People v. Sipress

• Decision Date: 02 September 1975
• Docket Number: Cr. 26456
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tom Arthur SIPRESS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 884

123 Cal.Rptr. 884

51 Cal.App.3d 98

The PEOPLE, Plaintiff and Respondent, v. Tom Arthur SIPRESS, Defendant and Appellant.

Cr. 26456.

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

Sept. 2, 1975.

Ronald Stuart Smith, Huntington Beach, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Nancy A. Saggese, Deputy Attys. Gen., for plaintiff and respondent.

THOMPSON, Associate Justice.

Convicted after a jury trial of sale of cocaine in violation of Health and Safety Code section 11352, appellant contends that the trial court improperly permitted a defense witness to refuse to answer various questions asked of him by claiming the Fifth Amendment privilege. He argues that: (1) the witness was immunized from prosecution by Health and Safety Code section 11367; and (2) the prosecution was required to grant immunity to the witness pursuant to Penal Code section 1324 to preserve appellant's right to a fair trial. Concluding that the record does not establish that Health and Safety Code section 11367 so completely immunized the witness from all possibility of prosecution as to foreclose the possibility that his answers to the questions asked might supply a link in the chain of evidence incriminating the witness and that appellant has not preserved any right he might have to compel that grant of immunity to the witness by requesting the grant at trial, we affirm the judgment.

In November of 1973, Robert (Clutch) Franklin was arrested in possession of 10 pounds of marijuana. Los Angeles Sheriff's Deputy Christopher Guzzetta told Franklin that if he would work with the police there was a possibility that Guzzetta could help him.

On November 23, 1973, Franklin was thoroughly searched by Guzzetta at the Malibu sheriff's station and found to possess no contraband. He accompanied Deputy Sheriff Edward Araiza, working undercover, to an address on Coast Highway where Franklin indicated cocaine could be purchased.

The prosecution's evidence established that appellant sold one ounce of cocaine to Araiza with payment of $200 passing from Araiza to appellant through Franklin. Appellant's defense was that Franklin and not he supplied the cocaine without appellant's knowledge. To corroborate his own testimony, appellant called Franklin as a witness. After having answered a question to the effect that he knew appellant, Franklin indicated that he wished to exercise his privilege against self-incrimination. The trial judge stated that the witness should claim the privilege as each question was asked of him by appellant's counsel and that a ruling would then be made. The trial court sustained Franklin's claim of privilege to questions of whether he went to appellant's home with a police officer, whether he had been promised that if he 'set someone up' he would get a $500 bail on a case pending against him, whether bail was in fact set at $500, whether he was skin-searched on November 23, whether appellant sold him cocaine on that date, whether on November 23 Franklin had a conversation with appellant outside of the presence of Araiza and then handed Araiza cocaine, whether it was a fact that he never bought cocaine from appellant, whether he went to appellant's house as a police informant to attempt to purchase cocaine, whether he had cocaine on his person when he went to appellant's house, whether he asked appellant to sell him cocaine, whether at appellant's house the witness took cocaine from his person and handed it to Araiza, and whether at the time he went to the house Franklin owed appellant $200.

The jury returned a verdict finding appellant guilty of selling cocaine. This appeal from the resulting judgment followed.

Appellant contends that the trial court erred in sustaining Franklin's claim of privilege against self-incrimination rather than requiring Franklin to answer. His contention is two-pronged. He argues that Health and Safety Code section 11367 immunizes Franklin from prosecution for anything involved in the transaction of November 23, 1973, and that in any event due process of law and the right to a fair trial require that the prosecution have granted Franklin immunity under Penal Code section 1324 so as to make his testimony available to appellant's defense.

While Health and Safety Code section 11367 provides:

'All duly authorized peace officers, while investigating violations of this division in performance of their official duties, and any person working under their immediate direction, supervision or instruction, are immune from prosecution under this division,' and while Franklin was concededly...