Opinion
For Opinion on Hearing, see 47 Cal.Rptr. 788, 408 P.2d 116. Gerald D. Lenoir, Los Angeles, for appellants.
Stanley Mosk, Atty. Gen., Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen. for respondent.
LILLIE, Justice.
The judgments of the trial court in this cause entered on June 24, 1963, adjudging Ivy Dell Cockrell, her husband, Leroy Morris Cockrell, and codefendant Bernice Phillips guilty of conspiracy to violate section 11531, Health and Safety Code (sale of marijuana) (Count VIII); Ivy guilty of sale of marijuana of February 18, 1963 (Count V); and Ivy and Leroy jointly guilty of sale of marijuana on January 29, 1963 (Count II), and possession of marijuana for sale on February 18, 1963 (Count VI), were affirmed by this court in an opinion filed on August 19, 1964 (People v. Ivy Dell Cockrell and Leroy Morris Cockrell, Appellants, Criminal No. 9307). Thereafter appellants' petition for rehearing by this court was granted on September 14, 1964. Other codefendants Foreman, Phillips and Goodjohn were charged and convicted on other counts, but only Ivy and Leroy appeal.
On January 29, 1963, Deputy Greene, an undercover narcotics officer, saw Foreman and Bernice Phillips at the home of one Blye. While talking with Blye the deputy asked Foreman, 'What about this deal?'; Foreman said, 'It is a $140 for a brick.' Greene said, 'How do I know this deal won't be the same as that last deal which was a burn?'; Foreman answered that it was in a brick and not loose stuff. When the deputy said he did not have $140, Foreman asked how much he could get and he answered, 'A pound.' Bernice walked in and said, 'He wouldn't go for a pound,' that she made the deal for $140 for a brick and if she changed it 'he might bet hinky.' Greene said he did not have $140 only $100 and Foreman replied, 'We will see what we can--we will go anyway.' Foreman and Bernice left in her car and Blye and Deputy Greene in the latter's car. The deputy followed Bernice to 46th and Avalon; Foreman left Bernice's car, walked back to the deputy and said, 'The broad wants to know if you will go for a pound and a half for a hundred dollars'; Greene said, 'I thought she said that he wouldn't go for breaking up of the $140'; he answered, 'She is going to put the rest of it with you and we will get the whole brick * * * you are getting a good deal'; Greene said, 'Okay.' Bernice then walked over to Greene and asked him what he had decided; he said he would 'go for it' and gave her $100. She said, 'Wait here,' and the deputy watched Bernice turn east. They waited an hour; the deputy next saw Bernice on the sidewalk between the public sidewalk and the porch of appellants' (Cockrells') residence on East 45th Street. She was walking with her arms folded in Around 2 p. m. on February 18 the deputy and Goodjohn were looking for marijuana; Goodjohn directed him to Bernice's residence. She said, 'I heard you were looking'; Greene said he was, and asked her if she could do him any good; she replied she thought she could. Meanwhile the deputy went to a nearby telephone booth, called the sheriff's radio room and talked with Deputy Bridges. He returned and Bernice told him she meant for him to stay there but decided to let him take her to the house on 45th Street. He drove her about two doors east of appellants' residence across the street, parked and gave her $140, the serial numbers of which had been previously recorded. He watched her go in the front door; she was admitted by a woman. Twenty minutes later she came out and returned to his car displaying a package which she held in her lap. The deputy drove west on 45th Street and as prearranged, signaled to his surveilling officers that 'he had scored'; Sergeant Allender and Deputies Paillet and Burley arrested them. From the time Deputy Greene called the sheriff's radio room, these officers had appellants' residence under surveillance. (Previously on January 29, Burley had kept appellants' premises under surveillance, had observed Greene and knew of his purchases from and transactions with various defendants.) They found on Bernice $38 in currency; six $5 bills matched the numbers recorded on a list of county funds previously given the Greene. Deputy Burley saw the package Bernice brought from appellants' residence on the front floor board, passenger side of Greene's vehicle; it contained marijuana. Deputy Burley asked her where she had obtained it; Bernice said, 'You probably know where I got it. You probably have been watching me for some time. I got if from the woman in that house and the woman was wearing a red dress.' After some conversation the officers approached appellants' residence; Bernice and Deputies Greene and Paillet went to the station.
