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People v. Symons

California Court of Appeals
Mar 8, 1961
11 Cal. Rptr. 685 (Cal. Ct. App. 1961)

Opinion

        Hearing Granted May 4, 1961.

        Opinion vacated 15 Cal.Rptr. 150.

        Cary G. Branch, Los Angeles, for appellant.

        Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.


        FOX, Presiding Justice.

        Defendant Van Eyk was convicted by a jury of conspiracy (Pen.Code, § 182 subd. 1) to violate sections 11500 and 11530 of the Health and Safety Code. A grand jury indictment charged him with conspiring with the other named defendants and with others unknown to the grand jury to unlawfully possess: (1) heroin, (2) amidone, (3) percodan, (4) demerol, and (5) marijuana. Ten overt acts in furtherance of this conspiracy were alleged in the indictment. Van Eyk was also charged with three prior felony convictions, each of which he admitted. He has appealed from the judgment and order denying his motion for a new trial.

        Van Eyk and defendant Christensen were arrested at Van Eyk's apartment in South Pasadena at about 11:40 p. m. on September 13, 1959. On September 15, both were ordered released from custody. They were rearrested that day. On September 16, 1959, at about 1:45 p. m., Van Eyk and Christensen were first taken before a magistrate and arraigned on municipal complaint No. 154949 charging them with five counts of possession of narcotics. On September 28, a preliminary examination was had and both defendants were held to answer. Following arraignment in superior court (case No. 219903), defendants moved to dismiss the information pursuant to Penal Code, § 995. Their motion was granted on the ground that the evidence before the committing magistrate had been illegally obtained. They were immediately rearrested and charged with the identical offenses for which they had just been discharged. However, on November 17, a grand jury indictment was handed down charging conspiracy to possess the same narcotics which the information charged they in fact possessed. Thereupon the second possession complaint was dismissed upon motion of the district attorney. After arraignment in superior court on the indictment, defendants moved to dismiss under Penal Code, § 995. This motion was denied. They also demurred to the indictment. The demurrer was overruled. On voir dire out of the presence of the jury, defendants moved to suppress the evidence and objected to introduction of evidence on the grounds that (1) the evidence had been illegally obtained; (2) the question of illegal search and seizure had been decided adversely to the People by the granting of the prior section 995 motion and was therefore res judicata; and (3) that defendants had been denied due process of law because they had not been taken before a magistrate within the time required in section 825 of the Penal Code. The court ruled against defendants on all their motions. Throughout the trial Van Eyk made similar motions and objections, all of which were denied or overruled.

        In view of the questions raised by appellant it is necessary to state the facts leading up to the discovery of the contraband in considerable detail. Officer Sanchez, of the Los Angeles Police Department, Narcotic Division, was the principal witness for the prosecution. He had apartment 207, at 3445 South La Brea, Los Angeles, under surveillance from August 31 to September 13, 1959. It was occupied by Robert C. Hernandez and Marie Helen Lavario. Officer Sanchez had the apartment directly across the breezeway from the Hernandez apartment. He was thus able to hear numerous conversations from the latter apartment through the open windows and to observe who was talking. He overheard other conversations in the Hernandez apartment by standing in the hall at the door of that apartment. On September 2, Officer Sanchez         On September 3, the officer saw defendant Escobedo enter the Hernandez apartment. From his vantage point outside the door, Officer Sanchez heard defendant Escobedo say to Hernandez that he 'had to pick up four ounces of stuff right away.' Hernandez inquired whether 'he had the money.' Escobedo replied, 'Yes, here it is.' Hernandez then said, 'Give me the money and I'll make the 'phone call.' The two men left the apartment. The officer observed Hernandez and Escobedo go to a telephone booth, where Hernandez appeared to make a 'phone call, after which the men held a brief conversation and separated. Overt Act No. 2.

        In the afternoon of September 6, Escobedo went to the Hernandez apartment. Escobedo asked Hernandez 'for six ounces of stuff that he had to pick up right away.' Hernandez inquired, 'Have you got the money?' Escobedo replied, 'Yes, I have.' Hernandez said, 'Good. We'll go make the 'phone call.' As they were walking out of the apartment house, Sanchez observed 'Escobedo * * * counting some currency and handing it to Hernandez.' Overt Acts Nos. 3 and 4.

