People v. Malloy

Decision Date20 September 1974
Docket NumberCr. 5871
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Charles Thomas MALLOY, Defendant and Appellant.
OPINION

TAMURA, Associate Justice.

On an information charging him with selling LSD in violation of Health and Safety Code section 11912 (now § 11379) and alleging a prior conviction for a violation of the same section, defendant pled not guilty and denied the prior. 1 Following a jury trial, he was found guilty as charged and the allegation of the prior was found to be true. Defendant was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

Viewing the evidence most favorable to the People, as we must on appellate review, we piece together the following narrative of events:

Defendant offered to sell 500 tabs of LSD to Willie Wisely on approximately January 1, 1972, but Wisely indicated that he did not have the funds with which to buy them. A few days later Wisely was arrested by the Huntington Beach police and agreed to assist them in the purchase of illegal narcotics. He phoned defendant on January 12, 1972 and asked if he still had some 'acid' for sale because his cousin wanted to purchase some. Defendant said he had 500 tabs for sale for $275. They agreed to meet at 2:30 that afternoon at a restaurant in La Habra to complete the transaction.

Before the officers left for the restaurant, Wisely was searched by state narcotics agent Fleischer to make sure he did not possess any narcotics. Agent Synicky witnessed the search. Synicky, Wisely and Patricia Gaston (a police woman) left for the restaurant in an unmarked state car. They arrived at 3 p.m. and, failing to find defendant, proceeded to an apartment on Bedford Avenue in La Habra, where Wisely had seen defendant on two previous occasions. They parked a few cars behind defendant's car on the street in front of the apartment. Miss Gaston waited in the car while Wisely and Synicky entered the apartment. Fleischer and Robert Moran (a Huntington Beach Police officer) observed the scene from a parking lot down the street.

There were about 13 persons in the apartment when Wisely and Synicky entered. Wisely asked where defendant was and was directed to a bedroom. When he and Synicky went to the bedroom, they observed defendant and others placing a white powder into gelatin capsules. Synicky asked if that was his acid. Defendant said, 'Oh, it's Willie,' and told them the powder was psilocybin. Wisely introduced Synicky as his cousin.

Defendant and Wisely discussed the sale of the LSD and walked out to defendant's car; Synicky followed them out and stood by the outside gate where he could observe the transaction; defendant opened the passenger door, reached into the center console and pulled out a cellophane baggie containing approximately 500 red and green tabs which he handed to Wisely, telling him to get the money for it from Synicky; Wisely then handed the baggie to Synicky and the three reentered the apartment; in response to Synicky's question of how much he wanted for the LSD, defendant said it would cost $275, but he told Synicky to deal through Wisely; Synicky asked him if he was sure there were 500 tabs and defendant said yes; defendant refused to deal with Synicky who finally dropped the money in front of him and left; the tabs were examined by a state chemist and were determined to be LSD.

In defense, defendant testified that Wisely offered to sell him LSD on approximately January 5, 1972; Wisely called him on January 12 and asked if he knew anyone who could sell him some LSD that same day Wisely came to the Bedford Street apartment where defendant was visiting and tried to sell him LSD; defendant went to his car to get some cigarettes. Defendant's friends who were at the Bedford Street apartment that day testified that Synicky had not followed defendant and Wisely to the car but had remained in the living room.

After the jury was instructed and sent out to deliberate, defendant asked permission to go to the cafeteria to get a coke. The judge consented, with the admonition that he come right back. He never returned. After making several inquiries, the judge determined that defendant had voluntarily absented himself from the trial. A bench warrant was issued and defendant was subsequently apprehended.

One of the defendant's major contentions on appeal consists of an attack upon the procedures followed in the court below in the proof of the prior conviction. The circumstances surrounding the proof of the prior were as follows:

On the first day of trial, the judge inquired of defense counsel prior to jury selection whether defendant desired to deny the prior, since if he did, the allegation would have to be read to the jury and would have a bearing on jury voir dire. Defense counsel said that for the time being defendant would deny the prior. When asked if there was a question of the constitutional validity of the prior, defense counsel stated that he did not know. However, he attacked the prior on the ground it was not a felony conviction and on the ground a subsequent amendment of the statute increasing the punishment for a second conviction was invalid. The contentions were rejected. At this point, the judge read the information to the jury panel, omitting, however, any reference to the prior.

Later that same day defense counsel informed the court he would advise defendant to admit the prior, but later reverted to his original position. The judge thereupon read to the jury panel the portion of the information charging the prior conviction and explained that defendant denied the prior.

At trial the People introduced certain documentary proof of the prior offense. 2 In addition, the People were permitted, over defendant's objections, to introduce agent Thompson's testimony describing the prior transaction, the drug purchased on that occasion, and the testimony of a chemist that the drug defendant sold to agent Thompson on the prior occasion was LSD. At the conclusion of Thompson's testimony, defense counsel moved to strike the testimony on the ground it was irrelevant and immaterial. The motion was denied.

