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The PEOPLE, Petitioner, v. LOS ANGELES COUNTY SUPERIOR COURT, Respondent, Weimar Perea PIEDRAHITA et al., Real Parties in Interest.
On April 20, 1995, the People of the State of California filed a petition for writ of mandate naming as respondent, the Los Angeles County Superior Court, and as real parties in interest, defendants, Weimar Perea Piedrahita and Victor Adrian Paredes, who are being tried for the murder and robbery of Tony Proxmire, in violation of Penal Code 1 sections 187 and 211, which occurred on August 23, 1992. The petition requested: we issue a writ of mandate directing the trial court to vacate its order directing the People to disclose the name and address of an 11 or 12–year–old boy, who witnessed the crime, to the defense; we issue a writ of mandate to the respondent court to enter a different order preventing the disclosure of the child's name; we issue an order to show cause directed at the respondent court; and the trial be stayed. Upon review of the mandate petition filed April 20, 1995, we issued an alternative writ of mandate. We also issued a stay order staying the respondent court's order to the People to disclose the identity of the child. We directed the filing of a return and set the cause for oral argument on April 24, 1995.2 Because the People have made a showing of sufficient danger and possible harm to the child if his identity is disclosed to defendants, the petition is granted in a fashion which will be discussed given the narrowly drawn circumstances present in this case.
The jury trial began on April 11, 1995. Transcripts from the preliminary hearing reveal that on August 23, 1992, Loretta Campbell and her cousin, Laiaai Hamo were walking near Tony's Burgers and Freeze in Long Beach. Ms. Campbell saw one of the accused, Mr. Piedrahita, who she knew, at the aforementioned hamburger stand. As she walked past the hamburger stand, she heard a shot, turned and saw Mr. Piedrahita with a gun in one hand and money in another. He placed one of his fingers up towards his lips as if to instruct her to be quiet or not say anything. She observed him running down the street where he went to the back of the hamburger stand and entered the front seat of a green Camaro which was driven by the other accused, Mr. Paredes. She also observed two other males attempting to open the rear door of the hamburger stand. The two males fled after the shooting and entered the rear of the Camaro. One of the two men who had been seeking to enter the rear of the hamburger stand has been apprehended and but the other remains at large. On the same day as the killing, Mr. Piedrahita went to Ms. Campbell's home and offered to give her $20 if she would not say anything. He also asked her as well as her husband to hide a gun in the apartment. When they refused, he went downstairs into the laundry room and hid the gun. Ms. Campbell and Ms. Hamo did not come forward until May 1993. The reason for the delay was because Ms. Campbell was threatened by Mr. Piedrahita. Ms. Hamo was present when the threat was made and she too was “afraid.” Ms. Hamo was described as follows by a detective, “She is a very reluctant witness, appears to be frightened for herself and her family.”
On April 12, 1995, Roxanne Carvajal, the deputy district attorney prosecuting the case, learned of the possible existence of a child who had witnessed the murder. On April 13, 1995, the People sought a protective order in camera, without the defense attorneys being present, that the child's existence not be revealed until the youngster could be located, interviewed, and offered protection. The People informed the respondent court that the child could possibly be in danger. The respondent court initially granted the request and gave the People until April 17, 1995, to locate the child. However, at 4:15 p.m., on April 13, 1995, the respondent court orally vacated its protective order and ordered the People to immediately disclose the information concerning the child to the defense. The respondent court was then reminded by the deputy district attorney that Ms. Campbell, the principal prosecution witness in the murder and robbery trial, had been threatened. Further, a person named one Alexander Solomon had been convicted of witness intimidation in Case No. NA015493, for threatening Ms. Campbell if she testified against Mr. Piedrahita. The respondent court then ordered the prosecutor to provide an update on efforts to locate the child by April 14, 1995. On April 14, 1995, the respondent court gave the prosecution until Monday, April 17, 1995, to locate the child.
