People v. Bradley

• Decision Date: 17 January 2017
• Docket Number: C075294
• Citation: 212 Cal.Rptr.3d 772,7 Cal.App.5th 607
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sherone BRADLEY, Defendant and Appellant.

7 Cal.App.5th 607

212 Cal.Rptr.3d 772

The PEOPLE, Plaintiff and Respondent,

v.Sherone BRADLEY, Defendant and Appellant.

C075294

Court of Appeal, Third District, California.

Filed January 17, 2017

C. Matthew Missakian, Long Beach, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.

NICHOLSON, J.

When arrested by law enforcement, defendant Sherone Bradley, an admitted felon, possessed a firearm he admitted possessing before and during the charged offense. Convicted of being a felon in possession of a firearm, he contends the trial court abused its discretion and denied him his constitutional rights when it denied his motion for disclosure of a confidential informant whom defendant claimed entrapped him, and when it sustained a government agent's invocation of the privilege not to testify regarding the informant. We conclude the trial court did not err. Any error, if there was one, was harmless under any standard of prejudicial error, and we affirm.

FACTS

Erik Crowder is a special agent for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In 2011, he set up a tobacco wholesale business in a warehouse as part of an undercover investigation into outlaw motorcycle gangs. On June 22, 2011, Agent Crowder held a barbeque at the warehouse. Some of the invitees were members of the Ching A Lings, an organized motorcycle club. The atmosphere was relaxed and jovial. People were eating and drinking, laughing and joking. Nevertheless, Crowder had "safety features" in place to protect him from the people attending the barbeque.

Defendant's father, James Bradley, brought defendant to the barbeque. Agent Crowder knew James from their association in the Wheels of Soul, a different motorcycle club, but this was the first time he had met defendant. The parties stipulated defendant had previously been convicted of a felony.

Defendant appeared to be comfortable and was enjoying himself at the barbeque. Agent Crowder saw him smoking marijuana at one point. Defendant did not talk about being fearful, and he did not mention he knew Crowder was working as an undercover agent.

Towards the end of the barbeque, defendant removed a handgun from his waistband or pocket and showed it to Agent Crowder. It was a small .22–caliber revolver. Crowder memorized the gun's serial number and recorded it in his report—L121277.

Defendant and his father laughed as they told Agent Crowder of a prior incident when defendant, then on parole, possessed the gun while stopped by law enforcement. The officers performed a patdown search on defendant, but they missed the small gun, which was tucked behind his waistband. Defendant put his hands up in the air to show Crowder how the officers missed the gun during the patdown. Defendant seemed to boast over the incident. He showed Crowder documentation attesting he was no longer on parole, and thus no longer subject to search conditions. Crowder made audio and video recordings of this conversation, and they were played for the jury.

At no time did defendant tell Crowder he possessed the gun at the barbeque to protect himself or his father, or that he was fearful for his and his father's safety.

Four months later, Walnut Creek police searched defendant's car. They recovered a silver, five-shot revolver bearing the serial number L121277.

Defendant testified on his own behalf. His defense was that a confidential informant at the barbeque entrapped him to possess the firearm. In summary, defendant testified his life and the lives of his father, Agent Crowder (whom he knew as "Repo"), and that of his father's friend who went by the name of "Beast" were in danger because they had all left the Wheels of Soul club. Prior to the barbecue, defendant became aware that Repo was an undercover police officer and Beast was an informant. Defendant stated Beast urged him to bring the gun to the barbeque to provide security for himself and his father due to threats from Wheels of Soul members. Defendant showed Repo the gun at the barbeque so Repo knew defendant had his back. Beast was at the barbeque and was around the general area when defendant showed Repo the gun. We describe defendant's testimony in detail below.

At the close of defendant's case, the parties stipulated "there was, in fact, a confidential informant involved in this case."

A jury convicted defendant of being a felon in possession of a firearm. (Pen. Code, former § 12021, subd. (a)(1).) Defendant also admitted serving a prior prison term for purposes of Penal Code section 667.5, subdivision (b). The trial court imposed a state prison term totaling three years, calculated as follows: the midterm of two years for the unlawful possession, plus a consecutive one year for the prior prison term enhancement.

