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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Rodriguez GARAVITO, Defendant and Appellant.

Cr. 10543.

Decided: March 31, 1966

Ralph F. Bagley, under appointment by District Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Leslie F. Bell, Deputy Atty. Gen., for plaintiff and respondent.

Defendant appeals from the judgment entered following a nonjury trial which resulted in his conviction of possessing heroin in violation of section 11500 of the Health and Safety Code. Appellant does not challenge the sufficiency of the evidence. His assignments of error are: (1) that incriminating evidence used against him was obtained by means of an illegal search and seizure; and (2) that the receipt in evidence of his confession violated the rule enunciated in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

The claim of illegal search and seizure is unmeritorious. Officer Villahermosa, a Los Angeles County Deputy Sheriff, assigned to the Detective Division, Narcotic Detail, testified that he had been advised on several occasions by an informant and by the informant's wife that men had been seen entering and leaving a certain residence in a fashion that indicated to the informant and to the officer that the residence was being used as a place where narcotics were being sold and administered. The officer verified this information by means of personal observations.

On July 16, 1964, Officer Villahermosa and a fellow officer walked up to the front door of the residence, which was open, and knocked on the locked screen door. Another officer had stationed himself on a walk outside the fence surrounding the rear of the house where he could observe the rear door and the kitchen area of the residence. A woman responded to Officer Villahermosa's knock and the officer inquired inquired if Bobby Garcia1 was there. She answered that he was not and asked the officer's name. He replied that he was Villahermosa.

During this conversation, both the officers at the front of the residence and the officer at the rear were able to observe two males within the house. Appellant, who was in the kitchen, continued to wash dishes and the other man, subsequently identified as Santiago Ramirez, remained seated on a couch. However, when the woman asked Officer Villahermosa ‘Who are you?’ and he replied, ‘We're from the Sheriff's Narcotics,’ both men suddenly sprang into action and headed towards the rear door.

Officer Burkett, who was stationed at the rear of the building, then entered the rear yard to cut off their escape. He stopped them both about six feet outside the door and seized Ramirez who was in the lead. Both men had objects in their hands. Ramirez said, ‘O.K., you've got me’ and dropped his package. When he was asked what was in the package, he replied, ‘Stuff,’ which in the parlance of narcotic users meant heroin.

When appellant and Ramirez were halted by Officer Burkett, appellant turned and retreated back into the house carrying a crumpled white object in his hand. The third officer had run to the rear of the house from the frout as soon as he observed the two men flee towards the rear. Officer Burkett turned Ramirez over to him and pursued appellant into the house. He found appellant straightening up from a leaning position over a baby's crib. He no longer had the white object in his hand. Officer Burkett placed appellant under arrest. After Officer Villahermosa, who had remained on the front porch, was admitted, the crib was searched and bindles of heroin and narcotic paraphernalia were found in in the baby's rubber diapers.

We regard it as beyond question that the evidence here presented fully warranted the officers' conduct in every particular. It was entirely sufficient to establish the legality of the search and seizure conducted herein. (People v. Morris, 211 Cal.App.2d 274, 27 Cal.Rptr. 129.)

However, we believe that appellant's confession thereafter obtained does fall within the proscription established in People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, so that its receipt into evidence constituted reversible error. Officer Burkett expressly testified that appellant was not advised of his constitutional rights. He further testified as follows:

‘Q. Mr. Feifer [Deputy District Attorney]: Were these items [found upon the baby] immediately shown to the defendant? A. Yes. He was standing right next to the crib with me. Q. Who was it that showed him these items? A. Deputy Villahermosa showed them to him. Q. All right. And was there any response from the defendant upon being shown these items which were found in the baby's diaper? A. I asked him if they were his, and he stated, ‘no.’ * * * Q. Now, was there any further conversation? A. A few minutes later, yes. Q. How much longer; how much later? A. I don't recall. It would be within three or four minutes. * * *2

‘Q. Would you relate further conversation that you had with the defendant? A. Yes. I asked him two or three times if it was his. He finally stated, yes, that it was his. I asked him why he had hidden it in the baby diaper. He stated that he felt that that was a safe place to hide it. I asked him if there was any other narcotics in the house, that we were going to make a further search. He stated that there was no other narcotics. He further stated that he had purchased these narcotics in Los Angeles earlier that morning. At this time we proceeded and made a further search of the residence. * * *

‘Q. Now, were you present when any other items were found at the location? A. Yes. Q. Did you observe them found or were they shown to you afterward? A. I was shown them immediately after being found. Q. All right. Now, were these items shown to the defendant in your presence? A. Yes. Q. And what was it that was shown to the defendant? A. It was a rubber condom found in a child's jacket, hanging in the closet of the bedroom, where the baby's crib was. Q. All right. Was there any conversation with the defendant concerning this item? A. Yes. He was asked if it was his. Q. What was his response? * * * A. I believe at first he denied knowledge of it. Later he changed that to—he stated that it was his, or he had forgotten he had placed it in the child's jacket.’ (Emphasis added.)

