People v. Morales

• Decision Date: 21 June 1968
• Docket Number: Cr. 2739
• Citation: 263 Cal.App.2d 368,69 Cal.Rptr. 402
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald A. MORALES, Defendant and Appellant.

Page 402

69 Cal.Rptr. 402

263 Cal.App.2d 368

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald A. MORALES, Defendant and Appellant.

Cr. 2739.

Court of Appeal, Fourth District, Division 2, California.

June 21, 1968.

Rehearing Denied July 10, 1968.

Hearing Denied Aug. 14, 1968.

[263 Cal.App.2d 370] Julius J. Novack, San Bernardino, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bradley A. Stoutt, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

TAMURA, Associate Justice.

Defendants Morales and Velasquez were indicted for the sale of marijuana (Health and Safety Code, § 11531). Count I charged both Morales and Velasquez with a sale on April 8, 1966, and Count II charged Velasquez only with a sale on April 7, 1966. Each defendant was charged with and admitted priors involving narcotics--Morales had three priors and Velasquez two. Defendants moved for separate trials on Aranda grounds (People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265.) The motion was denied and following a joint jury trial, they were found guilty as charged and sentenced to state prison. Defendants filed separate notices of appeal. The present appeal concerns only Morales.

On April 7, 1966, at about 8:00 p.m., Reyes and Tryal, state narcotics investigators, and one 'Chico' (Andres Galindo), a former narcotics user who was acquainted with Morales and Velasquez and who was then cooperating with the Colton Police Department, met Velasquez at the Schooner Bar in Bloomington. 'Chico' introduced the investigators to Velasquez and asked the latter if he could obtain a 'can of weed.' Velasquez replied, 'Yes, I have to ask Donny first,' (Morales' first name was Donald), went to a phone booth, and after a few minutes returned saying, 'Let's go, the guy is waiting for us.' The four (Reyes, Tryal, 'Chico' and Velasquez) drove to Morales' home and upon arrival Velasquez entered the house but returned shortly stating that the 'guy' did not have proper change. The officers obtained change, Reyes handed Velasquez $16, Velasquez re-entered the house and returned to the car shortly stating, 'I have got a very good can, not a very large can, but it is all real pot.' They drove to Velasquez' apartment where he removed a brown paper bag from his jacket pocket, checked the contents and handed the bag to Reyes, saying, '(t)here better not be any trouble over this because I could (get) off easier by killing a man than going back to jail on selling dope. I am facing 15 years. * * *' As the four drove back to the bar, Reyes asked Velasquez if 'Donny' could make it for a pound or a 'kilo;' Velasquez told the officers to contact him the following evening at the same time and place. The paper bag received by Reyes that evening contained marijuana.

At about 7:45 p.m. of the following evening, Reyes, Tryal and 'Chico' again met Velasquez at the Schooner Bar. When Reyes asked if he could make it for a 'kilo,' Velasquez replied, 'Just a minute, I will call Donny,' went to the rear of the bar to a telephone, returned in a few minutes and said, 'Donny is not in, let's go over and he may be there by the time we get there.' The four again drove to Morales' home, Velasquez entered the house but returned shortly saying 'Donny' was not there. At that moment Morales drove up in his car and parked adjacent to the house. The officers observed Velasquez and Morales converse and, as Velasquez returned to the car, overheard Morales say, 'Make sure you are down there because I don't want to take one with me and have to bring it back.' Velasquez entered Reyes' car and the four returned to the Schooner Bar. Enroute Velasquez said that if 'Donny' could obtain two 'kilos,' he would let Reyes have one kilo for $100 and that if Morales could only obtain one 'kilo,' he would let Reyes have 'three cans.'

After they returned to the bar, at about 9:20 p.m., Velasquez told Reyes, 'I will call Donny,' went to a telephone at the rear of the bar and returned in a few minutes saying, 'Donny is on the way. He could only get one kilo, he is bringing three cans.' At his request, Reyes gave Velasquez $40. About 10:00 p.m., Morales appeared, conversed with Velasquez and the two left by the rear entrance. Reyes followed and observed Velasquez and Morales go to the latter's car and saw Velasquez hand Morales something and Morales reach into the front of his automobile and hand Velasquez a 'paper item.' Reyes met the two at the rear entrance of the bar. While Morales was only a few feet away Velasquez told Reyes that 'Donny' was his 'connection.' Velasquez told Reyes that he had 'three cans' and asked him to follow him into the rest room but when someone else entered, suggested that they go to his apartment. Upon arriving at Velasquez' apartment, the latter removed three brown paper bags from his jacket pocket, checked the contents and handed them to Reyes. The contents of the bags were identified as marijuana.

