People v. Hill

• Decision Date: 18 August 1971
• Docket Number: Cr. 8996
• Citation: 96 Cal.Rptr. 813,19 Cal.App.3d 306
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Everett HILL, Defendant and Appellant.

Page 813

96 Cal.Rptr. 813

19 Cal.App.3d 306

PEOPLE of the State of California, Plaintiff and Respondent, v. Everett HILL, Defendant and Appellant.

Cr. 8996.

Court of Appeal, First District, Division 2, California.

Aug. 18, 1971.

Rehearing Denied Sept. 17, 1971.

Hearing Denied Nov. 11, 1971.

Geoffrey A. Braun, San Francisco, for appellant.

Evelle J. Younger, Atty. Gen., of California, Robert R. Granucci, D. Stuart Candland, Deputy Atty. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

This is an appeal from a judgment of conviction ¹ entered on a jury verdict finding defendant guilty of two separate counts of possessing and selling restricted dangerous drugs (Health & Saf.Code, §§ 11911, 11912). Viewing the evidence most strongly in favor of the judgment, the record discloses the following pertinent facts as they relate to the first count of which defendant was convicted.

On September 26, 1968, Katie Oatis, 18, Ricky Vigno, 17, and Richard Yeager, drove to San Francisco for the purpose of purchasing methedrine ('speed'), a dangerous and restricted drug. Katie gave Vigno $40 and Yeager added $10. The three proceeded to Fourth Avenue and Irving Streets in San Francisco, where Vigno got out of the car, walked to defendant's apartment at 1308-4th Avenue and entered. Defendant ordered Vigno to wait in a back room and returned with a cigar box containing a bag of white powdery substance, for which Vigno paid defendant $40 or $45. Vigno returned to the car and all three returned to San Rafael.

Vigno kept some of the speed and went home, while Katie and Yeager proceeded to an apartment at 75 Woodland, where both injected the rest that Vigno had obtained from defendant. Katie and Yeager went into convulsions, from which Yeager died about four hours later. After the police and an ambulance were summoned, Katie informed the officers of Vigno's role. Under a garbage can, the offices found Katie's wallet which contained a bag of speed.

The following morning, Inspector Burgess of the Marin County Drug Abuse Bureau picked up Vigno on suspicion of manslaughter and sale of dangerous drugs and questioned him. Vigno identified the supplier of the speed as a white male named Everett, about 40 years old, who lived in an apartment at 1308-4th Avenue in San Francisco, and gave Burgess defendant's telephone number. He had previously obtained speed from 'Everett.'

About 11 a.m., Vigno drove past the house with several officers and pointed out defendant's apartment to them. About 11:15 a.m., Vigno made a telephone call to defendant from a telephone booth in a nearby service station to a number registered to a Sharon Goad at 1308-4th Avenue. Narcotics Agent Ohlsen, who was in the booth with Vigno, overheard him say: 'This is Ricky. Could I get something?' and then later adding 'I'll be by around 3 o'clock.' At the conclusion of the conversation, Vigno told the officers he had talked to defendant.

The officers began a surveillance of defendant's apartment and after observing someone enter decided to arrest defendant for the sale of restricted dangerous drugs to a minor (Health & Saf.Code, § 11913). Inspectors Burgess and Pohley proceeded to the front door, while Officers Ohlsen and Logan went to the back door. The two officers in front were to ring three times to let the officers in the rear know they were in position. After Burgess rang four times, defendant came to the door and looked out the door's glass pane. After Burgess identified himself, defendant disappeared from view. Burgess and Pohley, thinking that defendant was attempting to flee and intending to arrest him, tried to force open the front door. Meanwhile, Officers Ohlsen and Logan at the rear heard the bell signal and then some footsteps running from the front to the back of the house. They forced open the back door, entered, and then opened the front door to admit Burgess and Pohley. Rudolfo Duke, who was in the back bedroom, threw a package to the floor when he saw the officers. Duke and defendant were arrested and the house searched, disclosing varying quantities of speed powder and pills, chemicals used in its manufacture, eyedroppers and needles, as well as two letters addressed to defendant, all of which were subsequently admitted into evidence.

