People v. Souza

Opinion

COAKLEY, J. Appellant, a minor, was found guilty of (1) selling marijuana (Health & Saf. Code, § 11531), and (2) being present where narcotics were used (Health & Saf. Code, § 11556). He was convicted chiefly upon the testimony of Martin Ortiz, Jr., who worked as an undercover agent for the Los Banos Police Department.1 Ortiz testified that he purchased two marijuana cigarettes from the appellant while they, together with two friends of the appellant, were seated in appellant’s car; then, a short time later, on the same day, appellant and his friends smoked two marijuana cigarettes in Ortiz’ presence while all were seated in appellant’s car.

Appellant and his friends categorically denied that appellant sold any [876]cigarettes to Ortiz or that marijuana was smoked in appellant’s car by appellant or anyone else on the occasion in question. On direct examination, appellant testified that he had seen marijuana before and knew what it looked like.

The testimony of Ortiz, though suspect in the eyes of the appellant as coming from an informer in narcotic matters, was neither incredible nor improbable. On the contrary, the history of convictions for sale and use of narcotics discloses that what allegedly took .place in this case is common in the sale and use of marijuana. Similarly, the history of such cases is replete with categorical denials by defendants and their witnesses of either sale or use. Thus, we have a conflict in the evidence with the jury choosing to believe the testimony of Ortiz and rejecting that of appellant and his witnesses. Under such circumstances, our task begins and ends with determining whether there was any substantial evidence to sustain the judgment (People v. Daugherty, 40 Cal.2d 876, 885 [256 P.2d 911]; see also People v. Bard, 70 Cal.2d 3, 4 [73 Cal.Rptr. 547, 447 P.2d 939]; and People v. Gutierrez, 35 Cal.2d 721, 727 [221 P.2d 22]), unless the record discloses prejudicial error requiring reversal on other grounds, The evidence of appellant’s guilt meets the substantial evidence test.

We now examine appellant’s contention that the record before us establishes prejudicial error, predicated largely upon the prosecution’s cross-examination of appellant’s witnesses. Through such examination, the prosecution established that appellant and his friends were a close-knit group; that they were careful whom they admitted to their inner circle for the reason that others might do as Ortiz had done, viz., inform on them; that all were users, not only of marijuana but also of more dangerous drugs, probably including heroin and “speed”; that, while in appellant’s car appellant’s friends discussed a “fix”; that the day after appellant’s crimes defense witness Powell had been admitted to a hospital for a drug condition in the nature of “an amphetamine binge”; that defense witness Brinley had been “high” on drugs the evening of appellant’s crimes, though not in appellant’s company; that defense witness Lewis had sold 20 marijuana cigarettes on the day of appellant’s crimes; that Lewis had smoked marijuana with appellant in times past but not on the day in question; that “[w]e used to turn each other on,” referring to appellant and his witnesses; that all the defense witnesses were familiar with marijuana, with “fixes,” “speed,” and with amphetamines. This type of cross-examination was continued in depth, notwithstanding that the court sustained appellant’s objections upon the ground that such testimony had no connection with the offenses charged.