People v. Wilkins

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN
• Citation: People v. Wilkins, 178 Cal.App.2d 242, 2 Cal.Rptr. 908 (Cal. App. 1960)
• Decision Date: 23 February 1960
• Docket Number: Cr. 3722
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph WILKINS, Defendant and Appellant.

Page 908

2 Cal.Rptr. 908

178 Cal.App.2d 242

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph WILKINS, Defendant and Appellant.

Cr. 3722.

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

Feb. 23, 1960.

C. L. Shinn, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

Defendant was charged by information with the sale of heroin in violation of section 11500 of the Health & Safety Code. He waived a jury trial and was tried by the court and found guilty was charged. The only argument on appeal is that the evidence is insufficient to support the judgment.

The record reveals the following facts: a police officer testified that on the afternoon of August 5, 1958 he and a federal narcotics agent searched an informant and then took her to the corner of Grove and Webster Streets in San Francisco. They gave her a $20 bill, a $10 bill and a $5 bill, whose serial numbers had been recorded and watched her proceed to the front of the Manor Plaza Hotel on Fillmore Street. They instructed her to always remain in sight of the officers and to contact no one except the person known to her as 'Pinky.' The informant met the defendant in front of the hotel and after a few minutes of conversation, her hands touched his. The defendant went into the Manor Plaza Hotel and returned in a few minutes. Again, the informant's hands met those of the defendant, who then went to the Gateway Cafe. The informant returned to the corner of Webster and Fulton to meet the officers. She did not have any of the money but had a small white paper bindle which was later found to contain heroin. The officers immediately went to the Gateway Cafe. They asked the defendant if he was called 'Pinky' and arrested him after he stated that his friends called him 'Pinky' but that his name was Joseph Wilkins. The defendant had in his possession the three bills whose serial numbers matched those which had been given the informant. About 15 minutes elapsed between the time of the transaction and the time of the defendant's arrest. The informant was in sight of the police officers during the entire transaction and neither talked nor had contact with any one except the defendant.

The defendant testified that he met the informant whom he knew as 'Peggy' in a bar of the Manor Plaza Hotel. She was playing '456' and lost some money in the game while he won. She complained to him of having no money he gave her 50 cents to buy a can of soup for them. She did so and brought it to the Gateway Restaurant to have it warmed. The defendant admitted knowing 'Peggy' for about three years but denied selling the package to her.

The defendant argues that the evidence is insufficient to support the judgment because: 1) the search of the informant was inadequate; 2) the fact that the marked money was found on his person is not sufficient to establish his guilt. There is no merit in either of these contentions.

The defendant's first argument is that the above evidence is insufficient to support the judgment of conviction. The testimony of the two eye-witnesses who saw the entire transaction is sufficient to support the conviction without the testimony of the informer-participant. It is now well established that the prosecution has no duty to call the informer as a witness. People v. Rodriguez, 175 Cal.App.2d 56, 345 P.2d 330; People v. Smith, 174 Cal.App.2d 129, 344 P.2d 435. In this case, where the crime was committed in the presence of the officers, the informer would not be a necessary witness on the issue of the defendant's guilt. The officers observed the defendant going through actions which the officers knew to be common to selling narcotics. There was reasonable cause for them to arrest and search him. People v. Fabela, 175 Cal.App.2d 543, 346 P.2d 847; People v. Holland, 158 Cal.App.2d 583, 322 P.2d 983; People v. Alvidrez, 158 Cal.App.2d 299, 322 P.2d 557. The cases cited by the defendant (Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; ...