PEOPLE v. BERUTKO (1968)

Defendant was charged in two counts with violation of Health and Safety Code section 11500 (possession of heroin) and violation of Health and Safety Code section 11500.5 (possession for sale); one prior violation of section 11500 of the Health and Safety Code was also charged. Defendant's motion under section 995 of the Penal Code was denied, and defendant pled not guilty; the prior was denied. Trial by jury was duly waived and the cause was submitted on the transcript of the preliminary examination; all exhibits received at the preliminary hearing were deemed received in evidence subject to the court's ruling. A motion that the investigation was an illegal search was denied. Defendant was found guilty. A motion for a new trial was made and denied; the prior was found to be true.¹ The criminal proceedings were then suspended and proceedings under the Narcotic Rehabilitation Act were instituted. Thereafter, defendant was returned from the Rehabilitation Center, the criminal case was resumed,² probation was denied, and defendant was sentenced to state prison. He has appealed from the final judgment.

Because defendant indicated dissatisfaction with the arguments raised by court-appointed counsel, we allowed him to file supplemental briefs. We have considered all of the contentions raised either by counsel or by defendant.

Officer Wilson received information from an informant known to him only as ‘Rudy’ that defendant was dealing in heroin at an address which Rudy gave to the officer. Rudy also advised Wilson that defendant had a prior record for narcotic sales, was on parole but not reporting, and that defendant drove a red and white Buick automobile. Officer Wilson had never seen Rudy, knowing him only dy his voice heard in several telephone conversations. One arrest had been made on information given by Rudy, resulting in a complaint being filed and that defendant being held to answer; that case had not been tried at the time herein involved.

Acting on this tip, Officer Wilson checked the police records, which verified defendant's prior narcotic conviction, and furnished a photograph of defendant.

Armed with the information thus far acquired, and the photograph, Officer Wilson, with three other officers, went to the address given by Rudy. The manager of that apartment house verified defendant's residence and told officers that defendant had ‘numerous traffic’ to and from his apartment and that defendant appeared to the manager to be ‘suspicious.’ The officers placed the apartment occupied by defendant under surveillance. Several persons came to the apartment and then left without entering. After some time elapsed, a red and white Buick appeared, driven by defendant. He parked the car at the rear of the building and entered his apartment. About 10 to 15 minutes later, defendant's face appeared, peeking around the shade and blind of his apartment; this process was repeated several times. Officer Wilson then went to the front of the apartment. The window there was covered by a light curtain, so arranged that there was an aperture through which a part of the room was visible. Looking through that aperture, the officer saw a coffee table on which there was a finger stall or condom. This article was ‘lumpy’ and was tied at one end. The officer testified that, based on a substantial experience in narcotic investigations, he concluded that the stall or condom contained balloons of heroin packaged for sale.

The officers then obtaineed from the manager a key to the apartment and, without knocking, entered the apartment, seized the condom and arrested defendant. The condom contained twelve balloons, each containing heroin. Further search of the apartment revealed two hypodermic outfits; empty balloons, rubber bands, funnels, measuring spoons and candles were also found.

I

It is contended that the officers did not have reasonable cause to enter the apartment, so that the arrest and seizure were unlawful. We do not agree.

It is not necessary to determine whether or not Rudy was a so-called ‘reliable’ informant, or whether the data he furnished was inadequate because the record does not affirmatively show that Rudy spoke of his own knowledge. Rudy's tip clearly justified Officer Wilson in initiating an investigation. That investigation provided a number of facts pointing toward the probability that defendant was, in fact, dealing in heroin at his apartment. The test of reasonable cause does not require that each single item of information come from a reliable source, or that each item point solely to potential guilt. It is the totality of all the information received, coupled with the officer's own background of professional knowledge, that is important. (People v. Gamboa (1965) 235 Cal.App.2d 444, 448, 45 Cal.Rptr. 393.)

II

The second contention is that the entry without warning or demand was in violation of section 844 of the Penal Code and that this illegality rendered the subsequent seizure and arrest illegal. As defendant points out, People v. Gastelo (1967) 67 Cal.2d 586a, 63 Cal.Rptr. 10, 432 P.2d 706 (decided after the trial in this case) holds that the mere fact that a narcotic offense is suspected does not excuse an entry that does not comply with the literal requirements of section 844. In that case, the Supreme Court announced the rule in the following terms (p. ——, 63 Cal.Rptr. p. 12,432 P.2d p. 708):

‘Under the Fourth Amendment, a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unannounced forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket basis. Otherwise the constitutional test of reasonableness would turn only on practical expediency, and the amendment's primary safeguard—the requirement of particularity—would be lost. Just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen. To the extent that People v. Manriquez (1965) 231 Cal.App.2d 725, 42 Cal.Rptr. 157, and People v. Samuels (1964) 229 Cal.App.2d 351, 40 Cal.Rptr. 290, are contrary to our conclusion herein, they are disapproved.’

