Opinion
Hearing Granted July 15, 1960.
Opinion vacated 9 Cal.Rptr. 233.
Arthur D. Klang, San Francisco, for appellant.
Stanley Mosk, Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., San Francisco, for respondent.
DRAPER, Justice.
Early in 1957 complaints were filed charging Hazel and Garfield Hammond with certain narcotics violations. During the preliminary hearing in this matter, held on February 6 and 26, 1957, the defendants made repeated but unsuccessful demands for a disclosure of the identity of the prosecution's informant. The municipal court then bound the defendants over to the superior court.
Informations were filed in that court, and defendants' motion to dimiss under section 995 of the Penal Code was presented and argued. Other cases then pending on appeal involved the question of disclosure of the name of an informer. Apparently by Thereafter, People v. Lawrence,
People v. McShann, Priestly v. Superior Court, Mitchell v. Superior Court,In accordance with the rule announced by these decisions, the informations against defendants in the case at bar were dismissed October 31, 1958. The complaints were refiled.
In the ensuing preliminary hearing held on December 10 and 26, 1958, the prosecution called a state narcotics inspector who disclosed the informant's identity and the fact that he had been killed in an automobile accident in July, 1957. The parties submitted the matter on this plus the transcript of the original preliminary hearing, and the court again bound defendants over to the superior court.
Thus, on January 7, 1959, by information filed in the superior court, the district attorney commenced the action here involved. He thereby charged Hazel and Garfield Hammond with violations on two counts of section 11500 of the Health and Safety Code (illegal sale, possession, and transportation of narcotics) and with violation on one count of section 11557 of that code (maintenance of illegal resort for narcotics). By separate information he further charged Garfield Hammond with violations on four counts of Section 11500. The defendants were arraigned on January 28, 1959, following which they moved to dismiss under subdivisions 1 and 2 of section 995 of the Penal Code (illegal commitment before the filing of the information and commitment without reasonable or probable cause). Upon being advised of Hazel Hammond's demise, the court ordered the information against her dismissed. After hearing, the court denied defendant Garfield Hammond's motion to dismiss. The latter pleaded 'not guilty' to all counts of both informations and waived jury trial. The cause having been submitted or the transcripts of the above-mentioned preliminary hearings, the court found defendant guilty on Count II only (illegal possession) of the first information and guilty on Counts I and III (illegal sale) of the second information.
During the original preliminary hearing upon the transcript of which this matter was submitted, the state produced testimony which tended to establish the following:
At approximately 7:30 p. m. on December 5, 1956 Inspector Louis Noel of the State Bureau of Narcotics Enforcement met a confidential informant known to Noel as 'Junior' at Noel's office.
During this meeting Noel dialed WEst 1-9654, a telephone number supplied by the informant. Noel then monitored while the informant talked to someone who identified himself as 'Garfield.' The speakers made arrangements to meet at a designated intersection at about 9 p. m. that evening.
Immediately thereafter Noel searched the informant and found no narcotics. He then gave the informant $60 in marked funds and drove him to the appointed meeting place. Noel parked and the informant crossed the street. At 9:10 p. m. the appellant approached in an automobile, picked up the informant, and drove away.
Inspector George Ohlson of the State Narcotics Bureau and San Francisco Police Officer Logan followed them to Post and Scott Streets, where the appellant left the At 9 p. m. on the following evening, December 6, 1956, Noel again met the same informant in the former's office. On this occasion the events of the preceding evening were repeated without variation, except that this time the appellant drove the informant to the intersection of Scott and McAllister Streets where the latter awaited him.
At 2 p. m. on January 11, 1957 Noel again met the same informant in the former's office. During this meeting Noel dialed WAlnut 1-2607, a number which the informant had supplied. Then, while Noel monitored, a voice which identified its owner as 'Hazel' told the informant that Garfield was upstairs, and to 'come right over.' Noel then searched the informant and found no narcotics. He thereupon gave him $20 in marked funds and drove him to the intersection of Eddy and Webster Streets. From there Noel followed the informant on foot to 1377 Ellis Street where the latter entered, emerging some three minutes later with Hazel Hammond. These two then proceeded to the flat above, numbered 1375, where Hazel Hammond unlocked the door and the informant entered alone. At 2:35 p. m. he came out and returned to the intersection, where he gave a package of heroin to Noel.
The informant told Noel that the appellant was in the above-mentioned house, that he had sold the informant the heroin ($20 worth), that he had a lot more there in the back of the house which he was preparing to sell, that he was then under the influence of heroin, and that he had a gun.
Inspectors Noel and Ohlson and Officer Logan then proceeded to the rear of the building at 1375-77 Ellis Street, went up the back stairway, and, without ringing the bell or knocking, broke through the rear door of the upstairs flat. As they entered, they shouted to the appellant that he was under arrest for narcotics violation. They had no warrants, either for search or for arrest.
Upon entering, they found bindles of what later proved to be heroin, a white substance, a knife, a mixing spoon, and other paraphernalia on the kitchen table. They also found appellant, who was alone in the flat, and arrested him. Upon being shown the paraphernalia in the kitchen, the appellant upset the table, scattering the various items upon the floor.
