People v. Villareal

• Court: California Court of Appeals
• Writing for the Court: KERRIGAN; TAMURA
• Citation: People v. Villareal, 262 Cal.App.2d 438, 68 Cal.Rptr. 610 (Cal. App. 1968)
• Decision Date: 23 May 1968
• Docket Number: Cr. 3130
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Orona VILLAREAL, Defendant and Appellant.

Page 610

68 Cal.Rptr. 610

262 Cal.App.2d 438

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Orona VILLAREAL, Defendant and Appellant.

Cr. 3130.

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

May 23, 1968.

Rehearing Denied June 16, 1968.

Hearing Denied July 17, 1968.

[262 Cal.App.2d 440] Thomas J. Keenan, Los Angeles, under appointment by Court of Appeal, for defendant and appellant.

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

OPINION

KERRIGAN, Acting Presiding Justice.

Convicted of the unlawful possession of heroin (Health & Saf. Code, § 11500) and sentenced to state prison, defendant appeals:

Garden Grove police officer Nourse had been working the narcotics detail for nearly five years. State Parole Officer Ryan informed Nourse that George Sianez, a parolee residing in Garden Grove, was armed, dealing in narcotics, and wanted for violation of parole. Ryan furnished Nourse with the parolee's address, gave him the parolee's physical description, and showed him a 'mug shot' of the parolee.

On December 14, 1966, seven plainclothes law enforcement officers, including Officers Nourse and Ryan, arrived at the parolee's residence between 8:00--8:30 p.m. in the evening. It appeared that no one was home so the officers quietly left and returned at 10:00 p.m. the same night. The officers parked some distance south of the residence and approached on foot. As they proceeded towards the parolee's home, Officer Nourse noted an obscure figure peering through the curtains of the home, and suddenly the person disappeared. Nourse alerted his fellow-agents to the effect that they had been observed and then ran to the rear of the residence while the other officers covered the front. In the rear yard, Nourse saw defendant walking from the house. Initially, Nourse assumed that the defendant might be one of his fellow-officers and 'hollered' to him, but defendant kept walking. When defendant was a distance of 20 feet away, the officer shined his flashlight on him. The defendant resembled the description of Sianez, which led the officer to believe that he possibly was the parolee. He yelled, 'Stop, police officer,' and shined his flashlight on his badge which he was holding in his left hand. When the officer asked the defendant to identify himself, the latter initially told him to 'go to hell,' but then stopped as the officer approached him.

The officer ordered defendant to place his hands against the side of the house, and the latter complied. As the officer started to search him for weapons, defendant hit the officer in the stomach and started to run. The officer pursued him, and in the ensuing struggle, the officer was successful in throwing the defendant to the ground, but still could not control him. Two other officers joined in assisting Officer Nourse in subduing the defendant, and during the course of the struggle, Nourse told defendant that he was under arrest and to quit resisting. During the course of the struggle, Nourse hit defendant on the head with his service gun, and after applying further force, the officers were successful in overcoming the defendant. Defendant sustained a laceration from the blow on the head, a black eye, and a bruise on the left side of his face. One of the officers had his glasses broken and incurred facial bruises.

Defendant was handcuffed, informed that he was under arrest for assaulting a police officer and for resisting arrest, and was taken into the parolee's home and searched for weapons. None were discovered. He was placed in a chair. The officers then unsuccessfully conducted a 30-minute search of the entire residence for Sianez. Upon concluding their search of the home, the defendant was subjected to a personal search, which culminated in the finding of $654 in bills, one benzedrine-amphetamine pill, and a powder equivalent to 20 'caps' of adulterated heroin.

