PEOPLE v. SOTELO (1979)

By our order of December 12, 1978, we have consolidated the appeals of Jesse Young and Luis Albert Sotelo, who is also known as Luis Albert Mendez and as Lucho.

Young appeals from a judgment of conviction on October 6, 1977, after a jury verdict was entered finding him guilty of second degree murder and of being armed with a knife. Young claims as error that his confession was improperly admitted into evidence because it was involuntary and because it was the fruit of an unlawful arrest made without probable cause. He further assigns as error that the informant may have been a material witness and his identity was improperly withheld.

Sotelo appeals from a judgment of conviction on July 18, 1977, following a separate trial in which a jury verdict was entered finding him guilty of first degree murder and of using a firearm. Sotelo claims as error that his confession was inadmissible as the product of Young's illegally obtained confession and also as being involuntary. He further claims that the trial court erred in refusing to permit discovery of the arrest and misdemeanor records of prospective prosecution witnesses.

Sotelo and Young were indicted on April 13, 1977, by the Marin County Grand Jury for the murder of Michael Brand Galvin in violation of Penal Code section 187. The indictment further alleged: that the murder was wilful, deliberate and premeditated; that it occurred during a robbery (Pen.Code, § 211); that Young was armed with a knife in the commission of the offense (Pen.Code, §§ 3024(a) and 12022); and that Sotelo used a firearm in the commission of the offense (Pen.Code, §§ 1203.06(a)(1) and 12022.5). The two appellants were arraigned and each pleaded not guilty to the respective charges. Appellants' motions for discovery and to suppress and exclude evidence were heard, and error is claimed from the rulings on these motions. No trial error is alleged.

I

Steven Leland, a friend of the murder victim, Galvin, testified at the trials. On February 28, 1977, a week before the murder, he visited Galvin at the latter's home. While Leland was there, Danny Thompson arrived and “proposed a dope deal” to Galvin. Leland was suspicious because of the amount of dope involved, 10 pounds of heroin, and because the buyer wanted to meet with Galvin alone. He “felt that Michael [Galvin] was being set up to be ripped off, and [[[[he] went home to get a gun.” Leland returned to Galvin's home with a concealed .38 revolver. As he returned, he noticed a '64 Chevy that he had seen parked near the Galvin home when he left; the car was now pointed ready to leave and contained two or three passengers. When Leland entered the home, Thompson was still there, now joined by a person introduced to Leland as “Chico.” The dope deal was arranged for the following day. As an additional deal, Galvin agreed to sell a half-ounce of dope to a friend of Chico since Chico did not want to break up a large amount of heroin that he had. Thompson left and brought back the man whom he introduced as “Lucho.” Chico went into the bathroom and came back out with a .38 revolver, announcing a rip-off and telling the people present to lie down. Leland, Galvin, and Thompson hit the ground; Chico and Lucho removed money, dope, and valuables from them and from the home. One of the robbers took Leland's revolver and holster. It was handed to Lucho at his request. A man named Marcum walked in, and he, too, was searched and told to lie down on the floor.

Chico, also known as Bobby Davis, asked Galvin where his money was. Galvin told him about $80 in a jar, which Chico took. Chico and Lucho left, saying that they would be back and that if they found money then, they would kill Galvin. Leland thought Chico made the statement.

Leland did not report the incident to the police until after Galvin's murder.

Young was arrested on March 18, 1977, and on the same day confessed to the following events. He was with “Lucho” (on the night of March 6th); they went to a bar and drank “pretty heavy”; they picked up some hitchhikers and dropped them off in Novato; they bought some more beer and went to Janet's house; then he went with Lucho to collect dope or money owed by “this dude”; Lucho gave him a long knife, and Lucho carried a Smith & Wesson revolver; they went to the houseboat (of Galvin) and Lucho entered first; the lights were on, but “the dude” (Galvin) was asleep. Lucho looked for money but could only find $10 and some dope which he gave to Young; Lucho woke Galvin and said “Where's the money?”; Galvin didn't reply; Lucho handed Young a blue jacket to search, and in doing so, Young found $5,000; next Young heard a shot go off, he turned and saw Galvin sitting up in bed looking at him; Lucho was outside already, so Young, thinking Galvin was going to grab him, hit him across the head with the knife; in running from the house, he passed a man (later identified as Hudson, a neighbor of Galvin). Lucho told Young to keep quiet about the incident or he would kill him, too. They drove around and then went back to Janet's house.

