People v. Jackson

• Decision Date: 05 November 1958
• Citation: 164 Cal.App.2d 772,331 P.2d 218
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Louis A. JACKSON, Defendant and Appellant. Crim. 3507.

Page 218

331 P.2d 218

164 Cal.App.2d 772

PEOPLE of the State of California, Plaintiff and Respondent, v. Louis A. JACKSON, Defendant and Appellant.

Crim. 3507.

District Court of Appeal, First District, Division 2, California.

Nov. 5, 1958.

Rehearing Denied Dec. 5, 1958.

Hearing Denied Dec. 30, 1958.

Patrick J. Kearns, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

MARTINELLI, Justice pro tem.

The defendant was charged by an information cast in four counts, two counts charging separate sales of marijuana and two counts charging possession of marijuana. There were verdicts of guilty on all four counts. A motion for a new trial and a motion for probation were denied on December 31, 1957, and at this time, on motion of the deputy district attorney, the two possession counts were dismissed. Defendant appeals from the judgment and from the order denying the motion for a new trial.

The evidence showed that Robert Henson was employed by the District Attorney of San Mateo County as a special undercover narcotics agent. Appellant was contacted by Henson for the purpose of arranging the purchase of marijuana cigarettes, and on September 17, 1957, Henson purchased 15 marijuana cigarettes from appellant. On September 26, 1957, appellant asked Henson whether he wished to buy more marijuana and on September 28, 1957, Henson purchased 15 marijuana cigarettes from appellant.

On October 15, 1957, appellant was arrested. Inspector Lamport, Chief Inspector of the San Mateo County District Attorney, after qualifying as an expert, was permitted to testify that at the time appellant was questioned after his arrest, he was under the influence of marijuana. No marijuana was found in appellant's possession when he was arrested.

When informed that he was being arrested for possession and selling of narcotics, appellant laughed, and when asked if he made a sale to Henson, he replied 'that's ridiculous.' Appellant testified and admitted knowing Henson but denied the sale and possession charges.

On appeal it is contended that there was prejudicial error committed 1) by the admission of inconsistent and irrelevant evidence, 2) by the giving and the failure to give certain instructions, 3) by the misconduct of the prosecutor.

1. Appellant first contends that it was prejudicial error to permit Inspector Lamport to testify that a narcotics problem existed in San Mateo County and specifically in the East Palo Alto area, a negro district. Upon objection the court ruled that this testimony was preliminary to show the necessity of hiring Henson and was to be admitted 'for that purpose only.' Thereafter no further objections were made to this line of testimony.

While this evidence was irrelevant to the issue of appellant's innocence or guilt and the reason or necessity for employing Henson was not in issue, there was no prejudicial error. Since appellant's counsel pursued the issue of Henson's employment for the purpose of discrediting him and since he argued this point to the jury, the right to raise this question on appeal was waived. People v. Coontz, 119 Cal.App.2d 276, 280, 259 P.2d 694. At any rate the testimony was admitted for a limited purpose and the jury was instructed that they should not be influenced by passion or prejudice against appellant, and it must be assumed that the jury heeded the instruction. People v. Lamendola, 119 Cal.App.2d 570, 572, 259 P.2d 982.

Appellant complains that irrelevant and prejudicial evidence was admitted to establish his alleged interest in white women.

Henson was asked several questions about his conversations with appellant. The question was asked, 'Well, would you tell us what was said regarding, very briefly, generally regarding women?' No objection was made until the witness answered that appellant had asked him to 'pick' him some white women. Upon objection the court agreed that the testimony was irrelevant and prejudicial. No motion to strike was made. Other testimony by Henson concerning this subject was in response to general questions as to what occurred at his meetings with appellant. When objections were made the court sustained them and in one instance struck the testimony. After the court's ruling the prosecutor attempted to restrict the witness' answers to conversations regarding narcotics in words no less clear than 'Stay away from that subject, just on the narcotics.' The Reporter's Transcript reveals other instances in which reference to 'women' was had, without objection or motion to strike. Testimony concerning women' was elicited by defense counsel without motion to strike. The district attorney mentioned 'women' in his closing argument in the absence of objection or assignment.

