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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Reyes MONTALVO, Defendant and Appellant.

Cr. 3643.

Decided: July 07, 1970

Joseph V. Mazziotta, San Bernardino, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William R. Pounders, Deputy Atty. Gen., for plaintiff and respondent.


Defendant was charged with a violation of Health and Safety Code, § 11502, furnishing a narcotic, heroin, to a minor. The trial was to a jury. After both prosecution and defense had rested, and the prosecution had presented its argument to the jury, the defendant moved to dismiss the action, pursuant to Penal Code, § 1118.1 on the ground the prosecution had failed to prove defendant was over the age of 21 years, as specified by Health and Safety Code, § 11502. The court denied the motion. Counsel then concluded their arguments to the jury. The jury found the defendant guilty as charged. Defendant's motion for a new trial was denide, as was his application for probation, and he was sentenced to state prison for the prescribed by law. Defendant appeals from the judgment of conviction.

Defendant makes several allegations of error: (1) there was insufficient evidence of the narcotic nature of the substance; (2) the age of defendant was not established; (3) it was improper to receive evidence of similar offenses; (4) the conviction was based on the uncorroborated testimony of an accomplice; (5) it was improper to receive evidence of defendant's immoral relationship with Mary; and (6) the cumulative effect of these claimed errors deprived defendant of due process of law.

We have concluded that these contentions are without merit and that the judgment should be affirmed.


Mary, 16 years of age, had known defendant for approximately two years. She had dated him weekly for over a year and had given birth to his baby in March, 1968. Approximately one month thereafter, defendant began to administer injections to Mary which he claimed contained heroin. Between April and July of 1968, Mary received approximately fifteen of these injection from the defendant.

Defendant carried a brownish substance he termed heroin in a ‘baggie.’ He prepared the injections by mixing this substance in a spoon with water and boiling it over a burning match. He then put cotton into the spoon and drew the substance up into an eye dropper.

Mary met defendant at approximately 10:00 p. m. on the evening of July 9, 1968. Between 10:30 and 11:00 p. m. she asked defendant for a shot. Mary did not see defendant prepare the injection but she did see the needle in his hand prior to its insertion into her arm. Defendant had removed his belt and placed it around Mary's arm prior to giving her the injection. This occurred beside a house near her home.

As had occurred previously, Mary became tired within a minute after receiving the injecion; on this occasion, however, she also felt weak and sick. At approximately 11:00 p. m., Mary's mother appeared and told her to go home. She ran home ahead of her mother and vomited in the bathroom. Mary's mother asked whether she had taken anything and she replied that she had just been drinking. The mother called Mary's sister in to look at her; thereafter one of them called the police. When the police arrived, they asked Mary what she had taken, and she replied that she had taken a shot of heroin. The officers then took her to the police station.

William Alwin, a police officer for the City of Ontario and qualified at trial as an expert witness, was engaged in narcotics suppression and had made approximately 25 arrests for the use of heroin. He was called in as a consultant on this case by the Ontario police. At approximately 12:45 a. m. on July 10, 1968, Officer Alwin checked Mary's eyes with a pupillometer and found they had no reaction to light, that her pupils were extremely small and constricted. He found she had numerous fresh puncture wounds on her right inner elbow, six by count, and three other possible marks. When Mary became sick in the interrogation room and vomited again, Officer Alwin asked whether she were indeed ill. She replied that she was not ill.

Officer Alwin testified that Mary appeared to be ‘somewhat lethargic, not real responsive, overly relaxed.’ She did not appear to be concerned with what was transpiring and her general demeanor was ‘euphoric.’ Based on these facts and upon her admission that she was under the influence of heroin, Officer Alwin formed the opinion that Mary was under the influence of heroin.

The defendant produced no evidence.


Defendant's initial contention is that there is insufficient evidence in the record to sustain a finding that the substance he supplied to Mary was heroin. He argues that the substance may not have been a narcotic at all, or that, alternatively, it may have been a barbiturate rather than heroin. Mary was not examined by a medical doctor, no blood alcohol tests were made, not was she given any tests for the presence of narcotics other than the pupillometer readings. No heroin was produced in court and no narcotic paraphernalia was found or used in evidence. The finding of the narcotic nature of the substance is based on two items of evidence: (1) Mary's testimony that the substance was heroin, and (2) the opinion of a qualified expert that the girl was under the influence of a narcotic.

