Opinion
Cr. 32815
10-14-1980
Page 498 168 Cal.Rptr. 498 Ordered Not Published (Rule 976, Cal. Rules of Ct.) 111 Cal.App.3d 121 The PEOPLE, Plaintiff and Respondent, v. Michael COWANS, Defendant and Appellant. Court of Appeal, Second District, Division 1, California
168 Cal.Rptr. 498
Ordered Not Published
(Rule 976, Cal. Rules of Ct.)
111 Cal.App.3d 121The PEOPLE, Plaintiff and Respondent,
v.
Michael COWANS, Defendant and Appellant.
Cr. 32815.
Court of Appeal, Second District, Division 1, California.
Oct. 14, 1980.
As Modified Oct. 29, 1980.
Hearing Denied Dec. 17, 1980.
Quin Denvir, State Public Defender and Louis N. Hiken, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.
Anita Susan Brenner, Los Angeles, and California Attys., for Criminal Justice as amicus curiae in support of defendant and appellant.
I
In an amended information filed by the District Attorney's Office of Los Angeles County, appellant and James Harold Holiday, were charged with two counts of murder in violation of section 187 of the Penal Code. In count I, the victim alleged was Mathew Thompson; in count II, the victim alleged was Winston Dennis Dowling.
In counts III and IV, appellant and Holiday were charged with the crime of assault with a deadly weapon with intent to commit murder in violation of section 217 of the Penal Code. The use allegation pursuant to section 12022.5 of the Penal Code was alleged as to both counts. The victim in count III was Anthony Smith and the victim in count IV was Jewel Singleton.
In counts V and VI, appellant and Holiday were charged with the crime of robbery; the victim in count V being Anthony Smith and the victim in count VI being Winston Dowling. The three prior felony convictions were alleged as to appellant. Appellant admitted the prior felony convictions outside the presence of the jury.
On December 30, 1975, in Department 126 of the Los Angeles Superior Court, appellant pleaded not guilty to all charges; and on February 20, 1976, the defense commenced discovery proceedings which continued for over one year until completion on June 22, 1977. During this period of time more than 28 in camera hearings concerning various assertions of privilege were heard by the trial court, and the record in this case consists of thousands of pages.
Toward the end of pretrial proceedings, on motion of the People pursuant to section 1385 of the Penal Code, the case was dismissed against codefendant James Harold Holiday.
After almost three months of trial, the jury, having deliberated six days, returned a verdict of guilty as to all charges against the appellant. The allegations of use of a firearm and armed with a firearm were found true as to counts III and VI.
The court ordered appellant committed to state prison for life as to counts I and II, and for the term prescribed by law as to counts III, V and VI. Sentences as to counts I and II were ordered to run concurrently with time owing on prior convictions. Sentences as to counts III, IV, V, and VI were ordered to run concurrently with sentences on counts I and II, and stayed, the stay to become permanent on completion of those counts. Appellant was given credit for 759 days pre-conviction custody.
This appeal is from that judgment of November 1, 1977.
II
On November 1, 1975, Anthony Smith and Jewel Singleton, both heroin addicts, resided at 1454 West 59th Street, in the City of Los Angeles. On that date, at approximately one o'clock in the morning, Smith and Singleton were sitting in their living room with two of their friends, Mathew Thompson and Dennis Dowling. They were eating chicken and Smith had just started to roll a marijuana cigarette when the front door of the house was kicked in by a number of men. The four tried to escape out of the kitchen door, which was locked, but were told to stop or they would be shot. They were directed into the single bedroom of the home.
As they went from the poorly lit kitchen to the living room into the bedroom, both Smith and Singleton recognized appellant and observed him to be armed with a handgun. Smith and Singleton gave varying accounts of the number of assailants (ranging from two to four persons), the time of the intrusion, and other events.
Once inside the bedroom, appellant asked where "Faye" was, where his "shit" was, making reference to his heroin and a handgun. He tied up and gagged the four victims and made them lie on the bedroom floor. He searched them and took money from Smith and Dowling. Appellant asked Singleton who "her man" was, and when she indicated Anthony Smith, appellant walked over to Smith, within Singleton's line of vision, stabbed him in the neck and back, and then shot him in the head.
