People v. Perez

• Decision Date: 24 July 1962
• Docket Number: Cr. 7076
• Citation: 58 Cal.2d 229,23 Cal.Rptr. 569,373 P.2d 617,3 A.L.R.2d 946
• Court: California Supreme Court
• Parties: , 373 P.2d 617, 3 A.L.R.3d 946 The PEOPLE, Plaintiff and Respondent, v. Salvador PEREZ, Defendant and Appellant.

Page 569

23 Cal.Rptr. 569

58 Cal.2d 229, 373 P.2d 617, 3 A.L.R.3d 946

The PEOPLE, Plaintiff and Respondent, v. Salvador PEREZ, Defendant and Appellant.

Cr. 7076.

Supreme Court of California, In Bank.

July 24, 1962.

Joseph A. Ball, Long Beach, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for plaintiff and respondent.

WHITE, Justice.

This is an appeal by defendant Salvador Perez from a judgment of conviction for sale of heroin. (Health & Saf.Code, § 11501.) Defendant was sentenced to state prison following trial before a jury, where he was represented by the public defender. In addition to numerous contentions concerning alleged misconduct committed by the prosecutor at trial which defendant asserts prevented his being afforded an adjudication as to guilt solely on the basis of the evidence presented, the sufficiency of the evidence to sustain the judgment of conviction is herein challenged.

The record reveals that the People's case consisted solely of the testimony of one police officer, Rastine Calhoun, who had operated as an undercover agent of the police department in the City of Los Angeles, and exhibits authenticated only by that officer's testimony. Officer Calhoun testified as follows on direct examination: '(O)n December 7, 1960, at approximately 6:45 p. m., another person and I went into a doughnut shop at the corner of Third and Broadway. This other person ('Bob') told me that he saw the defendant sitting * * * at the counter. * * * (Bob) said, 'There's Shorty now.' That is what he referred to the defendant as. Then * * * Bob went over and had a short conversation with the defendant, and (Bob) turned and walked out of the doughnut shop. I followed Bob to the corner of Third and Broadway, and Bob said to me, 'Shorty told me to walk around the corner and wait for him. '""' According to the officer, defendant came around the corner a few minutes later. Calhoun's testimony continued: '(B)y that time the defendant was standing within approximately 10 yards from where Bob and I were standing, and Bob went over to the defendant and had a few words with him, and handed him the ten dollar bill that I had just handed him, and I saw the defendant take something from his mouth and put it into Bob's left hand, and then Bob walked over to where I was standing and then handed me a moist orange balloon.' A police chemist testified that the balloon which Calhoun stated he received from defendant contained heroin.

Officer Calhoun testified that following the witnessed sale he went to the police department's Narcotic Division, searched through the photograph file, and that he there found an accurate photograph of defendant. The officer admitted that the photograph of defendant was not found the day of the sale, but '(m)aybe a day or so after.' Defendant apparently had a prior record as a narcotics user.

On cross-examination the officer admitted that since the transaction occurred at 6:45 p. m. on a December day, '(i)t was a bit dark.' But he stated that he had stood beside defendant while inside the doughnut shop, and that he had then seen defendant's face. Calhoun testified that he had seen the defendant while inside the doughnut shop for a period of 'about two or three minutes,' before following Bob outside. Although the undercover officer testified that he was approximately 10 yards from defendant at the time of the alleged sale, he stated: 'I think I could get a good view of the defendant. * * * The evening was dark in a sense, but it was right on the sidewalk, and if I remember correctly, we had quite a big showcase window and the lights were on in the building, and for that reason I could see the defendant quite well.'

Officer Calhoun stated that he had never seen defendant Perez prior to their alleged encounter at the doughnut shop, but he affirmed on cross-examination that he 'recognized the defendant from among these mug shots.' When asked, 'How many mug shots did you look at altogether, before you picked out the defendant,' the officer responded: 'Oh, I couldn't say. We have quite a few pictures.' Officer Calhoun was also asked on cross-examination, '(W)ere you involved in any other undercover buys from anyone else?' He answered that he had been engaged in approximately 30 undercover purchases. The officer had earlier stated that his temporary assignment as an undercover narcotics agent had been for a period of three months. Calhoun further testified that the $10 assertedly acquired by defendant was not market in any way, and that no photographs or recordings were made of the transaction. It was also apparently not possible to extract fingerprints from the moist balloon which contained the heroin.

