People v. Easley

ASHBURN, J.

Defendant, after a nonjury trial, was convicted of violation of Penal Code, section 337a, subdivision 2, in that he and his codefendant Johnson did, on May 8, 1956, occupy an apartment in the city of Los Angeles for the purpose of recording and registering bets on horse races. The court suspended proceedings and granted probation. Defendant moved for a new trial which was denied. Thereupon defendant filed a notice of appeal “from the judgment therein entered” and from the order denying a new trial.

As no judgment was actually entered the respondent raises a question of the effect of a notice of appeal worded as above indicated. Section 1237, Penal Code, was amended in 1951 to provide for an appeal by a defendant from an order of probation, saying in subdivision 1: “. . . an order granting-probation shall be deemed to be a final judgment within the meaning of this section.” Since that amendment it is immaterial whether a defendant appeals in terms from the order of probation or from the judgment. For purposes of appeal they are interchangeable terms. It was so held in

People

v.

Goldstein,

136 Cal.App.2d 778, 793 [289 P.2d 581], and

People

v.

Reed,

128 Cal.App.2d 499, 500, 502 [275 P.2d 633]. The instant appeal is to be treated as one taken from the probation order.

Appellant’s sole argument is that he was convicted through use of evidence seized as a result of a wrongful search, which evidence he seasonably and unsuccessfully sought to suppress. The claim is found to be without merit.

On May 8, 1956, Officers Braun and Andrews, of the Los

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Angeles City Police Department, were possessed of information that bookmaMng was being conducted at premises whose telephone number was Adams 1-7251. The source of the information was not disclosed to the court. They found said telephone number to be that of a residence, apparently an apartment, at 111 West 40th Place, Los Angeles, listed in the name of Eva May. The officers on that same day “staked out” that residence, parking their unmarked car some 75 feet away and watching what went on for about an hour. During that period some 10 to 12 people would approach the front door, knock once, wait a brief period, the door would open and they would enter. After a lapse of five to ten minutes each would leave the premises. The officers then placed themselves on the side of the house, close to the front door. About 3 o’clock an unidentified man climbed the stairs of the front porch, went to the door, knocked, and while he was awaiting admittance the two officers came up behind him and looked through the open door. When Braun, who is an expert on bookmaking customs and practices in the area, did so he saw Johnson standing inside, to the right of the living room door, and defendant Easley seated at a table in the kitchen which adjoined the living room, the intervening door being open. Easley was telephoning; on the table in front of him were a racing form, several copies of National Daily Reporter, some scratch sheets and a “magic slate.” Just to the left of the slate and in front of Easley was a pad of white paper about 6 by 3 inches in size with a betting marker on the top sheet. Defendant had a pencil in his hand and was about to write on the slate when Braun entered the living room. As he passed Johnson the latter said “Eas” and defendant Easley immediately lifted two pieces of paper from the slate and writing which the officer saw thereon as he approached immediately disappeared. Thereupon an arrest of Easley and Johnson