People v. Alvarez
| Decision Date | 25 October 1957 |
| Docket Number | Cr. 5871 |
| Citation | 154 Cal.App.2d 694,316 P.2d 1006 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Herman ALVAREZ and Dolores K. Padilla, Defendants. Dolores K. Padilla, Defendant and Appellant. |
Nathan Kline, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., and Lynn Henry Johnson, Deputy Atty. Gen., for respondent.
Defendants Albert H. Alvarez and Dolores K. Padilla were charged with violation of section 11500 of the Health and Safety Code in that they unlawfully sold heroin. In a jury trial they were convicted. Padilla appeals from the judgment and the order denying her motion for a new trial.
On June 15, 1956, about 3 p. m., while Deputy Sheriff Valesquez and a confidential informer were on a motorcycle on their way to Languna Park in Los Angeles, the informer said he (informer) could purchase narcotics from Alvarez whom he expected to see at the park. The deputy was wearing plain clothes (not a uniform). As they were walking into the park, the deputy saw defendants Alvarez and Padilla sitting, next to each other, on the grass in the park. Then the deputy saw Padilla get up, walk about 30 feet, and meet an unidentified Mexican woman. At the time of that meeting, the deputy was about 40 or 45 feet from them. He saw Padilla take a finger stall from her bosom, and then hand some capsules to the woman. The finger stall was about an inch and a half long and about half an inch wide. Green bills, which appeared to be money, passed between Padilla and the woman. Then the woman left the park, entered an automobile and went away. Then the informer went to Alvarez and had a conversation with him. At the time of that meeting, the deputy was about 30 feet from them. After that conversation Alvarez went to the place where Padilla was standing (the place where Padilla met the Mexican woman); and the informer returned to the deputy. The deputy saw Padilla 'hand some capsules out of that same finger stall' to Alvarez, and Alvarez put them in a cellophane package. At that time the deputy was about 45 or 50 feet from them. Then Alvarez came to the place where the informer and the deputy were standing. Alvarez directed the deputy to give the money to the informer. Then the deputy handed a $10-bill to the informer. The informer gave that bill and another $10-bill to Alvarez. (The deputy had previously given the other $10-bill to the informer.) After Alvarez received the two bills he dropped the cellophane package on the ground, and then he returned to Padilla. The deputy recovered the package (Exhibit 1) which contained 10 capsules of powder. Then he left the park and met his surveillant officers and desplayed the package.
Deputy Cook testified substantially the same as Deputy Valesquez had testified with reference to the actions of Alvarez, Padilla and the informer, except that Deputy Cook said he observed Padilla 'reach down in her bosom and appear to remove a small object, which I could not definitely see.'
The cellophane package (Exhibit 1) contained heroin.
Defendant Padilla testified that in June, 1956, she did not give heroin capsules to a Mexican woman in Laguna Park; that in June, 1956, in Languna Park or any other place, she did not give heroin capsules to Alvarez to give to any one else; that she had been convicted of forgery, a felony.
Defendant Alvarez did not testify.
The attorney for defendant Alvarez asked Deputy Valesquez the following question: 'What is the name of the informer, Officer?' The deputy district attorney said: 'I object under Section 1881, subdivision 5 * * *.' The judge said: 'Objection sustained.' It will be assumed that the deputy district attorney intended to make the objection under the provisions of section 1881, subdivision 5, of the Code of Civil Procedure. That subdivision is as follows: 'A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.'
Appellant (Padilla) contends that the evidence was insufficient to support the judgment against her. She argues that certain testimony of Deputy Valesquez was inherently improbable. The testimony, so referred to, was that when he was about 45 or 50 feet from her he saw her take capsules from a finger stall and hand them to Alvarez. Appellant also contends that the court erred prejudicially in sustaining the objection to the question wherein the officer was asked the name of the informer. This last contention will be considered first.
In the present case the person referred to as an informer was more than a mere informer. He actively participated in the performance of the acts which allegedly constituted the offense charged. He went to defendant Alvarez and had a conversation with him, and immediately thereafter he returned to Deputy Valesquez. Then Alvarez went to Padilla and received something from her. Immediately thereafter Alvarez went to the informer and Deputy Valesquez and told the deputy to give the money to the informer. Thereupon the informer gave money to Alvarez, and then Alvarez dropped the heroin. It thus appears that the informer delivered the purchased money to Alvarez for the purpose of paying for the heroin, and that the informer was the purchaser of the heroin.
The court erred prejudicially in not requiring the officer to disclose the name of the informer. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; Portomene v. United States, 5 Cir., 221 F.2d 582; Sorrentino v. United States, 9 Cir., 163 F.2d 627; People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821.
In People v. Lawrence, supra, it was said 149 Cal.App.2d at page 452, 308 P.2d at page 831: 'When an informant becomes a participant in the crime charged against the defendant, he and the people lose the right to keep his identity anonymous.'
In Portomene v. United States, supra, 221 F.2d 582, it was said at pages 583 and 584:
In Roviaro v. United States, supra, 353 U.S. 53, at page 55, 77 S.Ct. 623,...
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