On April 17, 1995, the prosecutor informed the trial court that the child, an 11 or 12–year–old boy, had been located and interviewed. She advised the court that the child's testimony would corroborate the main witness' testimony and would not exculpate defendants. At the time of the shooting, the child was behind the hamburger stand and did not actually see the fatal shot fired. However, the child did see the robbers as they fled the scene of the incident. The respondent court was reminded that Ms. Campbell had been threatened on two occasions after each defendant had been arrested. The prosecutor noted that Mr. Solomon had been convicted of one of the threats. However, the deputy district attorney noted that the person responsible for the other threats had not yet been apprehended. There was also an outstanding suspect in this present murder case. Ms. Carvajal further advised the trial court that a relative of one of defendants had contacted the victim's family. The victim's family considered the nature of the conversation of an intimidating character.
With respect to the child, the respondent court was advised that he had never been detained or arrested by the police nor had the youngster ever been suspected of criminal wrongdoing by the authorities. There was nothing to indicate his credibility was questionable. The witness did not live near the hamburger stand where the killing occurred but was visiting his step-father and mother at the time. The prosecution argued the child's identity needed to be kept confidential because his last name is “distinct enough” that it is easily recognized as belonging to a well-known family in Long Beach. Once his name was revealed, it would be easy to locate the child and his family members. The child's immediate family would have a difficult time relocating because they own their home. Further, the child has other extended family members who did not live with him. Ms. Carvajal offered to make the witness available for interview by defendants' attorneys. The respondent court agreed that disclosure would not be required before the completion of an in camera hearing with the defense attorneys on April 18, 1995.
After the hearing, the respondent court found that there was a sufficient showing of danger to keep the address and telephone number of the child confidential. Accordingly, the trial court ordered that the address need not be disclosed but ordered the prosecution to reveal the child's name. The respondent court also indicated that it did not have the power to keep the name of the child from defendants themselves. Although the prosecution argued disclosing the name would be equivalent to giving the address, the respondent court concluded that the child's rights to have his name remain confidential was outweighed by the following considerations: “It's a case of balancing the rights is what I'm trying to do. And unfortunately society has gotten to a point where it's getting more and more difficult to do that. Witnesses do have rights, but so do defense—defendants and a secret witness who just appears on the stand and no information is known about him at all is not part, as I see it, of the way we can run this case. Somebody whose home was broken into and had no part in the case than that it may be possible to keep his name confidential. But at this case particularly as he had this information and kept it so far, I think defense has a right to inquire into something about him to see if they can find out more about that concealment of information.” When the prosecutor asked to delay disclosure of the child's name until 24 hours before he testified, the respondent court denied the request. One of the defense attorneys objected to delaying disclosure until 24 hours before the child testified stating, “Obviously I want as much time as possible to be able to figure out what I can find out about him.” On April 19, 1995, the defense attorneys interviewed the child.
One final observation is in order in terms of the factual and procedural background that is pertinent to this case. We will not reveal why the child's name would be recognizable. This is a matter fully discussed in the in camera hearing of April 17, 1995. However, given the location of the prosecution, the child's family name is immediately recognizable. Disclosure of the name would reveal where family members are employed.
A. Application of the discovery chapter to this case.
The People contend and we agree that when the voters adopted sections 1054 et seq. pursuant to Proposition 115, effective June 6, 1990, California has established a right under very limited circumstances, to withhold a witness' name and address such as are present in this case where a trial court finds that disclosing the information could be dangerous to the witness and his or her family. The following provisions of the discovery chapter are consistent with this limited principle. Section 1054 provides in part: “This chapter shall be interpreted to give effect to all the following purposes: [¶] ․ (d) To protect victims and witnesses from danger, harassment, and undue delay of the proceedings.” While section 1054.1 3 provides that the prosecuting attorney must disclose the names and addresses of all witnesses she or he intends to call at trial, sections 1054.2 and 1054.7 establish safeguards for disclosing such information under specified circumstances. Section 1054.2 prohibits an attorney from disclosing or permitting “to be disclosed to a defendant the address or telephone number of a victim or witness whose name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1 unless specifically permitted to do so by the court after a hearing and a showing of good cause.” Section 1054.7 provides: “The disclosures required under this chapter shall be made at least 30 days prior to trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why disclosure should be denied, restricted, or deferred. ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement. [¶] ․ Upon the request of any party, the court may permit a showing of good cause for the denial or regulation of disclosures, or any portion of that showing, to be made in camera. A verbatim record shall be made of any such proceeding. If the court enters an order granting relief following a showing in camera, the entire record of the showing shall be sealed and preserved in the records of the court, and shall be made available to an appeal court in the event of an appeal or writ. In its discretion, the trial court may after trial and conviction, unseal any previously sealed matter.”
