Mitchell v. Superior Court In and For City and County of San Francisco

• Decision Date: 27 January 1958
• Court: California Court of Appeals Court of Appeals
• Parties: Martha MITCHELL and Milton Flynn, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO, Respondent. * Civ. 17638.

Page 106

321 P.2d 106

Martha MITCHELL and Milton Flynn, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO, Respondent. ^*

Civ. 17638.

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

Jan. 27, 1958.

Hearing Granted March 26, 1958.

Opinion, 313 P.2d 170, vacated.

Arthur D. Klang, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

When arraigned upon informations charging them with violations of sections 11500 and 11557 of the Health and Safety Code (possession of heroin, two sales of heroin, and maintenance of a place for the sale of narcotics) the defendants moved to set aside the informations upon the ground that before the filing thereof the defendants had not been legally committed by a magistrate (Pen.Code, §§ 995-996), assigning violation of their constitutional rights to due process as the basis of the illegality. Upon denial of the motion defendants petitioned this court for a writ of prohibition restraining further proceedings upon any of the informations.

They do not claim that there is a lack of competent evidence to support the magistrate's findings that it appears to him that the offenses charged have been committed and that there is sufficient cause to believe the defendants guilty thereof. See Penal Code, § 872.

They predicate the asserted illegality of the commitment upon the refusal of the magistrate, during the preliminary examination, to allow them to ask the prosecuting witnesses the names of or other means of identifying two informant-participants.

At the preliminary examination, police officers testified to being informed by two 'reliable informers' that defendants were selling narcotics in their apartment. After stripping and searching the informants and removing all articles in their clothing, the officers gave each $20 in bills, the serial numbers of which were recorded, and escorted the informants tod efendants' apartment. The bills were dusted with fluorescent powder invisible to the naked eye. Separately the informants entered the apartment and in a few minutes returned. They were then searched. The bills were gone and each had a bindle of heroin. The officers then waited in front of the apartment door for approximately 10 to 15 minutes. It was opened by defendant Mitchell, who was immediately placed under arrest. She dropped a package from her hand to the floor. It contained heroin. In the bedroom they arrested defendant Flynn. Four bindles were found on his person. Behind one of the dresser drawers they found the bills given to the first informant. They did not find those given the second informant. With a black box they observed fluorescent powder on both hands of Mitchell and on the fingertips and shirt of Flynn. On cross-examination the officers refused to divulge the names of the informant-participants. ¹

The petitioning defendants have made no showing that they lack the information thus sought. Indeed, they insist that there is no requirement that they make such a showing. The judge who presided at the preliminary examination said to defense counsel: 'You haven't shown the Court, excepting by your own statement, that it would be useful.' Counsel replied: 'Now, these cases hold that it is not necessary to make a specific showing. That, automatically, is useful to the defendant. In other words, the mere fact that the defendant pleads 'not guilty,' and denies that these sales took place, then it automatically becomes useful, and the cases so hold. We don't have to get up here and make a specific showing as long as we have denied that the sales took place.'

We are not impressed by the prosecution's argument that a defendant in such a situation should make a showing that he does not know the identity or the whereabouts of the informant-participant. Nor need he show how and to what extent, if at all, that information might be useful to him. We are dealing with the prosecution's case, the presentation of its evidence tending to support its burden of proving legal cause for the arrest and seizure. In that process, through its key officer-witnesses, it presents a pivotal witness, a faceless witness, one who speaks only through the mouth of another. The right through cross-examination to ascertain the identity of this faceless witness is not dependent upon any offer of proof or showing of need for the information; no more so than is the right to counsel dependent upon an offer of proof or a showing that one needs an attorney.

Nor are we impressed by the contention that because a defendant does not have the right of cross-examination before the grand jury when it indicts he does not have it as a fundamental right when being examined before a magistrate anticipatory to the filing of an information. The framers of our Constitution prescribed different modes for prosecution by information and prosecution by indictment and the Legislature has implemented the distinctive methods thus prescribed.

The state suggests that defendants demonstrated knowledge of the identity of one of the informer-participants when their counsel asked if his name is Joseph Fonteno and if he lives at 1226 Masonic Street, even though he got no answer. That is an obvious non-sequitur.

We entertain no doubt of the right of a defendant, at a preliminary examination, to confront the prosecution's witnesses and cross-examine them. Pen.Code, § 865.

The only basis urged by the prosecutor for his objection to the questions asked at the preliminary is the policy of nondisclosure of 'Communications made' to a public officer 'in official confidence, when the public interest would suffer by the disclosure.' Code Civ.Proc., § 1881, subd 5. That policy does not prevail in the case of informant-participants. In this case we have informant-participants. They did not merely point their fingers at the defendants, leaving to the officers the task of finding evidence of crime. They participated with the defendants in effecting the very sales which the informations later filed charge the defendants of having made in violation of law; alleged sales concerning which only they and the defendants could testify as eye-witnesses.

The policy of nondisclosure does not obtain in such a case. It was held in People v. Lawrence, 149 Cal.App.2d 435, 450, 308 P.2d 821, 830, that upon the trial of a case this policy yields to the right of a defendant to defend himself: 'To deny the defendant the right to examine an officer regarding the name of or to ask other material questions concerning an informant-participant would be to suppress an essential element of the res gestae. The crime is committed when the sale is made and not when the informant delivers the contraband to the officers and tells them about the sale.'

The reasoning by which the court in the Lawrence case applied this principle to a hearing on voir dire held out of the presence of the jury, is persuasive of its applicability to the preliminary examination: 'Although the question of the guilt of the defendant is not before the court, nevertheless, the defendant has the same right to present his defense at the hearing to determine the reasonableness of an arrest or search as he does on the question of his guilt. The fact that the hearing is held before the court in the absence of the jury makes it no less a criminal proceeding. Due process applies and all the rights the defendant may have at the trial proper apply with equal force and dignity to the proceedings before the court sitting in the absence of a jury.' At page 451 of 149 Cal.App.2d, at page 831 of 308 P.2d.

One of the latest cases on this subject is People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79, 81 (hearing by Supreme Court denied), reversing a conviction because of the prosecution's refusal to disclose the identity of an informer-participant. In a cogently reasoned opinion Mr. Justice Dooling exhaustively reviews the pertinent authorities and says in part: 'The possible importance of this person's identity to the defense is just as great whether he happens to be a government informer or not. In either event, if the defendants had the opportunity to interview him and call him as a witness, he might contradict the testimony of the officers completely or in part. He might deny that he was present at all, or participated in any of the transactions. He might corroborate the officers as to the telephone calls and the purchases of narcotics but testify that the persons to whom he talked and from whom he made the purchases were persons other than the appellants. It would be intolerable if the government could convict its citizens of crime and thereby deprive them of their liberty and civil rights while denying them the opportunity to produce a witness or witnesses to the alleged crime, whose identity is known to the witnesses who testify against him. The defendant is entitled as a matter of due process of law to be allowed to interview and produce any witness who might give evidence favorable to his defense, and when a witness who testifies to the commission of a crime testifies that another person or other persons were also present, and particularly where such other person or persons according to the testimony were active participants, the right of the defendant to the disclosure of the identity of such person or persons on cross-examination seems too clear for successful contradiction. If this was a case without precedents logic and the basic constitutional guaranty of due process would compel this conclusion, but it is not a case without precedents.' 153 Cal.App.2d at page 657, 315 P.2d at page 81. 'It is the deprival of the defendants of the opportunity of producing evidence which might result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may...