People v. Wilson

• Citation: 235 Cal.App.2d 266,45 Cal.Rptr. 267
• Decision Date: 23 June 1965
• Docket Number: Cr. 4441
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence WILSON, Jr., and Otis Amis, Defendants and Appellants.

Page 267

45 Cal.Rptr. 267

235 Cal.App.2d 266

PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence WILSON, Jr., and Otis Amis, Defendants and Appellants.

Cr. 4441.

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

June 23, 1965.

Rehearing Denied Aug. 12, 1965.

Hearing Denied Sept. 8, 1965.

Donald C. Knutson, San Francisco (under appointment of the District Court of Appeal), for appellant Wilson.

Lin B. Densmore, San Francisco (under appointment of the District Court of Appeal), for appellant Amis.

Stanley Mosk, Atty. Gen., Edward P. O'Brien, James Murad, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

This is an appeal by defendants, Clarence Wilson, Jr., and Otis Amis, from judgments of conviction in Alameda County for committing the crime of transporting, selling, furnishing and giving away heroin. ¹ (Violation of Health & Saf.Code, § 11501.) Count I of the information charged Wilson and Amis jointly with a violation of Health and Safety Code section 11501 on September 10, 1962, and Count II charged Wilson with a separate violation of the same code section on September 3, 1962. ² The jury returned guilty verdicts against defendants on each count of the information.

The Record

The facts established by the record, most favorable to the People's case, are as follows:

On September 3, 1962, about 5:15 p. m., Agent Sergio Borquez and Charles Alexander, described as a 'special employee' of the Federal Bureau of Narcotics, drove in a government vehicle to Wilson's home at 599--58th Street in Oakland. Two other agents, Yates and Van Raam, followed Borquez and Alexander in another automobile to this same address. Upon arrival at Wilson's house, Borquez and Alexander emerged from the car, and Alexander walked over to a window and knocked on it. Shortly thereafter Wilson appeared at the front door. Alexander introduced Borquez to Wilson and they talked for several minutes. Alexander informed Wilson that they 'had 40' and would like to obtain 'some stuff,' to which Wilson replied that they would have to go with him. The three men then drove off in Wilson's car. Yates and Van Raam, who had observed the meeting between Alexander, Borquez and Wilson, but had been unable to hear the conversation, followed the three men to a nearby gas station. While at the gas station, Wilson left the car, stating that he had to make a telephone call and would return shorty. Upon returning to the car Wilson drove Alexander and Borquez to 18th Street, just off Market, and parked alongside the curb. Wilson alighted from the car, turned the corner and was lost from Borquez' view. About half an hour later, at 6:10 p. m., Wilson reappeared, entered the car, and drove off, returning to the same location approximately 20 minutes later. Wilson then told Borquez and Alexander to leave the car, whereupon Wilson drove off by himself. About 15 minutes later, he rejoined Alexander and Borquez and drove them back to his home, arriving there at about 7 p. m. The three men left the car entered the house. In the kitchen Wilson handed Alexander three bindles wrapped in a piece of paper. Alexander then gave these bindles to Borquez, at the same time giving Wilson $40 which Borquez had previously given to him. Borquez pocketed the three bindles, departed from the house with Alexander and returned to San Francisco in his own automobile. The three bindles contained 1.5 grams of heroin.

On September 10, 1962, at about 5 p. m., Borquez, known to Wilson as Johnnie, telephoned Wilson at his home and informed Wilson that he wished to see him. Wilson replied that Borquez should come in about an hour to 'the same place as before.' Accordingly, about 6 o'clock that evening Borquez arrived at the 599--58th Street address and knocked on the window of Wilson's house, but receiving no response, he drove off. Shortly thereafter Yates and Van Raam parked near Wilson's home and observed Wilson and Amis drive up in a car and park at the rear of 599-58th Street. At approximately 6:30 p. m. Borquez returned to Wilson's house, parked his car in a Safeway Stroe parking lot at the corner of 57th and Shattuck and approached the car in which defendants were seated. Borquez conversed with Wilson, was introduced by him to Amis, and the three talked for several minutes. Borquez and Amis then parted company with Wilson and entered Borquez' car. After conversing briefly, Amis told Borquez that he had to make a telephone call, stepped out of the car, and walked away from the parking lot, turning a corner, out of Borquez' vision. Returning sometime later Amis entered the car and directed Borquez to drive. At about 7:20 p. m. Amis instructed Borquez to stop at 8th and Campbell, stating that he was going to make a telephone call. Again Amis walked around a corner and was lost from Borquez' sight. He returned about 5 minutes later and directed Borquez to start driving. At 54th and Grove Street Amis again directed Borquez to pull over to the curb and once again he left the car and walked around the corner. Before Amis departed, Borquez explained to him that he only wanted '$20 worth of the stuff' and that he did not want to pay any more because he didn't want to 'get burned.' Amis assured him, however, that he would not 'get burned.'

