PEOPLE v. BERMUDEZ (1980)

OPINION

In this case we consider among other issues the question: Is the personal appearance of an informant required at an in camera hearing under Evidence Code section 1042, subdivision (d)? We conclude that generally the answer is yes.

Appellant (Bermudez), convicted of possession of heroin for sale, being under the influence of heroin, and possession of a hypodermic needle and syringe, appeals alleging several errors each of which we consider in order.

The record shows:

Bermudez was on probation as a result of a misdemeanor conviction not involving drugs. Bermudez' person, auto and property were subject to search without a warrant as one of the conditions of probation. He was further required to keep his probation officer informed as to his address.

He gave his address to his probation officer as 1509 Eureka, however, his probation officer attempted unsuccessfully to locate him there on two occasions.

One week after attempting to locate him at the Eureka address, Bermudez' probation officer saw him at 1217 Roselawn, Apartment B, in Modesto. Bermudez had never given that apartment as his address.

Agent Matt of the Stanislaus County Drug Enforcement Unit took steps to determine if Bermudez was residing at “1218 [sic] Apartment B.” He discovered that Bermudez did not rent the apartment and the utilities were in the name of Michael Murphy, one of the renters.

Another agent with the Drug Enforcement Unit was directed to conduct a surveillance of the apartment on March 24th. Beginning at 1:30 a. m. the agent observed Bermudez leave the apartment, lock the door, leave a note, drive away and return 15 minutes later.

On the same day at approximately 1:45 p. m., Sheriff's Deputy Ford and an Agent Unruh as part of a search team, approached apartment B.

The officers approached the house and the curtains and front door were open. Bermudez was inside seated on a couch. Unruh knocked and said that he was a police officer who was there to do a search. No answer was received, Unruh knocked and gave notice again, again there was no answer, and the officers entered the house.

They advised Bermudez what they were doing, patted him down, removed a knife that was on his belt and handcuffed him.

Bermudez said, “It is not my house, I don't live here.” However, at least twice Bermudez said in a loud voice as he faced the window to look out: “It's the heat, they come over to my house, they are hassling me.”

After being advised of his Miranda rights Bermudez told the officers that the apartment belonged to a friend named Mike Murphy, and his wife. He also said that his friends were gone and he was taking care of the residence for them. He also denied any knowledge of contraband.

The apartment and the yard were then searched.

In the back or side yard one agent found an orange balloon containing heroin. The balloon was lying in plain view on top of a plastic tarp covered with gravel. Underneath the tarp a plastic bag containing 24 toy balloons rolled into balls was recovered. These balloons contained heroin. There was testimony that heroin is packaged for sale in balloons.

In the northeast bedroom, men's clothes were found in a closet. There was no testimony that the clothes fit Bermudez. Various papers including a court paper, an envelope containing check stubs, and an employment application were found, all of which had Bermudez' name on them. The officers also recovered an Employment Development Department envelope which was addressed to Bermudez at 1509 Eureka. In addition, a plaque was found on the wall of the bedroom which read, “Frank Conchino, love you.”

In a kitchen cabinet a bag of toy balloons was found. A funnel was seized from a “crock pot” which was on the kitchen counter. Funnels and balloons are often used in packaging heroin for sale.

Next to the bag of balloons in the kitchen cabinet the officers found a black vinyl case. Inside the case was a hype kit.

A search of Bermudez revealed no drugs. However, a key was recovered from him which could open the front door of the apartment.

At the police station Agent Ford unsuccessfully attempted to administer tests to determine if Bermudez was under the influence. Bermudez refused to perform the tests. Nevertheless, Agent Ford opined based on his observations that Bermudez was under the influence of opium. (Bermudez does not challenge the sufficiency of the evidence to prove he was under the influence.)

Agent Ford also testified that based upon his training and experience the quantity of heroin that was seized was a quantity usually associated with a person who sells heroin.

I. SUFFICIENCY OF EVIDENCE

Bermudez contends that the evidence was insufficient to sustain a finding of knowing possession of heroin and that he had knowledge of the presence of the heroin. (No contention was made as to the additional elements required to show possession for sale.) We are not persuaded.