On the fifth day of trial, defense counsel argued that the defendant's guilty plea to the prior offense was unconstitutionally obtained and that evidence of the prior should, therefore, be excluded. The judge denied defendant's request for a hearing on the subject inasmuch as proof of the prior had already been presented to the jury and the issue had not been timely raised. However, the judge reserved decision on defense counsel's motion for a mistrial on the ground the prior conviction was invalidly obtained. The next day, outside of the presence of the jury, the district attorney introduced into evidence a transcript of proceedings in the San Bernardino County Superior Court on January 12, 1970, showing that defendant was represented by counsel and was informed of and waived his constitutional rights before entering his plea of guilty to a violation of section 11912.

Defendant asserts that six errors were made by the court below: (1) The prosecution was improperly permitted to produce evidence of a prior felony conviction which defendant had admitted on the record; (2) proving the prior through testimony of the agent who purchased LSD from defendant and by the introduction of the LSD was improper; (3) the court erred in the procedure followed to determine the constitutional validity of the prior; (4) the court erred in receiving evidence that defendant had offered to sell LSD to Wisely on a previous occasion; (5) it was error to receive the jury verdict in defendant's absence; and (6) that portion of section 11912 precluding parole consideration for five years for second offenders is unconstitutional in that it constitutes cruel and unusual punishment.

I

Defendant asserts he admitted the charged prior conviction and, therefore, proof thereof should not have been received. The contention is devoid of merit.

Defense counsel changed his strategy several times as to whether defendant was admitting or denying the prior. On the opening day of trial he first indicated defendant would continue to deny the prior, then said he would admit it, and then interrupted the court's advisements to defendant in order to say he was advising defendant to deny it. On the fifth day of trial, after the district attorney had introduced evidence of the prior conviction, defense counsel urged that defendant had admitted the prior. The judge properly disagreed. In his argument to the jury, defense counsel conceded the People had proved the existence of the prior beyond a reasonable doubt.

We are satisfied the trial judge correctly determined that defendant never admitted the prior, forcing the People to prove its existence. The record reveals the judge made every effort to ascertain whether defendant desired to change his plea to the charged prior. In view of defense counsel's equivocations, the judge had no alternative but to assume that defendant stood on the denial entered at the time of his arraignment. A defendant's refusal to answer whether he admits a prior is equivalent to a denial. (Pen.Code, § 1025).

II

Defendant urges that the trial court erred in permitting the People, over his objections, to prove the prior by testimony of the narcotics agent describing the buy resulting in the prior conviction, by introduction of the drug purchased on that occasion, and by the chemist's testimony that the drug was LSD.

We have found no case passing upon the propriety of permitting the...

To continue reading

Request your trial
20 cases
  • People v. Dillon
    • United States
    • United States State Supreme Court (California)
    • September 1, 1983
    ...516, 533-538, 126 Cal.Rptr. 88; People v. Ruiz (1975) 49 Cal.App.3d 739, 745-748, 122 Cal.Rptr. 841; People v. Malloy (1974) 41 Cal.App.3d 944, 954-956, 116 Cal.Rptr. 592.) In two cases the courts struck down indeterminate life-maximum sentences as grossly disproportionate to the crimes. (P......
  • People v. Easley
    • United States
    • United States State Supreme Court (California)
    • December 10, 1982
    ...v. Vargas (1975) 53 Cal.App.3d 516, 126 Cal.Rptr. 88; People v. Ruiz (1975) 49 Cal.App.3d 739, 122 Cal.Rptr. 841; People v. Malloy (1974) 41 Cal.App.3d 944, 116 Cal.Rptr. 592.10 It is true that the issue of proportionality review is within the technical scope of the cause before this court ......
  • People v. Vargas, Cr. 13535
    • United States
    • California Court of Appeals
    • December 9, 1975
    ...in determining whether the absence was voluntary.' (36 Cal.App.3d at p. 385, 111 Cal.Rptr. at p. 412. See also People v. Malloy (1974) 41 Cal.App.3d 944, 954, 116 Cal.Rptr. 592; Taylor v. United States (1973) 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174, and Cureton v. United States (1968)......
  • People v. Castro, Cr. 23605
    • United States
    • United States State Supreme Court (California)
    • March 11, 1985
    .......         Thereafter, in recognition of the fact that no discretion is so unbounded that it cannot be abused (e.g. People v. Malloy" (1974) 41 Cal.App.3d 944, 952, 116 Cal.Rptr. 592), we handed down a series of decisions delineating the boundaries of permissible discretion. .   \xC2"......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT