People v. DeJean

• Decision Date: 07 March 1967
• Docket Number: Cr. 5379
• Citation: 57 Cal.Rptr. 211,249 Cal.App.2d 220
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Warren M. DeJEAN, Defendant and Appellant.

Page 211

57 Cal.Rptr. 211

249 Cal.App.2d 220

PEOPLE of the State of California, Plaintiff and Respondent, v. Warren M. DeJEAN, Defendant and Appellant.

Cr. 5379.

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

March 7, 1967.

Rehearing Denied April 6, 1967.

Hearing Denied May 4, 1967.

[249 Cal.App.2d 222] George H. Link, San Francisco, (under appointment of the Court of Appeal), for appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.

BRAY, Associate Justice. ^*

Defendant appeals ¹ from judgment of conviction, jury trial having been waived, of violation of section 11501, Health and Safety Code (unlawful sale of narcotics) and of three prior felony convictions.

QUESTIONS PRESENTED

1. Was the case mistakenly submitted on an incomplete transcript?

2. Sufficiency of evidence.

3. Did alleged prior entrapment on September 3 affect the September 5 sale?

4. Was defendant deprived of fair trial by his counsel's stipulation concerning chain of possession of the heroin?

5. Should redetermination of two prior convictions be had concerning waiver of right to attorney?

RECORD

On October 29, 1964, an indictment was filed charging defendant and Howard Roberts with sale of heroin on September 3 and an indictment charging them with a similar sale on September 5. It is the conviction of the latter sale that is the subject of this appeal. An amendment to this indictment charged defendant with three prior felony convictions, which defendant admitted. After a six-day jury trial, both defendants were convicted of both offenses. On motion, both defendants were thereafter granted new trials. The court based its ruling upon the ground that the September 3 offense would not have been committed in the absence of entrapment or the use of threats by the police. As for the September 5 offense, the court concluded there was a break in the proof of the chain of possession of the heroin allegedly sold by defendants.

During the retrial Roberts pleaded guilty as to the September 3 indictment of the lesser included offense of violation of section 11500 (possession of heroin) and the September 5 indictment was dismissed as to him.

Thereupon, the prosecutor and defendant DeJean's counsel stipulated that the case against DeJean be submitted to the court on the basis of the testimony heard that day, and the three-volume transcript of the prior trial. It was further stipulated that there was no break in the chain of possession of the heroin subject of the two indictments. After the proceedings had been temporarily suspended for a determination of DeJean's present sanity (the court found him sane), the court found him not guilty of the September 3 offense but guilty of the September 5 offense. The court further found that he had suffered the three prior convictions, which he had admitted, and sentenced him to prison for the term prescribed by law.

EVIDENCE

Although defendant was acquitted of the offense alleged to have taken place on September 3, 1964, its circumstances need to be detailed in order to understand defendant's contention that in effect they tainted the offense of September 5, making it 'fruit of the poisoned tree.'

Billye Morrow, a San Francisco police officer acting as an undercover agent to obtain information concerning the narcotic traffic, met one Horace Smith on September 3. Smith had previously told Morrow that he would introduce him to someone who would sell him heroin. Morrow gave Smith $50 to purchase the narcotic from a man whom Smith was to meet in a nearby bar. As they proceeded, a white Buick drove by and Smith jumped in, telling Morrow to wait and that he would return in a few minutes.

Smith did not return and after three to four hours, Morrow and Mrs. Smith set out to find him. At about 4:00 a.m. they found Smith, who claimed to be 'burned' because a man named Warren (defendant DeJean), whom Smith had asked to 'cop' for him, had taken the money, gone into a housing project, and had not returned. Morrow told Smith that he did not believe him, and that if Smith did not get the money back or heroin, Morrow would beat Smith. Mrs. Smith then suggested that they contact a man named Jess who would know where to locate Warren. The group went to Jess' apartment and he agreed to help them find Warren. After driving to various locations in Jess' car, Mrs. Smith spotted defendant Warren DeJean crossing the street. The group left the car and approached defendant.

