Opinion
Cr. 6167
12-2-1958
PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond DURAZO, Defendant and Appellant. *
Ellery E. Cuff, Public Defender of Los Angeles County, John Brettmann and Paul G. Breckenridge, Jr., Deputies Public Defender, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Raymond DURAZO, Defendant and Appellant. *
Dec. 2, 1958.
Rehearing Denied Dec. 23, 1958.
Hearing Granted Jan. 28, 1959.
Ellery E. Cuff, Public Defender of Los Angeles County, John Brettmann and Paul G. Breckenridge, Jr., Deputies Public Defender, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.
PARKER WOOD, Justice.
By an indictment in three counts the defendant was accused of unlawfully selling heroin. It was stipulated that the case would be submitted to the court upon the transcript of the evidence presented to the grand jury and upon additional evidence presented at the trial. In a trial without a jury, defendant was acquitted on Count 1 and was convicted on Counts 2 and 3. He appeals from the judgment of conviction and the order denying his motion for a new trial.
Appellant contends that the court erred in not requiring the police officer to disclose the name of an informer.
With reference to Count 1, Officer Anderson testified, before the grand jury, that on April 12, 1957, about 11:30 a. m., he, in company with another person, went to a cafe and sat next to Raymond Durazo, who was sitting at the counter. The person, who accompanied Anderson (officer), asked Durazo about getting some 'stuff.' Durazo said he could fix them up but he did not want to deal in front of Anderson. When Durazo and the person started to the rest room in a bar next door Anderson started to follow them. Then Durazo turned back and sat at the counter. The person told Anderson that Durazo was afraid of Anderson and he did not want to sell when Anderson was watching. Anderson replied that if Durazo did not trust him there was no deal. Then Durazo started again toward the rest room in the bar next door, and the person followed him. Anderson, after waiting a moment, followed them and went into the rest room where he saw the person hand $12 to Durazo in exchange for a balloon. Durazo said to Anderson: 'I don't know you, man. You didn't have to follow us. I'm not going to burn you.' Anderson replied that he had been burned a few times and he was not letting his money get out of his sight. Then the person handed the balloon to Anderson, and they (Anderson and the person) left.
With reference to Count 2, Officer Anderson testified, before the grand jury, that on April 16, 1957, about 11:50 a. m., he met Raymond Durazo on the sidewalk in front of a food market, and he asked Durazo if he had 'a half.' Durazo replied, 'Yes, you got $12.00?' Anderson replied, 'Yes.' Durazo asked him to go into the market. Anderson followed Durazo into the market where he (Anderson) handed $12 to Durazo. Anderson asked him if it was good stuff. He replied, 'Yes. Here's three and two.' At that time Durazo handed two pieces of balloon to Anderson.
With reference to Count 3, Officer Anderson testified, before the grand jury, that on April 17, 1957, about 2:20 p. m., he met Raymond Durazo on a street, and he asked Durazo if he had three for seven. Durazo said that he had a half. Anderson said that he had only $7.00. Then Durazo, after taking numerous pieces of balloon from his mouth, said that he had only two for five. Durazo handed a piece of balloon to Anderson, and Anderson gave him $5.00.
The balloons, above referred to, contained heroin.
Defendant was arrested on September 9, 1957.
At the trial, Officer Anderson, who was called as a witness by the prosecution, testified that he met the defendant on April 12, 1957, and at that time Anderson was 'with what is known as a confidential informant.' Anderson testified further that he desired, with reference to Count 1, to claim his privilege, under the Code of Civil Procedure, with reference to giving the name of the informant; that he believed it would jeopardize the informant and would not be in the public interest for him to name the informant.
The prosecution made a motion to dismiss Count 1, stating that the informant participated in the transaction involved in that count. Counsel for defendant objected to the granting of the motion, and said he wanted to cross-examine the officer as to Count 1--that it had a bearing as to his credibility with reference to Counts 2 and 3. The ruling on the motion was reserved. (Later, the judge referred to the motion, but did not rule directly upon it--he found the defendant not guilty as to Count 1.) The heroin which was involved in Count 1 was not offered in evidence during the trial.
