>Wilson> v. Super. >Ct.>



















Filed 3/19/13 Wilson v. Super. Ct. CA5

Received for posting 3/21/13









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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






>

NEKO WILSON, Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.	F066521 (Fresno Super. Ct. No. 192419) OPINION

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

ORIGINAL
PROCEEDING; petition for writ of mandate.
John F. Vogt, Judge

Alonzo J. Gradford, for Petitioner.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Luis M. Vasquez, Leanne Le Mon,
and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.



-ooOoo-

Petitioner challenges the denial of
his discovery requests regarding the informant S. G., other confidential
informants who may have provided information on this case, and whatever additional
evidence pertinent to this case is in the possession of the Multiple Gang
Enforcement Consortium (MAGEC).

The People concede that “the police
and the district attorney must make reasonable efforts in good faith to locate
the [material] informer so that either party or the court may, if desired,
subpoena her as a witness….

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.’”

The transcript of the interview
with S. G. establishes that she was a percipient witness to discussions
regarding a plan to rob the victims Gary and Sondra DeBartolo at their
residence. S. G. indicated that the participants
in those discussions were members of the Asian Boys Club, two Hispanic men, two
Asian females, and another female who was called “Thumper.” It appears that at one point during the
interview, S. G. identified a photo as the person called “Thumper.” Petitioner asserts without contradiction that
one of those females was the codefendant Dawn Singh. S. G. also stated that at least one other
male was involved but who was not present during the discussions.

From the facts revealed during the
interview with S. G., there “‘appears ... a reasonable possibility that ... she
could give evidence on the issue of guilt that might exonerate the
defendant.’” For example, S. G. might be
able to identify one or more of the codefendants as being participants in the
discussions. Thus, the Office of the District Attorney was
obligated to make good faith efforts to locate S. G. and make her available to
the defense.

With respect to petitioner’s
request for the identities of other confidential informants who might have
provided information pertinent to the conspiracy and murders, the People
concede the they must provide such information “if it is in the possession of
the prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies[.]”

The conclusional and unsworn verbal
assertions by the Deputy District Attorney at the hearing held on November 30,
2012, that there were no confidential informants in this case other than S. G.
constituted insufficient evidence that the Office of the District Attorney had
made appropriate inquiries to the police agencies to determine whether there
were reports regarding informants other than S. G. who provided or could
provide information pertinent to the conspiracy and murders. Any
such showing should have been made in sworn testimony and/or declarations
declared to be true under penalty of perjury.

Petitioner is entitled to
appropriate relief. (Code of Civ. Proc., § 1085; see Whitney’s at the Beach v. Superior Court (1970) 3 Cal.App.3d
258, 266.) A peremptory writ of mandate
is proper and should issue. (Code of
Civ. Proc., § 1088; Palma v. U. S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181; >Goodenough v. Superior Court (1971) 18
Cal.App.3d 692, 697.)

The petition is granted as specified
below, and otherwise denied.

Let a peremptory href="http://www.mcmillanlaw.com/">writ of mandate issue directing
respondent superior court to vacate its denials of petitioner’s requests
regarding S. G. and any other confidential informants, and to order the
People: 1) to make good faith efforts to locate and produce S. G. for the
defense, 2) to make appropriate inquiries to the police agencies and officers
who provided reports regarding information pertinent to this case from unnamed
confidential informants to determine their identities and to inform the defense
unless the superior court determines that such information should remain
confidential, 3) to make appropriate inquiries to determine whether said police
agencies and officers possess any other information pertinent to or from S. G.
which has not already been provided to the defense, and 4) to respond to the
orders with a declaration under penalty of perjury.