PEOPLE v. ALLEN (1978)

Defendant appeals from a conviction after a nonjury trial in the superior court of violation of Health and Safety Code section 11351, subdivision (a) (possession of heroin for purposes of sale). The only issue he raises is the propriety of the denial of a pretrial motion to require the disclosure of the identity of informants.

The evidence on the disclosure issue consisted entirely of the testimony of the arresting officer, one Dennis Zeuner. Zeuner, who was a narcotics supervisor with central narcotics operations of the Los Angeles city police, arrested defendant in the Belmont Bar on July 15, 1976. On July 12, he had received information from an anonymous informant that two individuals by the name of George and Bernice were involved in selling heroin at that location. Zeuner was unable to act on the information prior to July 15 when he received further information from two additional informants of whose identity he was aware. The last conversation with one of these informants occurred within five minutes of the time Zeuner entered the Belmont Bar to investigate. According to the informant, “he or she had just left the bar and had called me from a phone close by.” The information imparted by the informant included the facts that there were two individuals holding narcotics, one male and one female, and that they were seated halfway in the middle of the bar. The clothing of each was specifically described. In the case of the male, it included a “patchwork leisure shirt, dark blue and light blue . . . a baseball cap with an emblem on the front, baseball on the front of it.”

When Zeuner entered the bar, he did not see anyone fitting the description of the female suspect. However, within one-half minute of his entry, he saw defendant, who fit the description of the male wearing the baseball cap. He did not thereafter take his eyes off defendant. He observed defendant walk toward the bar, looking up at the TV set that was playing. While looking up, defendant took his hands to his waist area, removed a brown object about four inches in diameter, and dropped it in a small white trash can that was at the bar. When the contents of the trash can were examined, there was only one brown object of such dimensions a small leather purse. When opened, the purse was found to contain heroin in paper bindles and some marijuana. Defendant was arrested for possession of the contraband and searched. No significant amount of money or other contraband was found on his person.

Zeuner testified that neither of the known informants was present at the time he entered the Belmont Bar and arrested defendant. He asserted the privilege not to disclose their identity.

In the oral argument on the motion, counsel for defendant urged two theories in support of his claimed right to disclosure of at least the final informant. First, he claimed that defendant questioned the credibility of Zeuner's testimony that he could see defendant discard the purse into the wastebasket in view of the lighting in the bar, and the informant might have seen someone else drop the purse into the wastebasket, having been there within five minutes of its discovery. Second, defendant claimed that the informant might be able to testify as to the nature of his possession, having been in a position to observe defendant's acquisition of possession “just moments before.” He did not, however, offer any evidence supporting a claim that he did not discard the purse into the wastebasket or a claim that possession was other than for sale.

There was no discussion at the hearing as to whether the informant would be made available for an In camera examination by the court to ascertain what his testimony might be relating to either of defendant's theories.

Contentions

Defendant contends that the evidence at the disclosure hearing demonstrated a reasonable possibility that the informant could give evidence on the issue of guilt which might result in defendant's exoneration and he was, therefore, entitled to disclosure. The People contend, to the contrary, that the facts shown at the hearing give rise to no more than “mere ‘speculation’ that the informant could produce evidence favorable to the defense.”

Discussion

Summary

The evidence showed that at least one of the informants was in a position to perceive the immediate antecedents of the alleged crime. The speculative nature of the content of his perception did not deprive defendant of the right to at least have such content ascertained by an In camera examination of the informant to determine whether nondisclosure would deprive defendant of a fair trial. Further proceedings in the trial court are required so that such fact can be ascertained.

Defendant Adequately Articulated a Theory of Defense to Which the Informant's Testimony Might Be Material

Defendant did not submit any evidence contradicting Zeuner's testimony that he discarded the contraband into the wastebasket or explaining his apparent possession for sale. “Such testimony, however, is not a necessary ingredient to obtain disclosure. A defendant may rely upon reasonable inferences that flow from the prosecution's evidence.” (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1044, 125 Cal.Rptr. 905, 911.)

