Reset A A Font size: Print

District Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Oscar Casio AGUILAR, Defendant and Appellant.

Cr. 8593.

Decided: October 23, 1963

Geo. V. Denny, III, Beverly Hills, for defendant and appellant.*

In an information filed by the district attorney of Los Angeles County, defendant appellant Oscar Aguilar and codefendant James Aguilar were charged with the possession of heroin in violation of section 11500 of the Health and Safety Code. They were also charged with three prior felony convictions. Each entered a plea of not guilty and denied the prior convictions. Trial was by the court. Each defendant and all counsel waived trial by jury. Defendant Oscar Aguilar was found guilty and two of the prior felonies alleged were found to be true. Codefendant James C. Aguilar was found not guilty. A probation report was ordered. Defendant's motion for a new trial was denied. Probation was denied and defendant was sentenced to the state prison for the term prescribed by law, which sentence was ordered ‘to run concurrently with any time owing on parole.’

Defendant appeals from the judgment of conviction.

The evidence showed that on April 30, 1962, Sergeant Wesley of the narcotics division of the Los Angeles Police Department was advised in a written memorandum given him by Lieutenant Kennedy of the narcotics division that defendant was wanted for a parole violation; that defendant and codefendant James Aguilar were registered in Room 32 of the Stillwell Motel, 2600 Ramona Boulevard. The memorandum, in reference to codefendant, contained the word ‘hype’ and the notation, ‘wanted, one traffic warrant.’ Sergeant Wesley went to the records and identification division of the police department to verify this information and to obtain photographs of defendant and codefendant. The officer saw a teletype indicating a ‘want’ of defendant for a parole violation.

Sergeant Wesley then went with his partner Sergeant Virgin, to the Stillwell Motel. They talked to the manager who informed them that defendant and codefendant had registered in Room 32 at approximately 4:00 p. m. While Sergeant Wesley was talking to the manager, he observed what appeared to be defendant and codefendant in an automobile, driving down the driveway of the motel, heading in the direction of the street. He ran toward their car with service revolver drawn, shouting ‘Police officers—halt!’ The driver stopped the car. The officer recognized defendant and codefendant from the photographs he had obtained. He asked if they had any narcotics in the car, and they replied ‘No.’ They were then directed to get out of the car and the officers further inquired if they were using narcotics, to which they replied ‘No’. Both sergeants observed what appeared to be hypodermic marks on the arms of defendant and codefendant which Sergeant Virgin described as ‘scabs, both fresh and old.’

Defendant and codefendant were then placed under arrest and both defendants and their vehicle were searched. A key was removed from the pocket of one of the defendants. Sergeant Wesley testified ‘I removed the key, but I don't remember which defendant had it * * * I believe it was James Aguilar, but I am not certain.’ The key was to their motel room. The officers proceeded to the room and conducted a search. Two brown paper-wrapped packages which contained hypodermic needles, spoons and eye droppers were found underneath a bed. Upon the officers' discovery of these packages, defendant stated, ‘There is nothing in there but an outfit.’ In a conversation with Sergeant Virgin, defendant stated that he was ‘hot’ (meaning addicted to narcotics); that he had done well for a year on the Naline program, but that he had met a fellow who ‘turned him on again.’ He had been using narcotics for more than one month ‘real heavy.’ He related that he was ‘running’ from his parole officer, and that he and codefendant had moved into the motel that day.

William King, a forensic chemist, testified that he examined ‘debris' found on each of the two spoons discovered in defendant's motel room, and in his opinion the debris contained heroin.

Defendant concedes his arrest was lawful. He also concedes that the officers had the right, as an incident to the arrest, to search his person, the vehicle in which he was riding, and his motel room. It is contended, however, that the officers did not have the right to search his brother. Defendant argues that the trial court, in dismissing the charges against his brother, impliedly found that the search of his brother was unlawful. Defendant maintains that since the officers used a key to gain admittance to the motel room (which key, defendant asserts, was found by the officers on the person of his brother after an unlawful search), the search of the room was illegal and the evidence obtained therefrom was inadmissible under the exclusionary rule as stated in People v. Martin, 45 Cal.2d 755, 290 P.2d 855.

