People v. Cuevas, Cr. 5277

• Decision Date: 10 March 1955
• Docket Number: Cr. 5277
• Citation: 280 P.2d 831,131 Cal.App.2d 393
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Porfirio Gonzales CUEVAS and Gregory Arthur Villalva, Defendants, Gregory Arthur Villalva, Appellant.

Page 831

280 P.2d 831

131 Cal.App.2d 393

The PEOPLE of the State of California, Plaintiff and Respondent, v. Porfirio Gonzales CUEVAS and Gregory Arthur Villalva, Defendants, Gregory Arthur Villalva, Appellant.

Cr. 5277.

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

March 10, 1955.

Ernest Best, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

From a judgment convicting him of having violated the statute which forbids any person to possess a narcotic, Health and Safety Code, § 11500, except upon the written prescription of a person licensed to prescribe same, appellant brings his cause here for review. He maintains that the conclusion of the trial court is not justified by the evidence.

The Total Evidence.

Defendant Cuevas had for about a year operated a hotel of thirty rooms in Los Angeles. Gregory Villalva was a guest, and had been so for three months prior to the events here related. He worked in the daytime. On the day of his arrest, he arrived at his room about 4:30 p. m., bathed and dressed to go out for dinner. On leaving his room, he met Cuevas who told him they were 'invited for a few drinks upstairs.' They went to a room where three girls were serving whiskey. They drank the liquor as they listened to the radio. After having satisfied his bibulous thirst, Cuevas told his companion that he had found a shopping bag in the trash can in the alley with something green in it, something like grass and would like to know whether it could be marijuana. The reply was, 'I don't know unless I look at it. I had a previous arrest and I might help if it is marijuana.' After running his hands through it and taking 'a handful out' of the bag, appellant told Cuevas it was marijuana. He testified: 'As I was running my hands through it, the officer walked in; I was not using it; it was not in my possession; it was not my room. When I entered the room it was already there.'

The drinking party was in room 16. It was registered to a girl named Mickey who with her sister Carmen and a third girl, stranger to appellant, served the liquor. The marijuana was in the shopping bag at all times so far as appellant knew. He scraped some of it out, smelled it, and told Cuevas what it was. As he dropped the sample into the bag 'perhaps some of it fell to the floor.' He told Cuevas it might not be good; might as well get rid of it. He did not smoke any of it. Just as appellant observed the rain and that he could not go out, one of the girls departed through the door and the officers entered.

Although there were cigarette papers in the shopping bag, appellant did not touch them.

The only witness from whose testimony the court could have inferred possession by appellant was Officer Cook who testified as follows: 'The door was open; I walked in and over to Cuevas; took his cigarette out of his mouth; on the table were two packages of green leafy material; two piles of it. Villalva was seated beside the table which had the piles of green leafy material and a package of wheat straw papers * * * I searched Villalva's pockets. Cuevas stated that he had sole ownership of the narcotics. We took the group to the narcotics office where we questioned them further, separately.' After giving the admissions of Cuevas which were proof of his own guilt, the officer related his conversation with appellant: 'He stated he lived in the hotel; had come to the room along with Cuevas and the three girls; that Cuevas opened the package; that he (appellant) had had experience with it and recognized it as marijuana, and he was just helping Cuevas manicure it and get it ready to roll * * * The instant I entered the room Villalva was standing there; said it was not his.'

While it is true that appellant never proclaimed his possession of the narcotic, never audibly asserted an interest in it, never had it on his person or in his own room, yet can it be concluded that the trial court was arbitrary in finding he was a possessor? When the officers entered room 16, appellant was standing by the table on which the flowering tops lay, was running his hands through the weeds; had decided it was marijuana, but still lingered in its presence. From the situation that prevailed as the officers entered, it required no stretch of the imagination for the trial court to determine that appellant had ceased to play the role of expert advisor; had renounced his aim to uphold the law; had entered into the gaiety of the occasion and had succumbed to the appeal of the glowing festivities and had accepted the implied invitation of Cuevas to join him in 'manicuring' the weed so that all might enjoy the find. The court apparently reasoned, and not without cause, that if appellant had no intention to join in the narcotic debauch arranged by Cuevas, he would hastily have removed himself from the environs of the contraband. Not having done so, he still loitered as though he were staying for a spell of enjoyment. The court was fortified in such logic by the declarations of appellant to Officer Cook, namely: 'I recognized it as marijuana; I was helping Cuevas manicure it and get it ready to roll.'

The question naturally arises as to which is the primary proof of his possession, (1) his standing by the table with the narcotic before him, or (2) the officer's testimony of appellant's statement that he was manicuring the weed so that it could be rolled for smoking. It appears more reasonable to determine that a man's admission that he was manicuring the weed and getting it ready to roll would constitute the backbone of the proof, the substantial evidence of the crime. If that is true, we are confronted with the unavoidable query whether the author of such admission can be convicted solely upon the testimony of the officer? It is said that admissions retold at a trial are much life hearsay; that they have neither the compulsion of the oath nor the test of cross examination; that they are of the same character as confessions which require corroboration. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 164, 99 L.Ed. 101. Corroborative evidence is sufficient 'if it touches the corpus delicti 'in the sense of the injury against whose occurrence the law is directed', * * * and is of a type which goes to fortify the truthfulness of the confession.' Ibid, 48 U.S. at pages 91, 92, 75 S.Ct. at pages 163, 164, 99 L.Ed. 108; Daeche v. United States, 2 Cir., 250 F. 566, 571. The friendly...