An unidentified voice from the living room said "hurry up, let's get out of here." Appellant said "[d]on't touch anything." Appellant then walked over and shot Dennis Dowling in the head. Singleton, who had been shoved up against the wall, was made to lie down on the floor; then appellant shot her in the head. Appellant noticed Smith move, and the latter was shot in the head again. At some point Thompson was stabbed and shot, but neither Smith nor Singleton specified when or by whom. David Butler of the Los Angeles Police Department Scientific Investigation Division testified that the four victims were shot with the same gun.
Dowling and Thompson died from gunshot wounds in the head; Singleton and Smith, because of faulty ammunition and poor condition of the handgun used, survived the attack. After the gunmen had left and after their having regained consciousness, Singleton and Smith climbed out of the kitchen window and went down the block to Smith's brother's house from which the police were called.
Officer Les Wyeth of the Los Angeles Police Department arrived at the house and spoke with the victims. He was told by Singleton that one of the gunmen was "Michael" who lived near 49th and Vernon and who drove a white-over-red Cadillac.
Smith and Singleton were transported to the hospital where they were interviewed by the police. As a result of the interview appellant's house at 11213 South Harvard Boulevard in Los Angeles was searched. Nine balloons, a blender, and .45, .38, .30, .32, 25, and .22 caliber bullets were seized during the search.
Jewel Singleton had first met appellant approximately May 1, 1975, when she went with her friend, Calvin Lewis, to purchase heroin from him. Between June and November of 1975, she bought heroin from him 10 to 15 times.
She would go to an apartment in an alley on Vernon Street between Arlington and Van Ness. She would give appellant $12.50, and he would give her a balloon of heroin. If he was not at the apartment, she would make the same transaction with Connie Buchanan, the woman who lived in and allegedly rented the apartment on Vernon.
While Smith had never purchased heroin directly from appellant, he did accompany Singleton to the Vernon Street address on several occasions while she made the buy. One time, he saw Singleton give appellant a black and white television set, one that Smith had gotten from his brother, in exchange for some heroin. Another time, appellant refused to have any further contact with Singleton or her friend, Faye, but changed his mind after talking with Smith.
On the morning of October 31, Jewel awoke between 8 or 9 a. m. She and her two friends, Shirley and Faye, hitchhiked to the Vernon Street area to purchase heroin. They looked for Jewel's usual source of heroin, "Jimmy," but he could not be located. Jewel knocked on the door in the alley apartment at 2201 West Vernon. A caucasian woman whom Jewel had never seen answered. Neither appellant nor Connie was there. Faye and Shirley went into the apartment while Jewel remained outside. After a few moments Faye and Shirley exited the apartment and Faye confessed to Jewel that she had taken a gun and some heroin from the apartment. The three women then returned to Jewel's house and "fixed" the heroin that they had acquired. This was at approximately 11 a. m. During pretrial hearings, Jewel indicated that it was on account of this theft, and the prior theft of a black and white television set, that appellant and several other men murdered Thompson and Dowling and tried to murder her and Smith that evening.
After "fixing," the women went to "Louise's" house where they were met by friends, Diane and Janet Sneed. Anthony was given the gun and asked to sell it. Jewel and the Sneed sisters then returned to Vernon Street to purchase some more heroin. They saw Calvin Lewis on the street, and he warned them to stay off the street. They visited the home of a cousin of the Sneed's and then went to a bar, "The Total Experience," where they met Anthony. Jewel returned home and Shirley and Faye were there. Shirley and Faye left at about 7 p. m., and Jewel remained at home for the rest of the evening.
Anthony Smith had a three-to-four-bag-a-week heroin habit in October-November of 1975. After waking at noon on October 31, he shot heroin with Jewel, Faye, and Shirley, who had just returned from Vernon Street.
He then went with his friend Warren Smith to work on his (Anthony's) automobile. From there they went to "The Total Experience." At about 4 p. m., they went up the street and met Jewel and her friends in front of Louise's house. Anthony took the .45 and returned to the bar where he met Thompson. They went to a pawn shop on Pico, and Thompson exchanged the gun for some heroin. They returned home at about 6:30 or 7 p. m. and fixed some more heroin. Anthony then went out for the evening and did not return until 12 or 12:30 a. m., accompanied by Dowling and Thompson. They woke Jewel at that time and were eating some chicken when the assailants kicked in the door and made entry.
