People v. Perez

• Decision Date: 23 February 1968
• Docket Number: Cr. 13935
• Citation: 66 Cal.Rptr. 473,259 Cal.App.2d 371
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy PEREZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 473

66 Cal.Rptr. 473

259 Cal.App.2d 371

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy PEREZ, Defendant and Appellant.

Cr. 13935.

Court of Appeal, Second District, Division 1, California.

Feb. 23, 1968.

Hearing Denied April 17, 1968.

Bruce A. Toor, Los Angeles, by appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., and Carl Boronkay, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

On December 13, 1963, defendant entered a plea of guilty to possession of marijuana (§ 11530, Health & Saf. Code) in case 280040; on January 10, 1964, he was granted probation for three years.

In a subsequent case, 296630, defendant was charged with possession of marijuana and the cause was submitted on the transcript of the testimony taken at the preliminary hearing; on January 29, 1965, he was found guilty. On February 19, 1965, defendant having deserted probation in case 280040 the same was revoked, and in both cases he was remanded to custody as being in imminent danger of becoming addicted, and later paroled.

On December 16, 1966, defendant was arrested for forgery (§ 470, Pen. Code) to which he entered a plea of guilty; on March 14, 1967, he was sentenced to the state prison (case A--217120).

On June 2, 1967, in case 280040, defendant was sentenced to the state prison, the sentence to run concurrently with that imposed in case A--217120 (forgery) on March 14, 1967; in case 296630 defendant was sentenced to the state prison, the term to run consecutively to those imposed in cases 280040 and A--217120. Defendant appeals from the judgment and sentence in 280040 and 296630.

In case 280040, defendant entered a plea of guilty; absent from the record are written sworn statement of defendant and certificate of probable cause (§ 1237.5, Pen. Code). Thus, appeal taken from the judgment of conviction upon the plea of guilty is dismissed.

On November 6, 1964, responding to a call that there was a fight in a parking lot between Caucasian and Mexican youths in which one of the Mexican youths pulled a pistol and pointed it but fired no shot, Officers Bailey and McClendon arrived at the Magnolia parking lot around 11:30 p.m. They observed no fight but saw four Mexican youths hurriedly get into an automobile. Defendant sat in the rear to the right. Officer Bailey asked the driver his name and if they were the ones who had been fighting. The driver said his name was Triana and they were not, but he had heard of trouble and pointed his thumb to the east. Officer Bailey asked him if he had a gun in the car; Triana said, 'Go ahead and look.' Without reaching into the vehicle the officer directed his flashlight into the car and saw a brown paper bag containing a 6-pack of beer. He asked whether they had been drinking and had beer in the car; Triana said they had. Then the officer asked if they had any weapons, to which Triana replied, 'No, go ahead and look,' whereupon all occupants voluntarily got out of the car; they were not ordered to get out. As the driver stepped out Officer Bailey directed his flashlight onto the floor of the car, and in plain sight on the front floorboard on the driver's side was a 'roach,' 1/4 inch long. The officer advised all of the occupants of their constitutional rights and placed them under arrest; at this time defendant looked 'abnormal,' his eyes were watery and bloodshot and he appeared to be 'under the influence' although the officer smelled no alcohol on his breath. A search of the vehicle revealed on the right rear floor-board debris including numerous marijuana seeds, one of which was burned. After defendant was booked and found to be without identification, Officer McClendon returned to the police car in which defendant had been transported and found his wallet in which were two marijuana cigarettes.

Appellant's present objection that there was no probable cause for his arrest is not timely made. The case was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing. The record shows that when the exhibits were offered in evidence defendant made an objection, but 'on the ground there is no probable cause for the officers to search the vehicle.' When the committing magistrate overruled the objection defendant moved to dismiss 'on the same ground'; the motion was denied. At the trial level in submitting the cause defendant stipulated 'that the People's Exhibits 1, 1--A, 1--B, 1--C, 1--D, and 1--E which were introduced into evidence at that time are considered reintroduced into evidence at this trial subject to any legal objection as to their admissibility * * *.' Thus, had defendant any real objection to the admissibility of the exhibits on the ground that the search was unlawful he did not call it to the attention of the trial court and give it the opportunity to rule thereon; neither did he raise the issue of the validity of his arrest. In the absence of such objection the trial judge was entitled to rely upon the stipulation that the People's case was submitted on the testimony received at the preliminary hearing. (People v. Graves, 84 Cal.App.2d 531, 535, 191 P.2d 32; People v. Miller, 205 Cal.App.2d 116, 121--122, 22 Cal.Rptr. 786.)

