People v. Sykes

• Decision Date: 15 March 1955
• Docket Number: Cr. 5648
• Citation: 280 P.2d 769,44 Cal.2d 166
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Respondent, v. Jack SYKES, Appellant.

Page 769

280 P.2d 769

44 Cal.2d 166

The PEOPLE of the State of California, Respondent, v. Jack SYKES, Appellant.

Cr. 5648.

Supreme Court of California, In Bank.

March 15, 1955.

Sol A. Abrams and George E. Hammer, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

EDMONDS, Justice.

The appeal of Jack Sykes, who with Rudy Mereado, was indicted for furnishing marijuana to Beverly Detrick, a minor, is from the judgment of conviction of the crime of violating section 11714 of the Health and Safety Code.

Beverly Detrick, 17 years of age, testified that while she was sitting in a cafe, Sykes entered, took a marijuana cigarette from his pocket, and handed it to Mercado. After Mercado lighted the cigarette, he handed it to Beverly. She smoked it and gave it back to Mercado who returned it to Sykes. Sykes smoked it and then passed it back to Mercado, who again smoked it before passing it on to the others seated around the booth. It was then returned to Sykes. Beverly testified that while the cigarette was being passed around, Mercado and Sykes were saying, 'Keep it down so no one can see it.'

Beverly further testified that on the following evening, while riding in a taxicab driven by Sykes, he handed her another marijuana cigarette. This, she said, was in the presence of a person named Frank or Eddie. When cross-examined she testified that Jesus Gonzales, whom she knew as Frank Cruz, was not present on either occasion. Upon re-direct examination she declared that Jesus Gonzales was the man in the taxicab who gave her the cigarette. Gonzales denied knowing Beverly at the time she said he was with her.

Beverly testified that she was introduced to Sykes sometime in the third week in March by Mercado, with whom she was living at the time. Over objection, Beverly testified at great length that she had been recruited as a prostitute by Sykes, to whom she paid one-half of her income. She further testified that they had discussed the rates she should charge and how to detect venereal disease. He took her to hotels and suggested false names for her to use in registering.

Other testimony by Beverly was that she had smoked marijuana cigarettes 28 or 29 times previous to the evening Sykes offered one to her. She described the cigarette offered to her. She was familiar with the odor of marijuana, she said, and smoking the cigarette that night made her feel 'a little high.' Beverly said that she had never paid any money to Sykes for marijuana.

Inspector Maloney, a qualified expert on narcotics, testified that her actions and terminology were typical of one who had smoked a marijuana cigarette and her description of marijuana was correct. The method of smoking described by Beverly, the inspector said, was typical as well as the practice of passing of the cigarette from one person to another.

Mercado's testimony was that Sykes did not give him a marijuana cigarette at the cafe. The prosecution claimed surprise and asked to impeach the witness. Over objection, Mercado was asked if he had not pleaded guilty to the crime charged in the indictment. The district attorney also questioned him about the circumstances surrounding the plea and prior inconsistent statements made at that time. In answer to other questions over objection, Mercado admitted the theft of some heroin from Sykes and the previous possession of narcotics.

Sykes contends that the court erred in admitting Beverly's testimony about her conduct as a prostitute under the direction of Sykes and also her charge that he gave her a cigarette on the night after they were in the cafe. The testimony of Sykes on cross-examination as to his previous possession of narcotics and the admission of Mercado that he had stolen narcotics from Sykes is also said to justify reversal of the judgment of conviction. Another contention is that the district attorney made prejudicial remarks to the jury during his opening and closing arguments by repeated reference to the alleged pimping and narcotic activities of Sykes.

Sykes also claims that the prosecution failed to prove all of the elements of the crime charged, and that the evidence is not sufficient to support the conviction.

The attorney-general argues that the testimony by Beverly and the cross-examination of Sykes insofar as they touched on prostitution was admissible to show the plan, scheme or motive of Sykes. As such it is, the state asserts, an exception to the general rule that evidence of other crimes or immoral conduct is not admissible.

