People v. Zabala

• Decision Date: 24 June 1963
• Docket Number: Cr. 58
• Citation: 31 Cal.Rptr. 712,217 Cal.App.2d 550
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Munoz ZABALA, Defendant and Appellant.

Page 712

31 Cal.Rptr. 712

217 Cal.App.2d 550

The PEOPLE, Plaintiff and Respondent, v. Frank Munoz ZABALA, Defendant and Appellant.

Cr. 58.

District Court of Appeal, Fifth District, California.

June 24, 1963.

Rehearing Denied July 22, 1963.

Hearing Denied Aug. 20, 1963.

Russell B. Henry, Tulare, under appointment by District Court of Appeals, for appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edward A. Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

The defendant was convicted of the crime of possession of marijuana (Health & Saf.Code, § 11530) and was sentenced to imprisonment in state's prison. He does not claim that the evidence, if properly admitted, is insufficient to warrant the verdict; his contentions on appeal are that he was illegally arrested, that marijuana found in his clothing as a result of the illegal arrest should not have been received in evidence, that a motion made for a mistrial should have been granted, and that he was improperly denied the name of an informer.

On May 24, 1962, State Narcotic Agent Robert Mannen and Captain John Davidian, of the Dinuba Police Department, went to Surabian's Packing House in the City of Dinuba, where the defendant was employed. They had received notification from an unnamed informer, that the defendant, who had been in trouble previously, had also recently had possession of narcotics. The officers had obtained two search warrants, one of which had been used to search a former residence of the defendant in Selma, without disclosing any incriminating evidence; the other warrant was directed to a search of the defendant's room at Dinuba, but that warrant was never used. Neither warrant was offered, or received, in evidence.

In the packing house, the officers approached the foreman of the plant, a Mr. Debusky, and asked him for permission to talk with the defendant. At that time Zabala was at work approximately 35 to 40 feet away. Mr. Debusky walked over to where the appellant was standing and told him of the request; the defendant looked in the direction of Agent Mannen and Captain Davidian, who was in uniform, and immediately turned and started walking away. He soon began to walk faster, and while he did not run, he was moving rapidly in a direction away from the officers. He thrust both of his hands into his pockets; Captain Davidian ran after him and saw him take his left hand out of his pocket and make a swinging motion with his left arm as if throwing something aside. Captain Davidian did not then stop, but continued in pursuit of the appellant. A fellow workman of defendant witnessed the incident and later recovered from a stack of empty lug boxes a matchbox containing three marijuana cigarette butts; the officers then also found two complete marijuana cigarettes in the same stack of lug boxes.

While Captain Davidian pursued Mr. Zabala by one route, Officer Mannen, dodging through the busy packing shed, took a slightly different course and finally caught up with the defendant, who was then walking casually and not at the rapid pace which he had adopted before throwing the marijuana cigarette butts away. At that time the state narcotic agent arrested the defendant, although he had not seen him throw anything toward the lug boxes and was unaware that he had had possession of the marijuana cigarettes.

The officers took Mr. Zabala to the Dinuba Police Department and then to his place of residence, and with the consent of the owner of the premises, proceeded to make a search of the room, but found nothing incriminating there. The search warrant which the officers had in their possession at the time was not served or used. The defendant gave authority to the officers to procure a change of clothing for him, but there was no affirmative showing by the prosecution that he consented to a search of the clothing which he had worn at the time of his arrest and no proof that he agreed that the officers might retain such clothes or their contents as evidence. Traces of marijuana were discovered in the debris is two pockets of his trousers and in his shirt pocket, and evidence of this fact was introduced at the trial over the objections of defendant's counsel.

As already noted, the officers had received information from a source which they testified they considered reliable that at least pointed the finger of suspicion at the defendant; what the informer told them is not in evidence. The officers were familiar with his past record. Agent Mannen was fully aware that the appellant had previously been engaged in violations of the law relating to narcotics, he having been arrested and prosecuted for possession of heroin in 1960; in 1962 Agent Mannen had arrested appellant, and at that time marijuana seeds were found in his automobile.

The arrest having been made without a warrant, the burden rested on the People to show proper justification. (People v. Haven, 59 Cal.2d 738, 742, 31 Cal.Rptr. 47, 381 P.2d 927; Tompkins v. Superior Court, 59 A.C. 75, 77, 27 Cal.Rptr. 889; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) Here, the respondent sought to justify the arrest on the following grounds: (1) the officers knew of the former record and reputation of Zabala; (2) they had received information concerning defendant's recent illegal activities from an informer they believed to be reliable; (3) the defendant acted furtively and suspiciously by walking away from them at an increasingly rapid pace.

That the state narcotic agent could properly take into account the past conduct, character and reputation of the appellant is clear from the authorities. As is said in People v. Wickliff, 144 Cal.App.2d 207, 212-213, 300 P.2d 749, 753:

'In determining whether there is reasonable cause to believe a person guilty of a felony, a peace officer may take into account the past conduct, character and reputation of the person suspected, and reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt. People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535, and cases therein cited. There is no formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances.'

(See also People v. Amado, 167 Cal.App.2d 345, 334 P.2d 254; People v. Gorg, 157 Cal.App.2d 515, 520, 321 P.2d 143; People v. Hollins, 173 Cal.App.2d 88, 92-93, 343 P.2d 174.)

But a mere bad record, standing alone, does not justify an arrest (People v. Sanders, 46 Cal.2d 247, 250-251, 294 P.2d 10); if it did, rehabilitation of an exconvict would be seriously, often fatally, interfered with.

The officers did not disclose in their testimony what the informer had told them. As is...