People v. Valdez

Defendant was convicted, as charged in two separate informations, of violating Health & Safety Code, section 11530, illegal possession of marijuana, and section 11531, illegal sale of marijuana. He was sentenced to the state prison in each ease, the sentences to run concurrently.

In each case, trial by jury was duly waived, and by stipulation the cause was submitted to the court on the transcript of the testimony adduced at the preliminary examination, each side reserving the right to offer additional evidence, and to object to the introduction of any evidence contained in the preliminary transcripts. It was agreed that all exhibits be deemed admitted in evidence subject to the rulings of the trial court on any objections made thereto.

Appeal Number 7418

Approximately two to three weeks prior to the arrest for possession of narcotics, Officer Bridges, deputy sheriff attached

One week prior to appellant’s arrest, Bridges observed an automobile registered to a Tom Ingle, known to traffic in narcotics, parked near the house; he saw an unidentified person get out of the vehicle, remove something from his pocket and place it behind the fence of a nearby house, at this time looking over his shoulder. He proceeded down the alley and entered appellant’s house where he remained for 10 or 15 minutes. He came out of the house, picked up the unknown object, and left in the ear. On five or six occasions Bridges observed the lights in the house go out and appellant would then step outside and stand in the alley next to his front door; when the door closed the lights would go on again from inside the house. On two such occasions he walked up the alley and met another person.

At approximately 8 :10 p.m. on October 22, 1959, the deputy observed a Russell Arnegard arrive at the location in a 1956 Mercury automobile and enter the house; shortly thereafter, accompanied by appellant, he left in the automobile. They returned in about one-half hour when both men entered appellant’s home. About one-half hour later Arnegard left in his automobile. Deputies Bridges and Olson followed him and a short distance away a sheriff’s patrol car, containing Deputies Berman and White, pulled in behind the Arnegard vehicle. Arnegard was arrested and narcotics were found. He stated that he had just purchased six marijuana cigarettes for $2.00. He refused to state from whom or where he had made the purchase. Deputy Bridges asked him if he had just purchased them and Arnegard stated, “That’s right.’’

Deputy Bridges, with the three other deputies, then proceeded to 1446% West 95th Street where they saw appellant standing on the sidewalk near an alley adjacent to his home. The officers identified themselves and appellant was placed

After reading the transcript of the preliminary hearing containing the foregoing evidence, additional evidence was introduced on the question of consent. Appellant testified that at the time of his arrest, about 10:30 p. m. he was walking his dog on the street near his home; that the four deputies emerged from the police cars, armed with shotguns and told him not to move or they would shoot him; that two of the officers then ran down the alley to appellant’s house, and the other two remained with him, stating he was under arrest; he was then taken into the house, at which time one of the officers was in the front room and the other was in the bathroom. Appellant testified that “they entered my house against my will.” When asked if he gave the first two officers permission to enter the premises, he replied ‘ ‘ No, I hadn't talked to them at all.” He stated he did not give permission to anyone to enter, and denied that anyone asked for such permission.

Officer Bridges then testified that the four deputies had arrived with guns drawn, revolvers and a shotgun, and arrested Valdez; that the reason for the shotgun was “anticipating any reaction from one or both dogs owned by Mr. Valdez” about which he had prior knowledge. That he then asked appellant “if he had any narcotics in the house. He stated he did not. I asked him if I could look and he stated yes.” Some time after entry into the house, appellant asked Bridges if he had a search warrant.

Appellant contends that the evidence was obtained by means of illegal search and seizure in that there was no probable cause for the arrest; that appellant’s asking for a search warrant after entry into the house negates “any implication that a consent to search was given.”

It is not necessary for the People to show that the search and seizure were reasonable as incident to a proper arrest when the search is made with defendant’s consent. (People v. Burke, 47 Cal.2d 45 , 49 [ 301 P.2d 241 ].) “The applicable law with respect to the matter of such consent is stated in People v. Michael, 45 Cal.2d 751 , at page 753 [ 290

It is to be noted that appellant did not state that he did not freely give his consent, but, rather, that no consent was ever given. Conceivably, an inference favorable to appellant could have been drawn from the evidence. However, the fact that a defendant is under arrest and in handcuffs at the time of giving consent does not per se make a consent to a search involuntary. It is but one of the factors, but not the only one, to be considered by the trial judge who sees and hears the witnesses and is best able to pass upon the matter. (People v. Lujan, 141 Cal.App.2d 143 , 147-148 [ 293 P.2d 93 ] ; People v. Smith, 141 Cal.App.2d 399 , 402 [ 296 P.2d 913 ] ; People v. Robinson, 149 Cal.App.2d 282 , 284, 287 [ 308 P.2d 461 ] ; People v. Davis, supra, 178 Cal.App.2d 887 , 893.) The credibility of the witnesses and the weight to be given the evidence are matters for the trial court. The factual question of voluntary consent, upon sufficient evidence, was decided contrary to appellant’s contentions.

