P. v. Haros
Filed
7/17/12 P. v. Haros CA5
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ISIDRO SILVA HAROS,
Defendant and
Appellant.
F061022
(Tulare
Sup. Ct. No. VCF225836A)
APPEAL from
a judgment of the Superior Court of
County. Gerald F. Sevier, Judge.
Eloy I.
Trujillo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This appeal involves a judgment of
conviction relating to possession and
transportation of marijuana. The appellant was the subject of a
surveillance project conducted by a special unit of the Tulare County Sheriff's
Department. The surveillance activity was based on information provided
by a confidential informant. The appellant contends, among other things,
that his right to a fair trial was compromised by nondisclosure of the identity
of the informant and denial of the right to cross examine the informant. We will affirm the judgment.
STATEMENT OF THE CASE
On June 21,
2010, appellant was convicted of felony transportation of marijuana (Health
& Saf. Code, § 1360, subd. (a)) and misdemeanor possession of
marijuana (Health & Safe. Code, § 11357, subd. (a)) by jury
verdict. On September 2, 2010, the court
denied appellant probation and sentenced appellant to the upper term of four
years in state prison on the transportation count. The court did not impose any prison time on
the possession count. The court
initially awarded 98 days of custody credits and, after multiple applications
by appellant, awarded 100 days of custody
credits.
STATEMENT OF FACTS
The Confidential Informant
On August
13, 2009, the Tulare County Sheriff’s Tactical Enforcement Personnel (STEP)
unit received information from a confidential informant about an impending
narcotics transaction in northern Tulare County. The informant advised Sheriff’s Detective
Richard Ramirez that an unidentified individual from Stockton was trying to
sell 100 pounds of marijuana for $200 a pound.
The informant arranged a “buy” in the parking lot of the Orosi Mini Mart
at Avenue 416 and Road 125 for the afternoon of August 13, 2009. On August 13, detectives conducted
surveillance of the area around the mini mart and watched the confidential
informant meet with potential suppliers.
However, the individuals who met with the informant did not have the
contraband and set the buy for the next day.
On August 14, 2009, Detective Ramirez received another phone call from
the informant. The informant also said a
brown GMC pickup truck and a silver Mercedes SUV would be involved in a
transaction in the Orosi area. The
informant indicated the two vehicles would meet in the parking lot of the Orosi
Mini Mart at about 3:30 p.m.
The Surveillance
The STEP unit formed a
surveillance detail based upon the informant’s information. Detective Ramirez observed the brown GMC
truck arrive at the Orosi Mini Mart and then depart down Avenue 416 toward the
City of Dinuba. The surveillance detail
followed the GMC truck to an auto parts store in Dinuba. According to Detective Ramirez, a silver
Mercedes SUV arrived a few minutes later and parked near the GMC truck. The driver of the GMC truck got out of and
walked behind his vehicle and spoke with the driver of the Mercedes for five
minutes. Detective Ramirez testified he
could not determine the identity of the SUV driver. The driver of the GMC truck returned to his
vehicle and departed, with the Mercedes following behind him. Both vehicles turned westbound onto El Monte
Way, which turns into Avenue 416, and headed for the Kingsburg area. The two vehicles remained in tandem as they
approached the Avenue 416 overpass on Highway 99. The vehicles then turned southbound onto
Highway 99 and proceeded in the direction of Visalia. The two vehicles eventually traveled on
separate routes.
name="_ftnref1" title="">[1] The GMC truck exited at Avenue 384 and went
to a rest stop. Taking a different
route, the SUV drove toward Traver, took the Merritt Drive exit, and parked at
a Tri-M Market store. Detective Ramirez
saw appellant get out of the SUV and talk on a cell phone. Appellant stood in front of the market for
five minutes, walked back to the driver’s side of the SUV, and then drove
northbound on Highway 99.
The SUV proceeded to a
gas station near or adjacent to the Avenue 384 rest area and parked near the
same GMC truck on the north portion of the gas station property. Ramirez said the only thing that divided the
gas station property from the rest area was an overpass on Highway 99. The Mercedes departed 5 to 15 minutes after
it parked next to the GMC truck.
