IN RE: Russell WEST (1991)

The trial court revoked Russell West's bail pending appeal following an in camera, ex parte hearing, and West filed this petition for a writ of habeas corpus, contending that the revocation of his bail was illegal.   We requested a response from the district attorney, who declined to provide a substantive response to the petition, but merely suggested that we read the transcript of the in camera hearing.   The Attorney General filed a letter brief asserting that the in camera proceedings were proper under Evidence Code sections 1040, subdivision (b)(2) ¹ and 1041, subdivision (a)(2) ² .  Our research reveals that the propriety of revoking bail pending appeal based on confidential information received ex parte and in camera is not addressed by statutes and is an issue of first impression in case law.

FACTUAL AND PROCEDURAL BACKGROUND

Following the denial of his motion to suppress evidence, West entered a plea of guilty to possession of methamphetamine for sale (Health & Saf.Code, § 11351), a felony.   West's appeal from his conviction is now pending before this court.   After holding a hearing under Penal Code section 1272.1 ³ , the trial court granted West's release pending appeal on a $50,000 bond.

The district attorney served notice of a motion for an order revoking bail.   The notice was supported by the declaration of a deputy district attorney, who stated that he had learned of new information evidence which would establish that West should not be released pending appeal.

At the hearing on October 12, 1990, the court stated it had taken evidence in camera the day before at a hearing which had been reported and transcribed.   The court ordered the transcript sealed.   Relying only on the in camera information, the trial court found that good cause had been shown to revoke West's bail.⁴

DISCUSSION 5

 As a threshold issue, we determine that on a showing of good cause, a court may rely on information received at an in camera, ex parte hearing to revoke bail pending appeal.   However, procedural safeguards must accompany such proceedings to protect the defendant's right to a fair hearing.

I

Requirement of Fair Hearing

 The constitution establishes a right to bail only before conviction.  (Cal. Const., art. I, § 12;  In re Podesto (1976) 15 Cal.3d 921, 929–931, 127 Cal.Rptr. 97, 544 P.2d 1297.)   Bail pending appeal for felony convictions is available within the court's discretion, and is available as a matter of right for fine and misdemeanor convictions.  (Pen.Code, §§ 1272, 1272.1;  People v. Turner (1974) 39 Cal.App.3d 682, 684–685, 114 Cal.Rptr. 372.)

As a general rule, proceedings which occur after guilt has been determined do not require the full panoply of procedural safeguards and restrictions applicable to a trial.  (Morrissey v. Brewer (1972) 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484.)   Nonetheless, the court may not employ a procedure which is “fundamentally unfair.”  (People v. Peterson (1973) 9 Cal.3d 717, 726, 108 Cal.Rptr. 835, 511 P.2d 1187.)   West argues that the use of ex parte, in camera information at his bail revocation proceeding violated this standard.

A. Federal Due Process.   The Federal District Court for the Southern District of California recently held that federal due process was not violated by the use of confidential information at a pretrial bail hearing.  (U.S. v. Terrones (S.D.Cal.1989) 712 F.Supp. 786.)   The court held that the case presented “rare and unusual circumstances” which mandated consideration of the in camera evidence.   The court stated, “As to the issue of whether the defendant should be detained, this evidence is very material and relevant as well as reliable.   The source(s) cannot be disclosed, nor can the information obtained from the source(s) be disclosed except in the most conclusory of terms.   There appears to be no other source of the information but for the confidential witness(es).   Further, there is a demonstrated risk of serious bodily harm or death to the source(s) if the court orders disclosure;  even detention of the defendant will not obviate the need for nondisclosure.”   (Id., at p. 790.)   The Terrones court explained that federal due process required that “[T]he deprivation of liberty must be accompanied by procedural safeguards.   The court must consider the significance of the individual's interest, the risk of erroneous determination through the procedures used, and the probable value of additional safeguards.  [Citations.]”  (Terrones, supra, 712 F.Supp. at p. 793.)

In In re Jackson (1987) 43 Cal.3d 501, 505–510, 233 Cal.Rptr. 911, 731 P.2d 36, the California Supreme Court rejected a federal due process challenge to prison disciplinary hearing procedures.   The court accepted as a given that confidential information could be used at such hearings;  the issue before the court concerned procedural protections which must accompany the use of such information.

The Jackson court stated that it was uncontested that due process rights were implicated in prison disciplinary proceedings.   However, the court ruled that both federal and state due process standards were met by administrative regulation which “require a hearing officer ‘personally’ to make a finding on the informant's reliability and truthfulness ․ so long as there exists in the disciplinary record information (confidential or otherwise) on which a reviewing court can conclude the hearing officer actually made a reliability and truthfulness determination, and that the determination is supported by evidence.”  (Id., at p. 504, 233 Cal.Rptr. 911, 731 P.2d 36.)

