People v. Hernandez

• Decision Date: 18 June 1968
• Docket Number: Cr. 433
• Citation: 263 Cal.App.2d 242,69 Cal.Rptr. 448
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Salvador Phillip HERNANDEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 448

69 Cal.Rptr. 448

263 Cal.App.2d 242

PEOPLE of the State of California, Plaintiff and Respondent, v. Salvador Phillip HERNANDEZ, Defendant and Appellant.

Cr. 433.

Court of Appeal, Fifth District, California.

June 18, 1968.

[263 Cal.App.2d 246] George G. Walker, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Arnold O. Overoye, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

CONLEY, Presiding Justice.

The appellant, Salvador Phillip Hernandez, was jointly tried with one Felix Ochoa Lerma, Jr.; the charges were all related to the sale or possession of marijuana. After a lengthy trial, the appellant was convicted on count I of a violation of the Health and Safety Code, section 11532, to wit, sale of marijuana to a minor, alleged to have occurred on or about September 5, 1966; on count II of the sale of marijuana on or about October 14, 1966 (Health & Saf.Code, sec. 11531); on count III of the sale of the same forbidden substance to a minor on or about October 21, 1966; on count IV with the sale of marijuana to a minor on or about October 28, 1966; on count V with a violation of the same code section 11532 (sale of marijuana to a minor) on or about December 5, 1966; and on count VI with the sale of marijuana on or about December 5, 1966. This last conviction (count VI) was later set aside by the court. Counts VII through XV were directed against the codefendant, Felix Ochoa Lerma, Jr., and related also to violations by him of the Health and Safety Code. The appellant entered a plea of not guilty to all charges made against him. The trial started on June 6, 1967, and continued from day to day until June 14, 1967, when a continuance for one week was ordered by the court because of the death of the mother of one of the jurors. The trial resumed on June 21, 1967, and continued until June 24, 1967, when as heretofore stated Hernandez was found guilty on all counts. The motion for a new trial was denied and the appellant was sentenced to the state's prison for the term prescribed by law, all sentences to be served concurrently.

In this appeal, Hernandez has filed a most comprehensive set of briefs; in his opening brief, he specified 17 points for reversal, which proved to be actually 16 as his second point and his sixteenth seem to be identical. Notwithstanding these multiple claims, we find no ground to justify a reversal of the judgment.

The first ground specified for reversal is that the evidence is insufficient as a matter of law to warrant the conviction of the appellant, because the testimony of his young friends is the testimony of accomplices which is not supported by other evidence. This major contention fails because Langley and Hoshko were not accomplices as that term is defined under present California law. The argument that the buyer of a narcotic is an accomplice of the seller within the meaning of Penal Code, section 1111 is based largely upon the case of People v. Ramirez, 113 Cal.App.2d 842, 249 P.2d 307. In the opinion in that case, the Court of Appeal of the Second Appellate District held that the purchaser of a narcotic was an accomplice of the seller even though the applicable code section then read the same as at present. However, the case apparently stands alone in California; to the contrary, there are many cases which hold without equivocation that the purchaser of a narcotic cannot be prosecuted for the same offense as the seller and that, therefore, he is not an accomplice. (People v. Freytas, 157 Cal.App.2d 706, 713--715, 321 P.2d 782; People v. Lamb, 134 Cal.App.2d 582, 585--586, 285 P.2d 941; People v. Mimms, 110 Cal.App.2d 310, 314, 242 P.2d 331; People v. Stewart, 241 Cal.App.2d 509, 519, 50 Cal.Rptr. 630; People v. Candelario, 126 Cal.App.2d 408, 409, 272 P.2d 62; People v. Abair, 102 Cal.App.2d 765, 772--773, 228 P.2d 336; People v. Kinsley, 118 Cal.App. 593, 601, 5 P.2d 938.)

A different rule has been applied in federal prosecutions for the illegal sale of narcotics based upon the fact that there an accomplice is defined as one who knowingly and voluntarily cooperates with, aids, assists, advises or encourages another in the commission of a crime. (See Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321; Lett v. United States, 15 F.2d 686, 689; Egan v. United States, 52 App.D.C. 384, 287 F. 958, 964.) It is obvious that a purchaser of narcotics may be considered an accomplice under such a rule. A standard of this kind formerly obtained in state prosecutions in California (People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L.R.A.,N.S.,), but the present rule, which has been in effect since 1915 (Pen.Code, sec. 1111) established an entirely different test; under it the young men who purchased marijuana from the appellant could not be prosecuted for selling the forbidden narcotic to themselves. The case of Lisenba v. People of State of California, 314 U.S. 219, 227, 62 S.Ct. 280, 86 L.Ed. 166, makes it clear that the Fourteenth Amendment of the federal Constitution does not prevent a state court from construing and applying its own laws with respect to the evidence of accomplices. Therefore, the testimony of Langley and of Hoshko did not need independent evidence to support it in order to justify a conviction.