Appellant contends, on October 31, he spent the morning at his home on Pickford Street in Los Angeles where he lived with his friend Pamela. During the afternoon he went to a body and fender shop near Arlington and Vernon. He returned home and remained there for the rest of the day. At 9 that evening, he went to a party in Compton.
He spoke on the telephone with his friend Bashima, who wanted to accompany appellant to a party being held in honor of Holiday at Lovenia Dave's house. Before going to the party, appellant and Bashima drove over to Vernon and Arlington to Ty Ginn's place in order to get some money from Bashima's ex-husband, Treetop. There was a gambling game going on at Ginn's, but Treetop was not there. This was at about one o'clock in the morning.
Appellant and Bashima drove to Doc's party and stayed until 3 a. m.; approximately 10 to 15 people attended the party. Appellant dropped Bashima off at her sister's house and went home for the evening. Shortly thereafter Nsombi (Brenda Walker) arrived at appellant's house and told him that Doc had been arrested for murder. Appellant, Pam and Nsombi drove to his brother Fred's house at about 5 a. m. Appellant testified that he was aware that police cars were surveilling him at that time. During the next day they heard news reports about the murders, and appellant discovered that he was being sought as a suspect. Fearing that he would be shot by the police, appellant armed himself with a .45 caliber pistol, and remained at his brother's house.
That evening (November 1) they left Fred's house and went to Roy Levine's. Appellant and Roy Levine were arrested upon leaving that house at approximately 11 p. m. Subsequently, the appellant was tried by a jury and convicted on all counts. This appeal followed.
III
Appellant raises the following issues on appeal, and makes the following contentions:
1. Appellant's motion to dismiss should have been granted because "crucial items of material evidence" were suppressed by the prosecution, which act was a denial to appellant of due process.
2. The destruction by the police of material evidence favorable to the defendant was neither negligent nor in bad faith and required that the trial court impose appropriate sanctions. This the court did not do and thereby committed reversible error.
3. The jury instruction given by the court as a sanction was inadequate as a sanction and was erroneous and prejudicial because (a) the instruction delegated to the jury the legal determination of whether sanctions were appropriate and (b) the specific wording of the instruction was given to defense counsel after all the evidence was presented, thereby precluding the defense from presenting a full case to the jury on the question of why, the motive therefor, the evidence might have been destroyed.
4. The court's denial of appellant's motion to compel revelation of the contents of surveillance officers' logs and the right to cross examine the surveilling officers constituted prejudicial error because this information might have revealed appellant's guilt or innocence.
5. The court's restrictions imposed on the scope of cross-examination of the October 31st afternoon surveillance team constituted an abuse of discretion and denied appellant due process.
6. The court committed reversible error by refusing, under the authority of Evidence Code section 1040(b)(2), to order the disclosure of the identities of the surveilling officers because:
(a) The information sought was not "official information" within the meaning of Evidence Code section 1040;
(b) The prosecution did not meet the requirements of Evidence Code section 1040(b)(2) to establish that there was a necessity for preserving the confidentiality of the information which outweighed the necessity of disclosure; and,
(c) The court erroneously interpreted the requirements of Evidence Code section 1040.
7. (a) The court erroneous left to the jury a question of law, to wit, whether the privilege asserted under section 1040 of the Evidence Code was properly asserted. This was reversible error.
(b) The court erroneously requested the jury to decide the above-stated legal issue without providing the jury with the essential information required to make such an evaluation, and thus committed reversible error.
(c) The jury instruction given constituted an inadequate sanction and thus deprived appellant of due process of law.
8. The court erred by (a) failing to inquire into the nature of the information possessed by the FBI, and erred (b) in sustaining the FBI's refusal to divulge information as reasonable discretion required this disclosure. Moreover, the court erred in (c) refusing to allow appellant to inquire into the relationship of the FBI with local police agencies regarding surveillance of appellant which had great likelihood of revealing information materially relevant to appellant's guilt or innocence.
9. The FBI, by failing to strictly adhere to the limitations of the United States Attorney General's telegrams, waived its right to the privilege to refuse disclosure of official information.
10. Appellant's Sixth amendment rights to compulsory process to obtain witnesses was violated in the following particulars:
(a) By the court's granting of a motion to quash subpoenas issued for the purpose of discovering the source of published news, withheld from appellant, and material to his defense.
