People v. Givens

• Decision Date: 08 May 1961
• Docket Number: Cr. 3875
• Citation: 191 Cal.App.2d 834,13 Cal.Rptr. 157
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Willie GIVENS, Jr., Defendant and Appellant.

Page 157

13 Cal.Rptr. 157

191 Cal.App.2d 834

PEOPLE of the State of California, Plaintiff and Respondent, v. Willie GIVENS, Jr., Defendant and Appellant.

Cr. 3875.

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

May 8, 1961.

Hearing Denied July 12, 1961.

Dorothy P. Young, San Francisco, for appellant under appointment of District Court of Appeal.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

Convicted of selling narcotics in violation of section 11501 of the Health and Safety Code, appellant vainly contends on this appeal that 'the evidence is insufficient to support the judgment' and that because of the absence of the informer at the time of trial, appellant 'has not received a fair and impartial trial * * *.' As to the first point, sufficient evidence supports the court's conclusion of appellant's guilt; as to the second point, the fact that delay occurred between the offense and the arrest, and that as a result, the informer could not be adduced as a witness, does not show that the prosecution deliberately planned the delay for such an unlawful purpose.

The factual history of the case begins with the preparations of two police officers, Toomey and Higgins, of the Narcotics Detail of the San Francisco Police Department undertaken on January 16, 1960, at approximately 9:00 p. m., when William Russell, an informer, entered their unmarked police car, parked at the corner of Fulton and Steiner Streets in San Francisco. The officers searched Russell and found only some small change but no narcotics. They gave him $20 of city funds.

We first recount the actions of Officer Toomey. Leaving the car, he walked to the northwest corner of Fillmore and Fulton Streets where he stationed himself on the third floor of the corner building. From there he could he could see north and south on Fillmore and a portion of Fulton. Shortly after communicating by walkie-talkie with Officer Higgins, who had remained in the car with Russell, he saw Russell walk east on Fulton, cross Fulton and start north on Fillmore. As he reached McAllister Street Russell met appellant; they conversed and then both turned the corner, heading east onto McAllister, passing out of Toomey's sight. Toomey next saw Russell come back around the corner alone, proceed south on Fillmore to Fulton, cross the intersection and then walk west on Fulton until Toomey could no longer see him.

We turn to an account of Officer Higgins' conduct after he observed Toomey's search of Russell. Remaining with Russell in the car until he communicated by walkie-talkie with Toomey, Higgins then let Russell out and watched him proceed east on Fulton, cross Fillmore, and then walk north on Fillmore. Higgins contacted Toomey and drove to the south side of McAllister between Steiner and Fillmore, parking about 40 or 50 yards up from the corner of McAllister and Fillmore.

After a minute or so Higgins observed Russell and appellant engaged in a short conversation at the corner. The pair rounded the corner and walked 10 or 15 feet 'down from Fillmore.' Higgins observed Russell take his left hand out of his pocket and make contact with appellant's hand. Russell then left appellant, walked to the corner of Fillmore, proceeded 'north,' and passed from sight. Here the officers directly contradict each other as to the direction in which Russell proceeded, Toomey saying 'south' on Fillmore, Higgins saying 'north.' At any rate, Higgins returned to Fulton between Fillmore and Steiner; he next saw Russell as he returned on Fulton to the car.

At no time did either officer observe Russell come in contact with any person other than appellant. When he returned to the car Russell handed to Toomey a white paper bindle containing a white powder, which was later shown to be heroin. A second search of Russell revealed the absence of the money previously given him.

At the trial appellant's defense chiefly consisted of his denial that he knew Russell and appellant's assertion that he was in Sacramento on January 16, 1960. Upon appeal he relies on the two propositions stated supra. To substantiate his first contention that the evidence does not sustain the judgment, appellant unsuccessfully relies upon six points which we now briefly consider.

First, appellant claims '[t]here is a gap in the chain of proof tending to show' his alleged sale of heroin in that the informer did not at such time come under the 'continual surveillance' of the officers. While it is true that the cases demand proof that the informant lacked opportunity to contact anyone other than the defendant at the time of the alleged sale (People v. Morgan, 1958, 157 Cal.App.2d 756, 321 P.2d 873; People v. Barnett, 1953, 118 Cal.App.2d 336, 257 P.2d 1041), the prosecution met that condition here. One or the other of the two officers did see Russell at all times during this sequence of events. The officers saw the informer contact appellant only and no one else. Because of their combined observations, plus their inter-communication by walkie-talkie, the officers maintained a continual, if divided, watch. Appellant failed to show that the prosecution's case disclosed a 'gap in the chain of observation * * *.'

Appellant, secondly, asserts an alleged inconsistency of the officers' testimony in that they directly contradicted each other in relation to the direction in which the informer proceeded. Officer Toomey testified that after the alleged sale Russell walked south on Fillmore to Fulton, then west on Fulton, while Officer Higgins said he walked 'north' on Fillmore and 'east' on Fulton. Obviously Officer Higgins erroneously described the directions since Fulton is south of McAllister and Steiner is west of Fillmore. This error in description obviously does not destroy the prosecution's case; Higgins' correct designation of the involved street names corrected the mistake.

Thirdly, appellant unsuccessfully relies upon the alleged inadequacy of the pre-sale search of the informer which consisted of a search of his clothing and his person. While it is true that such inspection did not attain the thoroughness of the frequently used 'strip search' (People v. Scott, 1959, 170 Cal.App.2d 446, 453, 339 P.2d 162; People v. Taylor, 1958, 159 Cal.App.2d 752, 755, 324 P.2d 715; People v. Morgan, 1958, 157 Cal.App.2d 756, 757, 321 P.2d 873), that procedure is neither exclusive nor essential. In People v. Wilkins, 1960, 178 Cal.App.2d 242, 2 Cal.Rptr. 908, 910, the search of the informer, who wore a tight-fitting knit dress, consisted of feeling along the outside of the dress. In...