        On September 7, Miss Lavario, Hernandez and Escobedo were in the apartment. The officer heard Escobedo state that he was 'putting down [delivering] about 10 to 20 ounces a week.' Escobedo further stated that a man named Chente (who was never identified) was not doing anything and he (Escobedo) didn't see why he should be paying Chente $350 a week when he was doing all the work. Miss Lavario remarked: 'Yes, that is right. I don't see why he should be getting all that money for not doing anything.' Hernandez, however, commented, 'Well, it's his operation, it's his business and he started it and I don't think I should cut him out.' Overt Act No. 5.

        On September 8, appellant and defendant Christensen arrived together at the Hernandez apartment. There followed a conversation in which appellant told Hernandez and Miss Lavario that he had a fine apartment with a swimming pool in South Pasadena, and indicated he also had other living quarters. He suggested to Hernandez that he and Miss Lavario move over to his 'end of town.' Miss Lavario thought they ought to move out of their place. During the course of the conversation, appellant stated that he had a couple of guys pushing for him downtown and two pushers in Inglewood and that he was going to acquire a pusher in Wilmington. He commented to Hernandez to the effect that if he, Hernandez, kept him in 'stuff' he, Van Eyk, would be driving a coupe de Ville pretty soon. Overt Act No. 6.

        At approximately 10:00 p. m., on September 12, appellant and defendant Christensen arrived at the Hernandez apartment. Hernandez and defendant Symons were there. Appellant told Hernandez that he had to 'make up ten for tomorrow' i. e., he had to get together ten ounces of heroin for the next day. He asked Hernandez to 'go and call the man right now'. Hernandez said it was too late; that appellant should come around in the morning. During the course of the conversation, appellant commented, 'I'm going to retire in about five years if things keep going as they are.' To which defendant Symons replied: 'Yes, you are either going to retire or you're going to retire to the joint for five years.' When appellant left he told Hernandez to 'have that ten ready for me' tomorrow morning. Hernandez said, 'OK.' Overt Act No. 7.

        At about 10:00 o'clock the next morning, September 13, Officer Sanchez saw appellant arrive at the Hernandez apartment.         Officer Sanchez put out an all-points bulletin for the arrest of Hernandez and appellant, giving a description of appellant's car. At about 1:00 p. m., Hernandez returned to his apartment and was arrested. Appellant not having been apprehended, Officer Sanchez gave orders to Officer Leo Walsh at about 9:00 o'clock that evening to arrest appellant and Miss Christensen. Walsh was also told that appellant might have another place where he would drop the narcotics, if they were not in the South Pasadena apartment; that he should look for 'a rent receipt of some kind.' Acting on this order, Officer Walsh and his partner went to appellant's apartment in South Pasadena, and at approximately 11:40 p. m., on September 13, they entered the apartment, arrested appellant and Miss Christensen, and searched the apartment. No contraband was revealed by the search. However, Officer Walsh took into his possession a rent receipt which he found in the pocket of appellant's coat which was hanging in the closet. When appellant was booked, a set of keys was also removed from his person. The rent receipt was given to Officer Sanchez and an inspection of the same showed that it had been signed by a Mr. Waddle. Working on the theory that the receipt was for a room used by appellant as 'a warehouse' in which to store contraband, the officers called several hundred hotels and apartments trying to determine whether a Mr. Waddle was employed by any of them. These calls were made on September 14 and 15. At about 4:00 or 4:30 p. m., on September 15, the Watkins Arms Hotel in Los Angeles was found to have been the source of the receipt. Officer Sanchez and some other officers went to the hotel some time after 4:30 that afternoon and took with them a picture of appellant. Mr. Watkins, the owner of the hotel, recalled having seen appellant and Miss Christensen in the lobby of his hotel in the evening of September 13. Overt Act No. 10. The officers ascertained that appellant, who was identified on the receipt as Jack Davis, had rented room 316 on September 13. The registration card was made out at 8:10 p. m. The rate was $3.50 for two people, payable in advance. Rent paid on the night of September 13 would create a tenancy until the next day only. Upon the officers' exhibiting their credentials, the hotel manager admitted them to room 316. While searching that room, a suitcase bearing the initials 'LRVE' (initials of appellant's wife) was found under the bed. Appellant was then taken to the Watkins Arms Hotel. The officers also obtained the keys which they had removed from appellant's person when he was booked. The officers unlocked the suitcase and found therein certain narcotic paraphernalia and the narcotics named in the indictment. At the time the suitcase was opened, appellant stated, 'That's my suitcase.' During the ride back to the police station from the hotel, appellant commented to Officer Aguirre, '* * * this is the most stuff that I have ever had in my whole life, and I had to get busted be my whole life, and I had to get busted behind it. I'll probably do a long stretch this

