Reset A A Font size: Print

Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse CRESSEY, Sr., Defendant and Appellant.

Cr. 15989.

Decided: August 12, 1969

Richard H. Levin, Los Angeles, for appellant, by appointment of the Court of Appeal, and Jesse Cressey, Sr., in pro per. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lola M. McAlpin, Deputy Atty. Gen., for respondent.

Cressey and one phillips were jointly charged by an amended information with possession of marijuana (Health & Saf.Code, § 11530), it being further alleged that each defendant violated section 11556 of the same code by being present in an apartment where such narcotic with his knowledge was being unlawfully used. The matter having been submitted on the transcript of the preliminary hearing, the court acquitted Phillips but found Cressey guilty of possession. His motion for a new trial having been denied, the court thereupon, pursuant to section 1181, subd. 6, Penal Code, reduced the offense to a violation of section 11556, a lesser and included offense. The appeal is from the judgment (order granting probation).

On the evening of March 1, 1968, Officer Lewis went to the residence involved for the purpose of effecting Cressey's arrest under a warrant previously issued on the complaint of his wife charging willful failure to support their minor child. (Pen.Code, § 270.) When Lewis knocked on the door, appellant came to the viewport and identified himself in response to the officer's inquiry. Told by lewis that he had a warrant for his arrest for the offense above stated, defendant refused to open the door.

The officer then forced entrance into the apartment, described as a ‘single’—combination living room, bedroom and kitchen. He immediately observed Phillips seated on a couch in front of the coffee table obout 10 to 15 feet from the front door; on top of the table was an automatic pistol. As Lewis proceeded to remove the weapon from Phillps' reach, he noticed a smoldering pipe next to the pistol. An opened white envelope was also observed next to the pipe; visible within the envelope were a green leafy substance and seeds resembling marijuana. Lewis testified that he had made about 300 marijuana arrests during his service as an officer; based on such experience, he placed Phillips and defendant (who remained standing by the front door) under arrest for possession. More marijuana in a cigarette case and a plastic bag was later found in a chest of drawers.

It was stipulated that a forensic chemist, if sworn, would have testified that a chemical analysis of the various items found in the envelope and cigarette case contained marijuana, thus confirming Lewis' firsthand opinion. A motion to suppress (Pen.Code, § 1538.5) having been denied, the above physical evidence was received in evidence.

It is contended that section 11556, Health and Safety Code, is unconstitutional, appellant asserting that mere presence and knowledge are not in themselves sufficient to warrant conviction of a crime. A second assignment of error is to the effect that the warrant for defendant's arrest was illegal, thus invalidating such arrest and rendering inadmissible the evidence obtained in the subsequent search. The latter of the above two assignments will be discussed first.

Citing People v. Mills, 251 Cal.App.2d 420, 59 Cal.Rptr. 489; Call v. Superior ther of a minor child, to-wit: JEMA,' born on April 7, 1965. Continuing, and using language found in section 270, said Jesse Cressey ‘[D]id at the time and place last aforesaid, wilfully and unlawfully and without lawful excuse omit to furnish necessary food, clothing, shelter, medical attendance and other remedial care for said child.’ Since the above averments are not on information and belief, respondent properly points out that holding (1), supra, in Sesslin is not applicable; respondent says nothing, however, by way of reply to appellant's additional contention that the complaint contains allegations in the conclusional language determined to be deficient in holding (2), supra, of the Sesslin decision.

