People v. Escobosa

ASHBURN, J.

Appeal from judgment of conviction of a charge of possession of heroin (Health & Saf. Code, § 11500), with prior conviction of a like felony found to be true. Appellant appears in propria persona and claims among other things wrongful search and seizure of the condemnatory evidence and wrongful withholding of information about an informer.

The ease was submitted, pursuant to stipulation, upon the transcript of the preliminary hearing, “the exhibits received in evidence at the preliminary hearing to be binding in full force and

effect

for this proceeding.” The State reserved the right to present further evidence but did not do so and defendant elected not to testify. Heroin and facilities for its use were received in evidence as Exhibit 1 over objection of

[753]

defendant’s then counsel “that the evidence was obtained through lack of probable cause, illegal search and seizure.”

Viewing the evidence most favorably to respondent and in the light of the rules laid down in

People

v.

Daugherty,

40 Cal.2d 876, 885 [256 P.2d 911], it appears that the appeal is without any substantial basis.

Defendant was arrested on March 17, 1959, at about 9 p. m. by Officers Cook, Stahl, Trout and Stoops. Cook had previously investigated defendant, knew of his prior conviction of possession of a narcotic, his “reputation in the Sheriff’s Narcotics Department,” knew that he on two prior occasions was “stashing his narcotics outside of the house.” Defendant on the above date lived in a rear apartment of a four-unit court; between his unit and a garage was a passageway about 4 to 5 feet wide, an unlighted area. The officers on this particular occasion were watching him from an adjoining property. They saw defendant leave his rear apartment, go between it and the garage and disappear from view; in 15 to 30 seconds he returned to the apartment. About 15 minutes later one Shonan, a known addict, drove up in front of the court, entered defendant’s apartment; soon defendant appeared in the rear and went between the apartment and garage, remained 20 to 30 seconds and returned to the house. The officers then climbed the fence, entered upon the court property and took up a new position for surveillance. A few minutes later they heard a knocking upon defendant’s door but were so situated that they could see only the feet of a man at the door because a parked automobile interfered with any closer observation of him. Two or three minutes later they heard the door open and saw defendant go again from the rear of his apartment to the passageway between court and garage. Officer Stahl then moved to a place where he could look around the corner of the garage. He saw defendant kneeling and apparently reaching down in front, then he moved two window screens to the side, reached down, removed an object, replaced it and restored the screens to their former position. As he emerged from the passageway the officers arrested him and pinned his arms to his body. At that moment three capsules of heroin dropped onto the cement driveway and the officers found eight more in the dirt beside the driveway. Defendant said, “That is all there is.” Officer Stahl then searched the place where he had seen defendant kneeling and there found hidden under some debris a glass jar containing 160 capsules of