Detective Ramirez testified that he watched the SUV for about 45 minutes
– from the time it arrived at the parking lot of the Dinuba auto parts
store. Ramirez was positioned 45 to 50
yards away when the two vehicles were at the rest stop. He could not see appellant at the rest
stop. However, he could see the back of
the SUV was open and several people were looking inside the rear of the
SUV. Ramirez did not see anyone place
anything inside the SUV or remove anything from the SUV. Ramirez did see the driver and a passenger
get out of the SUV. Detective Bari
Molyneux testified that he observed someone in a black T-shirt walk away from
the vehicles and then return to the rear of the vehicles. The two vehicles eventually drove away from
the rest area.
Facts of the Offenses
On the
afternoon of August 14, 2009, Tulare County Sheriff’s Deputy Michael Yandell
was assisting the STEP unit. Deputy
Yandell saw a silver Mercedes SUV pass a truck/trailer rig on northbound
Highway 99 near the Road 384 rest stop in the London area of Tulare
County. Deputy Yandell clocked the SUV
at 74 miles per hour. Deputy Yandell
initiated a traffic stop of the SUV, which came to rest near the 18th Avenue exit
on Highway 99.
Yandell
approached the SUV and found appellant in the driver’s seat and another
individual in the front passenger seat.
Appellant and his passenger did not speak English. Yandell was able to speak to appellant in
Spanish and asked to see his license.
When Yandell made the request, he noticed a strong odor of marijuana
emanating from the interior of the SUV.
Yandell asked appellant about the aroma and asked whether he had a
marijuana card. Appellant shook his head
and answered “no” after Yandell mentioned the word “marijuana.”
Yandell
requested that appellant step out of the vehicle and appellant complied. Yandell removed a large folding knife from
appellant’s belt for reasons of safety.
As Yandell spoke with appellant, the passenger in the SUV fled the scene
on foot. Yandell stayed with appellant,
advised dispatch that the passenger had fled the scene, and asked appellant to
sit in the back seat of his patrol car.
Yandell opened the
tailgate of the SUV and found three large trash bags filled with
marijuana. The bags contained 23
individually-wrapped one-pound packages of processed marijuana. Detective Ramirez testified that the 23
pounds of individually-wrapped packages of processed marijuana had a value of
$92,000, was possessed for purposes of sale, and could not have been held for
personal use.
Appellant
testified on his own behalf. He
testified that he was a friend of Roberto “Beto” Rodriguez, who owned a
Mercedes SUV. Appellant and Beto had
worked together at an Oakdale dairy some six years earlier. Appellant said he was stopped at a store near
Fresno when Beto asked him to drive Beto’s cousin, Primo, in the Mercedes
SUV. Appellant was unemployed at the
time Beto made the request. Appellant
testified he drove Beto’s SUV for about three hours and made stops at several
stores at Primo’s request. The first
store was located near the outskirts of Fresno.
The second store was located in Tulare County and “some guys” greeting
Primo there. Appellant said he and Primo
went to a third store and then to the rest area.
Appellant
admitted driving the Mercedes SUV to the rest area. Appellant testified that when he stopped at
the rest area, he stayed in the driver’s seat while Primo got out of the SUV to
speak to some people. Appellant said he
eventually got out of the SUV to use the restroom. When appellant returned to the SUV, Primo
said they could leave the rest area.
Appellant said he did not know there was marijuana in the SUV at that
point in time. After they departed the
rest area, appellant detected an unknown odor in the SUV. Appellant began to ask Primo about the odor
when an officer pulled up behind the appellant, turned on the emergency lights,
and detained the SUV.
THERE WAS
NOT A REASONABLE POSSIBILITY THAT NONDISCLOSURE OF THE IDENTITY OF A
CONFIDENTIAL INFORMANT DENIED APPELLANT OF A FAIR TRIAL UNDER EVIDENCE CODE
SECTION 1042, SUBDIVISION (D)(7).
Appellant
contends the unsealed portion of the record reveals a reasonable possibility that
nondisclosure of the confidential informant’s identity deprived him of a fair
trial. He urges this court to
independently review the superior court’s denial of his motion.
1.