Noel also testified that on January 9, 1957 the informant had twice gone to 1377 Ellis Street and returned with heroin, both times only after Noel had dialed a telephone call to WAlnut 1-2607 and had searched the informant.
It is not disputed that the informer was a material witness whose identity appellant was entitled to have disclosed when he demanded such disclosure at the first preliminary hearing in February 1957, both because he was a material witness who could testify to the several transactions in which he secured narcotics allegedly from appellant (People v. McShann, supra, 50 Cal.2d 802, 330 P.2d 33) and because the information which the officers testified that they had received from him was the only basis of probable cause for their forcible entry into his apartment without a search warrant and their subsequent search and seizure of narcotics therein (Priestly v. Superior Court, supra, 50 Cal.2d 812, 330 P.2d 39).
Obviously, appellant does not seek to cure this error by compelling disclosure on retrial. He has had that remedy quite as effectively as though his motion to set aside the first information had been denied and he had secured a reversal by writ or appeal. The rights won by Lawrence, McShann This case is wholly different from those in which reversal is ordered to compel disclosure. Appellant seeks discharge, not disclosure. He contends that since he might have called the informer as a witness at the 1957 preliminary and since that informer's testimony might have been helpful to his defense, he is entitled to a reversal which will terminate the proceeding and effect his complete discharge, even though competent evidence has established his guilt beyond a reasonable doubt.
Whatever problematical benefit appellant may have had from the informer's testimony would have occurred only if appellant had called the informer as his own witness at the 1957 preliminary. The prosecution was not required to call the informer as a witness (People v. Taylor, 159 Cal.App.2d 752, 756, 324 P.2d 715), nor to produce all witnesses who may have had some knowledge of the facts (People v. Price, 172 Cal.App.2d 776, 342 P.2d 437; People v. McCrasky, 149 Cal.App.2d 630, 309 P.2d 115). Nor is it required to produce the informer (People v. McShann, 177 Cal.App.2d 195, 2 Cal.Reptr. 71; People v. Alexander, 168 Cal.App.2d 753, 336 P.2d 565) or other material witness (People v. Bailey, 91 Cal.App.2d 578, 580, 205 P.2d 418) even though requested by defendant. Appellant has made no showing or suggestion that grounds for taking the deposition of the informer (Pen.Code, §§ 1336-1345; 1349-1362) existed at any time before his sudden death.
In determining whether the conjectural calling of the informer as a defense witness would have lent some speculative aid to the defense, we may look to the record. Here, as in Mitchell v. Superior Court, '(i)t does not appear that disclosure of the (name) of the (informer) was demanded to enable defendants to discredit the prosecution's evidence at the preliminary hearing or that they wished to use the (informer) as (a witness) at that hearing' (50 Cal.2d at page 830, 330 P.2d at page 50).
It may be noted that appellant's counsel is the same attorney who, in a brief quoted by the Supreme Court, said that to 'present a defense other than cross-examination in the preliminary hearing * * * would be a foolhardy thing to do' (Mitchell v. Superior Court, supra, 50 Cal.2d 827, 830, 330 P.2d 48, 50).
Here, as in Mitchell, the record contains nothing from which we can reasonably infer prejudice to appellant. There is nothing even remotely indicating that appellant would have called the informer as a witness at the preliminary, thus perpetuating his testimony for trial.
Even at trial of the case, appellant made no such showing. Neither he nor anyone else testified in his behalf. He tried the case solely on the evidence introduced at the preliminary. Decided cases present some guides for determining prejudice. For example, prejudice would clearly be shown if appellant had testified that he did not participate in the telephone conversation with the informer, did not meet with him, and did not possess narcotics (People v. McShann, supra, 50 Cal.2d 802, 330 P.2d 33; People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79); or had offered the alleged informer as a witness to deny the asserted transactions with appellant (People v. Lawrence, supra, 149 Cal.App.2d 435, 308 P.2d 821).
He did not seek to show that he had attempted to establish the whereabouts of the informer at the specific dates and hours of the alleged transactions between informer and appellant, a reasonably evident means of defense once he knew the informer's identity. He did not even attempt, at trial, to attack the credibility of the informer. On the first preliminary examination, although he did not have the name of the informer, he sought to interrogate People v. Prewitt,
Willson v. Superior Court,There is not even a thin thread of support for appellant's wholly hypothetical argument that the informer, if identified, would have been called at the first preliminary and would have aided the defense.
Of course, if there were any showing that the prosecution deliberately refrained from disclosure of the informer's identity until he ceased to be available as a witness this alone would give rise to the inference that the defendant was prejudiced. Where the prosecution deliberately defers filing of the action until after the informer has left the jurisdiction, reversal is required. (People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1.) The same result would seem even more clearly indicated if the prosecution had procured or connived at the removal of the informer from the jurisdiction.
Now that the requirement of disclosure of the informer's identity has been made clear, mere refusal to reveal the identity of the informer would seem to show prejudice, as it would indicate an intention of the prosecution to delay revelation until the informer had ceased to be available as a witness. Such conduct by the prosecution could give rise to the reasonable inference that the informer's testimony would aid the defense.
