People v. Ollado

• Decision Date: 22 November 1966
• Docket Number: Cr. 9693
• Citation: 55 Cal.Rptr. 122,246 Cal.App.2d 608
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eugene Ray OLLADO, Defendant and Appellant.

Page 122

55 Cal.Rptr. 122

246 Cal.App.2d 608

The PEOPLE, Plaintiff and Respondent, v. Eugene Ray OLLADO, Defendant and Appellant.

Cr. 9693.

Court of Appeal, Second District, Division 3, California.

Nov. 22, 1966.

Dahlstrum & Walton and Richard A. Walton, Hollywood, under appointment by the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., A . Barry Cappello, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Eugene Ray Ollado was convicted in a nonjury trial of two offenses of the sale of heroin, one on June 12, 1963 and the other June 13, 1963; he was sentenced to state prison and took an appeal from the judgment. Counsel was appointed.

Under stipulation the trial judge read the transcript of the preliminary hearing and additional evidence was received. The People produced evidence of the following facts: Count I. On June 12, 1963, at approximately 5:00 p.m., Primo T. Orosco, a narcotic agent for the State of California, accompanied one Danny Brown to 732 West Sepulveda Street, San Pedro. Upon arrival, Agent Orosco observed Danny Brown meet with appellant. Danny Brown returned to the State vehicle and said that appellant would not meet Orosco and requested $30. Agent Orosco gave Mr. Brown $30 of State funds. Agent Orosco observed Mr. Brown meet again with appellant. They met in the driveway, walked back toward the house out of view for approximately three to five minutes. When Mr. Brown returned to the State vehicle he handed Agent Orosco a paper bindle containing a powdered substance. This substance was later determined by an expert chemist to be heroin.

Count II. On June 13, 1963, Agent Orosco and Danny Brown returned to 732 West Sepulveda Street. At this address Agent Orosco had a conversation with appellant regarding the purchase of one-quarter ounce of heroin. Appellant requested $75, stating he had to go up the hill and would be approximately ten or fifteen minutes, and for Mr. Brown and Agent Orosco to wait in the area of his house in a patio. Agent Orosco gave appellant $75 of State funds and observed appellant walk west on Sepulveda Street. Appellant was gone approximately twenty to thirty minutes and upon his return he joined Mr. Brown and Agent Orosco at the rear of the residence. Appellant removed a green balloon from his mouth and handed it to Mr. Brown. Mr. Brown immediately handed the green balloon to Agent Orosco. Appellant stated it was strong stuff, to be careful with it, to cut it before they used it. Appellant also gave Agent Orosco a phone number to be used regarding future transactions. Agent Orosco asked appellant when he could come back to score some more. Appellant said to call him, that Agent Orosco was not to come over to appellant's house to purchase anything less than a quarter, that if he wanted 'caps' not to come over. Agent Orosco took the green balloon, marked it for identification, placed it in a cellophane bag, then sealed it in a State of California evidence envelope. This envelope was retained in his possession until he handed it to Chemist-Agent William Arnold. The contents were then also determined to be heroin.

Orosco testified in the preliminary to the circumstances of the purchases. Appellant did not testify at all concerning the alleged sale on June 12th (County I). He testified that he sold a quarter ounce of heroin to Orosco for $75 on June 13th and his account of the transaction was substantially the same as that of Orosco. This sale was made at the solicitation of Brown who represented to him that he (Brown) and the man who was supplying the money were 'sick,' meaning that they were suffering withdrawal symptoms and were greatly in need of heroin to relieve their distress. Appellant had known Brown for seven years and knew him to be addicted.

With respect to Count I there was no evidence that Brown was searched before he met appellant to make certain he was not carrying heroin or that he was searched for money after he returned with the heroin.

The first contention of appellant as to Count I is that in the absence of evidence that Brown did not carry the heroin when he contacted appellant and in view of the evidence that the two men were out of sight of Orosco for three to five minutes, there was insufficient evidence that appellant furnished the heroin. For this proposition appellant cites People v. Barnett, 118 Cal.App.2d 336, 257 P.2d 1041; People v. Richardson, 152 Cal.App.2d 310, 313 P.2d 651; People v. Morgan, 157 Cal.App.2d 756, 321 P.2d 873 and People v. Robison, 193 Cal.App.2d 410, 14 Cal.Rptr. 181.

