Petition — Beattie v. California

/ ah Court, Uf

FILE D x

OCT 4 1979 |

IN THE

SUPREME COUR MICH RODAK, JR., Cl wi |

OF THE UNITED STATES

October Term, 1979

No. 29-559

THOMAS MICHAEL BEATTIE,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

IRVING A. KANAREK

14617 Victory Boulevard

Suite 1

Van Nuys, California 91401

(213) 782-2790; 873-4255

Attorney for Petitioner

IN ‘THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1979

No.

THOMAS MICHAEL BEATTIE,

Petitioner,

VS.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

IRVING A. KANAREK

14617 Victory Boulevard

Suite 1

Van Nuys, California 91401

(213) 782-2790; 873-4255

Attorney for Petitioner

SRL AITS Ae at ae

TOPICAL INDEX

Page

Table of Authorities ii

J URISDIC TION 2

QUESTIONS PRESENTED 2

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED 3

STATEMENT OF THE CASE 6

REASONS FOR GRANTING THE WRIT 8

CONC LUSION 15

APPENDIX A

TABLE OF AUTHORITIES

Cases Page

Brady v. Maryland,

373 U.S. 83 11, 12

California v. Green,

399 U.S. 149 9

Chapman v. California,

366 U.S. 17, 21 10

Fahy v. Connecticut,

375 U.S. 85, 86-87 10

Giglio v. United States,

405 U.S. 150 12

Harrington v. California,

395 U.S. 250 10

People v. Ruthford,

14 Cal. 3d 399 11

People v. Hitch,

12 Cal. 3d 641, 645-646 13, if

People v. Hitch,

12 Cal. 3d 399 11

Pointer v. Texas,

380 U.S. 400 9

United States v. Bryant,

439 F.2d 642 12

pO a ee oe ee Cbd tie

i satley eR ees

Constitutions

Sixth Amendment

Fourteenth Amendment

United States Constitution

California Constitution,

Article 1, Section 15

Fourth Amendment

Fourteenth Amendment, Section 1

Statutes

28 U.S.C. 1257(3)

California Evidence Code:

Section 403

Section 702

Section 1223

Health and Safety Code:

Section 11360

Section 11352

Section 11351

Section 11357

Section 11377

ili.

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1979

No.

THOMAS MICHAEL BEATTE,

Petitioner,

Vs.

THE STATE OF CALIFORNIA,

Respondent.

- PETITION FOR

WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT

TO: The Honorable Chief Justice, and

Associate Justices of the Supreme Court of the

United States:

Petitioner respectfully asks the issuance

of a Writ of Certiorari to review California

state action involving the judgment of the Court of

Appeal of the State of California, Second Appellate

District, affirming a judgment of the Superior

Court of the State of California, County of

1,

Los Angeles. A timely Petition for Hearing to

the Supreme Court of the State of California

was denied without opinion on July 6, 1979.

The record reposes in the aforementioned

Court of Appeal. There was a written opinion

only by the Court of Appeal of the State of

California, Second Appellate District, See

Appendix A,

JURISDICTION

This Court has jurisdiction to review the

judgment above-described under 28 U.S.C. 1257(8).

QUESTIONS PRESENTED

1, Does the admission against Defendant

of an alleged co-conspirator's statement violate

Defendant's right of confrontation provided by

the Sixth Amendment of the United States Consti-

tution, since the prosecutor failed to make a prima

facie showing of the preliminary facts, and the

crime of conspiracy was not charged?

a Was the deliberate, intentional failure

of the officer to tape record his alleged telephone

and other conversations with Defendant (and others)

and his deliberate, intentional destruction of the

notes he took of conversations a violation of

Defendant's Fourteenth Amendment Due Process

and equal Protection rights,

Ses hh 0 whe MSY . ee eB ree

2.

, CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

UNITED STATES CONSTITUTION:

"In all criminal prosecutions,

the accused shall enjoy the right to be

confronted with the witnesses against

him. ° e ° e

SIXTH AMENDMENT:

'', . « nor shall any state deprive

any person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws."'

FOURTEENTH AMENDMENT,

. SECTION 1.

CALIFORNIA CONSTITUTION

Article 1, §15:

The defendant in a criminal cause

has the right to. . . compel attendance

of witnesses against the defendant...

