Honore v. Superior Court of Alameda County

• Decision Date: 20 January 1969
• Docket Number: S.F. 22618
• Citation: 74 Cal.Rptr. 233,70 Cal.2d 162,449 P.2d 169
• Court: California Supreme Court
• Parties: , 449 P.2d 169 Charlye Ann HONORE et al., Petitioners, v. The SUPERIOR COURT OF ALAMEDA COUNTY et al., Respondents; The PEOPLE, Real Party in Interest.

Page 233

74 Cal.Rptr. 233

70 Cal.2d 162, 449 P.2d 169

Charlye Ann HONORE et al., Petitioners, v. The SUPERIOR COURT OF ALAMEDA COUNTY et al., Respondents;

The PEOPLE, Real Party in Interest.

S.F. 22618.

Supreme Court of California.

Jan. 20, 1969.

Rehearing Denied Feb. 19, 1969.

John D. Nunes, Public Defender, and Robert L. Boags, Asst. Public Defender, for petitioners.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., John T. Murphy and Robert R. Granucci, Deputy Attys. Gen., for respondents and real party in interest.

SULLIVAN, Justice.

Petitioners are charged by separate informations ¹ in the respondent court with possession of marijuana (Health & Saf.Code, § 11530). They seek a writ of prohibition to compel respondent court to grant pretrial discovery of the name of a confidential informant and to restrain said court from taking further proceedings in their respective criminal actions until the identity of the informant has been disclosed. We issued an alternative writ of prohibition. We have concluded that although in seeking prohibition petitioners have mistaken their remedy, they have nevertheless made out a case entitling them to mandate to enforce discovery. Accordingly, we treat the petition as one for mandate (see Powell v. Superior Court (1957) 48 Cal.2d 704, 705, 312 P.2d 698; De Losa v. Superior Court (1958) 166 Cal.App.2d 1, 2, 332 P.2d 390) and we order the issuance of a peremptory writ.

On February 18, 1968, about 5:30 a.m. defendant Charlye Ann Honore was taken into custody by the Richmond (Contra Costa County) police on a charge unrelated to those now pending. At the hearing below Richmond Police Officer Rufus Horton, assigned to the vice squad, testified that about 3 p.m. on February 18, he was contacted by an informant, known by him to be reliable, who discussed with the officer said defendant's past dealing in methedrine and indicated that defendant was probably still involved in selling the drug. The informer further stated that he would attempt to verify this by ascertaining whether said defendant had methedrine in her apartment in Albany (Alameda County). ²

Defendant Honroe was released from custody at 7:30 p.m. on the evening of February 18. Sometime between 8 and 9 p.m. the informant returned to Richmond to meet with Officer Horton. He stated that he had been at defendant's apartment and had seen a quantity of methedrine there. Four other persons were in the apartment at the time. It is not clear from the record before us whether defendant Honore or defendant Newman was one of the four ³ nor does the record disclose at what time between the 3 p.m. and 8 p.m. meetings with Officer Horton the informant visited the Albany apartment.

In the early hours of February 19 a search warrant was issued to officers of the Albany Police Department by a judge of the Municipal Court of the Berkeley-Albany Judicial District, County of Alameda, authorizing the immediate search in the night-time of the person of Charlye Ann Honore and the premises located at 1013 Solano Avenue, Albany, occupied by defendant Honore, for heroin, marijuana and restricted dangerous drugs together with any paraphernalia for narcotic packaging and use.

The affidavit for the warrant was made by Officer Horton and it set forth, inter alia, the following facts as constituting probable cause to believe that defendant Honore was then in possession of the specified contraband on the premises or on her person: That affiant was contacted on February 18th by a 'confidential reliable informant' who told him that Charlye Ann Honore was engaged in the sale of restricted dangerous drugs and had at that time a large quantity of methedrine in her possession at 1013 Solano Avenue, Albany; that affiant considered the confidential informant to be reliable based on past information received from the informant which proved to be correct; and that affiant desired to keep the identity of the informant secret so as not to destroy his future usefulness to law enforcement. ⁴

About 1:30 a.m. on February 19, Albany police officers, accompanied by Officer Horton, went to defendant Honore's apartment to execute the warrant. They knocked on the front door and in answer to a question from someone inside the apartment they demanded entry stating that they were police officers and has a search warrant. When the officers heard people running inside the apartment and were not admitted they kicked in the front door and entered the premises. Inside they found 10 persons among whom were defendants. They also found a quantity of marijuana both in cigarette and bulk form scattered through out the apartment, some of it in plain view. They found no methedrine. The officers arrested defendants for possession of marijuana and informed them of their constitutional rights.

