People v. De La Sierra

• Citation: 91 Cal.Rptr. 674,13 Cal.App.3d 528
• Decision Date: 16 December 1970
• Docket Number: Cr. 17502
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fausto Marmieto De La SIERRA, Defendant and Appellant.

Page 674

91 Cal.Rptr. 674

13 Cal.App.3d 528

The PEOPLE, Plaintiff and Respondent, v. Fausto Marmieto De La SIERRA, Defendant and Appellant.

Cr. 17502.

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

Dec. 16, 1970.

Helen E. Simmons, Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

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

JEFFERSON, Acting Presiding Justice.

Defendant was charged by information with possession of heroin, in violation of section 11500 of the Health and Safety Code.

Defendant waived his right to trial by jury and, pursuant to stipulation, the matter was submitted to the court on the proceedings had at the preliminary hearing. Both sides offered additional evidence at the time of trial. The court found defendant guilty as charged, but made no finding on the prior felony conviction alleged in the information. Motions for new trial and probation were denied and defendant was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

Officer Edward J. Sanchez of the Narcotics Division of the Los Angeles Police Department received information from a known and reliable informer that Yas Shimasu, who lived in an apartment at 951 East Edgeware Road, was dealing in heroin; that John Sakamoto and Louis Almada resided at 726 Tularosa Drive; that Louis Yamashiro resided at 722 Tularosa Drive; and that the three of them were also connected with narcotic transactions.

On September 2, 1968, Officer Sanchez 'staked out' on the 951 Edgeware Road address; on two occasions he followed Yamashiro from this address to 726 Tularosa Drive, where Yamashiro held a meeting with Sakamoto and Almada. The officer again staked out on the two addresses from September 2, 1968 to September 11, 1968. During this nine-day surveillance, the officer observed numerous persons, known to him to be narcotic addicts, visit these two residences. They would enter and remain for a short time and then take their departure. The officer also observed defendant at these two residences and upon several occasions defendant would answer the door and admit the known narcotic addicts to the residences.

Officer Sanchez ran a 'make' through the official records of the Los Angeles Police Department and learned that both Sakamoto and Almada were wanted for violation of parole.

Agents Allen, Hirsh and Officer Sanchez and three other officers went to the location 726 Tularosa Drive at approximately 1:00 p.m. on September 11, 1968. Officer Sanchez deployed the officers around the house, covering all exits and sent two officers to the rear door of the residence. He, himself, went to the front door, knocked and called out 'Police officers.' He then observed Mr. Sakamoto on the south side of the house running toward Maltman Avenue, but Sakamoto was apprehended by two of the fellow officers and brought back to the residence and placed under arrest for suspicion of possession of narcotics. Officer Sanchez formed the opinion the other occupants in the house would also try to escape and destroy the evidence he suspected of being inside the house when he arrived.

The front door of the residence was already open and Officer Sanchez opened the screen door, which was not locked, and entered the house. The other officers also entered and a search of the premises was made. Defendant was observed in the rear portion of the house, attempting to leave by the rear door. He was wearing short pants but did not have on a shirt. Defendant and the rest of the occupants were placed under arrest for possession of narcotics. The search of the house revealed three multi-colored balloons wrapped in a wax paper bag inside a candle holder which was located in the upstairs portion of the house. In each balloon there was a quantity of whitish powder resembling heroin and later identified as heroin. A hypodermic needle, an eye dropper and a burnt spoon were found in a drawer in the kitchen. The search further revealed a can of Merck milk sugar, five empty rubber balloons and a bread wrapper containing a brownish substance on the top of a bar which was situated in the living room. The officer also discovered an alligator wallet containing a temporary driver's license dated August 1967, in defendant's name. The wallet was found on the top of the bar in the living room near the other items mentioned. This bar in the living room was the place where the officers seized a bread wrapper containing heroin.

Mr. Sakamoto, who was also arrested, told Officer Sanchez that all of the items and narcotics found in the house were his.

Defendant was advised of his constitutional rights and told Officer Sanchez he was temporarily living at the address where the narcotics were discovered. In a later conversation between defendant and Officer Sanchez at the police administration building defendant stated he had been living at 726 Tularosa Drive a couple of weeks because he was 'down and out.'

Defendant testified in his own behalf. He actually resided at 4005 Melrose, apartment 307; he rented that apartment on a month-to-month basis and shared it with his girl friend. He had an argument with his girl friend and he moved out and went to the address where he was arrested only to spend the night. He brought with him some clothing and a suitcase containing receipts and music and his bass fiddle, which was in the front room when the officers arrested him. The rest of the clothing was still at the apartment that he shared with his girl friend. He slept overnight on a couch in the front room at the address where he was arrested. He did not see anything that looked like heroin at the house. He did not see or hear anyone break or enter the house. He was at the rear portion of the house at the refrigerator getting a cold drink when he heard Sakamoto say the police were there. He had a scratch on his arm caused by a fight with his girl friend. He had no other marks on his arm.

Defendant contends the evidence taken from the house was illegally obtained and he argues that the raid and search by the officers did not comply with Penal Code section 844.

Officer Sanchez testified he...