People v. Backus, Cr. 20132

• Decision Date: 21 February 1979
• Docket Number: Cr. 20132
• Citation: 23 Cal.3d 360,590 P.2d 837,152 Cal.Rptr. 710
• Court: California Supreme Court
• Parties: , 590 P.2d 837 The PEOPLE, Plaintiff and Appellant, v. James BACKUS et al., Defendants and Respondents.

Page 710

152 Cal.Rptr. 710

23 Cal.3d 360, 590 P.2d 837

The PEOPLE, Plaintiff and Appellant, v. James BACKUS et al., Defendants and Respondents.

Cr. 20132.

Supreme Court of California, In Bank.

Feb. 21, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and Sanford Svetcov, Deputy Attys. Gen., for plaintiff and appellant.

Cominos, Shostak & Epstein, Eugene Epstein, Lawrence Shostak, Salinas, Joseph F. Landreth, Seaside, and James A. Michael, Salinas, for defendants and respondents.

MANUEL, Justice.

The People appeal from an order setting aside a three-count indictment charging defendants Backus, Joseph, and Ward in count I with conspiracy to pervert and obstruct justice and the due administration of the laws (Pen. Code, § 182, subd. 5), ¹ defendants Joseph and Ward in count II, and all three defendants in count III, with conspiracy to furnish heroin (Pen. Code, § 182; Health & Saf. Code, § 11352). ² The order appealed from was made at the close of a hearing on a demurrer to the indictment by defendants Joseph and Ward and a motion made pursuant to Penal Code section 995 ³ by all three defendants.

The superior court overruled the demurrers, ⁴ but granted the motions to dismiss the indictment on grounds that the immunity provisions of Health and Safety Code section 11367 ⁵ applied to preclude prosecution of defendants for some, but not all, ⁶ of the overt acts and conduct on which the conspiracy charges were based, and that as to the remaining charges the competent evidence before the grand jury was insufficient to sustain the charges. Additionally, the court ruled that the extent of inadmissible matter presented to the grand jury was such that defendants had been denied due process making it impossible to simply consider the admissible evidence in order to determine its sufficiency.

The People contend that defendants are not immune from prosecution for conduct such as that on which the indictment is predicated and that the evidence before the grand jury was sufficient to support count I. They do not address themselves to the court's due process ruling, ⁷ and concede that the evidence was insufficient to establish that the second overt act alleged in support of count II of the indictment was a conspiratorial act.

Before attempting to assess the People's contentions we shall summarize the overt acts alleged in support of each count of the indictment and, without regard to its admissibility, the testimonial evidence and other material presented to the grand jury.

Count I, charging the three defendants with a conspiracy to obstruct justice, alleged two overt acts willful failure on December 4, 1974, to execute a warrant for the arrest of Melinda Spears, and arranging to furnish heroin to Spears under illegal circumstances on the same date.

Count II, charging defendants Joseph and Ward with conspiracy to furnish heroin, alleged three overt acts furnishing heroin to Debbie Soria on six occasions between June 1975 and July 1975, ⁸ to Rosalie Squires on a single occasion in October 1974, and to William Martinez on five occasions between June 1973 and July 1973.

Count III, charging all three defendants with conspiracy to furnish heroin, alleged a single overt act by defendants Joseph and Ward and unindicted coconspirator Larry Oliver furnishing heroin to Melinda Spears on eight occasions in December 1974.

Twelve witnesses appeared before the grand jury. In addition, the testimony given by Melinda Spears at a prior preliminary hearing conducted on a felony complaint charging defendants Joseph and Ward with furnishing heroin to Spears, was read to the grand jury. Witnesses Oliver, Squires, Soria, Garcia, Spears (at the prior hearing), and Martinez testified under grants of immunity. Witness Garcia was not sworn. Among the exhibits presented to the grand jury were the entire transcript of the preliminary hearing referred to above, and the prosecutor's original memorandum of law that had been submitted to the magistrate at the preliminary hearing.

COUNTS I AND III: IRWIN

Larry Irwin testified that defendants Joseph and Ward had been partners, working as narcotics detectives of the Salinas Police Department from the time of their promotion to that rank in July 1973. Defendant Backus, a sergeant in the same department, had been their immediate supervisor throughout the period in which the offenses allegedly were committed.

