PEOPLE v. LANDA (1997)

In the published portion of this opinion, we consider whether a police officer's testimony should have been precluded once he claimed official privilege as to the location from which he watched a drug transaction.   We vacate the judgment and remand for a new in camera hearing on the location issue, with the witness to testify under oath, under the standards we set forth.   In the unpublished portion of the opinion, we reject defendant's claim that he was improperly sentenced to a 12-year prison term.   We order the abstract of judgment modified to conform to the judgment.

On the petition for habeas corpus, also dealt with in the unpublished portion of the opinion, alleging incompetence of counsel, we issue an order to show cause, returnable before the Superior Court, and remand for an evidentiary hearing.

BACKGROUND

From Officer Duffy's vantage point, he watched as several men stood at the front of a home in a housing project.   They would wave, apparently trying to attract passing potential customers.   Defendant was lying on the grass, playing with a small child.   One motorist parked at the curb.   Defendant went over to the car and talked to the driver, who handed currency to defendant, who in turn walked to the electrical meter box on another side of the residence.   He removed a glass bottle from the box, then walked back to the car and handed something to the motorist.   The motorist drove off.

Officer Duffy figured he had just watched a drug transaction.   He radioed other officers, who quickly went to the residence and detained everyone.   Officer Mireles removed from the meter box a vial of phencyclidine and a small bottle containing a cigarette that had been dipped in the substance.

Defendant claimed he had been inside with his two-year-old son.   He went out the back door with the child to buy him ice cream from a passing vendor.   As he returned to the house, police took him into custody.   He had sold no drugs.

The jury convicted defendant of possessing the drug for sale.   The trial court found true prior convictions and sent defendant to prison for 12 years.

DISCUSSION

On AppealI

 Officer Duffy was not under oath during the in camera examination.   An in camera hearing as to disclosure of an informant must be conducted with the witness under oath.  (People v. Gooch (1983) 139 Cal.App.3d 342, 345, 188 Cal.Rptr. 673.)  “[I]nformant's identity and surveillance location issues are analogous․”  (People v. Walker (1991) 230 Cal.App.3d 230, 238, 282 Cal.Rptr. 12.)   Accordingly, we must vacate the judgment and remand for a new in camera hearing on the issue, with Officer Duffy testifying after having been sworn.   At the new hearing, the trial court may not consider Officer Duffy's previous unsworn testimony.  (People v. Lee (1985) 164 Cal.App.3d 830, 840-841, 210 Cal.Rptr. 799.)   Should the trial court again find the location immaterial, it is to reimpose judgment.   Should the trial court find the location material, it is to vacate the judgment, order Officer Duffy's trial testimony stricken, and enter a judgment of acquittal.   Under the circumstances, the prosecution's case would have failed for insufficiency of evidence, and retrial would be barred.

II

For guidance of the trial court on remand, we deal with the issue of official privilege.   Defendant sought to have Officer Duffy disclose the location from which he had viewed the transaction.   The officer claimed official privilege and the trial court held an in camera hearing to resolve the claim.   The court upheld the privilege, precluding defendant from knowing the location.  Evidence Code section 1042, subdivision (a) provides that if a trial court sustains such privilege in a criminal case, it “shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.”   In this case, the “adverse finding” would mean dismissing the matter, since Officer Duffy's observations from the location are the only evidence linking defendant to the box from which the contraband was recovered.

 But “[t]he adverse finding is only required if the privileged information is material.”  (Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1234, 251 Cal.Rptr. 28.)  “[T]he test of materiality is not simple relevance;  it is whether the nondisclosure might deprive defendant of his [ ] due process right to a fair trial.  [Citation.]”  (People v. Garza (1995) 32 Cal.App.4th 148, 153, 38 Cal.Rptr.2d 11.)   The cases are all over the board.

In Hines v. Superior Court, supra, 203 Cal.App.3d 1231, 251 Cal.Rptr. 28, the officer said he saw through binoculars a drug transaction from about 50 yards away, with an unobstructed view, during a “somewhat overcast” day.  (Id. at p. 1233, 251 Cal.Rptr. 28.)   Without more, the appellate court found the question of location material because, as the Attorney General conceded, “ ‘what is important is whether or not Officer Weir was able to adequately observe the transactions.’ ”  (Id. at p. 1235, 251 Cal.Rptr. 28.)   Of course, that question exists in every such case.   Whenever an officer purports to see something from a hidden vantage point, whether from 5 feet or 500 feet or more, in sunshine or darkness, the question is whether he had the opportunity to see the transaction as testified and whether he saw it accurately.  “Such an approach would render the privilege nugatory.”   (People v. Haider (1995) 34 Cal.App.4th 661, 669, 40 Cal.Rptr.2d 369.)

