*1 to judgment, entitle the defendants sufficient facts liberally plaintiffs, construed, show that there was those Development (Towne Lee, fact tried.” Co. v. no issue Cal.Rptr. 403 P.2d 316, 724].) Inas- 63 Cal.2d present triable herein to the much the declarations issue summary foregoing judgment rules, court, under the trial proper. The order reversed. J., J.,
Wood, Fourt, P. concurred. Aug. 9, Dist., Div. Four. 11435. Second 1966.] No. [Crim. Respondent, RICHARD Plaintiff and v. THE PEOPLE, Appellant. CRUZ, FERMIN Defendant *2 appointment by Dis- Dorothy Goldberg, under Powell Appellant. for Defendant and Appeal, Court trict James, General, E. Lynch, Attorney William C. Thomas Stephen Silver, Deputy Attorney and H. General, Assistant Respondent. Attorney General, for Plaintiff charged a violation of Defendant waswith KINGSLEY, J. Safety (possession of Code 11500.5 of the Health section prior felony convictions, both for bur sale) ; two heroin 995 of the alleged. After motion under section glary, denied, pled not made and defendant had been Penal Code duly priors. jury was Trial waived guilty and denied the transcript prelimi of the on the case was submitted supplemented testimony additional examination, nary stipulation (hereinafter People part of the to have testified in a discussed) defendant be deemed guilty court found certain manner. report. charged probation Thereafter, and ordered a offense Code,1 then of the Penal pursuant to what was section suspended proceedings proceeding under the criminal were instituted and defend Rehabilitation Law the Narcotic to the Narcotic Rehabilitation Center. ant committed *3 by the authorities he returned to court of Thereafter was that acting provisions the of institution, purportedly under section grounds: Code,2 (1) on that Penal two 6453 of the burglary offenses; (2) of parole for one the that was on security he was a past history indicated that serious programs in narcotic treatment problem and that his attitudes parole systems had prison shown him to the conducted proceedings resumed, uncooperative. The criminal were be the trial only court, having formal of before it not the order returning defendant to it but a Director of the Corrections report based, that order copy on which was of the evaluation finding having as follows: “The Defendant a formal made been Rehabilitation Center returned the California as not finding makes a subject program, the Court that fit their part on the of that Institu an of discretion abuse this was ’’ court. of the in view the evidencebefore tion priors alleged, be true as then found the The court two prison state probation denied3 and a sentence was was 3051, Welfare and Institutions Code. 1Now section 3053, Welfare Institutions Code. 2Mbw section expressly supplementary probation 3Defendant waived a and current report. (cid:127)140 may “any he other sentence concurrent with
imposed, to run appealed.4 has serving.” Defendant urges following contentions: appeal, defendant the On against him was obtained the introduced that evidence (1) face; stipu- (2) on that invalid its a search warrant use of by defendant, to, referred testimony above lation as plea guilty to a of made without it amounted improper because approval defendant; (3) of that defendant has or the consent present jeopardy by subjected double reason been Rehabili- after earlier commitment to the sentence entered prelimi- that of the case on the Center; (4) submission tation process law; transcript denial of due nary amounted are inconsistencies the evidence not that there (5) explained. satisfactorily I three of disposed The last these contentions can be briefly. alleged that, inconsistencies consist of fact undisputed while it was that both compan- defendant and his properly rights ion warned of their constitutional silent and to consult counsel, divergent remain there was testimony gave warnings. as to officer Such inconsis- go weight only to the tencies evidence, for the are trial court, implicit and its determination, decision, its ultimate binding here. contention, fourth support In counsel on relies Gray (N.D. opinion of a federal district court v. Wilson But, 1964) F.Supp. subsequent filing Cal. to the 860. expressly appellant’s brief, decision overruled appeals (Wilson Gray (9th 1965) court of v. Cir. 345 F.2d (382 282 and denied certiorari was U.S. S.Ct. 234]). 15 L.Ed.2d We conclude constitutional validity part transcript of a in whole or in submission preliminary is now of a examination settled. nonpunitive
The contention that the commitment for treat- prohi- ment under the Narcotic Rehabilitation Act violates the against jeopardy bition double a defendant where is thereafter discharged program prison from that and sentenced to has rejected, repeat been reasons which we need not here. *4 request, augmented appeal by 4At defendant’s we the record exami original superior file, nation of the court which contains a record of the proceedings above summarized affidavit search warrant here (cid:127) inafter discussed. Cal.Rptr. 468, Reynoso (1966) (People 64 Cal.2d v. [50 812].) 412 P.2d
II
principal
an attack on
trial, defendant’s
effort was
At the
against him
had been
admissibility
evidence
of
hereinafter
considered.
