People v. Gregg

• Decision Date: 04 October 1968
• Docket Number: Cr. 14295
• Citation: 266 Cal.App.2d 389,71 Cal.Rptr. 920
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Leo GREGG, Defendant and Appellant.

Page 920

71 Cal.Rptr. 920

266 Cal.App.2d 389

The PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Leo GREGG, Defendant and Appellant.

Cr. 14295.

Court of Appeal, Second District, Division 5, California.

Oct. 4, 1968.

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., John M. Huntington, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

Defendant was convicted of a violation of section 11501 of the Health and Safety Code--sale of heroin. Trial was to a jury.

The People's evidence showed that on August 30, 1966, defendant sold a quarter of a gram of heroin to Officer Rogers in room 29 of the Charles Hotel. According to Rogers' testimony, at the time of the sale defendant was injecting himself with what Rogers 'felt' was heroin. Defendant asked Rogers whether he wanted to use the 'outfit.' Rogers declined and left. Gregg was arrested two weeks later.

Defendant testified that on the day in question he did not have a room at the Charles Hotel, that he had never seen Officer Rogers and that he had never given the red balloon which had contained the heroin to Officer Rogers.

Defendant's direct testimony contained no claim of ignorance of the narcotic nature of heroin. (Cf. People v. Westek, 31 Cal.2d 469, 475--481, 190 P.2d 9.)

On cross-examination the prosecutor, without objection, ascertained that at the time of the alleged crime defendant 'might have been' using heroin 'off and on.' The following questions and answers were all admitted over repeated defense objections:

'Q This substance in the vial, what does it look like to you? * * * THE WITNESS: Well, I couldn't really tell. I would say it looks like it could be anything actually. Q BY MR. WEBB: Have you ever seen a substance like that before in a small balloon? * * * THE WITNESS: Yes. Q BY MR. WEBB: Heroin is packaged and sold in balloons of that size, isn't that correct? A Sometimes. * * *. Q BY MR. WEBB: In fact, you have bought it in that particular amount, packaged in a ballon, haven't you? * * * THE WITNESS: Yes. Q BY MR. WEBB: And in the amount shown there in that vial? A Yes. Q About how much, from your own experience, how much would that amount cost? * * * THE WITNESS: I would say at least $5. Q BY MR. WEBB: Would you say the amount in that balloon is about enough for one fix? * * * THE WITNESS: Well, I couldn't answer that your Honor, because, it's according to how strong it is. If that was pure, you couldn't shoot that much without passing out or something. Q BY MR. WEBB: Have you ever bought pure heroin in a small amount like that? * * * THE WITNESS: No.'

It was contended by the People at the trial and it is argued here that this evidence was admissible to show knowledge of the narcotic nature of the substance which Officer Rogers Claimed to have purchased. (People v. Soto, 245 Cal.App.2d 401, 53 Cal.Rptr. 832; People v. Horn, 187 Cal.App.2d 68, 75, 9 Cal.Rptr. 578.)

It is difficult to believe that there was any genuine issue of knowledge in this case. The jury would have had to do some rather peculiar fact finding if at the end of defendant's direct testimony it had believed beyond a reasonable doubt that defendant delivered the heroin to Rogers but did not know the narcotic nature of the contents of the balloon. Realistically, knowledge was a red herring. 'Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.' Thompson v. The King, (1918) App.C. 221, 232. (Italics added.) The sole effect of the cross-examination was to show a criminal disposition from which, in the eyes of the jury, it followed that Officer Rogers, rather than defendant, spoke the truth. Such reasoning is not permissible. (People v. Lapin, 138 Cal.App.2d 251, 259, 291 P.2d 575.)

