Alvarado v. Superior Court

Decision Date17 August 2000
Docket NumberNo. S059827.,S059827.
Citation5 P.3d 203,23 Cal.4th 1121,99 Cal.Rptr.2d 149
CourtCalifornia Supreme Court
PartiesJoaquin ALVARADO, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest. Jorge Lopez, Petitioner, v. The Superior Court of Los Angeles County, Respondent; The People, Real Party in Interest.

Michael M. Crain, Santa Monica, under appointment by the Supreme Court, for Petitioner Joaquin Alvarado.

Robert S. Gerstein, Santa Monica, under appointment by the Supreme Court; Richard H. Millard, Los Angeles, and Tara Selver for Petitioner Jorge Lopez.

Paul L. Hoffman, Mark D. Rosenbaum and Dilan Esper, Los Angeles, for ACLU Foundation of Southern California, as Amicus Curiae on behalf of Petitioner Jorge Lopez.

John T. Philipsborn for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Gil Garcetti, District Attorney, Brent Riggs and Brentford J. Ferreira, Deputy District Attorneys, for Real Party in Interest.

Kent S. Scheidegger and Charles L. Hobson for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Real Party in Interest.

Latham & Watkins, Costa Mesa, and Michael Bruce Abelson for Witness Protection Foundation as Amicus Curiae on behalf of Real Party in Interest.

GEORGE, C.J.

In this case we must determine the validity of an order, entered prior to trial in a criminal action, that authorizes the prosecution to refuse to disclose to the defendants or their counsel, both prior to and at trial, the identities of the crucial witnesses whom the prosecution proposes to call at trial, on the ground that disclosure of the identities of the witnesses is likely to pose a significant danger to their safety.

Protecting the safety of witnesses unquestionably is of the utmost importance, and a trial court has broad discretion to deny, restrict, or defer disclosure of a witness's identity prior to trial in order to provide such protection (Pen.Code, § 1054.7). As we shall explain, however, we conclude in light of controlling constitutional authorities that the trial court and the Court of Appeal erred in determining that, when the risk to a witness is sufficiently grave, the identity of the witness may be permanently withheld from a defendant and the witness may testify anonymously at trial even when the witness is a crucial prosecution witness and withholding the witness's identity will impair significantly the defendant's ability to investigate and cross-examine the witness.

As discussed hereafter, numerous decisions of both the United States Supreme Court and the California courts establish that whenever nondisclosure of a witness's identity will prevent the effective investigation and cross-examination of a crucial witness, the confrontation clause precludes the prosecution from relying upon the witness's testimony at trial while refusing to disclose the witness's identity. As the United States Supreme Court has explained: "[W]hen the credibility of a witness is in issue, the very starting point in `exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witnesses] name and address open countless avenues of incourt examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself" {Smith v. Illinois (1968) 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956, italics added, fn. omitted.)

Accordingly, we conclude that the challenged order must be vacated insofar as it authorizes, in advance of trial and without regard to the evidence and circumstances as they then may appear, the prosecution permanently to withhold the identity of these prosecution witnesses from the defense. At the same time, however, we emphasize that the trial court remains free to fashion a more limited order denying, restricting, or deferring disclosure of the identity of each witness before trial (including limiting disclosure to defendants' counsel), as long as that order does not impermissibly impair defendants' right to confront and cross-examine the witnesses effectively at trial.

I.

On February 6, 1993, during the noon hour, Jose Uribe, an inmate at the Los Angeles County jail, was killed in his cell, having been stabbed 37 times with a contraband knife described as a shank. Three other inmates allegedly witnessed the incident.

Following an investigation by law enforcement officials, a complaint was filed charging defendants Joaquin Alvarado and Jorge Lopez with the first degree murder of Uribe. A third defendant, Frank Marquez, also was charged but is not a party to this proceeding. The prosecution provided discovery to the defense indicating that three inmates witnessed the killing. A magistrate ordered the prosecution to provide the defense with the identities of the witnesses prior to the commencement of the preliminary hearing, pursuant to Penal Code sections 1054.1, subdivision (a), and 1054.5.1

Instead of complying with the magistrate's order, the prosecution presented its case to a grand jury, which returned an indictment charging defendant Alvarado with murder (and alleging a prior-murder special circumstance) and conspiracy to commit murder, and charging defendant Lopez with murder, conspiracy to commit murder, and possession of a shank while in custody (on three occasions unrelated to the present incident). (§§ 187, 190.2, subd. (a)(2), 182, subd. (a)(1), 4574, subd. (a).) The prosecution is seeking the death penalty against Alvarado but not against Lopez.

