People v. Prieto

• Decision Date: 10 April 1961
• Docket Number: Cr. 3822
• Citation: 12 Cal.Rptr. 577,191 Cal.App.2d 62
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Auguirrie PRIETO, Defendant and Appellant.

Page 577

12 Cal.Rptr. 577

191 Cal.App.2d 62

PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Auguirrie PRIETO, Defendant and Appellant.

Cr. 3822.

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

April 10, 1961.

Rehearing Denied May 9, 1961.

Hearing Denied May 31, 1961.

Helm & Corbett, Richmond, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

We shall consider each of appellant's contentions on appeal: (1) that the police illegally executed a warrant, which purported to grant authority to search appellant's home during the nighttime; (2) that the court improperly refused to permit appellant to show the falsity of the averments in the affidavit supporting the warrant in that the court incorrectly held that appellant's failure to pursue sections 1539 and 1540 of the Penal Code precluded him from so doing; (3) that, in any event, the affidavit did not state, as a matter of law, sufficient facts to demonstrate probable cause for the issuance of the warrant; (4) that the evidence did not justify the court in submitting to the jury the issue of appellant's knowledge and possession of the narcotic. After describing the factual background of the case we shall elucidate our reasons for rejecting these arguments.

On the afternoon of September 13, 1959, one of the officers at the Richmond Police Department received a telephone call from an anonymous young woman who suggested that if he would check a designated phone booth in that city he would find a marijuana cigarette. A second officer investigated the booth and discovered a partially smoked, hand-rolled cigarette. The same anonymous young woman again called the station, inquiring if the cigarette contained marijuana. The officer informed her that it had not been tested but that a criminologist was in the course of analyzing it. She stated she would call back later, and, if the cigarette were found to contain marijuana, give to the officer the name and address of the party from whom she obtained it.

The criminologist for the police department determined that the cigarette contained marijuana. Upon the final call of the anonymous woman the officer informed her of the result of the tests; she then stated that she had obtained the cigarette on the 11th of September from a room in appellant's home. She told the officer that he would find additional such cigarettes in a Kleenex box in the appellant's bedroom at appellant's residence.

At about 5:30 to 6:00 P.M. the officers obtained a search warrant and proceeded to appellant's residence. In the appellant's absence, the officers displayed the warrant to appellant's sister and undertook the search of his room. They found a Kleenex box in a night stand. The box contained a brown envelope covered by three Kleenex tissues and within the envelope there were three cigarettes. The department later determined that the cigarettes contained marijuana. When appellant returned to his home the officers placed him under arrest. Appellant denied any knowledge of the presence of marijuana cigarettes.

Appellant moved to dismiss the information 'on the grounds that no probable cause was shown to hold the defendant.' The court denied the motion. At the commencement of the trial appellant objected to the trial 'because of issuance of a search warrant without probable cause. * * *' The court overruled the objection and the trial proceeded.

Over appellant's objection the prosecution introduced into evidence the three marijuana cigarettes. The jury returned a verdict of guilty; appellant moved for a new trial; the court denied the motion. The court ordered appellant admitted to probation for a period of five years upon condition, among others, of serving two months in the county jail. Appellant appeals from 'the order denying a new trial' and 'from the order granting probation. * * *'

We turn to a consideration of the four points on appeal which we have set forth supra.

Appellant's failure to urge at the trial his first contention forecloses him from successfully establishing it here. He argues that the warrant, 'so far as its command was for search in the nighttime,' violated the provisions of section 1533 of the Penal Code, which prohibits a direction in a warrant to execute it during the nighttime, unless the 'affidavits are positive that the property is on the person or in the place to be searched * * *.' Since the affidavit in this instance did not positively aver that the cigarettes were on appellant's person or at the place of search, the warrant erred in directing the service in the nighttime. Appellant's failure at the trial to object to the introduction of the evidence upon the ground of the improper execution of the affidavit, however, constitutes a waiver of the point.

