People v. Valerio

• Decision Date: 29 December 1970
• Docket Number: Cr. 4159
• Citation: 13 Cal.App.3d 912,92 Cal.Rptr. 82
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory Joseph VALERIO, Defendant and Appellant.

Page 82

92 Cal.Rptr. 82

13 Cal.App.3d 912

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory Joseph VALERIO, Defendant and Appellant.

Cr. 4159.

Court of Appeal, Fourth District, Division 2, California.

Dec. 29, 1970.

[13 Cal.App.3d 916] Goodman, Hirschberg & King and Max A. Goodman, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Edward T. Fogel, Jr., Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

Defendant Gregory Valerio and a codefendant, Debra Snipes, his sister-in-law, were charged and convicted by a jury of unlawful possession of marijuana (Health & Saf.Code, § 11530) and unlawful transportation of marijuana (Health & Saf.Code, § 11531). The jury also found it true that a motor vehicle was involved in or used incidental to the commission of the offenses charged in the information. Defendant appeals from the judgment entered on these verdicts. ¹

The Facts

At or about noon on October 14, 1969, Officer Paul Bowles of the Anaheim Police Department observed that when defendant's car stopped at an intersection, its brake lights were not worked properly. When the signal changed, Officer Bowles turned on his red light to pull over defendant's car. The car first slowed to about 30 miles per hour but continued in the driving lane. Then it slowed to between 10 and 15 miles per hour and started pulling toward the curb. The automobile could have stopped at any point along the curb, but did not stop as soon as it might have. As the vehicle was slowing, the officer noted the woman codefendant, sitting on the passenger side, reach down to the floorboard, then straighten up and throw a cigarette out the window. The officer visually pinpointed the spot where the cigarette landed. The car finally stopped about 400 feet from the point where the officer activated his red light. It had traveled some 200 feet along the curb at the reduced speed.

When the car did come to a stop, the defendant immediately got out and walked back toward the police car; the officer met him about halfway and asked him to go back and sit down in his car. Officer Bowles then asked Debra Snipes, the codefendant, what kind of cigarettes she smoked. She denied smoking at all, and the defendant volunteered that he did not smoke either.

The officer then walked back to the place at which he saw the cigarette land. There he found a hand-rolled, partially smoked, cigarette approximately 1 1/2 inches long with one end twisted. By examining and smelling this partial cigarette, which was not warm to the touch, Officer Bowles, based upon his past experience as a police officer, formed the opinion that it was marijuana. He went back to the car and advised both occupants that they were under arrest for possession of marijuana.

The defendant was searched and handcuffed. As he was being put in the police car, Valerio asked the officer if he was going to search Debra Snipes. The officer answered no, and did not search Miss Snipes, but did ask her why she was protruding in front. She answered that she was pregnant.

Officer Bowles then searched the car. In the nap of the rug on the driver's side, both front and rear, he discovered a small quantity of marijuana fragments. No fragments were found on the passenger side of the vehicle.

When the codefendant was taken to the police station and a search of her person began, she pulled two bags of marijuana from her stomach area and gave them to a matron, stating that she was not pregnant as she had previously stated.

There was testimony that the fragments, the partially smoked cigarette and the bags of marijuana together constituted a usable amount, but there was no testimony as to whether the fragments themselves or the partially smoked cigarette itself constituted a usable quantity of marijuana. In the absence of such testimony, it may not be inferred that the fragments constituted a usable quantity (People v. Leal, 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665; People v. Villalobos, 245 Cal.App.2d 561, 567, 54 Cal.Rptr. 60), but, inasmuch as the marijuana cigarette was only partially smoked and the remaining portion was approximately one and one-half inches long, it may be inferred that it constituted a usable quantity (People v. Locke, 274 Cal.App.2d 541, 544, 79 Cal.Rptr. 367; People v. Villalobos, Supra.)

On this state of the evidence, the People rested, and defendant reserved a motion for acquittal under Penal Code, section 1118.1. ² The motion was actually made, argued and denied at the conclusion of all the evidence, but was deemed made at the close of the prosecution's case.