At the trial, Officer Anderson testified further, in response to questions by the deputy district attorney, that the defendant was the person referred to by him at the grand jury proceeding as Raymond Durazo; he had not known the defendant before April 12, 1957; on that day he and his informant approached the defendant, and the three of them had a transaction; at the transaction on April 16, no one else was present other than Anderson and defendant; at the transaction on April 17, a woman was with Durazo, but he (Anderson) did not know her name and she did not participate in the transaction; the person he saw on April 12, with his informant, is the same person he saw on April 16 and 17; in each of those instances the person sold something to Anderson; that person is the defendant; it was Anderson's job to appear to be engaging in narcotics traffic, and to make purchases and arrest persons engaged in selling narcotics; to assist him in that purpose to get a contact, he used the informant; the informant assisted him in contacting defendant Durazo; on the fourth and fifth days after he first contacted defendant, he was able, without the informant, to make 'buys' from the defendant.
Further, on cross-examination, counsel for defendant asked Officer Anderson the name of the informant who was with him on April 12. The deputy district attorney objected to the question on the ground that the name was irrelevant and immaterial, and on the further ground that the officer had claimed his privilege to refuse to answer because the disclosure would not be in the public interest. The judge sustained the objection as to Counts 2 and 3. The witness said that he refused to answer, under the provisions of section 1881 of the Code of Civil Procedure, on the ground that it was not to the best interest of the public. The deputy district attorney offered the balloons and heroin, with respect to Counts 2 and 3, in evidence. Counsel for defendant objected to the offer and made a motion to strike out all the testimony of the officer. The objection was overruled, and the motion was granted as to the evidence with respect to Count 1, and was denied as to the evidence with respect to Counts 2 and 3.
Defendant testified that he did not sell any narcotics to Officer Anderson in April; he had never seen Officer Anderson before; he did not know (at the time of trial) where he was or what he did on April 12 or 16 or 17, 1957; he was not working during April; he did not know the name of any alleged informant who was supposed to be with Officer Anderson on April 12.
Appellant contends, as above stated, that the court erred in not requiring the officer to disclose the name of an informant. Appellant's asserted defense was that he did not sell the heroin, and there was misidentification of him as the one who sold it. Approximately five months elapsed from the times of the sales to the time defendant was arrested. At the trial, the prosecution conceded that a case had not been presented against defendant as to Count 1, since an informant participated in the purchase referred to in that count and the officer refused to disclose the name of the informant. The officer testified that he first saw defendant on April 12 and at that time an informant was with the officer and the defendant, and he saw the defendant sell heroin to the informant. The officer also testified that the person from whom he (officer) purchased heroin on April 16 and 17 was the same person from whom the informant purchased heroin on April 12. It thus appears that the officer in identifying the defendant as the seller on April 16 and 17 (Counts 2 and 3) based his identification in part upon his alleged remembrance that the person from whom he purchased heroin on those days was the same person from whom the informant purchased heroin on April 12 (Count 1). In view of that testimony it is reasonable to conclude that the informant would be a material witness as to whether or not the defendant was the person who sold heroin to the informant on April 12 when the officer was present. Consequently, the testimony of the informant with reference to that matter would be material as to whether or not defendant was the person from whom the officer purchased heroin on April 16 and 17. Defendant testified that he did not know the name of any informant who was supposed to be with the officer on April 12. In People v. McShann, 50 Cal.2d 802, 330 P.2d 33, 36, it was said: 'There is general agreement that there is no privilege of nondisclosure if disclosure 'is relevant and helpful to the defense of the accused or is essential to a fair determination of a cause. * * *'' It was also said in that case at page 808 of 50 Cal.2d, at page 36 of 330 P.2d: 'When it appears from the evidence, however, that the informer is also a material witness on the issue of guilt, his identity is relevant and may be helpful to the defendant. Nondisclosure would deprive him of a fair trial. Thus, when it appears from the evidence that the informer is a material witness on the issue of guilt and the accused seeks disclosure on cross-examination, the People must either disclose his identity or incur a dismissal.' In Mitchell v. Superior Court, 50 Cal.2d 827, 330 P.2d 48, 49, it was said: 'A defendant is entitled at his trial to ascertain on cross-examination the name of an informer who is a material witness on the issue of guilt.' In the present case the defendant was entitled to ascertain on cross-examination the name of the informant who was a material witness on the issue of identification. The trial court erred prejudicially in sustaining the prosecution's objection to the defendant's question wherein he asked the name of the informant.
The judgment of conviction and the order denying the motion for a new trial are reversed.
VALLEE, J., concurs.
SHINN, P. J., dissents. --------------- * Opinion vacated 340 P.2d 594.