People v. De Paula, Cr. 5616
| Citation | 276 P.2d 600,43 Cal.2d 643 |
| Decision Date | 23 November 1954 |
| Docket Number | Cr. 5616 |
| Court | United States State Supreme Court (California) |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert DE PAULA, Defendant and Appellant. |
Albert De Paula, in pro. per., and Herbert Grossman, Los Angeles, under appointment by the Supreme Court, for appellant.
Edmund G. Brown Atty., Gen., and William E. James, Deputy Atty. Gen., for respondent
Defendant, who admitted two prior felony convictions, was found guilty by a jury on the charge of using a minor for the purpose of transporting heroin in violation of section 11714 of the Health and Safety Code. He appeals from the judgment and the order denying his motion for a new trial. As grounds for reversal, he argues these points: (1) failure of the court to instruct on the law pertaining to the testimony of an accomplice and the necessity for corroboration thereof; (2) insufficiency of the evidence to sustain the conviction and (3) inconsistency of the jury verdicts. We have concluded that there is no merit in defendant's contentions, and that the judgment should be affirmed.
On June 6, 1953, at approximately 10:00 p. m., in the city of Los Angeles, defendant, his codefendant White, and a minor girl, Madonna Tracy, were arrested. The minor girl had in her hand a portion of a gum wrapper, in which there were two paper bindles containing a light brown substance, which was later found to be heroin. Defendant had known the girl for some time. That evening he had met her with his car as she came out of a beauty parlor, told her that White was waiting for them on the corner, and that they would drive down to 5th Street to pick up some heroin. She said that was 'Okay.' Upon arriving at the agreed 5th Street area, defendant gave her $5, which she handed to White. These two then left defendant in the car; White made the purchase of the two bindles, which he gave to the girl; she placed them in the gum wrapper, and both re-entered defendant's waiting car. Defendant, according to the girl, knew that she had the narcotic. He then drove them to her address. It was after they had parked the car and were walking to her apartment to 'shoot the heroin' that the three were arrested and the contraband was recovered by the officers from her possession.
The arms of all three showed needle scab formations over the veins, indicating that they were narcotic users. The officers found equipment for administering narcotics in the girl's room. She testified that it was purchased for her by defendant and that he paid her room rent. An officer testified that a few days after the arrest, defendant stated that he had given the girl money with which to rent a room; that he had visited her there on several occasions; and that she had administered narcotics to him in her room. This same officer also testifed to defendant's account of the events on June 6: that defendant said that he had met the girl that evening, and had driven her and White to 5th Street; that they left the car and went somewhere (but he did not know where) while he remained in the car; that he did not know they were going to buy heroin but he presumed that was where they had gone; and that he did not know that the girl had heroin in her possession until the time of the arrest. Defendant did not testify at the trial.
Section 11714 of the Health and Safety Code provides as follows: 'Every person who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale or peddling any narcotic, or who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any narcotic to a minor, is guilty of a felony * * *.'
Defendant contends that his conviction should be reversed because the girl, Madonna Tracy, was an accomplice within the terms of section 1111 of the Penal Code, and the trial court failed to instruct the jury that her testimony required corroboration. But this section defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' Measured by this statutory test, the minor girl was not an accomplice of defendant. The conduct denounced as a crime by section 11714 of the Health and Safety Code is the use of a minor in the unlawful transportation of a narcotic. The essence of the offense is its tendency to debauch or corrupt minors. People v. Krupa, 64 Cal.App.2d 592, 599, 149 P.2d 416. The use of a minor to transport narcotics necessarily contributes to the delinquency of that minor. People v. Knowles, 35 Cal.2d 175, 186, 217 P.2d 1; see Welf. & Inst. Code, § 702. In such circumstances, 'the minor is regarded as a victim and not as an accomplice whose testimony it is necessary to corroborate under the provisions of section 1111 of the Penal Code.' People v. Deibert, 117 Cal.App.2d 410, 427, 256 P.2d 355, 366.
Defendant argues that since the girl here was concerned in the commission of the crime, she was a principal under section 31 of the Penal Code so as to be liable to prosecution for the identical offense, and section 1111 of the Penal Code, requiring corroboration of the testimony of an accomplice, would therefore be applicable. But 'an accomplice must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction.' People v. Baskins, 72 Cal.App.2d 728, 731, 165 P.2d 510, 511. Since the minor involved is the victim and the offense denounced by section 11714 of the Health and Safety Code is the harmful act to that victim with the resulting harm to society in general, it necessarily follows that in a prosecution under that section the minor involved cannot be held a principal in the sense of being subject to prosecution for the same identical offense, within the meaning of section 1111 of the Penal Code. See People v. Doetschman, 69 Cal.App.2d 486, 489-490, 159 P.2d 418. The same principle applies as in statutory rape cases, in which it has been consistently held that the minor victim is not an accomplice. People v. Murray, 91 Cal.App.2d 253, 256, 204 P.2d 624.
Concededly, the minor girl here involved was guilty of the violation of section 11500 of the Health and Safety Code, in having unlawful possession of a narcotic. However, that offense, though relating to the same contraband, was not 'identical' with that 'charged against the defendant.' She was not using a minor to unlawfully transport a narcotic. Health & Safety Code, § 11714. Even regarding the offenses as similar, that concession would not make the girl an accomplice for 'similarity of offenses is not the same as identity.' People v. Galli, 68 Cal.App. 682, 684, 230 P. 20; People v. Baskins, supra, 72 Cal.App.2d 728, 731, 165 P.2d 510; also People v. Lein, 204 Cal. 84, 86, 266 P. 536; People v. Mimms, 110 Cal.App.2d 310, 314, 242 P.2d 331. If defendant had been charged and convicted of the unlawful possession of a narcotic in violation of said section 11500, then it is arguable that he could not have been convicted on the uncorroborated testimony of the minor who was chargeable with the identical offense. But defendant was not prosecuted under section 11500.
Defendant argues that included in the offense of using a minor to transport narcotics is the lesser offense of illegal possession, and since the girl was also guilty of possession, she is an accomplice. He relies on the rule that 'where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512, 516. Thus in People v. Krupa, supra, 64 Cal.App.2d 592, 598, 149 P.2d 416, 420, where defendant was charged with the violation of both section 11714 of the Health and Safety Code and section 702 of the Welfare and Institutions Code (), the violation of the former section could not be accomplished 'without offending also against' the latter. Accordingly, the latter violation was 'a necessarily included offense' and conviction thereon precluded prosecution on the...
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...to be an accomplice of defendant as to either count.' (51 Cal.2d at pp. 149--150, 330 P.2d 763, 768. See also People v. DePaula (1954) 43 Cal.2d 643, 647, 276 P.2d 600; People v. Medina (1961) 198 Cal.App.2d 224--230, 17 Cal.Rptr. 722; People v. Sanchez, supra, 197 Cal.App.2d 617, 621, 17 C......
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...and it is not our function to reappraise its effect. (People v. Merkouris (1959), 52 Cal.2d 672, 344 P.2d 1; People v. De Paula (1954), 43 Cal.2d 643, 649(9), 276 P.2d 600; People v. Carnine (1953), 41 Cal.2d 384, 389(4), 260 P.2d 16; People v. Frankenthal (1949), 91 Cal.App.2d 189, 195(2, ......
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People v. Felton, E033333.
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