People v. Duarte

254 Cal.App.2d 25 (1967) THE PEOPLE, Plaintiff and Respondent,

v.

JESSE RIVERA DUARTE, Defendant and Appellant.

Crim. No. 12179. California Court of Appeals. Second Dist., Div. One.

Aug. 31, 1967. Robert A. Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

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

LILLIE, J.

Defendant was charged with possession of heroin ( 11500, Health & Saf. Code) and a prior federal narcotic felony conviction. The matter was submitted to the trial court on the transcript of the testimony taken at the preliminary hearing. No additional evidence was offered and defendant did not testify. He was found guilty as charged and the prior conviction found to be true. Defendant appeals from the judgment.

Deputies Trujillo and Kennerly were assigned to the narcotic detail; Deputy Trujillo had been a narcotic officer for approximately seven years and had participated in several hundred arrests involving narcotics and their illegal use. Around 7 p.m. on May 10, 1965, the deputies went to a residence on South Clela with a warrant of arrest for a violation of parole on a narcotics conviction for one Lopez; Lopez' car was parked in front. After being told by his mother that Lopez was not home, the deputies left, returning about [28] 7:40 p.m.; the car was gone so they cruised around the area and finally found it parked near the intersection of Olympic and Woods. Defendant's wife was on the driver's side; defendant was seated on the passenger side. Deputy Trujillo knew defendant; he knew of defendant's prior conviction for sales of heroin; also he had previously arrested him for illegal narcotics use on which defendant was then awaiting trial. Defendant had the door of the car open, and standing on the sidewalk near him was a person whom Deputy Trujillo knew as Don Perez. He had previously arrested Perez for narcotics violations; on Perez' arm he saw what he believed to be a puncture wound. As they approached the vehicle, Deputy Kennerly saw Perez putting something to his mouth; he grabbed Perez' hand and attempted to pull it from his mouth. At the same time Deputy Trujillo observed defendant reach to the top of his trouser pocket and "restrained" him, grabbed his hand and reached into defendant's right trouser pocket. He pulled out a prophylactic containing 3 grams of heroin. Deputy Trujillo testified that because of his long experience as a narcotic officer, his knowledge that the automobile in which defendant was seated was one used by a person being sought by him on a warrant for a parole violation on a narcotic conviction and his knowledge of both Perez and defendant, Perez' conduct, upon seeing the deputies, indicated to him that Perez was attempting to swallow a narcotic; and when, at the same time, defendant reached for his trouser pocket, he formed the opinion that defendant, too, was trying to conceal or dispose of a narcotic by swallowing it.