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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Abraham Torres GARCIA, Defendant and Appellant.

No. 11090.

Decided: April 11, 1967

Abraham Torres Garcia, in pro. per., and Alan F. Charles, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, David L. Kelly, Deputy Attys. Gen., for plaintiff and respondent.

The trial court found defendant guilty of charges that he was in possession of heroin for purpose of sale (Health & Saf. Code § 11500.5), and in possession of marijuana (Health & Saf. Code § 11530).   He appealed and this court affirmed the judgment in an opinion filed on June 18, 1966.   A rehearing was granted on July 13, 1966.

 The evidence used to convict defendant was secured by the police through the use of a search warrant which was based upon information supplied by two unnamed police informers.   Prior to and during the trial defendant sought to compel disclosure of the identity of the informers.   His motions were denied by the court.   We have concluded that disclosure should have been required.

On November 24, 1964, Office Harold Ginder of the Los Angeles Police Department obtained a warrant to search for narcotics at Apartment No. 1, 1657 West 12th Street.   The warrant also authorized the search of a bar known as “Sancho's.”   Named as suspects in the warrant were Frank Reyna, Rose Reyna and Joe Gomez.   The warrant was issued upon the petition of OFficer Ginder, supported by his affidavit, which stated that his information was based on his communications with two reliable informants.   At about 10:30 a.m., on November 25, 1964, Officer Ginder, armed with the warrant and accompanied by Officer Prause and two other officers, went to the apartment identified in the warrant.   Since the officer had received information that one of the suspects was carrying a gun, it was decided that they would force an entry without warning those inside the apartment.

When the police officers entered the apartment they observed three persons.   Joe Gomez was seated in a chair by the door;  defendant and a Mary Valasquez were lying on a mattress situated on the floor in the dining room.   Defendant was dressed only in his undershorts.   Pat Reynolds (otherwise known as Rose Reyna) and Frank Reyna, were later found in a bathroom.   A search of the apartment was conducted.   Under the mattress on which defendant was lying four marijuana cigarettes were found.   A partially burned marijuana cigarette was in an ashtray beside the mattress.   Also, under the same mattress, was a plastic bag containing thirteen balloons and another package which held eleven balloons.   Each balloon contained a powdery substance subsequently analyzed as heroin.   On a table in the dining room there were a number of loose balloons and rubber bands.   A can of milk sugar was found in the kitchen.   A box of gelatin capsules was in a dining room cupboard.

Officer Prause testified that, after finding the contraband, they arrested everyone in the apartment.   In a statement which followed a warning as to their legal rights, all initially denied knowledge of the narcotics.   However, when the officers had made a more thorough search of the apartment and were preparing to take them to jail, about an hour and a half later, defendant tuned to Officer Prause and asked, “Are you going to take everyone?”   When the officer replied “Yes,” defendant said, “Well, all the narcotics belongs to me.”   When asked why he did not reveal this to the officer when they first asked him, defendant said that he did not know everyone would be taken to jail.   Defendant also told the officers that he had been living in the apartment three or four days before his arrest.   He then asked for and was refused permission for one last “fix” before being taken to jail.

The affidavit submitted by Officer Ginder in support of the petition for the search warrant indicated that the officer believed that Frank Reyna, Rose Reyna and Joe Gomez were in possession of heroin and marijuana at the apartment on 12th Street and at a beer bar known as Sancho's;  that for two weeks he had been investigating the narcotics activities of these three individuals;  during this period he had been told by two reliable informants that these three persons were dealing in heroin and marijuana both at Sancho's and at the 12th Street apartment;  that they resided together at the apartment;  Gomez acted as a bodyguard for Frank Reyna;  Rose was Frank's common-law wife;  that both of the informants related they had made purchases of narcotics from Frank Reyna and Gomez at the residence and at Sancho's.   Ginder further indicated in the affidavit that he checked the police files and found that Frank Reyna and Gomez had records which included narcotics violations.