To show an accused had possession of heroin it must be proved that he had knowledge of its presence, that he had knowledge of its character and that he had either actual or constructive possession thereof. (People v. Francis (1969) 71 Cal.2d 66, 71, 75 Cal.Rptr. 199, 450 P.2d 591; People v. Redrick (1961) 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Valerio (1970) 13 Cal.App.3d 912, 921, 92 Cal.Rptr. 82.) An accused has joint possession when he and at least one other share the immediate right to exercise dominion and control over the contraband. (People v. Francis, supra; People v. Valerio, supra; People v. Poe (1958) 164 Cal.App.2d 514, 516, 330 P.2d 681.)

As our Supreme Court said in People v. Redrick, supra, 55 Cal.2d 282, 289, 10 Cal.Rptr. 823, 359 P.2d 255:

“The credence and ultimate weight to be given the evidence of the various particular circumstances are of course for the trier of fact, and ‘it is the trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ [Citation.]”

Contrary to Bermudez, this is not a case which involves mere presence in or mere opportunity of access to the place where the heroin was found. Additional factors exist.

The elements of the crime of possession of heroin for sale were established by circumstantial evidence and reasonable inferences drawn from such evidence. Both possession and control and the requisite knowledge were shown (see People v. Harrington (1970) 2 Cal.3d 991, 998-999, 88 Cal.Rptr. 161, 471 P.2d 961).

Unlike People v. Glass (1975) 44 Cal.App.3d 772, 118 Cal.Rptr. 797, relied on by Bermudez, there is more evidence linking Bermudez with the premises than in Glass, where the accused was merely a visitor. Bermudez said that he was taking care of the premises. He was seen entering and leaving the apartment. His personal effects and documents belonging to him were found in one of the bedrooms. Moreover, Bermudez had a key to the premises. He was alone on the premises on the day of the search and arrest. There was sufficient evidence to show that Bermudez at least had joint possession of the residence. Furthermore, it can be inferred that Bermudez was no stranger to heroin. When he was arrested he was under the influence of heroin. Narcotic paraphernalia was present in the kitchen. Additionally, Bermudez had not told his probation officer that he was residing at apartment B. Efforts to locate him at his listed address were unsuccessful. This supports a reasonable inference that he was hiding because of his involvement with heroin. That supports an inference of consciousness of guilt. Bermudez argues that there was no evidence that he had entered the kitchen or back yard. It is not unreasonable to infer that one who is “taking care” of a place would enter these particular locations. Under all of the circumstances it could be reasonably inferred that Bermudez had been in the back yard where the orange balloon full of heroin was in plain view and the other balloons were buried underneath. The circumstances reasonably justify the jury concluding that Bermudez was guilty of possession of heroin for sale.

II. PROSECUTORIAL MISCONDUCT

Bermudez contends that the district attorney committed prosecutorial misconduct requiring reversal in closing argument when the district attorney said:

“Why wouldn't he tell his Probation Officer that he had moved his residence or was living in another place, either permanently or temporarily if it was a completely innocent move, if it was completely to help a friend so to speak. There is no evidence of that, of course, but let's say for argument that it was, why not tell the Probation Officer. Why not tell the Probation Officer? Because part of his probation was a search clause and you can't search an individual you can't find. And why didn't he want to be found? Because the People submit he was dealing again in heroin and using the same.”

Where an accused complains of prosecutorial misconduct for the first time on appeal, the initial question to be decided is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected. If it would not, then the court reaches the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 13 (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468).

In the instant case no objection was made. Bermudez argues that there was a continuing objection first voiced at a motion in limine. Assuming (without so deciding) that there was an adequate objection, there was no request for an admonition of the jury. We are persuaded that an appropriate admonition would have cured any harm. Trial counsel could have asked the trial judge to admonish the jury. The error, if any, was waived by failure to pursue the matter in the trial court (People v. Maese (1980) 105 Cal.App.3d 710, 719, 164 Cal.Rptr. 485). Under all the circumstances, we conclude that the remark was harmless and it is not reasonably probable that a result more favorable to Bermudez would have occurred in the absence of the remark (Cal.Const., art. VI, § 13).

