People v. Contreras

ROTH, J.

Appellant was convicted by a jury of violating Health and Safety Code, section 11503 (furnishing of substance other than narcotic after having agreed to furnish narcotic).

On August 3, 1961, an undercover narcotics agent, together with an informer named Perez, approached appellant who was sitting in a car with two other occupants, for the expressly stated purpose of buying narcotics and as a consequence of that encounter, appellant agreed to a sale to the undercover agent, but at a different time and place. Approximately 35 minutes later, the transaction was consummated. The substance sold was not a narcotic.

Perez was not called as a witness by or for the prosecution, he was called by appellant who knew about his connection with the undercover agent, and appellant had Perez testify to this connection in detail. Perez thereafter testified, among other things, that he was with the undercover agent and had signaled the car in which appellant was sitting for the purpose of buying narcotics unlawfully. Appellant at this pointed stated, “this witness is obviously adverse and at this time the defense claims surprise and damage ... .” Appellant then attempted to impeach Perez by introducing his testimony from the preliminary hearing which was contradictory to his testimony on the stand. The People objected and the court resolved the matter by ruling:

[702]

THE COURT: ... “I still don’t think there’s legal surprise there, but ... I am going to give you a lot of latitude. ... You can take that [testimony at preliminary hearing] up question by question and ask him did you or didn’t you. ’ ’

On cross-examination, the deputy district attorney, with no objection from appellant, asked the following questions:

“Q. What does it mean to say you’re going to burn someone?

“A.

You’re going to take his money and you’re not going to give him anything in return.

“ Q. In other words, you’re going to sell him turkey, or a non-narcotic, isn’t that true?

“A. Yes, sir.