People v. Perry

People v. Hellum (1962) 205 Cal.App.2d 150 , 154 [ 22 Cal. Rptr. 724 ].)

Both parties agree “that to establish unlawful possession of narcotics it must be shown that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character.” (People v. Redrick (1961) 55 Cal.2d 282 , 285 [ 10 Cal.Rptr. 823 , 359 P.2d 255 ]. See also People v. Showers (1968) 68 Cal.2d 639 , 642-643 [ 68 Cal.Rptr. 459 , 440 P.2d 939 ]; People v. Winston (1956) 46 Cal.2d 151 , 158-161 [ 293 P.2d 40 ]; People v. Gorg (1955) 45 Cal.2d 776 , 780 [ 291 P.2d 469 ]; People v. Gory (1946) 28 Cal.2d 450 , 454-456 [ 170 P.2d 433 ]; People v. Solorio (1965) 232 Cal.App.2d 527 , 530 [ 42 Cal.Rptr. 914 ]; People v. Juvera (1963) 214 Cal.App.2d 569 , 573 [ 29 Cal.Rptr. 653 ]; People v. Estrada (1960) 185 Cal.App.2d 435 , 437 [ 8 Cal.Rptr. 308 ]; People v. Stanford (1959) 176 Cal.App.2d 388 , 390 [ 1 Cal.Rptr. 425 ]; People v. Tabizon (1958) 166 Cal.App.2d 271 , 273 [ 332 P.2d 697 ]; People v. Jackson (1958) 164 Cal.App.2d 772 , 778 [ 331 P.2d 218 ]; and People v. Rodriguez (1957) 151 Cal.App.2d 598 , 601 [ 312 P.2d 272 ].) Moreover, it is recognized “that proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.” (People v. Redrick, supra, 55 Cal.2d 282 , 285 and see review of cases pp. 285-288. See also People v. Stanford, supra, 176 Cal.App.2d 388 , 391-392; and People v. Tabizon, supra, 166 Cal.App.2d 271 , 273-274.)

“Possession and knowledge may be proved by circumstantial evidence and any reasonable inferences drawn therefrom. [Citations.] Neither exclusive possession of the premises nor physical possession of the narcotic is necessary. [Citations.] ” (People v. Solorio, supra, 232 Cal.App.2d 527 , 530. See also People v. Juvera, supra, 214 Cal.App.2d 569 , 573; People v. Estrada, supra, 185 Cal.App.2d 435 , 437; and People v. Stanford, supra, 176 Cal.App.2d 388 , 390.)

At the preliminary examination the People produced a search warrant dated October 30, 1964 which authorized search of the defendant and a woman, and the motel unit allegedly occupied by them, the affidavit upon which it was predicated, and the return made on it. Defendant's attorney, who was replaced in the trial court, indicated that he had no intention of controverting the search warrant at that time. Sergeant Hilliard testified that on October 30th, while armed with the search warrant, he observed the defendant leave the unit on two occasions, on each of which he disappeared from

the observer’s sight toward the rear of the motel for a few minutes; that he observed the defendant’s female companion walk from the same unit to the front of the motel and apparently deposit an object in the rain gutter, and that about five minutes later he ascertained by inspection that the object was a hypodermic needle and an eyedropper wrapped in a white “Kleenex.” The court’s attention was directed to the fact that the complaint alleged an offense in November. Following discussion between court and counsel, the evidence was not stricken, as stated by defendant, but the prosecutor was admonished to proceed with evidence of the offense on November 6 th.

The witness further testified that on November 5th, about 11 p.m., he had a conversation with and arrested a young lady whom he had observed leave a position in front of the unit occupied by defendant; that thereafter he found a white “dixie” cup containing a substance packaged in a balloon in the rain gutter of the motel; that he removed a portion of the substance and delivered it to a criminologist (for the purposes of the preliminary hearing it was stipulated that the portion so removed was heroin with a powder weight of 0.90 grams); that he placed his initials on the cup; that he dusted the cup and the balloon with fluorescent powder; that he returned the cup with the balloon and its remaining contents to the rain gutter; and that he arranged for surveillance of the scene. Other officers testified that the cup was kept under surveillance until about noon on November 6th; that at that time the defendant left unit 105 and walked toward the front of the building toward the street and disappeared; that a few minutes later he returned up the back stairs with a brown paper bag in his right arm; that he looked around, reached up with iiis left hand and pulled the object under surveillance out of the gutter; that his subsequent actions were hidden from the observer by the defendant’s body, but within seconds his left arm gave a throwing motion, and an object, which subsequently proved to be a paper cup marked with Hilliard’s initial, fell to the pavement below.

The observing officer testified that the, defendant then entered unit 105 and remained there for approximately a half "hour; that, he then came out with a young lady, walked back 'to the rear stairs-and descended to an automobile parked at the back of the apartment house. The officer pursued the couple, showed them a copy of the search warrant and placed them under arrest. He searched the defendant, went back and

searched the room, and brought the defendant to the vice control office where he was exposed to a light which revealed fluorescent powder on the fingers of his left hand, on his shoelaces, on his socks, and on the front of his trousers. The officer testified that nothing was found in the search of defendant, and his apartment, or in the area except the empty paper cup. The return on the search warrant indicates that six balloons—two red, two yellow, one green and one white— two eyedroppers, and a package of cigarette papers were removed from unit 105 on November 6th.

