PEOPLE v. IBARRA (1963)

Defendant was accused of unlawfully possessing heroin. It was also alleged in the information that defendant had been convicted previously, in a federal court in Texas, of importing, transporting and concealing marijuana, a felony, and that he served a term of imprisonment therefor. He admitted the allegation of prior conviction. After the trial had proceeded before a jury for one day, a jury was waived and the trial proceeded without a jury before the judge who had presided when the jury was present. Defendant was adjudged guilty and was sentenced to prison. He appeals from the judgment.

Appellant contends that there was no reasonable cause for the arrest, search or seizure; that the alleged heroin, received in evidence, was obtained by the officers as a result of illegal search and seizure; that appellant was denied due process of law in that (1) the officers in obtaining the alleged heroin brutally beat and choked him, and (2) he was not accorded a fair trial with proper representation by the court-appointed counsel (public defender). A further contention of appellant relates to alleged errors in determining that he was not eligible for commitment as a narcotic addict under recent legislation (1961) concerning rehabilitation of narcotic addicts.

On January 19, 1962, about 12:25 a. m., Officer Smythe and two other police officers went to an apartment on East First Street in Los Angeles. One of the officers knocked on the apartment door, and then he heard a woman's voice inside the apartment, but he did not understand what she said. The officer then said that they were police officers and wanted to talk to them. There was no response, but there was a flush of the toilet. The officer knocked on the door again and said that they were police officers. About two minutes later Mrs. Maria opened the door, and the officers displayed their badges to her. Then she motioned, with her hand and arm, for them to come in. At that time she said something in Spanish, but Officer Smythe did not understand what she said. One of the officers (Frederickson) testified that she told them to come in so that the neighbors would not hear them. Then the officers entered the room. Appellant, who was standing at the rear of Mrs. Maria, was wearing a sleeveless T-shirt. Officer Smythe testified that he then saw, on the inner elbow area of appellant's arm, a raised and darkened area about the size of a dime, in which area there were marks which, in his opinion, were made by hypodermic-needle injections of narcotics. He also testified that he saw marks on a raised area over a vein of appellant's right wrist, which marks appeared to have been made by such injections of narcotics. Two of the marks on appellant's arm appeared to have been made recently. Then Officer Smythe arrested appellant and took him to the kitchen area and searched him. From appellant's pocket, the officer removed a tinfoil package of capsules. Officer Frederickson, who then came to assist Officer Smythe, placed his hands on appellant to restrain him. While Officer Smythe was investigating the package, which contained 15 capsules of white powder, the appellant jerked loose from Officer Frederickson and snatched the package, and obtained most of the tinfoil and capsules, and placed them (tinfoil and capsules) in his mouth. The officers tried to recover them, but were unsuccessful in recovering any part thereof. Officer Smythe testified that appellant swallowed the tinfoil and capsules which he had snatched. That officer had retained a part of the tinfoil and one capsule of powder. The officers removed a large can of milk sugar from a dresser in the main room of the apartment.

On cross-examination, Officer Smythe said that Officer Wesley also came to his assistance when the scuffle for the narcotics occurred, and that as a result of the scuffle some blood came from appellant's mouth, and blood was on the front of his T-shirt.

Officer Frederickson testified that while Officer Smythe had the tinfoil package in his hand, he (witness) had one hand resting on defendant and was reaching for the handcuffs; the appellant then jumped toward Officer Smythe, snatched the package, placed it in his mouth and made a swallowing motion; the witness immediately grabbed appellant and they went to the floor; after a struggle the officers succeeded in getting the handcuffs on appellant; he (witness) was unsuccessful in preventing appellant from swallowing the package he had snatched; other than the force applied at the time defendant grabbed the package and put it in his mouth, no force was applied to defendant.

Mrs. Maria testified: She lived in the apartment and that, before the officers entered, she and appellant were the only ones in the apartment. She heard only one knock on the door. They said, ‘Police officers,’ and then told her to open the door. When she opened it, the three men entered. She was wearing a robe and underclothes. She did not ask them to come in, nor did she make any motion with her arm indicating that they should come in. The officers went into the kitchen where the appellant was, and they began hitting him. They did not take anything from him. When they stopped beating him, she saw blood coming from his mouth. They put handcuffs on him and her.