Persons may not... be com-

pelled in a criminal cause to be a witness

against themselves, or be deprived of

life, liberty, or property without due

process of law.

3.

en a

ve

fe ee ee

CALIFORNIA EVIDENCE CODE

§ 403:

'(a) The proponent of the proffered

evidence has the burden of producing

evidence as to the existence of the

preliminary fact, and the proffered

evidence is inadmissible unless the

court fines that there is evidence sufficient

to sustain a finding of the existence of

the preliminary fact, when:

(1) The relevance of the proffered

evidence depends on the

existence of the preliminary

fact;

(2) The preliminary fact is the

personal knowledge of a witness

concerning the subject matter

of his testimony;

(3) The preliminary fact is the

authenticity of a writing; or

(4) The proffered evidence is of a

statement or other conduct of

a particular person and the

preliminary fact is whether

that person made the state-

ment or so conducted himself.

(b) Subject to Section 702, the

Court may admit conditionally the

proffered evidence under this section,

subject to evidence of the preliminary

4.

fact being supplied later in the course

of the trial.

(c) If the court admits the proffered

evidence under this section, the court:

(1) May, and on request shall,

instruct the jury to determine

whether the preliminary

fact exists and to disregard

the proffered evidence unless

the jury finds that the pre-

liminary fact does not exist.

(2) Shall instruct the jury to

disregard the proffered evidence

if the court subsequently

determine that a jury could

not reasonably find that the

preliminary fact exists.

§ 1223:

Evidence of a statement offered

against a party is not made inadmissible

by the hearsay rule if:

(a) The statement was made by

the declarant while participating in a

conspiracy to commit a crime or civil

wrong and in furtherance of the objective

of that conspiracy;

(b) The statement was made prior

to or during the time that the party was

participating in that conspiracy; and

De

ee ee ee ee ee

© ei se a

ee ee ne ee

(c) The evidence is offered either

after admission of evidence sufficient to

sustain a finding of the facts: specified in

subdivisions (a) and (b) or, in the court's

discretion as to the order of proof,

subject to the admission of such evidence.

STATEMENT OF THE CASE

Petitioner was charged joint with one

Robert Parker Young, by an information filed

in the Superior Court of the State of California

For the County of Los Angeles, with five counts

of violation of various sections of the California

Health and Safety Codes, constituting felonies,

as follows:

Count One: by Young: Violation of Health

and Safety Code Section 11360 (Sale of and offer to

sell, etc., marijuana in the form of concentrated

cannabis).

Count Two: by Young and Beattie: Viola-

tion of Section 11352 (sale of and offer to sell,

etc., cocaine),

Count Three: by Beattie: Violation of

Section 11351 (possession of cocaine for purpose

of sale).

Count Four: by Young: Violation of Section

11357 (a) (Possession of concentrated cannibis).

Count Five: by Beattie: Violation of Section

11377 (possession of amphetamine).

Petitioner was separately tr ied by a jury

(without Young). On October 31, 1977, Petitioner

was found guilty by separate written verdicts as

follows:

1. Violation of Section 11352, Health and

Safety Code, offering to sell cocaine, a felony,

"as charged in Count I of the Information. "

2. Violation of Section 11351, Health and

Safety Code, possession for sale, cocaine, a

felony ''as charged in Count II of the Information."

3. Violation of Section 11377, Health and

Safety Code, possession of an amphetamine, "as

charged in Count III of the Information,"

Petitioner moved for a new trial, citing

error, which motion was denied, and on

December 12, 1977, Petitioner was sentenced

to a period of probation including six months in

the county jail. Since sentencing, Petitioner

has been free on $5, 000 bail.

The testimony consisted basically of that

of an undercover police officer who allegedly

met with Petitioner's co-defendant allegedly

arranged through aninformer. Later that day

the officer allegedly had telephone and other

conversations with Petitioner and co-defendant

wherein an offer to sell cocaine was allegedly

made and a meeting allegedly arranged, at which

alleged meeting Petitioner was arrested.

7.

During the trial, over defense objections,

telephone and other conversations of the officer

with the co-defendant were admitted against

Petitioner without a prior showing of the preliminary

fact of conspiracy. (See California Evidence

Code, §403.) The officer testified in effect that

he had deliberately and intentionally not recorded

the alleged telephone and other conversations and,

while he had made notes of the conversations, he

had deliberately destroyed these notes after writing

up the police report.

