People v. Monteverde

• Decision Date: 18 August 1965
• Docket Number: Cr. 2211
• Citation: 46 Cal.Rptr. 206,236 Cal.App.2d 630
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rene MONTEVERDE, Defendant and Appellant.

Page 206

46 Cal.Rptr. 206

236 Cal.App.2d 630

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rene MONTEVERDE, Defendant and Appellant.

Cr. 2211.

District Court of Appeal, Fourth District, California.

Aug. 18, 1965.

Rehearing Denied Sept. 10, 1965.

Russell E. Parsons and Edward I. Gritz, Los Angeles, for defendant and appellant.

John S. Rhoades and Robert C. Baxley, San Diego, as amici curiae on behalf of appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.

CONLEY, Justice. ^*

After an extended jury trial, the defendant, Rene Monteverde, was convicted of offering to sell heroin (Health & Saf.Code, § 11501); the indictment was as follows:

'The said Rene Monteverde on or about the 20th day of February, 1964, in the County of San Diego, State of California, and before the finding of this Indictment, did unlawfully offer to sell, furnish a narcotic, to wit, Heroin.'

The defendant's motion for a new trial and his application for probation were denied, and he was sentenced to imprisonment in the California Institution for Men at Chino; however, sentence was ordered stayed pending appeal, and bail on appeal was finally fixed at $9,000, plus a penalty assessment of $900.

The defendant makes a four-fold plea for reversal, arguing

(1) That the evidence is insufficient to convict him of a crime in California;

(2) That the court erred in refusing to instruct the jury on entrapment;

(3) That the court committed error in excluding evidence which would have tended to establish that he had not recently fabricated his account of what happened, and that he had no intent to sell heroin;

(4) That the court erred in receiving evidence of statements made by him, contrary to the Escobedo and Dorado rule

ASIDE FROM THE ISSUE OF ENTRAPMENT, THE EVIDENCE WAS ADEQUATE TO PROVE THE COMMISSION OF THE CRIME.

Theodore (Ted) Heisig was the principal witness for the People. He is a treasury agent employed by the Federal Bureau of Narcotics and assigned to the Los Angeles office. He and two other federal narcotic agents, Messrs. Gjertson and Celaya, and an informant, Jerry Ellis, went to Tijuana with the purpose of finding the defendant, Monteverde, and the hope to be able to convict him, in due course, of a federal narcotics offense. On the following day, February 14, 1964, Ellis, who had previously known Monteverde, talked with him in the Coronet Room, a restaurant and bar which had been managed by him several months previously.

The defendant testified as follows:

'A I was at the Coronet approximately at noon and I went in, like I explained to you, for my mail or something, when I was in there this Mr. Ellis, who had been previously a customer, no more than two or three times, came to me and he says, 'I want to talk to you, Tiger.' I said, 'Well, what do you want?' He says, 'I will have to talk to you outside.' So we went outside the building to the entrance of the Coronet and he says, 'I have been looking for you for the last two days.' By this I assumed that he didn't----

'MR. WEISMANTEL: I object to what he assumed.

'THE COURT: Sustained.

'BY MR. ENRIGHT:

'Q Mr. Monteverde, just a minute.

'A All right.

'Q I want you to go as slowly as possible and you can't tell us what you assume or your conclusions, okay.

'A Well, I have been looking for you for two days.

'Q All right.

'A I said, 'What for?' He says, 'I need a connection.' I said, 'A connection for what?' He said 'Junk.' I said, 'Don't every repeat that word to me again, just forget that I heard it. I don't want to ever, ever discuss this with you or anyone else.''

Ellis described Heisig to Monteverde as a rich lawbreaker from the eastern United States, who would be interested in getting some action from the sale of heroin.

Heisig was so dressed as to enable him to play his part; he had on a black loose-knit sweater, a sport shirt and dark trousers, and he had not shaved for a day or two previously. He had a bank-roll of $4,000 with him in United States government money.

Mr. Heisig testified:

At about 2.00 p. m., he went to the Coronet Room, and Ellis there introduced him to the defendant. Agent Celaya had preceded him to the bar. Monteverde and Ellis were talking with two yound women. Monteverde told Heisig he had heard about him and knew he was a friend of Jerry's (Ellis). Heisig told Monteverde that he had some money and he wanted to invest it; he wanted a little action. Monteverde said he would talk to him later. He conversed with the two women for awhile about operations at the Caliente Race Track. When the women temporarily left, Monteverde said to Heisig, 'Ted, if you want to make some big money quick, junk is the business.' The record shows that 'junk' is a word commonly used to indicate heroin. Heisig told Monteverde that he thought it was dangerous, and he had read in the papers about arrests, but the latter said, 'Don't worry about that, my men have been in the business over ten years, they are all right.' Heisig asked how much an ounce would cost, and Monteverde said, '$350 for the best stuff.' The price of heroin in Tijuana was from $200 to $500 an ounce. Monteverde referred to the ounce as a 'piece.'