(b) The appellant's right to a fair trial outweighs the privilege of Evidence Code section 1070 and failure to require the newsmen subpoenaed by appellant to comply with the court's order was reversible error.
(c) The court's failure to hold an in camera hearing to determine the relevance and materiality of information possessed by Cook and Rosenzweig, the newsmen involved, constituted reversible error.
11. Appellant's right to a trial free from the use of tainted evidence, under the Fourth Amendment, the federal law Title 18 U.S.C.A., Section 3504(a)(1), and under California laws of discovery, was violated in the following particulars:
(a) The court denied a motion for further discovery regarding illegal electronic surveillance, which denial constitutes reversible error.
(b) The prosecution failed to meet its burden of proof in specifying, in detail, the inquiries made which led to the conclusion that no illegal electronic surveillance exists; and the prosecution's blanket response, without said detail, which was accepted by the court was reversible error.
IV
Appellant argues that the discovery was inadequate in this case. His contentions concern alleged destruction of exculpatory evidence; sustaining the privilege asserted as to divulging the identities of certain sheriff's deputies; the trial court sustained the refusal of the FBI to divulge certain information; the quashing of subpoenas relative to the source of published news reports; and the adequacy of the denial of the prosecution relative to illegal electronics surveillance. These contentions are without merit.
The record before this court indicates the discovery allowed in this case was more than adequate. The record further reflects a myriad of witnesses, primarily from law enforcement, interspersed between motions to suppress, were called to testify under oath relative to discovery matter, in effect, giving depositions in open court. This is not required under our existing law. The California Supreme Court in the case of People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 526, 143 Cal.Rptr. 609, 610, 574 P.2d 425, 426 states: "In this case we inquire whether courts may permit a defendant in a criminal case to depose prosecution witnesses prior to trial, despite the defendant's failure to establish, as required by statute (Pen.Code, § 1335 et seq.), that the witnesses are about to leave the state or are unlikely to attend the trial. We conclude that although courts possess broad inherent powers to provide for discovery in criminal cases, they should decline to exercise those powers in a manner which would ignore present statutory limitations or which would create a different, more extensive deposition procedure than that presently prescribed by statute."
" 'A defendant's motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.] Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. [Citations.] [p] In accordance with these principles, it has long been held that civil discovery procedure has no relevance to criminal prosecutions.... [p] Therefore, in contrast to the formal requirements for civil discovery, an accused in a criminal prosecution may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. The requisite showing may be satisfied by general allegations which establish some cause for discovery other than "a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime." ' " (Robinson v. Superior Court (1978),76 Cal.App.3d 968, 143 Cal.Rptr. 328, 330.)
Apparently, one aspect of the discovery in this case was an attempt to show that various law enforcement groups had been surveilling appellant on the night of the murders and that they could support his alibi defense but were failing to do so, thus in effect attempting to assure his conviction.
The defense did learn, by way of pretrial depositions, of a surveillance by the Los Angeles Police Department from October 10 through October 26, concerning an alleged plot to kidnap Governor Brown's sister and discovered that appellant and his original codefendant, James "Doc" Holiday, had not been surveilled relative to this activity. The defense further learned that although the Los Angeles Sheriff's Office had been surveilling the Black Guerrilla Family on October 31, from 3 p. m. to 11 or 12 p. m., they had not observed appellant or Holiday that evening. There was no other surveillance by any law enforcement agencies, including the FBI, Department of Corrections or the Probation Department.
V
Appellant urges that certain evidence was "destroyed" in the hands of the prosecution and that under People v. Hitch (1974),12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, there should have been a dismissal of the charges in this case. These items consisted of a taped conversation with the witness, Anthony Smith, on November 12, 1975, at which time the tape recorder malfunctioned and the tape was blank; tape recordings of police activities on the morning of November 1, 1975; and the sheriff's log for the evening of October 31, 1975.
The good faith unintentional destruction by the prosecutor, or police, of evidence favorable to a defendant on a crucial issue requires the trial court to impose a sanction appropriate to preserving the defendant's right to a fair trial absent proof that the governmental agencies involved have established, enforced, and attempted in good faith to adhere to rigorous and systematic procedures to preserve the missing evidence wherein this doctrine would not apply. (People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361.)