Defendant testified in his own behalf to the following effect: he was employed as a dry cleaner; he had suffered conviction of a felony when he was 18 and was released from prison in November 1962 at the age of 25 years; while imprisoned, he was charged with the offense of possession of a deadly weapon, to wit, a knife; on the evening of his arrest, he went riding with a friend named 'Joe' at 8:30 p.m.; he knew Sianez and had grown up with him but did not know that the parolee lived at the place where the arrest occurred; when he and his companion arrived at the Sianez home, Joe got out of the car and he remained in it for 10--15 minutes; when Joe failed to return, he got out of the car to look for him; as he entered the rear yard, he saw some people; he called out, 'Who's there?' and some lights were shined on him; a voice said, 'Hold it'; three people ran towards him and grabbed him; he did not know that the men were officers as none were in uniform; no one shined a light on a police badge; when he resisted, a struggle ensued and he was hit by a hard object; after being apprehended, Officer Nourse searched him inside the house and found two 'bennies' in his left front pocket; Joe had given him the pills; the pill is utilized to enable a person to keep awake; he knew he could not lawfully possess a 'bennie' without a prescription, and that possession of the pill constituted a violation of the narcotics laws; it was not until Officer Nourse searched him a second time that the heroin was discovered; the piece of paper containing the heroin was not on his person before the search by Nourse; in his opinion, Officer Nourse 'planted' the heroin on him; the $650 constituted his savings which had been held for him by a secretary at his place of employment; he planned to use the money to buy a car.

The payroll clerk at the defendant's place of employment verified that defendant had given her money from his earnings and that she had turned over $600 of his savings to him shortly before his arrest.

During the prosecution's case-in-chief, and in the course of the cross-examination of the defendant, hearsay testimony was admitted by the trial court in the jury's presence, over defense counsel's objection, on the issue of probable cause. This hearsay related to the criminal background of Sianez, his involvement in narcotic activities, and defendant's association with Sianez. Officer Nourse's testimony relating to such issue may be summarized as follows: he had been given information by the state parole agent as to the parolee's name, address and physical description; he was further advised that the parolee was possibly dealing in narcotics; he had further been informed that the parolee was possibly armed. Other law enforcement agents participating in the investigation of Sianez reiterated the foregoing hearsay data regarding Sianez in connection with the prosecution's case-in-chief.

Defendant had given his testimony on direct examination to the effect that Officer Nourse had planted the heroin on him. The defendant was cross-examined extensively concerning his association with the parolee Sianez, in an endeavor to connect the parolee with the defendant. The effect of this line of interrogation was to bring before the jury the fact that Sianez was a parole violater dealing in narcotics, which fact was solely the product of hearsay evidence admitted on the issue of probable cause.

However, the trial court did admonish the jury at the time the hearsay evidence was elicited to the effect that the evidence was limited in that it was admitted not necessarily for the truth of what was said, but on the basis of such hearsay providing a reason for 'further action.'

Defendant maintains that his conviction was invalid for the following reasons: (1) His arrest was illegal and the heroin found on his person as the result of the search incident to such arrest was therefore inadmissible; and (2) the trial court committed prejudicial error in admitting hearsay evidence before the jury on the issue of probable cause.

In attacking the validity of the arrest, defendant first maintains that a peace officer's right to search a parolee without a showing of reasonable or probable cause (People v. Hernandez, 229 Cal.App.2d 143, 150--151, 40 Cal.Rptr. 100) does not also permit the police to detain, interrogate and search a third party who is 'in some manner' merely associated with the parolee. While conceding that the police officers, acting in conjunction with Sianez' parole officer, had a right to arrest and search Sianez as a parole violater, defendant maintains that the right to arrest and search Sianez did not vest the police with the corollary right to detain, interrogate and search him. Logically, defendant's argument assumes that the defendant's arrest was predicated on the right to arrest Sianez, but a true resolution of the issue requires a review of the evidence to determine whether there were legal grounds independent of the parolee's contemplated arrest to stop, search and arrest the defendant.

The evidence reflects that Officer Nourse had reasonable grounds for detaining and searching the defendant under the circumstances present here. He rushed to the backyard where the detention occurred for the purpose of apprehending a parole violater believed to be armed. The defendant was observed leaving the parolee's residence under cover of darkness. When the officer ordered the defendant to stop and displayed his badge in the light emanating from his flashlight, and inquired as to the defendant's identity, the latter's response was to tell the officer to go to hell. The officer was justified in searching the defendant's person for weapons. He originally believed that the defendant might be the parolee. This mistake in identity was reasonable because it was dark, and because of the lack of light the description of Sianez appeared to match the defendant. It is not unreasonable for an officer to detain an...