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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Aurelio Munguia MADRIGAL, Defendant and Appellant.

Cr. 9949.

Decided: December 26, 1979

Edward E. Moe, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, Emry J. Allen, Garrick Chock, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was arrested after selling almost an ounce (23.58 grams) of heroin to a Sutter County Deputy Sheriff on March 16, 1978. A jury found him guilty of sale of heroin (Health & Saf.Code, § 11352) and he was sentenced to prison. He appeals.


Defendant first contends he was denied due process of law and effective assistance of counsel when the municipal court denied his motion for continuance of the preliminary hearing to allow his newly retained counsel more time to prepare. There is however no showing in the record that defendant moved in the superior court to set aside the information. (Pen.Code, § 995.) Absent such a motion, we will not consider claims of irregularity at the preliminary hearing. (Pen.Code, § 996; People v. Harris (1967) 67 Cal.2d 866, 870, 64 Cal.Rptr. 313, 434 P.2d 609.)


Defendant's principal contention is that we must reverse the judgment and direct the superior court to dismiss the case because his pretrial motion to disclose the identity of an informant was denied.1 According to the Sutter County Sheriff's records (all of which were available to defendant at all pertinent times), defendant first came to the attention of the authorities when an informant telephoned, told a deputy sheriff that defendant was attempting to sell him heroin, and offered to introduce an undercover operator to defendant. The deputy had never before worked with this informant and did not know whether anyone else in the sheriff's department had. An agreement was made whereby drunk driving charges against the informant were dropped in return for “turning [in] a heroin dealer.” After several more monitored conversations with defendant and the delivery by defendant of two samples of heroin (consuming a period of several days), the informant escorted defendant to a motel room for a meeting with the deputy; the informant departed, and the sale thereafter took place with only the defendant and the deputy present. The transaction was taped and later used at trial.

After his arraignment and plea of not guilty, defendant moved in writing to discover, inter alia, the names and addresses of all informants. Attached to the motion was a copy of the complete sheriff's report containing the aforementioned information. The court denied the motion on the basis that defendant had not shown that the informant was a material witness on the issue of guilt, and also that the sheriff's report indicated defendant intended to commit the crime, the defense of entrapment was not available to him, and his participation was established by independent evidence.2

The informant was identified by the People at trial as “Chuck Nobles.” Defendant testified he knew the informant only as “Chuck” and had met him in August of 1977, seven months before the offense; defendant and Chuck held similar jobs for the same employer and defendant habitually drove Chuck home in the evening after work; Chuck “appeared to be a very good friend.” Defendant further testified that Chuck told him in January 1978 that he likes to use heroin and showed defendant needle marks on his arm; Chuck repeatedly urged defendant to obtain heroin, telling him he (Chuck) would find a buyer and they would split the profits; defendant had never used nor sold heroin before and agreed to participate only because Chuck's friendship and repeated urgings.

We agree with the trial court's determination as to materiality and entrapment. Nonetheless, another determinative issue logically precedes the two addressed by the trial court. That issue is whether a defendant who undeniably knows the identity of an informant may obtain reversal of an otherwise valid conviction and judgment because disclosure of that informant is refused. We believe he may not.

The context of defendant's motion here is not an unusual one. In their efforts to apprehend drug law violators, police often use informants who are themselves involved in illicit drug activities. For obvious reasons, such informants often strictly condition cooperation with the authorities upon a promise of nondisclosure of their identity under any circumstances. (Cf. Evid.Code, §§ 1041, 1042.) Often an accused is as fully aware of the identity and whereabouts of an informant as are the police. May he then seek court ordered disclosure, a matter academic to himself and his pending trial, knowing that far from enabling him to obtain proof of his innocence, the order will in actuality force dismissal of the charge without a hearing on the merits? The rule of forced disclosure, designed to protect the innocent, was never intended to support such an abuse. The disclosure rule should afford no deliverance to one who possesses information which the police, in keeping faith with their informant, cannot produce.

Both statutory and case law formulations of the resolution of conflicts between the public's interest in protecting informants and the accused's right to a full and fair trial use the term “disclose.” (Evid.Code, §§ 1041, 1042; see Witkin, Cal. Evidence (2d ed. 1966) Witnesses, § 879 et seq., p. 814 et seq. and cases there cited.) To disclose is “to open up, to expose to view, to make known, to reveal in words something that is secret or not generally known.” (Webster's Third New Internat. Dict. (1971).) Stating known facts is not disclosure. The statutory provision for in-camera hearings out of a defendant's presence, in order to assist the trier of fact in determining whether nondisclosure would deprive the defendant of a fair trial (Evid. Code, § 1042, subd. (d)), calls for a meaningless and idle act unless the informant's identity is in fact unknown to the defendant.