REASONS FOR GRANTING THE WRIT

1, THE ADMISSION INTO EVIDENCE

OF EXTRA-JUDICIAL STATEMENTS OF CO-

DEFENDANT TO PROVE THE GUILT OF

PETITIONER IS A VIOLATION OF STATE

STATUTES, OF FEDERAL RIGHT OF

CONFRONTATION AND A CONSTITUTIONALLY

INVALID "BOOTSTRAPPING,"

The hearsay rule exception for admissions

of a co-conspirator permits the introduction of

hearsay statements by a prosecutor if he establishes

four preliminary facts:

1. The existence of a conspiracy;

26 The declarant made the statement

while participating in the conspiracy;

3. The statement furthered the objective

of the conspiracy; and

4. The Defendant against whom the

statement is offered was a member

8.

of the conspiracy at the time the

statement was made or at some

time thereafter.

California Evidence Code, Section 1223.

In this case no such preliminary facts were

established, the hearsay testimony of Petitioner's

co-defendant being used over objection to bootstrap

the people's case, said hearsay used as evidence

of the conspiracy itself, the preliminary fact and

substantive evidence of guilt rolled into one ball.

The Sixth Amendment provides that ''in all

criminal prosecutions, the accused shall enjoy

the right. . . to be confronted with the witnesses

against him."

This protection is binding on the states.

Pointer v. Texas, 380 U.S. 400.

This court has previously stated that a

question of violation of the right of confrontation

arises when a hearsay declarant does not testify

at the Defendant's trial (as he did not in this case).

California v. Green, 399 U.S. 149.

This Court has further stated that if the

question does arise in a jury trial, admission

against a criminal Defendant of an alleged co-

conspirator's statement violates the confronta-

tion clause where the prosecution fails to make

a prima facie showing of the preliminary facts.

9.

a

Harrington v. California, 395 U.S. 250.

Substantial Federal questions are therefore

concerned herein. Since the "error from which

[this Petitioner] suffered was a denial of rights

: guaranteed against invasion by" the. . . Fourteenth

Amendment, rights rooted in the Bill of Rights...

(Chapman v. California, 386 U.S. 17, 21) the

3 Federal harmless-error rule applies. This

| Court's approach was enunciated by it in Fahy v.

Connecticut, 375 U.S. 85, 86-87:

. aviw sli, 5: AE aha ton

"The question is whether there is a

reasonable possibility that the evidence

complained of might have contributed

to the conviction, "'

Unquestionably, the evidence complained of

herein was the very evidence relied on for conviction.

Ot es OTN EO ae acigy e > rae de

2. THE DELIBERATE, INTENTIONAL

FAILURE OF THE OFFICER TO RECORD THE

ALLEGED TELEPHONE AND OTHER CONVERSA-

TIONS ALTHOUGH HAVING INSTANT, IM-

MEDIATE CAPABILITY TO DO SO AND THEN

DELIBERATELY DESTROYING HIS NOTES OF

THE CONVERSATIONS DENIED PETITIONER

INDISPENSABLE IMPEACHMENT EVIDENCE

AND POTENTIALLY EXCULPATING EVIDENCE,

AND WAS A FURTHER VIOLATION OF HIS

RIGHT OF CONFRONTATION AS WELL AS A

SUPPRESSION OF EVIDENCE IN VIOLATION

OF THE FOURTH AND FOURTEENTH AMENDMENTS.

eee

uF tutints _—n

a

~~.

10.

The officer testified he caused no tape

recorder to be attached to the telephone over

which he held the conversations with Petitioner and

his co-defendant, even though tape recorders were

routinely used with respect to telephones at that

police station furthermore, the L.A. Police Depart-

ment has capacity to tape record, surreptitiously,

non-telephone conversations also.

The officer further testified he took notes

which he later destroyed.

The highest Court of the State of California

has held (People v. Hitch, 12 Cal. 3d 399; People

v. Ruthford, 14 Cal. 3d 399) as has this Court that

law enforcement has the duty to gather, preserve

and reveal to the Defendant and jury all evidence

relevant to the charge against him.

Brady v. Maryland, 373 U.S. 83.

