People v. Cruz, Cr. 16491

• Decision Date: 07 April 1970
• Docket Number: Cr. 16491
• Citation: 6 Cal.App.3d 384,85 Cal.Rptr. 918
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Navarro CRUZ, Defendant and Appellant.

Page 918

85 Cal.Rptr. 918

6 Cal.App.3d 384

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Navarro CRUZ, Defendant and Appellant.

Cr. 16491.

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

April 7, 1970.

Hearing Denied June 5, 1970.

David C. Marcus, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Appellant was charged with possession of heroin for sale in violation of Health and Safety Code section 11500.5 and with prior convictions of narcotic possession in 1952 and 1954. A jury returned a verdict of guilty with findings that the priors were true. The appeal is from the judgment of conviction.

The unusually voluminous record presented to us includes more than 800 pages of reporter's transcript in three volumes. This record indicates a grossly over-extended trial that consumed more than nine days of court time. At the opening of the trial the judge asked defense counsel 'What is the estimate of time of trial, Mr. Marcus?' to which counsel responded, 'Two days, possibly three.' This time estimate should have proved quite accurate because the case is a relatively simple one and is typical of a myriad of very similar cases, the vast majority of which are competently and properly tried in less than three days. More than two trial days were consumed in the proof of the two California priors which, as the record shows, were demonstrably true. Undoubtedly the tactics of the defense served only to add unnecessary emphasis to the subject matter.

Assignments of Error

Appellant's repetitious and discursive brief of 146 pages presents and argues the following assignments of error: (1) that the district attorney was guilty of prejudicial misconduct; (2) that evidence of a telephone conversation between appellant and a third party monitored by a police officer was erroneously admitted; (3) that the officers lacked probable cause for the arrest of appellant; (4) that appellant's 'discarding of the contraband in question was the result of (appellant's) submission to the express or implied exercise of illegal authority by the officer;' (5) that the trial court erred in failing to give requested instructions relating to entrapment, setup or frameup; (6) that 'California recidivist procedure in permitting the charging of prior felony convictions in the same complaint as the formal charge and upon a denial of such convictions compelling (appellant) to stand trial in the same proceedings denies due process and equal protection under law.'

Our review of the record has led us to the conclusion that none of these assignments of error is valid. The evidence of appellant's guilt is overwhelming to the point of practical conclusiveness. Even if any of the several charges of misconduct made against the prosecutor were regarded as having validity and even if any assigned error or procedural irregularity in the course of the trial were regarded as having merit and significance worthy of mention, we would declare our conviction beyond a reasonable doubt that there was no miscarriage of justice and that a verdict of guilty would have been returned in this case even if the trial had been conducted by court and counsel in a manner approaching perfection.

Summary of the Evidence

On March 21, 1968, Sergeant Guenther of the Los Angeles Sheriff's Department had a discussion with one Tony Catalina, a drug addict who was in custody on charges of possession of heroin. Apparently in the hope of gaining favor, Catalina made statements to the officers to the effect that a person named Ernie Cruz was dealing in narcotics. Catalina indicated his willingness to engage Cruz in a telephone conversation and to allow an officer to monitor it. The telephone number was furnished by Catalina and was listed in the name of Caroline Amaya, a person identified by appellant at the trial as his girl friend.

When Sergeant Guenther dialed the indicated telephone number, a male voice answered, saying 'hello.' Tony Catalina said: 'Hello. Is this Ernie?' The voice said, 'Yeah, this is Ernie. Is this Tony?' Catalina said, 'Yes. * * * Can you do me any good? I need a couple of pieces.' The male voice said: 'Yeah, I can do you some good. Have you got the bread?' There was a discussion about price, and Catalina said he would have to owe for 'one piece.' The male voice said, 'All right. Can you meet me down here?' Catalina said, 'Where?' The male voice said: 'At the drug store at Mines and Rosemead where we have met before, or where we have done business before. I like to do business where it's light so I can see everything.' Catalina said, 'OK. What time?' The male voice said, '7 o'clock.' Catalina further cooperated by furnishing the police with a description of the personal appearance of the Ernie Cruz with whom he had talked in the monitored telephone conversation. He also gave the officers a description of the make, model and color of the automobile that Cruz was driving.