Sotelo was arrested on April 13th and on April 15, 1977, confessed to the following events: Galvin owed him money from drug deals; he (Sotelo) took Young with him to Galvin's early in the morning on March 7th to collect the debt; he carried a .38 Smith & Wesson and Young had a machete; pointing the gun at “Mike” (Galvin), he asked where the money was, and Galvin responded that there wasn't any. He had Young search Galvin's jacket and $5,000 was found; Sotelo turned his head, Galvin grabbed at the gun, Sotelo pushed him back, Young hit Galvin over the head, Sotelo tried to leave, and the gun went off.

Hudson heard the gunshot and arrived at Galvin's shortly after the murder; he called the police. Galvin died of the gunshot wound in his chest. There was also a clean, deep gash on his face, extending into the bone, caused by a sharp, heavy object. The gunshot wound “most likely” preceded the cut.

As appellant Sotelo states: “The fact of the homicide was not in doubt, nor was appellant's involvement․ The issue became one of degree—was the killing premeditated or committed in the course of a robbery.” Young admits to being present at the time, searching for money and drugs, and striking Galvin with the knife. His defense was that he was drunk, that he did not foresee murder, and that he obeyed Sotelo because he feared him.

II

Young moved (1) to exclude any statement he made involuntarily; and (2) to disclose the identity of the informant who supplied facts leading to his arrest. Sotelo moved (1) to suppress pursuant to Penal Code section 1538.5 any statements he may have made as a result of “the illegal use by police officers of a statement obtained from Defendant JESSE YOUNG” and (2) to exclude any statements he may have made involuntarily or in violation of his Miranda rights. Each made motions for discovery. Each made motions to sever the trials which were denied, but granted at the time of trial.

At the hearing on the motions Sergeant Keaton of the Marin County Sheriff's Office was a witness. Keaton arrested Young without a warrant, but he believed that the arrest was for reasonable cause. (Pen.Code, § 836(3).) The reasonable cause was based on information given Keaton by a confidential, reliable informant. Keaton claimed the privilege under Evidence Code sections 1041 and 1042 and refused to state the informant's identity or to answer any questions that might tend to identify the informer. At the People's request, the court conducted an in camera hearing. The two attorneys from the district attorney's office, the reporter, and Sergeant Keaton (who testified) were present at the reported hearing. The hearing in open court then resumed. Defense counsel objected to the fact that the informant was not present to be examined by the court and argued that the informant might be a material witness who could give evidence on identity, intent or on the intoxication of appellants at the time of the murder. Keaton was again cross-examined about information given to him by the informant to show probable cause and about the information from which he concluded that the informant was reliable. Over defense objections, the court sustained the privilege to every question that might reveal the informant's identity. The court stated that probable cause might be revealed in the public record or in a combination of public and sealed records. Defendants' motion to disclose the identity of the informer was denied, and the court ruled “there was ample probable cause” for Young's arrest. Young's confession not being the product of an illegal arrest, was therefore admissible unless it was involuntary.

Thus, we must determine whether confidential information that would reveal the identity of the informer must be disclosed when it relates to the reliability of the informer and reasonable cause for arrest. Appellants contend that disclosure is mandated by statute and by the Constitution.

The general principles applicable to the informant privilege were reviewed in People v. McShann (1958) 50 Cal.2d 802, 330 P.2d 33, in which the Supreme Court stated: “There is divergence of opinion as to whether the common-law privilege covers only the identity of the informer or also includes the contents of the communication. [Citations.] Since the reasons for the privilege relate primarily to the identity of the informer, some authorities take the position that the privilege does not extend to the communications unless the contents would disclose or tend to disclose the identity of the informer. (See Wigmore, Evidence [3d ed.], vol. 8, p. 755; McCormick, supra [Evidence 1954], p. 310.) Under [Code of Civil Procedure] section 1881, subdivision 5 [now Evidence Code section 1040] it extends to the communications ‘when the public interest would suffer by the disclosure.’ [¶] It is for the court to determine whether the public interest will suffer by disclosure.” (Id., at p. 807, 330 P.2d, at p. 35.) “A mere informer has a limited role. ‘When such a person is truly an informant he simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged.’ (People v. Lawrence, supra, 149 Cal.App.2d [435, 308 P.2d 821] at 450.) … When it appears from the evidence, however, that the informer is also a material witness on the issue of guilt, his identity is relevant and may be helpful to the defendant. Nondisclosure would deprive him of a fair trial․ [T]he People must either disclose his identity or incur a dismissal.” (Id., at p. 808, 330 P.2d, at p. 36; see also People v. Garcia (1967) 67 Cal.2d 830, 842, 64 Cal.Rptr. 110, 434 P.2d 366; Williams v. Superior Court (1974) 38 Cal.App.3d 412, 417-425, 112 Cal.Rptr. 485.)

