People v. Velarde

GRIFFIN, P. J. Defendant-appellant was charged in two counts of an information with furnishing a narcotic (marijuana) to a minor, Joy Quarles (aged 19) on or about December 26, 1955, and on or about the same day with furnishing such a narcotic to one Davida Finley (aged 16). He was also charged with two prior convictions of a felony (murder and possession of narcotics) which he admitted. He pleaded [670]not guilty to the charges. The jury found him guilty as alleged.

On his appeal from the judgment and order denying a new trial he claims that since his basic defense was an alibi as to his association with these minors on December 26, 1955, and the time fixed by their testimony as to the commission of said offenses, it was prejudicial error to give an instruction to the effect that:

“When, as in each count alleged in the Information, it is charged that a crime was committed on or about a certain date, if the jury finds that the particular crime charged was committed by the defendant, the proof need not show that they were committed at the time so alleged.” (Citing People v. Morris, 3 Cal.App. 1 [84 P. 463]; and People v. Waits, 18 Cal.App.2d 20 [62 P.2d 1054].)

No claim is made that the evidence is not sufficient to support the convictions. A brief résumé of the girls’ testimony is that on December 26, 1955, at about 6:30 p.m. (Davida’s birthday) they went around to several homes with one Bob Long and engaged in conversation generally about Christmas festivities. At the Alwardt home they had an alcoholic drink and appellant Frank Velarde came there and was introduced to the girls by Bob. After a brief conversation appellant and Bob went to the kitchen and Bob then invited Davida there and asked her if she wanted to “go smoke some marijuana” and she agreed; that Joy then joined them and at about 8:30 p.m. the four of them drove to appellant’s home in a 1949 or 1950 maroon-colored convertible white top Ford, which appellant said belonged to his brother; that when they arrived there appellant left and talked to a man (Velarde’s father) and then returned and said he “got two joints (marijuana cigarettes) . . . from the old man. I have my one stashed”; that they then rolled up the windows in the car to keep the smoke in and then drove away; that appellant handed one cigarette to Bob, who was driving, which he and Joy smoked and appellant and Davida, riding in the back seat, shared the other. The girls said the cigarettes were greenish-brown, about 2% inches in length, and when lighted had a sweet odor which they had smelled before on prior occasions when they had smoked marijuana cigarettes. They related in detail how they smoked them with appellant on this occasion and said both Bob and appellant had made a “cocktail” out of their respective cigarettes. Davida said after smoking the cigarette she felt a “numbness around my head . . . and un