Prior to the preliminary hearing defendants moved under Penal Code section 1538.5 to attack the validity of the search warrant and to compel disclosure of the identity of the informant. The motion was denied. A preliminary hearing was had and defendants were held to answer. After the filing of the informations in respondent court, defendants moved both under Penal Code section 1538.5 and by way of a motion for pretrial discovery to compel disclosure of the identity of the informant. ⁵ At the hearing on the motions ⁶ Officer Horton refused to disclose the identity of the informer by claiming the privilege of nondisclosure under Evidence Code section 1041, stating that such disclosure would impair the informer's future usefulness to law enforcement and might also subject the latter to bodily injury or death. The court sustained the claim of privilege and denied the motion for discovery holding that the informer would not be a material witness on the issue of defendants' guilt of the marijuana charges.

The question before us, therefore, is whether respondent court erred in refusing to order the prosecution to disclose the identity of the informer.

Evidence Code section 1041, subdivision (a)(2), provides that a public entity has a privilege to refuse to disclose the identity of an informer if '(d) isclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice * * *.' The above section, enacted in 1965 as part of the Evidence Code and in effect on January 1, 1967, is based on former Code of Civil Procedure section 1881, subdivision (5). We have recently pointed out that the above Evidence Code section is in substantial agreement with its predecessor section as interpreted by the decisions of this court. (People v. Garcia, supra, 67 Cal.2d 830, 842, 64 Cal.Rptr. 110, 434 P.2d 366.) The claim of privilege must thus be examined in the light of these precedents.

We explained at some length in People v. McShann, supra, 50 Cal.2d 802, 330 P.2d 33, and have recently repeated in People v. Garcia, supra, 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366, that when it appears from the evidence that an informer is a material witness on the issue of the defendant's guilt, the informer's identity may be helpful to the defendant and nondisclosure would deprive the latter of a fair trial. Thus, when 'the accused seeks disclosure on cross-examination, the People must either disclose (such informer's) identity or incur a dismissal.' (Original italics.) (People v. Garcia, supra, 67 Cal.2d 830, 836, 64 Cal.Rptr. 110, 114, 434 P.2d 366, 370, quoting from People v. McShann, supra, 50 Cal.2d 802, 808, 330 P.2d 33.)

Defendants need not prove that the informer could give testimony favorable to them in order to compel disclosure of his identity nor need they show that he was a participant in or an eyewitness to the crime. (People v. Garcia, supra, 67 Cal.2d 830, 837, 64 Cal.Rptr. 110, 434 P.2d 366.) Their burden extends only to a showing 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.' (People v. Williams (1958) 51 Cal.2d 355, 359, 333 P.2d 19, 22.) '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 (original emphasis) 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 added.) (People v. Castiel (1957) 153 Cal.App.2d 653, 659, 315 P.2d 79.)' (Original italics.) (People v. Garcia, supra, 67 Cal.2d 830, 839--840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372.)

Defendants assert that they did not bring the marijuana into the apartment but rather that it was brought in by other persons during the time defendant Honore was in custody. For this reason they contend that since the informant was at defendant Honore's apartment earlier in the day he 'would be able to say if there were any narcotics, and if so who had the narcotics or whether the narcotics were brought into Petitioner Honore's premises while she was in custody and without her permission or consent.' We have concluded that this contention has merit.

Defendant Honore was in custody for 14 hours during which time she had no knowledge of what was occurring at her apartment. The informant visited the apartment sometime between 3 and 8 p.m. and subsequently told Officer Horton that he had seen four people there. It is possible, as defendants...