People v. Perez
| Decision Date | 17 November 1954 |
| Docket Number | Cr. 2974 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Raul PEREZ, Defendant and Appellant. |
Gregory S. Stout, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Assistant Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
Defendant appeals from his jury conviction for violation of section 11500, Health and Safety Code (possession of marijuana).
Questions Presented.
Alleged error in rulings on evidence and in refusing to give certain instructions. No attack is made on the sufficiency of the evidence.
Evidence.
On December 29, 1952, at 10:30 a. m., Officers Etherington and White of the San Francisco Police Bureau of Special Services and Lamport and Hernandez of the San Mateo County District Attorney's office entered room 421 of the Yube Hotel in San Francisco. Admitted by one Dolores Johnson, they found defendant in bed. Defendant's person, the bed and bedding and the contents of the room were searched without finding any contraband. Lamport then searched the closet, on the floor of which was soiled wearing apparel. He found under the clothing and on the floor a marijuana cigarette. Lamport called Etherington to the closet and pointed out the cigarette. Etherington picked it up and showed it to defendant. Defendant admittedly denied knowledge of its presence and claimed the officers were trying to 'frame' him. Denying that they were so doing, Etherington pointed out to defendant that the cigarette was free from dust. Defendant did not comment. The officers then commenced questioning Dolores, whereupon defendant stated, 'Leave her out of this, she has nothing to do with this.' Defendant asked Lamport to step out into the hall with him. Hernandez and Etherington went along. There defendant asked the officers to give him a break. They said they would 'if he would turn his connections.' Defendant then stated he would get the authorities a four or five ounce can of heroin and a four or five pound case of marijuana. The officers agreed to withhold the evidence until he produced these cases. Defendant stated he would call either Lamport or Etherington within two days. The officers turned him loose. On the stand defendant denied all knowledge of the cigarette and stated that he agreed to get the cases of narcotics because the officers threatened him with arrest if he did not. He stated that he tried unsuccessfully to get the narcotics, had even started using heroin again in this behalf. He had phoned Lamport twice to report his failure, actually reaching him on one occasion.
Subsequent to the incident in his hotel room and before being arrested on this charge, defendant pleaded guilty to the independent charge of being a narcotic addict (using heroin). At the preliminary examination on the instant charge he pleaded guilty. Subsequently, in the superior court, he was permitted to change his plea to not guilty. He was represented by counsel when he pleaded guilty. He apparently thought that by doing so he would get a county jail sentence which he could serve concurrently with the 90 day sentence he was serving for addiction. However, he did not claim that any officer or official had told him so; in fact he stated that none had done so. He admitted making the statement that he would be willing to accept a six months confinement at the San Francisco County Jail, where he was serving out the addiction penalty, on the instant charge.
The trial court sustained an objection to defendant's question of Inspector Etherington as to whether the officers had a search warrant when they entered defendant's hotel room. In People v. Berger, Cal.App., 274 P.2d 514, this court in an opinion written by Mr. Justice Fred B. Wood, traced the history in California of the rule that evidence is evidence no matter how illegally obtained. See People v. Kelley, 22 Cal.2d 169, 172, 137 P.2d 1. The Supreme Court granted a hearing in the Berger case, and presumably will consider this rule further. However, at the present time the trial court and this court are bound by it. Therefore the question of whether or not the officers here had a search warrant is both immaterial and irrelevant. Hence the court properly ruled.
