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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mario DeSANTIAGO, Defendant and Appellant.

Cr. 12629.

Decided: January 15, 1968

* Daniel L. Dintzer, Los Angeles, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Thomas Kerrigan, Deputy Atty. Gen., for respondent.

Mario DeSantiago appeals the denial of his motion for a new trial after his conviction for possession of heroin for sale (Health & Safety Code, § 11500.5) and his commitment to the state hospital at Corona for treatment as an addict. Such an appeal is authorized by section 1237 of the Penal Code.

On 10 February 1966 Deputy Sheriff Trujillo and other officers met Henry Estrada, a reliable informant, near DeSantiago's apartment. Estrada had earlier informed Officer Trujillo that he had purchased narcotics from DeSantiago on two occasions. After searching Estrada and giving him marked money, the officers saw him enter the driveway which led to appellant's apartment and return five minutes later with heroin, which he said he had bought from DeSantiago. The officers waited an hour for DeSantiago to come out, and then broke open the door to his apartment. Inside, DeSantiago was arrested, and heroin, narcotic paraphernalia, and the marked money furnished Estrada were found in his possession.

Appellant was charged with possession of narcotics for sale and with the sale of narcotics, and was convicted of the former charge.

Reasonable Cause for Arrest: Immediately prior to the arrest, the police had given a reliable informant marked money, had seen him enter appellant's driveway and return five minutes later with heroin, and had heard him say appellant had sold him heroin. The police had committed a felony and to arrest him. (People v. Diggs, 161 Cal.App.2d 167, 326 P.2d 194.)

Effective Representation by Counsel: Appellant contends his conviction should be set aside because of ineffectual representation by counsel at his trial. He complains of the manner in which his counsel attacked the testimony of Deputy Trujillo, given outside the presence of the jury, about a conversation with an unidentified informant on 27 January. Defense counsel waited until cross-examination to object to this testimony, at which point he did so vigorously and succeeded in getting the evidence suppressed. A favorable ruling secured by counsel provides a poor platform to launch a complaint about lack of effective representation. Appellant's other complaints against his counsel were that counsel failed to call the landlord as a witness and declined to follow appellant's wishes in the selection of jurors. The rele vance of the testimony of the landlord was not shown, and appellant's objection to the composition of the jury became moot after he subsequently elected to be tried by the court. We find no merit in the claim of inadequate representation, and People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, is inapplicable.

Appointment of Other Counsel: Because of his dissatisfaction with the public defender appellant demanded that the trial court appoint private counsel to represent him. Appellant presented nothing to support his demand other than his stated conviction that he would do better with other counsel. In the absence of some specific showing of inadequacy, misconduct, or neglect, a trial court is not obliged to indulge a defendant's irrational request for new counsel when competent counsel has already been provided at public expense.

Failure to Demand Entry: Finally, we consider the effect on this case of the ruling in People v. Gastelo, 67 A.C. 596, 63 Cap.Rptr, 10, 432 P.2d 706, in which the Supreme Court held that a warrant to search an apartment from which 30 sales of narcotics had been made during the previous 45 days could not be executed without a prior demand for admittance and explanation of the purpose of the entry, even though the object of the search was to find easily-disposable contraband. Since in the present case neither demand for admittance nor explanation of the purpose of the entry was given, we must determine whether the entry violated Penal Code, section 844 (‘* * * a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired’), or whether one of the recognized exceptions to the statute validated the entry and the resulting seizure of evidence.

We find it significant in Gastelo that the Supreme Court did not disavow its earlier rule of People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, followed in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, which declared that the prevention of destruction of evidence is an exigent circumstance which may excuse a demand for entry in specific cases and justify non-compliance with the notice requirements of Penal Code, section 844. Rather, the thwack of the Gastelo opinion appears aimed at the argument of the Attorney General that forcible entry without demand can be justified by ‘a blanket rule based on the type of crime or evidence involved.’ (67 A.C. at 598, 63 Cal.Rptr. at 12, 432 P.2d at 708.) The court declared ‘No such basis exists for nullifying the statute in all narcotics cases * * *’ (italics added), and then went on to say that the police must ‘have some particular reason to enter in the manner chosen.’ (67 A.C. at 599, 63 Cal.Rptr. at 12, 432 P.2d at 708; italics added.) As we read the case, prevention of destruction of evidence continues to be and exigent circumstance which may excuse compliance with the demand requirements of Penal Code, section 844, when specific facts reasonably suggest to the officers that such destruction is likely. In Gastelo no specific facts were offered to justify a forcible entry without compliance with the notice requirements of the statute. There, the information of the police about the presence of narcotics on the premises was two-and-a-half to three days old, the police were not involved with the active commission of a crime, nor were they seeking to arrest a particular suspect for a specific offense. Here, by contrast, the officers were nearby during the active commission of a felony, they knew that demonstrative proof of that crime, the marked money used to purchase the narcotics, was on the premises, and they had acquired reliable contemporaneous information that narcotics were currently inside the apartment. These circumstances were sufficient to support a good-faith demand was necessary to prevent destruction of suspected contraband and to preserve specific evidence of the felony which had just taken place. We hold that the officers had sufficient particular reason to enter in the manner they chose. (People v. Maddox, 46 Cal.2d 301, 306–307, 294 P.2d 6.)

Did the delay of an hour between the time of the sale and the forcible entry by the officers remove the element of contemporaneousness from the transaction? In this particular case the officers delayed forcing an entry in the hope the suspect would come out and make it unnecessary to break down the door. We think a temporary delay for a limited period in an attempt to avoid destruction of property does not dissipate the element of contemporaneousness or detract from the force of circumstances which justify forcible entry without demand.

The denial of the motion for a new trial is affirmed.

FLEMING, Associate Justice.

ROTH, P. J., and HERNDON, J., concur.