Opinion
Cr. 6111
4-7-1958
The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert WILLIAMS, Defendant and Appellant. *
Ellery E. Cuff, Public Defender of Los Angeles County, and Paul G. Breckenridge, Jr., Deputy Public Defender, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., and Albert Bianchi, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Robert WILLIAMS, Defendant and Appellant. *
Ellery E. Cuff, Public Defender of Los Angeles County, and Paul G. Breckenridge, Jr., Deputy Public Defender, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., and Albert Bianchi, Deputy Atty. Gen., for respondent.
VALLEE, Justice.
By indictment defendant was accused in two counts of selling heroin on February 4 and 7, 1957. He was found guilty on both counts and sentenced to state prison. He appeals from the judgment and the order denying his motion for a new trial.
The following is the testimony of police officer Renty, the only witness who testified for the prosecution:
On February 4, 1957 Renty and 'another person' were on East Fifth Street in Los Angeles. Renty was seeking to buy narcotics and the other person knew it. They were working together. The other person called over to defendant, calling him 'Red.' Defendant went over to where Renty and the other person were standing. The other person told defendant Renty had the money. This meant that Renty wanted to buy narcotics. Defendant 'said he could do us some good.' Renty and defendant then went to a lounge in the back of a hotel. The other person waited outside. Renty handed defendant a $10 bill. Defendant went into a telephone booth. Renty did not see what defendant did in the booth. Defendant returned and handed Renty $1 and a bindle of narcotics. Renty then went outside and joined the other person. Renty would not have had the transaction with defendant on February 4 but for the fact that the other person 'told Red to come over, and that [he, Renty,] had nine dollars.'
On February 7, 1957 Renty was standing on the corner of Fifth and Stanford in Los Angeles. Defendant came out of a market. Renty walked up to defendant and asked him what was happening. He would not have approached defendant except for the fact that he had had the transaction with him on February 4. Defendant said, 'What do you want?' Renty said he had $9. Defendant told him to go into a bar and wait there. Renty entered the bar and waited. Defendant went through the bar, out a rear exit, returned in about five minutes, and handed Renty a bindle of narcotics. Renty handed defendant $9 and said, 'The stuff you sold me last time was pretty good.' Defendant said, 'Yes. This is, too.' Renty had not known the man known as 'Red' prior to the time the other person 'called to some one and labeled him as 'Red" on February 4. When he called to 'Red' on February 7, Renty relied on the transaction he had on February 4. He would not have been able to identify the man known as 'Red' and would not have gone up to him on the 7th except for the fact that he had the transaction on the 4th.
On cross-examination the court refused to compel Renty to disclose the name of the other person: the informer. It was stipulated that a chemist would testify the bindles handed to Renty contained heroin.
Defendant testified he did not sell Renty narcotics on either February 4 or 7, 1957; he had never seen him prior to his arrest; and that the first time he saw him was in Lincoln Hights jail.
Defendant contends the court erred prejudicially in not requiring Renty to divulge the identity of the informer.
Powell v. Superior Court, 4, Cal.2d 704, 312 P.2d 698, declares it to be 'the policy of this state that the goal of criminal prosecutions is not to secure a conviction in every case by any expedient means, however odious, but rather, only through establishing the truth upon a public trial fair to defendant and the state alike' (48 Cal.2d at page 707, 312 P.2d at page 699).
When an informer becomes a participant in the offense charged against the defendant, he and the People lose the right to keep his identity anonymous. People v. Lawrence, 149 Cal.App.2d 435, 452, 308 P.2d 821; People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79; People v. Alvarez, 154 Cal.App.2d 694, 316 P.2d 1006. People v. Cox, 156 Cal.App.2d 472, 319 P.2d 681, 684, says the rule is 'that even where an offense is committed in the immediate presence of an officer of the law, if an informant has in any way participated in the criminal activity, or if the informer was a material witness to the alleged crime, then, in such an event, the name of the informer must be made known upon demand of the person charged.' (Emphasis added.)