procured under
circumstances
invalidity
rejected
contentions of
of a search
trial court
of unlawful
search
warrant and connected issues
and seizure.
stipulation,
tendered
a
which was
Defense
counsel
then
concerning testimony by defendant. The record
accepted,
following
that connection:
Your
shows
“Mb. Arthur:
following
offer
Honor,
this time the defendant would
at
testify
were called to
stipulation,
that
if the defendant
one,
deny
any
that
testif3'-,
he,
that
would
contraband at
did
living
going
that
apartment
he was
at
time was
at which
slight
sale, other
a
amount or amounts for
be used for
than
stipulate
Secondly, the defendant has offered to
that
use;
own
using
time,
that
and was
was a user
narcotics at
Leeds,
related
amount
that he told Officer
to this Court
Thirdly,
occupying
particular
Leeds;
that he was
that
Officer
apartment
person,
female,
with another
and that
to his
knowledge she
also a user of
narcotics at that
time.
Mr.
willing
stipulate
I am
to the substance of what
Boon:
your
said,
way
has
I feel
that
counsel
he has
Honor.
stipulation
his offered
has
it
worded
the same defect that
had
yesterday.
said, ‘if
called,
He
the defendant was
he would
’
testify so.
’
Maybe
testify
:
he added this other
did
‘and
“The
Court
stipulation,
you
did
: Yes. The Court
:
Arthur
not,—
Mr.
offering
stipulate
that
You are
the defendant has been
called, sworn,
testified;
your stipulation?
and so
is that
Mr.
your
Yes,
is,
join
it
Honor. Mr.
will
in the
I
Arthur:
Boon:
stipulation. that,
stipula-
: And
if I understood the
Court
correctly,
any
going
tion
that not
of the contraband was
’’
slight
used for sale other than a
amount for his
use ?
own
People
counsel in
court
Defendant’s
this
relies on
v.
Rogers (1961)
Cal.Rptr. 660,
892],
142 degrees and, such, required of homicide
the two lesser personal concurrence of the But clear defendant. here the admit, stipulation no further than to on behalf went of defendant, or facts, certain facts. Whether not those taken together evidence, support finding other would a with charged, offense, lesser or of no offense or of some offense at argument and for all, remained a matter the exercise of judicial determination. Attorney points out in the then
As the General status of the case, court there was before the evidence which overwhelm finding ingly supported possession by of heroin defend trial purpose not, ant for the counsel could if the sale. stipulation (and that out in the were true is not facts set deny denied), to take the stand and allow his client testi mony People’s from the witnesses which incriminated him. attorney (a) faced with three choices: then was to rest tactic which could without further have had no testimony—a charged; (b) than a conviction of the offense result other place stand, version, him on the have tell his neces his client admitting—either sarily on direct or cross-examination— which, if stipulated to—a tactic defendant the facts here “good” witness, might not a unprepossessing or otherwise keep client prejudice him; (c) stand, or his off the well candidly truth, hope with and admit as little as was consistent always from for some favorable reaction the court. These are strategy trial and tactics5 considerations of and the difficult part professional by counsel is of his determination thereof attempt guess obligation. cannot, and do not to second him We (1966) 130, Brooks 140 (People v. 64 Cal.2d here. People and v. Cal.Rptr. 879, ; P.2d Dickerson cf. 383] Cal.App.2d Cal.Bptr. 113].) (1966) 73 [51 Ill investigating time, police had been the activi For some they Tellez of a woman named whom ties of defendant in the of narcotics. On November suspected of involvement sale investiga forth the of that 23, 1964, Leeds set results Officer presented warrant which in an for a search tion affidavit magistrate Angeles County, and on the of Los basis which a a search warrant issued. forth We set hereinafter contents police Among information secured of that affidavit. parole, defendant was on that he had vio the fact that problems in of these California Criminal Law 5Consult the discussion (Continuing of the Bar Practice Education Practice Handbook No. 565-568, 1964), pp. §§ 13.28 and 13.29. parole for his arrest as a parole, that a warrant lated obtained outstanding. the data Armed with violator was warrant, Officer the search police investigation, and with officers, the address by three other went to accompanied Leeds, (which the residence of Mrs. forth in warrant set parole violation. defendant Tellez), entered and arrested rights They constitutional as to his advised They counsel. then searched remain and to be advised silent quantity heroin, premises and discovered substantial