DISCUSSION

This appeal challenges the trial court's denial of defendant's attempts to obtain Beast's identity and establish Beast was a government informant who entrapped defendant to possess the firearm. Defendant contends the court abused its discretion and violated his constitutional rights by (1) denying his motion to disclose Beast's identity; and (2) sustaining Agent Crowder' invocation at trial of a privilege under Evidence Code sections 1040 and 1041 not to disclose official information and information about confidential informants.¹ Defendant also initially contends the court erred in applying section 1041 nondisclosure privilege because Beast was not an informer within the meaning of that statute.

We conclude (1) Beast was an informer for purposes of section 1041 ; (2) the trial court did not abuse its discretion by not permitting disclosure of Beast's identity and sustaining Agent Crowder's invocation of privilege; and (3) if the court erred, the error was harmless.

A. Background information

Before trial, defendant filed a motion to disclose the confidential informant's identity, or, in the alternative, to dismiss the action. Defendant alleged the confidential informant, referenced in the motion as CI3123, attended Agent Crowder's barbeque and was seen in the video of the event. Defendant argued the informant was a material witness because he had a sufficiently close vantage point from which he could have viewed the crime, and he could have been able to provide evidentiary support for defendant's affirmative defense of entrapment.

Supporting the motion, defendant testified in a declaration he, his father (James), Agent Crowder, and the informant were once members of the Wheels of Soul Motorcycle Club. James was the club's president, and the informant was its sergeant at arms, who was responsible for James's security. Defendant knew the informant and considered him a family friend. The informant asked defendant to watch the door during club meetings to ensure no one entered uninvited.

Defendant, James, Agent Crowder, and the informant left the Wheels of Soul because club members threatened the informant when he refused to conduct a hit on another member. Members also threatened the informant and James with death for leaving the club, and they labeled the two as snitches. Defendant heard his father and the informant talk about the threats. Because defendant left the club under similar circumstances, he believed he, his father, and the informant were in grave danger.

Later, James, the informant, and Agent Crowder joined the Ching A Ling motorcycle club. Defendant joined at James's and the informant's urging. Defendant testified that about one week prior to Agent Crowder's barbeque, the informant personally urged him to arm himself at a Ching A Ling club meeting, and he offered him a firearm to do so. The informant counseled defendant to arm himself for all Ching A Ling meetings due to the Wheels of Soul threats. The informant believed he and James were targets.

Defendant took the informant's warnings seriously. He knew James feared attending the barbeque, and he feared going as well. He remembered the informant's caution right before the barbeque. At the time of the barbeque, defendant did not know Agent Crowder had a security detail protecting the event.

At the hearing on defendant's motion, the court asked to hear from Agent Crowder about whether the person defendant claimed was an informant truly was an informant, and what instructions, if any, Crowder gave to him for the barbeque. However, when defense counsel asked Crowder whether he worked with informant CI31213, Crowder invoked his privilege not to testify under sections 1040 and 1041. The court then convened an in camera hearing and examined Crowder. The court ordered the transcripts of the in camera hearing sealed. Following the in camera hearing, the court announced it was not prepared to disclose the confidential informant's identity.

The following day, the court stated it was considering changing its mind. The court asked the prosecution if it did not order the informant's identity to be disclosed, if defendant already knew the informant's real name, and if defendant testified at trial that the informant urged defendant to bring a gun to the barbeque, could the court preclude defendant from establishing the informant was in fact an informant for Agent Crowder. The prosecutor said no, and the court agreed with him. The prosecutor said the defendant could testify as he saw fit, but the People were asking the defendant not to identify the informant by name or indicate he was a confidential informant. The court, however, noted the entrapment defense evaporates without some evidence the person entrapping the defendant was connected to law enforcement. The prosecution agreed, but it had no suggestion on how to move forward.

Defense counsel argued the informant was a material witness. The informant was in a position to have been a witness of the alleged crime. He also could have seen Agent Crowder, whose sobriety...