*1 Dist., First Div. One. Nov. No. 18540. 1979.] [Crim. Respondent, PEOPLE,
THE Plaintiff and Appellant. CASTRO, JOHN MARTIN Defendant *3 Counsel Defender, Denvir, the Court
Quin State Public under appointment Defender, Jeffers, Public Clifton Chief Assistant State Appeal, R. Shane, Defenders, P. State Public Dennis Riordan and Wendy Deputy for Defendant and Appellant. Philibosian, General, Chief Robert H.
George Deukmejian, Attorney O’Brien, General, P. Assistant Attorney Edward Attorney Assistant Sullivan, Attor- General, K. Deputy Gloria F. DeHart and Laurence General, for Plaintiff and neys Respondent.
Opinion Defendant, vio- in a indictment with
KELLY, J.* grand jury charged (transporting, selling section 11352 lating Safety Health and Code heroin), as charged was convicted by furnishing, giving away *4 He to state now prison. appeals. and sentenced Facts Statement of 16, 1977, between heroin on purchase February The case involves a informer, Ramey. Steven police the defendant and a undercover paid The defense was entrapment. (who in for years prison a felon some spent twenty convicted
Ramey, in and 1964 escape in 1956 and convictions—burglary three felony as 1970) part a undercover informer paid police began working As his wife dismissed. such undercov- deal to have drug charges against Salinas, and other he in Palm San Springs, Diego er worked agent he was offered similar experience employment areas. of this Because in December 1976. Between with the Alameda Sheriff’s office County on over 100 Ramey investigations worked and January August he terminated of some 60 before persons to the indictment leading for his own safety. War, he acquired in the Korean time service his
During discharge. received an honorable and Badge Bronze Star and Combat of a con- for dishonorably discharged possession He reenlisted and was user a heroin addict or He had been and AWOL. weapon being cealed an basis since 1951. irregular on he Sheriff’s office County’s
As for the Alameda a informer paid in specifically participate and to to them information agreed provide Chairperson of assignment by the sitting under superior court judge of the *Retired Council. the Judicial “buy program.” capacity Sergeant a In that undercover he worked with County Chavarria the Alameda Sheriff’s office. He was instructed actually participating when Chavarria not to use heroin he was “buys” Sergeant Chavarria. meeting prior February 16, 1977,
At a between defendant and Ramey, approached Ramey buy the former and him could advised $10 worth heroin lived from one “Dave” who at B and Burbank Ramey February encounter, 16, 1977, Streets. Based on this ranged ar- buy day Ramey Sergeant a from On that defendant. met with Hayward complete Chavarria at the BART Station. Chavarria made a physical Ramey money search vehicle but no or narcotics Ramey were found. Chavarria also observed that was not under the in- any drug. gave Ramey county $10 fluence of Chavarria funds. Ramey Doggie Diner, then drove his car to the blocks own few away, at all times followed and under the surveillance of Chavarria. approach Ramey Chavarria saw at the Diner defendant two Ramey men talked for brief time—not over two minutes. testified get bag $10 that he asked defendant to him a of heroin the defen- *5 agreed Ramey Ramey got dant Ramey’s take and to to “Dave.” defendant into following Sergeant
car with in his and Chavarria car drove Ramey some five or six blocks to B and Burbank re- Streets. While money approached mained in the car the took and defendant the a house. A third man later identified as Louis Villisano and known as also gave $10 “Dave” the exited house. Defendant Dave the obtained and a gave Ramey balloon, red then the car returned to the balloon. Ramey Doggie Ramey’s and defendant returned to the Diner in car fol- by Sergeant Ramey lowed Chavarria. Defendant disembarked and then Hayward again drove to the same BART Station where he was Sergeant Ramey Sergeant gave searched Chavarria. Chavarria balloon which contained a substance later tested out to be heroin. meeting Ramey Doggie
