People v. Pargo

• Decision Date: 19 April 1966
• Docket Number: Cr. 2275
• Citation: 241 Cal.App.2d 594,50 Cal.Rptr. 719
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George Edward PARGO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 719

50 Cal.Rptr. 719

241 Cal.App.2d 594

The PEOPLE of the State of California, Plaintiff and Respondent, v. George Edward PARGO, Defendant and Appellant.

Cr. 2275.

District Court of Appeal, Fourth District,

Division 1, California.

April 19, 1966.

J. Perry Langford, San Diego, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert P. Samoian, Deputy Atty. Gen., for plaintiff and respondent.

WHELAN, Justice.

Defendant appeals from a judgment on jury verdict finding him guilty of grand theft from the person, and of attempted robbery, in violation of Penal Code, section 487, subd. 2.

At about 5:00 a.m. of November 8, 1964, John Leonard Vogan and Charles Cleaver were offered a ride in a car whose driver thereafter forcibly removed from Vogan's wrist a 17-jewel Benrus watch and who, after Vogan and Cleaver alighted from the car, armed himself with a tire iron with which he approached Vogan while demanding a diamond ring which the latter wore. His demand was refused; he then reentered the car and drove away.

A description of the car and driver was circulated by police. About 1:15 a.m. of November 14, defendant, who answered the description of the driver, was seen in a car that answered the description of the car. The car was then being driven by its owner, Mrs. Deweylene Lee. Defendant was arrested.

Vogan and Cleaver identified defendant as Vogan's assailant, and Mrs. Lee's car as appearing to be the car in which they had ridden.

On November 12, defendant pawned, for five dollars, a 17-jewel Benrus watch of the same type as the stolen watch. On November 14, following his arrest and release on bail, defendant redeemed the watch.

Defendant testified that on November 8 he was continuously at the home of Mrs. Moss, a sister of Deweylene Lee, from a time prior to midnight of the previous day until about 12 o'clock noon. He denied that he had committed either crime or that he had been in Mrs. Lee's car the morning of November 8, and declared that the Benrus watch he had pawned was his own.

Mrs. Moss corroborated defendant's testimony that he had been in her home during the relevant period.

Mrs. Lee, who lived with Mrs. Moss, testified that she had been away from home with the car from the night of November 7 until about noon of November 8; that defendant had not been in the car during that period. On cross-examination, Mrs. Lee, over objection, was asked about her use, and the availability for use by her, of a second automobile, a Thunderbird, which she said belonged to her fiance, and as to the periods during which it had been in her possession. She had been interviewed by an investigator from the district attorney's office concerning defendant's possible use of her car on November 8. On cross-examination, she was asked if she had made a statement as to the reason for her being at home on the day of the interview, which she denied. On rebuttal, a witness was called for the purpose of contradicting her testimony as to the period of time she had had possession of the Thunderbird car, another to contradict her testimony that she had not made the questioned statement as to her reason for being home when interviewed by the investigator.

On cross-examination, over objection that it was improper cross-examination, defendant testified that he had, on August 3, 1964, pawned two women's wristwatches; without further objection, he was asked if, and stated that he had, on February 15, 1965, pawned a man's Elgin wristwatch. The defendant volunteered the further information that before August 3, 1964 he had also pawned another woman's watch and a ring.

Defendant was cross-examined, over objection, about a traffic citation issued to him on October 16, 1964, when he was driving Mrs. Lee's car. He had testified that he had never driven the car south of National City. He admitted having received the citation and said there were other people with him in the car at the time. On rebuttal, the officer who had issued the citation testified that defendant was alone in the car; that the incident occurred some five miles south of National City and two miles north of the Mexican border, and that defendant had said he was returning from Tijuana.

On cross-examination of defendant, he was asked if he had been using heroin during the period when the crime was committed. Objection was made. The district attorney explained his purpose of testing the witness' memory, ability to narrate and perception. He produced evidence that sufficiently showed a belief in good faith that defendant was a heroin user. The objection to the question was overruld; a negative answer was given by the witness.

The district attorney, over objection, obtained from defendant information that on May 7, 1965 defendant had registered under section 11850, Health and Safety Code, with the San Diego Police Department because his probation officer had told him to register, and a further denial that defendant was using narcotics on the date of the theft and attempted robbery; a denial that 'as far back as February 1964, he was using narcotics'; an admission that during 1964 he had spent a period of time in local confinement for the use of narcotics; a statement that the period of confinement was for being in possession of an 'outfit' in a residence where he was visiting; and a denial that he had been under the influence of a narcotic at any time in the year 1964, or was an addict.

In rebuttal, Dr. Williams, a medical doctor, testified that as police physician he had examined defendant on February 21, 1964 for the purpose of determining whether defendant was using or under the influence of or addicted to a drug or narcotic; that such examination produced the following:

'* * * the eye pupils were constricted and reacted poorly to light, and I noted the following marks on his arms: in the left elbow fold, in a scarred vein, there were fifteen needle marks; and in the right elbow fold, there was also a scarred vein, but there were no recent needle marks seen. I estimated the ages of these needle marks to vary from fresh; that is, within a few hours old, to about a week old.';

that on questioning by Williams, defendant contended the needle marks were old marks; that in Williams' opinion defendant at the time of the examination was under the influence of a narcotic, probably heroin.

Following the testimony of Williams, the court admonished the jury as follows:

'The jury is at this time admonished that as to the testimony given by this witness, you may not consider the testimony so given in determining the truthfulness or untruthfulness of the statements made by the defendant on the witness stand. You may consider them solely and only as to whether there has, as a result of the use of the drug, if there has been such a use, a dulling of perception and memory and ability to narrate, and that is the only purpose and only basis on which you may consider the testimony as given by the doctor.'

Among the instructions given to the jury before submission was this:

'Evidence was offered in this case for the purpose of showing that the defendant committed another crime than the ones of which he is accused and for which he is on trial in this action, namely, that on February 21, 1964, the defendant was under the influence of a narcotic.

'Such evidence was received for a limited purpose only and not to prove distinct offenses or continual criminality. The original inquiry regarding defendant's ues of narcotics was made solely in connection with defendant's perception, memory and ability to narrate, which are proper inquiries raised when the defendant becomes a witness. Having chosen to extend the scope of inquiry by a complete denial...