People v. Hernandez

California Court of Appeal Jul 30, 1962 No. Crim. 7889Published

Before: Fourt

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Holding. The court held that the defendant's arrest and subsequent search were lawful based on probable cause, and that the evidence was sufficient to support the conviction for possession of heroin.

Issues

Whether the defendant was subjected to an illegal arrest and search.
Whether the evidence was sufficient to sustain the conviction.
Whether the defendant was improperly charged by information rather than indictment.
Whether the defendant was denied effective counsel of his own choice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The recitation of the facts demonstrates that there was reasonable or probable cause for the officer to believe that appellant was committing an offense in his presence.”

“The search was incident to a lawful arrest.”

“The contention to the effect that the appellant should have been indicted rather than filed upon, as he was, is without merit.”

FOURT, J.

This is an appeal from a judgment of conviction of the possession of heroin.

In an information filed in Los Angeles County on February 1, 1961, the defendant was charged with a violation of section 11500, Health and Safety Code, in that he did on January 5, 1961, have heroin in his possession. On February 6, 1961, the defendant, with court appointed counsel (public defender),

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pleaded not guilty. A trial by jury was waived. Defendant was represented by counsel throughout the trial and was found guilty as charged. A motion for a new trial and an application for probation were denied. Defendant was sentenced and this appeal followed.

A résumé of some of the facts is as follows: at about 4 a. m. James Steele, a veteran police officer and one time member of the narcotics squad, went into an all-night motion-picture theatre on Broadway in Los Angeles. Steele had received word of complaints by theatre patrons with reference to the illegal sales of narcotics within the theatre. The officer had been told that sales were made by persons who moved about from seat to seat within the theatre and that these persons sometimes carried their narcotics in a sack.

The officer sat in the upper balcony, where he saw the defendant and another person enter the theatre through an exit door in the balcony. The officer saw the defendant sitting in one seat for a time and then getting up and moving to another seat, where he would remain for a few minutes and then move again. The defendant was stopped by the officer as the defendant was coming down to the foyer. The officer questioned the defendant about the paper sack he was carrying. Upon examination the sack was found to contain nothing except a whisk broom and some lunch crumbs.

The officer saw that the defendant’s eyes were pinpointed. He further saw the defendant’s right arm and observed a fresh needle mark thereon and at least one old needle mark. The defendant claimed the fresh mark was the result of a blood donation made to a blood bank; however he could not produce a blood-donor card. The officer formed the opinion that the defendant was under the influence of a narcotic and thereupon arrested him.

People v. Hernandez

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FOURT, J.

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