People v. Rodriguez

• Decision Date: 06 March 1959
• Docket Number: Cr. 6375
• Citation: 336 P.2d 266,168 Cal.App.2d 452
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Benny Santiago RODRIGUEZ, Defendant and Appellant.

Page 266

336 P.2d 266

168 Cal.App.2d 452

PEOPLE of the State of California, Plaintiff and Respondent, v. Benny Santiago RODRIGUEZ, Defendant and Appellant.

Cr. 6375.

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

March 6, 1959.

Rehearing Denied March 24, 1959.

Hearing Denied April 29, 1959.

David C. Marcus, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

LILLIE, Justice.

Upon submission of the matter to the court on the transcript of the preliminary hearing, defendant was convicted of possession of heroin in violation of Section 11500, Health & Safety Code. His motion for a new trial was denied and he was sentenced to the state prison. This appeal is from the judgment of conviction and order denying motion for new trial.

Appellant contends that the trial court erred in refusing to require the officer to disclose the name of the informant; that the evidence was insufficient to sustain the judgment and that it was error to deny his motion for a new trial.

We deem to be without merit appellant's first contention that the court's refusal to permit the defense to ascertain the informer's name invalidated the arrest, search and seizure.

It is conceded the officers had no warrant of arrest or search when they went to defendant's home. Officer Van Court testified that, about one and one-half hours after receiving information from a reliable informant that defendant, about whom he had received information for the past year and against whom he had testified four or five months earlier, had in his possession a quantity of stolen property for which he had traded heroin, which narcotic he kept buried in his backyard, he and four others officers, several from burglary detail, went to defendant's home where they observed defendant in front of his house. Van Court walked up to him and told him 'he was under arrest again for the same thing,' and said 'I heard that you are taking more, trading more stolen property for junk.' Then he 'asked him (defendant) if it would be all right to look around,' referring to the house to which defendant motioned, and specifically naming the shed and backyard. Defendant replied: 'Look around and you won't find anything.' The officers then proceeded to search the house, wherein Van Court found various items, including wrist watches. Thereafter he went out to the backyard and found a hole in which it appeared something recently had been buried. While checking under a board on which a washing machine rested, approximately 10 or 15 feet from Officer Ruble, the latter called his attention to a blue bottle containing 123 capsules of heroin, partially covered in a six-inch hole. In the yard the earth was dry, there was 'possibly a weed or two; no plants' but right over where the bottle had been buried was one little wilted plant.

The defense asked the officer the name of the informant, to which question the court sustained an objection and then denied a motion to strike his testimony relative to the information transmitted by the informant.

Defendant testified he was standing outside when the officers arrived. One called him by his first name and told him they were going to have to go through his house. He asked if they had a search warrant and the officer replied 'No,' he didn't need one. They then started searching the house and yard, which yielded the bottle in question.

It is appellant's position that if the officer's testimony relative to the information transmitted to him by the informer had been properly stricken for the court's failure to permit disclosure of his name on the authority of Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39, there would remain in the record no showing of reasonable cause to justify the arrest and search as incident thereto.

As stated by the court in People v. Burke, 47 Cal.2d 45, at page 49, 301 P.2d 241, at page 243: '(I)t was not necessary here, however, for the People to show that the search and seizure were reasonable as incident to a proper arrest, for they showed that defendant freely consented to the search of his apartment which disclosed the evidence which defendant has since claimed was illegally obtained. It was not unreasonable for the officers, without any show of force or coercion, to call upon the suspected defendant at his home, or to ask him questions, or to accept defendant's statement, 'No, go ahead,' in answer to the inquiry, 'You don't mind then if we search your apartment to you?''

The evidence before us discloses that the officers went to defendant's house, not only on information of the informant that defendant had narcotics buried in his backyard and was trading them for stolen property, but on Van Court's knowledge of defendant and his activities for a period of a year, and his experience from testifying against defendant four of five months previous, when tried as the result of an arrest by narcotics officers. It is also clear that no force or coercion was used in calling on defendant at his home. It does not appear, therefore, to have been unreasonable for Van Court to call upon defendant, ask him questions, or accept his statement they could 'look around' although they would find nothing.

