Opinion
Rehearing Denied May 1, 1963.
For Opinion on Hearing, see 32 Cal.Rptr. 825, 384 P.2d 153.
Joseph H. Lewis, Los Angeles, for appellant Willie James King.
E. V. Cavanagh and Don Edgar Burris, Los Angeles, for appellant John Mackey.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., George W. Kell, Deputy Atty. Gen., for respondent.
FOURT, Justice.
This is an appeal by Willie James King and John Mackey from separate judgments of Guilty of possessing heroin for sale. King was also found guilty of possessing marijuana.
In an information filed in Los Angeles County on November 2, 1961, King, Mackey and a nonappealing codefendant were charged in Count I with a violation of the provisions of section 11500.5, Health and Safety Code, in that they had possession of certain heroin for sale on September 27, 1961; in Count II the same above named defendants were charged with the possession of heroin on September 27, 1961; in Count III King was charged with violation of the provisions of section 11530, Health and Safety Code, in that he possessed marijuana on September 27, 1961; in Count IV Mackey and the nonappealing codefendant were charged with violation of the provisions of section 11500.5 of the Health and Safety Code in that they possessed heroin for sale on September 27, 1961; and in Count V, Mackey and the nonappealing codefendant were charged with violation of the provisions of section 11500, Health and Safety Code, in that they possessed heroin on September 27, 1961. Mackey was also charged with three prior felony convictions, namely, sale of narcotics, forgery and burglary.
Motions under section 995, Penal Code, were made and granted as to Mackey as to Counts I and II. Not guilty pleas were entered by all defendants. Jury trials were waived and upon motion of King his trial was severed from that of his codefendants. King was found guilty as charged in Counts I, II and III. Mackey was found guilty as charged in Counts IV and V. The court found that first alleged prior conviction to be true. No proof was offered on the second charged prior and no finding was made on the third charged prior.
Each appellant was sentenced to the state prison.
A resume of the facts as they pertain to King is as follows: he operated an upholstery establishment in the rear of the premises referred to as 711 West Florence Street. Officer Loeber of the Los Angeles Police Department had received information that King had sold narcotics from his shop. On the day of the arrest the officers received information that King was still selling narcotics from the above address and that he had heroin secreted in the first sewing machine as one entered the place of business. The officer, with other officers, went to the place of business, where they met King and told him of the information which they had and asked if they might search the place. Consent by King was given. Officer Loeber went to the sewing machine of which they had been told and there found a container in which there were seven balloons containing what appeared to be heroin. The officers stated that the name of the informant was Joseph Samuel Mackey, Jr., known as JoJo, a known narcotic user and seller. Officer Northrup of the Los Angeles Police Department conducted an investigation of King's home at 720 West 45th Street, a two story residence building. Northrup got there at about 12:15 p. m. and knocked on the door. An elderly lady answered. The policeman identified himself and the elderly lady and Inez King, the wife of the appellant King, who was also present, invited the officer into the building. Inez was asked where appellant was and she answered that he was at work. Northrup stated that they had information to the effect that narcotics were being sold from the house. Mrs. King gave the officers permission to search the place, after stating that there were no narcotics there. She showed the officers the bedrooms used by King and herself. The officers located a grey sport coat hanging in the closet (which King later admitted was his coat) in the inside pocket of which was found a gun, which King admitted was his, and some marijuana was found in the left side pocket. They also found cellophane bags containing balloons, some straw cigarette papers and some milk sugar. There was expert testimony to the effect that the latter named articles constituted narcotics paraphernalia. Officer Northrup was not aware at the time of the search that King in fact at the time of the search had been arrested at his shop.
Officer Loeber had told Officer Northrup that he, Loeber, had information to the effect that King was selling narcotics from the house and it was because of that information that he, Northrup, went to the house and sought the interview. In any event there is no question of probable cause raised by King. His counsel so stated to the trial judge and no assertion of lack of probable cause is made here. The sole contention is that the evidence is insufficient to establish that King had knowing possession of the narcotics.
