People v. Thomas

• Decision Date: 05 March 1975
• Docket Number: Cr. 7573
• Citation: 45 Cal.App.3d 749,119 Cal.Rptr. 739
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin Braxton THOMAS, Defendant and Appellant.

Page 739

119 Cal.Rptr. 739

45 Cal.App.3d 749

PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin Braxton THOMAS, Defendant and Appellant.

Cr. 7573.

Court of Appeal, Third District, California.

March 5, 1975.

Rehearing Denied March 24, 1975.

Hearing Denied May 1, 1975.

Evelle J. Younger, Atty. Gen., by Susan Cohn and Willard F. Jones, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

Evangelin M. Miller, Sacramento, for defendant and appellant.

PARAS, Associate Justice.

After a trial by jury, defendant was found guilty of possession of heroin (Health & Saf.Code, § 11350). ¹ He appeals from the judgment.

FACTS

On November 9, 1973, Roy Asakawa, a parole agent for the State Department of Corrections, received a call from Officer Pederson of the Stockton Police Department. Pederson informed Asakawa that he had received recent information from a confidential reliable informant that defendant was in possession of, and dealing in, heroin.

The defendant's regular parole agent was out of town on another assignment. In his stead, Asakawa decided to initiate and conduct a search, and requested the Stockton police to assist him. ²

At approximately 12:30 p.m. on November 9, Asakawa, Pederson and Stockton Police Officers Horton and Stewart went to the defendant's place of residence. The officers knocked on the door and a Mrs. Elaine Williams (subsequently identified as defendant's girlfriend) responded. Asakawa informed Mrs. Williams that he was a parole agent, identified himself, and advised her that they were there to see the defendant. Mrs. Williams told the officers that the defendant was not present, but she admitted them into the apartment.

Upon entering the apartment, Officer Stewart heard a noise in a bedroom and entered it. There he observed the defendant bending over with his hand extended toward a dresser drawer. As soon as the defendant saw the officer, he pulled his hand back from the drawer and began talking. Stewart identified himself to the defendant and showed him his identification. He further advised the defendant of his constitutional rights. Heroin was found in the dresser drawer and the defendant stated that it was his. A visual examination of defendant's eyes and arms revealed that he had been and was still a user of heroin.

Mrs. Williams testified for the defense. She maintained that the heroin belonged to one Vido Tolliver who had given it to her to hold for him, and that the defendant did not know of its existence. She had, however, told the police at the time of the search that the heroin was hers, without associating Tolliver with its ownership.

The defendant, testifying in his own behalf, denied knowing that there was any heroin in the house. He also denied admitting to the officers that the heroin was his.

1. DISCLOSURE OF NAME OF CONFIDENTIAL INFORMANT

The defendant claims that the court committed prejudicial error by denying the request for disclosure of the name of the confidential informant who triggered the search. ³ It is defendant's contention that the informant had personal knowledge of how the heroin was present on the premises. He also contends that if the informant had been called as a witness, he could have corroborated Mrs. Williams' testimony that the owner of the heroin was Vido Tolliver, the alleged third party (this is of course contrary to Mrs. Williams' statement to the police that the 'dope' was hers; it is also contrary to the statement of the defendant to the police that the heroin was his).

The only showing of the defendant to support such contentions is that the informant told the police that he was present at the residence of defendant and saw high grade heroin in defendant's possession there. Such facts do not corroborate Mrs. Williams, nor do they disclose a reasonable possibility that the informant could give evidence that might tend to exonerate the defendant. There is nothing else in the trial testimony of the defendant, Mrs. Williams, or anyone else, which would be possibly fortified or clarified by the informant. The trial court thus did not err in denying disclosure of the informant's identity.

Defendant relies upon Williams v. Superior Court (1974) 38 Cal.App.3d 412, 423, 112 Cal.Rptr. 485, 491, where we stated: 'Where possession of contraband is among the elements of the cime charged and it is imputed to the defendant by reason of the location at which the contraband is discovered by the police, and where such discovery stems in whole or part from an informer's very recent observation of contraband on those same premises, the Supreme Court has compelled disclosure of the informer's identify if the evidence shows that persons other than the defendant were on the premises when the informer observed the contraband and that the defendant was not then present or may not have been present (People v. Garcia, Supra, 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366; Honore v. Superior Court, Supra, 70 Cal.2d 162 & fn. 3, 74 Cal.Rptr. 233, 449 P.2d 169 (re defendant Honore); cf., Theodor v. Superior Court, Supra, 8 Cal.3d 77 at pp. 82--83, 89--90, 104 Cal.Rptr. 226, 501 P.2d 234; People v. Hunt, Supra, 4 Cal.3d 231, 93 Cal.Rptr. 197, 481 P.2d 205), or If the record is silent as to whether the defendant was present (Honore v. Superior Court, supra, 70 Cal.2d 162 & fn. 3, 74 Cal.Rptr. 233, 449 P.2d 169 (re defendant Newman)).' (Emphasis in original.)

