People v. Avila
|California Court of Appeals
|61 Cal.Rptr. 441,253 Cal.App.2d 308
|08 August 1967
|PEOPLE of the State of California, Plaintiff and Respondent, v. Fred AVILA, Defendant and Appellant.
Ronald L. Ruiz, San Jose, for appellant (Under appointment of Court of Appeal).
Thomas C. Lynch, Atty. Gen. of State of California, San Francisco, John T. Murphy, William D. Stein, Deputy Attys. Gen., for respondent.
Defendant, after a court trial, has appealed 1 from a judgment convicting him of two counts of selling marijuana in violation of section 11531 of the Health and Safety Code, and sentencing him to state prison after the denial of his motion for probation.
The People established two sales: one on January 11, 1966, and one on January 24, 1966, each of which was consummated through the intervention of an informer whose identity, if not his perfidy, was well known to the defendant, but was not disclosed in the indictment or the proceedings before the grand jury which led to the charge. Defendant does not deny that he furnished marijuana to a state agent and the informer nor that he took their money. He claims that he was entrapped by the informer for whom he merely did a favor in acting as go-between to secure the marijuana; and that he was denied due process of law because, under the circumstances of this case, in which the prosecution was in communication with the informer up to and including the time of trial, there was an obligation on the prosecution to produce him as a witness.
This case involves the existence and extent of the obligation of the prosecution to facilitate the production of an informer as a witness, and the question of whether on the facts presented the prosecution violated such obligation. (See People v. Kiihoa (1960) 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673.) It is concluded that there was no obligation on the prosecution to produce the informer; that there was a duty to disclose his identity and whereabouts, as known, and not to impede or interfere with the defendant's right to attempt to secure him as a witness; that the duty of disclosure was fulfilled; and that, under the facts of this case, the trial court's finding that there was no such interference on the part of the prosecution is sustained by the evidence.
The facts concerning the transfer of, and payment for, the marijuana, are not disputed in most particulars. It is, therefore, appropriate to consider the respective relationships of the defendant and the prosecution with the informer. A chronological summary places his activities, and those of the other parties involved, in proper perspective.
The defendant, a young man, aged 23 at the time of the trial, testified that he had known Ronald Lopez, the informer, ten or fifteen years, and would have included him among his five or six best friends. The members of their respective families were friends and met frequently. He knew that Lopez had been using marijuana for five years, and had also sold it. In fact, during the period from March 1965 until March 1966, the defendant, according to his own testimony, had smoked marijuana with Lopez six or seven times. Lopez allegedly furnished the marijuana.
In January 1965, Lopez married a Pat Robertson, who was 19 at the time of the trial. She testified that she was separated from Lopez and would be eligible for a final decree of divorce August 11, 1966.
During the period from May 1965 to the latter part of July 1965, Lopez was in the Watsonville City Jail, where he served as a trusty. Mrs. Lopez testified she visited him frequently in jail, and that during one of these visits she participated in a conversation between Lopez and Gerald Fagundes, a detective with the Watsonville Police Department, in which the three of them discussed the detective's proposal that Lopez work with him to break up a local prostitution ring. The detective indicated Lopez would be compensated every time he assisted. Fagundes denied contacting Lopez while he was in jail. Questioning on cross-examination of Mrs. Lopez indicated that Fagundes, Lopez and others were in fact involved in some conversation on that subject matter, which, despite the questioner's attempts to so establish, the witness did not consider facetious.
Fagundes, who was first called as a witness for the defendant, and subsequently, under circumstances hereinafter set forth, as the court's witness, testified that Lopez, whom he had known about six years, had acknowledged that he had some information about narcotic traffic in the City of Watsonville; that a meeting was arranged with state narcotic agents around the first of September 1965; that for the next six or seven months there was a general investigation in which Lopez participated; and that he never gave Lopez any money, nor, to his knowledge, did any local law enforcement agency do so.
