People v. Hernandez

Opinion

THOMPSON, J.— In Eleazer v. Superior Court (1970) 1 Cal.3d 847 [83 Cal.Rptr. 586, 464 P.2d 42], the California Supreme Court held that due [410]process requires that the police or prosecuting authority “make such inquiries and arrangements- as are reasonably necessary to enable the prosecution and defense to locate [an informer who is a material witness whose testimony might be helpful to the defense].” (1 Cal.3d at pp. 852-853.) In People v. Goliday (1973) 8 Cal.3d 771 [106 Cal.Rptr. 113, 505 P.2d 537], the high court ruled that this duty applies in the situation of informers who serve “as . . . active agent[s] of the police,” although the informers are unpaid for their services. (8 Cal.3d at p. 781.) In People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361], the Eleazer-Goliday rationale served as a partial basis for the adoption of a principle requiring that the police and prosecution undertake reasonable precautions to preserve discoverable physical evidence that might come into their possession, and for the rule that in the context of a breathalyzer test failure of performance of this duty will result in the sanction of bar of other evidence that might prove the nature of the lost physical evidence. (12 Cal.3d at pp. 648-650, 652-654.)

Consolidated appeals from orders of dismissal in the case at bench raise the issue of a possible further extension of the Eleazer-Goliday rule to the situation of a noninformer victim-witness to the crime. We conclude that neither the reasoning nor the policy underpinning of Eleazer and Goliday indicate the extension. Accordingly, in these appeals by the People, we reverse the orders of dismissal.

At about 7:30 p.m. on March 2, 1977, Los Angeles Police Officers Jack Johnson and Enoch McClain saw defendants Rodolfo Hernandez and George Calabaza beat and throw Jan Callahan to the ground and remove $147 from Callahan’s pocket. Johnson and McClain arrested the defendants.

Callahan was drunk and unable to care for himself. Callahan was also arrested, and was booked for being drunk in public. In response to questions from the officers, Callahan said that he had no place where he regularly lived. Shortly after midnight, pursuant to Penal Code section 849, subdivision (b)(2), Callahan was released from custody without a complaint against him being filed. Callahan was transported to Los Angeles County Medical Center for treatment of an injury to his eye, but no effort was made to ascertain means by which he could be contacted in the future. When the police at the request of the prosecution sought to locate Callahan to be a witness at the preliminary hearing, he could not be found.