Opinion
TOLEDO-CORR J Cr. 1415
8-21-1959
PEOPLE of State of California, Plaintiff and Respondent, v. Manuelose Angel Plata-Silva Silva and Pedro Garcia de Leon Arechiga, Defendants, Juan Soria-Flores, Defendant and Appellant. *
Harrison Tellyer, Fresno, for appellant. Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.
PEOPLE of State of California, Plaintiff and Respondent,
v.
Manuel TOLEDO-CORRO, Jose Angel Plata-Silva Silva and Pedro Garcia de Leon Arechiga, Defendants,
Juan Soria-Flores, Defendant and Appellant. *
Harrison Tellyer, Fresno, for appellant.
Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.
SHEPARD, Justice.
Defendant was charged, tried and convicted along with three other defendants of the crime of conspiracy to violate section 11500 of the Health and Safety Code of the State of California, and a second count of a violation of said section 11500 in selling, furnishing or giving away narcotics (heroin) as forbidden by said section. This defendant is the sole appellant. He appeals from the judgment and from the order denying a motion for new trial.
The scene of the crime was at 'Sparky's Cafe' in Chula Vista, California, near the intersection of Broadway and, G Streets. On June 26, 1958, H. E. Springett, a narcotics inspector of the State of California, made contact with defendant Manuel Toledo-Corro (hereinafter called Corro) and Partly arranged for the purchase from Corro of a quantity of heroin. Appellant was not present but Corro had borrowed and was driving a 1954 Mercury automobile (hereinafter called Mercury) which belonged to this appellant, Juan Soria-Flores. Springett arranged to meet Corro later at 6:00 p. m. to take delivery but the 6:00 p. m. appointment was not kept by Corro. However, Corro was seen to drive in the Mercury slowly by the meeting place (Sparky's Cafe). On the same night or the next day (the evidence in conflicting), appellant, Corro and another defendant called Jose Angel Plata-Silva (Hereinafter called Silva) drove in the Mercury to Los Angeles and returned. On July 2, 1958, Officer Springett again made contact at about 9:00 p. m. at Sparky's Cafe, with Corro and another defendant named Pedro Garcia de Leon Arechiga (hereinafter called Arechiga). Again appellant was not present. However, appellant and defendant Silva had come from Mexico to Chula Vista with Corro and Arechiga. The appellant was seen to drive north on Broadway and to return south on Broadway past Sparky's Cafe during the time Corro and Arechiga were in the cafe talking to Springett about the delivery of heroin. Another officer observer outside the cafe testified that the Mercury at that time had no license plates. (It likewise had no license plates on June 26 and on June 27.) At about 10 o'clock on the evening of July 2, the Mercury crossed the Mexican border going south with all four defendants in the car, and another officer observer testified the license plates were then on the car.
On July 8, 1958, the final contact was made by Springett with Corro and Arechiga at Sparky's Cafe. Again appellant was not present. Corro and Arechiga came from Mexico in a Plymouth automobile and according to Corro brought with them in that car the heroin which was later delivered to Springett. The Plymouth was parked somewhere on or near Broadway not far from Sparky's Cafe. Scattered around the immediate vicinity but unknown to any of the defendants were six other officers who acted as observers, and assisted in the final arrest. Appellant and Silva came in the Mercury to Chula Vista the same evening and parked the Mercury near a grocery store called Angels Market some distance from Sparky's Cafe. There is no evidence that the two cars came together or at the same time. During the negotiations between Corro and Springett in Sparky's Cafe Corro told Springett to wait while he went to 'pick it up' from another fellow. He left the cafe and was observed by another officer to walk to the vicinity of the Mercury. Whether he also went to the Plymouth is not disclosed. There is no testimony that he either got into or reached into the Mercury or took anything from it. The testimony shows that appellant and Silva were not then in the car. Corro then returned to the cafe and Springett says that upon entering, Corro had a bulge in his left front pants pocket which he, Springett, had not theretofore been able to detect. The evidence before us does not show the exact spot where the Plymouth was parked. Corro says that he went out of the cafe merely to see if there was anything suspicious. The left front pants pocket of Corro was the one from which the heroin was later produced by Corro, when the delivery was made at the near-by Monterey Motel. Shortly after delivery Springett, Corro and Arechiga went to Springett's car and Corro and Arechiga were then arrested. Appellant and Silva were arrested by other officers on the sidewalk near the market. Appellant says he was walking toward the Mercury and the officer says he was walking away from it at the time of the arrest. However, there is no hint or indication in any of the testimony that appellant was renning, attempting to escape, or that he otherwise exhibited guilt or inculpatory knowledge at the time of his arrest. Appellant had had twelve years of service with the Federal Security Police of Mexico. It was established without contradiction that there then existed an unwritten custom to allow accredited police officers on both sides of the border to carry their weapons when temporarily crossing either side of the border. Appellant had his pistol in the glove compartment of the Mercury. Appellant says he gave the keys of the car to a police officer to open the glove compartment. That officer denies this, and says the glove compartment was already unlocked. The evidence also shows, without contradiction, that it was the custom of the Mexico registration department at that time to take up the license plates of a motor vehicle upon a change of ownership and to issue a permit in lieu thereof until new license plates could be secured.