From McShann it appears that the information as well as the identity of the informer who is not a material witness is privileged when the public interest so demands. We turn now to the code sections¹ enacted after McShann for clarification. Evidence Code section 1041 provides that a law enforcement officer has a conditional privilege to refuse to disclose the identity of a person who has furnished information when “there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice”; section 1040 provides a conditional privilege for “information acquired in confidence by a public employee in the course of his duty” under the same weighing standard as set forth in section 1041. Thus, from reading the two sections together the information tending to reveal the informant's identity is still privileged to the same extent as is his identity.

Sotelo argues, however, that the privilege for information relating to probable cause cannot be sustained under Evidence Code section 1042(c)² which provides: “… any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.” (Emphasis added.) The evidence produced in open court bearing on the informant's reliability is equivocal: Keaton was permitted to say that the informant had caused no arrests or convictions before Young's arrest and that the informant had been arrested and convicted of at least one felony. The informant had been used in one investigation prior to Young's arrest. Keaton had corroborated at least a dozen items of information on which he based the arrest, but he declined to give specifics about the corroborated items. The evidence produced in camera, however, shows conclusively that: (1) there is no problem with the informant's reliability; and (2) revealing his information would reveal his identity.

We thus have a question of statutory interpretation: Do Evidence Code sections 1041-1042³ require that the judge be convinced of the informant's reliability solely on evidence produced in open court?

Although section 1042(c) seems to require that evidence on the reliability of the informer be produced only in open court, section 915(b)⁴ authorizes an in camera hearing where it is necessary to rule upon a privilege claimed under section 1040 et seq. The use of section 915(b) has been criticized, partly because it does not provide for a record of the proceedings. (See People v. Superior Court (Biggs) (1971) 19 Cal.App.3d 522, 530-532, 97 Cal.Rptr. 118; cf. People v. Woolman (1974) 40 Cal.App.3d 652, 654-655, 115 Cal.Rptr. 324, involving a claim of privilege in response to a Pitchess [v. Superior Court 1 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305] motion for disclosure of a police officer's file, where the court stated: “In spite of the dicta in [Biggs], we see nothing wrong in that procedure. To require an adversary hearing with counsel would destroy, at the outset, the very privilege that the hearing is designed to protect.”) The concern that the police will become arbiters of probable cause or that the courts will function as star chambers is obviated by the remedy of appellate review. The trial court can and should exercise its inherent power to order that the proceedings be transcribed. In the case before us, the court did use this power and followed the procedure outlined in section 1042(d).⁵ As suggested in People v. Allen (1978) 86 Cal.App.3d 385, 393, 150 Cal.Rptr. 295, in discussing the procedure under section 1042(d), the defendant “may propose questions to be answered by the informant” in the in camera proceeding.

In 1969, the Legislature added section 1042(d) which permits a combined in camera and open court hearing to determine whether the informer is a material witness whose identity must be disclosed, a determination that relates to the fundamental issue of guilt or innocence. We are presented here with the procedure for determining the preliminary issue of reasonable cause for a warrantless arrest. We conclude that the Legislature did not intend to negate the procedure prescribed by section 915(b) to determine whether the privilege should be sustained and that a combined open court and in camera hearing is authorized when the case demands that such a procedure be followed.⁶

Sotelo contends that he had a constitutional right under the Fourth and Fourteenth Amendments to question the arresting officer in open court about the information on which he based probable cause for the warrantless arrest. “‘It is well settled that California does not require disclosure of the identity of an informant who has supplied probable cause for the issuance of a search warrant where disclosure is sought merely to aid in attacking probable cause.”’ (People v. Borunda (1974) 11 Cal.3d 523, 527, 113 Cal.Rptr. 825, 826, 522 P.2d 1, 3; People v. Keener (1961) 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 361 P.2d 587.) In the present case, however, we must determine whether the privilege extends to the confidential communications establishing probable cause for a warrantless arrest when the information would reveal the identity of the informer. We can find no cases directly in point, but a review of some of the decisions is illuminating.