The
December 10, 2009, In Camera Hearing
On November 19, 2009, appellant
filed a motion to disclose the identity of the confidential information or
dismiss charges on the ground “the informant in question is a material
percipient witness on the issue of reasonable cause to make an arrest or search
without a warrant and the disclosure of that informant’s identity is essential
to a full and fair determination of a [Penal Code] section 1538.5 suppression
motion with regard to an arrest or search that was made without warrant.” Appellant attached Detective Ramirez’s August
18, 2009, report to his motion. In the
narrative portion of that report, Ramirez indicated that the surveillance was
based on information from a confidential informant.
On December 10, 2009, the court
conducted an in camera hearing based upon the prosecution’s opposition to the
motion and assertion of privilege. The
prosecution initially asserted that disclosure was not required because the
confidential informant was not a material witness to guilt or innocence.
Detective Ramirez testified that he
met the confidential informant through an officer with a Kern County narcotics
task force team known as South County HIDTA.
The Kern County officer advised Ramirez that the confidential informant
had helped them with several successful controlled buys of marijuana and
methamphetamine. Ramirez also spoke with
a Fresno police detective who advised Ramirez that the informant was helping
his agency with several large methamphetamine cases.
Ramirez said the informant called
him on August 13 and advised that a subject in the Stockton area was dealing in
green dope marijuana and selling it for $2,000 a pound. Ramirez set up a deal in which the informant
was going to have law enforcement officers meet with the subject in the Orosi
area. The subject from Stockton arrived
and advised the informant that he only had 10 pounds with him and needed to
retrieve more in Stockton. At that time,
the informant did not see any marijuana, and the subject left. Ramirez
contacted the informant the next day, and the informant advised that the
Stockton subject was returning to the Orosi area. Ramirez arranged for the STEP unit to conduct
surveillance.
Ramirez said the subjects arrived
in a brown Chevrolet truck at a store near Avenue 416 and Road 125 in the Orosi
area. They contacted the informant, said
they were in town, but noted that they had to drive to a different location to
pick up the marijuana. The informant
called Ramirez, who arranged for law enforcement officers to track the suspect
vehicle. The officers watched the brown
truck proceed westbound down Avenue 416 to an auto parts store at Crawford
Street in Dinuba. The truck met up with
a gray Mercedes. The driver of the truck
exited his vehicle, spoke with the driver of the Mercedes, and the two vehicles
drove toward the Kingsburg area. The
surveillance team followed them from the auto parts store to southbound Highway
99. The two vehicles parked in the rest
stop at Highway 99 and Avenue 384.
According to Ramirez, all of the parties from both involved vehicles
alighted. The informant met them there,
and they went to the tailgate area of the Mercedes.
Ramirez testified that several
subjects looked in the tailgate area of the Mercedes, and then the informant
got in his own vehicle and left, leaving the occupants of the brown truck and
gray Mercedes at the scene. Ramirez said
two subjects got into the truck and next left the scene, going over the
overpass and stopping in the middle of a roadway. Law enforcement officers detained the truck
for blocking a roadway. The Mercedes
departed northbound on Highway 99 and was stopped for speeding. Ramirez said the informant was not present
when the two vehicles were detained. The
informant provided him with accurate descriptions of the truck and Mercedes
before the vehicles arrived at the meeting point. He also testified that the informant provided
accurate information about the location of the meeting point and the number of
people involved.
Ramirez
testified the deputy who made the stop of the Mercedes detected a strong odor
of marijuana coming from the vehicle.
Detective Ramirez confirmed the informant was only present at the rest
stop and not at any other place or point in time during the surveillance
process. The court found the informant
was reliable and that “given the charges presently existing against each of the
accused, that disclosure of the reliable informant is not required, nor is
there any … need for such disclosure to protect the rights of any of the
defendants, and I further find that based upon the representations made, that
the informant is not a material [witness] on the issue of guilt or innocence.”
The
informant testified under oath and said he saw plastic bags filled with
marijuana in the tailgate of the Mercedes.
The informant confirmed Detective Ramirez’s testimony that the trunk of
the Mercedes was open, and that the occupants of both vehicles were in a
physical position to view the contents.
The informant said at least two occupants of the truck and the Mercedes
suggested that additional marijuana was available and two other occupants of
those vehicles heard the statements. The
informant testified, “[T]hey just said, you know, take these [bags of
marijuana] for now and I’ll give you the rest later.” The informant confirmed that the did not see
law enforcement officers detain the pickup truck and Mercedes because he was
already gone from the scene.
