People v. Sanders

• Decision Date: 14 April 1967
• Docket Number: Cr. 2608
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Claude Delois SANDERS III and Jesus Ruiz Rodriguez, Defendants and Appellants.

Page 259

58 Cal.Rptr. 259

250 Cal.App.2d 123

The PEOPLE of the State of California, Plaintiff and Respondent, v. Claude Delois SANDERS III and Jesus Ruiz Rodriguez, Defendants and Appellants.

Cr. 2608.

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

April 14, 1967.

Rehearing Denied April 20, 1967.

[250 Cal.App.2d 125] Fred E. Corbin, San Diego, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Marvin A. Bauer, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

In a jury trial defendants were found guilty of possession of marijuana for sale (Health & Saf. Code § 11530.5) and of transporting marijuana (Health & Saf. Code § 11531). They were sentenced on both counts for the terms prescribed by law. Execution of sentence as to the possession for sale charge was ordered stayed pending any appeal and during the service of any sentence the Adult Authority should pronounce in connection with count two, transporting marijuana; at the completion of the service of any sentence in connection with count two the stay was to become permanent. Each of the defendants was charged with and admitted prior convictions of two felonies. Defendants appeal.

FACTS

On October 30, 1965 at about 1:55 p.m., Cody Isbell, a deputy sheriff of San Diego County, on duty in a patrol car, heard over his radio a broadcast which he identified as coming from the main business office of the Sheriff's Department of San Diego County that a motor vehicle either of the style known as an El Camino or of that known as a Ranchero, cream or light brown in color, with California license D 73011, containing a male Mexican adult and a non-Mexican white male adult, contained marijuana hidden in the bed of the truck and had left Calexico for an unknown destination.

Isbell drove his car to Highway 80 which he entered and on which he drove easterly in the direction of El Centro and Calexico, El Centro being about 45 minutes driving time from the vicinity where he came onto Highway 80. Shortly, he observed a dark brown El Camino 1960 model pick-up pass him as it travelled in the direction away from El Centro and Calexico. Isbell turned and followed the other vehicle; he observed that there were two occupants who met the descriptions he had heard over the radio and that the license number of the vehicle was the same.

Isbell radioed the sheriff's business office to say that the wanted vehicle was in front of him, and that he intended to pull it over at some point ahead. He brought the El Camino to a stop with his own car stopped immediately behind and alighted, carrying a shot-gun. Sanders, the driver of the El Camino, got out, asked what it was all about, and was told that Isbell would inform Sanders as soon as additional help should arrive. Isbell directed that Rodriguez also alight from the El Camino and that he and Sanders place their hands on the roof of the car until other officers should arrive, which was done.

In about three minutes, two Highway Patrol officers came on the scene. Sanders and Rodriguez were then handcuffed and their persons searched as well as the driver's compartment of the El Camino.

With the use of a socket wrench found in the El Camino and two other wrenches, the three officers removed the bolts that held the floor of the truck bed to the chassis, of which there were 20 to 30. All of them appeared to have been removed previously, the paint from around the bolts having been peeled off. In a recess under the floor of the truck, well forward, four brown packages were found. The coverings of the packages permitted Isbell to see and to smell a part of the contents, which, in his opinion, was marijuana.

Deputy Sheriff Narron of the narcotics detail came to the scene. He examined the packages and was of the opinion they contained marijuana. He gave the defendants advice of their constitutional rights required to be given by People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

In response to questions by Narron at that time, Sanders said he had been coming from Calexico, that he had not known Rodriguez before, that he had never before seen the four packages that came from his vehicle, that he had never known anything about narcotics, that he lived in Santa Maria, and that he didn't wish to talk any longer to Narron and wanted to see an attorney.

In response to questions by Narron at that time, Rodriguez said he had been coming from the Valley; that he had not known Sanders before; that he had been hitch-hiking and Sanders had stopped and given him a ride; that he had been arrested previously on a narcotics charge; and that he did not wish to talk further without an attorney.

