People v. Patterson

• Decision Date: 27 March 1959
• Docket Number: Cr. 6282
• Citation: 337 P.2d 163,169 Cal.App.2d 179
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Donald C. PATTERSON, Defendant and Appellant.

Page 163

337 P.2d 163

169 Cal.App.2d 179

PEOPLE of the State of California, Plaintiff and Respondent, v. Donald C. PATTERSON, Defendant and Appellant.

Cr. 6282.

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

March 27, 1959.

Hearing Denied May 20, 1959.

Morris Lavine, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

A jury found defendant guilty of violating Health and Safety Code, section 11714 in that he unlawfully furnished a narcotic (marijuana) to Lois Mae Aleshire, a minor. He has appealed from the judgment and from the order denying his motion for a new trial.

Viewed in the light most favorable to the party successful in the trial court (see People v. Caritativo, 46 Cal.2d 68, 70, 292 P.2d 513), the following is a summary of the pertinent facts: On July 27, 1957, Miss Aleshire, then 16 years of age, accompanied Bob Jones and a boy named Allen to the home of a girl named Linda, in the Echo Park district of Los Angeles. They arrived around midnight. There were a number of people at Linda's home. While Miss Aleshire was with Bob Jones, Talking with some other people, defendant inquired of her whether she and Bob wanted to 'toke up,' which she understood to mean smoke marijuana. If so, defendant advised them to go downstairs to the bedroom. She and Bob went on downstairs as suggested by defendant; he followed them shortly. When he came into the bedroom he produced a cigarette, lit it and handed it to Miss Aleshire. She took a puff and then handed it to Bob. The cigarette was then rotated among the three, who were the only persons in the room. When the cigarette was almost consumed, defendant took the back of a match box and rolled it until it was round, making a kind of cigarette holder out of it. This is called a 'crutch.' Then defendant put the remainder of the cigarette into this crutch and the three of them contuned to smoke it until it was entirely consumed. Miss Aleshire had four or five puffs or drags on this cigarette.

The cigarette was shorter and smaller in dismeter than an ordinary cigarette. It was firmly wrapped and 'tucked in' a both ends. Before the cigarette was smoked it was uncapped; that is, one end of the cigarette was squeezed until the tucked in part came out. The cigarette made a popping noise when it was being smoked, as there was a seed in it; it smelled like burning leaves. Approximately a half hour later another such cigarette was produced and lit by defendant and was smoked. While smoking the cigarette and for some period thereafter Miss Aleshire experienced certain physical sensations: her head felt big and her throat and mouth felt dry; later she became thirsty; she was happy and laughing. These sensations lasted about an hour and a half. After the expiration of that period she felt sleepy, and became hungry, because she 'was smoking marijuana.' Her happy feeling had disappeared; she was tired and wanted to go home and go to bed.

Prior to this incident Miss Aleshire had smoked this type of cigarette some 10 or 15 times. Smoking such cigarettes, she said, makes you 'feel like you're up on clouds.' These cigarettes are about 2 1/2 inches long and burn faster than the ordinary type. She had rolled some of these cigarettes herself on prior occasions; she knew what a 'crutch' for smoking marijuana, was, and was familiar with other jargon of users.

Officer Edwin O. Hall, of the Los Angeles Police Department, who had had special training in the filed of norcotics and extensive experience over a period of years with narcotic users and the effect of smoking marijuana cigarettes upon the user, gave testimony relative to the technique of making such cigarettes, their size as compared to an ordinary cigarette, and the manner of smoking and the odor therefrom. In response to hypothetical questions based on the testimony of Miss Aleshire, Officer Hall expressed the opinion that the cigarette Miss Aleshire smoked on the occasion in question was a marijuana cigarette.

While defendant admitted attending the party at Linda's home on July 29th, and that Bob Jones, whom he talked to briefly, arrived around midnight, he did not remember seeing Miss Alshire there, and denied furnishing her with a marijuana cigarette, or that he had ever seen her smoking marijuana. He denied having gone downstairs to the bedroom that night. He recalled that 'Linda was at the top of the stairs keeping everyone from downstairs because of the baby being asleep down there' and that the baby was a light sleeper. Defendant admitted that he had contacted Robert Jones some four or five days prior to the trial, at which time he asked him to testify that he was not present at the party on July 29th.