B. State Due Process.   The Jackson court instructed that state due process analysis “ ‘must start ․ with an assessment of what procedural protections are constitutionally required in light of the governmental and private interests at stake.’  [Citation.]”  (Jackson, supra, 43 Cal.3d at p. 510, 233 Cal.Rptr. 911, 731 P.2d 36.)   To assess those procedures, the court should consider “ ‘(1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a reasonable governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’  [Citation.]”  (Id., at p. 511, 233 Cal.Rptr. 911, 731 P.2d 36.)

Applying this analysis, we first note it is self-evident that a defendant's interests are significantly affected by revocation of bail pending appeal.   Second, we acknowledge that some risk of error exists if a decision to revoke bail is based entirely on confidential information.   As the court observed in Jackson, such information may be based on rumor rather than on personal knowledge, and an informant may lie to satisfy a grudge or to curry favor with officials.  (Jackson, supra, 43 Cal.3d at p. 511, fn. 9, 233 Cal.Rptr. 911, 731 P.2d 36.)   Third, a defendant who has already demonstrated his eligibility for bail pending appeal under Penal Code section 1272.1 undeniably has an important dignitary interest in receiving notice of the basis for a decision to revoke bail and in receiving a fair hearing to challenge the showing made against him.   Fourth, the government has important interests in protecting the identity of confidential informants to encourage the flow of information in aid of law enforcement and in protecting the safety of the public and individuals.   Our task is to balance these competing interests.

1. Need for Confidentiality.   In various other contexts, courts have determined that a need for confidentiality may outweigh a defendant's entitlement to information.  (See, e.g., Morrissey, supra, 408 U.S. at pp. 487, 489, 92 S.Ct. at pp. 2603, 2604 [defendant's right to confront and cross-examine a witness at a parole revocation hearing is not absolute and may be curtailed if the disclosure of a witness's identity would subject him to possible harm or if there was “other good cause for not allowing confrontation”];  People v. Marghzar (1987) 192 Cal.App.3d 1129, 239 Cal.Rptr. 130 [defendant not entitled to discover confidential formula relating to vehicle information numbers];  People v. Alexander (1983) 140 Cal.App.3d 647, 189 Cal.Rptr. 906 [defendant not entitled to discover correctional officers' notes of interviews with inmates following prison riot];  In re Muszalski (1975) 52 Cal.App.3d 475, 481, 125 Cal.Rptr. 281 [defendant not entitled to examine confidential documents used in parole consideration hearings];  see also Terrones, supra, 712 F.Supp. 786;  United States v. Acevedo–Ramos (1st Cir.1985) 755 F.2d 203, 209 [court sanctioned use of in camera information at a detention hearing in a “very unusual case” if the government demonstrated strong reasons for keeping the material confidential].)

In Jackson, supra, 43 Cal.3d at p. 503, 233 Cal.Rptr. 911, 731 P.2d 36, the court noted that unless prisons maintained the confidentiality of informants' identities, the informants would be subject to “violent retaliation,” and a critical information source would dry up.

 The proponent of confidential information has the burden to demonstrate the need for confidentiality.  (Muszalski, supra, 52 Cal.App.3d at p. 483, 125 Cal.Rptr. 281.)

 2. Finding of Reliability.   State due process, as outlined in Jackson, requires the court to use reasonable procedures which reduce the risk of error in decision making.   The court in Jackson noted that prison regulations minimized the possibility of reaching an erroneous decision when confidential information was used at prison disciplinary hearings.   The regulations permitted a disciplinary finding to be based on uncorroborated confidential information only if “the circumstances surrounding the event and the known reliability of the source satisfy the finder of fact that the information is true.”  (Jackson, supra, 43 Cal.3d at p. 512, 233 Cal.Rptr. 911, 731 P.2d 36, fn. omitted.)   Likewise, in bail revocation proceedings, fundamental fairness directs that a court should not rely solely on uncorroborated confidential information unless the reliability of that information is adequately demonstrated.   An appropriate model is the showing required for the issuance of a search warrant when the underlying information has been provided by a confidential source.

Fundamental fairness also requires the trial court to make an express finding as to the reliability of the confidential informant, and the transcript of the in camera hearing must contain information to support such a finding.  (See Jackson, supra, 43 Cal.3d at p. 516, 233 Cal.Rptr. 911, 731 P.2d 36;  Podesto, supra, 15 Cal.3d at pp. 937–938, 127 Cal.Rptr. 97, 544 P.2d 1297 [denial of motion for bail pending appeal requires findings];  In re Noland (1978) 78 Cal.App.3d 161, 164, 144 Cal.Rptr. 111 [revocation of pretrial release on one's own recognizance requires findings].)

 3. Showing of Good Cause.   We next consider the nature of the showing which must be made to justify revocation of bail.   West already met his burden of showing entitlement to release.  (Pen.Code, § 1272.1.)   Under ordinary rules of evidence (See Evid.Code, §§ 115, 500), the prosecutor thus had the burden to show good cause of a change in circumstances.  (Cf. Pen.Code, § 1289 [court may increase pretrial bail on good cause shown].)

 4. Notice of Allegations.   A defendant whose bail is revoked is entitled to notice of the nature of the information used against him.   However, advance notice need not be given if exigent circumstances require prompt revocation of bail.⁶  If the prosecutor demonstrates such exigent circumstances to the satisfaction of the court, through affidavits or an offer of proof, the court may properly issue an ex parte order revoking bail.