The Supreme Court of the State of California

has held that the duty of disclosure of evidence to

the defense attaches in some form once the govern-

ment has gathered and taken possession of the

evidence and, before any request for discovery

has been made; the duty is operative as a duty

of preservation.

People v. Hitch, supra.

In reaching its above decision, the California

Supreme Court cited decisions of this Court to the

effect that (People v. Hitch, 12 Cal. 3d 641, 645-646).

11.

"We start with the settled rule that the

intentional suppression of material evidence

favorable to a Defendant who has requested

it constitutes a violation of due process,

irrespective of the good or had faith of

the prosecution.'' Citing Giglio v.

United States, 405 U.S. 150; Brady v.

Maryland, 373 U.S. 83.

The evidence in Hitch had been destroyed,

as it has been done here. There was and is here

nothing in existence from which it can be determined

whether the evidence would have been favorable

to Defendant and material to the issue of his guilt

and innocence. Therefore the Court held the

duty of disclosure must operate as a duty of

preservation, citing United States v. Bryant,

439 F.2d 642.

The Supreme Court of California therefore

followed the rule in Bryant, supra, and held:

"We conclude it that the investigative

agency involved. . . has the duty to

preserve and disclose such evidence.

Accordingly we hold that, where, as

here, such evidence cannot be disclosed

because of its intentional but non-

malicious destruction by the investigative

officials, sanctions shall in the future

be imposed for such nonpreservation

and non-disclosure unless the prosecution

can show that the governmental agencies

involved have established, enforced and

attempted in good faith to adhere to

rigorous and systematic procedures

12.

. designed to preserve . . . (the evidence),"'

Defendant has been summarily denied the

° rights conferred by the due process and equal

protection clauses of the United States Consti-

tution, and the California Constitution as enunciated

in the above decision. The Court of Appeals of

the State of California misses the point as to the

preservation of evidence as is pointed out in its

opinion (Appendix A) p. 15:

"First, Officer Lyons gave primary

evidence of these telephone conversa-

tions. He was examined and cross-

examined at great length relative to

their substance and sequence, and he

gave detailed and credible testimony

concerning each call. Second, the

police reports detailing these conversa-

tions had been available to Defendant

before trial. Third, the notes having

been 'scribbled out' for the sole purpose

of enabling Officer Lyons to prepare the

police reports, it is unlikely that any

material of value to the defense or

prosecution in the notes did not find its

way into the police reports. Fourth,

the 'deliberate' destruction of the notes

consisted of the officer's discarding them

to the waste basket after they had served

their purpose and the police reports had

been prepared and no request had been

made for them."

It is apparent the Court has completely

ignored the language and reasoning of the decisions

13.

Lee eee ee ee

of this Court and the Supreme Court of California

discussed above, and in another ''bootstrap"

argument asserts that there is no error herein

because the officer said there was not, his report

Said there was not and since he prepared a report

his testimony was reliable, credible and thorough,

IF THE OFFICER HAS DELIBERATELY SWORN

FALSELY, THE DEFENDANT, THE TRIAL COURT,

AND OUR JUDICIAL SYSTEM ARE SUBSERVIANT

TO HIS WHIM, CAPRICE, AND SUBJECTIVE

DETERMINATION AS TO WHAT THE FATE OF

THE DEFENDANT (PETITIONER HERE) SHALL

BE, Of such stuff is the deprivation of basic

——— rights composed.

A definitive statement by this Court setting

forth guidelines to law enforcement for preserving,

and making permanent, by way of tape recording,

verbal (oral) evidence of serious crime will

be incalculable value and will enormously cut-

down the consumption of time in every State and

Federal Court in United States in examining

witnesses as to their memory, or lack of it, of oral

utterances allegedly made. After all, an alleged

sale of narcotics to law enforcement, as in the

instant case, enables law enforcement to monitor

the situation to obtain the highest quality of

evidence due to the fact of law enforcement

participation.

14,

. CONCLUSION

For the reasons outlined above the within

Petition for Writ of Certiorari should be granted.

October 2, 1979

Respectfully submitted,

IRVING A. KANAREK

Attorney for Petitioner

APPENDIX A

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, 2 Crim. No.

Plaintiff and 32117

Respondent, (Super. Ct.

Ve No. A-136863)

THOMAS MICHAEL BEATTIE, Court of Appeal-

Defendant and Second Dist.