The burden of preservation applies to physical evidence relevant to the determination of preliminary facts requisite to the admissibility of critically incriminating evidence. (People v. Swearingen (1978),84 Cal.App.3d 570, 148 Cal.Rptr. 755.)
The appellant may, in the alternative, exploit at his trial the fact the police prevented him from procuring possible evidence tending to establish his innocence. Evidence Code section 413 provides: "In determining what inference to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party's failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case."
As set forth in the case of People v. Perez (1978),83 Cal.App.3d 718, 148 Cal.Rptr. 90, and Kolnick v. Board of Medical Quality Assur. (1980),101 Cal.App.3d 80, 161 Cal.Rptr. 289, we find the Hitch doctrine does not apply to the failure of a tape recorder device to work. The record reflects the blank tape was made available to the defense, even though not required as per People v. Perez, supra ; indeed, written notes of the November 12, 1975 interview were furnished to the defense, along with other taped interviews with Anthony Smith.
Regarding the missing sheriff's log of October 31, 1975, normally, sheriff's logs are prepared relative to major facts concerning a surveillance, but none were found to exist for the evening of October 31 of the surveilling officers who surveilled from 3 p. m. through 11 p. m. Sergeant Patrick, who led the surveilling team that evening, did not recall writing a report, although a report would have been written by standard procedures. Respondent argues, once again, that Hitch does not apply. We disagree; Hitch does apply in that surveillance logs are not the normal course of business of the Office of the Sheriff of Los Angeles County, but are utilized only in certain specific instances and are relevant in the instant case. The record would reflect a genuine controversy exists as to whether or not a log had ever been prepared on the evening of October 31. However, the trial court found one had been prepared.
The Los Angeles Police Department had three tape recording machines of tapes for the morning of November 1, 1975. Machine number 1 taped calls going from one police car to another police car. Tape recorder number 2 has all incoming calls from the public to the police. Last, tape recorder number 3 was a machine that took communications from the communications center to the police cars and back. Ten minutes of the tape from machine number 3 has been recorded and provided for the defense, all other tapes had inadvertently been erased by the Los Angeles Police Department. We find it was a good faith unintentional destruction but certainly the guidelines of the Hitch case were not complied with as to established, enforced, vigorous and systematic procedure to preserve the missing evidence, which if complied with, would remove it from the Hitch doctrine. The subsequent practice of marking and placing such tapes under lock and key would be acceptable, but this did not occur in our instant case.
Having determined the Hitch doctrine did apply in two instances, we must next concern ourselves with the sanctions to be imposed. We concur with the position of the trial court in allowing the defense to exploit the fact that the evidence had been destroyed, the record reflecting vigorous argument by appellant's counsel on this point, with instructions that the jury may consider the destruction of the evidence in their deliberations. (Brown v. Municipal Court (1978),86 Cal.App.3d 357, 150 Cal.Rptr. 216; People v. Zamora (1980),28 Cal.3d 88, 167 Cal.Rptr. 573, 615 P.2d 1361; People v. Harris (1976),62 Cal.App.3d 859, 133 Cal.Rptr. 352; Evid.Code, § 413.)
We find the specific instructions given by the trial court to the jury are acceptable and proper. The instructions were as follows:
"You have heard testimony that three things that would normally be available for your inspection during this trial are not available for your inspection. These are:
"(1) The tapes of the police calls of November 1, 1975, referred to in the testimony of Officer Saminego;
"(2) The tape of the interview between Anthony Smith and Sergeants Freia and Stachowski on November 12, 1975;
"(3) The taped log (or handwritten notes preparatory to a taped log) of the sheriff's surveillance on the afternoon and evening shift of October 31, 1975.
"The question of what happened in those three instances is entirely a question for you. I express no opinion on those subjects, and do not, by this instruction, by any other instruction, or by anything I may have said or done during this trial intend to suggest to you what you should conclude about those subjects. But I have a duty to tell you what the law is;
"(1) If you conclude that any one of those things is unavailable for your inspection due to incompetence, negligence, laziness, failure to follow established police procedures, accident, pressure of other duties or any human factor other than a deliberate design to falsely convict Michael Cowans, you will regard the unavailability of that thing as another fact which you are to consider together with all the other evidence you have heard and seen during this trial in making your decision whether he is guilty or not guilty of the crimes charged against him.
