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

The PEOPLE, Plaintiff and Respondent, v. Abraham Torres GARCIA, Defendant and Appellant.

Cr. 11090.

Decided: June 13, 1966

Abraham Torres Garcia, in pro. per., and Alan F. Charles, Los Angeles, under appointment by District Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., David L. Kelly, Deputy Atty. Gen., for plaintiff and respondent.

The court found defendant guilty of charges that he was in possession of heroin for purpose of sale (Health & Saf.Code § 11500.5.), and in possession of marijuana (Health & Saf.Code § 11530). He appeals from the judgment.

On November 24, 1964, Officer Harold Ginder of the Los Angeles Police Department obtained a warrant to search for narcotics at Apartment No. 1, 1657 West 12th Street.1 Named as suspects in the warrant were Frank Reyna, Rose Reyna and Joe Gomez. The warrant was issued by a judge of the municipal court upon the petition of Officer Ginder, supported by his affidavit, which stated that his information was based, in part, on his communications with two reliable informants. At about 10:30 a. m., on November 25, 1964, Officer Ginder, armed with the warrant and accompanied by Officer Prouse and two other officers, went to Apartment No. 1, 1657 West 12th Street. Since the officer had received information that one of the suspects was carrying a gun, it was decided that they would force an entry without warning those inside the apartment.

When the police officers entered the apartment they observed three persons. Joe Gomez was seated in a chair by the door; defendant and a Mary Velasquez were lying on a mattress situated on the floor in the dining room. Defendant was dressed only in his undershorts. Pat Reynolds (otherwise known as Rose Reyna), and Frank Reyna, were later found in a bathroom. A search of the apartment was conducted. Under the mattress on which defendant was lying, four marijuana cigarettes were found. A partially burned marijuana cigarette was in an ashtray beside the mattress. Also under the same mattress, was a plastic bag containing thirteen balloons and another package which held eleven balloons. Each balloon contained a powdery substance subsequently analyzed as heroin. On a table in the dining room there were a number of loose balloons and rubber bands. A can of milk sugar was found in the kitchen. A box of gelatin capsules was in a dining room cupboard.

After finding the contraband the officers arrested everyone in the apartment. Officer Ginder then advised defendant and the others, that they were entitled to the assistance of counsel, that they had the right to remain silent and that anything they said could be used against them. They answered affirmatively when asked whether they understood these rights. In statements which followed, initially, all denied knowledge of the narcotics. However, when the officers had made a more thorough search of the apartment and were preparing to take them to jail, about an hour and a half later, defendant turned to Officer Prouse and asked ‘Are you going to take everyone?’ When the officer replied ‘Yes', defendant said, ‘well, all the narcotics belongs to me.’ When asked why he did not reveal this to the officers when they first asked him, defendant said that he did not know everyone would be taken to jail. Defendant also told the officers that he had been living in the apartment three or four days before his arrest. He then asked for and was refused permission for one last ‘fix’ before being taken to jail.

In defendant's testimony he denied that he told the officers the narcotics belonged to him; he was present in the apartment when the police arrived but he had only been there for about thirty minutes; he was not lying on the mattress when they came in but was sitting, fully dressed, in a chair; none of the narcotics were his; he had, however, taken a ‘fix’ about a half-hour before; the officers never advised him of his rights.

Defendant first contends that the court erred in refusing to require the prosecution to divulge the identity of the two informers who had allegedly communicated certain facts to the police officers which formed the basis for the issuance of the search warrant. These persons, defendant argues, were material witnesses on the issue of his guilt.

By a discovery motion made prior to trial, and by motion during the course of the trial, defendant sought the names of the two informers. Officer Ginder declined to reveal their identity, relying on the privilege of nondisclosure accorded him under California Code of Civil Procedure section 1881, subdivision 5, which provides: ‘A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.’ The privilege of nondisclosure, however, is not absolute.

Where an informant was a participant in the crime charged there is no privilege of nondisclosure. (People v. Perez, 62 Cal.2d 769, 773, 44 Cal.Rptr. 326, 401 P.2d 934; People v. Lawrence, 149 Cal.App.2d 435, 450, 308 P.2d 821.) And, while it is not necessary to disclose, in the affidavit supporting a warrant, the name of a non-participant informer (People v. Aguilar, 240 A.C.A. 538, 49 Cal.Rptr. 584), still, ‘There is general agreement that there is no privilege of nondisclosure if disclosure ‘is relevant and helpful to the defense of the accused, or essential to a fair determination of a cause * * *’ [Citations.]' (People v. McShann, 50 Cal.2d 802, 807–808, 330, P.2d 33, 36.)

The record in the instant case establishes that the two informants took no part it the crimes charged; nor were they eyewitnesses to the crimes. Officer Ginder testified that neither informant was present in the apartment at the time of the arrests. He also testified that they told him they had not made any buys from the suspects within a few days prior to the arrests. The informants here were merely the instigators of the police investigation which culminated in the raid on the apartment. They did not even go so far as to point a finger of suspicion at defendant, for, as above indicated, he was never mentioned by the informants in their statements to the officer.

