People v. Fuentes

FOURT, J. This is an appeal from an order granting a motion under the provisions of section 1538.5 of the Penal Code and the granting of a motion to dismiss the cause (as to count I).

In an information filed in Los Angeles on July 16, 1968, defendant was charged in count I with possessing a narcotic on June 22, 1968, and in count II with assault with a deadly weapon upon the body of Geraldine Wagoner on June 22, [855196]8. Defendant made a motion under section 1538.5 of the Penal Code as to count I. The motion was heard and granted and the cause as to count I was dismissed. A timely notice of appeal was filed.

A résumé of some of the testimony or inferences therefrom as elicited from the transcript is as follows: Geraldine Wagoner was on or about June 22, 1968, at about 2 p.m. at or near Fairmont and Central Streets in Los Angeles. The defendant and two companions drove up to where Miss Wagoner was standing, stopped their car and the driver of that car and defendant got out of it. Defendant had a tire iron in his hand and struck Miss Wagoner on the arm, hand and back with the tire iron and knocked her down. Steve Jerrell, the driver of the car, also struck Miss Wagoner with his fist and “busted” her mouth. Defendant stated to Miss Wagoner that she had “put [the] snitch on one of his runners and that’s why” she was “getting beat up.” Miss Wagoner was hospitalized and X-rayed extensively.

Miss Wagoner made a report of the episode to the police and after finding out the name and address of defendant she gave that information to the police.

Officer Del Rosario at about 9:25 a.m., June 25, 1968, received information from Officer Suter that the latter had a signed crime report wherein defendant was named as an “ADW” (assault with a deadly weapon) suspect, giving the address of the suspect. Officer Del Rosario and Officer Olson of the Narcotics Division of the Los Angeles Police Department and other officers went to 1000 Cypress, Apartment No. 5, in the Highland Park Area where defendant was supposed to reside. The defendant was adequately and in a substantially correct manner described in the crime report. Officer Del Rosario knocked on defendant’s apartment door and defendant opened the door and said “Come on in.” The officers were identified as policemen. Defendant was asked if his name was Thomas Fuentes and defendant replied that it was. Defendant was advised that he was under arrest for an assault with a deadly weapon. Defendant further was fully advised of all of his constitutional rights. Mention was made in the presence of defendant that the offense had been committed with a tire iron and inquiry apparently was made of defendant as to where the tire iron was. Sergeant Suter directed the attention of Olson, shortly after entering into the apartment and before any search was started for the tire iron, to two partially burned hand-rolled cigarettes leaving green