On the evening of December 4, 1974, Irwin, a Salinas Police Department detective, and his partner, Detective Oliver, arrested Melinda Spears in her hotel room and seized approximately 30 balloons of heroin as well as a packet of uncut heroin. Spears, a companion who had also been arrested in the hotel room, and the contraband, were taken to the detective division office at the police station. The heroin was weighed and tested by a police detective who returned it to Irwin. Irwin placed it in a cellophane bag on his desk. Shortly thereafter Backus, Ward, and Joseph looked at it, after which Irwin placed it in his desk which he locked.

Irwin testified that on the morning after the arrest Backus told Irwin to give the narcotics to him to be put "downstairs" or in the evidence room. When Irwin checked the contents of the cellophane bag before giving it to Backus, several of the balloons were missing, as was the packet of uncut heroin.

On the evening of the arrest, defendants asked Irwin if Spears was willing to turn in her supplier. Irwin told them that he believed she would do anything as she did not want to go to jail. He also told them that Spears had stated that she was a heroin addict.

At the request of the four officers, Spears telephoned her supplier, "Minnesota," in Pinole, ordered two or three ounces of heroin "puppies," and was told by Minnesota to come up the following day when he would have some "puppies." Irwin could not go to Pinole. Oliver was to go. Backus told Joseph to go, but would not authorize Ward to accompany them. Ward planned to take time off to go along.

Irwin overheard Ward, Joseph, and Oliver discuss a plan to have Joseph take Spears to his home for the night. Backus was not a participant in this discussion.

OLIVER

Patrolman Oliver of the Salinas Police Department, who had been a detective and the partner of Irwin on December 4, 1974, testified that he had participated in the arrest of Spears. He knew her also as Sarah Taylor and Melinda Kincheloe (her maiden name), but the first name by which he had known her was Melinda Spears. His testimony regarding the arrest and seizure of the heroin paralleled that of Irwin.

Oliver also testified that on their arrival at the detective division with Spears, she had been turned over to Backus who interviewed her in the captain's office where she had "apparently" agreed to turn in her supplier. He could neither hear the conversation nor see what happened in the interview room. While the interview was in progress he ran a teletype warrant check on Spears and learned that she was wanted as a parole violator. He gave a copy of the teletype print-out with this information to Backus, pointing out to him that she was wanted. Backus either told Oliver to obtain the original print-out or said that he would get it himself. Originals were normally kept in a file basket. When asked if Backus had told him he wanted the original so that no one else would know Spears was wanted, Oliver replied: "Yeah, that was the reason for getting it."

Oliver testified that the contraband seized at the time of Spears' arrest was locked in his desk after being examined by Backus in the presence of Irwin, Oliver and possibly Spears. He did not think any of it was locked in Irwin's desk, but did not know. He thought the uncut heroin was among the items locked in his desk. Backus told him that evening that Spears was going to turn over her supplier.

Backus called Ward and Joseph into the case on the evening of the Spears arrest. With Oliver present, the four discussed the fact that Spears was addicted, a heavy user, and they would have to keep her in custody to be sure she would be available for the trip. Oliver did not know who indicated that it would not be advisable to put her in the jail (where her fingerprints would automatically be taken and sent to Washington, leading to others learning she was wanted). There was a collective decision that her wanted status should not be discovered. Backus talked about this the most and the others agreed.

The four also discussed placing Spears in the county hospital, but a 72-hour hold procedure for such commitments would make her unavailable for the meeting with her supplier. Placing her in a motel with a guard was ruled out because the City of Salinas would have to pay the cost of the motel room and the guard. It was decided that Joseph would keep Spears in custody in his own home.

Oliver did not recall a statement by any of the four regarding maintaining Spears on heroin, but testified that it was "understood by everybody without having to be actually said" that they would have to maintain her themselves with her own supply of heroin. The only statement in this regard that Oliver recalled was by Backus who said to Joseph, "you're not a rookie. Do what you have to do." Oliver saw Spears leave the police station with Joseph.

Oliver testified that he put the heroin in his desk drawer because he could not put it in the evidence room where it would be accounted for. Normally contraband was placed in the evidence room if an arrest related to its seizure had been made. Backus told Oliver that if Spears did not "perform satisfactorily" she would be arrested for possession of the contraband and it would then be put in the evidence room.

Before Oliver left the station on the night of the arrest, he took two of the balloons of heroin out of his desk and put them on a desk. No one asked him to do so. Spears was standing nearby....