People v. Davis, Cr. 12052

• Citation: 69 Cal.Rptr. 849,263 Cal.App.2d 623
• Decision Date: 01 July 1968
• Docket Number: Cr. 12052
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Sylvester A. DAVIS, Defendant and Appellant.

Page 849

69 Cal.Rptr. 849

263 Cal.App.2d 623

The PEOPLE of the State of California, Plaintiff and Respondent, v. Sylvester A. DAVIS, Defendant and Appellant.

Cr. 12052.

Court of Appeal, Second District, Division 1, California.

July 1, 1968.

William Strong, Beverly Hills, for appellant by appointment of Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bruce M. Perlman, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was charged with selling heroin (§ 11501, Health & Saf.Code), and five prior felony convictions--grand larceny, selling and distributing opium, obtaining money by false pretenses, robbery and forgery. The case was heard by the court sitting without a jury; defendant was found guilty of possession of heroin, a lesser and necessarily included offense: no finding was made on the first, second or third prior but the fourth and fifth were found to be true. Defendant appeals from the judgment and sentence.

On July 25, 1965, Officer Parks, an undercover narcotic officer, was introduced to defendant at Barbara Ettes' apartment on East Adams. Present were defendant, Officer Parks, Barbara and Oscar Coates. Defendant was dressed in black and when he removed his shirt he had tattoos on each shoulder and a scar on his right side. The next day (July 26, 1965) around 4:30 p.m., Officer Parks was riding in Oscar Coates' Ford when he saw defendant walking eastbound on Sixth Street. Coates called over to defendant and defendant entered the vehicle; Coates told him he wanted him to 'score'; defendant asked, 'What?' and Coates replied, 'A spoon.' Defendant directed Coates to a certain location where Coates parked; defendant got out of the vehicle and asked Coates for the money; Officer Parks gave Coates $25 which he handed to defendant; defendant then walked north. They waited for defendant and around 6 p.m. he returned saying he couldn't 'get a spoon' but had gotten three bags for a quarter; he handed three ballons to Coates who handed them to the officer. Defendant was arrested around the first week in August and advised of his constitutional rights.

Defendant testified that he met Officer Parks once, on July 26, 1965; he was on Sixth Street, and Coates, Barbara and the officer drove by; Coates whistled at him; he asked Coates, 'can I get a thing?' (a balloon of heroin) and accompanied them to an apartment on East Adams; Coates prepared the 'stuff'--' proceed(ed) to chop it up, you know, mix it up'--on the kitchen table and put it in balloons; Coates gave him the 'first bag' (balloon); he gave himself a 'shot' of 'dope,' as did the others; his shirt was tight so he took it off to give himself the shot. Defendant admitted using heroin but denied selling any narcotics to Officer Parks.

Oscar Coates was called as a witness for the defense; however, after giving his name he refused to testify on the grounds that any testimony he would give may tend to incriminate him.

When the trial judge found defendant guilty of possession he stated that he would not make a finding with respect to the sale because of the refusal of Coates to testify; that, 'he was a material and pertinent witness in this case'; 'through the simple expedience of simply taking the Fifth Amendment and refusing to testify, this defendant has again been deprived of the right to have evidence read into the record which might have shown the defendant was not guilty'; and 'I don't think it would be fair under these circumstances to convict the defendant of a sale without the testimony of Mr. Coates. We still have the question of his admitted involvement with respect to the question of possession.'

Appellant claims that the judgment must be reversed because the trial court based its finding of possession of narcotics solely on his admission--'there was no proof of the corpus delicti as to possession of the narcotic on (July) 26, 1965' except his 'own uncorroborated testimony' because the court disbelieved Officer Parks' testimony.

First, while the sale of July 26, 1965, was not proved to the satisfaction of the trial judge because of what he thought to be the 'evasive quality' of Officer Parks' testimony relative to the events of July 25, 1965, it is clear from the judge's full statement that he did not reject all of the officer's testimony for he specifically found 'that the defendant was in possession of the narcotics and the Very narcotics which had been introduced into this trial, and that, therefore, by his own admission, certainly, although his admission may not go to these particular balloons, but to some other activity, narcotics earlier that day, was in...