Appellant. FILED

Apr 6 - 1979

Clay Robbins, Jr.

Clerk

Deputy Clerk

APPEAL from a judgment of the Superior

Court of Los Angeles County. Charles M. Hughes,

Judge. Affirmed.

Kanarek and Berlin, and I. A. Karnarek,

for Defendant and Appellant.

George Deukmejian, Attorney General,

Jack R. Winkler, Chief Assistant Attorney

General, S. Clark Moore, Assistant Attorney

General, James H. Kline and Kathleen M. Crain,

Deputy Attorneys General, for Plaintiff and

Respondent.

Defendant appeals from judgment entered

on a jury verdict of guilty of offering to sell

cocaine, * possession for sale of cocaine and

possession of amphetamine.

Around noon an informant assisting Officer

Raymond Lyons in a narcotic investigation

introduced him to Robert Young. Around 5 p.m.

the same day, Officer Lyons received a telephone

call on his private line from a man who identified

himself as Tom; he introduced himself as Ray;

Tom said "I understand you are interested in

purchasing an ounce of coke''; he said he was and

asked if he was in a position to help him; Tom

replied he had not seen his cocaine seller ina

couple of days but the man had a half-pound of

cocaine in his possession last time he saw him;

he asked how much an ounce would cost, and Tom

said between $1, 700 and $2,000 per ounce; he

asked if the quality was good and Tom said it was

almost pure, "rock, '' but he would not be able

to contact his seller until 5:30 p.m. and would

call him back shortly thereafter.

Tom did not call; instead Robert Young

called Officer Lyons on the same line around

6:45 p.m. Officer Lyons recognized the voice

as that of Robert Young whom he had met that

noon; Young said '''Ray.. . This is Rob from

1

In this count (count II) Robert Young was

charged as a codefendant; Young alone was

charged in count Iand count IV. The cause

was disposed of as to Young on his plea of

guilty.

A-2

this afternoon, ''' Tom just left his location and

would contact him a little later; the $2,000

figure discussed by Tom and him (Officer Lyons)

was agreed upon, and Rob again said that Tom

would contact him shortly. Around 7:30 p.m.

Tom called Officer Lyons; he said there had

been a change in plans and he wanted to sell him

a quarter ounce of cocaine for $600 at 8:30 p.m.,

this was to be somewhat of a "test run" and he

would have to come to Topanga Canyon to pick

it up, and if it ''went off without any hitches, "'

he would be permitted to purchase the remainder

of the ounce for the balance of the $2,000 price

at 10:30 p.m.; Officer Lyons said the "'test run"

was agreeable but he was not willing to go to

Topanga Canyon and would meet him in San

Fernando Valley; Tom said "All right, I will get

hold of you in a little while."

Meanwhile Officer Bartolotto had been sur-

veiling an apartment at 14816 Gilmore, Van Nuys;

around 6:40 p.m. he saw defendant walk from the

apartment and drive away in a green Datsun; he

followed defendant to Yarmouth Avenue, then to

Topanga Canyon where defendant remained a

half hour and returned to Van Nuys; during this

time Officers Lyons and Bartolotto were in

communication.

Around 8:35 p.m. Rob again called Officer

Lyons and said Tom would meet him any place he

desired and bring him the quarter ounce for

$600; they arranged to meet at the Taco Tree at

9:15. They met as agreed, then walked to

14816 Gilmore; defendant drove up in a green

Datsun and Rob said ''Hey Tom"; to Officer Lyons,

A-3

defendant said "hey, you must be Ray" and they

shook hands. Officer Lyons recognized defen-

dant's voice as that of Tom (He made positive in-

court identification of defendant as Tom); the

three entered apartment 2 then Rob told defendant

to move his Datsun; Rob obtained a gram scale

and said ''Come here, Ray, I will show you how

this thing works,'' whereupon a prearranged signal

was given to officers outside to serve the search

warrant and arrest the driver of the Datsun.

Officer Bartolotto arrested defendant as he

exited the Datsun; in defendant's left sock he

found a glass vial of six grams of cocaine, and

from his pants pocket he recovered a plastic vial

containing amphetamine. In the opinion of Officer

Lyons the six grams were possessed for the

purpose of sale.

