People v. Hardeman

• Decision Date: 22 November 1982
• Docket Number: Cr. 40505
• Citation: 187 Cal.Rptr. 296,137 Cal.App.3d 823
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Charles Jasper HARDEMAN, Defendant and Respondent.

Page 296

187 Cal.Rptr. 296

137 Cal.App.3d 823

The PEOPLE, Plaintiff and Appellant, v. Charles Jasper HARDEMAN, Defendant and Respondent.

Cr. 40505.

Court of Appeal, Second District, Division 5, California.

Nov. 22, 1982.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and appellant.

Brown, Baron & Madden and Peter Brown, Beverly Hills, for defendant and respondent.

STEPHENS, Associate Justice.

Respondent was charged with constructive possession of phenycyclidine (PCP) (Health & Saf.Code, § 11378.5). The charge was based upon the discovery of a quantity of PCP upon premises occupied by the defendant. The discovery occurred during a police search conducted pursuant to a warrant issued on the basis of information supplied by a police informant. This appeal by the People stems from an order by the trial court dismissing the charge following the People's refusal to disclose the identity of the informant. The court based its decision on information and evidence heard during a pretrial hearing and an in camera hearing held at the prosecution's request. (Evid.Code, § 1042.) The reporter's transcript of the oral proceedings during which the disclosure order was issued reveals that the trial court articulated, for the record, the specific grounds for its order. The record also appears to reflect a contemporaneous unanimity of understanding between counsel for both parties and the court that it is upon those specific grounds that the court issued the order.

During the third week of October 1980, Officer Lutz of the Los Angeles Police Department was approached by an informant and told that PCP was being sold on certain premises located within the city. The particular informant was believed to be reliable as he had furnished information on three previous occasions, each of which resulted in the arrest of a narcotics offender and the seizure of contraband. The informant stated that on more than one occasion between October 20 and October 25, 1980, he had been inside the premises and observed the sale of PCP by an individual known as "Ghost Man." During these occasions, the informant had also observed various quantities of liquid PCP ranging in amount from ounces to gallons. The informant furnished Officer Lutz with a telephone number by which the individual known as "Ghost Man" could be contacted to arrange a sale of PCP. The informant and Officer Lutz thereupon went to a telephone booth, dialed the number furnished by the informant, and with the permission of the informant, Officer Lutz overheard the informant and a person identifying himself as "Ghost Man" arrange a PCP sale. Subsequently, the informant led Officer Lutz to the location of the premises in question and identified the specific dwelling in which he had previously observed "Ghost Man" selling PCP. The telephone number given by the informant to Officer Lutz was later established as being registered in the name of respondent and to the address of the same dwelling identified by the informant as the "Ghost Man's" business location. Based upon the telephone conversation, the premises identification, and corroborating information supplied by a second reliable informant, ¹ on October 27, 1980, Officer Lutz executed an affidavit requesting a search warrant for the premises. The search warrant was issued on a finding of probable cause, and authorized for service in the nighttime.

Eight days following the issuance of the search warrant, at 7:30 p.m. on November 4, 1980, Officer Lutz and several other police officers approached the premises occupied by the respondent from the front, for the purpose of serving the warrant and conducting a search. Noting the presence of a group of people on the front lawn of the premises, Officer Lutz and another officer went to the rear of the dwelling, scaled a fence and entered the back yard. There, the officers observed the respondent, wearing a Levi vest bearing the words "Ghost Man," standing outside of the dwelling. The officers identified themselves as police officers and stated that they were in possession of a search warrant for the premises. The respondent thereupon ran into the dwelling through a side door to the kitchen of the dwelling, and through the house to the front door. Respondent was arrested while attempting to flee from the front door.

During the subsequent search, the police discovered a quantity of liquid PCP, contained in a bottle, in a hiding place located underneath the house near the door through which the respondent had entered the house in his attempted flight. Inside the house, the police also recovered mail and utility bills in the name of the respondent and bearing the address of the premises searched. It was upon this search and the evidence obtained therefrom that respondent was charged with constructive possession of the PCP discovered underneath the house.

During pretrial proceedings, the respondent, then defendant, requested the disclosure of the informants who had supplied the information leading to the search of the premises. Following the refusal by the prosecution to disclose the identity, the respondent submitted a motion to compel disclosure. This appeal is taken from the trial court order dismissing the information filed against respondent in lieu of such disclosure.

