Opinion
Hearing Granted May 3, 1961.
Opinion vacated 16 Cal.Rptr. 347.
Glenn West, Jr., San Francisco, for appellant (under appointment by the District Court of Appeal).
Stanley Mosk, Atty. Gen., Arlo E. Smith and John S. McInerny, Deputy Attys. Gen., for respondent.
BRAY, Presiding Justice.
Defendant appeals from a judgment, after jury verdict of guilty of violation of sections 11714 (sale or gift of narcotic to a minor) and 11530 (possession of marijuana) of the Health and Safety Code, and from the order denying new trial. Two charges of prior felony convictions were found true by the jury.
Defendant was also convicted of statutory rape. A new trial was granted on this charge and the charge was thereafter dismissed.
Questions Presented. 1. Sufficiency of evidence. 2. Was the seizure unlawful? 3. Was election of offenses required? 4. Alleged misconduct of district attorney. 5. Were defendant's prior convictions felonies? 6. Denial of motion for new trial.
Evidence.
Michele, the prosecutrix, was a 16-year old high school junior. Defendant was a jazz musician. Michele's testimony follows: The two first met in the latter part of 1958 at the Black Hawk Night Club. In early 1959 she again saw him there. They left there together about 7 p. m., had something to eat and went to defendant's apartment, arriving there about 9 p. m. Defendant gave Michele a marijuana cigarette which they both smoked. They had sexual relations. In February or March of 1959 Michele and her mother went to a night club called 'Mr. Smith's.' About 10:30 the mother left. At that time Michele was seated at a table with defendant. Michele accepted defendant's invitation to his apartment, arriving there about midnight. He again gave her a marijuana cigarette which they both smoked. Again they had sexual relations. Prior to meeting defendant Michele had never used marijuana, but subsequently and prior to the trial she had used it six or seven times and was familiar with its effects.
On July 11, defendant was arrested. He then admitted that he had used narcotics at one time some years prior. He said he knew Michele but denied furnishing her any narcotic or of having sexual relations with her. When asked if he had any narcotics in the apartment he told the officer, 'Take a look.' A search produced some match boxes, bottles and vials containing a total of approximately 456 grains of marijuana. Defendant denied any knowledge of this marijuana and said that it must have been left by friends.
Defendant was the only defense witness. He said he first met Michele during the late fall of 1958 when she was in a car with mutual friends outside a jazz spot. He saw her at various places subsequent to that time, but they had been alone on only one occasion. That was in March, 1959, when she came to his apartment to try out as a singer with his orchestra. She arrived about 6 p. m. and left about an hour later. Michele had mentioned the subject of marijuana and said some of her friends used it. He saw her at 'Mr. Smith's' with her mother in May or June, but denied taking her to his apartment. He once told her that she was not ready to become a professional singer. She became angry with him and 1. Sufficiency of Evidence.
Defendant's main contention is that Michele was not competent to give expert testimony, i. e., she was not sufficiently expert in the field of marijuana smoking to give the only evidence in the case that it was marijuana that was furnished her. Her only contact with the drug was that she had smoked it about seven times.
