People v. Freytas
| Decision Date | 20 February 1958 |
| Docket Number | Cr. 3339 |
| Citation | 157 Cal.App.2d 706,321 P.2d 782 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel FREYTAS and Jose Serrano, Defendants and Appellants. |
George T. Davis, San Francisco, for appellant, Manuel Freytas.
Benjamin M. Davis, San Francisco, Don Wilson, San Francisco (of counsel), for appellant Jose Serrano.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Marvin Christiansen, G. A. Strader, Deputies Atty. Gen., for respondent.
The defendants were charged by indictment as follows: Louis Doe was never apprehended. After entering pleas of not guilty the defendants were tried together before a jury which found them guilty as charged. Defendant Jose Serrano was committed to the Youth Authority; he appeals from the judgment and order denying his motion for a new trial, contending that the verdict is not supported by the evidence and that the trial court erred in its refusal to give certain instructions. Defendant Manuel Freytas was sentenced to the State prison, sentence to run consecutively with any other sentence being served; he appeals from the judgment of conviction, contending that the verdict is not supported by the evidence; that the trial court erroneously admitted evidence of a prior and subsequent sales and incorrectly instructed the jury on the effect of this evidence and certain prejudicial misconduct on the part of the district attorney.
The facts leading to the indictment, according to the prosecuting witness, Barbara Garcia, age 15, are as follows: On Thursday, August 2, 1956, she and her friend, Virginia Ramirez, saw the defendant Freytas, whom she had known for about three months by his nickname 'Golo'. He told her 'he just got out of jail and he wanted to raise money to get Manuel Nieto out,' and that 'he had about 20 1bs. he wanted to sell.' This conversation took place between 3:00 and 6:30 p. m. at the pool hall on 24th Street, owned by the defendant Freytas. On Saturday, August 4, 1956, the defendant Jose Serrano, whom she had known for three to four years by his nickname 'Frenchy', came to her house with Manuel Nieto whom she also knew.
She was home alone and Frenchy * * *' She then made several telephone calls but got no result. All three of them left and drove Nieto to the barbershop. Then as she was riding around with Frenchy in his car, she accidentally saw Golo by the pool hall. Frenchy parked the car across the street from the pool hall and remained in the car, while she got out of the car and talked to Golo. The conversation was as follows:
When she and Frenchy returned, he again remained in the car across the street from the pool hall while she got out to talk to Golo, who 'told us to go park on 24th Street between Shotwell and South Van Ness, between Capp and South Van Ness.' This they did and then saw Golo walk three blocks up 24th Street and knock on the door to a house. The door was opened by a person known to her only as 'Louie', whom she had known for about one month and had seen at the pool hall. Golo talked to Louie and then both of them came back to the car and talked to her and Frenchy. 'Golo told me to hand him the money, that Louie would take me and get two tins.' Frenchy then gave her $40 which she handed to Golo. Golo took the money, said Louie would go get the two tins and then turned around and walked away. Louie got in the back seat of the car and said to drive to 20th and Shotwell about six blocks away. The car stopped there, Louie got out and walked around the corner. He returned in 20 minutes with two tins and
They then drove to 22nd or 23d Street where Louie got out. Frenchy got out of the car and opened the hood and put the two tins in the engine area. She and Frenchy drove back to his home near Precita Avenue. A blond man about 22 whom she had never seen was waiting there in a pink and black '51 Cadillac. Frenchy took the tins out of his car, gave them to the driver of the Cadillac. It was about 6:45 p. m. All three of them got into the Cadillac, Barbara sitting in the middle, drove up to Bernal Heights, and parked in a deserted place. The driver of the Cadillac took some marijuana from one of the tins and put it on blue paper; Frenchy took the seeds out and rolled 4 cigarettes in brown paper. They smoked two of these cigarettes. The driver lit one cigarette but she was not sure who lit the other one. The driver passed the cigarette around and played the phonograph in the glove compartment of the Cadillac. They left Bernal Heights about 7:30 p. m. and returned to Frenchy's house. There, the Cadillac and its driver left, while Frenchy drove her home in his car, a pink 1949 Ford. After she arrived home, she went out again but returned before 12:00.
The prosecuting witness further testified that she had been smoking marijuana for about six months, since her release from a tuberculosis hospital in February 1956, and had smoked it about 40 times during that period, always in groups of people. She stated that August 4th was the first time she had ever bought any marijuana. She testified that Frenchy never sold or gave her any marijuana and that August 4th was the only time she had smoked marijuana with Frenchy. Her testimony before the Grand Jury, a transcript of which was introduced at the trial, substantially corroborated the above facts, except that there was no mention of the conversation with the defendant Freytas on August 2nd.
The defendant Serrano took the stand on his own behalf and testified that he would be twenty years old on his next birthday, that he had been employed as a painter by the same firm for the last six years; that he had known the prosecuting witness for three or four years and had taken her out five or six times. As to the events of Saturday, August 4, 1956, he testified as follows: Although he was employed on that date, he stayed home as his mother wanted him to help her. After taking his mother to and from a launderette, he left home around 11:00 a. m. and bumped into Manuel Nieto, whom he had known for three years and seen around the pool hall, but did not know had handled narcotics and had just gotten out of jail. He offered Nieto a ride and Nieto asked to be driven to the barbershop. He parked across the street from the barbershop around noon and saw Barbara Garcia in the window of her home above the barbershop. Nieto talked to Barbara and asked her to come down and wait for him while he got his hair cut. She came downstairs but didn't want to wait in the barbershop, so she and the defendant Serrano sat on her stairs and talked for about 10-15 minutes during which time he asked her to go to a movie with him but she refused. Then he was called into the barbershop and Barbara went upstairs, returning later when Nieto was getting ready to leave. The two boys left in the car. Barbara walked alone towards Mission Street. He dropped Nieto at 26th and Folsom, then went home and stayed there until 4:00 p. m. and returned home, where he remained until he went to work at 8:00 a. m. the next day.
He denied knowing the defendant Freytas until after the arrest but had heard his name and had seen him at his pool hall. He denied all the other details as related by the prosecuting witness, and further testified that he had never smoked or bought marijuana, although he had been where people smoked; that he had never seen the prosecuting witness smoke marijuana. He further testified that he also used the name Arbelaez, but preferred Serrano, his mother's name.
A statement he had made to the police after his arrest on August 16th was then introduced, and contradicted the above testimony as follows: While Manuel was getting his haircut, Barbara went with me to my house in order to get my union card. There, we saw this The statement also contained further testimony that he had a friend 'Rickey' who had a pink Cadillac with a 45 r. p. m. record player in the glove compartment.
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