People v. Gallo
| Decision Date | 23 December 1981 |
| Docket Number | Cr. 12688 |
| Citation | 127 Cal.App.3d 828,179 Cal.Rptr. 662 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Louis Marin GALLO, Defendant and Respondent. |
Defendant was charged with possession for sale (Health & Saf.Code, § 11351) and sale of heroin (Health & Saf.Code, § 11352), with a special allegation of possession of more than one-half ounce of heroin (Pen.Code, § 1203.07(a)(1)). He was held to answer in superior court where the court granted defendant's motion to dismiss pursuant to Penal Code section 995. The People appeal.
Rick Dunton, an informant for the Placentia Police Department, testified that he had known defendant for approximately four weeks prior to March 5, 1980, and had visited him at his house about five times that day. On one of his visits he gave defendant $100 for a balloon of heroin. Defendant told Dunton that he would have to get the heroin from someone else and that Dunton should return for it in about a half hour. Dunton returned at the appointed time and defendant gave him a balloon, which Dunton passed on to an investigator for the Placentia Police Department. Dunton had received the $100 from the Placentia Police Department.
Dunton further testified that on March 12, 1980, he contacted defendant on four occasions at defendant's house. On one of those occasions he gave defendant another $100, was told to return in one-half hour, and subsequently received another balloon of heroin, which he gave to a Placentia police officer.
Dunton testified that each time he went to defendant's residence he entered through an open garage door and contacted defendant through a screen door at the back of the garage. Dunton never entered the residence itself, but met with defendant either in the garage or on the driveway.
Although Dunton never told anyone that he had seen any heroin in the residence, he did tell Officer Rowley that he did not believe that defendant had to leave the house to get the heroin, because it would have taken longer than the one-half hour to retrieve it from Ontario or Redlands, where it was said to be located.
Dunton admitted that he had two felony convictions for robbery, one in 1973 and one in 1974; that he served 11 months in prison for a probation violation; that he was released on parole in November 1978; that he remained on parole until November 1979 and that he did not use heroin while he was on parole.
When Dunton was asked whether he used heroin after he was off parole, he asserted his Fifth Amendment privilege against self-incrimination. The court sustained Dunton's assertion of the privilege against defense counsel's contention that because Dunton had answered similar questions at an earlier preliminary hearing, he had waived the privilege. The court also rejected a defense motion to strike Dunton's direct testimony, stating that the witness' testimony at the prior hearing could be read into the record.
Dunton admitted that felony burglary charges were pending against him based on an incident in February 1980, and that it was after his detention for that incident that he began serving as a police informant for Officer Rowley. However, when asked if between January 1, 1980 and March 13, 1980, he had been earning his livelihood by means of theft, he again asserted his privilege. The claim of privilege was sustained, defendant's motion to strike direct testimony was denied and Dunton's prior testimony was read into the record.
Dunton also testified about his February detention for burglary; his discussions with officers Rowley and Holcomb about becoming an informant; the fact that defendant's name was mentioned as a person in whom the officers were interested; of Dunton telling them "I can do Gallo"; his subsequent agreement to work with them for which he was to be paid $25 for heroin purchases, but would be paid $100 for the defendant, and that he had been paid $100 for his efforts on March 5 and March 12 prior to the time he appeared before Judge Petty for issuance of a search warrant on defendant's residence.
Dunton asserted his Fifth Amendment privilege to questions whether he was under the influence of a drug when he appeared before Judge Petty; whether he had told Rowley that he had been supporting his heroin habit by means of theft; whether he was "good for" the burglary charges pending against him; and whether one of the items seized from defendant's residence pursuant to the search warrant was something Dunton had previously stolen. In each case the claim of privilege was allowed, a motion to strike direct testimony was denied, and prior testimony was read into the record.
At some point during Dunton's testimony, defense counsel requested Dunton's address so that a further investigation could be carried on regarding his character, his living arrangements and any contacts with the police at his home. The request for disclosure was denied, although there was no evidence that Dunton had been threatened or would be endangered by revealing his address.
Officer Rowley of the Placentia Police Department was conducting a surveillance of defendant's residence on March 5, 1980, and again on March 12, 1980, during the times Dunton visited the residence and purchased the heroin. On both occasions he monitored the conversations between Dunton and defendant, by means of a wire transmitter, and heard someone tell Dunton to return in one-half hour because he would have to get the "stuff" from Ontario. Rowley continued to observe the residence from about 200 yards from defendant's house. On the March 5, 1980, occasion no one left the residence between the times Dunton left and returned to pick up the balloon of heroin, and only defendant's son arrived during that period. On March 12, 1980, no one either left the residence or visited the residence between the times that Dunton left and returned for the heroin.
Rowley testified that when Dunton appeared before Judge Petty for the issuance of the search warrant, the judge was informed that Dunton had been to prison for robbery, that he was a "user" and had a pending burglary case. Rowley further testified that at the time he obtained the search warrant he was not aware that Dunton was supporting his heroin habit by stealing and did not attempt to conceal Dunton's criminal record.
On March 14, 1980, Detective Rodarte and other officers of the Placentia Police Department served the search warrant. Rodarte and another detective entered through the open garage door, and went to the door that led from the garage to the house. Other officers went to the front door. Rodarte knew defendant and had helped construct the dining room of defendant's house. He had been to defendant's residence on at least three prior occasions and had never seen anyone enter except through the garage. He had entered through the garage door on at least one occasion. When he approached the screen door leading into the house, he was able to see four persons seated at a table. He announced himself three times and knocked on the door each time. After about 30 seconds and receiving no response, he opened the screen door and entered the residence. He then saw defendant, who was seated at a table in the back of the house, and showed him the arrest and search warrants.
The parties stipulated that a total of 44 balloons found in the house contained 37.9 grams of heroin.
The 995 motion was granted on the ground that the nondisclosure of the witness' address, coupled with the restriction on cross-examination occasioned by the witness' assertion of the privilege against self-incrimination, resulted in a denial of a substantial right.
The People contend that defendant was not entitled to a dismissal on any of the grounds asserted in his motion to dismiss pursuant to Penal Code section 995.
Those grounds were that defendant Gallo was unlawfully committed because: (1) he was erroneously denied disclosure of Dunton's current address; (2) he was denied a substantial right by the restriction of the cross-examination of the witness by reason of the assertion of his privilege against self-incrimination; (3) the manner of execution of the search warrant violated Penal Code section 1531; and (4) the search was invalid because the affidavit in support of the warrant contained intentional omissions and misstatements of fact.
In People v. Mardian (1975) 47 Cal.App.3d 16, 121 Cal.Rptr. 269, this court held, under circumstances similar to the present case, that the defendant was not denied a substantial right even though the trial court denied his request for a witness' address. In Mardian a prosecution witness testified against the defendant, and was shown to be a drug user, a convicted felon and a police informer. The court stated, ...
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