It is true that [t]he crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotics substance. (People v. Foster, 115 Cal.App.2d 866, 868, 253 P.2d 50; People v. Barnett, 118 Cal.App.2d 336, 339, 257 P.2d 1041; People v. Gory, 28 Cal.2d 450, 454-455, 170 P.2d 433.)
'To show such knowing possession the conduct of the parties, admissions or contradictory statements and explanations are frequently sufficient.' (People v. Foster, 115 Cal.App.2d 866, 868, 253 P.2d 50, 51.)
There is no doubt that the heroin was found in the appellant's sewing machine and he was in the immediate vicinity and in charge of the establishment at the time of the finding of the heroin. There can be no substantial question as to the issue of physical possession of the heroin. (People v. Vice, 147 Cal.App.2d 269, 274, 305 P.2d 270; People v. Noland, 61 Cal.App.2d 364, 366, 143 P.2d 86; People v. Sinclair, 129 Cal.App. 320, 322, 19 P.2d 23.)
Knowledge of the presence of the narcotic must of necessity be proved by circumstantial evidence. The possession may be constructive as well as physical. Proof of other acts may be admitted to show guilty knowledge. (People v. Van Valkenburg, 111 Cal.App.2d 337, 340, 244 P.2d 750; People v. Torres, 98 Cal.App.2d 189, 192, 219 P.2d 480; People v. Flores, 155 Cal.App.2d 347, 349, 318 P.2d 65; United States v. Pinna, 7 Cir., 229 F.2d 216, 218.)
King had possession of milk sugar and balloons at his house which, according to expert testimony, were items used in the narcotics trade. It would seem that the possession of such paraphernalia is evidence of King's knowledge of the presence of the heroin in his shop. (See People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Garcia, 187 Cal.App.2d 93, 101, 9 Cal.Rptr. 493.) Furthermore he had the wheat straw cigarette papers used in rolling marijuana cigarettes which, under the circumstances, confirmed the fact that he was very familiar with narcotics. The judge found that appellant There was sufficient evidence under the circumstances to support the judgment of the trial court. This court can take judicial notice of the fact 'that capsules and milk sugar are used in the processing of narcotics.' (People v. Torres, 56 Cal.2d 864, 867, 17 Cal.Rptr. 495, 497, 366 P.2d 823, 825.)
A resume of the facts as they pertain to Mackey is as follows: Officers Loeber and Leeds received information about two weeks prior to September 27, 1961, that a person known as JoJo was going to an address on 51st Street where he was buying narcotics and later selling the same to users. Soon thereafter they saw JoJo, later known to them as Joseph Samuel Mackey, Jr., leave the premises designated as 919 West 51st Street and go to a new Chevrolet sedan occupied by two men and two women, the latter two of whom were recognized by the officers as being narcotic users. The next day the officers watched the premises above mentioned and saw JoJo leave the house and as he did so saw him talking with John Mackey, the appellant, at the doorway. Following this the officers saw some of the occupants from seven different cars visit the premises: in each case an occupant of one of the cars which was there would go into the house, remain for a time and then leave. During this watch the officers recognized at least one of the persons coming to the house as a narcotics user. During the following days the officers kept the premises under surveillance and also observed the premises at 720 West 45th Street (King's home) and the premises at 711 West Florence (King's place of business). They frequently saw JoJo's white Cadillac parked in front of Mackey's house.
The police received information from JoJo about a week before the arrest and on the day of the arrest that he had purchased narcotics from Mackey. At the time of receiving this information from JoJo he was not under arrest.
King was arrested prior to Mackey's arrest. The information provided by JoJo with reference to King turned out to be accurate. In fact, he advised the officers exactly where they would find the heroin in King's shop. Officer Loeber, who made the King arrest, called Officer Leeds and told Leeds of the arrest of King and the finding of the heroin at the shop. Loeber told Leeds that in the light of the fact that JoJo's information was correct with reference to King it was probably all right as far as Mackey was concerned.
