YSAGUIRRE v. PEOPLE (1984)

This is a petition for extraordinary relief in which petitioner challenges respondent court's order denying a motion to dismiss an information charging him with possession of PCP for sale.  (Health and Saf. Code, § 11378.5.)   We issued an alternative writ to examine petitioner's contention that he was unlawfully committed because the magistrate curtailed his right to cross-examination.

The facts are these:  L.A.P.D. Officer Austin testified that he was assigned to a crime task force which was monitoring narcotics activity in the 1330 block of West 39th Street.   He had made in excess of 50 investigations and arrests at that location involving sales and possession for sale of PCP.   He had received information from “south bureau narcotics” that there were ongoing major sales of PCP at the location.

On June 15, 1983, Austin observed petitioner's codefendant—Sealy—walking eastbound on 39th Street.   Sealy spoke to petitioner who was standing in the vicinity of 1346 West 39th Street.   After a brief conversation, Sealy and petitioner walked about 20 feet to an alley.   They entered the alley, stopping just off the street.   After another short conversation, Sealy removed a brown paper bag from his right hand pocket.   He removed a small clear plastic baggie from the paper bag.   The plastic baggie contained 4 individually wrapped cylindrical tinfoil bindles, similar in shape to cigarettes.   Sealy handed the plastic baggie to petitioner, then the two of them returned to the street.   Sealy placed the brown paper bag under the wheel well of a Mercury Monarch parked on 39th Street.   Then he and petitioner positioned themselves a short distance from each other on 39th Street.

Austin observed an unidentified male walk up to petitioner, converse with him briefly, then hand petitioner an unknown amount of currency.   Petitioner removed one of the tinfoil bindles from the clear plastic baggie and handed it to the unknown male who then walked away.   After the man left, petitioner handed the currency to Sealy, who entered a residence at 1346 West 39th Street.   He stayed in the residence a very short time before returning to the street and resuming his position.

Austin concluded that a sale of PCP had taken place.   He contacted other officers in the area, described Sealy and petitioner, and directed that they be arrested.   Officers Starker and Moriarty responded to the scene.   As they approached, petitioner looked in their direction and dropped the clear plastic baggie with the remaining tinfoil bindles.   Moriarty detained petitioner, while Starker recovered the baggie.   Austin advised two other officers to detain Sealy and they did so.   Starker also retrieved the brown paper bag from the wheel well of the car.   He advised Austin that it contained PCP.   It was stipulated for purposes of the preliminary hearing that both the plastic baggie and the brown paper bag contained quantities of PCP.

Austin, who had qualified about 35 times as an expert on the subject, testified that in his opinion the PCP was held for purposes of sale.   He based his opinion on the location the parties were at, the manner in which the substance was packaged, the amount that was possessed, and his observation of what patently appeared to be a sale.

On cross-examination Austin was asked how long he had been watching the location before he observed petitioner.   He testified that petitioner was at the location when he commenced his observations and that Sealy arrived about 10 minutes later.   Austin was asked how far he was from petitioner and Sealy.   He said, “Approximately 50 feet.”   He was next asked where he was in relation to their location.   He replied, “Due to the fact that is an ongoing investigation and that persons and property would be placed in jeopardy, their safety would be placed in jeopardy, I refuse to answer that.”   The prosecutor then objected to the question on the basis of the safety of the “witnesses.” ¹

After a short discussion in which the magistrate pointed out that there was no statutory provision for confidentiality in this type of situation, the prosecutor offered to provide counsel with the address in writing, but not disclose it orally in open court.   Defense counsel was asked if this would be satisfactory.   He did not answer directly, but stated that he had been surprised by Austin's response.

The magistrate expressed doubt that disclosure of the address would endanger anybody.   The following discussion then took place between the magistrate and Austin:

“[AUSTIN]:  Well, it does, Your Honor, in the fact that, in the past at the same location I have had people who have cooperated with me at that place whose property has been damaged and who also have been threatened with bodily harm at that location, and where acts have been carried out of revenge, vengence, due to the fact that they were allowing us to use certain locations.

