People v. Perez

• Decision Date: 07 November 1968
• Docket Number: Cr. 286
• Citation: 267 Cal.App.2d 275,72 Cal.Rptr. 746
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Phillip Garcia PEREZ, Defendant and Appellant.

Page 746

72 Cal.Rptr. 746

267 Cal.App.2d 275

The PEOPLE, Plaintiff and Respondent, v. Phillip Garcia PEREZ, Defendant and Appellant.

Cr. 286.

Court of Appeal, Fifth District, California.

Nov. 7, 1968.

Chris E. Rockas, Fresno, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer, David L. Wasserman, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

CONLEY, Presiding Justice.

Our first opinion in this case is reported in 253 Cal.App.2d 288, 61 Cal.Rptr. 582. The Supreme Court had denied appellant's petition for a hearing, but, on the ground of failure of an appointed attorney to file a brief, later directed this court to recall the remittitur, vacate its judgment, and proceed in accordance with Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 and People v. Feggans, 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21. This was done, and a new attorney was appointed, as requested by appellant; he filed an opening and closing brief and made a comprehensive oral argument.

Phillip Garcia Perez and Lydia Garcia Reyes, his companion, were charged with the possession of narcotics in the form of heroin, thus violating section 11500 of the Health and Safety Code. Perez entered a plea of not guilty; he was tried by a jury and found guilty as charged. Lydia Garcia Reyes pleaded guilty, and she is not involved as a party to this appeal. Probation was denied, and Perez was sentenced to state prison.

Gary Shoemaker, who had been an agent for the Bureau of Narcotic Enforcement of the State of California for ten years, went to 3934 East McKenzie in Fresno on December 1, 1965; he had obtained a search warrant; he did not knock at the door but went into the house from the alley through the rear door. He was accompanied by Agents Lacey and Sherwood from his office, Officers Thrasher and Packard from the Fresno Police Department, and a representative of the Fresno District Attorney's office. Shoemaker first saw Lydia Reyes standing at a kitchen table, and then Perez in the living room. Perez placed one hand to his mouth and took a step toward the front door. Shoemaker and Agent Sherwood seized Perez and a struggle followed, which caused defendant to fall to the floor. The officers did not retrieve what they testified Perez put in his mouth. At the time, Shoemaker left the living room and returned to the kitchen; when he again walked into the living room, Agent Lacey arrested Perez. Shoemaker testified that some five or ten minutes after the arrest, Perez stated, 'Man, that was close. I just swallowed two papers.' The officers searched the entire house and took Perez and Miss Reyes with them to be booked at the jail.

John L. Lacey, a California narcotics agent, testified that he was also in the house at the time of the arrest, and that, while the scuffling was going on, he noticed something orange, which he thought was a balloon, in defendant's mouth, and then heard defendant yell, 'I am sorry. I swallowed it.' Lacey testified that he heard Perez say, after his arrest, 'Boy, that was sure close. I swallowed two papers.'

Gilbert D. Thrasher, a Fresno police officer in charge of the narcotics detail, was also in the residence at the time of the arrest; he testified that after entering the front door he immediately went to the kitchen area, taking Lydia Reyes from the living room to the kitchen with him, and that he there noticed a blackened spoon lying on the drainboard, a burned white paper in the wastebasket, a burned match cover on the ashtray, a hypodermic needle lying on the floor near the wastebasket by the sink, and an eye dropper in the wastebasket along with some parts of balloons.

Louis Moller, a chemist agent for the Bureau of Narcotic Enforcement, testified that he found a sticky substance on the spoon, which chemical analysis showed was heroin, and that he believed there was enough residue for a person actually to receive an injection of heroin from it.

The appellant presents four arguments for reversal:

1) That the evidence seized was illegally obtained and, therefore, inadmissible;

2) That the evidence as a whole is insufficient to support a guilty verdict;

3) That the court committed prejudicial error by admitting into evidence repeated references to other criminal activities alleged to have been discussed previously by appellant; and

4) That the court erroneously instructed the jury.

