People v. Dees

Opinion

STEPHENS, J. By information, defendant was charged with a violation of Health and Safety Code section 11530.5 (possession of marijuana for sale). He pleaded not guilty, and his Penal Code section 1538.5 motion was submitted on the transcript of the preliminary hearing, argued, and denied. Defendant waived his right to jury trial, to confront witnesses, to have witnesses testify for him, to present other evidence, and his right against self-incrimination, and submitted the issue of his guilt on the preliminary hearing transcript. He was found guilty as charged; motion for new trial was denied; probation was denied; and he was sentenced to state prison [924]for the term prescribed, by law. A stay of execution of sentence was granted pending detennination of his appeal, and bail on appeal was posted. He appeals from the judgment of conviction and order denying probation.

At approximately 3 a.m. on September 2, 1970 and after police investigation:, State Narcotics Agent Reyes, in the company of eight other officers, met still other officers on defendant’s premises, served him with a search warrant covering those premises (a warehouse), and advised him of his Miranda rights. Defendant was not asked if he wanted an attorney present, or if he would waive those rights; nor did defendant expressly waive them.1

Some two hours prior to the serving of the warrant, Vernon Police Officer Wilcox (who had been acquainted with defendant for several years and who had knowledge of the investigation) informed Torrance officers that defendant was at the location, and asked whether “they wanted him detained [in or around the premises] if he attempted to leave.” The answer received was to “[i]n some manner . . . detain [defendant] for the arrival of the warrant and the narcotics investigators.” When defendant “got in his car and started to leave,” Wilcox approached him, and for the purpose of detaining him in the area Wilcox engaged him in conversation on the pretext of obtaining from defendant candy for a birthday party. Defendant responded (“in essence”), “Come on back to the warehouse,” and they entered. During this time, Wilcox received several radio communications, and he related to his dispatcher that he had, in effect, “intercepted [defendant] or stopped him, had detained him, and [defendant] was remaining in the area.” When “the conversation between [Wilcox and defendant] was exhausted, . . . [defendant] said he was going to head for home,” and as they started out the door, Vernon Sergeant Sweeney arrived outside. Wilcox testified that after introduction of Sweeney to defendant, defendant said (“in some essence”) that he was going to go home, was tired, and that Sergeant Sweeney stated something like, “There [are] some narcotic officers coming up here. They’d like to talk to you. Would you wait around for a few minutes?,” and defendant replied something to the effect, “No, [s7c] I will stick around.” At no time did Wilcox tell defendant that he couldn’t leave the location; nor did Wilcox hold him there by force or restraint during