After qualifying as an expert in knowledge of the traffic in marijuana, Narron gave testimony from which it might be inferred that four kilos, the quantity of marijuana contained in the four packages, was a commercial quantity.

Upon analysis, the contents of the four packages proved to be marijuana, as did certain debris from Sanders' jacket found in the car, from the pockets of the clothing he wore, and from pockets of the clothing worn by Rodriguez.

The radio message heard by Deputy Sheriff Isbell had not named the source of the information that it contained.

Paul V. Martin, an official of the Customs Agency Service of the U.S. Customs Bureau, testified, outside the presence of the jury, that on October 30 he was given certain information by an informant concerning a smuggling operation from a foreign country.

A few days prior to October 30, Martin had information from the informer that two persons would be coming down from the north to purchase marijuana in Mexico about October 30; Martin told the informer how he could be reached by telephone on that date; on October 30, shortly after 1:00 p.m., the informer in person told Martin that there was a quantity of marijuana being smuggled in an El Camino or Ranchero vehicle, that the vehicle was light cream or brown in color, with California commercial license plate D 73011.

The information included a description indicating that one of the suspects was a male American adult, and the other a male Mexican adult; did not include a statement as to the quantity of the purchase; and did include a statement that the marijuana was supposed to be under the floor of the back of the pick-up. The informer did not say whether his information was based upon his own observation or had been obtained from another; Martin did not know if the informer had been present at or participated in the sale.

Upon receiving the information, Martin immediately searched the Calexico-El Centro area for the described vehicle, without success. He then called the Imperial County Sheriff's Department, gave the information he had received, requested that the sheriff place an all-points radio broadcast for the described vehicle, and requested that the sheriff stop and hold the vehicle.

Martin had been in touch with the informer for about a year prior to October 30, during which time the informer had supplied Martin on approximately 15 occasions with specific information about the smuggling of narcotics into the United States; the previous information from the informer had resulted in an estimated 15 arrests and convictions and on no occasion had been found to be inaccurate; Martin had acted on the basis of such information on those prior occasions; arrests and searches made as the result of such information resulted in prosecutions in the United States courts, in all of which there had been convictions after trial or as the result of plea, except in the two cases then on trial.

The following questions and his answers were put to Martin:

'Q Will you reveal the identity of the informant at this time?

'A No, sir.

'Q And why won't you reveal the identify of the informant?

'A I have been instructed by the Customs Agency Service as a matter of policy that that department will not reveal confidential informants in the courtroom.

'Q And have you been told by the Customs Agency Service what you are to do if you are ordered by a Court to reveal the identity of this informant?

'A I am to respectfully indicate the reasons therefor, and decline to answer the name of the informant.

'Q And what happens if the Court tells you they are going to hold you in contempt of court?

'A I will be held in contempt, I guess.'

Sanders testified he left Santa Maria about 6:00 p.m. of October 30 and drove to Mexicali where he had not previously been and where he arrived about 11:00 or 11:30 p.m. He registered at a hotel after locking his car, which was left alongside the hotel on a street just off the main street; he then left the hotel to look around. Outside the hotel a man accosted him asking if Sanders would carry a package across the border for him; Sanders said 'No'; the man was persistent and suggested there would be compensation; Sanders had a hard time getting rid of the man, who was seen again in the company of two other men when Sanders returned to the hotel some three hours later. Next morning Sanders drove to Calexico about 12:25 p.m. and, seeing Rodriguez, whom he had not known before, asked the road to San Diego. In consideration for giving the directions, Rodriguez asked for and was given a lift. Sanders said he did not know how the packages got into his vehicle; that he had not had any connection with or used marijuana since 1959 when he had been convicted of a narcotics offense for which he served 18 months. He had not removed or loosened the bed of the truck on October 29 or 30 nor seen it removed or loosened; nor had he removed it since about two months before.

Rodriguez testified he had gone by bus to Calexico from Lompoc on October 28 to visit his father who lived in Mexicali; Rodriguez put up in a hotel in Calexico and sent a message to his family in Mexicali; they came to see him on October 29 and left him about 5:00 p.m.; they came...