'The determination of the competency of any witness to express his opinion upon the name and classification of a drug used by him is vested in the sound discretion of the trial court. Its exercise of such power is not to be disturbed so long as it is not abused.' People v. Rios, 127 Cal.App.2d 620, 622, 274 P.2d 163, 164. Ordinarily the character of a narcotic is proved by a trained expert who has made a chemical analysis. But as said in People v. Candalaria, 1953, 121 Cal.App.2d 686, 689, 264 P.2d 71, 72, 'Here no such proof was offered because none of the [marijuana] was available for analysis. This, however, is not fatal to the People's case for the corpus delicti may be proved by circumstantial evidence.' It is true that the number of times Michele had used the narcotic is less than that of any of the prosecuting witnesses in the reported cases in this state. However, we cannot say that that number of times was not sufficient to qualify Michele to testify concerning the character of the substance she smoked, or that the court abused its discretion in letting her testimony go to the jury. The weight to be given it was for the jury. People v. Candalaria, supra, 121 Cal.App.2d at page 690, 264 P.2d at page 73; People v. Winston, 1956, 46 Cal.2d 151, 156, 293 P.2d 40. The fact that she testified that the cigarettes smelled 'sweet' like 'incense' and that the only sensation she received from them was a feeling of being 'happy' or of feeling 'good' while the state narcotic chemist testified that marijuana smells acrid or like burning leaves, as well as the contradictions in her testimony, were likewise matters for the jury to consider. While, of course, it would be much more satisfactory to have had a portion of the cigarettes given her by defendant for analysis, persons supplying marijuana cigarettes to others, and particularly to minors, generally do not leave any portion of them available for evidence. Nor is the fact that Michele's sensations, as described by her resulting from the smoking of the cigarettes, were not as exhilarating as those described in two medical articles referred to by defendant, enough for us to hold that the court erred in submitting the case to the jury.
2. Was the Seizure Unlawful?
The arresting officers testified that they had a warrant issued against the defendant under the name 'Scotty Lane.' One of the officers testified that he had heard of defendant prior to his arrest under that name and that several persons had identified defendant by that name. Defendant contends that the warrant was void because it was issued in a fictitious name (see Fricke, California Criminal Procedure, 5th ed., 1959, p. 23), and therefore the officers had no right to search defendant's apartment. Hence the seizure of the marijuana there was illegal. However, as Scotty Lane was a name used by defendant, it was not a fictitious name. The warrant was not void. Defendant complains of the testimony of Officer Logan to the effect that at the time he executed the warrant he asked defendant if his name was Scotty Lane, and defendant replied that he used that name when he played as a musician. This evidence was competent to explain the name People v. Burke,
3. Election of Offenses.
The count of the indictment charging defendant with furnishing a narcotic to Michele, charged it occurred 'on or about the 1st day of December, 1958 * * *'
Ordinarily, proof of two crimes cannot be offered where only one crime is charged, unless there is an election of which offense is relied on. (See 26 Cal.Jur.2d 597, 598.) However, in the absence of a demand by defendant that the prosecution elect, the first offense upon which evidence is introduced will be deemed to be the one upon which the prosecution relies. People v. Byrnes, 1948, 84 Cal.App.2d 64, 70-71, 190 P.2d 286; People v. Powell, 1949, 34 Cal.2d 196, 208 P.2d 974.
After Michele testified that she had met defendant three times, she started to describe what had transpired on the third meeting. Defendant then objected on the grounds of insufficient foundation and further on the ground that the indictment related to an offense on December 1, 1958. The district attorney pointed out that the indictment said 'on or about' December 1, and the objection was overruled.
When Michele started to testify as to her second meeting with defendant, objection was made on the ground that such testimony would be 'incompetent, irrelevant, and immaterial * * *'
Just prior to commencing cross-examination of Michele, the defendant moved the court to strike all of her testimony on the ground that 'there has been a variance between the proof and the pleading, the indictment, and upon the further grounds that the evidence of other crimes would be incompetent, irrelevant and immaterial; and upon the further grounds that the statements and conclusions of this witness were without sufficient foundation and that they were based purely on conjecture of this witness.'
As the defense did not make a demand for an election and in view of People v. Byrnes, supra, 84 Cal.App.2d 64, 190 P.2d 286, it will be presumed that the prosecution relied upon the charge as to which it first submitted evidence.
4. Alleged Misconduct.
In his closing argument the prosecuting attorney stated, 'The third charge against the defendant is a violation of Section 11530 of the Health and Safety Code. This section provides that anyone who has marijuana in his or her possession is guilty of a felony and violates this particular statute of the law.' The defense attorney then objected, pointing out that knowledge was necessary to constitute the offense. The court then informed the jury that it would instruct them 'on the law that will guide them in the case. I can see no variance from this statement and the law, what the law is, but the instructions in full on the law will be given to you by the Court.' There was no misconduct on the part of the prosecuting attorney. He was merely stating, in the language of the statute, as he did with the other counts, the crime with which defendant was charged. The court's statement that it could see no variance between the statement and the law is ambiguous and would better have not been said. However, as the court later fully instructed on the requirement of knowledge, there was no prejudice in the remark.
