People v. Tiner

• Decision Date: 21 September 1970
• Docket Number: Cr. 3852
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bobby Joe TINER, Defendant and Appellant.

Page 834

89 Cal.Rptr. 834

11 Cal.App.3d 428

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bobby Joe TINER, Defendant and Appellant.

Cr. 3852.

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

Sept. 21, 1970.

[11 Cal.App.3d 431] Garza & Kassel, Philip Kassel, and Donald W. Jordan, Jr., San Bernardino, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Geoffrey S. Cantrell, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

In an indictment returned by the grand jury of San Bernardino County, defendant was charged in count I with sale of marijuana (Health & Saf.Code, § 11531), and in count II with selling a restricted dangerous drug (Health & Saf.Code, § 11912). By amendment to the indictment, defendant was further charged with two prior felony convictions, both for violation of Health and Safety Code, section 11500 (possession of a narcotic other than marijuana).

Defendant entered a plea of not guilty. A denial of the two prior convictions was entered in his behalf. Thereafter, out of the presence of the jury, the court conducted a hearing to determine the validity of the prior convictions. During the course of the hearing, defendant admitted the first conviction and, following the hearing, he admitted the second prior conviction. ¹

The jury found defendant guilty as charged, and the court determined that defendant had suffered two prior convictions within the meaning of Health and Safety Code, sections 11531 and 11912. Defendant's motion for a new trial was denied, and he was sentenced to state prison for the term prescribed by law on both counts, sentences to run concurrently. Defendant appeals from the judgment of conviction and the court's denial of his motion for a new trial. ²

Contentions on Appeal

Defendant contends that (1) the trial court prejudicially erred in refusing to give defendant's requested instructions on the lesser included offense of possession of marijuana as to count I and possession of a restricted dangerous drug as to count II; (2) the trial court abused its discretion in restricting defendant's cross-examination of prosecution witness Patrick J. Glennon; (3) the court erroneously found the prior convictions to be felony convictions within the meaning of Health and Safety Code, sections 11531 and 11912; and (4) even if the prior convictions were felony convictions for purposes of those Health and Safety Code sections, the trial court erroneously determined that they were also felony convictions for the purposes of impeachment under Evidence Code, section 788, which erroneous determination, as a practical matter, precluded defendant's testifying in his own defense.

The Facts

At approximately 2 p.m. on October 14, 1968, Patrick J. Glennon, a special deputy sheriff assigned to investigate sales of narcotics in the Twentynine Palms area, was instructed to go to defendant's home and attempt to purchase narcotics. Mr. Glennon testified as follows concerning the events that transpired during the remainder of that day.

Mr. Glennon arrived at defendant's home at approximately 2:30 p.m. Defendant, who was working on a car in his backyard, inquired about $10 that Mr. Glennon's wife owed him. Mr. Glennon said he had a few dollars from selling dope and wanted to pay. Defendant then informed Mr. Glennon that he was 'dealing.' Mr. Glennon asked in what, and defendant said, 'chalks' and 'reds' and 'hash' (amphetamine sulfate tablets, seconal capsules and hashish, respectively).

Mr. Glennon arranged to buy ten grams of 'hash' at $8 per gram. He left, acquired $80 from the Sheriff's office, and at approximately 3:30 p.m. returned to defendant's home to close the deal. The transaction was completed by Mr. Glennon retrieving the 'hash' from underneath a pipe leaning against a fence, and leaving the money on a table. Mr. Glennon then went home and made a report. At approximately 8:45 p.m. Mr. Glennon delivered the report and the contraband to Sheriff's Detective Ferronato.

At the time of their meeting, Detective Ferronato instructed Mr. Glennon to purcase the amphetamine sulfate tablets and gave Mr. Glennon $10 in county funds for that purpose. At 8:55 p.m., Mr. Glennon returned to defendant's home. Defendant and his wife Madelyn were present. Mr. Glennon told defendant that he had sold some 'hash' and thought he could sell some 'whites.' Mr. Glennon testified that defendant's wife then went to the 'pump room' and returned carrying ten round waxed paper rolls. Mr. Glennon received one of the rolls and left the $10 on a table, allegedly at defendant's wife's request. At approximately 10:05 p.m., Mr. Glennon delivered this contraband to Detective Ferronato.

