*1 No. 14978. In Bank. Mar. [Crim. 1971.] PEOPLE,
THE Plaintiff Respondent, MONTALVO, HAROLD REYES Defendant and Appellant. *3 Counsel Mazziotta, Court, V.
Joseph for Defend- appointment by Supreme ant and Appellant.
Thomas C. General, and Evelle J. Lynch William E. Younger, Attorneys James, General, Pounders, Assistant and William Attorney R. At- Deputy General, for and torney Plaintiff Respondent.
Opinion WRIGHT, C. J. In thiscase we decide whether conviction of furnishing a narcotic to a (Health minor an adult & 11502) Saf. stand when information failed to that defendant over the allege was and years when the jury was in instructed must no that it determine way as an element of the offense that was defendant an adult before him finding of the said guilty offense. We have concluded that such a of con- judgment viction must be reversed. Furnishing “of information to wit:
Defendant was charged by felony, 11502) (H&S in that on or Minor, wit, to a Narcotic Heroin Bernardino, State July, County about 9th in the San day California, narcotic, heroin, wit, he did furnish a unlawfully Mary [V.], A a minor.” found him and he from the charged, guilty appeals entered on the conviction verdict. de-
Two witnesses testified at the trial. that she and Mary testified was first met when she They about two years. for dating been fendant had she was 16. She old, the incident in question at the time of 14 1968, defendant In in March 1968. April a child defendant had had were heroin. She he told her they to Mary; administering injections began defendant was the one for which before about 15 such injections received a brownish often carried in this case. Defendant pow- arrested charged In- boiled with a match. which he with water in a and then der spoon mixed stated that she never Mary injected was needle or by a jection eyedropper. but that defendant did so on each of 15 occasions. herself 9, 1968, in the yard On the defendant and were July Mary evening shot,” asked “a of a house which was next door to home. for Mary’s Mary it to her. mother saw her Mary’s and administered prepared ill, thereafter and told weak and immediately go Mary, feeling her home. *4 sister, condition, ran where she her seeing home vomited. Her mother arrived, called the told had When the officers them she Mary police. police received an of heroin. She was then taken to the Ontario injection police station. as an expert Ontario Police qualified Alwin of the Department
Officer various identifying using his on and testified to drugs experience persons station, Alwin Officer arrival at the narcotics. after Shortly Mary’s police her for reaction her marks. He tested pupils examined arm saw needle that did not they and noted to and darkness aid of light pupillometer She became ill and vomited. During again react. the examination Mary relaxed, and her somewhat and overly lethargic, unresponsive, appeared Alwin all this information Officer demeanor was From of general euphoric. heroin. concluded that was then the influence of Mary finding the jury’s implied to is sufficient support evidence The foregoing v. (People Winston heroin. was Mary to administered the substance (1962) 40]; Clemmons People v. 151,156-157 P.2d (1956) 46 Cal.2d [293 (1961) 467]; v. Medina People 696, Cal.Rptr. 700-701 [25 208 Cal.App.2d (1957) 151 Drake 722]; People v. 224, Cal.Rptr. 231 [17 Cal.App.2d 198 (1953) 121 Cal. Canadalaria 997]; People v. 28, 44 P.2d [310 Cal.App.2d accom Moreover, is not an since a minor 686, 71].) P.2d 690 [264 App.2d Poin v. (People a minor a narcotic to such the crime of supplying plice Paula 763]; People v. De 142, P.2d Cal.2d 149-150 (1958) dexter 51 [330 (1967) Chrisman 256 600]; People v. 643, P.2d 647 43 Cal.2d (1954) [276 Medina, supra, 733]; v. 425, People Cal.Rptr. [64 Cal.App.2d 230-231), was sufficient support at testimony Mary’s pp. Cal.App.2d the heroin who administered defendant was verdict that person jury’s of heroin was injections of evidence to her. Admission prior be introduced offenses evidence of prior Although proper. solely criminal or such disposition evidence propensity may prop be erly admitted whenever it tends logically, reasonable naturally, inference to establish fact material for the or to overcome People material matter sought to be proved by (People defense. (1968) Haston 233, Cal.2d 419, 91]; People [70 P.2d Cal.Rptr. Kelley 66 Cal.2d 238-239 P.2d People v. Peete 28 Cal.2d 924].) In this case the evidence of injections of a prior substance that defendant told heroin, was Mary which substance caused certain her, sensations would tend to establish that the substance occasion, administered on the present sensations, similar producing was also heroin. terms, its section 11502 of the Health and
