People v. De Santiago

Decision Date24 April 1969
Docket NumberCr. 12033
Citation71 Cal.2d 18,453 P.2d 353,76 Cal.Rptr. 809
CourtCalifornia Supreme Court
Parties, 453 P.2d 353 The PEOPLE, Plaintiff and Respondent, v. Mario DE SANTIAGO, Defendant and Appellant.

Daniel L. Dintzer, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

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

Evelle J. Younger, Dist. Atty., (Los Angeles), Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and respondent.

SULLIVAN, Justice.

In a nonjury trial defendant Mario De Santiago was acquitted of a charge of selling heroin (Health & Saf.Code, § 11501) and convicted of the possession of heroin for sale (Health & Saf.Code, § 11500.5). His motion for a new trial was denied, criminal proceedings were adjourned, and, after proceedings had pursuant to Welfare and Institutions Code section 3051 et seq., defendant was committed to the state hospital at Corona for treatment as an addict. We properly entertain, in these circumstances, defendant's appeal from the order denying his motion for a new trial. [ 1

On February 10, 1966, Deputy Sheriffs Trujillo and Penland, together with other officers, by prearrangement met one Henry Estrada, a reliable informer, in an alley near defendant's apartment. Earlier that day Estrada had told Deputy Trujillo of a conversation with defendant during which the latter stated that on February 8 he had been arrested by narcotics officers for 'marks,' that he had tricked them into releasing him by offering to help them apprehend a 'dope peddler,' but that he never contacted the officers. Estrada also told Deputy Trujillo that he had purchased heroin from defendant on two occasions. At the meeting place near the apartment, the officers searched Estrada but found neither contraband nor money on his person. They then supplied him with marked currency and watched him proceed along a walk leading to defendant's apartment. About five minutes later Estrada returned with a balloon containing white powder, later determined to be heroin, which he said he had bought from defendant after being admitted into the apartment.

The deputies thereupon contacted defendant's landlord, and advised the latter that they were conducting a narcotics investigation and were waiting for defendant to come out of the apartment so that they would not have to break in through the door. After waiting an hour for defendant to leave, Deputy Trujillo advised the landlord that the officers would have to make a forcible entry. Without knocking or otherwise demanding admittance or explaining the purpose for which admittance was desired, Deputy Trujillo kicked open the door to defendant's apartment and immediately placed defendant under arrest. [ 2 A search of defendant's person uncovered in his pants pocket four more balloons containing a similar white powder later shown to be heroin. Narcotics supplies and paraphernalia used for diluting and packaging heroin, some of which materials contained residues of heroin, were found in the apartment. Defendant's wallet, found in the pocket of a coat hanging in a closet, contained the marked currency earlier supplied to Estrada. Deputy Penland observed puncture wounds, 24 hours to two weeks old, near the inner elbows of defendant's arms.

The deputies were not armed with a search or arrest warrant at the time of their entry into the apartment. However the record clearly shows that Estrada was a reliable informant and that the information obtained from him by the deputies constituted reasonable cause to make an arrest and search without a warrant. (People v. Prewitt (1959) 52 Cal.2d 330, 337, 341 P.2d 1; Willson v. Superior Court (1956) 46 Cal.2d 291, 294--295, 294 P.2d 36; People v. Boyles (1955) 45 Cal.2d 652, 656, 290 P.2d 535.) Defendant's contention that there was no probable cause for his arrest and for the subsequent search of his person and premises must therefore fall.

He further contends, however, that the trial court committed prejudicial error in admitting in evidence the heroin and certain narcotics paraphernalia since such evidence was obtained as the result of an unlawful entry by the deputies who failed to comply with the provisions of Penal Code section 844. That section provides: 'To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.'

