People v. Perez

Our first opinion in this case is reported in 253 Cal.App.2d 288 . The Supreme Court had denied appellant’s petition for a hearing, but, on the ground of failure of an appointed attorney to file a brief, later directed this court to recall the remittitur, vacate its judgment, and proceed in accordance with Anders v. State of California, 386 U.S. 738 [ 18 L.Ed.2d 493 , 87 S.Ct. 1396 ] and People v. Feggans, 67

Phillip Garcia Perez and Lydia Garcia Reyes, his companion, were charged with the possession of narcotics in the form of heroin, thus violating section 11500 of the Health and Safety Code. Perez entered a plea of not guilty; he was tried by a jury and found guilty as charged. Lydia Garcia Reyes pleaded guilty, and she is not involved as a party to this appeal. Probation was denied, and Perez was sentenced to state prison.

Gary Shoemaker, who had been an agent for the Bureau of Narcotic Enforcement of the State of California for ten years, went to 3934 East McKenzie in Fresno on December 1, 1965; he had obtained a search warrant; he did not knock at the door but went into the house from the alley through the rear door. He was accompanied by Agents Lacey and Sherwood from his office, Officers Thrasher and Packard from the Fresno Police Department, and a representative of the Fresno district attorney’s office. Shoemaker first saw Lydia Reyes standing at a kitchen table, and then Perez in the living room. Perez placed one hand to his mouth and took a step toward the front door. Shoemaker and Agent Sherwood seized Perez and a struggle followed, which caused defendant to fall to the floor. The officers did not retrieve what they testified Perez put in his mouth. At that time, Shoemaker left the living room and returned to the kitchen; when he again walked into the living room, Agent Lacey arrested Perez. Shoemaker testified that some five or ten minutes after the arrest, Perez stated, “Man, that was close. I just swallowed two papers.” The officers searched the entire house and took Perez and Miss Reyes with them to be booked at the jail.

John L. Lacey, a California narcotics agent, testified that he was also in the house at the time of the arrest, and that, while the scuffling was going on, he noticed something orange, which he thought was a balloon, in defendant’s mouth, and then heard defendant yell, “I am sorry. I swallowed it.” Lacey testified that he heard Perez say, after his arrest, ‘ ‘ Boy, that was sure close. I swallowed two papers.”

Gilbert D. Thrasher, a Fresno police officer in charge of the narcotics detail, was also in the residence at the time of the arrest; he testified that after entering the front door he immediately went to the kitchen area, taking Lydia Reyes from the

Louis Holler, a chemist agent for the Bureau of Narcotic Enforcement, testified that he found a sticky substance on the spoon, which chemical analysis showed was heroin, and that he believed there was enough residue for a person actually to receive an injection of heroin from it.

The appellant presents four arguments for reversal:

1) That the evidence seized was illegally obtained and, therefore, inadmissible;

2) That the evidence as a whole is insufficient to support a guilty verdict ;

3) That the court committed prejudicial error by admitting into evidence repeated references to other criminal activities alleged to have been discussed previously by appellant; and

4) That the court erroneously instructed the jury.

The principal ground for reversal urged by the defense is that the apparatus by which injections of heroin are made, was improperly admitted in evidence because when the raid took place the officers did not preliminarily request admittance, pursuant to the requirements of section 1531 of the Penal Code. The officers were, in fact, armed with a search warrant for the house in question; all of them except Officer Thrasher went to the back door, and Thrasher went to the front door. Officer Shoemaker was asked whether he entered the rear door, and he said that he did. He said that the door had a latch on it; that he put his hand through the screen and unlatched it. He was asked if he did not knock on the door or press the bell button for entry, and he stated that there was no bell button, but he did not knock on the door.

Appellant relies principally on People v. Gastelo, 67 Cal.2d 586 , 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ], wherein the defendant was also convicted of possession of heroin; there Los Angeles police officers had obtained a warrant for search of an apartment of a woman with whom defendant was living, on the basis of a statement by a reliable informant. Four officers went to the apartment; they saw an automobile outside which they believed to be defendant’s; two officers went to the rear door and two to the front, and, without knocking or announcing their purpose or demanding admittance, they forced entry

The Gástelo ease holds that there was nothing in that record to justify the officers’ failure to comply with section 1531 of the Penal Code and that, consequently, the questioned evidence in that case should have been excluded. In passing, it may be noted that the events of the present raid, considered after its happening, support from a practical standpoint the belief of the law enforcement officers as to the necessity for rapid action. Testimony on behalf of the People was to the effect that the appellant, by his own admission, swallowed part of the heroin in his possession. If the officers had given explicit warning of the imminence of the raid, it is likely that the tell-tale heroin would have been destroyed even more successfully. In the proof by the prosecution that the appellant knew that heroin was a forbidden drug and that he was acquainted with the technique of injecting it and the danger