It is not urged that there is insufficient evidence if the witnesses who gave the principal evidence against appellant were not accomplices. It is perfectly obvious after perusing the 1342 pages contained in the reporter's transcript that the evidence is amply sufficient to warrant the conviction if the principal witnesses in favor of the state were not accomplices.

Generally speaking, the evidence showing the guilt of the appellant was given by Ronald Langley and Greg Hoshko. Ronald Langley was 20 years old at the time of the trial; he was then imprisoned in the Deuel Vocational Institute at Tracy after conviction of second degree burglary based upon the theft of money from a veterinary clinic. Incidentally, he has said that this stolen money was used by him to pay for marijuana previously bought from the codefendant, Lerma.

Langley testified that he first met appellant in December of 1965 or January of 1966 at the window manufacturing plant of Air Control, where both worked. Langley then resided in an apartment on West 28th Street in Merced with Gregory Hoshko and Jim Beardsley. The appellant, who was 24 years of age at the time of the trial, first visited in this jointly-leased apartment at the beginning of April 1966. He often bought beer for the occupants. Somewhat later the question of purchase of marijuana was brought up and the first conversation about it was guarded and discreet. The initial purchase of the forbidden weed occurred outside of the apartment at appellant's car in mid-July of 1966, and this sale was followed from time to time by other purchases of matchbox quantities; on several occasions, Langley, Hoshko and Beardsley smoked the marijuana which they bought under the 'G' Street bridge in Merced.

In August, Langley and Hoshko moved to an address on West 22nd Street in Merced where they lived for about one month. Langley was not there frequently, because he was traveling considerably in the Big Sur country, but he did see appellant at the new apartment a couple of times; he had appellant's telephone number and on at least one occasion bought a match box filled with marijuana from him; at that time, Langley saw the appellant in downtown Merced and asked him if he could get him some marijuana; the purchase was consummated at the apartment two days later. This sale was the basis of count I of the information.

Langley then went to work at Foster Farms about September 1, 1966; while he was employed there, Langley had an income of about $700 a month so that he was able to buy larger quantities than previously. Some of the purchases consisted of 'lids' of marijuana which contained five or six match boxes in a sandwich bag. Two specific instances of such purchases were testified to by Langley; they occurred on the first and second Tuesdays of October, which happened to be his paydays. On both occasions, he purchased 'lids' from appellant at the Corner Pocket Pool Hall in Merced pursuant to prearranged appointments. At the time of the second purchase there, Louis Lerma was with appellant and the 'lid' was obtained from a car which belonged to the codefendant, Phil Lerma. Louis Lerma and Sal Hernandez came over more than once to smoke marijuana with Langley at the East 22nd Street apartment.

Langley also recalled being present when purchases of marijuana were made on Fridays in October, or the first part of November, at the East 22nd Street apartment where Langley lived until about January 1, 1967. Fridays were paydays for Greg Hoshko so that the money expended at the apartment was usually Hoshko's. The purchases were made in the evenings at around six or seven o'clock after which a 'party' would follow.

Greg Hoshko testified, under the circumstances hereinafter referred to, that he and Langley lived together at the East 22nd Street apartment for several months. Hoshko was 20 years old in September 1966. He made a practice of purchasing marijuana every Friday in the month of October paying $20 or $25 per 'lid.' These Friday sales in October related to counts II, III, and IV of the information. In the months of October and November, 1966, Louis Lerma, the codefendant's brother began appearing at the apartment. At those times, telephone calls requesting marijuana would still be made to appellant Hernandez, but Louis Lerma would make the deliveries. Phil Lerma, the codefendant, began appearing with Louis around the first of December 1966.

During the last week in November, Louis Lerma asked Langley if he wanted to buy a large quantity of marijuana. This offer was made, according to Langley's memory, sometime between the 26th and the 30th of November; he fixed the approximate date by the fact that ...