People v. Morales

Morales and Velasquez were indicted for the sale of marijuana (Health & Saf. Code, § 11531). Count I charged both Morales and Velasquez with a sale on April 8, 1966, and count II charged Velasquez only with a sale on April 7, 1966. Each defendant was charged with and admitted priors involving narcotics—Morales had three priors and Velasquez two. Defendants moved for separate trials on Aranda grounds (People v. Aranda, 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ]). The motion was denied and following a joint jury trial, they were found guilty as charged and sentenced to state prison. Defendants filed separate notices of appeal. The present appeal concerns only Morales.

On April 7, 1966, at about 8 p.m., Reyes and Tryal, state

At about 7 :45 p.m. of the following evening, Reyes, Tryal and “Chico” again met Velasquez at the Schooner Bar. AYhcn Reyes asked if he could make it for a “kilo,” Velasquez replied, ‘‘ Just a minute, I will call Donny, ’ ’ went to the rear of the bar to a telephone, returned in a few minutes and said, “Donny is not in, let’s go over and he may be there by the time we get there.” The four again drove to Morales’ home, Velasquez entered the house but returned shortly saying “Donny” was not there. At that moment Morales drove up in his car and parked adjacent to the house. The officers observed Velasquez and Morales converse and, as Velasquez returned to the car, overheard Morales say, “Make sure you are down there because I don’t want to take one with me and have to bring it back.’’.Velasquez entered Reyes’ car and the four returned to the Schooner Bar. Enroute Velasquez said that if “Donny” could obtain two “kilos,” he would let Reyes have one kilo for $100 and that if Morales could only obtain one “kilo,” he would let Reyes have “three cans.”

After they returned to the bar, at about 9 :20 p.m., Velas

Morales testified in substance as follows: He did not see Velasquez on April 7. On the night of April 8, he returned from a shopping trip and as he was taking groceries into his house, he observed Velasquez talking to an unidentified individual but when he, Morales, came out of the house the third person was gone. He conversed briefly with Velasquez who said he was going to the Schooner Bar that evening and Morales said he might meet him. The subject of marijuana was not discussed. While he was in the bar that evening, he remembered leaving his keys in his car so he went out to get them. He encountered Velasquez who accused him of taking out his girl; they exchanged a few words; he removed the keys from his car; the two shook hands and they re-entered the bar. There was no delivery of marijuana.

Velasquez testified in substance as follows: When he met Reyes on April 7, he had been unemployed for some time. “Chico” told him that he could earn some money by providing a “connection” for Reyes and displayed $50 in cash. “Chico” said that Reyes had been convicted of a narcotics offense in Sacramento and was in San Bernardino looking for a new “connection.” At the insistence of “Chico” and Reyes, Velasquez agreed to make a call to Arlington. After making the call, he told Reyes that they could meet the unidentified man at “Donny’s” house. On arriving at Morales’ home,. Velasquez met the unidentified man in the backyard, obtained a bag of marijuana, and subsequently delivered it to Reyes. On April 8, he again called the unidentified individual

If the statements implicating Morales were admissible against the latter as declarations of a conspirator against a co-conspirator, the principles enunciated in Aranda, supra, would be inapplicable. (People v. Gant, 252 Cal.App.2d 101 , 110 [ 60 Cal.Rptr. 154 ]; People v. Hardeman, supra; Witkin, Cal.Criminal Procedure, 1967 Supp., p. 51.) Aranda, supra, was directed against extrajudicial statements implicating a co-defendant which were otherwise inadmissible against the nondeclarant defendant. The court held that an admonition to the jury that such statements should be considered only as against the declarant failed to provide adequate protection to the codefendant. In the present -case, if Velasquez’ statements implicating Morales were admissible against the latter as a declaration of a conspirator admissible against a eo-eonspirator, a separate trial would not afford Morales any greater protection.

Defendant contends that the principles announced in People v. Aranda, supra, 63 Cal.2d 518 , must be deemed to extend to declarations of a conspirator admissible against a • co-conspirator because there was evidence in that case that the defendants were engaged in a conspiracy. However, the extrajudicial statements involved in Aranda were those made by the eodefendant during his interrogation, by officers after arrest. Thus, even assuming that a conspiracy had existed,

The decisive issue, therefore, is whether, independent of the declarations of Velasquez, there was sufficient proof of a conspiracy.

