People v. Durazo , 52 Cal. 2d 354 ( 1959 )

SPENCE, J.

By an indictment in three counts, defendant was charged with selling heroin in violation of section 11500 of the Health and Safety Code. He was tried by the court and found guilty on counts two and three. This appeal is taken from the judgment of conviction and from an order denying defendant’s motion for a new trial.

Defendant contends that the trial court committed prejudicial error in failing to require a prosecution witness to divulge the name of an informer on cross-examination. Our review of the record convinces us that this contention must be sustained.

The case was submitted upon the transcript of the grand jury proceedings and additional evidence. With reference to count one, Officer Anderson testified before the grand jury as follows: On April 12, 1957, he and another man met defendant in a café in Los Angeles. Anderson’s companion asked defendant about getting some “stuff.” They went into the rest room; Anderson followed them and saw defendant give his companion a balloon in exchange for $12. The latter handed the balloon to Anderson.

With respect to count two, Anderson testified before the grand jury that on April 16, 1957, he met defendant on the sidewalk in front of a food market and asked defendant to sell him “a half.” Defendant agreed and they went into the market, where Anderson gave defendant $12 in exchange for two pieces of balloon. As to count three, Anderson testified that on April 17, 1957, he again met defendant on the street and bought from him a $5.00 balloon. Expert testimony before the grand jury established that all the balloons contained heroin.

At the trial, Officer Anderson was the only witness for the prosecution. He testified that the person who accompanied him on April 12 was a confidential informer and claimed the privilege of withholding his name. (Code Civ. Proc., § 1881, subd. 5.) Anderson also testified that the informer was not present at the sales of April 16 and 17, and that they were not prearranged.

In view of the unidentified informer’s participation in the first sale, the prosecution sought dismissal of count one. (See People v. Castiel, 153 Cal.App.2d 653, 656-659 [315 P.2d 79]; People v. Lawrence, 149 Cal.App.2d 435, 450-452 [308 P.2d 821]; also Roviaro v. United States, 353 U.S. 53, 60-62 [77 S.Ct. 623, 1 L.Ed.2d 639].) The court reserved its ruling on the motion and subsequently acquitted defendant on that count. With respect to counts two and three, defendant’s counsel sought on cross-examination to ascertain the informer’s identity. The prosecution objected upon the ground that it was privileged, and also irrelevant and immaterial. The objection was sustained.

The existence of the privilege of nondisclosure depends on the “materiality of the informer’s identity to the defense.” (People v. Williams, 51 Cal.2d 355, 359 [333 P.2d 19].) Here defendant denied having sold narcotics and denied ever having seen Officer Anderson before the trial; the sole defense was mistaken identity. Anderson testified that he had not known defendant before the sale of heroin to the informer on April 12. The grand jury proceedings at which Anderson identified defendant as the seller did not take place until May 9, some three weeks after the subsequent sales, and defendant was not arrested until September. Anderson said he had no doubt that the same person made each of the three sales. Under these circumstances, the informer was a material witness on the issue of defendant’s guilt on all three counts. Had he contradicted Anderson’s identification of defendant with respect to the first sale, his testimony would have been highly significant to discredit the identification with respect to the transactions of April 16 and 17. The court therefore erred prejudicially in sustaining the objection to defendant’s demand for the informer’s name. (People v. Williams, supra, 51 Cal.2d 355.)

The judgment and the order denying a new trial are reversed.

Gibson, C. J., Traynor, J., Schauer, J., McComb, J., and Peters, J., concurred.