In People v. Hambarian (1973) 31 Cal.App.3d 643, 658, 107 Cal.Rptr. 878, 889, the court summarizes the law of disclosure as follows: "(W)hen the defendant makes an adequate showing that the informer may be a material witness on the issue of guilt or innocence, disclosure should be compelled or the case dismissed.' (Theodor v. Superior Court, Supra, 8 Cal.3d at p. 88, 104 Cal.Rptr. (226) 233, 501 P.2d (234) 241 and cases there cited.) The showing required of a defendant seeking disclosure was delineated in People v. Garcia, 67 Cal.2d 830, 839--840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372 and has been frequently repeated in the decisions of the California Supreme Court (e.g., Theodor v. Superior Court, Supra; Price v. Superior Court, 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721; Honore v. Superior Court, 70 Cal.2d 162, 168, 74 Cal.Rptr. 233, 449 P.2d 169): '(A) defendant seeking to discover the identity of an informant bears the burden of demonstrating that, 'in view of the evidence, (fn. omitted) the informer would be a material witness on the issue of guilt And nondisclosure of his identity would deprive the defendant of a fair trial.' (Citations omitted.) That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt Which might result in defendant's exoneration.' (Italics supplied.)'

Here, the informant was not a material witness on the issue of guilt. He simply pointed 'the finger of suspicion toward a person who has violated the law.' (See People v. McShann (1958) 50 Cal.2d 802, 808, 330 P.2d 33, 36.) The guilt of the defendant was established by evidence totally independent of the informer.

Defendant was found leaning toward a dresser drawer where the heroin was found. He admitted it was his. His physical condition evidenced recent drug use. In view of this strong evidence of guilt, we conclude additionally that even if the informant were a material witness, the defendant was not deprived of a fair trial (People v. Hambarian, supra at p. 661, 107 Cal.Rptr. 878), and any error in this regard was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705).

2. SEARCH

Defendant contends that the information supplied by the unidentified informant was not sufficiently corroborated to provide reasonable cause to search. (Cf., People v. Cruz (1966) 244 Cal.App.2d 137, 144--145, 53 Cal.Rptr. 354.) He also contends that there was no evidence by the prosecution to show that defendant was in fact on parole or subject to a warrantless search. We disagree.

Prior to trial, and out of the presence of the jury, defendant and his counsel both acknowledge to the court the defendant's parole status. Further, since a parole officer initiated the search, it is implicit that petitioner was on parole. Finally, such status was expressly testified to by Agent Asakawa.

This was a parole search initiated by a parole officer. Under such circumstances a full showing of probable cause is not required. (Hernandez v. Superior Court (1971) 16 Cal.App.3d 169, 172, 93 Cal.Rptr. 816.) In this connection we note the court's language in People v. Mason (1971) 5 Cal.3d 759, 764--765, 97 Cal.Rptr. 302, 305, 488 P.2d 630, 633.) 'We have heretofore suggested, however, that persons conditionally released to society, Such as parolees, may have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities 'reasonable' which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands. (See In re Martinez, 1 Cal.3d 641, 647, fn. 6, 83 Cal.Rptr. 382, 463 P.2d 734; cf. People v. Gilkey, 6 Cal.App.3d 183, 186--188, 85 Cal.Rptr. 642, and cases cited.)' (Emphasis added.)

We therefore conclude that in view of the information received, it was proper for the parole officer to initiate the search; and it was not necessary to corroborate the information provided by the informant. (See People v. Hernandez (1964) 229 Cal.App.2d 143, 150--151, 40 Cal.Rptr. 100.)

3. CONSENT TO SEARCH

Defendant contends that his girlfriend, with whom he lived, did not freely consent to the search. The record, however, supports a contrary conclusion. Furthermore, this was a parole search and as such was not dependent upon consent for justification. The evidence showed that defendant, a parolee, shared the residence with Mrs....