Opinion
Hearing Granted and Retransferred to District Court Aug. 20, 1964.
Dahlstrum & Walton and Richard A. Walton, Los Angeles, by appointment of the District Court of Appeal, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow and William L. Zessar, Deputy Attys. Gen., for respondent.
FOX, Presiding Justice.
Defendant and one Thomasina Barker Dale were charged with violating section 11500 of the Health and Safety Code, which makes illegal the possession of heroin. It was further alleged that defendant had suffered prior felony convictions for forgery, possession of heroin, and escape. Defendant pleaded not guilty, denied the priors, and waived trial by jury. The court found him guilty as charged, and found the prior convictions to be true. Defendant Dale was acquitted. Defendant's motion for a new trial was denied. Probation was also denied and he was sentenced to the state prison for the term prescribed by law. He appeals from the judgment of conviction and purports to appeal from the order denying his motion for a new trial. The latter must be dismissed since the order is non-appealable. (Penal Code § 1237(1); People v. Bernhardt, 222 A.C.A. 622, 625, 35 Cal.Rptr. 401.)
On October 10, 1962, Officer Merrill Walker of the Narcotics Division talked with defendant on the corner of Second and Hill Streets in Los Angeles. Defendant stated that he had recently been released from prison, that he had served a term for possession of heroin, and that he had used heroin since his release. He showed Officer Walker a registration card issued on October 5, 1962, by the Huntington Park Police Department. The card listed defendant's address as 6213 Hood, but defendant told the officer that he had moved to 121 1/2 West 93rd Street. Officer Walker concluded On October 23, 1962, Officer Walker received a telephone call informing him that defendant was living in room 108 at 1018 Trenton Street, and that he was selling heroin from that address and indicated that 'there was heroin then on the premises.' Officer Walker then checked the Police Department Record Bureau to obtain defendant's police record and photograph. From the picture he recognized defendant as the man he had spoken to on the street on October 10. He then telephoned the Huntington Park Police Department and ascertained that although defendant had registered on October 5, 1962, giving his address as 6213 Hood, he had not notified the department of any subsequent change of address.
Officers Walker and Wesley proceeded to the Trenton Street address, which was an apartment house. They checked the apartment's registration book and discovered that defendant had registered in room 108 on October 10. The manager of the apartment told the officers that defendant had resided there since October 10, and he suggested that he could summon defendant to the door by sounding a buzzer normally used to call the apartment residents to the telephone. The officers went to defendant's door and heard voices inside which they could identify only as male and female. When the manager pushed the buzzer, defendant opened the door. Upon seeing the police officers 'he turned his head back in toward the direction of the apartment and shouted, 'Police." 'About this time' the officers 'heard the bathroom toilet flush.' Mr. Cano 'was grabbed and placed under arrest . . .' A search of defendant's person revealed balloon fragments, 'each of which contained a white powdery substance' that proved to be heroin. Inside the apartment defendant Dale was found bending over the commode. Another balloon fragment containing heroin was found on the bathroom floor where she was standing. Later that day, at the Police Administration Building, defendant freely and voluntarily told the two officers that he had purchased the heroin a few days prior to his arrest, and that it was solely for his own use.
Defendant contends that the contraband discovered by the officers at the apartment should not have been admitted in evidence on the theory that the search which produced it was illegal and unreasonable. In support of his position defendant emphasizes Officer Walker's testimony that the officers went to the Trenton Street address for the purpose of arresting defendant for a misdemeanor, to wit: failure to notify the Police Department of a change of address on a narcotics registration within ten days. Had the arrest actually been made on this ground a search in connection therewith might very well have been considered unreasonable, and in such case defendant's claim would have some merit. The circumstances of the present case, however, do not present such a problem. The trial judge whose responsibility it was to evaluate the evidence and draw reasonable inferences therefrom makes this abundantly clear in the following interpretation of the testimony, which finds ample support in the record: '* * * while he [Officer Walker] may have intended when he went down there first to check an arrest for violation of this misdemeanor, that when the door opened and the yelling of 'Police' and the flushing of the toilet took place, he then, by reason of previous information he had received, his knowledge himself of the defendant to be a narcotic addict, he then had probable cause to believe that there was a violation of the Narcotics Act in that somebody was in the possession of narcotics and they were attempting to dispose of it down the toilet.'
Officer Walker had determined from the Huntington Park Police Department that defendant had not notified them of any change of address since his registration on People v. Craig,
Roynon v. Battin,As soon as defendant opened the door his immediate conduct rendered immaterial the officers' previous purpose of arresting him for having failed to notify the authorities of his change of address. They never had an opportunity to mention this to defendant. His act of turning and yelling 'Police', the immediate sound of a flushing toilet which is a known technique of quickly getting rid of contraband, coupled with the officers' knowledge of defendant's prior narcotics record and reasonable suspicion of his present narcotics activities, gave the officers probable cause to arrest defendant for the commission of a felony, to wit: possession of narcotics. 'The fact that the officers were investigating one matter does not immobilize them from enforcing the law when it appears to them that a crime is being committed in their presence.' (People v. Almarez, 190 Cal.App.2d 380, 382, 12 Cal.Rptr. 111, 113.) The arrest being lawful, a reasonable search made incident thereto was also lawful, and the incriminating evidence it revealed was properly admitted in evidence.
Defendant also argues that insufficient proof was produced at the trial on the issue of the three alleged prior felony convictions. Certified copies of the prior convictions were received in evidence without objection, and defense counsel stipulated as to identity.
On the day defendant was found guilty of the substantive crime charged in the information, the determination of the priors was continued, on motion of defendant, until the hearing on sentence and probation. From the reporter's transcript of that hearing it does not appear that anything further was said in connection with the priors. The clerk's minute order of that day, however, reveals that all three priors were found to be true. The recitation of these findings in the minute order would seem to satisfy the requirements of Penal Code, section 1158, for their very appearance on that document imports their verity. (In re Connor, 16 Cal.2d 701, 708, 108 P.2d 10.)
The certified copies of the prior convictions are sufficient evidence to sustain a finding of their truth. (People v. Ahouse, 162 Cal.App.2d 586, 588, 328 P.2d 227.) We are cited to no authority in support of defendant's contention that there must also be oral evidence and oral findings on the priors.
The purported appeal from the order denying defendant's motion for a new trial is dismissed. The judgment is affirmed.
HERNDON and ROTH, JJ., concur.