People v. Gonzales

• Decision Date: 07 June 1963
• Docket Number: Cr. 46
• Citation: People v. Gonzales, 217 Cal.App.2d 41, 31 Cal.Rptr. 540 (Cal. App. 1963)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Diego GONZALES, Defendant and Appellant.

Page 540

31 Cal.Rptr. 540

217 Cal.App.2d 41

The PEOPLE, Plaintiff and Respondent, v. John Diego GONZALES, Defendant and Appellant.

Cr. 46.

District Court of Appeal, Fifth District, California.

June 7, 1963.

Richard L. Olson,* Fresno, for appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and John L. Giordano, Deputy Atty. Gen., for respondent.

RALPH M. BROWN, Justice.

An information was filed charging the appellant with three counts of furnishing heroin without a prescription in violation of Health & Safety Code, section 11501--Count One alleging the offense was committed on February 1, 1961; Count Two on April 6, 1961; and Count Three on April 12, 1961; together with three prior convictions for violations of section 11500 of the Health & Safety Code, which were admitted by appellant.

After a jury trial the appellant was found guilty of Counts One and Three, from which judgment he appeals, and was found not guilty of Count Two. Appellant did not testify or put on any case, claiming that the trial court committed prejudicial error by failing to allow the appellant to fully cross-examine the principal prosecution witness concerning his narcotics use, and prejudicial error in the court's failing to allow the appellant to cross-examine the principal prosecution witness about his parole status and its effect on his motives for testifying.

The principal prosecution witness was Mr. Emit Thompson, a non-paid informer for the Bureau of Narcotics Enforcement who had been a user of heroin and marijuana since 1949 and at the time of the trial was on parole for a 1953 conviction for selling heroin for which he had been sentenced to prison.

Count One. From the office of the Narcotics Bureau, witness Thompson made a monitored phone call to defendant concerning the purchase of 'two spoons' of heroin for $120. The meeting being arranged, the agents searched Thompson, his clothing and car, gave him $120 and placed upon his body a Fargo Set (a small transmitting radio device); then in two separate cars followed him. At the pre-arranged location the agents saw the defendant talking to Thompson and over the Fargo receiving set which was located in the agent's car, heard the defendant in reply to Thompson's question, 'Where is it,' state, 'Over there by the telephone pole.' Agent Mannen, who had been observing this activity and listening to the radio transmission, testified that he observed the driver of the green pickup truck, that it was the defendant, and that this conversation took place near the telephone pole. Agent Yannello, with Mannen, was also listening on the radio set and heard the conversation and kept witness Thompson and the defendant in his sight during the entire time, identifying defendant by means of the headlights of the car which Mannen was driving. After the defendant left, the agents stopped their car and one went to the telephone pole, picked up the envelope and returned to the Narcotics Bureau office along with witness Thompson. The substance in the envelope was analyzed and found to contain heroin.

Count Three. As to this offense, Mr. Thompson was again searched at the Narcotics Bureau office, given $10 in marked money and a Fargo Set placed on his person, and pursuant to instructions and followed by two agents, contacted the defendant at a Fresno location and made arrangements for another purchase. Thompson met the defendant in his pickup truck; defendant drove away while Thompson, walking on another street, informed the agents by means of his radio that a deal had been made. The defendant then drove up in company with a Mr. Rubalcava. Thompson testified that he went up to the pickup and defendant gave him some 'papers' and drove off. The agents and Thompson returned to the Bureau office and the 'papers' containing heroin and $5 in change were delivered. Agent Moller testified that he had kept a visual contact of Thompson, that he saw the defendant standing on the sidewalk at Inyo Street, that the defendant had a pickup and drove off when Thompson by radio reported that he was going to make a deal, that the pickup in which there were two people, the defendant and Rubalcava, then came back and on its return the witness Thompson talked to somebody in the pickup and then Thompson went back to the Bureau office, producing the narcotics and $5. However, agent Moller was unable to testify as to what happened in the pickup other than to say that Thompson was talking to someone in the pickup and that defendant and Rubalcava were in the pickup.