In other words, section 1054.1, subdivision (a), which is part of the discovery chapter, requires the prosecutor to disclose the “names and addresses of persons the prosecutor intends to call as witnesses ․” Section 1054.2 prohibits any attorney from revealing the “addresses or telephone number of a ․ witness whose name is disclosed to the attorney pursuant to subdivision (a) of section 1054.1 ․” to a defendant without court permission. Another restriction on the duty to disclose is in section 1054.7 which limits the right to disclosure as to both sides in criminal litigation. The pertinent language in section 1054.7 states: “If the material and information becomes known to, or as a result comes into the possession of, a party within 30 days of trial, disclosure should be made immediately, unless good cause is shown why disclosure should be denied [or] restricted․” (Italics added.) Also relevant is the language in section 1054.7 which defines “[g]ood cause” as “threats or possible danger to the safety of a ․ witness [or] possible loss or destruction of evidence․”
Hence, as a matter of law, the uncontroverted state of the record constitutes “[g]ood cause” as defined by section 1054.7 which warrants complete non-disclosure of the child's name or informing only defense counsel but prohibiting the attorneys from revealing the youngster's name to defendants, either outside of the courtroom or in court including by means of cross-examination. The following uncontradicted facts require either complete non-disclosure of the child's name or a limited disclosure to defense counsel only. First, this is a homicide prosecution. Second, there is currently on outstanding suspect who is not in custody. Third, the child is not the only witness against defendants. Fourth, the child did not actually see the fatal shooting; his testimony is corroborative in nature to that of Ms. Campbell and Ms. Hamo. Fifth, the child has no prior criminal record nor is he a gang member. Sixth, at the time of the killing, Mr. Piedrahita put a finger to his lips as if to relate to Ms. Campbell to remain silent in the future. Seventh, Mr. Solomon has already been convicted of threatening Ms. Campbell if she testified against Mr. Piedrahita. Eighth, one of the two eyewitnesses to the killing, Ms. Hamo, was present when an effort was made to intimidate Ms. Campbell. Ms. Hamo was described under oath by a detective as being afraid because of the threat. Ninth, the victim's family has been the subject of intimidation. Tenth, revelation of the child's name would endanger both his immediate and extended family in the Long Beach area. The respondent court is to exercise its discretion and weigh the foregoing 10 factors and any new considerations which may arise. Based on the current record, the respondent court may either disclose the name to defense counsel only or refuse to reveal it at all. If during the presentation of future evidence additional relevant factors concerning disclosure are developed, the respondent court may reweigh the exercise of discretion keeping in mind its powers pursuant to section 1054.7 to limit disclosure. Nothing in this opinion is intended to limit the future exercise of discretion if new pertinent considerations become apparent. This is particularly true given that one of the purposes of the discovery chapter is to protect witnesses from danger and harassment. (§ 1054, subd. (d).) Accordingly, the respondent court was statutorily required not to permit disclosure of the child's name to defendants given the compelling factual scenario in the present case. (Accord, Montez v. Superior Court (1992) 5 Cal.App.4th 763, 767–772, 7 Cal.Rptr.2d 76.)