The other officers knocked on appellants' door, identified themselves and requested admittance. There was no response but they could hear someone moving around inside and so they forced the door and entered. Ivy was in the house; she was the only woman there and was wearing a red dress. They again identified themselves, said they were conducting an investigation and asked if she had any money. Ivy produced a billfold and took out two or three $1 bills; they asked her if this was all and she said, 'Yes.' Asked by the officers if they had any marijuana or contraband in the house, Ivy answered, 'No.' Sergeant Burley asked if they could look around to determine that she had none and she answered, 'Well, go ahead. I have nothing to hide.' The officers removed a purse from a chest and holding in his hand a large amount of currency (approximately $1000) which he had taken from it, he asked Ivy, 'What is this?'; she replied, 'Oh, yes, I do have some other money in the house. I have had it for approximately two weeks. I received it from the sale of some property and I have had it in the house ever since.' In her presence they checked the numbers of the bills against the official list and found $110 of the currency on it. Ivy then said, 'I don't know how the money got here. Some woman came, gave me some money and got some marijuana and left the The night of Ivy's arrest Leroy was arrested on the fourth floor of the County Courthouse. Deputy Burley asked him where his car was parked and Leroy told him it was in a parking lot. They accompanied him to his car and asked him if he had any contraband in it; he answered 'No.' They asked if they could look and he said, 'Yes.' During the search several small seeds and part of a cigarette (roach) were found in the back seat area (Exh. 12).
Later the same evening Deputy Burley had a conversation with Bernice in the presence of Leroy and Deputy Greene. In Leroy's presence, Bernice said that on January 29 she went to appellants' residence, Leroy was in bed, she asked him if she could buy marijuana from him, he told her she could, she said she would return around 6 p. m. and he said he wouldn't be there but his wife (Ivy) would give it to her; later that day she returned and purchased marijuana from Ivy; on February 18 she again went to appellants' residence and purchased a kilo of marijuana from Ivy and gave her $110 of the $140 given to her by Greene keeping $30 for herself. Deputy Burley then asked Leroy what he had to say about that; Leroy made no reply. Deputy Burley also talked to Ivy; she said she would like to help and asked if she could talk to Leroy first; she did so and then told Burley, 'My husband advised me not to say anything and I am sorry.'
In his defense Leroy testified that he is Ivy's husband and resides at the 45th Street address; he did not see Bernice either on January 29 or February 18; he is employed by the county on a 5 a. m. to 1 p. m. shift; he did not know how marijuana seeds got on the floor of the back seat of his car; he remained silent when questioned by Deputy Burley in Miss Phillips' presence because he had been told by a lawyer that if he was ever arrested not to talk unless he had legal advice, but that none of what she had said was true; he did not sell any marijuana on January 29; and the 15 packages of marijuana found in the trash cans on the rear of his property did not belong to him and he knows nothing about them, nor does he know anything of the sale on February 18. On cross-examination he admitted that he was home on the afternoon of January 29, 1963; that it was his custom to be in bed in the afternoon and that he had known Miss Phillips about six years but had not seen her for a year and a half. Ivy did not testify.
Appellants direct their claim of insufficiency of the evidence to the conspiracy count. They argue that the evidence is insufficient to show a conspiracy between Bernice and Ivy in that there was no proof of an agreement to violate the law, and that in the absence of proof of a conspiracy Bernice's statement to the police in Leroy's presence was not properly admitted.
