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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Michael Irin KNIFONG, Defendant and Appellant.

Cr. 19524.

Decided: January 27, 1972

Clifford Douglas, Los Angeles, under appointment by the Court of Appeal, and Melvyn Douglas Sacks, Van Nuys, for defendant and appellant. Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and John D. Darlington, Deputy Atty. Gen., for plaintiff and respondent.

Defendant Knifong was charged with: (count I) kidnaping (Pen.Code § 207); (count II) false imprisonment (Pen.Code § 236); and (count III) possession of marijuana for sale (Health & Saf. Code § 11530.5). Two prior felony convictions were charged; as to counts I and II it was charged that he was armed with a deadly weapon, to wit, a pistol at the time of commission of the alleged offenses. Defendant pled not guilty, a motion to dismiss the priors was denied,1 motions under sections 995 and 1538.5 of the Penal Code were denied.2 Defendant's subsequent motion at trial to reopen the motion to suppress the evidence was also denied. After a trial by jury, defendant was found guilty of possession of marijuana for sale (count III) and not guilty of the other offenses. A motion for new trial was denied; defendant appeals.

In the fall of 1969, at Mr. Noe's request, defendant went to a Kansas farm to assist in the processing of marijuana. Joe Hurley, a narcotics dealer, was planning to sell the marijuana in California for Mr. Noe. In September, 1969, Deborah Dale, Noe's girl friend, went to Kansas, where she, defendant, Noe and other persons harvested or packaged plant material which defendant had referred to as marijuana. Defendant had not packaged the material. He was paid for his work on the Kansas farm. In October or early November, 1969 Miss Dale and Noe drove two carloads of the packaged plant material to a home in Laurel Canyon, California.

In November, 1969, the relationship of Hurley and Noe deteriorated, because Noe became suspicious about missing marijuana. Noe abducted Hurley at gunpoint on November 20 and again on November 22, 1969. Noe questioned Hurley about the missing marijuana.

On November 28, 1969, Joe Hurley received a message to go to 8010 Hatillo Street. Hurley arrived at the address, a girl opened the door, and, according to Hurlev, Noe and defendant appeared with guns and handcuffed Hurley. Noe and defendant drove Hurley at gunpoint to 318 South Sunset Canyon and left Hurley, still handcuffed, in a cellar under a cabana. Hurley freed himself and went to a nearby residence to call his brother. The head of the household, Mr. Albert, telephoned the police, even though Hurley did not want the police called in on the matter.

Officer Bruno responded to Mr. Albert's call and went to the area of the cabana. The poolside cabana was about 8 x 10 feet in size and the entire side of the cabana that faced the pool, including the door, was made of glass. Officer Bruno went into the cabana, there was an open hole in the floor, and he saw a kilo of marijuana. Hurley was with the officer. At about 10:30 p.m., Noe approached the cabana, Officer Bruno ordered him to freeze, Noe ran toward the cabana and pointed a gun at the officers, and Officer Bruno shot and killed Noe. Officer Nordley impounded a van that the deceased had arrived in, searched the van and found 4 photographs in the glove compartment. These photographs show plant material similar to the marijuana admitted into evidence. Miss Dale later identified these photographs and testified that defendant had referred to the plant material in the photographs as marijuana or ‘weed’.

Three or four days after Noe's death, defendant telephoned Noe's brother and asked if he had some marijuana that Noe had given him. The brother said he had the marijuana, and defendant arranged a meeting. No mention of an exchange of money was made. Noe's brother related the conversation to the police.

After being given immunity, Hurley admitted that he was involved in a narcotics transaction with Noe and defendant. Noe supplied defendant, and defendant was dealing in narcotics with Hurley.

Deborah Dale was also granted immunity and testified about the activity with defendant and Noe on the farm in Kansas.

Defendant denied knowledge of the marijuana in the cabana and asserted that Joe Hurley admitted that he lied when he involved defendant in the kidnaping and possession of marijuana.


Defendant contends that the trial court erred when it failed to instruct the jury that Joseph Hurley and Deborah Dale were accomplices as a matter of law. An instruction that Dale and Hurley were accomplices as a matter of law would only have been proper where evidence establishing their complicity in the crime was undisputed. (People v. Davis (1954) 43 Cal.2d 661, 672, 276 P.2d 801; People v. Wallin (1948) 32 Cal.2d 803, 809, 197 P.2d 734.) In the case at bench, Dale and Hurley admitted prior dealings in marijuana with defendant, but both parties denied any knowledge of or connection with the marijuana in the cabana. Although defendant implicated Hurley in the possession of the marijuana in the cabana, this merely created a conflict in the evidence. Where evidence concerning whether persons are accomplices is disputed, the question of whether they are accomplices to the crime is a question for the jury, and it is not error to fail to instruct the jury that the parties were accomplices as a matter of law. (People v. Barclay (1953)40 Cal.2d 146, 153, 252 P.2d 321.)3