2.
The
December 21, 2009, Preliminary Hearing
At the
2009, appellant’s trial counsel argued “[t]his entire case is based on
observations and surveillance that are the result and the direct result of
information being supplied to law enforcement by this confidential
informant. [¶] In this case, the confidential informant was
the only person under the direction of law enforcement who was communicating
directly to these individuals [associated with the pickup truck and
Mercedes].” During an exchange of views
with appellant’s trial counsel, the court recalled that “part of my reason [in
denying disclosure of the informant’s identity at the in camera hearing] was
that the confidential informant is not a material witness .…” At the conclusion of the discussion with
counsel, the court reiterated its ruling that “the People at this hearing did
not posit its probable cause on … anything other than the officer’s
observations.”
3.
The
Renewed Motion at Trial to Disclose the Informant’s Identity
At trial on July 19, 2010,
appellant’s counsel argued: “The only person that was in a position to see who
was exercising control of this marijuana shortly before the stop is the
confidential informant in this case, and I think that certainly is relevant to
the issue of his guilt or innocence.”
Counsel further argued that “none of these officers … can testify that
he was present when this person showed the marijuana to the confidential
informant. We don’t know because none of
‘em were in position.” Defense counsel
ultimately acknowledged he was seeking to renew the motion to disclose the
identity of the confidential informant.
To the extent appellant’s counsel renewed the motion to disclose, the
court denied the motion at that point but indicated it would review the
transcript of the first in camera hearing.
On July 20, 2010, the court
instructed the jury and then conferred with counsel outside the presence of the
jury. The court explained, “[W]hat I
intend to do is to follow up on the issue relating to the informant, go in in
camera and have Detective Ramirez provide testimony. It may be redundant to what the record
already is.” At the in camera hearing,
the prosecutor acknowledged, “Detective Ramirez was the investigating officer
and also the confidential informant’s handler and was the person primarily
dealing with the confidential informant.”
On direct examination during the in
camera hearing, Detective Ramirez testified the informant provided him with
information about the vehicles in the case.
Ramirez testified he conducted surveillance and said the informant was
not present when the surveillance started at the auto parts store or any point
prior to the rest stop. Ramirez said the
informant did meet with individuals in the brown GMC truck and the gray
Mercedes SUV at the rest stop. Ramirez
estimated the informant was with those individuals for “[m]aybe five to 10
minutes.” Ramirez said the informant left
at that point and was not present when Detective Yandell conducted his vehicle
stop or when any of the evidence was examined.
He said the informant was not involved in the case at all after he left
the rest stop. Ramirez acknowledged that
the informant negotiated with appellant and several other parties to the
buy. Ramirez said the informant did not
know Primo, the individual who was the passenger in the front seat of the
SUV. The informant never indicated
whether he had any prior dealings with Primo.
At the conclusion of Detective
Ramirez’s testimony, the court tentatively observed: “[I]nasmuch as … this
person [the informant] was a percipient witness to what went on at the rest
stop, considered in tandem, to use the phrase, with Mr. Haros’s claim that he
went to the restroom and had no idea how the marijuana got into the vehicle,
that the likely correct ruling is to require disclosure of the names of all
people known to law enforcement of people present at the rest stop.” Proceedings resumed on July 21, 2010, outside
the presence of the jury. The court
stated that it had conducted an in camera hearing on the preceding afternoon
and then reviewed the transcript of the December 10, 2009, in camera hearing,
at which the confidential informant testified under oath. The court concluded: “I have reviewed that
testimony, and part of it goes squarely to the issue of whether or not there’s
a reasonable possibility that the person whose identity is sought can give
evidence on the issue of guilty which might result in defendant’s
exoneration.… [¶] I’ve considered that standard. I’ve reviewed the testimony, and it is my
determination that there is no reasonable possibility that the undisclosed
informant could give evidence that might result in the defendant’s
exoneration.” The court denied
appellant’s renewed motion to disclose the identity of the confidential
informant.
B.