Mary testified that defendant had supplied her with a substance which he described as ‘heroin’ on approximately fifteen occasions prior to the one giving rise to the instant charge. She described the manner in which defendant prepared the injections on the previous occasions, and the packaging and appearance of the substance termed ‘heroin.’ She further testified that the injection received on the evening in question had a reaction on her similar to that experienced from the earlier shots, except on this occasion she became sick. There was no evidence presented that Mary knew what heroin was other than the declaration of the defendant.

In People v. Winston, 46 Cal.2d 151, 293 P.2d 40, two minors testifying for the prosecution stated they had smoked cigarettes provided by the defendant on approximately 20 previous occasions. There was no testimony that they had any familiarity with marijuana other than that acquired from defendant. They were allowed to testify that the defendant had supplied them with marijuana cigarettes on the occasion in question. The court said at page 156, 293 P.2d at page 43: ‘The competency of the girls to testify that the cigarettes were marijuana was shown by their knowledge of it from previous use. In view of such experience, the trial court permitted the girls to identify the substance furnished them by defendant as marijuana. ‘The weight, of course, to be given this testimony was for the jury.’ People v. Candalaria, supra, 121 Cal.App.2d 686, 690, 264 P.2d 71, 73.' (See also People v. Chrisman, 256 Cal.App.2d 425, 434, 64 Cal.Rptr. 733; People v. Drake, 151 Cal.App.2d 28, 44, 310 P.2d 997.)

The jury was also presented with the expert testimony of Officer Alwin, who gave his opinion that the substance administered to Mary was heroin. This opinion was based on (1) the pupillometer test, (2) the needle marks observed on Mary's arm, (3) her euphoric demeanor and lack of responsiveness, (4) her statement that although she felt sick, the sensation was not unpleasant, and (5) her statement that she had received an injection of heroin.

It has been held that where the testimony of a narcotic user is corroborated by the opinion of an expert, the evidence of the narcotic nature of the substance used is sufficient for a conviction. (People v. Chrisman, supra, 256 Cal.App.2d 425, 64 Cal.Rptr. 733; People v. Clemmons, 208 Cal.App.2d 696, 25 Cal.Rptr. 467; People v. Medina, 198 Cal.App.2d 224, 17 Cal.Rptr. 722.) The information upon which the expert based his opinion was adequate. Thus, defendant's contention that the narcotic nature of the substance was not established is without merit.

The Age of Defendant

A major claim made by defendant was that there was insufficient evidence to establish that the defendant was over the age of 21.

Scetion 11502 of the Health and Safety Code provides, in part, that: ‘Every person of the age of 21 years or over who * * * unlawfully sells, furnishes, administers * * * any narcotic other than marijuana to a minor shall be punished by imprisonment in the state prison from 10 years to life, and shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than five years in prison.’

It is apparent from the statutory scheme that the requirement that defendant be over the age of 21 and his victim a minor are important elements of the statute. Health and Safety Code, § 11501 proscribes the sale of narcotics other than marijuana by one adult to another, the penalties imposed are less severe than those mandated by § 11502. The penalties prescribed by § 11502.1, which is concerned with the sale of non-marijuna narcotics by one minor to another, are also less punitive.

Mary testified that at the time of the incident giving rise to this case, she was 16 years of age. No evidence was presented concerning the age of defendant.

