People v. Gurrola

• Court: California Court of Appeals
• Writing for the Court: SCHOTTKY; PIERCE, P. J., and FRIEDMAN
• Citation: People v. Gurrola, 32 Cal.Rptr. 368, 218 Cal.App.2d 349 (Cal. App. 1963)
• Decision Date: 16 July 1963
• Docket Number: Cr. 3434
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert GURROLA, Defendant and Appellant.

Page 368

32 Cal.Rptr. 368

218 Cal.App.2d 349

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert GURROLA, Defendant and Appellant.

Cr. 3434.

District Court of Appeal, Third District, California.

July 16, 1963.

Bill Holden, Sacramento, under appointment by Third District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Edward Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

SCHOTTKY, Justice.

Albert Gurrola was convicted by a jury of driving a vehicle upon a public highway while under the influence of narcotics (Veh.Code, sec. 23105) and of transportation of a narcotic (heroin) (Health & Saf.Code, sec. 11501). He has appealed from the judgment, the sentence, and from the order of the court denying his motion for a new trial. The sentence and the order being nonappealable the purported appeal therefrom is hereby dismissed.

Appellant makes a number of contentions but before discussing them we shall give a brief summary of the evidence as shown by the record.

About 6 p. m. on the evening of July 5, 1962, Officer Richard Henry Marty of the California Highway Patrol saw a 1956 Buick automobile being driven in an erratic manner on El Camino Avenue in Sacramento County. After a short pursuit the driver of the Buick, appellant Albert Gurrola, stopped his car. Gurrola appeared to be extremely nervous. He had not been drinking. The officer called for other police officers to come to his assistance. After the other officers arrived the Buick automobile was searched with Gurrola's consent. A brown paper bag was found under the front seat of the car. It contained 17 rubber balloons and one contraceptive device, each of which contained a powdery substance, later determined to be heroin. While the car was being searched, Gurrola ran from the scene. He was apprehended and taken to the sheriff's office where Gurrola in a conversation with Hubert Ray Sutton, a special agent of the California Bureau of Narcotic Enforcement, admitted that he had used narcotics in the past but asserted he had not recently.

The testimony of Agent Sutton which was given at the preliminary examination was read to the jury. (Sutton was deceased at the time of the trial.) Sutton examined Gurrola's eyes with a flashlight about 8 p. m., and according to his testimony both of the eyes failed to react to light--both pupils were frozen. He also saw fresh needle marks on the 'inner left elbow.' Sutton also examined Gurrola's pupils about 11 p. m., and this time he got a very slight reaction. Gurrola appeared to Sutton to be in a 'physical condition of other addicts that I have known in the past that were coming out from under the influence of use of narcotics of heroin.' It was Sutton's opinion that Gurrola was under the influence of narcotics both times he examined him.

Gurrola testified in his own behalf. He admitted that he had used narcotics in the past but denied recent use of narcotics. He disclaimed ownership or knowledge of the bag containing the heroin which was found in his car.

Other evidence will be referred to in the course of this opinion.

Appellant's first contention is that the state did not prove appellant was driving on a highway while under the influence of narcotics as required by section 23105 of the Vehicle Code. This contention is devoid of merit. The term 'highway' includes a street. (Veh.Code, sec. 360.) A street is a way or place of whatever nature, publicly maintained and open to the use of the public for the purposes of vehicular traffic. (Veh.Code, sec. 590.) The courts in this state have taken judicial notice of matters of common knowledge within the jurisdiction which are certain and indisputable. (People v. Tossetti, 107 Cal.App. 7, 289 P. 881; Varcoe v. Lee, 180 Cal. 338, 181 P. 223; People v. Kutz, 187 Cal.App.2d 431, 9 Cal.Rptr. 626.) It is a matter of common knowledge that El Camino Avenue is a public street, and the trial court could take judicial notice of that fact.

Appellant contends also that it was improper to obtain a conviction under section 11501 of the Health & Safety Code for transportation unless it were shown that the fact of transportation was linked to some other aspect of the crimes mentioned in the section. The section reads in part:

'Except as otherwise provided in this division, every person who transports, imports into this State, sells, furnishes, administers or gives away, or offers to transport, import into this State, sell, furnish, administer, or give away, or attempts to import into this State or transport any narcotic other than marijuana except upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this State shall be punished by imprisonment in the state prison from five years to life, and shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than three years in prison.'