The codefendant testified in her own defense that she met the appellant at a friend's house in the morning and got a ride home with him. On the way, she testified that they stopped at a house where the appellant bought the two bags of marijuana. She carried them in her purse to the car, then put them on the floorboard in front of her. When the police car's light came on, appellant told her to hide the bags, and produced a cigarette which he told her to throw away.

Appellant, testifying in his own defense, denied both that they stopped at a house after leaving their friends, and that he handed the cigarette to his sister-in-law. Rather, he testified that she produced it and asked what to do with it, and then threw it out the window before he could answer.

Contentions

Defendant makes the following contentions:

(1) That the court erred in failing to grant his motion for acquittal under Penal Code, section 1118.1;

(2) That he was convicted on the uncorroborated testimony of an accomplice;

(3) That the court erred in refusing to give a requested instruction that the woman codefendant was an accomplice as a matter of law;

(4) That the court erred in failing to give Sua sponte an instruction defining an accomplice.

The Motion for Acquittal

Under section 1118.1 the court 'shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.' The test to be applied by the trial court under the section is, therefore, the same test applied by an appellate court in reviewing a conviction: whether from the evidence, including reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged (People v. Groom, 60 Cal.2d 694, 696--697, 36 Cal.Rptr. 327, 388 P.2d 359; People v. Redrick, 55 Cal.2d 282, 10 Cal.Rptr. 823, 359 P.2d 255).

We shall be called upon hereinafter to deal more specifically with the elements of the two offenses charged. It is apparent, however, that if the testimony of the woman codefendant may be considered, there was ample evidence to support a conviction of defendant for both possession and transportation of marijuana. We are met at the outset, therefore, with the question whether, in reviewing this alleged error and its possible prejudicial effect, we must confine ourselves to the evidence before the trial court at the time the prosecution rested or whether we may consider the evidence thereafter presented.

Although defendant's motion was actually presented and argued after all of the evidence was in, it was previously reserved and by permission of the trial court was deemed made at the close of the prosecution's case. It would appear reasonable, therefore, to relate the denial of the motion back to that time also. Penal Code, section 1118.1 providing for a motion for acquittal was enacted by the Legislature in 1967 replacing former section 1118 which provided for a non-binding directed verdict. The new enactment is substantially similar to subdivision (a) of Rule 29 of the Federal Rules of Criminal Procedure. Under the federal practice, the majority of decisions hold that, if after the motion is denied, the defendant puts on evidence which supplies any deficiency in the prosecution's case, he may not complain on appeal of the erroneous denial of his motion. (Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893, 896; see also 8 Moore's Federal Practice, 2d ed., 29.03 and 29.05.) In so holding, the cases generally theorize that the defendant 'waived' the error or is estopped to assert it or, in some cases, that the error cannot be considered prejudicial. (See 8 Moore's Federal Practice, Supra; Phillips, Comment, The Motion for Acquittal: A Neglected Safeguard, 70 Yale Law Journal 1151, 1160--1163.) The 'waiver' retionale has been severely criticized (see Cephus v. United States, Supra, 324 F.2d at pp. 896--897; but see 8 Moore's Federal Practice, Supra, 29.05, text opposite fns. 16 through 18), and the California decisions under the directed verdict procedure prior to 1967, while not controlling, appear inconclusive and somewhat in conflict (see People v. Clark, 62 Cal.2d 870, 881, 44 Cal.Rptr. 784, 402 P.2d 856; but cf. People v. Coleman, 100 Cal.App.2d 797, 803, 224 P.2d 837; People v. Crane, 34 Cal.App. 760, 762--765, 168 P. 1055.)

Whatever may be the appropriate rule generally, the case at bench presents a fact situation in relation to this problem substantially the same as that in Cephus v. United States, Supra, 324 F.2d 893. The testimony helpful to the prosecution which came in after the denial of the motion (remembering that the motion was deemed made and is deemed denied at the conclusion of the prosecution's case) was given by the woman codefendant. Defendant's testimony did not materially assist the prosecution's case against him. The thrust of his testimony was that the codefendant alone was guilty in contradiction of the codefendant's testimony to the effect that defendant was guilty. The court in Cephus concluded that, under such circumstances, it could not be held that the defendant was estopped or that he had waived the allegedly...