Defendant asserts that, even if Deborah Dale and Joe Hurley were not accomplices as a matter of law, the court should have instructed the jury that they could find them to be accomplices, and that accomplice testimony should be viewed with distrust. (People v. Barclay, supra (1953) 40 Cal.2d 146, 153, 252 P.2d 321.) Defendant argues that this instruction should have been given, even though the instruction was requested. We agree. The rule is that when an accomplice is called as a witness for the People, the court must instruct the jury on the rules of law regarding viewing an accomplice's testimony with distrust, even though no request for the instruction is made; failure to do so may be reversible error. (People v. Miller (1960) 185 Cal.App.2d 59, 82, 8 Cal.Rptr. 91; People v. Dailey (1960) 179 Cal.App.2d 482, 3 Cal.Rptr. 852.) In the instant case there was sufficient testimony to conclude that Dale and Hurley might have been accomplices to the possession of the marijuana in the cabana. An accomplice is defined as one who is liable for prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. (Pen.Code, § 1111.)

In the case before us, Hurley and Dale admitted involvement in prior narcotic transactions with defendant, and although they denied knowledge of the existence of the marijuana in the cabana, there was sufficient evidence from which the jury could infer that Hurley and Dale were not telling the truth and that they were involved in possession of the marijuana in the cabana.4 Since the People called Hurley and Dale, the instuction on distrust of accomplices should have been given on the court's own motion. Failure to give the required instruction constituted reversible error. Although there was some corroborating evidence, defendant's conviction was primarily derived from this accomplice testimony, and the damaging effect of failure to give the instruction is clear.


Defendant contends that there was insufficient evidence to convict him for possession for sale of a narcotic, because the testimony of the accomplices was not corroborated as required by section 1111 of the Penal Code.

Although the most substantial testimony connecting defendant with the narcotics came from Dale and Hurley, there was some corroborating testimony. Victor Noe, the brother of the deceased, received a phone call from defendant asking Victor if he had some marijuana which the deceased had given him. Victor Noe said he did, and defendant arranged to pick up the marijuana from the deceased's brother. There was no offer of money by defendant.

As defendant points out, mere association of defendant with Noe and the others would not, by itself, by sufficient corroboration. (People v. Braun (1939) 31 Cal.App.2d 593, 88 P.2d 728) nor would the mere opportunity to commit the crime be sufficient. (People v. Lloyd (1967) 253 Cal.App.2d 236, 61 Cal.Rptr. 138.) As we point out in footnote 4, supra, the jury, properly instructed, might have found that Noe's brother was also an accomplice in the marijuana transaction. If so, the People may need, at any new trial, to produce evidence from someone not a part of the conspiracy. In short, while we cannot hold that testimony of Hurley and Dale was corroborated as a matter of law, we cannot foreclose the possibility that more corroboration may be available to the prosecution.


Defendant claims that, irrespective of whether there was corroboration, there was insufficient evidence to find defendant guilty of possession of marijuana. Hurley's testimony, if believed, considered with the deceased's brother's testimony, was sufficient to establish guilt. It is true that the jury may have disbelieved Hurley's testimony concerning the kidnaping, but they may have believed his testimony related to the marijuana. The jury is free to believe only a fraction of a witness's testimony even if it finds the rest to be unworthy of belief. (People v. Bodkin (1961) 196 Cal.App.2d 412, 414, 16 Cal.Rptr. 506.)


Defendant alleges that it was error to fail to instruct the jury that ‘dominion’ is an element of illegal possession of narcotics. The jury was instructed under CALJIC No. 12.00 that a defendant must exercise control over, or have the right to exercise control over, narcotics to be deemed to have illegal possession of the narcotics, but the instruction given did not state that defendant must exercise ‘dominion’ over the narcotics. Defendant points out that, although People v. Showers (1968) 68 Cal.2d 639, 644, 68 Cal.Rptr. 459, 440 P.2d 939, stated that the accused has possession where he exercises dominion or control, the case law has required that the defendant exercise dominion and control. (For example, People v. Francis (1969) 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591; People v. Blunt (1966) 241 Cal.App.2d 200, 204, 50 Cal.Rtpr. 440.) Assuming without deciding that the jury should have been instructed in the conjunctive, if any error was committed such an omission would not be reversible error Generally, the courts have used the phrase ‘dominion and control’ to refer to a single concept, and as such defendant was not harmed by the instruction as given.


