People v. Baker

• Decision Date: 05 February 1974
• Docket Number: Cr. 23258
• Citation: 37 Cal.App.3d 117,112 Cal.Rptr. 137
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles E. BAKER, Defendant and Appellant.

Page 137

112 Cal.Rptr. 137

37 Cal.App.3d 117

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles E. BAKER, Defendant and Appellant.

Cr. 23258.

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

Feb. 5, 1974.

Rehearing Denied March 1, 1974.

Hearing Granted and Retransferred to Court of Appeal May 1, 1974.

For Opinion on Hearing, see 113 Cal.Rptr. 248.

Albert C. S. Ramsey and Edward P. George, Jr., Long Beach, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, James H. Kline and Donald F. Roeschke, Deputy Attys. Gen., for plaintiff and respondent.

FLEMING, Associate Justice.

Charles E. Baker, a licensed medical doctor, appeals the judgment of conviction for prescribing narcotics to persons not under his treatment for a pathology. (Former Health & Saf.Code, § 11163, ¹ two counts.)

On 3 August 1971 undercover agents Charles Stowell and Sandra Davis visited Dr. Baker's office in Long Beach. Stowell told Dr. Baker he had 'gotten loaded on codeine' and enjoyed it, and he asked for prescriptions for codeine for himself and Davis. Without making a medical examination, Dr. Baker prescribed empirin with codeine (a narcotic) for both Stowell and Davis.

On 7 September 1971 Stowell returned to Baker's office with undercover agent Sharyn Dalton. Earlier that day Dalton had been medically examined and found in good health. Stowell told Dr. Baker he needed more empirin with codeine, and the latter wrote him another prescription. Baker then asked Dalton what she wanted, and she also asked for empirin with codeine. Baker prepared a file for Dalton and without questioning or examining her physical condition he then wrote the prescription she had requested. Stowell paid Baker $20 for the prescriptions.

During a recess at Baker's preliminary hearing he asked to examine some of the exhibits. The court clerk later discovered that the exhibits which comprised the original prescriptions were missing. Pieces of the prescriptions were subsequently found floating in a toilet bowl in a men's room in the courthouse.

The jury found Baker guilty on charges relating to the September 7 transaction but was unable to reach a verdict on charges relating to the August 3 transaction.

Baker contends his cause was prejudiced by (1) prosecutorial misconduct, (2) admission of improper evidence, and (3) inadequate instructions; he also challenges (4) the conditions of probation.

1. Prosecutorial Misconduct. Baker cites three portions of the record as instances of prosecutorial misconduct:

During opening argument the prosecutor stated, 'Also, the defendant had previously been under scrutiny by the Department of Consumer Affairs, a man by the name of Roth, who had previously conducted an investigation of the defendant's activities. They had discussed the State Narcotic Laws----' Baker objected and moved for a mistrial on the ground that the statement implied Baker was guilty of other uncharged misconduct. The court denied the motion for mistrial, and the prosecutor continued, 'Ladies and gentlemen, in use of terms, I should more accurately ascribe a function of Mr. Roth as a discussion. He was an investigator about to be leaving his appointment with the Department of Consumer Affairs. But, he had a discussion with the defendant regarding what the state law was with respect to prescribing narcotics.' Then the court added, 'Right. And any statement that [the prosecutor] made earlier about the defendant having been previously under investigation is to be disregarded by you.'

During direct examination the prosecutor asked agent Stowell if he understood Baker to be licensed to practice in California at that time and in 1971. Stowell responded, 'I was operating under that assumption. But, I also had a parallel investigation regarding his license.' Baker objected and moved for a mistrial. After the court denied the motion for mistrial the prosecutor elicited testimony that Stowell had no information and had not attempted to suggest that Baker had ever practiced medicine without a license.

Finally, Baker cites a colloquy during closing argument. '[Prosecutor]: . . . That man, the defendant in this case, despite his age, and despite how he was described, a kindly old man--the kindly killer, potential killer--[Defense Counsel]: If the Court please, your Honor, I'm going to object and ask counsel be admonished on that. THE COURT: Overruled. [Defense Counsel]: Thank you, your Honor. [Prosecutor]: To qualify that, your Honor, addiction destroys the individual, does it not? And can lead to over-dosage. So, he's a potential killer if the facts as related, on the evidence as portrayed to you by the People, if that is a fact. So that a 'kindly old man' doesn't mean a thing.'

We find no prejudicial error in these three portions of the record. (People v. Hamilton, 60 Cal.2d 105, 120-121, 32 Cal.Rptr. 4, 383 P.2d 412.) The prosecution was required to prove Baker was a licensed physician and was entitled to prove he had knowledge of the narcotic laws. If proof of these facts implied other misconduct by Baker, the implication was sufficiently dispelled by the admonition given to the jury by the court and by explanatory statements and questions of the prosecutor. (People v. Hernandez, 11 Cal.App.3d 481, 491, 89 Cal.Rptr. 766.) No evidence suggests the prosecutor acted in bad faith. (People v. Hayes, 19 Cal.App.3d 459, 470, 96 Cal.Rptr. 879.) The prosecutor's 'kindly killer' remark, though overstated, in substance amounted to a comment on the evidence--which showed that Baker prescribed potentially-deadly narcotics to patients without conducting a medical examination to substantiate need or uncover potential risks to the particular patient in the use of the drug. (See People v. Weiss, 50 Cal.2d 535, 555-556, 327 P.2d 527.)

2. Admission of Evidence. Baker contends the court erred in admitting evidence of the entire September 7 transaction and admitting evidence that suggested he destroyed exhibits.

In the September 7 transaction Stowell, in addition to prescriptions for empirin with codeine asked for and obtained prescriptions, for barbiturates and amphetamines. Although prescription of these drugs may have been unethical, it did not amount to a criminal violation of former Health and Safety Code section 11912, and this court so ruled in advance of trial. (People v. Baker, 24 Cal.App.3d 124, 100 Cal.Rptr. 771.) Subsequent to this ruling, the trial court in the exercise of its discretion under Evidence Code section 352 prohibited reference to these additional prescriptions in the prosecution's case-in-chief. At the trial, however, Baker testified that in prescribing narcotics he acted in good faith, that from the manner in which the undercover agents acted he believed they were in pain. Baker's testimony concealed the fact that he prescribed other drugs to the agents on September 7. On the subsequent cross-examination of Baker, the court allowed the prosecution to bring out the entire transaction, including the prescription of barbiturates and amphetamines, to establish that Baker had not been acting in good faith in treating a particular medical condition, but rather had been prescribing all kinds of drugs on demand.

Baker argues the court erred in admitting evidence of the entire transaction on cross-examination without first permitting him to reopen his direct defense in order to explain his conduct. Baker asserts that by springing this evidence on cross-examination, the prosecution unfairly made him look as though he were trying to hide the complete truth about the transaction.

We find no merit in this argument. Baker brought upon himself whatever consequences flowed from the delayed admission of the additional evidence. Evidence of the entire transaction was admissible to show the circumstances of the crime; such evidence did not become inadmissible merely because it may have established other misconduct. (People v. Enos, 34 Cal.App.3d 25, 34, 109 Cal.Rptr. 876.) In excluding the evidence from the prosecution's case-in-chief, the court explicitly left open the possibility of its subsequent admission, a possibility dependent on the defense presented by Baker. When Baker set forth his defense of good faith, the court properly permitted the prosecution to refute that defense by producing evidence of the entire transaction, evidence which, although showing other misconduct, also tended to show Baker's lack of good faith in prescribing multiple dangerous drugs and narcotics to the undercover agents. Baker could not validly claim he had been surprised or tricked by the court's admission of the evidence, for he himself had had the initial opportunity to explain his entire conduct.

Baker also contends the court erred in admitting proof of the destruction of exhibits during the course of the preliminary hearing. He argues that no substantial evidence supports the conclusion that he took the exhibits, that therefore the evidence did not tend to show consciousness of guilt, that consequently the evidence of destruction was irrelevant and should have been excluded. This contention lacks merit. The prosecution is not restricted to eyewitness testimony that Baker destroyed exhibits (People v. Lumar, 267 Cal.App.2d 900, 905, 73 Cal.Rptr. 682), and it may prove such a fact by circumstantial evidence (People v. Martin, 16 Cal.App.2d 515, 518, 60 P.2d 1014). Baker was the last person seen with the exhibits, he had both motive and opportunity to destroy them, and it is rationally inferable the he purloined the exhibits and arranged for their destruction.

3. Instructions. Baker contends the court erred in failing to instruct the jury on the defense of entrapment and failing to give on its own motion a cautionary instruction on the limited use of evidence of other misconduct.

We discern no inadequacy in the...