People v. Fontaine

• Decision Date: 30 September 1965
• Docket Number: Cr. 4651
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Norman FONTAINE, Defendant and Respondent.

Page 855

46 Cal.Rptr. 855

237 Cal.App.2d 320

PEOPLE of the State of California, Plaintiff and Appellant, v. Norman FONTAINE, Defendant and Respondent.

Cr. 4651.

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

Sept. 30, 1965.

Hearing Denied Nov. 24, 1965.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., John F. Kraetzer, Deputy Attys. Gen., San Francisco, for appellant.

Robertson & Hand, San Jose, for respondent.

MOLINARI, Justice.

This is an appeal by the People from the trial court's order granting defendant's motion for a new trial and from its order denying the People's motion to vacate the order granting a new trial. ¹

Statement of the Case

Following defendant's conviction for two counts of selling and furnishing marijuana (in violation of Health & Saf.Code § 11531), defendant moved for a new trial on the grounds that (1) it was a violation of Penal Code section 653j ² for the court to admit into evidence the tape recordings of conversations between defendant and the informant; (2) defendant was denied his right to a fair trial by the acts of the prosecuting authorities in preventing the availability of the informant; and (3) the trial court erred in failing to give to the jury that instruction authorized by Code of Civil Procedure section 2061, subdivisions 6 and 7. The matter was heard and submitted, and the court ordered a new trial, its memorandum decision indicating that it did so 'because it felt that the evidence disclosed that the defendant was denied a fair trial in the constitutional sense of being deprived of the right to be confronted with a material witness against him and his right to cross-examine such witness, and the facts in this case are in many respects similar to the case of People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673.' ³

On this appeal the parties argue the propriety of the trial court's ruling not only on the basis of the ground upon which the motion was granted, but also on the other grounds urged in the motion. In view of the rule that an order granting a new trial must be affirmed if it can be sustained on any ground stated in the notice of intention to move for a new trial (Lovett v. Dintzer, 131 Cal.App.2d 165, 166, 280 P.2d 58; Gainey v. Gainey, 119 Cal.App.2d 564, 569, 259 P.2d 984), we shall consider the merit of each of the grounds urged in the instant motion. Additionally, we are called upon to discuss the effect upon the instant case of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, decided subsequent to the trial of the present action. In Griffin it was held that 'the Fifth Amendment, [to the United States Constitution] in its direct application to the federal government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' (P. 615, 85 S.Ct. p. 1233; fn. omitted.)

Although the facts relevant to the discussion of the respective issues urged on appeal will be hereinafter set forth, we preliminarily note the following facts: The basis of the indictment against defendant consisted of two alleged sales of marijuana made by defendant to one Elsbeth Allen, whom the Santa Clara County narcotics officers had employed as an informant or 'special agent.' Immediately prior to each sale, ⁴ Miss Allen telephoned defendant's residence, requesting that he sell her some marijuana and arranging for a suitable meeting place. In both instances these telephone conversations, which were made from the Santa Clara County Sheriff's Office, were monitored and tape-recorded by the police. In each instance, following the telephone call, Miss Allen was searched by a matron, provided with $20 and driven to the meeting place, where she met defendant and subsequently delivered to the police a wax bag containing marijuana.

The Rule of Kiihoa

In Kiihoa, the defendant was arrested for having made a sale of narcotics to a confidential informant. Following this initial arrest, which itself was not made until three months after the alleged sale, the police released the defendant. Approximately two months later the defendant was rearrested and eventually brought to trial and convicted for said sale. At the trial, a police officer who was called, as a witness by the prosecution testified as to the reason for the defendant's initial release. He stated that it was 'established policy' not to prosecute under circumstances where the informant had been intimidated and did not wish to be identified, but that once the police learned that the informant had left the state, the defendant was rearrested and brought to trial because the informant could then be identified without subjecting him to reprisals. The Supreme Court, in reversing the judgment of conviction, noted that California law requires that the prosecution divulge the name of an informer who is a material witness in the case (People v. Durazo, 52 Cal.2d 354, 356, 340 P.2d 594, 76 A.L.R.2d 257; People v. Williams, 51 Cal.2d 355, 359, 333 P.2d 19; People v. McShann, 50 Cal.2d 802, 808, 330 P.2d 33), and concluded that, although this requirement had concededly been complied with, the tactics employed by the prosecution evidenced an intention on its part to avoid the very purpose of the disclosure rule and amounted to a denial of a fair trial 'just as effectively as if the informer had never been identified.' (53 Cal.2d p. 753, 3 Cal.Rptr. p. 4, 349 P.2d p. 676.) The court noted further that although the record indicated that the police did not arrange for the informant's absence, its decision was not based on any active participation by the police in removing the informant from the jurisdiction, but was predicated upon the fact that 'the circumstances surrounding this prosecution affected and militated against the defendant's right to a fair and impartial trial.' (53 Cal.2d p. 753, 3 Cal.Rptr. p. 5, 349 P.2d p. 677.)