The central figure of guilt was Corro, who was a fellow officer in the Federal Security Police Force of Mexico. Appellant, with twelve years of service in the same force had known Corro only about a year and a half as a fellow officer, was on friendly terms with him, and occasionally loaned Corro his car. Appellant bought the Mercury second-hand in June, 1958. On transfer, the vehicle registration department took up the old license plates and issued a temporary permit. Exactly when the new plates were received is not clear.
There are three points of discrepancy between the testimony of the officers and this appellant. One relates to the question of whether or not the license plates were on the car in Chula Vista on July 2nd and later on the same evening at the Mexican border crossing. Appellant says he does not remember if the plates were on at that time or not, but that he made no change between Chula Vista and the Mexican border. There is no testimony that the plates were missing on July 8, the date when the actual delivery of the narcotic was made by Corro. July 8th then was the very time when, if appellant had any knowledge of the existence of the conspiracy or of the narcotic being delivered, he would have removed the license plates. In view of this, we are unable to ascribe to the apparent discrepancy in the testimony of the plates, regarding July 2nd, an inference necessary to tie knowledge of existence of the conspiracy or of the heroin, to this appellant. The second discrepancy cited is that regarding which way appellant was walking on the sidewalk when arrested. Appellant's statement that he had been to the market and bought eggs and other domestic articles is partly corroborated by the finding of these articles in the Mercury. There being no hint from any witness that appellant was attempting to escape or that he did not freely and promptly acknowledge ownership of the Mercury, this discrepancy carries no inference of guilty knowledge. The third discrepancy relates to the difference in testimony as to whether or not the police officer who searched the car did or did not unlock the glove compartment. The presence of the weapon in the glove compartment is fully explained by the uncontradicted testimony regarding the custom of accredited police officers temporarily crossing the border. We are unable to ascribe any inference of guilty knowledge from the slight discrepancy regarding the locked or unlocked glove compartment.
It is apparent from the testimony that the package of heroin was of such size as could be carried on the person without exciting inquiry even from a friend or companion. The town of Chula Vista is but a short distance from the Mexican border crossing. Under the border crossing conditions herein shown there could not reasonably by anything suspicious in frequent visits thereto, either by friends together or at the same time in separate cars. Appellant is not placed in Sparky's Cafe nor at any other place where he could have overheard any inculpatory talk referred to in the testimony. Nowhere in the evidence does there appear any conversation or act in the presence of appellant that could reasonably by expected to cause appellant to be suspicious or put on inquiry, nor was there any act or statement of appellant himself showing that he was possessed of knowledge of the Unlawful conspiracy. In substance then, we are unable to find in the evidence anything other than that suspicion which so frequently arises in the surmise of 'guilt by association.'
It is well recognized that 'The decision of the jury, which has been approved by the trial judge in the denial of a motion for a new trial, will not be set aside on appeal unless there is no substantial evidence upon any hypothesis whatsoever to support the verdict of the jury and the conclusion of the trial court.' People v. Robinson, 43 Cal.2d 132, 136 , 271 P.2d 865, 868. Respondent cites authorities in support of another well recognized rule, that conspiracy can be and often is established by circumstantial evidence. People v. Wayne, 41 Cal.2d 814, 822, 264 P.2d 547; People v. Curtis, 106 Cal.App.2d 321, 325 , 235 P.2d 51; People v. Schmitt, 155 Cal.App.2d 87, 106 , 317 P.2d 673. However, in these and numerous other authorities cited, and in all the other many authorities our independent research has revealed, each eonviction which has been sustained is founded on inculpatory acts or statements which are explainable under no other reasonable hypothesis than that the defendant had guilty knowledge of the Criminal conspiracy complained of, and with such knowledge participated in some way. This basic rule is referred to in People v. Weber, 7 Cal.App.2d App.2d 620, 622, 46 P.2d 222, 223, where the court says: 'While mere association does not make a conspiracy, it is settled that the fact of conspiracy may be proved circumstantially by evidence of other facts and circumstances, when they are inconsistent with any other rational conclusion and when thus being inconsistent, it may be fairly inferred that a conspiracy does in fact exist.' (Italics ours.)
Furthermore, as was said in People v. Long, 7 Cal.App. 27, 33, 93 P. 387, 390; 'Conspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense.' In People v. Bucchierre, 57 Cal.App.2d 153, 163 , 134 P.2d 505, 510, the court says: 'The association of persons with an honest intent is not conspiracy, and one of the tests on a conspiracy trial is, did the accused act in ignorance without criminal intent?'
In Dong How v. Superior Court, 81 Cal.App.2d 153, 158, 183 P.2d 724, and in numerous other cases, these same principles have been discussed and confirmed. As was said in People v. Zoffel, 35 Cal.App.2d 215, 226, 95 P.2d 160, 166: 'It is true that appellant may be guilty, but at best the evidence does no more than raise a mere suspicion.'
Try as we will, in repeatedly reviewing the evidence in this case we cannot find any act or testimony which even to the slightest degree shows culpable knowledge or participation in the criminal conspiracy by appellant.
The judgment and order appealed from are reversed.
GRIFFIN, P. J., and MUSSELL, J., concur. --------------- * Opinion vacated 345 P.2d 529.