Morales testified in substance as follows: He did not see Velasquez on April 7. On the night of April 8, he returned from a shopping trip and as he was taking groceries into his house, he observed Velasquez talking to an unidentified individual but when he, Morales, came out of the house the third person was gone. He conversed briefly with Velasquez who said he was going to the Schooner Bar that evening and Morales said he might meet him. The subject of marijuana was not discussed. While he was in the bar that evening, he remembered leaving his keys in his car so he went out to get them. He encountered Velasquez who accused him of taking out his girl; they exchanged a few words; he removed the keys from his car; the two shook hands and they re-entered the bar. There was no delivery of marijuana.

Velasquez testified in substance as follows: When he met Reyes on April 7, he had been unemployed for some time. 'Chico' told him that he could earn some money by providing a 'connection' for Reyes and displayed $50 in cash. 'Chico' said that Reyes had been convicted of a narcotics offense in Sacramento and was in San Bernardino looking for a new 'connection.' At the insistence of 'Chico' and Reyes, Velasquez agreed to make a call to Arlington. After making the call, he told Reyes that they could meet the unidentified man at 'Donny's' house. On arriving at Morales' home, Velasquez met the unidentified man in the backyard, obtained a bag of marijuana, and subsequently delivered it to Reyes. On April 8, he again called the unidentified individual in Arlington and arrangements were made to meet him at Morales' home. When they arrived, the man was there and Velasquez obtained from him 'three cans' of marijuana. At that moment Morales arrived and the two discussed going to the Schooner Bar. That evening he encountered Morales at the rear of the bar; a discussion ensued concerning Velasquez' girl friend; the two shook hands; and they returned to the bar through the rear entrance. No narcotics transaction occurred between Velasquez and Morales.

Defendant Morales contends (1) the court erred in denying his motion for separate trial; (2) extrajudicial statements made by Velasquez which implicated Morales were erroneously received; (3) the court abused its discretion in denying his motion for continuance; (4) the evidence was insufficient to support his conviction; (5) the prosecutor was guilty of prejudicial misconduct; and (6) the court erred in denying his motion to visit the premises.

The first three points raised by defendant are all premised on the theory that the extrajudicial statements implicating him, made by Velasquez out of Morales' presence, constituted inadmissible hearsay insofar as the latter was concerned. He, therefore, contends that under the rules enunciated in People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, his motion for a separate trial should have been of Velasquez' extrajudicial statements which implicated him should have been deleted.

The People contend that the statements were admissible against Morales under an exception to the hearsay rule which permits a declaration of a conspirator, made while participating in a conspiracy to commit a crime and in furtherance of that conspiracy to be received against a co-conspirator if there is independent proof of the existence of a conspiracy.

The exception is a well established rule of evidence. (Evidence Code, § 1223 ¹; People v. Ferlin, 203 Cal. 587, 599, 265 P. 230; Laurel v. Superior Court, 255 A.C.A. 329, 334, 63 Cal.Rptr. 114; People v. Hardeman, 244 Cal.App.2d 1, 39--40, 53 Cal.Rptr. 168, cert. den. 387 U.S. 912, 87 S.Ct. 1700, 18 L.Ed.2d 634; Witkin, Evidence, pp. 492--493; 4 Wigmore, Evidence (3rd ed.) § 1079; McCormick, Evidence, pp. 521--522.) The admissibility of the declaration of a co-conspirator is not affected by the fact that the indictment or information fails to charge a conspiracy. (Lee Dip v. United States, (9th CCA) 92 F.2d 802--803, cert. den. 303 U.S. 638, 58 S.Ct. 526, 82 L.Ed. 1099; People v. Duran, 57 Cal.App.2d 363, 371, 134 P.2d 305; see People v. Ferlin, supra, 203 Cal. 587, 599, 265 P. 230; People v. Gregory, 12 Cal.App.2d 7, 15, 54 P.2d 770.) Ordinarily there must be some proof of a conspiracy before the declarations of the co-conspirator may be received but the trial court may, where it deems that the circumstances so require, relax the rule and permit the declarations to be received first, subject to the establishment of the existence of a conspiracy by independent evidence. (Evidence Code, § 1223; People v. Calhoun, 50 Cal.2d 137, 144, 323 P.2d 427; People v. Ferlin, supra; People v. Neighbors, 218 Cal.App.2d 593, 596, 32 Cal.Rptr. 473; 4 Witkin, Evidence, § 1079, pp. 999--1000.)

If the statements implicating Morales were admissible against the latter as declarations of a conspirator against a co-conspirator, the principles enunciated in Aranda, supra, would be inapplicable. (...