People v. Rios, Cr. 1520

• Decision Date: 05 August 1959
• Docket Number: Cr. 1520
• Citation: 342 P.2d 317,172 Cal.App.2d 623
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Alex RIOS, Defendant and Appellant.

Page 317

342 P.2d 317

172 Cal.App.2d 623

PEOPLE of the State of California, Plaintiff and Respondent, v. Alex RIOS, Defendant and Appellant.

Cr. 1520.

District Court of Appeal, Fourth District, California.

Aug. 5, 1959.

Alex Rios, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

PER CURIAM.

After a trial before a jury defendant was convicted of five violations of Health and Safety Code, Section 11500. Four of the counts charged sale of marijuana and the remaining count charged defendant with furnishing the same narcotic to others.

Defendant declined to testify in his own behalf and offered no defense. The sufficiency of the evidence to support the verdict is not questioned. We will not detail the entire evidence presented.

Special Deputy Sheriff Joaquin Acosta testified that he was trained as an undercover narcotics investigator by the San Bernardino Police Department and functioned in that capacity. His special training included practice in simulating smoking of marijuana and feigning the reactions of a narcotics user as well as instruction in the jargon of narcotics users and peddlers. Acosta was physically examined before and after each contact with suspects and he turned purchased marijuana over to members of the vice squad of the San Bernardino Police Department who worked closely with him.

Deputy Acosta testified that he met defendant on November 5, 1957, at Eddy's Cafe in San Bernardino. Defendant approached the police officer and asked him to go for a ride to another place to 'get some marijuana because that was the only way he could enjoy himself in a bar if he could smoke a marijuana cigarette'. Then they went to Mona's Cafe where they met one Gabriel Galvan, also known as the 'Penguin', who was supposed to have some marijuana. Defendant conferred privately with Galvan and then told the officer that he had made a deal. Deputy Acosta said that he too wanted some marijuana and then gave defendant $2. They left and went to an empty lot where Galvan got out and took a package from a fig tree and came back handing it to the defendant. A few minutes later defendant gave the officer three cigarettes. They drove away and one of the group lighted a brown hand-rolled cigarette which was passed around among the persons in the car. The officer had it handed to him several times and he simulated smoking the cigarette knowing that he was being tested and watched.

On November 26, 1957, Deputy Acosta again saw the defendant at Eddy's Cafe. Defendant asked the officer if he wanted some marijuana and upon receiving an affirmative reply they left going to a spot on Fourth and Mount Vernon Street where defendant left the car, returning with the package. Then the defendant gave the officer one brown hand-rolled cigarette.

On December 31, 1957, Deputy Sheriff Acosta met defendant at his home in San Bernardino. There he saw defendant and three other persons sitting around a table rolling cigarettes from a green leafy substance contained in a shoe box. After this task was finished the officer and the others went to a location on Tijuana Street where defendant left the car to dig holes to bury the cigarettes that had been rolled, but the ground was too hard so they abandoned this attempt and drove around the corner where defendant hid the package between a fence and a palm tree. Later the party returned to this location and the package was picked up. Defendant requested that he be taken home and before leaving the car he sold the officer ten marijuana cigarettes for $7.

On January 4, 1958, Deputy Acosta gave the appellant $15 for an amount of marijuana in a newspaper package. On January 11, 1958, the police officer purchased three cigarettes from the defendant for $1.50. On each of the occasions described the remaining cigarettes, or substance involved, were turned in to Deputy Acosta's associate officers. Subsequently they were examined by an expert forensic chemist who formed the opinion that the substances involved were marijuana.

On April 29, 1959, defendant requested that an attorney be appointed to represent him on this appeal. This court immediately began an independent examination of the record and sent communications to defendant and his trial counsel requesting them to inform this court of any substantial grounds of appeal which would justify a reversal in this case.

Defendant replied that he seeks a reversal on three grounds: (1) that he was deprived of his right to counsel; (2) that the court improperly declined to continue the trial to enable defendant to obtain certain witnesses confined in state prisons; and (3) that certain testimony given by witnesses for the People was conflicting. The reply of defendant's trial counsel cites the court's refusal to continue the trial to enable the witnesses to be brought in from their places of confinement as the only point on which there might exist some uncertainty, but goes on to point out that, as the trial record indicates, this ruling of the court was based on the defendant's lack of diligence in communicating the names of the witnesses and their expected testimony to his attorney so the necessary affidavits could be filed until shortly before the trial began. Furthermore, there was a question as to the admissibility of some of the evidence to which these witnesses were expected to testify. This court then completed its examination of the record and determined that it would not be helpful to the defendant or to the court to have counsel appointed on this appeal, and denied appellant's application for counsel. People v. Hyde, 51 Cal.2d 152, 331 P.2d 42; People v. Marsh, 170 Cal.App.2d 284, 338 P.2d 495.

In considering defendant's contention that he was prejudiced by the court's refusal to appoint an attorney for him, the following facts should be considered. At defendant's arraignment on February 28, 1958, the court appointed Mr. Geram to represent him. A week later defendant appeared in court with counsel of his own choosing, Mr. Katz. Mr. Katz continued as defendant's attorney until May 26, 1958, the day set for trial, at which time Mr. Katz moved the court to release him as defendant's counsel because defendant refused to cooperate with him in his defense. Defendant admitted that he had refused to cooperate with Mr. Katz and consented to the letter's release as his counsel.

The court allowed defendant a continuance to procure new counsel. When the continuance expired, defendant told the court that he did not have financial means to employ counsel and requested the court to appoint counsel at public expense. After discovering that defendant had been released from jail on a $5,000 bail, was drawing unemployment payments and was able-bodied and looking for work, the court refused to appoint an attorney to represent him at public expense but granted another continuance to enable him to employ an attorney. The court set the case for trial on July 15, 1958, at which time the case was called and the jury box filled with twelve prospective jurors. At that time the court discovered that defendant was still without an attorney and wanted one. The court continued the case and Mr. Rosso was appointed as defendant's attorney but he was replaced on July 21, 1958, by M. Saevig, who also served...