III. THE SEARCH

Bermudez contends that the People did not produce enough objective evidence to show that the Roselawn Apartment was his premises so as to justify the warrantless search under the probation condition and that as a result the motion to suppress should have been granted. We disagree.

Bermudez objected to the search at both a motion under Penal Code section 995 and a de novo motion at the superior court pursuant to Penal Code section 1538.5. When the motion under Penal Code section 995 was denied, Bermudez did not seek a writ in this court. There was no showing that Bermudez was deprived of a fair trial or suffered prejudice as a result of any error at the preliminary hearing. Consequently, as regards the Penal Code section 995 motion the error, if there be any, is not reversible (People v. Pompa—Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941; People v. Chambers (1980) 108 Cal.App.3d 985, 990-991, 166 Cal.Rptr. 815).

With regard to the 1538.5 motion, Bermudez asserts that there was no objective evidence that the apartment was his premises and thus the motion to suppress should have been granted. However, the contention is without merit and flies in the face of the record. Bermudez relies solely on the preliminary hearing transcript. That transcript was not before the superior court at the Penal Code section 1538.5 hearing. The 1538.5 hearing in superior court was a de novo hearing. There was adequate evidence at that hearing to support a conclusion that Bermudez lived at the apartments. The record showed: Before the entry Agent Matt had received information that Bermudez was living at the location. Bermudez' probation officer told Agent Matt that she had driven by the apartment and had seen Bermudez washing a white compact car. Bermudez' probation officer also told Agent Matt that Bermudez' parents stated that Bermudez was not living at the Eureka address on a full time basis. In addition, there was a police surveillance of the Roselawn apartment which revealed Bermudez' entering and leaving. The magistrate was entitled to conclude that Bermudez resided at the apartment (People v. Icenogle (1977) 71 Cal.App.3d 576, 585, 139 Cal.Rptr. 637).

IV. REFERENCE TO PROBATION

In his reply brief, Bermudez contends that the prosecution relied on prejudicial and inadmissible evidence (i. e., that Bermudez was on probation) to show that Bermudez had knowledge of the presence of the heroin. Bermudez intimates that the trial court committed an abuse of discretion under Evidence Code section 352 by admitting the evidence of his probationary status and that as a result of this error a reversal is required.

The trial judge instructed the jury that evidence that Bermudez was on searchable probation and his failure to give the Roselawn address as his residence, was admitted solely to show motive or plan.

The trial judge followed a sound procedure by immediately instructing the jury on the limited admissibility of this evidence. That evidence was probative of Bermudez' plan or motive to dodge his probation officer. There was no manifest abuse of discretion under Evidence Code section 352 resulting in a miscarriage of justice.

V. THE MOTION FOR DISCLOSURE

At trial Bermudez moved for disclosure of the identity of the informant. When the officer was asked the name of the informant, the People claimed the privilege under Evidence Code sections 1041 and 1042. Defense counsel argued that the informant would certainly be material as to the guilt or innocence of Bermudez and that Bermudez was charged with possession for sale; the contraband was not found on his person and that it was possible the informant could testify regarding other people living in the house and other possible ownership of the contraband. The district attorney argued that the informant was not a material witness under the standards set forth in People v. Wilks (1978) 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369, and that the motion should be denied. The trial court stated that there should be an in camera hearing and ordered such hearing. Trial counsel stipulated that the court might take judicial notice of the crime reports filed in the case.

We have reviewed the transcript of the in camera hearing. The in camera nature of that proceeding forecloses even a summary of the testimony therein. However, the issue of whether or not the informant should be present at the in camera hearing has been raised in this case and under all of the circumstances we are of the opinion that it does not violate the confidential nature of the in camera hearing to state that the informant in fact did not personally testify at that hearing.¹

No law, statutory or decisional, requiring that the informant personally appear at the in camera hearing has been called to our attention.²

The purpose of an in camera hearing is to rebut by testimony through a sworn competent witness (i. e., one who knows of what he speaks and has personal knowledge of the relevant facts³ ) the reasonable speculation on the record the accused has raised by the motion to disclose. It is designed to demonstrate that the speculation that the informant is material is unfounded. Once the accused has made out a prima facie case the burden is shifted to the prosecution to show that the speculation is unfounded.

