People v. Spinosa

• Decision Date: 30 January 1953
• Docket Number: Cr. 2834
• Citation: 252 P.2d 409,115 Cal.App.2d 659
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SPINOSA.

Page 409

252 P.2d 409

115 Cal.App.2d 659

PEOPLE v. SPINOSA.

Cr. 2834.

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

Jan. 30, 1953.

Rehearing Denied Feb. 14, 1953.

Hearing Denied Feb. 26, 1953.

Nathan C. Coghlan, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Charles E. McClung, Deputy Atty. Gen., for respondent.

PETERS, Presiding Judge.

Joseph E. Spinosa appeals from the order denying his motion for a new trial and from the judgment finding him guilty of illegal possession of heroin.

Appellant pleaded guilty to the charge of four prior state and federal narcotic convictions. On January 4, 1951, the date of the offense here involved, he was on federal parole. He testified that on January 3, 1951, he had met on the street one Severson, an old friend whom he had not seen for ten years, and that Severson had invited him to visit him at the hotel in San Francisco where he was living. The next day, being in the vicinity of the hotel, he called upon Severson, testifying that, although he knew that Severson in the past had 'fooled around' with narcotics, the purpose of this visit was purely social. When appellant arrived at Severson's room one Morgan, who lived with Severson, was also there. Morgan immediately left.

Morgan and Severson had been under surveillance by two federal narcotic officers, Mulgannon and Traynor by name. When Morgan left the hotel he was taken into custody by these two officers, and the three men then returned to the room occupied by Severson. Morgan refused to seek admittance, so one of the officers knocked on the door, simulated Morgan's voice, and asked to be admitted. The two officers did not then know that appellant was in the room.

Appellant testified that this knock on the door occurred about five minutes after he had arrived. During that period he told Severson that he was out on parole and wanted to stay out of trouble. Severson told him that he, Severson, was not 'fooling around' with narcotics.

Although appellant's testimony is somewhat confusing as to what happened when the agents knocked on the door, appellant finally testified that Severson jumped up, ran to the bathroom door, opened it, and then insisted that appellant go in the bathroom because he, Severson, wanted privacy with the visitors. There is also some confused testimony by appellant about a prior visit to the bathroom during the five-minute interval when some unidentified visitor called and Severson insisted that appellant retire to the bathroom. Although the trial court twice characterized appellant as an 'evasive' witness, some of the inconsistencies appearing in his testimony can be explained by the fact that the record shows that appellant was not too bright and, on occasion, did not understand some of the long and involved questions asked him.

Mulgannon testified that when Severson opened the door he, Mulgannon, pushed the door fully open and saw a figure, later identified as appellant, rushing towards a door, which it later was discovered was the bathroom. The witness stated that he and appellant pushed back and forth on the bathroom door until Traynor came and lunged against it pushing it inward. A wrestling struggle took place between Traynor and appellant, and finally appellant was forced out into the bedroom and required to lie face down on the floor. Mulgannon, who had followed Traynor into the bathroom, testified that as he rushed into the bathroom he observed something floating in the toilet bowl. He removed a pink package that turned out to contain 9 grains of heroin. This bindle was only wet on one side when removed from the toilet. It is this bindle that constitutes the basis of the charge here involved.

The appellant's testimony depicts the facts quite differently. He testified that he was in the bathroom with the door shut a couple of minutes before the officers came in; that the two officers then dashed into the room like 'bandits,' and hit the bathroom door, knocking him down and jumping upon him. At all times he vehemently and consistently denied that he had placed the pink bindle in the toilet bowl, that it belonged to him, or that he knew it was there.

It should be here noted that these two federal agents were dressed in plain clothes and had no search warrant. They had no reason to believe that appellant was committing a crime in the room, because they did not even know that he was there. They did not identify themselves as officers when in the hallway, nor when they dashed into the room. They conceded that they did not mention that they were officers until after appellant had been dragged from the bathroom and was struggling with officer Traynor in the bedroom. Admittedly Mulgannon was armed with a gun, but Traynor was unarmed. At some stage in the proceedings he drew his gun and used it to subdue appellant.

