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

PEOPLE of the State of California, Plaintiff and Respondent, v. Todd A. CONOVER et al., Defendants, Frank William White, Appellant.*

Cr. 5945.

Decided: November 29, 1957

Freedman & Herscher, Horace N. Freedman, Beverly Hills, for appellant. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

Appellant White was convicted of the possession of heroin in violation of section 11500, Health and Safety Code. He appeals from the judgment and from the order denying his motion for a new trial.

At approximately 9:00 p. m. on October 26, 1956, Officers Berry and McMahan, of the Long Beach Police Department, observed defendant Hanick near his residence in that city. Officer Berry had arrested Hanick previously and knew him to be a user of narcotics.

The officers followed Hanick's automobile to an apartment building on the corner of Sixth and Linden Streets in Long Beach. Hanick went into the apartment building where he remained for some 15 minutes. Upon coming out of the building, it appeared to the officers from Hanick's demeanor that he had had a ‘fix.’ On being interrogated by the officers, Hanick admitted that he had a narcotic in his possession and handed Officer Berry an aspirin box that contained seven capsules of heroin. Hanick was then arrested.

Hanick told the officers that he had just left the apartment shared by appellant and one Conover; that he and Conover had fixed a capsule of heroin in the apartment, using appellant's outfit; and that he (Hanick) had left a capsule of heroin in the apartment with Conover for appellant.

The officers waited until Conver came out of the apartment house. From Conover's actions and appearance the officers concluded he was under the influence of narcotics and arrested him. The officers returned Conover to the apartment shared by him and appellant and informed Conover of the statements previously made by Hanick regarding the capsule of heroin left for appellant and the use by Hanick and Conover of appellant's outfit. Conover directed the officers' attention to a potted plant beside the bed in the living room and stated, ‘That is where he keeps to outfit.’ Upon examination the officers found the equipment ordinarily used by addicts in administering narcotics. The officers then inquired of Conover relative to the capsule assertedly left by Hanick for appellant. Conover pointed out a watch box on a dresser in the bedroom in which there were four check stubs, a belt buckle, and a capsule later determined to be heroin. Conover stated to the officers that the capsule had been left with him for appellant and that he, Conover, had purchased it from Hanick for $5.

Appellant, who had been working, returned from work at approximately 2:15 a. m. on October 27th. The officers arrested him in the hallway of the apartment house. Appellant was informed at that time of the statements made by Hanick and Conover relative to appellant's ownership of the outfit, and the capsule of heroin that had been left for appellant. Appellant told the officers that he did have a narcotic outfit and that it was in his room and indicated where it was probably located. ‘At that time,’ according to Officer McMahan, ‘Mr. White admitted that the capsule was his.’

In a later conversation at the city jail, the officer testified that ‘He [White] stated that the outfit was his; that he had had it for some time and that he and Conover had used it jointly, but that it was his outfit. He stated that he had never seen the capsule of heroin that was in the room, but that he had left money with Mr. Conover for the purchase of a capsule of heroin from Mr. Hanick.’ The officer further testified, ‘We asked him [White] where the capsule would be and he said it would probably be in the watch box on the dresser.’ Appellant stated that he had been an addict or had used heroin off and on since 1932. Upon examination of appellant's right forearm, the officers found what they termed a ‘snake,’ fixe or six inches in length. This snake was the result of numerous injections by a hypodermic needle along one of the main veins. At one end of the snake was a badly ulcerated spot that appeared to be infected.

When Officer Berry took appellant to the municipal court for arraignment, appellant told the officer that he was guilty of possession of narcotics and that he intended to so plead. Later, at the preliminary hearing, appellant again told Officer Berry that he wished to plead guilty and receive hospitalization.

At the trial appellant, and his codefendants Conover and Hanick who had pled guilty, denied everything that implicated appellant.

In rebuttal, Officer Berry testified that when Hanick was arrested he told the officers that he had left a capsule in the apartment for appellant; also, that Conover told him and Officer McMahan that the capsule found in the apartment was appellant's and that he (Conover) had bought it for him, paying $5 for it.

In seeking a reversal appellant argues that the evidence is insufficient to establish (1) that he ‘possessed the narcotic,’ and (2) that he had ‘knowledge of the presence of the narcotic.’ Appellant also argues that he was denied a fair trial.