In his testimony defendant denied the alleged narcotic transaction, and stated that he had been in the company of his girl friend, Anna Marie Martinez, during the early evening hours of December 7, 1960, He stated that he remembered that day because it was Pearl Harbor Day. Defendant further testified that subsequently he had unsuccessfully sought to locate Miss Martinez, that he thought she had gone to Denver, but that he didn't know her address there. Defendant also denied that he had ever been known as 'Shorty,' though he stated that he was known as 'Chave' or 'Chavita.' The record reflects that Chavita means ,'little' or 'Short' Salvador, but does not stand for 'Shorty.'

Robert Edward Hayward, also known as Robert Diamond, testified on behalf of defendant. He denied that he was the individual called 'Bob', whom Officer Calhoun had stated was involved in the within narcotics transaction. Hayward also denied ever having seen defendant Perez prior to the instant trial. However, Hayward was identified at the trial by Officer Calhoun as the individual, 'Bob', who had served as the contact with defendant in the instant transaction.

Another witness for the defense was Naomi Davalos, who testified that she was a neighbor of defendant, that she had known him at intervals over the past 10 years, and that she had never known of anyone who referred to defendant as 'Shorty.' Defendant's half-brother, Ricardo Rivera, also testified that he had never heard anyone refer to defendant as 'Shorty.'

Defendant contends that he was convicted 'on the wildest sort of surmise, and conjecture,' and that the evidence, since based only upon Officer Calhoun's testimony, was insufficient to justify the conviction or its affirmance on appeal. Concerning this contention respondent argues that the instant case is within the holding in such cases as People v. Casado, 181 Cal.App.2d 4, 8, 4 Cal.Rptr. 851, and People v. Smith, 174 Cal.App.2d 129, 134, 344 P.2d 435, to the effect that the positive testimony of one police officer that he purchased narcotics directly from a defendant is sufficient to sustain a conviction of sale of narcotics. But under the factual situation herein it cannot be said that the instant sale was made directly to the officer, so that respondent's cited cases are not persuasive. Officer Calhoun testified that he did not speak to the intended seller while inside the doughnut shop, and according to the officer's statement he was 10 yards away from the actual sale transaction. Thus the within sale was made directly to the officer's contact man, rather than to the officer.

However, while it is readily apparent that the amount of evidence contained in the record in support of the People's case and the judgment, when viewed with the sharply conflicting evidence on behalf of defendant, may not furnish sufficient proof for assertion of defendant's guilt 'to a moral certainty' (People v. Nichols, 52 Cal.App.2d 31, 35, 125 P.2d 513), this court may not weigh the evidence in determining whether it was sufficient to sustain the judgment. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.) We are thus compelled to assume, for purposes of determining the sufficiency of the evidence, that the jury returned its verdict upon the basis of the testimony of Officer Calhoun that it was defendant who sold the within narcotics. It cannot be said that the circumstances testified to by the officer do not "reasonably' justify the verdict of the jury' (People v. Carvalho, 112 Cal.App.2d 482, 489, 246 P.2d 950, 955), and the weight to be accorded that officer's testimony was a matter for determination by the jury. (People v. Williams, 27 Cal.2d 220, 227, 163 P.2d 692.) Thus as a matter of law the evidence was sufficient to support the judgment.

However, we are urged to consider several instances of alleged misconduct by the prosecuting attorney which, defendant contends, in their cumulative effect tipped the scales against him in this case where evidence pointing to guilt was minimal. (See People v. Zerillo, 36 Cal.2d 222, 233, 223 P.2d 223; People v. Ford, 89 Cal.App.2d 467, 470-471, 200 P.2d 867.) It is initially argued that the prosecutor improperly cross-examined defendant's witness 'Bob' Hayward, following his negative testimony concerning the narcotics transaction to which Officer Calhoun testified.

Hayward's cross-examination began as follows: 'Q: Mr. Hayward, are you sometimes called Bob? A: Occasionally. Q: Have you been convicted of a felony? A: No. Mr. Larsen (defense counsel): Your Honor, at this time I move to cite the District Attorney for misconduct, if he has no proof of a felony.' The following proceedings then occurred at the bench, outside the hearing of the jury: 'Mr. Boon (deputy district attorney): I submit this isn't a matter of requiring proof. It is a matter of asking the question in good faith. Not only is it obvious that this man is in custody at the present time, but we had an earlier proceeding in which Mr. Larsen inquired about this man and inquired as to his status as being on parole or on probation. Mr. Larsen: I believe he stated he was not. Mr. Boon: I don't believe that is correct. Mr. Larsen: I...