In People v. Showers, supra, the court observed, “Ordinarily, it can be inferred that the person who first returned to search and who searched the most times was the one who dropped the narcotics. When such an inference may reasonably be made the conviction must be affirmed even though other inferences may similarly be drawn pointing to innocence. [Citations.]” (68 Cal.2d at pp. 644-645.) In Showers the inference was found to be unreasonable because the searcher was not the only one who might have dropped the contraband, and because his lack of success in his search indicated that he did not know where it had been placed. In this case, however, the prosecution is not based upon the inference that defendant, who had no difficulty in locating the apparently concealed paper cup, was the possessor at the time it was placed in the rain gutter, but upon the inference that he took the balloon with the remainder of the heroin into his possession at the time he discarded the cup.

Defendant’s objection to the sufficiency of the evidence introduced at the preliminary hearing is predicated on the theory that the evidence compels the inference that the defendant’s conduct was innocent in nature, unless, as was the ease at the trial, it is viewed with evidence of prior activities which occurred at the scene. Since there was in fact evidence of those prior activities at the preliminary examination there is no substantial difference in the evidence. He asserts that his removal, inspection and disposal of the cup are consistent with the conclusion that he found nothing in it; that thereafter, while unaware that he was under surveillance he proceeded with his normal activities; that being unaware of the surveillance he had no motive for disposing of the heroin; that neither he nor his companion was shown to be under the influence of narcotics when arrested; and that a search of the persons of himself and his companion, and of his apartment, failed to produce the heroin. He concludes that,

from all that appears, the defendant never took the balloon and its contents into his possession. On the other hand, the unequivocal testimony of the officers indicates that the balloon and heroin were in the cup; that they were not disturbed until defendant took the cup into his possession; that the cup, when disposed of, appeared to be empty; and that no balloon was found in the area.

Since the evidence permits the inference that defendant did in fact take the balloon containing the heroin, defendant’s objection must fail. “The facts here establish that a magistrate could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendants had participated.” (People v. Solorio, supra, 232 Cal.App.2d 527 , 530. See also Rogers v. Superior Court (1955) 46 Cal.2d 3 , 7-8 [ 291 P.2d 929 ]; People v. Nagle (1944) 25 Cal.2d 216 , 222 [ 153 P.2d 344 ]; People v. Malki (1960) 181 Cal. App.2d 118 , 121-122 [ 5 Cal.Rptr. 207 ]; and People v. Platt (1954) 124 Cal.App.2d 123 , 131 [ 268 P.2d 529 ].)

Defendant’s objections that the proceedings were invalid because of the admission, though no objection was made, of improper evidence, and that they were tainted by improper use of the search warrant, go to the very heart of the case, and are discussed below.

Sufficiency of the Evidence at the Trial

At the trial Sergeant Hilliard’s testimony commenced with recounting the events which commenced at 11 o ’clock on the night of November 5th. He augmented his testimony by revealing that before he removed a sample for the criminologist, he made a reagent test on a small portion of the contents of the balloon which indicated it was an opium derivative.

On cross-examination of Sergeant Hilliard the defendant’s attorney brought out that the woman arrested by the sergeant on November 5th had been arrested by him on several occasions for the use of narcotics; that Hilliard’s search of the rain gutter was based on his conversation with the woman he arrested November 5th, on the search warrant, and on his observations on October 30th; that Hilliard had observed the defendant and his companion and discovered the paraphernalia on October 30th; and that defendant after his arrest had told Hilliard that he would rather not say anything until he consulted his attorney. On redirect examination the prosecution brought out that the woman arrested on November 5th had first been observed standing in front of unit 105.

■ The discovery of the cup and Sergeant Hilliard’s' subsequent activities were corroborated by the testimony of another officer who also joined in the surveillance until relieved at about 7 :30 a.m. on November 6th.

The officer who testified concerning defendant’s arrest repeated the narration he had given at the preliminary examination. He elaborated on his prior testimony by stating that before defendant and his companion left the room, the door was opened and remained open for five minutes; that the defendant then stepped out, looked up and down, and went back in; and that about three minutes later- both left the apartt ment. He testified, without objection, that the items listed on the return were found in the search of the apartment. When he described the balloons as being cut.—just a portion of a balloon, the defendant objected on the grounds that the prosecution should produce the balloons. The objection was over: ruled. According to the witness .the items were still held by the property clerk. • ■

A criminologist with a Ph.D. in physical chemistry testified that the powder, which Sergeant Hilliard testified he had removed from the red balloon in the paper cup, contained heroin and weighed 0.90.grams; that he did not determine the actual heroin content because there is usually heroin plus something else in the powder; and that he had never observed a pure sample of heroin.

The prior conviction; upon which the defendant had stood mute, was established by a certified copy of the judgment,.- and the testimony of the defendant’s probation officer in those proceedings, who identified the defendant as the person named in that judgment.

The defendant testified and admitted his prior conviction on July 23, 1964 in the City and County of San Francisco. He acknowledged that he had known two of the officers.for about three years; that he had been arrested about five times, for investigation of narcotics, practically every time by the officer who made the arrest November 6th; and that he had been released each time without prosecution. He denied knowledge of any cup or object in the rain gutter, and-denied that he removed any object from that place. According to him, following his arrest under the search warrant his apartment was searched without revealing any narcotics. After his companion was taken away he was stripped and searched, and while clad only in shorts was handed a paper cup which he noticed had the initial H” on it. Thereafter he dressed, and a light was

brought to the apartment which revealed fluorescent powder on his clothing. He stated that he was requested to give a statement, but said nothing because he did not ascertain the charges until the following Monday. On Saturday, the day after his arrest, he was requested to take a Nalline test to reveal whether he had been using narcotics, and he refused, because on prior occasions his passing the test had not always lead to his immediate release.

Defendant’s objections to the sufficiency of the evidence on the grounds that it compelled inferences favorable to him have already been discussed in connection with the review of the record at the preliminary examination. His objections predicated upon the alleged receipt of improper evidence, and misuse of the search warrant are examined below.

