People v. Borunda

• Decision Date: 20 May 1974
• Docket Number: Cr. 17427
• Court: California Supreme Court
• Parties: , 522 P.2d 1 The PEOPLE, Plaintiff and Appellant, v. Richard Polacious BORUNDA, Defendant and Respondent.

Page 825

113 Cal.Rptr. 825

11 Cal.3d 523, 522 P.2d 1

The PEOPLE, Plaintiff and Appellant, v. Richard Polacious BORUNDA, Defendant and Respondent.

Cr. 17427.

Supreme Court of California In Bank.

May 20, 1974.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender, Harold E. Shabo, Michael P. Judge and Richard A. Curtis, Deputy Public Defenders, for defendant and respondent.

SULLIVAN, Justice.

Defendant Richard Polacious Borunda was charged by information with possession of heroin. (Health & Saf.Code, § 11500.) His motion to discover the identity of an informant on the ground that he was a material witness on the issue of guilt was granted, and when the People refused disclosure the court ordered the case dismissed. (Pen.Code, § 1385.) The People appeal from the order of dismissal. (Pen.Code, § 1238(a), subd. 8.)

In August of 1972 a Los Angeles police officer assigned to the narcotics unit received information that two male Mexicans were selling heroin at a specified apartment. On August 22 the officer proceeded to stake out the apartment, and about 8:30 in the evening he observed defendant emerge from the apartment and walk a short distance down the road, where he met a male Mexican and appeared to exchange some items with him before returning to the apartment.

Later that evening an untested informant told the officer that he had purchased heroin from 'Mr. Richard' at the apartment on several occasions and had seen the same person packaging heroin there. The officer at this time searched the informant, gave him $25 in currency (whose serial numbers he had first recorded), and directed him to attempt to purchase as much narcotics as he could at the apartment for that amount of money. While the officer watched with binoculars from a distance of 500 feet, the informant went to the apartment, entered, remained inside for a few minutes, and then left. He then returned to the officer who after searching him again found that he no longer had the money but that he did have a small red balloon containing heroin.

At this point the officer and two other members of the narcotics unit approached the apartment. The officer knocked on the door, identified himself, announced his purpose to arrest defendant for the sale of heroin, and demanded admittance. There was no response, but the officer according to his testimony saw defendant--through an adjacent open patio door--get up from his seat in the living room and run toward the rear of the apartment. The officer immediately forced entry and went to the rear of the apartment where he found defendant in the bathroom. The toilet had been flushed and, again according to the officer's testimony, there were several colored balloons swirling in the bowl and about to disappear. He reached into the bowl and was able to retrieve a plastic bag containing a Green balloon containing heroin. This was the only evidence introduced against defendant.

In the course of a combined hearing on defendant's motions to suppress pursuant to Penal Code section 1538.5 and to discover the identity of the untested informant, defendant's sister, who was also in the apartment at the time of the arrest, gave a version of the subject events which differed materially from that of the officer. Relative to the section 1538.5 motion she testified that immediately upon announcing his purpose the officer made a forcible entry and that defendant did not then run from the living room to the rear of the apartment because he was already at that time at the rear of the apartment in the bedroom or the bathroom. Furthermore, she testified, when the officer emerged from the bathroom he was holding an Empty plastic bag and saying: 'The son of a bitch, the son of a bitch, he downed it.'

The trial court denied the section 1538.5 motion on the ground that the question of defendant's location and conduct immediately preceding the entry was one of credibility. However, the court granted the motion to compel disclosure of the identity of the untested informant on the ground that he might be a material witness on the issue of guilt. When the prosecution refused to make the indicated disclosure, the trial court dismissed the action in the interests of justice pursuant to Penal Code section 1385. The People appeal from the order of dismissal. (See Pen.Code, § 1238(a), subd. 8.)

',2] It is well settled that California does not require disclosure of the identity of an informant who has supplied probable cause for the issuance of a search warrant where disclosure is sought merely to aid in attacking probable cause. (People v. Keener (1961) 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 361 P.2d 587; see also McCray v. Illinois (1967) 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.) It is equally well settled that when the defendant makes an adequate showing that the informer may be a material witness on the issue of guilt or innocence, disclosure should be compelled or the case dismissed. (Price v. Superior Court (1970) 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721; Honore v. Superior Court (1969) 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169; People v. Garcia (1967) 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366; People v. McShann (1958) 50 Cal.2d 802, 330 P.2d 33; see also Roviaro v. United States (1957) 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.)' (Theodor v. Superior Court (1972), 8 Cal.3d 77, 88, 104 Cal.Rptr. 226, 233, 501 P.2d 234, 241.) '(A) defendant seeking to discover the identity of an informant bears the burden of demonstrating 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.' (Citations.) 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.' (People v. Garcia (1967), 67 Cal.2d 830, 839--840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372, italics added, fn. omitted.)

In the instant case defendant on his motion for discovery sought to demonstrate the indicated possibility on two theories. The first of these was based on the conflict between the testimony of the arresting officer and that of defendant's sister as to whether or not any heroin was actually recovered from the toilet bowl at the time of the arrest. The informant, it was urged, might well give evidence bearing upon this conflict by testifying relative to his dealings with the officer on the evening of August 22. If, for example, he should testify that the balloon of heroin which he delivered to the officer after visiting defendant's apartment was Green rather than Red as the officer claimed, ¹ the jury might be led to conclude that the officer had in fact recovered no heroin at the apartment and had offered as evidence against defendant the heroin with which the informant had provided him. ²

The second theory advanced by defendant was that the informant, by testifying as to whom he had dealt with in the apartment, might give evidence in support of a contention that defendant's possession of the heroin was only momentary and transitory. (See People v. Mijares (1971), 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115.)

3] The trial court, granting defendant's motion for discovery, relied upon the first of the aforementioned theories. ³ We have concluded that the motion was properly granted on this basis, and that upon the prosecution's refusal to comply with the order requiring disclosure of the informant's identity, the action was properly dismissed.

4] The principal argument advanced by the People on their appeal is that the informant could not have been a material witness on the issue of guilt because he was not present in defendant's apartment...