ensuing search no narcotics were found. But in a bedroom Agent Byram observed 'a postal scale, a small stapling machine, and a roll of scotch tape, and a box of staples, and some loose staples.'

Agent Brewer, who was present at the Rosales residence, testified that he asked the defendant Rosales if he would step into the kitchen so that he could talk to him. Rosales went into the kitchen. As to what then occurred, Agent Brewer testified in part as follows: 'After a few questions, I asked him if he would mind taking everything out of his pockets so I could look at it, and he did, at which time he took out a roll of money out of his left pocket, and it appeared to be quite a substantial amount of money, so I took the money and, with the assistance of Agent Palo, I checked it against our currency list which I found one bill to be with the same serial number that was on the list.' The witness then arrested Rosales for the offense of selling heroin. He made a further search of Rosales. The total amount of money he found was approximately $714, of which amount $650 was in bills having serial numbers which had previously been recorded by the Bureau of Narcotic Enforcement. Rosales said a friend had given him the money to hold for him but that he would rather not identify the friend.

Agent Nice asked the defendant Padilla to come into the kitchen so that he could talk to him. Padilla said that he lived in that residence. Agent Nice testified in part as follows: 'And I asked him if he minded if I searched him. And he said, 'No, go ahead.' And I said, 'Well, would you take your jacket off,' and he did. He placed it on the back of the chair. And I looked at his arms and I said, 'Would you put everything in your pockets on the table so I could see it,' and he did. And he removed a billfold * * * and he had $208.00 in the billfold. And I asked him if that was his money. And he said yes. * * * And I said, 'Where did the money come from?' He said, 'Well, I got the money from cashing some checks.' And I reached in the inside right pocket of his jacket that was on the chair and I removed $150.00, all in ten-dollar bills, and I said, 'Is this your money?' And he said, 'Yes, that's part of the money that I got from cashing the checks.' So I checked two of the bills against the previously recorded list, and they matched.' Later Agents Nice and Brewer checked the money against the recorded serial numbers; they ascertained that serial numbers of bills totaling $650 found on the person of Rosales and of bills totaling $150 found on the person of Padilla were on the list.

With respect to the firearm found at the Rosales residence, Agent Byram testified in part as follows: 'While searching a closet in a cubicle of the front room which leads to the hallway, on the top shelf in the rear I found a man's stocking which contained a Colt .45 automatic and seven rounds of ammunition * * *. The shells were inside the stocking * * * separate from the gun. * * * As I was searching...