People v. Bracamonte

WOOD, P. J.

In two counts of an information the defendant was accused of burglary. He admitted allegations of the information that he had been convicted previously of two felonies (burglary, and violation of section 11500 of the Health and Safety Code). In a jury trial he was convicted on both counts, of burglary in the second degree. He appeals from the judgment and the order denying his motion for a new trial.

Appellant contends that there was no probable cause for his arrest, and that the court erred in receiving evidence as to articles obtained from defendant, for the reason such evidence was obtained by illegal search and seizure.

On December 23, 1959, a burglary was committed at the home of Mr. L. R. Smith in Los Angeles, and a “Webcor” phonograph-radio and an “American Flyer” electric train (in an unopened box) were stolen from his home.

On December 27, 1959, a burglary was committed at the home of Mrs. Demytrack, and an “Admiral” table radio, a watch, and some money were stolen therefrom.

In the evening of December 27, 1959, Officers Pearce and Cochran, who were on duty and were traveling in a “plainclothes car,” entered a parking lot on Temple Street. While Officer Pearce was driving the car into the lot, the light from the headlights of the ear was on a parked car in the lot. At that time he saw the defendant and a woman (later identified as Miss Leventis) sitting in the parked car. Officer Pearce stopped his ear about 20 feet from the parked car, and at that time the light from the police car was on the other car. Then defendant and the woman got out of the car and walked hurriedly toward a café which was at the side of the lot. The officers approached them and engaged them in conversation. Officer Pearce knew the defendant and the woman— he had talked with them on prior occasions, and he had arrested the defendant on prior occasions. Officer Pearce testified that both of those persons were users of narcotics and both of them had “records” for narcotics. After the officers had approached the two persons on the occasion here involved, Officer Pearce asked them if they were still using narcotics.

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They replied, “Yes.” He asked if they were “high.” They replied, “Yes.” He asked them how their marks were. They replied, “Not too bad.” Then defendant showed his arm to the officers—there were several needle marks on his arm. Officer Pearce testified that some of the marks were old and some were fresh; the defendant appeared to be “messed up” or “high,” and his eyes appeared to be puffy; the defendant talked in a slow, sleepy manner; the fresh marks on defendant's arm led the officer to believe that defendant had had a recent injection of narcotics; he (officer) believed that defendant was under the influence of narcotics. After such observations, Officer Pearce arrested defendant and the woman (Miss Leventis) “for narcotics.” Then Officer Cochran searched defendant and took a watch from his pocket. That officer asked defendant who owned the watch. Defendant said it belonged to a girl friend, but later he said it belonged to Miss Leventis. He (officer) asked Leventis if the watch belonged to her. She replied, “No.” In response to questions by the officers, defendant said that he owned the car (in which he and Leventis had been sitting) and that he had the keys to it.