People v. Partin

• Decision Date: 01 September 1967
• Docket Number: Cr. 357
• Citation: 254 Cal.App.2d 89,62 Cal.Rptr. 59
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Arthur Lee PARTIN, Defendant and Appellant.

Page 59

62 Cal.Rptr. 59

254 Cal.App.2d 89

The PEOPLE, Plaintiff and Respondent, v. Arthur Lee PARTIN, Defendant and Appellant.

Cr. 357.

Court of Appeal, Fifth District, California.

Sept. 1, 1967.

Hearing Denied Oct. 25, 1967.

Ronald L. Ruiz, San Jose, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Raymond Momboisse and Anthony S. Dick, Deputy Attys. Gen., for plaintiff and respondent.

CONLEY, Presiding Justice.

Arthur Lee Partin, more than 21 years of age, was convicted on two counts of violation of section 11532 of the Health and Safety Code for selling marijuana to Christopher Robert O'Neil, aged 16 years, on two occasions. He was sentenced to state's prison on each count for the term prescribed by law, with the sentences to run concurrently.

The evidence for and against the defendant adduced respectively by the prosecution and the defense was sharply conflicting. Unquestionably, there was perjury on one side or the other. This court cannot retry the case, or test the accuracy and good faith of the witnesses. Neither is it necessary to prove guilt in this court to a moral certainty and beyond all reasonable doubt. That is a rule controlling the jury's deliberations; but here, the only permissible inquiry is whether there was substantial evidence to support the verdicts returned by the triers of fact. (People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Hillery, 62 Cal.2d 692, 702--703, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Paisley, 214 Cal.App.2d 225, 231, 29 Cal.Rptr. 307.)

The testimony for the People, if accepted, as it was, by the jury, was amply sufficient to support the convictions. Christopher O'Neil, a 16-year-old high school boy, testified that in December of 1965 the defendant sold him a match box full of material similar in appearance to 'green tobacco' with seeds in it, which he stated to be marijuana. The alleged place of sale was the residence of the Murphy family on Oakwood Drive in the City of Modesto. When O'Neil smoked the contents of the box, he became 'high'; the effect was similar, he said, to intoxication from alcohol. Again, early in January, 1966, according to O'Neil's testimony, he returned to the Oakwood Drive residence, and at that time appellant sold him three match boxes full of the same substance for $10. He testified that he later sold one of these boxes to Bill Sanguenetti, a school boy friend, and this box was traced to Bernard Galloway, still another high school student, who had given Sanguenetti $5 to secure such a box.

O'Neil participated in smoking what was in the other boxes, which he bought on the second occasion. He testified that he had smoked marijuana before the first purchase, and it was his opinion that what he bought from appellant and smoked was marijuana.

Reactions and acquired knowledge from the use of a drug such as marijuana qualify a witness to testify that what he later used was the forbidden drug. (People v. Candalaria, 121 Cal.App.2d 686, 690, 264 P.2d 71; People v. Winston, 46 Cal.2d 151, 155--156, 293 P.2d 40.) It should be noted that no objection was made to young O'Neil's statement of opinion that the substance in question was marijuana.

With respect to the 'green tobacco' bought by Bernard Galloway, he smoked the contents of the box, but saved the seeds, placing them in a cellophane bag which he left at his home and which his mother knew about. When the investigation developed, his mother delivered the sack of seeds to a law enforcement officer at his request and it was afterwards properly tested chemically and proved to be marijuana as shown by the evidence of Robert J. Kvick, the state chemist. Thus, there was substantial technical evidence confirming the testimony of young O'Neil with respect to the nature of the substance sold to him by the appellant.

The defendant raises a long series of objections to the judgment, the most weighty of which is the claim that the trial court deprived the appellant of a fair trial by alleged prejudicial misconduct during the hearing of the case. This contention is stressed at the outset by quoting the trial judge's statement made after the verdicts were in and the case concluded insofar as the jury was concerned. Obviously, this utterance in itself, whether true or false as a whole or in its several parts, could not constitute misconduct affecting the trial; we assume that the appellant's counsel quoted it as indicating that the judge was prejudicially unfair in what he had said during the trial itself. The judge's statement made after the completion of the jury's work was as follows:

