People v. Dupree

• Decision Date: 12 December 1957
• Docket Number: Cr. 5941
• Citation: 156 Cal.App.2d 60,319 P.2d 39
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of The State of California, Plaintiff and Respondent, v. Raymond DUPREE and John L. Mack, Defendants, Raymond Dupree, Defendant and Appellant.

Page 39

319 P.2d 39

156 Cal.App.2d 60

The PEOPLE of The State of California, Plaintiff and Respondent, v. Raymond DUPREE and John L. Mack, Defendants Raymond Dupree, Defendant and Appellant.

Cr. 5941.

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

Dec. 12, 1957.

Raymond Dupree, in pro. per.

Edmund G. Brown, Atty. Gen., Lynn Henry Johnson, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

The Grand Jury of Los Angeles County returned an indictment wherein the above named defendants were jointly charged, in Count I, with a violation of Health and Safety Code, Section 11500, a felony, in that on September 25, 1956 in Los Angeles County they sold a preparation of heroin. County II charged defendants with a further violation of the aforesaid code section in that they sold marijuana. It was also alleged that defendant Dupree had suffered two prior convictions, one for importing and concealing marijuana, a felony, in the District Court of the United States, Western District of Texas, and a conviction in California of violating Section 11500 of the Health and Safety Code, a misdemeanor. Defendant Mack was charged with a prior conviction in California of the crime of rape, a felony.

Both defendants pleaded not guilty and admitted the prior convictions charged against them. A jury convicted both defendants on each count. Motions for a new trial were denied. Defendant Dupree was sentenced to State Prison. From the judgment and the order denying his motion for a new trial, defendant Dupree alone prosecutes this appeal.

We regard the following as a fair epitome of the evidentiary features presented in this prosecution. On September 25, 1956, Officer Cherry L. Brown was a police officer of the City of Los Angeles, assigned to the narcotics detail. He was 'working under cover'. While driving in his own automobile he observed defendant Mack sitting on a chair on the corner of 24th Street and Central Avenue, in Los Angeles. The officer approached Mack and inquired of him, 'who had it, or turn me on'. Mack replied that he didn't have anything and asked the officer to 'turn him on'. According to the officer, the expression 'Turn me on' means 'Help me to get what I'm after'. The officer replied that he didn't have anything, but he could use something. Mack then stated that he didn't know of anyone around the corner of 24th Street and Central Avenue who had anything but that he might be able to find something. Officer Brown and defendant Mack entered the officer's car and proceeded to drive south on Central Avenue with Mack looking at pool halls and taverns but he did not see anyone. They drove to 55th Street and Long Beach Avenue and stopped. Mack looked around, they couldn't find anyone, so they drove to 55th Street and Compton Avenue. They still didn't see anyone that Mack knew so they drove back to Central Avenue and proceeded north on that street.

At about 36th Street and Central Avenue Mack saw 'A brown Frazer, 1947 or '46' driving south on Central Avenue. They turned around and caught up with the brown Frazer automobile at about 40th Street and Central Avenue and Mack yelled into the brown Frazer, 'Raymond, stop, I want to see you'. The person addressed as Raymond was the appellant, Raymond Dupree. The latter drove around the corner of 43rd Street and Central Avenue, stopped And Officer Brown drove up behind him. Appellant then entered the officer's vehicle. Mack asked appellant if he had anything, and the latter wanted to know what he wanted. Mack said some cigarettes and appellant asked how many. Mack asked the officer how many and he replied ten. Appellant then furnished the officer ten cigarettes and the officer gave him $4 and Mack $1. Appellant got out of the car and then informed the officer, 'I can get anything you want', and also told the officer, 'I have a $3 paper on me'. Officer Brown told appellant he would take that also, whereupon appellant furnished him a small bindle of heroin for $3. Appellant then left in his automobile and Officer Brown drove Mack back to 24th Street and Central Avenue, where they parted.

Officer Brown sealed the cigarettes and the bindle of heroin in manila envelopes and left them with the property division of the Los Angeles Police Department. Upon examination by a chemist each of the ten cigarettes was found to be marijuana and the bindle was found to contain heroin.

