P. v. Superior Court
Filed 1/15/13 P. v. Superior
Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for publication
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
ANTWON DARNELLE COLBERT,
Real
Party in Interest.
E057612
(Super.Ct.No.
FSB1201213)
OPINION
ORIGINAL PROCEEDINGS; petition for
Michael A. Ramos, District Attorney,
and Stephanie H. Zeitlin, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Phyllis Morris, Public Defender, and
Sam Knudsen, Deputy Public Defender, for Real Party in Interest.
Petitioner seeks this writ of mandate to vacate the trial court’s
order for disclosure of the identity of a confidential informant. Our review of the record reveals no cognizable
evidence that would support a finding that nondisclosure of the informant might
deprive the defendant of a fair trial.
(Evid. Code, § 1042, subd. (d).)
of this matter further, we issue a peremptory writ of mandate in the first
instance. (Code Civ. Proc., § 1088;
Inc. (1984) 36 Cal.3d 171, 178-179.)
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner (the People) have charged
real party in interest Antwon Darnelle Colbert (defendant) in count 1 with
possession for sale of cocaine base in violation of Health and Safety Code
section 11351.5 with an allegation that the offense was committed for the
benefit of a criminal street gang in violation of Penal Code section 186.22,
subdivision (b)(1). Count 2 charges
defendant with active participation in a criminal street gang in violation of
Penal Code section 186.22, subdivision (a).
These charges arise from the
execution of a search warrant that was
issued based on the affidavit of Officer Shank of the San Bernardino Police
Department. In turn, Officer Shank
relied on information supplied by a confidential informant to make the
necessary showing to secure the search warrant.
The defendant moved to disclose the
identity of the confidential informant.
After conducting an in camera hearing in which Officer Shank testified,
the court granted the motion for disclosure stating that it felt that the
informant was a percipient and material witness who could given relevant
information with respect to the guilt or innocence on the charges alleged in
count 2 and the gang enhancement allegation in count 1.
DISCUSSION
Section 1041 permits a public entity
to refuse to disclose the identity of an informant who has furnished
information in confidence to a law enforcement officer. Disclosure of the informant’s identity may be
required if he or she is a material witness in the case.
An informant is a material witness
under section 1041 if it appears there is a reasonable possibility the
informant could give evidence on the issue of guilt which might result in a
defendant’s exoneration. (
468-469, superseded on another point in People
v. Levell (1988) 201 Cal.App.3d 749, 751-752.) An informant is not a material witness when
“ ‘he simply points the finger of suspicion toward a person who has
violated the law.’ †(
reach at least the “ ‘low plateau of reasonable possibility’ †and
cannot be based on pure speculation. (
513, 525-526.)
We review the trial court’s ruling
concerning the disclosure of the identity of a confidential informant under the
abuse of discretion standard. (
Cal.App.4th 1272, 1277.) We must
conclude that the trial court did abuse its discretion in ordering disclosure
in this case.
The People contend that defense
counsel’s declaration in support of the disclosure motion was insufficient and
that the trial court should have denied the motion outright. (People
v. Oppel (1990) 222 Cal.App.3d 1146, 1153.)
Even assuming that position is well taken, the trial court did conduct
an in camera and it did so at the People’s request. Therefore, we have reviewed the transcript of
that hearing and have considered the entire record in reaching our
decision. There is no evidence that
indicates that the confidential informant has any evidence on the issue of
guilt that might result in the defendant’s exoneration of either the
substantive charge or the enhancement allegation. While, as the trial court observed, the
informant may have some relevant information, this is not the standard for
disclosure. The evidence does not even
reach the “low plateau of reasonable possibility,†and disclosure cannot be
justified based on the mere speculation that the informant might give
exonerating evidence on defendant’s behalf.
DISPOSITION
Let a peremptory writ of mandate
issue directing the Superior Court of San Bernardino County to vacate its order
granting the defendant’s motion to disclose the identity of the confidential
informant and to enter a new order denying this motion.
Petitioner is
directed to prepare and have the peremptory writ of mandate issued, copies
served, and the original filed with the clerk of this court, together with
proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
the Evidence Code unless otherwise stated.
