Alford v. Superior Court

• Citation: 29 Cal.App.3d 724,105 Cal.Rptr. 713
• Court: California Court of Appeals Court of Appeals
• Decision Date: 29 December 1972
• Parties: Odell ALFORD, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 31797.

Page 713

105 Cal.Rptr. 713

29 Cal.App.3d 724

Odell ALFORD, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 31797.

Court of Appeal, First District, Division 1, California.

Dec. 29, 1972.

Paul L. Rein, Berkeley, for petitioner.

Evelle J. Younger, Atty. Gen. of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Writs Section, Joyce F. Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for Respondent and Real Party in Interest.

MOLINARI, Presiding Justice.

Petitioner filed a petition for writ of prohibition seeking to restrain respondent court from proceeding to trial against him. An alternative writ was issued by this court restraining respondent court from proceeding to trial on count I of the information charging petitioner with the sale of narcotics. (Health & Saf. Code, § 11501.)

A motion for discovery of the identity and location of the material witness identified in police reports only as 'C.R.I.--007' was filed in the court below. This witness was conceded by the district attorney to be the man who was the actual buyer or cobuyer in the sale alleged. The motion was denied.

Subsequently, at the preliminary hearing, the subject witness appeared and testified under the admitted false name of Terry Kace.' Petitioner was denied the right to cross examine the witness as to his true name, identity, home address or location. At the conclusion of the hearing petitioner was held to answer to the superior court where he made a motion to set aside the information under section 995 of the Penal Code. This motion was denied and the instant proceedings seek a review of such denial.

The issue presented is whether the failure of the court to require 'Terry Kace' to testify as to his true name and identity denied petitioner his Sixth and Fourteenth Amendment rights to confront and cross-examine a material witness as to petitioner's guilt. Before proceeding to consider this question we set out the pertinent facts.

On January 13, 1972, a paid informant known as 'Terry Kace' or 'C.R.I.--007' made contact with a juvenile known as 'Sonny' in order to arrange for the purchase of narcotics. Sonny's telephone number was given to 'Kace' by the Berkeley Police Department. 'Kace' was taken to an apartment in Berkeley where he was introduced to petitioner from whom 'Kace' purchased a quarter-spoon sample of cocaine for $20, paying for the purchase with a marked bill given him by the Berkeley Police Department. 'Kace' was to purchase more cocaine if the sample was of acceptable quality.

That evening, at about 7 p.m., 'Kace' went to petitioner's apartment accompanied by a federal agent named Olson. Petitioner arrived at 7:45 p.m. Arrangements were made to buy an ounce of cocaine, with 'Sonny' acting as an intermediary. 'Kace' and 'Sonny' left the apartment to obtain the money. At this point Inspector Wallace arrived with a search warrant which had been obtained on the basis of the narcotic purchase made earlier in the day. 'Kace' told Wallace what had happened and 'Sonny' was placed under arrest. Fearing for Olson's safety, Wallace and other officers went inside petitioner's apartment. Upon entering the apartment the officers placed petitioner under arrest. The search of the apartment uncovered numerous narcotics. A search of petitioner's person also produced some narcotics.

Petitioner argues that the fact that 'Terry Kace' was permitted to testify against petitioner in the preliminary examination without revealing his true name and identity denied petitioner his right to confront and cross-examine a witness against him. As disclosed by the records, 'Terry Kace' was the only person present at the first purchase who is testifying against petitioner as to this transaction which forms the basis of the first count of the information. The record discloses that 'Kace' was an informer who works for the Berkeley Police Department on an hourly basis. His duties are to 'set up' narcotics purchases in connection with police investigation and suppression of narcotics activity.

We first observe that section 865 of the Penal Code pertaining to preliminary examinations, in pertinent part, provides as follows: 'The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.' In the instant proceeding petitioner sought to avail himself of the right of cross-examination. As part of such examination he asked 'Terry Kace' what his true name was. 'Kace' admitted that 'Terry Kace' was not his true name but refused to reveal his true identity. The court's response to petitioner's request that 'Kace' be required to give his true name was, 'The man may call himself anything he wants, so long as it is not used for the purpose of some illicit activity . . ..'

In Alford v. United States, 282 U.S. 687, 691--692, 51 S.Ct. 218, 219, 75 L.Ed. 624, the United States Supreme Court articulated the right of cross-examination as follows: 'Cross-examination of a witness is a matter of right. The Ottawa, 3 Wall. 268, 271, 18 L.Ed. 165. Its permissible purposes, among others, are that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood, (citations); that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment, (citations); and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased. (Citations.)'

Although the record does not disclose petitioner's purpose in inquiring as to 'Kace's' identity he should have been permitted to do so. As observed in Alford, 'Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. (Citations.) It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. (Citations.) To say that prejudice can be...