Appellant's six line assertion that the

judgment should be reversed because the verdicts

are contradictory and unintelligible, is without

merit. The trial proceeded on counts II, III and

V; the information was not amended to renumber

the counts but the clerk renumbered them on the

verdict forms to reflect the numerical sequence

I through III. Except for the count numbers, the

language of the verdict forms paralleled the

statutory title and description set up in the counts

in the information; and the instructions employed

count designations that conformed to the statutory

descriptions and count designations of the verdict

forms. At no time did the jury seek clarification

regarding the renumbered counts; and nothing

indicates the verdict forms were unintelligible,

confusing or failed to reflect the jury deliberations

A-4

Pe =

5 GD iE RELIG PR use

= Rg ee cy

as to the offenses charged and proved. The

forms of verdict clearly and unmistakably

expressed the jury's intention to convict defen-

dant of the crimes charged. (People v. Bratis,

73 Cal. App. 3d 751, 763, and cases cited therein. )

Finally, for his failure to register his objection”

to the verdict forms in the trial court, appellant is

precluded from raising the issue on appeal.

People v. Nichols, 255 Cal. App. 2d 217, 224.)

In his second and third contentions, appellant

argues that the statements of Robert Young to

Officer Lyons were inadmissible hearsay, and

the court erred in failing sua sponte to instruct

the jury per CALJIC 6.24. Within five hours

of meeting Robert Young, Officer Lyons received

a telephone call from defendant on his private

line; defendant started the conversation by

identifying himself and saying ''I understand

you are interested in purchasing an ounce of

coke, '' whereupon they arranged for the sale --

the amount, price and quality; defendant said

he could not contact his seller until 5:30 and

would call him back. He did not do so, instead,

at 6:45 p.m. Robert Young called Officer Lyons

on the same line. At this point in the evidence,

2

Defendant waived a reading of the information;

after the jury was polled, no objection was raised

to the numerical designation of the counts; no

such claim was made on motion for new trial and

he waived formal arraignment for judgment and

stated there was no legal cause why judgment

should not be pronounced.

A-5

the prosecutor made an offer of proof, 3 The

officer's subsequent testimony was consistent

therewith. We perceive no error in the court's

application of the coconspirator's exception to

the hearsay rule. (§ 1223, Evid. Code. *)

3

"It is the People's contention Mr. Young and

Mr. Beattie both participated in telephone calls

setting up this precise sale of cocaine, as such,

they were both principals, as such they were both

co-conspirators... [par.] In this statement, the

officer will testify that Rob mentions the name of

- » « Tom, indicates that they are both involved

in this or to sell cocaine, Tom is not available, that

at the precise moment Tom will call you back,

Same discussion concerning price, concerning the

location, both Tom and Rob discuss the same

subject matter, namely the sale of cocaine. [par. ]

Both refer to the same things. [par.] Clearly

they are both alternately dealing with this police

officer in terms of offering this coke for sale."

4

Section 1223, Evidence Code provides:

"Evidence of a statement offered against a party

is not made inadmissible by the hearsay rule if:

[par.] (a) The statement was made by the declarant

while participating in a conspiracy to commit a

crime or civil wrong and in furtherance of the

objective of that conspiracy; [par.] (b) The state-

ment was made prior to or during the time that

the party was participating in that conspiracy;

"

eee

A-6

ED ns ce a roe ee ES

,

Before a coconspirator's hearsay statements

are admissible under section 1223, Evidence Code,

only a prima facie case of conspiracy need be shown.

(§§ 403, 1123, subd. (c), Evid. Code; People v.

Steccone, 36 Cal. 234, 238; People vl Lipinski,

65 Cal. App. 3d 566, 577; People v. Morales,

263 Cal. App. 2d 368, 375.) Where two or more

persons are involved in a crime under circum-

stances reasonably indicating an agreement or

conspiracy to commit that crime, the acts of

each in furtherance of the common criminal

objective are admissible. (People v. Hayes,

16 Cal. App. 3d 662, 669.) The evil or corrupt

agreement that forms the conspiracy may be shown

by circumstantial evidence. ‘''Thus, is it not

necessary to prove that the parties met and

actually agreed to perform the unlawful act or that

they had previously arranged a detailed plan for

its execution. . . . the agreement may be inferred

from the conduct of the defendants mutually carry-

ing out a common purpose in violation of a penal

statute [citations].'' (People v. Lipinski, 65

Cal. App. 3d 566, 575-576, original emphasis. )

