People v. Cucco

WILSON, J.

Appellant and two others, Boulad and Mathews, were jointly charged with (1) having in their possession and (2) having transported a preparation of heroin, in violation of section 11500 of the Health and Safety Code. Defendants pleaded not guilty and waived a jury trial. The court adjudged appellant guilty as charged in both counts. Appellant made a motion for a new trial which was denied. The appeal is from the judgment and from the order denying the motion for a new trial.

While Deputy Sheriffs Hines, McKinney and Jones were sitting in an automobile near the corner of Atlantic and Whittier Boulevards a coupé approached from the west on Whittier Boulevard and defendant Boulad, who had been standing near the corner, walked into the crosswalk, stepped onto the running board of the coupé, and motioned with his

[450]

right arm. The eoupé turned into Atlantic Boulevard and stopped after proceeding about a half block. The officers followed and stopped beside the coupé, which was being driven by appellant. Defendant Mathews was seated at the right-hand side and a woman named Frances was seated between the men. As the coupé stopped Boulad stepped off the running board. Officer Hines observed defendant Mathews throw a black article from the right-hand window of the eoupé. Hines immediately got out of the officers’ car and grabbed Mathews, who said that appellant had told him to throw the object away in the event they were stopped. Appellant made no reply to this statement.

Officer McKinney recovered the black article, which proved to be a woman’s glove containing a white envelope in which were enclosed 13 packages or bindles. It was stipulated that the bindles contained heroin.

The three defendants and Frances were taken to the sheriff’s substation for questioning. One of the officers testified that the statements made by the parties were all free and voluntary without hope of immunity or reward and free from threats of force or violence.

Before admitting evidence of the conversation, the court, at the request of appellant’s counsel, heard testimony on

voir dire

on the question whether or not the statements of appellant were free and voluntary. Thereupon appellant testified that the conversation at the substation lasted four or five hours and was engaged in by several officers. They questioned him about the package that had been thrown from the window, about telephone calls and other matters. He refused to answer the questions. Frances, who was his fiancée, was in custody at the time. Appellant stated that after a few hours the officers told him that if he did not talk they would lock Frances up and she would not see her baby for a year; that while resting his chin on his arm one of the officers knocked his arm from the table; that he saw the officers talking with Frances and believed that she would be released if he answered the questions; that he then made his statement to the officers and Frances was released from custody. Frances gave similar testimony. Officer Hines denied that appellant was told that Frances would be locked up and that she would not see her baby for a year unless appellant talked; that no one struck or threatened appellant or knocked his arm from the table. Two other officers testified to the same effect.