Opinion
Cr. 6610
8-13-1959
PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Leho KIIHOA, Defendant and Appellant. *
Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Gilbert Leho KIIHOA, Defendant and Appellant. *
Aug. 13, 1959.
Hearing Granted Oct. 7, 1959.
Gilbert Leho Kiihoa, in pro. per.
Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.
HERNDON, Justice.
A jury found appellant guilty of a charge of selling heroin and he was sentenced to State Prison. He appeals from the judgment of conviction.
On the evening of April 23, 1958, Deputy Sheriff Trujillo, who was then assigned to a narcotics detail, drove to the Spanish Kitchen, a restaurant and bar located in Duarte. The officer was accompanied by one Robert Stough, who was identified as a confidential informant. About 15 minutes after Trujillo and Stough had entered the cafe appellant entered and sat at the bar with one Frank Leyva. Stough walked over to appellant and conversed with him briefly. Stough then returned to Officer Trujillo and spoke to him. The court sustained appellant's objections to questions designed to elicit the substance of these conversations. After Stough had reported to the officer, they proceeded to a restroom at the rear of the cafe and were momentarily joined by appellant. Appellant told the two men that Leyva did not want to deal with them as he didn't know Officer Trujillo and had seen two 'Narcos' (meaning narcotics officers) nearby, but that he would 'deal' with Trujillo and Stough through appellant. The officer asked how much a gram of 'junk' would cost. Appellant answered that it would be $17, that Trujillo should give him the money and he would give it to Leyva, that Leyva would give him the 'junk' and that he would deliver it. Trujillo then gave appellant $17 and appellant then inquired if they 'wanted to fix there'. The officer testified that in the jargon of the narcotics trade 'a fix' refers to an intravenous injection of heroin. The officer replied that they did not have their 'fit' or 'outfit' and that they would wait for him in the car in front of the cafe. It was explained by the officer that the 'fit' includes such apparatus as a needle, spoon, eyedropper, and a piece of cotton.
Trujillo and Stough went to their car which was parked in front of a vacant lot east of the cafe some 15 or 20 feet away. They waited for 5 or 10 minutes and observed Leyva leave his car and later return. Shortly thereafter appellant approached, entered the officer's vehicle and handed over a package or bindle. Two days later Trujillo again saw appellant in front of the Spanish Kitchen. At that time, after first explaining that another pusher had taken money but failed to return with either heroin or money, appellant stated: '* * * I should never have trusted this person * * * because he would always 'burn' people * * *.' Appellant said to the officer that 'whenever I wanted to score I should wait for him * * * and that he could score all he wanted.' It was explained that 'to score' is to purchase narcotics.
A forensic chemist analyzed the powder inside the bindle delivered at the first meeting and found that it was heroin.
On July 16, 1958, appellant was arrested by Officer Renteria, another deputy sheriff, on telephonic instructions and information received from Sergeant Sewards, a superior officer. Neither Renteria nor Sewards had participated in the transactions heretofore detailed. The arrest, however, was based on information relating to those transactions.
Appellant called Sergeant Sewards as a defense witness and developed the fact that following his arrest on July 16th appellant was held in custody for some 51 hours and then released without any charges being filed. Appellant also developed the fact that he had thereafter filed an action for false arrest against Officer Renteria. Sometime later, on September 29, 1958, the information was filed instituting the present proceedings and appellant was again arrested on the same charge, that is to say, on the charge of making the sale of heroin on April 23, 1958, as above recounted.
To counter the apparent suggestion that appellant's second arrest was motivated by the false arrest action, the prosecution introduced rebuttal evidence to explain why appellant had been released after the first arrest and why at a later time he was again arrested and prosecuted on the same charge. Sergeant Sewards testified that no complaint was filed following appellant's first arrest because the confidential informant had subsequently advised the sheriff's office that he could not be named and could not testify because he had been threatened with physical harm should he become involved as a result of the arrest and conviction of said Leyva. It was the policy of the sheriff's office not to divulge the name of informants when it appeared that their safety would be jeopardized, even if it meant the release of a suspect. Sergeant Sewards further testified that they decided to proceed at the later date because he had been advised by the father of Robert Stough that the latter had left California and was living somewhere in Arizona.