sugar dextrose, milk other materials of a cans of commonly package heroin type to “cut” for sale. used *6 analysis Subsequent of the heroin disclosed that some it was percent pure percent—strengths beyond and the rest 25 far ordinarily approaching that of used an addict and heroin strength. (if exceeding) part not a lethal After of the incrimi nating found, arrested, evidence had been Mrs. Tellez was also similarly rights. warned of her constitutional When first knowledge interrogated, denied all defendant the articles but, found as evidence, the search disclosed additional defend ant told the officers that all of the heroin was his and made incriminating other statements.6 although statements, not in defendant’s obtained
Since vio- you how often it could be cut when he proximately three out of one.’ that we had there. This is all that he very location, proximately it there? good. half in a milk the house very money had done a little work off and from his officer, the "A. "A. up ‘ ‘ "Q. "A. Yes. He stated ‘ ‘ "He stated at this 6"A. Yes. ‘ Q. When he told you that he right He stated that Oh, his; much, good. into all of the narcotics and was in violation of that and that he didn’t Did he tell Well, I believe he stated that 2770 West parole that he had dresser drawer belonged This is all he said just enough you a eight quarter sugar he said he Mr. Cruz was shown the bindle found is also mine. I officer and had been ’ months, to 8th you can that was time, paid a him; had day, quarter-ounce that all to Street, in the bedroom. it was about an ounce and a half had and that he had been been keep up ‘All the $300 feel that he that we pertaining parole. on, bought that living [*] there was an ounce for found and that paid narcotics approximately [**] had narcotics any living That found have saved it. here with Christina Tellez for ap an ounce and had cut said, [*] habit; $300 purchased to of the a approximately is about the—in a kitchen cabinet. with that, day; that an that we it? it; the house. that he money that was found in narcotics running ounce for he said that Christine Telles at that he you that eight an the the ’ found found ounce and had cut had been conversation. he was condom would have been months; wasn’t from his parole an there was very it, that he had is mine. The ounce and a it was not did he tell it using the house found peddling into all running that he ’ ’ ap in rule, obviously the result Escobedo-Dorado lation of the products, it is not denied that their and its of the search validity search or falls with the of the stands admission itself.7 argues Attorney that the search General valid warrant, on theory to the search without reference that it parole incident defendant’s lawful a a arrest as was mere adequately present did not violator, and concerning at (cid:127)present the warrant the trial. contentions We point and, think is without merit8 find the latter since we valid, been we not here have need decide whether warrant to type regarded herein made not can be or 11 a search as ” charge on a unrelated to an arrest to the incident narcotic parolee object may far a traffic, nor how to a search of he found.9 premises on which is recently considered, length, grounds at We have on may validity at be made the trial which an attack a imposed constitutionally warrant, and the standards search supporting warrant and the affidavit it must which such a be Aguilar (1965) Cal.App.2d judged. (People v. 502 [49 (at 507) p. As said Cal.Rptr. 584].) there : we “The issue, issue, or search warrant determination magistrate application primarily made, whom is is only is authorized set the warrant aside court deposition law, affidavit or which it if, a matter of bn probable required shows, face, on its based cause by section 1525 of the Penal Code is the Constitution Agui lacking. And, as we discussed [Citations.]” *7 lar, sufficient, affidavit, only if it relies on informa to the be informer, (a) must set unidentified forth tion from an facts magistrate may, himself, determine that which the the from (b) appears from it credible, and facts was informant knowledge spoken of and had his own was that informer the transmitting hearsay. the affidavit meets merely- not Unless above, stipulation 7Similarly, pointed trial out at the we have as testimony by impelled the admission of the evidence was defendant’s may search; People by valid the the search was not obtained unless rely support stipulation to the conviction. on the trial, forth, opening of 8At defense counsel set as one being defenses, proposed that he to attack the search warrant as in two sufficient argued duly A to strike the evidence made and on its face. motion length; required. do not see how could be at we more point, (1965) People v. Gastelum 237 9As the latter consult: Cal. App.2d Cal.Rptr. 743]; People (1965) Cal.App.2d v. Giles 205 233 [46 758]; (1964) Cal.Rptr. People Cal.App.2d 643 v. Hernandez 229 143 [43 100], Cal.Rptr. it tests, only these is sufficient if the data from an informant is adequately by shown to have been independently corroborated credible data proceed We secured. to test the affidavit herein involved these rules. pertinent portions of the affidavit are set forth in an