In Roviaro v. United States (1957) 353 U.S. 53, 59-60, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, the court stated: “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. [¶] The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” The court further observed at page 62, 77 S.Ct. at p. 628-629: “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.”

The United States Supreme Court in McCray v. Illinois (1967) 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, upheld the Illinois application of its evidentiary rules relating to the testimonial privilege. The court reviewed its earlier opinion, Roviaro v. United States, supra, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, which “involved the informer's privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental one of innocence or guilt.” (Id., 386 U.S. at p. 309, 87 S.Ct. at p. 1061.) The court summarized the holding: “What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer's identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684, we have ‘recognized that “an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,” so long as the magistrate is “informed of some of the underlying circumstances” supporting the affiant's conclusions and his belief that any informant involved “whose identity need not be disclosed … was ‘credible’ or his information ‘reliable.””” (Emphasis in original; id., 386 U.S., at p. 311, 87 S.Ct., at p. 1062.) In footnote 11 at pages 311-312, 87 S.Ct. at pages 1063 n.11, the court comments on the distinction between warrant and nonwarrant cases and comments that “… an absolute rule of disclosure for probable cause determinations would conflict with the case-by-case approach upon which the Roviaro decision was based.” See also In re Bye (1974) 12 Cal.3d 96, 103, 115 Cal.Rptr. 382, 386, 524 P.2d 854, 858 (cert. den. 420 U.S. 996, 95 S.Ct. 1437, 43 L.Ed.2d 679), in which the court stated: “Due process is a flexible concept; the precise procedures necessary to prevent the arbitrary deprivation of a constitutionally protected interest vary ‘with the subject-matter and the necessities of the situation.”’

Sotelo places reliance on Parsley v. Superior Court (1973) 9 Cal.3d 934, 109 Cal.Rptr. 563, 513 P.2d 611, which involved a search warrant that expressly relieved the officers from complying with the knock and notice requirements of Penal Code section 1531. No privilege was claimed that evidence of reliability would result in disclosure of the identity of the informant, and thus the court was not faced with resolving the conflict in the legislative aims set forth in Evidence Code sections 1040-1042 or with the constitutional issues. There was no indication that the trial court had exercised its discretion about the informant's reliability since the court restricted cross-examination of the testifying officers on the ground that the warrant was sufficient on its face to authorize the unannounced entry. In reversing, the Supreme Court stated that McCray v. Illinois, supra, 386 U.S. 300, 313, 87 S.Ct. 1056, 18 L.Ed.2d 62, appeared to require full cross-examination of prosecution witnesses concerning informant reliability as a prerequisite to invoking the informant privilege. In McCray, the court simply set forth with approval the evidence produced in the Illinois proceeding; it did not indicate that the Illinois procedures were constitutionally compelled. In Parsley, supra, the court was concerned that there be full cross-examination concerning the informant reliability so that the judge might exercise his discretion in ruling that the informant was reliable. In the case before us, the evidence produced in camera was such that no amount of cross-examination in open court could further inform the judge before he exercised his discretion to sustain the privilege and rule on reasonable cause for arrest.

In McCray v. Illinois, supra, 386 U.S. 300, 306-308, 87 S.Ct. 1056, 18 L.Ed.2d 62, the court quoted an instructive New Jersey case, State v. Burnett, 42 N.J. 377, 201 A.2d 39, 43-45: “‘The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we have said, the magistrate is concerned, not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts the credibility of the affiant, he may require that the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.”’ (Id., 386 U.S. at pp. 307-308, 87 S.Ct., at pp. 1060-1061.)

