People v. Sipress

[100]

Opinion

THOMPSON, J.

Convicted after a jury trial of sale of cocaine in violation of Health and Safety Code section 11352, appellant contends that the trial court improperly permitted a defense witness to refuse to answer various questions asked of him by claiming the Fifth Amendment privilege. He argues that: (1) the witness was immunized from prosecution by Health and Safety Code section 11367; and (2) the prosecution was required to grant immunity to the witness pursuant to Penal Code section 1324 to preserve appellant’s right to a fair trial. Concluding that the record does not establish that Health and Safety Code section 11367 so completely immunized the witness from all possibility of prosecution as to foreclose the possibility that his answers to the questions asked might supply a link in the chain of evidence incriminating the witness and that appellant has not preserved any right he might have to compel that grant of immunity to the witness by requesting the grant at trial, we affirm the judgment.

In November of 1973, Robert (Clutch) Franklin was arrested in possession of IQ pounds of marijuana. Los Angeles Sheriff’s Deputy Christopher Guzzetta told Franklin that if he would work with the police there was a possibility that Guzzetta could help him.

On November 23, 1973, Franklin was thoroughly searched by Guzzetta at the Malibu sheriff’s station and found to possess no contraband. He accompanied Deputy Sheriff Edward Araiza, working undercover, to an address on Coast Highway where Franklin indicated cocaine could be purchased.

The prosecution’s evidence established that appellant sold one ounce of cocaine to Araiza with payment of $200 passing from Araiza to appellant through Franklin. Appellant’s defense was that Franklin and not he supplied the cocaine without appellant’s knowledge. To corroborate his own testimony, appellant called Franklin as a witness. After having answered a question to the effect that he knew appellant, Franklin indicated that he wished to exercise his privilege against self-incrimination. The trial judge stated that the witness should claim the privilege as each question was asked of him by appellant’s counsel and that a ruling would then be made. The trial court sustained Franklin’s claim of privilege to questions of whether he went to appellant’s home with a police officer, whether he had been promised that if he “set someone up” he would get a $500 bail on a case pending