People v. Kiihoa

• Citation: 349 P.2d 673,53 Cal.2d 748,3 Cal.Rptr. 1
• Decision Date: 29 February 1960
• Docket Number: Cr. 6552
• Parties: , 349 P.2d 673 PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Leho KIIHOA, Defendant and Appellant.
• Court: California Supreme Court

Page 1

3 Cal.Rptr. 1

53 Cal.2d 748, 349 P.2d 673

PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Leho KIIHOA, Defendant and Appellant.

Cr. 6552.

Supreme Court of California, In Bank.

Feb. 29, 1960.

Rehearing Denied March 30, 1960.

Earl Klein, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

WHITE, Justice.

Gilbert Leho Kiihoa appeals from a judgment of conviction of violation of section 11500 of the Health and Safety Code (sale of narcotics).

On April 23, 1958, a deputy sheriff assigned to the narcotics detail, and one Robert Stough, a confidential informant, were seated in a cafe when the defendant and Frank Leyva, a known narcotics peddler, entered. The officer testified that after Stough spoke to the defendant, the latter joined Stough and the officer in the restroom, where the defendant stated that Leyva did not want to deal with them directly; that Leyva would deal with them only through the defendant; that a gram of 'junk' would cost $17; that the money should be paid to the defendant who would deliver it to Leyva and return with the 'junk' to the officer. The officer gave the defendant $17, who then inquired whether the officer and Stough 'wanted to fix there.' The officer replied that they did not have their 'outfit' and would wait in their car for the defendant's return. After five or ten minutes the defendant entered the officer's vehicle and delivered a package which, upon analysis, was found to contain heroin. Two days later the officer saw the defendant again, and the latter solicited the officer's future patronage. Other officers observed the foregoing events, but the observer on April 23 was not near enough to make a positive identification of the defendant.

The defendant was first arrested for the alleged violation, without a warrant, on July 16, 1958, by a police officer who had taken no part in the foregoing transaction. No charges were filed against the defendant at that time, and he was released after being held for 51 hours. The defendant then filed a civil action for false arrest based on that detention. Thereafter charges were filed against the defendant, alleging the incident of April 23, and he was rearrested on September 29, 1958, and brought to trial.

The prosecution, in an attempt to explain the circumstances of the defendant's arrests, produced a police officer who testified that the defendant was released because it would be necessary to divulge the identity of the informant if they proceeded to trial; that Stough (the informant) had been intimidated and did not wish to be identified, and that it was established policy not to prosecute in these circumstances. This witness was informed, however, that after the defendant's release Stough had left the State of California. That being the case, and it appearing that Stough might then be identified without subjecting him to reprisals, the accused was rearrested and brought to trial.

The defendant contends that his first arrest was illegal; that he was subjected to double jeopardy; that he was entrapped; that the case for the prosecution was inherently improbable, and that he was denied a fair trial. As the judgment of conviction must be reversed on the last ground mentioned, the merit, if any, in the other contentions need not be considered.

As noted, the first arrest was not made until almost three months after the alleged violation, and the final arrest more than two months later. The defendant testified that he did not know the alleged informant and had never seen the deputy sheriff who participated in the alleged transaction until the preliminary hearing, thus putting in issue the credibility of the deputy's testimony. In these circumstances it could not be, and is not, contended that Stough is not a material witness. See People v. Williams, 51 Cal.2d 355, 359-360, 333 P.2d 19. Accordingly, the privilege of refusing to identify Stough as an informer (Code Civ.Proc. § 1881, subd. 5), could not have been properly asserted. People v. Durazo, 52 Cal.2d 354, 340 P.2d 594; People v. Williams, supra, 51 Cal.2d 355, 333 P.2d 19; Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39; People v. McShann, 50 Cal.2d 802, 330 P.2d 33. In the Durazo, Williams and McShann cases it was held that the prosecution is required to disclose the informer's name or dismiss the case, on proper application by the defendant to the court. In none of the cases referred to, however, was the question of production of and confrontation by the defendant before the court. In the present case the informant's identity was voluntarily disclosed, and in response to the defendant's motion for the production of Stough, the district attorney answered that 'His name has been divulged and his last known whereabouts has been divulged. I believe that is as far as the cases ruling on the subject go.' The motion was denied.

The right of an accused to be confronted with witnesses is the right to have witnesses who testify do so in the presence of and subject to cross-examination by the defendant. The prosecution is not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial. People v. Tuthill, 31 Cal.2d 92, 98, 187 P.2d 16; People v. Parry, 105 Cal.App.2d 319, 232 P.2d 899. The narrow question in the present case is whether the concept of a fair trial has been denied where the prosecution is allowed to arrange to withhold prosecution of a suspect during such time as a material witness might be available, and proceed to trial only when that witness is believed to be out of the jurisdiction and not available to testify.

The intentional suppression of material evidence by the state would, of course, be a denial of a fair trial and due process. This could, in some circumstances, be mainfest by a failure of the prosecution to call certain witnesses. Curtis v. Rives, 75 U.S.App.D.C. 66, 123 F.2d 936, 938; cf. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. Such a denial would likewise exist where the prosecution was allowed to control the course to proceedings in a manner which would prevent the accused from presenting material evidence. The rule requiring the disclosure of the identity of an alleged informer...