The prosecutor attempted to elicit from another witness whether appellant had discussed women but upon objection the witness was not permitted to answer. Appellant was also asked whether he discussed girls with Henson but no objection was made.

Since the evidence was not admitted this contention is not valid, particularly since there was no motion to strike the testimony. People v. Lawrence, 143 Cal. 148, 156, 76 P. 893, 68 L.R.A. 193; People v. Close, 154 Cal.App.2d 545, 551, 316 P.2d 1019; People v. Simon, 107 Cal.App.2d 105, 236 P.2d 855. The jury was instructed that they could not consider evidence that had been rejected.

Appellant's contention that the prosecutor was guilty of misconduct 'through his own behavior and through the behavior and evidence of two prosecution witnesses' again raises the issue of the prejudicial effect of this testimony. He asserts that the prosecutor elicited the testimony knowingly and wilfully for the sole purpose of degrading the witness. People v. Anthony, 185 Cal. 152, 196 P. 47, is cited, where the court held that improper questions by the district attorney constituted prejudicial error even though objections to the questions were sustained and the court promptly instructed the jury to disregard the question.

Although appellant chooses to infer a motive on the part of the prosecution to degrade him, it is an equally reasonable inference that the prosecution considered the evidence to be relevant and that when the court ruled against its admissibility he complied with this ruling. The Reporter's Transcript indeed reveals that the district attorney, during the discussion between court and counsel concerning the subject of women, stated 'We will tie it in with the marijuana, I believe.' The district attorney's pursuit of the relationship between 'women' and marijuana terminated with an objection sustained and a striking (without motion) of the testimony. At any rate the alleged misconduct could have been obviated by an assignment of error and an appropriate instruction. Since there was no assignment of misconduct and no request for an instruction the alleged misconduct cannot be taken advantage of for the first time on appeal. People v. Byrd, 42 Cal.2d 200, 208, 266 P.2d 505; People v. Simpson, 43 Cal.2d 553, 275 P.2d 31.

Appellant contends that it was error to admit evidence to show that appellant was under the influence of marijuana at the time of his arrest. The arrest was made 17 days after the alleged commission of the second sale charged. Upon objection to this testimony the court admitted it for the purpose of indicating knowledge. Appellant's counsel then stated that the defense did not 'consist in any way of lack of intent or lack of knowledge.' It is argued that this was a stipulation that intent, motive and knowledge were not in issue and, therefore, the evidence was irrelevant and prejudicial.

There is no question that knowledge of the narcotic character of the substance is an essential element of the violation of the narcotics code. People v. Winston, 46 Cal.2d 151, 293 P.2d 40; People v. Gory, 28 Cal.2d 450, 170 P.2d 433. In People v. Spencer, 140 Cal.App.2d 97, 294 P.2d 997, 1002, the trial court had instructed the jury that evidence of a prior misdemeanor narcotics violation was admissible to establish knowledge of the narcotic nature of the drug alleged to have been possessed. This court held that since defendant was not advancing the defense that he was not acquainted with hereoin, the risk of the jury's misuse of the evidence 'should not be incurred if the evidence is not directed to a disputed issue in the case.'

The instant case can be distinguished from the Spencer case in that not only was the purported stipulation not a direct admission of knowledge of marijuana, but also there was a specific denial by appellant of such knowledge. Although the actual issue being tried was whether or not the alleged crimes were committed by appellant, this specific denial made knowledge of marijuana an issue, and it was incumbent on the State to show appellant's knowledge.

The possession and sales charged were observed only by the undercover agent, and the verdict was thus dependent on whose testimony the jury believed, Henson's or appellant's. Therefore the evidence that appellant was under the influence of marijuana was potentially damaging to appellant and incurred a risk that the jury might misuse such evidence. 'Where evidence is properly admissible for a limited purpose only the courts recognize the danger that it may be improperly considered by the jury for other purposes [citation] but that is a risk which must ordinarily be taken if the evidence is admissible for some purpose, and a cautionary instruction limiting its use to the proper purpose is all the protection that the party can be given under the circumstances.' People v. Spencer, 140 Cal.App.2d 97, 104, 294 P.2d 997. The instruction given in the instant case adequately limits the use of this evidence.

The court instructed that this evidence was received for a limited purpose only, 'Not to prove distinct offenses or continual criminality * * *,' and that the evidence...