People v. Gonzales

• Court: California Court of Appeals
• Writing for the Court: SHOEMAKER; KAUFMAN, P. J., and DRAPER
• Citation: People v. Gonzales, 186 Cal.App.2d 79, 8 Cal.Rptr. 704 (Cal. App. 1960)
• Decision Date: 03 November 1960
• Docket Number: Cr. 3772
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David GONZALES, Defendant and Appellant.

Page 704

8 Cal.Rptr. 704

186 Cal.App.2d 79

PEOPLE of the State of California, Plaintiff and Respondent, v. David GONZALES, Defendant and Appellant.

Cr. 3772.

District Court of Appeal, First District, Division 2, California.

Nov. 3, 1960.

Cominos & Shostak, Salinas, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, John S. McInerny, Deputy Attys. Gen., for respondent.

SHOEMAKER, Justice.

Defendant was charged by information with (1) a violation of Health and Safety Code, § 11530 (possession of marijuana on July 25, 1959) and (2) violation of Health and Safety Code section 11531 (sale of marijuana on July 25, 1959). A jury found defendant guilty as charged and judgment was entered sentencing defendant to the State prison. A motion for new trial was denied as to both counts. Defendant appeals from the judgment and from the order denying his motion for a new trial.

The facts developed on the trial were that in July of 1959 the State Bureau of Narcotic Enforcement together with local police were conducting a narcotics investigation in the Salinas area. State Agent Sutton was told by two informers, Alex Carillo and Rafael Carillo, that the defendant was dealing in narcotics; the police added he had engaged in the narcotic traffic in the past and that they had information during regular police work that he was operating again. On July 25, 1959 at the Salinas Police Station, Agent Sutton gave the informer Alex Carillo a skin search, which consists of stripping off all the clothing and then examining the same for narcotics and other contraband. After ascertaining that the clothes did not contain any such articles, the informer was then given two marked one dollar bills, their serial numbers being noted. The agent and informant then drove to the premises in Salinas where the defendant was living Sutton kept the informant and the house under observation from his car at a distance of about 25 yards. The informer went into the yard, spoke to the defendant's aunt, came no closer than four or five feet to her, and then went into the house in which the defendant resided. The informer entered the unlocked door of the defendant's house without knocking. After entering the house, the informant was not seen by Agent Sutton again until he came out of it approximately five minutes later when he immediately returned to the car and handed the agent two marijuana cigarettes. The agent and informer then returned to the police station and after another skin search, which proved the clothing to be free of narcotics and money, the informer was left at the station and Sutton returned to the house with three other agents. About 15 minutes had elapsed since the informer returned to the auto from defendant's premises with the cigarettes and without the marked money. Agent Sutton entered the house first and did so without a search warrant. The defendant was found alone in the house in bed. He was awake and appeared to have just aroused. Sutton turned over the pillow on the bed and, as the informant had told him, found the two marked dollar bills and eight marijuana cigarettes.

Defendant took the stand and on direct examination admitted his residence on the premises but denied seeing the informant on July 25, making any sale to him of marijuana cigarettes or of possessing any marijuana at all on said date. He further testified that at the time he retired there were no cigarettes or money under his pillow and he did not know how they got there, that he knew the informant, had grown up with him and had worked with him. On cross-examination he said the first time he saw the cigarettes or money was when the officer turned over the pillow, that he did not tell the officer the cigarettes and money were his and that the officer never asked him if they were his property. Later on in the examination in response to the question 'You didn't deny they weren't yours, or anything of that nature?' defendant replied 'No, I didn't. I did tell him they weren't mine when he asked me, but I told him they weren't mine,' which led the district attorney to ask 'Just a second ago you said the officer never asked you whose cigarettes those were. Now you are saying he did ask you? A. Yes, he asked me in a certain way. He said to me, he said 'Is that yours?' I told him no.'

A consideration of these facts shows that this case clearly is governed by the authority of People v. Scott, 1959, 170 Cal.App.2d 446, 339 P.2d 162 and People v. Mateo, 1959, 171 Cal.App.2d 850, 341 P.2d 768 wherein convictions as to sale were sustained even though the sale to the informant was not observed by the officers but where the time the informant was absent from view was short and there were no others present who could have supplied the narcotics.

Thus defendant's contention that there was a gap in the chain of evidence as to the sale and hence his conviction must be set aside, necessarily fails. He relies on People v. Barnett, 1953, 118 Cal.App.2d 336, 257 P.2d 1041; People v. Lawrence, 1959, 168 Cal.App.2d 510, 336 P.2d 189; and People v. Morgan, 1958, 157 Cal.App.2d 756, 321 P.2d 873 and urges their applicability here. These cases wer have discussed and distinguished in People v. Scott, supra, commencing at page 454 of 170 Cal.App.2d, at page 167 of 339 P.2d. Defendant also relies on People v. Fernandez, 1959, 172 Cal.App.2d 747, 342 P.2d 309 decided subsequently to the above cited cases, as determinative of his appeal. This case does not help defendant, for in it the judgment of conviction as to the sale was affirmed under conditions we find similar to the present case.

Defendant also contends that since the evidence relied upon to sustain his conviction for illegal possession...