People v. Gonzales

• Citation: 439 P.2d 655,67 Cal.Rptr. 551,68 Cal.2d 467
• Decision Date: 19 April 1968
• Docket Number: Cr. 11354
• Court: United States State Supreme Court (California)
• Parties: , 439 P.2d 655 The PEOPLE, Plaintiff and Respondent, v. Alfred GONZALES, Defendant and Appellant.

Page 551

67 Cal.Rptr. 551

68 Cal.2d 467, 439 P.2d 655

The PEOPLE, Plaintiff and Respondent, v. Alfred GONZALES, Defendant and Appellant.

Cr. 11354.

Supreme Court of California In Bank.

April 19, 1968.

Rehearing Denied May 15, 1968.

Alfred Gonzales, in pro. per.

Lemaire, Mohi, Morales & Dumas and Frank C. Morales, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Associate Justice.

An information was filed charging Alfred Gonzales with selling heroin (Health & Saf.Code, § 11501) and a prior conviction of possession of narcotics (Health & Saf.Code, § 11500). He admitted the prior conviction. A mistrial was declared when the jury became deadlocked, but at the second trial the jury found defendant guilty of the offense charged. Thereafter, on June 15, 1965, a motion for a new trial was denied.

On the same date criminal proceedings were adjourned, and proceedings were instituted pursuant to former section 6451 of the Penal Code (now Welf. & Inst.Code, § 3051) to determine whether defendant was addicted to the use of narcotics or in imminent danger of becoming so addicted. He apparently was committed as a narcotics addict and was thereafter returned from the narcotics rehabilitation facility. On January 25, 1966, judgment of conviction was entered sentencing him to prison for the term prescribed by law. He appeals from the January 25, 1966, judgment, contending that the court erred in admitting certain evidence and in not complying with the jury's request to have specified testimony read.

As a preliminary matter, it is necessary to consider whether defendant is barred from now raising the claims of error by failing to appeal from the order denying his motion for a new trial. It is undisputed that he did not appeal from that order, and the Attorney General asserts that, since the claims of error could have been raised on such an appeal, defendant is precluded from now raising them. We do not agree.

Penal Code section 1237 provides: 'An appeal may be taken by the defendant: 1. From a final judgment of conviction * * *; a sentence or an order granting probation shall be deemed to be a final judgment within the meaning of this section; Upon appeal from a final judgment the court may review any order denying a motion for a new trial, except when an appeal from an order denying a motion for a new trial has previously been finally determined in cases where the defendant has been committed for sexual psychopathy, insanity, or narcotics addiction. 2. From an order denying a motion for a new trial, in cases where the defendant is committed before final judgment for sexual psychopathy, insanity, or narcotics addition. Such an appeal shall be dismissed if while it is pending an appeal is taken under subdivision 1. * * *' (Italics added.)

Here under subdivision 2 after his commitment for narcotics addiction defendant could have appealed from the order denying his motion for a new trial. ¹ It is apparent from the language of the section, however, that his failure to do so does not bar him from raising the claims of error on his present appeal under subdivision 1. The italicized clause in subdivision 1 unmistakably shows that upon an appeal from a final judgment the court may review an order denying a motion for a new trial where, as here, the case does not come within the exception specified in that clause and there is but one final judgment within the meaning of the section. It is likewise apparent from the italicized sentence in subdivision 2 that the same issues that can be raised on an appeal taken under subdivision 2 can be raised on an appeal taken under subdivision 1. Otherwise there would be no reason to require dismissal of an appeal taken under subdivision 2 if while it is pending an appeal is taken under subdivision 1.

Cases such as People v. Chavez, 243 Cal.App.2d 761, 763, 52 Cal.Rptr. 633; People v. Howard, 239 Cal.App.2d 75, 77, 48 Cal.Rptr. 443; People v. Glaser, 238 Cal.App.2d 819, 821, 48 Cal.Rptr. 427; and People v. Wilkins, 169 Cal.App.2d 27, 32, 336 P.2d 540, differ from the present one. In the cited cases the defendant was placed on probation after proceedings were suspended, no appeal was taken from the order granting probation, but thereafter when probation was revoked and sentence imposed the defendant appealed from the judgment. The cases state that on such an appeal the general rule is that the defendant's failure to appeal from the order granting probation estops him from claiming error with respect to matters occurring before that order, and review on appeal is restricted to the proceedings in connection with the revocation of probation and sentencing. Those cases are not analogous to the instant one because section 1237 contains substantially different provisions governing the two situations.