The People are, of course, entitled to offer evidence on every issue in the case, but the notion that a plea of not guilty automatically entitles the prosecution to use evidence of other crimes to prove an element of the crime charged is incorrect and was recently disapproved by the Supreme Court in People v. Kelley, 66 Cal.2d 232, 57 Cal.Rptr. 363, 424 P.2d 947. Kelley was a prosecution for violations of sections 288 and 288a of the Penal Code--lewd or lascivious acts upon the body of a child under 14 and sex perversion. The question was whether evidence of oral intercourse with adults ¹ was properly admitted. Relying on statements in People v. Honaker, 205 Cal.App.2d 243, 244, 22 Cal.Rptr. 829 and People v. Malloy, 199 Cal.App.2d 219, 232--233, 18 Cal.Rptr. 545, 554, ² the People argued that the evidence in question showed that defendant obtained gratification through oral copulation which bore upon the question of intent. The court did not agree and specifically disapproved Honaker and Malloy in that respect: '* * * It is not and should not be the law, however, that defendant's not guilty plea places his intent in issue so that proof of sex offenses with others is Always admissible. Such evidence is admissible in cases where the proof of defendant's intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident. (People v. Westek, supra, 31 Cal.2d 469, 480--481, 190 P.2d 9; People v. Honaker, supra, 205 Cal.App.2d 243, 22 Cal.Rptr. 829.) But where the acts, if committed, indisputably show an evil intent and the defendant does not specifically raise the issue of intent, the better reasoned cases hold that evidence of other crimes is admissible only when they were performed with the prosecuting witness (People v. Sylvia, supra, 54 Cal.2d 115, 4 Cal.Rptr. 509, 351 P.2d 781), or where the offenses are not too remote and are similar to the offense charged and are committed with persons similar to the prosecuting witness. Then they are admissible as showing a common scheme or plan. (People v. Malloy, supra, 199 Cal.App.2d 219, 18 Cal.Rptr. 545; People v. Honaker, supra, 205 Cal.App.2d 243, 22 Cal.Rptr. 829.)' (Ibid., 66 Cal.2d pp. 242--243, 57 Cal.Rptr. p. 372, 424 P.2d p. 956.)

There is of course no question of a 'common scheme or plan' in this case.

In Kelley the Supreme Court also noted that California law concerning the admissibility of other sex offenses to prove intent was 'not altogether clear' and in a state of 'some confusion.'

We find the law similarly confused when we turn from sex and intent to drugs and knowledge. There are a number of cases which permit evidence of other narcotic offenses on the question of knowledge in the absence of a genuine issue on that point. Typical is People v. Tabb, 137 Cal.App.2d 167, 289 P.2d 858. In Tabb a state agent was introduced to defendant by an informer. Defendant was told that the agent wanted to buy marijuana. Defendant named a price. Defendant made two unsuccessful attempts to obtain marijuana. The next day the agent met defendant again. This time he handed the agent a paper bag and asked him if he wanted to see whether 'it' was any good. The agent looked into the bag and saw marijuana. At the trial defendant denied any contact with the agent before his preliminary hearing and denied all of the incidents to which the agent had testified. He admitted knowing the informer and knowing that he was an addict. Evidence of prior acquaintance with marijuana was held to have been properly admitted because 'one element of the offense to be proved by the prosecution was appellant's knowledge that the substance which he dealt with was a narcotic * * *' (Ibid., p. 171, 289 P.2d p. 861.)

Tabb does not stand alone. Other cases where it would be difficult to argue that a real issue of knowledge was involved are People v. Sykes, 44 Cal.2d 166, 171, ³ 280 P.2d 769; People v. Ochoa, 118 Cal.App.2d 566, 569, 258 P.2d 104; People v. Rodriquez, 135 Cal.App.2d 757, 760, 288 P.2d 147; People v. Horn, 187 Cal.App.2d 68, 9 Cal.Rptr. 578, and People v. Griffin, 209 Cal.App.2d 557, 562, 26 Cal.Rptr. 311. We do not claim that the list is exhaustive.

Some of these cases are perhaps distinguishable on various grounds. ⁴ We will not attempt to do so because side by side with them there developed a line of decisions which pressaged the analytical approach of People v. Kelley, supra. Shortly after Tabb, division one of this court decided People v. Lapin, 138 Cal.App.2d 251, 291 P.2d 575. In Lapin, as here, there was no real issue of knowledge if the prosecution evidence was believed, but the Poeple were permitted to prove an old narcotics violation to show knowledge. The court said: 'It is of course true, that in a prosecution such as the one now before us, one of the facts of which an accused must have knowledge is that the article is a narcotic, because that is the essential fact, which brings the act within the provisions of the applicable code section. However, in the instant case there was never any contention raised by appellant to the effect that while he possessed the forbidden weed he did not know it was marijuana. It is noteworthy that in the cases relied upon by respondent, it was the accused who, while admitting possession of the contraband, disclaimed any knowledge of its narcotic character. In the case now engaging our attention there was no claim of possession with lack of knowledge that the articles were narcotics. The sole issue involved was whether appellant was in possession of the marijuana in question, so all that evidence of the prior offense could prove was that defendant was more likely...