People v. Horn

• Decision Date: 05 December 1960
• Docket Number: Cr. 3739
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene HORN, Defendant and Appellant.

Page 578

9 Cal.Rptr. 578

187 Cal.App.2d 68

PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene HORN, Defendant and Appellant.

Cr. 3739.

District Court of Appeal, First District, Division 1, California.

Dec. 5, 1960.

Rehearing Denied Dec. 23, 1960.

As Amended Jan. 3, 1961.

Hearing Denied Jan. 31, 1961.

James D. Hammond, Jr., San Francisco, under appointment of District Court of Appeal, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Joseph I. Kelly, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Under section 11557 of the Health and Safety Code the prohibition of unlawfully opening and maintaining 'any place for the purpose of unlawfully selling, giving away or using any narcotic' describes a 'purpose' which contemplates continuity in the pursuit of such objectives. In a prosecution for unlawful possession of narcotics in which appellant did not admit his knowledge of the narcotic nature of the substance, he may properly be questioned as to the facts of a former conviction, including the type of narcotic there involved. These, and related issues, we discuss infra.

Appellant appeals from conviction on two counts: violation of section 11500 (possession of a narcotic) and section 11557 (maintaining a place for selling, giving away, or using a narcotic) of the Health and Safety Code. The first count charged that on the 4th day of December, 1958, appellant 'did unlawfully have in his possession a narcotic * * *.' In its second count the information alleged that on the same day he 'did unlawfully open and maintain a place for the purpose of unalwfully selling, giving away, and using a narcotic.' After a jury trial, the court entered a judgment of conviction on both counts.

Appellant urges the following propositions on appeal: (1) the evidence was insufficient to support the conviction for violation of section 11557; (2) the court erred in requiring appellant, after prior truthful answers, to answer respondent's detailed inquiry regarding prior felony convictions; (3) the court erred in requiring appellant to answer respondent's inquiry whether appellant was, or ever had been, addicted to the use of narcotics; and (4) the court erred in admitting into evidence certain records of the San Francisco County Hospital. After briefly setting forth the facts, we shall analyze each of these contentions.

Police Officers Simpson and Christiansen, attached to the Bureau of Narcotics in the San Francisco Police Department, testified that they had maintained for about six weeks prior to December 4, 1958, a loose surveillance of the premises of an apartment at 977 Folsom Street, San Francisco. Since the middle of October this apartment had been rented to 'Mr. and Mrs. Horn.' On the evening of December 4, at about 11:15 P.M., the officers entered the apartment house and stationed themselves outside the door to Room No. 3, overhearing a conversation within the apartment and someone saying, 'Give me the next fix.'

The officers recognized that the statement contained a term used by narcotic addicts. They testified that they knocked on the door; someone from within asked who was there. Officer Christiansen answered, 'Tommy, from Oakland.' The officers heard movements within; they identified themselves as policemen, and they forced open the door. Inside the room they observed five or six people. Officer Simpson testified that appellant made his exit from the room through the front window.

According to the officers, they found several articles used to inject narcotics, including a spoon, moist cotton ball, three rubber finger stalls, three measuring spoons, a safety pin, matchbook covers rolled up in the form of a bindle, a hypodermic syringe and needle, and an empty bottle with a label reading 'methedrine.' They found no narcotics. A chemist testified that one spoon contained a residue of narcotics. The officers stated that an examination of the remaining occupants of the room indicated that, in the officers' opinion, the occupants had recently used a narcotic.

The officers made a search of all the hospitals in San Francisco, found appellant in the San Francisco County Hospital registered in the name of Cecil Shields, and later arrested him. After his arrest, on the way to the Hall of Justice, appellant told the officers that he had used the pseudonym because he did not 'want them to know who he was' and that he had jumped out the window 'to get away,' and that he had lost five spoons of heroin when he jumped. Over objection of appellant's counsel, the court admitted into evidence the records of San Francisco County Hospital regarding appellant as well as letters and envelopes addressed to, or mentioning the name of, appellant, which the officers found in the apartment.