In criminal cases the state has the burden of proving the defendant guilty beyond a reasonable doubt, and the initial burden of producing evidence. However, where the charge contains a negative averment, which does not admit of direct proof, or an allegation of fact peculiarly within the knowledge of the accused, the burden of producing evidence may by shifted onto the accused, (18 Cal.Jur.2d 521; People v. Agnew, 16 Cal.2d 655, 663, 107 P.2d 601; People v. Osaki, 209 Cal. 169, 176–181, 286 P. 1025.) This doctrine, known as the rule of necessity and convenience, may be applied only where the defendant has more ready access to the proof, and where requiring him to go forward with the production of proof will not subject him to undue hardship or unfairness. Further, the United States Supreme Court has said that within limits of reason and fairness the burden of producing evidence may be lifted from the state and cast on the defendant in criminal prosecutions. However, this may be done only where ‘the state shall have proved enough’ to make it just for the defendant to be required to repel what has been proved with excuse explanation, or at least where, upon a balancing of convenience or of the opportunities for knowledge, the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. (Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664; 80 A.L.R.2d 1363.)

However, some clarification must be made as to the effect of the implementation of the rule of convenience or necessity in a criminal prosecution. In People v. Zepeda, 231 Cal.App.2d 18, at page 21, 41 Cal.Rptr. 571, at page 573, the court stated: ‘The general rule as to proof of a negative averment in an information is ‘that where the negative of an issue does not permit direct proof, or where the facts come more immediately within the knowledge of the defendant, the onus probandi rests upon him’ (People v. Osaki, 209 Cal. 169, 177–178, 286 P. 1025, 1028.)' Black's Law Dictionary defines the term onus probandi as follows: ‘Burden of proving; the burden of proof. The strict meaning of the term ‘onus probandi’ is that, if no evidence is adduced by the party on whom the burden is cast, the issue must be found against him. (Davis v. Rogers, 1 Houst. (Del.) 44.)'

If this court were to accept the first portion of Black's definition of the onus probandi (i. e., burden of proof) and make the rule of convenience or necessity applicable to the issue of age in this case, the result would be to place the burden of establishing innocence of the offense charged upon the defendant once the prosecution has accused him. The general burden the defendant would have to carry in this instance would be establishing his minority by a preponderance of the evidence.

The problem thus posed is admirably discussed in a note at 77 Yale Law Journal.1 The note, drawing on the legal analysis of the German commentator, Ernst Beling, suggests that the inquiries surrounding a criminal prosecution may be grouped into three categories: (1) whether an act, generally deemed morally culpable, was committed; (2) whether the commission of this generally blameworthy act under the attendant circumstances involved in a particular case is morally culpable; and (3) whether the commission of the act under the particular circumstances by the accused leaves him morally blameworthy. The issues involved in category (1) revolve around the establishment of the corpus delicti of the offense, i. e., did a death occur, were narcotics sold or possessed, etc. Issues falling into the second category raise questions such as whether the act was committed by accident or in self defense, etc. And in the third classification fall inquiries regarding the accused's sanity, diminished capacity, or the possibility he was acting under duress.

The article notes that at English common law as it evolved into the 19th Century, the only issues that the prosecution was obligated to establish beyond a reasonable doubt were those falling into the first category; that an act deemed generally morally culpable was committed by the defendant. As to the issues involved in the second two classes, the common law obliged the defendant to exculpate himself, establishing by a preponderance of the evidence that either under the attendant circumstances the commission of the act was not blameworthy or that even if the act were blameworthy, he, the defendant, was not morally culpable for having done it. The note suggests that the common law judges allocated burdens in this manner because the burdens would have been so allocated in a civil suit, placing on the respective litigants the burden of establishing such issues as it appears they are best able to establish, i. e., the rule of convenience and necessity. However, the author suggests that the common law judges were in error in using techniques applicable to allocating the burdens of proof in civil cases, in the distribution of burdens in criminal matters. In civil cases, it may be presumed that each party has done or has failed to do some thing which has caused him to come before the court. However, this assumption cannot be made regarding a criminal defendant. At the outset we must presume that he has done nothing to merit being brought into court. Further, the purpose of the criminal sanction is not merely to punish those persons who commit certain actions (except for strict liability offenses) but rather to punish persons who are morally blameworthy. But in order to classify a man as morally blameworthy, more must be shown than that he did the proscribed act. Thus, it is suggested, it is irrational to relieve the prosecution from establishing beyond a reasonable doubt all those factors which make the defendant a fit subject for the approbation of society.