The defendant admitted at the Diner and going buying with to B him and Burbank Streets. He also admitted her- Ramey oin only aspect from Dave at The location. of the Ramey transaction on which he and differed concerned the defendant’s entrapment. state of mind. Hence the defense of Admitting ishe a heroin addict and had that he secured heroin for Ramey prior occasions, that, return, on several Defendánt asserted in Ramey always given purchased had a “fix” him from the heroin. with Ramey meeting
Defendant’s version of December through from Dave was purchase Ramey going of the heroin was 20 minutes to him get with defendant for pleaded withdrawal relented, with until defendant whereupon purchase some heroin consummated, in Ra- purchase was i.e. the idea of the originated Dave than mind. rather Dave’s mey’s committed the trial
Defendant contends that reversible error was (1) instruction on in failure to give requested cautionary court its addict; (2) fail- drug informer who was also unreliability paid camera, ure to review book list requested, prosecution’s jury of sheet” data which “rap for the existence purpose determining dire, voir be basis for cause on challenge could for defendant’s law and a fair and violation the defendant’s due right process (3) for disclosure of the denial of defendant’s motion impartial jury; address, wit- current since the informer a material paid informer’s and reliance on hearsay ness on the issue of defendant’s guilt, (4) its failure award defendant work-time evidence in ruling; term for the 84 presentence time” credit of 42 days days “good in presentence custody. spent will taken in the order set forth above. up issues on appeal Cautionary Entitled to the Submitted
1. Was Defendant Instruction? requested an instruc orally at the trial defense counsel
Initially, addict should informer who is a heroin police tion “testimony Thereafter, ver submitted a written *6 be viewed with caution.” counsel an testimony “The of sion of the instruction as follows: requested or for im the defendant against pay informer who evidence provides vindication, or personal advantage or for punishment, from munity care than the with weighed greater must be examined and the by jury the determine whether witness. The must jury of an testimony ordinary by prejudice affected interest or by has been testimony informer’s request.1 denied the The court defendant.” against the federal courts the rule developed This is based on instruction the instruction that on to an request a defendant entitled holding that not counsel did defense instruction submitted noted that the written 1It should be was mentioned a addict as who is heroin any police to a informer include reference cautionary requested the instruction. orally when defense counsel be of informer-addict should viewed with testimony paid suspicion. a (United 566; v. Kinnard United (D.C. 1972) F.2d States Cir. (5th 1974) 1202.) States Gonzalez Cir. 491 F.2d No California cases the the standard instruction on the credi- federal rule. In apply light (CALJIC 2.20, case) in this which witness No. informs bility given alia, be inter the credibility that a witness’ should judged, interest, motive, bias, re- existence or nonexistence of a or other information quested necessary.2 is not (Nos. 2.27)
Under California instructions 2.20 and given the jury and view the fully alerted examine informer’s testimony in the bias, or light of interest other motive that be any may demonstrated by the evidence.