        The appellant did not testify.         At no time did the officers have a warrant for appellant's arrest, nor did they have a search warrant for his apartment or for room 316 in the Watkins Arms Hotel or to search the suitcase. They had no permission to take the rent receipt or the keys, nor did they have the permission of appellant to enter the hotel room or unlock the suitcase.

        We come now to appellant's first contention. He argues that the court erred in denying his motion to exclude the evidence which was admitted against him at the first preliminary hearing on the ground that there had been a prior determination that this evidence was the product of an illegal search and seizure. This prior determination, appellant says, was made when the court granted his motion under Penal Code, § 995 and dismissed the first information. Appellant claims that this prior determination makes the question of admisibility of this evidence res judicata and that it was therefore error for the trial court to admit it on this trial. The evidence thus challenged consists principally of the narcotics found in room 316 of the Watkins Arms Hotel, the keys taken from appellant's possession when he was booked and the rent receipt recovered at his apartment. It was stipulated that the court's granting of the motion under section 995 and the dismissal of the prior information was made on the ground that the evidence introduced by the People at the preliminary examination had been obtained in violation of appellant's constitutional rights against unreasonable search and seizure (Art. I, § 19, California Constitution) and that the People did not appeal from the order dismissing the prior information.

        The doctrine of res judicata is not here applicable. People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1; People v. Ferrera, 149 Cal.App.2d 850, 309 P.2d 533. In the latter case, defendant was accused of bookmaking. After a preliminary hearing, defendant was held to answer and an information was filed charging him with this offense. He made a motion under section 995 of the Penal Code. His motion was granted and the information was dismissed. The People did not appeal from this order. A new complaint was filed against defendant accusing him of the identical offenses charged in the prior information. Defendant contended that the order granting the motion to set aside the first information was a bar to the later prosecution for the same offenses. In holding against defendant's position the court said (149 Cal.App.2d at pages 852-853, 309 P.2d at page 535): 'Section 999 reads: 'An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense.'

        'There is nothing in the statute [section 997] that would forbid a re-examination where the court had failed to order it, or that can be construed to mean that a resubmission is essential to the validity of a second indictment or information. That an order setting aside an indictment or information is no bar to a future prosecution is plainly declared in section 999. (Citation.) The order dismissing the first information constituted no bar to the present prosecution. The magistrate had jurisdiction of the preliminary hearing on which the present information was based. The fact that the People did not appeal from the order granting the motion to dismiss the first information furnishes no ground for complaint on the part of defendant. No constitutional right of his is invaded by the present prosecution on a second information. (Citations.)

