People v. Mun. Court for San Jose-Milpitas Judicial Dist. of Santa Clara County

Opinion

CHRISTIAN, J.

This appeal tests the authority of a magistrate to dismiss a felony complaint on grounds other than the insufficiency of the evidence at the preliminary hearing.

Leroy Dubray, an undercover investigator of the San Jose Police Department, made contact with appellant Geraldine Galvan and her housemate, Alex Flores. Dubray purchased heroin at the Galvan-Flores residence. On May 18, 1977, he went there again and purchased more heroin from Galvan.

During several visits to the house Officer Dubray discussed with Flores the possibility of purchasing large quantities of heroin for shipment to Canada. The planning was ended on May 27, when Flores and Galvan saw parked near police headquarters the car which Dubray had used in making visits to their house. Flores left a note on Dubray’s car, asking him to call. Dubray arranged to meet at police headquarters with Flores and Galvan to discuss whether Galvan would provide leads to the dealers from whom she had been obtaining heroin. Galvan stated that she could do nothing, but Flores agreed that he would help to set up a transaction to trap a sought-after dealer named Oscar Rodriguez. Officer Dubray agreed that in exchange for this assistance he would, after Galvan was charged for her sale of heroin to him, inform the prosecutor and the probation officer that Galvan “had indirectly through Alec Flores helped us in the case against Oscar Rodriguez.” Officer Avila, with whom Galvan was later to work in another matter, made a similar promise. Actually Galvan did not cooperate with Avila.

During the ensuing weeks Dubray met several times with Galvan and Flores. Flores was aware that Officer Dubray did not intend to report Galvan’s offense to the district attorney so long as Galvan continued to be

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a useful informant. Actually, Galvan never functioned as an informant for Dubray; that work was to be done by Flores.

Another officer, Reyes, became acquainted with Galvan, and used her services as an informer. Reyes testified that a third officer, Martin, told Galvan that if she “was able to do something for us ... he would be able to do something for her. . . .” Reyes thought it was being implied that the exchange “had to do with whether or not a case would be filed against [Galvan].” Galvan helped Reyes to develop a narcotic case against one Montano, but the case was not prosecuted, mainly because Galvan could not be located to testify. Galvan assisted Reyes in other cases. Reyes “believed” that he indicated to Galvan that if she succeeded in “doing” some other narcotic suspect the pending case against her “would not be filed.” Reyes acknowledged that he had not promised that the charge would not be filed; he had no authority to make such a promise.