People v. Robbins

• Decision Date: 27 February 1964
• Docket Number: Cr. 8744
• Citation: 225 Cal.App.2d 177,37 Cal.Rptr. 244
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie ROBBINS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 244

37 Cal.Rptr. 244

225 Cal.App.2d 177

The PEOPLE, Plaintiff and Respondent, v. Willie ROBBINS, Defendant and Appellant.

Cr. 8744.

District Court of Appeal, Second District, Division 4, California.

Feb. 27, 1964.

Frank Duncan, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Charles W. Rumph, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

A jury found defendant guilty of possession of heroin for sale, in violation of section 11500.5 of the Health and Safety Code. Defendant admitted a prior narcotic law conviction for violation of section 11500 of the Health and Safety Code. Defendant's motions for a new trial, to reduce the offense to a violation of section 11500 of Health and Safety Code (possession of narcotics) and for probation, were denied and defendant was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

John C. Hanks of the narcotics division of the Los Angeles Police Department testified that, on May 22, 1962, at approximately 3:00 p. m., he was staked out near the residence of defendant. While looking through binoculars, he observed defendant and Vernia Roland drive up to defendant's residence and go into the house. Approximately ten minutes later defendant came out of the front door and down a flight of stairs at the bottom of which he stooped down out of the officer's vision; defendant reappeared in approximately one minute, and entered a small attached room where he remained for a minute or two; defendant then came back into the officer's view and reentered the house.

On May 29, 1962, at approximately 2:30 p. m., Officer Hanks again had defendant's house under surveillance. On this occasion he observed defendant walk down the front stairs of the residence and into the front yard. There, he was seen to bend down out of sight, then straighten up and go to another location, where he repeated the same movements. Defendant then started up the stairs, but before reaching the front door, he stopped, descended the stairway again and walked into the small room on the ground level. In a short time he reappeared, and again walked over to the bottom of the stairs, where he again stooped down out of the officer's range of vision. When he again reappeared and walked up the stairs to the house, he was carrying what the officer described as a small white object. Approximately ten minutes after defendant entered his house with the white object, a man entered defendant's home, remained a few moments, and then left.

On June 4, 1962, Officer Hanks and three other officers served defendant with a search warrant and entered his residence. They searched defendant's person and the house but did not discover any narcotics. Officer Hanks made a search of defendant's yard, and, in particular, the area where he had previously observed defendant stooping and moving around. Underneath a geranium bush in the yard of a neighbor, he found a brown cloth satchel containing eleven rubber condoms, each of which contained a white powdery substance (6 1/4 ozs. in weight), which, according to later chemical analysis, was heroin. The satchel was located approximately six inches from a picket fence which separated defendant's yard from that of the neighbor and in the same general area where Officer Hanks had observed defendant bending over. The officer reached through the picket fence from defendant's yard and recovered the satchel and its contents.

Officer Hanks showed his find to defendant, stating 'Everything is real rosy when you're out there peddling this stuff and making money, but one day the heat drops down on you and everything isn't so rosy.' Defendant replied, 'Well, man, if you're going to play, you've got to pay.' The officer then asked defendant, 'How much stuff is in that bag?' Defendant replied, 'Look, you're a man and I'm a man--I'm not going to say anything--you understand what I'm talking about.'

Mrs. Thomas, defendant's neighbor in whose yard the narcotics were found, testified that on June 4, 1962, she observed defendant 'patting' at the foot of the steps near the geranium bushes.

Defendant did not testify in his own behalf, but called as a witness Vernia Roland, who testified that she owned the house in which defendant was arrested; that defendant resided at that address; she kept a little throw rug on the front step of the house which often became 'mussed up' when people walked up and down the stairs; she and defendant were constantly stooping down at the foot of the stairs to rearrange the rug; she had a little Chihuahua puppy; both she and defendant oftentimes played with the puppy and threw it a white toy bone. It was stipulated that the witness, Vernia Roland, had suffered a prior felony conviction.

Defendant contends that the trial court committed prejudicial error when it admitted into evidence a posed photograph (Exhibit 9), taken at the location where the narcotics were found. Defendant asserts that the photograph portrays Officer Hanks standing on the stairway of defendant's dwelling holding one of the condoms filled with heroin which the officer had found. Defendant argues that, since Officer Hanks testified he could not identify the small white object he saw in defendant's hand, a posed photograph depicting the officer, standing in the location where he saw defendant, holding part of the seized marcotics, was not an accurate representation of what the officer testified he saw, and further, was highly prejudicial to defendant's case. In addition it is argued that the photograph was not taken at the same time of day nor from the same distance, location or angle.

We do not agree with defendant's assertion that the photograph (Exhibit 9) depicts Officer Hanks holding one of the condoms. From the photograph we can determine nothing more than that the officer is holding a small white object. Further, Officer Hanks testified, with respect to the photograph, that it was a fair and accurate representation of the conditions existing as observed by him on May 29, 1962. As stated in People v. Sambrano, 33 Cal.App.2d 200, at p. 213, 91 P.2d 221, at p. 228: 'Courts are authorized to receive in evidence photographs in the same class as diagrams, when they accurately depict the locality of the crime, together with weapons, objects and physical conditions which are unchanged in status or in relation to other surrounding conditions as shown at the trial by accompanying testimony. [Citations.]' See also People v. Jackson, 74 Cal.App.2d 22, 25, 167 P.2d 776. And, "It is for the trial court to determine, from the evidence before it, whether a photograph offered is a correct representation of the object or scene in question, and the ruling will be sustained on appeal unless it is apparent that there has been an abuse of discretion.' [Citation.]' (People v. Crooms, 66 Cal.App.2d 491, 496, 152 P.2d 533, 535.) No abuse of discretion is apparent in the instant case.

Defendant contends the deputy district attorney...