Appellant was represented by counsel at the trial, but, appearing in this court in propria persona, he advances the following contentions: (1) that his first arrest was illegal; (2) that the prior arrest amounted to former jeopardy; (3) that he was entrapped; (4) that the case of the prosecution was inherently improbable as shown by his release after his first arrest and by the fact that his second arrest on the same charge followed his commencement of a civil action against one of the officers; and (5) that he was denied a fair trial because the prosecution failed to produce the informant as a witness and thereby suppressed material evidence.
We find no merit in any of these contentions. The legality or illegality of appellant's first arrest is wholly immaterial. The present record does not contain any evidence to prove the illegality of that arrest, and it is quite apparent from the record that the contention here made was not advanced as a theory of defense in the trial court. In any event, the prior arrest and release constituted no bar to the subsequent prosecution for the same offense. People v. Vacca, 132 Cal.App.2d 8, 9, 281 P.2d 315. It is well settled that jeopardy does not attach until a defendant has been placed on trial before an impaneled jury or until the first witness has been sworn or until he has pleaded guilty. People v. Ayala, 138 Cal.App.2d 243, 248, 291 P.2d 517; People v. Blau, 140 Cal.App.2d 193, 214, 294 P.2d 1047.
In the instant case no criminal proceedings were instituted against appellant until shortly before his second arrest. Furthermore, the defense of former jeopardy must be affirmatively pleaded and, in the absence of such plea, is deemed waived. Penal Code, § 1017; In re Lozoya, 146 Cal.App.2d 702, 703-704, 304 P.2d 156; People v. Mims, 136 Cal.App.2d 828, 833, 289 P.2d 539.
In support of his contention that he was entrapped, appellant points to the fact that the officer's car bore no police markings; that the officer did not wear a uniform and did not identify himself as a deputy sheriff. It is manifest from our recital of the facts that appellant was not a victim of entrapment. People v. Braddock, 41 Cal.2d 794, 802, 264 P.2d 521; People v. Lindsey, 91 Cal.App.2d 914, 917, 205 P.2d 1114. The following language from People v. Neal, 120 Cal.App.2d 329, 333, 261 P.2d 13, 15, is fully applicable to the facts of the instant case: 'There was evidence that appellant had ready access to the contraband heroin; that not only was he willing to make the sale for which he was convicted but he also volunteered to make a second sale to the officer. Appellant's obvious familiarity with the narcotics trade, coupled with his ability to produce a substantial quantity of heroin on short notice, all indicate beyond a reasonable doubt that he was not an innocent person who was induced to commit the crime charged by the trickery, persuasion or fraud of the officer.'
We find no merit in defendant's contention that the failure of the prosecution to call as a witness the informant Stough deprived him of a fair trial or amounted to a suppression of evidence. Granted that Stough would have been a material witness, it was not the mandatory obligation of the State to call him. '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. Taylor, 159 Cal.App.2d 752, 756, 324 P.2d 715, 718; People v. Parry, 105 Cal.App.2d 319, 323, 232 P.2d 899; People v. Tuthill, 31 Cal.2d 92, 98, 187 P.2d 16. The failure to call the informant, moreover, is explained by his absence from the jurisdiction. There is no evidence whatsoever that anyone connected with the prosecution procured or was in any way responsible for his absence. Although the name of the informant was voluntarily disclosed by the prosecution, appellant at no time during the course of the trial indicated any desire or intention to call him as a defense witness. See People v. Alexander, 168 Cal.App.2d 753, 336 P.2d 565; People v. Taylor, supra, 159 Cal.App.2d 752, 756, 324 P.2d 715.
Appellant's contentions that the evidence is insufficient and that the case of the prosecution is inherently improbable require no discussion. They are clearly untenable. We have considered all of defendant's other arguments, and find nothing in them to raise the slightest doubt concerning the fairness of appellant's trial or the justice of the conviction.
Affirmed.
FOX, P. J., and ASHBURN, J., concur. --------------- * Opinion vacated 3 Cal.Rptr. 1, 349 P.2d 673.