People v. Neighbors

• Decision Date: 24 July 1963
• Docket Number: Cr. 8480
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ivan NEIGHBORS, Defendant and Appellant.

Page 473

32 Cal.Rptr. 473

218 Cal.App.2d 593

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ivan NEIGHBORS, Defendant and Appellant.

Cr. 8480.

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

July 24, 1963.

Burton Marks, Beverly Hills, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

This appeal is brought by Ivan Neighbors, one of four defendants jointly charged with violating section 182 Penal Code by combining, confederating and agreeing together to sell a dangerous drug, i. e., amphetamine, contrary to the provisions of section 4227 Business and Professions Code. Appellant was convicted following a jury trial; his three alleged co-conspirators previously entered pleas of guilty to the same charge.

Appellant's assignments of error are stated as follows: '(1) The evidence did not sustain the conviction, since it established (if anything) multiple conspiracies rather than a single conspiracy; and (2) there was prejudicial misconduct by the prosecuting attorney during argument to the jury.'

The evidence, viewed in a light favorable to respondent, may be summarized as follows: At approximately 5:30 p. m., on November 8, 1961, Deputy Sheriff Bart Natison, who was operating as an undercover investigator and a confidential informant, known as 'Gene', met the co-defendant Givens at a gasoline station where the latter was employed. The informant asked Givens if they could 'score'. ¹ Givens replied that he did not have anything with him, but that he had some 'bennies' ² at his residence. He further stated, 'Phyllis has the rest of my stuff for me'.

Officer Natison advised Givens that he did not know Phyllis. Thereupon Givens gave the two men an introductory note. It was read into the record as follows: 'It states, 'Phyllis, give Gene [the informant] the rest of the roll,' and 'roll' is spelled r-o-o-l, 'will get some more tonight.' Signed 'Eddy."

Officer Natison and the informant then proceeded to the address indicated. Upon entering, they met the other co-defendants, Phyllis Jane Dickerson and her sister Rita Minniear, and appellant. After the officer had identified Phyllis, he gave her the note he had received from Givens. After she had read the note, she obtained an aluminum foil package containing five white tablets from her purse. She then asked the officer for the money; he told her that he would give the 'bread' ³ to Givens the following day.

Although the officer had not as yet spoken to him, appellant asked the officer how many more 'rolls' he wanted. The officer replied, 'two more', and then walked toward appellant. Appellant advised the officer that these would cost 'a dollar a roll'. The officer handed him a five dollar bill. Phyllis Dickerson said that she could 'make change for the five', but Rita Minniear said, 'No. I have the change.' Thereupon, appellant handed Rita the five dollar bill and told her, 'Give him two rolls and $3.00 change.' Rita opened her purse and from a brown paper bag therein containing a number of aluminum foil packages, she removed two and handed them to the officer. The officer remained on the premises for a time seated on the couch and conversed with appellant about records. He left without making any arrests.

The following day the officer returned to the gasoline station and paid Givens for the 'pills' which Phyllis had given him. Givens informed him that he had met Danny who served as his 'connection'. ⁴ (Although the information indicates appellant's true name as 'Ivan', it is clear from the record that he was known as 'Danny'.) Givens asked the officer to 'drop back again'.

Testimony concerning the initial conversation between Givens and the officer was permitted over appellant's objection, subject to a motion to strike in the event that the prosecution failed to establish a prima facie case of conspiracy without the aid of such conversation. This was entirely proper. The order of proof prescribed by subsection 1870(6) of the Code of Civil Procedure may be varied in the discretion of the court. (People v. Cancimilla, 197 Cal.App.2d 242, 249-250, 17 Cal.Rptr. 498; People v. Allen, 104 Cal.App.2d 402, 415, 231 P.2d 896.) Appellant made no motion to strike. Moreover, as stated in People v. Calhoun, 50 Cal.2d 137, at page 144, 323 P.2d 427, at page 432:

'It was not necessary to connect defendant with the conspiracy at the beginning of the evidence or before any other evidence of a conspiracy was received. As defendant concedes, the court had a reasonable discretion as to the order of proof, and there is nothing to indicate that this discretion was abused.' (See also, People v. Ferlin, 203 Cal. 587, 598-599, 265 P. 230; People v. Buono, 191 Cal.App.2d 203, 237, 12 Cal.Rptr. 604.)

By way of defense, appellant testified in substance that although he sat in the room where the two sales of the dangerous drug were made by Phyllis and Rita, he failed completely to comprehend what was happening. He testified to the effect that when the officer handed him the five dollar bill, he innocently handed it on to Rita with the comment to the officer, 'You don't owe me any money', and that he was ignorant of the fact that a sale of any sort was taking place. Manifestly, the trier of the facts was justified in regarding this testimony as false.

Appellant also called Givens and Phyllis as witnesses, and they testified to the effect that, although they had pleaded guilty to conspiring with appellant to sell dangerous drugs, in fact, appellant was not involved. Actually, if their stories were to be given full credence, it would appear that they too, were equally innocent. Thus, it was Givens' version that he just happened to remember that Phyllis had some pills which she used for dietary purposes and which she might be willing to give to the informant who was leaving on a trip. Phyllis, in substance, testified that the pills were not hers and that she gave them to the officer only because Givens' note so instructed her.

By way of rebuttal, the prosecution called Rita Minniear who testified unqualifiedly that the two rolls of pills which she delivered to the officer were among those given her earlier by appellant, who told her to hold them for him.

As indicated by the assignment of error heretofore quoted, appellant recognizes the utter futility of arguing that the evidence is insufficient to establish a conspiracy to sell dangerous drugs. He therefore argues that three different conspiracies were proved which did not encompass the one alleged in the accusatory pleading. Thus, as stated in his brief, 'Taking the case most favorable to the prosecution the evidence here, at most establishes the following conspiracies: (1) Givens and Dickerson, (2) Givens and Neighbors, and (3) Neighbors and Minniear.'

He relies upon the decision in Anderson v. Superior Court, 78 Cal.App.2d 22, 177 P.2d 315, notwithstanding that the reasoning of said decision appears to refute his contentions. At pages 23-24 of 78 Cal.App.2d, at page 316 of 177 P.2d it was declared that:

'We are in full accord with the cases cited by petitioner to the effect that a conspiracy between A and B to commit a specific crime or crimes will not make A liable as a conspirator with B and C if B and C enter into a separate conspiracy to commit a different crime or crimes. However it is equally settled that 'One who joins a conspiracy after its formation is liable as a conspirator just as are those who originated it' [citations], 'nor is it necessary that each conspirator should have seen the others, or have knowledge as to who all the members of the conspiracy are' [citations].

'This subject is so clearly discussed in Lefco v. United States, 3 Cir., 74 F.2d 66 at pages 68 and 69 as to warrant an extended quotation:

"There is nothing new in this defense of multiple conspiracies and nothing uncertain in the law arising from such a defense. Of course, to sustain a verdict on an indictment charging one particular conspiracy the evidence must establish the conspiracy charged. Evidence that establishes another conspiracy or several other conspiracies will not sustain the verdict. From this statement of law defendants, when in extremity, commonly resort to the contention that, not knowing all the conspirators or not knowing all the others were doing, they are responsible only for what they themselves were doing when caught, and as that usually is only a part...