PEOPLE v. FEIN

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Allan FEIN, Defendant and Appellant.

Cr. 17398.

Decided: September 24, 1970

Harvey A. Schneider, Pasadena, for defendant-appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Michael R. Botwin, Deputy Atty. Gen., for plaintiff-respondent.

In a trial by the court sitting without a jury defendant was convicted of a violation of section 11530 of the Health and Safety Code, possession of marijuana, and violation of section 11910 of the Health and Safety Code, possession of restricted dangerous drugs, to wit, secobarbital. The information alleged that defendant had previously served a term of imprisonment in the state prison for violation of section 11530.5 of the Health and Safety Code, possession of marijuana for sale and for violation of section 476a of the Penal Code.

After having admitted the truth of the allegations of the prior convictions, defendant was permitted to withdraw that admission at the time of the motion for a new trial and was sentenced to state prison. The trial court made no finding on the priors. Defendant appeals from the judgment.

On motion of the defendant the record on appeal has been augmented to reflect proceedings had under the provisions of section 1538.5 of the Penal Code.

Where a motion to suppress evidence as the product of an illegal search and seizure is denied in a criminal case, an appellate court may review the question of the validity of the search and seizure on appeal from the judgment of conviction. (People v. Kellett, 1 Cal.App.3d 704, 81 Cal.Rptr. 917.)

Defendant contends that (1) entry by the police into the apartment in which he was arrested was illegal and that all evidence seized thereafter should have been suppressed; (2) that if the original entry of the officers was legal the arrest which followed was without probable cause; and (3) that the prosecution failed to produce sufficient evidence that appellant was in possession of the contraband substance.

The evidence upon which the court based its decision was testimony contained in the transcript of the preliminary hearing, the stipulated testimony of one witness and the in-person testimony of one of defendant's co-arrestees. The evidence established that sometime prior to the arrest of this defendant, Officer Miller of the Los Angeles Police Department received information from two untested informants that one ‘A1’ was selling narcotics, namely, dangerous drugs from the address at which the arrest was subsequently made. The informants gave the officer a physical description of ‘A1’ and indicated that he drove a dark blue Mustang convertible. Further information was to the effect that the apartment where ‘AL’ allegedly carried on his illegal activity was additionally occupied by two female companions. At about 8:15 in the evening on the date of the arrest the officer in company with his partner went to the described address and observed on the mail box for apartment 207 the manes “Sutherland” and “A Fein”. The officer observed a dark blue Mustang parked in the carport to the rear of the apartment. He went to the door of apartment 207, knocked and a female voice from inside asked “Who's there?” The officer stated, “Police officers, Narcotics Investigation.” The reply from the same female voice was “Just a minute.” The officer then heard noises from within the apartment like people moving about and running, together with a noise described as ‘like a plastic type vial landing or falling to a hard floor surface.’ After a lapse of about 30 seconds, the door was opened about 1 1/2 feet by codefendant Michelle Sutherland. When the officer asked if ‘A1’ was there, Sutherland opened the door completely, stepped backwards and said, “Yes, he's the one on the couch.” The officers observed defendant Fein seated on the couch in the apartment, in company with another female codefendant, stepped into the apartment about 3 feet and stated that he, the officer, had a complaint concerning the use and selling of narcotics at the location. The officer could observe lying on an end table what appeared to him to be two burnt marijuana seeds. The officer retrieved these two seeds from the end table, placed them in an envelope and them in his pocket. After placing Fein under arrest the officer conducted a search of the apartment. The search revealed (1) 18 seconal tablets wrapped in a plastic bag and concealed in a small wooden chest which was sitting on the coffee table in front of the couch where the defendant had been seated; (2) a jar of marijuana under a derby hat on a night stand in the bedroom. The possession of these two items of contraband constitutes the violations for which the defendant was convicted. At the trial, Sutherland testified in substance that the defendant was not a resident of the apartment and that the pills and the marijuana that were found in the apartment belonged to her and that the defendant had no knowledge of their presence.

Miss Sutherland did admit that some times the defendant would help out a little in paying the rent. She stated on cross-examination that ‘maybe he took it [rent miney] down to the manager but it wasn't his money.’ She indicated that her sister had registered in the apartment in the defendant Fein's name. It was stipulated that a Mrs. Beck testified that she was the manager of the apartment, that the apartment was initially rented to three persons, one of which was defendant Fein.

(1) Was the officer's initial entry into the apartment proper?

Yes. The officer's conduct in going to the apartment to investigate the information that he had received was certainly proper. There was nothing improper in seeking an interview with the occupants of the apartment. (People v. McCottry, 205 Cal.App.2d 698, 703, 23 Cal.Rptr. 309.) The officers were reasonable in assuming that Sutherland was a person who had authouity to consent to their entry (People v. Gorg, 45 Cal.2d 776, 291 P.2d 469; People v. Misquez, 152 Cal.App.2d 471, 313 P.2d 206), and the trial judge's conclusion that Sutherland's conduct amounted to such consent is well supported by the record. (See People v. Harrington, 88 Cal.Rptr. 161, 471 P.2d 961, filed July 30, 1970, wherein our Supreme Court reiterates the well established principle that a consent to enter may be expressed by actions as well as words.)

(2) Was the arrest of defendant Fein based upon probable cause?