In the case at bar, however, there is no indication, or even suggestion, that the prosecution declined disclosure at the preliminary examination of February, 1957 from any such motive. It was not until May 22, 1957 that the decision requiring disclosure of identity of the informer-participant became final. People v. Lawrence, supra, 149 Cal.App.2d 435, 308 P.2d 821. Extension of the requirement to the informer whose tip supplies the basis for search and seizure was not announced until October 1, 1958. Priestly v. Superior Court, supra, 50 Cal.2d 812, 330 P.2d 39.
It seems clear that the prosecution, in an honest belief that disclosure was not required, withheld the identity of the informer at the first preliminary examination. There is no showing that the prosecution sought to await unavailability of the informer before disclosing his identity. The fact that the informer died before his identity was disclosed to appellant is wholly fortuitous.
The prosecution has met the burden of establishing appellant's guilt beyond a reasonable doubt. Appellant, although fully aware of the informer's identity before trial, has made no showing whatever that would in any way justify an inference that the informer's availability at trial might have aided his defense or weakened the prosecution's case. He asks us to base a reversal, which would preclude retrial, upon the basis that his problematical calling of the informer at the 1957 preliminary hearing would have resulted in a hypothetical benefit to him. We cannot accept his view.
The case seems to us indistinguishable from People v. McShann, supra, 177 Cal.App.2d 195, 2 Cal.Reptr. 71, in which this court affirmed the conviction although the informer had disappeared after the first trial, in which disclosure of his identity had been refused, and before the second trial which followed reversal by the Supreme Court upon the ground of such nondisclosure.
Judgment affirmed.
KAUFAMAN, Presiding Justice (concurring).
I concur.
I find no prejudicial error in the record before this court. The inability of appellant to produce the informant after disclosure by the prosecution was due to an act of God and in no way chargeable to the prosecution.
As we held in People v. McShann, 177 Cal.App.2d 195, 2 Cal.Rptr. 71, it is only when the prosecution has connived to procure the informer's absence that the defendant would be prejudiced.
People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, is not here in point. There, the People deliberately released the accused from custody rather than disclose the identity of an informer and waited until the informer was outside the jurisdiction of the state and immune from the court process, thus indicating an intention to avoid the purpose of the rule requiring disclosure of the identity of an informer.
In this case, the People followed the rule finally settled by our Supreme Court and the fact of the informer's death in an automobile accident cannot be said to violate any of the rights of the defendant. The death of any witness before or during trial whose testimony might be helpful to the defendant would not be in violation of the defendant's rights or of the People's rights.
Here, the guilt of the defendant as a narcotic peddler is clear and convincing and it would be unjust and unfair to set aside his conviction on the record before us.
DOOLING, Justice (dissenting).
I dissent.
Certain facts stand out in this record so clearly that no amount of rationalization can convince me that appellant has not been deprived of a clear legal right of which he could have availed himself to perpetuate the testimony of a material witness of whose testimony he has now been deprived for all time because that clear legal right was denied to him. I do not question the good faith of the prosecution in denying him that legal right, but good faith cannot be a defense to the deprivation of a defendant of a fundamental right to which he is legally and constitutionally entitled.
In February 1957 at the first preliminary hearing when appellant demanded it the prosecution had a legal choice between disclosing the identity of the informer or dismissing the complaint. People v. McShann, 50 Cal.2d 802, 330 P.2d 33; Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39. If they had dismissed the complaint and waited until after the informer's death to file another they must have failed under the clear holding of People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1. If they had revealed the informer's identity appellant would have had the right to call the informer as a witness at the preliminary hearing (Mitchell v. Superior Court, 50 Cal.2d 827, 829, 330 P.2d 48) and on his subsequent death such testimony would have been available to appellant upon his trial in the superior court (Pen.Code, § 686). The majority opinion enters into the realm of speculation and conjecture and concludes that if the identity had been disclosed the informer would not have been produced by appellant at the preliminary hearing. This conjectural conclusion cannot disguise the fact that appellant was illegally deprived of the opportunity of calling him and that opportunity is now lost irrevocably to appellant through the conduct of the prosecuting officers. It is as idle to speculate now as to what appellant would have done had he been given this opportunity as it would be to conjecture that, if the identity had been disclosed in February, 1957, at the preliminary hearing, the trial in the superior court would have been held before the informer's death in July, 1957 (Pen.Code, § 1382) and his testimony would have been available to appellant on that trial. It seems as clear to me as the first three letters of the alphabet that by deliberate official action (which no amount of official good faith can legally excuse) appellant has been deprived of a fundamental legal right and that the language of People v. Kiihoa, supra, 53 Cal.2d at page 752, 3 Cal.Rptr. at page 4 is completely apposite: 'The denial by the prosecution of an opportunity for the defendant to seek out the informer and to defend by these means, where the testimony * * * would be material to the issues, is unfair and oppressive to the defendant, and deprives him of due process of law.'
I would reverse the judgment.
Hearing granted; DOOLING, J., not participating.
BRAY and TOBRINER, JJ., sitting pro tem. in place of SCHAUER and DOOLING, JJ.