CORCHADO v. PEOPLE (1981)

Petitioner is charged with selling marijuana (Health & Saf. Code, § 11360) to two undercover officers on three separate occasions, December 6, 11 and 12, 1979.   The issue raised by this petition for writ of mandate is whether petitioner is entitled to discover the contents of a tape recording of a conversation which took place on December 1, 1979, between himself, a codefendant, a “confidential informant,” and Ronald De Pompa, one of the two officers to whom the charged sales were later made.   We issued the alternative writ herein at the direction of the Supreme Court.

Petitioner's discovery motion, which respondent initially granted, sought production of tapes of all conversations between himself and the undercover officers between December 1 and 13, 1979.   The People produced tapes of the December 6, 11 and 12 meetings out of which the pending charges arose.   Relying upon Evidence Code section 1041, the People declined to produce the tape of petitioner's December 1st meeting with De Pompa on the ground that it would disclose the identity of the confidential informant.   Respondent ruled that the informant's identity need not be disclosed.

Instead of restricting the People's right to produce evidence pursuant to Evidence Code section 1042, respondent listened to the December 1st tape in camera, then ruled that the tape was irrelevant, that there was nothing on it which indicated entrapment, and denied the motion to discover the December 1st tape.   The within petition followed.

Petitioner asserts that he has never moved to discover the informant's identity, that he in fact knows who the informant is.   He asserts that his motives for seeking the tape are to refresh his recollection as to his December 1st meeting with the officer, to enable his counsel to ascertain whether he, or the officer, might be impeached by anything on the tape, and to investigate the possibility of an entrapment defense.   The record refutes petitioner's contention that he has never sought disclosure of the informant's identity and, as will be discussed, it fails to establish that respondent erred in concluding that the tape was irrelevant.

The discovery motion was based upon an affidavit by petitioner's counsel and upon the preliminary hearing transcript.   Defense counsel's affidavit in support of the discovery motion, which was directed to production of all tapes from December 1st to December 13th, alleged, “Disclosure and inspection of these items by the defense is necessary so that your declarant can investigate and prepare a defense to the instant charges.   The items sought are material and relevant to the defense in that they may refresh the recollection of witnesses, assist in the cross-examination of witness, or provide affirmative evidence exonerating the defendant.”

The relevance of the December 6, 11 and 12, 1979, tapes is obvious and the quoted portion of counsel's affidavit was sufficient to compel their production.   The relevance of the December 1st tape is not self-evident, and the general allegations of counsel's affidavit suggest no theory which would explain its relevance.

The transcript of the preliminary hearing reveals that the People introduced no evidence at all about the December 1st meeting.   Defendant's counsel sought to question De Pompa about any contacts he had had with petitioner prior to December 6, 1979, the date of the first charged sale.   The officer declined to answer on the ground that doing so might reveal his informant.   The prosecutor objected to the question on the ground that it was irrelevant.   Defense counsel replied, “There is such a thing as entrapment.   The defense is stopped from even inquiring into the area of entrapment․”  Counsel moved to strike all of De Pompa's testimony.

Nothing in De Pompa's direct testimony had in any way suggested the possibility of an entrapment defense.   The magistrate inquired, “What is your theory with respect to entrapment?”   Counsel replied, “․ There is an informant involved in this.   If this was set up before, for these officers to go through—I believe that is an appropriate entrapment.   If we do not even know how many times he was there, who he was with, what was said at that time.   The informant is a percipient witness to that.”

The court asked, “The informant is a percipient witness to what?”   Counsel responded, “The previous times that he had been to that apartment.   I mean, this is like starting in the middle of a case․  I do believe that this officer, along with some other people;  one, two, whatever, had been to that apartment premise numerous times, that led up to this day, and I think that we should know the activity before this day;  if we could bring out an entrapment defense”.

When asked by the magistrate for an offer of proof with respect to entrapment, counsel stated, “․ I do believe that there were at least four prior occasions that the police officers, or someone else along with the police officers, came to that address.   It is not Mr. Corchado's address.   I believe that Mr. Corchado was not present on other occasions when they came there and Mr. Corchado really did not have anything to do with what [sic ] the police officers and the other person that were urging on the people that live in that apartment at that time.   I do believe there is an entrapment defense.”