In reaching this latter determination (Holding (2) [People v. Sesslin, 68 Cal.2d 418, 67 Cal.Rptr. 409, 439 P.2d 321]), reference was made to Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, where ‘the United States Supreme Court held that a complaint which merely stated the affiant's conclusions couched in the words of the statute [fn. 3 quoting the subject complaint] cannot support a valid arrest warrant.’ (P. 422, 67 Cal.Rptr. p. 412, 439 P.2d p. 324.) Quoted in support of the above analysis is the language used by Justice Harlan. Not only was such language held applicable to the Sesslin facts, but it also governs here: “* * * the complaint contains no offirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.' (Italics added.)” (P. 423, 67 Cal.Rptr. p. 412, 439 P.2d p. 324.) After reference to still other United States Supreme Court cases, further supporting the instant holding, there is this statement in a footnote (fn. 5. p. 425, 67 Cal.Rptr. p. 414, 439 P.2d p. 326): ‘The record contains no evidence that Officer Hargraves had probable cause to arrest defendant. We therefore need not reach the question whether there are circumstances under which an arrest made pursuant to an invalid warrant may nonetheless be legal. (Cf. People v. Chimel, 68 Cal.2d 436, 67 Cal.Rptr. 421, 439 P.2d 333.)’ It is this footnote (the matters contained therein) which makes Sesslin inapplicable to appellant's present claim in this proceeding.

While Chimel was later reversed on other grounds in Chimel v. California (June 23, 1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the validity of Chimel's arrest prior to the warrantless search of his house was not disturbed. After citing the above Supreme Court decision, as well as the earlier decision of the Court of Appeal, it was stated in Chimel v. California: ‘Both courts accepted the petitioner's contention that the arrest warrant was invalid because the supporting offidavit was set out in conclusory terms, but held that since the arresting officers had procured the warrant ‘in good faith,’ and since in any event they had had sufficient information to constitute probable cause for the petitioner's arrest, that arrest had been lawful. From this conclusion the appellate courts went on to hold that the search of the petitioner's home had been justified, despite the absence of a search warrant, on the ground that it had been incident to a valid arrest.' (395 U.S. at p. 754, 89 S.Ct. at p. 2035.)

In People v. Chimel, 68 Cal.2d 436, 67 Cal.Rptr. 421, 439 P.2d 333, the court pointed out that the legality of an arrest should not depend exclusively upon the validity of a warrant ‘since an arrest without a warrant may stand if based on probable cause. [Citations.]’ (P. 440, 67 Cal.Rptr. p. 423, 439 P.2d p. 325.) There, as well as here, ‘the prosecution sought to justify the arrest of defendant independently of the warrant, and the trial court found that ‘there was probable cause [based on] all the evidence relating to the information [Officer] Del Coma had at the time of the arrest.’ The defendant here, unlike the petitioner in Giordenello, therefore, obtained ample notice that the prosecution did not rest the justification for the arrest solely on the warrant.' (P. 441, 67 Cal.Rptr. p. 424, 439 P.2d p, 326.) The above applies to the issue here. Defendant was arrested for possession of marijuana, not for a violation of the offense set forth in the complaint and warrant; such arrest, as shown above, occurred after the officer had observed the contraband in plain view. The grounds for the nonwarrant arrest were established at the trial by evidence introduced there for that purpose; too, during the hearing on the motion to suppress, the validity of the warrantless arrest on Sesslin grounds was neither raised nor explored—indeed Sesslin was not once cited during the entire proceedings. Furthermore, it is in no wise intimated that there was any bad faith in the procurement of the warrant or in its subsequent service. In summary, the following from People v. Chimel fits the facts at bar: ‘If [Officer Lewis] had been proceeding without a warrant in arresting defendant, the arrest would have been lawful. To invalidate the arrest here solely because the arresting officer first obtained a warrant supported by a constitutionally insufficient complaint would not further the policies of the Fourth Amendment but would subvert its preference for arrests and searches conducted pursuant to warrants.’ (P. 442, 67 Cal.Rptr. p. 425, 439 P.2d p. 327.)

As it pertains to the admissibility of the items seized, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, must again be mentioned since it was decided during the pendency of this appeal. While it is there held that a warrantless search under the facts there presented cannot be justified as incident to a lawful arrest, the court nevertheless determined that there is ‘ample justification * * * for a search of the arrestee's person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' (395 U.S. p. 763, 89 S.Ct. p. 2040.) Continuing, ‘There is no comparable justification, however, for routinely searching rooms other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.’ (395 U.S. p. 763, 89 S.Ct. p. 2040.) Defendant was standing from 10 to 15 feet from the contraband which was plainly visible in an opened envelope. In our opinion, it was accordingly within his ‘immediate control’ as that phrase is construed in Chimel, supra. Additionally, it has been held by another division of this court that Chimel is not retroactive in scope (People v. Castillo (July 1, 1969), Cal.App., 80 Cal.Rptr. 211); with such determination we agree. The contents of the envelope were properly received in evidence. in evidence.

