People v. Garcia

California Court of Appeal Mar 19, 1962 No. Crim. 1500Published

Before: Shepard

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Holding. The court held that the evidence was insufficient to sustain the defendant's conviction because the prosecution failed to establish a conspiracy, rendering the co-conspirator's extrajudicial statements inadmissible and leaving only insufficient evidence of the defendant's mere presence at the scene.

Issues

Whether the evidence was sufficient as a matter of law to sustain the jury's verdict of guilty for the sale of narcotics.
Whether the extrajudicial statements of a co-conspirator were admissible against the defendant in the absence of independent proof of a conspiracy.

Disposition. reversed

Quotations verified verbatim against the opinion

“Appellant contends that the evidence was insufficient, as a matter of law, to sustain the jury’s verdict. With this we agree.”

“Without some proof of such conspiracy the extrajudicial statement of Espinosa to Maldonado was not admissible.”

SHEPARD, J.

This is an appeal from a judgment of conviction of sale of narcotics (violation of Health & Saf. Code, §11501), amidone, after jury verdict of guilty.

Pacts

On 23 March 1961, Maldonado, through another known user, Espinosa, started out to make contact with one Rubin Azhocar but they saw Rubin’s brother, Alfredo Azhocar, driving a 1954 Chevrolet near 38th and National Avenue and contacted him. Defendant was riding as a passenger with Alfredo. Alfredo parked directly in front of Maldonado’s car. Espinosa got out, walked to the passenger side of Alfredo’s car and talked to the occupants. Maldonado heard none of this talk. Espinosa returned to Maldonado. They waited while Alfredo drove away. Over defense objections, Maldonado was allowed to testify to what Espinosa told him about Espinosa’s conversation with Alfredo and appellant. Espinosa was not a witness. Alfredo returned in about five minutes and parked across the street from Maldonado. Appellant was still a passenger. Alfredo walked across to Maldonado and sold to Maldonado, through Espinosa, 2 grams of narcotic amidone for $35.

Over defendant’s objection the prosecution introduced evidence that on March 4, 1961, State Narcotics Officer Maldonado, through a known user named Contreras, made contact with defendant in the Logan Heights area near the intersection of 38th and National Avenue of San Diego. Defendant left after the contact, driving a 1948 Buick. In about 10 minutes defendant returned and sold to Maldonado through Contreras 2% grams of narcotic heroin for the agreed price of $35. The actual sale was all in the presence and hearing of Maldonado, who testified fully thereto. On oral argument we are informed that on this offense of March 4, 1961, defendant was separately charged, tried and convicted and is now serving a term in state prison.

At the time of trial, defendant Alfredo Azhocar had fled to Mexico and codefendant Espinosa had already been sen

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tenced to. prison. Thus appellant was the sole defendant present at this trial. Appellant testified he was a passenger in Alfredo’s car; that the talk between Alfredo and Espinosa was in Spanish; that he (defendant) did not speak Spanish and did not understand what was said; that his father is Spanish and his mother Italian; that he did not assist Alfredo in any way and knew nothing of the narcotics transaction. He admitted some acquaintance with Espinosa and Azhocar and that he had seen Maldonado on March 4. He denied being a dealer in narcotics. He was not asked whether or not he spoke while Alfredo and Espinosa were conversing during the first contact on March 23, 1961.

People v. Garcia

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SHEPARD, J.

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