"(2) If, however, you conclude that any law enforcement officer either destroyed or failed to preserve any one of those things in a deliberate design to falsely convict Michael Cowans, you have a duty to acquit him of all the crimes charged against him.
"(3) In deciding this question, as well as every other one which has been submitted to you, you will follow the other instructions I have given to you, particularly those relating to the credibility of witnesses."
Appellant strongly urges that the trial court abrogated its function and delegated a question of law to the jury relative to the absence of the items. We do not agree with this contention. It is abundantly clear, from the record, the trial court expressly ruled and refused to dismiss the charges on grounds of the absence of the evidence, thereby impliedly finding that the absence of said evidence was not intentional or malicious. Indeed, we find the sanctions imposed, by way of the above cited instructions to the jury and allowing appellant's counsel to exploit the absence of the evidence in his argument to the jury were appropriate and proper to assure appellant a fair trial.
VI
Appellant's next contention is that upon sustaining the privilege asserted at trial against divulging the identities of sheriff's deputies, the trial court committed prejudicial error in failing to impose appropriate sanctions and in erroneously instructing the jury. This contention is without merit.
The record reflects, on the evening of October 31, 1975, Sergeant Patrick and three other surveilling Los Angeles deputy sheriffs, who were not named, were attempting to surveil the Black Guerrilla Family, primarily Holiday. Surveillance began at approximately 3:00 in the afternoon and ended somewhere between 11:30 and 12:00 p. m. The murders took place at approximately 1:00 in the morning on November 1, 1975, and it was this surveillance in which there was an absent log. Of the four surveilling officers, only the leader of the surveillance, Sergeant Patrick's name was divulged. The defense attempted to obtain the identities of the three other surveilling deputies, but were blocked in their attempts by the assertion of privilege under Evidence Code sections 1040 and 1042. The claim of privilege was sustained after an in camera hearing wherein the court considered the safety of the deputies and their families.
The trial court, however, did order a copy of the entire sheriff's log for the month of October 1975, with only the names of the surveilling deputies and their badge numbers deleted, to be given to the defense. Further, in a closed courtroom the trial judge allowed the three deputy sheriffs to be examined, albeit anonymously, relative to their observations of the October 31, 1975, surveillance. This was in fact done, and all three witnesses testified that they had not seen appellant or Holiday on the evening of October 31, 1975. Indeed, the witnesses testified they had not seen appellant during the entire month of October 1975.
We find the trial court did more than required by law to insure a fair trial to appellant; at most, all that the trial court was required to do was to have the three surveilling deputies testify in an in camera hearing to determine if their testimony would be material on the issue of guilt or innocence. (People v. Borunda (1974),11 Cal.3d 523, 113 Cal.Rptr. 825, 522 P.2d 1; Price v. Superior Court (1970),1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721.) The defense objected to an in camera hearing on this point, just as they refused to call these three witnesses to the stand in front of the jury, anonymously, in a semi-closed court for the safety of the deputies. The courtroom would not be opened to the general public but it would be open to court reporters, attorneys and other defendants who had legitimate business with the court.
Appellant further urges that the trial court did not give a proper sanction relative to the upholding of the privilege under Evidence Code section 1040. We disagree. An examination of the record indicates the sanction imposed was more than adequate. The trial court was not suppressing the testimony of the three witnesses but rather only the identities of the three surveilling deputies which was official information of the sheriff's department. In addition, the pretrial hearings established their testimony was not relevant on the issue of guilt or innocence, consequently, we find an adequate sanction should only have been related to the failure to divulge the names of the deputies and not the failure to call them to testify.
We approve of the following instruction, given by the trial court as a sanction, to wit:
"You have heard testimony by parol [sic] agent Conway, Sergeant Patrick and Lieutenant Antonoff. Conway, Patrick and Antonoff refused to name the sheriff's deputies who participated with Patrick in the sheriff's surveillance on the afternoon and evening shift of October 31, 1975, and who participated in the surveillance of November 1st.