Viewing the sufficiency of the evidence relative

to the establishment of a conspiracy against the

background of the type involved (In re David B.,

81 Cal. App. 3d 806, 810), here narcotic activity,

we conclude that the only reasonable inference

from the evidence presented prior to the admission

of Rob's statements, based upon the sequence,

substance and time of the telephone calls by defen-

dant and Rob to Officer Lyons on his private

telephone, is that indeed they were coconspirators

in a general plan designed to place cocaine in the

hands of another. (People v. Lipinski, 65 Cal.

App. 3d 566, 576..) The hearsay statements of

A-7

. Rob were admissible against defendant.

Appellant's claim that his Sixth Amendment

right to confront witnesses was violated is answered

by People v. Brawley, 1 Cal. 3d 277, 287-289

(cert. den. sub nom. Baker v. California (1971)

400 U.S. 993 [27 L. Ed. 2d 441, 92 S.Ct. 462]

and People v. Earnest, 53 Cal. App. 3d 734, 743-

744. However, it is clear from the record that

defendant's guilt did not depend upon any such

conspiracy because the direct evidence of guilt

against him offered through the testimony of

Officers Lyons and Bartolotto is overwhelming.

Defendant communicated with Officers Lyons

first, initiating negotiations for the sale of cocaine

and arranging its terms; later defendant again

called confirming the deal; meanwhile Officer

Bartolotto identified defendant leaving and return-

ing to the apartment to which Officer Lyons, several

hours later, went to meet defendant and consum-

. mate the sale; and defendant met Officer Lyons

there, and had in his possession the amount of

cocaine for which they had bargained. Thus the

prosecution neither was compelled or nor did

principally rely on the statements of Robert

Young.

Section 403, subdivision (c) (1), Evidence

Code provides: ''(c) If the court admits the

proffered evidence under this section, the court:

[par.] (1) May, and-on request’ shall, instruct the

jury to determine whether the preliminary fact

exists and to disregard the proffered evidence

unless the jury finds that the preliminary fact

does exist.'' Defendant did not request

A-8

ES

CALJIC 6,24, 9 in fact, took the express position

that he could not do so because there was ''no

evidence of the preliminary facts for the jury to

consider.'' In People v. Brawley, 1 Cal. 3d 277,

the court failed to reach the issue whether a trial

court had a duty to give such instruction§ on its

own motion; but did say that assuming that it did,

"it is not reasonably probable that a result more

favorable to [defendant] as to guilt would have been

reached in the absence of the error. (Cal. Const.,

art. VI, § 13; People v. Watson, supra, 45 Cal. 2d

818, 836.)" (1 Cal.3d at p. 291.) From the recited

facts it is apparent that had CALJIC 6.24 been

given, it is reasonably probable that the jury would

have found that Young's statements were made

while participating in a criminal conspiracy, in

furtherance of the objective of the conspiracy --

selling cocaine -- and at a time when defendant was

also participating in the conspiracy. But even

had the jury failed to so find and in determining

defendant's guilt had disregarded Young's state-

ments to Officer Lyons, it is not reasonably

probable that the jury would have acquitted

defendant. (People v. Brawley, 1 Cal. 3d 277,

291-292.)

5

CALJIC 6.24 provides in effect that the jury

is not to consider extrajudicial statements of a

coconspirator unless it makes a determination

from independent evidence that the four preliminary

facts re conspiracy exist.

6

CALJIC 935 (Revised) involved in Brawley is

substantially the same as CALJIC 6. 24.

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There is no substance to appellant's fourth

contention that because there was a break in the

chaim of custody of the two vials between the time

Officer Bartolotto found them on him and the time

the officer placed his identifying initials on them,

there was no evidence that the contraband analyzed

by the chemist was that found on his person. For

about.an hour and one-half the two vials were in

the possession of Officer Lyons. Immediately

after Officer Bartolotto arrested defendant and

found the vials on his person, he gave them to

Officer Lyons; Officer Lyons gave them to

Officer Bartolotto at the station where he affixed

his initials on the labels. However, the evidence

shows that Officer Bartolotto positively identified

both vials (Exhs. 1A and 1B) as those taken from

defendant's person; testified that the contents

appeared to be the same as when he took them

from defendant and the labels on the vials when

seized from defendant were on the vials when

Officer Lyons returned them to him at the station

where he marked them with his initials and placed

them in evidence. [If the jury accepted Officer

Bartolotto's testimony regarding this evidence,

it could and did believe the two vials (Exhs. 1A

and 3B) were those seized from defendant.

