People v. Reyes

• Citation: 23 Cal.Rptr. 705,206 Cal.App.2d 337
• Decision Date: 01 August 1962
• Docket Number: Cr. 1709
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Arthur Espinoza REYES and Manuel E. Reyes, Defendants and Appellants.

Page 705

23 Cal.Rptr. 705

206 Cal.App.2d 337

The PEOPLE, Plaintiff and Respondent, v. Arthur Espinoza REYES and Manuel E. Reyes, Defendants and Appellants.

Cr. 1709.

District Court of Appeal, Fourth District, California.

Aug. 1, 1962.

Rehearing Denied Aug. 23, 1962.

Hearing Denied Sept. 26, 1962.

Lloyd S. Verry, Fullerton, and Maurice Harwick, Los Angeles, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and N. Gregory Taylor, Deputy Atty. Gen., for plaintiff and respondent.

COUGHLIN, Justice.

The defendants were charged with, convicted by a jury of, and sentenced to imprisonment in the state prison for the offense of possession of heroin, viz., a violation of Section 11500 of the Health and Safety Code; moved for a new trial, which was denied; and appeal from the judgment and the order denying their motion. An order denying a motion for a new trial in a criminal case no longer is appealable, and the purported appeal therefrom should be dismissed. (Pen.Code, sec. 1237, as amended by Stats.1961, ch. 850, p. 2229, sec. 5.)

The defendant Arthur Espinoza Reyes also was charged with a prior conviction under Section 11500 of the Health and Safety Code, viz., possession of marijuana, as to which he entered a formal denial.

Four alleged errors are urged as grounds for reversal, viz., (1) the admission of testimony obtained though an unlawful search and seizure; (2) submitting to the jury the issue of probable cause in connection with the admission of such evidence; (3) failure to instruct on the court's own motion that the oral admissions of a defendant should be viewed with caution; and (4) inclusion in the judgment of a finding that the defendant Arthur Reyes previously had been convicted of a felony, as alleged in the information filed against him, when no verdict was returned with respect thereto.

The defendants contend that they were arrested without a warrant or probable cause; that a search and seizure made as an incident to this arrest was unlawful; that evidence obtained as a result thereof was inadmissible; and that the court erred in overruling their objections thereto.

A hearing upon these objections, including the appurtenant factual issue of want of probable cause, was conducted before the court outside the presence of the jury; consumed two days; and resulted in an order overruling the objections, including an implied finding that probable cause existed. The defendants claim that the finding in question is not sustained by the evidence.

What constitutes probable cause depends upon the facts and circumstances in each case, but generally has been defined to be 'such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580; People v. Walker, 203 A.C.A. 624, 629, 21 Cal.Rptr. 692; People v. Carella, 191 Cal.App.2d 115, 130, 12 Cal.Rptr. 446.)

Under the oft-repeated rule, where the sufficiency of the evidence to sustain a finding is attacked on appeal, if there is any substantial evidence, either contradicted or uncontradicted, including any inference reasonably deducible therefrom, which supports the finding, it will be affirmed. (People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.) The facts in this case will be stated accordingly.

