Domingo, In re

• Decision Date: 06 January 1969
• Docket Number: Cr. 3292
• Court: California Court of Appeals Court of Appeals
• Parties: In re Joseph Edward DOMINGO, on Habeas Corpus.

Page 161

74 Cal.Rptr. 161

268 Cal.App.2d 642

In re Joseph Edward DOMINGO, on Habeas Corpus.

Cr. 3292.

Court of Appeal, Fourth District, Division 1, California.

Jan. 6, 1969.

Rehearing Denied Jan. 22, 1969.

Hearing Denied March 5, 1969.

[268 Cal.App.2d 644] Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for appellant.

Gerald M. Dawson, San Diego, for petitioner.

OPINION

COUGHLIN, Associate Justice.

Joseph Edward Domingo, petitioner in this proceeding, and Ronald Weston Daniels, were jointly charged, tried and convicted of the offenses of selling marijuana, occurring respectively on August 21, 1964 and September 1, 1964. The trial commenced on December 7, 1964, and concluded December 14, 1964. Domingo was sentenced to imprisonment in the state prison. He appealed his conviction, which was affirmed by this court in a nonpublished opinion on November 30, 1965; did not petition for a rehearing; petitioned for a hearing by the State Supreme Court, which was denied January 26, 1966; petitioned for certiorari by the United States Supreme Court, which was denied October 10, 1966; and petitioned the Superior Court of San Diego County for a writ of habeas corpus on August 20, 1967, contending his conviction and commitment were invalid, which was granted. Respondent in the habeas corpus proceeding appeals.

Domingo's contention his commitment and conviction were invalid is based upon the following grounds, asserted on appeal and set forth in his petition and an amendment thereto, each of which he claims constitute a denial of due process of law: (1) Admission in evidence at his trial of allegedly incriminating statements made by him which are within the exclusionary rule adopted by the State Supreme Court on Jan. 29, 1965 in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; (2) failure to try him separately as allegedly required by the rule adopted by the State Supreme Court on Nov. 12, 1965 in People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265; (3) the jury was permitted to find him guilty of an offense not charged in the indictment nor necessarily included within that offense; and (4) a total lack of evidence of his guily together with other errors committed at the trial.

The foregoing grounds could have been asserted on his appeal. For this reason the instant petition comes within the rule stated in In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513, 514, where the court said:

'The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.' (In accord: In re Shipp, 62 Cal.2d 547, 551, 43 Cal.Rptr. 3, 399 P.2d 571.)

In certain aspects the petition also comes within the rule foreclosing the use of habeas corpus as a second appeal. (In re Lessard, 62 Cal.2d 497, 505, 42 Cal.Rptr. 583, 399 P.2d 39; In re Waltreus, 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001.)

The alleged Dorado error (see People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361), is premised upon the admission in evidence, over defendant's objection, of allegedly incriminating statements made by Domingo after his arrest without first advising him of his right to remain silent. The trial took place following the initial decision in People v. Dorado, which was set aside upon order granting a rehearing, and prior to the adoption of the rule on January 29, 1965. Nevertheless, counsel for Domingo, having knowledge of the original Dorado decision urged the grounds therein stated as a basis for objection to admission of the allegedly incriminating statements.

Each of the sales took place when Daniels was taken to Domingo's residence in an automobile driven by an undercover agent; went into the house while the agent remained in the automobile; returned to the automobile and received money from the agent to make the purchase; went back to the house; was seen by the agent talking with Domingo; again returned to the automobile; and then gave the agent the amount of marijuana the latter agreed to purchase. On both occasions after Daniels first went into the house Domingo came out; went into the garage; and then returned to the house. On the first occasion the agent saw Domingo and Daniels exchange 'items'; Daniels held the item received by him in his hand until delivering it to the agent; and it was a package of marijuana. ¹ After Domingo's arrest he was interrogated by an officer who summarized the circumstances related in the foregoing testimony of the agent and asked him if he had 'any logical explanation for this or this series of happenings.' In reply Domingo said 'nothing like that had ever happened.' His answer was received in evidence over objection there was no foundation 'under the basis of People v. Dorado case.' Domingo contends his answer, although exculpatory, was incriminating in that it might be construed as inconsistent with his testimony, in which he admitted Daniels was at his house on the two occasions in question.