By Code express Safety over,1 of 21 or and the crucial applies persons question in this case is whether can stand when the entire record is judgment barren of any evidence or even mention of defendant’s and the age, question of his age was in no way to or presented hold upon by jury.2 We passed cannot stand. defense that need not be theory on
Apparently it, the absence some evidence to to the support presented *5 age Safety provides: “Every person and section 21 1Health Code 11502 of the of solicits, years induces, any voluntary encourages, or over who in manner or intimi violate, any dates to a knowingly respect minor with the intent that said minor shall with marijuana, any provision chapter narcotic other or than of this ... who unlaw sells, furnishes, administers, fully to a gives any marijuana . . . narcotic other than [or] punished by imprisonment prison. pro minor shall be in acts the state . . .” The by scribed by section 11502 are made when committed a the person criminal age by 11502.1, Safety of 21 provides: Health Code section which solicits, “Every person age years any voluntary under the of 21 who in manner induces, encourages, any or intimidates said minor with the intent that minor shall knowingly nishes, any provision sells, unlawfully violate chapter of this ... or who fur- gives administers any marijuana . . . narcotic other than to a minor shall [or] punished by be substantially were imprisonment in state prison. provides . . .” Section 11502.1 for penalties (Sections lesser than does section 11502. 11502 and 11502.1 1970, 1970, 1098, 4, redrafted in chapter Statutes sections Those redrafts have 5. upon case.) no effect the issues presented in this instructed, regard 2The offense, court with to the pertinent part substantive as follows: charged narcotic, wit, defendant unlawfully furnishing “[t]he is with a heroin, [V.], minor”; Mary a that Safety “Section 11502 of the Health and Code provides every person that voluntary unlawfully who in a manner furnishes or gives any marijuana narcotic other than guilty felony”; to a is minor a . of “. . Mary that is a [V.] minor.” It should pattern jury be noted that the instructions were not used. The CALJIC instruction for sections 11502 and 11502.1 reads as follows: Marijuana “Narcotics—Sale, Etc., Thereof Other Every per Than Minor. (of age son years over) (under 21) of 21 age sells, or unlawfully of who fur nishes, administers, gives or away any narcotic to a minor in an amount sufficient to be used as a knowledge narcotic and narcotic, with that the substance a guilty is is of (CALJIC a (rev. crime.” 1970).) No. 12.08 ed.
333 a on denied defendant’s motion for of made acquittal trial court that there was no evidence of his the ground majority. of the 21 over” 11502 of or provides
Section
every “person
commits
is
of
There
who
of
acts
a criminal offense.
proscribed
guilty
is
whatever in that
is
an
nothing
suggest that
language
majority
of the
that the
element
crime
must
or that
is a
prosecution
prove
defense
defendant must
The
is
Legislature
fully
assert.
of
cognizant
the rules
on the
the burden
placing
every
element
prosecution
proving
of the offense
a
trial
charged
guaranteeing
every
defendant
on
Const., Amend.
(U.S.
such element
regardless of
state of the evidence.
VI;
Const.,
7;
I,
Code,
Cal.
art.
Pen.
of innocence
§
1096
§
(presumption
until the
doubt); People
is
a
contrary
beyond
reasonable
v. Wells
proved
330,
(1949)
53];
33 Cal.2d
People
(1969)
346
v. Shavers
269
[202
886,
334]; Goldstein, The
888-889
State and
Cal.App.2d
Cal.Rptr.
the Accused:
Advantage
(1960)
Balance
in Criminal Procedure
Yale
69
1149, 1157,
22;
L.J.
(1931)
899;
fn.
Annot.
People
A.L.R.
see
v.
Con
(1910)
boy
703]; cf.,
P.
People
(1904)
v. Stoll
Cal.
Cal.App.
[7,7
818];
fit,
P.
Pen.
1118.1) When it has seen
the Legislature has
to those rules
that certain facts
responded
by providing
constitute defenses that
the defendant must either invoke
some evi
by
or,
dence
cases,
some
It
of the evidence.3
prove
preponderance
penalty
People
person
burden of
defendant
to
this burden
scription
tion
would tend to
time of commission of the
burden of
burden,
proved,
defendant
showing
33,
in criminal
Code section
[of
(1953)
(1962)
The comment to Evidence Code
3Evidence
42-43 [198
Cal.App.2d
may be taken
Evidence
shall
may
it his
41 Cal.2d
62 Cal.2d
as under
that
aof
circumstances
Bushton
proof
proof on
is illustrated
is illustrated
is one
Cal.App.2d
be
not
P.2d
the defendant
Code
action,
physician. (E.g.,
raise a
burden,
upon
P.2d
Code, relating
be
existing
645].)
*6
832,
the defendant
advantage
provides
[1889]
section
the defendant
imposed
such
reasonable
877].)
the defendant.”