The appellant says that “the evidence as a whole was insufficient to warrant the jury in finding him guilty of violation of section 11500 of the Health and Safety Code of the State of California, . . . that the doctrine of reasonable doubt applies to proof of guilt and not to the establishment of each incident or event inculpating the defendant,” and that “. . . a reasonable doubt that would warrant acquittal is one that results or arises from a consideration of all of the evidence in the case,” (citing People v. Kross, 112 Cal.App. 2d 602 [ 247 P.2d 44 ]; People v. Nunn, 65 Cal.App.2d 188 [ 150 P.2d 476 ] and People v. Zammora, 66 Cal.App.2d 166 [ 152 P.2d 180 ].) The appellant thus fails to keep in mind that the doctrine of reasonable doubt applies to a trial jury but not to the technique of an appellate court. As is said in People v. Hillery, 62 Cal.2d 692 , 702-703 [ 44 Cal.Rptr. 30 , 401 P.2d 382 ] : “Moreover, ‘It is the trier of fact, not the appellate court, that must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably

In People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ], it is said: “The court on appeal ‘will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt.’ ” (See also: People v. Groom, 60 Cal.2d 694 , 697 [ 36 Cal.Rptr. 327 , 388 P.2d 359 ] ; People v. Rosoto, 58 Cal.2d 304 , 321 [ 23 Cal.Rptr. 779 , 373 P.2d 867 ].)

Furthermore, the appellate court has the duty to accept as true all of the evidence, even though contradicted, which supports the result of the trial, including all fair inferences from the testimony. Time after time in his briefs the appellant casts aspersions on the testimony of the officers who took the witness stand on behalf of the People. If there is a difference, and there were many differences, in the evidence received at the trial as between the appellant and his companion on the one hand and the peace officers on the other, it is our duty on appeal to accept the truth of the evidence adduced on behalf of the People.

Was there evidence of the possession of heroin by the appellant? There are two instances which, taken separately or together, constitute ample proof of the fact. While the defendant’s witnesses claimed that the paraphernalia for effecting an injection of heroin and the heroin on the spoon belonged to Miss Reyes, that was not the theory of the prosecution ; there was ample evidence to show by legitimate inference that there was joint possession by the two defendants of the instruments and the heroin. Both defendants were confessed habitues, and it would seem strange that the appellant, who was admittedly taking heroin regularly, should not have

Entirely apart from the foregoing evidence, the testimony of several police officers was that the appellant admitted more than once that he had swallowed two “papers” of heroin which he crammed into his mouth when the raid started. The admission by the defendant that he had swallowed two dosages of heroin at the commencement of the raid supports the conviction. There was also evidence that the appellant knew what heroin was and that it was a forbidden substance.

The defendant also objects to the testimony of law enforcement witnesses that the appellant appeared to attempt to get away through the front door. It has been uniformly held that flight after an alleged offense affords some basis for an inference that a defendant thereby evidences a consciousness of guilt. (Pen. Code, § 1127c, People v. Santo, 43 Cal.2d 319 , 327 [ 273 P.2d 249 ] ; People v. Clifton, 248 Cal.App.2d 126 , 130 [ 56 Cal.Rptr. 74 ] ; People v. Jack, 233 Cal.App.2d 446 , 458 [ 43 Cal.Rptr. 566 ].) These authorities constitute a legitimate ground why the evidence was properly received for what it was worth.

Appellant argues that the court committed prejudicial error by the admission into evidence of references to alleged discussions by him with law enforcement officers of other criminal activity relative to the use of heroin. In this case, the evidence of the prior activity was introduced to show knowledge by the appellant of the narcotic nature of heroin and

In this type of case it is imperative for conviction that the People prove that the defendant had knowledge that whatever substance was possessed was a narcotic; consequently, evidence of appellant’s knowledge of the nature of heroin was relevant and, in fact, essential to the People’s case. The judge, at the time Lacey testified, spoke to the jury, saying: “The Court: Well, I want to sajr to the jury that you will be instructed as to the limited character of the evidence which you are about to hear and at an appropriate time. I may say to you that it does not have to do directly with this offense, but the only purpose for which I am going to admit this evidence is to show knowledge, if it he shown. The purpose is to permit the District Attorney to show knowledge on the part of this defendant of the character of the items, that were found in his particular kitchen and also of the character of narcotics as such. But it has no relation to the direct proof of the commission of this offense, but only has to do with the

Appellant’s final argument is that the court instructed the jury that the possession of any amount of heroin constituted a violation of the law, and that the giving of this instruction was error. The court instructed: “You are further instructed that the law does not fix any minimum amount of heroin that is necessary to constitute the possession thereof. The possession of heroin in any amount constitutes a violation of the law where the possessor has knowledge of its presence and of its narcotic character. ’ ’

It is clear that this instruction is error in the abstract. (People v. Leal, supra, 64 Cal.2d 504 , 512; People v. McCarthy, 64 Cal.2d 513 [ 50 Cal.Rptr. 783 , 413 P.2d 671 ].) However, the error is not prejudicial, because the only evidence relative to heroin was that the amount on the spoon was substantial enough for a “fix,” and that the two “papers” swallowed by the appellant at the commencement of the raid were enough for two dosages. The evidence of the chemist that there was sufficient narcotic for consumption found in the spoon was uneontroverted, and the appellant admitted swallowing two “papers” containing the drug. Because of this evidence, the error in this instruction was not prejudicial.

We see no reason to change the conclusion reached by us in our former opinion reported in 253 Cal.App.2d 288 .

The judgment of conviction remains approved.

Gargano, J., concurred.