People v. Arguello

• Decision Date: 22 August 1966
• Docket Number: Cr. 11151
• Citation: 53 Cal.Rptr. 245,244 Cal.App.2d 413
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff-Respondent, v. Manuel C. ARGUELLO, Defendant-Appellant.

Page 245

53 Cal.Rptr. 245

244 Cal.App.2d 413

The PEOPLE of the State of California, Plaintiff-Respondent, v. Manuel C. ARGUELLO, Defendant-Appellant.

Cr. 11151.

District Court of Appeal, Second District,

Division 3, California.

Aug. 22, 1966.

Hearing Denied Oct. 19, 1966.

Chandler & Duncan and Frank Duncan, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., John T. Murphy, James A. Aiello, Deputy Attys. Gen., for respondent.

KAUS, Justice.

A jury found defendant guilty on a count charging him with possession of heroin for sale. (Health & Saf.Code, § 11500.5.) Outside of the presence of the jury defendant had admitted a conviction of murder suffered in 1950. A motion for new trial was denied, but the court reduced the offense to simple possession of heroin. (Health & Saf.Code, § 11500.) Defendant appeals.

We take the statement of facts leading to defendant's arrest and the seizure of the heroin from his own brief: 'Various officers of the State Narcotic Agency and members of the Los Angeles Police Department, accompanied by defendant's parole officer, Lloyd Starkweather, went during the night time to the 100 block of South Hill Street and at that time saw the defendant approaching the area where they were standing. The defendant, when about 100 feet away from the officers, stopped and turned away and started walking in the opposite direction; at this time Mr. Starkweather called defendant's name and defendant stopped, turned around and waited. Upon approaching the defendant, the defendant was ordered to accompany the officers to the State Building. While accompanying the officers, defendant pulled a brown paper bag from his hip pocket and threw it into some bushes; at this time there was a short struggle, after which the officers recovered the bag and therein found the bag to contain 4 condoms filled with a white powdery substance which was identified as being heroin. At the time the defendant was questioned relative to the throwing of the bag he told the officers he had just found the bag in the parking lot and 'thought it was pills.'

Officer Cota, one of the officers involved, who testified to an extensive background in narcotics investigation also testified as an expert that in his opinion the purpose for which the defendant possessed the heroin was 'for sale.' Before he came to that conclusion he had personally examined defendant and determined that he was not a user of narcotics. The amount of narcotics found was sufficient to produce five-hundred $5 capsules. A $5 capsule is the size of capsule which a user administers to himself; depending on his tolerance he uses anywhere from one to five capsules per injection.

When asked what factors led the officer to his opinion he said, among other things: 'The manner in which it was packaged. One condom was doubled and you had two other condoms that were one package in itself. Each are significant of a quarter ounce of heroin which is generally the amount that a major narcotic peddler would sell, either quarter ounces, half ounces or ounces of heroin.' Pressed for more reasons he gave the following answer: 'If the individual is not an addict, by reason of an examination it doesn't show he was an addict and he was in possession of that amount of heroin I would form the opinion That he is a major violator and is in possession of this amount of narcotics for sale.' At that point counsel for defendant moved for a mistrial. The motion was denied after lengthy argument, but the court admonished the jury to disregard 'in its entirety the last question of the People * * * and the answer given by the witness * * * both the question and the answer * * *. It is not an issue to be determined under the Information in this case.'

On appeal defendant maintains, as he did below, that the seizure of the heroin was the fruit of an illegal arrest. Actually there was no formal arrest before defendant threw the paper bag into the bushes. To be sure the officers ordered him about and there is no question that had he tried to get away, force would have been used. (cf. People v. Furnish, 63 Cal.2d 511, 515--517, 47 Cal.Rptr. 387, 407 P.2d 299.) It would therefore be more accurate if defendant claimed that the heroin was obtained as the result of an illegal assertion of authority. (Badillo v. Superior Court, 46 Cal.2d 269, 273, 294 P.2d 23.) The contention, however, cannot stand in the light of People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100, holding that the 'requirement of reasonable or probable cause does not apply to search of a paroled prisoner when conducted by his parole supervisors.' It is clear that defendant disposed of the package in fear of such a legal search.

