PEOPLE v. CRUZ (1964)

Appellant was convicted of violation of Health and Safety Code, § 11530 (possession of marijuana), and appeals.

There was evidence that on November 5, 1962, a named informer told officers that appellant was involved in traffic in narcotics; that at a stated time appellant would pick up a girl by the name of ‘Suzy’ at Pierre's Tavern in San Francisco and drive south, to Los Angeles or Mexico, to obtain a supply of marijuana. The informer gave a description of appellant's car, and its license number. Acting on this information, officers observed appellant and a girl, later identified as Ann Dominguez, drive to Pierre's Tavern and pick up another girl, later identified as Susan LeFevre. Appellant drove the girls to 380 Dolores Street, where all entered an apartment and shortly emerged with two suitcases which were placed in the trunk of the car. Appellant and the two girls then drove south. Officers followed as far as Livermore, where they terminated surveillance. Officers continued to watch the premises at 380 Dolores Street for several days. On November 13, 1962, officers saw appellant's unoccupied car on the street and later in the day saw appellant sitting alone in the vehicle near 380 Dolores Street. The officers approached appellant, identified themselves, and asked to talk with him. Appellant lunged across the front seat of the car and stuffed what appeared to be a marijuana cigarette into his mouth. The officers seized appellant and squeezed his cheeks in an effort to prevent appellant's swallowing the substance in his mouth, but their efforts were unsuccessful. Appellant was handcuffed and taken from the car. He began to struggle with the officers and at the same time shouted in a loud voice, ‘Ann, Ann.’ After appellant had been subdued, an officer approached 380 Dolores Street and met Ann Dominguez, just outside the entrance. The officer asked permission to enter and search the premises, and this was readily granted by Ann. Inside, the officer met Susan LeFevre and explained appellant's arrest and again asked permission to search the premises, which was granted by both girls. In the course of the search the officers found a blue suitcase belonging to appellant. Search of this case revealed marijuana. Later the officers and appellant returned to the car and the officers began a search of the vehicle. In the trunk of the car the officers found a brown suitcase, which they forced open. This suitcase contained 32 marijuana cigarettes, marijuana seeds and amphetamine pills.

Appellant denied ownership of the brown suitcase found in the car, but admitted ownership of the blue suitcase found in the apartment. At trial, officers testified appellant admitted ownership of the marijuana found in the blue suitcase, but appellant in his testimony denied any such admission.

Appellant first contends that his arrest was illegal and that the search of the apartment at 380 Dolores Street without warrant violated his constitutional rights. Neither contention can be sustained on the facts here present. Penal Code, § 836, subdivision 3, authorizes a police officer to arrest without warrant when the officer has reasonable cause to believe the person to be arrested has committed a felony. Here, the officers had information from a known and named informer whose reliability was established. Moreover, the information given by the informer had been verified by the observations of the officers. Arrest without warrant upon information given by a reliable informer is a valid arrest. (People v. Prewitt, 52 Cal.2d 330, 336–337, 341 P.2d 1; Priestly v. Superior Court, 50 Cal.2d 812, 819–820, 330 P.2d 39.) As the officers approached appellant's vehicle to speak with him, he suddenly stuffed what appeared to be a marijuana cigarette in his mouth and resisted all efforts of the officers to recover it. This conduct, together with information possessed by the officers, fully justified their belief that appellant was then committing a felony, namely, possession of marijuana. (See Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36; People v. Poole, 174 Cal.App.2d 57, 60, 61, 344 P.2d 30.)

Appellant's objections to the search of the apartment at 380 Dolores Street are without substance. His consent to the search of the apartment was not necessary and, indeed, would have been valueless if obtained. He did not reside there, nor did he have any control over the premises. Two of the girls who did reside on the premises consented to the search, and a third girl, apparently a resident of the apartment also, made no objection to the search. (See People v. Gorg, 45 Cal.2d 776, 291 P.2d 469; People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513.) Nor did search of appellant's blue suitcase found in the apartment violate any right of appellant. As we have noted, appellant was lawfully arrested in his car near the apartment, and consent of the occupants of the apartment had been obtained prior to search. The officers had reliable information, which they verified by observation, that appellant would leave the premises at 380 Dolores Street and drive south to obtain a supply of narcotics. They saw appellant leave the premises with suitcases. Thus, searching by consent, and coming upon appellant's blue suitcase, it was not unreasonable on the part of the officers, in view of their knowledge, to open the case and examine its contents. (People v. Winston, 46 Cal.2d 151, 162, 293 P.2d 40; Trowbridge v. Superior Court, 144 Cal.App.2d 13, 18, 300 P.2d 222; People v. Coleman, 134 Cal.App.2d 594, 599, 286 P.2d 582; Witkin, California Evidence, § 34, p. 46.)

Appellant requested the trial court to instruct the jury on circumstantial evidence in substantially the same language as that used in CALJIC instructions 26, 27 and 28. The requested instructions were refused. Appellant contends this was prejudicial error.