We need not set forth defendant's testimony as the jury apparently gave it no credence. Suffice it to state that it amounts to a denial or refutation of the prosecution's evidence and accuses the police of an unjustified entry at the time of his arrest.

We need not set forth in detail the facts of the second count involving the June 26, 1969 sale of speed, of which defendant was also convicted, as the only contention raised on appeal relating to that offense is one of law and concerns the entrapment instruction. Suffice it to state that defendant admitted selling one-half of an ounce of speed to a known reliable police informer on June 26, 1969, but denied ever selling speed to anyone on any other occasion.

On rebuttal, the People presented the testimony of Lois Stevenson, who lived in the upper flat at 1306-4th Avenue, had purchased speed from defendant and had seen him sell speed to four other named individuals. Defendant, on surrebuttal, testified that he had not sold speed to any of the individuals named by Mrs. Stevenson.

Defendant's first major contention on appeal is that the trial court erred in permitting the testimony of the witness Vigno at the preliminary hearing to be read to the jury, after Vigno, upon being sworn, asserted his Fifth Amendment privilege and refused to testify.

The prosecution had stated that pursuant to Penal Code section 1324, ² it would move for an order directing Vigno to testify and would offer him immunity from prosecution. Defense counsel opposed the district attorney's motion as he was uncertain whether the grant of immunity ³ would apply to both federal and the state prosecutions. The defense also offered to provide Vigno with counsel of his own choosing.

The court expresed doubt about the matter of immunity ⁴ and ruled, over defendant's objection and pursuant to Evidence Code section 1291, that since Vigno had asserted his Fifth Amendment privilege, he was 'unavailable' and his testimony at the preliminary hearing could be read to the jury.

Defendant contends that Vigno was not an 'unavailable witness' under Evidence Code sections 1290 and 1291, and that the reading of Vigno's preliminary hearing testimony constituted a violation of defendant's Sixth Amendment right to confrontation (Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508).

The nature of the right was defined by our Supreme Court recently in In re Montgomery, 2 Cal.3d 863, at page 867, 87 Cal.Rptr. 695, at page 697, 471 P.2d 15, at page 17; 'The ability of the fact finder to evaluate a witness' credibility is severely hampered when such witness is absent and when his prior testimony is read into evidence. (Citations.) Only if the necessity, due to the witness' Unavailability, is clearly demonstrated may the defendant's right of confrontation be overcome, For this right is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the trier of the fact to weigh the credibility of the witness' (emphasis added).

But the required 'unavailability' is not limited to the situation where the witness is beyond the jurisdiction of the court and 'good faith' efforts have been made by the prosecution to find him and secure his attendance. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (June 1970), the U.S. Supreme Court held that the accused's constitutional right to confrontation was not violated by the reading of the testimony at the preliminary hearing of a witness who at the trial could not remember the details of the transaction. The court also noted that for purposes of the confrontation clause, there is no significant difference between a witness who fails to testify about an alleged offense because he cannot remember or is unwilling to do so for fear of self-incrimination (see Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed. 213).

In People v. Williams, 265 Cal.App.2d 888, 71 Cal.Rptr. 773, where the question was the propriety of reading the absent witness' testimony from the transcript of the prior trial that had been reversed, we held at page 892, 71 Cal.Rptr. at page 775: 'Evidence Code, section 1291 provides in part that 'Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is Unavailable as a witness and * * * (t)he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.' (Italics added.)

'Evidence Code, section 1290, subdivision (a), defines 'former testimony' to include testimony given under oath in a former trial of the same action.

'Evidence Code, section 240, so far as pertinent herein, provides that a declarant who is '(e)xempted or precluded on the ground of privilege from testifying concerning the matter to which his statement is relevant' is 'unavailable as a witness.' In other words, a witness whose Testimony is not available, even though he is present at the trial, is 'unavailable as a witness' within the meaning of Evidence Code, section 1291. (Cf. Johnson v. People (1963) 152 Colo. 586, 384 P.2d 454.)'

But defendant contends that Vigno was not an 'unavailable' witness since the court's refusal to grant immunity and force Vigno to testify was based on its mistaken understanding that the immunity would not extend to federal prosecution. Defendant is in no position to raise this point as defense counsel Himself urged the ruling upon the court, objected to the granting of immunity, and the...