appendix opinion. setting In addition to forth data as police investigations made defendant, Mrs. Cruz investigation husband, verifying her and to an infor- statements that Cruz mant’s Mrs. resided at the address involved, that she owned her, the automobile attributed to driving that defendant had been found vehicle, affi- alleged: davit “Affiant received information from a confiden- tial reliable informant who has furnished information in the past persons, that has resulted of 7 the arrest 6 for 11500 H&S, parole. one violation of These cases are still adjudication waiting Angeles in Los courts. Informant has given proved never information which 11- incorrect. On person 13-64 Informant stated to affiant that a known as living dealing Richard Cruz narcotics from 2770 W. living 8th person St. That he was at this location with a age approx known Tellez years. as Christine and her son That Mrs. Tellez’ husband had been arrested at this location approximately year ago possession approximately one telephone ounces of heroin. Informant further stated that a call would made to 382-9435and talk Mr. be he would then Cruz and order what narcotics was wanted and Mrs. [sic] place meeting. Cruz then set a time and for a would [sic] usually Any meet be made near amount would 6th Hoover. & during of heroin could be ordered and delivered this transac- ’’ tion. urged that It the affidavit was insufficient (a) because credibility the unidentified informant was not shown allegation given had mere information in eases, seven alleged to have (b) none of which resulted convictions, spoke that the the affidavit does show informant of his own (e) adequate knowledge, the affidavit shows no corrobora- independently informant, tion of in that all secured data or was either consistent with innocence too remote in time to present activity. support a conclusion narcotic independent need not consider the matter of We corrobora- allegations relating that the affidavit’s tion since we conclude support sufficient to to the informer were themselves warrant.
It the affidavit not show that informer is true that does *8 past, procuring instrumental heen narcotic had, allegation quite commonly such an But while convictions. credibility, only way is not it which on to show relied appear. keep in credibility may made to We mind be person magistrate was the to convinced that be and that his determination credible binds us so
informant was man could have long any reasonable so found. We cannot as proved data has sufficient to say an informant whose arrests, make seven and who—it is officers to induce trained given information positively alleged—“has never ’’ deemed, by could not be a reasonable proved incorrect to be magistrate’s is in “credible.” The interest magistrate, person; truthful informant is a it is not or not the whether give informant who has told credence to an to unreasonable occasions, previous whether or not on seven similar the truth enough prosecutors to turn were efficient policemen and use. data successful alleged sufficiently conclude, also, that the affidavit We part informer. We are knowledge personal on “in common sense enjoined affidavits to read such (1965) 380 (United v. Ventresca States fashion.” realistic 741, 684, 689].) 13 L.Ed.2d Bead 746, S.Ct. U.S. magistrate was warranted think the fashion, we in this purchases10 allegations past as indicate concluding that the of recent date. informant participation personal valid, was being sufficient, the warrant affidavit The admissible, and that evidence was its use obtained the conviction. sustains affirmed. judgment is J., concurred. Jefferson,
