People v. Borunda

Informant Number Two told Officer Parino that Richard Borunda, who lived at 4869 Templeton, was dealing in heroin. He said that Borunda drove a black-over-silver Cadillac Eldorado. The informant said he was with a group of males, including Borunda, when Borunda stated that he was expecting a large shipment of heroin sometime on April 9. Officer Parino had a number of prior contacts with this informant, who had given information which “[had] been verified by our department” and who had participated in two buys of heroin.

The above is the only extent to which the informants participated in this case. They were not involved in the subsequent surveillance, the arrest of defendant, or the seizure of evidence. The trial court’s order compelling disclosure was directed only toward Informant Number Two, defense counsel having conceded that Informant Number One was not a material witness. The issue is whether defendant demonstrated a reasonable possibility that Informant Number Two could give evidence on the issue of guilt or innocence which might result in defendant’s exoneration, thus requiring disclosure of his identity. (Price v. Superior Court, 1 Cal.3d 836 , 843 [ 83 Cal.Rptr. 369 , 463 P.2d 721 ]; People v. Garcia, 67 Cal.2d 830 , 839-840 [ 64 Cal.Rptr. 110 , 434 P.2d 366 ]; People v. Borunda, 11 Cal.3d 523 , 527 [ 113 Cal.Rptr. 825 , 522 P.2d 1 ].)

Officer Parino and other officers conducted a surveillance of 4869 Templeton on April 9, the date of the expected shipment. At 3 p.m. defendant drove a black-over-silver Cadillac Eldorado into the driveway. He had a passenger, a male Mexican, approximately 30 years old, 5 feet 7 inches, 130 pounds, dressed in a black outfit. The man in black got out and opened the garage door, and the car went inside. Fifteen minutes

In the meantime, defendant drove out of the garage again and went to a store. Officer Parino stopped defendant there to conduct a narcotics investigation, and as defendant was stepping out of his car, Officer Parino observed a condom containing a brown substance in his shirt pocket. Based upon his experience and the information available to him, Officer Parino concluded that the substance was heroin and arrested defendant. Defendant was advised of and waived his constitutional rights. Parino asked defendant if he had any more heroin at the residence, and defendant said, “No. A person by the- name of Daniel gave me two ounces for letting me [s/c] use my residence to cut up a large quantity of heroin, but already left.” Parino asked if it would be all right if he searched the residence and defendant said, “Sure, go ahead. There’s nothing there anymore.”

Defendant and the police returned to the residence. Albert Valenzuela Gomez, also known as Albert Garcia, was found leaving from the back door.^[2] The following evidence was seized at 4869 Templeton: 306 grams of heroin;- 1,409 grams of marijuana; several jars and boxes of lactose sugar; a strainer; an electric mixer containing heroin residue; condoms and balloons; and utility bills in the names Richard Borunda, Elias Borunda, and Rita Borunda. Based upon the quantity and the paraphernalia found at the premises, it was Officer Parino’s opinion that the contraband was held for purposes of sale.

The defense introduced evidence at the hearing to support its theory that Informant Number Two would be a material witness whose identity

David Garcia Gamez testified that he and a friend named Ray arrived in the Chevrolet. David was looking for his brother to find out what time he would finish work. He did not carry anything inside with him. Willie Nunez asked him to go to the drugstore and buy some rubbers for him. Nunez gave him $15. Defendant asked him to get some shaving cream and razor blades, and to take defendant’s Cadillac. Defendant testified that he did not know anything about the rubbers. Gamez testified he did not observe any narcotic activity. Gamez and Ray went to the store to make the purchases. Defendant testified that while David Gamez was at the store, defendant was alone in the house; Albert was in the rental. When Gamez returned, he stayed awhile, then took a bag of fruit with him and put it in his car. He and Ray left and went home..

Defendant testified as to what occurred next:

“A. ... I, from the back of my breakfast room there is a view of the back yard, and I seen Willie putting something in the, you know, stashing something, so when he left, I went outside and I picked it up, and it was the stuff that was in the rubber, so I put it in my pocket, I went back inside, and I got my jacket and I put it on, and then I went to the garage, and I took off to take her down to my grandma’s house.

“Q. [Counsel for defendant] Did you know or did you think that it was narcotics?

“A. Yeah. Well, I thought I seen him stashing something, so I figures it was something like—

“Q. Was he using narcotics at that time?

“A. Yes.

“Q. And you were intending to hide it somewhere else; is that correct?

“A. Yes, at my grandma’s house.”

Defendant further testified that he never stated he was expecting a shipment of heroin on April 9.^[4]

The argument for compelling disclosure of the identity of Informant Number Two is that the informant might testify it was someone else, not defendant, who stated he expected a shipment of heroin on April 9, and that this would support a defense theory that Willie Nunez possessed the heroin found at the premises. The trial court ordered disclosure, stating;

“It must be noted that the charge is not possession, but possession for sale, both the items included in Count I and Count II. . . . [1] This information for probable cause would certainly go to possession for sale, as defense was entitled to put on evidence, testimony, which placed the defendant in position of being merely in possession of the contraband found. [|] Therefore, it would seem to me apparent that the testimony of this informant, that he in fact did hear defendant make this statement, would be most relevant on the issue as to whether or not the defendant, at the time he was found in possession of this, was in fact possessing it for sale or for the reason that he indicates. [K] Now, that was the basis for the ruling, Counsel.”^[5] When the People refused to disclose the identity, the court dismissed all charges.

Discussion

The People concede that the theoretical possibility the informant could testify that someone other than defendant said he was expecting a shipment of heroin on April 9 renders the informant a material witness as to whether defendant possessed the heroin for purposes of sale. However, the People contend the trial court erred (1) in dismissing the heroin count rather than reducing it to simple possession