Opinion
Rehearing Denied July 14, 1976.
Hearing Granted Aug. 18, 1976.
Opinions Superior Court (Levy) on pages 381-398 omitted.
HEARINGS GRANTED
[551 P.2d 664] Evelle J. Younger, Atty. Gen., by Jane K. Fischer, Deputy Atty. Gen., Sacramento, for petitioner.
Kenneth M. Wells, Public Defender, by Betty Rocker, Asst. Public Defender, Sacramento, for real party in interest.
J. Scott Buchanan, Jerome Stanley and Christopher Wing, Sacramento, amicus curiae for real party in interest.
REGAN, Acting Presiding Justice.
Defendant Levy was charged by information in the Sacramento County Superior Court with violating section 11352 of the Health and Safety Code (sale of heroin). Respondent superior court granted defendant's pretrial motion to compel disclosure of the identity of an informant. The People (through the Attorney General) filed this petition for writ of mandate asking the superior court to show cause why it should not vacate its order. We issued an order to show cause and stayed the trial.
On September 2, 1975, at about 7 p. m., Detective Gil-Blanco of the Sacramento County Sheriff's Office, who was working undercover in the narcotics division, went to a Sacramento address to purchase narcotics. He arranged to meet the defendant through contact with an informant. The informant had confirmed the sheriff department's knowledge that defendant was dealing in heroin. Defendant was not there on the first visit, but when Gil-Blanco and the informant returned 15 minutes later defendant was present. Four other men and a woman were also in the apartment. The informant introduced Gil-Blanco[551 P.2d 665] [130 Cal.Rptr. 665] to the defendant. Gil-Blanco told the defendant he wanted to buy two quarter spoons of heroin. Defendant stated the price would be $20 per quarter spoon but that he didn't have the heroin at that time and was waiting for delivery to him by his roommate.
'Q [By Mr. Valutin]: Did the informant that was with you say anything to Mr. Levy? A [By Gil-Blanco]: He introduced me to him. Q: And how did he introduce you? A: He introduced me. He said, 'This is Jay. This is Levy.' We shook hands and that was it.'
There is no evidence that the informant joined in or overheard this conversation. He participated in the introduction only.
Gil-Blanco returned, for the third time, to the apartment alone at approximately 8:45 p. m. that evening. Defendant answered the door and they went into the bedroom where defendant pulled out a clear plastic vial containing two balloons and two bindles. Defendant gave Gil-Blanco the two bindles in exchange for $40. It was stipulated that each bindle contained .3 grams of heroin. Two other adult males were also in the apartment on this occasion.
The People contend that the trial court erroneously granted the defendant's motion for disclosure of the name of the confidential informant.
It is well settled in California that when the defendant makes an adequate showing that the informer may be a material witness on the issue of guilt or innocence, disclosure should be compelled or the case dismissed. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 88, 104 Cal.Rptr. 226, 501 P.2d 234.) In order to establish that an informer may be such a material witness, the defendant has the burden of meeting the standard set forth in People v. Garcia (1967) 67 Cal.2d 830, 839-840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372:
'We emphasize that a defendant seeking to discover the identity of an informant bears the burden of demonstration that, 'in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.' [Citations.] That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant's exoneration. 'No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution's evidence. It is the deprival of the defendants of the opportunity of producing evidence which might . . . result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors.' [Italics omitted.] [Citations.]' In applying this standard, the general rule appears to be that 'the defendant must show by more than mere speculation that the informant has information that will bear on the issue of his guilt or aid him in some way [citations] . . ..' (People v. Shipstead (1971) 19 Cal.App.3d 58, 74, 96 Cal.Rptr. 513, 522; People v. Thomas (1970) 12 Cal.App.3d 1102, 1112-1113, 91 Cal.Rptr. 867 [demonstration of possibility requires more than speculation]; People v. Martin (1969) 2 Cal.App.3d 121, 127, 82 Cal.Rptr. 414 [showing must encompass more than speculation]; see People v. Acuna (1973) 35 Cal.App.3d 987, 992, 111 Cal.Rptr. 878.)
Standard applied in People v. Borunda (1974) 11 Cal.3d 523, 527, 113 Cal.Rptr. 825, Theodor v. Superior Court, supra, 8 Cal.3d at p. 88, 104 Cal.Rptr. 226, 501 P.2d 234; see also, Williams v. Superior Court (1974) 38 Cal.App.3d 412, 417-420, 112 Cal.Rptr. 485.
It should be noted, however, that in Williams v. Superior Court, supra, we indicated that the informer's testimony, even though speculative, may be enough. We there stated: 'It seems, accordingly, to some degree, speculation may properly play a part in the application of a standard which is couched in terms of a reasonable 'possibility' that the undisclosed informant could give evidence which 'might' result in the defendant's exoneration (People v. Garcia, supra, 67 Cal.2d at p. 840, 64 Cal.Rptr. 110, 434 P.2d 366).' (38 Cal.App.3d at p. 420, 112 Cal.Rptr. at p. 489.) Apparently only one other case has cited Williams to the effect that speculation may be a part of the standard. (People v. Kelly (1975) 49 Cal.App.3d 214, 222, 122 Cal.Rptr. 393.) A hearing was granted in Kelly by the California Supreme Court on October 9, 1975.
[551 P.2d 666] [130 Cal.Rptr. 666] With these principles in mind, we turn to the issues.