Appellant testified: He heard only one knock on the door. Immediately before the officers entered, he was in the kitchen and Mrs. Maria was in bed. When they entered he was near the entrance to the kitchen. Officer Smythe gave him a punch right away, and appellant fell to the floor. Then that officer held him and beat his neck. After that the three officers were hitting him. They choked him, ‘busted’ his mouth, and struck a few blows on his stomach. He did not have any narcotics in his pocket or mouth when the officers came into the apartment. He had swallowed the narcotics shortly before he saw the officers. The narcotics, which he swallowed, were not in capsules or tinfoil but were loose in paper and were equivalent to five capsules. He had bought the narcotics ‘loose.’ He did not grab anything from Officer Smythe. He did not have a capsule of narcotics in his possession when the officers came in.

It was established that the white powder in the capsule which the officer retained was heroin. The officers did not have a warrant of arrest or a search warrant.

When the door was opened by Mrs. Maria, who was wearing a robe, it was reasonable for the officers to conclude that she lived there and had authority to consent to their entering the apartment. The officers could properly interpret the motion of her arm and hand to mean that she consented that they enter. Her statement (as related by an officer), that she told them to come in so that the neighbors would not hear, substantiated such interpretation that the motion of her arm and hand was an invitation to enter. The entry into the apartment by the officers was not unlawful.

After the officers had entered the apartment, Officer Smythe saw hypodermicneedle marks on two, comparatively large, raised areas on the arms of appellant who was wearing a sleeveless T-shirt. The marks appeared to be narcotic-injection marks, and two of them appeared to have been made recently. There was reasonable cause for arresting appellant. (See People v. Rios, 46 Cal.2d 297, 298–299, 294 P.2d 39; and People v. Elliott, 186 Cal.App.2d 178, 185–183, 8 Cal.Rptr. 795.) The arrest was lawful.

After arresting appellant, the officer searched him and took from his pocket a package containing approximately 15 capsules of heroin. The search, which was incident to a lawful arrest, was proper. (See People v. Winston, 46 Cal.2d 151, 162, 293 P.2d 40.)

A further contention of appellant is that he was denied due process of law in that the officers in obtaining the heroin brutally beat and choked him. Appellant and Mrs. Maria testified that the officers began hitting appellant immediately after the officers entered the apartment. According to appellant's testimony, he had swallowed ‘loose’ narcotics, in an amount equivalent to 5 capsules thereof, before the officers came in, and he did not have any narcotics in his pocket or mouth when the officers entered. Also according to his testimony, the officers choked him, and hit his mouth and ‘stomach.’ He asserted that he did not grab anything from Officer Smythe. According to testimony on behalf of the prosecution, no force was applied to appellant while the officer was searching him or at all before the time that he snatched the narcotics from Officer Smythe. Two officers testified that appellant snatched the package, or the main portion of it, from the hand of Officer Smythe. The officers assert that a scuffle with appellant ensued when he snatched the package and obtained most of the tinfoil and capsules and placed them in his mouth. They concede that they unsuccessfully tried to retrieve the things which appellant had snatched from Officer Smythe, and that as a result of the scuffle blood came from appellant's mouth. In connection with Officer Frederickson's testimony regarding the attempt to retrieve the package, he was asked on cross-examination if he choked appellant in an attempt to prevent him from swallowing. He replied, ‘Yes, I applied pressure of my hand to his throat.’ The evidence was conflicting as to whether the officers or any of them struck appellant. Apparently the trial judge believed the testimony of the officers that no force was used against appellant while they were making the search and taking the package from him. Viewing the evidence in the light favorable to respondent, as a reviewing court is required to do, there was no scuffle with appellant until he snatched the package from the officer, and then the participation of the officers in the ensuing scuffle was for the purpose of regaining possession of the things which appellant had snatched or taken by force from the officer. In other words, in viewing the evidence in such manner, the trial judge could properly conclude: that no force was used against appellant when the package of alleged heroin was taken from appellant; that any force used against him occurred during the scuffle which he initiated by snatching a part of the package, and in which the officers were trying to recover the snatched articles; and that no officer struck or beat him. The alleged choking occurred during the attempt by the officers to prevent appellant from swallowing the snatched tinfoil package. According to prosecution evidence, appellant swallowed the part which he snatched, which included the tinfoil wrapping. The trial judge might well have concluded that the bleeding was caused by the act of appellant in swallowing the comparatively large tinfoil package containing more than a dozen capsules, thereby cutting or injuring his throat or mouth. Any bleeding caused in such manner cannot be attributable to alleged lawless conduct on the part of the officers. Of course, the said part of the package which was not retaken was not in evidence against appellant. As above indicated, the alleged choking and bleeding did not occur during any act of obtaining, from appellant, any narcotic or other article used as evidence against him. In other words, the scuffle which followed appellant's snatching the package did not produce any article which was received in evidence. The capsule of heroin which was received in evidence was the one which the officer held or retained at the time appellant snatched most of the tinfoil package from the officer's hand. There was ample evidence to support a finding that that capsule of heroin was obtained lawfully by the officer from appellant.