In support of the contention that requested instruction should v. Barnett have been (1976) defendant cites given, Cal. App.3d 1046 Cal.Rptr. 88], wherein defendant requested special supplement instruction to CALJIC No. 2.20 to wit relating nesses’ court credibility. appellate held instruction should have been since it given the basis of the defendant’s attack pinpointed on the credibility prosecution witness. But the failure to the instruc give tion was held harmless error. In Barnett the issue arose from the fact that the defense claimed the witness was prosecution intoxicated (drug alcohol) while testifying.3
Although instruction would have focused the jury’s attention on the basis for the defendant’s attack on find, we Ramey’s credibility, Barnett, supra, any error in refusing proffered instruction be rule, harmless. under Similarly, the federal failure to give instruc- 2.27—sufficiency 2CALJIC No. one should carefully witness re viewed, was given. also proposed 3The determining instruction in Barnett read: ‘“In of wit you may capacity ness his consider.. .his to hear or see that about which he testified and matters; ability to recollect or specifically regard, you may relate such this alcohol, any consider whether cants at the witness was under the drugs influence or other intoxi *7 testified; you time and if any believe that witness was under alcohol, of drugs, influence other testimony, or intoxicants at the time his you may of obliged give but you not to disregard weight are little to testimony his or her insofar as find that his impaired thereby; you may has been reach that conclusion you alcohol, if a being find that as result under the drugs, influence of or other in testifying, toxicants while ability such witness’ to recollect and relate matters about (At 1050-1051, which he or impaired.’” 2.) she testified was pp. fn. 198 (United is corroborated. testimony harmless the informer’s
tion is where 1017, (5th 1972) 1018-1019.) 472 F.2d v. Collins States Cir. United States v. Kinnard vein, supra, 465 same court in In the 566, to save the defendant’s rights order F.2d follows: speaks “[I]n cau- trial court should to prepared from ‘substantial prejudice,’ caution the an testimony with extreme tion the jury weigh be- is uncorroborated respect, in some material addict-informer interest and motive to special of the addict’s cause of the possibility added.) 572; (465 italics p. F.2d at fabricate.” purchase bar heroin Ramey’s concerning In the case at testimony, 16, confirmed defendant himself. substantially on was February entrapment. the issue of Ramey’s The area of concerned dispute only was heroin immediately agreed buy defendant testified that and the Ramey Chavarria who corroborated by Sergeant so, a not the 15 Diner for minute or only Doggie defendant stood deciding, the defendant. without Assuming, claimed by 20 minutes instruction, such we do not think was entitled to an that the defendant The defendant presented was the omission. the defendant harmed by use, his life his including drug on bearing Ramey’s credibility, evidence convictions, “short practice chang- his frequent style, prior in his Defense counsel (a shop keeper). technique of cheating ing” testimo- why Ramey’s detailed the reasons forcefully closing argument think was focused be believed. We attention jury’s should not ny would have it not at all that the likely jury is the issue of credibility been instruction requested given. verdict had reached different VI, 13.) probability test based on reasonable (Cal.Const., The art. § (1956) 46 Cal.2d v. Watson possibilities. (People than mere rather (2 L.Ed.2d 78 S.Ct. den. U.S. P.2d 243] [cert. 70)].) District Attorney’s Have Examined the Court
2. Should the Book? Jury im camera moved for an defense counsel was sworn
Before the jury any if it contained book to determine of the prosecutor’s review for cause any for a challenge form the basis which might matter is nothing that “there represented prosecutor jurors. the prospective for cause.” challenge which basis for we have is a book any jury denied, to dis- defense motion as was the motion The defendant’s process. of due for violation miss
199 Thereafter, defense motioned in camera counsel for an limit hearing to ing request sheet information.” “rap Again district attorney asserted that book contained no which would jury information show a basis for of a court disqualification juror. The denied defendant’s motio 4 n.
California case law no merit in contention has found consistently that a defendant attor inspect entitled the contents of a district 277, (1969) Cal.3d ney’s book. v. 1 293-294 jury (People Brawley [82 161, (27 441, 461 Cal.Rptr. P.2d U.S. 993 den. 400 L.Ed.2d 361] [cert. (1966) 358, 91 S.Ct. 243 462)]; v. Darmiento People Cal.App.2d (18 438, 368-369 1010 Cal.Rptr. den. 386 U.S. L.Ed.2d [52 428] [cert. (1959) 87 S.Ct. 175 1353)]; Cal.App.2d v. Court 830 People Superior 55, 78 14 Cal.Rptr. 306]; Ruef (1910) Cal.App. A.L.R.2d v. [1 576, 48, Annot., 54]; 595-596 P. see 86 571 A.L.R.3d generally [114 other (1962) Cothran Jose Water grounds. v. San Works [overruled 608, (25 58 Cal.2d 612 Cal.Rptr. 375 In su 449)].) Brawley, P.2d bar, as in case at pra, the district advised the that his court attorney records did not contain matters which furnish the basis for a any would for cause. The challenge denial the court held not inspection by was to be error.