        'It is argued that the order granting the motion to dismiss the first information is res judicata under section 1908 of the Code of Civil Procedure. The point is not tenable. 'The distinction between civil and criminal actions is fundamental: a separate branch of the law covers crimes, jurisdiction of courts over criminal proceedings, and criminal procedure.' 1 Witkin, California Procedure, 494, § 9. The distinct character of civil and criminal proceedings necessarily precludes any general application of the doctrine of res judicata In re Begerow,

        "But the order dismissing the prosecution ends the action commenced by the complaint upon which the magistrate issued his warrant of arrest. It ends the action, however, not by any judgment upon the merits of the case, but by an order in the nature of a judgment of nonsuit, a simple expression of the opinion of the court that that particular proceeding ought not to be further prosecuted. Inasmuch as there is no limitation of time applicable to prosecutions for murder, and as a defendant in whose favor an order of dismissal of the action has been made has never been put in jeopardy within the meaning of the constitution, a new action on behalf of the people may, in such case, be initiated at any subsequent day, either by presentment of a grand jury or by a complaint filed with any magistrate.' (Citations.) Section 999 of the Penal Code, not section 1908 of the Code of Civil Procedure, controls. Cases in which the defendant was convicted or acquitted after a trial on the merits are not analogous. See People v. Beltran, 94 Cal.App.2d 197, 210 P.2d 238; 26 S.Bar J. 366. The order dismissing the first information is not res judicata.'

        In the Prewitt case, supra, the People appealed from an order granting defendant's motion to set aside an indictment charging defendant with bookmaking. Prior to the indictment the same case had been dismissed by the municipal court after a preliminary hearing on the ground that the evidence had been illegally obtained. At pages 339-340 of 52 Cal.2d, at page 6 of 341 P.2d the court stated: 'Defendant contends that the doctrines of res judicata and collateral estoppel are applicable to establish that the evidence in the present case was unlawfully obtained. The dismissal of an information or indictment, however, will not bar a trial based on a subsequent accusatory pleading charging the identical offense. (Penal Code, § 999; citations) * * *. There is no merit in defendant's assertion that to relitigate the question of the admissibility of the evidence denies him due process of law. (Citation.)'

        As pointed out in the Ferrera case, supra, the essential difference in civil and criminal proceedings necessarily precludes any general application of the doctrine of res judicata to successive criminal proceedings. Furthermore, section 1908 of the Code of Civil Procedure cannot apply where there is a section of the Penal Code declaring a different rule with respect to criminal matters. Such a rule is found in section 999, Penal Code (and relied on by the Supreme Court in the Prewitt case, supra) which indicates that an order setting aside an information or indictment is not res judicata.

        Appellant places his principal reliance on People v. Mora, 120 Cal.App.2d 896, 262 P.2d 594. The basic question there involved is not the same as the one in the instant case. There it had been determined by the trial court that the accused had been denied the right to counsel at his first preliminary. That was a 'denial of due process' said the court (at page 900, 262 P.2d at page 596). Hence the testimony given by defendant on cross-examination at his initial preliminary (where he was denied the right to counsel) was not admissible against him at a subsequent trial of the same charge. But in the Prewitt case, supra, the court pointed out (52 Cal.2d at page 340, 341 P.2d at page 6): '[T]here is no merit in defendant's assertion that to relitigate the question of the admissibility of the evidence denies him due process of law.' One aspect of Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23, is here pertinent. In that case petitioner was charged with possession of heroin. His motion to set aside the information on the ground that the evidence against him was the product of an illegal search and seizure

        In this connection it must be borne in mind that the legality of a search or seizure will frequently depend on whether the officer had reasonable cause to make an arrest and that the showing to establish such cause 'is not limited to evidence that would be admissible * * * on the issue of guilt.' People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535, 537. The finding of probable cause frequently depends on the weight the particular judge gives to this aspect of the evidence and the inferences that he draws therefrom. Hence one judge's ruling on the admissibility of evidence should not be binding upon another judge in a subsequent and separate action.

        Also, a finding as to probable cause to arrest is merely foundation for the admissibility of evidence, namely, the contraband. This is a matter wholly collateral to the issue before the court as to the guilt or innocence of the accused. There should be no estoppel as to this collateral matter.

        Having determined that the doctrine of res judicata (or collateral estoppel) is not available to exclude any of the evidence in this case, we now turn to an examination of other objections to the admissibility of various segments of the evidence. First, were the conversations overheard by Officer Sanchez admissible? The answer is clearly in the affirmative. He violated none of appellant's constitutional rights in listening to the conversations emanating from the Hernandez apartment through its open window and which came across the breezeway and into his room through its open window. This is likewise true of the conversations he overheard while standing in the hall outside the door to the Hernandez apartment. These conversations were therefore admissible, for eavesdropping without trespass is not a search or seizure. People v. Graff, 144 Cal.App.2d 199, 205, 300 P.2d 837.

