People v. Preston

WOOD (Parker), J. Defendant was convicted, in a non-jury trial, of violating subdivision 2 of section 337a of the Penal Code (occupying an apartment with paraphernalia for the purpose of recording bets on horse races) and was convicted of violating subdivision 4 of said section (recording bets on horse races). Proceedings were suspended and probation was granted. Defendant appeals from “the judgment” and the order denying her motion for a new trial. Since proceedings were suspended and judgment was not pronounced, it will be assumed that “the judgment” referred to in the notice of appeal is the order granting probation.

Appellant contends: (1) the search of her home and the seizure of articles therein were unlawful and that the articles so taken should not have been received in evidence; (2) the evidence was insufficient to justify the conviction; and (3) the [547]court erred in sustaining an objection to testimony of appellant purporting to explain the meaning of writing which was on certain pieces of paper (People’s Exhibit 2).

On March 13, 1957, about 4 p. m., five police officers went to the vicinity of 215 West Opp Street in Los Angeles for the purpose of making an investigation at that address. Officer Schubach had received information regarding that place, about two weeks previously, from a confidential informer. He had received information, in the past, from that informer and the information had been reliable.

Officer Schubach testified that he went to a street corner, one block from said address, and after receiving a prearranged signal from Officer Sawyer, he went to a telephone booth at that corner and called telephone number Terminal 5-4961 ; the number had been given to him by the informer, and he (officer) had checked the number through the intelligence division of the police department; the number was registered to Mrs. Frankie Preston, 215 West Opp Street; a woman’s voice answered the telephone call; the officer said, “Banker Vic in the seventh, Allman in the eighth, two and two parlay”; the voice said, “Who for?”; the officer said, “Chuck for Bob”; the voice said, “O. K.”; after making that call, the officer signaled Officer Sawyer, who signaled Officer Jameson; then Officer Schubach (witness) went to said address and at that time Officers Jameson and Gendreau were in the house.

Officer Gendreau testified that while he was standing outside the front door of said address he received a signal from Officer Jameson, and then he (witness) knocked on the door and stated, “I am a police officer. You are under arrest for bookmaking. Open the door. ’ ’; after standing a few moments and receiving no response, he forced entry into the house; upon entering the house he noticed a strong odor of smoke and he heard the toilet being flushed in the washroom; he banged on the door of the washroom, and receiving no response he forced the door open; he saw defendant in the washroom; there was a very strong odor of smoke in that room; he saw a telephone on the floor, about the center of the living room, and about 15 feet from the washroom; the number of the telephone was Terminal 5-4961; the telephone cord had been cut at the base of the telephone; scissors were on the floor next to the telephone; he took the base off the telephone and spliced the cord, and then about nine calls were received in the next 10 minutes; defendant was the only person in the apartment when he entered; he asked her (in the presence of