B. Constitutional considerations
Defendants argue that even if non-disclosure is statutorily mandated, such would violate their due process rights to confront an adverse witness. The United States Supreme Court has held: “The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. ‘[The United States Supreme Court's] cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ [Citation.] Professor Wigmore stated: [¶] ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.’ 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940). (Emphasis in original.)' ” (Davis v. Alaska (1974) 415 U.S. 308, 315–316, 94 S.Ct. 1105, 1109–1110, 39 L.Ed.2d 347.) The principal authority relied upon by defendants is Smith v. Illinois (1968) 390 U.S. 129, 131, 88 S.Ct. 748, 749–750, 19 L.Ed.2d 956, where the state trial court sustained the prosecutor's objections to disclosure of principal witness's true name and address. The witness purchased a bag of heroin from the defendant with marked money supplied by Chicago police officers. In determining the defendant's rights under the Sixth and Fourteenth Amendments of the United States Constitution had been violated, the Supreme Court held: “[W]hen the credibility of a witness is in issue, the very starting point in ‘exposing the falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” (Ibid., fn. omitted.) The purpose of disclosing this information is that counsel must be given an “ ‘opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test without which the jury cannot fairly appraise them.’ ” (Id. at p. 132, 88 S.Ct. at 750 quoting Alford v. United States (1931) 282 U.S. 687, 692, 51 S.Ct. 218, 219–220, 75 L.Ed. 624.) Thus, the crucial factor in reversing the conviction in Smith was the denial of the right to test the witness' credibility which was at issue in the case because the only parties to the actual events surrounding the crime were the witness and the defendant and their stories varied dramatically. (Smith v. Illinois, supra, 390 U.S. at pp. 131–132, 88 S.Ct. at pp. 749–750.)
However, as numerous United States Circuit Courts of Appeals have noted, Smith did not establish a rigid rule of disclosure or determine the right to confront a witness concerning his or her address is absolute. Except the Third and District of Columbia Circuits which have not addressed the question,4 all of the other federal Circuit Courts of Appeals have determined the rule articulated in Smith concerning a witness's name and address is not absolute. (Siegfriedt v. Fair (1st Cir.1992) 982 F.2d 14, 17 [Smith does not establish absolute rule of disclosure for true name and address of witness]; United States v. Dyman (2d Cir.1984) 739 F.2d 762, 773 [defendant not prejudiced by failure to learn witness' address]; United States v. Cavallaro (2d Cir.1977) 553 F.2d 300, 304 [government's legitimate concern for witness' safety justified denying defendant correct address of witness]; United States v. Persico (2d Cir.1970) 425 F.2d 1375, 1383–1384 [fear for witnesses' personal safety justified trial court's refusal to disclose witnesses' correct address and place of employment]; United States v. Marti (2d Cir.1970) 421 F.2d 1263, 1265–1266; [defendants not deprived of right of confrontation and due process by court's refusal to order witness to disclose residence address]; United States v. Baker (2d Cir.1969) 419 F.2d 83, 87 [witness who had received threats to his life properly refused to disclose name and address of current employer]; United States v. Bennett (2d Cir.1969) 409 F.2d 888, 901 [no reversible error under Smith where witness not required to disclose place of employment]; United States v. Jordan (4th Cir.1972) 466 F.2d 99, 101–102 [failure to allow discovery of names of two eyewitnesses and continuance to investigate eyewitnesses when identity was known was not an improper diminution of right to cross-examine]; United States v. Fischel (5th Cir.1982) 686 F.2d 1082, 1092–1094 [withholding address of witness may be justified under certain circumstances]; United States v. Mesa (5th Cir.1981) 660 F.2d 1070, 1075–1076 [right to confront not violated by court's failure to conduct in camera hearing before refusing to order disclosure of witness' address]; United States v. Hughes (5th Cir.1981) 658 F.2d 317, 321–322 [ruling prohibiting disclosure of witness's address did not amount to plain error]; United States v. Contreras (5th Cir.1979) 602 F.2d 1237, 1239–1240 [reasonable fear of Drug