The failure here to present the claims of error on appeal at the first opportunity to do so created dangers that witnesses might disappear or their memories fade should a retrial be necessary. Those same dangers exist where a defendant delays in moving for a new trial. Under Penal Code section 1182 a defendant can move for a new trial long after his commitment for narcotics addiction so long as the motion is made before judgment or an order granting probation. (Cf. Thurmond v. Superior Court, 49 Cal.2d 17, 19 et seq., 314 P.2d 6) The dangers caused by either type delay were and continue to be matters for the Legislature to consider; however, under Penal Code section 1237, as it now reads, defendant is not barred from raising the claims of error on this appeal. To hold otherwise would create a trap foreclosing an appeal on the merits.

The evidence may be summarized as follows: Around 2:35 p.m. on December 29, 1964, a named informer, in the presence of Police Officer Richard Meraz, telephoned Dodie's Bar in Los Angeles from a market a few blocks away. The informer, after asking to speak to Alfred, stated, 'Hello, Alfred, I want to buy two quarts of paint. * * * It is okay if you are with your old lady, and I am at the market. I will see you in about ten minutes.'

At the approximate time of the telephone call Police Officer John Hanks saw a man whom he believed to be defendant leave Dodie's Bar and drive off in a blue Corvair. A few minutes later Officer Meraz, who was sitting in his car at the market parking lot, observed defendant arrive there in a blue Corvair and watched the informer go over to the Corvair, hand defendant some money, and receive in exchange a balloon, the contents of which later were determined to be heroin. Meraz then saw defendant drive away. Other officers gave testimony tending to corroborate Meraz's observations. A few minutes after the heroin sale the police arrested defendant at Dodie's Bar.

Defendant presented the defense of alibi.

Testimony of Officer Meraz regarding the contents of the recited telephone conversation was admitted over objections on the ground of hearsay and lack of proof that defendant had any connection with the conversation, and defendant contends that the court thereby erred. However, the testimony was offered merely to show that the conversation was held and not to prove the truth of the matters asserted. The court thus did not err in overruling the hearsay objection. (Rogers v. Superior Court, 46 Cal.2d 3, 8, 291 P.2d 929; People v. King, 218 Cal.App.2d 602, 609--610, 32 Cal.Rptr. 479; People v. Dalton, 172 Cal.App.2d 15, 18--19, 341 P.2d 793.) Defendant's connection with the conversation is shown by evidence that at the approximate time of the conversation he left the bar, met the informer by the market, and sold him heroin.

There is likewise no merit to defendant's claim that the court erred in overruling an objection, based on the opinion rule, to testimony of Officer Hanks regarding the identity of the man who left the bar. (See former § 1870, subd. 9, of Code Civ.Proc.; ² Holland v. Zollner, 102 Cal. 633, 637--639, 36 P. 930, 37 P. 231; Witkin, Cal.Evidence (1966) pp. 352--353.) Hanks testified that in his opinion the man he saw leave the bar was defendant, that clothing and specified characteristics of the man appeared to be the same as those of defendant, but that Hanks did not see the facial characteristics of the man and could not positively identify defendant as the man. Lack of positiveness as to the man's identity went to the weight and not to the competency of the evidence. (People v. Avery, 35 Cal.2d 487, 492, 218 P.2d 527; People v. Abner, 209 Cal.App.2d 484, 491, 25 Cal.Rptr. 882; People v. Harris, 87 Cal.App.2d 818, 821--823, 198 P.2d 60.)

After deliberating several hours, the jury returned to the courtroom about 3:30 p.m. and requested that the information and certain testimony of Officers Meraz and Hanks be read. The court read the information but advised the jury that the court reporter could not have his notes available until the next morning. The court also stated that it would be unfair for the jury to take the attitude that, since the testimony might be unavailable until the next day, they would terminate their deliberations one way or the other without it; that the jury could not be released until the verdict was reached; that they could deliberate further that afternoon, but that, if it was impossible to do so until the testimony was available, they could stop deliberating until the next morning; and that they should consult each other as to what they wished to do. The jury thereupon retired and 15 minutes later returned and stated that they had arrived at their verdict. The guilty verdict was then read.

It thus appears that before the court was able to fulfill the request the jury...