708 [256
by numerous
by
840-842 [264
346,
526 [42
A third manner
statute
law,
crime,
The that General Attorney be issue of defendant’s age may properly upon placed rule, the rule and convenience. Under that necessity despite of all material elements state’s burden of reasonable doubt beyond proof (Pen. contains a aver 1096), negative offense if charge accused, ment or a fact of the concerns within the knowledge peculiarly the initial burden of on issue bemay evidence that producing placed upon the accused where he has him more access to that ready proof subjecting to this will not be or unfair. burden harsh unduly
The that the defendant is or over is allegation age not a averment, A true that negative averment. for negative example defendant lacked a was drug, for a of which possession prescription lawful only on often be for the may prescription, practically impossible prosecution but for absence easy the defendant to refute. In the of a defense, legislative is a do not believe that we provision the relative of the and defense to establish the defendant’s ability prosecution is sufficient rule and convenience to justify invoking necessity relieve the of its burden of prosecution majority defendant’s proving under section 11502.
The defendant have substantially necessarily greater ability (People Daugherty anee of the evidence. 40 Cal.2d 898-901 [256 911].) (a), 4Evidence Code section a presumption assump subdivision defines as “an tion requires of fact that the law to be group made from fact or another of facts found or otherwise example, Safety established in the action.” For Health and Code section 11227 establishes a presumption prima guilt respect facie evidence of with to certain narcotics record-keeping requirements a showing from possesses the defendant greater amount of narcotics than accounted for required kept, records to be or a *7 lesser amount however, than possess. such records presumption, reveal he should A satisfy due process “the clause of Fourteenth Amendment requires there be a rational (People connection between the proved facts and fact presumed.” Wells, supra, 346; 33 at p. Cal.2d Tot v. United States U.S. [87 1519, 1524, 1241].) L.Ed. Legislature S.Ct. It is clear that the did not intend that a presumption case; operate should in this it is also clear there is no rational connection between that proven (furnishing minor) the fact to a narcotics and the fact have would to be 21). assumed there presumption (being age if were a over the of A defendant’s is to establish his than does age prosecution. precise age but must have not a matter within his he something knowledge personal church records. this learned either from sources or or In family public of documented existence there is little doubt that age ordinarily the prose- Moreover, be able the defendant’s in cution to secure evidence of may age. age those rare cases where there is no evidence of the defendant’s precise is, his own belief as to what it the defendant be as hard might except defense, it. If be deemed a a pressed verify prosecution defendant in such a case would be at the of the to dis- mercy jury’s power believe his even it be the evidence of testimony though age. available only We conclude that a case for the of the rule of and application necessity convenience here has not been made out.
Our should not holding be so as to interpreted require prosecution every instance to the actual defendant. There will be occa age sions when his will be that the could physical such jury appearance entertain a reasonable doubt that he was age over the of 21 “Ex years. teaches us that are index perience an corporal appearances approximately of the age bearer, of their for the marked extremes of old particularly age youth. In case such evidence should be every and weighed accepted for what it be in each case may worth. In physical the outward particular of an appearance alleged age; minor be considered may of his judging rule would contrary for such an inference be over-cautious.” pedantically (2 Wigmore, (3d 1940) Evidence (italics ed. see pp. § original); Note, A generally Appearance Age as Evidence His Defendant’s & Lee 290.) Wash. L. Rev. Moreover it “is settled that a view of the scene by the trial judge evidence on which be independent finding may made sustained (Otey Dist., Carmel Sanitary Cal. Code, 140).” Evid. (Hutcherson § v. Alexander (1968) 264 Cal. 126, 131
App.2d 366].) a view the Similarly, trier fact in an case be appropriate may sufficient to support finding defendant is an adult.5 event, In the information or indictment must contain the necessary as to language age in jury 5It should not be inferred analysis from age this proof of the issue that when the prosecution is unable to offer proof on either a section 11502 or a section charge, 11502.1 no may Rather, conviction be had. because the two sections cover precisely the same course of conduct and differ respect with perpetrator’s age and the severity penalty, of the the two sections essentially are degrees two of the such, same offense. As if the entertains a reasonable doubt that defendant is 21 over, or it nevertheless convict degree. (See of the lesser Pen. 1097.)
trials, instructed as to all of elements of must be properly offense.
The is reversed. judgment J., Burke, J., Sullivan, J., Peters, J., Tobriner, Mosk, J., concurred. McCOMB, J. would affirm the for the reasons ex I dissent.I Mr. Justice Gabbert in the him for pressed by opinion prepared People v. Montalvo 658. Court of Appeal (Cal.App.)