‘The gist of a criminal conspiracy is a corrupt agreement of two or more persons to commit an offense prohibited by statute, accompanied by some overt act in furtherance of the objects of the conspiracy.’ People v. Sica, 112 Cal.App.2d 574, 580–581, 247 P.2d 72, 76; People v. Frankfort, 114 Cal.App.2d 680, 688, 251 P.2d 401; People v. Brownstein, 109 Cal.App.2d 891, 892, 241 P.2d 1056; People v. Pierce, 110 Cal.App.2d 598, 610, 243 P.2d 585; Penal Code, §§ 182, 184. A conspiracy may, of course, be established by circumstantial evidence. People v. Frankfort, supra. Upon the existence of the conspiracy being shown, the acts of each coconspirator in furtherance of the conspiracy are attributable to all the others even though they were not personally present when such acts were committed. People v. Robinson, 43 Cal.2d 132, 137, 271 P.2d 865; People v. Ash, 88 Cal.App.2d 819, 828, 199 P.2d 711; Code Civ.Proc. § 1870, subds. 6, 7. The conspiracy need not be established beyond a reasonable doubt before such evidence is admissible; a prima facie showing of the conspiracy is all that is required. People v. Steccone, 36 Cal.2d 234, 238, 223 P.2d 17; People v. Robinson, supra; People v. Frankfort, supra, 114 Cal.App.2d at page 699, 251 P.2d 401. In a criminal case it is not necessary that a conspiracy be alleged in order that proof thereof may be made. People v. Duran, 57 Cal.App.2d 363, 371, 134 P.2d 305; People v. Rivas, 92 Cal.App.2d 663, 668, 207 P.2d 1062; People v. Gregory, 12 Cal.App.2d 7, 15, 54 P.2d 770.

Applying these principles, it is apparent that the testimony of Officer McMahan (received without objection) relative to the statements made to him and to Officer Berry by appellant, constituted a prima facie showing of an agreement between appellant and Conover and Hanick to violate the statutes prohibiting the purchase, sale and possession of narcotics. This agreement, coupled with the act of appellant in giving Conover $5 with which to buy a capsule of heroin, constituted a prima facie showing of a criminal conspiracy. The acts of Conover and Hanick in furtherance of the agreement were therefore attributed to appellant and admissible in evidence against him. People v. Sica, supra, 112 Cal.App.2d at page 584, 247 P.2d 72; People v. Frankfort, supra, 114 Cal.App.2d at page 689, 251 P.2d 401. On this basis the possession of the capsule of heroin by Conover which he bought from Hanick pursuant to the agreement between himself (Conover) and appellant was the possession of appellant, and Conover's knowledge that it was a narcotic was attributable to his coconspirator, the appellant, and was in legal contemplation the knowledge of the latter. It is thus clear that the evidence is sufficient to support the judgment of conviction.

Appellant's contention that he did not have a fair trial is based on the theory that the testimony of the officers as to conversations with Conover and Hanick out of his presence was hearsay and inadmissible. Appellant, however, did not object to any of this testimony either on direct or on rebuttal. But the court, sua sponte, at the conclusion of the People's case in chief told the jury that although this testimony ‘was admitted for a legal purpose’ it ‘is not to be considered by you as evidence against the defendant [appellant] in this case.’ We see no reason why this admonition was not adequate.

But, says appellant, ‘[a]fter the defense had closed its case the prosecutor put Officer Berry back on the stand and had him repeat all of the prohibited hearsay testimony.’ At this stage of the case the officer's testimony was admissible to impeach that given by Conover and Hanick by showing that they had made prior inconsistent statements. Appellant now insists that the court should have advised the jury that this evidence was admitted only for the purpose of impeachment. The answer to this proposition is that appellant made no such request or even suggestion to the trial court. It is too late to raise this point for the first time on appeal.

Appellant also contends that the prosecutor was guilty of misconduct in referring to this evidence in his argument to the jury. As noted above, the evidence was admissible for purposes of impeachment and to that extent it was proper for the deputy district attorney to refer to it in his argument. If he went beyond the bounds of propriety appellant should have assigned any such statement as misconduct and requested an appropriate instruction to the jury with respect thereto. He took neither of these steps. He is therefore in no position to complain now. The applicable principle on this question is succinctly stated in People v. Hampton, 47 Cal.2d 239, 240, 302 P.2d 300, 301: ‘The rule is established that unless the harmful results of misconduct of the district attorney cannot be obviated by appropriate instructions of the trial court, error cannot be predicated in this court on such alleged misconduct in the absence of (a) assignment of such misconduct as error; and (b) a request to the trial court to instruct the jury to disregard it. [Citations.]’ This is obviously not a case where an appropriate instruction would not have obviated any harmful results of the asserted misconduct. There is no support for appellant's contention that he did not have a fair trial.

The judgment and order are affirmed.

FOX, Acting Presiding Justice.

ASHBURN, J., and RICHARDS, J. pro tem., concur.