Where there is direct evidence which serves to connect a defendant with the commission of the crime with which he is charged, and the circumstantial evidence is only incidental or corroborative, instructions on circumstantial evidence are not required. (People v. Klinkenberg, 90 Cal.App.2d 608, 632, 204 P.2d 47, 613; People v. Harmon, 89 Cal.App.2d 55, 60, 200 P.2d 32; Witkin, California Evidence, pp. 146–147; Witkin, California Criminal Procedure, p. 495.) Where the evidence is almost entirely circumstantial, the standard instructions by which a jury is to be guided in evaluating such evidence must be given. (People v. Bender, 27 Cal.2d 164, 175, 163 P.2d 8.) Where these instructions should have been given, and were not, the usual rule applies that error must be prejudicial in order to compel reversal. (People v. Koenig, 29 Cal.2d 87, 93, 173 P.2d 1; People v. Moore, 196 Cal.App.2d 91, 98, 16 Cal.Rptr. 294.)

The trial judge, faced with request for the circumstantial evidence instructions in a case like this, has a difficult problem on his hands. Since the prosecution has presented evidence of admissions which may indeed amount to a confession as to one of the episodes, the judge may confuse the jury by giving them these instructions. (People v. Gould, 54 Cal.2d 621, 629, 7 Cal.Rptr. 273, 354 P.2d 865.) On the other hand, as to the incidents in which there was no admission or confession by the defendant, the defendant is ordinarily entitled to these instructions. On appeal the problem is somewhat different because we have not only the subject of the correctness of the refusal of the instructions, but also whether the refusal, if erroneous, was prejudicial. A review of the entire case convinces us that if the instructions were refused erroneously, there was no prejudice; and we think it unnecessary, because of the somewhat unusual situation in which there were three episodes of possession of narcotics charged in a single count of an information (a situation which does not call for laying down guidelines for the future), to separate the two subjects of error and prejudice.

The first episode to be considered is that of the swallowing of an object. One of the officers was positive that the object was a cigarette, and another testified that it looked like a cigarette. The first one testified that it looked like a marijuana cigarette. We believe that it is extremely unlikely that the jury convicted appellant on the testimony relating to this episode. The district attorney flatly told the jury that the People were not charging him with this incident. This incident, therefore, became purely corroborative of the others, and it is well settled that if the circumstantial evidence is merely corroborative, the instruction need not be given. (People v. Moore, supra, 196 Cal.App.2d at p. 98, 16 Cal.Rptr. 294.)

The incident of the blue suitcase appears to be the one upon which the jury convicted. There is testimony of Officers Van Raam, Yates and Habib that appellant admitted that the marijuana in this suitcase was his. Van Raam and Yates testified that this admission occurred in the inspectors' office. Habib was not present during much of the conversation in this office and did not hear the admission made there, but testified that an admission was made in the apartment. One of the officers testified that appellant said that since he got caught, he wanted to get sentenced as soon as possible. With this testimony before them, the jury was much more likely to find appellant guilty on this incident, than on the third one, described below, in which he denied ownership of the brown suitcase and its contents. The district attorney, in his argument to the jury, placed his chief reliance on the murijuana found in the blue suitcase, saying, ‘We have declared here that this defendant said the marijuana that was found in this suitcase is mine, and if he said that, I don't care what he swallowed that day out there or what was found in this suitcase [evidently the brown suitcase], if he contends this marijuana that was in this little suitcase is his, he is guilty, because we haven't necessarily alleged that all of the marijuana must be his, but it is enough if some of the marijuana is his, and this is what we contend.’ At another point in his argument, he said, ‘Ladies and gentlemen, this is a confession, if you believe this. There is no longer any issue for you to even consider, if you resolve one thing, that Officers Van Raam and Yates told you the truth. If they did and you believe this, there is no issue. It is foreclosed. He is guilty of possession of marijuana. If you disbelieve those two officers and you believe the defendant, then he is not guilty. The issue is that simple. This is a confession.’ And in concluding his opening argument, he placed the credibility of the prosecution witnesses against that of appellant. The case was one of weighing the credibility of witnesses rather than of putting together a pattern of circumstances. The circumstantial evidence was corroborative. If this episode were the only one in the case, the circumstantial evidence instructions need not, and should not, have been given. (People v. Gould, 54 Cal.2d 621, 629, 7 Cal.Rptr. 273, 354 P.2d 865; People v. Moore, 196 Cal.App.2d 91, 98, 16 Cal.Rptr. 294.)

The third episode is that of the marijuana found in the brown suitcase. If this were the only incident in the case, probably the circumstantial evidence instruction would have been required. Even as to this episode, however, there was strong evidence of guilt in the fact that appellant lied about the ownership, inventing the name of ‘George Albert’ as the owner, and admitted that he had lied about it. When he was asked, on the witness stand, why he did this, he said at first he didn't know why he said it. When he was told it was very important to the case, he said that he did it because he thought the suitcase was Paul McCabe's, and that when it was opened by the officers and marijuana was found in it, he thought this, too, was Paul's. Paul had sold him an automobile and was ‘kind of a good friend.’ Nothing more is told us by appellant about Paul McCabe except that he is a longshoreman, and that appellant had not seen him since, except perhaps going into a club on Powell Street once.