        The next question is: Was the rent receipt and the contraband legally seized and were these items properly admitted in evidence? The answer to these questions depends on whether the officer had reasonable cause to arrest appellant. In People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, the court stated: 'Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' Unless it can be said that a prudent man in the position of Officer Sanchez, having heard the conversations emanating from the Hernandez apartment and having observed what appellant and the other occupants did would not have had reasonable cause to believe and to conscientiously entertain a strong People v. Ingle,

People v. Ingle,

        Appellant argues, however, that the seizure of the receipt was illegal on the theory that its discovery was the result of a 'fishing expedition' for evidence of crime. He relies on People v. Mills, 148 Cal.App.2d 392, 306 P.2d 1005, and People v. Schaumloffel, 53 Cal.2d 96, 346 P.2d 393. Neither of these decisions is here apposite. They were based upon the fact that the evidence seized did not relate to the offense for which the arrest was made. In the instant case, the rent receipt was material evidence relating to the conspiracy to possess narcotics. The officers knew that appellant mentioned a place in which he stored narcotics. A rent receipt in appellant's possession for a place other than the apartment he was occupying was relevant and material proof concerning the location of the 'warehouse' where he admittedly 'stashed' his supply of illegal drugs, and led directly to the discovery of the hidden contraband. In the Mills case, supra, (148 Cal.App.2d at page 401, 306 P.2d at page 1012), this court pointed out: 'Though some of the authorities would limit         Appellant makes the unmeritorious contention that the search of room 316 at the Watkins Arms Hotel was illegal because it was not contemporaneous with the arrest in either time or place. The officers knew from defendant's statement to Hernandez that he had a place in which he stored narcotics; they found in his apartment a rent receipt for a hotel room which he did not occupy, dated the very day he had been overheard planning to acquire narcotics. By showing the manager and owner of the hotel pictures of appellant, it was established that he had entered the room under the assumed name of Jack Davis on the evening of the day that he was to obtain a quantity of heroin. The hotel room, when searched, however, was no longer appellant's room; the rental had expired the previous day. The hotel manager and owner had the right to enter the room and to rent it to another. The manager consented to allow the officers to enter and opened the door for them. Upon entering the room, the officers saw the brown suitcase under the bed, on which were initials that corresponded with those of appellant's wife. Upon trying a key from appellant's key-ring, that came into the possession of the police when he was initially booked, the suitcase opened, and in the suitcase was found a large quantity of contraband. This analysis finds support in People v. Crayton, 174 Cal.App.2d 267, 269, 344 P.2d 627, 629. In that case it was determined that there was sufficient evidence to support the conclusion that defendant's occupancy of the hotel room in question ended at 12:00 noon; that 'therefore the manager, having complete control of the premises, had the right to remove the defendant's belongings and prepare the room for a future guest, and hence the search [for narcotics] was legal.' The instant case is factually similar in this respect. Occupancy ended at 11:00 o'clock on September 14; the officers searched the room with the permission of the manager some time after 4:30 o'clock in the afternoon of September 15th. Obviously, the officers were lawfully in the room.

        Once inside the room and having observed the suitcase bearing the initials of appellant's wife, and having discovered the fact that his key fit the lock, the officers had ample cause to believe that they had located appellant's 'stash' of narcotics and were abundantly justified in opening the suitcase and taking possession of the illegal contents thereof. People v. Roberts, 47 Cal.2d 374, 378-379, 303 P.2d 721. As to the use of appellant's keys, clearly the officers had lawful possession of them through the ordinary process of booking appellant as a prisoner at the jail.

        Since the search of room 316 was reasonable and legal, the contraband there secreted belonging to appellant was lawfully seized and properly admitted in evidence.