“THE COURT:  The problem with that is, if any individual was there with you, they became a percipient witness to the acts.

“Was there anybody with you at the observation post?

“[AUSTIN]:  No, Your Honor.

“THE COURT:  If you were required to identify the private property where that post was maintained, is it your experience that people and property involved there would be subjected to vengeful acts?

“[AUSTIN]:  Most definitely, Your Honor.

“THE COURT:  In that case, I will not require him to identify the location.”

Defense counsel objected to the limitation placed on cross-examination.   The magistrate suggested that counsel question the officer about his perspective without eliciting the precise address involved.   This inquiry, undertaken reluctantly, disclosed that the observations were made from a house, that Austin was situated some 50 feet from the defendants, that he had a clear and unobstructed view of their location, that he made his observations through binoculars, that he was in the downstairs portion of the house, that his observation post was elevated approximately 5 feet above petitioner's head, and that there was one other person present with him, an Officer Jackson, who was watching Austin's back and his surroundings.²  Austin disclosed that he had worked at that location previously and was still using it on an ongoing basis.

Cross-examination further disclosed that there was light traffic in the area, both pedestrian and vehicular, that there were approximately 20 people on the street in a one-block area, and maybe 5 to 10 people within 20 feet of where petitioner was standing.   Most of them were sitting on residential porches, a common practice in the neighborhood.   There were people seated on the porch at 1346 West 39th and at several adjacent houses who could see petitioner and Sealy.

Officer Starker also testified.   He corroborated the fact that he was directed to the location by a radio communication from Austin.   He stated that he arrested petitioner and that he retrieved the plastic baggie from the ground on 39th Street and the brown paper bag from the wheel well of the Mercury.   They both contained what appeared to him to be PCP.

At the conclusion of the evidentiary portion of the preliminary hearing, counsel moved to strike all of Austin's testimony because of the officer's refusal to disclose the location from which he made his observations.   Counsel for Sealy, in an argument adopted by counsel for petitioner, stated that the prosecutor's offer to disclose the information in writing was insufficient, because in order to accept the offer in good faith he would have to refrain from disclosing the information to his client and that would preclude his communicating with his client in a manner which would allow the “client to participate in presenting information that could impeach what the officer has to say.”

 The magistrate rejected this argument and held petitioner to answer.   A motion to dismiss (Pen.Code, § 995) was filed in respondent superior court.   Denial of that motion led to the filing of the within petition in which petitioner reiterates his claim that denial of his right to cross-examination voided the preliminary hearing.   The People argue that petitioner waived his right to more thorough cross-examination by rejecting the prosecutor's offer to provide defense counsel with the address in writing.³

 We start from the propositions that criminal defendants have the constitutional right to confront and cross-examine witnesses against them (Pointer v. Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923), and that the right to cross-examination at a preliminary hearing is guaranteed (Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304), propositions which the People do not contest.   Given these legal premises, a superficial analysis would incline us to grant petitioner the relief he seeks, since clearly he was not given the latitude he desired in cross-examining Austin.   A superficial analysis will not do, however, as there are legitimate interests at stake other than petitioner's which must be accommodated, if accommodation can be achieved without infringing petitioner's constitutional rights.   Careful analysis is therefore required to determine precisely what it is that petitioner is and is not entitled to.

 Guarding the safety of witnesses who cooperate with law enforcement officials is a proper concern of the courts.  (United States v. Palermo, (7th Cir.1969) 410 F.2d 468, 472;  United States v. Varelli, (7th Cir.1969) 407 F.2d 735, 750.)   There is even greater reason to show such concern where, as here, the issue is the protection of cooperative citizens who are not petitioner's accusers nor witnesses to his activities, and thus not subject to his constitutional right of confrontation.