As we have indicated above, at the preliminary examination the then counsel for defendant made a motion, pursuant to subdivision (f) of section 1538.5 of the Penal Code. to suppress the evidence secured as a result of the search of the cabana and the hole under it and also to suppress the photographs round as a result of the search of Noe's van. The motion was grounded on a claim that the search of the cabana and its cellar violated section 844 of the Penal Code and that the search of the van was illegal as not being connected with any arrest. The motion was denied. In the superior court, defendant was represented by a deputy public defender who moved to set aside the marijuana count on the ground of insufficient evidence to connect defendant with the marijuana, but not on the section 844 ground; the deputy public defender also made a motion under section 1538.5 to suppress certain money found on defendant and for its return, but that motion was not directed to any of the evidence involved in the motion made at the preliminary examination. The motions were denied. During the course of the trial, defendant (having secured other counsel) sought to renew (or re-open) his superior court 1538.5 motion in order to raise the objections raised at the preliminary examination. That request was denied.

(1) Although defendant's appellate counsel urges us so to do, we conclude that we cannot, on this record, examine into the propriety of the magistrate's ruling on the motion made before him. Although the last sentence of subdivision (m) of section 1538.5 lends some linguistic support to the contention that the magistrate's ruling is reviewable on an appeal from a superior court judgment,5 we think that the Legislature did not intend that a superior court judgment be open to attack on a ground not before that court and on which that court had no opportunity to rule.6

(2) The superior court ruled correctly in denying defendant an opportunity, in midtrial, to re-open the motion that his counsel had made, in that court, at the start of the trial. Neither the evidence nor the grounds were newly discovered; there had been no change in the applicable law. The conditions evoking the saving provisions of subdivision (h) did not exist. (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 609, 94 Cal.Rptr. 250, 483 P.2d 1202; People v. O'Brien (1969) 71 Cal.2d 394, 79 Cal.Rptr. 313, 456 P.2d 969.)

(3) We cannot say that the deputy public befender was guilty of such neglect or incompetence as to entitle defendant to invoke the so-called Ibarra rule. The contentions made before the magistrate, while not without merit, were not so clearly valid as to prevent the public defender from thinking it useless to renew them. As the trial record shows, defendant had a reasonable chance of securing an acquittal on the merits; the public defender cannot, in this court, be faulted for electing the tactics that he chose.

(4) However, as we have pointed out above, we must reverse for other errors. As the Attorney General concedes, that reversal will return the case, in the trial court, to the arraignment stage. If the prosecution elects to retry the case, defendant may at that time, if he then so desires, make a new motion under section 995, and a new 1538.5 motion under the authority of subdivision (i) of that section. The superior court may then, on such evidence as may then be presented, pass on the contentions now urged on us.


Defendant contends that the failure to return the money seized at the time of arrest caused a denial of the right to counsel of defendant's own choosing. Defendant alleges that had the $1,000 been returned, he could have used the money to pay private counsel.

At the time of the trial the prosecutor claimed the money would be material evidence, apparently because he believed it was a suspected fruit of the charged crime. Victor Noe later denied any knowledge of any alleged reward of money. There is no showing of any bad faith on the part of the prosecution, and it is only with the aid of hindsight that we know that the $1,000 was not material evidence. The retaining of evidence material to the court does not result in the denial of one's own counsel, simply because that evidence happens to be money as opposed to another object.

The judgment is reversed; the case is remanded to the superior court with directions (if the People elect to bring the case on for a retrial) to permit defendant, if he be so advised, to renew his motion, under section 995, to set aside the information, and his motion, under section 1538.5, to suppress evidence against him, and also for return of the money.


1.  Ultimately, defendant admitted the priors.

2.  The clerk's transcript does not show any disposition of the 1538.5 motion. However, the reporter's transcript shows that it was denied, under the circumstances hereinafter discussed.

3.  Ovrruled on another point in People v. Mores (1964) 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33.

4.  Hurley and Dale had been involved in the harvesting, packaging and transportation of the Kansas marijuana. Defendant and Noe had also been engaged in that series of events. The jury, properly instructed, could well have inferred that it was the Kansas marijuana which formed Noe's stock-in-trade and that Noe had secreted part of that stock in the cabana. The evidence before it, that Hurley, defendant, defendant's brother and Noe were all parts of a single conspiracy to grow, harvest, package, transport and sell marijuana.

5.  ‘Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evedence.’

6.  The language quoted in footnote 5, supra, may be given effect in cases not reaching the superior court, or (perhaps) in cases reaching that court only for sentence after a guilty plea in a municipal or justice court.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.