People v. Cruz

260 Cal. App. 2d 55, 66 Cal. Rptr. 772, 1968 Cal. App. LEXIS 1821
CourtCalifornia Court of Appeal
DecidedMarch 12, 1968
DocketCrim. 3011
StatusPublished
Cited by14 cases

This text of 260 Cal. App. 2d 55 (People v. Cruz) 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. Cruz, 260 Cal. App. 2d 55, 66 Cal. Rptr. 772, 1968 Cal. App. LEXIS 1821 (Cal. Ct. App. 1968).

Opinion

KERRIGAN, J.

—Convicted by a jury of the charge of selling heroin (Health & Saf. Code, § 11501) and sentenced to state prison, defendant appeals.

On March 1, 1966, an undercover agent of the Riverside County Sheriff's Department purchased four bindles--of heroin from the defendant for the sum of $12. Shortly after the sale, the officer observed the defendant inject a powder substance and fluid into his arm with a hypodermic needle.

*58 Defendant did not testify in his own behalf, but did display his arms to the jurors.

Defendant attacks the judgment of conviction on the following grounds: (1) The evidence of the subsequent crime pertaining to the injection of heroin was improperly admitted inasmuch as it tended to prove an offense other than 'that charged in the information; (2) opinion evidence of a non-expert witness was improperly admitted; (3) evidence of a threat made by defendant against a prosecution witness was improperly admitted; and (4) the district attorney was guilty of misconduct.

The undercover agent testified, without objection, that defendant injected himself with heroin shortly after he had sold heroin to the officer. Defendant maintains that error was committed in the admission of such evidence because it constituted a crime distinct from that charged in the information. However, defendant failed to object to the admission of the evidence of the later offense. Consequently, it is not incumbent upon us to decide whether the testimony regarding the subsequent offense, with which the defendant was not charged, represented admissible or inadmissible evidence inasmuch as the error, if any, is not of fundamental or constitutional proportions, and the failure to object constitutes a waiver of his right to raise the issue on appeal. (People v. Marsh, 58 Cal.2d 732, 747 [26 Cal.Rptr. 300, 376 P.2d 300] ; People v. Beverly, 233 Cal.App.2d 702, 723-724 [43 Cal.Rptr. 743], cert. den. 384 U.S. 1014 [16 L.Ed.2d 1035, 86 S.Ct. 1937]; People v. Henson, 205 Cal.App.2d 636, 638 [23 Cal.Rptr. 149]; Witkin, Cal. Evidence (2d ed. 1966) §§ 1284, 1285, pp. 1187,1188.)

Defendant next maintains that the court erred in-permitting a police officer to express an opinion as to why defendant’s arm showed no “marks” indicating his use of narcotics at the time the defendant displayed his arms to the jury. The trial occurred in December 1966. When the prosecution presented its ease-in-ebief, the undercover agent testified that at the time of the sale and injection at Corona on March 1, 1966, the defendant’s arms bore bruises, together with black and blue marks, indicating that the defendant had been using heroin over a period of several weeks, and that these impressions would result in permanent scarring. Thereafter, the only evidence offered by the defense was to permit the defendant to exhibit his arms to the members of the jury, and apparently no sears were then visible. When the defense *59 rested, the prosecutor requested a recess to obtain rebuttal medical testimony. The prosecutor then produced a Riverside sheriff’s sergeant who, over objection, was allowed to testify as follows: “Q. Sergeant, in reference to this use of Heroin [sic], do 3ou have an opinion as to whether or not the condition of an individual, today, December 20, 1966, would indicate whether or not on March 1, 1966 an individual had been using Heroin [sic] by way of intravenous injection ? i (

“A. I[t] would not necessarily, unless there was some recent injection. ’ ’

Defendant contends that a medical doctor should have been produced by the prosecution for the purpose of expressing the opinion given, and that the sergeant should not have been permitted to render his opinion because he was not a qualified medical expert.

A person may render his opinion as an expert on a question of science when he is skilled therein. (Code Civ. Proc., § 1870, subd. 9.) 1 The police sergeant testified that he had 10 years’ experience in law enforcement; that he had been in charge of the narcotic and vice detail for four years; that he had worked with state narcotic agents for six months; that he had taken the narcotic program conducted by the County of Riverside; that he had studied narcotic investigation in two courses sponsored by the State Bureau of Narcotics; and that he had examined individuals who used heroin.

A police officer familiar with narcotic substances, who also has experience with addicts, may be permitted to testify as to the narcotic character and nature of a substance. (People v. Nunn, 46 Cal.2d 460, 466-467 [296 P.2d 813]; People v. Flynn, 166 Cal.App.2d 501, 509-510 [333 P.2d 37].) The determination of an expert's qualification is primarily the function of a trial court, and its ruling will not be disturbed in the absence of an abuse of discretion. (People v. Chapman, 207 Cal.App.2d 557, 576 [24 Cal.Rptr. 568]; People v. Chambers, 162 Cal.App.2d 215, 220 [328 P.2d 236]; People v. Smith, 142 Cal.App.2d 287, 292 [298 P.2d 540].) In the case under review, the trial court was justified in finding that the officer was an expert by reason of his knowledge, skill, experience, training and education in the field of narcotics. The defendant’s remaining contentions to the trial court’s action in permitting the sergeant to render *60 an,,.opinion aj?e unmsrito.riousinasmuch as. he failed to raise the "precise" or' specific" objections at the trial level which he now assérts .and such failure constitutes a waiver. (People v. DeCasaus, 194 Cal.App.2d 666, 675 [15 Cal.Rptr. 521]; People v. Lint, 182 Cal.App.2d 402, 414 [6 Cal.Rptr. 95].)

Defendant also urges that the evidence of a threat made by him against the .undercover agent was improperly admitted in evidence over his counsel’s objection. Defendant’s threat to kill the officer was made after the agent had completed his testimony and after the prosecution had rested its case. A threat made by a defendant against a prospective prosecution witness whom he expects to testify against him, with the evident purpose of intimidating the witness, is proper evidence. (People v. Chin Hane, 108 Cal. 597, 603 [41 P. 697]; People v. Rosoto, 58 Cal.2d 304, 350, 352 [23 Cal. Rptr. 779, 373 P.2d 867].) Efforts of an accused to suppress testimony against himself indicate a consciousness of guilt. (People v. Kendall,

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Bluebook (online)
260 Cal. App. 2d 55, 66 Cal. Rptr. 772, 1968 Cal. App. LEXIS 1821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cruz-calctapp-1968.