The government's privilege of nondisclosure must give way when it conflicts with the fundamental principle that a person accused of crime is entitled to a full and fair opportunity to defend. (People v. Williams (1958) 51 Cal.2d 355, 357, 333 P.2d 19; see People v. Flemmings (1973) 34 Cal.App.3d 63, 67, 109 Cal.Rptr. 661.) Implicit in this is the proposition that the accused not know the identity of the informant so as to be able to call him or her as a witness. (See Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 853, 83 Cal.Rptr. 586, 464 P.2d 42.) It is the deprivation of an opportunity to produce possible exonerating evidence which constitutes error (Price v. Superior Court (1970) 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721), not the purely academic act of reciting a name and address.

We distinguish the present case from Eleazer v. Superior Court, supra, where the Supreme Court found that the prosecution has a duty to make a reasonable good faith effort to locate a material witness informant irrespective of the defendant's showing. (1 Cal.3d at pp. 853-854, 83 Cal.Rptr. 369, 463 P.2d 721.) Such a duty certainly exists. Where the authorities know the identity of an admittedly material witness they have an affirmative duty of reasonable action to establish and maintain knowledge of his whereabouts; when later called upon to disclose identity they must disclose all they know, not merely a name. (Id., at p. 851, 83 Cal.Rptr. 369, 463 P.2d 721.) But that is not our case, for here the record shows that the defendant knew all he sought to learn; and if he was concerned specifically with the informant's surname or present whereabouts (recall that defendant habitually drove the informer to his residence after work for at least a five-month period), he could have addressed himself directly to the quest for such missing information. He asked only for the “names and addresses of all informants,” information already in his possession. The failure to call or make an effort to call Nobles as a witness does not in any way indicate that Nobles was unavailable; rather it suggests that defendant chose to gamble on reversal of the judgment based on the ruling denying disclosure. Given the circumstances and proof of his offense, defendant's choice was understandable, but such gamesmanship is not conducive to justice and should be discouraged.

We hold that as a condition of entitlement to disclosure of an informant, a defendant has the burden of demonstrating prima facie that he does not know informant's identity. This is a question of fact, and defendant's prima facie showing shifts the burden of proof to the People, thus comporting with the traditional liberality of California courts in permitting discovery (cf. Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 802-805, 91 Cal.Rptr. 594, 478 P.2d 26), and with the constitutional requirement of due process (cf. People v. Garcia (1967) 67 Cal.2d 830, 842, 64 Cal.Rptr. 110, 434 P.2d 366). This eliminates a potential unjustifiable abuse of the informant disclosure rule.3 Neither disclosure nor anything else should be ordered where, as in this case, the evidence shows conclusively that the defendant is aware of both the identity and whereabouts of the informant, and thus presumably can obtain him as a defense witness.

The judgment is affirmed.

Having authored the foregoing opinion, I now concur separately (cf. Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, 150 Cal.Rptr. 435, 586 P.2d 916), in order to voice formally a long overdue protest on a subject of utmost importance and concern to the appellate judiciary of this state.

The Supreme Court possesses the undoubted paramount authority over publication of its own and appellate court opinions. (See Cal.Const., art. VI, § 14; Gov.Code, § 68902.) Pursuant to that authority, in 1963 (see 60 Cal.2d 1), it adopted rule 976, California Rules of Court (and amended it in 1971—see 6 Cal.3d, Rules, pp. 1, 42-43), therein undertaking to delegate to Courts of Appeal the power themselves to determine which of their opinions should be published and under what circumstances. The guidelines, contained in subsection (b) of the rule, direct that a published opinion be one which “(1) establishes a new rule of law or alters or modifies an existing rule, [fn.] (2) involves a legal issue of continuing public interest, [fn.] or (3) criticizes existing law.” In subsection (c), the Supreme Court further directed that the determination to publish be made by a majority of the panel rendering the opinion, but by the language “[u]nless otherwise directed by the Supreme Court,” (emphasis in original), it appropriately reserved to itself the right to exercise final judgment and control over that determination. Such final control presumably is to be exercised within the guidelines of subsection (b); the rule certainly so implies upon intelligent analysis, the rule does not expressly state otherwise, the Supreme Court itself has never stated otherwise, and it is inconceivable that the high Court would deliberately decree a standard governing others but not itself. On the contrary it has expressly disavowed, with apparent indignation, a suggestion that it should exercise a right of censorship through the depublication power.1

