*1 Dist., No. 32420. Second Div. Five. [Crim. May 1979.] PEOPLE, THE Plaintiff and Respondent, al.,
CHARLES STONEWALL JACKSON et Defendants and Appellants.
Counsel Cohan,
Richard K. and K. under Cynthia Cacioppo appointments by Court of and for Defendants Appeal, Appellants.
Evelle J. General, Winkler, Jack R. Chief Assistant Younger, Attorney General, Moore, S. General, Clark Assistant F. Robert Attorney Attorney Moe, Katz General, and Dixie and for Plaintiff Deputy Attorneys Respondent.
Opinion
STEPHENS, J. information, Jackson was with six By appellant counts 4390, of violation of Business and Professions Code section passing of a three counts of of violation Penal Code section forged prescription; 496, stolen one count of violation of Health and receiving property; 11368, Code section of a narcotic use of a Safety possession by forged and 475a, one count of of violation Penal Code section prescription; aof check with intent to defraud. The Penal possession Code completed section 475a count and one of the Penal Code section 496 counts were dismissed to a Penal Code section 1118 motion after trial. pursuant Jackson’s motion for severance of his from that of trial his codefendant was denied the trial court. statements of codefendant Extrajudicial were admitted into evidence over and a Jackson’s objections motion for mistrial based on the admission of those statements was denied. Jackson was convicted of all the counts. remaining information with one count
Appellant Hattaway charged by violation of Business Professions Code section counts of three violation of Penal Code one section count of violation of Penal trial, Code section 475a. motions dismiss the During jury the basis of failure statements on his charges suppress trial, to motion after delicti were denied. to establish corpus as to all counts to Penal Code section dismiss granted pursuant He Code section 4390. and Professions violation Business except of that count. was found guilty
Facts the matters raised facts insofar as to discuss of this necessary are as follows: on appeal, 23, 1977,
On Jackson the Grand entered appellant Pharmacy *4 Glendora, He two for and was California. presented prescriptions drugs the next the told to return the to merchandise. by pharmacist day up pick after the Jackson left the a black male entered Shortly pharmacy, young He and left a for for one S. Emerson. Young pharmacy prescription drugs told to next too was return the to the up day pick goods. to the with
On Jackson drove appellant August pharmacy the the two as a entered for Jackson paid Hattaway pharmacy, passenger. before, the left the and left the store with he had drugs day prescriptions outside, a small Once he car in which in his bag. Hattaway approached the went a waved did a small dance and into nearby sitting, bag, the market. then left the vehicle and went into Appellant Hattaway He a or Mrs. Emerson pharmacy. requested Dorothy Emerson who was his told that there was no he said wife. name, left he and under puzzled whereupon appeared in vehicle. After a short the store. Both drove Jackson’s away appellants been were a officer who had distance they observing stopped by police activities officer informed their at This had been by pharmacy. left about the latter’s concerning pharmacist suspicions arrested both Jackson and the black male. The officer young by in and later searched the car to a warrant. Found appellants pursuant and various car were two from the Grand bottles Pharmacy, drugs checks cards and of stolen a credit items passport, property, including to S. Y. an Emerson. belonging 25, 1977, and his
On after informed waiving Hattaway, being That told a officer the Jackson constitutional police following: rights, his make told him come over to house if he wanted to some money; went him that he to Jackson’s house where Jackson some speed gave needle; then and a drove (amphetamine) hypodermic Grand where Jackson told him to Pharmacy a for a pick up prescription Emerson; and that he left Dorothy when there was some pharmacy confusion over what name the was under. also told the officer that he was a “runner for that he was to scrips [prescriptions],” receive a obtained, of the he sold portion that he drugs drugs false identifications for a living.