"The question where Michael Cowans was on October 31st and November 1st, 1975, is entirely a question for you. I express no opinion on that subject, and do not, by this instruction, by any other instruction, or by anything I may have said or done during this trial intend to suggest to you what you should conclude about that subject. But I have a duty to tell you what the law is:
"(1) If you conclude that the refusal of Conway, Patrick and Antonoff is based solely and exclusively upon the reasons stated by Patrick, you will regard his refusal as another fact which you are to consider together with all the other evidence you have heard and seen during this trial in making your decision whether Michael Cowans is guilty or not guilty of the crimes charged against him.
"(2) If, however, you conclude that the refusal of Conway, Patrick and Antonoff is based wholly or even in part upon a deliberate design to falsely convict Michael Cowans, you have a duty to acquit him of all the crimes charged against him.
"(3) In deciding this question, as well as every other one which has been submitted to you, you will follow the other instructions I have given to you, particularly those relating to the credibility of witnesses."
We further find that the trial court had ruled on the issues of law by refusing to instruct the jury to acquit. There was no abrogation of the trial court's duty relative to making rulings of law, as contended by the appellant, regarding the assertion of the privilege and the jury's function was to apply the sanction which the court had imposed by means of the foregoing jury instruction. In light of the limited assertion of privilege in this instance, we find the sanction imposed was more than adequate to insure the appellant a fair trial.
VII
Appellant contends that the trial court erred relative to the Federal Government's claim of privilege and refusal to answer regarding their contacts and relationship with other law enforcement agencies as it related to this case. Further, appellant argues that when agent Heaton of the Federal Bureau of Investigation testified beyond the scope of his instructions from the United States Attorney General Edward H. Levi, this constituted a waiver of the privilege concerning their contacts and relations with other law enforcement agencies. We find these contentions are without merit.
The law is well settled, the trial court did not have the jurisdiction to order agent Heaton to testify beyond the scope allowed him by the United States Attorney General. (People v. Parham (1963),60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001.) The court in Parham indicates Order No. 3229 of the Attorney General of the United States was valid and has the force of federal law.
Furthermore, the law is equally clear, that sanctions cannot be imposed by reason of the assertion of said privilege by the Federal Government, as disclosed by the record in our instant case, since the privilege would be absolute and not conditional. (Saulter v. Municipal Court (1977),75 Cal.App.3d 231, 142 Cal.Rptr. 266.)
Regarding the waiver contention, the record reflects the majority of questions which were asked and answered, which would appear to exceed the scope of Agent Heaton's authority from the United States Attorney General, were asked by the defense rather than the prosecution. The prosecutor expanded on these areas on redirect examination, but upon analyzing the entire record, in this area, we find no waiver on the part of the federal government, indeed, Agent Heaton stayed within the confines of the Attorney General's instruction.
VIII
Appellant contends the trial court erred in quashing subpoenas in order to allow the defense to find out from the press who the sources were relative to two stories, one published in the Los Angeles Times on November 11, 1975, and one published in the San Francisco Examiner on November 3, 10 and 11, pertaining to a plot by the Black Guerrilla Family to kidnap Governor Brown's sister. Further, appellant contends that an in camera hearing should have been held by the trial court to ascertain the relevance and materiality of information possessed by reporters Cook and Rosenzwieg, authors of the aforementioned news items, before the subpoenas were ordered quashed. We find no validity to the first contention, but feel that the second contention has merit. An in camera hearing should have been held because this would be a minimum legal requirement under the facts of our instant case.
The privilege in question is found in Evidence Code section 1070.
The underlying social policy regarding a newsman's privilege against source disclosure, is that of maintaining a free flow of information to the public by enabling a reporter to assure an otherwise reluctant supplier of information that his identity will not be made public if he desires anonymity, without such assurances, news sources would dry up and free flow of information would be drastically impeded. (Hammarley v. Superior Court (1979),89 Cal.App.3d 388, 153 Cal.Rptr. 608; Rosato v. Superior Court (1975),51 Cal.App.3d 191, 124 Cal.Rptr. 427.)
Faced with a claim of privilege, the burden is on the party seeking to avoid the privilege competently to demonstrate not only that the evidence sought is relevant and necessary to his case, but that it is not available from a source less intrusive upon the privilege. Moreover, as with any attempt to discover evidence subject to a claim of privilege, a defendant must show a reasonable possibility that the evidence sought might result in his exoneration. (People v. Borunda (1974),11 Cal.3d 523, 113 Cal.Rptr. 825, 522 P.2d 1; Hammarley v. Superior Court (1979),89 Cal.App.3d 388, 153 Cal.Rptr. 608.)
