People v. Lo Cicero

• Decision Date: 03 October 1969
• Docket Number: Cr. 13343
• Citation: 80 Cal.Rptr. 913,71 Cal.2d 1186,459 P.2d 241
• Court: California Supreme Court
• Parties: , 459 P.2d 241 The PEOPLE, Plaintiff and Respondent, v. Louis LO CICERO, Defendant and Appellant.

Page 913

80 Cal.Rptr. 913

71 Cal.2d 1186, 459 P.2d 241

The PEOPLE, Plaintiff and Respondent, v. Louis LO CICERO, Defendant and Appellant.

Cr. 13343.

Supreme Court of California,

In Bank.

Oct. 3, 1969.

T. T. Crittenden, Langford, Langford & Lane, and J. Perry Langford, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller, and Lawrence K. Keethe, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Defendant appeals from a conviction of furnishing marijuana on November 14, 1967, and of selling marijuana on November 29, 1967, both violations of Health and Safety Code, section 11531. We find that no prejudicial error occurred at trial and uphold the convictions. We hold that the trial court erred in ruling defendant ineligible for probation under Health and Safety Code, section 11715.6 because of a prior conviction of a narcotics felony not charged in the indictment. In order to bar a defendant from probation under that section, the prior conviction must be charged and determined according to the procedures laid down in the Penal Code, which provide for pleading of the prior conviction, trial of the issue, and a special verdict. Prior convictions coming to the court's attention in some other fashion, as in this case, may be considered by the court in deciding whether to grant probation, but do not render the defendant ineligible for probation. ¹

1. Defendant's convictions of furnishing and selling marijuana

At the trial of the instant case David Fuentes, an undercover agent, testified that on November 14, 1967, defendant gave him a marijuana cigarette. Although defendant admitted that he was rding in an automobile with Frentes on that day, he denied giving Fuentes anything. The verdict of the jury as to the matter of credibility of the witnesses (see Evid.Code, § 312) is, of course, decisive; defendant presents no arguments to challenge his conviction for the November 14 transaction.

Fuentes further testified that on November 29 he met defendant at a pool hall and defendant agreed to sell him a kilo of marijuana for $80. Defendant told Fuentes to meet him near the Mi Ranchito Restaurant; when Fuentes arrived, defendant showed him a marijuana brick hidden in the grass. Fuentes picked it up and gave defendant the $80.

Defendant admits the November 29 transaction. He asserts two defenses: (1) immunity from prosecution under Health and Safety Code, section 11710 as a person working under the direction of a police officer, and (2) duress. Defendant testified that he was serving as a police informer, working with Agent Ruben Landa. Landa had requested information as to someone named 'Copeland.' Although defendant stated that on November 29 he visited the pool hall, a place where he might acquire information, he did not testify explicitly whether he went there to get information for Landa. When Fuentes sought to buy marijuana, defendant refused, but 'Junior,' a 'lieutenant' for a syndicate operating in the area, ordered defendant to deal. Fearing that defiance of Junior's order would lead to defendant's murder by the syndicate, defendant agreed to the transaction. He expected Fuentes to pay Junior directly, but instead Fuentes thrust the money on defendant.

Defendant claims the court erred in failing to instruct, on its own motion, as to Health and Safety Code, section 11710, which provides: 'All duly authorized peace officers, while investigating violations of this division in performance of their official duties, and any person working under their immediate direction, supervision or instruction, are immune from prosecution under this division.' Defendant also objects to various evidentiary rulings which restricted inquiry into defendant's relationship with Agent Landa to events occurring in the few months preceding November 1967. ² The problem with defendant's argument is that he has neither presented nor offered to present evidence that defendant, when engaging in the transactions of November 14 or 29, was acting under the 'immediate direction, supervision, or instruction' of Landa. (Cf. People v. Benford (1959) 53 Cal.2d 1, 14, 345 P.2d 928.) Nor did defendant present or offer any evidence that he was ever requested to engage in narcotics transactions to gain information for Landa. ³

In support of his claim of duress, defendant testified that on November 29, when he refused to sell to Fuentes, Junior approached him and said, 'Why don't you sell to that cat, man, he wants a brick, two bricks or three.' Defendant replied, 'Man, I don't deal.' Junior said, 'You're going to this time, I got 'em.' On motion of the assistant district attorney, the court struck this testimony as hearsay. Subsequently, defendant testified that he had been 'taken out for a ride' and 'didn't expect to get back,' and that he had been threatened. The court also struck this testimony, ruling that it was immaterial.