The California Evidence Code provides that a public entity may refuse to disclose the identity of an informant. (Evid.Code, § 1041.) The basis of that privilege is a balancing of "the public interest in protecting the flow of information [to law enforcement officials] against the individual's right to prepare his defense." (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 418, 112 Cal.Rptr. 485; see People v. Tolliver (1975) 53 Cal.App.3d 1036, 1043, 125 Cal.Rptr. 905.) Where it is established that the informer whose identity is sought is a material witness to the issue of defendant's guilt, the privilege of non-disclosure will give way in the interest of justice. (People v. Williams (1958) 51 Cal.2d 355, 357, 333 P.2d 19; People v. Sewell (1970) 3 Cal.App.3d 1035, 1038, 83 Cal.Rptr. 895.) "In such cases, it is clear that the 'balance' is struck in favor of the defendant, and disclosure must be ordered upon pain of dismissal. Any other conclusion would be at variance with due process considerations of the state and federal Constitutions." (People v. Garcia (1967) 67 Cal.2d 830, 842, 64 Cal.Rptr. 110, 434 P.2d 366; see Williams v. Superior Court, supra, 38 Cal.App.3d at p. 418, 112 Cal.Rptr. 485.)

It is, however, the burden of the defendant to make a sufficient showing that the unnamed informer does have information which would be material to the defendant's guilt. (Price v. Superior Court (1969) 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721; People v. Garcia, supra, 67 Cal.2d at p. 839, 64 Cal.Rptr. 110, 434 P.2d 366; People v. Reel (1979) 100 Cal.App.3d 415, 421, 161 Cal.Rptr. 43.) This burden is met only where the defendant demonstrates through "some evidence" (Price v. Superior Court, supra, 1 Cal.3d at p. 843, 83 Cal.Rptr. 369, 463 P.2d 721) that there exists 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." (Honore v. Superior Court (1969) 70 Cal.2d 162, 168, 74 Cal.Rptr. 233, 449 P.2d 169, emphasis added; Price v. Superior Court, supra, 1 Cal.3d at p. 843, 83 Cal.Rptr. 369, 463 P.2d 721; People v. Reel, supra, 100 Cal.App.3d at p. 421, 161 Cal.Rptr. 43.) This "reasonable possibility" test is designed to protect the right of an individual to a fair trial through safeguarding his right to prepare his defense by compensating for any lack of knowledge regarding information relevant to the defendant's guilt or innocence potentially supplied by the unnamed informant. (Williams v. Superior Court, supra, 38 Cal.App.3d at p. 419, 112 Cal.Rptr. 485, citing People v. Kiihoa (1960) 53 Cal.2d 748, 754, 3 Cal.Rptr. 1, 349 P.2d 673; and Price v. Superior Court, supra, 1 Cal.3d at p. 843, 83 Cal.Rptr. 369, 463 P.2d 721.)

The standard of "reasonable possibility" has "vague and almost limitless perimeters which must be determined on a case-by-case basis." (People v. Tolliver, supra, 53 Cal.App.3d at p. 1049, 125 Cal.Rptr. 905; Williams v. Superior Court, supra, 38 Cal.3d at p. 421, 112 Cal.Rptr. 485.) The courts have indicated that the measure of the "reasonable possibility" standard to be utilized in individual cases is predicated upon the relative proximity of the informant to the offense charged. "[T]he evidentiary showing required by those decisions is ... as to the quality of the vantage point from which the informer viewed either the commission or the immediate antecedents of the alleged crime." (Williams v. Superior Court, supra, 38 Cal.App.3d at p. 423, 112 Cal.Rptr. 485, emphasis added.) The existence of a reasonable possibility that testimony given by an unnamed informant could be relevant to the issue of defendant's guilt becomes less probable as "the degree of attenuation which marked the informer's nexus with the crime" (Williams v. Superior Court, supra, 38 Cal.App.3d at pp. 420-421, 112 Cal.Rptr. 485) decreases. If the informer is not a percipient witness to the events which are the basis of the arrest, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest. Thus, "when the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility." (Williams v. Superior Court, supra, 38 Cal.App.3d at p. 420, 112 Cal.Rptr. 485.) Further, where the defendant is charged with constructive possession of narcotics which is imputed by police...