A criminal conspiracy exists when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement. (§§ 182, 184, Pen.Code; People v. Van Eyk, 56 Cal.2d 471, 478, 15 Cal.Rptr. 150, 364 P.2d 326.) The People v. Steccone,
People v. Garcia, People v. Fitzgerald, People v. Griffin, People v. Steccone, People v. Theodore, Lorenson v. Superior Court, People v. Robinson, People v. Massey, People v. Moran, People v. Buckman,The existence of a conspiracy is essentially a question of fact; the credibility of the witnesses, weight of the evidence and inferences reasonably to be drawn therefrom are for the trier. (People v. Pacheco, 194 Cal.App.2d 191, 197, 14 Cal.Rptr. 840.) The record shows that on two separate occasions, about three weeks apart, Bernice obtained a substantial amount of marijuana from Ivy at appellants' residence on 45th Street for Deputy Greene for which he paid Bernice with county funds. On January 29, shortly after Greene agreed with Bernice to buy a pound of marijuana which she would obtain and for which he paid her $100, Deputies Greene and Burley saw her directly in front of the steps of the appellants' residence with something in her arms, immediately after which she displayed to Greene a bag of marijuana. On February 18, immediately after a similar transaction in which Deputy Greene gave Bernice $140, Deputies Greene and Burley observed her, upon admission by a woman, go in the front door of appellants' residence and later emerge with a package of marijuana which she showed Greene in his car and which she told the officers she had obtained from a woman wearing a red dress 'in that (appellants') house.' Immediately thereafter, upon entering appellants' home, the deputies found Ivy who was wearing a red dress; no other woman was present. They also found on the premises approximately $1000, including $110 in bills which Greene had just given to Bernice, marijuana, Zig Zag cigarette papers, and a bag containing seeds, debris, a razor blade and Zig Zag cigarette papers; and in the yard, large amounts of marijuana (enough to make 30,000 cigarettes). Ivy told them, '* * * some woman came here, gave me some money and got some marijuana and left. * * *'
When all inferences favorable to the prosecution are drawn, the evidence reveals the existence of a fairly large narcotics operation being carried on in the premises. Not only was the conspiracy between Ivy and Bernice clearly shown, but the overt acts relating to Bernice were proved beyond any doubt--overt acts Numbers 2, 3 and 9 respectively alleged that Foreman and Bernice went to 53rd Street (Blye's residence) on January 29; Foreman and Bernice went to 46th and Avalon on January 29th; and Bernice went to 45th Street on February 18. It is not necessary that the overt acts be criminal (People v. Gordon, 71 Cal.App.2d 606, 628, 163 P.2d 110; People v. Corica, 55 Cal.App.2d 130, 134, 130 P.2d 164) if they are done as a step in the furtherance of the conspiracy. (People v. Gilbert, 26 Cal.App.2d 1, 23, 78 P.2d 770; People v. Causey, 220 Cal.App.2d 641, 34 Cal.Rptr. 43.) Once a conspiracy is established it is unnecessary to prove that each conspirator personally participated in each of the several overt acts (People v. Buckley, 202 Cal.App.2d 142, 149, 20 Cal.Rptr. 659; People v. Chait, 69 Cal.App.2d 503, 514, 159 P.2d 445) for the members of the conspiracy are bound by all acts of all members done in furtherance of the agreed plot. (People v. Frankfort, 114 Cal.App.2d 680, 689, 251 P.2d 401.) As to Ivy's husband, Leroy, he lived with her in the residence at the 45th Street address; Bernice twice went to his house and purchased marijuana from Ivy; just before her January 29 visit to the appellants' home Bernice, in her conversation with Greene, referred to the person with whom she had made the deal to buy marijuana as 'he'; on Leroy's premises, in trash cans, were found large quantities of marijuana, and in his house, smaller quantities of marijuana, a large amount of money and marijuana paraphernalia. The large amount of marijuana found precludes any inference that it was kept there for the personal use of the occupants or that it belonged to anyone else; but it, together with the amount of money and the cigarette papers and paraphernalia found in the house, points to a substantial operation for profit carried on by those who resided on the premises. Further, the amount of marijuana and the place in which it was secreted precludes any reasonable inference that only one occupant knew of its existence and was involved in its possession and sale, but lend undeniable credence to the claim that Leroy, Ivy's husband and the man of the house, was as much, if not more involved than Ivy. His unlawful activities appear to have been carried on even to his automobile, as evidenced by the marijuana seeds and a roach found therein. While mere association with Ivy is not sufficient to prove Leroy's participation (People v. MacEwing, 216 Cal.App.2d 33, 46, 30 Cal.Rptr. 476), the proper and reasonable inference from the nature of the conduct, the premises on which the activities took place, his relation to the co-conspirators, the interests of all involved and other circumstances too numerous to mention, is that Leroy was a participant in the sale and possession for sale of marijuana in his home. (People v. Andrews, 165 Cal.App.2d 626, 634, 332 P.2d 408; People v. Massey, 151 Cal.App.2d 623, 652, 312 P.2d 365.)