Enforcement Administration agent's safety justified refusal to require disclosure of home address]; United States v. Avalos (5th Cir.1976) 541 F.2d 1100, 1117 [Smith did not establish “hard and fast rule” regarding questions about current addresses]; United States v. Crockett (5th Cir.1975) 506 F.2d 759, 762–763 [government's strong reason to believe witness' life in danger justified refusal to disclose address]; United States v. Alston (5th Cir.1972) 460 F.2d 48, 50–54 [federal narcotics agent not required to disclose home address where reasonable fear of safety to witness and his family existed]; United States v. Fife (6th Cir.1976) 573 F.2d 369, 377 [Smith did not establish per se rule that a witness must always disclose residence address]; United States v. Olson (7th Cir.1992) 978 F.2d 1472, 1476–1477 [trial court's failure to order disclosure of informant witness' address did not deny defendant his rights of due process and confrontation]; United States v. Twomey (7th Cir.1972) 460 F.2d 400, 401–402 [informant who was not chief witness to drug transaction not required to reveal true identity, residence and place of business]; United States v. Palermo (7th Cir.1969) 410 F.2d 468, 472 [right of defendant to have witness' true name, address and place of employment is not absolute where personal safety of witness is at issue]; United States v. Springer (8th Cir.1987) 831 F.2d 781, 783 [right to ask address-related questions is not absolute]; United States v. Spector (8th Cir.1986) 793 F.2d 932, 937–938 [informant not required to disclose correct address in open court]; Clark v. Ricketts (9th Cir.1991) 958 F.2d 851, 854–855 [right of confrontation not violated where defendant not permitted to elicit name and address of prosecution's “John Doe” witness on cross-examination]; U.S. v. Chavez–Vernaza (9th Cir.1987) 844 F.2d 1368, 1376–1377 [no right to have home address of immunized government witness stated in court]; United States v. Washington (9th Cir.1986) 797 F.2d 1461, 1474–1475 [concerns about personal safety of former prostitute justified refusal to order disclosure of present address]; United States v. Hernandez (9th Cir.1979) 608 F.2d 741, 744–745 [no error in denying address of principal prosecution witness]; United States v. Rangel (9th Cir.1976) 534 F.2d 147, 148 [trial court properly refused to require government informant to divulge true name, residence and phone number on witness stand]; United States v. Ellis (9th Cir.1972) 468 F.2d 638, 639 [no violation of Smith by refusal to permit defendant to elicit correct name, residence and occupation of agent-purchaser of drugs]; United States v. Cosby (9th Cir.1974) 500 F.2d 405, 407 [Smith is not rigid rule of disclosure]; United States v. Smaldone (10th Cir.1973) 484 F.2d 311, 318–319 [refusal to allow defendant to elicit address of government informant was not error]; United States v. Varella (11th Cir.1982) 692 F.2d 1352, 1355–1356 [no fixed ruled requiring disclosure of identity of informant].)
More particularly for purposes of this case, we conclude persuasive Ninth Circuit authority demonstrates why the application of the discovery chapter to the identity of the child does not violate defendants' rights to confront the youngster. (Clark v. Ricketts, supra, 958 F.2d at p. 855; United States v. Rangel, supra, 534 F.2d at p. 148; United States v. Ellis, supra, 468 F.2d at p. 639.) One of those circumstances was initially articulated in the concurring opinion of Justice White in Smith which was joined in by Justice Marshall. Justice White suggested that under proper circumstances such as the personal safety of the witness, which was not an issue in Smith, he or she might be excused from answering questions concerning his or her address without violating the defendant's confrontation right. (Smith v. Illinois, supra, 390 U.S. at pp. 133–134, 88 S.Ct. at pp. 750–751 (conc. opn. of White, J.).) Since Smith was decided the United States Supreme Court has further clarified the right to confront as stated in Delaware v. Fensterer (1985) 474 U.S. 15, 20, 106 S.Ct. 292, 294–295, 88 L.Ed.2d 15 as follows: “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” The cross-examination of the witness is always subject to a trial judge's broad discretion to impose reasonable limits to preclude interrogation “based upon concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674; Davis v. Alaska, supra, 415 U.S. at p. 316, 94 S.Ct. at p. 1110.)