At no time, before the committing magistrate or in the trial court, did defendant object to the admissibility of the exhibits on the ground that there was no probable cause for his arrest. This is of no significance insofar as Exhibits 1, 1--A and 1--B are concerned since they consist of the 'roach' found on the front floorboard of the vehicle and the marijuana debris, including seeds, one burned, found on the right rear floorboard of the car. The 'roach' and marijuana debris are the product of a search to which consent was given. The propriety of the search of the vehicle depends entirely upon that consent, not upon the validity of defendant's arrest. Officer Bailey testified that twice Triana told him to 'go ahead and look' in the car and, to facilitate the search by the officers, the four occupants voluntarily stepped out of the vehicle. In overruling defendant's objection to the admissibility of the exhibits and denying the motion to dismiss, the ground of which was 'no probable cause for the officers to search the vehicle,' the committing magistrate found that voluntary consent to search the car had been given. The determination of the credibility of witnesses at a preliminary hearing is a matter within the province of the committing magistrate. (De Mond v. Superior Court, 57 Cal.2d 340, 345, 19 Cal.Rptr. 313, 368 P.2d 865; People v. Brown, 205 Cal.App.2d 188, 192--193, 22 Cal.Rptr. 835; Rideout v. Superior Court, 67 Cal.2d ---, ---, 62 Cal.Rptr. 581, 432 P.2d 197, fn. 2.) ^a The trial judge accepted this determination of voluntary consent to search; we have no reason to reject the trial judge's conclusion.

Thus, it is of no consequence that in neither court did defendant make objection to the admissibility of People's Exhibits 1, 1--A and 1--B on the ground that there was no probable cause for his arrest, but it is of importance that he did not interpose such objection to the admissibility of People's Exhibits 1--C, 1--D and 1--E. Primarily these exhibits consist of the two marijuana cigarettes found in defendant's wallet recovered by the officers from the back seat of the police vehicle used in transporting defendant, after his arrest, to the station. Here, if defendant's arrest was invalid for lack of probable cause, the marijuana cigarettes would have been inadmissible; however, the record before us establishes that Officer Bailey had reasonable cause to believe that defendant had committed a felony (possession of marijuana) before arresting him.

Around midnight the officers responded to a call informing them of a fight involving some Mexican youths and that one of them had pulled a pistol and pointed it; when they arrived they saw four Mexican boys hurriedly getting into a car; the officer queried them concerning the fight and if they had a gun. When there are suspicious circumstances there is nothing improper about an officer stopping persons out of doors at night for the purpose of investigation and to question them (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Davis, 222 Cal.App.2d 75, 78, 34 Cal.Rptr. 796; People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52; People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852); and the circumstances here, while short of probable cause to make an arrest, justified such action. (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658.) Asked if they had any weapons in the car, the driver told the officer, 'No, go ahead and look,' whereupon all of the occupants voluntarily stepped out of the car. As the driver got out, the officer directed his flashlight to the floorboard in the front of the car and in plain sight on the left was a 'roach.' Actually this did not constitute a search since the 'roach' was open to view. (People v. Terry, 61 Cal.2d 137, 152, 37 Cal.Rptr. 605, 390 P.2d 381; People v. Roberts, 47 Cal.2d 374, 379, 303 P.2d 721; People v. Martin, 45 Cal.2d 755, 762, 290 P.2d 855.)

Appellant's argument that his mere presence in the vehicle in which a 'roach' was found does not constitute probable cause to arrest him, ignores the other evidence. The testimony of Officer Bailey establishes that he did not arrest defendant until After he had advised him of his constitutional rights. While Officer Bailey testified that 'at this time' defendant looked abnormal and appeared to him to be under the influence and his eyes were watery and bloodshot, it is a fair conclusion from all of the evidence that before arresting defendant and when he gave him his constitutional rights, the officer was able to and did observe defendant's condition and appearance. This was the interpretation given to the...