People v. Pettyjohn

• Citation: 342 P.2d 416,172 Cal.App.2d 188
• Decision Date: 21 July 1959
• Docket Number: Cr. 6493
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred PETTYJOHN, Defendant and Appellant.

Page 416

342 P.2d 416

172 Cal.App.2d 188

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred PETTYJOHN, Defendant and Appellant.

Cr. 6493.

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

July 21, 1959.

Fred Pettyjohn, appellant, in pro. per.

Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

The District Attorney of Los Angeles County filed an information wherein defendant was accused of violation of Section 11500 of the Health and Safety Code, in that he had in his possession certain narcotics, marijuana and amidone on or about March 13, 1958. Following entry of a plea of not guilty, trial by jury was duly waived, and by stipulation the cause was submitted to the court on the transcript of the testimony adduced at the preliminary examination, each side reserving the right to offer additional evidence, and to object to the introduction of any evidence contained in the aforesaid transcript. It was further agreed that all exhibits be deemed admitted in evidence subject to the rulings of the trial court on any objections made thereto.

After reading the transcript of the preliminary hearing, hearing additional evidence and the arguments of counsel, defendant was adjudged guilty as charged. His motion for a new trial was denied and he was sentenced to state prison. From the judgment and sentence, and the order denying his motion for a new trial, defendant prosecutes this appeal. Since no appeal from a 'sentence' is authorized, the attempted appeal therefrom must be dismissed (People v. Gallardo, 41 Cal.2d 57, 60, 257 P.2d 29).

We consider the following a fair epitome of the factual beckground surrounding this prosecution.

Edgar P. Brown, a police officer of the city of Los Angeles attached to the Narcotics Division, testified he was in the vicinity of 24019 South Avalon Boulevard, at Wilmington in the city of Los Angeles at about 2:45 p. m. on the afternoon of March 13, 1958. Officer Brown was accompanied by his working partners, Officers King and Trembly, and the three were located about a block east of defendant's residence. They observed the latter drive up in an automobile. 'We--and by 'we' I am referring to Sergeant Trembly, my partner, and Sergeant King, also my partner, and we at this time proceeded to his dwelling and apprehended the suspect a short sistance from his dwelling, approximately, oh, fifteen yards, I would say. At this time he was placed under arrest and returned to his address.' Concededly, the arrest and ensuing search were made without warrants. As to the basis upon which the arrest and search was made Officer Brown testified:

'Q. By Mr. Feldman (Deputy District Attorney): Now, you say you arrested this man outside of his residence? A. Yes.

'Q. Why did you arrest him? A. We arrested him for suspicion of the Narcotic Act, a felony.

'Q. And on what was this suspicion based? A. The reason was due to the fact that we had received information from confidential informers in the past regarding the defendant's activity in using and selling narcotics.

'Q. And this source of information you had in the past, have you had other information from that source? A. We have had other information from two of the confidential informers.

'Q. Did this information in the past prove to be reliable? A. In both instances. Yes, sir.

'Q. And based on that information you made this arrest? A. We did.

'Q. And it would be detrimental to the interests of the public to disclose such source of information at this time? A. Definitely.

'Mr. Feder (Attorney for defendant): If your Honor please, I object to that. That is the witness' right to claim the privilege.

'Mr. Feldman: Your Honor, if I may be heard on that. Under Section 1881----

'The Court: No one has asked him for the identity of the informer. Why don't you wait until the question is asked.

'Mr. Feldman: I am sorry.' (Emphasis added.)

As to the manner in which the search of defendant's residence was conducted, Officer Brown testified on cross-examination by Attorney Feder, defendant's counsel at the preliminary hearing:

'Q. Did you have a key? A. No, sir.

'Q. How did you gain entry? A. Force was used to gain entry through the door.

'Q. You broke the door down? A. Yes, sir. The door was broken down, yes, sir.

'Q. Now, you didn't have a warrant for the arrest of this defendant; is that correct, Officer? A. I did not.

'Q. And you didn't have a search warrant for the search of the house where this defendant resided; is that correct? A. I did not.