As the Ninth Circuit Court of Appeals stated in refusing to reverse a conviction where an informant's address was not disclosed: “Smith ․ does not establish a rigid rule of disclosure, but rather discusses disclosure against a background of factors weighing conversely, such as personal safety of the witness.” (United States v. Cosby, supra, 500 F.2d at p. 407.) In United States v. Rangel, supra, 534 F.2d at p. 148, the Ninth Circuit concluded that a defendant's confrontation rights were not violated because an informant who testified for the Government was allowed not to divulge his true name, address, and telephone number on the witness stand. The Ninth Circuit panel conducted a review of the district court's in camera hearing and concluded the government made an adequate representation that the informant's life had been threatened. (Ibid.) The reasoning of Rangel was followed by the First Circuit of Appeals in Siegfriedt v. Fair, supra, 982 F.2d at p. 17, where the court summarized the standard of disclosing a witness' true name as follows: “Petitioner interprets Smith as spawning a bright-line rule—a rule which mandates that, whatever nuances may be supplied by the surrounding circumstances, testimony given under an apocryphal name can never be admitted over objection in a criminal trial. But, this interpretation effectively ignores the Court's [in Bourjaily v. United States (1987) 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144] instruction that society's interest in accurate factfinding is to be regarded as an important factor in Confrontation Clause inquiries․ Accordingly, we decline to read Smith in the wooden fashion petitioner suggests. [¶] Even before Bourjaily we held that Smith's guiding principle insofar as it concerns a witness's current address, ‘is not, like a rule of plane geometry, absolute.’ [Citation.] In our estimation, the Smith principle, insofar as it concerns a witness's true name, is likewise not absolute. [Citation.] [¶] The long and short of it is that the Smith standard has a core purpose: to prevent a criminal conviction based on the testimony of a witness who remains ‘a mere shadow’ in the defendant's mind. [Citation.] When that core purpose is not implicated, we see no reason for reflexively excluding otherwise admissible testimony. Certainly, Smith itself gives no indication that its guiding principle extends beyond the confines of its articulated rationale into such far-flung galaxies. [Citation.] [¶] Against this backdrop, it is readily apparent that all pseudonyms are not equal in the eyes of the Confrontation Clause. Rather, courts must gauge the pull of Smith in any given case by the degree to which its rationale applies. Sometimes, as in Smith itself, a witness's use of a fictitious name will transform him into a wraith and thereby thwart the efficacy of cross-examination. Other times, the use of a fictitious name will be no more than a mere curiosity, possessing no constitutional significance.” (Fn. omitted.) (Accord, United States v. Ricketts, supra, 958 F.2d at pp. 854–855; United States v. Ellis, supra, 468 F.2d at p. 639; United States v. Palermo, supra, 410 F.2d at p. 472; United States v. Twoomey, supra, 400 F.2d at p. 401.)
The Sixth Amendment confrontation right is not absolute. (Maryland v. Craig (1990) 497 U.S. 836, 849, 110 S.Ct. 3157, 3165–3166, 111 L.Ed.2d 666; Chambers v. Mississippi (1973) 410 U.S. 284, 295, 93 S.Ct. 1038, 1045–1046, 35 L.Ed.2d 297.) The confrontation right may be accommodated “to other legitimate interests in the criminal trial process.” (Ibid.) No confrontation right violation will occur in this case because of the legitimate state interests in insuring the integrity of the truth finding process if the child does not reveal his name because of the following considerations. This is a homicide prosecution where a perpetrator remains at large. The witness is a child who has no prior record or gang affiliation. The child's testimony is corroborative in nature, he did not actually observe the fatal shooting. The child is not the sole witness for the prosecution. At the time of the killing, another witness saw one of defendants put his finger to his lips as if to relate that she should remain silent. Already, one person has been convicted of intimidating a prosecution witness. Both of the key prosecution witnesses have been present when efforts were made by means of intimidation to suppress testimony favorable to the prosecution. The victim's family has been subject to intimidation efforts. The revelation of the child's name would endanger the safety of his immediate and extended family. Finally, the child has been interviewed, with the prosecutor's cooperation, by defense counsel. Taken together, these uncontroverted facts warrant not revealing the child's name at the very least to defendants and potentially to their counsel. The importance of the integrity of the truth finding process and the safety of the child and his family outweigh defendants' rights to know his name. It bears emphasis that we have considered all of the foregoing factors and conclude all of them taken together, not singularly or in groups; but collectively all together, permit nondisclosure of the child's name without violating the confrontation clause.
