People v. Walker

• Decision Date: 19 April 1967
• Docket Number: Cr. 12567
• Citation: 250 Cal.App.2d 214,58 Cal.Rptr. 495
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred Charles WALKER, Defendant and Appellant.

Page 495

58 Cal.Rptr. 495

250 Cal.App.2d 214

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred Charles WALKER, Defendant and Appellant.

Cr. 12567.

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

April 19, 1967.

Hearing Denied June 14, 1967.

Donald M. Rosenstock, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard Tanzer, Deputy Atty. Gen., for respondent.

FOURT, Associate Justice.

This is a purported appeal by defendant from 'the conviction and sentence' in a case involving the possession for sale of a dangerous drug, amphetamine sulphate. We shall consider the matter as an appeal from the order granting probation.

In an information filed in Los Angeles County on January 3, 1966, defendant was charged with possessing for sale on December 2, 1965, a dangerous drug in violation of section 11911, Health and Safety Code. Defendant pleaded not guilty and pursuant to stipulation the cause was submitted upon the testimony contained in the transcript of the proceedings had at the preliminary hearing and the exhibits received in evidence at the preliminary hearing subject to the court's rulings and the right to offer additional evidence. Defendant was found guilty as charged, proceedings were suspended and probation was granted for five years, a part of the terms being that defendant spend the first 360 days in the county jail. A motion for a stay of execution was denied. The notice of appeal was timely filed.

On December 1, 1965, Officer Penn Weldon submitted an affidavit in support of and a petition for a search warrant to the magistrate in the Municipal Court of El Monte Judicial District in Los Angeles County. ¹

On December 2, 1965, at about 6:00 p.m. Officer Weldon with Officer Guenther, pursuant to the search warrant, conducted a search of 9829 Cortada, El Monte, and in a closet of a bedroom Weldon found a box containing seven bags, each bag contained about 1000 white double-scored tablets which were found to be amphetamine sulphate. In a closet of the same bedroom, Weldon found a shoe box which contained about 4,000 white tablets which were found to be amphetamine sulphate and further found two large brown bottles containing at least 50 amphetamine sulphate tablets, a white envelope containing amphetamine sulphate and a brown bag containing four plastic vials, each of which contained amphetamine sulphate. Guenther asked defendant if he had a prescription for the pills and defendant replied in the negative and he was then placed under arrest. Guenther then advised defendant that he had a right to an attorney at all proceedings, that he need not say anything, that he had a right to remain silent and that anything he said might be used against him. Defendant responded by saying, 'I understand that.' Defendant was then asked if there were any more pills in the house and defendant replied, 'Yes, right there.' and pointed to a box. He was also asked why the pills were rolled and he replied that he had been sick at home with nothing to do and that he had rolled the pills so he could sell them by the roll. Inquiry was made as to whether there were more pills in the house and defendant stated that has far as he knew that was all of them.

At about 7:30 p.m. of the same day, at an interrogation room, defendant was again advised of his rights, that anything he said could be used against him, that he could remain silent and that he could have an attorney at all proceedings. Weldon then inquired of defendant where he had obtained the pills and defendant replied, 'No. I don't want to tell you until I have talked to my attorney.' He then stated, in response to questions, that he had the pills for about three weeks, and that the pills found in the box were rolled by him to sell to truck drivers. Twice defendant stated that before he answered a particular question he would want to see an attorney. Defendant was given an opportunity to explain that the pills were not in his possession before the arrest was made.

Appellant now asserts that the search warrant was improperly issued for the reasons that the facts set forth in the affidavit were insufficient to support a finding of probable cause to issue the warrant, that it was improper to issue a nighttime warrant, that the warrant did not describe the property to be seized with sufficient particularity. Further, appellant asserts that it was error to admit into evidence his statements made to the police and that he did not knowingly waive his constitutional rights.

It is appropriately stated in Galena v. Municipal Court, 237 Cal.App.2d 581, 586--587, 47 Cal.Rptr. 88, 91--92:

'Recently in People v. Govea (1965) (235 Cal.App.2d 285, 296--297) 45 Cal.Rptr. 253, 260, we summarized the basic rules governing the issuance of search warrants as follows: 'In determining the sufficiency of an affidavit for the issuance of a search warrant, the standard or test of probable cause is approximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate or an indictment by a grand jury (citations), namely, 'such a state of facts as would lead a man of ordinary caution of prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.' (Citations.) Facts stated in the affidavit are relevant on the issue of probable cause, irrespective of whether they are stated positively or on information and belief. (Citations.) The supporting evidence is not limited to that which would be admissible at the trial on the issue of guilt. (Citations.) * * * Generally speaking, in determining whether there is probable cause, each case must be decided on its own facts and circumstances. (Citations.)'

'It is settled law that the requisite probable cause 'may be based on information furnished by an informant if the supporting affidavit also recites facts indicating that reliance on the information is reasonable (Citations.)' (Citations.) In other words, the magistrate's finding of probable cause may rest upon the hearsay statement of the informant 'so long as a substantial basis for crediting the hearsay is presented.' (Citations.) Nevertheless although the affidavit may be based on hearsay, the magistrate must be informed of some of the underlying circumstances from which the officer-affiant concluded that the informant was credible or his information reliable. (Citation.) In short, probable cause for the issuance of a search warrant may be based on hearsay statement of an informant provided he is a reliable informant. (Citations.)

'In Willson, supra (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36), the Supreme Court was called upon to determine whether information obtained by the police from an unidentified informant was sufficient in the light of other evidence to establish reasonable cause for making an arrest without a warrant. Relying upon its earlier opinion in Boyles, supra (People v. Boyles, 45 Cal.2d 652, 290 P.2d 535), the court stated that 'evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable. (Citation.) In some cases the identity of, or past experience with, the informer may provide such evidence (citation), (fn. omitted) and in others it may be supplied by similar...