The principal ground for reversal urged by the defense is that the apparatus by which injections of heroin are made, was improperly admitted in evidence because when the raid took place the officers did not preliminarily request admittance, pursuant to the requirements of section 1531 of the Penal Code. The officers were, in fact, armed with a search warrant for the house in question; all of them except Officer Thrasher went to the back door, and Thrasher went to the front door. Officer Shoemaker was asked whether he entered the rear door, and he said that he did. He said that the door had a latch on it; that he put his hand through the screen and unlatched it. He was asked if he did not knock on the door or press the bell button for entry, and he stated that there was no bell button, but he did not knock on the door.

Appellant relies principally on People v. Gastelo, 67 Cal.2d 586, 588, 63 Cal.Rptr. 10, 432 P.2d 706, wherein the defendant was also convicted of possession of heroin; there Los Angles police officers had obtained a warrant for search of an apartment of a woman with whom defendant was living, on the basis of a statement by a reliable informant. Four officers went to the apartment; they saw an automobile outside which they believed to be defendant's; two officers went to the rear door and two to the front, and, without knocking or announcing their purpose or demanding admittance, they forced entry through both doors; defendant and the woman were asleep in the bedroom, and the officers pulled defendant from the bed; they served the warrant and searched the apartment and found a small packet of heroin. The Supreme Court held, in an opinion of Chief Justice Traynor, that the officers failed to comply with section 1531 of the Penal Code, which provides that to execute a search warrant the 'officer may break open any outer or inner door or window of a house, * * * or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.' Justice Traynor said in the Gastelo case that the Attorney General argued that unannounced forcible entry to execute a search warrant is always reasonable in narcotics cases, because narcotics violators may destroy the evidence at the first sign of an officer's presence; the court did not agree with that view and said that neither the California Supreme Court 'nor the United States Supreme Court has held that unannounced forcible entries may be authorized by a blanket rule based on the type of crime or evidence involved.' The opinion continues by saying that under the Fourth Amendment, 'a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unannounced forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket basis.' The court held in the Gastelo case that there was nothing to justify the officers' failure to comply with section 1531 of the Penal Code, and the illegally obtained evidence should have been excluded in compliance with an objection which had been made to its admission.

The Gastelo case holds that there was nothing in that record to justify the officers' failure to comply with section 1531 of the Penal Code and that, consequently, the questioned evidence in that case should have been excluded. In passing, it may be noted that the events of the present raid, considered after its happening, support from a practical standpoint the belief of the law enforcement officers as to the necessity for rapid action. Testimony on behalf of the People was to the effect that the appellant, by his own admission, swallowed part of the heroin in his possession. If the officers had given explicit warning of the imminence of the raid, it is likely that the tell-tale heroin would have been destroyed even more successfully. In the proof by the prosecution that the appellant knew that heroin was a forbidden drug and that he was acquainted with the technique of injecting it and the danger involved in its possession, it also, incidently, showed that the narcotic enforcement officers were thus warned that if they did not act quickly in the raid, they could never present convincing evidence of appellant's guilt. However, it is not necessary to rely upon these factors inasmuch as there was no objection of any kind by the defendant preceding or during the trial to the admission in evidence of the personal property observed and taken in the raid, and no motion was made in the superior court to suppress this evidence. Appellant claims that an objection was made at the preliminary examination, but there is nothing in the record to substantiate the claim, and, even if true, it is immaterial. As clearly stated in the recent case of People v. Flores, supra, 68 A.C. 585 (opinion modified on an unrelated point in 68 A.C. 865, 68 Cal.Rptr. 161, 440 P.2d 233), appellant has shown no 'special circumstances' which would justify departure from the rule that errors not challenged at trial cannot serve as the grounds for reversal on appeal. As is said in the Flores opinion, supra, at pages 589--590, 68 Cal.Rptr. at page 163, 440 P.2d at page 235:

'If defendant had appropriately objected, the prosecution might have been able to show that the officer complied with the notification requirements of section 1531 before entering the apartment (appellant's residence) or that special circumstances justified an unannounced entry.'

(See also People v. Rosales, 68 A.C. 307, 313, 66 Cal.Rptr....