People v. Solis

• Decision Date: 13 June 1961
• Docket Number: Cr. 7503
• Citation: 13 Cal.Rptr. 813,193 Cal.App.2d 68
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy Solano SOLIS, Defendant and Appellant.

Page 813

13 Cal.Rptr. 813

193 Cal.App.2d 68

PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy Solano SOLIS, Defendant and Appellant.

Cr. 7503.

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

June 13, 1961.

Hearing Denied Aug. 9, 1961.

Leighton G. Long, Ventura, under appointment of the court for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Bruce A. Thompson, Dist. Atty., Ventura County, and

James C. Basile, Deputy Dist. Atty., Ventura, for respondent.

FORD, Justice.

The appellant was charged with the crime of possession of marijuana in violation of section 11530 of the Health and Safety Code. In a trial by jury, he was found guilty. He appeals from the judgment and from the order denying his motion for a new trial.

The appellant asserts that his conviction cannot stand because there were three prejudicial errors committed in the course of the trial. He contends: 1. A probation officer should not have been permitted to relate a conversation he had with the appellant. 2. Evidence of other acts of the appellant should not have been admitted under the guise of showing knowledge on his part of the nature of marijuana, since lack of such knowledge was not claimed by him. 3. The People had no right to call the appellant's wife as a witness and thereby force him to assert a claim of privilege before the jury, when the district attorney knew in advance that such claim of privilege would be made.

With respect to the second and third contentions, it is to be noted that before a jury was impanelled, counsel for the appellant stated in chambers in the presence of the deputy district attorney as follows: 'Mr. Long [court-appointed counsel for the defendant]: I would like the record to show at the very beginning that the defendant will object to the calling of the wife as a witness, that we don't want the wife called, and that we don't want any comment on the wife's failure to testify in the matter. I would also like to state at the very beginning that knowledge of the character of marijuana is not being contended as a defense in this particular action, that we will not raise the issue of knowledge of the character of marijuana. That is all I would like the record to show. The Court: All right.'

A summary of pertinent evidence and proceedings at the trial is as follows: Captain Edward C. Patton of the Police Department of the City of Oxnard testified as an expert witness as to the practices of users and sellers of marijuana in the county of Ventura and as to the vocabulary of such persons. He said that certain objects shown to him ( being part of Exhibit 1 for identification) appeared to be of the type of marijuana used and sold in that county.

Joseph A. Bucci, Assistant Probation Officer of Ventura County, was asked if, in an interview he had with the appellant on August 3, 1960, ¹ the appellant made any statements regarding his knowledge of marijuana prior to February 21, 1960 (the date of the offense as alleged in the information being February 22, 1960). The objection of appellant's counsel, based on the statement made in chambers as heretofore noted, was ruled upon as follows: 'The Court: Well, to ahead.' Thereafter, the following occurred:

'A. In the course of my interview it was my duty to ask the defendant for a statement to be included in the probation report to the Court. In other words, it is the defendant's version of what his idea of the circumstances of the crime were. Initially the defendant disclaimed any knowledge of marijuana or of any use or of any possession. Upon repeated questioning, he corrected this, which occurred because we had made a preliminary investigation, prior to the interview, and we had ascertained----

'Mr. Long: I have to object at this point, your Honor. This is completely irrelevant as to possession as of this case. I think counsel in his questioning and his opening statement said it makes no difference what prior to this [sic]. The charge here is possession. Any of these statements concerning times prior to this time would be completely improper.

'Mr. Basile [deputy district attorney]: If it please the Court, if Mr. Long can make a speech about the law in front of the jury, I would like to make a speech about the law and why this evidence is proper in this court and any court of law. It is not proper for attorneys to argue the law in the presence of the jury. If the Court wants me to argue it, I will argue it; but it is not proper before the jury. If there is an issue of law Mr. Long wants to raise, instead of making a speech to the jury I think he should address the Court.

'The Court: That is probably correct. Your objection comes a little late. He has already made his statement. When he first started to make it was the time for you to object. In any event, any objection he has now made is overruled.

