People v. Munoz

• Decision Date: 28 December 1961
• Docket Number: Cr. 7731
• Citation: People v. Munoz, 18 Cal.Rptr. 82, 198 Cal.App.2d 649 (Cal. App. 1961)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Henry George MUNOZ, Defendant and Appellant.

Page 82

18 Cal.Rptr. 82

198 Cal.App.2d 649

PEOPLE of the State of California, Plaintiff and Respondent, v.Henry George MUNOZ, Defendant and Appellant.

Cr. 7731.

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

Dec. 28, 1961.

Debus & Feffer, Irving S. Feffer, Culver City, for appellant.

Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was indicted for for violation of section 11501, Health and Safety Code(selling heroin).He was convicted of possession of heroin (Health and Safety Code § 11500), a lesser but necessarily included offense.He has appealed from the judgment.

On August 23, 1961, Richard Sanchez, a police officer of the City of Los Angeles, was assigned to the Narcotics Division as an undercover agent and engaged in a buying program of narcotics.On this particular occasion the officer was accompanied by a person known to him as 'John Able,' who saw defendant near the northeast corner of Sixth and Broadway in Los Angeles.Able and the officer walked up to defendant; Able struck up a conversation with him, which disclosed that they had known one another some years previously when both were in the Preston School of Industry.Defendant then inquired of the officer and Able 'if we would like to score.'Able replied, 'Yes, I would like to get a half.'Defendant then stated that he would get some for them; he knew where to get it.The officer gave defendant a ten dollar bill.He left for approximately five minutes, saying he was going to make a telephone call.He returned with two male Negroes.They all entered the officer's car and defendant directed him to drive to 4th and Mott Streets.After parking in that vicinity, the defendant left the car and in a few minutes Able and the two Negroes also left.They all returned later, at which time the two Negroes demanded the return of $10.00 from defendant which they had previously given to him, stating that 'they didn't want to deal with him.'The group drove to 4th and Pecan Streets, where the two Negroes left them.The officer drove back to 4th and Mott Streets, where defendant left the car for a few minutes.Upon his return defendant directed Officer Sanchez to drive to 7th and Towne where, just before he left the car, he laid a red balloon on the seat next to the officer.Three capsules were in the balloon.The officer took it to the Police Administration Building, where he placed his initials on the balloon and on each of the capsules, and placed the balloon and capsules in a small jar, putting his initials and the date on the inner lid of the jar.The officer put the jar and its contents into a large, Manila envelope and sealed it.Witness Miller, a forensic chemist for the police department, examined the envelope and its contents and determined that the capsules contained heroin.

The defendant's testimony regarding these events was to the effect that Able asked him to 'score for him,' and told defendant if he would score for him (Able)he would give him a fix.Defendant enumerated the various places to which they wnet in an effort to secure heroin but without success.Defendant claimed that he returned the $10.00 that Able (rather than the officer) had initially given him.According to defendant, he and Able went on another search for contraband; that Able told him to wait at Third and Saratoga Streets, while he went on to Second Street; that Able returned in approximately a half hour and said he'scored.'They then went to the car and told Officer Sanchez that they wanted to go to 7th and Towne.Upon arrival there, Able and defendant got out of the car; they went up to a room and, according to defendant, Able 'shot two caps,' and defendant also 'shot two caps'; that Able kept one cap saying he had to give it to his cousin; that Able then departed.

