People v. Agajanian

• Citation: 97 Cal.App.2d 399,218 P.2d 114
• Decision Date: 08 May 1950
• Docket Number: Cr. 4417
• Court: California Court of Appeals
• Parties: PEOPLE v. AGAJANIAN.

Page 114

218 P.2d 114

97 Cal.App.2d 399

PEOPLE v. AGAJANIAN.

Cr. 4417.

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

May 8, 1950.

Leland E. Zeman, Los Angeles, for appellant.

Fred N. Howser, Attorney General, William E. James, Deputy Attorney General, for respondent.

WILSON, Justice.

Defendant and one Garcia were charged by information, in two counts, with the violation of SECTION 11500 OF THE HEALTH AND SAFETY CODE¹. Both defendants entered pleas of not guilty, Garcia later withdrawing his plea and entering a plea of guilty as to count 1. Count 2 was dismissed as to defendant Agajanian and after a trial by jury he was found guilty as charged in count 1, possession of the flowering tops and leaves of Indian hemp (cannabis sativa), commonly referred to as marijuana. His motion for new trial and his application for probation having been denied, defendant appeals from the judgment and from the order denying his motion for a new trial.

As grounds for reversal defendant contends: (1) the jury was improperly instructed; (2) the court erred in admitting certain testimony over his objections; (3) the district attorney was guilty of prejudicial misconduct; (4) the verdict is contrary to the law and the evidence.

Tracy A. Bjorklund, deputy sheriff, testified that he saw defendant and Garcia get out of a rubbish truck and go into the rear of a one story residence; he and three other officers followed them, pushed the door open and walked in; defendant and Garcia were in the room they entered, a bedroom underneath the house which was built on a sloping hill; Garcia was in the middle of the room and defendant was in the far corner to the left; he saw defendant making a motion, apparently picking up something from the bed; as defendant raised his hand he had in it what appeared to be a marijuana cigarette, the end being folded in a manner characteristic of such cigarettes; he saw defendant reach up over a curtain, put his hand in back of it and remove his hand; there was nothing in his hand when he removed it; the curtain covered an opening about four feet wide and six and a half feet high; a person could pull the curtain back and go underneath the house in back of the room; he asked defendant what he had thrown behind the curtain; defendant did not answer; he went behind the curtain and found 28 cigarettes scattered on the ground; other objects were on the ground but they were five or six feet away; thereafter he, together with the other officers, searched both rooms in the presence of defendant and Garcia; among other things they found cigarettes in the pocket of some trousers hanging in the closet, a hypodermic needle, a spoon and an eyedropper, a bundle of cellophane, nine cigarettes wrapped in newspaper and a Prince Albert tobacco can in the pocket of a corduroy coat hanging in the closet, a small manila envelope containing white powder, a small bindle in the pocket of a leather jacket hanging in the closet, a box containing a leafy, alfalfa looking substance, and a pipe; he again asked defendant what he had thrown behind the curtain, whether he had thrown anything there, and defendant said 'no'; he asked Garcia whether all the clothing in the closet was his and he said 'yes'; Garcia said 'the narcotics are mine' and said he lived in the house and all the clothes and everything in the house were his.

A chemist testified that he made a microscopic examination of the 28 cigarettes and determined that they contained marijuana.

Jury Instructions. Defendant contends that the failure of the trial court to instruct the jury on the matter of expert testimony pursuant to section 1127b of the Penal Code constitutes reversible error. The jury was instructed that they were the sole and exclusive judges of the effect and value of evidence and of the credibility of the witnesses. Defendant stipulated as to the qualifications of the chemist to give an expert opinion. Moreover, it does not appear that there was any dispute as to the narcotic content of the cigarettes. Garcia, who testified on behalf of defendant, was asked whether he remembered the officer picking up the bundle of marijuana cigarettes and replied that he did and that they were his; upon being asked whether he had had any other marijuana cigarettes in the room he testified that he had some in his pants pockets. Although the failure to give the statutory instruction was error, upon reviewing the entire cause, including the evidence, it would be unreasonable to believe a different verdict would have been rendered had the omitted instruction been given. Since the error did not result in a miscarrige of justice it does not constitute reversible error. Sec. 4 1/2, Art. VI, Cal.Const.; People v. Williamson, 134 Cal.App. 775, 781, 26 P.2d 681; People v. Brac, 73 Cal.App.2d 629, 639, 167 P.2d 535.

Defendant asserts that the court erred in failing to instruct the jury (1) on the matter of circumstantial evidence; (2) that where evidence is susceptible of two reasonable constructions it is the duty of the jury to adopt that pointing to innocence and acquit the defendant; (3) that all instructions are to be considered as a whole; (4) in regard to rulings on objections to evidence; (5) on the matter of inferences and presumptions; (6) that defendant is a competent witness in his own behalf and (7) that the exhibits marked for identification but not received in evidence were not to be considered by the jury.

The evidence was not circumstantial, as contended by defendant, but was direct evidence. Officer Bjorklund's testimony concerning defendant's motion, apparently picking up something, raising his hand, having in it what appeared from the manner in which it was folded to be a marijuana cigarette, his reaching over a curtain, his empty hand when removed, the officer's finding 28 marijuana cigarettes on the ground and no other loose objects nearby, was direct evidence of defendant's possession of the forbidden article. Defendant relies on People v. Bender, 27 Cal.2d 164, 163 P.2d 8. In that case the evidence was entirely circumstantial. In the instant case it was not necessary for the jury to draw inferences when they had the direct evidence of officer Bjorklund. The court is not required to instruct upon the rules of law applicable to circumstantial evidence when it is incidental to and corroborative of direct evidence. People v. Jerman, 29 Cal.2d 189, 197, 173 P.2d 805; People v. Lapara, 181 Cal. 66, 70, 183 P 545; People v. Nunn, 65 Cal.App.2d 188, 194, 150 P.2d 476. The rule stated in the cases cited by defendant is applicable only where the evidence is entirely or largely circumstantial and is not pertinent in the instant case.

Although defendant contends the court erred in failing to instruct the jury that all instructions are to be considered as a whole and in failing to instruct regarding rulings on objections to evidence, it does not appear from the record that defendant requested such instructions nor does he give any reason for the necessity thereof or show wherein he was prejudiced.

Defendant asserts the court erred in failing to instruct the jury on the matter of inferences and presumptions; that the evidence rests largely on what inferences the jury might draw from defendant's presence in the room and that the jury must have drawn therefrom an inference of ownership or...