People v. Lopez

• Decision Date: 08 March 1963
• Docket Number: Cr. 8145
• Citation: 28 Cal.Rptr. 912,213 Cal.App.2d 668
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Gonzales LOPEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 912

28 Cal.Rptr. 912

213 Cal.App.2d 668

The PEOPLE, Plaintiff and Respondent, v. Joseph Gonzales LOPEZ, Defendant and Appellant.

Cr. 8145.

District Court of Appeal, Second District, Division 3, California.

March 8, 1963.

Hearing Denied May 1, 1963.

Herbert E. Selwyn, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Stanley X. Cook, Deputy Atty. Gen., for respondent.

FORD, Justice.

By an indictment the defendant Lopez was accused of the crime of violation of section 11503 of the Health and Safety Code. ¹ It was also alleged that at a time prior to that offense he had been convicted of the crime of violation of section 11500 of the Health and Safety Code, a misdemeanor. In a jury trial, in which he was represented by a deputy public defender, he was found guilty. At the time set for the imposition of judgment the allegation as to the prior offense was found to be true. His motion for a new trial was denied. Probation was denied and he was sentenced to the state prison. The appeal is from the order denying the motion for a new trial and from the judgment.

Evidence which gave support to the case of the People will be stated. Milton J. Reade, a deputy sheriff for the County of Los Angeles who was assigned to the narcotics detail, testified that he was introduced to the defendant by an informant on February 4, 1961. The defendant said he wanted the witness and the informant to 'go in partnerships' with him in the purchase of a kilo of marijuana. The three men were to meet again at the same location at 7 o'clock in the evening. At the time set the meeting was held. The three men then went to another location. The defendant told the informant to bring the money and the witness gave the informant $45. The defendant and the informant then departed. Later the informant returned. But the defendant did not come back to the place where the witness, Officer Reade, was waiting for him and the witness was unable to locate him that evening. Officer Reade never received any marijuana from the defendant.

The officer next saw the defendant Lopez on February 23, 1961, at which time Lopez was with the codefendant Ortiz. The defendant Lopez said that he would make restitution of the witness' money or he would have the narcotics for him on the following day, February 24, 1961. The witness asked Lopez if the person accompanying him (another deputy sheriff) could purchase a 'gram.' ² Lopez replied that the only possible source of which he knew was in Sun Valley and that a gram would cost $25. The officers entered Lopez' automobile and the four men drove to several places. Thereafter a conversation occurred which Officer Reade related as follows: 'A. The defendant Lopez then stated, 'If you guys really want to score, come back tonight about seven. I won't be here, but Oscar will,' indicating the defendant Ortiz. At this time we had driven back by the defendant Lopez--we had been driven back by him to the vicinity of Kewen and Kalisher, and at this time the defendant Ortiz stated, 'Be sure you're here at seven. I'll have the stuff on me. I'll be here for sure.' I then asked the defendant Ortiz, 'What do they call you, so we can ask for you?' He said, 'They call me Oscar, but I'll be here'.'

At approximately 7:05 o'clock that evening the officers returned to the designated location and met Ortiz, who said: 'I've got it with me. The guy with the money follow me.' Officer Reade went to a point about 50 feet from his automobile and Ortiz 'exhibited ten number 5 gelatin capsules containing a whitish powder, contained in a yellowish tissue piece of paper.' The officer gave Ortiz $25 and received the capsules.

Martin Klein, a forensic chemist employed by the Sheriff of the County of Los Angeles, testified that he examined the contents of each of the ten small gelatin capsules. His opinion was that the white powder in each of the capsules contained a derivative of barbituric acid, probably sodium pentobarbital. The powder was not opium or a derivative of opium.

The defendant Lopez testified in his own behalf. He admitted that he saw Officer Reade on an occasion which was about the early part of February 1961. Approximately two or three weeks later he again saw him. The officer said that he wanted to purchase a gram of heroin and the defendant Lopez replied that he did not know anyone who had heroin. The two men, together with Ortiz and the other officer, went in an automobile driven by Lopez to another location. A stop was made and Lopez and Ortiz left the car and later returned. But the defendant Lopez never told the officers to come back later in the evening and he would see that they were 'taken care of.' On cross-examination he said that he knew what heroin was.

