People v. Dewson, Cr. 3329

• Citation: 150 Cal.App.2d 119,310 P.2d 162
• Decision Date: 15 April 1957
• Docket Number: Cr. 3329
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest DEWSON, Defendant and Appellant.

Page 162

310 P.2d 162

150 Cal.App.2d 119

PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest DEWSON, Defendant and Appellant.

Cr. 3329.

District Court of Appeal, First District, Division 2, California.

April 15, 1957.

Hearing Denied June 12, 1957.

Arthur D. Klang, San Francisco, for appellant.

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

KAUFMAN, Presiding Justice.

This appeal is taken from the judgment of conviction and sentence; the order denying the motion to dismiss under Penal Code Section 995; and the order denying defendant's motion for a new trial.

By information, the defendant was charged with the following:

(1) Possession of a quantity of heroin in violation of Health & Safety Code, Section 11500.

(2) Transportation of the same quantity of heroin in violation of Health & Safety Code, Section 11500.

(3) Assault by means of a force likely to produce great bodily injury in violation of Penal Code Section 245.

The defendant's motion to dismiss under Penal Code Section 995 was denied. The jury found the defendant guilty of the three offenses charged in the information.

The defendant has urged numerous grounds of appeal which required a rather detailed statement of facts to provide proper background for a discussion of the questions presented.

Approximately one week before June 11, 1956, Clarence Coster, an inspector of the State Bureau of Narcotic Enforcement was told by a paid informant that a negro known as 'Bozo', driving a 1953 Oldsmobile '98' Convertible with a black top and light colored body was selling dolophine, a synthetic morphine. Information which Coster received from this informant had led to the arrest of narcotic dealers on three other occasions. No attempt was made by Inspector Coster to further check the credibility or qualifications of the first informant. Substantially similar information was given to Coster by a second informant, except that neither the name of the individual involved nor the particular narcotic was given. Coster had received information from the second informant on other occasions, but no arrest resulted. At about 7:30 p. m. on June 11, 1956, Inspector Coster and Inspector Shoemaker, also of the Bureau of Narcotic Enforcement, were in the vicinity of Lyon Street between Hayes and Grove Streets in San Francisco. They were in a 1956 Ford Sedan owned by the State but not marked as a State or law enforcement vehicle. They were both wearing ordinary clothing. Neither inspector had seen or heard of the defendant before June 11, 1956, or had any information as to the defendant's name or nickname. Coster saw the defendant driving north on Lyon Street in a 1953 Oldsmobile '98' Convertible with a black top and light blue or green body. The inspectors observed the defendant park on the east side of the street, get out of his automobile and walk across the street to a small grocery store on the corner of Lyon and Hayes. About half an hour later, the defendant returned to his automobile. At this time the inspectors observed that there were no license plates on the defendant's automobile. The defendant testified that he had a temporary license sticker on the window. Inspector Coster drove the State automobile and stopped it about three feet diagonally in front of the defendant's vehicle. Coster testified that he turned on the red spot light on the left front corner of the State automobile. The defendant testified that there was no red spot light. Coster got out of the State automobile and started to go around to the front of the defendant's automobile with his badge in his hand, while Shoemaker approached the driver's side of the defendant's automobile. Shoemaker testified that he identified himself as a police officer, displayed his badge, and asked the defendant to open the door. The windows of the defendant's car were closed. Both inspectors were armed but they testified that they did not display their guns. The defendant testified that the inspectors approached his car with guns in their hands and beat on the windows with their guns; that the motor of his car was running so that he could not hear anything, and that he was frightened of an attack or robbery. The defendant backed up his automobile a few feet and then drove forward at a high rate of speed down Lyon Street. As the defendant drove forward, his left front fender threw Coster who was standing between the defendant's car and the State vehicle, against the State vehicle. Coster received minor scratches on his leg as a result. Both inspectors fired shots at the fleeing automobile. One of the bullets went into the left front driver's window of the defendant's automobile and slightly wounded the defendant. Two other bullets entered the rear window and went out the front windshield. The inspectors then pursued the defendant with a red light and siren. They lost sight of the defendant for several blocks, but then saw him again on Geary Street near Sears and Roebuck, traveling at a very slow rate of speed. The inspectors pulled their automobile in front of the defendant, forcing him to stop. Coster approached the defendant and asked, 'What is the big idea?' The defendant replied, 'I thought you wanted me for traffic tickets.' Coster asked, 'How about narcotics?' the defendant replied, 'I don't know anything about narcotics.' Neither of the inspectors asked the defendant for his name or any identification. Without further questioning the defendant was handcuffed and placed in the State automobile. Inspector Shoemaker drove the defendant's automobile back to the scene of the shooting. Inspector Shoemaker testified that the transmission of the defendant's car was broken. The defendant testified that his car was in excellent condition and that he had slowed down because he heard the police siren, not because he was having motor trouble. When other police units arrived, Coster asked Shoemaker to take the State vehicle and search the route of the chase for any narcotics the defendant might have thrown from the vehicle. Meanwhile, Coster searched the defendant's automobile with a flashlight. On the front floor board under the ledge of the right seat, in a position not visible to the driver, Coster found a small white packet, and under the floor mat a four inch snap blade knife. (People's Exhibit No. 2) The defendant was taken to the Park Emergency Hospital for treatment of his wound. Then he was taken back to the police station, booked and questioned. The defendant denied any knowledge of the packet and the knife, or of how these objects came to be in his automobile. He stated that other people frequently rode with him and had done so, earlier on the evening of June 11, 1956. A subsequent chemical analysis of the contents of the packet disclosed that it contained a grain and a half of heroin.

