People v. Morales

• Decision Date: 12 January 1979
• Docket Number: C,Cr. 32331
• Citation: 88 Cal.App.3d 259,151 Cal.Rptr. 610
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorenzo Enriquez MORALES, Defendant and Appellant. In re Lorenzo E. MORALES, Petitioner, On Habeas Corpus. r. 33284.

Page 610

151 Cal.Rptr. 610

88 Cal.App.3d 259

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorenzo Enriquez MORALES, Defendant and Appellant.

In re Lorenzo E. MORALES, Petitioner, On Habeas Corpus.

Cr. 32331, Cr. 33284.

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

Jan. 12, 1979.

As Modified Jan. 31, 1979.

Hearing Denied March 8, 1979.

Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Martin Stein, Deputy State Public Defender, for petitioner and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

Defendant was convicted by a jury of possession of heroin in violation of Health and Safety Code section 11350(a). He was placed on probation on various terms and conditions including the service of one year in the county jail.

An appeal from the judgment of conviction was duly noticed. Subsequently defendant petitioned this court to vacate the judgment under Penal Code section 1181(9) ¹ alleging that a portion of the court reporter's notes had been lost. We denied the motion by an order dated August 16, 1978. A copy of that order is appended hereto (Appendix A).

Thereafter, on September 7, 1978, defendant filed, in this court, an original petition for writ of habeas corpus. That petition addresses, albeit, in a somewhat different fashion, the same issue raised by the motion to vacate the judgment. We consolidated the petition for habeas corpus with the appeal from the judgment.

Although defendant does not challenge the sufficiency of the evidence we set forth the essential facts as background for our discussion of defendant's claim of error.

On the day of the arrest, at about 2:30 in the afternoon, three plain-clothed narcotics investigators travelling in an unmarked police car, observed defendant standing in the street next to the driver's door of a parked, unoccupied automobile. The location was in front of defendant's residence. Defendant was known to at least one of the investigators.

As the police car approached, the defendant walked around the parked vehicle onto the sidewalk. While so doing he reached into his pants pocket, removed a plastic baggie and dropped it onto the parking strip. The investigators retrieved the baggie and arrested the defendant. The baggie contained two toy balloons filled with about $50 worth of heroin.

At trial, defendant denied dropping the baggie and denied that he was a user of heroin. Defendant's common law wife testified that she observed the scenario from the window of defendant's residence. She claimed to have seen two other persons who were known heroin users, standing by the car. According to her, one of those two persons, a Mr. Vasquez, dropped the baggie.

In summary then, it was undisputed that one of two persons, i.e., defendant or Vasquez was, at the time and place in question, in possession of a substantial quantity of heroin. The jury had to decide which one.

The element of motive was injected into the case by defendant's suggestion that since Vasquez was a known user and defendant To counter this suggestion, the prosecution, quite properly, sought to establish that defendant was a non-using seller of heroin. The prosecutor elicited testimony from one of the investigators concerning the street traffic in heroin including values and useable quantities. Of course, it is a matter of common knowledge that toy balloons are used as a vehicle for packaging heroin for street sale.

was not, the probabilities favored Vasquez as the possessor.

Additionally, the prosecutor cross-examined defendant and his common law wife concerning defendant's source of income. That questioning developed the fact that defendant, who was unemployed and without visible means of income, maintained a household with a putative wife and seven children. Finally in argument to the jury, the prosecutor suggested that defendant was selling heroin and therefore was the one who dropped the baggie in question.

All of defendant's claims of error on both the appeal and in his petition for habeas corpus revolve around the contention that the prosecution's attempt to portray the defendant as a seller of heroin was prejudicial error and introduced an irrelevancy because defendant was charged only with possession. We disagree.

The issue is simply one of relevancy. Evidence having a tendency to prove motive on the defendant to commit the particular crime charged is admissible to assist in resolving a doubt as to the identity of the perpetrator, no matter how that evidence may reflect on the defendant and even when it may show that he has committed other offenses. (People v. Gonzales, 87 Cal.App.2d 867, 198 P.2d 81; People v. Mullen, 115 Cal.App.2d 340, 252 P.2d 19; People v. Beyea, 38 Cal.App.3d 176, 113 Cal.Rptr. 254; People v. Goedecke, 65 Cal.2d 850, 56 Cal.Rptr. 625, 423 P.2d 777.)

