People v. Estrada

GIBSON, C. J.

Defendant was convicted on two counts of selling heroin in violation of former section 11500 of the Health and Safety Code.

*

He contends that the trial court committed prejudicial error in refusing to order the production of notes which the principal witness for the prosecution, Police Officer Villalba, used to refresh his recollection before testifying.

Villalba testified that on December 10, 1958, while working as an undercover officer, he purchased heroin from a man he identified as defendant. The capsules of heroin were contained in a “ LeRoy’s Jewelers credit envelope” which bore the number 325052, At that time the seller said his nickname was “Mono,” and he wrote a telephone number on a page of a magazine, which he gave to the officer. On the morning of December 17 Villalba called the number, and, after the person who answered said that he was Mono, arrangements were made for a second sale at the same place. Later that morning Villalba met the seller, who was talking to two persons sitting in a green 1949 or 1950 Chevrolet, and made a second purchase of heroin. Villalba testified that he had

[715]

worked on narcotics eases for about seven months, that he had made purchases of narcotics from approximately 67 different individuals, and that he did not see defendant after the second sale until February 21, 1959, following defendant’s arrest.

On cross-examination Villalba testified that at the grand jury hearing he had refreshed his recollection by using notes which had been typed by the secretary at the narcotics division, that it was necessary for him to look at those notes before giving his testimony there, and that prior to testifying at the trial he had refreshed his memory by reading the transcript of his testimony before the grand jury. Defendant’s motion for the production of these notes was denied.

The only other witness for the prosecution was a police chemist who, as an expert, testified that his analysis showed that the material purchased by Villalba was heroin.

Defendant testified that he did not remember where he was on the mornings of December 10 and 17,1958, that he had not made any sales of narcotics to Villalba, and that he had not written the telephone number on the magazine page given to the officer, although it was his number. He said that he had never been known by the name “Mono,” that this was the nickname of his brother Pedro, who often came to his house during the month of December 1958, and that Pedro had received telephone calls there. Defendant’s wife owned a green 1950 Chevrolet which was sometimes used by Pedro during the month of December. The number on the credit envelope involved in the first sale was defendant’s account number at LeRoy’s Jewelers, and he had similar envelopes at home.