We note that the respondent court relied on People v. Brandow (1970) 12 Cal.App.3d 749, 754–755, 90 Cal.Rptr. 891, in indicating it could not prevent disclosure of the witness' name. In Brandow, the Court of Appeal reversed a conviction for pandering where the trial court sustained the prosecution's objection to a question posed to a former prostitute about her true name. The witness, in cooperation with the police, had obtained a tape recording of a conversation with the defendant in which she would pay him for customers she sent him. Brandow concluded the defendant's right to a fair trial had been violated in view of the vagueness of the tape recordings and the fact that the determination of his guilt or innocence depended upon resolution of a credibility issue between his testimony and that of the prostitute. Here, as noted above, there is nothing similarly questionable about the credibility of the child who was a mere bystander in observing defendants' conduct. Furthermore, Brandow, was decided before Proposition 115 was adopted which requires the trial court to consider the danger to witnesses before disclosing information which might cause them harm. (§§ 1054; 1054.1, 1054.2, 1054.7.) Brandow was also decided prior to the Ninth Circuit's decisions in Rangel, Cosby, and Ellis which offered guidance on the issue of whether the failure to disclose the witness' true name and address violated the right to confront adverse witness. For these reasons, Brandow is not dispositive of the issue in this case.
Upon the filing of this opinion, the respondent court is to exercise its discretion concerning revelation of the child's name to defense counsel only without disclosure to their clients in or out of the courtroom. If disclosure is made to defense counsel but not the clients, this would necessarily preclude the child's name being brought up in testimony. Further, if limited disclosure is made to defense counsel only, the respondent court may “restrict [ ]” pursuant to section 1054.7 the use of the information by the attorneys. Additionally, the respondent court, may in the exercise of its discretion, completely refuse to permit disclosure of the child's identity. Finally, the respondent court remains free to conduct further in camera or other hearings in aid to its exercise of discretion.
We wish to stress the significance of a trial court's role in section 1054.7 “good cause” determinations. In balancing a defendant's right to fully confront and cross-examine an adverse witness against the right of a witness to testify freely without fear of retaliation, a trial court should carefully consider all of the evidence presented. Only in those circumstances where there has been an adequate representation of threats or possible danger to the safety of a witness or family members, supported by sufficient evidence, should a trial court preclude disclosure of witness information. Because such total nondisclosure would deprive the defense of a full opportunity to test a witness's credibility, in such situations, the prosecutor is under an affirmative obligation to conduct some limited investigation about the witness, including, at the very least, the witness's reputation for truth and veracity. The prosecution, under normal circumstances, is to reveal the results of such an investigation.
Let a peremptory writ of mandate issue directing the respondent court to set aside its order directing that the prosecutor disclose the name of the child and enter a new order. That new order is to either refuse to disclose the child's name to the defense or to reveal it to the defense lawyers with orders that such not be revealed to defendants either in or out of a courtroom. Pending issuance of the remittitur, the stay order previously entered in this case is modified as follows. The respondent court may order disclosure to defense counsel of the name of the child with further orders that it not be revealed to defendants in or out of the courtroom. Further, the respondent court may refuse to order disclosure of the child's name to the defense. In all other respects, that stay order remains in full force and effect until such time as the remittitur issues. At such time as the remittitur issues, this court's judgment shall constitute the law of the case. In exercising its discretion, in connection with both the stay order and the writ of mandate, the respondent court remains free to consider pertinent factors brought to its attention by the parties.
