People v. Tostado

• Decision Date: 28 June 1963
• Docket Number: Cr. 8643
• Citation: 217 Cal.App.2d 713,32 Cal.Rptr. 178
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Miguel TOSTADO, Defendant and Appellant.

Page 178

32 Cal.Rptr. 178

217 Cal.App.2d 713

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Miguel TOSTADO, Defendant and Appellant.

Cr. 8643.

District Court of Appeal, Second District, Division 1, California.

June 28, 1963.

Bradford A. Arthur, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Tostado and co-defendant Casey were convicted by a jury of selling marijuana to an undercover police officer on April 5, 1962; (§ 11531, Health and Safety Code); Tostado appeals from the judgment and order denying his motion for new trial. The appeal from the crder is dismissed. (§ 1237, Penal Code. People v. Eppers, 205 Cal.App.2d 727, 23 Cal.rptr. 222.)

Gary W. Turner, a Pasadena police officer, was assigned to special undercover vice duty; he was familiar with marijuana and the narcotics jargon. In early March, 1962, dressed in general students' wear, he arranged to meet appellant at Pasadena City College; about a week and a half later through appellant he met co-defendant Casey. For the next two months Turner saw them almost daily, acquired a close friendship and association with them, and 'more or less supported the defendants with City' funds. On several occasions following the third week in March Turner saw marijuana in the possession of either or both defendants. Various times Turner took one or both along with other friends to the Xanadu, a coffee house. One evening at the Xanadu Turner gave appellant, who had no money, $10 which appellant used to purchase marijuana from a peddler; Turner and defendants later had a general conversation as to its quality and, after appellant manicured it and rolled it into cigarettes in Turner's presence, he saw it smoked at a private residence. The next day Turner and appellant went to a park in Pasadena; appellant had the remainder of the marijuana in his possession. Turner tried to procure some of it for evidence but when appellant attempted to roll it into cigarettes the wind blew it into the grass. Some time around March 30, 1962, at Casey's residence Turner saw him roll a marijuana cigarette and heard him discuss its quality; he observed both appellant and Casey smoke it.

On April 4, around 8 p. m., after several hours conversation with defendants during the day, Turner was sitting in his car in an alleyway between some apartments; appellant approached and told him that he and Casey were going to Venice and asked him, 'Do you want to make it?' (meaning 'to obtain marijuana,' to 'score.') Turner asked appellant how much he wanted; appellant in turn said, 'How much do you want?' to which Turner replied: 'A can.' Turner gave appellant $8; he asked appellant when he could get it, and appellant told him he could get it the following day and would contact him. Appellant then walked toward his truck; Turner did not notice what Casey was doing during this time. The next day, April 5, around 7:30 p. m. Turner went to Casey's residence where defendants were eating dinner. After about 15 minutes Casey invited Turner upstairs; Turner saw Casey go to a closet covered by a drape, return with a cigar box, open it and take out a package. During this time appellant came upstairs and joined them; Casey handed Turner a package containing marijuana (Ex. 1), stating: 'This is from Rick' (the name by which Turner knew appellant.) It consisted of a roll of newspapers with black friction tape around it; the cigar box from which Casey took it appeared to contain other packages similarly wrapped. Turner then thanked appellant for having procured it for him. The package broke open and some of the contents fell on the floor; while he and Casey were picking up the marijuana, Casey said: 'Well, it would take a good narcotics man to locate these.' About one-half hour later Turner and appellant were sitting in front of Casey's residence; appellant asked to see the condition of the marijuana in the package. Turner took it out of his pocket and gave it to him; appellant tore the paper a little and examined the material and advised Turner how he could best manicure it since it was still on the stems. Turner thanked appellant for his advice and again thanked him for procuring the marijuana. Several hours later Turner turned the package over to Sergeant Cockel of the Pasadena Police Department.