Files, J.,P. August 29, 1966, rehearing denied was petition A opinion then rendered: following and the petition rehearing, THE COURT. In a counsel argues that, counsel, court, since both of the trial and the trial subsequent holding (in People were unaware of the v. Butler telephone be made to call would that a further stated 10‘Informant narcotics was Cruz and order what Mr. and Tie would then talk to 382-9435 place for a set a time and Cruz would then [sic] and Mrs. wanted [sic] Any usually &6th Hoover. amount meeting. near be made meet would during this transaction. Informant delivered be ordered heroin could brn, Olds, at times to make a 1959 2dr drive Cruz would stated ’ ’ ‘‘ ’’ Clearly referring have read would delivery. it not unreasonable future, anticipated past, events. and not *9 819]) an 4, P.2d Cal.Rptr. 415 842 (1966) 64 Cal.2d only might trial not be made at the warrant on a search attack by way sufficiency of traverse legal of the affidavit but as to the “ say impossible to testi- stated, It is what of the facts therein pro- had mony up turned both counsel been could have been However, an of Butler ease.” ceeding the rule under spite objection that, in the record discloses examination of attorney, trial court extensive prosecuting allowed officer-affiant; do we not see what cross-examination parties if could have been made even further traverse anticipated Butler. had rehearing petition for is denied. Appellant’s petition hearing by Supreme for a Court 4, denied October 1966. was
Appendix support “Pacts of issuance of search warrant: Tour police for years affiant has been a officer 13 and has been assigned years. 7 Narcotic Division for Affiant has made possession possession, sale, hundreds of arrests for for sale and expert use of narcotics. Affiant has testified in court as an possession, parapher- the field narcotics as use and the nalia used in both instances. Affiant received information from a confidential reliable informant who has furnished informa- past tion has resulted in 7 persons, the arrest of 6 H&S, 11500 and for one for parole. violation of These cases are adjudication waiting Angeles still in Los courts. Informant given proved never has information which to be incorrect. On 11-13-64 Informant stated to person affiant that a known as living dealing Richard Cruz was and narcotics from 2770 W. living 8th St. That he was at this location person with a known as Tellez her age approx Christine and son years. That Mrs. Tellez’ husband had been arrested at this location year ago approximately possession one for of approximately 4 ounces heroin. Informant further stated that telephone call would made be to 382-9435and he would then talk to Mr. Cruz and order what narcotics was wanted and Mrs. [sic] Cruz place would then set meeting. time for .a [sic] usually meet would made near 6th & be Any Hoover. amount of heroin could be ordered during and delivered this transac- tion. Informant stated Cruz would drive a 1959 Olds, brn, 2dr delivery. at times to make Also the informant stated Cruz was probably parole. wanted for violation of Affiant phone checked registered number 382-9435 and found it to Christine Tellez at A cheek the mail box at address, 2770W. 8th. the above family found it to have name Mrs. Tellez location LYE the box. Affiant checked license number outside of registration registered owner as Christine 754 and showed Maga partner, 8th Affiant and Officer 2770 W. St. Tellez at participated in the the husband who arrest of were the officers Espiranzo Tellez, Tellez, on 1-23-64 when Tellez of Christine parole possession of heroin arrested violation grams (4 approximately 100 Affiant and officersfound sale. arrest). St., 8th location of At this ounces) at 2770 W. her Peter at this Tellez and son were residents
time Christine LYE observed the above vehicle Officers address. driving. location one Olds, 2dr brn leave above with male mex. stopped driver identified Richard Permia Vehicle was beloning Tellez. This and the vehicle as to Christine Cruz relayed by Sergeants to affiant Evans information past information the affiant has found Olson whose *10 Angeles Dept, and R&I was checked at Los Police reliable. affiant Permia Cruz AKA Richard Medina found Richard an LA to have arrest record for violation Cruz, #148633-C Narcotic juvenile, Narcotic Act as a violation of State State danger leading life, in 1952 found in immoral LA. Act County February Youth Author Court 1953. Sent to Juvenile years proba ity. burglary 11-8-56, to 5 Arrested sentenced county jail. suspicion Arrested 6-18-57 tion, 6 months 10-15-57, 10-29-57 convicted of bur burglary, Prison. State County years, parole 15 glary from 6 months to 4-29-59. L.A. days County Jail, 1 VC, 360 count dis 4-17-61 CTA & parole 11-19-62 4-20-64 parole, missed. violation of returned tent, discharge R&I further date 3-1-70. showed there was parole by Reg. present at a want for violation of Admin. L.A. (66 5) B.S. Also Officers checked Griggs reference SAC. SC her to be convicted of the record of Tellez and found Christine suspicion suspicion H&S, days, of narcotic act years. CIW, 2-4-58committed 6 months to 10 narcotics 12-9-57. tent, discharge 5-5-60, Paroled 2-17-63.”