The principle of the Kiihoa case was subsequently urged in several cases which came before the appellate courts of this state. In People v. Givens, 191 Cal.App.2d 834, 13 Cal.Rptr. 157, and People v. McKoy, 193 Cal.App.2d 104, 13 Cal.Rptr. 809, the Kiihoa rationale was held to be inapplicable under the facts since the record in each case did not in any way show that the prosecution delayed the defendant's arrest until the departure of the informant, such departure being, under the circumstances, a 'fortuitous incident.' (To the same effect see People v. Sauceda, 199 Cal.App.2d 47, 55-56, 18 Cal.Rptr. 452; People v. Galvan, 208 Cal.App.2d 443, 447-449, 25 Cal.Rptr. 128.) In People v. Castedy, 194 Cal.App.2d 763, 15 Cal.Rptr. 413, the defendant's arrest was delayed for several months because the police "wanted to make more cases" with the informant. (P. 768, 15 Cal.Rptr. p. 413.) In holding that the unavailability of the informant at the trial caused by the delay did not deprive the defendant of a fair trial, the reviewing court balanced 'public interest and individual rights' (p. 769, 15 Cal.Rptr. p. 413), and concluded that under the facts of the case there was no indication that the prosecution had any intent to cause the absence of the informant 'but that the delay was for the mere purpose of more efficient law enforcement.' (P. 770, 15 Cal.Rptr. p. 417.)

Turning to the case at bench the record discloses the following facts and circumstances: The informant participated in both of the alleged sales; the testimonial evidence upon which defendant's conviction was based was given solely by law enforcement officers, who testified that they had little knowledge concerning the informant and that they did not know her whereabouts at that time; prior to the trial defense counsel asked the district attorney for the name of the informant and the district attorney told defense counsel that he had not yet looked over the case and did not know the informant's name; defense counsel did not then pursue the issue of the informant's identity, but learned her name from police officers several days before the trial; counsel for defendant at no time prior to trial asked the police or the district attorney as to the whereabouts of the informant; defendant's wife testified that she relied upon her husband's attorney to contact the informant until about a week before the trial, at which time she obtained some information from a friend concerning Miss Allen's whereabouts; defendant's wife discovered that Miss Allen was living in Vacaville, California, but could not be reached by telephone; and nothing further was done by defendant or his wife or defendant's attorney after it was ascertained that Miss Allen was living in Vacaville.

In addition to the foregoing, the record also discloses the following facts and circumstances relating to the issue before us: Defendant was not indicted until almost four months after the second alleged sale. The district attorney testified as to his office's reluctance to divulge the name of an informant because of the risks involved. In his affidavit submitted in support of the People's motion to vacate the court's order granting a new trial, Deputy Sheriff Shaver, who had participated the defendant's arrest, stated that he was aware of no 'established policy * * * to defer prosecutions until an informant leaves the area nor to procure the departure of informants from the area'; that the delay in prosecuting defendant in the instant case resulted from his endeavor to utilize Miss Allen's 'abilities and contacts' before he would have to reveal her identity; that her services had been so utilized during the months of July through October 1963; that he had in fact used her services on the day defendant was indicted in order to determine defendant's address; that several days after defendant's arrest, Miss Allen telephoned Shaver to tell him that she was planning to move away from the San Jose area;...