Yet it cannot be doubted that there remains underlying validity to the rule of convenience and necessity. The number of factors raised by the inquiries contained in Beling's second and third categories are too numerous to demand the prosecution to negate all of them in each and every case. Therefore, the note proposes a distinction be made. In issues falling within the second and third categories, the article suggests that the burden of going forward be placed on the defendant. Once the defendant has raised an issue such as self defense, accident or diminished capacity, the prosecution has the burden of proving that the issue should be resolved against defendant.

The note further suggests that in order for a defendant to raise an issue sufficiently to shift the burden of proof to the prosecution, he must make some credible showing that the issue is involved in the case.

The author notes that this approach is gaining acceptance, both in California (See People v. Bushton, 80 Cal. 160, 22 P. 127, 549; People v. Toledo, 85 Cal.App.2d 577, 193 P.2d 953; but see People v. Wolff, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959.) and in other states. The German legal system has adopted this approach almost in its entirety. This analysis recommends itself to us, and we employ it in resolving the issue of defendant's age in this case.

The analysis thus far propounded has one major shortcoming, in that it fails to establish comprehensive guidelines informing litigants when the rule of convenience or necessity will come into effect to shift the burden of going forward onto the defendant. Prior case law may be relied upon to give notice of certain specific applications of the doctrine, and the parties may be held to have knowledge of the allocation of burdens thus created. In the absence of such a specific case ruling, and pending the formulation of comprehensive principles governing the application of the rule of convenience or necessity, fundamental fairness demands that the burden of going forward may be thrust on a criminal defendant only where at some point during proceedings in the trial court he is given notice such as would inform a reasonable man that such burden has been placed on him, and an opportunity to carry it.

Applying these principles to the instant case, we find that this case is a proper instance for applying the rule of convenience or necessity. Initially, although in establishing the defendant's age, the prosecution would not have been obliged to prove a negative, the matter is one peculiarly within the knowledge of the defendant. Secondly, the imposition of the burden of going forward with the production of proof on the issue of his age would not have imposed an undue hardship or unfairness upon the defendant. The production of a driver's license or birth certificate, or defendant's testimony on the stand as to this issue alone would have been sufficient to carry the burden of going forward. Thirdly, the state had ‘proved enough’ to justify imposing the burden of going forward on this issue on the defendant. The prosecution had presented evidence from which the trier of fact might infer the presence of all the elements of a violation of Health and Safety Code, § 11502 save the defendant's age. And fourthly, the defendant was put on notice such as would inform a reasonable man that the burden of going forward on this issue was placed on him. After the presentation of the prosecution's closing argument, the defense moved for a directed verdict on the ground of the prosecution's failure to establish defendant's age. This motion was denied. At this juncture, the defendant knew that in the absence of some affirmative showing on his part, the case would be submitted to the jury on the basis of the evidence theretofore adduced. Although less satisfactory than an explicit ruling from the bench that the burden of producing evidence was on him, this was adequate to inform defendant of his obligation of going forward on this issue. Assuming he desired to introduce evidence on this point, he should have moved the court for permission to reopen his case to introduce evidence on this point. To have denied such permission, at least under the facts of this case, would have been an abuse of the trial court's discretion. (This result might not be the same had defendant reasonably been put on notice of his burden at some time earlier in the trial.)

Thus, the burden of going forward was properly placed on the defendant. We cannot say that he carried his burden. As noted above, prior to the submission of the case to the jury, he made a motion to have the action dismissed for failure to prove his age. But this cannot be considered evidence, sufficient to have carried the burden of going forward. Defendant would not have been entitled to an instruction on this point on the basis of his motion. No evidence was presented from which the jury might conclude that defendant was not twenty-one, and since the defendant had the burden of going forward on this issue, he may not now complain.

Evidence of Similar Offenses

At the trial Mary testified that defendant had supplied her with heroin on approximately 15 previous occasions. Defendant asserts that it was error to receive this testimony because it was offered solely to prove a general criminal disposition or propensity on the part of defendant, in violation of the rule of Evidence Code, § 1101 and People v. Sam, 71 A.C. 207, 216, 77 Cal.Rptr. 804, 454 P.2d 700.