It is clear from McCray and Roviaro that each case must be examined on its face to decide whether nondisclosure was justified. It is equally clear that a judge, not the police must determine the preliminary issue of probable cause and that the judge must have credible or reliable information from which to make the determination. In the case before us a judicial mind did pass on the issue of probable cause and did have reliable information presented in the in camera hearing. The defendants were not denied due process of the law. They had ample opportunity to present evidence at the hearing on the motions; they presented none. They were restricted on cross-examination in open court, but “The trial court can control the cross-examination to prevent disclosure of information which should not be revealed.” (People v. Lopez (1977) 71 Cal.App.3d 895, 901, 139 Cal.Rptr. 775, 778.) It would be paradoxical to prohibit the determination of probable cause in a reported in camera hearing when a more fundamental issue relating to guilt or innocence may be presented at such a hearing. (See People v. Pacheco (1972) 27 Cal.App.3d 70, 82, 103 Cal.Rptr. 583, upholding the constitutionality of section 1042(d) providing for an in camera hearing to determine whether the informer is a material witness.) The privilege of nondisclosure would be meaningless in a case such as the one before us if the People were required to divulge information which would identify the informer when identity is not required to ensure a fair trial for the defendants.

Young further argues that the trial court inadequately investigated the possibility that the informant was a material witness on the issue of guilt. The court impliedly found that the informant was not a material witness for Young when it denied defendants' motion to disclose. (See § 402(c).) The evidence produced in camera shows clearly that the informant had no exculpatory knowledge to help either appellant. (See People v. Wilks (1978) 21 Cal.3d 460, 468, 146 Cal.Rptr. 364, 578 P.2d 1369; People v. McCarthy (1978) 79 Cal.App.3d 547, 144 Cal.Rptr. 822.)

Sotelo urges that the court should have required the informant to be present at the in camera hearing. Neither section 915 or section 1042 authorizes the court to call the informant as a witness. If the court has any doubt on reasonable cause or on whether the informer is a material witness, it can refuse to sustain the privilege. The People can then either produce the informer in person or suffer dismissal. In the present case, the evidence introduced at the in camera hearing was substantial, and the court was properly satisfied that interrogation of the informer was not needed.

We have reviewed the record of the hearing on the motions including the sealed record of the in camera hearing. The trial court properly determined that there was reasonable cause for the arrest of Young (see People v. Martin (1973) 9 Cal.3d 687, 108 Cal.Rptr. 809, 511 P.2d 1161, cert. den. 414 U.S. 1113, 94 S.Ct. 844, 38 L.Ed.2d 740, that the identity of the informer and information that would reveal his identity were privileged, and that the informer was not a material witness for the defense. There was ample evidence to support the court's exercise of discretion in impliedly finding a “necessity for preserving the confidentiality … that outweighs the necessity for disclosure in the interest of justice.” (See §§ 1040, 1041.) Our reasons are set forth in a supplement to this opinion in the sealed transcript so that if further proceedings ensue, this court's thoughts may be known to the Supreme Court.

III

Appellant Young claims that his confession, which is outlined in the statement of facts, ante, was involuntary and was therefore inadmissible. Young was arrested near a bus stop at about 9:55 a. m. on March 18, 1977, by four plainclothes policemen. The officers, weapons drawn, identified themselves, handcuffed Young, and took him to the sheriff's office. They told him that he was under arrest for murder and robbery and advised him of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) After his arrival at the sheriff's office, Young was interviewed for about 30 to 40 minutes before taping began. Sometime during the interviews Young mentioned that he at first thought the arresting officers were hit men. Young was advised of his rights again at the beginning of both the unrecorded and recorded interviews.

Young testified at the hearing on the motions that: The officers told him that there was a contract out on him, but said he would be safe if he were on their side; they threatened to “do a number” on him and took him to the sheriff's office only after he said he would confess; he wasn't read his rights until his arrival there; he thought that Sotelo had two friends who were going to kill him; he did not confess until after he had been read his rights. He alleges that the arresting officers knew he was under duress due to fears about the hit men.

As stated in People v. Jiminez (1978) 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 180, 580 P.2d 672, 680: ““‘As a reviewing court it is our duty to examine the uncontradicted facts to determine independently whether the trial court's conclusion of voluntariness was properly found ․ In exercising this function the court recognizes that the burden is on the prosecution to show that a confession was voluntarily given without previous inducement, intimidation or threat.”’ … With respect to conflicting testimony, of course, ‘… we accept [[[[the] version of events which is most favorable to the People, to the extent that it is supported by the record.”’