Proof of defendant's need for money has been held relevant and admissible in prosecuting for theft, robbery, (People v. Gorgol, 122 Cal.App.2d 281, 265 P.2d 69; People v. Orloff, 65 Cal.App.2d 614, 151 P.2d 288) and sale of narcotics (People v. Martin, 17 Cal.App.3d 661, 95 Cal.Rptr. 250). It is for the jury to determine whether defendant's financial situation tends to establish a motive for commission of a crime and thus connect defendant with such a commission. (People v. Martin, supra ; also see People v. Bigelow, 165 Cal.App.2d 407, 332 P.2d 162; People v. Gallegos, 180 Cal.App.2d 274, 4 Cal.Rptr. 413.) Such evidence may be developed on cross-examination of the defendant even though defendant does not testify to his financial condition on direct examination. (People v. Gorgal, supra ; also see People v. Peete, 28 Cal.2d 306, 169 P.2d 924; People v. Burns, 109 Cal.App.2d 524, 241 P.2d 308.)

It is well established that in a case of possession of narcotics, the fact that the defendant is an addict is relevant to prove a motive for such possession and defendant's knowledge of the narcotic. (People v. Hancock, 156 Cal.App.2d 305, 319 P.2d 731; People v. Traylor, 23 Cal.App.3d 323, 100 Cal.Rptr. 116.) Defendant here availed himself of this rule when he attempted to focus suspicion on Vasquez a user of heroin as the person who dropped the contraband on the sidewalk.

Personal use, however, is just one of two principal reasons that persons possess narcotics. The other is to sell. Defendant concedes that when the charge is sale or possession for sale, defendant's financial status is relevant. (People v. Martin, supra.)

The question raised by defendant's appeal is whether evidence of defendant's motive to sell narcotics and in fact any reference to Possible sale of narcotics is rendered irrelevant simply because the prosecutor charges only possession. We think not, and defendant has cited us to no authority for that proposition.

Possession is necessarily a part of the crime of sale or possession for sale. (People v. Carrigan, 221 Cal.App.2d 680, 34 Cal.Rptr. 574; People v. Rosales, 226 Cal.App.2d The fortuitous circumstances of the timing of the arrest or the quantity of the narcotics recovered may militate against a successful prosecution for sale, or even possession for sale. In our opinion, however, it follows like night and day that evidence of a motive to sell narcotics is as relevant where the charge is possession as it is where the charge is sale or possession for sale.

588, 38 Cal.Rptr. 329.) The case reports are replete with instances of obvious narcotic sellers being convicted of possession.

Here the prosecution had the burden of proving beyond a reasonable doubt that defendant was the one who possessed the contraband. When defendant conceded that someone possessed it but attempted to establish that it was Vasquez, because of the latter's motive of use, the prosecution was entitled to establish that defendant had an even more compelling motive, to wit, financial gain. In essence defendant argues that he was prejudiced simply by the fact that the prosecution's questions suggested he was poor. We reject any suggestion implicit in that argument that a jury would convict a defendant of possession of heroin simply because he was poor.

Laying that contention aside it is hard for us to see how the defendant could be prejudiced by the line of questioning. The evidence was of the type which could "cut two ways." A jury might have concluded that defendant having no income could not afford to acquire heroin. On the other hand, the jury could have viewed his lack of income as a motive to sell and thus possess heroin. Either way the trial judge was well within his discretion in finding the evidence to be relevant. (Evid.Code, § 352.)

Defendant concedes that his trial counsel did not object to the line of questioning by the prosecutor or to the latter's argument to the jury about which he now complains. Such a failure would ordinarily preclude defendant's raising the issue at this time. (People v. Terry, 2 Cal.3d 362, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Beivelman, 70 Cal.2d 60, 73 Cal.Rptr. 521, 447 P.2d 913.)

Defendant, however, has the usual fallback position of claiming that because trial counsel failed to object, counsel was incompetent and deprived defendant of a fair trial citing People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, and its progeny.

Our rejection of defendant's principal claim of error lays to rest any contention that his trial representative was inadequate. Failure to object to relevant evidence or proper argument is not the mark of inadequate representation nor incompetent counsel.

We now turn to the petition for habeas corpus. That petition is an upshot of our order denying the previous motion to vacate the judgment. That motion simply asked that the judgment be vacated because of the inadvertent loss of a...