People v. Gonzales

• Decision Date: 17 May 1968
• Docket Number: Cr. 2850
• Citation: 68 Cal.Rptr. 578,262 Cal.App.2d 286
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Angel Bernardo GONZALES, Defendant and Appellant.

Page 578

68 Cal.Rptr. 578

262 Cal.App.2d 286

The PEOPLE of the State of California, Plaintiff and Respondent, v. Angel Bernardo GONZALES, Defendant and Appellant.

Cr. 2850.

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

May 17, 1968.

[262 Cal.App.2d 287] Fred E. Corbin, San Diego, for appellant.

Thomas C. Lynch, Atty. Gen., Sacramento, for defendant.

OPINION

GERALD BROWN, Presiding Justice.

Angel Bernardo Gonzales appeals from a marijuana possession judgment of conviction (Health & Saf. Code, § 11530).

At 11:15 p.m., August 19, 1966, in Kate Sessions park in the hills above Pacific Beach, where it is unlawful to camp overnight, San Diego Police Officers Hartman and Grigsby came upon a camper vehicle and a 1953 Chevrolet parked side by side about 10 feet apart; watched three to five persons, one a male wearing white levis, leave the camper and move between it and the Chevrolet; parked at the rear of the camper; from outside looked through the camper's open rear door, seeing dark fluid in a gallon jug on a table inside; approached the Chevrolet; and, asked the occupants, three females and Gonzales wearing white levis, to identify themselves and get out of the Chevrolet. From the front seat, two females complied. From the rear seat, one female got out and walked over to the front of the camper. Gonzales got out from the rear seat; walked over to a side walk; stood there for about ten seconds facing away from officers and vehicles; and, moved over to the front of the camper. The front end of the Chevrolet cut the officers view to Gonzales above the waist while he stood on the sidewalk. Checking up on Gonzales, Hartman found a wax paper bag containing marijuana near the sidewalk where Gonzales had stood. The officers then arrested Gonzales, warning him as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Camper owner Roberts consented to search of the camper. Inside, the officers found marijuana seeds and a marijuana tea pot. Gonzales' shirt pocket contained marijuana debris.

Arguing evidence the trial court rejected, Gonzales contends the trial court improperly admitted into evidence the wax paper bag containing marijuana, asserting the officers did not have probable cause to arrest and search before finding the bag. The officers, however, found the bag without conducting a search. They did not need probable cause to pick the bag up from near the sidewalk. Before finding the bag, the officers merely and properly asked for identification and asked the car's occupants to get out. (See People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706.)

The trial court admitted into evidence the marijuana seeds and marijuana tea pot found in the camper. Asserting the trial court admitted this evidence solely against co-defendant Roberts, Gonzales claims prejudice. The Attorney General responds arguing it must be assumed the jury followed the trial court's instruction to consider the evidence solely against Roberts, citing People v. Foote, 48 Cal.2d 20, 23, 306 P.2d 803; People v. Dabb, 32 Cal.2d 491, 499, 197 P.2d 1. The trial court instructed:

'In the trial of this case certain evidence was admitted as against one of the defendants but denied admission as against the other. At the time this evidence was received, you were admonished it could not be considered by you as against the other defendant in deciding his innocence or guilt.

'You are again instructed that you must not consider such evidence against the other defendant.'

The record indicates fifteen exhibits were marked, fourteen received into evidence. Of these, only the marijuana debris from defendants' pockets was admitted solely against a particular defendant. The trial court admitted the evidence found in the camper against both Roberts and Gonzales. This was proper. The jury was entitled to find Gonzales, wearing his white levis, when aware the police were arriving, left the camper where he had been jointly possessing marijuana.

The trial court admitted evidence showing about September 22, 1966, Gonzales committed narcotics offenses not charged here. Deputy district attorney John Roche offered the evidence to prove Gonzales knew the narcotic nature of marijuana. In People v. Kelley, 66 Cal.2d 232, 238--239, 57 Cal.Rptr. 363, 369, 424 P.2d 947, 953, the California Supreme Court discussed the admissibility of other offenses:

'The general rule is that evidence of other crimes is inadmissible when it is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged, because the probative value of such evidence is outweighed by its prejudicial effect. (Citations.) The purpose of the rule is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as promote judicial efficiency by restricting proof of extraneous crimes. (Citations.)

'However, under certain limited circumstances, when the evidence is sufficiently relevant, it may be admitted even though it embraces evidence of...