Each allegation in Young's testimony relating to improper activities by the police at the time of his arrest is contradicted by Sergeant Keaton. The uncontradicted evidence shows that Young was arrested at gunpoint and advised of the reasons for his arrest. Young admits three Miranda warnings before his confession. The court ruled that “there was ample probable cause to arrest him; no threats, promises, misrepresentation or force was used to secure said statements [confession] which were voluntary, and there was no violation of his Miranda rights.” The court did not state that voluntariness was found “beyond a reasonable doubt” as required under People v. Jiminez, supra, 21 Cal.3d at page 608, 147 Cal.Rptr. 172, 580 P.2d 672. On the review of the entire record, however, we find that any error relating to the standard of proof has not resulted in a miscarriage of justice. It does not appear that a different verdict would otherwise have been probable. (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 43.)

IV

Appellant Sotelo contends that his confession was involuntary and therefore inadmissible even though the court may find that it was not the product of Young's illegal arrest and confession. Sergeant Keaton arrested Sotelo with a warrant on April 13, 1977, at the Los Angeles County Jail in Norwalk where Sotelo was being held on other charges. Keaton gave him his rights after they were installed in an interview room on the day of the arrest. Sotelo told Keaton that he did not want to talk then, but might do so later. Sotelo asked Keaton questions about his step-father. Keaton told him that he had spoken with the step-father and Sotelo's girl friend. Sotelo asked what the conversation had been about, but Keaton said he “couldn't discuss it until after we Mirandized and had an interview.” The two went by plane from Los Angeles to the Bay Area and arrived at the Marin County Sheriff's office on April 15th. Sotelo again questioned Keaton about the possible involvement of his step-father and girl friend and whether Young had “given him up.” Sometime during this period, Sotelo talked with his step-father by telephone; this conversation prompted some of the inquiries. Again, during the untaped interview in Marin, Keaton refused to answer the questions. Sotelo agreed to make a statement, and the tape recorder was switched on. Sotelo was given his rights and made a statement, the taped portion of which is summarized under the statement of facts, ante. Two days later Sotelo gave a penitent letter to Keaton for delivery to Galvin's parents.

At the hearing on the motions, Sotelo gave inconsistent testimony concerning the time that Keaton told him “Jesse had spilled the beans.” Sotelo testified that Keaton had told him that a contract was out on Sotelo and that he would bring no charges against his step-father or his girl friend. Keaton denied making any promises about Sotelo's step-father or girl friend or any statements about a contract out on Sotelo. Keaton did talk with Sotelo about these issues after the confession. Sotelo testified that he believed Keaton was not lying to him, that he was fair in his interrogation, and that he had made no threats and no “straight forward promise[s].”

Sotelo contends that his confession was involuntary because it was made to prevent charges being brought against his step-father and girl friend. Sotelo, admitted, however, that he know from the beginning that they were not involved in the murder and that Keaton didn't “have the power” to charge them. He also urges that confession was caused by knowledge of Young's “spill[ing] the beans.” It is possible that Young's arrest and subsequent confession were a contributing cause of Sotelo's confession. Since we have found that Young's arrest and confession were lawful, however, Sotelo's confession is not “fruit of the poisonous tree.” (See People v. Johnson (1969) 70 Cal.2d 541, 548, 75 Cal.Rptr. 401, 450 P.2d 865, cert. den. 395 U.S. 969, 89 S.Ct. 2120, 23 L.Ed.2d 758.)

As stated above for Young's confession, it is the duty of this court to examine the uncontradicted facts in order to determine independently whether the statements were the result of any form of compulsion or promise of reward. (People v. Jiminez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672; People v. Haydel (1974) 12 Cal.3d 190, 198, 115 Cal.Rptr. 394, 524 P.2d 866.) The court's discussion in People v. Steger (1976) 16 Cal.3d 539, 550, 128 Cal.Rptr. 161, 168, 546 P.2d 665, 672, is equally applicable to the case at bar and is dispositive: “A threat by police to arrest or punish a close relative, or a promise to free the relative in exchange for a confession, may render an admission invalid. [Citations.] However, where no express or implied promise or threat is made by the police, a suspect's belief that his cooperation will benefit a relative will not invalidate an admission.”

The court found that Sotelo's confession was voluntary and admissible: “Sotelo's Miranda rights were not violated; said statements did not result from any threat, promise, force, or misrepresentation․” Again, the standard of proof “beyond a reasonable doubt” is presumably lacking. A review of the entire record indicates that there is no reasonable probability “that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d at p. 254.)