A motion for discovery by the accused is addressed to the sound discretion of the trial court, which has inherent power to order discovery in the interest of justice. (Hill v. Superior Court (1974),10 Cal.3d 812, 112 Cal.Rptr. 257, 518 P.2d 1353; People v. Terry (1962),57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985.)
On the motion to quash, the burden shifts to the moving party to show an abuse of the trial court's discretion. (Pitchess v. Superior Court (1974),11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305.)
While it would appear that in balancing appellant's Fourth Amendment rights against the First Amendment interests of the press, a minimum requirement, prior to rendering a decision quashing subpoenas, would be for the trial court to hold an in camera hearing to examine the material in question. (CBS v. Superior Court (1978),85 Cal.App.3d 241, 149 Cal.Rptr. 421.) We find, in examining the entire record in the instant case, that although the trial judge committed error in not holding an in camera hearing, said error was harmless.
We are of the opinion that the error complained of has not resulted in a miscarriage of justice. (Cal.Const., art. VI, § 13.) The evidence of guilt in the instant case is overwhelming.
IX
Appellant argues that the denial of the prosecution of illegal electronic surveillance was inadequate in this case. In response to a motion filed by appellant for disclosure of electronic surveillance, the People filed opposition to said motion which states, in part, as follows: "Electronic surveillance plays no part in this eyewitness case, none exists and none will be offered in evidence." Appellant contends this denial was insufficient under federal standards and resulted in violating appellant's rights to a trial free from the use of tainted evidence. We disagree with this contention, indeed, the entire record of this case indicates appellant received a fair trial.
" 'The vague and speculative affidavit of counsel required no more than the Government's affidavit denying monitoring of any conversations of counsel talking with witnesses.' " (United States v. Alter (1973),482 F.2d 1016.) The court in this case, further states:
" 'The question is whether the allegations in the moving papers, including affidavits if any are filed, are sufficiently definite, specific, detailed and nonconjectural, to enable the court to conclude that a substantial claim is presented. If the allegations are sufficient and factual issues are raised, a hearing is required.
None of this means that any defendant will have an unlimited license to rummage in the files of the Department of Justice, armed with the specific record of overheard conversations and with the right to cross-examine the appropriate officials in regard to the connection between those records and the case made against him, a defendant may need or be entitled to nothing else. Whether this is the case or not must be left to the informed discretion, good sense, and fairness of the trial judge.' "
We are satisfied with the guidelines set forth in the Alter case, supra, and we are further satisfied with the decision of the trial judge in ruling that the denial of the prosecution regarding electronic surveillance was adequate, indeed, the record reflects no such evidence was utilized in this case.
The judgment is affirmed.
LILLIE, Acting P. J., and L. THAXTON HANSON, J., concur. --------------- * In denying hearing, the Supreme Court ordered that the opinion be not officially published. * Assigned by the Chairperson of the Judicial Council. 1 Evidence Code section 915 regarding disclosure of privileged information in ruling on claim of privilege provides as follows: "(a) Subject to subdivision (b), the presiding officer may not require disclosure of information claimed to be privileged under this division in order to rule on the claim of privilege; provided, however, that in any hearing conducted pursuant to subdivision (c) of section 1524 of the Penal Code in which a claim of privilege is made and the court determines that there is no other feasible means to rule on the validity of such claim other than to require disclosure, the court shall proceed in accordance with subdivision (b). "(b) 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." (Stats.1979, ch. 1034, § 1.) 2 Order No. 3229 provides as follows: "When an employee of the Department of Justice is served with a subpoena or order to produce information in the files of the department, a representative of the United States Attorney shall appear with the employee and inform the court that the employee is not authorized to produce or disclose the information sought." They must then be requested to refer the matter to the Attorney General for instructions. 3 Evidence Code section 1070 reads as follows: "(a) Newsmen's refusal to disclose news sources (a) a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. "(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. "(c) As used in the section, 'unpublished information' includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated." 4 Section 13. Reversal for error resulting in miscarriage of justice. No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Added Nov. 8, 1966.)