He additionally contends that the testimony of the criminologist was insufficient to show that the substance in the balloon was in fact heroin, or that it was of sufficient quantity to warrant a finding of knowledgeable possession. (See People v. Leal (1966) 64 Cal.2d 504 , 512 [ 50 Cal.Rptr. 777 , 413 P.2d 665 ] and People v. Aguilar (1963) 223 Cal.App.2d 119 , 123 [ 35 Cal.Rptr. 516 ].) The witness testified that the powder contained heroin. In Leal, supra, the court stated: “. . . in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential ; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption . . . does not constitute sufficient evidence in itself to sustain a conviction.” (64 Cal.2d at p. 512.) In this case knowledge can reasonably be imputed to each person who was a party to concealing or retrieving the powder, because quantitatively it was a substantial amount—-assuming one-half was removed, at least 0.90 grams of powder would have remained. (Cf. People v. Adame (1967) 250 Cal.App.2d 380 at p. 383 [ 58 Cal.Rptr. 687 ], six balloons containing a total of 5.40 grams of heroin.) The fact that it was packaged in a balloon, that it was protected by the cup, and that it was concealed in the rain gutter bespeaks that it qualitatively had sufficient heroin to make it usable for sale or consumption.

A further contention, predicated on the evidence at the trial, rests on testimony which indicates that no fluorescent powder was observed on defendant’s right hand. He urges

that it would have been impossible for him to handle the cup and balloon without getting powder on his right hand unless the powder had been transferred, as he testified, when the officer handed him the cup. This matter was extensively argued to the jury and resolved against the defendant.

There was ample evidence to sustain the conviction. In People v. Redrick, supra, the court stated, “Although the evidence does not appear very convincing, the question of the persuasive effect of such evidence is not for an appellate court. And we cannot say that the circumstances hereinafter related, as a matter of law, at most give rise to a mere suspicion and do not permit a reasonable inference of guilt.” (55 Cal.2d at p. 284, and see pp. 289-290. See also People v. Newland (1940) 15 Cal.2d 678 , 680-682 [ 104 P.2d 778 ]; People v. Alonzo (1958) 158 Cal.App.2d 45 , 47-48 [ 322 P.2d 42 ]; and People v. Rodriguez, supra, 151 Cal.App.2d 598 , 601.) Attention is now directed to the question of whether there was too much evidence.

Evidence Allegedly Improperly Received

At the trial, Sergeant Hilliard testified, without objection, that on October 30, 1964, he had arranged to have a search warrant issued. The warrant, the affidavit on which it was based, and the return were marked for identification. The arresting officer testified that he served the search warrant on the defendant and arrested him, and made the return after searching the apartment. He used the return to refresh his recollection of the items seized in the room. On cross-examination of the sergeant, defendant’s attorney elicited the testimony that the search warrant along with the sergeant’s own observations, and the conversation he had with the woman he arrested on November 5th, led him to inspect the rain gutter on that day. At the conclusion of the case for the prosecution, the prosecutor offered all of the exhibits previously marked for identification in evidence. The court asked “Any objection?” and following the reply of defendant’s counsel, “No, Your Honor,” all of the exhibits were received into evidence. Whatever may be said for the competency, relevancy and materiality of the search warrant and the return, insofar as they throw light on the arrest, on the subsequent search of the defendant’s room, and on the nature of the articles found there, cannot justify the admission of the affidavit upon which the search warrant was issued. It expressly sets forth that the police had information that defendant was' selling and using

sufficient objection in the trial court. [Citations.]” (People v . Cockrell (1965) 63 Cal.2d 659 , 667 [ 47 Cal.Rptr. 788 , 408 P.2d 116 ]. See also, People v. Talley (1967) 65 Cal.2d 830 , 837-838 [ 56 Cal.Rptr. 492 , 423 P.2d 564 ]; People v. Ibarra (1963) 60 Cal.2d 460 , 462-463 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ]; People v. Davis (1968) 265 Cal.App.2d 341 , 345-346 [ 71 Cal.Rptr. 242 ]; People v. Graves (1968) 263 Cal.App.2d 719 , 730-731 [ 70 Cal.Rptr. 509 ] [modified in other particulars]; People v. DeLeon, supra, 260 Cal.App.2d 143 , 149-150; People v. Pineda (1967) 253 Cal.App.2d 443 , 465 [ 62 Cal.Rptr. 144 ]; People v. Fritz (1967) 253 Cal.App.2d 7 , 14 [ 61 Cal.Rptr. 247 ]; People v. Garrison (1966) 246 Cal.App.2d 343 , 350 [ 54 Cal.Rptr. 731 ]; People v. Carter (1961) 192 Cal.App.2d 648 , 661 [ 13 Cal.Rptr. 541 ]; and People v. Jackson, supra, 164 Cal.App.2d 772 , 774-775. Cf. Estate of Fraysher (1956) 47 Cal.2d 131 , 135 [ 301 P.2d 848 ].) It is only necessary to discuss the foregoing, and other evidence of questionable nature which was admitted without objection, because of the light it throws on defendant’s claim discussed below, that he was not adequately represented by his trial counsel. (See People v. Ibarra, supra, 60 Cal.2d at pp. 464-466; People v. Pineda, supra, 253 Cal.App.2d 443 , 465-473; and People v. Garrison, supra, 246 Cal.App.2d at p. 356.)