Agent Armenta acknowledged that from August 1965 until sometime in February 1966, as 'buy program' was conducted in the Watsonville area; that he saw Lopez several times a week, possibly every other day during this period; and that Lopez was paid for the expenses he incurred for food, money paid out, and things like that.
Agent Verbrugge, who observed a portion of the activities resulting in defendant's conviction, stated that he and Armenta were introduced to Lopez by Fagundes in September 1965; and that he worked with Lopez and saw him two or three times a week during the buy program.
Field Supervisor Ojeda, who testified for the prosecution concerning the custody of the evidence received on January 24th was thereafter called as a witness by the defendant. He testified that Lopez was paid by Agent Armenta, that he received the agent's vouchers, that Lopez received $5, $10, or possibly $15 at a time for expenses, and that the total did not exceed $100.
According to Mrs. Lopez, at the time her husband was released from jail in July 1965 she was not living with him, but was living in Santa Clara, where she resided for about two months. She came down to Watsonville every weekend, and in August moved in with Lopez at his mother's house for about a week. According to her testimony, Lopez had ample spending money during all this period. He had marijuana in his possession most of the time, smoked it, and on two or three occasions she saw him pass it to others in return for money.
In response to defendant's cross-examination, Agent Armenta testified that at the end of August or first of September 1965, the defendant was first pointed out as an alleged source of supply; that at that time the defendant's brother sent Armenta and Lopez to the defendant's home to purchase marijuana, but that the defendant was not there. He did not know whether Lopez had attempted to make other purchases from defendant. The defendant testified that from November 1965 through February 1966, Lopez persistently importuned him by telephone and in person to secure marijuana to satisfy the informer's habit.
The defendant acknowledged that on January 10th he asked around for marijuana without success; that on the 11th he found a source and told him he would advise him later how much he wanted for his contact; that Lopez telephoned him and, upon being advised of defendant's find, ordered two 'cans,' and arrangements were made to meet at 4:30 p.m. 2 Lopez and Armenta picked up the defendant at his residence in Watsonville, and drove to a place designated by him. The defendant then left the car with $40 which had been paid to him and subsequently returned with two candy bars (observed), and two cans of marijuana (concealed). Defendant put the marijuana under the passenger side of the front seat where it was subsequently retrieved by the agent, in accordance with the defendant's instructions. The only discrepancies between the agent's account and that of the defendant are with respect to the manner in which Lopez designated the agent when he introduced him to the defendant, 3 and the defendant's insistance that all his dealings were with Lopez rather than, as the agent testified, with Armenta. The agent further testified that defendant admitted that he had been smoking marijuana for approximately 13 years, did not believe it was bad and believed alcohol was worse, and that the agent's attempt to haggle over the price was countered with defendant's statement that he had been doing business with his sorce for a long time and had never been able to get a break in the price.
Defendant testified that after the incident on the 11th there were further calls from Lopez who said his uncle took most of the marijuana; that on January 23rd he told Lopez that he 'didn't want to get in any more trouble or anything because me and my wife had split up and I wanted to go back with her * * * she didn't want me * * * to mess around with any marijuana'; that Lopez insisted and offered defendant $10 if he would get him some more; that he (defendant) ultimately assented and on the 24th he went downtown keeping an eye open for the source; that the source confronted him and said he had more available; that he met Lopez, who wanted four cans so he could split with his uncle and another friend; that he arranged to meet him in the park at 3 p.m.; and that he then returned to the source, secured the four cans and his them in his mother's back yard.
The agent and defendant each testified that defendant drove up with a friend and met Lopez and Armenta in the vicinity of the downtown park; that defendant asked Lopez to come with him to get the marijuana, but rejected Armenta's overture to come along, and then told them both to meet him at another park in a few minutes. Defendant went with his friend to get the marijuana, and, according to his version, returned to the rendezvous, observed the purchasers' car, threw the contraband in the weeds, approached the passenger side of the other...
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