The cases hold that if the warrant is in fact executed in the daytime, a failure to insert a directive as to when it is to be served, or, as in this case, to limit its service to the daytime, is not fatal if the warrant is actually served in the daytime. People v. Daily, 1958, 157 Cal.App.2d 649, 321 P.2d 469. See Johnson v. United States, 6 Cir., 1931, 46 F.2d 7; Yeargain v. State, 1940, 69 Okl.Cr. 98, 101 P.2d 273; Farmer v. Sellers, 1911, 89 S.C 492, 72 S.E. 224.

The trial court did not determine factually whether or not service was effected during the daytime because appellant did not draw the issue. Section 7, subd. 13 of the Penal Code decress that "daytime' means the period between sunrise and sunset'; "nighttime' means the period between sunset and sunrise * * *.' Respondent concurs in appellant's request that the court 'take judicial notice that the sun set at Richmond, California on the 13th day of September, 1959, * * * at 7:20 o'clock P.M. * * *' It is true that the testimony shows the service occurred about 7:30 P.M. But the burden of establishing the invalidity of the warrant rested with appellant (People v. Phillips, 1958, 163 Cal.App.2d 541, 546, 329 P.2d 621; People v. Acosta, 1956, 142 Cal.App.2d 59, 62, 298 P.2d 29), and appellant did not urge at the trial its deficient execution as to time.

Appellant's first point meets its nemesis in the failure of presentation of the point in the trial court and in the consequent waiver. Robison v. Superior Court, 1957, 49 Cal.2d 186, 187, 316 P.2d 1.

We turn to appellant's second point: that sections 1539 and 1540 of the Penal Code do not apply to this case. Upon the ground that appellant should have pursued his remedies under these sections, the trial court refused to permit him to show the alleged falsity of the statements in the affidavit supporting the search warrant. Appellant attacks the ruling of the trial court because, he urges, the sections frame a procedure for the reacquisition of property wrongfully seized, not for the suppression of evidence. We shall point out, however, that whatever the theoretical merit of appellant's argument, it has been presently foreclosed by the decisions.

Sections 1539 and 1540 were enacted into the Penal Code in 1872, although originally derived from the Statutes of 1851, chapter 29, sections 658-660, page 285. The present sections provide: 'If the grounds on which the warrant was issued be controverted, he [the magistrate] must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and authenticated in the manner prescribed in Section 869.' Penal Code, § 1539. 'If it appears that the property taken is not the same as that described in the warrant. or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken.' Penal Code. § 1540.

Although, as an original proposition, we might have doubted whether the language of the sections literally applied to an attempt of a defendant to suppress the evidence, rather than to regain it, we think the cases have clearly disposed of the issue. Our court in Arata v. Superior Court, 1957, 153 Cal.App.2d 767, 315 P.2d 473, held that the failure of a defendant to pursue his remedy under the sections precluded him 'from controverting the facts stated in the affidavit upon which the search warrant was based.' 153 Cal.App.2d at page 770, 315 P.2d at page 476. Arata has been followed in People v. Dosier, 1960, 180 Cal.App.2d 436, 440, 4 Cal.Rptr. 309 (decided by this court); People v. Lepur, 1959, 175 Cal.App.2d 798, 802, 346 P.2d 914; People v. Nelson, 1959, 171 Cal.App.2d 356, 360, 340 P.2d 718; People v. Phillips, supra, 163 Cal.App.2d 541, 545, 329 P.2d 621; and People v. Thornton, 1958, 161 Cal.App.2d 718, 721-722, 327 P.2d 161.

It is true that the requirement that appellant pursue the sections produces an anomalous situation. The defendant who denies that he ever possessed the contraband must proceed under sections which provide that if defendant shows there was no probable cause for the warrant, 'the magistrate must cause it to be restored to the person from whom it was taken.' Penal Code, § 1540 (Emphasis added.) Nevertheless the procedural remedies have now been integrated into the law, so that they are known to practitioners. A belated change in the interpretation might well produce more confusion than clarification. We must agree with appellant in his observation that the 'trial court properly ruled, under the existing law of this state, that [the]motion (objection) that there be inquiry into probable cause for issuance of the search warrant came too late.'

Although as a third point appellant attacks the sufficiency of the affidavit to support the search warrant, we believe that it sets forth sufficient facts to demonstrate probable cause for its issuance. While, as we shall point out, the content of the affidavit as to the information obtained from the anonymous informer would not necessarily or singly support its issuance, the...