People v. Garcia

• Decision Date: 07 December 1967
• Docket Number: Cr. 11198
• Citation: 67 Cal.2d 830,434 P.2d 366,64 Cal.Rptr. 110
• Court: California Supreme Court
• Parties: , 434 P.2d 366 The PEOPLE, Plaintiff and Respondent, v. Abraham Torres GARCIA, Defendant and Appellant.

Page 110

64 Cal.Rptr. 110

67 Cal.2d 830, 434 P.2d 366

The PEOPLE, Plaintiff and Respondent, v. Abraham Torres GARCIA, Defendant and Appellant.

Cr. 11198.

Supreme Court of California,

In Bank.

Dec. 7, 1967.

Alan F. Charles, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and David L. Kelly, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Abraham Torres Garcia was charged in count one of an information with possession of heroin for sale (Health & Saf.Code, § 11500.5); and in count two thereof with possession of marijuana (Health & Saf.Code, § 11530). Defendant pleaded not guilty to both counts. Trial by jury was waived, and the court found defendant guilty of the crimes charged. Defendant's motions for new trial and for reduction of count one to simple possession (Health & Saf.Code, § 11500) were denied. Defendant was sentenced to imprisonment in the state prison. He appeals from the judgment of conviction. ¹

On November 24, 1964, a search warrant was issued to Officer Harold Ginder of the Los Angeles Police Department, Narcotic Division, by a judge of the Municipal Court, Los Angeles Judicial District, authorizing the immediate search in the daytime or nighttime, for marijuana, heroin or other narcotic substances, together with any paraphernalia for narcotic packaging and use, of premises at 1305--7 East Olympic Boulevard, Los Angeles, a beer bar under the name of 'Sancho's' and at 1657 West 12th Street, Apartment No. 1, Los Angeles, and of the persons of Frank Flores Reyna, Joe Flores Gomez and Rose Reyna.

Officer Ginder's affidavit for the warrant set forth, Inter alia, the following facts as constituting probable cause to believe that the above three persons were then in possession of the specified contraband on the described premises and on their persons: That affiant, assigned to the narcotic division for almost two years, had been investigating for the past two weeks the narcotic activities of the three persons later named in the warrant; that in the course of such investigation two reliable informants, whose identities were sought to be kept confidential, had told him that the three named persons were packaging and selling heroin and marijuana from both the beer bar, where Reyna worked as bartender and manager, and from the apartment, which was the residence of the three; and that the same informants 'have related that they have made purchases of narcotics from the said FRANK FLORES REYNA and JOE FLORES GOMEZ, both daytime and nighttime at their place of residence and at the beer bar known as 'Sancho's."

The affidavit further alleged that according to the criminal records of the Los Angeles Police Department, Frank Reyna had been arrested for a variety of offenses, had been convicted and sentenced for selling narcotics, and was currently on parole; that Gomez was Reyna's bodyguard and carried a loaded revolver which he had threatened to use in order to defend Reyna's narcotics; that Reyna had a long criminal record and was currently on parole for a narcotics sale violation; that Gomez also had been convicted of selling heroin but it was unknown whether he was currently on parole; and that Rose Reyna was the common law wife of Frank Flores Reyna.

Neither the affidavit nor the warrant made any reference to defendant Garcia.

At the trial the prosecution produced evidence to the following effect: On November 25, 1964, about 10:30 a.m., Officer Ginder, together with other police officers, went to the apartment described in the warrant. The officers had with them the original and copies of the search warrant. Because of Ginder's information that Gomez carried a loaded revolver, the officers made an unannounced, forced entry into the apartment. They immediately saw three persons: ² Joe Flores Gomez, who was sitting in a chair in the living room; and defendant (dressed only in undershorts) and one Mary Velasquez, who were lying on a mattress in the dining room. Frank and Rose Reyna were later located in the bathroom. The subsequent search of the apartment by the officers disclosed 24 balloons containing heroin, several marijuana cigarettes, and miscellaneous paraphernalia used in the packaging and sale of heroin. The heroin and marijuana were found under the mattress upon which defendant and Mary Velasquez were lying.