The codefendant Ortiz was a witness in his own defense. The first time he saw the officers was on February 23, 1961, an occasion when he was with Lopez. The four men drove to Sun Valley and parked. He and Lopez left the automobile and later returned. Nothing was said about narcotics. A week or so later Officer Reade came to his house, pretending that he was sick and saying that he needed a 'fix' and wanted to 'score.' He asked Ortiz to sell him some heroin. Ortiz told him he was 'not involved in narcotics,' but he did give him 10 sleeping pills. Ortiz testified that he had learned the terms 'fix' and 'score' from personal experience. He had found the pills or capsules in a restroom of a theater. The capsules were white in color and looked like the capsules which had been received in evidence. They were wrapped in tissue paper. He showed them to a friend who 'was on narcotics, too.' The friend opened one and tasted the substance and then said that he thought they were 'sleeping pills or pain pills.' Ortiz further testified that his personal belief was that the capsules did not contain heroin. He also testified as follows: 'Q. Now, you have seen capsules with heroin before, haven't you? A. Yes, sir. Q. They look like those caps there, don't they? A. Well, I never could tell the size of the capsules. I don't know their numbers, or anything like that. Could be a little bit bigger, or a little bit smaller. Q. Those look like they might be a capsule with heroin in it, isn't that right? A. Well, with the powder in it, yeah. Q. Do you remember ever seeing anything else in a capsule like that, white powder? A. What do you mean? Q. Did you ever see another capsule like that, with a white powder in it, except heroin, and those before you? A. Well, I seen them like that, too. Q. What did they have in them? A. Well, barbiturates; something like that. * * * Q. You have never seen a barbiturate in a white capsule, have you? A. Yes, I have. Q. When? A. When? Well, a lot of times.'

The defendant Lopez contends that the evidence was insufficient to support the conviction because it was not shown that the substance sold was not a narcotic. But there is no merit in that contention. The forensic chemist testified that it was a derivative of barbituric acid. Such a substance is not within the definition of 'narcotics' contained in section 11001 of the Health and Safety Code which governs the interpretation of section 11503 of the same code. Rather, it is a hypnotic drug within the definition of a 'dangerous drug' found in section 4211 of the Business and Professions Code. (See Garner v. Texas State Board of Pharmacy, Tex.Civ.App., 304 S.W.2d 530, 534; People on Complaint of Benedetto v. Wittpen, 190 Misc. 565, 75 N.Y.S.2d 670, 671.)

The assertion that the evidence was insufficient to support the conviction is also placed on the ground that there was a lack of evidence that the defendant Lopez knew the nature of the substance in the capsules which Officer Reade testified he received from Ortiz. From the resume of the testimony of Ortiz hereinabove set forth it is clear that if Ortiz delivered the capsules to Officer Reade, which we must assume the jury believed he did, then it was a reasonable inference that Ortiz was well aware that the substance he was delivering was not the narcotic, heroin, which Lopez had told the officer would be delivered by Ortiz. There was evidence that Lopez personally participated in the arrangement for the sale and delivery of the heroin and was acting in concert with Ortiz. It was not necessary to show by direct evidence that he was aware of the true nature of the transaction; that matter could be established by circumstantial evidence, as was done in the present case. (See People v. Robarge, 151 Cal.App.2d 660, 668, 312 P.2d 70; People v. Lunbeck, 146 Cal.App.2d 539, 541, 303 P.2d 1082.) Because of his participation in the matter, the defendant Lopez was liable as a principal even though he was not present at the time Ortiz delivered the capsules and received the money from the officer. (Pen.Code, § 31; see People v. Koomer, 188 Cal.App.2d 676, 680, 10 Cal.Rptr. 607; People v. Dalton, 172 Cal.App.2d 15, 21, 341 P.2d 793.)

The defendant Lopez contends that the trial court committed error in giving instructions to the jury relating to the subject of statements made by a defendant because such instructions were inapplicable to any evidence received as to Lopez. ³ He argues that 'the effect of the instructions would, in all probability, be to confuse the jury into thinking that there were confessions or admissions or other statements made in which appellant implicated himself in the commission of [the] offense.' However, the instructions were correct statements of law applicable to the evidence of statements made by the codefendant Ortiz ⁴ and the record does not disclose that the defendant Lopez requested that the instructions be limited or clarified in any way, as he might have done in the trial court. (See People v. Robinson, 180 Cal.App.2d 745, 752, 4 Cal.Rptr. 679.) The defendant Lopez has failed to show any prejudice suffered by him arising from the criticized instructions and, therefore, his...