People v. Cheatham

Opinion

KINGSLEY, J.

Defendant was charged with, and convicted of, the sale of heroin, in violation of section 11501 of the Health and Safety Code. He was sentenced to state prison; he has appealed; we affirm the conviction.

In light of the issues on which this case turns only a brief statement of facts is required. Defendant was charged with selling heroin to an agent of the state narcotic bureau on an occasion when a police informant, Miss Gloria Matrix, was present and had introduced defendant to the agent. The sole issue at the trial was the identification of defendant as the seller, Defendant contends that the seller was his nephew, Hamilton, a man closely resembling defendant in height, weight and color.

1

The identification testimony for the People consisted primarily of that of the narcotic agent.

I

Since Miss Matrix was not only a witness to, but a direct participant in, the sale herein involved, it was obvious that she was a witness whose identity must be revealed.

2

Five months before the sale, the Supreme

[678]

Court had held, in

Eleazer

v.

Superior Court

(1970) 1 Cal.3d 847 [83 Cal.Rptr. 586, 464 P.2d 42], that where an informer would be a material witness, the police must make such inquiries and take suóh steps as are reasonably necessary to insure that he can be located for trial if the defendant desires to interview, and perhaps to call, him.

Defendant moved, on the date set for trial, for discovery as to the identity and address of Miss Matrix. The People responded that they had lost track of her since before the preliminary examination; a week’s recess to enable the People to search for her produced nothing. The trial court, after a hearing, held that the People had used due diligence to produce the witness. The evidence adduced at that hearing is undisputed. While a determination of lack of the required diligence could have been made, we cannot say that the trial court’s determination is without substantial support.