People v. Acuna

35 Cal.App.3d 987 (1973) 111 Cal. Rptr. 878 THE PEOPLE, Plaintiff and Respondent,

v.

JUAN A. ACUNA, Defendant and Appellant.

Docket No. 23221. Court of Appeals of California, Second District, Division One.

December 7, 1973. [988] COUNSEL

Joseph Sack, under appointment by the Court of Appeal, for Defendant and Appellant.

Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, and Robert F. Katz, Deputy Attorney General, for Plaintiff and Respondent.

[989] OPINION

LILLIE, Acting P.J.

Defendant and codefendant Freida Alford were charged with possession for sale of a narcotic, heroin (§ 11500.5, Health & Saf. Code). Defendant moved to suppress the evidence under section 1538.5, Penal Code, and to disclose the identity of the confidential informant. Subsequent to the denial of both motions he withdrew his plea of not guilty and entered a plea of guilty to a violation of section 11500, Health and Safety Code, a lesser but necessarily included offense. He appeals from the judgment. The appeal is based on the trial court's refusal to order disclosure of the identity of the informant.

No evidence was taken on the discovery motion; however the reporter's transcript of the oral proceedings had on the motion reflects a unanimity of understanding of the following facts apparently contained in the affidavit supporting the search warrant (before the trial court but not part of the record on appeal) and the reporter's transcript of testimony taken at the preliminary hearing (before neither the trial court nor this court).

A confidential informant gave information to Sergeant Carter, the investigating officer, that at a certain address and in the presence of defendant he had made a purchase of narcotics from codefendant Alford wherein she made "a hand-to-hand sale" to him; and that thereafter between August 29 and September 5, 1972, he saw defendant (presumably at the residence where the sale took place). Subsequently a search warrant was issued on the basis of an affidavit[1] containing among other things information given to Sergeant Carter by the informant. On September 8, 1972, the search warrant was served at the residence at which defendant was present, and on his person in his pants pocket police found three balloons of heroin; the informant was not present; a dish containing 5.9 grams of heroin and narcotic paraphernalia were found in the residence. The heroin on defendant's person was possessed by him for sale in light of the manner in which it was packaged and the quantity of contraband in each ballon.