Defendant urges that the informer's testimony would have been ‘relevant and helpful to the defense,’ as tending to substantiate his defense that he knew nothing of the narcotics, having just arrived at the apartment a half hour before. However, the fact that if called the informers might have testified, that to their knowledge only the three persons named in the affidavit lived at the apartment and that these persons sold them the narcotics, would not establish that defendant did not live there also. The informers indicated that they were never permitted inside the apartment when they went there to buy narcotics; further, that a few days had passed since they had made any purchases. The testimony of the informers as to the prior possession of narcotics by those arrested with defendant would not refute the finding that defendants was in possession of the narcotics discovered by the officers. Defendant's conviction rests solely on the observations made by the officers when they entered the apartment, and on defendant's subsequent admissions. No showing is made that the informer's testimony could have proved helpful to defendant's defense.

Although the affidavit for the warrant sufficiently meets the requirements that the informants' credibility be established and that there be an affirmative showing that the informants' data given to the affiant was of the informants' own knowledge, the affidavit does not show on what dates the informants acquired their information that the narcotic trade was being carried on. However, the affidavit does disclose that the affiant police officer had been investigating the Reynas and Gomez for two weeks prior to its date, that the information from the informants was received during this period, and alleges that the informants had told him that the informants had told him that the three named persons ‘are’ dealing in narcotics at the address involve. In People v. Tillman, 238 A.C.A. 155, 160, 47 Cal.Rptr. 614, 617, the court, considering a similar problem, said: ‘We are not impressed by defendant's contention that the affidavit did not sufficiently specify the time of the alleged violations. Of course, the possibility that the information was stale must be negated [Citation]. However, the affidavit here complies in this respect. The allegation that the informant ‘has been purchasing’ indicates very recent, if not present, activity. At the very least, it connotes a course of conduct closely approaching the date of the issuance of the warrant. In cases where the reference to time in the affidavit was couched in words of the present tense or referred to events immediately preceding the date of issuance, the warrant has been upheld. [Citations.]' Reading the affidavit before us, as we are required to do ‘in a common sense and realistic fashion’, (United States v. Ventresca, (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684), we cannot say that the magistrate was wrong in concluding that the data given to him was current and not stale.

Defendant next contends, that the court's denial of his motion to controvert the facts stated in the search warrant, was reversible error. On January 6, 1965, after the preliminary hearing held on December 4, 1964, and prior to the trial which began on January 13, 1965, defendant noticed a motion in the superior court to controvert the facts relied on to support the issuance of the search warrant and, or, to quash the warrant. The court denied the motion.

The search warrant was issued by a judge of the municipal court. Defendant made his motion to controvert the facts in the superior court. The rule is clear that ‘* * * where a search warrant is valid on its face (as it was here) and the defendant seeks to attack the truth of statements in the supporting affidavit, he must proceed under section 1539 and 1540 of the Penal Code and that, if he does not avail himself of this remedy, the facts upon which the warrant was issued may not be controverted at the preliminary hearing, at a hearing of a motion under section 995, or at a trial. [Citations.]’ (People v. Keener, 55 Cal.2d 714, 719–720, 12 Cal.Rptr. 859, 861, 361 P.2d 587, 589.) As stated in Arata v. Superior Court, 153 Cal.App.2d 767, 770, 315 P.2d 473, 475, ‘The only review of such a judicial act (issuance of a search warrant) that is specifically provided by law is the review sanctioned by sections 1539 and 1540 of the Penal Code. ‘If the grounds on which the warrant was issued be controverted, he [the magistrate who issued the search warrant] must proceed to take testimony * * *’ (§ 1539.) ‘If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence was issued, the magistrate [he who issued the warrant] must cause it to be restored to the person from whom it was taken.’ (§ 1540.)' In the instant case defendant sought relief in the wrong forum. As above indicated, his remedy was exclusively under sections 1539 and 1540, before the magistrate of the municipal court who issued the warrant.

People v. Peterson, 233 Cal.App.2d 481, 43 Cal.Rptr. 457, cited by defendant, does not support a contrary position. The court in Peterson was concerned with the refusal of the magistrate who issued the warrant to conduct a hearing sought by defendant under Penal Code §§ 1539 and 1540, the court holding that this refusal deprived him of a constitutional right. Here defendant never sought such hearing. In fact, the superior court in denying defendant's pretrial motion, clearly informed him that the motion ‘should be heard before the judge who issues the search warrant.’ Yet defendant did not pursue the still available remedy before the issuing magistrate. As in Arata v. Superior Court, supra, 153 Cal.App.2d 767, 315 P.2d 473, he was thus precluded at the trial from controverting the facts upon which the warrant was issued.

Finally, defendant maintains that the evidence was insufficient to convict him of the count charging possession of heroin for purpose of sale. He does not urge that the evidence does not support the conclusion that he was in possession of the contraband, but contends that it does not show that the purpose of such possession was for sale. We conclude that the evidence was sufficient. The quantity of heroin found; the manner in which it was packaged (in twenty-four separate packages); and the fact that milk sugar, numerous balloons, rubber bands, and empty gelatin capsules were also found, clearly supports the inference that the narcotics were possessed for sale.

The judgment is affirmed.


1.  The warrant also authorized the search of a bar known as ‘Sancho's.’


FILES, P. J., and KINGSLEY, J., concur.