Madelyn Tiner, defendant's wife, testified for the defense. Her testimony was as follows concerning the events of October 14, 1968.

Mr. Glennon came to defendant's home at about 2 p.m. Mr. Glennon and defendant talked in the backyard. Mrs. Tiner was also in the backyard, washing and hanging clothes. She overheard their entire conversation. They discussed motorcycles, and jobs, and no other subject except that defendant asked Mr. Glennon for $10 owed him for clothes. Mr. Glennon said he would get the money and left at about 3 p.m. Mr. Glennon returned in an hour, only to inform defendant that he had not been able to get the money and, after about twenty minutes, again left.

Mr. Glennon returned at about 8 p.m. The two men talked in Mrs. Tiner's presence. They did not talk about any narcotics. Mr. Glennon gave defendant $10 and said it was for the clothes.

Finally, Mrs. Tiner testified that she never saw People's Exhibit No. 2 (the hashish) or anything like it around her home before. She did not know if defendant received $80 from Mr. Glennon. She had never heard the term 'hash' before, and had heard the term 'marijuana' only in newspapers and on TV. She had never seen a tablet like the one from People's Exhibit No. 3 (the amphetamines) before. She had never seen white double-scored tablets before, or heard the term 'chalk' or 'amphetamines.'

The Instructions

Defendant requested instructions on the lesser but included offenses of possession of narcotics (marijuana) as to count I and possession of restricted dangerous drugs as to count II. The trial court refused to give these instructions, indicating that there was no evidence from which the jury could conclude that defendant was guilty of possession but not of sale and noting that the only evidence introduced by the defense was a complete denial of the presence of narcotics or restricted dangerous drugs.

The trial court was correct. '(I)t has long been settled that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of something beyond the lesser offense.' (People v. Morrison, 228 Cal.App.2d 707, 712--713, 39 Cal.Rptr. 874, 878; People v. Stanton, 274 A.C.A. 13, 18, 78 Cal.Rptr. 771.)

Restriction of Cross-Examination

The primary witness for the prosecution was Patrick J. Glennon, a special deputy sheriff assigned to undercover investigation of drug activities. Out of the presence of the jury, counsel for defendant sought permission from the court to attempt to impeach Glennon's testimony by showing that in January 1969, three to four months after the date of defendant's acts, Glennon pleaded guilty to a misdemeanor battery charge and was granted probation for this offense, partly on the basis of a statement by the sheriff's office that he was a witness in several pending cases. Defense counsel further sought to show that Glennon himself, while working as an undercover agent, smoked marijuana for his own pleasure on many occasions. It was counsel's theory that an inference could be drawn from these facts that Glennon's testimony was influenced by promises of leniency or hopes of immunity from prosecution with respect to his own misconduct. The court denied defense counsel's request to go into these matters and indicated that he would sustain an objection to any such questions under section 352 of the Evidence Code.

Section 352 of the Evidence Code provides:

'The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'

We think it obvious that great leeway should be accorded the defendant in cross-examining an undercover agent who is the only prosecution eyewitness to the crimes charged. Nevertheless, in this situation, the trial court was well within the discretion granted by Evidence Code, section 352 in excluding this evidence. A witness may not be impeached by evidence of specific acts of misconduct, except for a felony conviction. (Evid.Code, § 787; People v. Kennedy, 200 Cal.App.2d 814, 819, 19 Cal.Rptr. 683; People v. Vanderburg, 184 Cal.App.2d 33, 40, 7 Cal.Rptr. 287.) 'A witness may be impeached by showing bias for or against a party and interest in the outcome of the litigation and this because the motives of a witness may be important in evaluating his testimony. (Citation.) But 'for practical reasons * * * the inquiry for impeachment is usually confined to the Prominent motives for untruthful testimony: Interest in the suit which Necessarily tends to bias, and Other circumstances showing bias which are not too remote. '' (People v. Vanderburg, Supra, at 41, 7 Cal.Rptr. at 291.) The trial court could and did find that the probative value of the proposed evidence was remote and that it was greatly outweighed by the probability that its admission would necessitate an undue consumption of time and creat a substantial danger of confusing the issues. Its exercise of the discretion...