People v. Justice

• Decision Date: 05 February 1959
• Docket Number: Cr. 6103
• Citation: 167 Cal.App.2d 616,334 P.2d 1031
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert JUSTICE, Defendant and Appellant.

Page 1031

334 P.2d 1031

167 Cal.App.2d 616

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert JUSTICE, Defendant and Appellant.

Cr. 6103.

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

Feb. 5, 1959.

Hearing Denied April 1, 1959.

Claude Vibart Worrell, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was convicted of two counts of selling heroin to Joseph A. Brown in violation of Section 11500, Health and Safety Code, and sentenced to the state prison. He appeals therefrom, contending that the evidence is insufficient to support the judgment; Brown's testimony was 'untrustworthy' and 'perjurious' and therefore 'not competent'; at the preliminary hearing the court denied him the right to learn the name of the informant; and two unreported conferences at the bench deprived him of due process of law.

Although, in connection with the first two contentions, he declares the reporter's transcript to be 'replete with contradictions, changed testimony and explanations thereof' and that Brown's testimony varied considerably from that given at the preliminary hearing, appellant seeks to avoid his responsibility of supporting his allegations with references to the record, by stating without further argument '(t)hese instances are so numerous that only a complete reading of Brown's testimony would satisfy the appellant (sic) contentions, hence no referrals to specific pages of the Reporter's Transcript.' Of course, such a method of proceeding on appeal is wholly inadequate for not only has appellant failed to comply with Rule 15(a), Rules on Appeal, requiring '(T)he statement of any matter in the record shall be supported by appropriate reference to the record,' but he has ignored the general rule that the burden is upon appellant to point out any alleged error. As stated by the court in People v. Goodall, 104 Cal.App.2d 242, at page 249, 231 P.2d 119, at page 123: 'It is the duty of the defendants to show error, and that means defendants are under an affirmative duty in that respect. It is not proper to attempt to shift that burden upon the court or respondent. People v. Shafer, 101 Cal.App.2d 54, 224 P.2d 778; People v. Daniels, 85 Cal.App.2d 182, 185, 192 P.2d 788.' In neither his so-called 'Statement of Fact,' nor his argument supporting his first two contentions has appellant made any specific reference to the record either by page or line. He has failed to point out the alleged conflict in the testimony upon which he relies; in what manner the evidence was not substantial to support the judgment; and in what particular the evidence was insufficient to sustain the verdict. In the absence of any such showing, we must assume there is sufficient substantial evidence to support the conviction on both counts. 'His failure to specify the prejudicial feature of the evidence must be taken to mean that there is none. (People v. Britton, 6 Cal.2d 10, 13 (56 P.2d 491); People v. Hermes, 73 Cal.App.2d 947, 950 (168 P.2d 44).)' People v. Shafer, 101 Cal.App.2d 54, 61, 224 P.2d 778, 782.

Although it would appear from appellant's own 'Statement of Fact' that there is ample evidence to sustain the conviction, we nevertheless have carefully examined the record and, in particular, the testimony of Joseph A. Brown, and viewing the evidence in the light most favorable to respondent, we find more than sufficient substantial evidence to support the jury's verdict.

In connection with Count 1, on September 26, 1956, Joseph A. Brown, a sheriff's undercover operator, had a conversation concerning a narcotics purchase with one Hattie Jackson in the vicinity of a cafe on 103rd street. Thereafter, he left the location and returned 3 1/2 hours later where he saw Hattie and the defendant drive by in an automobile driven by the latter. Defendant stopped the car and Hattie walked over to Brown, who was standing on the sidewalk, where they again discussed a purchase of narcotics. Brown gave her $14 to give to defendant for a $15 paper of heroin. During this time defendant drove around the block and when he returned, Hattie got back into the car and drove away with him, leaving Brown standing on the corner. Less than ten minutes later, they returned in the car and stopped near Brown, who walked over to the driver's side. Hattie introduced him to the defendant saying, 'This is Robert, he is a connection.' Defendant then, saying he would sell Brown this time but in the future it would cost him $15, handed a paper of white powder, later identified by a forensic chemist to be heroin, to Hattie, who handed it to Brown. Hattie then got out of the car and stood with Brown in the street where they again engaged in a conversation. Defendant drove away.

