Opinion
Cr. 3454
8-12-1958
The PEOPLE of the State of California, Plaintiff and Respondent, v. Wilma Lee RICHARDSON, Defendant and Appellant. . *
Frank J. Baumgarten, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Wilma Lee RICHARDSON, Defendant and Appellant.
District Court of Appeal, First District, Division 1, California. *
Aug. 12, 1958.
Hearing Denied Sept. 11, 1958.
Hearing Granted Oct. 10, 1958.
Frank J. Baumgarten, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.
BRAY, Justice.
Defendant appeals from a conviction, after jury trial, of violation of section 11500, Health and Safety Code (possession of narcotics). Questions Presented.
1. Was there a valid arrest and search?
2. Did defendant knowingly possess the narcotics? Facts.
On the morning of January 2, 1957, between 10:30 and 11 o'clock, Inspectors Noel and Ohlson of the State Narcotics Bureau with two officers of the San Francisco Police Department went to defendant's apartment. Defendant had gone to the back of the premises and the officers entered her open door. When she returned she was placed under arrest. A small vial which contained heroin was taken from her skirt pocket. A butt of a marijuana cigarette was found in a robe in a closet. Inspector Noel asked defendant where she got the narcotics. She replied, "Well, I guess you have got me good this time." She stated that she did not want to divulge her source as she did not want to "get anyone else in trouble." Defendant denied making such statements and testified that Faye Robertson who also occupied the apartment had given her that morning 'something wrapped up in a $5 bill,' to keep for her until she would return in a few minutes; in fact, she had stuck it in defendant's pocket. Defendant did not see and did not know what was wrapped in the bill. As to the marijuana butt defendant claimed to know nothing about it. Faye, however, had worn the garment from which it was taken, the day before. Defendant admitted a prior conviction for possession of narcotics.
Faye Robertson, who was under confinement at the Women's State Prison at the time of the trial, denied that she had given defendant the heroin but admitted giving her a $5 bill to keep for her 'because she always kept my money.'
Officer Logan testified that he found a $5 bill in defendant's purse on the dresser in her bedroom. There was other money in the purse. He took the bill because it was marked.
Obviously the evidence fully supports the conviction. Defendant does not, and could not, contend that it does not. 1. Arrest and Search.
Inspector Noel testified that the morning of the arrest, one James Allen, from whom on approximately four prior occasions he had received reliable information and whom he regarded as a reliable informant, informed him that defendant was selling heroin at her apartment. Allen told the inspector that he was living with defendant at her apartment. Noel also testified that before the arrest that morning Inspector Ohlson, who was in the arresting party, told him that Randolph Clark had informed him that defendant was selling heroin at her apartment. This informant had theretofore been found to be reliable.
Defendant testified that Faye Robertson and Randolph Clark rented the back bedroom from her and had occupied it for approximately two months. The day before the arrest, she told them to either pay up the back rent or get out.
It is now well settled in this state that 'an officer is justified in making an arrest acting solely upon information from an informant where that informant is known to the arresting officer and is believed by the officer to be trustworthy and reliable * * *'. Lorenzen v. Superior Court, 1957, 150 Cal.App.2d 506, 509, 310 P.2d 180, 183. The evidence in our case easily meets this test. Both Allen and Clark were considered reliable informants by the officers. In justification of arrest, one officer may use information given him by a brother officer who received it from a reliable informer. See People v. Hood, 150 Cal.App.2d 197, 201, 309 P.2d 856; People v. Gorg, 157 Cal.App.2d 515, 321 P.2d 143. Defendant contends, however, that Allen could not be found by the trial court to be reliable because of the following situation: Inspector Noel testified that James Allen told him that he, Allen, was living with defendant in her apartment. Defendant produced a James Allen, a truck operator, who testified that some time prior to the date of defendant's arrest he had lived at the Eddy Street address of defendant's apartment and that he had never given Inspector Noel any information concerning defendant or anyone else. A 'mug shot' of the James Allen referred to by Inspector Noel had been introduced in evidence. It was shown to witness Allen who said he did not know him. The parties then stipulated that the witness James Allen was not the James Allen Inspector Noel referred to. Defendant contends that she was deprived of due process for the reason apparently that she claims that there actually was no James Allen who informed Inspector Noel. There are three answers to this contention. (1) There was no evidence that the James Allen referred to by the inspector did not exist. There was considerable confusion in the evidence concerning the James Allen produced by defendant. He testified that he had lived at defendant's apartment but was not living there at the time in question. Defendant testified that she was living with a James Allen and the morning of her arrest drove him to work about 7:30. She did not testify that this Allen was the Allen she produced as a witness. Also she testified that she did not know the James Allen shown in the photograph produced by the inspector as the Allen he referred to. This confusion was a matter which could have been resolved by the trial judge had objection been made to the testimony of the inspector. (2) "The weight to be accorded the information upon which the officer acts in making an arrest for a felony is to be determined by the trial court in the exercise of a sound discretion." Lorenzen v. Superior Court, supra, 150 Cal.App.2d at page 510, 310 P.2d at page 183. Evidently the trial court believed Inspector Noel's testimony to the effect that the James Allen who claimed to be living with defendant had informed him. There was no abuse of discretion here. (3) At no time did defendant object to the admission of the testimony of the inspector as to the making of the arrest, the finding of the narcotics nor the occurrences at defendant's apartment. Nor did defendant object to the admission in evidence of the narcotics. The failure to object in the trial court prevents a review of the admissibility of this evidence here. People v. Alvidrez, 158 Cal.App.2d 299, 322 P.2d 557; People v. Woo Mee Foo, 159 Cal.App.2d 429, 323 P.2d 1071; People v. Goldberg, 152 Cal.App.2d 562, 572, 314 P.2d 151. 2. Knowledge.
Defendant contends that there is no evidence that defendant was aware of the presence of the narcotic. See People v. Gory, 28 Cal.2d 450, 454, 170 P.2d 433, and People v. Lotrean, 120 Cal.App.2d 583, 584, 261 P.2d 543, holding that knowledge of the presence of the object must be shown.) The evidence here clearly establishes that defendant was aware of her possession of the vial. Her own testimony shows that she was. She, or course, denies that she knew what was in the package which she claims Faye Robertson gave her. Defendant admitted that she knew what heroin was. Moreover, Faye denied giving the vial to her. These facts and defendant's statement to the officers, 'you have got me good this time,' amply justify the implied finding that not only was she aware of the vial being in her possession but she also knew its narcotic content. The prosecution's burden of proof of knowledge required by People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177, was amply met by the evidence here.
The judgment is affirmed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 334 P.2d 573.