People v. Toledo-Corro

The defendant Juan Soria-Flores was charged, tried and convicted along with three other defendants of the crime of conspiracy to violate section 11500 of the Health and Safety Code of the State of California, and a second count of a violation of said section 11500 in selling, furnishing or giving away narcotics (heroin) as forbidden by said section. This defendant is the sole appellant. He appeals from the judgment and from an order denying a motion for a new trial.

The scene of the crime was at “Sparky’s Café” in Chula Vista, California, near the intersection of Broadway and “G” Streets. On June 26, 1958, H. V. Springett, a narcotics inspector of the State of California, made contact with defendant Manuel Toledo-Corro (hereinafter called Corro) at about 2:30 p. m. and partly arranged for the purchase from Corro of a quantity of heroin. Appellant was not present but Corro had borrowed and was driving at 1954 Mercury automobile (hereinafter called Mercury) which was owned by this appellant. Springett arranged to meet Corro at 6 p. m. to take delivery but the appointment was not kept by Corro. However, Corro was seen to drive in the Mercury slowly by the meeting place (Sparky’s Café). On the same night or the next day (the evidence is conflicting) appellant with Corro and another defendant called Jose Angel Plata-Silva (hereinafter called Silva) drove in the Mercury to Los Angeles and return. The Mercury had no license plates when seen in Chula Vista. On July 2, 1958, Officer Springett again made contact at about 9 p.m. at Sparky’s Café with Corro and another defendant named Pedro Garcia de Leon Arechiga (hereinafter called Arechiga). During this contact, according to the testimony of Officer Springett, Arechiga commented respecting the Los Angeles trip of the Mercury, that “they” were low on money, wanted to make a deal but could not “reach anybody at the number that you gave them,” and that they did have the “stuff” with them. Again appellant was not present. However, appellant and defendant Silva had come from Mexico to Chula Vista with Corro and Arechiga. The appellant was seen to drive slowly north on Broadway and to return

On July 8, 1959, the final contact was made by Springett with Corro and Areehiga at Sparky’s Café. Again appellant was not present. Corro and Areehiga came from Mexico in a Plymouth automobile and according to Corro brought with them in that ear the heroin which was later delivered to Springett. The Plymouth was parked somewhere on or near Broadway not far from Sparky’s Café. The exact location is not shown by the record. Scattered around the immediate vicinity but unknown to any of the defendants were six other officers who acted as observers and assisted in the final arrest. Appellant and Silva came in the Mercury to Chula Vista the same evening and parked near a grocery store called “Angel’s Market” about 350 or 400 feet south of the intersection of Broadway and “G” Streets. (Sparky’s Café was 80 to 90 feet north of this intersection.) There is no evidence that the two cars came together or at the same time. During the negotiations between Corro and Springett in Sparky’s Café Corro told Springett to wait while he went to “pick it up” from another fellow. He left the café and was observed by another officer to walk to the vicinity of the Mercury. Whether or not he also went to or near the Plymouth is not disclosed. There is no testimony that he either got into, reached into, or took anything from the Mercury. The testimony shows that appellant and Silva were not then in the car. Corro then returned to the café and Springett says that upon entering Corro had a noticeable bulge in his left front pants pocket which he, Springett, had not theretofore been able to detect. Two other observing officers in the cafe testified to the same effect. Corro says that he went out of the cafe merely to see if there was anything suspicious. The left front pants pocket of Corro was the one from which the heroin was later produced by Corro when the delivery was made at the nearby Monterey Motel. The heroin was in four small latex bags contained within a large plastic bag. The total amount of heroin was about 4.1 ounces. Shortly after delivery Springett, Corro and Areehiga went to Springett’s car and Corro and Areehiga were then arrested. Appellant and Silva were ar

The central figure of guilt was Corro, who was a fellow officer with appellant in the Federal Security Police force of Mexico, but their acquaintanceship existed only for about a year and a half. They were on friendly terms and appellant occasionally loaned Corro his car. Appellant bought the Mercury second-hand in June, 1958. On transfer, the Vehicle Registration Department took up the old license plates and issued a temporary permit. Appellant testified that the time between taking up the plates and putting on new ones would ordinarily be three or four days. Exactly when the plates were taken up and when the new plates were put on is not clear, nor does the record contain any license plates numbers so that we are without information as to whether the license plates seen on July 2d were new or old. The officers were never asked about these numbers so we do not know whether they were recorded. The prosecution directs our attention to three principal points of alleged discrepancy between the testimony of the officers and this appellant. One relates to the

The second discrepancy cited is regarding which way appellant was walking on the sidewalk when arrested. As hereinbefore noted, there is no evidence that Corro contacted appellant at any time on the evening of July 8, nor that appellant was in his car at the time Corro was described as having walked to that car. Nor is there any evidence that Corro looked in, reached in, or entered appellant’s car or that that car contained contraband. There is no evidence that appellant denied ownership of the car nor made the slightest move to escape. Appellant’s statement of what he had purchased by way of household supplies is corroborated by Officer Hawkins, and is nowhere contradicted. Narcotic chemist J. A. Allen, who had followed appellant’s car from the border to Chula Vista earlier in the evening and assisted in the arrest of appellant, did not even see appellant’s car at the time of the arrest. It is incredible that Officer Allen, assisting in the arrest, would not have seen appellant’s ear had the officers made any point of what direction appellant and Silva were walking. This alleged discrepancy is completely, devoid of any inculpatory inference.

