People v. Gardner

Defendants John Gardner and Alma Maxey were accused of violating section 11501 of the Health and Safety Code in that they unlawfully sold opium. In a non jury trial they were convicted. Probation was denied as to Gardner and he was sentenced to imprisonment in the state prison. Probation was granted as to Maxey. Defendant Gardner appeals from the judgment and the order denying his motion for a new trial.

The minutes show that at the beginning of the trial the People made a motion for permission to read into evidence the testimony of Fred Berry, as contained in the preliminary-examination transcript, on the ground that the People could

By stipulation the cause was submitted on the testimony as shown by the transcript of the preliminary examination, subject to the right to offer additional evidence, and without prejudice to defendant’s objection to the preliminary-examination testimony of Fred Berry being read at the trial.

Prior to the filing of the present information against Gardner and Maxey, an information had been filed against Gardner charging him with unlawfully selling narcotics, and an information had been filed against Maxey charging her with unlawfully selling narcotics. The People made a motion to consolidate the two prior cases for trial. The defendants objected to the consolidation. The motion to consolidate was denied. Thereupon the People made a motion to dismiss the informations. Defendants opposed the motion to dismiss on the ground that the defendants were ready for trial and that defendants would be prejudiced by the delay and that the dismissal of the informations and filing of another information would constitute a denial of their right to a speedy trial. The motion to dismiss was granted.

At the beginning of the present trial, defendant Gardner made a motion to dismiss the information on the ground that he had been denied his right to a speedy trial and had been denied due process of law in that the former information against him had been dismissed. The motion was denied.

Appellant (Gardner) contends on appeal that the court erred: (1) in denying his motion to dismiss the present information ; (2) in finding that the People had exercised due diligence in attempting to produce Fred Berry as a witness; (3) in overruling appellant’s objection to the reading of the preliminary-examination testimony of Fred Berry.

Fred Berry’s testimony, as shown by the transcript of the preliminary examination, was in substance as follows: On January 18, 1959, he told Alma Maxey that while he was in the county jail he had talked with “Champ” (her husband) who was in the jail, and that Champ wanted him to go to John Gardner (defendant) to see if $1,500 could be raised for Champ’s bail. He (Berry) talked with her on that day about purchasing cocaine from Gardner in order to raise the bail.

Officer Gilkey testified as follows: He was one of the investigating officers, and in the investigation the officers used an operator by the name of Fred Berry. On January 20, 1959, he (witness) was present at 52d and.Cimarron Streets when an officer searched Berry and his car. No narcotic was found in that search. Then the officers followed Berry to the vicinity

Berry testified further that on January 22 he returned to appellant’s drugstore and told appellant that the stuff he had gotten from appellant was not too good and that opium was difficult to dispose of, and that if appellant could get an ounce of cocaine for Berry he would be able to raise the thousand dollars; appellant replied that it was difficult to procure that much cocaine for the drugstore, and that he was checked by narcotics agents; appellant said he would see what he could do about securing cocaine for Berry; then Berry gave appellant $150; appellant asked if he wanted a receipt, and Berry replied that was not necessary.

Officer Gilkey testified further as follows: On January 22, after the witness and other officers had searched Berry and removed his money, they gave him $150 of “Government advance funds.” Then Berry went with them in their car to a place near Imperial and Wilmington. Then Berry left the car and entered the drugstore at the corner. After staying five or ten minutes in the store, he returned to the officers. They searched him, but he did not have any money.

Officer Chambers, who was qualified as an expert in fingerprint identification, testified that he was assigned to the finger

Mr. Crane, a chemist, testified that the contents of the bottle (Exhibit 1) were powdered opium.

Defendant Alma Maxey was also known as Alma Erwing. She testified in substance as follows : She had met Berry about four months prior to January, 1959. On January 18, 1959, he told her that he had seen her husband in the county jail and he had asked Berry to talk to her about raising bail. She told him that appellant was holding some money for bail. They went, in Berry’s car, to appellant’s drugstore where Berry and appellant had a conversation in which something was said about bail money. On January 20 when Berry called her by telephone she told him that she had received $50 from ‘ ‘ Champ ’s’ ’ brother and she was going to give that to appellant as bail money. She and Berry went to the vicinity of appellant’s drugstore, and Berry went into a liquor store and she went into the drugstore. Appellant said he was busy, and he asked her to wait in her ear for him. After she left the store she told Berry that appellant was busy but he would come out to the car later. She told Berry to walk around the corner. Then she drove the car to the drugstore and waited for appellant. A few minutes later, appellant came out and she gave him $50. Then she drove around the corner, “picked up” Berry, and they returned to her apartment. She did not talk with appellant about narcotics.

Mrs. Woriell, an employee of a bonding company, who was called as a witness by appellant, testified that on February 2, 1959, appellant gave her $150 to apply as premium on a bail bond.

Mr. Richards, called as a witness by appellant, testified that when he was a federal narcotics agent in the first part of 1959 he inspected the requisitions for narcotics which came from appellant’s drugstore, and he did not see any requisition for the type of opium which is involved in this case; the bottle herein (Exhibit 1) appears to be a container that is used by wholesale drug houses for packaging opium.