. In People v. Albertson (1944) 23 Cal.2d 550 [145 R.2d 7], the majority opinion sets forth the rule concerning evidence of prior offenses as follows: ‘ The general rule, universally recognized, is that in a criminal prosecution the defendant can be tried for no other offense than that which he is charged in the indictment or information; evidence of collateral independent crimes is not admissible [citations]. The equally well recognized exceptions to this rule are clearly defined. Evidence of other crimes may be admitted when it tends directly to establish the crime charged by proving a material fact, where it is part of the res gestae, or where it helps to disclose motive, intent, premeditation, guilty knowledge, malice, or a common plan or scheme [citations]. The trial court, however, should be guided by the rule that such proof is to be received with ‘ extreme cau+ion.’ and if its connection with the crime charged is not clearly perceived, the doubt is to be resolved in favor of the accused, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt. [Citations.] ” (23 Cal.2d at pp. 576-577.) In Albertson the court concluded: “Circumstantial proof of a

crime charged cannot be intermingled with circumstantial proof of suspicious prior occurences in such manner that it reacts as a psychological factor with the result that the proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must also have committed the crime charged. This is but a vicious circle. Here the evidence of suspicious prior occurrences affords no substantial proof whatsoever connecting defendant in any way with the charge on which he was tried.” {Id., pp. 580-581.)

Defendant claims that evidence of the alleged sale on October 29, 1964, as set forth in the hearsay statements in the affidavit for the search warrant, Hilliard’s testimony of the activities he observed of defendant and the woman who apparently occupied the room with him on October 30th, his testimony of the activities he observed on November 5, 1964, and the evidence of defendant’s prior conviction were all admitted in violation of the foregoing rules. Here again he is faced with the failure to interpose an objection in the trial court. (See People v. Cockrell, supra, 63 Cal.2d 659 , 677, and other cases cited above.) Moreover, it appears that the activities observed on October 30, 1964, and the nature of the activities and reason for arrest of the woman who was arrested on November 5th, just prior to the time Hilliard found the contraband in the rain gutter, were elicited by defendant’s cross-examination. Nevertheless, the objection must be considered as it bears on the competency of trial counsel.

Where the defendant has admitted knowledge of the substance it is error to receive, over objection, evidence of a prior conviction or other offenses for the purpose of establishing such knowledge. (People v. Gregg (1968) 266 Cal.App.2d 389 , 390-396 [ 71 Cal.Rptr. 920 ]; People v. Gonzales (1968) 262 Cal.App.2d 286 , 288-291 [ 68 Cal.Rptr. 578 ]; People v. Spencer (1956) 140 Cal.App.2d 97 , 102-105 [ 294 P.2d 997 ]; and People v. Cabrellis (1967) 251 Cal.App.2d 681 , 685-688 [ 59 Cal.Rptr. 795 ].) On the other hand, in People v. Leyva (1960) 187 Cal.App.2d 249 [ 9 Cal.Rptr. 469 ], the court observed, “An essential ingredient of the offense with which the defendant was charged was his knowledge of the marijuana character of the article allegedly possessed by him. [Citation.] His plea of not guilty created an issue with

respect to this matter. Evidence of the defendant’s involvement in other similar crimes and other acts of a similar nature was admissible on the issue thus raised [citations], and was proof that he had knowledge that the substance in the containers found in the back yard at 269 South Allen Street was marijuana.” (187 Cal.App.2d at p. 254. See also People v. Soto (1966) 245 Cal.App.2d 401 , 405-407 [ 53 Cal.Rptr. 832 ]; People v. Sykes (1965) 238 Cal.App.2d 156 , 162 [ 47 Cal.Rptr. 596 ]; People v. Solis (1961) 193 Cal.App.2d 68 , 75-77 [ 13 Cal.Rptr. 813 ]; People v. Horn (1960) 187 Cal.App.2d 68 , 75-76 [ 9 Cal.Rptr. 578 ]; People v. Gonzales (1960) 186 Cal.App.2d 79 , 83 [ 8 Cal.Rptr. 704 ]; and People v. Rodriquez, supra, 151 Cal.App.2d 598 , 601.)

Evidence of defendant’s prior conviction of an offense involving marijuana may have been of questionable relevancy on the issue of his knowledge of the narcotic nature of the powder he allegedly took into his possession in this case. The evidence was properly received, however, on the express issue raised when defendant refused to answer whether he had or had not suffered a prior conviction. (See Pen. Code, § 1025.) Moreover, when the defendant testified, he subjected himself to impeachment by reference to this conviction. (Code Civ. Proc., former § 2051. See Evid. Code, § 788.)

The sale of heroin on October 29th, if established by competent evidence, would have been relevant and material on the issue of his knowledge of the nature of heroin when he took the package into his possession on November 6th.

The use of the rain gutter on October 30th for the purpose of concealing paraphernalia used for the administration of narcotics was only relevant insofar as it could be related to defendant. The fact that it was placed there by another occupant of a common room would not, of itself, be of any significance in establishing defendant’s guilt. It did, however, bear on defendant’s guilt when he himself was observed to pick a concealed object out of the same gutter.

The activities and arrest of the other woman on November 5th, and the reasons for that arrest, in the absence of any direct evidence to show that defendant was in some way connected with her use of narcotics, appears to fall within the type of suspicious activities condemned in Albertson. The significance of this evidence is discussed below in connection with the competency of counsel.