Applicable
Law
Evidence Code section 1042,
subdivision (d) provides in relevant part that if “the court concludes that
there is a reasonable possibility that nondisclosure might deprive the
defendant of a fair trial,” the confidential informant’s identity must be
disclosed or charges dismissed. The
People contend that the standard of review for a trial court’s determination
whether to order disclosure after an in camera hearing is not settled, citing
1246, among other cases. Although
is not settled, the California Supreme Court in People v. Borunda (1974) 11 Cal.3d 523, 529 (Borunda) has held that the issue is one of law and subject to de
novo review. (See People v. Otte (1989) 214 Cal.App.3d 1522, 1535-1536.)
Borunda
has been cited with approval by numerous cases addressing disclosure of a
confidential informant’s identity. (See,
e.g., People v. Lawley (2002) 27
Cal.4th 102, 159; People v. Bacigalupo
(1991) 1 Cal.4th 103, 123.) In
(Lee), this court addressed a trial
court’s decision on disclosure of a confidential informant after an in camera
hearing. We cited to
on whether the facts required disclosure of the confidential informant, and
concluded the trial court had erred. (
at pp. 835, 840.) Following our holding
in Lee, we will apply a de novo
standard of review in this case.
The confidential informant
privilege (Evid. Code, § 1041) is necessary to promote the free flow of
information to law enforcement.
Anonymity provides protection to the informant and the public interest
would suffer if an informant’s identity always were discoverable. (People
v. Hobbs (1994) 7 Cal.4th 948, 958.)
Although retaining confidentiality promotes a strong public interest,
fundamental fairness requires that the privilege be limited in its scope. “ ‘Where the disclosure of an informer’s
identity, or of the contents of his communication, is relevant and helpful to
the defense of an accused, or is essential to a fair determination of a cause,
the privilege must give way. In these
situations the trial court may require disclosure and, if the Government
withholds the information, dismiss the action.’
[Citation.]” (
With specified exceptions, “a
public entity has a privilege to refuse to disclose the identity of a person who
has furnished information [to a law enforcement officer] purporting to disclose
a violation of a law of … this state .…”
(Evid. Code, § 1041, subd. (a).) Moreover, “otherwise admissible
evidence of information communicated to a peace officer by a confidential
informant” may be introduced in a criminal proceeding under specified
conditions “ without requiring that the name or identity of the informant be
disclosed .…” (Evid. Code, § 1042,
subd. (c).) The state’s interest in
preserving confidentiality, however, must be balanced against the defendant’s
right to due process and a fair trial. (
(Cont.Ed.Bar 10th ed. 2011) Privilege for Identity of Informer, § 44.9, pp.
599-600.)
When there is a “reasonable
possibility” that nondisclosure might deprive the defendant of a fair trial,
the confidential informant’s identity must be disclosed. (People
v. Alderrou (1987) 191 Cal.App.3d 1074, 1080.) To establish a reasonable possibility that an
informant could give exonerating testimony, the defendant must show something
more than “sheer speculation,” but need not establish the informant would give
favorable testimony. (
1036, 1043-1044.)
C.
Analysis
At the December 10, 2009, in camera
hearing, the confidential informant testified under oath that Detective
Ramirez’s testimony about the Mercedes SUV was accurate, i.e., that the
tailgate of the SUV was filled with marijuana and the occupants of both the SUV
and the GMC pickup truck were in a physical position to view the contents of
the SUV. The informant said the
occupants of the two vehicles “were around me when they showed me the plastic
bags of the weed.” The informant said
none of the occupants of the two vehicles made statements suggesting surprise
about the contents of the hatch of the Mercedes SUV. The informant explained that “a couple guys”
from the GMC pickup truck and the Mercedes SUV said they wanted to give the
informant the bags in the tailgate area and “there was another car that had the
rest of the weed, but that was the only weed they had in that car.” The informant further explained that two of
the occupants of the pickup and SUV made the statements, and that the other
occupants of the two vehicles were in a physical position to hear the comments
but said nothing in response to the comments about additional marijuana being
made available. According to the
informant, the two who spoke said, “[Y]ou know, take these for now and I’ll
give you the rest later.”