We conclude and hold that in most cases the informant must personally appear at the in camera hearing. Only in the rare case could the officer or others offer competent evidence to obviate the necessity of the informant himself or herself appearing.

We note that the authors of Search Warrant Manual (2d ed. 1979) published jointly by the California District Attorneys Association and the Los Angeles County District Attorneys Office stated at page VI—16 1/80 revision:

“In most situations it seems likely that the judge will want the informant to personally appear at the in camera hearing. But there may be circumstances in which the investigating officer or other witnesses could offer sufficient evidence for the judge to rule that the informant needn't be disclosed without the informant himself appearing at the in camera proceeding.”

The informant's appearance could certainly not be necessary if the officerwas a percipient witness and could testify of his or her own knowledge that the informant was not even present. Nor would the informant's appearance be required in those situations in which the law enforcement officer had available independent physical evidence eliminating the necessity of the information from the informant.

Because the informant here did not personally appear and testify (and after careful reading of the in camera hearing we conclude that the instant case is not the rare case where personal appearance is unnecessary) the prosecution failed to meet its burden of proof.⁴ Ordinarily, in such a situation, the prosecution should be given the choice under the law to either disclose or dismiss (or perhaps in a given case to reduce the charge from possession for sale to simple possession as was done in People v. Long (1974) 42 Cal.App.3d 751, 117 Cal.Rptr. 200 and People v. Lamb (1972) 24 Cal.App.3d 378, 101 Cal.Rptr. 25) and should not be given a second bite of the apple (see People v. Viramontes (1978) 85 Cal.App.3d 585, 149 Cal.Rptr. 607; Williams v. Superior Court (1974) 38 Cal.App.3d 412, 112 Cal.Rptr. 485).

The Attorney General argues that the case should be remanded for resentencing for the limited purpose of conducting a second in camera hearing. This is not a case in which there was no in camera hearing the first time around. The limited remand concept should be used with great care. Otherwise multiple appeals take place in the nature of a yo—yo and such a prospect is not conducive to sound judicial administration. Nevertheless, such concept has been utilized in situations involving disclosure motions where there has been no in camera hearing (see e. g., In re Tracy J., supra, 94 Cal.App.3d 472, 156 Cal.Rptr. 512; People v. Ingram (1978) 87 Cal.App.3d 832, 151 Cal.Rptr. 239; People v. Blouin (1978) 80 Cal.App.3d 269, 145 Cal.Rptr. 701).

Because no case has prior to this opinion specifically held that the personal appearance of the informant is generally required at an in camera hearing, we believe that a limited remand in this case would be just under the circumstances (see Pen.Code, § 1260) and that it would really not be a second bite of the apple.⁵ Accordingly, the matter should be remanded for the limited purpose of a further in camera hearing in which the People, if they so desire, may produce the informant and the trial judge thereafter rule on the motion to disclose.⁶

We recognize the legitimate concern for the safety of informants. We agree with the observation of the authors of Search Warrant Manual, supra, at page VI—17 (1/80 rev.):

“It is not necessary for an in camera hearing to be held in the courthouse. The only requirement is that a judge, a court reporter, and a prosecutor and his witnesses be present.”

VI. CREDITS

Bermudez contends that Penal Code sections 2900.5 and 4019 entitle him to good—time/work—time credits for presentence custody. The Supreme Court decision in People v. Sage (1980) 26 Cal.3d 498, modified 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874, holds that equal protection compels such conduct credits.

