People v. Harris

Decision Date17 July 1969
Docket NumberCr. 7066
Citation79 Cal.Rptr. 352,274 Cal.App.2d 826
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Leonard HARRIS, Defendant and Appellant.

Charles H. Richards, San Francisco, by appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John P. Oakes, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant appeals from a judgment of conviction rendered on a jury verdict finding him guilty of the unlawful sale of narcotics. (Health & Saf. Code, § 11501.) He contends that he was denied due process of law because of an improperly suggestive identification procedure, and that the trial court incorrectly determined that he was ineligible for commitment as a narcotic addict. These contentions are examined and found to be without merit. The judgment must be affirmed.

Facts

In April and May of 1966, Edward Noriega, an agent with the Los Angeles Office of the State Bureau of Narcotics Enforcement was temporarily assigned to the San Francisco office to work in an undercover capacity. He worked primarily in the Fillmore district during this period.

Noriega first saw defendant, Leonard Harris, at least a week prior to May 25, 1966. On that occasion he and a person named Mary went to an apartment in the 1300 block on Fillmore Street. Mary knocked on the door of the apartment and it was answered by defendant. She asked, 'Have you got anything,' or, 'Can we get anything,' and the defendant replied, 'No, I haven't got anything right now.' Mary and Noriega then departed.

Agent Noriega next saw the defendant at approximately 1:30 p.m. on May 25, 1966. Noriega was, at the time, walking south on the 900 block of Fillmore when he heard someone whistling. As he looked to his right he saw defendant on the other side of the street sitting in a stairway leading to an apartment. Noriega paid no attention to defendant and continued walking.

As the agent reached the corner he turned around and started back. He again 'heard and observed' the defendant whistling. Defendant motioned him over, and he crossed the street and sat down next to defendant on the stairway.

Defendant asked the agent, 'Are you looking,' and Noriega indicated he was. Defendant said, 'I have some bags.' They discussed the matter and Noriega purchased two packages of heroin from defendant for $30. The agent then left the area.

George Ohlson testified that he was a field supervisor in the San Francisco office of the Bureau of Narcotics. On the day in question, following standard police procedure, he and Agent Walker followed Agent Noriega to the vicinity of McAllister and Fillmore Streets in San Francisco. They were in an automobile at the time.

Ohlson first observed defendant sitting on some steps as they drove south on Fillmore from McAllister Street. He then made a U-turn near the corner of Grove and Fillmore and parked headed in a northerly direction on the east side of Fillmore. At that time he observed Agent Noriega on the east side of Fillmore walking in a southerly direction. The undercover operator then turned and started walking in a northerly direction and the two agents started driving north on Fillmore. Ohlson subsequently observed Agent Noriega sitting on the steps with defendant.

Defendant testified that he was in an apartment in the 1300 block of Fillmore when Agent Noriega and a woman came to the door. He testified that the apartment belonged to a friend, that he had answered the door as a favor, and when addressed by the woman, responded by stating, 'You must have the wrong apartment.' Defendant indicated that he was frequently in this apartment house because his employer lived there.

He denied ever meeting Noriega again. He denied the incident ever took place. Defendant's testimony was impeached by showing that he had previously been convicted of a felony.

Identification Evidence

The undercover agent's testimony that he saw the defendant about a week prior to the alleged sale on May 25, 1966 was admitted without objection and was also corroborated by the testimony of the defendant who admitted that he had in fact confronted the agent and his female companion at an apartment door. On cross-examination the agent testified that he knew the defendant's name prior to the time he went to the apartment, and that when testifying he was sure the man who answered the door was the defendant because that occasion was the first time he had seen him.

No objection was interposed to the agent's testimony that the defendant was the man he met and from whem he purchased the heroin a week later, and that he recognized the defendant as the person he had seen before. The agent testified that he did not arrest the defendant at the time because the arrest would have interfered with other pending investigations in the area. Less than four weeks later he identified a picture of the defendant in connection with his testimony before the grand jury which lead to the indictment of the defendant. At the trial resulting in this appeal, November 7, 1967, he acknowledged that he had made other purchases of narcotics in the area, and had met and seen a lot of people, and tht the only time he had seen the defendant since the sale was at a prior trial. (A mistrial followed a jury's inability to agree on January 4, 1967.)