An informant is a material witness
if there appears, from the evidence presented, a reasonable possibility that he
or she could give evidence on the issue of guilt that might exonerate the
defendant, on which issue the defendant has the burden of producing some
evidence. Defendant’s showing must rise
above the level of sheer speculation and reach at least the low plateau of
reasonable possibility. The defendant
must show that the informant was in a position to perceive the commission or
the immediate antecedents of the alleged crime.
The fact a confidential informant is a percipient witness to an offense
does not mandate disclosure. Rather,
disclosure is required only if the defendant makes an adequate showing that the
informant can give exculpatory evidence.
(Davis v. Superior Court (2010)
186 Cal.App.4th 1272, 1276-1277.)
Evidence adduced at an in camera hearing can
potentially establish there was no reasonable possibility a particular
percipient eyewitness/informer could give evidence on the issue of guilt which
might result in a defendant’s exoneration.
In such a situation, the witness would not be material under the test
for materiality established by the California Supreme Court. (People
v. Lanfrey (1988) 204 Cal.App.3d 491, 502-503.) “[A]n informant is not a ‘material witness’
nor does his nondisclosure deny the defendant a fair trial where the
informant’s testimony, although ‘material’ on the issue of guilt, could only
further implicate rather than exonerate the defendant.” (People
v. Alderrou, supra, 191 Cal.App.3d at pp. 1080-1081.)
In this case, officers conducting
surveillance observed appellant driving the Mercedes SUV to the rest stop. Appellant himself admitted driving the SUV
into the rest stop. Detective Ramirez
testified that he observed the occupants of the SUV and the GMC pickup truck
gather near the tailgate door of the SUV at the rest stop. Appellant was the driver of the SUV when
Officer Yandell conducted a stop of the vehicle. Officer Yandell detected the strong odor of
marijuana coming from the interior of the SUV.
When Yandell asked appellant about the aroma of marijuana, appellant
replied, “No,” and shook his head. When
appellant testified at trial, he said he did not detect the odor of marijuana
before arriving at the rest stop but did become aware of the aroma after
leaving the rest stop in the SUV.
Appellant claimed he went to the restroom after arriving at the rest
stop and that his passenger, Primo, spoke to other individuals. Detective Ramirez testified that he never saw
appellant walk away from the SUV at the rest stop. Ramirez explained there was an open area of
15 to 20 yards between the SUV and the restroom at the rest area. He said, “Nobody ever walked to the
restroom. They stayed to the vehicle [
Officer Bari Molyneux testified, “The two subjects that got out of the
truck and the two subjects that got out of the SUV all met at the back of the
vehicles.” He said they were together at
the rear of the vehicles for 10 or 15 minutes.
Molyneux said an individual in a black T-shirt did walk away from the
vehicles. However, appellant was not
that individual because Molyneux personally detained the individual in the
black T-shirt at a later point in time.
Nothing in the transcripts of the
in camera hearings or trial proceedings suggests a reasonable possibility that
the confidential informant could give evidence on the issue of guilt that might
exonerate the appellant. Appellant was
charged with transportation of marijuana and possession of marijuana for
sale. The jury found him guilty of
transportation (Health & Saf. Code, § 11360) and misdemeanor
possession of more than one ounce of marijuana (Health & Saf. Code,
§ 11357, subd. (c)), a lesser included offense of possession of marijuana
for sale. The elements of the
transportation of marijuana are (1) a person transported, concealed, conveyed,
or carried marijuana and (2) the person knew of its presence and illegal
character. The essential elements of the
offense of unlawful possession of a controlled substance are actual or
constructive possession in an amount sufficient to be used as a controlled
substance with knowledge of its presence and its nature as a controlled
substance. Actual or constructive
possession is the right to exercise dominion and control over the contraband or
the right to exercise dominion and control over the place where it is
found. Exclusive possession is not
necessary. A defendant does not avoid
conviction if his or her right to exercise dominion and control over the place
where the contraband was located is shared with others. (People
v. Busch (2010) 187 Cal.App.4th 150, 156-157, 161.)
