Opinion
Cr. 5834
6-10-1957
The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence O'Neil SMITH, Defendant and Appellant.*
Edmund G. Brown, Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Lawrence O'Neil SMITH, Defendant and Appellant.*
June 10, 1957.
Rehearing Denied July 2, 1957.
Hearing Granted Aug. 6, 1957.
Lawrence O'Neil Smith, in pro. per.
Edmund G. Brown, Atty. Gen., for respondent.
FOURT, Justice.
This is an appeal from a judgment wherein the defendant was convicted of possessing heroin (section 11500, Health and Safety Code), with a prior conviction of narcotic addition (section 11721, Health and Safety Code).
On May 1, 1956, an information was filed in Los Angeles county charging that the defendant did, on or about the 8th day of April, 1956, have in his possession a preparation of heroin, and that before the commission of the offense he was, on or about November 17, 1954, in the municipal court, Los Angeles Judicial District, convicted of the crime of violating the provisions of section 11721, Health and Safety Code, a misdemeanor (addition to narcotics).
A fair resume of the facts as developed by the evidence is as follows: A police officer of the Los Angeles police department, on the day before the arrest, received information from a 'very reliable' informer that the defendant had just purchased about a 'spoonful of heroin' and that it would be on his person at a certain residence. The officers knew the defendant as a known narcotic addict. On the day of the arrest, two officers approached the house in question, and through a window, observed the defendant and a woman sitting upon a bed. The officers went to the front door of the house and knocked on the door. An elderly lady answered the knock and the officers identified themselves and asked if they could come in. The lady opened the door and the officers walked in and started towards the room where they had observed the defendant and the woman together on the bed. As they approached the door the elderly lady shouted, 'Lawrence, the police are here', and at that the officers opened the door to the bedroom. The officer who testified stated that the bedroom door was closed, but he did not know if it was locked, and further, that he did not think that it was forced. The defendant immediately stood up and placed his hand toward his mouth at about the time the officers identified themselves, and the officers immediately asked the defendant to 'spit it out which he did, and emitted a cellophane package' which contained five rubber balloons, each of which contained a quantity of powder which was identified later by a chemist as being heroin. Also, the officers found two medicine droppers and two metal hypodermic needles in the coat pocket of the woman in the room with the defendant. The officer testified that the defendant was not choked to make him spit out the package. The defendant was asked 'how long he had been using the stuff' and he stated, 'since he was 20'. The defendant also stated that he 'just pushed stuff just to keep his own habit', which was about three capsules of heroin a day. A certified copy of a commitment and order in the municipal court was introduced into evidence showing that the defendant had previously been convicted of the narcotics violation alleged in the information.
The defendant testified in his own behalf, and among other things, stated that the door was 'kicked in', and the lock broken; that he was pummeled and choked for about a minute before he spit out the narcotics. He stated that he was a user; that the powder in the package was heroin; that it belonged to him and that he had some heroin that day; that he had put the narcotics in his mouth to the end that he could swallow it and thereby dispose of it when he heard the officers kicking at the door.
Counsel for the defendant, at the time of the trial, stated that the only point he was raising was the 'question of the lawfulness of the search and seizure and the legality of the evidence obtained'. Defendant's counsel also argued that the reliable informant had given the police the information the day before and consequently the police had ample time to get a search warrant. At the conclusion of the testimony counsel for the defendant asked the judge if he would 'consider striking the prior in order to give your Honor greater leeway in sentencing.' The judge thereupon answered: 'I discovered something this morning that I was not aware of. I have a case tomorrow where the girl is charged with selling marijuana. Normally I would send her to the penitentiary, period. She has a prior addiction conviction. And as I read the statute, the minimum is ten years.
'I talked to one of the elder statesmen on the subject and I think I have got a way of getting around it, but I am certainly not going to strike a prior addiction charge unless I know more about it than I do now. Let's determine the prior at the time of probation and sentence.'
Where the matter of the prior conviction was proved positively, and where no question whatsoever was raised as to the validity of the prior conviction, and when the law specifically provides for a specified punishment under such circumstances, it is difficult to understand what the court had in mind when he stated, 'I think I have got a way of getting around it * * *.'
The defendant was then permitted to make an application for probation which was, upon hearing, denied and he was sentenced to the state prison.
A notice of appeal was filed September 24, 1956. Apparently counsel who represented the defendant in the trial court discontinued the representation of the defendant, and on February 6, 1957, the defendant directed a letter to this court wherein he requested that we appoint an attorney to represent him in the appeal. The matter was referred to an appropriate committee of the Bar Association, which in turn referred the matter to one of its experienced and skilled members who studied the transcripts thoroughly and came to the conclusion that there was no merit to the appeal and declined to accept any appointment to represent the defendant. The defendant was notified of what had been done and the reports of counsel to this court; he was also notified that he could engage counsel of his own choosing or file briefs in his own behalf, and further, that if a brief was not filed within thirty days from the date of the letter the appeal would be submitted to the court which would make an independent examination of the record and the appeal. No brief has been filed and more than thirty days has elapsed from the date of the letter. Under Rule 17(a) of the Rules on Appeal the appeal could, and perhaps should, be dismissed. However, we prefer to dispose of it on the merits.
There was a conflict in the testimony and the trial judge believed the officers and disbelieved the defendant and his witnesses. The only contention of any consequence is whether the defendant was deprived of due process of law because of any shocking and brutal force used against him to obtain the heroin which he had put in his mouth for the purpose of swallowing it and thereby disposing of it. If the testimony of the officer is believed, then there is nothing in the conduct of the officers which was brutal or which shocks the conscience. In People v. Dawson, 127 Cal.App.2d 375, 273 P.2d 938, the defendant put the heroin in his mouth and the officer put his arm around the defendant's neck and told him to spit it out. The court upheld the conviction of the defendant.
The facts in the case of Rochin v. People of State of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, are in no wise similar to the facts of this case, and the same can be said for the case of People v. Martinez, 130 Cal.App.2d 54, 278 P.2d 26.
As we view the matter, there was no error in the trial and the judgment should be affirmed.
Judgment affirmed.
WHITE, P. J., and DORAN, J., concur. --------------- * Opinion vacated 323 P.2d 435.