Daniels testified he sold the marijuana to the agent; asserted the defense of entrapment; admitted he told the agent Domingo was his 'connection' and that he obtained the marijuana from him; and further testified he did not obtain any marijuana from Domingo, the latter had no knowledge of the sale, he had made the statements about Domingo's participation to put him on the spot because of a personal matter involving a girl friend, and on the dates in question the purpose of his visits was to botain some tubes of paint which Domingo gave him.

Domingo testified he did not give Daniels any marijuana; admitted the latter came to his house on the two occasions; but stated the reason for those visits was to obtain some paints which were given to him.

In justification for failing to raise the Dorado issue on appeal, Domingo asserts the objection was not then available because it had not been determined definitely whether the Dorado rule applied to exculpatory statements. The opinion in People v. Williams, 63 Cal.2d 452, 460, fn. 8, 47 Cal.Rptr. 7, 406 P.2d 647, set at rest any contention the rule did not apply to such statements. The opinion in Williams was filed October 22, 1965. Oral arguments on the appeal to this court from Domingo's conviction were called for hearing on Nov. 9, 1965; the decision by this court was filed November 30, 1965; and Domingo's petition for hearing in the State Supreme Court was filed January 10, 1966. Even assuming Domingo's claimed justification has a basis in law, it has no basis in fact.

Furthermore, a Dorado error with its Escobedo counterpart (Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977) does not invalidate a judgment absent prejudice to the defendant. After a review of the entire record, including the evidence, we are convinced and expressly declare our belief admission of any statements by Domingo to the officer was harmless beyond a reasonable doubt and did not invalidate his conviction. (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

The alleged Aranda error (People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265), as a basis of the claimed invalidity of Domingo's conviction, is premised upon the admission in evidence of extrajudicial statements by Daniels to the undercover agent which were made at different times while they were negotiating a sale of marijuana, in which he said Domingo was his 'connection'; he would get the marijuana from Domingo; he was trying to contact Domingo and would continue to telephone him; Domingo was holding a small quantity of marijuana at that time and was expecting a shipment of more marijuana which the agent could buy later if he chose; Domingo, at another time, had five cans but had sold two of them earlier during the day and therefore the agent would be able to buy only three cans from him and Domingo; and, on the occasion of the second visit to Domingo's house, the latter had 1 1/2 cans available at that time for sale. The statements involving Domingo were part of the conversations between Daniels and the agent occurring during the time negotiations for the sale were in progress. The agent testified to these conversations. Domingo objected to those parts thereof involving him. His objection was sustained, but the statements were admitted as a part of the case against Daniels. The jury was instructed accordingly.

The opinion in People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, was filed November 12, 1965, eighteen days before affirmance of Domingo's conviction; held the admission of evidence, in a joint trial, of testimony relating the confession of one co-defendant implicating another co-defendant, although admitted only in the case against the declarant, required a reversal of the conviction of the non-declarant defendant; prescribed rules governing the trial of jointly charged defendants where the People's case involves the introduction of extrajudicial statements of one co-defendant which inculpate another co-defendant; and declared, in such a situation, either separate trials should be granted or admission in evidence of such extrajudicial statements should be denied unless the parts thereof inculpating another co-defendant can be and are eliminated.

Although Domingo did not move for a separate trial nor urge the Aranda rule objection to the extrajudicial statements by Daniels in the trial court, error, if any, in admitting such for the reasons stated in Aranda, and alleged prejudice from their admission, could have been urged on appeal either before this court or the State Supreme Court. (People v. Charles, 66 Cal.2d 330, 334, 57 Cal.Rptr. 745, 425 P.2d 545.) Under these circumstances, except as...