PEOPLE v. DE PAULA (1954)

This is an appeal by defendant DePaula from a judgment of conviction and order denying his motion for a new trial on a charge of using a minor for the purpose of transporting heroin in violation of Health & Safety Code section 11714.¹

DePaula and his codefendant White were arrest at approximately 10:00 p. m. on June 6, 1953, in the city of Los Angeles, in company with Madonna, a minor girl, who was also taken into custody. She had in her hand a portion of a gum wrapper in which there were two paper bindles containing a light brown substance which was found to be heroin. Appellant, who had known the girl for some time, was waiting for her in his car that evening when she came out of a beauty parlor located at 43d Street and Central Avenue. He told her White was on the corner and that he wanted to go down on 5th Street to pick up some heroin. Madonna said that was ‘Okay.’ They then picked up White and drove to 5th Treet in Los Angeles. Appellant gave her $5 which she handed to White. She and White got out of appellant's car. White made the purchase and gave the two bindles to her. She placed them in the gum wrapper and they got back into the car. Appellant, according to Madonna's testimony, knew she had the narcotic. He then drove to her address on Griffith Street. The group was on their way to Madonna's room to ‘shoot the heroin’ when they were arrested and the contraband recovered by the officers from her possession.

The evidence showed that all three of these people were narcotic users. The officers found equipment for administering narcotics in Madonna's room. She testified it was purchased for her by appellant and that he paid her room rent where she was living. An officer also testified that appellant stated to him that he had given her some money with which to rent a room; that he had visited her there on several occasions; that she had administered narcotics to him in her room; also, that he had met the girl on Central Avenue at about 9:00 p. m. on the 6th; had driven her and White to 5th Street; that they got out of the car and went somewhere (but he did not know where) while he remained in his car; that he did not know they were going to buy heroin but he presumed that was where they had gone; and that he did not know Madonna had heroin in her possession until the time of the arrest.

Appellant contends his conviction is unlawful on the theory that Madonna was an accomplice and therefore the court prejudicially erred in refusing to give the jury an instruction that an accomplice's testimony must be corroborated before a conviction can be had. He relies on section 1111,2 Penal Code, and certain cases applying it. The provisions of that section requiring corroboration of the testimony of an accomplice do not apply unless the person whose testimony is in question is an accomplice as therein defined, viz., ‘one who is liable to 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, sec. 1111. Measured by this statutory test, it is clear that Madonna was not an accomplice of appellant. The conduct denounced as a crime by the particular provision of section 11714, Health & Safety Code, is that of using a minor in unlawfully transporting a narcotic. The gravamen of the offense is in its tendency to debauch children. People v. Krupa, 64 Cal.App.2d 592, 599, 149 P.2d 416. The use of a minor for such purpose ‘necessarily contributes to the delinquency of that minor’. People v. Knowles, 35 Cal.2d 175, 186, 217 P.2d 1, 8; Welfare & Institution Code, sec. 702. In such circumstances, ‘the minor is regarded as a victim and not as an accomplice whose testimony it is necessary to corroborate under the provisions of section 1111 of the Penal Code.’ People v. Deibert, 117 Cal.App.2d 410, 427, 256 P.2d 355, 366.

It is obvious that Madonna is not ‘liable to prosecution for the identical offense charged against the defendant’. She was not using a minor to unlawfully transport a narcotic. She was, of course, guilty of possession in violation of section 11500, Health & Safety Code, but although such possession related to the same contraband the offense was not ‘identical’ with that ‘charged against the defendant’. Even if these offenses could be regarded as similar, that would not be sufficient to make Madonna an accomplice for it has been held repeatedly that ‘similarity of offenses is not the same as identity.’ People v. Galli, 68 Cal.App. 682, 684, 230 P. 20: People v. Lein, 204 Cal. 84, 86, 266 Pp. 536; People v. Baskins, 72 Cal.App.2d 728, 731, 165 P.2d 510; People v. Mimms, 110 Cal.App.2d 310, 314, 242 P.2d 331. Since Madonna was not an accomplice of appellant the trial court properly refused to give an instruction upon that theory.

Appellant also contends the evidence is insufficient to support the judgment. There is no merit in this contention. The evidence herein recited, which we may assume in support of the verdict and judgment the jury believed, is ample to sustain appellant's conviction. Appellant says the testimony of Madonna was untrustworthy. That, of course, was for the jury to decide in the first instance and later for the trial judge to consider in passing on the motion for a new trial. An appellate court may not re-evaluate the credibility of witnesses and reweigh the evidence. People v. Gould, 111 Cal.App.2d 1, 243 P.2d 809.

Appellant attacks the testimony of Madonna charging that she ‘was given immunity for her perjured testimony against the defendants.’ It is not established that she was given immunity or that she committed perjury. Since Madonna was a minor she was necessarily turned over to the juvenile authorities and the juvenile court for discipline and rehabilitation. The record does not reveal what plan was worked out for her. The verdict of the jury and the implied finding of the trial judge in denying appellant's motion for a new trial definitely establish that they did not believe Madonna gave perjured testimony. There are numerous circumstances which support their evaluation of her evidence. In this connection appellant refers to an affidavit filed by his codefendant White in support of his motion for a new trial in which it is asserted White stated that Madonna visited him in jail and told him she testified against the defendants for the immunity extended by the prosecution. No such affidavit is in the record before us. However, after having heard White testify, for he, unlike appellant, did take the stand, and taking into consideration the other facts and circumstances disclosed by the evidence, the trial court may well have concluded that his ex parte affidavit was not worthy of credence.

In this connection it should be noted that defendant failed to testify. The facts testified to by Madonna were within his knowledge and power to dispute. The jury could, therefore, consider his failure to explain or deny such evidence as tending to indicate the truth thereof and as indicating that among the inferences that could reasonably be drawn therefrom, those unfavorable to appellant were the more probable. People v. Steccone, 36 Cal.2d 234, 239, 223 P.2d 17.

Appellant, however, seeks to excuse his failure to testify on the ground that he and his attorney feared the disclosure to the jury of his previous felony convictions would seriously affect his credibility and greatly weaken the value of his testimony. Such fears may have been well founded but it was a decision he and his counsel were necessarily required to make. In such respect they determined the state of the evidence that went to the jury. Appellant is bound by that decision. We may not consider matters outside the record in passing on the sufficiency of the evidence to sustain a conviction.

Appellant was acquitted of Count One in the amended information in which it was charged that on or about May 19, 1953, he ‘furnished, administered and gave’ Madonna, a minor, a preparation of heroin in violation of section 11714, Health and Safety Code. He now contends that ‘the verdicts of the jury are inconsistent as a matter of law.’ There is no merit whatever in this contention. In Count Two, on which appellant was convicted, he was charged with using a minor—Madonna—‘for the purpose of transporting’ narcotics, to wit, heroin, on June 6, 1953. It is thus plain that the alleged offenses are entirely different both as to substance and time of their asserted commission. A verdict on one of these counts could have no relation to a verdict on the other.

The judgment and order are affirmed.

FOOTNOTES

1.  The pertinent part of Section 11714, Health & Safety Code, reads as follows: ‘Every person who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale or peddling any narcotic, or who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any narcotic to a minor, is guilty of a felony * * *.’

FN2. Penal Code, section 1111, reads: ‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’.  FN2. Penal Code, section 1111, reads: ‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’

FOX, Justice.

MOORE, P. J., and McCOMB, J., concur.