Yet the majority of our Supreme Court has in the past few years, with ever expanding appetite, abused its depublication power by ordering appellate opinions de-published even though irrefutably within the standards for publication. This is often done without a single vote in favor of the grant of a hearing, thereby indicating unanimous approval of the legal soundness and validity of the decision in question (cf. Cal.Rules of Court, rule 29); such depublication therefore denotes an obvious dislike for the decision's rule of law and an unwillingness to let it serve as legal precedent. (See rule 977.) For examples of the extent of this abuse I refer the reader to blank or soon to be blank pages in California Appellate Reports, Third Series, at 91 Cal.App.3d 932; 88 Cal.App.3d 696; 87 Cal.App.3d 151; 86 Cal.App.3d 839; 81 Cal.App.3d 638; 78 Cal.App.3d 567; 68 Cal.App.3d 1070; 75 Cal.App.3d 773, etc., etc., etc. (at the same time I hasten to recognize with sincere appreciation the fact that two of the justices, Chief Justice Bird and Associate Justice Clark, have steadfastly refused to become parties to this practice).2

We have certified the foregoing opinion for publication in the Official Reports because it meets the standards for publication as set forth in rule 976(b). Specifically it “establishes a new rule of law or alters or modifies an existing rule.” But I have reason to believe that the subject matter, along with the result we reach (perhaps archaically we embrace the sentiment uttered a half century ago by Justice Cardozo that “justice, though due to the accused, is due to the accuser also”—Snyder v. Massachusetts (1933) 291 U.S. 97, 122 [78 L.Ed. 674, 687]), will not be to our Supreme Court's liking, thus triggering a grant of hearing, or more likely, depublication. If the former, I have no compliant; if the latter, I respectfully inform the Supreme Court of my disapproval. If the Court disagrees with our holding, let it grant a hearing and decide the case according to its wisdom and its duty. But if it is not inclined so to do, I entreat it to discontinue the practice I here denounce.

One of three practical consequences will flow from this opinion and my separate comments. (1) The Supreme Court will grant a hearing, thus fairly and properly nullify our opinion, and this concurring opinion with it. (2) The Supreme Court will order depublication, in which event opinion and concurrence alike will disappear and my protestations will have fallen on deaf supreme judicial ears. (3) The Supreme Court will simply deny a hearing. In the latter unlikely event, or the virtually impossible event that no petition to the Supreme Court is filed, I hereby direct the Reporter of Decisions to delete this concurring opinion in its entirety from the appropriate permanent bound volume of the California Appellate Reports, Third Series.


1.  An earlier request for disclosure of the informant at the preliminary hearing was also denied.

2.  Indeed the defense of entrapment (as asserted by defendant in support of the motion) was not available in such circumstances according to the rule of law in existence at the time of the motion and trial. (People v. Barraza (1979) 23 Cal.3d 675, 688, 691, fn. 5, 153 Cal.Rptr. 459, 591 P.2d 947.)

3.  Admittedly, at the time the court made its ruling denying the motion, it was not aware of defendant's own knowledge. That does not however alter the fact of such knowledge.

1.  I refer to a letter from the Supreme Court to Mary K. Gillespie dated May 14, 1975, regarding Chaffin v. Frye (1975) 45 Cal.App.3d 39, 119 Cal.Rptr. 22, rejecting her request for decertification and stating: “A petition for hearing was filed and received by this court. That petition was denied. You are now, in effect, asking the court to shape the constitutional law by suppressing publication of an opinion. It appears that to so act would be law by elimination rather than by elucidation.” (Emphasis added.) (See Report of the Chief Justice's Advisory Committee for an Effective Publication Rule, June 1, 1979, at p. 24.)

2.  For further criticism of this censorship by depublication, see Witkin, Manual on Appellate Court Opinions (1977) § 22, pages 35-36; Report of the Chief Justice's Advisory Committee for an Effective Publication Rule, supra, pages 24-25; Comment, Decertification of Appellate Opinions, 50 So.Cal.L.Rev. 1181 (1977).

PARAS, Acting Presiding Justice.

EVANS and REYNOSO, JJ., concur. PARAS, Acting Presiding Justice.

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