People v. Reel

Opinion

Defendant was charged as an ex-felon with possession of concealable firearm. During hearing on his motions pursuant to Penal Code section 1538.5 and to quash and traverse search warrant,

On May 20 Officer Miller went to defendant’s apartment, number 703 on Argyle Avenue where he executed a search warrant. The affiant officer (Officer Miller) alleged in the affidavit in support of the warrant that a confidential reliable informant told him that within the past 72 hours he had been inside of apartment 703 and had seen and examined a light brown powder in a cellophane container which defendant told him was, and he knew to be, heroin, and defendant told him he was going to sell it. Officer Miller testified that the informant told him he had been in defendant’s apartment 36 hours prior to the signing of the warrant.

During the search of apartment 703, Officer Miller observed in plain sight a clear plastic bag containing three handguns—.357 magnum, .38 caliber revolver and .38 caliber automatic—on the floor at the end of the arm of the couch in the living room. It is not denied that defendant lived there.

Nothing in the affidavit or testimony indicates that the informant had mentioned anything to the police about firearms.

For the defense Norma Babs testified that around May 1 she purchased the handguns at a swap meet; her husband did not want them in the house and “on a Wednesday around the 18th” of May she took them to defendant’s apartment in an opaque plastic bag and placed it inside his kitchen cupboard; she did not see defendant. Defendant testified that on May 16 he went to Babs’ residence and said he was on his way to Mexico to visit friends where he remained three or four days; he returned to his apartment and found the search warrant on the wall; when he left he did not observe any handguns in his apartment.

Defendant contended in the trial court that the handguns belonged to Babs and had been placed in his apartment without his knowledge while in Mexico. His theory for disclosure of the identity of the informant was that the informant having been in his apartment 36 hours earlier might be able to shed light on whether he possessed the firearms—

The trial court granted the motion to disclose on the sole issue “When did those guns get there,” whereupon the prosecutor “On that single issue” asked leave of court to have an in camera hearing, “have the informant brought in some time in chambers, have the court inquire of the informant whether or not the informant was ever in a position to see handguns, whether he did in fact see handguns, etc.” The request for an in camera hearing was denied by the court because “you are asking me to be the fact-finder, the prosecutor, the defense and the judge.... I don’t think it is the function or the procedure for me to make a factual determination on how much that man did or did not see when he was there 36 hours before. That is up to the trial court.” The court then found the confidential reliable informant to be a material witness and dismissed the information.

Given the evidentiary and procedural posture of the case before the trial court, it is clear that the trial judge misconceived his duty under section 1042, subdivision (d), Evidence Code, and his refusal to entertain the in camera hearing constituted reversible error. Both the statutory language and case authority support the requirement that the trial court, when the prosecutor makes a proper request therefor, hold an in camera hearing.

Section 1042, subdivision (d), Evidence Code sets up the method for determining whether nondisclosure of the informant’s identity would deprive the defendant of a fair trial, and establishes procedures including in camera disclosures to aid the trial court in determining whether the section 1041 privilege applies. (People v. Goliday, 8 Cal.3d 771 , 111, fn.5 [ 106 Cal.Rptr. 113 , 505 P.2d 537 ].)

First, the language of section 1042, subdivision (d) relating to the in camera hearing is mandatory. (People v. Aguilera, 61 Cal.App.3d 863 , 870, fn.6 [ 131 Cal.Rptr. 603 ].) Section 1042, subdivision (d) provides that when a defendant demands disclosure of the identity of an informant on the ground he is a material witness on the issue of guilt, the court shall conduct an adversary hearing on the issue of disclosure.

However, the defendant failed to sustain his burden of demonstrating a reasonable possibility that the informant could give evidence on the issue of guilt which might exonerate him. A defendant who desires to obtain the identity of the informant, and the prosecutor invokes the privilege under section 1041, has the burden of showing that “‘the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.’ [Citation.]” (Price v. Superior Court, 1 Cal.3d 836 , 843 [ 83 Cal.Rptr. 369 , 463 P.2d 721 ].) The burden is discharged when defendant “‘demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.’” (Honore v. Superior Court, 70 Cal.2d 162 , 168 [ 74 Cal.Rptr. 233 , 449 P.2d 169 ]; Price v. Superior Court, 1 Cal.3d 836 , 843 [ 83 Cal.Rptr. 369 , 463 P.2d 721 ].) If he fails to discharge this burden, the state’s claim of privilege must be sustained. (People v. Tolliver, 53 Cal.App.3d 1036 , 1044 [ 125 Cal.Rptr. 905 ].)

The only information the informant gave Officer Miller concerned the possession and sale of heroin by defendant at his apartment, number 703 on Argyle Avenue. Defendant was not charged with a narcotic offense; he was charged as an ex-felon with possession of a concealable firearm. We find nothing in the affidavit or in the evidence on the adversary hearing to indicate that the informant was a material witness on the issue of defendant’s guilt of the offense charged.

First, although the informant told Officer Miller he saw defendant in the possession of heroin for sale on the premises, there is no indication in the record by way of affidavit or testimony that the informant ever mentioned to police anything concerning firearms. Similarly, in People v. Kilpatrick, 31 Cal.App.3d 431 [ 107 Cal.Rptr. 367 ], defendant was found guilty of possession of a machine gun and being an ex-felon in possession of a concealable firearm. The weapons were found in a wall panel in defendant’s house during a search for narcotics under a warrant issued on the strength of information concerning narcotics provided by an informant. He said nothing to police about a cache of firearms in a wall panel. After an in camera hearing the court refused to compel

Another similar case is People v. Borunda, 58 Cal.App.3d 368 [ 129 Cal.Rptr. 923 ], in which defendant was charged with sale of marijuana. The informant had told police he overheard Borunda state he was expecting a large shipment of heroin; he said nothing to the police about marijuana. This court held that the trial court erred in granting defendant’s motion to disclose identity as to the marijuana charge, and that under the facts there was no reasonable possibility that the informant, who was not involved in the police surveillance of defendant or in his arrest or seizure of the contraband, could have exonerated him on the charge of possession for sale of marijuana. “As to the large amount of marijuana found on the premises, defendant’s guilt of possession for sale of that marijuana was established based on the quantity involved and independent of anything the informant might testify. (People v. Goliday, supra [ 8 Cal.3d 771 ( 106 Cal.Rptr. 113 , 505 P.2d 537 )]; People v. Acuna, supra [ 35 Cal.App.3d 987 ( 111 Cal.Rptr. 878 )].) There is no showing of any reasonable possibility the informant could give testimony concerning the marijuana. The informant had said nothing to the police about marijuana. The record supports no inference other than sheer and unreasonable speculation that the informant could testify to anything concerning the marijuana. (See People v. Kilpatrick, 31 Cal.App.3d 431 , 437-438 [ 107 Cal.Rptr. 367 ].)” (P. 376.) The rationale of the foregoing authorities was used by the court in People v. Alvarez, 73 Cal.App.3d 401 [ 141 Cal.Rptr. 1 ]. As to the marijuana count, the court said that while the informant gave police information concerning the purchase of heroin in the apartment, “the informant gave the police no information about marijuana. (People v. Borunda, 58 Cal.App.3d 368 , 376 [ 129 Cal.Rptr. 923 ]; People v. Kilpatrick, supra, 31 Cal.App.3d 431 , 438.)” (P. 407.) The court concluded that defendant failed to meet his burden of demonstrating a reasonable possibility that the informant could give evidence on the issue of guilt of possession of marijuana which might lead to his exoneration.