The women returned and just as they were coming up, Monteverde said he could supply ten ounces, and, in the presence of the women, Monteverde changed the wording of his statement to ten 'dresses.' After the women left again, Monteverde said, 'Ted, I want to see you, come on into the men's room.' In the latter place, Monteverde asked, 'Ted, are you really serious about wanting this stuff? Heisig replied, 'Yes, Rene, I have got the money,' and showed Monteverde his large roll of government green-backs; he continued, 'I want delivery on the American side. I don't want to buy this heroin and pick it up in Tijuana.' Monteverde said that that should be no problem, and 'I have a friend named Marcus and he has been delivering stuff to Los Angeles for the past ten years.' He also said, 'Marcus is well known by the border crossing people, and he is also smuggling meats and delicacies to restaurants like the Hotel Caesar in Tijuana. Marcus is trusted by the border crossing people * * * and he is never searched.' Monteverde boasted that he had been 'playing in junk' for about ten years. At about this time, Jerry Ellis entered the restroom, and Monteverde suggested that a postcard be written indicating a phone number to make contact in Los Angeles, and he [Monteverde] would make arrangements to deliver ten ounces of heroin in Los Angeles at $350 an ounce. Monteverde handed a card to Ellis, and Ellis later gave it to Heisig. The card had the imprint of a coronet on its front and the words 'Coronet Room,' and on the back in writing 'Mr. Rene.'

On February 16, 1964, Heisig mailed a postcard to Monteverde from Los Angeles. On it, he wrote a telephone number and told Monteverde to call him Wednesday or Thursday. The card read, 'Hello. We are having a find time in L. A. Why not give us a call Wednesday or Thursday night about 5:00 p.m. at 842 4543? The girls are friendly as always.' The card was signed 'J and T.' The number on the card was that of the home phone of Agent Celaya. The government agents tried to reach Monteverde by telephone from Burbank, but he was not at the Coronet Room in Tijuana; Ellis then called him at his home in Imperial Beach, San Diego County, while Agents Heisig, Celaya and Borquez were present. Heisig heard a voice which he recognized as Monteverde's. He had his head right up against Ellis' head in listening; Ellis said, 'Hello, why didn't you call us?' Monteverde said, 'I haven't gotten the postcard.' Then, Monteverde said, 'Jerry, I can get you that stuff, all you want, it's no problem.' Ellis said, 'Wait a minute, Ted is here, I will put him on.' He then said, 'Hi, Rene.' Monteverde said, 'Hello, Ted,' and then, 'Ted, I can get you that 'H', it's the best in T.J.' The witness testified that 'H' meant heroin, and 'T.J.' Tijuana. Heisig asked Monteverde how much, and the latter said, 'Three five zero a piece.' Heisig then asked, 'Can you whack it up?' And Monteverde said, 'Yeah, you can cut it up four times and it would still be as good as the stuff the boys sell down on Revolution.' (Revolution is a main street in Tijuana.) Monteverde said, 'This white stuff is very good, my people get it from Marseilles.'

The witness, Heisig, pointed out that heroin comes in two colors--brown is usually Mexican and white is French or Italian. Monteverde said he would try to locate his man and have him deliver it. Monteverde said that to deliver in the United States would cost $50 an ounce more, and Heisig told Monteverde that was 'Okay.' Monteverde said, 'Give me a number and I will call you at 2:30 sharp tomorrow.' He was given Agent Celaya's number in Burbank, the same telephone number as was listed on the postcard.

The next day at about 2:40 p.m., a telephone call was received by the federal agents at Burbank. At that time, they were equipped with a recording device, which was hooked to the telephone by means of a suction cup; Agent Borquez had attached it. The tape recording was made and it was received in evidence at the trial. Heisig suggested that a delivery be made at a point in San Ysidro in San Diego County, and he referred to the fact that he would call Monteverde on the 27th of February at the Coronet Room which he did. At that time, he asked Monteverde how things were going, and the latter said, 'Okay. I want to meet you Saturday or Sunday.' The Sunday date was agreed upon and Monteverde said, he would meet him 'at the Tijuana Country Club. * * * It's located just before you get to the race track.' On the day suggested, Heisig went to Tijuana with Agent Gjertson, and there they first met with federal agent, Baca, and also with Mexican narcotic agents commanded by Captain Valverde. Agent Baca of the San Diego office and Agent ...