People v. Pijal, Cr. 10470

• Citation: 109 Cal.Rptr. 230,33 Cal.App.3d 682
• Decision Date: 26 July 1973
• Docket Number: Cr. 10470
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ashton PIJAL, Defendant and Appellant.

Page 230

109 Cal.Rptr. 230

33 Cal.App.3d 682

PEOPLE of the State of California, Plaintiff and Respondent, v. Ashton PIJAL, Defendant and Appellant.

Cr. 10470.

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

July 26, 1973.

Hearing Denied Oct. 3, 1973.

Fred Caploe, Mountain View (court appointed), for defendant and appellant.

Evelle J. Younger, Atty. Gen. of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KANE, Associate Justice.

Defendant Ashton Pijal appeals from a judgment of conviction entered on a jury verdict finding him guilty of unlawfully furnishing and selling a restricted dangerous drug in violation of Health and Safety Code, section 11912.

The pertinent facts may be summarized as follows: On May 19, 1971, San Francisco Police Officer Moroschok ('Moroschok') was working as an undercover narcotic agent attempting to make buys of narcotics and/or dangerous drugs. He was accompanied by a police informant, named Dotty, who had been introduced to him by his supervisor, Officer Hendahl. At approximately 5 p.m., while in his Volkswagen with Dotty, near the intersection of Eddy and Hyde Streets in San Francisco, Moroschok spotted appellant on the sidewalk. He stopped his car at the curb and called appellant to his vehicle. After appellant and Dotty, who had met several times before, greeted each other, Moroschok asked appellant if he was 'holding.' ¹ Appellant replied that he was and expressed his willingness to sell, but showed reluctance to do so one the street because of fear of being caught by the police. Thereupon Moroschok invited him into his automobile. Getting into the rear seat of the car, appellant asked Moroschok how many tablets he wanted. Moroschok told him $10 worth. Appellant counted 10 tablets out of a clear plastic bottle with a prescription label on it. After Moroschok paid him $10 appellant exited the car and left. Moroschok then drove around the corner, dropped Dotty off, and returned to the Hall of Justice. At the Hall of Justice he marked two of the tablets with his star number and initial and placed them in an envelope. A later laboratory test revealed that the tablets contained Desoxyn (a trademark for preparations of methamphetamine hydrochloride to which the parties stipulated at the trial). Subsequently, Moroschok identified appellant from a series of mug shots; and on May 31, 1971 Officer Deters obtained an arrest warrant and arrested appellant.

Appellant, testifying on his own behalf, offered an alibi defense. He insisted that at the time of the commission of the crime charged he was either at a local restaurant or at the office of his doctor, and denied selling Moroschok a dangerous drug at any time or even seeing him on May 19, 1971. Appellant, however, admitted that over a period of thirty-odd years he had been convicted on a number of occasions for narcotic violations, that he knew what narcotics were, and also that he knew that Desoxyn is an amphetamine preparation which is considered a dangerous drug.

Denial of Probation

The record discloses that appellant applied for probation which was denied by the trial court because of the long record of prior convictions. Based upon a colloquy during which the trial judge remarked that he was not aware of the penalty provisions of Health and Safety Code, section 11912, under which appellant was convicted, appellant contends that the trial court abused its discretion because it failed to consider all the facts pertinent to the determination of his application for probation. There is no merit in this contention.

At the time relevant to the instant case, section 1203 of the Penal Code read in part that 'in every felony case in which the defendant is eligible for probation, before any judgment is pronounced, and whether or not an application for probation has been made, the Court must immediately refer the matter to the probation officer to investigate and to report to the court, at a specified time, Upon the circumstances surrounding the crime and concerning the defendant And his prior record, which may be taken into consideration either in aggravation or mitigation of punishment. . . . At the time or times fixed by the court, the Cuort must hear and determine Such application, if one has been made, or in any case the suitability of probation in the particular case, and in connection therewith Must consider any report of the probation officer, and Must make a statement that it has considered such report which must be filed with the clerk of the court as recorded in the case. If the court shall determine that there are circumstances in mitigation of punishment prescribed by law, or that the ends of justice would be subserved by granting probation to the defendant, the Court shall have Power in its discretion to place the defendant on probation . . .' (emphasis added).

