People v. Green

that on February 14, 1979, she had been robbed while purchasing heroin at defendant’s apartment. Hetland was known to the officers as a heroin addict. Buckhout also learned from Hetland that on April 24, 1979, she had purchased heroin from someone named “Buddy” on the same premises. On April 24, 1979, informant one identified the seller of the heroin at that address as “Buddy.” Informant two told Buckhout that he had seen quarter-spoons of heroin packaged in balloons at defendant’s residence. Informant three told Buckhout that he had not purchased heroin from defendant, but had been told by informant two that the latter had obtained heroin from “Buddy and Marge,” who lived near 26th Street and whose telephone number was 286-4362.

Buckhout also listened to a recorded statement made by informant four on May 1, 1979, to Officer Rose. In that conversation, informant four stated that he had purchased heroin at defendant’s apartment on April 27, 1979, and that “Buddy” kept most of the heroin in a storage maintenance room located on the same side and floor as “Buddy’s” apartment. Buddy, as the manager, had sole control over the access to the storage room.

The police previously had not received information from informants two, three or four. After informant one had been arrested for being under the influence of heroin, he gave the above information to the police. Because of criminal charges pending against informants three and four, both provided Buckhout with defendant’s and Marge Miyashi’s address, namely, 1298 Tripp, No. 9, and telephone number 286-4362. Neither informant two or three, however, was promised anything as to the disposition of his respective case in exchange for the information.

At the suppression hearing, Officer Lewis Smith testified that about 7 p.m. on May 2, he and six additional officers executed the search warrant at defendant’s apartment. As Rose and Smith approached apartment No. 9, they observed three parties, including defendant, standing outside the apartment.^[1] When the officers announced their authority and purpose, one party, the nonappealing codefendant Combs, attempted to flee but was chased and detained. Defendant invited the officers into the apartment, saying “Go on in, I have nothing to hide.”

Upon entry, the officers handcuffed and pat-searched defendant; they found a set of keys attached to his belt and over $700 in cash.

While the other officers searched the apartment, Smith attempted to find the manager’s storeroom. A male resident of the apartment complex pointed out a door with no markings. After first complying with “knock-notice” requirements, Smith entered the storeroom with a key from defendant’s key ring, and searched the storeroom. There, Smith discovered 28 bindles of heroin, heroin paraphernalia, and a business card stating: “Kimberly Apartments, 1298 Tripp Avenue, San Jose, Manager, Carl & Marge Green.” Sergeant Hunter testified that during the search of apartment No. 9, the officers found additional narcotics paraphernalia,^[2] a handgun in the bedroom apparently occupied by defendant and his wife, and $7,000 in cash.

Initially, we turn to defendant’s contentions pertaining to the search warrant. On appeal, defendant first urges that the affidavit was legally insufficient to support the issuance of the search warrant as it did not meet both requirements of the two-pronged test of Aguilar v. Texas, supra, 378 U.S. 108 . In People v. Schulle (1975) 51 Cal.App.3d 809 , 813 [ 124 Cal.Rptr. 585 ], this court (Div. One) reiterated these requirements as follows: ‘“[1] Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, [citation] the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and ^[2] some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [citation] was “credible” or his information “reliable” (Aguilar v. Texas, supra, 378 U. S. 108 , 114. ..; Skelton v. Superior Court, supra, 1 Cal.3d 144 , 152 [ 81 Cal.Rptr. 613 , 460 P.2d 485 ].)’”

Defendant maintains that the information reflected in the affidavit came from several untested, unreliable informants without the necessary corroboration to constitutionally support the issuance of the search warrant for his apartment and the storeroom.

We summarize the applicable rules as follows: “[I]n order for corroboration to be adequate, it must pertain to defendant’s alleged

As for the alleged failure of the officers to establish probable cause to search the separate and detached storeroom, the description in a search warrant must be sufficiently definite that the officer conducting the search “can with reasonable effort ascertain and identify the place intended” (Steele v. United States, No. 1 (1925) 267 U.S. 498 , 503 [ 69 L.Ed. 757 , 760, 45 S.Ct. 414 ]; People v. Dumas (1973) 9 Cal.3d 871 , 880 [ 109 Cal.Rptr. 304 , 512 P.2d 1208 ]). Nothing should be left to the discretion of the officer (Marron v. United States (1927) 275 U.S. 192 , 196 [ 72 L.Ed. 231 , 237, 48 S.Ct. 74 ]).

The instant warrant authorized the search of apartment No. 9, the manager’s apartment, and “all storage areas designated for Unit #9.” Although the storeroom was unmarked, in People v. Estrada (1965) 234 Cal.App.2d 136 [ 44 Cal.Rptr. 165 , 11 A.L.R.3d 1307 ], this court (Div. One) noted at page 149: “It seems to us that the officers executing the warrant could, as they apparently did, without confusion or excessive effort, identify the part of the premises to be searched.”

