People v. Avila

FOURT, J. This is an appeal from a judgment of conviction on a charge of violating section 11500, Health & Safety Code (unlawful possession of heroin).

In an information filed in Los Angeles County on August 15, 1962, appellant was charged with unlawfully possessing heroin on or about July 18, 1962. A jury trial was waived and appellant was found guilty as charged. A motion for a new trial was denied. Proceedings were instituted to commit appellant under section 6451 of the Penal Code and upon rejection thereof probation was denied and appellant was sentenced to the state prison for the term prescribed by law.

A résumé of some of the facts in this case is as follows: Officer Fesler, a thoroughly experienced narcotics officer of the Los Angeles Police Department (who had made hundreds of arrests, examinations and had testified many times as an expert witness in narcotic matters) started an investigation sometime in April 1962 which involved the appellant. The officer had received information from a person (to whom he referred as a reliable confidential informant) to the effect that an individual named Rex or Rudy was dealing in narcotics from an apartment at 177 North Toluca Street. Fesler reported this information to his superior officer and ascertained that another team of narcotics officers (Officers Sanchez and Me Carvel) were conducting a narcotics investigation at that location. Fesler continued with his investigation of the persons at the named address and in the course of events saw Florence Morales, a known narcotics user, go to the location, get out of her car, go into the place and return to her car and then drive away. Fesler followed the automo[85]bile for about 2 miles when it stopped. The officer then had a talk with the occupants of the car—Florence and Roberto Morales and Danny Gonzales. The officer examined the arms of each of the named occupants of the automobile and found that each of them was using narcotics. Each apparently readily admitted the use of narcotics but each denied being in or near the vicinity of 177 North Toluca Street.

Fesler then talked with the manager of the apartment house and she stated that there was an unusual amount of traffic going to and from the room occupied by the person referred to as Rex or Rudy and another male Mexican. She further stated that she was the person who had contacted officers Sanchez and MeCarvel and that she was giving them information because she thought narcotics were being dealt with at the apartment; however, she did not want to become involved. The manager described to Fesler the person known as Rex or Rudy as “a real light complected Mexican or possibly Caucasian” that he “had brown wavy hair and was approximately 30 to 32 years old, approximately 5 feet 6 inches” in height “and rather stocky.” That description met with the description which the officer already had. The manager was requested to secure the license numbers of the automobiles which were driven to the apartment by persons going to and from the apartment in question. A red Fiat car registered to Alan Cooper (a known narcotics user) was frequently there and Cooper called daily and sometimes twice a day. She also gave the officer the number of a Ford car which was frequently driven there by a male Mexican with a female Mexican companion. Apparently the number of that car was traced to a person known on Temple Street as Boehise and the girl with him was identified from police record bureau photographs as being Mary Kemp. Mary Kemp was a known user of narcotics with a long police record. There were numerous other known narcotics users (including Adolph Na-greedy and Joyce Nagreedy) who were identified as being frequent visitors to the Rex or Rudy apartment. Some few days later the manager called Fesler and told him that the occupants of the apartment in question had moved out.