Asserting ''that law enforcement has the

duty to gather, preserve and reveal to the defen-

dant and jury all evidence relevant to the charge

against him,"' citing authorities including People

v. Ruthford, 14 Cal. 3d 399 and People v. Hitch,

12 Cal. 3d 641, appellant accuses Officer Lyons

of deliberately refusing to tape his conversations

with him and Young, and deliberately destroying

his notes regarding those conversations which,

A-10

en Rote See

he says, amount to law enforcement suppression

of material evidence denying him due process

requiring reversal and dismissal. He claims

that "tape recordings and notes might have impaired

the credibility of Lyons' testimony to such a degree

as to destroy the prosecution case."

People v. Hitch, 12 Cal. 3d 641, establishes

a duty on the part of a law enforcement agency to

preserve material evidence on the issue of guilt or

innocence (pp. 652-643); and the court in People

v. Ruthford, 14 Cal. 3d 399 concluded that the

suppression of substantial material evidence bear-

ing on the credibility of a key prosecution witness

is a denial of due process (p. 408). Concerning

the notes, Officer Lyons testified that while talk-

ing pn the telephone to Young and defendant he

"did scribble out notes as we were talking"; the

purpose of ''jotting down notes" was to refresh his

memory and assist him in completing a formal

arrest report; and after they had served their

purpose and no request had been made for them

he discarded the notes several months before

and ultimately they were destroyed. First,

Officer Lyons gave primary evidence of these

telephone conversations. He was examined and

cross-examined at great length relative to their

substance and sequence, and he gave detailed and

credible testimony concerning each call. Second,

the police reports detailing these conversations

had been available to defendant before trial. Third,

the notes having been ''scribbled out" for the sole

purpose of enabling Officer Lyons to prepare the

police reports, it is unlikely that any material

of value to the defense or prosecution in the notes

did not find its way into the police reports. Fourth,

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the ''deliberate'' destruction of the notes consisted

of the officer's discarding them to the waste

basket after they had served their purpose and

the police reports had been prepared and no

request had been made for them.

As to the failure to tape record the conversa-

tions, Officer Lyons testified: ''The reason I didn't

record it was the area of my office where the

radio communications is that I have available

to me, there is not a recording device at that

location. The recording apparatus is kept at the

other end of the hall in an additional room"; and

he said the reason he did not tape the conversations

was that he did not have the necessary time to

request and have delivered to him the requisite

recording equipment to tape the conversations.

In People v. Duren, 9 Cal. 3d 218, appellant urged

that his statements were inadmissible on the

ground that as a matter of due process they should

have been supplemented by some recorded means.

Said the court: ''An officer's testimony of what

he has seen and heard, however, is admissible

as primary evidence even though part of the same

matter is incorporated into a sound recording.

[Citation.] Accordingly, an officer's testimony

of a conversation with a defendant is admissible

in any event; the absence of a recording or

transcription would merely be one of the surround-

ing circumstances for the court to consider in

passing on the issue.'' (Pp. 243-244.)

Finally, appellant claims that on his motion

for judgment of acquittal the court erred in refusing

to permit him to reargue the admissibility of the

hearsay statements of Robert Young. The trial

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ee tate

court correctly perceived its function in passing

on the motion and properly utilized the test to be

applied under section 1118.1, Penal Code --

‘whether from the evidence, including reasonable

inferences to be drawn therefrom, there is any

substantial evidence of the existence of each

element of the offense charged [citations]. "'

(People v. Valerio, 13 Cal. App. 3d 912, 919.)

The evidentiary issues defendant sought to raise

had already been decided by the court during the trial,

and were not properly within the scope of the 1118.1

motion. Clearly, the motion goes only to the

sufficiency of the evidence adduced at trial after all

objections and motions relative to the evidence

have been disposed of,

The judgment is affirmed.

LILLIE, Acting P.J.

We concur:

THOMPSON, J.

HANSON, J.

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