Contentions first contention is that court the trial erred in Appellant Hattaway’s statements before his extrajudicial admitting establishing corpus offense, delicti of the a violation of Business and Professions Code alleged section 4390.1 motion to those statements was denied suppress the trial court. states the rules that facie correctly prima
Appellant Hattaway crime be made before a of the delicti of the must showing corpus defendant’s be received into delicti and without that the must be entirely independently corpus proved 8 Cal.3d those statements. Cantrell 678-680 considering (People 792, 504 P.2d on another 1256], disapproved point *5 318, la, v. Wetmore 22 324 (1978) Cal.3d [headnote [149 lb] 265, 583 P.2d v. 32 535 1308]; Cal.2d People Mehaffey P.2d is in his 12].) incorrect assertion [197 Appellant Hattaway that these rules were not in the with case. complied present violation and with a of Business Professions
Hattaway facts, Code section 4390 which or about 1977. The occurred on August ante, set forth the evidence which was introduced to the admission prior statements. From this of events it extrajudicial sequence could be inferred that Jackson and the unidentified black reasonably male were in concert to false that the acting pass prescriptions; one; for S. Y. was a false that Jackson left Emerson and the to of the false products Hattaway arranged pick up 24; he asked for on that intended to do so when the and Hattaway Emerson, wife, or his Mrs. for Dorothy Corpus evidence, evidence, circumstantial delicti established be by by slight v. drawn from such evidence. reasonable inferences to be (People by Cantrell, Moreover, not to 679.) 8 it is at Cal.3d necessary supra, p. Code section 4390 reads as 1The of Business and Professions follows: pertinent part another, makes, or of a or the name of fictitious person, falsely who “Every person signs utters, alters, to as attempts or publishes, passes, pass, genuine, any prescription forges, of a . . is any forgery. drugs guilty
561 crime in of the the defendant with the connect perpetration particular 32 Cal.2d delicti. order to establish supra, corpus (People Mehaffey, clear, therefore, It that delicti of 545.) at is corpus p. 4390 was established of Business and Professions Code section violation statements. introduction of Hattaway’s extrajudicial prior even second contention is Appellant Hattaway’s statements, violation failed to establish a his by including extrajudicial him, Code section 4390. For Business Professions Hattaway with this it would have to an examination prevail argument, appear upon evidence, viewed in a most favorable to the of all the light respondent, no there substantial evidence to reasonable hypothesis upon the verdict. v. Redmond Cal.2d (People support In reasonable inferences P.2d 321].) present conduct as detailed in the preceding paragraph, Facts, ante, 559- (see when bolstered his pp. of that the nature conduct. The leave little doubt about 560), purpose issue, however, a violation of Business is whether that conduct constituted 4390 as a matter of law. and Professions Code section Business and Profes that the violation of asserts Appellant S. Y. of the Code section 4390 was sions completed upon passing male, the latter and it was Emerson the unidentified black prescription by crime, not who was answerable for Hattaway. Respondent properly have have found to aided could been reasonably argues and thus was in the of the and abetted Jackson passing not he did found as a even directly though properly guilty principal, Code, We concur 31.) commit the act the offense. (Pen. § constituting *6 A violation with of the facts and add another. interpretation respondent’s a 4390 can consist of Business and Professions Code section “uttering” false for well as such a as prescript drugs, passing ion.2 to use an The word “utter” means to use or attempt instrument, which, a asserts or or in connection with whereby person another, or or represents directly expressly impliedly, by indirectly, conduct, words or that No. 15.25 (3d the instrument is (CALJIC genuine. 1970).) ed. There was substantial evidence tending prove to use the S. Y. to obtain false Emerson drugs, by attempted We therefore with his words and conduct that it was genuine. asserting violation of find that the verdict of guilty appellant 4390 must stand. Business and Professions Code section ante, footnote 560. 2See page 1.
562 erred in his motion that the court Jackson contends denying
Appellant
his trial from that of his codefendant
to sever
Hattaway,
admitting
made
statements
statements.
extrajudicial
Hattaway’s extrajudicial
Jackson
of “Facts.”