In rebuttal, Jones testified that he had known defendant for some nine months; that he took Miss Aleshire to the party at Linda's home on July 29th; that another boy named Allen was with them; that they arrived around midnight; that Miss Aleshire, defendant and the witness went downstairs to a bedroom where defendant produced the cigarette in question, lighted it, took one or two puffs and handed it to Miss Aleshire, who took some puffs, and that two or three cigarettes of this same type were smoked downstairs that night. Jones further testified that defendant contacted him two or three days before the trial and requested him to testify in the negative as to whether Jones was downstairs; whether he was ever given any marijuana by defendant; and as to any question which would implicate defendant.

During the course of deliberation of the jury, one of the jurors became ill. This juror was excused by the court. 'By stipulation of counsel and the defendant personally,' the trial continued with the remaining eleven jurors resuming deliberations and ultimately rendering a verdict of guilty.

Three affidavits based on asserted newly discovered evidence were submitted in support of the motion for a new trial. These were signed by defendant, Robert and Carol Lee Tuttle, and Stewart and Cathy Bernstein.

Stewart Bernstein testified during the course of the hearing on the motion that he was present at the party at Linda's home on July 29th, as was his wife Cathy. According to their affidavit, Cathy became ill sometime before midnight and went downstairs to Linda's bedroom to lie down; that she was accompanied by her husband, Stewart; that they remained in the bedroom until the party broke up at approximately 2:00 a. m.; that there was only one bedroom downstairs and that they occupied that bedroom without anyone else being present, and that neither Miss Aleshire, Bob Jones, nor defendant entered said bedroom during that evening. At the hearing Stewart testified that he was a friend of defendant's, having known him prior to the party; that he heard about defendant's arrest and the reason therefor from several sources prior to Christmas 1957. (The trial started on January 29, 1958.) He further testified that he had seen Linda after having heard of defendant's arrest and that he discussed with her, causally, the reasons for the arrest.

At the hearing on the motion for new trial, Officer Hathaway, of the Los Angeles Police Department, testified that Robert and Carol Lee Tuttle were present in the courtroom every day during defendant's trial; that they also talked with the defendant during the trial. After receiving this evidence and hearing argument, the court denied defendant's motion for a new trial.

In arguing that the evidence is insufficient to support the verdict and judgment, defendant also argues that the court erred in receiving evidence from Officer Hall on the effect of smoking marijuana cigarettes; that no proper foundation was laid for his opinion that the cigarette Miss Alshire smoked on this occasion was a marijuana cigarette; and that in any event the officer's opinion on this question invaded the province of the jury.

We shall first consider defendant's contention that the court erred in permitting Officer Hall to testify as to the effect of smoking marijuana and to express the opinion that the cigarette Miss Alshire smoked at the party in question was a marijuana cigarette. Defendant argues no proper foundation was laid; that is to say, that the officer was not qualified to give an expert opinion on these matters. This same problem was raised in People v. Flynn, 166 Cal.App.2d 501, 333 P.2d 37, with respect to this particular officer. In the Flynn case, as here, defendant was charged with furnishing a minor with marijuana cigarettes which the quartette, including the minor, smoked. In the Flynn case, Presiding Justice White detailed the background, training and experience of Officer Hall (166 Cal.App.2d at page 506, 333 P.2d at page 41), which is substantially the same as that in the instant record; analyzed the principles relating to the qualifications and the opinion testimony of an expert witness; reviewed the applicable authorities and concluded: '* * * we are satisfied from the testimony given by Officer Hall * * * that he had a through knowledge of marijuana * * * gained through experience in interviewing addicts and study, not possessed by the average man. He thus qualified as an expert and as such his opinion was property received.' 166 Cal.App.2d at page 506, 333 P.2d at page 41. We are in accord with this conclusion. See People v. Winston, 46 Cal.2d 151, 155, 293 P.2d 40; People v. Barbera, 50 Cal.2d 688, 691, 328 P.2d 973; People v. Rios, 127 Cal.App.2d 620, 621, 274 P.2d 163.

Defendant argues, however, that Hall's expert testimony, based on a hypothetical question, ¹ was not properly received because it did not take into account the effect upon Miss Aleshire of two dexamil spansules she had taken earlier...