Defendant argues that in view of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, Hernandez is no longer good law. He points to the fact that at the time Dorado was questioned he was an inmate of San Quentin Prison, but that his constitutional right not to be questioned without the proper warnings was nevertheless recognized. The court in Hernandez was extremely careful not to say that a parolee has no constitutional rights. The true question is whether the search of a parolee without probable cause is 'unreasonable' within the meaning of the Fourth Amendment. Hernandez holds that it is not. We see nothing in Dorado which would in any way affect Hernandez.

Officer Cota's expert testimony to the effect that the heroin was possessed 'for sale' was attacked as 'invading the province of the jury, going to the precise (ultimate) issue of the case and as not being a proper subject matter of expert testimony.' These are also the contentions on appeal.

The problem of the proper scope of expert testimony in cases involving possession 'for sale' cannot be disposed of by reference to the fact that on motion for new trial the court modified the verdict to one of simple possession. From the expert testimony the jury learned that the heroin supposedly found by defendant in a parking lot was worth between $1,000.00 and $25,000.00 at retail. Although the inference that heroin worth a lot of money is less likely to be found lying around in parking lots ¹ than small quantities is not the only rational one, certainly the jury was entitled to infer that the high value of the narcotics made defendant's explanation that much more unlikely. ²

The objection that a question calls for an answer which 'usurps the function of the jury' has been called 'a mere bit of empty rhetoric.' (7 Wigmore, Evidence (1940) § 1920.) We agree. (See also McCormick on Evidence, § 12.) The jury is not bound to follow the experts opinion and was presumably so advised. (Pen.Code, § 1127b.)

The objection that the opinion of an expert coincides with the 'ultimate issue' in the case is equally untenable as such. (7 Wigmore, Evidence (1940) § 1921; McCormick on Evidence, § 12.)

In People v. Wilson, 25 Cal.2d 341, 349, 153 P.2d 720, 725 the Supreme Court said: 'There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. 'We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. * * * Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.' Hamilton v. United States, 5 Cir., 73 F.2d 357, 358, 359; Rackoff v. United States, 2 Cir., 78 F.2d 671, 673; see, also, Nolan v. Nolan, 155 Cal. 476, 480, 101 P. 520, 132 Am.St.Rep. 99, 17 Ann.Cas. 1056; Giraudi v. Electric Imp. Co., 107 Cal. 120, 127, 40 P. 108, 28 L.R.A. 596, 48 Am.St.Rep. 114; Sim v. Weeks, 7 Cal.App.2d 28, 39, 45 P.2d 350; Hurwit v. Prudential Ins. Co., 45 Cal.App.2d 74, 82, 113 P.2d 691, 78 A.L.R. 755; 4 Wigmore Evidence (3d ed.) § 1921; 7 N.C.L.Rev. 320. In the present case there was no other practicable way of framing the questions if they were to serve the purpose of obtaining the benefit of the witness's expert knowledge as to matters on which enlightenment of the jury by the expert was proper. Code Civ. Proc. § 1870(9); Moore v. Norwood, 41 Cal.App.2d 359, 366, 106 P.2d 939; Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695; Patterson v. Marcus, 203 Cal. 550, 553, 265 P. 222; Perkins v. Trueblood, 180 Cal. 437, 443, 181 P. 642.' (Ibid., pp. 349--350, 153 P.2d p. 725.) ³

Whether or not an opinion coincides with an ultimate issue is a neutral factor as far as its admissibility is concerned. If the question cannot be further simplified, the opinion is admissible in spite of the fact that it 'calls for the ultimate issue.' Opinions as to value in eminent domain cases are a good example. If the question can be simplified, it should be. Thus the rule that an expert can testify whether a structure is built in accordance with standard and accepted construction methods and architectural practice, but not whether it is safe (Blinkinsop v. Weber, 85 Cal.App.2d 276, 283, 193 P.2d 96) exemplifies the many situations where opinion evidence is inadmissible, not because it goes to the ultimate issue, but because it goes beyond the point where the expert can assist the court as an expert. When he testifies to conclusions which even a lay jury can draw, the expert is no longer testifying 'on a question of science, art, or trade' in which he is more skilled than the jury. ⁴ (Code Civ. Proc., § 1870, subd. 9.) As Professor McCormick says: 'There is no necessity for such evidence, and to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses.' (op. cit. p. 25.) ⁵

The third ground of objection made below was that Officer Cota's testimony was...