These cases and numerous others which are in accord are merely illustrations of the rule that where the evidence of guilt is purely circumstantial it is legally insufficient unless it is so complete as to exclude every reasonable hypothesis of innocence. Under this rule it is held that where the case of the People consists solely of evidence that an informer was given money with which to purchase a narcotic, was seen to contact the defendant and afterwards returned with a narcotic, the evidence is insufficient in the absence of evidence that the informer did not have the narcotic on his person when he left or the money when he returned and no evidence that the defendant delivered anything to the informer.

If the only evidence had been that which described the events that occurred on June 12th we would have to apply the rule of the foregoing cases and hold the evidence insufficient as to Count I. Such is not the case. Even when there is no search of the informer and no direct evidence that the informer received anything from the defendant, identification of the defendant as the supplier of the narcotic may be established by other evidence which reasonably and logically tends to prove that fact. (People v. Valencia, 156 Cal.App.2d 337, 319 P.2d 377; People v. Sauceda, 199 Cal.App.2d 47, 18 Cal.Rptr. 452.)

Thus we come to the critical question as to the significance of the evidence of the transaction on June 13.

The rule respecting admissibility of evidence of other crimes was stated in People v. Peete, 28 Cal.2d 306, at pages 314--315, 169 P.2d 924, at pages 929--930: 'It is settled in this state, however, that except when it shows merely criminal disposition (citations), evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. 'The general tests of the admissibility of evidence in a criminal case are: * * * does it tend logically, naturally, and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not.' (Citations.) 'It is true that in trying a person charged with one offense it is ordinarily inadmissible to offer proof of another and distinct offense, but this is only because the proof of a distinct offense has ordinarily no tendency to establish the offense charged. But whenever the case is such that proof of one crime tends to prove any fact material in the trial of another, such proof is admissible, and the fact that it may tend to prejudice the defendant in the minds of the jurors is no ground for its exclusion.' People v. Walters, 98 Cal. 138, 141, 32 P. 864 * * *'

It is the universally accepted rule that evidence of other crimes may be received to identify the defendant as the perpetrator of the offense for which he is on trial.

In People v. Scott, 218 Cal.App.2d 249, at pages 253--254, 32 Cal .Rptr. 225, at page 228, the court stated: 'Where the identity of the defendant is in issue, evidence that he committed other crimes or attempts under circumstances which were remarkably similar to the one charged may be admitted for the purpose of showing that the defendant did in fact commit the crime charged. (People v. Cavanaugh (1955) 44 Cal .2d 252, 265--266, 282 P.2d 53.)' This statement of the rule is supported by overwhelming authority.

As to the admissibility of evidence of other crimes it is said in 3 A.L.R. Anno. 1540: '* * * (W)here evidence tends to aid in identifying the accused as the person who committed the particular crime under investigation, it is admissible, in spite of the fact that it tends to show the guilt of the accused of other crimes for for which he is not on trial.' In addition to the multitude of cases cited in support of the rule many others are listed in annotations in 22 A.L.R. 1016, 27 A.L.R. 357 and 63 A.L.R. 602. The cases listed that are of particular interest are those in which the identity of the defendant as the seller of liquor was in issue and evidence of other sales made by defendant was admitted to identify him as the one who made the sale for which he was on trial. People v. Cervantes, 177 Cal.App.2d 187, 2 Cal.Rptr. 107, held that evidence of a separate sale of heroin was relevant and admissible as tending to identify the defendant as the one who made the sale for which he was on trial.

Admissibility of the evidence of other crimes usually comes in question when it is offered to prove the commission of some other crime and the defendant interposes an objection. Before ruling on the objection the court must determine from evidence of the nature of the crime and the circumstances of its commission whether it meets the foregoing test. Here the evidence of the June 13th transaction was admissible under Count II and was not subject to objection. Necessarily, the contention of defendant was that the evidence could not be considered by the court as to Count I which was, in reality, the same as a challenge to its admissibility.

It was established that a crime was committed on June 12th; Orosco parted with $30 and received heroin in return; he thought the narcotic came from Ollado and that...