The defendant made appropriate and timely objections to the introduction of the packet and the knife and the testimony of the inspectors at the preliminary hearing and at the trial.

The defendant raises numerous grounds of appeal which will be taken up in order:

(1) That his motion to set aside the information under section 995 of the Penal Code was improperly denied. Under Penal Code, Sec. 1237 this motion is reviewable om appeal from the judgment of conviction. People v. Costa, 141 Cal.App.2d 795, 297 P.2d 667; People v. Simmons, 119 Cal. 1, 50 P. 844; People v. Egan, 73 Cal.App.2d 894, 167 P.2d 766. The record before us discloses that such a motion was properly made, but does not indicate the grounds for the motion. As the transcript of the preliminary examination was not brought up on appeal, error cannot be assumed in its absence. People v. Scott, 24 Cal.2d 774, 151 P.2d 517. Matters outside the record cannot be considered on appeal. People v. Villarico, 140 Cal.App.2d 233, 295 P.2d 76; People v. Croft, 134 Cal.App.2d 800, 286 P.2d 479; People v. Levine, 114 Cal.App.2d 616, 250 P.2d 645.

(2) That he was deprived of due process of law and effective aid of counsel in violation of Amendment XIV of the United States Constitution, and Article I, Secs. 1 & 13 of the State Constitution. As the record discloses the presence of counsel at the preliminary hearing and the trial there is no basis for this contention.

(3) That he was denied the right to ascertain the identity of the informants against him or any information about them. Defendant maintains that his case presents an exception to Code of Civil Procedure, Sec. 1881, Subd. 5, which provides as follows: 'A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer from the disclosure.'

It has not been determined by our Supreme Court whether a defendant has the right to ascertain the identity of the informers against him. In People v. Gonzales, 141 Cal.App.2d 604, 297 P.2d 50, where the defendant was charged with the possession of narcotics, the privilege to refuse to disclose the identity of the informer was upheld. The general rule was well stated in Wilson v. United States, 5 Cir., 59 F.2d 390 at page 392: 'If what is asked is useful evidence to vindicate the innocence of the accused or lessen the risk of false testimony or is essential to the proper disposition of the case, disclosure will be compelled.' (Wigmore, Evidence, 3d Ed., Vol. VIII, p. 751, § 2374; Regina v. Richardson, (1863) 176 Eng.Rep. 318.) In the federal courts it has been held (in cases where the officers are in possession of other information) that the name of the informer need not be revealed unless it is essential to the defense, as for example, where the legality of the arrest turns on the officer's good faith. Scher v. United States, 305 U.S. 251 at pages 253-254, 59 S.Ct. 174, 83 L.Ed. 151; United States v. One 1941 Oldsmobile Sedan, 10 Cir., 158 F.2d 818, 820. In some states it has been held (in cases where only informer...