The elements of conspiracy are (1) an agreement; (2) specific intent; (3) unlawful objective; and (4) overt act. (People v. Aday, 226 Cal.App.2d 520 , 533 [ 38 Cal.Rptr. 199 ], cert. den., 379 U.S. 931 [ 13 L.Ed.2d 343 , 85 S.Ct. 329 ] ; 1 Witkin (1963) Cal. Crimes, p. 99.) The existence of an agreement may be shown by circumstantial evidence. (Bom pensiero v. Superior Court, 44 Cal.2d 178 , 184 [ 281 P.2d 250 ] ; People v. Olf, 195 Cal.App.2d 97 , 107 [ 15 Cal.Rptr. 390 ]; People v. Massey, 151 Cal.App.2d 623 , 651 [ 312 P.2d 365 ].) It is not necessary to show that the parties met and actually agreed to undertake the performance of an unlawful act or that they had previously arranged a detailed plan for its execution. (Pe ople v. Cockrell, 63 Cal.2d 659 , 667 [ 47 Cal.Rptr. 788 , 408 P.2d 116 ], cert. den. 389 U.S. 1006 [ 19 L.Ed.2d 604 , 88 S.Ct. 568 ] ; People v. Calhoun, supra, 50 Cal.2d 137 , 144; People v. Massey, supra, p. 651.) There need be no showing of a direct association by the members of the conspiracy. (People v. Cockrell, supra, p. 667; People v. Olf, supra, p. 105.) “The agreement may be inferred from the conduct of defendants, mutually carrying out a common purpose in violation of a penal statute.” (People v. Cockrell, supra, p. 667; People v. Causey, 220 Cal.App.2d 641 , 653 [ 34 Cal.Rptr. 43 ].)

The evidence heretofore summarized, together with all reasonable inferences favorable to the People which may be drawn therefrom, independent of the declarations made by Velasquez, constituted sufficient foundational proof of the existence of. a conspiracy to permit the introduction of extrajudicial statements made by Velasquez implicating Morales. The foundational requirement may be met without establishing a conspiracy beyond a reasonable doubt or even by a preponderance of the evidence; only prima facie evidence of the fact is required. (People v. Steccone, 36 Cal.2d 234 , 238

Independent of the declarations of Velasquez, the evidence shows that Eeyes was introduced to Velasquez for the purpose of making a purchase of marijuana; Velasquez made a phone call; following the call they went to Morales’ home where Velasquez was provided with $16 in cash, entered the house, returned and at his apartment removed a package containing marijuana which he delivered to Beyes; the next evening when Eeyes asked Velasquez for “one kilo,” the latter again made a phone call, they went to Morales’ house, Velasquez and Morales conversed, and Morales was overheard to' say to Velasquez, “Make sure you are down there, because I don’t want to take one with me and have to bring it back;” after they returned to the bar Velasquez made another phone call and requested $40 which Eeyes paid; when Morales entered the bar, the two went out to Morales’ vehicle where Velasquez handed Morales something and Morales reached into his car and handed Velasquez a “paper item” and Velasquez thereafter delivered 3 bags of marijuana to Eeyes.

The, evidence was sufficient to raise an inference that an agreemént existed between Velasquez and Morales to sell marijuana. “It has been held that persons can be prosecuted as conspirators if, by buying, selling, or doing some other act, they knowingly participated in a general plan to place narcotics in• the hands of ultimate users. (United States v. Aviles, 274 F.2d 179 , 188; Leyvas v. United States, 264 F.2d 272 , 273 et seq.; United States v. Rich, 262 F.2d 415 , 417-418; United States v. De Fillo, 257 F.2d 835 , 838.) ” (People v. Van Eyk, 56 Cal.2d 471 , 479 [ 15 Cal.Rptr. 150 , 364 P.2d 326 ].) In United States v. Rich, supra, the court, after pointing "'out that the sufficiency of evidence relative to the establishment of a- conspiracy must be viewed against a background óf the type of crime involved, stated at p. 418:

‘ ‘ If there be knowledge by the individual defendant that he is a participant in a general plan designed to place narcotics in the hands of ultimate users, the courts have held that such persons may be deemed to be regarded as accredited members of the conspiracy. ’ ’

In People v. Cockrell, supra, 63 Cal.2d 659 , in concluding that the evidence was sufficient to support a conviction for

“Here the evidence, viewed in the light most favorable to the prosecution, discloses that the Cockrells were in possession of a large quantity of marijuana, that on two occasions Miss Phillips obtained marijuana at the home of the Cockrells for sale to Greene, and that each of the Cockrells participated in one or both of the sales to Greene. This evidence is sufficient to show an agreement between the Cockrells and Miss Phillips to sell marijuana and overt acts in furtherance of that agreement. ’ ’

People v. Wells, 256 Cal.App.2d 463 [ 64 Cal.Rptr. 59 ], cited by defendant, is not controlling. The issue here involved was not considered.