Defendant did articulate two theories of defense. His specification in this respect, though general, was adequate to enable the court to determine the existence of a reasonable possibility that the informant might be able to give testimony favorable to defendant. There is a difference of opinion in the reported cases concerning the necessity of any such articulation. (Cf. People v. Long (1974) 42 Cal.App.3d 751, 755, 117 Cal.Rptr. 200; People v. Sewell (1970) 3 Cal.App.3d 1035, 1039, 83 Cal.Rptr. 895; and People v. Tolliver, supra, 53 Cal.App.3d at pp. 1047-1048, 125 Cal.Rptr. 905.) Under either view, however, defendant's specification was adequate. As stated in Sewell, supra, the defense need only be specified with sufficient particularity to “determine the existence of a reasonable possibility that the evidence to be obtained from the anonymous informer may be helpful to the defense.” (3 Cal.App.3d at p. 1039, 83 Cal.Rptr. at p. 897.) The specification here made by defendant is sufficient for that purpose. The court is thereby informed that an informant who might have observed the manner in which the purse got into the wastebasket or how it came into the possession of the defendant would be in a position to give testimony bearing on the issue of defendant's guilt or the degree thereof.

Where the Informant Was in a Position to Perceive the Immediate Antecedents of the Alleged Crime, It Is Irrelevant That We Can Only Speculate as to What He Saw

The speculative nature of what it is that the informant might have observed and might testify is not a relevant factor in determining whether defendant has demonstrated a reasonable possibility that the informant could give evidence resulting in his exoneration. The important factor is whether it is demonstrated that the informant was in a position to perceive either the commission or the immediate antecedents of the crime.

In Williams v. Superior Court (1974) 38 Cal.App.3d 412, 112 Cal.Rptr. 485, a superior court which had denied defendant's motion for disclosure of an informant in a prosecution for possession of heroin for sale was ordered by writ of mandate to grant such motion. The informant had stated that he was present in defendant's residence the day before the alleged offense and saw defendant and another person selling and packaging heroin. At the time of the arrest, officers found heroin in defendant's dresser drawer. The court made an extensive review of the prior authorities dealing with the factor of speculation concerning the informer's possible testimony and concluded as follows (Id., at pp. 423-424, 112 Cal.Rptr. at p. 491):

“As previously stated, the evidentiary showing required by those decisions is not as to the exculpatory nature of the informer's potential testimony but merely as to the Quality of the vantage point from which the informer viewed either the commission or the immediate antecedents of the alleged crime. The noted Supreme Court cases ask in effect, ‘What was the informer In a position to perceive?’ If the evidence shows that the informer had a sufficiently proximate vantage point, those Supreme Court decisions simply speculate concerning the informer's potential testimony and hold that the defendant has demonstrated a reasonable possibility that the informant could give evidence which might result in the defendant's exoneration. Speculation as to such an informer's testimony is consistent with cases which discern a constitutional right in the accused to seek out the informer to inquire what he knows. (See People v. Garcia, supra, 67 Cal.2d (830) at p. 840, 64 Cal.Rptr. 110, 434 P.2d 366; People v. Kiihoa, supra, 53 Cal.2d (748) at p. 752, 3 Cal.Rptr. 1, 349 P.2d 673; People v. Castiel, supra, 153 Cal.App.2d (653) at p. 657 (315 P.2d 79).)” (Italics added.)

It is unnecessary to repeat the Williams discussion of the prior authorities. They fully support the above quoted conclusion. Particularly apposite, however, is the statement of our Supreme Court in People v. Hunt (1971) 4 Cal.3d 231, 240, 93 Cal.Rptr. 197, 481 P.2d 205, where it was stated “in Garcia (67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366) we could only speculate that he had such information.” Yet in Garcia the court held that the informant's testimony was material and disclosure was required. We conclude, therefore, that the defendant is not required to demonstrate what the informant has perceived nor what he will testify concerning such perception; he need only demonstrate that the informant was in a position to perceive “either the commission or the immediate antecedents of the alleged crime.” (38 Cal.App.3d at p. 423, 112 Cal.Rptr. at p. 491.)