        There is no merit in appellant's contention that he 'was denied due process of law when the officers failed to comply with Penal Code section 825.' He relies on the following portion of that section: 'The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; * * *.' Appellant was arrested at 11:40 at night on Sunday, September 13th. A teletype was sent from police headquarters to Hollenbeck Station at about 3:30 p. m. on Tuesday, September

        Defendant attacks the reliability of the officer's testimony that appellant was actually released from jail. That, of course, was a matter going to the credibility of the officer's testimony and was for the determination of the trial court. Furthermore, the failure to observe the provisions of Penal Code, § 825 does not require a reversal unless there is a showing that such wrongful conduct resulted in an unfair trial. People v. Price, 172 Cal.App.2d 776, 781, 342 P.2d 437; People v. Blankenship, 171 Cal.App.2d 66, 81, 340 P.2d 282; People v. McCrasky, 149 Cal.App.2d 630, 637, 309 P.2d 115. There was no such showing here.

        Appellant contends that the evidence is insufficient to establish the fact of a conspiracy to possess narcotics or to show that appellant was a member of any such conspiracy. In this connection appellant argues that the most that can be said for the evidence is that it shows an agreement between appellant and Hernandez by which Hernandez was to sell and appellant to buy heroin. Thus, appellant asserts, no conspiracy was shown since a seller and a buyer are not accomplices and, therefore, cannot be conspirators; that their common purpose is not to possess narcotics, and therefore there was no conspiracy. As we said in People v. Frankfort, 114 Cal.App.2d 680, at pages 688-689, 251 P.2d 401, 407: 'The gist of a criminal conspiracy is a corrupt agreement of two or more persons to commit an offense prohibited by statute, accompanied by some overt act in furtherance of the objects of the agreement. [Citations.] The existence of the conspiracy may be established by circumstantial evidence. [Citation.] The agreement may be inferred from the acts and conduct of the defendants in mutually carrying out a common purpose in violation of the statute. [Citations.] It is not necessary that the overt acts be criminal. [Citation.] If such acts are done as a step toward the furtherance of the conspiracy they are sufficient. [Citation.] Also the overt act may be performed by any one of the conspirators and yet be sufficient, for the members of the conspiracy are bound by all acts of all members done in furtherance of the agreed plot. [Citations.]' Furthermore, 'it should also be borne in mind in passing on the sufficiency of the evidence to sustain a conviction that, before a reversal may be had, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. [Citation.] We must assume in support of the judgment the existence of every fact which the trial court could have reasonably deduced from the evidence, and then determine whether the facts 'justify the inference of guilt.' People v. Deysher, 2 Cal.2d 141, 149, 40 P.2d 259, 263.'

        Applying these rules, the evidence clearly supports the implied finding that a conspiracy to possess narcotics existed and that appellant was a member of that conspiracy. In fact, the evidence establishes the existence of a narcotics 'ring' in which appellant was a prime participant. Others identified as members of the conspiracy included Escobedo, Hernandez, Miss Lavario, Symons, and a man named Chente. There were also one or more unidentified members of the group. Hernandez was obviously a supplier operating as a middle man between the original source which was unidentified and men like Escobedo and appellant, who then distributed the contraband to their pushers. The evidence indicates a large scale operation wherein possession of the narcotics passed from hand to hand. It is obvious that the ultimate objective was not the sale of narcotics by Hernandez to appellant, United States v. Aviles, 2 Cir.,

Leyvas v. United States, 9 Cir., United States v. Rich, 2 Cir.,

        In connection with this argument appellant further contends that the court erred in allowing Officer Sanchez to testify concerning conversations overheard involving Miss Lavario, Escobedo and Symons, because appellant says there is no evidence to connect these persons with the conspiracy or with appellant's part in that conspiracy. It is elementary that after proof of a conspiracy, evidence of the declarations of any of the conspirators and their acts within the scope of the conspiracy is admissible against all, including those who were not present on the particular occasion. People v. Blau, 140 Cal.App.2d 193, 213, 294 P.2d 1047. Any competent evidence which tends to prove the existence of the conspiracy or any competent act or declaration tending to show a common design is admissible. People v. Calhoun, 50 Cal.2d 137, 144, 323 P.2d 427. The independent act or declaration of one conspirator performed in furtherance of the conspiracy is admissible and competent against each conspirator. People v. Stone, 89 Cal.App.2d 853, 874, 202 P.2d 333. The order of proof, of course, in a conspiracy case is within the sound discretion of the trial court.

