Reset A A Font size: Print

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

The PEOPLE, Plaintiff and Respondent, v. Joseph Edward HELFERTY, Defendant and Appellant.

Cr. 39174.

Decided: November 23, 1981

Weitzman, Fidler & Re, and Donald M. Re, Los Angeles, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert R. Anderson and Christine C. Franklin, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged with: (count I) possession of marijuana for sale, in violation of subdivision (a) of section 11359 of the Health & Safety Code; (count II) possession of cocaine, in violation of section 11350 of that code; (count III) unlawful possession of a controlled substance, in violation of section 11377 of that code; and (count IV) unlawful possession of a machine gun, in violation of section 12220 of the Penal Code. After a trial by the court, trial by jury having been duly waived, and submission on the transcript of the preliminary hearing, defendant was found guilty on counts I and IV, and not guilty on counts II and III. He was granted probation; he has appealed; we affirm.


At the preliminary hearing, defendant sought the disclosure of the identity of the informant on whose story the search warrant herein involved was issued. The magistrate held an in camera hearing and denied the request. The motion was renewed in the trial court. Over objection by defendant, the trial judge read the transcript of that hearing and denied the renewed motion. It is the contention of defendant here that he was entitled to have a de novo in camera hearing before the trial judge. We reject that contention.

Defendant here relies chiefly on Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 85 Cal.Rptr. 493. We regard that reliance as misplaced. In Hewitt defendant had made a motion, at the preliminary hearing, to suppress evidence under section 1538.5 of the Penal Code. That motion was denied by the magistrate. In the superior court, defendant renewed his motion; the trial court examined the transcript of the testimony taken before the magistrate and, on reading that transcript, also denied the motion. The appellate court ruled that that was error and that defendant was entitled to a de novo hearing in the superior court at which evidence would again be presented to the superior court judge. However, section 1538.5, expressly provides, in subdivision (i) as follows:

“(i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by the indictment, the defendant shall have the right to renew or make the motion in the superior court at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 days after notice to the people unless the people are willing to waive a portion of this time. The defendant shall have the right to litigate the validity of a search de novo on the basis of the evidence presented at a special hearing. After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed with 30 days after the denial of his motion at the special hearing.”

We find no such provision in section 1042 of the Evidence Code. Assuming, without deciding, that a defendant, having been unsuccessful in the magistrate's court may again raise the issue in the trial court, we see no reason why the trial court may not rely on the evidence produced before the magistrate and make its own determination based on that evidence. There is no claim here, and ordinarily there will not be, that the in camera hearing involved any issue of credibility. The informant whose identity is sought must appear at the in camera hearing only to enable the judge holding that hearing to inquire of him whether he had any part, other than as an informant for a warrant, that made him a material witness to the offense or search involved, thus offering an opportunity to test the People's claim of noninvolvement. Once the informant had denied involvement, or explained his actions, there remains only a question of law as to whether his involvement made him a material witness at trial. That legal issue the trial judge can decide, as does this court, on the basis of the transcript. To require a second personal appearance, with its inevitable risk of disclosure, is an unnecessary duplication and a waste of judicial time.


Defendant here contends that, because in the superior court, the People did not request a new in camera hearing and impliedly refused to ask for one, the case is determined by language in People v. Blouin (1978) 80 Cal.App.3d 269, 145 Cal.Rptr. 701, where the court said (at p. 288, 145 Cal.Rptr. 701):

“If the People do not choose to request such [1042] hearing, or if the informant's lack of exculpatory information is not established an order for disclosure will be required.”

We reject that contention: (1) as we have said above, in the case at bench, the informant's lack of exculpatory information had been established by the hearing before the magistrate; and (2) the refusal here was based on what we hold to be a valid ground—namely that no de novo hearing was required.


Defendant contends that the evidence does not show that he exercised dominion over the marijuana found in the warrant search. Unlike cases relied on by defendant, here the record shows that the place searched was defendant's residence occupied only by himself and his daughter. Under those circumstances, an inference of knowledge and dominion may properly be drawn. (See, for example, People v. White (1969) 71 Cal.2d 80, 82-83, 75 Cal.Rptr. 208, 450 P.2d 600.)


Defendant also contends that the record does not support his conviction of a violation of section 12220 of the Penal Code because the machine gun found in the search lacked a bolt and cotter pin. Section 12200 of the Penal Code defines a machine gun as follows:

“The term ‘machinegun’ [sic] as used in this chapter means any weapon which shoots, or is designed to shoot automatically, more than one shot, without manual reloading, by a single function of the trigger, and includes any frame or receiver which can be used with such weapon. The term shall also include any combination of parts designed and intended for use in converting a weapon into a machine gun.” The instrumentality found clearly was “a frame … which can only be used with” a machine gun, and the missing parts—bolt and cotter pin—are items easily acquired on the open market, so that the gun was one which could easily be assembled, within the meaning of People v. Tallmadge (1980) 103 Cal.App.3d 980, 987-988, 163 Cal.Rptr. 372.

The judgment (order granting probation) is affirmed.

KINGSLEY, Acting Presiding Justice.

WOODS and McCLOSKY, JJ., concur.