At about 12:30 p. m. Leeds went to the front door of Mackey's house and knocked. There was no response. Leeds shouted into an open window at the right of the front door, identifying himself as an officer and seeking entrance. There was no answer and he then removed a screen and entered the house through the open window. He shouted again, giving his identity and there was no response. The door was unlocked by Leeds from the inside and other officers entered the house and started to search the premises. In the kitchen they found a small funnel and measuring spoon, commonly used in measuring out heroin, and they also found two milk sugar cans, one of which was partly filled. Also located in the house was another measuring spoon, some foil paper, and a packet of balloons, all of which are commonly used in the packaging of narcotics. They found a balloon of heroin wrapped in foil secreted in a clothes basket. Mackey admitted at the time of his arrest that he lived in the house. There was expert testimony to the effect that the quantity of heroin found, together with the paraphernalia, indicated that the heroin was possessed for sale rather than for use by Mackey. Mackey asserts that the officers made an illegal entry and that the search and arrest were without probable cause. As heretofore stated Leeds was told that Mackey was selling narcotics from the premises at 919 West 51 st Street. The officers had also talked to Officer Loeber just prior to the entry into the house and were told by Loeber that JoJo's information was correct
'To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.'
When officers have probable cause to arrest a defendant and reasonably believe that he is occupying a house, they may use force to enter, if necessary, after complying with the statute. (People v. Miller, 143 Cal.App.2d 558, 561, 299 P.2d 1010; People v. Carswell, 51 Cal.2d 602, 607, 335 P.2d 99.) It is not required that there be literal compliance with the provisions of the code section. (People v. Morris, 157 Cal.App.2d 81, 320 P.2d 67, cert. denied 358 U.S. 935, 79 S.Ct. 325, 3 L.Ed.2d 307.)
It was not necessary that the arrest precede the search and seizure. Where the search and seizure and the arrest are part of the same transaction the search and seizure may occur prior to the arrest. (People v. Vice, 147 Cal.App.2d 269, 273, 305 P.2d 270; People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531; People v. Kelly, 195 Cal.App.2d 669, 680, 16 Cal.Rptr. 177.)
There was ample evidence to establish in the minds of the officers that Mackey was selling and possessing narcotics. The officers testified on direct examination that they relied upon the information supplied to them by JoJo and what they personally observed as the grounds for the arrests and searches and not upon any information received from any other informant.
The record discloses no error in the trial of the case.
Appellant Mackey now asserts that this court should have appointed another counsel to represent him in this court. The record discloses that this court did appoint a competent attorney at law to represent appellant on the appeal. Apparently appellant became dissatisfied with the manner in which appointed counsel was proceeding in the matter and in effect asked that such counsel be discharged and new counsel be appointed. Under the circumstances this court granted the request of such counsel to be relieved as court appointed counsel and advised appellant to file his opening brief in his own behalf within 30 days if so advised and denied appellant's application for new counsel. Denial of counsel under the circumstances was proper. (People v. Hyde, 51 Cal.2d 152, 154, 331 P.2d 42; People v. Tabb, 156 Cal.App.2d 467, 319 P.2d 656.)
Appellant is not entitled to have the court appoint one attorney after another until one wholly satisfactory to appellant is selected. No such procedure ever was contemplated.
If an attorney is doing that which is proper (and in this case appointed counsel so far as our records indicate was doing that) although such course may not be to appellant's liking, appellant is not entitled to have his appointed counsel discharged and other counsel appointed. It is enough to appoint competent counsel.
With reference to King the judge at the time of sentence, upon his own motion, dismissed the charges set forth in Count II of the information and sentenced the appellant King to the state prison upon Counts I and III, the terms to run concurrently.
With reference to Mackey, at the time of sentence the judge found the prior with reference to the federal conviction for the sale of narcotics to be true. He was sentenced to the state prison upon Count IV and Count V was dismissed upon the court's own motion. No finding was made with reference to the third prior felony conviction The judgments are and each of them is affirmed.
WOOD, P.J., and LILLIE, J., concur.