Appellant concedes, as he must, that the trial court minutely complied with the foregoing provisions of the statute. Thus, it is undisputed that the case was referred to the probation officer who made the necessary investigation and filed his report with the court. In addition, there was a hearing on appellant's application in which the trial court did consider the probation officer's report, and in the exercise of its sound discretion rejected the probation officer's recommendation, taking into consideration as aggravating circumstances the eleven prior convictions admitted by appellant. Appellant's assertion that the trial court should have considered not only the foregoing factors but also the punishment under the new conviction is entirely groundless. In the language of the statute it is not the punishment (which is prescribed by law and over the duration of which the court has no power) (In re Minnis (1972) 7 Cal.3d 639, 102 Cal.Rptr. 749, 498 P.2d 997), but the Circumstances in mitigation of such punishment which must be taken into account by the court in granting or denying the probation. The cases likewise emphasize that the trial court must not decide the question of probation until it is in possession of the relevant Facts, especially those contained in the probation report (People v. Wade (1959) 53 Cal.2d 322, 338, 1 Cal.Rptr. 683, 348 P.2d 116).

We further observe that due to his prior 11 felony convictions appellant fell within the category where denial of his application for probation, as a general rule, was mandatory under the statute ² and it could have been granted, if at all, only in an 'unusual' case. Since appellant failed to present such an unusual case his application should have been denied as a matter of law. The trial court, however, out of sheer grace and clemency, struck appellant's prior convictions thereby making it possible for his application for probation to be considered at all. Under these circumstances, appellant's claim that the trial court abused its discretion in denying him probation, which should have been rejected as a matter of law in the first place, is entirely unfounded and borders on frivolity.

Pretrial Identification

Appellant next asserts that the pretrial photographic identification by Moroschok was illegal and resulted in a denial of his right to due process. Appellant predicates his claim on the single circumstance that the identification procedure took place after 'the arbitrary delay of about a week' following the commission of the crime. Appellant's argument is obviously meritless.

It is established beyond dispute that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on due process grounds only if the photographic identification procedure was so Impermissibly suggestive as to give rise to a Very substantial likelihood of irreparable misidentification (Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247; People v. Hicks (1971) 4 Cal.3d 757, 764, 94 Cal.Rptr. 393, 484 P.2d 65). In resolving whether the pretrial identification was fair or unduly suggestive, not a single factor but the totality of the circumstances must be considered (Simmons v. United States, supra, 390 U.S. at p. 383, 88 S.Ct. 967, 19 L.Ed.2d 1247; People v. Bauer (1969) 1 Cal.3d 368, 374, 82 Cal.Rptr. 357, 461 P.2d 637; People v. Faulkner (1972) 28 Cal.App.3d 384, 391, 104 Cal.Rptr. 625). While the lapse of time between the alleged act and the identification may be a factor, there are additional circumstances which have equal--or even greater--weight upon the issue. Thus, it is of paramount significance whether or not the photographic display was fair or 'rigged' (People v. Pedercine (1967) 256 Cal.App.2d 328, 335, 63 Cal.Rptr. 873); the police made suggestive comments to the identifying witness; the witness had ample opportunity to, and did, observe the defendant because they had seen each other more than once, the encounter between them was not only a brief glimpse but the longer duration, the lighting conditions were adequate, the witness had reason to recall the face of the defendant, etc. (cf. Simmons v. United States and People v. Bauer, both supra; People v. Martin (1970) 2 Cal.3d 822, 831, 87 Cal.Rptr. 709, 471 P.2d 29; People v. Caruso (1968) 68 Cal.2d 183, 187--189, 65 Cal.Rptr. 336, 436 P.2d 336).

When viewed in light of the foregoing principles, the instant case leaves no room for doubt that there was no undue suggestiveness and appellant was not mistakenly identified by Moroschok despite the claimed one-week delay in identification.

Thus, the record abundantly proves that the officer identified appellant from over two dozen photos without any suggestion by the police and without hesitation; that appellant was not singled out by the police for identification (People v. Faulkner, supra); that the officer as an undercover agent working in that...