Petitioner's counsel then moved for disclosure of the identity of the informant.   Advised that petitioner had the burden of establishing the materiality of the informant, his counsel called De Pompa as a witness.   The officer testified that he had been to the apartment in question only once prior to December 6, 1979.   That was on December 1, 1979.   Petitioner, his codefendant Casey and the informant were present on December 1st.   A ten dollar purchase of marijuana took place.   Nothing in this testimony provided a basis for a claim of entrapment.   The magistrate denied the motion to disclose the informant's identity.

Petitioner contends that at the hearing in respondent court on his discovery motion De Pompa admitted that petitioner and the informant knew each other by name on December 1st and that nothing on the December 1st tape would disclose the informant's current identity or whereabouts.   The conclusion petitioner draws from this is that protection of the informant's identity was a false issue.   It was not mandatory for respondent to reach that conclusion in light of petitioner's motion to disclose the informant's identity at the preliminary hearing and De Pompa's testimony, both at the preliminary hearing and at the hearing in respondent court, that the tape would disclose the informant's identity.

 The crux of this case, however, as respondent recognized, is not the informant's identity, but the fact that petitioner has failed to demonstrate the relevance of the tape.   A criminal defendant is entitled to discover statements of witnesses which relate to matters covered in their testimony.  (People v. Estrada, 54 Cal.2d 713, 716, 7 Cal.Rptr. 897, 355 P.2d 641;  Funk v. Superior Court, 52 Cal.2d 423, 424, 340 P.2d 593.)   As noted, at the preliminary hearing the People did not question De Pompa about his December 1st meeting with petitioner and there is no indication that they have any intention of introducing any such evidence at trial.¹

The only theory which petitioner has suggested to demonstrate the relevance of the tape is the possibility of an entrapment defense;  but counsel's effort at the preliminary hearing to articulate such a theory amounted to sheer speculation and much of that about persons other than petitioner.   The most that can be said in support of petitioner's position is that there was no entrapment on December 6, 11, 12, so if entrapment did occur, it must have happened on December 1st, the occasion of De Pompa's first meeting with petitioner.   That is not the type of hypothesizing that justifies discovery.

There were four participants in the December 1st meeting.   Counsel has made no showing that he has interviewed any or all of them or that any of them were unavailable.   He has made no showing that their recollections were faulty or that they in any way contradicted each other.   He has made no declaration under oath that his investigations lead him to conclude that a viable entrapment defense exists and that the December 1st tape could substantiate it.   Petitioner has made no declaration that he was entrapped.  (People v. Navarro, 84 Cal.App.3d 355, 359, 146 Cal.Rptr. 672.)

 A criminal defendant must state a better cause for inspection than a “mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.”  (People v. Cooper, 53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 349 P.2d 964;  Joe Z. v. Superior Court, 3 Cal.3d 797, 804, 91 Cal.Rptr. 594, 478 P.2d 26.)   Respondent was justified in concluding that petitioner had failed to establish the relevance of the tape and that the identity of the informant should not be jeopardized in furtherance a fishing expedition.²

The alternative writ is discharged.   The peremptory writ is denied.

FOOTNOTES

1.   Should the People introduce any evidence of the December 1st meeting at trial, petitioner may renew his motion to discover the tape of that conversation during the trial.  (Funk v. Superior Court, 52 Cal.2d 423, 424, 340 P.2d 593.)

2.   Petitioner asserts that respondent erred in listening to the tape in camera as the People had not requested such a hearing.   (Evid.Code, § 1042.)   Petitioner, having failed to make even a prima facie showing that the tape was relevant, got more than he was entitled to when respondent independently listened to the tape.   Respondent's generosity did not confer on petitioner a right to the tape which petitioner had not established.

HASTINGS, Associate Justice.

STEPHENS, Acting P. J., and ASHBY, J., concur.