The defendant at bar the prece- the case from attempts distinguish dent cases did by the defendant not direct claiming request disclosure rather but that the examine contents of requested court the district The not attorney’s Obviously, book.5 distinction does hold up. of the to deter- purpose proposed court review of the book was jury mine whether the book to be ought contained information that any disclosed to the use list does defense. The prosecutor jury (1968) not result in the of a fair v. deprivation trial. Airheart (People makes no Cal.App.2d Cal.Rptr. defendant 857].) claim that was It from on voir dire. precluded jurors questioning would no from appear therefore that harm resulted the nondisclosure. sought a 4Defendant writ of this court this rul prohibition/mandate from to review ing, (1 summarily by but Four petition denied Division of this court. Civ. 44109.) (9th 1958) 5Defendant relies on dictum v. in Hamer United States Cir. 259 F.2d 274, 281: “We think that up judge attorney it is to the to see individual that neither other, books, advantage has an unfair over jury use lists or or whether any knowledge other respect juror’s previous information exists with to a ac dictum, tion.” The “ Supreme finding California Court declined this to follow question right inspect Hamer did not deal with the had whether the defendant Brawley, book.” (People supra, p. 294.) Cal.3d at *9 200 Current to Learn Ramey’s Was the Entitled
3. Defendant Address? witness, material the defendant—in the middle
Because was a Ramey address, this infor- the his current asserting trial—sought get out the defense an to check necessary mation was to give opportunity The the for and Ramey’s community honesty integrity. reputation and at an in camera hear- request district the attorney opposed strongly threats had the heard various testimony concerning Ramey court ing work, be- from his life his undercover stemming including received upon “hit” The trial court shot at and the contract. ing subject being which result in real to the witness found that disclosure would danger and so denied the re- evidence outweighed materiality sought unfair now this rendered trial ruling Defendant contends that quest. Other and him his to confrontation and cross-examination. denied right address, was otherwise ful- than the nondisclosure of his current Ramey available and to intensive cross-examination. ly subjected Illi cites Smith v.
In of his for disclosure defendant support request 956, nois (1968) 748], 129 L.Ed.2d 88 S.Ct. 390 U.S. [19 Alford 624, 628, 687, 51 S.Ct. United States (1931) 282 U.S. 693 L.Ed. [75 a testify to the effect the denial of his to cross-examine 218], right a denial of informer his name and address constitutes ing concerning witness issue. In due when the of the informer is an process the Smith case, the life of danger however there was no suggestion White and And in their both Justices opinions informer. concurring circumstances, disclo Marshall noted that where the under proper witness, keep sure the court has discretion to endanger would information undisclosed. (7th States v. Palermo 1969) Cir. 410 F.2d United
Similarly, 468, of employment that a witness’ address or place 472 the court held to the there is of actual threats showing need not be revealed if witness.6 no hearing provided argues presented at the in camera 6Defendant the evidence of threats Ramey’s since much of the evidence
justification suppression address officers rejected. testimony Ramey police and the argument This The hearsay. was was not for the truth of against Ramey’s life admitted concerning various threats stated, was not been The only threats had made. matter but to show that Rule, Witkin, (2d 1966) pp. (See Hearsay ed. hearsay. Cal. Evidence §§ testimony at in camera 425-427.) of the pointed also out that some should It counsel, ruling, support sufficient to court’s hearing, objected to defense not car; defen fired at his Sergeant Ramey as to shots e.g., Chavarria and testimony of life; Ramey’s Chief attempt Ramey; the Ocean Beach dant’s own threats to Recent cases have considered discussed California matter. In (1970) Cal.App.3d Cal.Rptr. v. Brandow 891], *10 defendant was a fair when court held that the denied the hearing pros- witness’ true name was not revealed. In reversing Brandow’s ecuting conviction of the court held the trial court appellate had pandering, erred in an the sustaining question concerning to a objection prosecut- to principal witness’ true name. The two witnesses the events ing involved in the were and prosecution the witnesses the de- prosecution two fendant. The conversations between these were tape-recorded vague to various Under the subject interpretations. circumstances the of the two witnesses bore on the issue opposing importantly Therefore, of the guilt. defendant’s the of the wit- identity prosecuting ness was an element in protection essential the of the defendant’s right to a fair trial. (1971)
And in
v. Mascarenas
21
660
People
Cal.App.3d
[98
the court reversed the defendant’s
Cal.Rptr. 728],
conviction where the
(and
address of the witness
was
“It
police agent)
withheld.