However, while evidence of prior offenses may not be introduced simply to establish a general criminal propensity, it may be introduced whenever it logically, naturally and by reasonable inference tends to establish any fact material to the prosecution or to rebut any matter material to the defense. (People v. Haston, 69 Cal.2d 233, 246, 70 Cal.Rptr. 419, 444 P.2d 91; People v. Sykes, 44 Cal.2d 166, 170, 280 P.2d 769.) In this case, the narcotic nature of the substance supplied to Mary by defendant was in issue. Mary's testimony of previous offenses tended to establish her knowledge of heroin. This knowledge, in turn, qualified her to testify as to the nature of the substance defendant administered to her on the occasion in question. Thus, the testimony was admissible.

Defendant contends, in addition, even if the evidence was admissible for this purpose, the court erred in failing to give a limiting instruction to the jury sua sponte on the permissible use of the evidence.

The failure to request additional instructions or to request clarification of existing instructions constitutes a waiver of defendant's right to complain of any such omission on appeal. (People v. Harrison, 1 Cal.App.3d 115, 121, 81 Cal.Rptr. 396; People v. Lombardi, 205 Cal.App.2d 803, 805, 23 Cal.Rptr. 325.) While it is true that a court should instruct on the general principles of law pertinent to a criminal case even without request, the court need not instruct sua sponte on specific points. (People v. Harrison, supra; People v. Wilson, 66 Cal.2d 749, 59 Cal.Rptr. 156, 427 P.2d 820.) It has been held that an instruction limiting the use of testimony to a particular purpose is an instruction on a specific point. (People v. Harrison, supra; People v. White, 50 Cal.2d 428, 430, 325 P.2d 985. See, also, People v. Harris, 270 Cal.App.2d 863, 872, 76 Cal.Rptr. 130; People v. Knighton, 250 Cal.App.2d 221, 231, 58 Cal.Rptr. 700.) While the issue in these cases involved the failure of the courts to instruct sua sponte on the use of prior inconsistent statements for impeachment purposes only, that situation is closely analogous to the instant case. Defendant's contention in this regard is without merit.

Mary Not an Accomplice

Defendant contends that as a matter of law, Mary was his accomplice, that his conviction is based on her testimony, uncorroborated insofar as it asserted that he supplied the narcotic. Thus, it is argued his conviction must be set aside since no conviction may be validly had on the uncorroborated testimony of an accomplice. Further, he asserts, the court erred in failing to instruct sua sponte that the testimony of an accomplice is to be viewed with caution.

It has been repeatedly held that a minor is not an accomplice to the crime of supplying a narcotic to such minor. (People v. DePaula, 43 Cal.2d 643, 647, 276 P.2d 600; People v. Chrisman, supra, 256 Cal.App.2d 425, 435, 64 Cal.Rptr. 733; People v. Medina, supra, 198 Cal.App.2d 224, 230, 17 Cal.Rptr. 722.) This result is not altered by the fact that the minor may have been the party initially seeking the narcotic. (People v. Poindexter, 51 Cal.2d 142, 150, 330 P.2d 763.) Since, mary was not an accomplice as a matter of law no instruction sua sponte was necessary. Thus, defendant's contention in this regard is without validity.

Immoral Relationship With Mary

Defendant next contends that it was prejudicial error for the court to receive evidence of his immoral relationship with Mary. At trial, the defendant failed to object to the introduction of this evidence. Thus, he has failed to preserve his objection on appeal. (People v. Sykes, supra, 44 Cal.2d 166, 280 P.2d 769; People v. Blankenship, 171 Cal.App.2d 66, 83, 340 P.2d 282.)

In light of the above discussion of each of the defendant's allegations of error, it becomes unnecessary to consider the contention as to the cumulative effect of the alleged errors discussed in this opinion.

Judgment of conviction affirmed.


1.  ‘Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases,’ George P. Fletcher, Yale Law Journal, Volume 77, Number 5, April, 1968, pp. 880–935.

GABBERT, Associate Justice.

TAMURA, Acting P. J., and KERRIGAN, J., concur.

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Docket No: Cr. 3643.

Decided: July 07, 1970

Court: Court of Appeal, Fourth District, Division 2, California.

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