are detailed in
fourth paragraph
by Hattaway
476,
Since, statements in the Hattaway’s extrajudicial present trials for a severance of without deletions and Jackson’s motion admitted denied, turns on whether an Aranda-Bruton error there was whether Whether incriminated Jackson. statements they substantially It is not of the other evidence. must be determined in did so light evidence, under error to admit into Aranda or Bruton reversible proper of one instructions to the jury, extrajudicial limiting crime, of a if there which link a codefendant to the commission defendant statements, that codefend from the is substantial linking apart 154-161 ant to that crime. [109 (People Epps Cal.App.3d 982-984 v. Romo (1975) 733]; Cal.App.3d In the the record reflects that the 684].) jury present insofar as instructed to statements of Hattaway disregard reflected on or innocence of Jackson.3 guilt 3“THE COURT:...................... in this statements made by, that with to any I’m to instruct respect “At this time going *7 those Pfeiffer, will now testify, Officer Pfeiffer and to which to Officer Mr. Hattaway Jackson, statements, to Mr. are limited solely Mr. mention to the extent in, and not to that comes you’re disregard of Mr. Jackson evidence any Hattaway; on these charges. or innocence Mr. Jackson’s guilt consider in determining as Mr. admitted And it is not limited to Mr. Hattaway. statement is “The solely Jackson, are Mr. you concern and they may hear statements Jackson. Although you’ll a codefendant.” the statement by law on the issue of them. That’s the not to consider statements, We find substantial from apart Jackson to each crime of which it can be said that linking reasonably statements incriminated him. include all These counts involv- the two Jackson at the Grand ing prescriptions passed by Pharmacy, the unidentified male at black the same prescription passed by place. We need not reiterate that evidence here as it is detailed in adequately the first two of “Facts.” The last mentioned count needs some paragraphs discussion, however. and Jackson were with a violation of Business and
Hattaway Professions Code section 4390 which occurred on or about August 1977, and which involved a in the name of S. Y. Emerson. prescription The first two of the facts reflect the evidence which was paragraphs introduced to the commission of that offense. From the attesting of events it could be inferred Jackson and the sequence reasonably unidentified black male were in concert to false acting pass prescriptions; that the one; left for S. Y. Emerson was a false that Jackson of the false arranged pick up products 24; on and that intended to do so when he wife, asked for the for his or Mrs. Emerson. We thus Dorothy see substantial evidence of this violation of Business and Professions Code section 4390 Jackson.
In of the substantial Jackson, evidence and the light inculpating instructions limiting jury given we conclude that those statements did not Hattaway, substantially
incriminate Jackson in a error, manner reversal. it requiring Conceding was harmless a reasonable doubt. beyond
The are affirmed. judgments J., concurred.
Hastings, KAUS, P. J.I I dissent. cannot conclude record contains sufficient substantial evidence to the conviction on count 4—the uphold count the Emerson there was no evidence involving prescription: simply that the was other than v. Kurland (Cf., genuine. 200-201 216].) Cal.App.3d bases its conclusion that the evidence was sufficient on majority three bits of circumstantial evidence: in Jackson’s car of discovery
564 “stolen” Emerson; items S. an Y. the (2) apparently belonging admissions of (3) between extrajudicial Hattaway; cooperation and Jackson who had in a transaction just engaged involving these, which were to have been None of prescriptions proved forged. considered alone or constitutes substantial evidence that aggregate, the Emerson was false. prescription
1. There was no evidence that the Emerson credit cards and passport, Indeed, checks were stolen. conceded that fact when the prosecutor stolen based on those documents was receiving dis- property charge missed.
2. While admissions him in some Hattaway’s extrajudicial implicated sort of nefarious with Jackson dealings concerning drugs been ordered of the Emerson absent bald by way prescription, specula- tion that fact in no that the Emerson was false. way proves
3. The a who prosecution testified that presented handwriting expert the two which had been Jackson were personally passed by No evidence the Emerson forgeries. comparable While the interaction between and Jackson presented. have a raised that the third was also strong suspicion forged, such cannot substitute for solid I would reverse suspicion proof guilt. count 4.
I also have doubts on the Aranda-Bruton holds my point. majority there was no Aranda-Bruton error because there was substantial evidence Jackson with the crime other than linking Hattaway’s extrajudi cial In admissions. of this cites support proposition, majority People 34 v. Romo Epps Cal.App.3d [109 733] From Cal.App.3d my reading Epps 684]. and Romo—two doubtful cases—the overstates their In effect. majority statements showed the codefendants Epps, only were with each other. In this were cumulative. Further acquainted they did not the codefendant who had not made the directly implicate Romo, admissions in the crime. In adverted to is principle merely dictum.
The situation here is different from that in vastly Epps. admissions Jackson in the crimes. clearly directly implicated Because the court denied Jackson’s alternative or motion to sever strike *9 him, and because which of the statements implicated parts error. The other evidence there was Aranda-Bruton did not guilt testify, of the case the error harmless—the have rendered posture present not make it did me to decide that makes it question—but unnecessary nonexistent. the error