People v. Montalvo

• Decision Date: 19 March 1971
• Docket Number: Cr. 14978
• Court: California Supreme Court
• Parties: , 482 P.2d 205, 49 A.L.R.3d 518 The PEOPLE, Plaintiff and Respondent, v. Harold Reyes MONTALVO, Defendant and Appellant.

Page 581

93 Cal.Rptr. 581

4 Cal.3d 328, 482 P.2d 205, 49 A.L.R.3d 518

The PEOPLE, Plaintiff and Respondent, v. Harold Reyes MONTALVO, Defendant and Appellant.

Cr. 14978.

Supreme Court of California,

In Bank.

March 19, 1971.

Joseph V. Mazziotta, San Bernardino, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William R. Pounders, Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

In this case we decide whether a conviction of furnishing a narcotic to a minor by an adult (Health & Saf.Code, § 11502) may stand when the information failed to allege that defendant was over the age of 21 years and when the jury was in no way instructed that it must determine as an element of the offense that defendant was an adult before finding him guilty of the said offense. We have concluded that such a judgment of conviction must be reversed.

Defendant was charged by information 'of a felony, to wit: FURNISHING A NARCOTIC TO A MINOR, TO WIT, HEROIN (H&S 11502) in that on or about the 9th day of July, 1968, in the County of San Bernardino, State of California, he did unlawfully furnish a narcotic, to wit, heroin, to Mary (V.), a minor.' A jury found him guilty as charged, and he appeals from the judgment of conviction entered on the verdict.

Two witnesses testified at the trial. Mary testified that she and defendant had been dating for about two years. They first met when she was 14 years old, and at the time of the incident in question she was 16. She had had a child by defendant in March 1968. In April 1968, defendant began administering injections to Mary; he told her they were heroin. She received about 15 such injections before the one for which defendant was arrested and charged in this case. Defendant often carried a brownish powder which he mixed with water in a spoon and then boiled with a match. Injection was by a needle or eyedropper. Mary stated that she never injected herself but that defendant did so on each of the 15 occasions.

On the evening of July 9, 1968, defendant and Mary were in the yard of a house which was next door to Mary's home. Mary asked for 'a shot,' and defendant prepared and administered it to her. Mary's mother saw her immediately thereafter and told her to go home. Mary, feeling weak and ill, ran home where she vomited. Her mother and sister, seeing her condition, called the police. When the police officers arrived, Mary told them she had received an injection of heroin. She was then taken to the Ontario police station.

Officer Alwin of the Ontario Police Department qualified as an expert on drugs and testified to his experience in identifying persons using various narcotics. Shortly after Mary's arrival at the police station, Officer Alwin examined her arm and saw needle marks. He tested her pupils for reaction to light and darkness by aid of a pupillometer and noted that they did not react. During the examination Mary again became ill and vomited. She appeared somewhat lethargic, unresponsive, and overly relaxed, and her general demeanor was euphoric. From all of this information Officer Alwin concluded that Mary was then under the influence of heroin.

The foregoing evidence is sufficient to support the jury's implied finding that the substance administered to Mary was heroin. (People v. Winston (1956) 46 Cal.2d 151, 156--157, 293 P.2d 40; People v. Clemmons (1962) 208 Cal.App.2d 696, 700--701, 25 Cal.Rptr. 467; People v. Medina (1961) 198 Cal.App.2d 224, 231, 17 Cal.Rptr. 722; People v. Drake (1957) 151 Cal.App.2d 28, 44, 310 P.2d 997; People v. Candalaria (1953) 121 Cal.App.2d 686, 690, 264 P.2d 71.) Moreover, since a minor is not an accomplice to the crime of supplying a narcotic to such a minor (People v. Poindexter (1958) 51 Cal.2d 142, 149--150, 330 P.2d 763; People De Paula (1954) 43 Cal.2d 643, 647, 276 P.2d 600; People v. Chrisman (1967) 256 Cal.App.2d 425, 435, 64 Cal.Rptr. 733; People v. Medina, supra, 198 Cal.App.2d at 230--231, 17 Cal.Rptr. 722), Mary's testimony was sufficient to support the jury's verdict that defendant was the person who administered the heroin to her. Admission of evidence of prior injections of heroin was proper. Although evidence of prior offenses may not be introduced solely to prove criminal disposition or propensity such evidence may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense. (People v. Haston (1968) 69 Cal.2d 233, 244, 70 Cal.Rptr. 419, 444 P.2d 91; People v. Kelley (1967) 66 Cal.2d 232, 238--239, 57 Cal.Rptr. 363, 424 P.2d 947; People v. Peete (1946) 28 Cal.2d 306, 314--315, 169 P.2d 924.) In this case the evidence of prior injections of a substance that defendant told Mary was heroin, which substance caused certain sensations in her, would tend to establish that the substance administered on the present occasion, producing similar sensations, was also heroin.

