People v. Clayton

BRAY, P. J. Defendant appeals from judgment of conviction, after jury trial, of violating section 11500, Health and Safety Code (sale of marijuana).*

Questions Presented

1. Did the court err in permitting a witness to avail himself of the privilege of self-incrimination ?

2. Other contentions made by defendant in propria persona.

[149]Evidence

At approximately 9 p. m. February 18, 1958, Anatole Balmy, a police officer working as an undercover agent for the narcotic detail of the San Francisco Police Department, and Inspector Logan of the narcotic detail, went to the Elwood Hotel on Bush Street.

Officer Balmy entered the hotel alone and went to the manager’s apartment to meet defendant. The officer’s appointment with defendant had been arranged by John Casio, an informant working with the police department. Defendant and Casio arrived at the manager’s apartment shortly after the arrival of Officer Balmy.

According to Balmy, he and Casio and the defendant went into a bedroom of the apartment where Casio introduced Balmy to defendant. Balmy testified that defendant asked him how much marijuana he wanted to purchase. After an amount was agreed upon defendant left the hotel room in order to obtain the narcotic. Defendant returned, handed a brown bag containing marijuana to Balmy, and requested $20. Balmy gave defendant $20, took the bag, and left the hotel, rejoining Inspector Logan across the street.

No contention is made that the evidence was not sufficient to convict.

1. Casio’s Refusal to Testify.

During the trial, defendant’s counsel, McNamara (a deputy public defender), in asking for an order for the production, as a witness, of Casio, who was then in jail, told the court that defendant had stated to him that Casio had told defendant on several occasions that he would testify for defendant to the effect that he, Casio, was not present at the Elwood Hotel, as Officer Balmy said he was, and did not witness any negotiations for the sale of marijuana. Thereafter, in chambers, in the presence of the court, both counsel, the defendant, the witness Casio and the attorney who represented the latter in another matter, a considerable discussion took place. •