was the
prosecution’s
to
the
burden
establish that
evidence of contraband of-
fered
it
had not been
against appellant
with or
tampered
altered.
Riser,
v.
47 Cal.2d
580
P.2d
Eric had stated
(People
1].)
that
[305
in a
kept
evidence
in his
jacket pocket
periods
home for
to
up
five
before he delivered it to the
court
days
police. When the
sustained
the
address,
to the
Eric’s
objection
question
it
the de-
seeking
precluded
fense from
the
facts
exploring
of
possibility
bearing upon
of
security
the real
vital to the
evidence
conviction
innocence
appellant.
evidence barred
court
equal
significance to
describing
the function of an evidence locker at a police station. The evidence of
Eric’s address
also relevant
permit
was
as it
might
development of
facts which
bear
would
tend
upon
reputation or
to show
community
bias. (Alford
v.
States
The reversal conviction in the Mascarenas case must be examined and viewed in light facts of that case. The particular appel late witness, Eric, court held evidence of harm to the minor 7 was not sufficient. Baugh’s through police agencies of testimony to information he received threat Ramey by grenade. kill hand witness, Eric, possibility appellate harm to the court stat respect 7With 61-year-old engage expression will ed “It is that a woman in oral which at most one making charge.” by accusing him of an unfounded criminal will Eric embarrass Mascarenas, 667.) p. at supra, Cal.App.3d 21 (People v. cases, however,
More have not found the witness’ address recent (1973) Patejdl Cal.App.3d be essential. In with and the selling the defendant was Cal.Rptr. 191], charged drugs, main The court the con witness was an affirmed agent. informer/police viction, had the fact that the witness’ address been despite suppressed, “As we indicat where there was no real conflict in have testimony: ed, lack of that the appellant’s entrapment knowledge defense was substance not a We have reviewed the record carefully narcotic. and, with is no conflict of substance between exception, one there trans upon Webb that of Agent appellant bearing *11 action or these defenses. that Webb her and approached They agree her asked for some and she did not him. ‘dope’ approach They agree she that was the in the transaction. She testified that moving force a The one testimo thought were narcotic. Webb’s pills exception that the transaction he and discussed the effects of ny during appellant mescaline that she had ‘cut’ the herself appellant and stated capsules seven denied such a discussion this tes parts appellant to one. Although which was the officers monitored timony, supported who generally conversation, tends to rather than defeat defense appellant’s support where, lack of that were . . in the of not narcotic. knowledge pills bench, case at there is no conflict between of testimony substantial of defendant and that the informant on the issues determinative and reason be ill served of the guilt, logic requiring would disclosure address since the defendant’s need to the informant has been impeach diminished, eliminated, there impeach if not is no possibility ment the trial. manifest would have an effect on outcome of It is in been of his such circumstance the defendant has not deprived a fair to or to right any meaningful way confront cross-examine (Id. 941, 943.) trial.” at pp. Mardian one is v. analogous present case most to
(1975) 47 16 There the defendant Cal.Rptr. Cal.App.3d 269]. [121 sale; substances for his request with controlled charged possession found was refused. On the court appeal the current address witness Court to “While Supreme no denial confront witnesses. right when is forbidden from held result a defendant has that prejudice may Illinois, (Smith 129 his address v. 390 U.S. a witness asking .current States, 282 v. United 687 956, U.S. 748]; L.Ed.2d 88 S.Ct. [19 Alford 624, always necessarily Ct. does not 218]) prejudice L.Ed. 51 S. [75 de ensues from a that ‘[prejudice result. In the court reasoned Alford setting put the witness in his proper nial of the place opportunity test, which without his his weight of testimony
203
(P.
p. 628].)
them.’