In seeking a reversal defendant's first contention is that the trial court erred in permitting a conviction since the prosecution did not introduce the heroin in evidence.The fact of defendant's possession of the narcotic was shown to the court through the testimony of Officer Sanchez, who stated that defendant laid a red balloon containing three capsules on the seat of the car next to him; that these capsules were identified by his initials, that he placed them in a jar which, in turn, was placed in a sealed envelope and delivered to the police department.L. B. Miller, the department's forensic chemist, examined the contents and testified at the Grand Jury hearing that the capsules contained heroin.Miller's testimony by stipulation was read into the record at the trial.This was sufficient proof that defendant had violated section 11500, Health and Safety Code.(People v. Shafer, 101 Cal.App.2d 54, 224 P.2d 778;People v. Anderson, 87 Cal.App.2d 857, 197 P.2d 839.)In the Shafer case, which was also a charge of possessing heroin, the court held that the testimony of the officers that they acquired capsules and that they were found to contain heroin, was sufficient proof that defendant had violated the statute.The court stated (p. 60, 224 P.2d p. 781): 'In view of such testimony the presence of the capsules in court was not essential to a fair trial.'In the Anderson case, the argument was made that there was no evidence to support the trial court's finding that defendant was armed with a deadly weapon because the gun used in the crime was not introduced in evidence.The court held, however, that 'in order to sustain a conviction predicated upon the use of a material object in the commission of a crime it is not necessary that such object itself be introduced in evidence.'(P. 861, 197 P.2d p. 842.)

Applying the principles of these cases, it is apparent that a sufficient showing was made of defendant's possession of the heroin, even though it was not formally introduced in evidence.

In his reply brief defendant also contends that the prosecution failed to link the capsules brought to police headquarters by the officer to the capsules examined by the police chemist and failed to show that the latter were the same capsules examined in the courtroom by Officer Sanchez; that there was no showing that the evidence was kept intact and was the same evidence examined throughout the proceedings.

Although the exhibit containing the balloon and three capsules was not formally introduced in evidence, it was physically in the courtroom during the trial and its contents were fully described by Officer Sanchez including the fact that he placed his initials on each of the capsules and on the balloon, and also his initials and the date on the inner lid of the jar.He placed these items in a large Manila envelope which he sealed and which he recognized and identified at the trial.With the approval of the trial judge, the exhibit number was kept the same in the trial court, as at the hearing before the Grand Jury.This envelope and its contents were brought to the Grand Jury hearing by Mr. Miller, the police department chemist, and there marked 'Exhibit 26-1.'It was from the contents of this exhibit that he testified the capsules contained heroin.It is this same exhibit and its contents that Officer Sanchez examined and described, including his markings on the various items in the Manila envelope, while on the witness stand at the trial.Bearing in mind the presumption that 'Official duty has been regularly performed'(Code Civ.Proc. § 1963 subd. 15), the evidence amply supports an inference that the capsules left by defendant on the seat of the car next to the officer were the same capsules that the police chemist examined and the same ones that Officer Sanchez examined and described at the trial.

Defendant's next contention is that Officer Sanchez was an accomplice and aided and abetted in the commission of the crime on the theory that he entered into a conspiracy to purchase heroin, and therefore the trial court erred in finding the defendant guilty on the uncorroborated testimony of the officer.

'To be an accomplice one must knowingly, voluntarily, and with common intent unite with the principal offender in the commission of the crime.'(People v. Lamb, 134 Cal.App.2d 582, 585, 285 P.2d 941, 943.Accord, People v. Shaw, 17 Cal.2d 778, 799, 112 P.2d 241;People v. Frahm, 107 Cal.App. 253, 263, 290 P. 678.)'Whenever the commission of a crime by one person involves the co-operation of another person, the latter becomes an accomplice only in the event that his co-operation in the commission of the crime is corrupt.'(People v. Keseling, 35 Cal.App. 501, 504, 170 P. 627, 628;People v. Sanders, 181 Cal.App.2d 677, 681, 5 Cal.Rptr. 498.)Also, 'It is well established that merely engaging in a scheme for the purpose of detecting, exposing, and punishing crime does not constitute one an accomplice whose testimony requires corroboration.'(People v. Spaulding, 81 Cal.App. 615, 617, 254 P. 614, 615.Accord, People v. Calvert, 93 Cal.App. 568, 572, 269 P. 969, andPeople v. Sanders, supra.)In this connection it should also be noted that section 111, Penal Code, defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.'Also, section 11710, Health and Safety Code, provides: 'All duly...