People v. Carbonie

48 Cal. App. 3d 679, 121 Cal. Rptr. 831, 1975 Cal. App. LEXIS 1147
CourtCalifornia Court of Appeal
DecidedMay 30, 1975
DocketCrim. No. 25868
StatusPublished
Cited by1 cases

This text of 48 Cal. App. 3d 679 (People v. Carbonie) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Carbonie, 48 Cal. App. 3d 679, 121 Cal. Rptr. 831, 1975 Cal. App. LEXIS 1147 (Cal. Ct. App. 1975).

Opinion

Opinion

COBEY, Acting P. J.

Carolyn Joy Carbonie appeals from a judgment of conviction of three violations of Health and Safety Code section 11380,1 entered upon juiy verdicts to that effect. The appeal lies. (Pen. Code, § 1237, subd. 1.)

Appellant contends that: (1) there is insubstantial evidence to sustain her conviction; (2) the trial court erred in admitting evidence of a tape-[683]*683recorded telephone conversation; and (3) the five-year minimum prison term provided for her offense constitutes cruel or unusual punishment.

Facts2

On January 7, 1974, Deputy Sheriff Nancy Brown (an undercover officer) and a confidential informant met with appellant’s son, Chris, then aged 16, at appellant’s apartment in Pico Rivera. Brown asked Chris to sell her two “nickel bags of whites” ($5 bags of amphetamines). Chris agreed to do so, asked Deputy Brown to wait, left, then rejoined her a few minutes later. Shortly thereafter, appellant came to the bedroom door and handed the amphetamines to Chris, who in turn gave them to Deputy Brown.

On January 9, Deputy Brown telephoned Chris and asked him whether he had any more amphetamines for sale. During their conversation, which Brown recorded, Brown heard appellant ask Chris who the caller was and what the caller wanted; she then heard Chris identify her and tell appellant that she wanted more “beans” (amphetamines). Afterward, Brown went to appellant’s apartment and bought two $5 bags of amphetamines from Chris.

On February 14, Deputy Brown returned to appellant’s apartment a third time. As Brown approached the apartment, appellant spotted her and told her that she and Chris were out of “whites.” Nevertheless, appellant invited Brown into the apartment to see Chris. There, Chris told Brown that he only had “pinks” available, and showed her a heart-shaped dexadrine pill.3 At this point, Brown signaled other officers to move in for the arrest.

Discussion

Insubstantial Evidence

Appellant first contends that there is insubstantial evidence to sustain her conviction under counts I and III.

There is no merit in this contention. With respect to count I, it is true that the informant, David Armentia, was the only person who testified [684]*684that he actually saw appellant hand the amphetamines to Chris Carbonic on January 7th.4 It is also true that Armentia had a police record and a possible motive for perjuring himself. Nevertheless, there is nothing inherently improbable about Armentia’s testimony, and that is what we would have to hold in order to reverse the judgment. (See People v. Lyons, 47 Cal.2d 311, 319-320 [303 P.2d 329].)

With respect to count III, it is true that Chris Carbonic was the only one who handled the dexadrine pill. Nevertheless, there is ample evidence from which the trier of fact could have reasonably inferred that Chris was acting as his mother’s agent in all three transactions, including the one involved in this particular count.

The Tape Recording

Appellant next contends that the trial court erred when it allowed the jury to hear a tape recording of the telephone conversation between Deputy Brown and her son, Chris. Specifically, she contends that this recording was obtained in violation of her son’s right to privacy (see Pen. Code, § 630) under our anti-wiretapping (Pen. Code, § 631) and anti-eavesdropping (Pen. Code, § 632) statutes, and was admitted by the trial court in violation of her own right to have such evidence excluded in any judicial proceeding brought against her. (See Pen. Code, §§ 631, subd. (c), 632, subd. (d).)

Section 633 of the Penal Code exempts certain law enforcement activities from the operation of the just-mentioned statutes. This exemption is written in the form of a grandfather clause. It reads, in pertinent part, as follows: “Nothing in Section 631 or 632 shall be construed as prohibiting . . . any . . . deputy sheriff. . . from overhearing or recording any communication which [he or she] could lawfully overhear or record prior to the effective date of this chapter. [H] Nothing in Section 631 or 632 shall be construed as rendering inadmissible any evidence obtained by the above-named persons by means of overhearing or recording any communication which they could lawfully overhear or record prior to the effective date of this chapter.”

Appellant contends that the recording of the January 9th telephone conversation would have been unlawful before the effective date of the chapter (Nov. 8, 1967; see Stats. 1967, p. A-3) and, therefore, it is [685]*685unlawful today. Appellant bases this contention on the following passage from People v. Jones: “Section 631 makes unlawful any ‘unauthorized’ wiretap. Old section 640, from which section 631 was derived, also proscribed unauthorized wiretaps. The authorization required for a legal wiretap under section 640 was the consent of the subscriber to the telephone, and the consent of the telephone company. [Citation.]” (Italics added.) (30 Cal.App.3d 852, 854 [106 Cal.Rptr. 749], app. dism. 414 U.S. 804 [38 L.Ed.2d 40, 94 S.Ct. 163].) Appellant’s argument is twofold. First, she argues that Deputy Brown probably was not the subscriber

Related

People v. Carbonie
48 Cal. App. 3d 679 (California Court of Appeal, 1975)

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Bluebook (online)
48 Cal. App. 3d 679, 121 Cal. Rptr. 831, 1975 Cal. App. LEXIS 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-carbonie-calctapp-1975.