Mrs. Smith asked defendant what he had done with the money. At first appearing ignorant of what money she was talking about, defendant then admitted he had taken the $50 because Smith owed him at least that much, having previously obtained heroin from him for which he had not paid. An argument ensued; defendant, Jess, Smith and Mrs. Smith all drew knives. A passerby pushed Morrow to the ground. Morrow got up, grabbed a board lying on the ground, and hit the man with it. Morrow and defendant moved away from the crowed and defendant offered to return $12 of the money he had received from Smith. Morrow and defendant then went to defendant's apartment. Defendant went inside, and Morrow waited outside. Defendant returned and gave Morrow $12.

Tregre and Roberts joined Morrow and defendant, and they walked away. Morrow told defendant that he could not go back to 'his man' without either the money or heroin and asked defendant whether there was anything he could do. Morrow told defendant that if he could 'score' for him, he would call it even and get the rest of the money from Smith. Defendant asked Roberts whether he could help Morrow. Roberts thought something could be arranged but that he would have to make a telephone call.

Roberts made a call and then told Morrow to come with him. Morrow, Roberts, Jess, Mr. and Mrs. Smith, and defendant proceeded to a point where Morrow, Roberts and defendant got into Morrow's car. Morrow gave Roberts $30 and defendant gave Roberts some money. Roberts left the car. Defendant asked Morrow whether he used heroin himself. Morrow said that he did not, that he wanted it for an addict who would resell it. When Roberts returned to the car, Morrow asked him if everything was okay, and he replied that it was. Defendant then said, 'I told you everything was going to be all right.' The three men then drove to a place where Roberts removed a red balloon from his clothing and poured the contents, a grayish-brown powdery substance, onto a piece of paper. After Roberts cut up the substance with a knife, defendant folded a small portion of it into a bindle and handed it to Morrow. The contents of the bindle were subsequently analyzed and found to be heroin.

On September 5, Morrow met defendant and asked him whether he could get him a '25cents bag' which is equal to a half a spoon of heroin. Defendant told Morrow to wait, and walked over to Roberts, who was standing nearby. After defendant and Roberts talked briefly, they approached Morrow. Roberts asked him what he wanted. Morrow repeated his request for a '25cents bag.' The three men then got into Morrow's car and ultimately stopped at a hotel. Roberts went into it, defendant and Morrow remaining in the car discussing defendant's habit and that of the person for whom Morrow and defendant purported to be buying. Tregre came out of the hotel and defendant asked him if he had seen Roberts. Tregre replied, 'That is what I am out here for.' Tregre asked Morrow what he wanted and Morrow replied a '25cents bag.' Tregre then removed a small red balloon containing heroin from his mouth and gave it to Morrow in exchange for $25.

Defendant did not testify.

Roberts testified at the first trial to the effect that defendant and he had participated in the September 3 sale only because Morrow threatened and intimidated them. Roberts claimed that he first became involved in the September 3 events when he observed a group of persons engaged in a heated argument. Defendant, whom Roberts knew, was surrounded by several persons with knives in their hands and who were threatening defendant, demanding money. Smith was one of the persons holding a knife, and Morrow was standing nearby. When defendant told Smith he did not have the money, the latter replied that it was Morrow's money, that he had a pistol and was demanding the money be returned and that he (Smith) had to get it back. Roberts then interjected himself into the conversation and suggested to defendant that he give them the money, if he had it, because it looked like they meant business. Morrow then asked Roberts what he had to do with it. Roberts replied that he was not involved at all but was a friend of defendant whom he did not want to see get in trouble. After further discussion Morrow struck Roberts on the neck with a stick.

Morrow continued to insist upon the return of the money or some other 'consideration.' After Morrow had threatened to take care of defendant and had told Smith to take care of Roberts, defendant made a brief trip into his apartment and then returned. Morrow again stated that he wanted his money or narcotics and told defendant that he was not playing and if defendant could help him, defendant would be helping himself. Defendant then asked Roberts if he could do anything but Roberts said that he did not want to get involved. However, when Morrow told him that he was already involved, Roberts agreed to help him look for narcotics. Out of Morrow's hearing, defendant and Roberts agreed to attempt to discourage Morrow by leading him on a wild goose chase.

Defendant, Roberts and Morrow then drove to various areas in Morrow's car, although Roberts initially pretended that he was unable to locate a narcotics seller. Morrow became increasingly more desperate and finally threatened to kill defendant and Roberts as it would only mean 'two dead addicts.' Roberts then obtained some heroin and sold it to Morrow.

As to the...