Nonetheless, to satisfy concerns of fundamental fairness, the defendant must receive a written summary of the evidence against him, to the extent such can be provided without jeopardy to public safety or the safety of witnesses.  (Cf. United States v. Accetturo (3rd Cir.1986) 783 F.2d 382, 391 [in pretrial bail case, the court cautioned that defendants' federal statutory right to a bail detention hearing inherently encompassed rights to know what information the court is considering and to have the opportunity to challenge that information.   Court stated it had permitted in camera evidence to be considered only if there was “a most compelling need and no alternative means of meeting that need,” and when a summary of the evidence had been provided to the defendant.]  (See also Acevedo–Ramos, supra, 755 F.2d at p. 209 [defendant should be advised of gist of government's in camera evidence].)

 The summary of information which was presented to the court in camera should be prepared by the prosecutor and approved by the court.   The paramount concern in preparing such a summary should be to protect the lives and safety of confidential witnesses and informants.   The summary may include only the general nature of the allegations against the defendant if providing more information would tend to reveal the identities of confidential witnesses or informants or expose them to peril.   The summary should be given to the defendant at the earliest reasonable time.

 5. Opportunity for Hearing.   Finally, the defendant must be given an opportunity for a hearing within a reasonable time after his apprehension at which he may counter the allegations against him.   The standards of Penal Code section 1272.1 should govern the court's determination as to whether the defendant is eligible to be released again.   Here, West never received a summary in advance of the hearing, and thus had no opportunity to challenge the showing against him.

 C. Summary.   In summary, we conclude that an ex parte, in camera hearing does not violate standards of fundamental fairness if the district attorney makes a prima facie showing of exigent circumstances and a need for confidentiality.   This showing could include evidence of a threat to lives or safety of witnesses, informants, or the community if the information were presented in open court.   The trial court must make findings that the information is reliable and that the circumstances justify protecting confidentiality.   Such findings should be stated in the minute order, and the record of the hearing must contain a showing to support such findings.⁷

If a prima facie case is presented through affidavits or an offer of proof, the trial court may revoke bail ex parte, provided that within a reasonable time after defendant's arrest it holds a hearing at which the defendant has a fair chance to rebut the allegations against him.   Within a reasonable time before such hearing, the defendant must be provided with a written summary of the grounds on which bail on appeal was revoked and which is reasonably consistent with safeguarding witnesses and the public.

DISPOSITION

 Respondent is directed to Show Cause before the Superior Court, at a time set within a reasonable time following this order, why relief should not be granted and petitioner discharged from custody.  (See In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.)   At the hearing, West shall be afforded an opportunity to establish, or confirm, his eligibility for release on bail pending appeal.   The People shall make available to West at a reasonable time in advance of the hearing, a summary of the information presented at the in camera hearing.   The summary should be drafted so as to protect the identity of the witness or witnesses, but shall briefly disclose the nature of the information upon which the court based its findings.   The trial court shall then determine the issue on the order to show cause under the criteria set forth in Penal Code section 1272.1.

FOOTNOTES

1.   “(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.“(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:“․“(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice;  ․” (Evid.Code, § 1040.)

2.   “(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:“․“(2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice;  ․” (Evid.Code, § 1041.)

3.   The court shall order release on bail pending appeal if the defendant demonstrates by clear and convincing evidence that he is not likely to flee and that he poses no danger to the safety of the public or to any individual.  (Pen.Code, § 1272.1, subds. (a), (b).)   The defendant must also show that “The appeal is not for the purpose of delay and, based upon the record in the case, raises a substantial legal question which, if decided in favor of the defendant, is likely to result in reversal.”  (Id., subd. (c).)

4.   The court stated, “․ I am now in possession of information which by clear and convincing evidence to me and being as neutral as I can indicates that Mr. West does pose a danger to the safety of other people or the community, and I don't feel that I can disclose that, and so I am going to order that his bail be revoked and that he be remanded to the custody of the Sheriff at this time, ․” (app. 18)

5.   The Attorney General contends that the official information privilege under Evidence Code sections 1040 and 1041 justified the trial court's action.   However, under Evidence Code section 1042, the court must draw an adverse inference against the People if they refuse to disclose the information.   Thus, the official information privilege is not helpful to the Attorney General's position.

6.   Compare Penal Code section 1129, which provides, “When a defendant who has given bail appears for trial, the Court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the Court, and he must be committed and held in custody accordingly.”  Penal Code section 1129 does not require any hearing, showing, or notice before the court can exercise its discretion to revoke bail.  (People v. Enos (1973) 34 Cal.App.3d 25, 42–43, 109 Cal.Rptr. 876.)

7.   Here, based on our review of the sealed transcript of the in camera hearing, we determine that the court properly found a need for confidentiality and the reliability of the information presented, and the showing at the hearing supports such findings.

DABNEY, Acting Presiding Justice.

HOLLENHORST and TIMLIN, JJ., concur.