The theory of the prosecution is that Sykes carried on a complete plan to subjugate the mind and body of Beverly to his vile ends. Generally, evidence to show a plan or scheme concerns the means used to gain an end, such as the theft of a pistol before an attack upon a person. Here, the district attorney used the ends to prove the means. It is not necessary to decide whether such evidence shows plan or scheme, because it was relevant to prove motive. The test for admissibility is: "does it tend logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not." People v. Peete, 28 Cal.2d 306, 315, 169 P.2d 924, 929; also see: People v. Dabb, 32 Cal.2d 491, 197 P.2d 1; People v. James, 65 Cal.App.2d 709, 710, 151 P.2d 572.

Motive is a material fact. Evidence was offered that Beverly at no time paid Sykes for any narcotics. It is reasonable to believe that he was motivated in giving it to her because of their relationship in connection with prostitution and the sharing of its proceeds with him. Evidence of this relationship with her was, therefore, admissible.

No objection was made to the testimony of Beverly that Sykes gave her a second opportunity to smoke a marijuana cigarette on the night following the one on which the crime charged was alleged to have been committed. On cross-examination, a vigorous attack was made on this testimony. Having failed to object, Sykes cannot now complain that he was prejudiced. Moreover, in cases based upon the commission of certain types of crimes, evidence of similar conduct of the defendant with the same person who is named in the information or indictment 'is admissible to show the disposition of the defendant to commit the act charged and the probability of his having committed it.' People v. Jewett, 84 Cal.App.2d 276, 279, 190 P.2d 330, 331, and cases there collected. This rule has been applied in prosecutions for sex crimes, and upon a charge of pimping. People v. Bellamy, 79 Cal.App. 160, 248 P. 1042. The reasons for applying that rule where the charge is furnishing narcotics to a minor are just as compelling as in sex cases.

Upon cross-examination of Sykes it was proper to ask if he had ever had narcotics in his possession. Sykes was charged with giving narcotics to Beverly. Previously Sykes had repeatedly denied in broad terms the commission of the crime. In such circumstances, the permissible scope of cross-examination is very wide. People v. Zerillo, 36 Cal.2d 222, 229, 223 P.2d 223. The evidence that at prior times he had narcotics in his possession was admissible to show familiarity with them.

It is contended that the testimony which brought out the admission by Mercado of the theft of heroin from Sykes was highly prejudicial. But, the only effect such evidence could have had on the case against Sykes was to show the previous possession of narcotics by him. As such possession had already been admitted by Sykes in previous testimony, the admission of Mercado's testimony on this point was harmless. People v. Cohen, 94 Cal.App.2d 451, 456, 210 P.2d 911; People v. Booth, 72 Cal.App. 160, 166, 236 P. 987.

Upon direct examination Mercado was asked, 'Did Jack Sykes ever furnish you with marijuana?' Mercado replied, 'No, sir.' Claiming that he was surprised by this reply the district attorney asked leave to impeach the witness. An objection upon the grounds that Mercado was the prosecution's own witness was overruled, the trial judge stating that he might be impeached if surprise were shown and a foundation laid for that purpose. Mercado then was asked if he had pleaded guilty, in a joint indictment with Sykes, to a charge of giving narcotics to Beverly. He replied that he had. He further explained that he had been arrested in another state, brought to California by a police officer, and interrogated by the prosecuting attorney before entering the guilty plea. Mercado testified that he told both of these men that Sykes had given him a marijuana cigarette which he had passed on to Beverly. But, he said, he told the police officer this because he had a grievance against Sykes and was lying when he made the same statement to the prosecuting attorney. The only objection to any of these questions was that one of them had already been asked and answered. This objection was overruled.

Sykes admits that the prosection was entitled to impeach Mercado but argues that the method of doing so was improper. He contends that by these questions the prosecution was permitted to draw the admission from Mercado that he had pleaded guilty and thus impeached his credibility by showing bad character. He asserts that the police officer and the prosecuting attorney were both available to give testimony as to the prior inconsistent statements.

The party producing a witness is not allowed to impeach his credibility by evidence of bad character, but it may be shown that he has made prior statements inconsistent with his present testimony. Code of Civ.Proc. § 2049. '(B)ut before this can be done the statements must be related to him, with the circumstances of...