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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Max Munoz GASTELO, Defendant and Appellant.

Cr. 11274.

Decided: April 10, 1967

Frederic G. Marks, Los Angeles, by appointment of the Court of Appeal, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

A jury found Gastelo guilty of possession of heroin (Health & Saf.Code, § 11500).   He admitted prior convictions for possession of narcotics and for escape from the state penitentiary.   The court sentenced him to state prison, his sentence to run concurrently with any he was then serving.   This appeal is from the judgment.

Gastelo's contentions on appeal are:  (1) the search warrant and affidavit provided no basis to validate his arrest and were not made part of the record at the trial or on appeal;  (2) his constitutional right of privacy was violated when the arresting officers made a forcible entry in serving the search warrant without announcing their authority and purpose in advance;  and (3) the use of a confession given two days after arrest violated People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, even though he had earlier been advised of his constitutional right to remain silent and to consult an attorney.

1. On Gastelo's first point, the search warrant and affidavit were put into evidence by reference as People's Exhibit 2 and are before this court by virtue of our order augmenting the record on appeal.   Probable cause for a search and arrest appears from the affidavit of December 24, 1964.   A reliable narcotics informant responsible for several arrests and convictions told the Los Angeles police he had purchased narcotics from Gastelo at the address given in the affidavit over 30 times during the previous 45 days, the last purchase having been made the day before on December 23, 1964, which purchase had been delivered to the police and identified as heroin.   The informant identified the seller by photograph as Gastelo, whom the police knew was on parole from state prison for possession of heroin.   The informant said Gastelo lived with a woman named Donna.   The police found the gas and telephone utilities at the given address listed in the name of Donna Trujillo, also a known user of heroin.

It is not necessary in all cases that the name of an informant be disclosed in order to establish probable cause for the issuance of a search warrant.  (McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (March 20, 1967), 35 LW 4261;  People v. Keener, 55 Cal.2d 714, 722–723, 12 Cal.Rptr. 859, 361 P.2d 587.)   And in view of our order supplementing the record on appeal, Gastelo's objection to the omission of Exhibit 2 from the clerk's transcript on appeal is moot.   We find the attack on the search warrant and its affidavit without merit.

 2. Gastelo argues the officers' failure to comply with Penal Code, section 844, violated his right to privacy.   But in exceptional cases compliance with Penal Code, section 844, is excused.  (People v. Maddox, 46 Cal.2d 301, 306–307, 294 P.2d 6.)   A good faith belief that those suspected of possessing contraband will destroy it in the time it takes for an officer to knock and identify himself before entry is such an excuse.  (People v. Maddox, supra;  People v. Carrillo, 64 Cal.2d 387, 392, 393, 50 Cal.Rptr. 185, 412 P.2d 377.)   The informant's recent and protracted purchases from Gastelo at the address where the arrest and search took place (30 purchases in 45 days) justified the officers' belief that narcotics were in the house and that a surprise entry to execute the search warrant was necessary in order to prevent destruction of the narcotic as evidence.

3. Gastelo claims that he cannot be found to have knowingly and intelligently waived his right to remain silent and to consult counsel, because, although advised of his rights at the time of his arrest, he was not again advised of his rights two days later at the time of his confession.   He argues that when the arresting officer advised him of his rights at 8:20 a.m. on the morning of his arrest, he had just awakened, that he later suffered withdrawal symptoms, and that advice under such circumstances could not amount to effective constitutional advice.

[7, 8] Whether or not an accused is physically able to understand an explanation of his constitutional rights given to him at the time of his arrest is a question of fact to be determined by the trial court.  (People v. Culp, 241 Cal.App.2d 352, 357, 50 Cal.Rptr. 471.)   No such issue of fact was tendered by the defendant at his trial.   Since the record indicates that Gastelo was aware of events in the room after the officers made their entry, in the absence of any claim to the contrary the court could reasonably infer that Gastelo was in a suitable condition to be advised of his rights under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

 The final question is whether constitutional advice to Gastelo at the time of his arrest sufficed for the taking of his confession two days later.   Under the new rule prescribed in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the showing in the present case would probably be insufficient to establish the admissibility of the confession, because under the rule of that case a heavy burden of proof has now been specifically placed on the prosecution to establish the validity of a confession and a knowledgeable waiver of rights by the defendant.  (384 U.S. 436, at 475–479, 86 S.Ct. 1602.)   However, the rule of Miranda was made of prospective application and was restricted to cases whose trial should begin after June 1966.  (Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.)   The present trial took place in April 1965.   Hence the Miranda rule has no direct application, and this case is governed by the earlier rules laid down by Escobedo in June 1964 (378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977) and by Dorado in January 1965 (62 Cal.2d 338, 352, 42 Cal.Rptr. 169, 398 P.2d 361), which placed no such heavy burden of proof on the prosecution.   Since these decisions expressed the controlling law at the time of this trial, we think the defendant was required to raise by objection the issue of the inadequacy of the advice he received if he intended to rely on this defense.   In the absence of a tender of the issue of the adequacy of advice of constitutional rights, a tender which would have put the prosecution on notice of any claims he might make and given it an opportunity to contest them, the showing by the State of California was sufficient under the rules as they then applied to validate the admissibility of the confession.  (People v. Eli, 66 A.C. 53, 56 Cal.Rptr. 916, 424 P.2d 356;  People v. Martinez, 239 Cal.App.2d 161, 48 Cal.Rptr. 521.)

 On taking the stand Gastelo said nothing about withdrawal symptoms but rather presented the defense that he had bargained with the police to secure Donna's release in return for his signature on the statement which falsely admitted possession of narcotics.   The jury implicitly found against him on this contention.   We find the evidence ample to support the conviction and see no miscarriage of justice.

The judgment is affirmed.

FLEMING, Associate Justice.

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