It appears probable in view of the strength of the evidence aliunde the confession, that a retrial may result in another conviction. We feel it appropriate, therefore, to note that the trial court erred in denying appellant's request for a hearing to determine his eligibility for treatment as a narcotic addict as provided by sections 3051–3052 of the Welfare and Institutions Code (formerly section 6451–6452 of the Penal Code).

Since (1) no question existed that appellant was an addict; (2) he emphatically and repeatedly expressed his desire for treatment; (3) the probation officer and the ‘liaison officer’ of Department 95 recommended that he be given an examination by that department to determine his eligibility therefor; and (4) his record failed to reveal any ‘pattern of criminality’ of the type that would render him unfit as a matter of law (cf. section 3052, Welfare and Institutions Code), he should have been granted such a hearing despite the trial court's doubts as to the likelihood that the treatment program would be efficacious in benefiting appellant.

Although it is doubtful in the present context whether the trial court had any discretion to deny appellant the right to a qualifying hearing before the authorities administering the treatment program, such discretion as it may have had ‘should [have been] exercised with a view to implementing, rather than possibly frustrating, the strong legislative policy disclosed by the enactments creating and governing the narcotic addict rehabilitation program.’ (People v. Ortiz, 61 Cal.2d 249, 254–255, 37 Cal.Rptr. 891, 894, 391 P.2d 163, 167.)

The judgment is reversed.

In my view Garavito's statements to the police on the scene at the time of the raid were given during the investigatory phase of the case and properly admitted in evidence. (People v. Stewart, 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97; People v. Cotter, 63 A.C. 404, 46 Cal.Rptr. 622, 405 P.2d 862; People v. Jacobson, 63 A.C. 335, 46 Cal.Rptr. 515, 405 P.2d 555.)

The police, acting on information from informers and on their own observations of activities at a particular premises, made a raid at 9 p. m. on a house about whose occupants they had little specific knowledge. Three adults were on the premises. Garavito was seen running into the baby's bedroom and was apprehended near its crib. In the baby's clothes narcotics and narcotic paraphernalia were found, which after initial denials Garavito within three or four minutes admitted were his. More narcotics were found in a child's jacket in the closet of the same bedroom, and Garavito after an initial denial stated these too were his. Both admissions took place in the baby's bedroom within the first ten minutes of the raid.

With three people in the house about whose history the police knew nothing, it appears to me that the questioning on the scene was properly investigatory and authorized by the rule of People v. Stewart, 62 Cal.2d 571, 578–579, 43 Cal.Rptr. 201, 400 P.2d 97. The immediate sorting out of facts, evidence, participants, and bystanders during the actual occurrence and confusion of a raid serves an essential purpose for all parties concerned and in no real sense can be considered part of the accusatory stage. Under these circumstances the danger of coercive pressure attendant upon an accusatory questioning does not exist. In substance, these conversations were part of the res gestae of the arrest and properly admissible in evidence.

The only other point in the case was Garavito's argument at his trial that his admissions had been made under duress because of Officer Burkett's declaration in the bedroom that everyone in the house would have to go to jail. This contention was unsupported by any testimony from the defendant that he did in fact act under duress, but nevertheless was considered by an experienced trial judge, a former public defender, who found that there had been neither duress nor coercion. There was substantial evidence to support his finding, and we should not disturb it on appeal. (People v. Jones, 221 Cal.App.2d 37, 40, 34 Cal.Rptr. 267.)

I would affirm the conviction.


1.  This was the name ascribed to the male occupant by the information received by the officers.

2.  Officer Burkett testified that during this period he had stated that everyone in the house would be taken to jail. While we do not believe that the mere statement of intent to do that which under the circumstances the officers were legally entitled to do, and out of consideration for the minor children involved perhaps should have done irrespective of appellant's confession, necessarily would render appellant's subsequent confession involuntary in the orthodox sense, such fact does have a bearing upon the applicability of the Dorado rule. (People v. Stewart, 62 Cal.2d 571, 579, 43 Cal.Rptr. 201, 400 P.2d 97.)

HERNDON, Justice.

ROTH, P. J., concurs.

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