Appellant contends further to the effect that he was not accorded due process of law in that his counsel, a deputy public defender, failed to object to the offer in evidence of the capsule of heroin (part of Exhibit 1, the capsule which the officer retained when the snatching occurred). Appellant asserts in effect that such objection should have been made on the ground that the capsule was obtained by illegal search and seizure. When that offer was made the deputy public defender said that in view of defendant's testimony that the object in Exhibit 1 for identification (capsule of heroin) was not in his possession and was not taken from him, he (deputy) could not object to its introduction, and that he did not object thereto. Thereupon, the capsule of heroin was received in evidence. Appellant argues that the failure to object to such offer reduced the trial to a sham, resulting in an inadequate and a pro forma defense. He also argues that he did have ‘standing’ to object. Even though appellant was entitled to make such objection (cf. People v. Martin, 45 Cal.2d 755, 759–761, 290 P.2d 855; and People v. Gonzales,186 Cal.App.2d 370, 375, 9 Cal.Rptr. 21), it cannot be said that the deputy's failure to object, under the circumstances here, was prejudicially erroneous. Appellant had testified that the capsule was not taken from him. An objection to such evidence upon the ground of illegal search and seizure would carry an implication that the deputy's client had testified falsely. Irrespective of the deputy's opinion as to whether such an objection was legally permissible, it cannot properly be concluded that his refraining from objecting was not proper representation of appellant as a matter of practical trial procedure, especially under circumstances where such an objection would indicate a theory of defense inconsistent with appellant's testimony. This contention of appellant is not sustainable.

A further contention of appellant is that the court erred as a matter of law in its rulings regarding eligibility, and procedure for determining eligibility, of appellant for commitment as a narcotic addict to the California Rehabilitation Center under sections 6451 and 6452 of the Penal Code.

Said section 6451 of the Penal Code (enacted in 1961) provides: ‘Upon conviction of a defendant for any crime in any superior court, if the judge ascertains that the defendant is addicted or by reason of repeated use of narcotics is in imminent danger of becoming addicted to narcotics he shall adjourn the proceedings or suspend the imposition of the sentence and direct the sheriff to file a petition to ascertain if such person is addicted to narcotics or in imminent danger thereof unless in the opinion of the judge the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section. If a petition is ordered filed, proceedings shall be conducted in substantial compliance with Sections * * * of the Welfare and Institutions Code.

‘If, after a hearing and examination, the judge shall find that the person charged is a narcotic drug addict, or by reason of repeated use of narcotics is in imminent danger of becoming addicted to narcotics, he shall make an order committing such person to the custody of the Director of Corrections for confinement in the facility for a period of 10 years, except as this chapter permits earlier discharge. If, upon the hearing, the judge shall find that the defendant is not a narcotic addict and is not in imminent danger of becoming addicted to narcotics, he shall so certify and return the defendant to the department of the superior court which directed the filing of the petition for such further proceedings on the criminal charges as the judge of such department deems warranted.’

Section 6452 of the Penal Code (also enacted in 1961) provides: ‘Sections 6450 and 6451 shall not apply to persons convicted of, or who have been previously convicted of murder * * * [here several crimes are designated] or any offense set forth in Article 1 (commencing with Section 11500) or 2 (commencing with Section 11530) of Chapter 5 of Division 10 of the Health and Safety Code, or in Article 4 (commencing with Section 11710) of Chapter 7 of such Division 10 for which the minimum term prescribed by law is more than five years in state prison.’

On March 6, 1962, when appellant was adjudged guilty, the matter was referred to the probation department for investigation and report, and further proceedings were continued to April 6, 1962. Thereupon, the judge made an order which stated, in part: ‘[I]t appearing to the Court that said defendant is addicted or by reason of repeated use of narcotics is in imminent danger of becoming addicted to narcotics, this Court now refers this matter to the Judge presiding in Department 95 in order that a determination may be made of the availability of facilities for this defendant in the Department of Corrections for possible commitment pursuant to the provisions of Section 6451, Penal Code. Further proceedings in the criminal matter have been continued to April 13, 1962, at 9:00 A.M., pending your reply.’