'Q. By Mr. Basile: Merely state what the defendant told you, Mr. Bucci. A. As I said, initially he denied any knowledge of the marijuana on the night in question that he was arrested. In respect to the use he said that--he initially denied ever having used marijuana; but upon inststent questioning he finally admitted that he had used it for approximately one year, that he had used it for approximately a dozen times, and that although he used it he got no kick out of it, so to speak, that he merely did it to be socially acceptable to his circle of friends, who were users and who expected him to use it when he was with them.'

On redirect examination, the witness further testified in part as follows:

'Q. By 'insistent questioning,' what do you mean? What was the character of your questioning? A. Well, after the defendant had disclaimed any knowledge of the substance alleged to have been marijuana and so forth that he was charged with possessing, he went into a discussion of the--I asked him if he had ever used marijuana; and at that point he said, 'No, I have never used it.' As I said, I had confidence that he had been; so I kept asking him if he would tell the truth if he wanted to have any application for probation turned over to the Court, because without arriving at the truth we can't prepare a good report to the Court. That is the purpose of it. We try to get the truth as closely as possible.'

Mr. Bucci stated that the appellant's statements were made freely and voluntarily.

The incident with respect to the calling of the appellant's wife as a witness for the prosecution was as follows:

'Mr. Basile: Mrs. Estella Solis.

'Mr. Long: Is this the defendant's wife?

'The Court: I don't know who she is.

'Mr. Long: I believe we discussed this in chambers.

'The Court: That is all right. That doesn't--that matter is of record.

'Mr. Long: I at this time object to the calling of Mrs. Solis as a witness.

'Mr. Basile: I will call my next witness, then.

'The Court: Yes. The objection is sustained. Call your next witness.'

Before another witness was sworn, counsel for the appellant made a motion for a mistrial which was based upon the admission of the testimony of the assistant probation officer over the appellant's objection and the conduct of the district attorney in the calling of the appellant's wife to the witness stand. The motion was denied.

Thereupon the prosecution called Howard E. Hobson as a witness. He testified that he was a police officer for the city of Santa Paula. About midnight of February 21, 1960, he and Officer Bailey were proceeding in a police car in a notherly direction on Oak Street. They were looking for a woman who had been reported to be screaming. The witness observed an unlighted vehicle in an alley. That vehicle appeared to be in the center of the alley. A person was behind the steering wheel. The door on the driver's side opened. As to the occurrence in the alley, the officer testified in part as follows:

'A. Well, I approached the vehicle, and we observed the subject moving. We stopped the police vehicle, observed the subject putting out his left leg out of the door, putting his right arm ² in motion over the sill of the door in an arc motion, threw his arm down under--towards under the vehicle, and at that time observed a white package bouncing on the road.

'Q. Now the package you observed bouncing on the road, in what direction did it go? A. Under the vehicle to the east from the driver's door.

'Q. Approximately where was your vehicle when you observed the door opening? A. Approximately 30 or 40 feet.

'Q. What did you do after you observed this event? A. We immediately stopped the police vehicle.

'Q. Did you get out of the car? A. Yes, sir.

'Q. What did you do? A. We--after observing the package under the vehicle, I undged Officer Bailey to keep an eye and he knew what I was talking about at the time, which I also kept an eye on him as I approached the vehicle. I got out of the vehicle, walked in front of the police unit, looked under the vehicle, and walked over to Mr. Solis.

'Q. When you walked up to this car, was the person that you had seen behind the wheel out of the car? A. Yes. He was out at the time when we arrived at the vehicle.

'Q. Is that person in the courtroom now? A. Yes.

'Q. Will you identify him for the jurors? A. The fellow sitting to your left; Mr. Solis, right there. * * *

'A. When I came up to the vehicle, Mr. Solis stated to me, 'I know what you want.'

'Q. What did you say? A. And directly after that I asked him where was the woman. And he pointed over there towards New Street across the lot. He stated, 'She's over there at her mother's.''

When the witness asked the appellant what the object under the vehicle was, he replied, 'I have nothing to do with that kind of stuff.' The witness retrieved the package from its position which was approximately 18 inches under the vehicle. The officer further testified:

'A. I picked the package up, walking towards Mr. Solis. He stated to me at the time that he has nothing to do with that kind...