The third alleged discrepancy relates to the purported difference in testimony as to whether or not the glove compartment of the car was locked or unlocked. The presence of the weapon itself is fully explained by the uncontradicted testimony of prosecution witnesses regarding the custom of accredited police officers temporarily crossing the border. The arrest was made by Officers Kingsbury, Spohr and Allen. The search was made by Officer Lohman. The record does not show to which officer the key was given. Apparently during the trial neither the prosecution nor the defense regarded the question of who locked or unlocked the glove compartment as of any importance, and the evidence was left entirely

Since the package of heroin contained only 4.1 ounces, and since there is.no evidence that the containers were disproportionate in size to the contents, it would seem apparent that the package would not be greater in size than numerous articles frequently carried by men in their pants pocket, such as a King-size package of cigarettes, a can of tobacco, or a large handkerchief. The testimony as to the bulge in Corro’s pocket is entirely in nebulously relative terminology. The record before us, therefore, contains no evidence that the package was of such a size as to excite suspicion on the part of a companion if we assume that Corro ever did carry the package on. his person in the presence of appellant. The evidence does not clearly show, although there is a possible inference, that Corro ever carried the narcotics on his person in the presence of appellant.

The town of Chula Vista is but a short distance from the Mexican border crossing. Under the border crossing conditions shown by the record herein there could not reasonably be anything suspicious in frequent visits thereto, either by acquaintances together or at the same time in separate cars.

Appellant is not placed in Sparky’s Café nor at any other place where he could have overheard any inculpatory talk referred to in the testimony. Nowhere in the evidence does there appear any conversation or act in the presence of appellant that could reasonably be expected to cause appellant to be suspicious or put on inquiry. However, the Supreme Court of California has clearly and unequivocally approved certain rules of law which appear to control our decision when we consider the matter of license plates. Those rules are as follows:

“ ‘The evidence of inculpatory participation need not be direct nor extend to every fact and detail. It may be circumstantial and is sufficient, even though slight, if it tend to connect the defendant with the commission of the crime.’ . . . ‘Of course, as has been pointed out many times, disbelief of evidence is not the equivalent of affirmative evidence to the contrary . . . But where a material fact is established by evidence and it is shown that a defendant’s testimony as

to that fact was wilfully untrue, this circumstance not only furnishes a ground for disbelieving other testimony of this defendant [citations], but also tends to show consciousness of guilt or liability on his part and has probative force in connection with other evidence on the issue of such guilt or liability. Such false testimony is in the nature of an admission from which with other evidence guilt or liability may be inferred. [Citations.]” (People v. Wayne, 41 Cal.2d 814 , 822, 823 [3-4] [ 264 P.2d 547 ].)

“ As a general rule, a conspiracy can only be established by circumstantial evidence ‘for, as the courts have said, it is not often that the direct fact of an unlawful design which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts, bearing more or less closely or remotely upon the common design (5 Cal.Jur. 521); and it is not necessary to show that the parties met and actually agreed to undertake the performance of the unlawful acts (citing authority), nor that they had previously arranged a detailed plan . . . for the execution of the conspiracy (citing authority).’ (People v. Sampsell, 104 Cal.App. 431 , 438-439 [ 286 P. 434 ].)” (People v. Steccone, 36 Cal.2d 234 , 237 [2-3] [ 223 P.2d 17 ].)

“ The decision of the jury, which has been approved by the trial judge in the denial of a motion for a new trial, will not be set aside on appeal unless there is no substantial evidence upon any hypothesis whatsoever to support the verdict of the jury and the conclusion of the trial court. ’ ’ (People v. Robinson, 43 Cal.2d 132 , 136 [3] [ 271 P.2d 865 ].)

“While mere association does not make a conspiracy, it is settled that the fact of conspiracy may be proved circumstantially by evidence of other facts and circumstances, when they are inconsistent with any other rational conclusion and when thus being inconsistent, it may be fairly inferred that a conspiracy does in fact exist.” (People v. Weber, 7 Cal.App.2d 620 , 622 [1] [ 46 P.2d 222 ].)

However, this rule, which is similar to the rule that of two reasonable constructions the jury must adopt that which is consistent with the defendant’s innocence, is one for the trier of fact and not the appellate court to apply. (People v. Roberts, 40 Cal.2d 483 , 488 [7] [ 254 P.2d 501 ].) In addition,

“ ‘We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from

the evidence, and then determine whether such facts are sufficient to support the verdict.’ If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury." (People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ].)

We recognize that conspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense. (People v. Long, 7 Cal.App. 27 , 33 [ 93 P. 387 ].) Associations together of persons having no criminal intent is not conspiracy. (People v. Bucchierre, 57 Cal.App.2d 153 , 163 [ 134 P.2d 505 ]; Dong Haw v. Superior Court, 81 Cal.App.2d 153 , 158 [ 183 P.2d 724 ]; People v. Zoffel, 35 Cal.App.2d 215 , 226 [ 95 P.2d 160 ].)

Reappraising the evidence relating to the lack of number plates on the Mercury, appellant’s car, coupled with the incidents of the proved conspiracy, and regardless of how these events may under the whole record impress this appellate court, it was nevertheless possible for the jury to reasonably conclude that the defendant’s statement that he had not reaffixed the number plates on his car on the night of July 2d after leaving Chula Vista and before reaching the border was wilfully false and untrue. If they believed that statement to be wilfully false and untrue they were entitled to disbelieve his other statements respecting the lack of a license plate. We cannot say this evidence was immaterial. Since we hold ourselves bound by the expressions of our Supreme Court hereinbefore quoted, we are compelled to and do hold that there was sufficient evidence to support the decision of the jury.

The judgment and order denying a motion for new trial are affirmed.

Griffin, P. J., concurred.