5. Prior Convictions.
This is the most serious point in the case. The priors charged were (1) conviction in the United States District Court for the District of Columbia 'of a violation Section 11714, Health and Safety Code, at the time defendant's alleged offense was committed read in part: 'If [a person convicted under this section] has been previously convicted of any offense described in this division or has been previously convicted of any offense under the laws of any other state or of the United States which if committed in this State would have been punishable as an offense described in this division, the previous conviction shall be charged in the indictment or information and if found to be true * * * he shall be imprisoned in the state prison for not less than 10 years.' (Emphasis added.)
The two prior violations which were contained in the present indictment are now contained in 26 U.S.Code sections 4742(a) and 4744(a), respectively.
Section 4742(a) (formerly section 2591 (a)) reads as follows: 'It shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 and 4753, inclusive, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.'
Section 4744(a) (formerly section 2593 (a)) reads as follows: 'It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a) to acquire or otherwise obtain any marihuana without having paid such tax; and proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand by the Secretary or his delegate, to produce the order form required by section 4742 to be retained by him shall be presumptive evidence of guilt under this section and of liability for the tax imposed by section 4741(a).'
Both of these code sections are under the heading 'Regulatory Taxes,' 'Marihuana.'
Under Health and Safety Code, § 11714 the prior conviction must be such that 'if committed in this State would have been punishable as an offense described in this division * * *' Then the minimum punishment is increased from 5 to 10 years.
Section 4742(a) does state a crime which if committed in California would be punishable. It states in effect that it is unlawful to transfer marijuana, except in pursuance of the written order there specified. In California, under then section 11500, Health and Safety Code, it was unlawful to possess, sell, furnish, administer or give away marijuana. Doing so would constitute a 'transfer.' The California statute is much broader than the federal one, as in California no order would excuse the crime. Both the federal and the California statutes make transferring marijuana an offense, even though the federal statute appears under the heading 'Regulatory Taxes.'
People v. Machado, 1960, 180 Cal.App.2d 63, 67, 4 Cal.Rptr. 110, 112, considered this very same federal statute and held: 'It is clear that the acts constituting the essential substance of the offense of which defendant was previously convicted, to wit, the unlawful sale of marijuana, would have been punishable as an offense against division 10 of the Health and Safety Code. [Citations.]' Therefore the conviction under section 4742(a) of the U.S.Code would constitute a prior conviction under section 11714, Health and Safety Code.
Nor does a different situation arise as to the conviction under U.S.Code section 4744 (a). That section, in effect, requires for conviction two elements, (1) possession of marijuana, and (2) failure to pay the transfer tax thereon. As hereinbefore stated, the then section 11500, Health and Safety Code, made it an offense to merely possess People v. Bigelow,
6. Motion for New Trial.
On the motion for new trial, the transcript of a separate proceeding before the grand jury was introduced. This showed that Michele testified that about April 28 she went with one Downs to his home, smoked marijuana with him and had sexual intercourse with him. A portion of the transcript of the trial of one Lewis was introduced. This showed that Michele denied smoking marijuana or having sexual intercourse with Downs, and stated that she had smoked marijuana earlier that evening; 'that is why I said that, but I got to thinking about it, and I can't remember anything happening, and I don't think it really happened.' This repudiation of her grand jury testimony in another matter did not compel the granting of a new trial. The trial judge observed Michele testify at the trial and had the right to determine her credibility. Also he had the right to take into consideration the fact that, as he said, the jury in both this case and the Lewis case believed her, as they convicted in both.
The judgment and order are affirmed.
TOBRINER and DUNIWAY, JJ., concur.