693
L.Ed.
appraise
cannot
fairly
[¶]
[75
minimum, that a
Thus,
prosecution
at a
requires,
the Sixth Amendment
and to the extent
in proper perspective,
witness’
placed
this
it is
testimony,
aid in properly placing
that a witness’ address may
cross-examination—but
the Sixth
protected subject
constitutionally
to demand to know the
a defendant a right
Amendment does not accord
(United States v. Mc
witness.
address of each and every prosecution
have held that
547, 550-551.) And federal courts
Kinley,
493 F.2d
is not error where de
defense
into a witness’ address
denial of
inquiry
witness ‘in his proper
already clearly placed
fense counsel has
Alston,
(United
48, 52,
den.,
460
cert.
409 U.S.
States
v.
F.2d
setting.’
Daddano,
United States
122,
v.
200];
L.Ed.2d
93 S.Ct.
[34
1119, 1128,
den.,
L.Ed.2d
91 S.Ct.
F.2d
cert.
A similar is presented situation here. Evidence was elicited both on direct and on cross-examination that was a addict and a Ramey drug felon, convicted that he worked as a informer paid police and that he Moreover, used his heroin. defendant was money buy able to produce three witnesses who testified use and concerning Ramey’s drug lifestyle. From this we record conclude that defendant was able to produce suffi cient environmental to allow the background weigh assess even without his address. Ramey
Defendant that disclosure of address would have emphasizes Ramey’s determine in the permitted defendant to Ramey’s reputation community Yet, and thus introduce evidence to defen- impeach Ramey’s credibility. dant was able to cast doubt on even without this Ramey’s convictions, information. Aside from evidence of Ramey’s prior drug use, informer, and work as a defendant was able to elicit infor- police mation “short concerning Ramey’s frequent practice changing.” this evidence bore Certainly directly Ramey’s honesty integrity “in his placed witness At this the lan- proper setting.” point Mardian, of the court v. guage becomes People supra, pertinent. "... denial of into a defense witness’ address is inquiry not error where defense counsel has already clearly placed witness ‘in his proper (47 16, 40.) at setting.’ Cal.App.3d p. [Citations.]” Appellant contends that under Penal Code sections 4019 and 2900.5 he is entitled to for additional credit time good while in cus time/work before conviction and sentence to state tody Similar prison. issues are before the Court pending Supreme 20997, v. Crim. People Sage, Brown, Davis, 20998, Crim. and In 20999, re Crim. hearings 30, granted 1979. Because the May Supreme Court will ultimate decide the we hold ly question, that on its face summarily Penal Code section 4019 not does apply presentence custody persons convicted however, and sentenced felony to state prison; constitutional equal of the law protection principles require that be appellant credit given time, 1, 1977, if as of good any, July to section pursuant time/work 4019. The of conviction is affirmed and judgment the cause remanded to the superior court for determination of the amount of good time/work entitled, time credit to which if appellant under may any, Penal Code section as of July 1977. court is di- superior further rected to a new prepare abstract of and to transmit judgment to all it. appropriate authorities. affirmed.
Judgment *13 J.,
Elkington, P. concurred. Acting NEWSOM, J.I concur in the but feel majority’s opinion, compelled $10 to add that the of an addict-informer to effect manipulation accom- modation from purchases fellow is an even more un- “junkies,” wholesome than the crime it enterprise attempts suppress.
Appellant’s petitions for a Court were denied hearing by Supreme 3, 1980. January