People v. Valenzuela

HERNDON, J.

Fidel Nirea and Dora Valenzuela were jointly charged with possession of heroin. After entering pleas of not guilty, defendants waived jury trial and their causes were submitted on the transcript of the testimony taken at the preliminary hearing. Both defendants were found guilty. As to Nirea, charges of three former felony convictions (robbery in 1948, escape in 1949, and possession of narcotics in 1955) were found to be true, and he was sentenced to state prison. Nirea alone appeals, advancing the single contention that the evidence of his possession of the contraband is insufficient to sustain the conviction.

On October 8,1958, Police Officers Virgin, Pace, and Appier went to a hotel building at 2407% North Broadway in Los Angeles. Appier and Virgin stationed themselves outside the building. Appier stood directly beneath a second-floor room on the northwest corner of the building, and Virgin stood underneath a window on the north side. Pace proceeded up the stairs to the second floor. Thereupon, Virgin heard a loud pounding on the door above his head and then heard a male voice in the room above him state “Who is there?” Officer Virgin heard Sergeant Pace say “Police Officers.” The male voice inquired “What?” and Sergeant Pace stated again “Police Officers.” At that time the window directly above Officer Virgin’s head opened and defendant Valenzuela leaned out the window and “made a backward throwing motion of a blue object.” Sergeant Appier caught this object before it hit the ground. Upon examining the object which Appier had caught, the officers found it to be a blue box containing a spoon, a cigarette package which contained an eyedropper, a needle, one full gelatin capsule containing a whitish powder subsequently identified as heroin, one partially filled gelatin capsule and one empty gelatin cap.

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Officers Virgin and Appier then entered the hotel and went up to Room 5 where Sergeant Pace was standing in the doorway. They placed defendant Valenzuela under arrest and asked defendant Nirea if he lived there. When Nirea answered in the affirmative, the officers placed him under arrest for narcotics violation. Upon entering the room Officer Virgin asked defendant Valenzuela if she had thrown the blue package out of the window. She made no answer.

Later, Valenzuela was asked if she had any more narcotics in the house and she replied “No, that is all I have. We have no more in here.” The officer then asked Nirea if he had any more narcotics in the house and he replied: “We are not peddlers. We are just users, and that is all we have. You will find nothing but a spoon and a needle in that box.” It was indicated that in giving this answer Nirea had reference to the blue box which Officer Appier had caught.