The prosecution provided defendants with transcripts of the grand jury proceedings, in which the three inmate eyewitnesses are identified only as witnesses 1, 2, and 3. We summarize the testimony of the three witnesses before the grand jury.

Witness 1 testified that on the day of the murder, he was housed in cell No. 12. Witness 1 heard Marquez, a jail trusty, ask one of witness 1's two cellmates in Spanish for some extra jail clothing, mentioning something about a snitch. Witness 1 gave Marquez his shirt, hoping to curry favor with Hispanic inmates. Witness 1 remained in his cell during the noon hour because he was tired. He saw a group of five inmates, including defendants, near his cell. He then heard an altercation and observed the same group of five inmates leave the area.

Two days after the murder, during the course of the sheriffs department's investigation, witness 1 identified a photograph of Marquez as depicting the person to whom he gave his shirt, but six months later he selected another photograph identifying a different individual. Witness 1 told the grand jury that he had been confused regarding his earlier photographic identification. Witness 1 further testified that defendants were in the group of inmates he saw near his cell and that on the day immediately preceding his testimony before the grand jury, he was placed in the same jail cell as defendant Alvarado, who threatened to harm him if he testified.

Witness 2 testified that, on the morning of Uribe's death, Marquez came to cell No. 11, where witness 2 was housed. Marquez spoke to witness 2's cellmates in Spanish. Witness 2 believed that Marquez said a snitch was going to be dealt with in cell No. 10, and said witness 2 should stay away from cell No. 10. Approximately 10 minutes later, witness 2 heard a Black trusty inform certain Black inmates to stay away from the end of the row where cell No. 10 was located. Witness 2 remained in his cell around noon instead of going to lunch, because he wanted to eat the food he had purchased that morning at the commissary.

Around noon, witness 2 saw defendants Alvarado and Lopez, who were not assigned to cell No. 10, enter that cell with another inmate who was housed there. Witness 2 then heard an altercation inside cell No. 10 and something being said about being a snitch. Shortly thereafter, witness 2 saw Lopez give a bloody shirt to Marquez outside cell No. 10. Witness 2 also saw a bloody body lying under a bed inside cell No. 10. Marquez told witness 2 to return to his cell because the matter did not involve him.

As part of the investigation into Uribe's murder, witness 2 was shown photographs of inmates who had been in the area. Witness 2 identified Marquez, Lopez, and Alvarado. (Witness 2 initially identified a different individual as having accompanied Lopez into cell No. 10. When thereafter shown Alvarado's photograph, witness 2 stated that his earlier identification had been mistaken.)

Witness 3 was a jail trusty assigned to sweep the module that contained cell Nos. 10, 11, and 12. On the morning of the murder, he saw Marquez wrap a shank inside a shirt and give it to another Hispanic inmate. After lunch, witness 3 saw Marquez take a shirt from someone on the same row.

The prosecution provided the defense with the grand jury transcripts and information regarding the witnesses' criminal histories, but did not provide the names or photographs of witnesses 1, 2, or 3.2 The defense continued to seek the witnesses' true names and addresses. The prosecution then sought a protective order, authorizing it permanently to withhold disclosure of the witnesses' identities and photographs from defendants or their counsel on the ground that disclosure would place the witnesses' lives in danger.

Over defendants' objections, the trial court held a series of in camera hearings, from which the defense was excluded, to permit the prosecution to demonstrate good cause why disclosure of the witnesses' names and photographs should be denied. (§ 1054.7.) Based upon the evidence adduced at these hearings, the trial court found as follows:

"The evidence presented clearly established that witnesses 1 through 3 are in serious danger as a result of their participation in this case and that the...

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