People v. Durazo
| Decision Date | 23 June 1959 |
| Citation | 76 A.L.R.2d 257,340 P.2d 594,52 Cal.2d 354 |
| Court | California Supreme Court |
| Parties | , 76 A.L.R.2d 257 PEOPLE of the State of California, Respondent, v. Raymond DURAZO, Appellant. Crim. 6427. |
Ellery E. Cuff, Public Defender, Paul G. Breckenridge, Jr., and John Brettmann, Deputy Public Defenders, Los Angeles, for appellant.
Edmund G. Brown and Stanley Mosk, Attys. Gen., and William E. James, Asst. Atty. Gen., for respondent.
By an indictment in three counts, defendant was charged with selling heroin in violation of section 11500 of the Health and Safety Code. He was tried by the court and found guilty on counts two and three. This appeal is taken from the judgment of conviction and from an order denying defendant's motion for a new trial.
Defendant contends that the trial court committed prejudicial error in failing to require a prosecution witness to divulge the name of an informer on cross-examination. Our review of the record convinces us that this contention must be sustained.
The case was submitted upon the transcript of the grand jury proceedings and additional evidence. With reference to count one, Officer Anderson testified before the grand jury as follows: On April 12, 1957, he and another man met defendant in a cafe in Los Angeles. Anderson's companion asked defendant about getting some 'stuff.' They went into the rest room; Anderson followed them and saw defendant give his companion a balloon in exchange for $12. The latter handed the balloon to Anderson.
With respect to count two, Anderson testified before the grand jury that on April 16, 1957, he met defendant on the sidewalk in front of a food market and asked defendant to sell him 'a half.' Defendant agreed and they went into the market, where Anderson gave defendant $12 in exchange for two pieces of balloon. As to count three, Anderson testified that on April 17, 1957, he again met defendant on the street and bought from him a $5 balloon. Expert testimony before the grand jury established that all the balloons contained heroin.
At the trial, Officer Anderson was the only witness for the prosecution. He testified that the person who accompanied him on April 12 was a confidential informer and claimed the privilege of withholding his name. Code Civ.Proc. § 1881, subd. 5. Anderson also testified that the informer was not present at the sales of April 16 and 17, and that they were not prearranged.
In view of the unidentified informer's participation in the first sale, the prosecution sought dismissal of count one. See People v. Castiel, 153 Cal.App.2d 653, 656-659, 315 P.2d 79; People v. Lawrence, 149 Cal.App.2d 435, 450-452, 308 P.2d 821; also Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 1 L.Ed.2d 639. The court reserved its ruling on the motion and subsequently acquitted defendant on that count. With respect to counts two and three, defendant's counsel sought on cross-examination to ascertain the informer's identity. The prosecution objected upon the ground that it was privileged, and also irrelevant and immaterial. The objection was sustained.
The existence of the privilege of nondisclosure depends on the 'materiality of the informer's identity to the defense.' People v. Williams, 51 Cal.2d 355, 333 P.2d 19, 21. Here defendant denied having sold narcotics and denied ever having seen Officer Anderson before the trial; the sole defense was mistaken identity. Anderson testified that he had not known defendant before the sale of heroin to the informer on April 12. The grand jury proceedings at which Anderson identified defendant as the seller did not take place until May 9, some three weeks after the subsequent sales, and defendant was not arrested until September. Anderson said he had no doubt that the same person made each of the three sales. Under these circumstances, the informer was a material witness on the issue of defendant's guilt on all three counts. Had he contradicted Anderson's identification of defendant with respect to the first sale, his testimony would have been highly significant to discredit the identification with respect to the transactions of April 16 and 17. The court therefore erred prejudicially in sustaining the objection to defendant's demand for the informer's name. People v. Williams, supra, 51 Cal.2d 355, 333 P.2d 19.
The judgment and the order denying a new trial are reversed.
The reversal in this case goes far beyond what is necessary to protect the rights of the defendant, and adds one more unnecessary impediment in the enforcement of the narcotic laws of this state. It throws the cloak of immunity from prosecution over the defendant no matter how many violations of the narcotic laws he may commit in the presence of Officer Anderson. The district attorney refused to prosecute under, and moved to dismiss count I of the indictment, obviously for the reason that the informer was a participant as to that count and he felt compelled to do so under the decisions of this court in Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39 and People v. Williams, 51 Cal.2d 355, 333 P.2d 19. However, the defendant was not so immunized under the third count. Officer Anderson testified that he made that purchase directly from, and in the presence of, the defendant and himself. There was no informant participation. Even if the prosecution would be blocked without disclosure as to count II, in order to satisfy the requirements of the majority in People v. Williams, supra, 51 Cal.2d 355, 333 P.2d 19, it should not under any compelling theory of protection for the narcotic vendor's rights render the defendant forever immune from arrest and prosecution by Office Anderson under like circumstances.
This is a case of credibility of the witnesses. The defendant and Officer Anderson were the only witnesses at the trial. The officer first met and made a purchase from the defendant on April 12, 1957, in the presence of the informer. Following that transaction, the officer, in the absence of the informer or any other person, made purchases from the defendant on April 16 and 17, 1957. Three weeks later, on May 9, 1957, when he testified before the grand jury, the officer positively identified the defendant by photograph. Both the second and third transactions took place after the officer recognized the defendant upon a chance meeting on the street and approached him with a proposition to purchase narcotics. The officer was sufficiently familiar with the defendant to unerringly recognize...
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