Yes. Probable cause is established by circumstances which would lead a man of ordinary prudence and caution, possessed with the experience and expertise which the officers in this case possessed, to believe that the defendant had committed a felony. (People v. Hogan, 71 A.C. 927, 930, 80 Cal.Rptr. 28, 457 P.2d 868.) Probable cause can be based in part on information umparted by so-called untested informers. (People v. Davis, 2 Cal.App.3d 230, 82 Cal.Rptr, 561; People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202.) While it is true that the corroboration of an untested informant cannot rest totally upon information from yet another untested informant, the fact that the officer had information from two separate informants does increase the weight to be accorded the information. (People v. Garcia, 187 Cal.App.2d 93, 9 Cal.Rptr. 493; People v. Taylor, 176 Cal.App.2d 46, 1 Cal.Rptr. 86; People v. Burke, 208 Cal.App.2d 149, 24 Cal.Rptr. 912.)

The officer's observations of the mail box and the car prior to knocking on the door tended to indicate that the informants' information was valid. When the ingredients of the running in the apratment, the sound of the falling plastic vial, the defendant answering to the name of ‘A1’, and the observation of the two burnt seeds are added to this mixture it becomes clear that the officers had probable cause to believe that Fein had violated the narcotic laws.

(3) Was the evidence sufficient to support the trial court's finding that the defendant knowingly possessed the contraband which was found in the apartment?

Yes. The defendant was a joint occupant of the premises. The landlady considered him to be one of the tenants. Apparently from time to time he paid rent on the apartment and he obviously spent time on the premises. The 18 seconal tablets were found in a small chest which was resting on a table in front of him at the time the officers first observed him. The marijuana was found in the bedroom under a derby hat, a pipe was found lying nearby. Defendant argues that the record does not disclose that his hat was a man's derby hat as distinguished from a woman's hat. We believe that the normal and logical interpretation to be given to the description of a derby hat is that of a man's hat. A pipe is normally used by a man. It is significant to note that while codefendant Sutherland was produced as a defense witness and testimony elicited as to her ownership of the marijuana in the bedroom and of a statue which was located nearby, she at no time was questioned about the derby hat.

Officer Miller was unable to produce at the trial the two seeds which he had removed from the end table. His testimony was that when he removed the envelope containing the seeds from his pocket, the seeds because of their charred condition, had disintegrated and were no longer identifiable. He had, therefore, disposed of the debris.

Defendant contends that this constituted a suppression of evidence which amounted to a denial to defendant of due process of law. (People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673.) There is nothing in the record which indicates that the officer deliberately destroyed or suppressed the evidence of the two seeds. His testimony was simply that the seeds disintegrated and were not even susceptible to examination by the chemist for the prosecution. The officer's credibility was a question for the trial judge. Contrary to defendant's contention, these two seeds did not form the basis of the charge of possession of marijuana for which the defendant was convicted. The testimony concerning the seeds was simply another part of the evidence relied upon the establish probable cause. In that connection it was not necessary for the court to find that the seeds were in fact marijuana seeds, only that the officer reasonably believed them to be such. The officer testified that he had considerable experience in the narcotic field and he described the seeds as resembling marijuanan seeds. In view of the fact that codefendant Sutherland readily admitted under oath the presence of marijuana on the premises, it seems highly probable that the officer was correct in his assumption.

The fact that Sutherland endeavored to claim sole possession of the contraband on the premises was not controlling on the trial court. The absence of direct testimony to the contrary did not prevent the court from rejecting her statements. Furthermore, the fact that one person may be in possession of a narcotic does not automatically exclude the possibility of joint or constructive possession in other persons. (People v. Francis, 71 A.C. 69, 74, 75 Cal.Rptr. 199, 450 P.2d 591; People v. Hood, 150 Cal.App.2d 197, 309 P.2d 856.)

There was a stipulation in the record to the effect that the material taken from the apartment was subjected to a chemical analysis by a chemist of the police department and he found it to be marijuana. Defendant now contends that the record is devoid of any evidence as to the quantity of marijuana recovered and that under the force of People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, this case must be reversed. Leal stands for the proposition that in order for a defendant to be convicted of the possession of a narcotic substance he must possess a usable quantity. This matter was not raised at the trial and defendant should not be permitted to raise it for the first time on appeal. Furthermore, the exhibits are before this court. The quantity is adequate.

In summary, the officers in conducting a reasonable search1 of the premises recovered contraband sufficient to establish the corpus delicti of the crime of violations of sections 11530 and 11910 of the Health and Safety Code.

The only question remaining is whether there is sufficient evidence in the record to support the trial court's finding that the defendant was connected to the crime for which the corpus delicti had been established. The record supports the finding that the defendant resided at the premises. The pills were found in close proximity to his position in the apartment at the time of the arrest. The marijuana was found in the bedroom concealed under a man's hat. We cannot say as a matter of law that this is insufficient to support the trial court's conclusion that defendant knowingly exercised dominion and control over the contraband. (People v. Redmond, 71 A.C. 775, 79 Cal.Rptr. 529, 457 P.2d 321.) The facts in this case are not too dissimilar to the evidence relied upon in sustaining the conviction in People v. Harrington, supra. As the court stated there ‘But the necessary elements (that the accused exercised dominion and control over the drug with knowledge of both its presence and its narcotic character) may be established by circumstantial evidence and any reasonable inferences drawn from such evidence; and neither exclusive possession of the premises nor physical possession of the drug is required.’

The judgment is affirmed.

FOOTNOTES

1.  This search was conducted prior to the effective date of Chimel v. California, 395 U.S. 752, 754, 89 S.Ct. 2034, 23 L.Ed.2d 685, and, therfore, is not controlled by that case. (People v. Groves, 71 A.C. 1239, 80 Cal.Rptr. 745, 458 P.2d 985; People v. Shubert, Cal.App., 89 Cal.Rptr. 267, filed August 25, 1970.)

COMPTON, Associate Justice.

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

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