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District Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer TAHTINEN, Defendant and Appellant.*

Cr. 5707.

Decided: April 19, 1957

Elmer Tahtinen, in pro. per., for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

Elmer Tahtinen was accused by information of a violation of section 11500 of the Health and Safety Code, in that he willfully, unlawfully and feloniously had in his possession a preparation of heroin. It was also alleged that he had suffered two previous convictions, to-wit: A misdemeanor violation of section 11500 of the Health and Safety Code and a felony violation of the federal narcotics laws. Defendant pleaded not guilty and admitted the priors. Trial was to a jury which failed to agree and was discharged. Defendant then waived trial by jury and the case was tried to the court. The evidence consisted of that received at the preliminary hearing and additional evidence introduced at the trial. The court found Tahtinen guilty and found the prior convictions to be true. Probation was denied and defendant was sentenced to state prison for the term prescribed by law. He appeals from the judgment.

Appellant requested the appointment of an attorney to represent him on the appeal. At the request of the court the record was examined by a member of the Los Angeles Bar Association Committee on Criminal Appeals and a report was made to the court that the record did not disclose error and that there were no points to be raised on appeal which would justify the filing of a brief. Appellant was duly notified. He has filed a comprehensive brief. The court has made an independent examination of the record and has discovered no error in the trial.

There was evidence of the following facts. Edward Vega and Rudolph Berteaux are Los Angeles County sheriff's deputies assigned to the narcotics detail. At about 7 p. m. on November 8, 1955, Berteaux and Vega went to the vicinity of the home of Joe Hernandes at 112 East 111th Street in reliance upon statements of three addicts, whom they had previously arrested on separate occasions, that they had purchased narcotics from Hernandes at that address.

As the officers drove past the Hernandes residence they saw defendant sitting in a 1941 Buick automobile which was parked across the street. They knew that Hernandes did not drive a Buick and that defendant was not Hernandes. The officers drove around the block and when they returned defendant's car was no longer there. The officers continued to patrol the area and observed Tahtinen travelling south on Main Street; he made a left turn on 111th Street, parked on the south side of the street, made a U-turn and then parked on the north side, across the street from and in front of the Hernandes house. Defendant remained in his car for about half an hour and then walked towards the house. He disappeared up an alley which ran alongside the house and was used by Hernandes as a driveway. After ten or fifteen minutes defendant returned to his car, drove to the corner of Main Street and 111th, turned right on Main and proceeded north to 110th Street, turned right on 110th and drove east to San Pedro Street, turned right on San Pedro and proceeded south to 111th Place, drove along 111th Place and parked just east of the end of the alley which he had formerly entered. He opened the car door on the passenger side, reached towards the ground at the base of a tree and appeared to pick up some object which the officers did not see. Defendant then drove away. The officers followed him as he proceeded west on 111th Place to Main Street, turned south on Main to Imperial, made a left turn on Imperial and proceeded east to San Pedro, turned right on San Pedro and drove south on San Pedro to El Segundo Boulevard, where the officers stopped him, identified themselves, and arrested him on suspicion of a narcotics offense. They had neither a search warrant nor a warrant for defendant's arrest. After Tahtinen was removed from his car, Officer Vega noticed two small packages on the floor near the driver's seat; these were proved to contain 38 capsules of heroin. Defendant was taken to a nearby gas station and searched. The officers found another heroin capsule in his pants pocket.

Defendant, testifying in his own behalf, stated that he parked near the Hernandes residence while waiting for a lady acquaintance to return to her home, that he went up the alley to find a screwdriver so as to repair some defective wiring on the dashboard of his car, that he talked with no one in the alley, and that he reached towards the ground to retrieve an apple which fell out of the car while he was opening the door.

The first assignment of error to be considered is that the court erred in receiving in evidence the heroin which was found on defendant's person and in his automobile. Defendant argues, in this connection, that he was arrested without reasonable or probable cause and that the heroin was obtained through an unlawful search and seizure. The argument is without merit. The question is whether the arrest was lawful. If it was valid, a subsequent reasonable search of defendant's person and the car under his immediate control was lawful and the evidence obtained thereby was not to be excluded. People v. Guy, 145 Cal.App.2d 481, 302 P.2d 657, and cases cited.

The information received from the three addicts entitled Officers Vega and Berteaux to place the Hernandes home under surveillance. People v. Moore, 141 Cal.App.2d 87, 296 P.2d 91. They were justified in arresting defendant without a warrant if circumstances existed which would cause them to entertain a reasonable belief that he was in possession of narcotics. Defendant's contention is that he was an innocent bystander and that his mere presence in the vicinity would not support an inference that he was there for the purpose of procuring drugs from Hernandes. But the officers did not arrest Tahtinen solely upon statements of the informers nor merely because he was near the house they had under observation. The actions of defendant indicated that he had gone to the Hernandes house and made arrangements to have a narcotic placed at the base of the tree. All his actions were suspicious, especially his picking something from the ground at the end of the alley. The information received from the addicts coupled with the officers' observations of defendant's furtive conduct established reasonable cause for the arrest. Since the arrest was valid and based on probable cause, a subsequent search of defendant and his car was also proper. People v. Boyles, 45 Cal.2d 652, 290 P.2d 535; People v. Coleman, 134 Cal.App.2d 594, 286 P.2d 582.

