People v. Villafuerte

275 Cal.App.2d 531 (1969) THE PEOPLE, Plaintiff and Respondent,

v.

NICK JOSEPH VILLAFUERTE, Defendant and Appellant.

Crim. No. 14944. California Court of Appeals. Second Dist., Div. Five.

Aug. 13, 1969. Richard L. Mikesell, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Philip C. Griffin, Deputy Attorney General, for Plaintiff and Respondent.

REPPY, J.

Defendant was charged by information with a violation of section 11500, Health and Safety Code (possession of heroin). Defendant pleaded not guilty. Trial was by the court, a jury having been properly waived. Defendant sought to suppress evidence under section 1538.5, Penal Code. Each side introduced evidence, and the motion was denied. By stipulation the trial court considered the evidence given under the suppression motion on the issue of guilt or innocence of defendant. The court found defendant guilty. He was sentenced to state prison for the term prescribed by law. He appeals from the judgment.

The essential facts, viewed in the light most favorable to the prevailing party at trial (People v. Frankfort, 114 Cal.App.2d 680, 689 [251 P. 2d 401]) are as follows: On August 16, 1967, at approximately 5 p.m. Officer James Young, of the Monterey Park Police Department, observed a 1955 Chevrolet the muffler and tailpipe of which were hanging loosely one or two inches from the ground. Officer Young, who testified that he had section 27150 of the Vehicle Code in mind as a possible violation, [fn. 1] stopped the car to inspect the muffler. However, under cross- examination Officer Young indicated that he suspected that the muffler was not in a gastight condition. [fn. 2] The driver alighted from the car and came to speak to Officer Young. The driver said that he did not have an operator's license because it had been suspended. At this time defendant [533] and a third passenger alighted and walked to where Officer Young and the driver were conversing. Defendant volunteered that he owned the car. Then Officer Young's focus of attention shifted from the driver to defendant, and he asked defendant to show his operator's license. The movement of defendant to reach for his wallet caused Officer Young to notice track marks and some fresh scabs on his inner elbow. Officer Young compared the size of defendant's pupils to that of the other two and found defendant's to be extremely pinpointed. Also, Officer Young noted that defendant's speech appeared to be slow and slightly slurred. Officer Young had been involved in the arrest of approximately 50 narcotic addicts, had received police training in the recognition of the objective symptoms displayed by a person under the influence of narcotics, and had seen marks on the arms of persons arrested for narcotic addiction similar to those he saw on defendant's arm. Officer Young formed the opinion that defendant was under the influence of heroin and placed him under arrest therefor. Officer Young then searched defendant's person and found a small rubber balloon containing heroin in one of his trouser pockets. Defendant was then charged with possession of heroin.