People v. Villanueva

• Decision Date: 19 September 1963
• Docket Number: Cr. 8716
• Citation: 220 Cal.App.2d 443,33 Cal.Rptr. 811
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Augustine Lavander VILLANUEVA and Grace Cabral, Defendants and Appellants.

Page 811

33 Cal.Rptr. 811

220 Cal.App.2d 443

The PEOPLE of the State of California, Plaintiff and Respondent, v. Augustine Lavander VILLANUEVA and Grace Cabral, Defendants and Appellants.

Cr. 8716.

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

Sept. 19, 1963.

Rehearing Denied Oct. 2, 1963.

Hearing Denied Nov. 13, 1963.

Dahlstrum & Walton, Los Angeles for appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., H. Warren Siegel, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant were convicted of the unlawful possession of heroin for sale in violation of section 11500.5, Health and Safety Code. The court found that Villanueva had suffered a prior felony conviction for robbery. He was sentenced to the state prison. Miss Cabral was granted probation for six years, the first year to be spent in the county jail. Villanueva has appealed from the judgment, sentence and denial of his motion for a new trial. Miss Cabral has appealed from the judgment (order granting probation) and the order denying her motion for a new trial.

During February 1962, Mrs. Marguerite Taylor, manager of an apartment house at 1615 North Eastern Avenue, Los Angeles, rented one of the apartments--No. 1617 3/4--to defendants Cabral and Villanueva. Each paid a part of the rental and moved in that same day. Defendants gave the name of Mr. and Mrs. Robert Colon and it was by this name that they were known to Mrs. Taylor.

Within a short time after moving in, Mrs. Taylor, who was home caring for a sick husband, noticed a large amount of traffic in and out of the Colon apartment. She also noticed that all the windows and doors of the apartment had been covered with 'Bon Ami' and foil so that one could not see into the apartment. During this occupancy Villanueva was seen entering and leaving the apartment at a variety of hours. On one occasion when Mrs. Taylor entered the rented premises, Villanueva was showering and dressing. When later arrested, keys to the apartment were found on Villanueva's person. He admitted that he had clothing belonging to him in the apartment.

On March 13, 1962 acting on information from a reliable informant that a person called 'Gus' was committing a felony in one of Mrs. Taylor's apartments, Sergeants Fesler and Dorrell went to investigate the Eastern Avenue address. In a conversation with Mrs. Taylor the officers determined that Gus and the person known to her as Robert Colon were the same person. The officers, stationing themselves in Mrs. Taylor's apartment, observed the activities at the Cabral-Villanueva apartment for approximately 45 minutes; than Sergeant Fesler drove Sergeant Dorrell to the Hall of Justice for the purpose of obtaining a warrant to search the premises and persons at 1617 3/4 North Eastern Avenue. Such warrant was obtained.

Officer Fesler returned to the Taylor apartment where he kept watch on the Cabral-Villanueva apartment throughout the afternoon of March 13. In the forenoon, a red Mercury was seen in the alley behind the apartment. It was occupied by Villanueva and Frank Chacon. During this period a salesman knocked at the door of the Cabral-Villanueva apartment but it was not opened--only a voice called from the inside. At 5:00 p. m. that afternoon the red Mercury with Villaneuva and Chacon in it was again seen entering the alley behind the apartment. At this point, Fesler and Dorrell, with the permission of Mrs. Taylor, entered the basement of the apartment house and made their way to a door which opens into that area from defendants' apartment.

Because of the earlier reluctance of the occupant to open the door to a salesman and because he believed a felony was being committed, Sergeant Fesler concluded that if he made known the purpose of his entrance and search, admittance would be refused and possible incriminating evidence destroyed. For these reasons the officers kicked open the door of defendants' apartment, rushed in, and during the ensuing search found 30 grams of 90% pure heroin on the lid of the toilet tank which was placed crosswise on the toilet in the bathroom.

Miss Cabral was arrested in the apartment. Villanueva and Chacon were arrested outside by two other officers. They were taken into the apartment where large quantities of milk sugar, used for cutting heroin, had been found. Villanueva asked whether any narcotics had been found. He was shown the material taken from the bathroom and was asked what he thought it was. He replied that he thought it was heroin.

Chacon, Cabral and Villanueva were then removed to the Police Building for interrogation. On the person of Chacon was found a hand-drawn map of the Mexican border with certain locations on the Mexico side depicted on it. Chacon stated that the map was Villanueva's. He stated that he had spent the previous night in the apartment with Miss Cabral and Villanueva. Although Villanueva admitted having clothes in the apartment, he later denied it and claimed that he did not live with Miss Cabral but did frequently 'shack up with her.'

Villanueva testified that he loaned Miss Cabral $10 toward the rent because she did not have the full amount; that he lived at 1500 North Miller Avenue; had never lived at the Eastern Avenue address; was never known as Robert Colon; and he did not have any knowledge of what the substance was which was found in the bathroom of the apartment. Chacon testified that the narcotics found in the bathroom were his; that he had lived at the apartment for two weeks prior to this incident; that he had given Villanueva the key to the apartment; that his previous denial of knowledge of the narcotics was untrue and that he made it because he was scared. Miss Cabral did not testify.

In seeking reversal, both defendants contend that all the evidence of possession of heroin for sale was obtained as a result of a forcible entry in execution of the warrant and was thus the product of an illegal search and seizure by virtue of the 4th Amendment as incorporated in the 14th, and was therefore inadmissible in evidence. Defendant Villanueva makes the further contention that the People failed to prove an essential element of the crime charged, namely, that he knew the heroin was in the apartment.

Defendants do not contend that the search warrant was illegal or stale. They argue only that its execution, contrary to the provisions of section 1531 of the Penal Code, vitiated the warrant's legality and made the arrest of defendants and the search of the premises jointly rented by them, illegal. Section 1531 reads: 'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.' Although this section was enacted in 1872 it has never been interpreted by a reviewing court. However, section 844 of the Penal Code, which is identical in principle with section 1531, has been interpreted in a number of cases. Section 844 reads: '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.'

In People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, the Supreme Court had occasion to interpret section 844. In this case officers had kicked down a door in order to quickly arrest one who they believed was violating the law relative to possession of narcotics. Maddox claimed that his arrest was illegal because the officers did not comply with section 844. The court held that under the circumstances the failure to comply with section 844 did not make the entry or search unreasonable. In the course of the opinion, the court made these observations (46 Cal.2d p. 306, 294 P.2d p. 9) which are apposite in the instant case: 'Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844. Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as 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. [Citations.] Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.' The court further pointed out (46 Cal.2d pp. 306-307, 294 P.2d p. 9) that if the officer in good faith believes 'that compliance with section 844 is excused, his failure to comply with the formal requirements of that section does not justify the exclusion of the evidence he obtains.'

Here the officers had a warrant giving them the right to search the premises at...