The next assignment of error is that defendant was denied his constitutional guarantee of a speedy trial. The information was filed on November 29, 1955; on December 21st, trial was set for January 26, 1956. On January 26th, the trial was continued on defendant's motion to February 10th, which was beyond the statutory 60-day period. Defendant argues that the court lost jurisdiction to try him after the expiration of the 60 days. The argument is without merit. The record discloses that on January 26th defendant personally waived his right to an earlier trial. Postponement of the trial beyond the 60 days upon his own application effected a waiver of his right to a trial within the statutory period. Pen.Code, § 1382, subd. 2; People v. Hayes, 3 Cal.App.2d 59, 39 P.2d 213; People v. Greene, 108 Cal.App.2d 136, 238 P.2d 616.

After several short continuances, the matter came to trial on February 20th. The jury having failed to reach a verdict, a mistrial was declared on February 21st. On February 24th trial was set for March 28th. At that time trial by jury was duly waived and it was stipulated that the case be submitted on the testimony taken at the preliminary, with a reservation of the right of the People and the defendant to introduce additional evidence. On that date ‘trial’ was again continued until April 20th, which was within the 60-day statutory period computed from the date of the mistrial. People v. Angelopoulos, 30 Cal.App.2d 538, 86 P.2d 873. On April 20th, at 3:50 p. m., the following proceedings took place:

‘The Court: People versus Elmer Tahtinen.

‘Mr. Jackson [Deputy District Attorney]: Your Honor, I think I have already indicated that the People are not ready to proceed at this time because a necessary witness is not here, officer Berteaux and Sergeant Vega, his fellow officer, is on vacation. I heard from officer Berteaux a short time ago, and it will be about forth minutes before he can make it, and I believe counsel would not have any objection to a continuance for one week.

‘The Defendant: Your Honor, may I say something? I thought I was entitled to a quick and speedy trial. I have been in jail for five months and twelve days already.

‘The Court: You have been in jail five months and twelve days. That is a long time. There is no question about it.

‘Mr. Jackson: Your Honor, if the defendant insists on going to trial here today, we can wait for the officer to be here.

‘The Court: How about continuing it until Monday at 1:30?

‘Mr. Brill [Deputy Public Defender]: I think that would be more satisfactory, your Honor.

‘Mr. Jackson: The only trouble with that, your Honor, I have a case pending in Department 11. I finished the evidence but we are to argue and instruct the jury on Monday, and I think I can be here at 1:30 Monday. If we don't finish instructing the jury, maybe I can have the judge recess until two o'clock or something like that.

‘The Court: How about Tuesday, 1:30?

‘Mr. Jackson: That will be fine with me.

‘The Court: No, Tuesday I can't be here.

‘Mr. Jackson: Leave it Monday, 1:30.

‘The Court: Will that be agreeable with you?

‘The Defendant: It will have to be, I guess.

‘The Court: All right. The matter will be continued until Monday at 1:30 then, and we will dispose of it at that time. Tell the officer he has to be here. If he isn't here, we will have to dismiss it, I guess.

‘Mr. Brill: I think the lack of interest on the part of the officer should be taken into consideration, your Honor.’

Trial was thereupon continued until April 23rd, which was beyond the 60-day period. Defendant argues that he did not voluntarily consent to the last continuance, that he did not waive his right to trial within the statutory period, and that the court was thereby divested of jurisdiction to try him after the expiration of 60 days following the mistrial. The argument cannot be maintained. Defendant was represented by the public defender who consented to the continuance. We have no doubt of an attorney's implied authority to bind his client by stipulations affecting the procedure of the trial. People v. Wilson, 78 Cal.App.2d 108, 119–120, 177 P.2d 567; 14 Cal.Jur.2d 395. Had it not been for the giving of consent to the continuance the trial would probably have commenced on April 20th. Although the point is not mentioned in the briefs it could be argued with good reason that the trial commenced on March 28th. It was understood by counsel and the court that the court was to read, as evidence, the testimony taken at the preliminary. On April 23rd at the commencement of proceedings the court announced that it had read the transcript. It was not offered in evidence in any formal manner at any time, but under the stipulation it was placed before the court to be read and considered as evidence, and the court was free to read and consider it then or later, at its convenience. It would seem that the stipulation was the equivalent of the introduction of evidence by the People, especially when the transcript was furnished to the court to be read before further proceedings were had.

A third assignment of error is the insufficiency of the evidence to support the conviction in that defendant was not identified by the officers as the man they were watching and following. A reading of the transcript leaves no doubt that defendant was the person described in their testimony.

Defendant has also presented numerous other assignments of error. He contends that he was improperly retried after the discharge of the jury without a rearraignment on the information; that since he had no opportunity to re-plead to the prior convictions, the court erroneously considered them in fixing sentence (see section 11712, Health and Safety Code); that a misdemeanor conviction under section 11500 of the Health and Safety Code does not count as a prior conviction; and that he was deprived of the assistance of counsel in that his attorney was not present when one of the continuances was granted. We have carefully examined these assignments and find them to be without merit.

At the trial defendant moved to strike the evidence of the officers on the ground there was no evidence of the reliability of the informers. The motion was properly denied. It cannot be contended that the names of the informants should have been disclosed by the officers. They were evidently prepared to name some of them but were not requested to do so.

The judgment is affirmed.

SHINN, Presiding Justice.

PARKER WOOD and VALLEÉ, JJ., concur.

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