In People v. Castiel, 153 Cal.App.2d 653, at page 657, 315 P.2d 79, at page 81, Mr. Justice Dooling in masterly fashion stated: 'It would be intolerable if the government could convict its citizens of crime and thereby deprive them of their liberty and civil rights while denying them the opportunity to produce a witness or witnesses to the alleged crime, whose identity is known to the witnesses who testify against him. The defendant is entitled as a matter of due process of law to be allowed to interview and produce any witness who might give evidence favorable to his defense, and when a witness who testifies to the commission of a crime testifies that another person or other persons were also present, and particularly where such other person or persons according to the testimony were active participants, the right of the defendant to the disclosure of the identity of such person or persons on cross-examination seems too clear for successful contradiction. If this was a case without precedents logic and the basic consitutional guaranty of due process would compel this conclusion, but it is not a case without precedents. The cases generally hold that where in the trial of a criminal case the basic right of a defendant to produce evidence which might exonerate him comes into conflict with a privilege of the government to withhold such evidence from disclosure the government's privilege must in general give way to the basic right of the defendant,' citing numerous cases. On substantially the same basic facts as appear at bar this court in People v. Alvarez, 154 Cal.App.2d 694, 316 P.2d 1006, held the trial court erred prejudicially in not requiring the officer to disclose the name of the informer.
The informer and Renty were working together as an undercover team. Their purpose was to obtain evidence on which criminal prosecutions could be based. The informer brought Renty and 'Red' together so that Renty could purchase narcotics. The informer told 'Red' in the narcotics jargon that he and Renty wanted to buy narcotics and that Renty had the money. 'Red' apparently knew the informer and replied on his implied assertion that Renty was a person who could be trusted. On February 4 there was no conversation between Renty and 'Red' after they left the informer's presence. Immediately after leaving 'Red,' Renty joined the informer. It is obvious the informer participated in the transaction charged in Count I.
The People contend that if there was error in the court's refusal to compel Renty to disclose the name of the informer, such error goes only to Count I but not to Count II. We think it cannot be said the informer did not participate in Count II. The two counts were tied together. Renty was the only witness as to both counts. At every essential step necessary to fix guilt, Renty's testimony shows that the undisclosed informer was a principal actor, and if called to the stand would be a material and important witness. The indictment was not returned until May 7, 1957. Three months elapsed between the second alleged transaction and defendant's arrest. There was no evidence Renty saw 'Red' on any occasion other than February 4 and 7 prior to his arrest. Renty's identification, made at the time of the trial, must have been based solely on those two meetings, each of which lasted 10 minutes. The defense as to Count II was the same as to Count I: misidentification. The People's case a to both counts rested solely on Renty's identification of defendant. Renty relied on the first transaction to consummate the second. If he was in error in his first identification, he was also in error in his second identification. The informer was the only witness defendant could produce to contradict Renty's testimony. The availability of the informer for investigation and subpoena was essential to the defense. He was defendant's one marterial witness; the only witness other than defendant who could contradict Renty's identification. Defendant was denied access to the witness who might establish his innocence. The informer did more than set the wheels in motion which caused defendant to be suspected. He did more than point the finger of suspicion at 'Red': he played a vital part in the criminal acts with which defendant was later charged. He was the procuring cause of the sale of the narcotics on both days; his activities were indispensable to both sales. If Renty had been required to disclose the name of the informer as to Count I and the informer had been called by defendant and had contradicted Renty on material points, it is obvious that if such testimony were believed it would have affected the identification of Renty as to Count II. Disclosure of the identity of the informer was as necessary to the defense of Count II as it was to the defense of Count I. When the court erred in refusing to compel Renty to disclose the name of the informer as to Count I, it cannot be said the error was not prejudicial as to Count II. Cf. People v. Lawrence, 149 Cal.App.2d 435, 452, 308 P.2d 821.
As stated in People v. Castiel, supra, 153 Cal.App.2d 653, at page 659, 315 P.2d 79, at page 82: 'No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution's evidence. It is the deprival of the defendants of the opportunity of producing evidence which might result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors. To do so is to reason that in no case can a defendant suffer prejudice from the suppression of evidence which may be favorable to him if the prosecution has produced what seems to be a strong eyewitness case of the defendant's guilt.'
The judgment and the order denying a new trial are reversed.
SHINN, P. J., and PARKER WOOD, J., concur. --------------- * Opinion vacated 333 P.2d 19.