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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fernando M. FLORES, Defendant and Appellant.

Cr. 12210.

Decided: December 22, 1967

Ronald S. Tucker, Glendale, under appointment by the Court of Appeal, for appellant. Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Roger E. Venturi, Deputy Atty. Gen., for respondent.

This is an appeal from a judgment of conviction of possession of heroin.

In an information filed in Los Angeles on July 22, 1965, Fernando M. Flores and Anita V. Falcon were charged with possession of heroin for sale on June 4, 1965. It was further charged that Flores had been convicted of a violation of section 11500, Health and Safety Code, on or about October 25, 1954, in Los Angeles and had served a prison term therefor and that he was again convicted of a violation of section 11500, Health and Safety Code, on or about December 2, 1958, in Los Angeles and had served a term in prison therefor. Defendants were found guilty as charged. The charged prior convictions were found to be true. At the time of the hearing of a motion for a new trial the court reduced the offense to that of simple possession of heroin and sentenced Flores to the state prison, the term to run concurrently with any other term to be served. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: On or before June 4, 1965, a search warrant was issued; this warrant described Flores, a 1961 Ford automobile and an apartment at 4994 Novgorod Street as the person, car and place to be searched. The warrant was issued for probable cause based upon the belief that Flores had in his possession heroin for sale. Two undisclosed informants had told officers that heroin could be obtained by telephoning the number CA 2–7266, talking to ‘Ferney’ or ‘Annie’ and making the arrangements to purchase heroin. The officers advised that the actual sales occurred behind a Market Basket store on Huntington Drive. The officers kept the apartment of Flores under surveillance for several days in order to check his movements and to verify the reports of the informants. On several occasions Flores was seen driving from his apartment, meet with persons behind the Market Basket store and then returning to his apartment. Flores was not seen stopping anywhere on these occasions, on his way to and from the store area. Furthermore, Flores had two prior narcotics convictions. On June 4, 1965, at about 7:30 p. m., Flores was detained in custody by Officer Burke and other officers of the Los Angeles Police Department near a drugstore on Huntington Drive in Los Angeles. Pursuant to the search warrant the officers searched Flores and the car which he was driving and discovered no contraband. The search did produce a key to Flores' apartment.

Officer Comacho of the department took the key, went to the apartment, activated the lock with the key and entered the apartment. Anita Falcon who resided with Flores was in the apartment. The officer produced the search warrant, gave her a copy of the same, and ascertained that Mrs. Falcon understood the nature of a search warrant. She was advised of her legal rights. The officer asked Mrs. Falcon if she would desire to reveal where the narcotice were kept—‘to save us some time and tell us where the narcotics were.’ She stated, ‘They are in that closet there,’ pointing to a small closet in the hallway between the bathroom and the living room. The officer went to the closet, found a paper sack which contained heroin. The officer inquired of Mrs. Falcon about ‘how much stuff was there’ and she replied, ‘I don't know, but there is quite a bit.’ She stated, ‘It's not mine.’ She further stated that she had lived there about three months with ‘Ferney.’ At about this time Flores was in the living room and was asked if he (Flores) wanted to say ‘anything about the stuff’ and he replied, ‘What stuff? I don't know anything about any stuff.’ Flores stated that he had lived in the apartment for about three months and that he had paid about one-half of the rent. Flores asked the officer ‘who was the rat’ (presumably referring to the informant) and was told that the name could not be disclosed. While Flores was being booked at the jail he said, ‘Tell your rat goodbye for me. You would never have gotten me if it hadn't been for him. Why don't you tell me who he is?’ The officers found four rent receipts and telephone receipts which established that Flores occupied the apartment.

Flores did not testify. Mrs. Falcon testified that the narcotics belonged to her and not to Flores. There is no merit to appellant's contentions.

Appellant states that at the preliminary hearing he asked for the identity of the informants upon the examination of the police witnesses. The record of the preliminary hearing is not before this court. There was no effort during the trial to secure the disclosure of the names of the informants. This court cannot consider matters outside of the record. (See Altman v. Poole, 151 Cal.App.2d 589, 593, 312 P.2d 6; Newman v. Board of Civil Service Com'rs, 140 Cal.App.2d 907, 912, 296 P.2d 41.)

In any event, the failure to seek disclosure at the trial or preliminary hearing prevents appellant from raising the problem for the first time on appeal. (See Coy v. Superior Court, 51 Cal.2d 471, 473, 334 P.2d 569; Priestly v. Superior Court, 50 Cal.2d 812, 819–820, 330 P.2d 39; People v. Gorg, 157 Cal.App.2d 515, 522, 321 P.2d 143; People v. Johnson, 157 Cal.App.2d 555, 559, 321 P.2d 35.)

Further, there was conducted in this case an independent investigation by the police which provided the real basis for the warrant. The informants merely pointed the finger of suspicion to Flores, and already known narcotics law violator. (See People v. Verrette, 224 Cal.App.2d 638, 641, 36 Cal.Rptr. 819; People v. Williams, 51 Cal,2d 355, 359, 333 P.2d 19, 22.) In Williams, supra, at page 359, 333 P.2d 19, it is said with reference to Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39 and People v. McShann, 50 Cal.2d 802, 330 P.2d 33, that: ‘* * * Those decisions in no way extend or proscribe either the privilege or the limitation to which it is subject; they hold that disclosure is to be made where, in connection with a claim of illegal search and seizure, there is no showing of reasonable cause, apart from the informer's communication [citation], or where, in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial [citations].’

Here the informants only set the wheels of the investigation into motion, they did not participate in nor did they witness any criminal act for which Flores was arrested. (See People v. Rodriguez, 204 Cal.App.2d 427, 431, 22 Cal.Rptr. 324.)

Appellant argues that the comment of Mrs. Falcon to the officers, ‘They are in that closet there’ implicated him and that under People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 it was error to permit the statement to be introduced into evidence. In Aranda the confession of one defendant directly implicated a codefendant, however, the court there held that if effective deletions were made whereby the codefendant's confession would contain only that portion which did not implicate the other codefendant, the confession would then be admissible.

In the case at hand the trial was without a jury and before a learned trial judge of many years' experience on the criminal trial bench. Such deletions as were necessary in this case were made. (See People v. Charles, 66 Cal.2d 330, ——,* 57 Cal.Rptr. 745, 425 P.2d 545; People v. Talley, 66 Cal.2d 830, ——,** 56 Cal.Rptr. 492, 423 P.2d 564; In re Hernandez, 64 Cal.2d 850, 851, 51 Cal.Rptr. 915, 415 P.2d 803.)

The statement of Mrs. Falcon merely indicates where the heroin was kept; there is nothing to the effect that it belonged to Flores or that he even knew where it was kept. Even if Flores was implicated in some way by the statement it was not prejudicial error, for it contributed inconsequentially to the conviction of Flores. (See People v. Charles, 66 Cal.2d 330, ——,*** 57 Cal.Rptr. 745, 425 P.2d 545) Mrs. Falcon testified at the trial that the heroin belonged to her.

The judgment is affirmed.


FOOTNOTE.  FN* Advance Report Citation: 66 A.C. 325, 333.

FOOTNOTE.  FN** Advance Report Citation: 66 A.C. 363, 374.

FOOTNOTE.  FN*** Advance Report Citation: 66 A.C. 325, 332.

FOURT, Associate Justice.

WOOD, P. J., and LILLIE, J., concur.

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