A week or two later Turner gave appellant $10 to purchase another 'can' of marijuana for him, but appellant could not procure it and returned the money. A week after the sale on April 5 Turner complained to both Casey and appellant about the quality of the marijuana he had received; appellant told him he would make it up to him in the future. At another time, while riding with Casey, Turner complained to him and Casey said: 'I will get you all you want, fill this whole trunk.'

Between April 20 and 25 Casey told Turner he planned to take a trip, and asked him if the wanted to have him 'score' for him; Turner gave him $60 with which to but one pound. Casey said he would meet him the next day. Thereafter Turner looked for him but did not see him again until April 30 in Santa Monica. Casey told him that the truck he went out in had broken down and that 'things were too hot for him'; he promised Turner he would 'make it good * * * for the $60.'

On May 2 Turner participated in the arrest of Casey for the sale on April 5. Thereafter he and Cockel and another investigator had a conversation with appellant who was brought down from the jail; Turner was introduced to him as a police officer. Appellant became upset and said he didn't believe Turner was a policeman and wanted to see some identification; Turner identified himself and appellant asked him how he got into the group; then appellant shook hands and congratulated him for being a good undercover operator. During the conversation appellant stated that he recalled accepting $8 from Turner and said he needed the money for rent; he remembered the transaction on April 5 when the package was delivered to Turner.

Appellant did not take the stand, call any witnesses or offer a defense. Co-defendant Casey, then 22 years old, admitted he smoked marijuana and had done so since he was 13, but denied he either sold or delivered Exhibit 1 to Turner on April 5. He claimed he ate dinner at the home of Robert and Julia Thomas on that evening. The Thomases testified Casey ate with them on April 5 between 5 and 10:30 p. m.; Robert was serving a jail sentence on a felony--offering marijuana (§ 11531), and Julia was on 5 years probation for the same offense.

Appellant contends that the prosecution evidence 'establishes an attempt on Officer Turner's part to entrap the appellant into the sale of narcotics' (A.O.B., p. 7) and there is 'no evidence that the appellant * * * sold marijuana' (A.O.B., p. 12); and that it was prejudicial error for the trial judge to admit certain evidence of appellant's prior acts of wrongdoing not connected with the offense charged.

Without question, the evidence viewed in a light most favorable to the verdict (People v. Newland, 15 Cal.2d 678, 104 P.2d 778; People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911) supports the implied finding of the jury that appellant on April 5 sold marijuana to Turner. This court will not disturb a judgment for insufficiency of the evidence unless it clearly appears from the record that upon no hypothesis whatsoever is there sufficient substantial evidence to support the verdict. (People v. Jones, 36 Cal.2d 373, 224 P.2d 353; People v. Newland, 15 Cal.2d 678, 104 P.2d 778; People v. Crooker, 47 Cal.2d 348, 303 P.2d 753.) A conviction in a case of this kind may rest upon the testimony of only one witness (People v. Newman, 102 Cal.App.2d 302, 227 P.2d 470; People v. Ruiz, 205 Cal.App.2d 674, 23 Cal.Rptr. 236), and it need not be corroborated. (People v. Lollis, 177 Cal.App.2d 665, 2 Cal.Rptr. 420; People v. Casado, 181 Cal.App.2d 4, 4 Cal.Rptr. 851.) The evidence shows a simple 'buy and sell' transaction between Turner, the buyer, and the appellant, the seller, with co-defendant Casey making delivery for him. It is fundamental that the credibility of witnesses, the weight of evidence and the resolution of factual conflicts are committed to the trier of fact (People v. Ruiz, 205 Cal.App.2d 674, 23 Cal.Rptr. 236); the jury accepted as credible Turner's version of what occurred. It had not the benefit of appellant's testimony or his defense, if one he had. His "* * * failure to take the stand 'to deny or explain the evidence presented against him, when it is in his power to do so, may be considered by the jury as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.' (Citations.)" (People v. Champman, 156 Cal.App.2d 151, 157, 319 P.2d 8, 12; People v. Adamson, 27 Cal.2d 478, 165 P.2d 3.)

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