People v. Sauceda

• Decision Date: 10 January 1962
• Docket Number: Cr. 3899
• Citation: People v. Sauceda, 18 Cal.Rptr. 452, 199 Cal.App.2d 47 (Cal. App. 1962)
• Court: California Court of Appeals
• Parties: PEOPLE, Plaintiff and Respondent, v. Freddie SAUCEDA, Defendant and Appellant.

Page 452

18 Cal.Rptr. 452

199 Cal.App.2d 47

PEOPLE, Plaintiff and Respondent, v.Freddie SAUCEDA, Defendant and Appellant.

Cr. 3899.

District Court of Appeal, First District, Division 2, California.

Jan. 10, 1962.

Rehearing Denied Feb. 9, 1962.

Hearing Denied March 7, 1962.

Ruffo & Chadwick, San Jose, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Albert W. Harris, Jr., Derald E. Grandberg, Deputies Atty. Gen., for respondent.

KAUFMAN, President Justice.

Defendant appeals from a judgment rendered on a jury verdict finding him guilty of two counts of selling heroin in violation of section 11501 of the Health and Safety Code, and from the order denying his motion for a new trial.He argues: that the evidence is insufficient to sustain the verdict on both counts; that the trial court erred in denying his motion to permit the jury to view the scene of the crime; in overruling his objections to certain testimony; in the admission of certain evidence as well as its instructions to the jury; and finally, that he has been denied due process of law by the People's failure to call the informer-participant as a witness.

The record reveals the following facts: Defendant was charged with two counts of sale, one on May 19, 1960, and the second on May 20, 1960.Both sales occurred in front of the defendant's residence in San Jose, and were set up by the police with the help of an informer-participant, one Nathaniel Bryant, a parolee with a narcotic background who was assisting the authorities to avoid being returned to prison as a parole violator.

The uncontroverted evidence established that the defendant lived at 217 Dupont Street in San Jose.Defendant's home was located on the west side of the street, across from a trucking yard.Dupont Street is only one block long, and runs parallel to the Southern Pacific tracks, between Park Avenue on the north and San Carlos on the side.There were no houses on the east side of the street, only the trucking yard barren fields and tracks.The defendant's home was one of the few houses on the west side of the street.

On May 19, 1960, at about 9:00 p. m., several police officers met the informer at the parking lot of the Southern Pacific Depot, a few blocks from Dupont Street.They searched the informer and his vehicle, a Buick, and provided him with funds.One of the officers, Sergeant Willis, was secreted in the trunk of the Buick.When the informer left with Sergeant Willis concealed in the trunk, he was followed by a Plymouth containing Officer MacKenzie and Agent Lopez.Another police vehicle, a Ford, containing Agent McHugh of the California Bureau of Narcotic Enforcement and two men from the sheriff's office had already preceded them and parked in the trucking yard opposite the defendant's house.The Plymouth followed the informer's car until he turned off Park Avenue into Dupont and then radioed the Ford parked in the trucking yard that he was coming in.The Plymouth then continued to the next street and arrived at the trucking yard about two-three minutes after dropping their tail of the informer's car.

The informer's car arrived at the defendant's home about 9:12 p. m. As the defendant was not home, the informer drove away followed by the officers in the Plymouth, and then was out of sight of the officers in the Plymouth for about one minute until they picked up the tail on Park Avenue near Sunol Street.Later, they followed him to a rendezvous point and waited.Then, following the same pattern, they returned to Dupont Street with the officers in the Plymouth again following the informer's car until it turned into Dupont.The officers in the parked Ford saw the informer's vehicle arrive about 9:55 p. m. The defendant was still not at home.About 10:20 p. m., the informer drove away from the area followed by the officers in the Plymouth, apparently to buy some cigarettes, returning by 10:25 p. m. During the five minute interval between 10:20 and 10:25, the informer was out of the observation of the officers in the Plymouth.Sergeant Willis could not tell whether the informer had left the car during these five minutes.

As the defendant was still not at home, Bryant again drove away at 10:27 p. m. and was followed by the officers to the rendezvous point.They decided to look for the defendant at the home of a friend of his at Agnew and so advised the officers in the Ford.The three vehicles proceeded to Agnew together.After a fruitless search, the three vehicles returned to the vicinity of the defendant's residence on Dupont Street about 11:05 p. m. Again, the officers in the Ford preceded the informer and stationed themselves in the trucking yard to maintain their stake-out position while the officers in the Plymouth again followed the informer's Buick until it turned into Dupont Street.At 11:10 p. m., the defendant drove up in a green Ford and parked in the driveway of his home, got out of his car, walked over to the informer's car, entered it, and remained about a minute and a half.