Officer Ginder testified that neither informant was present at the residence when defendant was arrested;  they had told him they had made purchases of narcotics from Reyna and Gomez a few days before that date;  he had talked to one of the informants the night before defendant's arrest;  when he went to the apartment with the search warrant, he had no reason to believe defendant would be there;  the informers had indicated they had dealt only with the three persons named in the warrant.

In defendant's testimony he denied that the narcotics were his;  he had not told the officers the narcotics belonged to him;  he was present in the apartment when the police arrived but he had only been there for about thirty minutes;  he was not lying on the mattress when they came in, but was sitting, fully dressed, in a chair;  he had taken a “fix” about a half hour before.

By a discovery motion made prior to trial, and by motions during the course of the trial, defendant sought on cross-examination to require Office Ginder to tell who the two informers were.   Disclosure was sought by defendant on the ground that they were material witnesses who could possibly support his defense that he was merely a visitor at the apartment;  that the narcotics found belonged to those who resided there and not to him.

 Officer Ginder declined to reveal their identities, relying on the privilege of nondisclosure accorded him under California Code of Civil Procedure section 1881, subdivision 5.   It provides:  “A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.”   The privilege of nondisclosure, however, is not absolute.

 “Where the disclosure of an informer's identity * * * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.”  (Roviaro v. United States, 353 U.S. 53, 60–61, 77 S.Ct. 623, 1 L.Ed.2d 639;  see People v. McShann, 50 Cal.2d 802, 807, 330 P.2d 33 and People v. Perez, 62 Cal.2d 769, 773, 44 Cal.Rptr. 326, 401 P.2d 934.)   And, “Disclosure is not limited to the informer who participates in the crime alleged.   The information elicited from an informer may be ‘relevant and helpful to the defense of the accused or essential to a fair determination of a cause’ even though the informer was not a participant.  * * * Thus, when it appears from the evidence that the informer is a material witness on the issue of guilt and the accused seeks disclosure on cross-examination, the People must either disclose his identity or incur a dismissal.”  (People v. McShann, supra, 50 Cal.2d 802, 808, 330 P.2d 33, 36.)

In People v. Perez, ,supra, 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934, the court applied this rule holding that the refusal to require disclosure of the informer was error because his testimony might have disclosed the entrapment of the defendant or have otherwise confirmed the defendant's testimony.

In People v. Montano, 244 A.C.A. 636, 53 Cal.Rptr. 145, decided during the pendency of this appeal, the court discussed the rule of Roviaro, McShann and Perez, and concluded (at p. 645, 53 Cal.Rptr. at p. 151), that it is not a prerequisite to requiring disclosure, “* * * that the defendant must show that he has reason—apart from his own denial of guilt—to expect favorable testimony from the informant * * *.”

Looking at the case before us, defendant denied in his testimony that he was in possession of the contraband found by the officers when they entered the 12th Street apartment.   His story was that he had arrived there just before the officers.   He further denied having made the statement attributed to him by Officer Prause.   In the affidavit of Officer Ginder supporting the search warrant and in his testimony, the officer indicated that the informers told him Reyna, Rose and Gomez resided at the apartment and were dealing in narcotics.   Ginder testified that when the officers entered the apartment they found these persons along with defendant and another woman.   The informer's testimony might have supported the defense that defendant was just a visitor;  that the narcotics belonged to Reyna, Rose and Gomez who lived at the apartment.   In the light of the above authorities defendant is entitled to a reversal because he was not permitted the disclosure he sought.

In so concluding, we find it unnecessary to decide a number of other contentions urged by defendant.   Nor need we decide whether the recent decision in People v. Butler, 64 Cal.2d 842, 52 Cal.Rptr. 4, 415 P.2d 819 (involving a defendant's right to controvert at his trial the facts stated in a warrant), has any application to this case.

The judgment is reversed.

JEFFERSON, Associate Justice.

FILES, P.J., and KINGSLEY, J., concur.