Miss Dominguez, who had been living with appellant, testified that she had lied about the suitcase, too, saying she did it because she wanted to back up appellant's protection of Paul. Testimony of appellant and of Miss Dominguez was at outright variance with that of one of the officers about a conversation relating to the fictitious George Albert. The officer testified that Miss Dominguez, when apparently she thought appellant was about to talk about his source of supply, warned appellant, ‘I don't like finks, and I don't like yellow bellies.’ At the trial, appellant and Miss Dominguez both denied this conversation.

It seems highly unlikely that the jury rejected the blue suitcase incident, where the admissions were made, and found appellant guilty on the brown suitcase incident. In both incidents, as in the swallowing one, the credibility of the officers was involved. If the jury actually did convict appellant of possession of the contents of the brown suitcase only, having rejected the testimony of the officers as to the admission of the contents of the blue one, the explanation of appellant and Miss Dominguez of ownership of the brown suitcase and its contents must have been incredible to the jury.

All in all, the case is one involving credibility of witnesses. We are of the opinion that there was no miscarriage of justice by the refusal of the requested instructions.

Appellant's claim of misconduct on the part of the trial judge is groundless. Here, appellant argues that the judge, in the presence of a prosecution witness, discussed the law with reference to evidence obtained from a defendant by use of force, and that the witness was thereby coached in his later testimony. It is a complete answer to this argument to point out that appellant in his testimony made no claim that he was personally abused by the officers or that any evidence was obtained from him by means of threats or force.

A charge of misconduct is also made against the district attorney. This, took, lacks merit, except for one remark made in the closing argument. There, the district attorney did refer to appellant's calling out to Ann Dominguez at time of his arrest, and it was argued that the purpose of the call was to warn Ann to ‘Get rid of the marijuana. Get rid of the benzedrine.’ Reference to benzedrine came into the evidence for the stated purpose of explaining certain conduct on the part of Ann Dominguez, and at the time this evidence was heard the judge strongly cautioned the jury not to consider such evidence in passing upon the question of appellant's guilt. The argument that appellant was calling out to Ann Dominguez, ‘Get rid of the marijuana. Get rid of the benzedrine’ might well suggest to the jury that appellant had committed some crime in reference to possession of benzedrine, although appellant was not charged with any such offense. From our examination of the record, however, we are satisfied that the remark made by the district attorney was inadvertent and, under all the circumstances of the case, did not prejudice appellant.

Judgment affirmed.

I dissent.

All of the evidence in this case is circumstantial evidence. The testimony of the officers that appellant admitted ownership of the marijuana found in his blue suitcase is direct evidence only of the fact that an admission was made, but it is indirect evidence of the truth of what is said to have been admitted. (Code Civ.Proc. § 1832; People v. Koenig, 29 Cal.2d 87, 91, 173 P.2d 1; People v. Gould, 54 Cal.2d 621, 628–629, 7 Cal.Rptr. 273, 354 P.2d 865.) If the evidence in this case had consisted principally of admissions alleged to have been made by appellant, then instructions on circumstantial evidence would have been unnecessary. (People v. Gould, supra.) But that is not this case, as the statement of facts clearly shows. Where, as here, the evidence is entirely circumstantial, standard instructions on circumstantial evidence must be given, (People v. Bender, 27 Cal.2d 164, 175, 163 P.2d 8; People v. Yrigoyen, 45 Cal.2d 46, 49–50, 286 P.2d 1; People v. Koenig, supra; People v. Jerman, 29 Cal.2d 189, 173 P.2d 805; People v. Zerillo, 36 Cal.2d 222, 223 P.2d 223), unless the circumstantial evidence so clearly points to guilt as to admit no other conclusion. Here the evidence of guilt is far from overwhelming. The evidence relating to the swallowed cigarette was very weak, since the officers had only a fleeting glimpse of the object swallowed. As to the brown suitcase, there was believable testimony by appellant and another witness that this suitcase did not belong to appellant but rather to a man from whom appellant had recently purchased the car. Concerning the blue suitcase appellant presents the plausible defense that any one of the four persons sharing the apartment with him could have put the narcotics in his suitcase. One of the other occupants of the apartment did in fact illegally possess other drugs in a suitcase. We cannot know from the jury's verdict whether or not they rejected the testimony of the officers concerning appellant's claimed admissions. If they did, then they were left to consider the other circumstantial evidence which has been described. Appellant was entitled to have the jury properly instructed upon the standard by which the jury should evaluate such evidence. (People v. Garcia, 169 Cal.App.2d 368, 370–371, 337 P.2d 100; People v. Tholke, 75 Cal.App.2d 857, 858–861, 171 P.2d 904.) Failure to give such instructions in this case was prejudicial error because we cannot say it is improbable that a correctly instructed jury would have rendered a different verdict. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243; People v. Deloney, 41 Cal.2d 832, 844, 264 P.2d 532.)

I would reverse.

DEVINE, Justice.

DRAPER, P. J., concurs.