Defendant Mack testified that Officer Brown did make a purchase of cigarettes and heroin in his presence, in which purchase he (Mack) did not participate, but that appellant was not the man from whom the purchase was made. Mack testified that he had never seen appellant prior to September 25, 1956, and to this (Mack's) knowledge the first time he saw appellant was in jail. Appellant testified that he never left home on September 25, 1956, that he did own a brown 1947 Frazer but his car was unable to run that day, and that to his knowledge the first time he ever met or came into contact with defendant Mack was the day he was taken into custody, November 12, 1956. Miss Louise Orebo testified that appellant was her common law husband; that she was living with him on September 25, 1956; that she was home all day; and that appellant never left home that day. Mrs. Beatrice Bivens, appellant's sister, testified that she visited at appellant's home around noon on September 25, 1956, stayed for lunch, left, and returned about 5:00 p. m., staying until midnight. That on each occasion appellant was there.

At his first ground for reversal of the judgment and order appellant contends that the indictment returned by the grand jury was not properly presented in that, 'Defendant was Secretly indicted, without Reasonable or Probably cause; in violation of the Due Process Clause or the Fourteenth Amendment, and Section 1181 of California Penal Code.'

In this regard appellant challenges the validity of the indictment because he was not present at the grand jury sessions and confronted with in witnesses against him. Such procedure, he argues, violates the Sixth Amendment to the Constitution of the United States, the due process clause of the Fourteenth Amendment to the Federal Constitution, and Section 1181 of the Penal Code of this state. No transcript of the proceedings before the grand jury has been brought here on this appeal, and therefore, the claim presented by appellant as to those proceedings are outside the record. We could dispose of his contention on the ground that matters not contained in the record may not be considered on appeal (People v. Hartridge, 134 Cal.App.2d 659, 667, 286 P.2d 72; People v. Martin, 128 Cal.App.2d 361, 364, 275 P.2d 635); we are however, disposed to consider appellant's contention as though it was properly raised. Appellant misconceives the powers and functions of a grand jury. In People v. Foster, 198 Cal. 112, 120, 243 P. 667, 670, after pointing out that a grand jury is a distinctive, inquisitorial body, the court stated: 'Its sessions are secretly conducted and the person whose acts are under investigation by it may have no official knowledge that he is the subject of investigation, nor does he know who his accusers were or what they have testified to until after the indictment has been returned against him; in short, the accused has not had his day in court, so far as the preliminary proceedings are concerned. The right of the accused to be informed of the evidence taken before the grand jury, even after indictment found, is a modern statutory innovation of the ancient rule. In no case is the accused privileged to be confronted by his accusers. Indeed, he may not appear before the grand jury or produce witnesses in his own behalf as a matter of right.' (Emphasis added.) See also Penal Code, section 920; People v. Goldenson, 76 Cal. 328, 345, 19 P. 161; People v. Finkel, 70 Cal.App.2d 508, 516, 517, 161 P.2d 298.

Appellant also misconceives the meaning of the California Constitution, Article I, section 13, and Penal Code, section 1181(1). Nowhere, in either the constitutional provision or statute is any right conferred upon a person under investigation, to appear before the inquisitorial body. They speak only of a person's right to his day in court, and to be present at all proceedings conducted at the trial. The Constitution of this state (Article I, section 13) provides that, 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend, in person and with counsel. * * *' Penal Code, section 1181, referred to by appellant, provides that upon an adverse verdict at the trial, the court may upon application of the accused, grant a new trial (Subd. 1), 'When the trial has been had in his absence'. A grand jury proceeding not being a criminal trial (In Re Lemon, 15 Cal.App.2d 82, 84-87, 59 P.2d 213; In re McDonough, 21 Cal.App.2d 287, 288, 68 P.2d 1020), it necessarily follows that appellant's reliance upon the aforesaid constitutional provision and statute are unavailing. Neither does the Sixth Amendment to the Federal Constitution afford appellant any comfort in his claim that he had a right to be heard or appear before the grand jury. In Duke v. United States, 4 Cir., 90 F.2d 840, 841, it was said: '* * * There is no right on the part of one whose conduct is being investigated by a grand jury to petition the grand jury or to appear before it, which is guaranteed by the Constitution or otherwise; * * *' See also United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 605-606, 156 A.L.R. 240; Goodman v. United States, 9 Cir., 108 F.2d 516, 519, 127 A.L.R. 265. Appellant's further claim that the proceedings before the grand jury being secret invalidated the indictment returned against him under the protective provisions of the United States Constitution was decided...