The matter at issue at the preliminary hearing was Austin's credibility.   The identity of the householders who made their premises available to him and their motives for doing so, whether biased or not, were irrelevant.   All that was relevant was whether Austin was at the location, whether he could observe petitioner's activities, and whether he told the truth when he described petitioner's conduct.   Since the householders were not present when Austin claims to have been at the location, they could shed no light on the subject.

The address from which Austin made his observations is relevant and is essential to effective cross-examination to test Austin's claim that he was able to make his observations from the vantage point he claims to have used.   Mere disclosure of the address, however, absent a follow-up on-scene investigation of the physical layout of the premises could serve no legitimate purpose.   The responsibility for making such an investigation rested with defense counsel.   Disclosing the address or the householders' identities to petitioner could not have aided in any way in such an investigation and counsel therefore would have had no duty to make such a disclosure in the face of an uncontested claim that to do so would jeopardize the householders' safety.

The prosecutor's offer to supply counsel with the address in writing was the appropriate first step in a process that would have enabled petitioner's counsel to complete his cross-examination of Austin.   Presumably, counsel had not made an on-site investigation of the premises and thus the address would have been of extremely limited use to him at the preliminary hearing.   Had he taken the address, he would have had the option of continuing the hearing for the purpose of conducting such an investigation.  (Jennings v. Superior Court, supra, 66 Cal.2d 867, 875–876, 879–880, 59 Cal.Rptr. 440, 428 P.2d 304.)   By rejecting the offer of the address, however, counsel, deliberately or de facto, adopted a strategy designed to force the People to dismiss the charges against petitioner so as to avoid disclosing information that would jeopardize the householders' safety or compromise ongoing law enforcement activity.   The magistrate did not err in refusing to be forced down this totally unnecessary path of petitioner's choosing.   We conclude that petitioner's inability to conduct more thorough cross-examination was self-imposed and that he therefore was not unlawfully committed.

Since counsel's rejection of the offer of the address would not be binding beyond the preliminary hearing, we make the following observations for the guidance of counsel and the court in trial proceedings.   On-site investigation of the premises by counsel should enable him to cross-examine Austin as to his ability to make his observations by asking, for instance, what room he made them from and whether he made them from a window or a doorway.   Corroboration or refutation of Austin's testimony as to his vantage point can be sought from Jackson, the officer who accompanied him.   Corroboration or refutation of the accuracy of Austin's observations can be sought from the other eyewitnesses Austin described who happened to be present on the street.   Those who were seated on neighborhood porches were presumably residents of the immediate area whose identity could easily be ascertained by defense counsel without the People's assistance.⁴  Investigation sincerely undertaken for the legitimate purpose of testing Austin's credibility should enable petitioner to fully prepare any defense he may have to the pending charges.   By contrast, disclosure of the location or identities of citizens whose cooperation with law enforcement threatens their safety would serve a dubious purpose at best.

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

FOOTNOTES

1.   The reference was obviously to the householders on whose property Austin stationed himself.

2.   It is obvious from the context that Austin's earlier statement to the magistrate, in the portion of the transcript quoted above, that no one else was present referred to the householders or other civilians.

3.   In their initial opposition to the petition the People argued that the petition was untimely because not filed within 15 days of the denial of the Penal Code, section 995, motion.  (Pen.Code, § 999a.)   The 15 day proviso of Penal Code, section 999a, applies only to petitions which claim that the defendant was committed without probable cause.   Where, as here, the argument is that the defendant was not legally committed, the 15 day time limit does not apply (Guerin v. Superior Court (1969) 269 Cal.App.2d 80, 81, 75 Cal.Rptr. 923;  McGonagill v. Superior Court (1963) 214 Cal.App.2d 192, 195, 29 Cal.Rptr. 485), a fact we recognized when we issued the alternative writ.

4.   Austin testified that he did not take the names or addresses of any of the bystanders.

ASHBY, Associate Justice.

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