I
The Attorney General contends that any testimony by the informant could not possibly exonerate defendant, and that the absence of such testimony did not deprive defendant of a fair trial. (See People v. Hambarian (1973) 31 Cal.App.3d 643, 658, 107 Cal.Rptr. 878.) We agree. The informant's only role was to introduce the undercover narcotics officer to the defendant. At the subsequent sale, the informant was not present. There is thus no reasonable possibility that the informant's testimony could exonerate defendant, and any other conclusion based upon these facts is pure speculation.
In the trial court the defendant contended the informant's testimony could (in some vague and unsubstantiated way) impeach Gil-Blansco's testimony concerning the buy even though the informant was not present when the alleged transaction occurred.
In addition, the defendant's guilt can be fully established by evidence totally independent of anything to which the informant could possibly testify. Thus the testimony of the informant would be superfluous. (See People v. Shipstead, supra, 19 Cal.App.3d at p. 74, 96 Cal.Rptr. 513; see also, People v. Thomas (1975) 45 Cal.App.3d 749, 755, 119 Cal.Rptr. 739.) The defendant is charged with the sale of heroin, not the offer to sell. Nothing the informant could say would alter the fact that Gil-Blanco went into defendant's apartment with $40, contacted defendant and came out of the apartment with two bindles of heroin. Hence there is no adequate basis to compel disclosure of the informant's identity, since he 'simply pointed the finger of suspicion at defendant and put in motion the wheels of investigation' which resulted in Gil-Blanco's contact with defendant. (See People v. Acuna, supra, 35 Cal.App.3d at p. 992, 111 Cal.Rptr. at p. 882; People v. Thomas, supra, 45 Cal.App.3d at p. 755, 119 Cal.Rptr. 739.) In short, the informant played no part in the criminal act with which defendant is charged and is not a material witness on the issue of guilt.
The defendant relies upon People v. Goliday (1973) 8 Cal.3d 771, 106 Cal.Rptr. 113, 505 P.2d 537, and Williams v. Superior Court (1974) 38 Cal.App.3d 412, 112 Cal.Rptr. 485. Neither of them is persuasive because unlike the facts in those cases, the informant here was neither a participant in nor an eyewitness to the crime charged. Similarly in Bowens v. Superior Court (1975) 47 Cal.App.3d 127, 120 Cal.Rptr. 474, although the informant was not present to witness the crime charged, he was present on an earlier occasion when another sale of drugs took place about which the purchaser testified at trial. And in People v. Williams (1951) 51 Cal.2d 355, 333 P.2d 19, the informant was a witness to the crime charged (even though a second crime was also charged which he did not witness). In Williams v. Superior Court, supra, 38 Cal.App.3d at pages 420-421, 112 Cal.Rptr. at page 489, the court distinguished the facts of this case by saying: '[W]hen the informer is shown to have been neither a participant in nor a nonparticipant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility..[551 P.2d 667] [130 Cal.Rptr. 667] If disclosure were compelled regardless of the degree of attenuation which marked the informer's nexus with the crime, '[t]he result . . . would be to make it impossible to obtain a search warrant on the basis of information from a reliable informant unless the police officer was prepared to disclose the informant's identity.''
II
There is another equally valid reason why disclosure may not be compelled under the facts of this case. It is common knowledge that in their efforts to apprehend criminals the police often use informants who are themselves criminals. Particularly is this practice prevalent in crimes involving illicit drug activity. It is also well known that, for obvious reasons, informants will often cooperate with the authorities only on condition that their identity will not under any circumstances be disclosed; as to these, it is often necessary to dismiss rather than to violate the condition. Finally, it is also a fact that the accused narcotic dealer, as often as not, is as fully aware of the identity and whereabouts of the informant as are the police; yet he still may seek court ordered disclosure, knowing that such an order, far from enabling him to obtain proof of his innocence, will in reality force the dismissal of a valid charge. The rule of forced disclosure was never intended to be so abused.
In this case, for example, the informant introduced 'Jay' to 'Levy.' Presumably, he is acquainted with both of them and they both know him.
As we have observed, the government's privilege of nondisclosure must give way when it comes into conflict with the fundamental principle that a person accused of crime is entitled to a full and fair opportunity to defend himself. (People v. Williams, supra, 51 Cal.2d at p. 357, 333 P.2d 19.) Implicit in this principle of fairness to the accused (see People v. Flemmings (1973) 34 Cal.App.3d 63, 67, 109 Cal.Rptr. 661) is the proposition that the accused does not know the identity of the informant or his whereabouts, and therefore cannot subpoena him as a witness for the defense. (See Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 853, 83 Cal.Rptr. 586, 464 P.2d 42.) As above noted, a defendant seeking to discover the identity of an informant bears the initial burden. (People v. Garcia (1967) 67 Cal.2d 830, 839, 64 Cal.Rptr. 110, 434 P.2d 366.) It is the deprival of the opportunity to produce evidence which might result in a defendant's exoneration which constitutes the error. (Price v. Superior Court (1970) 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721.)
Here, the defendant has made no allegation or showing that he was unaware of the name or the whereabouts of the informant, and thus the rule regarding the disclosure of informants is inapplicable. In order to prevent manifest abuses, a defendant must demonstrate to the satisfaction of the trial court (as a part of meeting his burden) that he knows neither the identity nor the whereabouts of the informant. Only then can the court be reasonably assured that the defendant is being genuinely deprived of a defense opportunity, rather than himself seeking an unfair advantage.
Let a peremptory writ issue commanding the trial court to vacate its order of disclosure and deny the pretrial motion for such disclosure.
PARAS and EVANS, JJ., concur.