That order was made on a form designated as ‘Form A,’ and entitled ‘Order of Referral Re Narcotic Drug Addiction.’ At the bottom of the form there were two places or forms for checking or stating the reply of the judge presiding in Department 95. At one of the places it was stated: ‘There are facilities available in the Department of Corrections for this defendant.’ At the other place it was stated: ‘No facilities are available for this defendant.’ On April 10, Judge Allen Miller, the judge presiding in Department 95, replied to the referral by checking and signing the form at the place which stated ‘No facilities are available for this defendant.’ As a part of his reply, Judge Miller also sent to Judge Hill, who had presided at the trial, a letter which stated: ‘This case is being rejected as the defendant, according to the arrest record and probation report, has been twice convicted of a narcotic felony and on each occasion sentenced to federal prison. These priors coupled with the present offense would render him ineligible for the narcotic treatment center, pursuant to § 6452 PC.’

On April 13 when proceedings were resumed in the trial department, the trial judge said that in Department 95 it had been found that appellant was not eligible for the narcotics treatment program by reason of the two prior convictions of federal offenses involving marijuana, and that he had no alternative but to sentence appellant to state prison. The trial judge also said that he would write a letter to the prison director asking him to give appellant corrective treatment of the same type as would have been given under the other program.

Appellant argues that, according to provisions of section 6451 of the Penal Code, the trial judge should not have referred the matter of availability of such facilities to Department 95 of the court, but that the trial judge himself was required, under mandatory provisions of the section, to direct the sheriff to file a petition to ascertain whether appellant is addicted to narcotics or is in imminent danger of becoming so addicted,—unless, in the opinion of the judge, appellant's record and probation report indicated such a pattern of criminality that he is not a fit subject in the Department of Corrections for appellant had been convicted on the present charge and had admitted the prior conviction alleged in the information, and after the trial judge asserted that it appeared that appellant is addicted to narcotics or is in imminent danger of becoming so addicted, it became necessary to determine whether facilities were available for appellant in the Department of Correctiosns for commitment under said section. The first part of the section does contain mandatory language in that it states that the judge shall direct the sheriff to file a petition; but that provision is immediately qualified by discretionary language, namely: ‘unless in the opinion of the judge the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section.’ It thus appears that the matter as to whether the judge shall direct the sheriff to file such a petition depends upon the conclusion or discretion of the judge regarding the accused person's suitability or eligibility, within the statutory standards, as a prospect for rehabilitation. Contrary to appellant's contention, he does not have a right to be committed under the provisions of said section 6451, nor a right to have such a petition filed. Under said section 6451, even if a judge who presides at the trial of the criminal charge asserts that it appears that the accused is a narcotic addict, such assertion is not a judicial determination of addiction upon which such a commitment to the rehabilitation center may be made. Before such a commitment may be made, a petition alleging addiction must be filed and a hearing held thereon. It is not a requirement that the hearing be held before the judge who presided at the trial of the criminal charge. Under the provisions of said section it is contemplated that the hearing may be held in some other department of the court,—as indicated by the provision that ‘If, upon the hearing, the judge shall find that the defendant is not a narcotic addict * * * he shall so certify and return the defendant to the department of the superior court which directed the filing of the petition * * *.’ Of course, if an accused is not eligible for the program of rehabilitation, it would be a futile act for the trial judge to order that a petition alleging addiction be filed,—with the resultant requirement that a hearing be held thereon. In the interests of efficiency, and as provided in said section 6451, the matter of eligibility should first be determined. In determining that preliminary question of eligibility herein, that is, the question as to whether facilities were available at the rehabilitation center for such a person as appellant, the trial judge, who had the ultimate discretionary responsibility of determining whether a petition should be filed, was justified in referring the matter to the judge presiding in another department of the court (Department 95) in order that a determination might be made as to the availability of such facilities for this defendant. That department, according to a rule of said superior court (Rule 4, § 12), is the one to which is assigned all proceedings (other than guardianship or conservatorship proceedings) relating to the care, supervision, and treatment of alleged mentally ill persons and narcotic addicts. By reason of the nature of the proceedings assigned to that department, it is reasonable to assume that the judge presiding there would have specialized knowledge of rehabilitation facilities for treatment of narcotic addicts, and would have more adequate facilities in his department for determining the eligibility of a defendant for such treatment, than a judge in a criminal trial department would have. The determination of availability of facilities at the rehabilitation center for a designated defendant involves not only a review of that defendant's criminal record, if any, but also involves a consideration of the rehabilitation program as a whole, especially a consideration of the limited space at the center in connection with selecting, on a comparative basis with other defendants, a defendant deemed most likely to benefit from the program and promote it success. The trial judge properly referred the present matter to the judge presiding in Department 95 in order that a determination might be made as to the availability of rehabilitation facilities for appellant; and the trial judge, in making the ultimate ruling as to whether an order should be made directing the sheriff to file a petition, was entitled to consider the referral reply which was made by the judge in Department 95.