At the outset of our examination of this contention we are met with the fact that defendant failed to object to the admission of the subject evidence on the ground which he now advances. 3 It is the general rule, of course, that questions relating to the admissibility of evidence will not be reviewed on appeal absent a specific and timely objection at trial on the ground sought to be urged on appeal. (People v. Robinson (1965) 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Rojas (1961) 55 Cal.2d 252, 260, 10 Cal.Rptr. 465, 358 P.2d 921, 85 A.L.R.2d 252; see generally Witkin, Cal. Evidence (2d ed. 1966), § 1285, p. 1188.) 4 Defendant urges, however, that that rule should be held inapplicable to the instant case because an objection on the ground of noncompliance with section 844 would have been wholly without support in the law as it stood at the time of trial. Reference is made to the fact that People v. Gastelo (1967) 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706, upon which defendant bases his contention on appeal, was not yet decided at the time of trial, and he urges that that case represents a change in the law so significant as to excuse his failure to object at trial.

In other instances we have excused a failure to object where to require defense counsel to raise an objection 'would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal.' (People v. Kitchens (1956) 46 Cal.2d 260, 263, 294 P.2d 17, 19; see also People v. Hillery (1965) 62 Cal.2d 692, 711--712, 44 Cal.Rptr. 30, 401 P.2d 382.) In Kitchens the failure to raise a timely objection was excused because that case was tried before our decision in People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, at a time when the trial court was bound by earlier decisions to the effect that illegally obtained evidence was nevertheless admissible. It was deemed that only in trials commencing after Cahan could defense counsel have reasonably been expected to object to the receipt of such evidence, and his failure to do so was excused in Kitchens.

The crucial question confronting us in the case at bench is whether or not the rule announced in Gastelo, the content of which we examine below, represented such a substantial change in the former rule as to excuse an objection anticipating that decision. We are guided in this inquiry not by metaphysical considerations as to what the law 'was' preceding Gastelo, but by practical considerations as to what competent and knowledgeable members of the legal profession should reasonably have concluded the law to be. This is the approach undertaken by us in Kitchens, where we emphasized the reasonable expectations of counsel at the time of trial: '* * * in view of the decisions of this court prior to People v. Cahan, Supra, an objection would have been futile, and 'The law neither does nor requires idle acts.' Civ.Code § 3532.' (46 Cal.2d at p. 263, 294 P.2d at p. 19.)

We therefore undertake to determine the state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial of the instant case which took place prior to our decision in Gastelo.

In 1956 we held in the leading case of People v. Maddox (1956) 46 Cal.2d 301, 294 P.2d 6, that the requirements of section 844 are 'limited by the common law rules that compliance is not required if the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose.' (46 Cal.2d at p. 306, 294 P.2d at p. 9.) In that case police officers, having probable cause to believe that the defendant was selling narcotics, went to his residence and knocked on the door. One of the officers heard a male voice say 'Wait a minute' and also heard the sound of retreating footsteps. He kicked the door open and apprehended the defendant. On the basis of these circumstances we concluded that 'When as in this case, (the officer) has reasonable grounds to believe a felony is being committed and hears retreating footsteps, the conclusion that his peril would be increased or that the felon would escape if he demanded entrance and explained his purpose, is not unreasonable.' (46 Cal.2d at p. 306, 294 P.2d at p. 9.)

Subsequent Pre-Gastelo decisions of this court which applied the so-called 'Maddox exceptions' invariably involved specific factual elements comparable to the 'retreating footsteps' in Maddox--that is, circumstances peculiar to the entry in question by which the officers could reasonably conclude that announcement would increase their own peril or frustrate the arrest. We summarized some of these decisions in Gastelo as follows: '* * * in People v. Carrillo (1966) 64 Cal.2d 387, 50 Cal.Rptr. 185, 412 P.2d 377, entry followed a knock and observation of suspicious movements. In People v. Smith (1966) 63 Cal.2d 779, 48 Cal.Rptr. 382, 409 P.2d 222, and People v. Gilbert (1965) 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365, the officers were in fresh pursuit of gun-wielding defendants. Similarly, in People v. Hammond (1960) ...

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