There is no merit to the only remaining assignment of error which challenges the constitutionality of section 11556, Health and Safety Code. Appellant concedes that the statute has withstood the constitutional attack of vagueness. (People v. Brim, 257 Cal.App.2d 839, 65 Cal.Rptr. 265.) He also recognizes that this court in People v. Lee, 260 Cal.App.2d 836, 67 Cal.Rptr. 709, rejected the claim of constitutional infirmity because of the asserted absence in the statute of any provision regarding criminal intent; as there pointed out, the law in question having been successfully attacked for failure to so provide, ‘In 1957 the Legislature, in order to overcome the objections regarding unconstitutionality, amended the section by adding the words ‘with knowledge that such activity is occurring.’' (P. 842, 67 Cal.Rptr. p. 713.) No hearing in the Supreme Court having been sought in Lee, appellant asserts that the constitutionality of the subject statute is ‘still an open question in California.’ In that connection the claim is made that section 11556 creates an arbitrary classification, violates due process and denies him the equal protection of the law. It is additionally argued that the statute is violative of the freedom of association guaranteed by the First Amendment: ‘The state should have no right to punish association with a person committing a criminal act, unless such association is for the purpose of aiding him in committing it.’ Cited for this latter proposition is People v. Villa, 156 Cal.App.2d 128, 318 P.2d 828, and other decisions to the effect that mere knowledge or belief that a crime is being committed, or likely to be committed, coupled with the failure to take steps to prevent its commission, does not constitute participation in the offense within contemplation of law. But these cases involved ‘aiding and abetting.’ not narcotic violations.

As stated by us in Lee, ‘It is apparent that said section 11556 was enacted as an aid in eliminating or controlling traffic in narcotics.’ (P. 841, 67 Cal.Rptr. p. 712.) While not involving the specific statute here under consideration, it was appropriately observed in People v. Shephard, 169 Cal.App.2d 283, 288, 337 P.2d 214, 216, that ‘Anything which gives sustenance, solace, comfort or encouragement in the selling of narcotics or in the agreeing to sell narcotics, can be condemned, and properly so, by the legislature.’

In light of the above overriding considerations, no valid objection under the due process clause to a legislative enactment clause may be interposed ‘if it is reasonably related to promoting the public health, safety, comfort, and welfare, and if the means adopted to accomplish that promotion are reasonably appropriate to the purpose.’ (Higgins v. City of Santa Monica, 62 Cal.2d 24, 30, 41 Cal.Rptr. 9, 13, 396 P.2d 41, 45.) The same is true of the equal protection argument, the principle being settled that the Legislature is vested with wide discretion in making the classification and that its decision as to what is a sufficient distinction to warrant the classification will not be overthrown unless it is palpably arbitrary and beyond rational doubt erroneous. (Sacramento Municipal Utility Dist. v. Pacific Gas & Electric Co., 20 Cal.2d 684, 692, 128 P.2d 529.)

Finally, it has been held that statutory interference with private conduct consisting of the possession of drugs determined by the Legislature to be dangerous to their users or the public is not unconstitutional. (People v. Aguiar, 257 Cal.App.2d 597, 606, 65 Cal.Rptr. 171.) The above answers the ‘guilt by association’ argument in view of the fact that the trial court found appellant guilty in the first instance of possession, later reducing the finding to a violation of section 11556. Defendant did not testify that his presence on the premises was wholly without guile; he did not testify at all. In effect, therefore, his argument is a hypothetical one which, as it involves constitutional questions, should not be countenanced. (In re Durand, 6 Cal.App.2d 69, 70, 44 P.2d 367.)

The judgment is affirmed.

LILLIE, Associate Justice.

WOOD, P. J., and THOMPSON, J., concur.