People v. Lamendola

FOX, J.

Defendant was convicted on two counts of selling marijuana in violation of section 11500 of the Health and Safety Code. He appeals from the ensuing judgment and the order denying his motion for a new trial.

The sufficiency of the evidence to sustain the judgment is not challenged. It is, however, claimed that the court committed prejudicial error in admitting certain evidence for purposes of impeachment, and that the district attorney was guilty of misconduct in his argument.

Defendant operated a café and bar in North Hollywood. Officers testified to making the purchases of marijuana. Defendant denied their testimony. In detailing the circumstances leading up to the purchases the officers related that they were directed to defendant’s place of business by Leo Aviles, a young man 19 years of age; that he had introduced Officer Neale to defendant as “a dealer” who “wanted to get some stuff (marijuana) ’ ’; that he was present when the deals were made, and accompanied Neale to pick up the first purchase. Leo was called as a witness by defendant. He denied having had any conversation with the officers about narcotics; denied the purchases, which Officer Neale testified were arranged in Leo’s presence, and denied that he accompanied the

[572]

officer to pick up the first purchase. On cross-examination he stated that he was living with his father on May 13, 1952, and that his father had some discussion about his hanging around defendant’s place. He denied that he knew his father called the police concerning defendant’s operations, and also denied that his father arranged for him to meet the police officers. He testified that he knew Officer Carsten, who was a very good friend of his father; that the officer had been at Ms father’s home shortly before May 13th, and that he had talked to them on that occasion, but he did not recall “any special thing” they discussed. The prosecutor then asked Leo, in substance, if, in that conversation, he told Officer Carsten that he had been recently in defendant’s café and that while there he observed two boys apparently buying food; that they walked past him and unrolled the package and stated to him that they had purchased six sticks (referring to marijuana); that another boy he was with made the statement that $1,800 worth of narcotics had just been brought in from Mexico for this defendant; and that he believed defendant’s café was the distributing center for other dealers. He denied making such a statement. Leo also denied that his father told him- to give Officer Carsten any information about the place; denied he told Officer Carsten that he would help clean up the place and get rid of that narcotic business; denied that he met or saw Officer Carsten on the night of May 13th. In rebuttal Officer Carsten testified that Leo did make the statements about defendant’s café on the designated occasion; that his father told him if he could help Carsten “in cleaning up this place, I want you to do it”; that Leo said he would cooperate in every way possible, and that on May 13th he and his partner picked Leo up at his home and met the other officers working on the case. This evidence was admissible for it tended to impeach Leo’s testimony.