People v. Pineda

• Decision Date: 30 November 1965
• Docket Number: Cr. 4920
• Citation: 47 Cal.Rptr. 879,238 Cal.App.2d 466
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Viallada PINEDA, Defendant and Appellant.

Page 879

47 Cal.Rptr. 879

238 Cal.App.2d 466

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Viallada PINEDA, Defendant and Appellant.

Cr. 4920.

District Court of Appeal, First District, Division 3, California.

Nov. 30, 1965.

Hearing Denied Jan. 26, 1966.

Paul N. McCloskey, Jr., (under appointment of the District Court of Appeal), Palo Alto, for appellant.

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Jay S. Linderman, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Justice.

In this appeal from a conviction for illegal possession of heroin, appellant's two points are: (1) that the judge coerced the jury, and (2) that there was error in the sentencing. There is no challenge to the sufficiency of the evidence to support the conviction.

Officers armed with a search warrant entered a room which was occupied by appellant, appellant's brother Charles, and Joe Gracia. Charles was under the influence of a narcotic. Gracia had been convicted of possession of narcotics previously. One of the officers testified that he saw an envelope in the hand of appellant and that appellant dropped it to the floor. The envelope contained heroin. Another officer testified that he saw the envelope on the floor at the feet of appellant. Appellant testified that he knew nothing of the envelope until the officers showed it to him. Charles testified that appellant did not have the envelope in his possession but declined to answer whose heroin it was, on the ground it might incriminate him. Gracia testified that earlier in the evening he had seen the envelope in the possession of Charles. Obviously, if the jury were to believe the testimony of the officers, the conviction of appellant would be assured. Susan Pineda, appellant's sister, testified that she was in the room when an envelope was found, and that Officer Calvino, who had testified that he had seen the envelope in appellant's hand, did not say anything about how the envelope got to the floor. Officers Calvino and Perovich had both testified that Calvino had called Perovich's attention to the envelope as it lay close to the place where appellant was standing.

Alleged Coercion of the Jury

Thirty minutes after the jurors had retired, they returned to have Susan's and Gracia's testimony read. Later, they returned to ask for the reading of testimony of Calvino and of appellant. The testimony was read to them, but only after the judge had reproved the jurors, saying that because the testimony of the whole case took only about two hours, either the jurors had not paid attention or were not discussing the case aright in the jury room. The judge told the jury to imagine what they would do with a case that might have taken two weeks to try. He said, however, that he would have all of the testimony read and would reinstruct the jurors if they wished, 'to the end that we get a verdict.' The judge gave a rather lengthy identification of the various witnesses and a recounting of the order in which they had testified. Toward the end of the comments, the judge modified his remarks and showed himself quite aggreeable to having any testimony read which the jury would like to hear.

Appellant argues that the burden of the judge's remarks was that the case was a simple one and that the jury ought to be able to reach a verdict. He had manifested, says appellant, a clear dissatisfaction with the jury's request for reading of the testimony. Appellant points out that the jury returned with the verdict fifteen minutes after the testimony was read.

We do not regard the judge's comments as constituting an exhortation to find a verdict of guilty. The judge did show annoyance that the jury could not recall the evidence without assistance. But there is nothing to indicate that at this time the jury was in disagreement or that it had even taken a ballot. Following a reading of the testimony, the judge made no comment whatever as to desirability of coming to agreement quickly or, indeed, of coming to agreement at all. There was no urgency by reason of lateness of the hour, because the verdict was returned at 3:55 p. m. The case is to be distinguished from those cited by appellant: People v. Kindleberger, 100 Cal. 367, 34 P. 852, in which the judge said he was utterly at a loss to know why twelve honest men could not agree in the case after they had been out thirteen hours and sent the jury back for deliberations, with a ringing declaration against unreasonably refusing to listen to the opinions of other jurors; People v. Conboy, 15 Cal.App. 97, 113 P. 703, in which the judge expressed surprise that the jury had not reached a verdict, there being no reason why twelve honest and intelligent men should not have done so, and directed the jury to go out and do its duty; People v. Crowley, 101 Cal.App.2d 71, 224 P.2d 748, in which the judge told a disagreeing jury that the evidence was plain and clear and that if the jurors did not reach a verdict by 5 p. m. they would be locked up for the night, and the jury did return at exactly 5 p. m. with a guilty verdict; People v. Crossland, 182 Cal.App.2d 117, 5 Cal.Rptr. 781, in which the judge told the jury, split ten to two after about eight hours of deliberation, that the case was probably the most simple of all in his experience of over a thousand trials and that he was baffled by the situation (the judge's comment, it was held, probably meant that the case was simple on the law but could well have been interpreted to refer to the simplicity of the evidence). Reference to the desirability of reaching a verdict, without indicating which verdict it should be, is not necessarily coercion of the jury. (People v. Burton, 55 Cal.2d 328, 354-357, 11 Cal.Rptr. 65, 359 P.2d 433.) In the case before us, there was but one reference to a verdict and this was in the middle of the fairly lengthy comments of the judge. It was an offer of the judge to reinstruct, if this were desired, for the purpose of getting 'a verdict.' Following this rather colorless remark, there was not only the identification of the witnesses, which was referred to above, but also the reading of the testimony of appellant and of Calvino. The comments of the judge did not coerce the jury.

The Sentencing

Appellant makes the point that he was sentenced as having two prior felony convictions although his first prior, for possession of marijuana, had resulted in a county jail sentence. Appellant contends that the term 'felony offense,' as contained in section 11504 of the Health and Safety Code, cannot be applied retroactively to make the effect of what was a misdemeanor at the time of its commission the basis of a heavier sentence than he would otherwise have received.

Appellant is correct, as the Attorney General admits, in stating that his first narcotics offense was a misdemeanor because it was punished by county jail sentence. (Pen.Code, § 17.) It still is a misdemeanor, concedes the Attorney General, and, indeed, this must be so because an offense cannot be enlarged after its commission by reason of the prohibition of ex post facto laws. (U.S.Const., art. I, § 9; Cal.Const., art. I, § 16.) Actually, however, the district attorney charged this first prior as a felony, defendant admitted it as a felony, and the judge, in sentencing appellant, referred to his two prior felony convictions, although he had committed but one.

Respondent contends, however, that the error is immaterial because under section 11504 of the Health and Safety Code, enacted in 1961, the term 'felony offense' refers to an offense for which the law prescribes imprisonment in the state prison as either an alternative or the sole penalty, regardless of the sentence the particular defendant received. Under section 11500 of the Health and Safety Code, as amended in 1961, a person who has been convicted two or more times of any felony offense described in the division in which the section appears, as found true by the jury or by the court on a court trial, or as admitted by the defendant, is to be imprisoned in the state prison from fifteen years to life. Therefore, says respondent, although appellant's first offense was a misdemeanor, it is now and has been since 1961 a 'felony offense' and brings about the same minimum term of imprisonment as if appellant had been convicted twice previously of narcotics felonies.

We agree with the argument of the Attorney General, in part. The punishment is for the new crime only, although it is more severe than it would have been before the enactment of section 11504. (People v. Calderon, 205 Cal.App.2d 566, 572, 23 Cal.Rptr. 62; People v. Wallace, 59 Cal.2d 548, 30 CalRptr. 449, 381 P.2d 185; People v. Garcia, 227 Cal.App.2d 345, 38 Cal.Rptr. 670.) Appellant, therefore, has no ground of complaint that the statutes have been changed retroactively.

But we cannot say that appellant suffered no...