People v. Muriel

FOURT, J

This is an app'eál from a judgment of conviction of possessing heroin.

In an information filed in Los Angeles on April 14, 1967, Robert Hernandez, Ruben Medina and Ramiro Muriel (the latter the appellant herein), were jointly charged with having possessed heroin on March 27, 1967. It was further charged that Medina previously had been convicted of robbery (§ 211, Pen. Code) and that Muriel previously had been convicted of grand theft from the person in Los Angeles in 1954, á Violation of section 503 of the Vehicle Code and in 1957, of possessing a United States Treasury check abstracted from stolen mail in 1961 and of escape from the United States Public Health Service Hospital in Texas in 1961. Muriel pleaded not guilty and denied the charged prior convictions. Upon stipulation of all concerned the matter was submitted upon the transcript of the proceedings had at the preliminary examination with each side reserving the right to call witnesses. Each side produced added evidence at thé. trial. Muriel was found guilty as charged. The first and second charged prior convictions were found to be true as alleged, the third and fourth charged prior convictions upon technical grounds were found

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not to be true as charged. Muriel was sentenced to the state prison. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: at about 4:25 p.m. on March 27, 1967, Deputy Sheriff Nelson was patrolling in a marked patrol vehicle eastbound on Rogers Street near Eastern Avenue. The officer observed a Mr. Hernandez coming . from a partially lifted or partially open garage door and walking westbound on Rogers Street, and he also saw at the time the legs of three other persons inside the garage who seemingly were, engaged in the process of stripping an auto- - mobile. The house of the premises which appeared to be , vacant, was about 25 feet from the garage. The yard was unkempt, the grass was 6 to 8 inches high and had not been mowed for some time. There was a “for sale” sign posted in plain sight in .the center of the side yard area. The officer had Imowledge of ; considerable car stripping in the immediate • neighborhood, and he knew also that due to impending freeway construction several of the houses in the vicinity had " been moved. The vehicle which the officer saw in the garage ' appeared to be partially dismantled, resting on its axle on the ‘floor of the garage. The officer stopped his patrol car, exited and approached the garage. He opened the door of the garage and’ was met by Muriel. The officer asked Muriel to whom the car belonged and for identification. Muriel stated that he did not have to identify himself and that the officer did not have a • right to be there. As the officer stepped into the garage to check the registration of the car he again asked Muriel whether the car belonged to him. At this time the officer saw on the rear deck of the car a spoon, a small pile of white powdery substance, a wad of cotton, a plastic cup and a number of burned matches. He then placed Muriel and his companions under arrest and fully advised them of their constitutional rights. It was stipulated in effect that the powdery substance was heroin.