People v. Doebke

• Decision Date: 20 October 1969
• Docket Number: Cr. 693
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond E. DOEBKE et al., Defendants and Appellants.

Page 391

81 Cal.Rptr. 391

1 Cal.App.3d 931

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond E. DOEBKE et al., Defendants and Appellants.

Cr. 693.

Court of Appeal, Fifth District, California.

Oct. 20, 1969.

As Modified on Denial of Rehearing Nov. 19, 1969.

Hearing Denied Dec. 23, 1969.

John A. Cape, Sacramento, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., Jack R. Winkler, Edsel W. Haws, Michael H. Fabian and A. Wells Peterson, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

GARGANO, Associate Justice.

On February 3, 1968, John Fowler, a 43-year-old unpaid undercover narcotic agent, and James Ronald Brooks, an 18-year-old paid informant with a juvenile record, were engaged by the police to do some undercover work in connection with the narcotic activities which were prevalent in the communities of Oroville and Chico. They were given some money and a car, and instructed to go to the Academy Pool Hall in Chico to purchase marijuana from anyone willing to sell it.

Fowler and Brooks arrived at the pool hall at about 12 noon and began to circulate among the people present. While there, Brooks met one Manuel 'Mouse' Gonzales, a friend of Darrell Poore, and told Gonzales that he was looking for marijuana. Afterward, Poore approached Brooks and asked him if he wanted to 'score.' Brooks replied that he wanted a kilo of marijuana to supply the trade among the construction workers in the Oroville area. He also introduced Fowler as his boss. After some discussion, Poore agreed to sell Fowler a kilo of marijuana for $100.

Later that afternoon Fowler, Brooks and Gonzales met Poore in a parking lot in Chico, and Fowler made arrangements for Poore to deliver the marijuana at a rendezvous across the tracks near the college farm. He also paid Poore $100 in advance. Then, Poore left the parking lot but returned a few minutes later saying he could not make delivery until midnight. Fowler asked for his money back, but Poore said he did not have the money with him. He told Fowler he might be able to get it back at a house located at First and Magnolia Streets.

The group arrived at the house at about 4:30 p.m.; Poore went inside and eventually came out with Raymond E. Doebke. Fowler again stated he wanted his $100 back, but instead of giving him the money, Poore and Doebke assured Fowler that they would make delivery at about midnight. Fowler then asked them if they had any marijuana to hold him over for the night. In reply, Doebke went into the house and returned with two plastic bags and showed them to Fowler; he took the bags back into the house when Fowler, Brooks and Gonzales left for a few minutes. However, in about 15 minutes, Brooks returned to the house and picked up the plastic bags. As Brooks re-entered the car in which his companions were waiting, Gonzales opened the bags and removed some of the material. Then he gave the containers to Fowler, who delivered them to Sergeant Jimenez of the Butte County Sheriff's Department. A chemical analysis of the contents disclosed the presence of marijuana.

The following day at about 6 a.m. Poore met Fowler and Brooks at a restaurant in Chico. Poore brought the undercover agents to a house on Cypress Street; then he went to the rear of the house and came back with a large plastic bag. The bag contained approximately a half kilo of marijuana in loose form.

Subsequently, Poore and Doebke were arrested and tried and convicted of selling marijuana in violation of Health and Safety Code section 11531. They both appeal from the judgments entered on the jury's verdicts. However, their numerous joint and separate contentions for reversal mainly are frivolous or based on facts which are not part of the official record. We shall therefore discuss only those contentions which appear to have substance.

Appellants contend that the trial judge erred when he allowed the cross-examination of appellant Poore to extend to matters beyond the scope of his direct examination. They argue that albeit Poore took the stand, he did not deny that he sold marijuana to undercover agent Fowler but merely related the essence of the conversations that took place at the Academy Pool Hall to prove that he was cajoled and pressured into selling the marijuana to establish his defense of entrapment. Accordingly, they assert that the judge should not have permitted the prosecutor to question Poore about the sale which took place on the following day.

It is of course the rule that if a defendant takes the stand and does not deny the crime charged, he may be cross-examined only as to matters about which he was examined in chief (People v. Robinson, 61 Cal.2d 373, 38 Cal.Rptr. 890, 392 P.2d 970). In fact, the California Supreme Court has characterized the rule as 'an indispensable ally of the federal and state constitutional rights guaranteeing that a person shall not 'be compelled, in any criminal case, to be a witness against himself. '' (People v. Schader, 71 A.C. 797, 805, 80 Cal.Rptr. 1, 5, 457 P.2d 841, 845.) However, the court also made it clear that this does not mean that 'when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.' (People v. Schader, Supra, 806, 80 Cal.Rptr. 1, 6, 457 P.2d 841, 846.) Thus, while a defendant who voluntarily takes the stand to testify is still protected by the Fifth Amendment privilege against self-incrimination, he must nevertheless answer all inquiries asked by the cross-examiner to refute or explain any reasonable or logical inference which may have arisen from his direct testimony.

In this case, Poore testified that when he was approached by Manuel Gonzales about selling marijuana, he said, 'No.' He also told the jury, 'I didn't have any to sell and I don't possess marijuana.' Manifestly, by telling the jury that he did not have any marijuana to sell and did not possess it, Poore impliedly denied he sold marijuana to Fowler and subjected himself to extensive cross-examination in this respect. Moreover, Poore testified that when Fowler asked him to sell some marijuana he replied, 'No, I don't deal with marijuana or anything like that.' Thus, the prosecutor was entitled to refute all reasonable inferences that arose from this hearsay statement. Finally, (which appellants readily admit) Poore tried to convince the jury that he was cajoled and persuaded by Fowler and Brooks into making the sale and that the idea to sell the illegal drug was implanted in his mind by the undercover agents. The prosecutor was therefore entitled to show, through cross-examination, that Poore accepted $100 in advance (a fact which he denied) and delivered half of a kilo of marijuana to the undercover agents on the following day, to prove that the accused customarily dealt with marijuana and voluntarily sold it to Fowler.

Appellant Doebke relies on People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, to contend that he did not receive effective representation from his trial counsel. He complains because his trial counsel did not object and request an appropriate admonition on each occasion that hearsay testimony admissible only against his codefendant Poore was offered into evidence. ¹ He also complains because his trial counsel did not move for a severance of the trial on the ground that Poore's defense of entrapment was prejudicially inconsistent with his own defense.

While it is true that Doebke's counsel should have objected to all hearsay evidence admissible only against Poore, since such evidence is relevant and competent in the absence of a specific objection (People v. Rodriquez, 274 A.C.A. 843, 849, 79 Cal.Rptr. 240), and though he probably should have moved for a severance of the trial, his omissions were tactical errors which did not reduce the trial to a farce or sham. In short, a defendant making a claim that he was denied effective representation of counsel bears the burden of establishing such alleged ineffective representation as a demonstrable reality, not as a matter of mere speculation (People v. Reeves, 64 Cal.2d 766, 51 Cal.Rptr. 691, 415 P.2d 35). As the Supreme Court succinctly stated in People v. Ibarra, Supra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490:

'To justify relief on this ground, 'an extreme case must be disclosed.' (Citations.) It must appear that counsel's lack of diligence or competence reduced the trial to a farce or a sham."

Appellant appends a series of newspaper articles to his brief as further evidence that he was not effectively represented by counsel. He argues that these articles demonstrate that he was arrested in a massive narcotic 'roundup' which received great notoriety in Butte County, and that his trial counsel should have made a motion for a change of venue. However, the articles are not part of the...