At the preliminary examination Etherington testified that Lamport, after showing defendant the cigarette, told defendant that with 'your background you know some of the big dope fiends' to which defendant replied that he 'would be willing to produce some of the narcotic peddlers if we gave him a break on the cigarette * * *.' At the trial Etherington testified that both he and Lamport told defendant that 'we knew he was a big dealer,' 'You are one of the biggest peddlers to juveniles in San Francisco and San Mateo County,' You already have one of the boys out in the Mission involved deeply in narcotics,' and that defendant was supplying narcotics in San Mateo County also. The court refused to admit the above testimony given at the preliminary examination on the ground that it did not differ from that given on the trial. Obviously there is quite a difference between accusing a man of knowing big dope peddlers and of being one himself. Again, a comparison of the testimony of the witness at the two different times shows that the witness in giving the same conversation certainly 'piled it on' at the trial. The jury was entitled to compare the two versions, not for the purpose of determining whether defendant was a big peddler or only knew those who were, but as bearing on the credibility of the officer's testimony, so that the jury could determine whether the witness "* * * has made at another time inconsistent and contradictory statements regarding a material issue, which statements are in conflict with his testimony at the trial", the test of impeachment given in People v. McCoy, 25 Cal.2d 177, 186, 153 P.2d 315, 320. The evidence should have been admitted. However, we cannot say that it was prejudicial. Defendant admitted agreeing to obtain heroin and marijuana for the officers, and taking all the circumstances of the case, the failure to admit this evidence could not have affected the verdict.
On cross-examination defendant asked Inspector Lamport if in one of the conversations at defendant's room, defendant had not stated that about three days before agents from the Bureau of Narcotics Enforcement had been in the room and found nothing. Objection to this question was sustained. We think properly so. This statement was not concerning the then transaction but was merely a self-serving declaration that in itself would have no bearing on whether Perez possessed narcotics on the day in question, at least three days later. It was not relevant. See People v. Dabb, 32 Cal.2d 491, 197 P.2d 1. Nor does the statement fall within the res gestae rule which requires that it be the natural and spontaneous outgrowth of the act, and not the mere relation of a past transaction. People v. O'Donnell, 11 Cal.2d 666, 81 P.2d 939; People v. Brown, 15 Cal.App. 393, 114 P. 1004. Nor was it admissible under the rule of section 1854, Code of Civil Procedure, that when part of a conversation is admitted the opposite party may have the entire conversation admitted. The rule 'is necessarily subject to the qualification that the court may exclude those portions of the conversation not relevant to the items or subject matter thereof which have been introduced.' People v. Hymer, 118 Cal.App.2d 28, 35, 257 P.2d 63, 67; see also People v. Richards, 74 Cal.App.2d 279, 288, 168 P.2d 435.
On direct examination Inspector Etherington testified that he searched the defendant as he lay in bed. On cross-examination defendant asked the witness if he examined defendant's person. The witness replied that he did. Thereupon defendant asked, On redirect, plaintiff asked if the witness saw any marks on defendant's body. Defendant's objection to the witness testifying to the marks was overruled. The witness then stated that he found on the inner folds of defendant's arms marks of a hypodermic needle. Marijuana is not administered by needle. Defendant testified that he had used heroin for over a year and a half prior. We can find no case and have been cited to none discussing the question of admissibility of evidence of scars from use of a needle-requiring drug on the question of possession of a nonneedle-requiring one. In People v. Gin Hauk Jue, 93 Cal.App.2d 72, 75, 208 P.2d 717, in a prosecution for possession of opium, it was held that evidence that defendant's arms showed puncture marks, apparently made by hypodermic needles, was admissible as a circumstance showing possession by defendant of the opium found by the officers. However, there the defendant had denied possession of a hypodermic needle and opium found in his room and had claimed that a solution containing opium also found there and which was shown to be of the type used in needles was merely a mouth wash. Evidence of use of hypodermic needles unquestionably is a circumstance indicating a defendant's knowledge of a narcotic which is administered that way and of its possession. But is that true concerning a narcotic which is not administered that way? Prior addiction to marijuana would be relevant to the issue of 'guilty knowledge' of marijuana's nature, it was so held of prior use of opium on the charge of possession of opium in People v. Gin Hauk Jue, supra; but prior use of heroin is not necessarily relevant to a guilty knowledge of the less dangerous narcotic, marijuana. In any event, there could have been no prejudice in the admission of this testimony. The case abounds with evidence of defendan...
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