Opinion
For Opinion on Hearing, see 77 Cal.Rptr. 785, 454 P.2d 681
Alan T. Selznick, San Bernardino, under appointment by Court of Appeal, for defendant and appellant Lerma.
Marshall Miles, San Bernardino, under appointment by Court of Appeal, for defendant and appellant Hamilton.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.
OPINION
McCABE, Presiding Justice.
Defendants were charged and found guilty afer jury trial of one count each of possession of heroin and possession of a restricted dangerous drug for sale. At the trial, and outside the presence of the jury, defendants' motions to quash the search warrant, to return the property and to suppress the evidence were denied. Defendants appeal from these judgments.
On July 14, 1967, at approximately 11:20 p. m., Edward Noriega, a narcotic agent, in the company of several other law enforcement officers and armed with a search warrant, arrived at a single story family dwelling in Upland, California. Agent Noriega and Lieutenant Noon of the San Bernardino Sheriff's Office proceeded to the front door of the residence and knocked. A small child came to the door and Noriega asked if her mother or Tony was home. The child answered, 'Yes,' and turned and began walking down a hallway. The agent opened the unlocked screen door and followed the child toward one of the bedrooms to the rear of the residence. At this point Noriega encountered defendant Hamilton emerging from the rear bedroom and observed defendant Lerma sitting on the edge of the bed. In front of Lerma was a large paper with a brown powdery substance on it and seven small paper bindles. On seeing the agent, Lerma put a white toy balloon in his mouth. Noriega asked him to spit it out and he complied. Defendants were then placed under arrest and advised of their constitutional rights.
A subsequent search of the premises revealed a brown paper bag containing numerous tinfoil wrapped packages of white double scored tablets and a jar containing approximately 1,000 white double scored tablets. Both items were uncovered in a dresser drawer in the front bedroom. The officers also found a large brown sack containing numerous tinfoil wrapped rolls of white double scored tablets in an opening in the ceiling located in the front bedroom closet. At trial, a State Narcotics Bureau Chemist testified that the brown powder substance on the paper and in the bindles contained heroin and that the white double scored tablets contained the dangerous drug--amphetamine.
The testimony of defendants Lerma and Hamilton may be briefly summarized: Lerma took Hamilton to a doctor in Pomona on July 14; he then remained with her for the remainder of the day; at approximately 11 p. m., Lerma received a telephone call from an unidentified man who told him there was some 'stuff' in the closet and to get rid of it; Lerma told Hamilton about the call and they began to search the closet; they found a paper folded up inside a shoe; they were examining Defendants' contentions on appeal are: (1) the motion to quash the search warrant and suppress the evidence should have been granted; (2) insufficiency of the evidence; (3) separate counsel were required at trial; and (4) prejudice resulted when defendant Lerma was observed by jury members in his jail clothing.
At the preliminary hearing and in the trial court, each of the defendants made motions to quash the search warrant, for return of the property seized and to suppress the evidence. All of these motions were premised on the contention that there was no probable cause to issue the search warrant because the affidavit in support of its issuance was insufficient. Encompassed within this contention is the argument that there was no showing in the affidavit that the reliable informant had personal knowledge of the presence of the narcotics and dangerous drugs, therefore, the magistrate had no probable cause for the issuance of the search warrant.
Among other elements it is recited in the affidavit that the reliable informant had, in the past, furnished confidential information which had led to the arrest and conviction of numerous other narcotic and dangerous drug offenders. The reliable informer had informed the officer that Nora Mae Hamilton [defendant herein] and a John Doe Tony 'have in their possession at a white single story, one family dwelling, located at 822 West Alpine Street, Upland, California, approximately three hundred (300) rolls of dangerous drugs wrapped in tinfoil in groups of ten pills per roll. * * *' The affidavit further contains the statement that 3 months before the date of the affidavit, Nora Mae Hamilton [defendant herein] had been arrested for possession of the dangerous drug--amphetamine, 'wrapped in tinfoil in groups of ten' at the same residence. Further averments were to the effect that the affiant had on the previous day observed the residence and the occupants of the house arrive at 10 p. m., and on the day of signing the affidavit had observed the residence during the daylight hours and found the car was gone with no sign of activity in or around the house.
'In determining the sufficiency of an affidavit for the issuance of a search warrant, the test of probable cause is approximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate or an indictment by a grand jury [citations] namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the accused. [Citation.] The warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.' (People v. Stout. 66 Cal.2d 184, 192-193, 57 Cal.Rptr. 152, 158, 424 P.2d 704, 710; see also People v. Hernandez, 255 A.C.A. 574, 579, 63 Cal.Rptr. 133.) The affidavit in support of the warrant in the case at bar met the above requirements.