Appellant testified in substance as follows: He is a pharmacist and owner of a pharmacy at 1901 Imperial Highway. The bottle (Exhibit 1) is the type of container used by wholesale houses in packaging opium. He never purchased any opium

As above stated, Berry was present at the preliminary examination and he was present on April 6, 1960, when the case was called for trial and when, upon appellant’s motion, the case was continued to April 19, 1960, because appellant could not locate certain witnesses (McChristian and Jones). On April 19, upon motion of the People, the case was continued to April 26 because Berry was not present. When the People

Officer Farrington, a deputy sheriff, testified in substance as follows: He knew the witness, Fred Berry, and he had made a search for him. He cheeked the Los Angeles County Hospital, the Los Angeles County Morgue, the Los Angeles City Jail, the Los Angeles County Jail, but did not receive information as to where Berry could be located. He (witness) checked the “Register of Voters” and found that Berry was not registered. He checked the Los Angeles County Property Tax Office and found that there was no listing for Berry. He and Officer Landry checked the Long Beach and San Pedro areas which Berry “was known to frequent.” They checked the Paradise Room, Marine Room, the Reef, Jimmy’s, and the Royal Palm, which are bars in the Long Beach-San Pedro area. They checked the Los Angeles area which included the Rubaiyat Room, the Intermission, and various bars “known to be frequented” by Berry. They contacted Berry’s wife, V. V. Berry, who said she had not seen him for approximately a month—that they had an altercation and officers were called. They checked his last known address, at 936% West 82d Street, which was an apartment that had been occupied by Berry and Clarisse Key. Several garments, cards, and addresses, and a copy of a bail bond, were found there. He (witness) called the Sparks Bonding Agency, which had written the bond, and he was informed that Doris Williams had secured a (furnished security for) bail bond “on” Berry. Jackie Sparks, a representative of that agency, said that Doris Williams had called the agency and had stated that she wanted “to get off the bond” of Berry because she wanted to sell her property which secured the bond and she could not do so while the “bond” was against her property. The “bonding company” did not know the whereabouts of Berry. While the officers were at Berry’s last known address on 82d Street, a lady in another apartment said that Miss Resin was the real estate agent who represented Mr. Milton, the owner of that property. The officers went to the agent’s office on Western Avenue but she was not there.

Officer Landry, a deputy sheriff, testified that he knew the witness, Fred Berry, and he had worked on several cases with Berry, in which eases Berry had testified on behalf of the People. In prior proceedings, and in this proceeding before

Section 686 of the Penal Code provides: “In a criminal action the defendant is entitled:!.... 2. . . . 3. ... to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has . . . cross-examined or had an opportunity to cross-examine the witness; . . . the deposition of such witness may be read, upon its being satisfactorily shown to the court that he . . . cannot with due diligence be found within the state; ...”

Appellant argues that the prosecution did not make a sufficient showing of due diligence in searching for the

There was evidence that Berry had previously cooperated with the officers and had appeared as a witness on former occasions without a subpoena having been served on him. The officers began a search for him on April 19, when they first learned that he failed to appear. They were informed by Berry’s wife that she had not seen him for approximately a month. They found that he was not at his last known address where he lived with Clarisse Key. A person, who apparently was the caretaker there, said that “the people” left in a hurry. Mr. King, a representative of the bonding company which wrote a bail bond “on Berry,” said the bond had been released and he had not seen Berry for approximately a month. Mr. Ruby, a friend of Berry, said he had not seen him for approximately a month. Prom such information, the trial judge could reasonably infer that Berry had deliberately disappeared for the purpose of avoiding the service of process.

Also there was evidence that the bars and clubs which the officers searched were places which were “known to be frequented” by him. The officers did seek information from the gas company and the Department of Water and Power regarding service at his last known address. They also inquired at jails, the county hospital, office of Registrar of Voters, office of tax collector, and bail bond offices.

“ The question of what constitutes due diligence to secure the presence of a witness which will authorize the reading to the jury of testimony taken at the preliminary hearing of the case is largely within the discretion of the trial court, and depends upon the facts of each particular case. The decision of a trial judge on the question of diligence and of the propriety of receiving or rejecting the evidence will not be disturbed on appeal unless it appears that there was an abuse of discretion. [Citations.] The problem is primarily for the trial court, and its solution will not be disturbed if

The search in People v. Glick, 107 Cal.App.2d 78 [ 236 P.2d 586 ] was similar to the search in the present case, and it was held in the cited ease that due diligence had been shown. In the Glide ease it was said, at pages 80 and 81: 11 The record discloses that on January 4, 1951, a process server from the district attorney’s office received a subpoena for Robert George Allen, the driver of the cab in which defendant was riding at the time of the incident above related. On January 20, 1951, the process server went to the offices of the Yellow Cab Company, who had been Mr. Allen’s employer, and was informed he had left their employ on January 17, 1951; on the same day he went to Mr. Allen’s place of residence and was informed that he had moved. The landlady told the process server Mr. Allen had left about two weeks before, that several people had been looking for him but she did not know where he was. The process server then went to the Registrar of Voters, whose records indicated he was not a registered voter. An inquiry was put through the post office department and the report was received that there was no record of him. The records of the county hospital were checked and it was found that no Robert George Allen was listed, and the records of the county and city jails also disclosed he had never been booked at either. A check of the retail credit association resulted in a showing he had no accounts with the large department stores in Los Angeles.

“On three different occasions the process server returned to the Yellow Cab Company only to learn that Mr. Allen had not returned to work. The same result was received upon questioning his former landlady. He also interviewed numerous cab drivers, none of whom knew where the witness could be located.

“The foregoing testimony is clearly ample to support the trial court’s finding that there had been sufficient compliance with the requirements of section 686 (3) of the Penal Code to permit the introduction of the questioned testimony.”

In the present case the evidence was sufficient to support the finding that due diligence had been exercised in trying to find the missing witness. The court did not err in permitting the prosecution to read, at the trial, the testimony of Berry which was given at the preliminary examination.

The evidence was sufficient to support the judgment.

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

Fourt, J., and Lillie, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 19, 1961.