People v. Silva

ASHBURN, J. Defendant Charles G. Silva and his brother-in-law Richard 0. Heredia, were jointly charged with possession of marijuana, violation of section 11500 Health and Safety Code. Silva was also charged with a previous conviction and service of sentence for violation of the same section. He pleaded not guilty but admitted the previous conviction. Before Silva’s trial Heredia had pleaded guilty and been sentenced. By stipulation Silva was tried without a jury and was convicted. The judge of his own motion ordered the admission of the prior conviction set aside and the prior conviction stricken1; then sentenced defendant to a term of nine months in the county jail. The propriety of the conviction depends primarily upon the admissibility of certain marijuana which was found by police officers in a search which appellant’s counsel claims to have been unreasonable and unlawful. Appropriate objection was made in the trial court to the introduction of this evidence and was overruled. In support of the appeal counsel raises but one point, phrasing it thus: ‘ ‘ The only question is whether the contraband recovered by the officers was lawfully obtained. ’ ’

Defendant Silva, his mistress (known as Maria Silva and also as Mrs. Silva), her father and Richard 0. Heredia, her brother, lived together at 7045 Remmet Street in Canoga Park. On March 22, 1955, at about noon, the police arrested Heredia at the recreation center, which was a block or two from his home. He was taken to the Van Nuys police station and there made statements to the effect that he had sold marijuana cigarettes to a minor and had himself swallowed one when he saw the officers approaching. No marijuana was found on his person. According to Officer Wayne Belda, Heredia was asked at the police station whether he had any marijuana in his home. He said “no” and then added: “If you don’t believe us, you can go out and look for yourself.” Belda, with Officers Barnaby and McTighe, took Heredia in handcuffs to his residence. This was about five hours after his arrest. They had no search warrant and had made no effort to get one. Officer Belda also testified that at the police [793]station he had asked Heredia’s permission to go into the house and had been told to go ahead; also that he, Belda, believed he would find marijuana there.

There are two buildings on the premises known as 7045 Remmet Street. The northerly house contains living quarters other than bedrooms, and the southerly house is a converted garage which contains two bedrooms, one occupied by defendant and Maria and the other by Heredia at times. The family considered the two houses as one home. When the officers approached the north house they were met by Maria and her father; she asked them what they were doing there; they said they had Heredia under arrest and were going to search the premises; she asked if they had a search warrant and they said they did not; there was no further conversation; the officers did not ask her permission but walked past her into the house.