 The Hines holding, without further analysis, would mandate a finding of materiality in every case.  “Because location is always material in every evidence dispute involving police surveillance, were we to adopt such analysis we would be requiring trial courts to strike testimony in every case in which a confidential surveillance location is used.   The Legislature could not have intended such an absurd result.”  (People v. Garza, supra, 32 Cal.App.4th at p. 156, 38 Cal.Rptr.2d 11.)   Accordingly, there must be a “showing that disclosure [would have] a reasonable possibility of resulting in defendant's exoneration[.]”  (Id. at p. 155, 38 Cal.Rptr.2d 11.)

People v. Haider, supra, 34 Cal.App.4th 661, 40 Cal.Rptr.2d 369, involved facts similar to those in Hines.   In finding no materiality, Haider distinguished itself thusly:  “Unlike the situation in Hines, in the present case [ ] the officer's observations occurred on a sunny day, the officer observed the exchanges from a closer location [100-120 feet], and the officer testified he saw an off-white rock being brushed into [the buyer's] hands.”  (Id. at p. 667, 40 Cal.Rptr.2d 369.)   The difference between 50 yards versus 120 feet is almost negligible.   The difference between Haider and Hines really boils down to a sunny day.

In People v. Montgomery (1988) 205 Cal.App.3d 1011, 252 Cal.Rptr. 779, the officer was 25 to 35 yards away.   The trial court found the location material, but then erred in refusing to make the required adverse ruling.  “The [appellate] court noted that it was possible that due to the distance the officer may have been unable to distinguish defendant's activities from the other suspects' activities.  (People v. Montgomery, supra, 205 Cal.App.3d at pp. 1019-1023, 252 Cal.Rptr. 779.)”  (People v. Walker, supra, 230 Cal.App.3d at p. 239, 282 Cal.Rptr. 12.)   Thus, the Montgomery appellate court found materiality because of distance.

People v. Walker, supra, 230 Cal.App.3d 230, 282 Cal.Rptr. 12, set itself apart because the officer saw the transaction from 15 feet away “under good lighting conditions.”  (Id. at p. 238, 282 Cal.Rptr. 12.)   Thus, the location was not material.  People v. Garza, supra, 32 Cal.App.4th 148, 38 Cal.Rptr.2d 11, found a lack of materiality because the officer was in touch with other officers by two-way radio.   Since he was able to broadcast fine details of the criminals and their drug activities, reasoned the appellate court, his view must not have been obstructed.   It was “not therefore reasonably possible that had [the officer's] location been disclosed, the disclosure would have resulted in defendant's exoneration.”  (Id. at p. 155, 38 Cal.Rptr.2d 11.)

In re Sergio M. (1993) 13 Cal.App.4th 809, 16 Cal.Rptr.2d 701, had the officer out on “a clear and sunny day.”  (Id. at p. 811, 16 Cal.Rptr.2d 701.)   His observations were from “within 100 yards.”  (Ibid.) In addition to whatever was produced at the in camera hearing, a defense investigator testified to obstructions within 100 yards of the scene.   The trial court found on the one hand “ ‘it is absolutely essential for this minor to have a cross-examination of this officer by finding out where he saw these observations.’ ”  (Id. at p. 813, 16 Cal.Rptr.2d 701.)   On the other hand, the trial court found public interest in protecting the location outweighed the minor's interest.

The Sergio M. appellate tribunal denied minor's claim by bootstrapping the officer's credibility.   He said he was within 100 yards using powerful binoculars.   He said he had an unobstructed view.   It was clear and sunny.   He said no one else was dressed like the minor.   So, reasoned the appellate court, knowing the location could not have helped the minor.   We fail to follow Sergio M.'s reasoning.   The trial court made the factual determination that knowing the location was “ ‘absolutely essential’ ” from the minor's standpoint.   Why would this be so if the trial court at the in camera hearing determined the location was unobstructed?   We can only presume that the trial court found the location material, then erred in refusing to make the adverse finding.

The reasoning in some of these cases is slightly peculiar.   The whole point of the exercise is to test the officer's credibility.   Obviously, if an officer testifies to details he could not have seen from an obstructed location, his version has to be called into question.   Some of the cases bootstrap the holdings by assuming the officer's credibility up front and using that to determine location is not material since it could not have been obstructed since the officer could not have seen what he said he saw if it had been obstructed.¹

Hines and Montgomery can be read to hold that location is always material if the officer is more than a short distance away.  Haider, intentionally or otherwise, stands for the proposition that good lighting renders the officer credible, so location is not material.  Walker confers credibility if the officer is close-by and the lighting is good.   Garza assumes credibility if the officer's testimony is detailed.  Sergio M., wittingly or otherwise, stands for the proposition that even if the trial court finds materiality, it can nonetheless ignore the requirements of the Evidence Code and refuse to make the adverse finding.   The net result of all these opinions is that there are no coherent rules on the subject.   It's a crapshoot.

