People v. Johnson

• Decision Date: 22 December 1970
• Docket Number: Cr.-17812
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Lee JOHNSON, Defendant and Appellant.

Page 105

92 Cal.Rptr. 105

13 Cal.App.3d 742

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Lee JOHNSON, Defendant and Appellant.

Cr.-17812.

Court of Appeal, Second District, Division 3, California.

Dec. 22, 1970.

Hearing Denied Feb. 17, 1971.

Richard S. Buckley, Public Defender, James L. McCormick, James M. Epstein and Harry W. Brainard, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jane C. Liebman, Deputy Atty. Gen., for plaintiff and respondent.

COBEY, Associate Justice.

Charles Lee Johnson appeals from a judgment of conviction of possession of heroin. ¹ (health & Saf.Code, § 11500.)

The issues presented are whether the trial court was correct in denying appellant disclosure of the confidential informer's identity and whether the search that uncovered the heroin was constitutional. In this connection appellant contends that his arrest, to which the search was incidental, was without probable cause.

THE FACTS

During the afternoon of April 14, 1969, a confidential reliable informer, although unpaid, telephoned a narcotics officer of the Los Angeles Police Department, Joseph M. Machuszek and told him that appellant and a "female Mexican" by the name of Betty were selling heroin from apartment 31 at 14 Westminister Street in Venice; appellant rented the adjoining apartment, 32; that the two apartments had a common hall; appellant would frequently let "hypes" (users of heroin) use the other apartment; recently it was being used by a Timmie and a Barbara; and the heroin in apartment 31 was concealed in a telephone jack on the south wall of the bedroom.

At approximately 5:45 that evening, Officer Machuszek, accompanied by Sergeant Kline, went to the common door between apartments 31 and 32. After their second knock and their announcement that they were narcotics officers on a narcotics investigation, appellant answered the door. Appellant was known to Officer Machuszek because the officer had previously arrested appellant for possession of heroin.

The officers immediately placed appellant under arrest for possession of heroin. After noting the presence of two persons in the common hall between the apartments and appellant's female codefendant seated in the living room of apartment 31, Officer Machuszek walked into the bedroom of this apartment, removed the cover from the telephone jack on the south wall and found therein a chrome cigarette case. He opened the case and discovered inside it three small balloons containing a substance which was later established to be heroin.

Officer Machuszek recognized the informer from his voice. He had dealt with him on many prior occasions. All of these, except one, had been fruitful. Officer Machuszek did not ask the informer for the source of his information or whether the informer had personally even been in apartment 31.

Appellant made his request for the name of the informer on cross-examination of Officer Machuszek at the preliminary hearing. At that time the People claimed their privilege under Evidence Code section 1041. After argument by counsel the magistrate sustained the claim of privilege. Subsequently at a pretrial hearing on a motion to suppress the evidence (the heroin) pursuant to Penal Code section 1538.4 a second motion for disclosure of the informer's identity was made. It also rested upon the transcript of the preliminary hearing. It was denied. At trial a third motion for disclosure was made. It likewise was based

solely on the transcript of the preliminary hearing. It was denied.

DISCUSSION

The Attorney General seeks to justify the nondisclosure of the informer's identity on two grounds: (1) There was an insufficient showing at the trial level that the informer could be a material witness on the issues of appellant's guilt; and (2) the informer could not be such a witness. We agree generally but not completely.

The following colloquy occurred between court and counsel for appellant's codefendant immediately following his request of Officer Machuszek on cross-examination at the preliminary hearing for the name of the informer:

"MR. WILLENS [Deputy District Attorney]: Your Honor, again I am going to have to claim the privilege in this matter as I previously have claimed.

"MR. SOLOMON [Attorney representing codefendant]: The reason for claiming--the District Attorney's reasons for claiming the privilege I don't think is relevant.

"MR. WILLENS: The evidence code of the State of California says it is, your Honor.

"MR. SOLOMON: The cases say if it is relevant as to the defense of the case, anyway to the defendants, now the officer doesn't know whether the informant was there or not there. Therefore, it is relevant for the defense of this defendant to question the informant and to see if the informant had, in fact, been there.

"Now, this officer cannot tell us whether he had or had not been there, and it is relevant to this defendant's defense to know, since this may be a percipient witness to the exact facts of this case, and also to probable cause. Therefore, we will request that the District Attorney or the officer disclose the name ot [sic] us.

"MR. LEVY [Deputy Public Defender representing appellant]: If I might join in co-counsel's motion, your Honor.

"I would also like to add that the inference to be derived from the fact that the informant told the officers specifically where the contraband was, is perhaps that he had been in the apartment and, therefore, most likely was a percipient witness.

"MR. SOLOMON: The most recent case which was handed down by the Supreme Court is HONORE--

"THE COURT: Honore versus The Superior Court.

"MR. SOLOMON: Yes, January, 1969. The Court said, 'Defendants need not to prove that the informer could give testimony favorable to them in order to compel disclosure of his identify [sic] nor need not show that he was a participant in or an eye witness to the crime. Their burden extends only to a showing that "in view of the evidence, the informer would be a material witness to the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial".'

"We are in the same facts there. This person might possibly have been there or been there some time shortly before, the officer doesn't know whether he was there or not. Therefore, I think we have met the burden under this case. We have the right to question the witness. It is not a case where the officer knows he was there, he never asked him.

"THE COURT: The motion is to disclose the name of the informant, is that right?

"MR. SOLOMON: Yes.

"THE COURT: Any further argument on that issue?

"MR. SOLOMON: Submit it.

"THE COURT: The motion is denied."

Is is apparent from the quoted colloquy that appellant desired the name of the informer in order to find out from him whether he personally had been recently in the apartment of appellant, which he described in some detail, and might therefore have seen the heroin either behind hidden or in its hiding place.

The quoted argument of appellant's trial counsel in support of his request for the name of the informer was not as strong as it might have been. He could have pointed out that he wanted to locate the informer so that he might obtain the source of the informer's information, if that source were not the informer himself, and to ascertain from that source whether his client was in any way involved in the heroin being in his client's apartment. (See People v. Sullivan, 271 Cal.App.2d 531, 544, 77 Cal.Rptr. 25.)

We are not concerned, however, with whether appellant made the best possible showing, but with whether he made the showing, but with whether he made the showing required by the aforementioned Honore v. Superior Court, 70 Cal.2d 162, 168, 74 Cal.Rptr. 233, 449 P.2d 169. The Attorney General argues that he did not because more is required in this respect than mere speculation, that an articulated theory of defense must be advanced and perhaps evidence offered by the defendant as well. (See People v. Martin, 2 Cal.App.2d 121, 127, 82 Cal.Rptr. 414, People v. Sewell, 3 Cal.App.2d 1035, 1039, 83 Cal.Rptr. 895.)

We are not persuaded that all of the foregoing is necessarily the law. