People v. Partlow

• Decision Date: 05 September 1978
• Docket Number: Cr. 16691
• Citation: 148 Cal.Rptr. 744,84 Cal.App.3d 540
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lonn Earl PARTLOW, Defendant and Appellant.

Page 744

148 Cal.Rptr. 744

84 Cal.App.3d 540

PEOPLE of the State of California, Plaintiff and Respondent, v. Lonn Earl PARTLOW, Defendant and Appellant.

Cr. 16691.

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

Sept. 5, 1978.

Hearing Denied Nov. 9, 1978.

George A. Sherinian, Sherinian & Elders, Santa Cruz, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., R. Gordon Baker, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant, Lonn Earl Partlow, appeals from an order granting probation ¹ after a jury found him guilty of second degree burglary (Pen.Code, § 459) and three counts of possession of cocaine, amphetamines, secobarbital and tuinal (Health & Saf.Code, § 11350), and acquitted him of possessing cocaine for sale (Health & Saf.Code, § 11351). He contends that: 1) prior to the trial, he was improperly denied disclosure of the whereabouts of the informer who was a material witness; 2) he was improperly denied discovery of certain evidence that could have been used to impeach the informer; 3) the court erred in allowing the possession of cocaine for sale count to remain in the information after it had been dismissed by the preliminary hearing magistrate; 4) his motion to recuse the prosecutor should have been granted; 5) entrapment was proven as a matter of law; and 6) the court erroneously refused to give his requested instructions on entrapment. For the reasons set forth below, we have concluded that the judgment must be affirmed.

Reviewing the record in the light most favorable to the judgment, as we must, the following pertinent facts appear. About July 1, 1975, the informer, Robert Sladkey, who was on parole for second degree burglary, happened to meet defendant, whom Sladkey had known for 10 or 12 years. The meeting occurred at Eastside Hardware in Santa Cruz, where defendant was buying supplies for his business. When defendant asked Sladkey if he knew where defendant could buy some stolen guns or automatic weapons, Sladkey replied that he didn't know. The course of their conversation turned to Eastside Hardware's warehouse and the fact that its owner, Edward Giubbini, was going on vacation.

After Sladkey indicated that during the vacation the manager who would be in charge of the warehouse was unfamiliar with its exact inventory, defendant asked about the possibility of robbing the warehouse. When Sladkey indicated that television cameras monitored the warehouse during store hours, defendant asked Sladkey if he could get a set of keys. Sladkey's mother was the assistant manager, took care of the Giubbini household when they were away, and had an extra set of keys at all times. She lived in a house adjacent to the warehouse premises. Sladkey promised to let defendant know when the Giubbinis actually left for their two-week vacation to Alaska so that further plans for the burglary could be made at that time.

Unknown to defendant, Sladkey had been an informer for the State Department of Justice under the supervision of Agent Walter Kubas. Kubas told Sladkey to let Inspector Verbrugge of the district attorney's office know if he heard of any crimes being planned in Santa Cruz. Sladkey promised to keep in touch. Accordingly, on July 3, 1975, Sladkey contacted Verbrugge and told him of the proposed burglary of Eastside Hardware warehouse that defendant had discussed. Sladkey indicated that the burglary was going to take place during the Giubbini's vacation. Verbrugge duly notified Sergeant Kusanovich of the Santa Cruz Police Department.

On July 11, Sladkey met with Verbrugge, Kusanovich and Deputy District Attorney Danner, to tell them that the burglary was going to take place within three weeks. Between July 10-12, Sladkey left a message for defendant, indicating that the Giubbinis had left for their vacation. On July 14, Verbrugge, Kusanovich and Danner met with Giubbini and made arrangements to secure keys to the warehouse; these keys were then given to Sladkey by Kusanovich. During the next few days, Sladkey had several telephone conversations with defendant. After they decided that the burglary would take place on the night of July 22 between the hours of 8 and 12, Sladkey informed Verbrugge.

On July 22, the police staked out the warehouse while Verbrugge and Danner waited in the house belonging to Sladkey's mother, adjacent to the warehouse. When Sladkey called defendant at home around 8:30, there was no answer; Sladkey left a message with defendant's answering machine. Defendant called Sladkey at the house about 10:30 and again at 10:50; it was decided there would be no burglary that night.

The next night, July 23, the stakeout of the warehouse continued. Verbrugge and Danner again waited in the house while Kusanovich watched the warehouse and kept the others posted. After another exchange of telephone calls between Sladkey and defendant, defendant told Sladkey he was on his way. When defendant arrived, he parked his truck in the driveway of the house, took the keys from Sladkey and opened the warehouse doors. Defendant had a pocket scanner which monitored police frequencies and enabled him to hear incoming calls to patrolling units. After he and Sladkey finished taking what they wanted out of the warehouse, defendant got into his truck and proceeded to drive away. He was stopped by Kusanovich.

After defendant was arrested, he was taken to the station where he was searched by Officer Bartle. Bartle found on defendant's person two plastic vials and a plastic bag containing valium, secobarbital, tuinal, methqualone and methamphetamine and a paper bindle containing .17 grams of cocaine. Bartle also found a small black book, and concluded that it contained a record of numerous narcotic transactions.

Defendant took the stand and denied any participation in the planning of the burglary or having the bindle of cocaine. He testified that he tried to dissuade Sladkey from any burglary and that Sladkey alone was responsible for the burglary. Defendant was reluctantly persuaded by Sladkey to be there with the truck on the evening of July 23. Sladkey opened the door with his keys and both entered the warehouse. Sladkey took some boxes and items which were loaded on a wheelbarrow and then taken to defendant's truck. Defendant figured that Sladkey could account for the items taken as it was his uncle's warehouse. Some of the narcotics found on defendant also belonged to Sladkey and were given to him by Sladkey on that evening. The book in his possession was a double ledger he kept for a friend who dealt in narcotics. Defendant denied using or selling narcotics.

On October 3, 1975, at the hearing on defendant's motion for pretrial discovery, defendant was granted discovery of certain information concerning Sladkey but was denied any information as to his whereabouts. It was stipulated that Sladkey was a material witness. Danner offered to arrange a meeting at his office between the defense and Sladkey; subsequently this offer was rescinded. Sladkey refused to make himself available to the defense. Accordingly, defense counsel renewed his request for information concerning Sladkey's whereabouts prior to the preliminary hearing. This motion was denied along with a defense motion to have Sladkey present at the preliminary hearing. Subsequently, defendant's Penal Code section 995 motion for dismissal of the charges for failure to reveal Sladkey's whereabouts was denied.

The defense again raised the matter at preliminary hearing which began on January 7, 1976. The magistrate denied the motion to produce the informer on the basis of the prior denial. At the conclusion of the preliminary hearing, defendant was held to answer on charges of burglary and possession of cocaine; the third count alleging possession of cocaine for sale was dismissed as the magistrate did not believe the amount of cocaine found on defendant was sufficient for that charge.

On January 27, 1976, defendant was charged by information with burglary, possession of cocaine, amphetamines, secobarbital and tuinal, and possession of cocaine for sale. Defendant moved to set aside the information due to the nondisclosure of Sladkey's whereabouts and the filing of the charge alleging possession of cocaine for sale, which had been dismissed by the magistrate at the preliminary hearing. The motion was denied.

Verbrugge testified at the preliminary hearing that there were no charges outstanding against Sladkey. Sometime after the preliminary hearing and before the trial, defendant discovered that Sladkey had been cited for petty theft on July 14, nine days before the burglary. Sladkey was to appear on this charge on July 23 but failed to do so and a bench warrant was issued. On July 29, six days after the burglary, the petty theft matter against Sladkey was dismissed on the People's motion.

At the beginning of the trial, another defense motion to dismiss for failure to disclose Sladkey's whereabouts of the informant was denied. A motion to recuse the prosecutor was denied and a final motion to dismiss on the basis of nondisclosure of evidence beneficial to defendant was also denied.

Defendant first argues that he was improperly denied disclosure of the whereabouts of Sladkey prior to the trial. As indicated above, although defendant vigorously objected at every stage of the proceeding, the information was not disclosed and Sladkey was not produced until the trial. The question is whether defendant had a right to Sladkey's presence or in the alternative, information as to his whereabouts at the preliminary hearing.

,2] [1,2] Disclosure of the identity of an informant at the preliminary hearing may be required (People v. Goliday, 8 Cal.3d 771, 778-779, 106 Cal.Rptr. 113, 505 P.2d 537). Disclosing the identity of an informant includes demonstrating...