Opinion
For Opinion on Hearing, see 34 Cal.Rptr. 863, 386 P.2d 487.
David C. Marcus, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.
WOOD, Presiding Justice.
Defendant was accused of unlawfully possessing heroin. It was also alleged in the information that defendant had been 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, 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 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 People v. Martin,
People v. Gonzales,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, 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. 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 In re De La O, The judgment is affirmed.
FOURT and LILLIE, JJ., concur.