This contention cannot be sustained. The prohibitions in the statute are in the disjunctive and not in the conjunctive. The statute clearly makes transportation a crime. In People v. Watkins, 96 Cal.App.2d 74, 76-77, 214 P.2d 414, the court in affirming a conviction for transportation of marijuana under former section 11500 of the Health and Safety Code recognized transportation as a separate crime. (See also People v. Coleman, 100 Cal.App.2d 797, 224 P.2d 837.)

A conviction for transportation of heroin pursuant to the present section 11501 of the Health and Safety Code was sustained in People v. Burke, 208 A.C.A. 166, 24 Cal.Rptr. 912, where appellant contended that at most possession of narcotics was shown (Health & Saf.Code, sec. 11500) and not transportation (sec. 11501).

Appellant contends also that it was error to permit Sutton, the narcotics agent, to give his opinion that appellant was under the influence of narcotics, or to give his opinion that appellant exhibited physical symptoms similar to those of a person withdrawing from narcotics. Sutton had been a narcotics agent for four years during which period he had examined many narcotic addicts. In his work he had come in contact with narcotic users, addicts, purchasers and peddlers. He had observed people in all stages of being under the influence of narcotics.

There is no rigid classification of expert and nonexpert witnesses. Expert witnesses do not have to be professional men. (3 Witkin, Cal.Evidence, sec. 188, p. 207.) Any person who has the requisite knowledge or skill may be qualified as an expert. It may be a police officer in a narcotic case. (People v. Flynn, 166 Cal.App.2d 501, 333 P.2d 37.)

The law is clear that the trial court determines the competency and qualifications of an expert witness. Its ruling will not be disturbed on appeal unless a manifest abuse of that discretion clearly appears. (People v. Flynn, supra, 509; Huffman v. Lindquist, 37 Cal.2d 465, 476-477, 234 P.2d 34, 29 A.L.R.2d 485; People v. Clemmons, 208 A.C.A. 756, 761, 25 Cal.Rptr. 467; People v. Mack, 169 Cal.App.2d 825, 830, 338 P.2d 25.)

In People v. Hernandez, 188 Cal.App.2d 248, at page 250, 10 Cal.Rptr. 267, at page 268, the court states as follows:

'In ruling upon the qualifications of a witness who is called to give expert testimony, the court enjoys a broad discretion. 19 Cal.Jur.2d, § 296, p. 23. In the two months the officer had lived with narcotics addicts he had an unusually good opportunity to observe the objective manifestations of the use of narcotics and by his training and experience was shown to be sufficiently qualified. (See People v. Mack, 169 Cal.App.2d 825 [338 P.2d 25].)'

We are satisfied that the court did not err in admitting the testimony of Agent Sutton. Furthermore, Dr. McIntosh, who was experienced in the examination and treatment of narcotic users, stated in response to a hypothetical question in which appellant's symptoms were described that such a person would be under the influence of narcotics.

There is no merit in appellant's contention that he was prejudiced by being subjected to prolonged cross-examination as to his prior use of narcotics. He did on direct examination admit prior use. He denied recent use, denied knowledge of the heroin packets, and testified that he had never seen balloons containing narcotics. The extent of cross-examination rests largely in the sound discretion of the trial judge. (See McLaughlin v. Municipal Court of Roxbury Dist., 308 Mass. 397, 32 N.E.2d 266, 270; People v. Morlock, 46 Cal.2d 141, 292 P.2d 897; 3 Wigmore on Evidence (3d ed. 1940) p. 149, sec. 783.)

In the case at bench appellant admitted on the stand the prior use of narcotics during three periods between 1952 and 1959. This testimony of appellant was relevant as tending to overcome his assertion that he was not aware that heroin was under the front seat of his vehicle or that he knew its narcotic nature.

It was therefore proper to cross-examine appellant as to his prior use of narcotics. Furthermore, this examination was proper to attack appellant's credibility as appellant asserted he had not used narcotics since 1960, that he had never seen such a substance, and that he had never seen balloons containing narcotics.

Appellant contends also that People's Exhibit No. 1, the heroin found in his automobile, was in the possession of the officers as a result of an unlawful search and seizure. This contention is without merit.

Appellant did not object to the admission of the heroin into evidence on the ground of illegal search and seizure, but the objection was merely that there was 'no evidence to sustain the fact that there was constant possession of these objects, the necessary link of chain of possession is missing.' The law is clear that where no question of search and seizure was raised in the trial court the appellant cannot raise it for the first time on appeal. (People v. Prado, 190 Cal.App.2d 374, 12 Cal.Rptr. 141...