People v. Medina

Defendant was charged with two others, Hernandez and Muriel, with possession of heroin (§ 11500, Health & Saf. Code) and a prior felony conviction (§ 211, Pen. Code). Defendant and Hernandez were tried separately from Muriel; the court found defendant guilty as charged and the allegation of the prior felony conviction to be true, and acquitted Hernandez. Defendant appeals from the judgment.

Deputy Nelson had been advised through official briefings

The lawn grass at 1589 Helen was about 8 inches high and in need of mowing, a “For Sale” sign was in the yard, the house, an old faded green, was in need of paint and it appeared to be abandoned. Deputy Nelson testified that based “on the fact that the area, being partially deserted, has a high rate of stolen vehicle recoveries and vehicle stripping” and on his observation of ‘ ‘ the persons inside of an abandoned garage with a vehicle which appeared to be partially dismantled, or the tires or wheels removed . . . ,” it was then his opinion “that someone was inside this vacated garage probably stripping the vehicle which was parked there ’ ’; further, “it was my opinion that they had no business there; that they were not occupants of the house. ... I thought they were car strippers in this abandoned garage. ... I thought that they had probably picked it out as being abandoned, and the door was unlocked, so this would be a good place to park a stolen car and strip items from that ear.” Deputy Nelson testified he thought that the persons inside were car thieves—-“felons”-—hiding their stolen vehicle in the garage; “ [a]ny time that there is a sheltered place, they will use it to strip ears. ’ ’

Deputy Nelson told his partner to hold Hernandez; Deputy Ablott did so saying, “Wait, I want to talk to you,” but did not place him under arrest at that time. Deputy Nelson went

Appellant’s contention that there was lack of probable cause for his arrest prior to the opening of the garage finds no support in the record. A police officer may make an arrest without a warrant “1. Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.” or “3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, ...” (§ 836, Pen. Code.) There is no exact formula for the determination of reasonableness and each case must be decided on its own facts and circumstances and on the total atmosphere of the case. (People v. Ingle, 53 Cal.2d 407 , 412 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ].) “ Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty. (People v. Torres, 56 Cal.2d 864 , 866 [ 17 Cal.Rptr. 495 , 366 P.2d 823 ] ; People v. Fischer, 49 Cal.2d 442 , 446 [ 317 P.2d 967 ].)” (People v. Cockrell, 63 Cal.2d 659 , 665 [ 47 Cal.Rptr. 788 , 408 P.2d 116 ]; People v. Stewart, 62 Cal.2d 571 , 577-578 [ 43 Cal.Rptr. 201 , 400 P.2d 97 ] ; People v. Hillery, 65 Cal.2d 795 , 803 [ 56 Cal.Rptr. 280 , 423 P.2d 208 ].)

The undisputed evidence establishes that before Deputy Nelson opened the garage door he had reasonable cause to believe that the persons in the garage had committed

Nor is there here an issue of search; when the deputy entered the garage, in plain sight on the rear trunk area of the vehicle were the contraband and narcotic paraphernalia. These items, later found on the floor where they had fallen when knocked off the trunk deck, were not discovered by the deputy as the result of any search. (People v. Terry, 61 Cal.2d 137 , 152 [ 37 Cal.Rptr. 605 , 390 P.2d 381 ]; People v. Martin, 45 Cal.2d 755 , 762 [ 290 P.2d 855 ]; People v. Lamberson, 235 Cal.App.2d 856 , 859 [ 45 Cal.Rptr. 563 ].)

Finally, appellant contends that while he was advised of his constitutional rights by Deputy Henry and specifically that he could have the public defender at “any stage of the proceedings” at no expense to himself, the latter was not an adequate warning of his right to counsel because it did not sufficiently apprise him that he had a right to counsel “prior to questioning”; and that his “incriminating statement that [he] went to one of the codefendant’s ear to ‘go score’ ” should not have been admitted. The adequacy of the warning is purely academic for when Deputy Henry testified that defendant ‘ ‘ stated that he met the other two persons at Carmelita and Michigan, . . . and they went to Hernandez’ car to go score; that he—, ’ ’ defense counsel interposed an objection (on another ground) and the court ordered the testimony stricken; thus defendant’s statement was never considered by the trial court on the issue of guilt. No statements elicited from defendant were before the trial court; and since he did not testify, defendant cannot allege that the taking of the statement impelled him to make a testimonial confession at the trial; nor does he assert that anything he told the officers led to the acquisition of any evidence against him. According

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied October 10, 1968, and appellant’s petition for a hearing by the Supreme Court was denied November 27,1968.