We conclude that the test so stated was met in this case. The officers had seen contraband in the apartment;³ they had seen defendant, several times, peer out in an obvious attempt to see whether or not he was under surveillance. Their expressed belief that, under these circumstances, there was a special risk of destruction of evidence was not unreasonable. Compliance with section 844, as construed in Gastelo, was excused.

III

Defendant and his counsel urge that it was improper to allege his prior narcotic conviction, with the consequent effect on the length of his sentence. His objection, as we understand it is two-fold: (1) that this constitutes double jeopardy; and (2) that the prior conviction was a misdemeanor and not a felony because the commitment was to the Youth Authority.

The first point is clearly without merit. The constitutionality of laws imposing an increased penalty for subsequent offenses is well settled. (People v. Calderon (1962) 205 Cal.App.2d 566, 23 Cal.Rptr. 62.)

The second point is likewise without merit for two reasons. First: Defendant's first conviction was in 1953. At that time, a commitment to the Youth Authority was a felony conviction unless, and until, the court made an order reducing the offense—an action not taken in defendant's case. (Peole v. Garcia (1964) 227 Cal.App.2d 345, 38 Cal.Rptr. 670; People v. Zaccaria (1963) 216 Cal.App.2d 787, 31 Cal.Rptr. 383; People v. Ramsey (1962) 202 Cal.App.2d 856, 21 Cal.Rptr. 406.) Secondly: Since 1961, the test of a ‘felony’ conviction in narcotics cases is different from that in other crimes. Section 11504 of the Health and Safety Code (added in that year by section 5 of chapter 274, p. 1304 of the Statutes of 1961) provides:

‘As used in this article ‘felony offense,’ and offense ‘punishable as a felony’ refer to an offense for which the law prescribes imprisonment in the state prison as either an alternative or the sole penalty, regardless of the sentence the particular defendant received.'

Since the offense of which defendant was convicted in 1953 carried a potential prison sentence as a penalty, it follows that, in the case at bench, defendant had suffered a prior felony conviction for the purpose for which the finding in the present judgment is effective. (In re Sanchez (1966) 65 Cal.2d 556, 55 Cal.Rptr. 422, 421 P.2d 430.)

IV

Finally, defendant objects to the imposition of concurrent sentences⁴ on the two counts. Where the only possession shown is that of narcotics held for sale, not only would a double sentence be erroneous under section 654 of the Penal Code, but the double conviction would also be in error, since the possession would merge into the offense of possession for sale. In the case at bench, the Attorney General argues that, since defendant was an addict and was found in possession not only of the narcotics but of two narcotic injection kits, the trial court might have concluded that only part of the narcotics found were held for sale and that part were held for his personal use. In making this contention, the Attorney General relies on People v. Wallace (1962) 199 Cal.App.2d 678, 18 Cal.Rptr. 917, wherein concurrent convictions of sale and of possession were sustained. However, in Wallace, the narcotic (a marijuana cigarette) involved in the possession count was clearly segregated from the bundle of cigarettes that were involved in the sale, and the act of possession relied on was at a time and place other than that of the sale. In the case at bench, however, the narcotics involved were all found, packaged for sale in balloons within a single larger container—the condom. There is no possibility of segregation of any part for a personal use and only a single possession of the condom and its contents. Under these circumstances, there was only one crime—possession for sale.

The judgment and sentence on count I (violation of section 11500 of the Health and Safety Code) are vacated; the judgment is modified by deleting all reference to said count; as so modified, the judgment is affirmed.

FOOTNOTES

1.  For reasons unknown to us, no mention of the new trial motion appears in the clerk's transcript. However, the reporter's transcript shows that such a motion was made when defendant was first before the court for arraignment, on November 9, 1965, and that it was then argued and denied.

2.  Neither the clerk's transcript nor the reporter's transcript give us any light on what occurred between the order of November 9, 1965, directing that proceedings under the Narcotic Rehabilitation Act be instituted, and defendant's next appearance in the criminal court on February 24, 1966, other than a statement by the trial judge, on the latter date, that he had read and considered both a probation report and ‘the report of the California Rehabilitation Center.’ On our own motion, we have augmented the record by an examination of the superior court file. An examination of that file discloses that defendant was duly committed to the California Rehabilitation Center on November 24, 1965, that he was received by that institution on November 26, 1965, that, on February 4, 1966, the superintendent of that institution reported that defendant was, by reason of excessive criminality, unfit for treatment under the rehabilitation program, and that, on February 14, 1966, the civil proceedings were duly terminated and the criminal proceeding reinstated.

FOOTNOTE.  FNa. 67 A.C. 596.

3.  It is argued that the looking through the window was an unconstitutional violation of defendant's right of privacy. The point has been considered and rejected in many cases. (See, for example: People v. King (1965) 234 Cal.App.2d 423, 44 Cal.Rptr. 500; People v. Aguilar (1965) 232 Cal.App.2d 173, 42 Cal.Rptr. 666.)

4.  The judgment as pronounced, and as entered, does not specify whether the sentences are concurrent or consecutive. Under these circumstances, the statute makes them concurrent. (Pen.Code § 669.)

KINGSLEY, Associate Justice.

FILES, P. J., and JEFFERSON, J., concur.