Thereafter, on the same day and shortly before the appointed time, Sergeant Guenther and three other officers drove to the corner of Mines Avenue and Rosemead Boulevard in Pico-Rivera using Catalina's car. About 30 minutes later appellant arrived and parked his car in a parking lot adjacent to a drug store. Appellant's car closely fitted the description given by Catalina.

Appellant got out of his car and walked to the front of the drug store and while he was standing on the sidewalk at that location, Sergeant Guenther approached him from the driveway of the parking lot, held out his badge and identification card and said 'Ernie, I'm a sheriff('s) narcotics officer. I would like to talk to you.' Appellant turned and looked in the officer's direction and then started running eastward toward Mines Street on the sidewalk in front of the drug store. As he passed the end of the drug store Sergeant Guenther observed him thrust his right hand into his pocket and immediately thereafter make a throwing motion with his left hand. He observed a white object leave appellant's left hand and fall in the vicinity of an ivy patch which grew on the north side of the drug store. Sergeant Guenther called to the officers who followed behind him that 'he had just thrown something' and continued to pursue appellant across Mines Street where he was apprehended.

Lieutenant Berteaux testified that he saw appellant throw the package a distance of approximately twenty feet. The package fell into the bed of ivy but carried and came to rest on the sidewalk. Lieutenant Berteaux followed the flight of the object after it was thrown. He immediately picked it up and handed it to Deputy Shocker. The evidence established that the retrieved object was a package containing 53.5 grams of heroin and indicated that it had been packaged for the purpose of sale.

When Sergeant Guenther overtook him, appellant offered strong resistance to his arrest. When Deputy Shocker arrived at the scene of the arrest, appellant and Sergeant Guenther were wrestling on the ground. Appellant appeared to be striking at the officer and there were 'rocks and things' lying about. Deputy Shocker advanced and used his weapon to strike a blow to appellant's head. Thereupon appellant said that he 'gave up.' He was then handcuffed and taken into custody.

Summary of Appellant's Testimony

Appellant took the witness stand in his own behalf. His version of relevant history will be stated in the following three paragraphs.

Appellant had met Tony Catalina several weeks before March 21, 1968, the day of his arrest. On two or three occasions they had discussions relating to an automobile which appellant considered buying from Tony, whose stated price was $300. After seeing the car appellant had agreed to buy it but stated that he didn't have all the required money at that time. He gave Tony $100 with the understanding that Tony would call him back that same afternoon. It was on this occasion that he gave Tony the telephone number listed in the name of Caroline Amaya.

Appellant did not hear from Tony again until March 21, 1968. On that afternoon appellant was visiting his girl friend Caroline Amaya at her apartment in Alhambra. When the telephone rang, appellant answered. Tony asked him if he had 'the bread for the wheels.' Appellant replied 'Yes.' Tony asked appellant if he could see him right away and appellant told him he would see him at 7 p.m. at the drug store--at the drug store where he saw him the other day. Appellant did not know that Tony was in the custody of the police officer at the time of this conversation.

Appellant proceeded to the drug store at about 7 o'clock and drove into the parking lot. He observed Tony's car parked in the parking lot nearby. Appellant got out of his car and walked to the drug store. At that point the thought occurred to him that he had left his keys in the car. As he started to turn around he heard someone call to him 'stop, Ernie.' He then turned and walked a few steps in the direction of the voice. He saw two people standing, whereupon he started to turn to go back to his car and took a few steps in that direction. The two persons he previously had observed then started to run toward him, one in a half crouched motion with a drawn gun. Appellant said that his first thought was that Tony Catalina was trying to get some money he was supposed to have for his car so he proceeded to turn and run. He was overtaken, tackled and struck with a gun. He denied that he had ever thrown anything as he was pursued by the officers and denied that he had any narcotics in his possession at that time.

The Prosecutor Was Not Guilty of Misconduct.

Appellant's charges of misconduct are so plainly lacking in substantial foundation that they deserve no extended discussion. There is nothing in the record tending to indicate that the prosecutor...