Appellant was the driver of the
Mercedes SUV before reaching the rest stop, when it arrived at the rest stop,
and after it departed the rest stop. The
SUV contained multiple bags of marijuana emanating an odor in the vehicle that
Officer Yandell immediately detected upon stopping the vehicle. Detective Ramirez and Officer Molyneux were
part of the STEP surveillance team and did not see appellant go to the restroom
at the rest stop. The officers did not
see anyone move the bags into the tailgate area of the Mercedes SUV from some
other place or vehicle. The confidential
informant testified in camera that all occupants of the two vehicles, the SUV
and the GMC pickup truck, were present at the rear of the SUV at the rest
stop. The informant said two of the
occupants commented on the contraband in the tailgate area while the other
occupants were in immediate physical proximity and offered no additional input.
Appellant has failed to show, by
the production of some evidence, a reasonable possibility that the confidential
informant could give evidence on the issue of guilty that might exonerate
appellant. (Davis v. Superior Court, supra, 186 Cal.App.4th at pp.
1276-1277.) The trial court did not err
in declining to order disclosure of the identity of the confidential informant.
THE TRIAL
COURT DID NOT DENY APPELLANT HIS RIGHTS TO DUE PROCESS, CROSS-EXAMINATION OF
ADVERSE WITNESSES, AND THE RIGHT TO PRESENT A DEFENSE BY DENYING HIS MOTION TO
DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT.
Appellant contends the trial court’s denial of his motion to
disclose the identity of the confidential informant violated his Sixth Amendment
right to cross-examine adverse witnesses at trial. Appellant also contends the in camera
procedure deprives criminal defendants like appellant of their Fourteenth
Amendment rights to present a defense and subject the People’s case to
adversarial testing.
In People v. Hobbs,
supra, 7 Cal.4th at pp. 957-975, the
Supreme Court implicitly approved the in camera hearing procedure embodied in
Evidence Code section 1042, noting the state had a strong and legitimate
interest in protecting the confidentiality of its informants and that the
codified rules and privileges were devised to implement that fundamental
right. (People v. Hobbs, supra,
at p. 967.) In People v. Levine (1984) 152 Cal.App.3d 1058, 1070-1071, the Second
Appellate District held the use of an in camera hearing did not deprive a
narcotics offender of his constitutional
rights to a public trial, to the compulsory attendance of witnesses, to be
present and have effective aid of counsel, to confront and cross-examine
witnesses, and to due process of law. In
People v. Reel (1979) 100 Cal.App.3d
415, 420, footnote 1, a case involving an ex-felon in possession of a
concealable firearm, the Second Appellate District noted “[t]he
constitutionality of the in camera proceeding
has been upheld.” (Original
italics.) In People v. O’Brien (1976) 61 Cal.App.3d 766, 774-775, a burglary
case, the First Appellate District held that use of an in camera hearing as
provided for in Evidence Code section 1042, subdivision (d) did not deprive
defendants of their constitutional rights of confrontation, cross-examination,
compulsory process, and effective use of counsel. In People
v. Pacheco (1972) 27 Cal.App.3d 70, 81-82, the First Appellate District
observed: “It is the invocation of the basic privilege [of a public entity to
decline disclosure of an informant’s identity] that denies the informer’s name
to the defendant, not the in camera hearing,
which is only the method by which the court determines the applicability of the
privilege. If the Sixth Amendment were
to apply, it would deny the privilege, the right to which has been determined
to be valid.” (Id. at p. 82, original italics.)
In view of the
foregoing authorities, appellant’s challenge to the established in camera
hearing procedures set forth in Evidence Code section 1042 must be rejected.
THE TRIAL
COURT PROPERLY AWARDED APPELLANT 100 DAYS OF CUSTODY CREDITS.
On August
17, 2011, appellant filed his opening brief on appeal, contending the
sentencing court erred by not awarding him a total of 100 days of presentence
custody credits.
On August 24, 2011, the
superior court filed a minute order stating:
“The minute order dated
September 2, 2010 and the Abstract of Judgment dated September 15, 2010 is
hereby amended to reflect the following:
“Defendant is given
credit for 50 days actual time with an additional 50 days statutory conduct
credits for a total of 100 days.” (Emphasis omitted.)
further discussion is required.
DISPOSITION
The
judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Wiseman, Acting P.J.
_____________________
Detjen, J.
name="_ftn1" title="">[1] Detective Ramirez testified that STEP officers conducted a surveillance of both the SUV
and the GMC truck. Several members of
the STEP team were stationed inside a van at the rest stop.
