PEOPLE v. GREEN

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. John Anthony GREEN, Defendant and Appellant.

Cr. 13925.

Decided: August 16, 1968

Cooney & Cooney, by Terrence W. Cooney, Sherman Oaks, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David B. Stanton, Deputy Atty. Gen., for plaintiff and respondent.

After a preliminary hearing, defendant was charged by information with violating section 11532 of the Health and Safety Code (furnishing a narcotic to a minor). Defendant pleaded not guilty and waived trial by jury. He was found guilty as charged. A motion for new trial was made and denied, and the defendant was granted probation, subject to certain conditions, among which was that he spend the first year of the five year probationary period in county jail. Defendant appeals from the judgment of conviction.

One Melvin Porter, the minor to whom it was alleged defendant furnished the narcotic, testified for the People. Porter admitted that he had been using marijuana for the two months or so preceding the incident for which defendant was informed against. He also admitted that he had been using LSD upon occasion and that he had ingested some just prior to the contact with the defendant on the day that it was charged defendant furnished him with the contraband. Porter's testimony at the time of the trial was equivocal and far from helpful. He testified that defendant had called him early in January of 1967 and told him he had some ‘stuff’ that he wanted Porter to sell. Porter also admitted that at about the same time, he had come into possession of 29 plastic bags filled with marijuana, in a large shopping bag. Porter admitted he sold some of the ‘Baggies' and the rest had been stolen from his closet. At first, Porter was very uncertain as to where he had obtained the marijuana. He then was impeached by the deputy district attorney by having portions of his testimony at the preliminary hearing read to him. The deputy argued that he had the right to introduce this evidence under sections 770 and 1235 of the Evidence Code. In that testimony, Porter stated that defendant called him and told him that he (the defendant) had about a kilo of marijuana in 29 Baggies that he wanted Porter to sell. Porter also testified at the preliminary hearing that defendant told him the marijuana was in the backyard of the home of defendant's parents. Porter also stated that his testimony at the preliminary hearing was the truth as he believed it at that time. He then testified that he guessed that he had procured the marijuana from the place designated by defendant and that he gave the money from the sale of bags to the defendant.

Officer Wade of the Los Angeles Police Department, who was assigned to the Juvenile Narcotics Division, testified that he had had a conversation with Porter at the Juvenile Division headquarters on January 31, 1967. The deputy district attorney indicated this testimony came in for all purposes, again citing Evidence Code sections 770 and 1235. At that time, Porter said defendant had called him on the morning in question and told him he had a kilo of marijuana and wanted to know if he could bring it over to Porter's home. Later that day, defendant brought over 29 Baggies containing material that looked like marijuana. It was stipulated that Porter told Officer Wade that a similar course of conduct involving defendant's leaving marijuana at Porter's home, and the sale of some of it with the return of the proceeds to defendant, had been going on for the previous six months.

Officer Dominguez of the Los Angeles Police Department also testified. He stated that he had purchased from Porter on January 10, 1967 an item that upon analysis proved to be marijuana. Officer Dominguez also testified to a transaction that he had with defendant: that he had contacted Porter and said he wanted to buy some narcotics; Porter told him that he would contact ‘John’; thereafter the officer had a phone call from someone identifying himself as the man who had the stuff, and they arranged to discuss the matter at a hot dog stand in the San Fernando Valley; the officer met the defendant, who identified himself as John, as arranged; the defendant told him he would sell him 5 kilos of marijuana and 8 caps of LSD for $500; the defendant then handed the Officer a cup of Coca-Cola with a white powdery substance in it; he told him that it was LSD and requested that he drink it. The Officer refused, saying he had a large amount of money with him and didn't want to be robbed; the defendant also proposed they go somewhere and smoke a marijuana cigarette; the Officer refused this offer also; defendant said he feared undercover officers and wouldn't sell to anyone who wouldn't take narcotics with him, and no exchange took place.

Porter and the defendant were called as defense witnesses, and both testified that the transaction described by Officer Dominguez occurred as a test of the Officer. Porter had previously sold him some contraband and was afraid he was an officer. The meeting was set up to test to find out if Porter's apprehensions were justified. The material in the Coke was aspirin. Defendant testified he had nothing to do with narcotics, and he met with the Officer at the request of Porter to help Porter out. There was also defense testimony attacking Porter's credibility and reputation for truth and veracity, and indications that Porter was hostile toward defendant for repossessing a car he had sold him. The defendant in his testimony also denied that he did any of the illegal acts with which he was charged.

Defendant urges three grounds for reversal: (1) the evidence was insufficient to support the judgment; (2) the prosecution suppressed evidence; and (3) certain remarks of the prosecutor constituted prejudicial misconduct.

We do not reach any of the above issues, for we feel reversal is required in the light of the recent California Supreme Court case of People v. Johnson, 68 Cal.2d 646,* 68 Cal.Rptr. 599, 441 P.2d 111. That case held that Evidence Code section 1235, allowing prior inconsistent statements of a witness to be admitted for the truth of the matter asserted, is unconstitutional when applied in a criminal prosecution. In the instant matter, with the exception of the grudging acknowledgment by Porter that he ‘guessed’ that the facts were as he testified to at the time of the preliminary hearing, all the substantive elements of the crime charged were proven through prior inconsistent statements. The reading of the testimony given at the preliminary hearing could not come in under the former testimony exception to the hearsay rule because the witness was available. (Evid.Code § 1291.) The statement by the minor to the investigating officer could not come in under the exception to the hearsay rule for declarations against interest for the same reason. (Evid.Code § 1230.) Although under the code it was proper for the prosecution to be allowed to impeach its own witness (Evid.Code § 785), it was not proper to allow the evidence to be used as substantive evidence in the case. Since this inadmissible evidence constituted the bulk of the testimony linking the defendant to the crime with which he was charged, we must conclude that the error is reversible within the meaning of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

The judgment is reversed.

FOOTNOTES

FOOTNOTE.  FN* Advance report citation: 68 A.C. 674.

STEPHENS, Associate Justice.

KAUS, P.J., and MOOR, J. pro tem.**, concur.