        The trial court permitted the prosecution to introduce evidence of acts and declarations of the conspirators in chronological order as it was difficult to establish a conspiracy in other than a step by step procedure. When the various acts and declarations of the parties involved were revealed, a conspiracy was established between appellant, Hernandez, the unidentified supplier, Escobedo, Chente, Miss Lavario and Symons. It is clear that the court did not abuse its discretion in the order of proof as sufficient foundation of the existence of the conspiracy was eventually established to permit the introduction of the acts and declarations of the co-conspirators of appellant in his absence. People v. Curtis, 106 Cal.App.2d 321, 325-327, 235 P.2d 51; People v. Frankfort, supra, 114 Cal.App.2d at page 689, 251 P.2d 401. For a similar conspiracy involving narcotics see United States v. Defillo, 2 Cir., 257 F.2d 835, 837-838, and Leyvas v. United States, supra, 264 F.2d at pages 274-275, where evidence not unlike that under attack in the instant case was received.

        It was not error, as appellant asserts, to permit Officer Sanchez to testify that the narcotics found in the suitcase had a retail value of $30,000 to $40,000. People v. MacCagnan, 129 Cal.App.2d 100, 111, 276 P.2d 679; People v. Lotrean, 120 Cal.App.2d 583, 585, 261 P.2d 543. The fact that appellant was in possession of such a large quantity of narcotics indicates that he was operating on a commercial basis, and that this was not simply a sale between a peddler and an addict. The value of the contraband tended to corroborate Officer Sanchez' testimony that appellant had several 'pushers' and that he was a retailer of narcotics. The large quantity of narcotics tended to indicate that this was an extensive conspiracy between the parties named in the indictment and unidentified wholesalers dealing in contraband.

        Appellant contends that the court erred in allowing the instructions to be taken to the jury room over his objections. Section People v. Walker,

People v. Dunlop,

        Appellant contends it was error to send instructions to the jury room bearing an indication as to which side requested that particular instruction; that this might tend to make the jurors partisan upon learning who made the particular request. The jury was instructed that they must follow the instructions of the court as a whole, and not to give any particular weight to any single instruction. In People v. Fisher, 16 Cal.App. 271, 274-275, 116 P. 688, 689, it was held that similar markings upon the instructions, i. e., 'charge of the court' and 'requested by defendant and given,' could not prejudice the defendant. We see no basis for any prejudice in the instant case. The trial judge did not abuse his discretion in permitting the instructions to be taken to the jury room.

        Appellant also complains of the failure of the court to obliterate the omitted portions of CALJIC Instruction No. 6 so that they could not be read by the jury. In People v. Gray, 52 Cal.App.2d 620, 650-651, 127 P.2d 72, the court held that instructions submitted to the jury with portions thereof merely crossed out (not obliterated), did not constitute error.

        Appellant also complains that the captions of some of the instructions were marked through and others were not. The answer to this criticism is that the caption is not a part of the instruction. It cannot be assumed that the jury was misled.

        The indictment charged appellant with conspiring with others to possess narcotics. Through inadvertence, one of the instructions included offenses other than possession of narcotics. It is thus contended that the jury were told they could find appellant guilty of acts not charged in the indictment or that he conspired to commit crimes other than possession of narcotics. This inadvertence came about by reason of the amendment of section 11500, Health and Safety Code, effective July 1, 1959, which eliminated from that section all offenses other than possession of narcotics, the other offenses being placed in section 11501 of said code. Therefore, a proper instruction to the jury would have included a conspiracy to commit only the crime of possession of narcotics, since the offense charged in the indictment was committed between the latter part of August and the middle of September, 1959. The trial judge gave the instruction that had been in use prior to the amendment and overlooked revising it in accordance with the new amendment. The question remains whether the giving of this incorrect instruction was prejudicial. We have concluded that it was not.