Defendant further contends that it was not only error to admit the search warrant in evidence, but that the

fruits of the warrant should have been suppressed. The heroin which the sergeant found in the rain gutter was not a product of the search warrant. (Defendant’s contention that “but for” the delay in executing the search warrant, the heroin never would have been found is discussed below.) The heroin which he is charged with possessing, being the residue left in the balloon in the cup in the rain gutter, never was found. His objection can only run, not to the physical objects, but to the testimony relating to the empty balloons and other items found in the motel room. No objection was interposed to the admission of this evidence except on the ground that the prosecution should produce the items themselves. Although material objects may be presented to the senses to prove the existence of a fact (Code Civ. Proc., former §§ 1823, 1827 and 1954; see Evid. Code, §140), it is not necessary that every physical object referred to in the testimony be produced. (People v. Henderson (1949) 34 Cal.2d 340 , 343 [ 209 P.2d 785 ]; People v. Lurie (1967) 257 Cal.App.2d 98 , 105 [ 64 Cal.Rptr. 637 ]; People v. Potter (1966) 240 Cal.App.2d 621 [ 49 Cal.Rptr. 892 ]; People v. Anderson (1948) 87 Cal.App.2d 857 , 861 [ 197 P.2d 839 ].) If defendant questioned the witness’ veracity he could have inspected the objects and demanded or subpoenaed their production from the property clerk with whom the witness testified they were lodged. There being no objection on the ground of illegal search and seizure, defendant is barred from making that objection on appeal by the principles first set forth. Again the questioned competency of counsel necessitates further inquiry.

If it be assumed that the search warrant was, a week after its issuance, no longer effective as the basis for a legal search of the premises described (see Cave v. Superior Court (1968) 267 Cal.App.2d 517 , 519-524 [ 73 Cal.Rptr. 167 ] [hearing in S.Ct. denied Jan. 22, 1969], and discussion infra), the question remains whether the officers were justified in conducting the search as an incident to the arrest of the defendant for an offense which they had observed him commit. The fact that at the time of the arrest, the arresting officers, and at the time of trial, the prosecutor, the attorney for the defendant and the judge all acted under the misapprehension, if it be such, that the search warrant was valid for 10 days, should not give the defendant an immunity from a search which he would not have enjoyed, if there had been no warrant. No protection from a violation of constitutional principles, or necessity for chastising officers for acts performed in

good faith, albeit against future announced policy, requires such an absurd result.

The People now assert: “Applicable constitutional provisions prohibit only unreasonable searches and seizures. [Citations.] In each instance where the legality of a search and seizure is under inquiry, the primary question is whether it is reasonable. [Citation.] As in the instant ease, the issue is raised most frequently where the search was conducted without a warrant. A search which is made as an incident to a lawful arrest, based on reasonable cause to believe that the person arrested has committed a felony, is a lawful search even though made without a warrant [citations] ...” (People v. Hammond (1960) 54 Cal.2d 846 , 853 [ 9 Cal.Rptr. 233 , 357 P.2d 289 ]. See also People v. Daily (1958) 157 Cal.App.2d 649 , 653 [ 321 P.2d 469 ].) They are confronted with the rule enunciated in People v. Cruz (1964) 61 Cal.2d 861 [ 40 Cal.Rptr. 841 , 395 P.2d 889 ], “that a search is not ‘incidental to an arrest’ unless it is limited to the premises where the arrest is made; is contemporaneous therewith; has a definite object; and is reasonable in scope.” (61 Cal.2d at p. 866. See also People v. Marshall (1968) 69 Cal.2d 51 , 60 [ 69 Cal.Rptr. 585 , 442 P.2d 665 ] [as modified]; and People v. Henry (1967) 65 Cal.2d 842 , 845-846 [ 56 Cal.Rptr. 485 , 423 P.2d 557 ].) Their reliance on People v. Daily, supra, is misplaced. That ease, in authorizing a search some distance from the place of arrest, is predicated upon the mobility of motor vehicles. (See People v. Fritz, supra, 253 Cal.App.2d 7 , 14-16.) If the activities observed had all transpired without the defendant entering his room, the arrest at the parked automobile would not have warranted a return to search that room.

In both Cruz and Henry, supra, the defendant was first observed and arrested on the street, and then taken to the premises. In this ease the defendant was observed to go into his room under circumstances which indicated, and which were by the jury found to indicate, that he had removed and taken into his possession, and apparently into his room, the heroin which previously had been in the rain gutter. The arrest followed as soon as practical after he emerged from his room. Under these circumstances it was proper to return and search the room. In People v. Pompei (1968) 267 Cal.App.2d 581 [ 73 Cal.Rptr. 163 ], Cruz and Henry were distinguished, and after reviewing other cases, the court concluded, ‘ ‘ In each of these cases, the defendant was arrested in the common entrance or areaway of a multiple unit dwelling and the

subsequent search of the particular portion of the locked premises under the control of the defendant held to be incidental to the arrest. Similarly here, the fact that respondent was at the moment of arrest outside the four walls of his apartment does not, by itself, preclude the search of the apartment (People v. Marquez, 259 Cal.App.2d 593 , 601 [ 66 Cal.Rptr. 615 ]). We conclude that under the circumstances here shown, the search was incidental to the arrest, was limited to the premises where the arrest was made, was contemporaneous therewith and reasonable in scope (People v. Cruz, supra, p. 866).” (267 Cal.App.2d at pp. 586-587. See also People v. Cockrell, supra, 63 Cal.2d 659 , 667; and People v. Adame, supra, 250 Cal.App.2d 380 , 384-385.)

The prosecution offered no evidence of any statements made by the defendant, or of any reaction by him to any accusation. Cross-examination of Sergeant Hilliard revealed that he talked to the defendant after his arrest; that he could not remember what remarks he addressed to the defendant; and that the defendant said he would rather not say anything until he consulted his attorney. Cross-examination of the arresting officer elicited that the defendant said nothing when he was placed under arrest and was advised of his legal rights; that at the room the officer asked him if he was “holding”, i.e., whether he had any narcotics, and defendant answered in the negative; that on the way downtown he had a general conversation with the defendant, which he did not think referred to the case; that in the interview room he did not request a statement, but asked the defendant if he had seen the articles from the apartment or the cup before, and received a negative response; that the defendant acknowledged he had not observed the arresting officer in the room where he had been secreted to conduct the surveillance; and that defendant said nothing when asked if he flushed away the narcotics.

