People v. Mora

Defendant Mora and codefendant Diaz were tried by the court without a jury and convicted of violating section 11500 of the Health and Safety Code (possession of heroin). Mora alone appeals from this conviction.

On January 8, 1964, Deputy Sheriff Burns of the Los Angeles County Narcotics Detail received information that one Manuel Garcia was engaged in the sale of heroin in the area of Soto Street and Whittier Boulevard. The informant gave directions to Garcia’s house, described two vehicles owned by Garcia, and told Deputy Burns where Garcia worked. After Deputy Burns cheeked Garcia’s record and found that he had been convicted twice for illegal use of narcotics, a surveillance of Garcia’s activities was established. This surveillance continued until the evening of January 17,

Subsequent to the arrest Deputy Elliott questioned Mora, who admitted that the heroin was his and stated that Diaz did not know of the “score.”

Mora and Diaz, testifying on their own behalf, denied that they were arrested in the foregoing manner. Mora testified that the officers approached the car with drawn guns, told them not to move, then took them out of the car, handcuffed and searched them. It was not until after this that the officers found the heroin. Mora admitted that he had told the officers he was a user, but denied that he had said the heroin was his.

Diaz supported Mora’s version of the arrest and also denied that the officers asked if he was using heroin, and denied that he told them he was using “A little bit.”

Defendant contends that the court committed error in refusing to strike the testimony of Deputy Burns that he had received information that Garcia was dealing in heroin. The testimony was given as part of the prosecution’s showing of probable cause for the arrest of the defendants. On cross-examination the deputy refused to name the informer. Defendant Mora’s counsel then moved to strike the testimony. The motion was denied. Defendant argues that his motion should have been granted, citing Priestly v. Superior Court, 50 Cal.2d 812 , 819 [ 330 P.2d 39 ].

The failure of the trial court to strike this testimony should not be regarded as prejudicial in this ease. The information received from the informer placed Garcia, not the defendant, under suspicion. The fact which is of significance here is that the officers were investigating Garcia, whether for good cause or for no cause. Because of their suspicion the officers ■kept Garcia under observation and saw conduct which, to them, was consistent with the behavior of a narcotics peddler. This only explains how it happens that, when Garcia met defendant, officers were present. So far as this ease is concerned, it is immaterial why the officers were there. They were not infringing anyone’s rights by watching what Garcia was doing on a public street. The fact which is relevant and material here is that narcotics officers saw defendant meet Garcia on the street in the evening, as if by prearrangement, and saw Garcia pass a small package to defendant in exchange for something which Garcia counted as though it were money. Under the circumstances, this observed event called for an investigation of defendant.

For the purpose of investigating this suspicious transaction, it was not improper to stop the automobile in which defendant was riding. (See People v. One 1960 Cadillac Coupe, 62 Cal.2d 92 , 96 [ 41 Cal.Rptr. 290 , 396 P.2d 706 ].) When, in answer to questions, both occupants admitted being users, the officers were justified in opening the car doors for further investigation. (Cf. People v. Witt, 159 Cal.App.2d 492 , 496 [ 324 P.2d 79 ].) At this point the officers had reasonable cause to believe that defendant still possessed whatever he had obtained from Garcia. The appear

Defendant Mora contends that there is not sufficient evidence to justify a finding that he knowingly possessed narcotics. The rule is that the prosecution must prove that the “accused exercised dominion and control over the drug with knowledge of its presence and narcotic character. ’ ’ (People v. Redrick, 55 Cal.2d 282 , 285 [ 10 Cal.Rptr. 823 , 359 P.2d 255 ].) Not only did Mora admit that he was using narcotics, but the officers found fresh needle marks on his arm which, in the opinion of the officer, were from the injection of narcotics. Both of these circumstances were evidence tending to establish knowledge of what narcotics are. (People v. Hancock, 156 Cal.App.2d 305 , 312 [ 319 P.2d 731 ].) As for possession, the observation of the officers that a small object was passed between Garcia and Mora and the recovery of a similar object from the floorboard directly in front of the seat in which Mora was seated supported the inference that the package belonged to Mora. Upon this evidence the trier of fact could reasonably find that defendant Mora possessed the narcotic with knowledge of its nature, even without Mora’s subsequent confession to the police officer that “it was his stuff and that he would go for it. ’ ’

Subsequent to the trial of this case, the Supreme Court of California handed down its decision in People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 316 ], In that ease the judgment was reversed because a confession had been received in evidence. The grounds of the decision are summarized in the opinion as follows (pp. 353-354) : “We conclude, then, that defendant’s confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights,”

Defendant’s counsel objected to the officer’s testimony on the ground that it was the “fruit” of an illegal arrest and search, and this objection was overruled. There was no objection upon the ground that the accused had not been advised of his rights. Since defendant could not have anticipated that the law would change in his favor while the case was on appeal, he is entitled to the benefit of the new rule despite his failure to object, under the reasoning of the Supreme Court in People v. Kitchens, 46 Cal.2d 260 , 262 [ 294 P.2d 17 ].

It is unnecessary to consider whether the officer’s testimony was prejudicial. In the Dorado opinion the court said (p. 356) : “Although under some circumstances the introduction into evidence of statements obtained from a defendant during police interrogation in violation of his right to counsel and his right to remain silent may constitute harmless error, we are convinced that the error is necessarily prejudicial when the statements are confessions.”

In the present case, where the officer had just taken possession of a package of heroin in the immediate presence of the defendant, his statement to the officer “that it was his stuff and that he would go for it” cannot be construed as anything other than a full confession of a violation of Health and Safety Code section 11500.

Under the circumstances, the Dorado decision compels a reversal here.

The judgment is reversed.

Jefferson, J. and Kingsley, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied April 14,1965.