When such a demonstration is made, the defendant has established a prima facie case for disclosure. Prior to the 1969 amendment to Evidence Code section 1042, proof of such prima facie case would require a disclosure order. However, as amended, said section, in subdivision (d), “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.” (People v. Aguilera (1976) 61 Cal.App.3d 863, 868, 131 Cal.Rptr. 603, 607.) Thus, “(i)f his testimony at the In camera hearing shows that there is no reasonable possibility the informant could aid the defense, the public interest in nondisclosure of his identity can be preserved without any infringement on the defendant's right to a fair trial.” (Id., at pp. 868-869, 131 Cal.Rptr. at p. 607.)

The availability of this procedure makes even more reasonable the rule stated above in Williams v. Superior Court, supra, 38 Cal.App.3d 412, 112 Cal.Rptr. 485.

The evidence produced through the People's witness at the disclosure hearing in this case clearly established that at least one of the informants “had a sufficiently proximate vantage point” from which he “viewed . . . the immediate antecedents of the alleged crime” so that he was in a position to perceive exculpatory circumstances. In Williams, the crime and the informant's perception were separated by a full day; in the case at bench, such separation was at most a few minutes. As in Williams, the informant also allegedly observed conduct of the defendant and of another person in respect of narcotics which were the subject of the charge. It is, therefore, legitimate to speculate that the informant might have observed another person entrust defendant with the purse under circumstances negating defendant's unlawful intent or might be able to explain the presence of the purse in the wastebasket in a fashion which would question Zeuner's alleged observations.

It is thus apparent that defendant has established a prima facie case for disclosure. It is also apparent that this is a case in which the speculative possibility that the informant might possess exculpatory information could well have been investigated by an In camera hearing pursuant to Evidence Code section 1042, subdivision (d). The preferable procedure when such a prima facie showing is made is for the court to so indicate and thus give the prosecution the opportunity to request such an In camera hearing. Should the People decline to produce the informant at such a hearing, the defendant is entitled to a dismissal.

In view of the trial court's ruling, however, the prosecution was not called upon to request an In camera hearing in that court. At the oral argument in this court, the People did request such a hearing. Such request is timely since the need therefor did not arise until the ruling of this court that a prima facie case for disclosure was shown. (Cf. People v. Viramontes (1978) 85 Cal.App.3d 585, 593, 149 Cal.Rptr. 607.) The case will, therefore, be remanded for the purpose of giving the prosecution an opportunity to produce the informant for an In camera examination.

If the informant is produced and the hearing discloses that there is indeed no reasonable possibility that nondisclosure might deprive defendant of a fair trial, there is no reason that the judgment cannot be affirmed. If, on the other hand, the People decline to produce the informant for such a hearing or the examination of the informant discloses that there is such reasonable possibility that nondisclosure might deprive defendant of a fair trial, the People will be required to disclose the identity of the informant to avoid dismissal.

Disposition

The cause is remanded to the superior court so that the prosecution may produce the informant^[FN1] for an In camera examination by the court. Such In camera examination of the informant shall be made outside the presence of the defendant and his counsel. Defendant, however, may propose questions to be answered by the informant. If, as a result of such In camera examination the trial court finds that there is no reasonable possibility that nondisclosure might deprive the defendant of a fair trial, it may leave the judgment of conviction in effect; otherwise, it shall make its order requiring the People to disclose the identity of the informant. In either event, the aggrieved party shall have the right to review such finding by an appeal. (Pen.Code, ss 1237, 1238.)

FOOTNOTES

1.  We hereby refer only to the informant described in the testimony of Officer Zeuner as having called immediately after leaving the Belmont Bar. Defendant neglected to produce any evidence indicating that any other informant that might have been involved occupied any “proximate vantage point” justifying an In camera examination.

POTTER, Associate Justice.

KLEIN, P. J., and ALLPORT, J., concur.