On direct examination the defendant testified that he was not asked any questions while the officers were searching his room; that the conversation with the officer on the way downtown related to the fluorescent light (which the defendant testified had been used at his room) ; that at the police department the arresting officer asked him if he wanted to make a statement; that he was not told and did not know for what charge he was under arrest or under investigation, and told the officer he did not know what happened; that he did not

give that officer or any other officer a statement; and that the arresting officer addressed no other remarks to him.

It was only after the foregoing evidence had been elicited that the prosecution interrogated defendant concerning his statements. Under cross-examination the defendant denied that the arresting officer ever asked him if he was “holding.” He reiterated this denial on redirect. The prosecutor also brought out again that the defendant, in response to the arresting officer’s inquiry, told him that he had no statement to make.

Defendant seeks the shelter of the principle that since an adverse inference may not be drawn from an accused’s silence, evidence of an accusatory statement and the accused’s silence, or lack of explanation, is not admissible. (People v. Ridley (1965) 63 Cal.2d 671 , 676 [ 47 Cal.Rptr. 796 , 408 P.2d 124 ]; People v. Cockrell, supra, 63 Cal.2d 659 , 669-670; People v. Maldonado (1966) 240 Cal.App.2d 812 , 816-817 [ 50 Cal.Rptr. 45 ]; and see People v. Haston (1968) 69 Cal.2d 233 , 254-257 [ 70 Cal.Rptr. 419 , 444 P.2d 91 ].) Here again he is barred by the fact that the evidence of which he now complains was elicited on his behalf, and was received without objection, insofar as it was confirmed by the prosecutor’s questioning.

Finally, defendant attacks the evidence which shows that on the day following his arrest he refused a Nalli’ne test. This evidence was relevant to show defendant’s knowledge of the nature of narcotics. The test might have thrown some light on the use of the powder in the balloon, although the officers who observed the defendant did not consider him under the influence of narcotics after his' arrest. (See People v. Davis (1964) 231 Cal.App.2d 180 , 185 [ 41 Cal.Rptr. 617 ].) In People v. Zavala (1966) 239 Cal.App.2d 732 [ 49 Cal.Rptr. 129 ], this court recognized that the California courts are committed to the view that the privilege against self-incrimination is limited to testimonial compulsion, and that the privilege does not encompass the use of evidence which is obtained by means of subjecting the defendant to tests or a physical examination. (239 Cal.App.2d at pp. 738-739. See also People v. Sudduth (1966) 65 Cal.2d 543 , 546 [ 55 Cal.Rptr. 393 , 421 P.2d 401 ]; and People v. Ellis (1966) 65 Cal.2d 529 , 533 [ 55 Cal.Rptr. 385 , 421 P.2d 393 ].) Since there is no constitutional right to refuse a test or examination, the refusal to cooperate may generally be used as conduct indicating consciousness of guilt, and to

here, the evidence attacked related to new and different offenses from those set forth in the affidavit. In Cave, however, the evidence was obtained as the result of the execution of the warrant. In this case the evidence, with the exception of such corroborating evidence as was seized after the arrest, was secured as the result of the observations of the officers, and was located outside, not within, the premises which were authorized to be searched by the warrant. In Cave the court concluded that "a peace officer may [not] delay the execution of a search warrant in which immediate search is directed for a period of seven days, for the purpose of apprehending additional evidence, including evidence of crimes not yet committed when the warrant was issued, within the described premises.” (267 Cal.App.2d at p. 519, italics added.) Although the opinion suggests that prompt execution will be of benefit to the victims of crime (in this case presumably other purchasers or users) and that it will prevent further criminality (here further possession, use or sale), it does not go so far as to state that the penalty for failure to execute the

warrant promptly will give the accused carte blanche to commit such offenses as he desires in the interim. It may be assumed that if, as in this case, independent evidence is available to prove the crime in question, the accused could not claim immunity on the grounds that “but for" the delay in the service of the search warrant he would not have committed the new offense. To extend Cave to this extreme would render the search warrant a pair of handcuffs stifling the investigator’s legitimate activities, and would discourage the use of search warrants.

In People v. Gorg, supra, in another context, the following appears: “In this proceeding we are not concerned with enforcing defendant’s rights under the law of trespass and landlord and tenant, but with discouraging unreasonable activity on the part of law enforcement officers. ‘A criminal prosecution is more than a game in which the Government may be checkmated and .the game lost merely because its officers have not played according to rule.’ (Mr. Justice Stone in McGuire v. United States, 273 U.S. 95 , 99 [ 71 L.Ed. 556 , 558, 47 S.Ct. 259 ]) . . ." (45 Cal.2d at p. 783.) To paraphrase the rest of the statement it may be said here that when the officers have acted in good faith in gathering evidence of a new offense, the evidence so obtained cannot be excluded merely because the officers may have made a reasonable mistake as to the time within which a search warrant for an earlier offense could be served.

Cave was decided after this case was briefed. At oral argument counsel were invited to submit additional memoranda upon the applicability of Cave. In addition to the question of whether the evidence of the charged crime was extrinsic to or dependent on the search warrant, and the question of the validity of the search attendant to the arrest, which have both been reviewed above, the parties discussed the question of the failure to make an objection on the grounds announced in Cave, and the question of whether Cave, if applicable, should be applied prospectively or retroactively. It is unnecessary to determine these issues in view of the conclusion that the evidence adduced here was secured without the blight that marked the evidence which was suppressed in Cave.

