People v. Cuellar

Citation262 Cal.App.2d 766,68 Cal.Rptr. 846
Decision Date05 June 1968
Docket NumberCr. 432
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Gonzales CUELLAR, Defendant and Appellant.
CourtCalifornia Court of Appeals
OPINION

STONE, Associate Justice.

A jury found defendant guilty of a sale of marijuana in violation of Health and Safety Code section 11531, and of possession of marijuana in violation of Health and Safety Code section 11530.

David Fuentes, a senior narcotic agent with the State Bureau of Narcotic Enforcement, accompanied by a 'contact' by the name of Alfonso Cintora, also known as 'Chico,' drove to the home of Richard Garcia in Los Banos on August 17, 1966, about 8:40 p.m. A Thunderbird automobile which defendant and Frank Ramos had driven from San Jose that day, was parked in the driveway adjacent to the front yard. Garcia was standing in the yard near the car and Ramos and defendant were repairing the electrical system for the convertible top.

Garcia walked to the Fuentes automobile. Chico, who was known to Garcia, introduced Fuentes as his cousin and said that Fuentes wished to purchase a can of marijuana. Actually two packets were sold, one right after the other, and the problem in the case stems from the fact there were two sales and the testimony of Fuentes, the agent, and Garcia, the accomplice, differed as to the first sale. Fuentes testified that Garcia, after being told Fuentes wanted to buy a can of marijuana, walked past the Thunderbird, spoke to defendant and Ramos but continued walking into the house. Upon the return trip from the house he again spoke to the men as he passed them, but continued to the Fuentes car, where he delivered a waxed paper bag containing marijuana. The testimony of Garcia, who was a witness for the People, was that he obtained both Waxed paper bags from defendant and Ramos.

No prosecution witness other than Fuentes testified as to the first sale, so that Garcia's testimony, rather than being corroborated, was contradicted insofar as concerns defendant's participation. As to the second sale, Fuentes and Garcia both testified substantially as follows: After Garcia handed the first packet to Fuentes, Fuentes said he wanted a second can; Garcia turned and whistled to defendant and Ramos and said 'They want another can,' then walked to the Thunderbird where defendant was in the car working on the electrical mechanism; defendant handed a packet to Ramos, who handed it to Garcia, who handed it to Fuentes.

Fuentes testified that after receiving the second package he paid $40 in one lump sum to Garcia, who handed the money to Ramos. Garcia, on the other hand, testified that Fuentes paid him $20 for the first packet, which money he gave to Ramos, and another $20 after delivery of the second package, which he gave to either defendant or Ramos.

No arrests were made at the time of sale, but all three men, Garcia, Ramos and defendant, were subsequently arrested and each charged with a sale of narcotics and of possession of narcotics. Garcia, who apparently pleaded guilty to possession and was given a six-months' local jail sentence, testified on behalf of the prosecution. Defendant and Ramos were tried jointly, and each was convicted on both counts. Defendant alone appeals.

The greater portion of defendant's brief is devoted to the proposition that 'Health and Safety Code sections 11530 and 11531 violate the Eighth Amendment to the United States Constitution and article I section 6 of the California Constitution.' He contends the penalty that may be imposed for violation of either section, particularly with a prior conviction for the same offense, is 'disproportionate to his conduct no matter what the purposes of punishment are.'

The point is not properly present on this appeal. First, the contention was not raised below, so there is nothing in the record to support the assertion even though it raises a constitutional question and, second, all we have in the brief is an expression of counsel's personal belief that the offenses do not endanger society to the extent that the sentences are justified. No authority is cited that purports to demonstrate the harmfulness or harmlessness of marijuana use or addiction, or the social consequences of the use of the drug. Hence we have no legal basis for even considering defendant's bald assertion that the offense is not of a heinous nature and the enormity of the crime does not justify the penalty that may be imposed pursuant to the two sections.

Several California cases have dealt with one or another aspect of the constitutionality of sections 11530 and 11531. People v. Marsden, 234 Cal.App.2d 796, 44 Cal.Rptr. 728, holds that a sentence of five years to life without possibility of parole for three years for giving away marijuana does not constitute cruel and unusual punishment. People v. Keller, 245 Cal.App.2d 711, 54 Cal.Rptr. 154, holds that the penalty prescribed for selling marijuana does not constitute cruel and unusual punishment. People v. Quilon, 245 Cal.App.2d 624, 54 Cal.Rptr. 294, holds that the penalties for possession of marijuana with prior convictions of the same offense are severe but not cruel or unusual punishment and that no denial of equal protection of the law results from the imposition of the penalty provided. People v. Aguiar, 257 A.C.A. 691, 65 Cal.Rptr. 171, holds that section 11530 creates a constitutionally valid classification of a criminal act within the equal protection clause of the constitution, which is a reasonable classification free from discrimination or other 'impure motive.'

We note, in passing, that the Legislature is now holding hearings concerning the punishment for the possession of, use of, and trafficking in marijuana. This is where the matter of proper penalty should be determined, since this court...

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10 cases
  • People v. Guiuan
    • United States
    • California Supreme Court
    • July 6, 1998
    ...on the giving of the instructions contained therein and permitted or required to be given by decisional law."]; People v. Cuellar (1968) 262 Cal.App.2d 766, 770, 68 Cal.Rptr. 846.) Second, Williams reiterates the long-standing requirement that when an accomplice is called by the defendant a......
  • National Organization for Reform of Marijuana Laws v. Gain
    • United States
    • California Court of Appeals Court of Appeals
    • November 30, 1979
    ...reached the same result. (See, e. g., People v. Sheridan (1969) 271 Cal.App.2d 429, 430, 76 Cal.Rptr. 655; People v. Cuellar (1968) 262 Cal.App.2d 766, 769-770, 68 Cal.Rptr. 846; State v. Renfro, supra, 542 P.2d at pp. 369-370; State v. Donovan (Me.1975) 344 A.2d 401, 405; Commonwealth v. L......
  • Jones, In re
    • United States
    • California Court of Appeals Court of Appeals
    • November 21, 1973
    ...that the punishments prescribed are cruel and unusual. (See People v. Oatis, 264 Cal.App.2d 324, 70 Cal.Rptr. 524; People v. Cuellar, 262 Cal.App.2d 766, 68 Cal.Rptr. 846; People v. Aguiar, 257 Cal.App.2d 597, 65 Cal.Rptr. 171; People v. Keller, 245 Cal.App.2d 711, 54 Cal.Rptr. 154. . . 1] ......
  • People v. Gonzales
    • United States
    • California Court of Appeals Court of Appeals
    • February 18, 1970
    ...accomplice is called as a witness by the prosecution (People v. Miller, 185 Cal.App.2d 59, 82, 8 Cal.Rptr. 91, and People v. Cuellar, 262 Cal.App.2d 766, 68 Cal.Rptr. 846). It should not be given where a defendant testifies in his own behalf (People v. Hartung, 101 Cal.App.2d 292, 295, 225 ......
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