'Ladies and gentlemen, this concludes your part of the case, and I want to make these observations if I may. You are now discharged from your task in the matter. I want to say right now at least in my judgment, it has no bearing on it at all, but I wholeheartedly concur in your verdict. As a matter of fact I was so concerned about it was I almost took the very rare responsibility that a trial judge has in commenting on the evidence, and to comment. The comment that I intended to make was to merely suggest to you that from the nature of the offense charged against the Defendant in this case, there is rarely a case in which a buyer of a narcotic willingly wants to come in and testify against the seller. I think you were discerning in that very fact, that the young boys were involved, and I think also while the case now is over with, that it must be apparent to all of you as it is apparent to this Court, that there is no crime in the State of California that is quite as serious as this particular offense, and I think that you are all aware of this. I commend you very much for what I think was a very discerning verdict. You have finished your task in the matter. It is a hard task for everyone, but a vicious, dirty, rotten business that I think you all know. Thank you very much for your verdict. You are now discharged.'

A judge is not forbidden to make a comment to the jury, after it has returned its verdict, as to whether or not he agrees with its conclusion. There are not many people who would have the same opinion as the judge 'that there is no crime in the State of California that is quite as serious as this particular offense,' but the court's moral judgment is not at issue, and the judge was entitled to his own opinion if that opinion did not twist his objective duty during the trial as the presiding judicial officer.

We must turn back to the transcript of proceedings before the jury. In doing so, we should keep in mind that a judge trying a case has the duty to speak up when it seems apparent to him that there is something about the testimony of a witness in a trial that should be clarified by a reasonable supplementary examination. (People v. Baldwin, 223 Cal.App.2d 720, 731, 36 Cal.Rptr. 40; People v. Rigney, 55 Cal.2d 236, 241, 10 Cal.Rptr. 625, 359 P.2d 23, 98 A.L.R.2d 186; People v. Ashley, 42 Cal.2d 246, 274, 267 P.2d 271; People v. Butterfield, 40 Cal.App.2d 725, 731, 105 P.2d 628; 48 Cal.Jur.2d, Trial, §§ 385, 386, pp. 391--395.) Of course, as stated in People v. Huff, 134 Cal.App.2d 182, 187--188, 285 P.2d 17, 20, a judge 'should be careful not to throw the weight of his judicial position in a case, either for or against the defendant.'

Many of the witnesses in the present case were evasive, reluctant, or vague. It is our viewpoint that the state of the record justified the trial judge's attempts to obtain clear and truthful responses. (People v. Saunders, 13 Cal.App. 743, 748, 110 P. 825; People v. Lopez, 164 Cal.App.2d 346, 349, 330 P.2d 450; People v. Miller, 41 Cal.App.2d 252, 258, 106 P.2d 239; People v. Darby, 114 Cal.App.2d 412, 437--438, 250 P.2d 743.)

The 16-year-old Christopher O'Neil had testified fully with regard to the purchase from the appellant of marijuana on two occasions and he had pointed out the defendant, Partin, as he sat near his attorney in the courtroom. The following then took place:

'THE COURT: All right. Let me ask you a question, you see Mr. Partin here, the man sitting on the right of Counsel?

'THE WITNESS: Yes, sir.

'THE COURT: Is this the man in December that sold you a match box for $5.00 at his place?

'THE WITNESS: Yes, sir.

'THE COURT: Is he also the man that sold you three match boxes in January for $10.00 at the place where he lives here in Modesto?

'THE WITNESS: Yes, sir.

'THE COURT: All right. Fine.

That's all. You may step down.'

The use of the word 'fine' appears to have been a verbal idiosyncrasy of the judge presiding. There are three instances in the record where he used the expletive after questioning a witness, and it would seem that the meaning was 'You have completely answered my question,' and that it was not intended to, and did not, express approval of the testimony just given by the witness. We cannot see that the specific answers made by the 16-year-old boy to the judge's questions did more than clarify what he had already testified to in identifying the defendant. While this additional testimony might not have been essential in view of the earlier evidence given by the alleged minor purchaser of marijuana, we do not believe that any prejudice resulted.

The witness, John Zakarian, was called to the stand by the state. He was, obviously, a most evasive and reluctant witness. At the beginning of the trial, he had been excluded from the courtroom with other witnesses upon motion of the defendant, and he, consequently, did not hear Christopher O'Neil testify that he had left the three match boxes which he purchased in early January in Zakarian's desk drawer and that he later removed them. Zakarian denied that he knew of any such actions on O'Neil's part. The following then occurred:

'THE COURT: Mr. Zakarian, let me ask you, sir, now, if I heard your testimony correctly--so you will know--there has been testimony in this trial by Mr. O' Neil that he came to your home and that he had three match boxes and he placed...