During this time, Sergeant Willis from his position in the trunk, overheard the following conversation: the informer said: 'Hi there Frederico.What's happening?'The defendant replied: 'Nothing much.'When the informer said: 'I need two caps', the defendant replied: 'Okey.Have you seen Jack?'Bryant replied: 'I saw him this morning and he had some stuff.'Then, after a portion of the conversation which Sergeant Willis could not hear, the informer said: 'Were you going to bed now?I've been here three times today.There's a guy waiting for me at my pad.He wants to pick up some stuff; and as soon as I get some money, I'll be back in fifteen minutes.'The defendant's reply was also inaudible to Sergeant Willis.The defendant left the Buick and went into his home.

As soon as the defendant entered his home, Bryant immediately drove away from the area accompanied by the police vehicles.They returned to the Southern Pacific Depot parking lot, where Sergeant Willis was let out of the trunk and the informer handed two capsules of heroin to Agent McHugh.The time was then about 11:15 p. m.

On the following evening, May 20, a substantially similar procedure was followed.All the same parties and the same vehicles met at the Spartan Stadium at the corner of Tenth and Alma Streets.The informer and his vehicle were again searched and he was supplied with two $5 bills; Sergeant Willis was concealed in the trunk of the informer's Buick.The officers in the Plymouth followed the informer's Buick until he turned off Park Avenue into Dupont, and radioed the Ford parked in the trucking yard across the street from the defendant's home that the informer was coming in.

The officers in the Plymouth arrived in the trucking yard about three minutes after they had dropped the tail on the informer's car.During the wait which ensued, the informer's automobile was approached by two men who had a conversation with him; there was no indication that these two persons entered the informer's car.Sergeant Willis testified that in one of the conversations he overheard, the informer unsuccessfully inquired about the defendant's whereabouts.The defendant again was not at home.After waiting fruitlessly until about 5:45 p. m., the informer drove away from the Dupont Street area.The officers in both cars assumed the informer was returning to the rendezvous point at the Spartan Stadium, waited for him there.The informer thus was out of sight of the officers in both police vehicles for a period of about five to ten minutes.When the informer failed to show up, the officers in the Plymouth returned to the vicinity of the defendant's residence and noticed that the informer's vehicle was back in position.Thus, about 6:20, they resumed their lookout vantage point in the trucking yard across the street as the officers in the Ford had left the area.

At 69:29 p. m., the defendant came out of the front door of his home and again entered the passenger side of the informer's automobile.Sergeant Willis overheard the following conversation: the informer said: 'Hello there Freddie.Do you know how long I've been parked out here waiting for you?About three hours.Are you working today?'The defendant replied: 'Yes.How many?'The informer replied: 'Two.Here's some candy that I ate part of.Take the rest to your children.'The defendant then got out of the Buick and returned to his house.Immediately thereafter, the informer drove to the intersection of Montgomery and Park Avenue where the officers in the Plymouth picked him up and then proceeded to a driveway adjacent to a church.Sergeant Willis was let out of the trunk and the informer turned over two capsules of heroin to Officer MacKenzie.This occurred about 6:33 p. m., just two minutes after the defendant had left the informer's car.

The defendant was arrested on June 9, 1960.Shortly after his arrest, his home was searched pursuant to a warrant.The search revealed some small gelatin capsules in a box in an old Ford parked in the rear of the residence, and in a dresser next to the defendant's bed in his bedroom.The capsules were of the type commonly used to package heroin for sale in the area, and were the same size as the capsules the informer had turned over to the police on May 19 and May 20.When first confronted with the capsules, the defendant stated they were his wife's but after her denial of ownership, he admitted that they were his.

Shortly after his arrest, the defendant was examined by a doctor who found 37 needle marks in his right arm ranging in age from three to thirty days.The defendant's reaction to the Nalline test was negative but showed evidence of use of heroin over a period of time prior to the examination, and he admitted to the doctor that he had used heroin occasionally.He told the doctor his last 'fix' had...