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District Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Edmundo Portillo TORRES, Defendant and Appellant.

Cr. 8569.

Decided: August 05, 1963

Charles V. Eckert, III, Goleta, for defendant and appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

This is an appeal from a judgment after a jury trial convicting defendant of two sales of heroin in violation of Health and Safety Code, section 11501. The indictment also charged and defendant admitted two prior felony convictions, one of which was for possession of narcotics.

The People's case included the testimony of a state narcotics agent that defendant had sold him capsules containing heroin on January 12 and January 25, 1961. Other officers identified defendant as the man who accompanied the buying agent on the critical occasions. There was testimony as to incriminating statements made by defendant at the time of his arrest. Defendant took the witness stand and denied the offenses. He claimed he was at home on the morning of January 12 and was at a motion picture theater with his wife on the evening of January 25. Defendant's wife, her sister, and her mother, all supported the theater alibi.

There is no question as to the sufficiency of the evidence. Defendant's appeal is based upon his contention that the trial court erred in instructing the jury and in excluding certain evidence.

The jury instruction in question arose out of an incident which occurred during the selection of the jury. After the defendant had exercised ten peremptory challenges, the following occurred: ‘MR. ECKERT: Your Honor, if the Court please, the defendant wishes to exercise one more challenge. THE COURT: Well, you have exercised ten. MR. ECKERT: I know, your Honor, but I think that in a case such as this we are entitled to 20. THE COURT: Can you quote any authority for that? MR. ECKERT: Penal Code 1070, your Honor. ‘If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to twenty and the state to twenty peremptory challenges.’ THE COURT: All right. You may exercise the challenge.'

At the opening of the third day of the trial the judge made a statement to the jury in which he reminded them that counsel had read a portion of Penal Code, section 1070, during the selection of the jury. The judge then admonished the jury that that section had been mentioned only in connection with the number of challenges to be allowed, that it had nothing to do with this case other than the selection of the jury, and that the jury should disregard it entirely. He also told them that they would be instructed that they were not to be concerned with the penalty in this case.

As a part of the instructions given at the close of the trial, the court charged as follows:

‘In arriving at a verdict in this case, you shall not discuss or consider the subject of penalty or punishment, as that is a matter which lies with the court and other governmental agencies, and must not in any way affect your decision as to the innocence or guilt of a defendant. Any statements of counsel made at any time during this trial as to the subject of penalty were not pertinent to nor are they a true statement on that subject. You must, again I admonish you, entirely disregard such statements of counsel.’

Defendant's criticism is directed against the portion declaring that the statement of counsel was not ‘a true statement on that subject.’ Defendant's argument appears to be this, in effect: That defendant is subject to ‘life imprisonment’ because the penalty prescribed in Health and Safety Code, section 11501, is ‘from 10 years to life’; that in telling the jury that counsel's statement was not a true statement the court was saying, in effect, that defendant would not be subject to imprisonment for life if convicted; and that by misleading the jury in this respect, the court was offering an improper inducement to find defendant guilty.

We do not interpret the instruction to have the meaning or effect which defendant would attribute to it. An offense carrying an indeterminate sentence of 10 years to life is not an offense ‘punishable with * * * imprisonment in the state prison for life’ within the meaning of Penal Code, section 1070. (See People v. Ralph, 24 Cal.2d 575, 579, 150 P.2d 401.) The statement of counsel that he was entitled to more than ten peremptory challenges under that section was certainly not a true statement. Moreover, any characterization of an indeterminate sentence as ‘life imprisonment’ is untrue in the sense that it is misleading unless the function of the Adult Authority under Penal Code, section 3020, is understood. The trial judge in this case wisely avoided attempting to explain this subject to the jurors. He properly concluded that after defendant's counsel had made his unfortunate and inaccurate reference to life imprisonment, the best procedure was to tell the jurors emphatically that they were to disregard the incident and give no thought to the penalty. The instruction given was not improper. Moreover, we cannot agree that this instruction could have the effect of inducing or inviting a conviction, as defendant seems to argue.

Defendant's alibi for January 25 was that he had taken his wife to a motion picture theater. He said he took his two children to the home of his mother-in-law about 7 p. m., arrived at the theater about 7:30, and left the theater to come home about 11:30 or 12. The testimony of the prosecution witnesses was that Agent Narro met defendant at the latter's home about 8 p. m. and the two of them went out together. The sale took place between 8 and 8:45 p. m. Defendant's wife, her mother, and the wife's sister, who lived with the mother, all testified in support of the alibi. There was evidence that it was raining during the evening of January 25.

Defendant established by the testimony of the theater manager that the picture, ‘Sunrise at Campobello,’ which defendant and his wife claimed to have been on January 25, had played at that theater from January 25 through January 31. Defendant then called a meteorologist, who testified to the amount of rain which had fallen on January 25. The witness was then asked, ‘Did it rain at any other time in the seven days thereafter?’ An objection to this question on the ground of immateriality was sustained.

The trial court should have allowed the witness to answer. The fact that January 25 was the only rainy night on which defendant could have seen ‘Sunrise at Campobello’ at that theater tended to support the testimony of the alibi witnesses. The trial took place in July 1962, more than 17 months after the offense. Because of the narcotics agents' policy of delaying their arrests so as to avoid compromising investigations which are pending, defendant was not arrested until May 5, 1962. An innocent man, arrest for an offense allegedly committed 15 months earlier, might have great difficulty in recalling exactly where he was on the evening in question so as to establish a valid alibi. If the defendant or others in the family recalled that he had seen ‘Sunrise at Campobello’ on a rainy night, the fact that January 25 was the only rainy night of that week would be crucial in establishing the date. Unless the defense witnesses established the date in some such manner, the jury might wonder how defendant's witnesses could be so certain that January 25 was the night the defendant was in the theater. Unless it was shown that there was no rain on the succeeding evenings, it could be inferred that defendant's witnesses had made an honest mistake in confusing one rainy night with another.

When defendant made a motion for a new trial the trial judge reviewed the record and analyzed defendant's contention that he had been prejudiced by the exclusion of the meteorologist's testimony. The judge pointed out that in this case the alibi witnesses did not rely upon the weather to determine the date when defendant went to the theater. Although the defendant and each of his alibi witnesses said definitely that defendant had gone to the movies on January 25, none of them was asked how he could be so sure of the date, and none offered any explanation as to how the date was established in his or her mind.

The testimony of the alibi witnesses was in direct contradiction of the prosecution's evidence, both as to the January 12 sale and the January 25 sale. The trial judge expressed the opinion that the jury simply did not believe the alibi testimony of defendant and his relatives, any more than they believed defendant's assertion that he did not sell heroin. Additional proof as to the weather would have made no difference in the result. We agree that this analysis of the record is the proper one.

The order denying the motion for a new trial is not appealable (Pen.Code, § 1237) and the appeal therefrom is therefore dismissed. The judgment is affirmed.

FILES, Justice.

SHINN, P. J., and FORD, J., concur.

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