 We do not subscribe to the theory that location is always material.   Rather, we employ a fairly simple proposition-an obstructed location is material, an unobstructed one is not.²  In the former situation, a defendant cannot adequately defend himself unless he can point out to the trier of fact that the officer's observations might be unlikely because of the location.   In the latter situation, knowing the location will neither add to nor detract from the officer's credibility-the only purpose to be served by revelation would be to render the location useless for future surveillance.

 “To meet the requirement of reasonable possibility of exoneration ․ require[s] some showing that there was some point within the area surveilled that the officer could not have observed the defendant because of some obstruction.   In Anderson v. U.S. (D.C.App.1992) 607 A.2d 490, 497, the court even went further:  ‘We therefore hold that the defendant is obliged to show not only that there are locations in the area from which the view is impaired or obstructed, but also that there is some reason to believe that the officer was making his observations from such a location.   Without some reason so to believe, the existence of obstructed locations is logically irrelevant.’ ”  (People v. Garza, supra, 32 Cal.App.4th at p. 154, 38 Cal.Rptr.2d 11.)

Ordinarily, the in camera hearing should be a relatively simple matter.   The trial court interrogates the officer, and considers any other appropriate evidence offered, to determine whether his view was obstructed or otherwise impaired because of the location from which he made his observations.   If the court determines there was no obstruction or impairment, it finds the location immaterial and the trial goes on without defendant's acquisition of the information.³  If the court determines otherwise, it declares the location material.   At this point, the officer presumably can change his mind and decide to reveal the location.   If not, he cannot testify to observations from the material location.   Any previously admitted testimony on the subject must be stricken.

 Our review is ordinarily quite simple.   We unseal the reporter's transcript of the in camera hearing and see if the trial court's finding is supported by substantial evidence.   Peculiarly, we have here both a transcript of that hearing, prepared by reporter Grier, and a certification from a court reporter (Elkins) stating that she has inspected Grier's notes and cannot prepare a transcript of the in camera hearing because those notes are missing.⁴  The Superior Court file contains those raw notes.

 In any event, we have reviewed the transcript, which reveals the trial court determined Officer Duffy's location and found it immaterial.   We find the evidence sufficient to justify the trial court's conclusion.

From his trial testimony, Officer Duffy was 40 to 45 yards away, above ground level, using binoculars.   At the in camera hearing the trial court questioned him about the location, receiving not only the exact location, but information about the site and a description of what kind of view the officer had.   We will specify nothing more, but merely reiterate that we have examined the evidence and find it sufficient to justify the trial court's order denying defendant's claim for a finding adverse to the public entity.

III-V***

DISPOSITION

On appeal, the judgment is vacated.   The matter is remanded to the trial court for a new in camera hearing as to disclosure of Officer Duffy's observation location, with the witness under oath.   If the trial court determines the location is immaterial, it is to reimpose judgment.   In that event, the abstract of judgment is to be corrected to reflect imposition of a restitution fine and a lab fee.   If the trial court determines the location is material, it is to strike Officer Duffy's testimony and enter a judgment of acquittal based on insufficiency of the evidence.   On habeas corpus, an order to show cause is issued returnable before the trial court, which is to conduct an evidentiary hearing, unless the result of the in camera hearing as to location renders the habeas petition moot.

FOOTNOTES

1.   Defendant points out that some of the cases involve corroboration and others do not.   In some of the cases, the defendant was arrested in possession of contraband.   In some the customer was arrested with the purchased goods.   In other cases, as here, neither situation pertains and the case against the defendant depends on the surveilling officer's observations.We fail to see how this affects materiality of the surveillance location.   With or without corroboration, the surveilling officer provides the details of the drug sale, so his credibility is on the line.   The question of materiality still should boil down to the trial court's determination of whether the location was obstructed or not.

2.   We do not deal with the question of whether a long distance, by itself, can require a finding of materiality.   We confine ourselves to the question of obstruction, which is the only issue presented here.   Officer Duffy was 40-45 yards away with binoculars, so the distance could not have been a factor in materiality.   Similarly, the officer in Hines was 50 yards away, using binoculars.   In Montgomery, the officer was 25-35 yards away, also using binoculars.   In none of these situations was a finding of materiality justified based solely on distance.   We leave to another case the question of whether any particular distance, with the observer's vision aided or unaided, impaired or unimpaired, calls for a finding of materiality.

3.   We appreciate that the mere determination of immateriality may have the effect of revealing the location.   For example, there may be only one place in the neighborhood that offers an unobstructed view.   Thus, when the trial court consequently finds the location immaterial, the surveillance location is effectively revealed.   We cannot construct perfect models.   We can only attempt to resolve issues and situations as reasonably as possible under the circumstances.

4.   Interestingly enough, the package of exhibits sent to us is missing People's 1, a diagram drawn by Officer Duffy.   And the Attorney General, brought to our attention at oral argument that we possessed the original of the Grier transcript.   A subsequent search proved him correct.   In the meantime, he provided us with copies.

FOOTNOTE.   See footnote *, ante.

ORTEGA, Associate Justice.

SPENCER, P.J., and DUNN, J.***, concur.