Defendant having freely consented, the search was not unreasonable. However, the trial court did find the arrest to be based upon probable cause and we conclude that the uncontradicted evidence is sufficient to support this finding.

Appellant contends that there is no evidence that the information contained in the police report was obtained from a reliable informant, and that Bridges could not recall the name of the informant.

“Probable cause for an arrest is shown if a man of

Although, in the absence of some pressing emergency, an arrest may not be based solely on information provided by an anonymous informer, such information is relevant on the issue of probable cause. (Willson v. Superior Court, 46 Cal.2d 291 , 294 [ 294 P.2d 36 ]; People v. Moore, 141 Cal.App.2d 87 , 89-90 [ 296 P.2d 91 ].) The mere fact that the information did not come from the informant directly to the arresting officer does not prevent reliance on its trustworthiness if it reached him through official channels (see People v. Hood, 150 Cal.App.2d 197 , 201 [ 309 P.2d 856 ]), and appellant did not, in the trial court, challenge the source of this information, or question the reliability of the informant. In any event, the officers did not rely solely upon that report, and when the information received is viewed in connection with the other factors disclosed by the evidence herein, we conclude that the trial court was justified in determining that there was a legal basis for an arrest without a warrant, and that the search as a part of the same transaction was an incident to a lawful arrest. (See People v. Herman, 163 Cal.App.2d 821 , 825, 826 [ 329 P.2d 989 ] ; People v. Ramsey, 157 Cal.App.2d 178 , 184 [ 320 P.2d 592 ] ; People v. Cicchello, 157 Cal.App.2d 158 , 161-162 [ 320 P.2d 528 ] ; People v. Moore, supra, 141 Cal.App.2d 87 , 90; Willson v. Superior Court, supra, 46 Cal.2d 291 , 295.)

Appellant contends that it was error to admit evidence concerning the possession of narcotics by Arnegard

Appeal Number 7419

George A. Palmer, a deputy sheriff, attached to the Narcotics Detail as undercover agent, testified that on February 17, 1960, he went to 1446% West 95th Street in Los Angeles where he saw the defendant Valdez. Palmer “asked him if he was holding and he stated yes. And I asked if I could pick up a half a pound of weed, which is marijuana as used in slang term. The defendant said, ‘All I have is two cans.’ I said that would be alright if I could have it. So he said yes. At that time I handed the defendant a $20.00 bill. He went in the location, remained in the location for approximately two minutes, at which time he came to the door and called out to come in. I went into the location and at that time I was handed through another person in front of the defendant, two wax paper bags containing a green leafy material.” It was stipulated that the bags contained marijuana. Upon cross-examination, Palmer said that the third man in the room was a man known to him only as “Ronnie.” He did not lmow his last name, his address or his telephone number, and would be unable to contact him at that time. He did not place Ronnie under arrest at that time or thereafter. When asked how he contacted Ronnie in the past, Palmer said he met Ronnie on or about February 8, 1960, when Sergeant Bridges called him to come to the station and he was introduced to Ronnie. Palmer did not know if Ronnie was under arrest or in custody at that time. He said he had previously seen defendant Valdez on February 8th at approximately 6 -.45 p. m. and again at about 9:30 that date! Appellant did not testify or present any evidence. He was found guilty of violating section 11531, Health & Safety Code, illegal sale of marijuana.

In the light of this record, the claims of appellant upon this appeal—entrapment and illegal search and seizure—are clearly without any merit. The contention seems to be that an inference must be drawn from the testimony of Officer

The defense of entrapment is fully discussed in People v. Lindsey, 91 Cal.App.2d 914 [ 204 P.2d 1114 ], and the applicable law is set forth therein at page 917, as follows: “Where the doing of an act is a crime, regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused and the offense is completed, the fact that an opportunity was furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. (15 Am.Jur., § 355, p. 24.) If the officer uses no more persuasion than is necessary to an ordinary sale, and the accused is ready and willing to make the sale, there is no entrapment. [Citations.] Where the defendant is not inveigled into commission of the crime there is no entrapment. [Citations.] It is only when the criminal design is conceived in the mind of the officer and does not originate with the accused, and a decoy is used to ensnare the innocent and law-abiding by persuasion, deceitful representation, inducement or allurement into the commission of the crime, that there is entrapment. [Citation.] Where an accused knowingly commits a crime by selling to a police decoy, there is no entrapment.”

“Entrapment ‘is a positive defense imposing upon an accused the burden of showing that he was induced to commit the act for which he is on trial.’ [Citations.] ” (People v. Braddock, 41 Cal.2d 794 , 803 [ 264 P.2d 521 ].) “The defense of entrapment must be raised at the trial in order to prevail; it ‘is one to be presented as a question of fact.’ [Citations.]” (Pe ople v. Polsalski, 181 Cal.App.2d 795 , 800 [ 5 Cal.Rptr. 762 ].) Appellant’s counsel concedes that he did not raise this point at the trial level.

There is no showing that appellant was lured, in