People v. Taylor

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN
• Citation: People v. Taylor, 159 Cal.App.2d 752, 324 P.2d 715 (Cal. App. 1958)
• Decision Date: 29 April 1958
• Docket Number: Cr. 3406
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank TAYLOR, Defendant and Appellant

Page 715

324 P.2d 715

159 Cal.App.2d 752

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank TAYLOR, Defendant and Appellant

Cr. 3406.

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

April 29, 1958.

Rehearing Denied May 29, 1958.

Hearing Denied June 25, 1958.

Frank Taylor, appellant in pro. per.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Richard S. L. Roddis, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

By an information containing two counts, the defendant, Frank Taylor, was charged with two violations of section 11500 of the Health and Safety Code, and with two prior convictions for narcotic offenses in this state, one a felony in violation of Health and Safety Code, section 11160 (now 11500) in 1944, and one, a misdemeanor, violation of Health and Safety Code, section 11721 in 1955.

The first count charged the unlawful transportation of heroin; the second, the unlawful sale of heroin, both events being charged having occurred on November 7, 1956, in San Francisco. Defendant admitted the prior misdemeanor conviction and pleaded not guilty to the other charges. By a jury he was found guilty of all the charges and sentenced on the two counts, the sentences to run concurrently. Defendant appeals from the judgment and from the order denying his motion for a new trial.

The facts are as follows: State Narcotic Inspector Ohlson was told by a confidential informant, one Frank Thomas, also known as 'Tommie' that he had arranged to meet the defendant to make a purchase of heroin, between 2:30 and 3:30 p. m. on November 7, 1956, at the corner of Pierce and Eddy Streets in San Francisco. Before the appointed hour on November 7, 1956, Inspector Ohlson and Inspector Logan of the San Francisco Police Department met Frank Thomas at the State Building, stripped him, and thoroughly searched his clothig and his mouth. They gave him two $10 bills, the serial numbers of which the officers had recorded. Thomas had no personal property on his person except his clothing and these two bills. The officers drove Thomas to the corner of Pierce and Eddy Streets at 2:30 p. m. They let Thomas out of the car and parked on the east side of Pierce Street about 100 to 150 feet from the corner. Soon the defendant appeared, driving west on Eddy Street in a dark colored 1950 Kaiser automobile. The defendant stopped to pick up Thomas, who got in the car on the right side and sat in the front seat, and then proceeded west on Eddy Street about 3/4 of a block, and then stopped in the traffic lane for about one minute. The officer's car followed the defendant at a distance of about 100 to 150 feet. Thomas got out of the defendant's car and walked east to the officer's car while the defendant's car continued west on Eddy Street. The inspectors had Thomas under continuous observation from the moment he left their car until he returned and handed them a bindle containing five grains of heroin. During this period no person except the defendant had contact with Thomas. The defendant and Thomas were alone in the defendant's car.

The officers then returned to the State Building with Thomas and searched him again. He did not have the two $10 bills in his possession.

On January 10, 1957, the defendant was arrested by the same two officers in Foster's Restaurant on Fillmore Street between McAllister and Fulton. The officers recognized the appellant as the person they had observed in the car with Thomas on November 7, and as the person previously pointed out to them as 'Skippy' or 'Frank Taylor'. The officers had delayed the arrest for the November 7th transaction as they wanted to further investigate the defendant and ascertain his source of supply. Another sale to Frank Thomas had been arranged for November 8, but on this date the defendant was arrested by the San Francisco Police on vagrancy charges. At this time Officers Ohlson and Logan went to the Northern Station to talk to the defendant. On November 8, as well as on January 10, the defendant had numerous hypodermic puncture marks on the vein lines of his arms, some of them of recent origin.

The defendant took the stand and denied any connection with the sale transaction of November 7, 1956. He denied knowing Frank Thomas. He admitted owning a Kaiser automobile in November 1956, but stated that it was a 1947 rather than a 1950 model. He denied the possibiluty that anyone other than himself was driving his car on November 7, 1956, and admitted he might have been in the area on that day, but could not remember what he had been doing. He admitted being known by the nickname 'Skippy'. He admitted that he knew what heroin was and admitted being addicted to it at one time, but stated he had not used the drug since 1955.

Defendant's first major contention is that the fact that the people did not call the informant, Frank Thomas, as a witness for the prosecution was a denial of his right to confrontation. The case against the defendant rested entirely on the circumstantial evidence of the two police officers who witnessed the sale transaction. The right of the accused to be confronted with witnesses is the right to have the witnesses testify in his presence and the right of the accused to cross-examine them; it is not required that all witnesses or persons who may have knowledge of the crime be produced in court or called to testify. People v. O'Neill, 78 Cal.App.2d 888, 179 P.2d 10.

The defendant next contends that the people failed to properly reveal the identity of the informant as required by People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821, and People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79, and that the trial court failed to grant him sufficient time to locate the informant. There is no merit in this contention. The record indicates that on cross-examination, Inspector Ohlson disclosed the name and nickname of the informant, his last known San Francisco address, and further stated that he had not seen the informant for several weeks and now believed him to be living in Los Angeles. On the defendant's request, a physical description of the informant was also given. Defendant's attorney stated he would make a concerted effort to find the informant over the week-end and requested a continuance which was granted. On Monday morning, defendant's attorney stated to the court that he had been unable to locate the informant and did not request a further continuance.

The defendant further contends that the evidence is insufficient to support the verdicts. The testimony of the officers is sufficient to establish that a sale of heroin took place on November 7, 1956. People v. Alvidrez, 158 Cal.App.2d 299, 322 P.2d 557; People v. Alonzo, 158 Cal.App.2d 45, 322 P.2d 42. In People v. Barnett, 118 Cal.App.2d 336, 257 P.2d 1041, relied upon by the defendant, the informant and the accused were not under observation by the officers for a considerable period of time. In the instant case, the officers observed the informant from the moment he left their car until he returned to it a few minutes later. The defendant directs his most strenuous attack on the sufficiency of the evidence to support the identification by the officers of him as the person who took part in the criminal transaction on November 7, 1956. Both officers testified that although they were not personally acquainted with the defendant he had been pointed out to them on several prior occasions, that they had seen him drive his car on prior occasions, and as to their exact view of the defendant at the time. Whether or not the defendant was the person observed by the officers on November 7, 1956, was an issue properly...