All occupants were placed under arrest for possession of heroin and were advised of their constitutional rights, each occupant--including defendant--indicating that he or she understood the advice. When the officers were preparing to transfer all of the suspects to the jail, defendant asked one of the officers, 'Are you going to take everyone?' Upon receiving an answer in the affirmative defendant said, 'Well, all the narcotics belongs to me.' The officer then asked defendant whether he had made this statement in order to protect Reyna, and defendant replied, 'No.' Defendant further stated that he had lived at the apartment for three or four days.

Defendant testified in his own behalf to the effect that he had come to the apartment about a half-hour before the officers arrived; that he was a heroin addict and had come to the apartment to get a 'fix'; that he had never been in the apartment before and was 'admitted' because someone had 'put in a word' for him; ³ that he had never lived at the apartment; that he was sitting in a chair fully clothed when the officers entered; that none of the narcotics found belonged to him; that he had had a 'fix' shortly before the officers arrived; that he was at no time advised of his constitutional rights by the officers; and that he at no time admitted ownership of the narcotics.

More than a month prior to the commencement of the trial defendant filed a motion for pretrial discovery in order to compel disclosure by the People of the identity of the two informants relied upon by Officer Ginder in his affidavit for the search warrant. This motion was based on the separate grounds (1) that the informants were so-called 'participating informants,' and (2) that the informants 'are material witnesses and have, or possibly have, information essential to the defendant's defense wherein they could testify that defendant is not guilty of the offense with which he is charged, * * *' The declaration of defendant's attorney in support of the motion made particular reference to that portion of the affidavit in support of the search warrant which recited that the informants had made purchases of narcotics from Reyna and Gomez both at their apartment and at the beer bar. It further alleged the declarant's belief that the informants were 'participating informants' and that 'such parties are material witnesses in that they could testify, or could possibly testify, to the fact that the narcotics with which the defendant is charged to possess and charged with possession for sale, as alleged in the information, in fact belong to FRANK REYNA, JOE GOMEZ, or some other party.' At the hearing on the motion defendant called Officer Ginder, who had executed the affidavit in support of the warrant, and asked him to reveal the identifies of the informants. The officer refused to do so on the basis of former section 1881 subdivision 5 of the Code of Civil Procedure, ⁴ stating that he was exercising the indicated privilege because 'Both informants (sic) lives would be in danger if I divulged them, and they are not participating informants.' Defendant then moved the court to order the officer to disclose the names, identity and addresses of the informants. Upon denial of the motion defendant further moved to dismiss the information. This motion also was denied.

At trial, upon cross-examination of the same police officer, disclosure of the informants' identities was again sought by defendant and refused by the officer. After extended argument by counsel, the court concluded that 'there is nothing to disclose that either (sic) the testimony of those two witnesses, unnamed informers, would be material, nothing to show that their testimony would be relevant and helpful to the defense of the case or essential to a fair determination of the case.'

Thus we face the principal issue in the case: Whether the trial court erred in refusing to compel disclosure of the two informants.

In People v. McShann (1958) 50 Cal.2d 802, at pages 806--808, 330 P.2d 33, at page 35, we discussed the reasons of public policy underlying the common law privilege of nondisclosure encompassed within former section 1881 subdivision 5 of the Code of Civil Procedure, and we observed that the privilege was applicable, in the terms of the statute, only 'when the public interest would suffer by the disclosure.' We explained that this standard prevented application of the privilege in cases where disclosure "is relevant and helpful to the defense of the accused, or is essential to a fair determination of a cause * * *." (50 Cal.2d at p. 807, 330 P.2d at p. 36; see Roviaro v. United States (1957) 353 U.S. 53, 60--61, 77 S.Ct. 623, 1 L.Ed.2d 639), and that for these purposes a 'mere informer' was to be distinguished from one who was or could be a material witness for the defense. 'A mere informer has a limited role. 'When such a person is truly an informant he simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged.' People v. Lawrence, supra, 149 Cal.App.2d at page 450, 308 P.2d at page 830. His identity is ordinarily not necessary to the defendant's case, and the privilege against disclosure properly applies. When it appears from the evidence, however, that the informer is also a material witness on the issue of guilt, his identity is relevant and may be helpful to the defendant. ...