It should also be noted that the state introduced into evidence a diagram of the bedroom and bathroom. For more unexplained reason the diagram failed to disclose that there were two doors to the bathroom, one leading to Severson's bedroom and the other, apparently, leading to an adjoining bedroom. The prosecutor, when this error was called to his attention, readily admitted the oversight, but failed to produce any evidence as to whether the second door was locked or unlocked, or where it led.

After appellant had been subdued he was searched, and nothing incriminating was found upon his person. The officers then searched the room and the other two occupants. Morgan had in his possession a white bindle containing six grains of heroin and some hypodermic equipment. On and under the bed near where Severson was sitting the two officers found two packages of marijuana cigarettes, containing a total of 171 grains of that narcotic. Severson, while at first denying ownership, finally admitted that this marijuana belonged to him.

There is much confusion in the record about the admissions of Severson when the narcotics were found. Both the agents and appellant agree that Severson stated that appellant did not live in the room, was just a visitor, had only been there a few minutes before the raid, was out on parole, and should be given a 'break.' Appellant testified that Severson also stated that he, appellant, had nothing to do with the narcotics found by the officers, and that he, Severson, had thrown the pink bindle into the toilet. The two officers contradicted this testimony, stating that upon being questioned each of the three occupants denied ownership of the pink bindle, or that he had thrown it into the toilet.

At the trial Severson, who was then imprisoned at Folsom, was called as a witness by the appellant. He refused to answer most questions asked of him, claiming his privilege against self-incrimination, but finally did answer 'no' when asked if he had dropped the pink bindle into the toilet. Thereupon, appellant attempted to impeach him, making an offer of proof that Severson had admitted, on appellant's preliminary hearing, that he had dropped the pink bindle into the toilet. The trial court, upon a showing that Severson had also testified at that hearing that he had not done so, held that appellant was not damaged by the testimony, and refused to permit the impeachment.

Appellant makes two major and many minor contentions on this appeal. In our opinion both major contentions are sound, which makes it unnecessary to consider the minor assignments of error.

The first major contention of appellant is that he was not permitted, on cross-examination of the officers, to develop the fact that the arrest was illegal, and was denied instructions proffered by him, to the effect that a person may use reasonable force to resist an unlawful arrest.

The appellant offered two instructions on this issue, both of which were refused. The first of these would have told the jury that a person subjected to an unlawful arrest may use reasonable force to free himself from the unlawful restraint. The second of these refused instructions outlined the circumstances under which a lawful arrest may be made as defined in section 836 of the Penal Code. It must be remembered that it was the theory of the appellant, supported by evidence produced on his behalf, that he was in the bathroom when the two officers, in plain clothes and without disclosing that they were officers, see Penal Code, §§ 841, 843, broke into the bathroom and attacked him. At the trial the prosecution made much of the fact that appellant resisted the officers, and on the argument to the jury contended that such resistance was equivalent to flight and, as such, an admission of guilt. But according to appellant's testimony, he did not flee at all, but was attacked in the bathroom. If his testimony were believed by the jury, then he was entitled to have the jury told that, under those circumstances, he had the lawful right to resist the attack, and that no adverse inferences could be indulged in because of such resistance.

The rule, supported by several cases, is stated as follows in 5 Cal.Jur.2d p. 186, § 30:

'While it is the duty of every citizen to submit to lawful arrest * * * reasonable resistance to an unlawful arrest may rightfully be made either by the person sought to be arrested or by third persons acting in his aid * * *.

'The authority for the rule that if an arrest is unlawful, either the person being arrested or others acting in his behalf may resist, using no more than reasonable force, is derived from the statutes providing that lawful resistance to the commission of a public offense may be made by the party about to be injured * * *. These provisions are applicable because the effect of the statute defining false imprisonment as the unlawful violation of the personal liberty of another is to make an unlawful arrest a public offense.'

On this appeal the respondent argues, as did the prosecutor at the trial, that evidence that...