People v. Barone

• Decision Date: 08 May 1967
• Docket Number: Cr. 12546
• Citation: People v. Barone, 58 Cal.Rptr. 783, 250 Cal.App.2d 776 (Cal. App. 1967)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Godfrey Joseph BARONE, Defendant and Appellant.

Page 783

58 Cal.Rptr. 783

250 Cal.App.2d 776

The PEOPLE of the State of California, Plaintiff and Respondent, v.Godfrey Joseph BARONE, Defendant and Appellant.

Cr. 12546.

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

May 8, 1967.

Rehearing Denied May 31, 1967.

Hearing Denied July 5, 1967.

Eugene A. Rudolph, Sherman Oaks, for appellant, by appointment of the Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Phillip G. Samovar, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was convicted of four counts of selling heroin (§ 11501,Health & Saf. Code), and allegations that he suffered two prior convictions were found to be true; he appeals from the judgment.

On August 20, 1965, undercover narcotics officer Rudy Limas and an informant named Joe met defendant at Third and Hill Streets.Joe said to defendant, 'I have been looking for you'; defendant answered, 'Let me borrow your kit,' to which Joe replied, 'He(Officer Limas) has got one, * * * but his buddy has it and he is somewhere around here.Come on and I will help you find him.'Defendant said, 'But I need it right now.Give me a kit and I will give you half of these,' and opened his mouth showing Officer Limas six to ten balloons inside.Joe then said, 'Well, we want a half right now,' and told Officer Limas, 'Give your money to him (defendant).'The officer handed defendant a $10 bill and defendant handed him one blue balloon containing heroin which he took from his mouth.

Five days later Officer Limas alone met defendant at Fourth and Main Streets and said to him, 'Hey, have you got anything today?'Defendant replied, 'Walk over to Main,' then, 'Where have I seen you before'; the officer replied, 'Don't you remember?I scored from you the other day when I was with Joe'; then the officer said, 'Well, have you got anything or not, because I have to go'; defendant replied, 'Yes, I have some,' whereupon the officer handed him a $10 bill for which defendant handed him one yellow balloon containing heroin which he took from his mouth.

On August 26, Officer Limas and Joe met defendant on West Third Street; Joe said to defendant, 'Hey, have you got anything today?'; defendant made a sign with his head meaning yes, and Joe told him to 'get it right away.'The officer moved closer to defendant and told him, 'Give me a half,' handing him a $10 bill for which defendant handed him a yellow balloon containing heroin which he took from his mouth.

On August 30, the officer and Joe met defendant at Fourth and Hill Streets; Joe asked defendant, 'Pass over a half.'Joe told the officer to give defendant the money.Officer Limas got close to defendant and said, 'Give me a half' and handed him a $10 bill.Defendant instructed him to 'Put out your hand.'He did so and defendant dropped a balloon containing heroin from his mouth into the officer's hand.

Appellant's main contention is that the People's failure to produce Joe as a witness constituted a violation of his rights of confrontation and due process, relying upon People v. Williams, 51 Cal.2d 355, 333 P.2d 19;People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673;andPeople v. Durazo, 52 Cal.2d 354, 340 P.2d 594, 76 A.L.R.2d 257.The instant case is not factually similar to Williams, Kiihoa or Durazo.In People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673, the prosecution was deliberately withheld while the informer was available, and the cause proceeded to trial only after the witness had left the jurisdiction.The court found that 'the deprivation of due process was admittedly occasioned by state action.'(P. 754, 3 Cal.Rptr. p. 5, 349 P.2d p. 677.)In People v. Williams, 51 Cal.2d 355, 333 P.2d 19, the officer refused to disclose the identity of the informer; as too in People v. Durazo, 52 Cal.2d 354, 340 P.2d 594, the officer claimed the privilege of nondisclosure.In the case at bar, there was neither a deliberate delay of the trial until the informant had left the jurisdiction or any other state action depriving the accused of due process, nor a refusal to disclose his identity; and as said in People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673, 'It is not intended to hold that the mere unavailability of a material witness would necessarily result in a denial of due process in every case.'(P. 754, 3 Cal.Rptr. p. 5, 349 P.2d p. 677.)

Officer Limas testified on cross-examination at the preliminary hearing that Joe is the only name by which he knew the informer whom he had met for the first time on July 19, 1965; during the time he knew Joe he would 'run into him' numerous times around the market area; his superior officer, Lieutenant Guindon, Narcotic Division, gave him money to give to Joe whenever Joe went with him and participated in a sale, and kept track of the money on a piece of paper, a calendar and a book, but Lieutenant Guindon's notations consisted only of the amount of money given and the officer's name and did not state Joe's full name.Through a series of discovery proceedings had prior to trial, defendant was given the following information under oath by Officer Barber: prior to the buy program instituted in August 1965 by the police department he knew an informer by the name of Joe; Joe contacted him under the name of Carols--'I believe his name to be Carlos Morales'--although he was not certain of the last name; in June or July 1965, he introduced him to Officer Limas by the name of Joe who went with him on the street under that name; he had known Carlos Morales about six weeks; originally Morales came to the Narcotic Office on his own volition and was known to be a narcotic user; to his knowledge Morales has not been, nor has he seen him, in police custody; at the time he introduced Carlos Morales to Officer Limas, the former was living at the Northern Hotel, Second and Hill Streets, Los Angeles; he does not have a mug photograph of Morales, nor does he know whether he has ever been on probation or parole.Defense counsel subpoenaed Officer Dorrell in connection with other arrests but Officer Dorrell testified that he knew no one by the name of Carlos Morales, Joe, or Crazy Joe, and to his knowledge this person had not been involved in the arrest of any of the persons about whom he was questioned.

There is no showing that the prosecution refused to disclose the identity of the informant or that any state action deprived the defendant of identifying or locating him; to the contrary, the record shows that the prosecution cooperated in the disclosure of all information concerning the informant possessed by the officers.The fact is that they knew very little about him.Moreover, defense counsel conceded in the trial court that his pretrial investigation failed to show 'that the People are secreting this witness.'He also advised the court that Sergeant Barber told him that he indicated to the informant at the end of the buy program that they would not need him as a witness, but the record does not show this; nor does the evidence establish that the prosecution encouraged him to disappear.

"Yet the cases have uniformly held that in the void of specific testimony that the police encouraged the informer to disappear (as was the case in Kiihoa), the courts cannot infer improper motives or activities on the part of the officer, but must presume that the officers regularly and lawfully performed their duties (People v. Farrara, 46 Cal.2d 265, 294 P.2d 21), as well as that the payment for and termination of an informer's employment is not in and of itself 'encouraging him to disappear.'(People v. Wilburn, supra(195 Cal.App.2d 702, 16 Cal.Rptr. 97).)"(People v. Galvan, 208 Cal.App.2d 443, 448, 25 Cal.Rptr. 128;People v. Sauceda, 199 Cal.App.2d 47, 56, 18 Cal.Rptr. 452, 457.)

While the People did not call the informant, they are 'not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial.People v. Tuthill, 31 Cal.2d 92, 98, 187 P.2d...