A man named Castro was arrested when found in possession of heroin; told the officers that he wanted to cooperate with them; advised that he had been employed to make deliveries of heroin; upon inquiry, stated that he had made a delivery to the defendants approximately 20 days before; also stated that on his last visit to their residence they wanted him to get some procaine for them with which to cut the heroin theretofore delivered; drew a map of the place where the defendants lived; and accompanied the officers to that place, pointing it out to them. Police records were searched; disclosed that the defendant Arthur Reyes had 'a conviction for a prior narcotic possession charge' and that both defendants had 'records for narcotics'; and corroborated their place of residence as stated by Castro. A state narcotics agent told the officers that the defendants were two of the biggest narcotics dealers in the county. Thereafter, four officers went to the residence in question to make a further investigation. They did not intend to make an arrest. It reasonably may be inferred from the evidence that all of them shared the foregoing information. One of the officers went to the front door and knocked; in response to an inquiry from within as to who was there, he replied: 'Police officer, I want to talk to you'; started toward a window where he saw the outline of a face, for the purpose of showing the person inside his credentials; saw and heard the person at the window turn and run; yelled 'He is running for the toilet'; then returned to the front door; forced it open; and upon entry saw both defendants in the bathroom. Another officer had gone to the side and back of the house; looked into the windows thereof; heard the officer on the front porch yell; saw the defendants running into a room which previously he had identified as a bathroom because of the position of the windows therein; heard the toilet flush; forced open the back door of the house and entered; saw the defendants, fully clothed, standing over the toilet, which still was in a flushing cycle; observed a white or grayish brown powdery material on the floor about the toilet bowl on the bowl, and on the seat thereof; also saw a broken container nearby on the floor which was of the type in which heroin was carried by Castro when he was arrested; and scraped the powdery material from the floor onto a small piece of paper, which he preserved. Contemporaneously, the defendants were placed under arrest. At the trial, an expert testified that the material gathered up from the floor contained 3% heroin.

In substance and summary, the evidence shows that the officers were informed that the defendants had purchased some heroin and had given an order for procaine with which to cut it; ascertained that they had a narcotics record; verified the residence information given them by their informant; received information from a responsible source that they were the biggest narcotics dealers in the county; went to their residence to make a further investigation; after knocking on the door thereof and identifying themselves, heard scurrying footsteps; saw two men rush to the back of the house toward the bathroom; heard the toilet flush, knowing that persons in unlawful possession of narcotics, when about to be caught, often dispose thereof by flushing the same into the sewer; and, under these circumstances, had probable cause to believe that a crime was being committed in their presence. (See People v. Maddox, 46 Cal.2d 301, 294 P.2d 6; People v. Ambrose, 199 A.C.A. 885, 889-890, 19 Cal.Rptr. 102; People v. Carella, supra, 191 Cal.App.2d 115, 130-131, 12 Cal.Rptr. 446; People v. Williams, 175 Cal.App.2d 774, 775, 1 Cal.Rptr. 44; People v. Poole, 174 Cal.App.2d 57, 60-61, 344 P.2d 30; People v. McMurray, 171 Cal.App.2d 178, 185, 340 P.2d 335; People v. Amado, 167 Cal.App.2d 345, 347, 334 P.2d 254.) The entry thereafter made to effect an arrest was authorized, and the search and seizure concurrently conducted as an incident to that arrest, under established principles, was lawful. (People v. Hammond, 54 Cal.2d 846, 853, 9 Cal.Rptr. 233, 357 P.2d 289; People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531; People v. Walker, supra, 203 A.C.A. 624, 629, 21 Cal.Rptr. 692.)

'In this connection it should be pointed out that the weight to be accorded the information upon which the arresting officers acted in making the arrest was essentially for the trial court's determination in the exercise of a sound discretion.' (People v. Taylor, 176 Cal.App.2d 46, 51, 1 Cal.Rptr. 86, 90.)

The defendants, relying on the rule stated in Willson v. Superior Court, 46 Cal.2d 291, 294, 294 P.2d 36, and discussed in People v. Dewson, 150 Cal.App.2d 119, 127-129, 310 P.2d 162, contend that the sole basis for their arrest was the information furnished by Castro; that he was not a reliable informer because the officers had no prior opportunity to test the reliability of information theretofore furnished by him; and that, for this reason, probable cause was not established as a matter of law. However, the factual basis for this contention is without support, as the officers acted on other information besides that furnished them by Castro, and did not enter the subject residence until occurrence of the incidents which followed the announcement of their presence. In determining whether a crime is being committed in their presence, officers are entitled to rely upon information given them by an informer if other known facts justify the conclusion that reliance thereon is reasonable. (Willson v. Superior Court, supra, 46 Cal.2d 291, 294-295, 294...