Adequacy of Counsel

So far as appears from the record the defendant had counsel of his own selection at the preliminary examination. After the information was filed, the court granted that

attorney’s motion to withdraw, and new counsel, also apparently selected by defendant, was substituted.

As in People v. Ibarra, supra, 60 Cal.2d 460 , “Defendant contends that the failure of his counsel to object demonstrates a lack of knowledge of the law that establishes a denial of his constitutional right to 'effective aid in the preparation and trial of the case.’ (Powell v. State of Alabama, 287 U.S. 45 , 71 [ 77 L.Ed. 158 , 171-172, 53 S.Ct. 55 , 84 A.L.R. 527 , 541])” (60 Cal.2d at p. 464.) There the court noted, “To justify relief on this ground, 'an extreme case must be disclosed.’ [Citations.] It must appear that counsel’s lack of diligence or competence reduced the trial to a 'farce or a sham.’ (People v. Wein, 50 Cal.2d 383 , 410 [ 326 P.2d 457 ]; People v. Robillard, 55 Cal.2d 88 , 96-98 [ 10 Cal.Rptr. 167 , 358 P.2d 295 ]; People v. Hughes, 57 Cal.2d 89 , 99 [ 17 Cal.Rptr. 617 , 367 P.2d 33 ].) It is counsel’s duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled. [Citations.]” (Id. See also People v. Reeves (1966) 64 Cal.2d 766 , 774 [ 51 Cal.Rptr. 691 , 415 P.2d 35 ]; In re Beaty (1966) 64 Cal.2d 760 , 764 [ 51 Cal.Rptr. 521 , 414 P.2d 817 ]; People v. Brooks (1966) 64 Cal.2d 130 , 139 [ 48 Cal.Rptr. 879 , 410 P.2d 383 ]; People v. Hughes (1961) 57 Cal.2d 89 , 99 [ 17 Cal.Rptr. 617 , 367 P.2d 33 ]; People v. Ferguson (1967) 255 Cal.App.2d 493 , 496 [ 63 Cal.Rptr. 93 ]; and People v. Pineda, supra, 253 Cal.App.2d 443 , 467.)

Defendant’s bill of particulars of the shortcomings of his counsel not only includes the failure to interpose an objection to any of the evidence which has been reviewed above, and the failure to legally attack the delay in the service of the search warrant, but also specifies the following: the failure to have defendant admit his prior conviction out of the presence of the jury; the failure to question the proceedings under which the search warrant was issued by a motion to suppress evidence ; the failure to adequately cross-examine the arresting officer to bring out his bias, and to demonstrate that the articles seized were not related to the contraband that defendant was accused of possessing; the failure to adequately cross-examine the criminologist; the inadequacy of the attorney’s opening statement; his allegedly pointless and damaging examination of the defendant; and his alleged failure to adequately argue the defendant’s defense to the jury.

In examining these contentions it is important to

No grounds have been suggested on which either the attorney employed at the preliminary hearing, or the trial attorney should have attacked the issuance of the search warrant. The 'discussion of the evidence set forth above indicates that an objection based on the more recently developed theory that the delay in executing the warrant invalidates a search and seizure under color of- the warrant, would have been ineffective to pi-event the admission of the reference to the articles found in defendant’s room. (See People v. Pineda, supra, 253 Cal.App.2d at pp. 465-473, and cases collected, for a general discussion of the juxtaposition of a claim that there has been an illegal search and seizure, and a claim that there has been ineffective representation by counsel who failed to make timely objection.) Moreover, in this case the apparent strategy was to use the delay in executing the warrant as evidence that the officers were attempting to fabricate a ease against defendant. Finally, it should be noted that defendant also wanted to show that he and his room had been thoroughly searched without discovery of the heroin. In establishing this fact he had to take the risk that the jury would find the articles discovered were incriminating. On this issue again one is surprised to find that the prosecutor made no mention of the articles actually found in the room. By the same token it may be inferred that trial counsel was well advised not to cross-examine the arresting officer further in relation to those articles, and in not arranging to have them produced.

The governing considerations concerning a failure to object to evidence are set forth in People v. Garrison, supra, as follows: “The failure of counsel to object at the trial does not ordinarily indicate either incompetence of counsel or unfairness to the client. The system of objections is a useful tool in the hands of a trained professional for the exclusion of matter which should not be received into evidence. But the indiscriminate use of objections, solely because they are available, aids neither the client nor the cause of justice. The

retired without taking the exhibits with them. It was stipulated by counsel that such exhibits as the jury might request, with certain exceptions not relevant here, could be sent to the jury room without further order. The record fails to show such a request, and reflects no communication from the jury from the time it retired until it returned to the courtroom with a verdict. On this record it is impossible to conclude that the jurors ever heard about the allegations made concerning the defendant’s illegal acts prior to October 30th.

The criticism of counsel’s statement and argument to the jury, and his failure to further cross-examine certain witnesses is unwarranted. (See People v. Hughes, supra, 57 Cal.2d at pp. 99-100; and People v. Ferguson, supra, 255 Cal.App.2d at p. 495.) Defendant’s attorney did not spin the skein of events in which the accused was entangled, he had to do the best he could with the evidence which existed. There is certainly no assurance that further cross-examination of the arresting officer would show bias. Counsel could well deem it better to have the uncontradicted testimony of the defendant on that score. Further cross-examination of the criminologist might have made his testimony more, not less, certain.