FN1. All further statutory references are to the Penal Code unless otherwise indicated.. FN1. All further statutory references are to the Penal Code unless otherwise indicated.
2. Because of the rapidly developing nature of the issues questions raised by the petition, we took special efforts to notify the parties of our orders. We transmitted by facsimile transmission copies of the alternative writ of mandate and stay order at 4 p.m. on April 20, 1995. At 9:15 a.m., when one of Mr. Piedrahita's deputy public defenders indicated he needed a copy of the alternative writ and stay order, we transmitted a copy of the alternative writ of mandate to him. The deputy public defender representing Mr. Piedrahita in trial had already been served with the copy of the mandate petition. When the other deputy public defender requested the copy of the petition and record, we transmitted a copy to him at 10:15 a.m. on April 21, 1995.
3. Section 1054.1, subdivision (a), provides: “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] (a) The names and addresses of persons the prosecutor intends to all as witnesses at trial.”
4. State decisional authority is in accord. (State v. Baumann (1980) 125 Ariz. 404, 410–411, 610 P.2d 38, 44–45; People v. Benjamin (1975) 52 Cal.App.3d 63, 73–75, 124 Cal.Rptr. 799; People ex rel. Dunbar v. District Ct. Of Seventh J.D. (1972) 177 Colo. 429, 494 P.2d 841, 843; State v. Hassberger (Fla.1977) 350 So.2d 1, 5; Timberlake v. State (1980) 246 Ga. 488, 271 S.E.2d 792, 800–801; People v. Manzella (1973) 56 Ill.2d 187, 306 N.E.2d 16, 19–20, disapproved on another point in People v. Huckstead (1982) 91 Ill.2d 536, 65 Ill.Dec. 232, 237, 440 N.E.2d 1248, 1253; People v. Jones (1987) 155 Ill.App.3d 641, 108 Ill.Dec. 196, 201–202, 508 N.E.2d 357, 362–363; Crull v. State (Ind.1989) 540 N.E.2d 1195, 1198–1200; Johnson v. State (Ind.1988) 518 N.E.2d 1073, 1065–1076; State v. Sheffey (Iowa 1977) 250 N.W.2d 51, 55; State v. Hutchinson (1977) 222 Kan. 365, 564 P.2d 545, 548; State v. Thornton (La.1975) 309 So.2d 266, 266–268; Commonwealth v. McGrath (1973) 364 Mass. 243, 303 N.E.2d 108, 113–114; People v. Pleasant (1976) 69 Mich.App. 322, 244 N.W.2d 464, 466; State v. Caldwell (1975) 303 Minn. 297, 227 N.W.2d 382, 386; State v. Glass (Mo.App.1977) 554 S.W.2d 426, 428; Greene v. State (1980) 96 Nev. 555, 612 P.2d 686, 687–688; State v. Vandebogart (1994) 139 N.H. 145, 652 A.2d 671, 681; People v. Stanard (1977) 42 N.Y.2d 74, 396 N.Y.S.2d 825, 830–832, 365 N.E.2d 857, 861–864; State v. McNeil (1990) 99 N.C.App. 235, 393 S.E.2d 123, 128–129; State v. Capone (1975) 115 R.I. 426, 347 A.2d 615, 621–622; State v. Grooms (S.D.1993) 504 N.W.2d 111, 112–115; Winkle v. State (Tex.Crim.App.1972) 488 S.W.2d 798, 799–800; State v. Berard (1974) 132 Vt. 138, 315 A.2d 501, 507–509; State v. Mannhalt (1992) 68 Wash.App. 757, 845 P.2d 1023, 1027–1028).
TURNER, Presiding Justice.
ARMSTRONG and GODOY PEREZ, JJ., concur.
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