After testifying that he had seen the defendant at the prior trial, the agent was cross-examined as follows: 'Q. How did you identify Mr. Harris? A. Through a photograph. * * * Q. And where did you get this photograph? A. From Agent Ohlson. Q. Mr. Ohlson? A. Yes. Q. How did he--how did he present you with this photograph? A. Why he just showed it to me. Q. He just showed you a photograph? A. And asked me if this was the person I had seen. Q. And you said, 'Yes,' is that right? A. Yes. Q. Now, did you ever at any time ask Mr. Harris what his name was? A. No. I don't recall that I did. Q. Did he at any time give you his name? A. Not to my recollection. Q. Did you ever hear anybody calling him by any name, except in the courtroom? A. No, ma'am. Q. So the only way that you identified him was from a photograph handed you by Mr. Ohlson, who said, 'Is this the man?' A. Yes. Q. Is that correct? A. Yes. Q. You didn't choose it out of a group of photographs? A. Not to my recollection.'

The agent insisted that he was not mistaken in his identification of the defendant, and that the photograph depicted the person from whom he had purchased the heroin. No objection was ever interposed to any of this testimony. Although defendant's attorney made some inquiry concerning the whereabouts of the photograph, she made no demand for its production, nor did she seek to use the process of the court to obtain it. (Cf. People v. Romero (1969) 272 A.C.A. 40, 48--49, 77 S.Ct. 175.)

Agent Ohlson testified without objection that he had seen the defendant and knew him by name before the incident in question, and that there was no doubt in his mind that the person sitting on the steps with Noriega was Harris. He was not interrogated concerning the photograph or its exhibition to Noriega. The defendant acknowledged that he had seen Ohlson before and knew him as a police officer, although not by name.

The defendant contends that his pretrial identification by means of the photograph was so unnecessarily suggestive and conducive to misidentification as to deny him due process of law. (See Simmons v. United States (1968) 390 U.S. 377, 382--386, 88 S.Ct. 967, 19 L.Ed.2d 1247; and cf. Foster v. California (1969) 394 U.S. 440, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402; Stovall v. Denno (1967) 388 U.S. 293, 301--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Gilbert v. California (1967) 388 U.S. 263, 269--274, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and United States v. Wade (1967) 388 U.S. 218, 228--239, 87 S.Ct. 1926, 18 L.Ed.2d 1149.)

'* * * no issue concerning the pretrial identification was raised in the trial court. To permit appellant to raise it now under circumstances where further examination of witnesses at trial might have satisfied any deficiency in the record is to allow him the gamble on the results of the trial while inviting error. Such tactics are not premitted. (Witkin, Cal. Criminal Procedure (1963) Reversible Error, § 747.)' (People v. Hughes (1969) 271 A.C.A. 343, 346, 76 Cal.Rptr. 369, 371. Accord: People v. Short (1969) 269 A.C.A. 848, 851, 75 Cal.Rptr. 156; People v. Almengor (1969) 268 A.C.A. 664, 667, 74 Cal.Rptr. 213; People v. Armstrong (1968) 268 A.C.A. 341, 342--343, 74 Cal.Rptr. 37; and People v. Rodriquez (1968) 266 A.C.A. 843, 846--847, 72 Cal.Rptr. 310.)

The trial at which the defendant was convicted occurred almost five months after the decisions in the lineup cases on which defendant now relies. Under these circumstances he cannot claim the prerogative of raising for the first time on appeal an unannounced constitutional privilege. (People v. Armstrong, supra, 268 A.C.A. at pp. 342--343, 74 Cal.Rptr. 37. Cf. People v. Irvin (1968) 264 A.C.A. 881, 893, 70 Cal.Rptr. 892.)

Defendant, in reliance upon Brown v. Mississippi (1936) 297 U.S. 278, 286--287, 56 S.Ct. 461, 80 L.Ed. 682, seeks to avoid the failure to object below on the grounds that the error in admitting the identification evidence was of such magnitude that it constituted a violation of due process of law which vitiates his conviction despite the failure to object. (See also, Witkin, Cal. Evidence (2d ed. 1966) § 1308, par. (b), p. 1210; and Witkin, Cal. Criminal Procedure, § 768, pp. 739--741.) The identification cases, however, uniformally indicate that the question of whether the identification procedures used in any particular case are so unnecessarily suggestive and conducive to irreparable mistaken identity as to be a denial of due process of law depends upon the totality of the circumstances. (See, Foster...

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