People v. McLean
| Decision Date | 07 March 1961 |
| Docket Number | Cr. 3794 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred S. McLEAN, Defendant and Appellant. |
Glenn West, Jr., San Francisco, for appellant (under appointment by the District Court of Appeal).
Stanley Mosk, Atty. Gen., Arlo E. Smith and John S. McInerny, Deputy Attys. Gen., for respondent.
Defendant appeals from a judgment, after jury verdict of guilty of violation of sections 11714 () and 11530 (possession of marijuana) of the Health and Safety Code, and from the order denying new trial. * Two charges of prior felony convictions were found true by the jury.
Questions Presented. 1. Sufficiency of evidence. 2. Was the seizure unlawful? 3. Was election of offenses required? 4. Alleged misconduct of district attorney. 5. Were defendant's prior convictions felonies? 6. Denial of motion for new trial.
Evidence.
Michele, the prosecutrix, was a 16-year old high school junior. Defendant was a jazz musician. Michele's testimony follows: The two first met in the latter part of 1958 at the Black Hawk Night Club. In early 1959 she again saw him there. They left there together about 7 p. m., had something to eat and went to defendant's apartment, arriving there about 9 p. m. Defendant gave Michele a marijuana cigarette which they both smoked. They had sexual relations. In February or March of 1959 Michele and her mother went to a night club called 'Mr. Smith's.' About 10:30 the mother left. At that time Michele was seated at a table with defendant. Michele accepted defendant's invitation to his apartment, arriving there about midnight. He again gave her a marijuana cigarette which they both smoked. Again they had sexual relations. Prior to meeting defendant Michele had never used marijuana, but subsequently and prior to the trial she had used it six or seven times and was familiar with its effects.
On July 11, defendant was arrested. He then admitted that he had used narcotics at one time some years prior. He said he knew Michele but denied furnishing her any narcotic or of having sexual relations with her. When asked if he had any narcotics in the apartment he told the officer, 'Take a look.' A search produced some match boxes, bottles and vials containing a total of approximately 456 grains of marijuana. Defendant denied any knowledge of this marijuana and said that it must have been left by friends.
Defendant was the only defense witness. He said he first met Michele during the late fall of 1958 when she was in a car with mutual friends outside a jazz spot. He saw her at various places subsequent to that time, but they had been alone on only one occasion. That was in March, 1959, when she came to his apartment to try out as a singer with his orchestra. She arrived about 6 p. m. and left about an hour later. Michele had mentioned the subject of marijuana and said some of her friends used it. He saw her at 'Mr. Smith's' with her mother in May or June, but denied taking her to his apartment. He once told her that she was not ready to become a professional singer. She became angry with him and hung up the phone. When the police came to his apartment he admitted knowing Michele but denied their accusations concerning his conduct with her. When the police showed him the marijuana they found in his apartment he told them it looked like marijuana but he knew nothing about its presence there. He had many visitors to his apartment, mostly musicians, and since he lived there he had lost several keys to the apartment. He admitted being convicted about 10 years prior of a narcotics charge in the federal court, but claimed he had not used narcotics since.
Defendant's main contention is that Michele was not competent to give expert testimony, i. e., she was not sufficiently expert in the field of marijuana smoking to give the only evidence in the case that it was marijuana that was furnished her. Her only contact with the drug was that she had smoked it about seven times.
People v. Rios, 127 Cal.App.2d 620, 622, 274 P.2d 163, 164. Ordinarily the character of a narcotic is proved by a trained expert who has made a chemical analysis. But as said in People v. Candalaria, 1953, 121 Cal.App.2d 686, 689, 264 P.2d 71, 72, It is true that the number of times Michele had used the narcotic is less than that of any of the prosecuting witnesses in the reported cases in this state. However, we cannot say that that number of times was not sufficient to qualify Michele to testify concerning the character of the substance she smoked, or that the court abused its discretion in letting her testimony go to the jury. The weight to be given it was for the jury. People v. Candalaria, supra, 121 Cal.App.2d at page 690, 264 P.2d at page 73; People v. Winston, 1956, 46 Cal.2d 151, 156, 293 P.2d 40. The fact that she testified that the cigarettes smelled 'sweet' like 'incense' and that the only sensation she received from them was a feeling of being 'happy' or of feeling 'good' while the state narcotic chemist testified that marijuana smells acrid or like burning leaves, as well as the contradictions in her testimony, were likewise matters for the jury to consider. While, of course, it would be much more satisfactory to have had a portion of the cigarettes given her by defendant for analysis, persons supplying marijuana cigarettes to others, and particularly to minors, generally do not leave any portion of them available for evidence. Nor is the fact that Michele's sensations, as described by her resulting from the smoking of the cigarettes, were not as exhilarating as those described in two medical articles referred to by defendant, enough for us to hold that the court erred in submitting the case to the jury.
The arresting officers testified that they had a warrant issued against the defendant under the name 'Scotty Lane.' One of the officers testified that he had heard of defendant prior to his arrest under that name and that several persons had identified defendant by that name. Defendant contends that the warrant was void because it was issued in a fictitious name (see Fricke, California Criminal Procedure, 5th ed., 1959, p. 23), and therefore the officers had no right to search defendant's apartment. Hence the seizure of the marijuana there was illegal. However, as Scotty Lane was a name used by defendant, it was not a fictitious name. The warrant was not void. Defendant complains of the testimony of Officer Logan to the effect that at the time he executed the warrant he asked defendant if his name was Scotty Lane, and defendant replied that he used that name when he played as a musician. This evidence was competent to explain the name in the warrant. Moreover, the question of whether the warrant was valid is moot. Defendant admitted that he told the officers when they asked if he had any narcotics on the premises, to go ahead and look. Applicable here is People v. Burke, 47 Cal.,2d 45, 49, 301 P.2d 241, 243: 'It was not necessary here, however, for the People to show that the search and seizure were reasonable as incident to a proper arrest, for they showed that defendant freely consented to the search of his apartment which disclosed the evidence which defendant has since claimed was illegally obtained.'
The count of the indictment charging defendant with furnishing a narcotic to Michele, charged it occurred 'on or about the 1st day of December, 1958 * * *'
Ordinarily, proof of two crimes cannot be offered where only one crime is charged, unless there is an election of which offense is relied on. (See 26 Cal.Jur.2d 597, 598.) However, in the absence of a demand by defendant that the prosecution elect, the first offense upon which evidence is introduced will be deemed to be the one upon which the prosecution relies. People v. Byrnes, 1948, 84 Cal.App.2d 64, 70-71, 190 P.2d 286; People v. Powell, 1949, 34 Cal.2d 196, 208 P.2d 974.
After Michele testified that she had met defendant three times, she started to describe what had transpired on the third meeting. Defendant then objected on the grounds of insufficient foundation and further on the ground that the indictment related to an offense on December 1, 1958. The district attorney pointed out that the indictment said 'on or about' December 1, and the objection was overruled.
When Michele started to testify as to her second meeting with defendant, objection was made on the ground that such testimony would be 'incompetent, irrelevant, and immaterial * * *'
Just prior to commencing cross-examination of Michele, the defendant moved the court to strike all of her testimony on the ground that 'there has been a variance between the proof and the pleading, the indictment, and upon the further grounds that the evidence of other crimes would be incompetent, irrelevant and immaterial; and upon the further grounds that the statements and conclusions of this witness were without sufficient foundation and that they were based purely on conjecture of this witness.'
As the defense did not make a demand for an election and in view of People v. Byrnes, supra, 84 Cal.App.2d 64, 190 P.2d 286, it will be presumed that the prosecution relied upon the charge as to which it first submitted evidence.
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