The court erroneously ruled that the hearsay rule applied. Evidence Code, section 1200, subdivision (a), states that "Hearsay' evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' Junior's statements did not constitute hearsay since they obviously were not offered 'to prove the truth of the matter stated'--that Fuentes wanted bricks and Junior had them--but instead to prove the words spoken by Junior to defendant.

The error, however, caused no prejudice to defendant. Defendant did not claim duress as a defense to the November 14 charge; hence the verdict must reflect the jury's decision to believe Fuentes and disbelieve defendant as to that matter. As to the November 29 sale, a sizable portion of defendant's testimony respecting duress came in without objection; ⁴ we doubt that the excluded portion would have affected the jury's resolution of this issue.

In addition, neither the evidence admitted nor that excluded tended to establish a threat of imminent violence; yet such a showing is essential to a defense of duress. At the time of the sale near the Mi Ranchito Restaurant, as distinguished from the discussion earlier in the pool hall, no member of the syndicate was present. Other than defendant, Fuentes was the only person present, and defendant was 'positive' that Fuentes was a police officer. Defendant, however, did not attempt to avoid the transaction or to seek police protection; he sought, rather, to limit his participation by not touching the brick and by having Fuentes pay Junior directly.

As to duress, the court pointed out in People v. Otis (1959) 174 Cal.App.2d 119, 344 P.2d 342, 'the common characteristic of all the decisions upholding the excuse lies in the immediacy and imminency of the threatened action: each represents the situation of a present and active aggressor threatening immediate danger; none depict a phantasmagoria of future harm.' (P. 125, 344 P.2d p. 345.) People v. Sanders (1927) 82 Cal.App. 778, 256 P. 251, upheld an instruction that 'the danger must not be one of future violence, but of present and immediate violence at the time of the commission of the forbidden act.' Subsequent cases have reaffirmed this instruction. (People v. Otis, supra, 174 Cal.App.2d 119, 344 P.2d 342; People v. Simpson (1944) 66 Cal.App.2d 319, 327--328, 152 P.2d 339; People v. Sing Chan (1944) 64 Cal.App.2d 167, 171, 148 P.2d 81; People v. Villegas (1938) 29 Cal.App.2d 658, 661, 85 P.2d 480.) ⁵ 2. Defendant's eligibility for probation

Penal Code, section 1203 requires in all felony cases in which the defendant is eligible for probation that 'the court must hear and determine such application.' Health and Safety Code, section 11715.6 states that: 'In no case shall any person convicted of violating Sections 11500, 11500.5, 11501, 11502, 11503, 11530, 11530.5, 11531, 11532, 11540, 11557, or 11715, or of committing any offense referred to in those sections, be granted probation by the trial court, * * *, if such person has been previously convicted of any felony offense described in this division, * * *.'

In the instant action defendant suffered conviction on two counts of violation of section 11531; he had previously been convicted of an infringement of section 11530 (possession of marijuana). The People did not charge the previous conviction in the indictment, although Penal Code, section 969 requires that 'all known previous convictions, whether in this State or elsewhere, where, must be charged.' During cross-examination, however, defendant admitted the violations; the probation report subsequently mentioned them. Defendant contends that section 11715.6 refers only to prior convictions charged in the pleadings; the Attorney General maintains that a prior conviction will bar probation no matter by what means it comes to the attention of the court.

The California Penal Code establishes a detailed procedure for the charging, trying, and finding of previous felony convictions. (See Pen.Code, §§ 969, 969a, 969b, 969 1/2, 1025, 1093, 1158.) This procedure affords an accused advance notice that his prior conviction is in issue (§§ 969, 969a) and gives him an opportunity to contest the fact and validity of the prior conviction to a jury (§ 1025) which will be instructed that the prosecution must prove the former conviction beyond a reasonable doubt. (2 Witkin, Cal.Crimes (1963) § 1020; see People v. Morton (1953) 41 Cal.2d 536, 539, 261 P.2d 523; In re Tartar (1959) 52 Cal.2d 250, 257, 339 P.2d 553.) The jury must return a special verdict on the issue. (§ 1158.)

The statutes provide to the accused a safeguard of value, especially in the light of recent decisions opening opportunities for an accused to attack the validity of prior convictions. ⁶ In People v. Ford (1964) 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892, we held that 'Before a defendant can properly be sentenced to suffer the increased penalties flowing from * * * (a) finding *...