The record discloses that the jury was properly instructed that it must not consider an alleged conspirator’s declaration against a co-conspirator unless it first determines from other independent evidence that a conspiracy existed. Morales complains that the court should have instructed the jury, as in People v. Roberts, supra, 40 Cal.2d 483 , that the statements could only be considered against Velasquez. Reliance upon Roberts is misplaced, however, because it related to extrajudicial statements made by a co-conspirator to arresting officers after he had been apprehended.

Defendant contends that it was error to receive statements made by Velasquez on April 7 because there was no independent evidence of a conspiracy at that time and Morales was not charged with the sale made that day. The contention is without substance. Though ordinarily proof of the existence of a conspiracy should precede proof of the declaration of the co-conspirator, the court may, in its sound discretion, reverse the order of proof. In the instant case there was no abuse of discretion. The declarations made by Velasquez on April 7 were in furtherance of the conspiracy and were clearly relevant to prove that Morales made the sale on April 8. (See People v. Causey, supra, 220 Cal.App.2d 641 , 654; People v. Temple, 15 Cal.App.2d 336 , 339 [ 59 P.2d 417 ].)

There is no merit in the contention that the court abused its discretion in denying Morales a continuance. The chronology of the court proceedings reveals the following: May 12, 1966 Indictment filed.

May 18, 1966 Mr. Novaek appeared for defendant and requested a continuance to permit further discovery. The matter was continued to June 1.

June 1, 1966 Motion made to dismiss under section 995,

June 20, 1966 Motion for severance on Aranda grounds heard and denied and trial set for June 22.

June 22, 1966 Matter reset for trial for June 27.

June 27, 1966 Mr. Novack renewed motion for severance which was denied and the matter was set for trial for June 29.

June 29, 1966 Matter trailed.

June 30, 1966 Reset for July 5.

July 11, 1966 Trial commences.

Defendant was thus afforded ample opportunity to prepare for trial. His claim that he was surprised by the prosecutor's theory of conspiracy is not substantiated by the record. The record reveals that on Juno 20 at the hearing on the motion for severance, the district attorney argued that Aranda was inapplicable because the People intended to proceed on the theory of a conspiracy.

The contention that the evidence was insufficient to support the conviction is likewise without merit. There was substantial evidence to support the verdict. (People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ].)

Defendant contends that certain questions and remarks by the prosecutor constituted prejudicial misconduct.

During the cross-examination of “Chico,” he was asked where he resided. The prosecution's objection on the ground that it was irrelevant and immaterial “for the purpose of witness’ safety” was sustained. Defendant contends that the quoted portion of the objection constituted misconduct in that it implied that ‘ ‘ Chico’s ’ ’ life would be endangered if defendants were not convicted. He also contends that the implication was further emphasized by the prosecutor during the direct examination of Officer Tryal by propounding the question whether he (Tryal) was in the district attorney’s office the previous day with 11 Chico ’ ’ and whjr he was ordered to remain with him. Tryal’s answer was “To protect Galindo [Chico].”

The remark of the district attorney in support of his objection to defendant’s question relating to “Chico’s” residence was non-prejudieial. There is nothing in the record to indicate that the remark was made in bad faith for the purpose of suggesting to the jury that the witness’ life would be endangered if defendants were not convicted. Nor does defendant

The testimony of Officer Tryal that he had been instructed to remain with “Chico” in the district attorney’s office to protect him was properly received. Earlier, during the cross-examination of “Chico,” defense counsel elicited from him the fact that he was alone with Tryal in the district attorney’s office “yesterday morning.” Although on cross-examination, “Chico” denied discussing the case while he was with Tryal, Tryal’s testimony was proper to rebut any inference that the two were together for the purpose of rehearsing 1' Chico’s ’' testimony.

Defendant contends the court erred in denying his motion for a jury view of the Schooner Bar as well as his residence.

Penal Code, section 1119, states in relevant part: “When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, . . . it may order the jury to be conducted in a body, in the custody of the sheriff, marshal or constable, as the case may be, to the place, or to such property. . . . ” A jury view rests in the sound discretion of the trial judge and his determination will not be disturbed absent a showing of abuse. (People v. Wong Hing, 176 Cal. 699 , 705 [ 169 P. 357 ] ; People v. Maupins, 30 Cal.App. 392 , 394 [ 158 P. 502 ]; People v. Howard, 28 Cal.App. 180 , 181 [ 151 P. 754 ].) In the present case there is nothing in the record which discloses an abuse of discretion.

Judgment affirmed.

McCabe, P. J., and Kerrigan, J., concurred.

A petition for a rehearing was denied July 10, 1968, and appellant’s petition for a hearing by the Supreme Court was denied August 14,1968.