The judgment is affirmed and the cause is remanded to the superior court with directions to vacate its order denying appellant's motion to disclose identity of informant, and hold an in camera hearing in accordance with the procedure set forth in section 1042, subdivision (d), Evidence Code, if requested to do so by the People, and if, as a result of such in camera hearing, the superior court concludes that there is no reasonable possibility that nondisclosure might deprive appellant of a fair trial, to deny the motion and leave in effect the judgment of conviction, or if it concludes there is a reasonable possibility that nondisclosure might deprive appellant of a fair trial, to order disclosure or upon refusal of the People to comply, a dismissal of the case, and in the event the prosecution discloses the identity of the informant, to vacate the judgment for retrial on the merits, and for any further proceedings consistent with the views set forth herein. Should the judgment of conviction be left in effect, the Department of Corrections is directed to determine the presentence conduct credits to which appellant is entitled upon appellant's application for administrative determination of such credits.

FOOTNOTES

1.  In the supplemental brief filed by counsel for Bermudez herein the assertion is made (based perhaps on inference or surmise or guess) that the People failed to produce the informant at the in camera hearing. The Attorney General in a supplemental brief suggests remedies in the event the informant was not present at the in camera hearing.

2.  Some cases have suggested that the presence of the informant is required (see e. g., People v. Aguilera (1976) 61 Cal.App.3d 863, 868, 131 Cal.Rptr. 603, where the court in referring to the statutory procedure stated: “It allows the prosecutor to produce the informant in camera so that the court can determine just what the informant knows, and whether his testimony would be material on the issue of guilt”; see, also, In re Tracy J. (1979) 94 Cal.App.3d 472, 478, 156 Cal.Rptr. 512; People v. Coleman (1979) 72 Cal.App.3d 287, 298, 139 Cal.Rptr. 908).

3.  This does not mean merely personal knowledge of the facts of what someone else such as the informant has told the witness but also refers to the facts pertaining to the entire circumstances known to the informant. Generally, the officer does not have personal knowledge of the latter facts and would be an incompetent witness thereon as not providing “a present recollection of an impression derived from the witness' own senses.” (See Cal.Law Revision Comm. com. to Evid.Code, § 702, 29B West's Ann.Evid.Code (1966 ed.) p. 22; see also Witkin, Cal. Evidence (2d ed. 1966) § 771, p. 718.)

4.  In passing we note that too often in transcripts of in camera hearings it appears that the prosecutor has not fully developed the evidence to assist the trial judge in considering the materiality of the informant. It behooves any prosecutor who expects to meet the required burden of proof to not only call witnesses who have personal knowledge but also to fully develop that evidence. The police officer is usually not equipped to ask the necessary questions of the informant in depth to sufficiently establish lack of materiality. Nor can the trial judge be expected to pose the kinds of questions which would be asked by a trained advocate. That has been one of the criticisms of the ex parte in camera hearing procedure (see Brenner, In Camera Hearings on Informant Disclosure: a Criticism (1975) 15 Santa Clara L.Rev. 326, 334 and 337).

5.  A remand under the authority of Penal Code section 1260 in lieu of vacating the judgment with directions was used in the context of a speedy trial issue in People v. MacDonald (1972) 27 Cal.App.3d 508, 103 Cal.Rptr. 726, in which the court observed at footnote 4, page 512, 103 Cal.Rptr. 726: “It has the merit of not disturbing the records as to the judgments of conviction unless legal reason for doing so is established, thus reducing the need for correction of records by law enforcement authorities.” In Ingram the matter was remanded with directions in order to possibly prevent duplication of judicial time and effort. Ingram cites 87 Cal.App.3d at page 843, 151 Cal.Rptr. 239 several California cases (including People v. Anderson (1976) 59 Cal.App.3d 831, 131 Cal.Rptr. 104, a decision of this court) in which limited remand was ordered under other circumstances. We believe that rather than reverse with a remand that the better procedure is that set forth in Anderson in which the judgment is affirmed and the matter remanded.

6.  If the informant is no longer available the prosecutor may face the factual situation presented in People v. Allen (1980) 101 Cal.App.3d 285, 161 Cal.Rptr. 568, and a dismissal may be necessary.

HOPPER, Associate Justice.

GEO. A. BROWN, P. J., and ANDREEN, J., concur.