People v. Robison

DUNIWAY, J.

This is the second case to come before us involving the activities of Officers Toomey and Higgins of the San Francisco police department and an informer named William Russell. (See

People

v. Givens, 191 Cal.App.2d 834 [13 Cal.Rptr. 157].) The appeal in the present case is from the judgment whereby defendant was convicted on two counts of an indictment charging the sale of heroin in violation of Health and Safety Code, section 11501, on February 29 and March 23, 1960. It is presented by court-appointed counsel.

The procedure of the officers and the informant was strikingly similar to that described in the opinion in Givens, and we therefore do not state it here in detail. Defendant contends that the evidence is insufficient to sustain the convictions. We find it sufficient as to the first count (February 29) but insufficient as to the second count (March 23).

In each instance, after the informer was searched, furnished with money, and “put on the street,” he was under continuous surveillance by one or the other of the officers, who communicated with each other by “walkie-talkie” radio. Regarding each occasion, each officer testified that he did not see Russell have “physical contact” with anyone except defendant. The crucial evidence, however, is different as to the two incidents.

In the February 29 incident, the informer’s peregrinations brought him to a point in front of the Eddy Hotel, accompanied by defendant and one Scott. Defendant went into the hotel; Russell and Scott remained on the street. They conversed, but there was no touching of one by the other. After a minute or two defendant returned, and there was a movement of hands—a meeting of hands—what appeared to be an exchange between Russell and defendant. Then Scott and defendant left, and the officer followed Russell, took him into his car, and was handed a bindle of heroin by him. A search revealed that Russell no longer had the money that had been given to him. These facts bring the case squarely within

[412]

the authorities and principles cited and discussed by us in

Givens.