Appellant contends further that the court erred as a matter of law in its interpretation of the other section of the Penal Code, above quoted, namely, section 6452. That is the section which provides that said section 6451 (regarding commitment to the Rehabilitation Center) shall not apply to persons who have been convicted of certain offenses. Appellant's only comments, in his brief, regarding this contention are that section 6452 provides for the specific provisions of the California statutes which render inapplicable said section 6451; and that defendant has not been convicted of any of the offenses which are designated therein by reference to certain sections of the Health and Safety Code (sections relating to narcotics). It appears from those comments, and other ones at the oral argument, that it is appellant's position that his prior convictions were not based upon violations of California statutes, but were federal offenses; and that he had not been convicted of a California narcotics offense for which the minimum term ‘is more than five years in state prison.’ As provided in said section 6452, with reference to the indicated question as to whether prior federal narcotics offenses may be considered as prior convictions in connection with state narcotics offenses, it is to be noted that section 11500 of the Health and Safety Code of California provides in effect that such federal offenses which are equivalent to such state offenses are to be considered. That section is to the effect that a conviction of any offense under the laws of the United States, which offense if committed in California would have been punishable as a narcotics felony here, shall be charged in the information. In the present case, a question with respect to appellant's eligibility for commitment under section 6451 is whether he has been convicted of a narcotics offense ‘for which the minimum term prescribed by law is more than five years in state prison.’ The present conviction is to be considered in determining eligibility. This is indicated by the provision in section 6452 which states that section 6451 ‘shall not apply to persons convicted of, or who have been previously convicted of’ the various offenses designated therein. The minimum penalty for appellant's present offense is two years, without considering a prior conviction. One prior conviction of a federal narcotics offense was charged in the information herein, and appellant admitted the allegation of that prior conviction. The minimum penalty with that prior conviction is ‘not less than five years.’ In other words, according to strict construction of the quoted words, the penalty with the one prior conviction could be exactly five years, and therefore would not be ‘more than five years' as stated in section 6452. If the second federal offense (which was not charged in the information) is considered on the question of eligibility, then the term would be more than five years (namely, ten years), and defendant would not be eligible. The question arises as to whether the trial court properly considered the second federal offense in determining the suitability or eligibility of appellant for commitment under the rehabilitation program. Section 6451 provides in effect, as above shown, that the trial court, in determining whether it should order the sheriff to file a petition (regarding addiction) is authorized to consider ‘defendant's record and probation report.’ It is there stated that ‘under certain conditions, the trial judge shall direct the sheriff to file the petition, ‘unless in the opinion of the judge the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section.’' In the case of In re De La O, 59 A.C. 140, 157, 28 Cal.Rptr. 489, 500, 378 P.2d 793, 804, it is said that the provisions of Penal Code sections 6451 and 6452 (here involved) ‘can only be viewed as civil in nature, purpose, and effect.’ It is said therein (59 A.C. p. 158, 28 Cal.Rptr. p. 501, 378 P.2d p. 805): ‘Also significant in this connection is the provision of the subject statute (§ 6452) declaring ineligible for the program all persons who have previously been convicted of specified crimes of violence or serious narcotics offenses.’ It is also said therein (59 A.C. p. 159, 28 Cal.Rptr. p. 501, 378 P.2d p. 805): ‘[A]nd compare section 6451 of the subject statute, which provides in part that proceedings for the commitment of a person convicted of crime in a superior court shall not be instituted if ‘in the opinion of the judge the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section.’' In the present case the probation report shows that in 1942 appellant was convicted in the federal court at El Paso, Texas, of violating the Marijuana Tax Act; and that in 1958 he was convicted in the federal court at El Paso of possession and transportation of marijuana (the prior conviction alleged herein). In the present case, the trial court properly considered the 1942 federal conviction in determining the suitability of appellant for commitment under the said sections here involved. The court did not err in determining that appellant was unsuitable or ineligible for commitment to the Rehabilitation Center, and did not err in not directing the sheriff to file a petition under said section 6451.

The judgment is affirmed.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.