When Amis returned to the automobile, he directed Borquez to drive around the block and then to stop at approximately the same location where they had previously parked. Amis located a certain parking meter and requested Borquez to stop adjacent to it, telling Borquez that he would find a package at the base of the parking meter. Borquez found a small package about 1 1/2 inches in circumference at the base of the parking meter and brought it to Amis. Amis opened the bundle and removed from it a smaller package which he gave to Borquez. Borquez explained that he would not pay until he had an opportunity to 'test the stuff.' They then drove to a barbecue restaurant where Borquez went to the men's room and immersed a small amount of the contents of one of the packages in a Marquis reagent, obtaining a positive reaction. Borquez returned to the car and the two drove back to 54th and Grove where Borquez paid Amis $20. At that time Borquez observed Wilson standing in a nearby doorway. The quantity of heroin sold in this instance amounted to .020 grams.

Amis' Appeal

On this appeal court appointed counsel for Amis makes the following contentions: (1) That the trial court erred in denying Amis' motion for a continuance to obtain the testimony of Alexander; (2) that the amount of heroin allegedly sold was insufficient to constitute a violation of Health and Safety Code section 11501; and (3) that the evidence was insufficient to sustain the conviction. With respect to contention (2) it is also urged that the trial court erred in excluding testimony of the impracticability of making any real use of the quantity of heroin involved, and that it erred in instructing the jury that the possession of heroin in any amount constitutes a violation of the law. In addition, Amis, acting in propria persona, makes certain claims of error as follows: (1) That the trial court erred in failing to discharge the jury upon learning of the possible intoxication of a juror and of her communication with prosecution witnesses; (2) that the trial court lacked jurisdiction to hear the case because the evidence was obtained by federal agents; and (3) that it was error to introduce evidence of Amis' prior conviction.

(a) The Motion for a Continuance:

The record discloses that the jury was impaneled on February 21, 1963 and that the trial was then continued to February 26, 1963, on which day, during the cross-examination of Borquez, counsel for Amis inquired as to Alexander's given name, ascertaining that it was Charles. Counsel then requested Borquez to inspect the records of the Bureau of Narcotics in an effort to locate Alexander. The court sustained an objection to this line of questioning, determining that if counsel so desired, he could subpoena the records of the bureau. On February 27, counsel for Amis requested that the court allow expenses for an investigator or, in the alternative, that it direct the district attorney's office to employ its investigative staff to locate Alexander. The court denied this request. Thereafter, and on the same day, the People rested; opening statements were made by counsel for both defendants; and Wilson took the stand as a witness, testifying both on direct and cross-examination. Upon adjournment on February 27, the trial was continued to March 1. When the trial resumed on this date, counsel for defendants requested a reasonable continuance to obtain the presence of Alexander as a witness. ³ The trial court indicated its concern at this late request for a continuance in view of defense counsel's reputation for diligence and the fact that counsel had been appointed on January 9, 1963. In connection with their request defendants called as a witness John Vance, a private investigator. Vance testified that he was hired on February 27 to locate Alexander; that on the following day he located and spoke with Alexander, who was living under another name at the Leopold Hotel in San Francisco; that the next morning, March 1, he attempted to serve a subpoena on Alexander, ⁴ but Alexander did not respond to his knock on the door and he was unable to locate Alexander. Based on this testimony, defense counsel made a formal motion for a continuance, which motion was denied without prejudice. The court indicated, however, that since several hours would intervene prior to the arguments of counsel it would permit Alexander to testify if he were produced prior to that time. However, upon the conclusion of the testimony on the afternoon of March 1, counsel for Amis advised the court that defendants would not be able to produce Alexander. Defendants then renewed their motion for a continuance and the...