V

Sotelo moved for discovery of the “arrest record and conviction record of any witness the District Attorney intends to call at trial, as well as the victim, Michael Brand Galvin.” On prosecution objection, the motion was modified to include only felony convictions and was so granted. Sotelo contends that the limitation was error. At the hearing on the motions, he argued that he needed the records of drug-related arrests to show that the witnesses were drug addicts. He further argued that “anybody that's got a long background when approached by the police department is going to make up a long story․ And I'd like to cross-examine those witnesses as to what their arrest record is, and so forth, because when they give the story to the police, they may have made something up to cover the fact that they were there to buy drugs or that they are drug dealers.” A related theory of Sotelo is that the witnesses present at the February 28th robbery might testify that they were not there to deal in drugs. He hoped to discover a record of arrest or conviction that would indicate their purpose was not innocent. The record contains abundant evidence that Galvin and his friends were involved in drugs. Appellant has shown no prejudice by the limitation on discovery. Neither arrests or misdemeanor convictions are admissible to impeach a witness. (§§ 787-788; People v. Sutton (1964) 231 Cal.App.2d 511, 514-515, 41 Cal.Rptr. 912.)

The only reason for proving that the witnesses are drug addicts is to impeach them by showing impaired ability to observe, recollect, or relate or by showing dishonesty. (People v. Bennett (1969) 276 Cal.App.2d 172, 175-176, 80 Cal.Rptr. 706.) The trend, however, is to view such evidence as inadmissible for that purpose, “‘unless followed by testimony tending to show that [the witness] was under the influence while testifying, or when the events to which he testified occurred, or that his mental faculties were actually impaired by the habit.”’ (People v. Smith (1970) 4 Cal.App.3d 403, 412, 84 Cal.Rptr. 412, 418; People v. Ortega (1969) 2 Cal.App.3d 884, 899, 83 Cal.Rptr. 260.)

Sotelo did not indicate at the motion hearing that the arrest records were to be used to show impaired ability to observe, recollect, or relate. He made no objection at the motion hearing or trial. The general rule is “that questions relating to the admissibility of evidence will not be reviewed on appeal absent a specific and timely objection at trial on the ground sought to be urged on appeal.” (People v. De Santiago (1969) 71 Cal.2d 18, 22, 76 Cal.Rptr. 809, 811, 453 P.2d 353, 355.)

The judgments of conviction are affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Evidence Code sections 1040-1042 were enacted in 1965 and superceded Code of Civil Procedure section 1881(5). Evidence Code section 915 was added in 1965.

2.  Evidence Code section 1042(c) modifies the Supreme Court's decision in Priestly v. Superior Court (1958) 50 Cal.2d 812, 330 P.2d 39.

3.  Unless otherwise indicated, all references are to the Evidence Code.

4.  Section 915(b) provides as follows: “When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) or under Section 1060 (trade secret) and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither he nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.”

5.  Section 1042(d) provides as follows: “When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. A reporter shall be present at the in camera hearing. Any transcription of the proceedings at the in camera hearing, as well as any physical evidence presented at the hearing, shall be ordered sealed by the court, and only a court may have access to its contents. The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”

6.  The Legislature's awareness of the need to protect the identity of a confidential informant and the statements made by the informant is indicated by the 1976 amendment to Government Code section 6254(f) which provides, in part: “[Exempt from disclosure are] Records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, and any state or local police agency, or any such investigatory or security files compiled by any other state or local police agency, … [the following was added in 1976] except that local police agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the persons involved in an incident, … and any person suffering bodily injury or property damage as the result of the incident caused by arson, burglary, fire, explosion, robbery, vandalism, or a crime of violence as defined by subdivision (b) of Section 13960, unless the disclosure would endanger the safety of a witness or other person involved in the investigation … or a related investigation; …” (Emphasis added.) See the California Public Records Act (Stats.1968, ch. 1473, § 39 as amended by Stats.1976, ch. 314, ¶ 1). In response to claims of privilege pursuant to the above section, the Supreme Court in Shepherd v. Superior Court (June 1976) 17 Cal.3d 107, 123, 130 Cal.Rptr. 257, 265, 266, 550 P.2d 161, 169, 170, stated that Section 1040 of the Evidence Code “‘represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.”’

DEAL,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

RACANELLI, P. J., and NEWSOM, J., concur.