Opinion
For Opinion on Hearing, see 77 Cal.Rptr. 217, 453 P.2d 721.
Robert P. Mandler, Los Angeles, under appointment by Court of Appeal, and Fred Leon Berutko in pro. per., for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Brian Amer, Deputy Atty. Gen., for plaintiff and respondent.
KINGSLEY, Associate Justice.
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
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 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 ---- , 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; they had seen defendant, several times, peer out in an obvious attempt to see whether III
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.)
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
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.
FILES, P. J., and JEFFERSON, J., concur.
a. 67 A.C. 596.