While defendant gave a different version of what occurred, the most his testimony created was a factual conflict which the trial court, in the discharge of its duties to weigh the evidence, decide the veracity of witnesses and determine factual disputes, impliedly resolved against him. The evidence in the record before us concerning the search of defendant's house and premises amply supports any determination that defendant gave his consent thereto (People v. Smith, 141 Cal.App.2d 399, 296 P.2d 913; People v. Hood, 149 Cal.App.2d 836, 309 P.2d 135; People v. Cherrie, 162 Cal.App.2d 143, 327 P.2d 909, and that it was freely and voluntarily given. There is no showing in the record that any force or persuasion of any kind was used by the officers to gain defendant's consent to search house, shed and backyard. The mere fact that he was under arrest at the time, or even in handcuffs, cannot per se make such consent involuntary (People v. Burke, 47 Cal.2d 45, 301 P.2d 241; People v. Michael, 45 Cal.2d 751, 290 P.2d 852; People v. White, 159 Cal.App.2d 586, 324 P.2d 296; People v. Guy, 145 Cal.App.2d 481, 302 P.2d 657).

Returning briefly to Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39, in the instant case the only relevance of the testimony concerning the information provided by the informant is on the issue of probable cause to arrest defendant and search the premises. However, since defendant gave his free and voluntary consent to search his house, which disclosed merchandise the officers believed to be stolen, and his backyard which revealed narcotics, it is clear that not only were the officers permitted, but it was their official duty, to take defendant into custody (Section 836, Penal Code, People v. Melody, 164 Cal.App.2d 728, 331 P.2d 72. As applied to the evidence in the case at bar, nondisclosure of the identity of the informant and failure to strike the evidence concerning the information given by him are harmless, and constitute no ground for reversal since there is in the record, without reference to that information, ample evidence of probable cause for defendant's arrest and subsequent commitment based upon the narcotic found on defendant's premises through a lawful search.

Appellant refers briefly to People v. McShann, 50 Cal.2d 802, 330 P.2d 33, but has made no showing that the informant would have been a material witness on the issue of guilt. Indeed, in view of the defense that he knew nothing of the heroin found on his premises, suggesting by his testimony that his brother, then serving a state prison sentence for sale and possession of narcotics, had buried the same before his arrest; his brother's recent assertion, upon defendant's motion for a new trial, that before his arrest he buried nine bottles containing heroin on the same premises, which defendant now wishes to interpose as a defense on a new trial; to say nothing of defendant's confession that the heroin was his and it was he who buried the bottle; it would be difficult for appellant now to claim that the informant, who neither participated in the commission of the offense nor was present at the time of arrest, could have been a material witness on the issue of guilt. Nor is there any showing in the record that defendant planned or wanted to call the informant as a witness, tried or was unable to locate him, or in what manner he could or would have testified on the issue of guilt. On this issue, we do not perceive how the failure to divulge the identity of the informant could have been prejudicial to defendant. People v. Lazzara, 131 Cal.App.2d 663, 281 P.2d 4.

Concerning appellant's second point that the evidence was insufficient to sustain the judgment of conviction, in accord with recognized rules on appeal, we are bound to view the evidence in the light most favorable to respondent, as we must assume in favor of the conviction every fact which the trial court could reasonably have deduced from the evidence and refrain from drawing contrary inferences. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.

In the house in which defendant resided with his wife, mother and children, Van Court found various articles of merchandise, and in his backyard, partially covered by dirt in a six-inch hole, a blue bottle containing 123 capsules, some of which were later examined and found to contain heroin. When confronted with 'his stash,' defendant denied he knew anything about it. Later, the same day, at the office of the Valley Detective Division, his entire conversation with Van Court and Sgts. Mullens and Ruble was tape recorded, during which he confessed the heroin found in the bottle belonged to him and was what remained of a purchase of 200 capsules from...