The foundation upon which defendant's contention is based, namely, that his brother was illegally arrested and searched, and that the trial court so held, is totally without merit. The only finding made by the trial court with respect to the codefendant was that he was ‘not guilty.’ Defendant points to certain remarks made by the trial judge as indicating the judge based this finding on the fact he thought defendant's brother had been illegally arrested and searched. Such statements of the trial court, however, do not constitute a finding. As was said in People v. Lindsey, 90 Cal.App.2d 558, 564, 203 P.2d 572, 575: ‘The remarks of a trial judge made in the course of deciding a case whether written or oral are of no concern on appeal.’ (See also People v. Hudson, 97 Cal.App.2d 572, 577, 218 P.2d 60.)

The evidence indicates that the arrest and search of each defendant was legal, and that the search of the motel room was incidental to the arrests.

As the search was made without a warrant, it was necessary for the prosecution to show that the officers had probable cause. ‘Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citation.]’ (Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250, 254; People v. Dickenson, 210 Cal.App.2d 127, 132, 26 Cal.Rptr. 601.)

‘In considering the question of reasonable or probable cause for action by the police, the court looks to the facts and circumstances presented to the officer at the time he was required to act. [Citations.]’ (People v. Jackson, 164 Cal.App.2d 759, 761–762, 331 P.2d 63, 64–65.)

In the instant case the arresting officers had probable cause to arrest and search both defendants. They had the benefit of the written memorandum from their superior officer, information that defendant was wanted for parole and traffic violations and that codefendant was a narcotic addict; they observed what appeared to be fresh needle marks on the arms of both defendants which one of the officers testified that, as an expert in the detection of narcotic users, he determined were hypodermic needle marks. Both defendants appeared to this officer to be using narcotics heavily at that time. We conclude that under the circumstances the officers were entirely reasonable in their belief that the men they had apprehended had each committed a felony, thus justifying their arrest. Since the arrests of defendant and codefendant were lawful, the search of their persons, the automobile under their control and of their motel room, was legal. As stated in People v. Lawrence, 149 Cal.App.2d 435, 445, 308 P.2d 821, 827: ‘[I]n making a search incidental to a lawful arrest an officer is not restricted to the area immediately surrounding the location of the defendant at the time he is arrested. The law contemplates a reasonable search of the vicinity.’ While defendant and codefendant were not arrested in the motel room which they were occupying, but in the driveway outside (still on the premises of the motel), the officers were reasonable in making a search of the room as incidental to the arrest. (People v. Cisneros, 166 Cal.App.2d 100, 102, 332 P.2d 376.)

Defendant maintains the People's evidence was insufficient as a matter of law to convict him of unlawful possession of heroin, because the amount of heroin found was infinitesimal, and because certain statements made by defendant at the time of his arrest displayed his lack of knowledge of the presence of any heroin in or on the seized narcotics paraphernalia.

‘The cases hold that the statute [§ 11500 Health & Caf.Code] does not require the possession of any specific quantity of narcotics. [Citations.]’ (People v. Anderson, 199 Cal.App.2d 510, 520–521, 18 Cal.Rptr. 793, 799.)

In People v. Marich, 201 Cal.App.2d 462, 19 Cal.Rptr. 909, a conviction for unlawful possession was based on expert testimony that the residue found on a piece of cotton, and in the folds of a piece of paper (folded in a manner indicating it was used as a container for heroin), was heroin. And, in People v. Salas, 17 Cal.App.2d 75, 61 P.2d 771, an expert testified that the residue found on a spoon contained heroin. The defendant contended, as does defendant in the instant case, that the quantity of morphine found was insufficient in amount to support a finding of possession. The court however stated, that the statute prohibiting unlawful possession of morphine provided (17 Cal.App.2d p. 78, 61 P.2d p. 772): ‘* * * it is unlawful to possess any morphine and no quantity is specified in order to bring one under the provisions of this act.’ The court stated that whether the amount found was sufficient to support the charge, was a question of fact, properly left to the trier of fact. Here, defendant argues that because he said to the arresting officers, ‘There is nothing in there but an outfit,’ this negatives any knowledge on his part that a narcotic was in the room. We do not agree. The fact defendant made such a statement would not preclude the trier of fact from finding that defendant possessed the narcotic with knowledge, as knowledge may be inferred from all the surrounding facts and circumstances. (People v. Flories, 162 Cal.App.2d 222, 224, 327 P.2d 932.) In the case before us, the surrounding facts and circumstances justified a fair and reasonable inference that defendant had knowledge of the presence of heroin in the ‘outfits' found underneath his bed.

The judgment is affirmed.


BURKE, P. J., and KINGSLEY, J., concur.