        At the outset of the trial, the clerk read the grand jury indictment to the jury, wherein it was clearly indicated that appellant was charged with conspiracy to possess certain named narcotics. The jury was again reminded that the prosecution was         Furthermore, the overwhelming evidence of possession of narcotics by appellant unmistakably indicated an intent on his part to possess narcotics at the time of the conspiracy. Examination of the record unmistakably indicates that it is improbable that a result more favorable to appellant would have resulted absent the incorrect instruction. People v. Watson, 46 Cal.2d 818, 836-837, 299 P.2d 243.

        Appellant also complains that it was error to give an instruction which included the ten overt acts set out in the indictment. He argues that this gave the People an unfair advantage in keeping these ten overt acts before the jury when the instructions went to the jury room. The instruction discloses on the margin that it was not requested by the People but also by appellant. Having requested the instruction, appellant is now in no position to urge that it was erroneous.

        Appellant contends that the jury should have been instructed that the law required them to find that the possession of narcotics was to take place in California; also, that as he was charged with conspiracy to possess five different narcotics, the jury should have been instructed that 'they must all agree as to which act appellant did.' There is no merit in either of these contentions.

        First of all, it should be noted that appellant did not request any instruction on either of these points. Furthermore, there was no evidence that appellant conspired with the other parties involved to possess narcotics in any place other than the State of California. On the contrary, the evidence clearly indicated that appellant conspired to possess narcotics in Los Angeles County, for the necessary delivery was local and his selling activities were confined to the local area. To give an instruction on this point would have tended to confuse and mislead the jury. People v. Jackson, 42 Cal.2d 540, 546-547, 268 P.2d 6.

        With respect to appellant's second contention, he misconceives the nature of the charge against him. He was not charged in the indictment with five felonies by reason of the possession of the named narcotics, but rather he was charged with a single offense, namely, a conspiracy to illegally possess one or more of the drugs mentioned in the indictment. The basic issue for the jury's determination was whether appellant was a party to a corrupt agreement to commit an offense prohibited by statute, namely, the possession of contraband. If each of the jurors was satisfied that appellant intended to possess any narcotic named in the indictment, this would be sufficient to provide the element of intent involved in the offense of conspiracy to possess narcotics. It is thus apparent that it would have been inappropriate for the court to give such an instruction as appellant now suggests. See People v. Caldwell, 55 Cal.App.2d 238, 255-256, 130 P.2d 495.

        Finally, appellant contends that the jury returned a verdict that was not responsive to the indictment in that it appeared to find him guilty of conspiracy and violation of sections 11500 and 11530 of the Health and Safety Code. The verdict reads: 'We, the Jury in the above entitled action, find the Defendant James Peter Van Eyk guilty of conspiracy, violation section 182.1, Penal Code and sections 11500 and 11530, Health and Safety Code of the State of California as charged in the Grand Jury Indictment.' It is reasonably apparent from a reading of the verdict that the jury found appellant guilty of only a single People v. McKinney,

People v. Mercado, People v. Grijalva, People v. Fisher,

        It will be recalled that appellant failed to testify. In commenting on such a circumstance, the court stated, in People v. Ashley, 42 Cal.2d 246, at page 268, 267 P.2d 271, 285: 'A defendant's failure to take the stand 'to deny or explain evidence presented against him, when it is in his power to do so, may be considered by the jury as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.' People v. Adamson, 27 Cal.2d 478, 489, 165 P.2d 3, 9. But the failure to testify will not supply a lacuna in the prosecution's proof.'

        The judgment and the order denying motion for a new trial are affirmed.

        ASHBURN, J., and McMURRAY, Justice pro tem., concur.


Summaries of

People v. Symons

California Court of Appeals
Mar 8, 1961
11 Cal. Rptr. 685 (Cal. Ct. App. 1961)
Case details for

People v. Symons

Case Details

Full title:PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred…

Court:California Court of Appeals

Date published: Mar 8, 1961

Citations

11 Cal. Rptr. 685 (Cal. Ct. App. 1961)

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People v. Symons

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