Appellant urges that the trial court erred in sustaining objections to his questioning of witness Thompson as to his parole status and its effect on his motives. Such questions as 'If you violate your parole you will be sent back to prison,' 'Do you know what the law is regarding a third conviction,' 'How much time remained on the parole,' etc., are immaterial. Most of them call upon the witness to state conclusions or opinions. The witness did testify as to his previous convictions, that he had used narcotics, that he was on parole and that he had received or was expecting no promises or other benefits for his testimony or for acting as an informant.

While People v. Ormes, 88 Cal.App.2d 353, 198 P.2d 690; and People v. Serpa, 67 Cal.App.2d 327, 332, 154 P.2d 6, are authorities for the contention of appellant that wide latitude should be allowed in cross-examination for the purpose of testing a witness against a defendant in a criminal prosecution, the court further says in People v. Serpa, supra, 67 Cal.App.2d at page 333, 154 P.2d at page 9, and quoted in People v. Ormes, supra, 88 Cal.App.2d at page 359, 198 P.2d at page 694:

'* * *, nevertheless the trial court has discretionary power over cross-examination which will not be disturbed on appeal unless it appears that there has been an abuse of such discretionary power; that thus the trial court may confine an examination within reasonable limits, or may curtail a cross-examination which is unduly protracted, frivolous, or which relates to matters which are irrelevant, or have already been covered * * *.'

The examination relative to his parole status was improper. See People v. Hollander, 194 Cal.App.2d 386, at page 396, 14 Cal.Rptr. 917 at page 923, where the court said:

'It may be shown by the examination of a witness that he has been convicted of a felony, the number of felonies, and the names of them. [Citations.] In asking the questions the district attorney should not inquire into the details and circumstances of the offense. [Citations.] The objection to the question as to whether Gardner had served his entire time on the robbery conviction should have been sustained. The remainder of the examination with respect to Gardner's being on parole was improper.'

See also People v. Wynn, 44 Cal.App.2d 723, at page 732, 112 P.2d 979, at page 984:

'This line of inquiry went far beyond that allowed by law, for a cross-examiner's questions must be limited to the fact of conviction and the nature of the crime; he may not go into the details or circumstances surrounding the crime [citations]; and certainly the cross-examiner cannot delve into the question of the length of time served and conditions or circumstances surrounding the parole of a defendant. It would delie human experience and challenge common sense to say that such conduct was not prejudicial.'

See also People v. Jones, 204 Cal.App.2d 722, 727, 22 Cal.Rptr. 499.

Appellant's attorney did question Thompson as to whether he had received any benefits from the State Narcotics office and Thompson testified that he had not received any money or benefits, promises of immunity or promises of any kind from the prosecution, and the record shows that there were no charges pending or contemplated against the witness. Nor effort was made by appellant to show any contrary testimony otherwise, or inducements, and there was no undue curtailment of appellant's right of cross-examination by the court's sustaining the objection where the matter had been exhaustibly covered in prior questioning. (People v. Smith, 26 Cal.2d 854, 858, 161 P.2d 941.)

In the Smith case, supra, the court discusses 'state of mind' and 'no promises.'

In People v. Grayson, 172 Cal.App.2d 372, at pages 376-377, 341 P.2d 820, at page 823, the court set forth the proper method for showing motive to introduce such testimony of reward, and stated:

'However, the proper method of showing such motive would have been to establish that the witness had been promised a reward, or that an inducement or threat held out or made to him in return for testimony favorable to the prosecution motivated him to distort or falsify his testimony.'

The ruling of the trial judge sustaining objections to the types of questions quoted above did not exceed the bounds of sound discretion, nor did appellant suffer any prejudice by such rulings inasmuch as witness Thompson had admitted his arrest, conviction, possession and 'similar dealings' with Ray Rubalcava who is a known user, seller and buyer.

Restriction of Defense to Cross-Examination

The appellant further argues that he was limited in his cross-examination of the prosecution witness with respect to his motives, and in particular, concerning the testimony regarding Mr....