By its express terms, section 11502 of the Health and Safety Code applies only to persons of the age of 21 or over, ¹ and the crucial question in this case is whether the judgment can stand when the entire record is barren of any evidence or even mention of defendant's age, and the question of his age was in no way presented to or passed upon by the jury. ² We hold that the judgment cannot stand.

Apparently on the theory that minority is a defense that need not be presented to the jury in the absence of some evidence to support, it, the trial court denied defendant's motion for a judgment of acquittal made on the ground that there was no evidence of his majority.

Section 11502 provides that every 'person of the age of 21 years or over' who commits any of the proscribed acts is guilty of a criminal offense. There is nothing whatever in that language to suggest that majority is not an element of the crime that the prosecution must prove or that minority is a defense that the defendant must assert. The Legislature is fully cognizant of the rules placing on the prosecution the burden of proving every element of the offense charged and guaranteeing the defendant a jury trial on every such element regardless of the state of the evidence. (U.S.Const. Amend. VI; Cal.Const. art. I, § 7; Pen.Code, § 1096 (presumption of innocence until the contrary is proved beyond a reasonable doubt); People v. Wells (1949) 33 Cal.2d 330, 346, 202 P.2d 53; People v. Shavers (1969) 269 Cal.App.2d 886, 888--889, 75 Cal.Rptr. 334; Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure (1960) 69 Yale L.J. 1149, 1157, fn. 22; Annot. (1931) 72 A.L.R. 899; see People v. Conboy (1910) 15 Cal.App. 97, 113 P.2d 703; Cf. People v. Stoll (1904) 143 Cal. 689, 691--694, 77 P. 818; Pen.Code, § 1118.1.) When it has seen fit, the Legislature has responded to those rules by providing that certain facts constitute defenses that the defendant must either invoke by some evidence or, in some cases, prove by a preponderance of the evidence. ³ It has also assisted the prosecution by creating presumptions in prior cases. ⁴ Had it intended that the prosecution should not have the normal burden of proving the defendant's majority in section 11502 prosecutions, it is only reasonable to assume that the Legislature would in one way or another have so provided.

The Attorney General contends, however, that the burden of raising the issue of defendant's age may properly be placed upon defendant under the rule of necessity and convenience. Under that rule, despite the state's burden of proof beyond a reasonable doubt of all material elements of the offense (Pen.Code, § 1096), if the charge contains a negative averment or concerns a fact peculiarly within the knowledge of the accused, the initial burden of producing evidence on that issue may be placed upon the accused where he has more ready access to that proof and subjecting him to this burden will not be unduly harsh or unfair.

The allegation that the defendant is 21 years of age or over is not a negative averment. A true negative averment, for example that the defendant lacked a prescription for a drug, the possession of which was lawful only on prescription, may often be practically impossible for the prosecution to prove but easy for the defendant to refute. In the absence of a legislative provision that minority is a defense, we do not believe that the relative ability of the prosecution and defense to establish the defendant's age is sufficient to justify invoking the rule of necessity and convenience to relieve the prosecution of its burden of proving the defendant's majority under section 11502.

The defendant may not necessarily have any substantially greater ability to establish his age than does the prosecution. A defendant's precise age is not a matter within his personal knowledge but something he must have learned either from family sources or public or church records. In this age of documented existence there is little doubt that ordinarily the prosecution may be able to secure evidence of the defendant's age. Moreover, in those rare cases where there is no evidence of the defendant's precise age except his own belief as to what it is, the defendant might be as hard pressed as the prosecution to verify it. If minority be deemed a defense, a defendant in such a case would be at the mercy of the jury's power to disbelieve his testimony even though it be the only available evidence of age. We conclude that a case for the application of the rule of necessity and convenience here has not been made out.

Our holding should not be interpreted so as to require the prosecution in every instance to prove the actual age of the defendant. There will be occasions when his physical appearance will be such that the jury could not entertain a reasonable doubt that he was over...