People v. Gonzalves

• Decision Date: 28 February 1958
• Docket Number: Cr. 6061
• Citation: 158 Cal.App.2d 98,322 P.2d 255
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Abel GONZALVES, Defendant and Appellant.

Page 255

322 P.2d 255

158 Cal.App.2d 98

The PEOPLE of the State of California, Plaintiff and Respondent, v. Abel GONZALVES, Defendant and Appellant.

Cr. 6061.

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

Feb. 28, 1958.

Rehearing Denied March 10, 1958.

Robert M. Maslow, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

DORAN, Justice.

The appellant and Mary Gonzalves, husband and wife, were charged with the unlawful sale of heroin, and convicted after a trial before a judge, a jury trial having been waived. A petition for writ of error coram nobis was denied. Appellant's notice of appeal was ruled invalid but the Supreme Court granted leave to petition for relief from default in the preparation of a record (In re Gonsalves, 48 Cal.2d 638, 311 P.2d 483), and the present appeal followed.

It appears from the record that at approximately 10:00 a. m. on September 17, 1955, officer Anthony Coia, an investigator for the District Attorney's office, drove with appellant, appellant's wife, and an unidentified informer, to a location in Los Angeles. Appellant left the car, returning about ten minutes later to a point some 50 feet away, from where appellant called and motioned to his wife to join him. Appellant spoke to the wife and handed her a small white package. Appellant's wife then walked back to the automobile, entered the rear seat and handed three 'caps' of heroin to officer Coia, left the vehicle, and the officer drove away.

There was testimony that on September 27, 1955, Lieutenant Nick Cimino talked to appellant in the Hall of Justice; that appellant admitted accompanying officer Coia and the others with knowledge that they were driving to pick up some heroin; that appellant did not wish to sell narcotics directly to Coia, and so gave the 'caps' to Mrs. Gonzalves who went to the car with the caps. Appellant, at the trial, denied knowing anything about the narcotics, and claimed to be going to see a friend whose name could not be remembered. Appellant also denied telling Cimino that appellant had participated in any sale of narcotics.

It is appellant's contention that the trial court committed reversible error in refusing to permit appellant to ascertain the name and identity of the informant who accompanied officer Coia in the automobile. In support of this contention appellant argues that 'Where an informer is an active participant in a narcotics sale case, it is reversible error to sustain objections to questions asking the arresting officer to name him'. In this connection appellant relies on such cases as People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79, and People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821.

As pointed out in the respondent's brief, the facts in the cited cases are distinguishable from those existing in the present case, since the evidence in the cited cases shows that the informer actively participated in the commission of the crime. This element of factive participation was not present in the instant case where the informer was merely present in the automobile and in no manner participated in the sale. In the Castiel case cited above, the undisclosed...