There remains for consideration the alleged “purposelessness” of the direct examination of the defendant. It is indeed strange to find that he did not deny knowledge, or the taking of, any object from the rain gutter on direct examination. This denial was elicited on cross-examination. On direct examination, the defendant admitted that he had suffered the prior conviction; that he had known the arresting officer a long time; that he had been the subject of prior investigations and arrests, that he was conversant with the terminology used by those engaged in the narcotic traffic; that he had not given

any statement when requested to do so; and that he had refused a Nalline test. His counsel also brought out the incriminating events observed by the sergeant on October 30th, and more damaging particulars concerning the arrest of the woman on November 5th. The ostensible incriminating nature of the facts so adduced is found, when those facts are viewed with defendant’s explanations, to yield to the paramount purpose of establishing that the testimony presented by the officers should be considered suspect because of their efforts, otherwise unsuccessful, to make a ease against him.

Defendant’s trial was not a farce or sham. Even with hindsight, no suggestion has been made as to how defendant could avoid the evidence against him on which the prosecution rested its ease (see fn. 11, supra). He received adequate, imaginative and competent representation from his trial counsel. The trier of fact accepted the testimony of the officers and rejected his denials and explanations. He is entitled to no more.

Defendant also contends that he was denied his constitutional right to counsel when the sergeant, having focused suspicion on the defendant for engaging in prohibited narcotic activity, replaced the heroin in the rain gutter with the intention of securing an admission by conduct, that the substance was the defendant’s. (See People v. Dorado (1965) 62 Cal.2d 338 , 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ].) This preposterous suggestion overlooks the fact that the officers had no assurance' that any particular person would retrieve the remaining contraband from the rain gutter, and fails to consider that the right to counsel only arises when the accused is taken into custody. (See People v. Bowman (1966) 240 Cal.App.2d 358 , 371-373 [ 49 Cal.Rptr. 772 ].)

Instructions

Complaint is made that the court instructed the jury with respect to the conduct prohibited by section 11500 of the Health and Safety Code, by using the generic term “narcotic” instead of referring to heroin. Since there was no evidence to show that the defendant might be guilty of the possession of any narcotic substance other than heroin, no ' error- can be predicated on the reading of the instructions in general terms. The jury were told that heroin was a narcotic.

Failure to Certify for Addiction Commitment

Following the return of the verdicts finding defend

in making its preliminary determination as to whether the defendant is addicted to narcotics or in imminent danger thereof and hence requires the institution of commitment proceedings, nor any specific criteria which the court must consider in so ruling. But the discretion thereby vested in the court should be exercised with á view to implementing] rather than possibly frustrating, the strong legislative policy disclosed by the enactments creating and governing the' narcotic addict rehabilitation program. That policy, responsive to the current medico-social approach to the issue of drug addiction (see In re De La O (1963) 59 Cal.2d 128 , 140-141 [6], 143 [8], 144-145 [10], 148 [12]-149 [13] [ 28 Cal.Rptr. 489 , 378 P.2d 793 ]), favors inquiry into the' addictive status of all criminal defendants whos’e record indicates the presence of an addiction problem. ” (61 Cal.2d at pp. 254-255. See also People v. Jolke (1966) 242 Cal.App.2d 132 , 143 [ 51 Cal.Rptr. 171 ] ; and People v. Pineda, 238 Cal.App.2d 466 , 472 [ 47 Cal. Rptr. 879 ].)

A case will be remanded in order to permit the sentencing court to exercise its discretion to determine whether narcotic addict rehabilitation program proceedings should be instituted when the record reveals that the court erred in-determining that the defendant was ineligible for that pro-gram. (People v. Ortiz, supra, 61 Cal.2d 249 , 252-253 and 255-256; People v. Ibarra, supra, 60 Cal.2d 460 , 466-467; People v. Wallace (1963) 59 Cal.2d 548 , 551-553 [ 30 Cal.Rptr. 449 , 381 P.2d 185 ]; People v. Murgia (1967) 254 Cal.App.2d 386 , 391-394 [ 62 Cal.Rptr. 131 ]); or when it appears that the court erred in determining the extent of the defendant’s criminality (People v. Pineda, supra, 238 Cal.App.2d 466 , 473). On the other hand, when the sentencing court has exercised its discretion, and the record fails to show any abuse of that discretion, its determination that the defendant is not a fit subject for commitment to the program, will not be set aside. (In re Nunez (1965) 63 Cal.2d 234 , 235-236 [ 42 Cal.Rptr. 6 , 397 P.2d 998 ]; People v. Jolke, supra, 242 Cal.App.2d 132 , 143; People v. Williams (1965) 235 Cal.App.2d 389 , 403 [ 45 Cal.Rptr. 427 ]; People v. Zapata (1963) 220 Cal.App.2d 903 , 911-912 [ 34 Cal.Rptr. 171 ]; and see People v. Wallace, supra, 59 Cal.2d 548 , 553.)

In this case the record shows that the court read and considered the probation report. It has not been made part of the record, nor has any request been made for an additional record. (See Cal. Rules of Court, rule 33 (a) and

(b).) It cannot be assumed that the report reveals facts which would show that the court abused its discretion. The transcript of the sentencing proceedings reveals that the judge corrected an inaccuracy which indicated that defendant’s pending charge was accompanied by seven rather than one prior conviction. The only facts in the record tending to show addiction are the prior conviction for possession of marijuana, and the defendant’s admission, apparently contained in the probation report, that he used marijuana, heroin and methadrine crystals. His testimony reflected that he had been hounded by the police for several years because of suspected narcotic activity. His release on five prior occasions, on some of which he took and passed Nalline tests, suggests that his activities were more in the field of furnishing and selling narcotics than in connection with his personal addiction. No error has been demonstrated in sentencing the defendant to state prison.

The judgment is affirmed.

Molinari, P. J., and Elkington, J., concurred.

A petition for a rehearing was denied April 17, 1969, and appellant’s petition for a hearing by the Supreme Court was denied May 21,1969.