The case of People v. West, 237 Cal.App.2d 801, 47 Cal.Rptr. 341, and cases therein cited are not controlling. The cases of People v. Stout, supra, 66 Cal.2d 184, 57 Cal.Rptr. 152, 424 P.2d 704; People v. Cain, 261 A.C.A. 413, 67 Cal.Rptr. 922; and People v. Hernandez, supra, 255 A.C.A. 574, 63 Cal.Rptr. 133, have greater force. When making an affidavit to support the issuance of a search warrant, the affiant is confronted with a dilemma. If he gives specific information as to when, where or how the informant gained the knowledge conveyed to the law enforcement officers, the affiant just as surely reveals the identity of the informant as though he specifically gave the name of the informant. By do ing It is the better rule that if from all the elements set forth in the affidavit the magistrate can imply the existence of the personal knowledge of the informant, the warrant issued should not be quashed for lack of probable cause. (People v. Cain, supra, 261 A.C.A. 413, 417, 67 Cal.Rptr. 922; People v. Hernandez, supra, 255 A.C.A. 574, 578, 63 Cal.Rptr. 133.)
On this point, information contained in the affidavit informed the magistrate the informant was reliable based upon past events; Nora Mae Hamilton had recently been arrested for possession of dangerous drugs, exactly packaged as those the informant had seen and at the same specifically described home; the informant had told this to the affiant the day before the affidavit was signed and presented; the affiant had been to the street address on the previous evening, personally observed the occupants arrive at about 10:00 p. m., and had driven by the street address in the daylight hours on the day prior to and on the day of the affidavit, finding the car was not there and no person visible. In People v. Cain, supra, 261 A.C.A. 413, 417, 67 Cal.Rptr. 922, upon a similar affidavit the appellate court determined that the failure to state the character of the personal knowledge did not detract from the showing of probable cause for it could be implied from the surrounding circumstance. (cf. People v. Hernandez, supra, 255 A.C.A. 574, 63 Cal.Rptr. 133.) From the affidavit before the magistrate, the only reasonable inference which could be drawn, without a detailed recital of the sources of the reliable informant's knowledge, was that there was probable cause for the issuance of the search warrant.
The disposition of the validity of the warrant does not terminate the appeal. The officers, although armed with a valid search warrant, broke into the house. Though the facts were that the officers entered the house through an unlocked screen door, the Supreme Court of California in People v. Rosales, 68 A.C. 307, 311, 66 Cal.Rptr. 1, 437 P.2d 489; also see People v. Gastelo, 67 A.C. 596, 63 Cal.Rptr. 10, 432 P.2d 706, has determined such an entry is a breaking within the meaning of Penal Code, § 844; cf. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (decided June 3, 1968). In Rosales, supra, the officers did not have a warrant but the determination in Rosales, supra, is equally applicable to the provisions of Penal Code, § 1531, unless there are exceptional circumstances, furtiveness (People v. Carrillo, 64 Cal.2d 387, 50 Cal.Rptr. 185, 412 P.2d 377; People v. Maddox, 46 Cal.2d 301, 294 P.2d 6), emergency (People v. Smith, 63 Cal.2d 779, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Gilbert, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365; People v. Hammond, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289), possible destruction of contraband (People v. Carrillo, supra), and other exceptions which are not present under the facts herein.
Although there was a 'breaking' in violation of section 1531, supra, and decisional law, defendants in the trial court did not enter a proper objection either in the municipal court or the superior court. On this point, People v. Flores, 68 A.C. 585, 589, 68 Cal.Rptr. 161, 440 P.2d 233, et seq. is decisive. The error was not challenged in the trial court, therefore, it cannot serve as grounds for reversal in the appellate court. (People v. Flores, supra; People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Hyde, 51 Cal.2d 152, 157, 331 P.2d 42.) As stated in the Flores case, had a proper objection been interposed, the prosecution might have been able to produce evidence that the officer complied with the requirements of section 1531, supra. (People v. Rosales, supra, 68 People v. Gastelo,
People v. Ibarra,Defendants next urge that the evidence was insufficient to sustain the convictions. The rule is well settled that when a judgment is attacked for insufficiency of the evidence, an appellate court must draw all reasonable inferences which would support the judgment. (People v. Hill, 67 A.C. 100, 116, 60 Cal.Rptr. 234, 429 P.2d 586; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.) Unlawful possession of narcotics is established by proof, (1) that the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic. (People v. Groom, 60 Cal.2d 694, 696, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255.) The foregoing elements may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Rideout v. Superior Court, 67 A.C. 475, 478, 62 Cal.Rptr. 581, 432 P.2d 197; People v. Groom, supra.)
As to Count I (possession of heroin), we conclude sufficient evidence was presented to meet the requirements of the test set forth above. Defendant Lerma was discovered in the bedroom with bindles of heroin next to him on the bed and a quantity of the drug on a paper at his feet. These facts not only indicate dominion and control and knowledge of the presence of the contraband but also, considering the condition in which the drug was observed, that he had knowledge of its narcotic nature since the jury could have inferred that he was in the process of preparing the bindles for later use or sale. Moreover, the furtive conduct of placing the balloon in his mouth immediately upon seeing the officers further supports the conclusion that defendant had knowledge of the narcotic character of the substance. (People v. Hendrix, 197 Cal.App.2d 327, 330, 17 Cal.Rptr. 79; People v. Tolliver, 179 Cal.App.2d 736, 740, 4 Cal.Rptr. 271; People v. Tennyson, 127 Cal.App.2d 243, 246, 273 P.2d 593; 2 Witkin, Calif.Crimes, § 692, pp. 634-635.)