In light of the above, Bernice's declaration was clearly admissible. (People v. MacEwing, 216 Cal.App.2d 33, 44, 30 Cal.Rptr. 476; People v. Calhoun, 50 Cal.2d 137, 144, 323 P.2d 427.) In her statement to the police in the presence of Leroy she named him as the person with whom she had made a deal on January 29, 1963, at his residence on 45th Street to buy marijuana, and from whom she thereafter, on January 29 and February 18, bought marijuana at his residence delivered to her by Ivy. The incriminating declaration was not made out of the presence of the co-conspirator; she made her accusatory statement in his presence and, when Leroy was asked what he had to say about it, he remained silent. Although he testified that he had been told by a lawyer to make no statement without legal advice, the court had a right to believe that Leroy did not deny the accusation because it was true.
Appellants' only other contention is that the officers had time in which to obtain, and should have obtained, a search warrant; and that the search of Leroy's automobile was illegal.
Ivy was lawfully arrested without a warrant immediately after the arrest of Bernice. Having observed Bernice in front of appellants' residence, after which she produced a bag of marijuana, and several weeks later watched her go there again and emerge with another package of marijuana, which she said she obtained from a woman in a red dress in appellants' house, the officers had reasonable cause to believe that a woman therein had committed a felony on the premises (§ 836, subd. 3, Pen.Code; People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577); and having arrested one person in what they thought to be a substantial narcotics operation being conducted at appellants' residence, it was reasonable under the circumstances for them to conclude that if they did not immediately arrest the woman she and others involved in the activities would seek to destroy the evidence, flee the premises, and frustrate an arrest. It appears that this might well have happened, for Ivy, knowing them to be officers, refused to respond to their knock and continued to move around the house. The search yielding the money was made with her consent. Upon being People v. Fischer,
People v. Jackson, People v. Burke, People v. Melody, People v. Winston, In re Dixon,As to Leroy, there is no showing that the officers arrested him without a warrant. However, they had reasonable cause to believe that he, too, had committed a felony. Bernice had, in previously dealing with Deputy Greene, referred to her original contact as a male person, and large quantities of marijuana and paraphernalia had been found on the premises in which he and Ivy were living. But more important, the evidence shows that the search of the vehicle was with Leroy's consent; the officers asked him if they could look in the car, and he answered, 'Yes.'
A petition for rehearing was granted herein; however, we have analyzed the evidence in the light of the rulings in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965), 62 Cal.2d ----, 42 Cal.Rptr. 169, 398 P.2d 361, and conclude that the judgments should be affirmed.
Advance Report Citation: 62 A.C. 350.
When the officers entered appellants' residence they had reasonable cause to believe that Ivy had committed a felony. They asked her if she had any money, and she produced several small bills; asked if this was all she had she answered, 'Yes.' She was then asked if they had any marijuana or contraband in the house; she answered, 'No.' When a search produced a large sum of money, the officers said, 'What is this?'; she told them she had received it from the sale of some property and had it in the house for several weeks. After they found county funds amounting to $110 among the bills, Ivy said, 'I don't know how the money got here. Some woman came, gave me some money and go some marijuana and left the location.' The officers then asked her who gave the marijuana to the woman, and Ivy replied, 'I do not know.' Later, after they found the sacks of marijuana in the rear, she was asked if she knew anything about them; she answered, 'No.' Ivy made no further statements either at the house or at the station. Leroy made no statements relative to the case.
While it may be said that the process of interrogation had shifted from the investigatory to the accusatory stage, its focus was on Ivy and its purpose was to elicit a confession (Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977), Ivy made no confession. She flatly denied possession and knowledge of any marijuana found on the premises. She also denied knowing how the county funds 'got' there. Her only statement was that a woman came there, gave her some money, got some marijuana, she did not know from whom, and left. This statement contains an implied denial that it was she who gave the woman the narcotics.
However, if the use of Ivy's statement, obtained by the officers without advising her of her right to counsel and her right to remain silent, received by way of the officers' testimony and without objection, was error, it is readily apparent from the clear and convincing testimony of the police officers that it could not have affected the judgment. The officers had done their work well. The evidence apart from Ivy's statement clearly establishes her guilt; she did not see fit to take the witness stand. People v. Watson,
Applying this test to the record before us, we conclude that it is not reasonably probable that a result more favorable to Ivy would have been reached in the absence of the use of her statement. The trial was eminently fair and there is no miscarriage of justice.
For the foregoing reasons the judgments, and each of them, are affirmed.
WOOD, P. J., and FOURT, J., concur.