'Q. Or your fellow officers, so far as you know? A. To my knowledge, they did not.'

Upon thus entering defendant's residence consisting of three rooms, the officers searched the same. Officer King called attention to a white rolled cigarette lying on a book case. He asked defendant what it was. The latter said he did not know. Officer Trembly removed two glass jars from a chair in the kitchen. One jar contained pills and the other a hypodermic outfit. The officers took the cigarette and jars into their possession and conducted defendant to the police station where he was interrogated. He denied knowledge of any of the items discovered in the house. He did state, however, that he lived there alone and that to his knowledge he had the only key.

The items were examined by an expert forensic chemist. In his poinion the cigarette contained marijuana. Various of the tablets or capsules contained amidone, and others contained morphine, Demerol, and codeine, all narcotics. Other items included with these were cigarette papers, an eye dropper, two hypodermic needles and small gauge wire.

Officer Brown, who had been attached to the narcotics division more than three and a half years, and as such had seen the arms and marks left by the use of hypodermic needles, examined defendant at the location of his address and at the police station. He observed such marks as those noted above on the arm of defendant.

Testifying more specifically with regard to the information which the police had obtained from confidential informers, Officer Brown stated that the first information concerning defendant was received approximately three months before the arrest. As Officer Brown remembered, he last received information concerning defendant two days before the arrest, on a Tuesday (the arrest occurring on the following Thursday). He received this latter information from one of the informers (sometimes referred to as informer number 4) personally. A second informer had given information periodically concerning defendant, and the last information the officer received from this informer was perhaps a week prior. Information from the informer who spoke with Officer Brown on Tuesday had been acted on in the past many times by Officer Brown and other officers. It had resulted in arrests, in the finding of narcotics, and in two convictions that he recalled. When this informer spoke with Officer Brown on Tuesday, he said that defendant was still living 'back of a bar' (adjoining his residence) and that he had some drug store narcotics in his possession at that time. The informer also said he had 'scored', that is, had purchased narcotics from defendant that day.

The informer who first gave information about defendant some three months prior to the arrest stated that the latter then lived at a different location, that when he (the informer) went in to 'score' narcotics he would go up the alley and honk, defendant would come out, go back in, then in about ten minutes come out with the 'stuff'; and that defendant sold heroin by the grams. The police 'staked' on this position several times but did not observe 'exactly what they wanted' for an arrest. At that time the officers were not interested in users but wanted positive knowledge that narcotics were in the location. The officers received positive knowledge when two other informers verified that defendant was selling narcotics. As aforementioned, there was a fourth and the most recent informer, who gave information on the Tuesday prior to the arrest. The reason the police did not arrest defendant on Tuesday was because there was more than one narcotic peddler in the area and there were only three officers; they could not 'get on information immediately.'

The earliest informer in point of time stated to the police that he based his information on having bought narcotics from defendant. The next informer stated that he did not purchase narcotics from defendant but had been in the latter's presence when sales took place. The third informer stated that he had purchased narcotics from defendant, as did the fourth informer.

Defendant did not testify in his own behalf nor offer any evidence in his defense.

As his first ground for reversal appellant urges that the trial court committed prejudicial error in not requiring disclosure of the names of the four informers referred to by Officer Brown when defense counsel requested the information.

In his beief appellant states that he '* * * is not so much contesting the fact of the other informers (1, 2, 3), since no arrest was made from that information, but rather the question is on informer number 4 * * *'.

Appellant further urges that, 'It is true that appellant is not charged with the selling of marijuana, but rather possession thereof; the point is that the arrest was due to the fact that informer number 4 had made a purchase and informed the arresting officers that Pettyjohn had in his possession narcotics. This made the informer a participant and therefore his identity should have been revealed.'

We are satisfied that the charge of possession of narcotics of which appellant was convicted did not involve participation by the informer therein. In other words, we cannot perceive wherein informer number 4 could be a material witness on the issue of appellant's guilt of possessing narcotics. While it is true that disclosure is not...