Appellant's version of the facts consisted of testimony that on the evening of December 4, 1958, he went to visit friends living in the 1200 block of Pine Street, San Francisco. The friends were not home; appellant, in descending the steps in front of their house, fell and broke his heel. A friend drove him to the hospital where he registered under the name of Cecil Shields. Appellant denied having been at the apartment at 977 Folsom Street on the evening of December 4, 1958. According to appellant, the Folsom Street apartment was rented to Betty Jean Jones, a friend whom he sometimes visited.

On cross-examination the prosecutor questioned appellant regarding two prior felony convictions, one for burglary and one for the sale and possession of narcotics. He admitted both convictions. Then, over objection of defense counsel, the court required appellant to answer questions concerning his plea in the former case, the place of conviction, the narcotic involved and the Federal act violated. Again over objection, appellant, when asked if he was addicted to narcotics on December 4, 1958, or at any previous time, admitted taking the cure for a previous addiction.

We turn to the first position of appellant that the evidence does not sufficiently sustain a conviction under section 11557 since he did not 'open or maintain' the apartment for the prohibited purposes.

The statute provides that, 'It is unlawful to open or maintain any place for the purpose of unlawfully selling, giving away or using any narcotic.' The proscribed 'purpose' is one that contemplates a continuity of such unlawful usage; a single or isolated instance of the forbidden conduct does not suffice. Moreover, despite the prosecution's contrary argument, the requirement of a purpose for such sequential use is not limited to maintenance; it embraces both opening and maintenance. To 'open' the place for a single sale or use is no more covered by the statute than to maintain it for such singular purpose; the Legislature set up no such artificial distinction. It obviously condemned either opening or maintaining for the purpose of repetitious or successive unlawful conduct.

The extent of the prohibition in this respect is set forth in the decision of Justice Dooling in People v. Holland, 1958, 158 Cal.App.2d 583, 322 P.2d 983, which describes the required character of both the illicit 'opening' and 'maintaining' set forth in the statute. The only competent evidence introduced in that case revealed that on one occasion the police gave an informant money to buy narcotics from defendant, that the informant, while under the continuous surveillance of the police, went to the defendant's barbecue stand, talked to defendant, and returned with a package of narcotics and no money. The appellate court reversed the conviction for maintaining a place for the sale of narcotics in violation of section 11557, saying: 'There is no evidence that this barbecue stand was opened for the prohibited purpose. To constitute the offense of 'maintaining' there must be some purpose of continuity in the use of the place for the proscribed illegal conduct. * * * [E]vidence of a single, isolated instance of the sale of narcotics, standing alone, without any other corroborating circumstances of which the defendant is shown to have any knowledge, is not legally sufficient to prove that he was 'maintaining' the place at which the single sale was made for the purpose of selling narcotics.' 158 Cal.App.2d at pages 588-589, 322 P.2d at page 986.

Quoting from People v. Mehra, 1925, 73 Cal.App. 162, 238 P. 802, which involved the analogous situation of a conviction for maintaining a common nuisance under the Volstead Act, 27 U.S.C.A. the court in the Holland decision points out the criteria for determining continuity of use: "[T]here must be shown to establish the fact of maintaining a common nuisance, a series of sales or a single sale, accompanied by such attendant circumstances as reasonably raise the inference of the purpose for which the possession of the intoxicating liquor is had, or possession, in connection with surrounding circumstances, such as the large quantity of liquor on hand, the various kinds of liquor, the containers in which it is kept, the character of the place, the manner in which it is fitted up, the use of passwords in gaining access to the premises, evidence of people visiting the place in unusual numbers or at unusual times, all of which may reasonably raise the inference of a purpose to sell and sufficiently support the charge of maintaining a common nuisance." 158 Cal.App.2d at page 588, 322 P.2d at page 986. See also, People v. Calvert, 1926, 80 Cal.App. 50, 251 P. 244; People v. Cannon, 1957, 148 Cal.App.2d 163, 306 P.2d 589.

In this case appellant contends that respondent produced no substantial evidence indicating that the apartment was used for the selling, giving away or using of narcotics on any occasion other than December 4, 1958. The following facts, upon which respondent relies to establish the required continuity, fail to do so: (1) '[T]hat five of the occupants of the appellant's apartment were found with old and new needle marks on...