Count II charged possession of a restricted dangerous drug for sale. In addition to the elements discussed above, possession for sale requires proof of an intent to sell, however, this element is sustained by evidence of a large quantity of the dangerous drug. (People v. Murillo, 241 Cal.App.2d 173, 174, 50 Cal.Rptr. 290; People v. Padilla, 240 Cal.App.2d 114, 116, 49 Cal.Rptr. 340; People v. Coblentz, 229 Cal.App.2d 296, 302, 40 Cal.Rptr. 116.) The quantity of white tablets uncovered in various parts of the residence, other than the bedroom where defendants were present at the time of the entry, is more than sufficient to satisfy the element of intent.
Factually, defendant Hamilton lived in the house with her child. There was no evidence that anyone occupied the house with her and her child except the inference which may be drawn from the testimony of the defendants that they believed the telephone call from an unidentified male warning them to get rid of the 'stuff' in the closet was from defendant Hamilton's common-law husband. From the evidence before us, there is no question that all of the elements to convict defendant Hamilton on Count II were present.
At the time of the entry by the officers into the house and bedroom, defendant Lerma was in the bedroom in possession of heroin. There is no evidence that at that time and place he had in his immediate possession any dangerous drugs as defined in Health & Safety Code, § 11911. The dangerous drugs found and charged in Count II were found in a different bedroom. There is no evidence or any reasonable inference to be drawn from any evidence that defendant Lerma had possession or constructive possession or constructive joint possession of the dangerous drugs as charged. Though defendant The mere proof of an opportunity of access to a place where narcotics or dangerous drugs are found, without more, will not support a finding of unlawful possession or constructive possession. Likewise, the opportunity of access will not support a finding of dominion and control or possession of a dangerous drug for sale. (People v. Redrick, supra, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Estrada, 234 Cal.App.2d 136, 155, 44 Cal.Rptr. 165, 11 A.L.R.3d 1307.) The evidence was, therefore, insufficient to convict defendant Lerma on Count II.
Defendants next urge that separate defense counsel were required at trial because one attorney could not adequately represent the two defendants under the facts and circumstances of this case. This contention is without merit. First mention of this contention was made by defendant Lerma in his motion for a new trial. It is well settled that in the usual codefendant trial the objection to joint representation must be made at the outset of the case and may not be heard for the first time on appeal. (People v. Smith, 253 A.C.A. 345, 353, 61 Cal.Rptr. 457; People v. Wilkins, 251 Cal.App.2d 823, 826, 60 Cal.Rptr. 49; People v. Winkelspecht, 237 Cal.App.2d 227, 230, 46 Cal.Rptr. 697; People v. Byrd, 228 Cal.App.2d 646, 650, 39 Cal.Rptr. 644.)
Defendants' reliance on People v. Keesee, 250 Cal.App.2d 794, 58 Cal.Rptr. 780, is misplaced. In Keesee, defense counsel virtually conceded the guilt of one of the defendants in arguing that the other defendant should be acquitted. The court held that under such circumstances the defendant whose guilt had been conceded had been denied his right to effective assistance of counsel. No such deprivation occurred in the case at bench.
Separate and individual counsel is not mandatory in every case where there is more than one defendant. There must exist an actual or potential conflict of interest, and the trial court must be so advised. (People v. Jolke, 242 Cal.App.2d 132, 140-141, 51 Cal.Rptr. 171; People v. Odom, 236 Cal.App.2d 876, 878, 46 Cal.Rptr. 453; People v. Byrd, supra, 228 Cal.App.2d 646, 648-650, 39 Cal.Rptr. 644.)
The issue as to separate legal representation having been first raised on the motion for new trial, and the court having heard the evidence, properly denied the motion for new trial. From the record and evidence there was no conflict of interest.
Defendants contend that they were prejudiced by the fact that the jury panel observed defendant Lerma in his jail clothing prior to the time the jury panel was sworn. However, it does not affirmatively appear in the record that this event in fact occurred. Moreover, defendants apparently accepted the jurors after examination for cause and did not raise the question until the motion for a new trial. Under the circumstances, it cannot be said that prejudicial error resulted. (People v. Hillery, 65 Cal.2d 795, 806, 56 Cal.Rptr. 280, 423 P.2d 208; People v. Garcia, 124 Cal.App.2d 822, 824-825, 269 P.2d 673.)
Judgments as to defendant Hamilton affirmed. Judgment on Count I as to defendant Lerma affirmed. Judgment on Count II as to defendant Lerma reversed.
KERRIGAN and TAMURA, JJ., concur.