Here, while the door of the storeroom was unmarked, an uninvolved tenant pointed it out in response to the officer’s inquiry about the location of the manager’s storeroom. The tenant’s response constituted a sufficient identification without excessive effort or confusion. Furthermore, the description of the location of the storage area in the affidavit provided by informant four,^[3] the warrant’s description of the authorized area, coupled with the tenant’s identification of the manager’s storeroom, and the successful use of the key seized from defendant, vitiated any reasonable possibility that any other tenant’s rights of privacy would be abrogated and also negated any inference of an exploratory search on the part of the officers.

Defendant next complains of the trial court’s denial of the motion to disclose the identities of the informants as they were “material” witnesses on the issue of guilt or innocence.

Our Supreme Court has set forth the standard which, if met, discharges the defendant’s burden. The defendant shows the existence of the necessary elements when, based upon some evidence (Price v. Superior Court (1970) 1 Cal.3d 836 , 843 [ 83 Cal.Rptr. 369 , 463 P.2d 721 ]), “defendant demonstrates a reasonable possibility that the anon

in the storeroom almost a week later. Thus, defendant has not made the required showing that the failure to disclose the identity of any of the four unidentified informants resulted in the denial of a fair trial.

Finally, defendant urges that the trial court committed reversible error by permitting the prosecution to prove his prior burglary conviction to the jury, despite his admission of that prior in a pretrial hearing. Defendant relies on the reasoning of People v. Sherren (1979) 89 Cal.App.3d 752 [ 152 Cal.Rptr. 828 ]. In Sherren, the court held that the defendant’s admission of a prior felony conviction precluded the prosecution from proving the conviction to the jury as an element of Penal Code section 12021.

The record indicates that at a pretrial hearing out of the presence of the jury, defendant admitted that he had suffered prior convictions of burglary and petty theft with a prior felony conviction.^[4] The court ruled that the prosecution could prove the prior burglary as part of its case in chief. As a result, the jury was apprised that defendant had a prior conviction of burglary. The court below relied on People v. Black (1979) 96 Cal.App.3d 846 [ 158 Cal.Rptr. 449 ], also decided by this court (Div. Four), which criticized Sherren, supra, and held (at p. 854) that the prosecution was entitled to prove the existence of a prior and that a defendant may not preclude its admission into evidence by stipulation.

Subsequently, in People v. Hall (1980) 28 Cal.3d 143 [ 167 Cal.Rptr. 844 , 616 P.2d 826 ], our Supreme Court affirmed the reasoning of Sherren. Thus, the prosecution is required to accept the defendant’s stipulation that he suffered a prior felony conviction which is an element of the charged offense, and thereby is precluded from presenting evidence of the conviction to the jury. In Hall, our Supreme Court further stressed that only relevant evidence is admissible, i.e., that which tends to prove a disputed fact in issue. Here, defendant concedes that Hall resolved the issue of whether an admission (as was the case here) has the same effect as a stipulation, in rendering uncontroverted an element of the case. Hall, at page 152 clearly indicated that the two terms are synonymous in meaning and effect, as follows: “Thus, if a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence

of other crimes to prove that element to the jury.... [If] There is one narrow exception to this rule of exclusion. If the facts to which the defendant has offered to stipulate retain some probative value, then evidence of such facts may be introduced. For example, if evidence remains relevant to an issue not covered by the stipulation or admission, the evidence is admissible on the remaining issue” (italics added).

Although in light of the above the proof of the prior burglary in the presence of the jury was error pursuant to Hall, supra, we focus on the impact of the erroneously admitted prior burglary on the jury, and the prejudicial effect, if any. The presence of the weapon in defendant’s bedroom stands uncontradicted. Thus, in view of the overwhelming evidence of defendant’s guilt of the weapons possession charge in the instant case, we (as did the court in Hall), conclude that there was no reasonable probability that the jury was so prejudiced by the admission of the prior burglary as to require reversal (People v. Watson (1956) 46 Cal.2d 818 [ 299 P.2d 243 ]).

Although we, therefore, do not need to reach the question of the retroactive application of Hall, supra, that was the only issue addressed by defendant at oral argument. Accordingly, we are constrained to discuss it briefly. At oral argument, defendant (relying on People v. Mutch (1971) 4 Cal.3d 389 , 394-395 [ 93 Cal.Rptr. 721 , 482 P.2d 633 ], and People v. Heredia (1971) 20 Cal.App.3d 194 , 199 [ 97 Cal.Rptr. 488 ]) urged that since in Hall, supra, at pages 154-156, our Supreme Court was persuaded by the reasoning of this court (Div. Three) in People v. Sherren, supra, 89 Cal.App.3d 752 , 759^[5] that Hall was foreshadowed by a prior decision and it automatically applies to his case, regardless of the considerations appropriate to retroactivity. We, however, agree with the People’s argument that Hall, supra, enunciated new law. Sherren, supra, was the only case that foreshadowed Hall. The number of cases disapproved by the court in Hall, footnote 8 at page 156, indicate that the rule enunciated was a new one. Therefore, we apply the three criteria used by the federal and California courts: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” (Stovall v. Denno (1967) 388 U.S. 293 , 297 [ 18 L.Ed.2d 1199 , 1203, 87 S.Ct. 1967 ]; People v. Hitch (1974) 12