Sheriff's deputy Stameisen kept Brown under surveillance on that day and saw him with Hattie. Fifteen minutes later he saw them standing next to an old model brown Chevrolet talking to defendant who was seated in the car.

As to Count 2, on December 11, 1956, Brown and an informant, Willis Tucker, were seated in an automobile. At 3:30 p. m., Brown saw defendant on foot. They got out of their car and walked over to him. Defendant asked him who he was and Brown responded that his name was 'Buba.' Defendant admonished Tucker he should know better than to bring strangers to him for he did not do business with strangers. Defendant told Brown to give his money to Tucker, and he gave him $20. Then defendant and Tucker walked down the street alone and Brown saw Tucker hand defendant the money. They stopped walking, talked, and then defendant made a motion to his mouth and passed an object therefrom to Tucker, who made a motion toward his mouth, and left the defendant. He walked back to Brown and took from his mouth two balloons, containing what was later identified as heroin, and handed them to him.

Sheriff's deputy Caraway, who kept Brown under surveillance on this day, watched him in the company of defendant and another male negro.

On December 13, 1956, by prearrangement with defendant, Brown met him and a third party. Defendant drove them in his car around Watts for about 5 minutes during which defendant asked Brown his identity, where he lived, whom he knew who sold narcotics, and to show him the needle marks he was supposed to have. Brown was evasive and defendant told him he believed him to be the 'heat' (police), and pushing an open knife blade, 3 or 4 inches long, against his side, threatened that if he was, he would 'cut him damn guts out.' Brown convinced him he was not the 'heat' and after telling him that all he wanted to do was buy dope and not get killed, he got out of defendant's automobile and walked away.

On his defense, defendant testified he managed an auto wrecking yard and had owned no brown Chevrolet. He denied knowing Hattie, seeing Brown on September 26, 1956, or that he handled narcotics at any time. He admitted knowing Willis Tucker since Jr. High School, and said he saw him on December 11 with Brown. At one time in his testimony he said he had not seen Tucker for two or three years prior, but at another place therein, he said he had seen him 7 or 8 weeks before. He admitted Tucker asked him where he could buy some dope, but he said he did not know; and that he walked down the street with him but did not receive money from him, or sell or give him narcotics. Defendant testified he saw Brown on December 13 and rode with him and one Price, but not through prearrangement; that they talked about narcotics, but he told them he had no connection with them; that he pulled the knife because, after swearing and arguing, Brown put his hands in his pocket, and he was afraid that he, like all narcotic addicts, was desperate.

As the alleged incompetency of Brown's testimony, appellant's contention that it 'could be considered perjurious and appellant so contends that it is. This testimony so taints the trail (sic) as to render the same void,' constitutes his entire argument on that point, with the exception of the citation of 'Alcorta v. Texas (1957) 354 U.S.----' ^* which has no application. No so-called contradictions, inconsistencies or variations in Brown's testimony have been called to our attention. We again refer appellant to the general rule set forth in People v. Daniels, 85 Cal.App.2d 182, at page 185, 192 P.2d 788, at page 789: '* * * it is the duty of the appellant to show error, and that means he is under an affirmative duty in that respect. It is not proper to attempt to shift the burden upon the respondent, and the latter is under no duty to assume the burden of demonstrating that the judgments are supported in the absence of a proper attack upon them. * * * However, having carefully examined Joseph Brown's testimony, we find nothing inherently improbable or apparently false about it and perceive no reason why it was not competent. As was said in People v. Thomas, 103 Cal.App.2d 669, at page 672, 229 P.2d 836, at page 838: 'It was the function of the trial court, not this court, to resolve inconsistencies and contradictions, if any, in the testimony of Bennett. The trier of fact may believe and accept a portion of the testimony of a witness and...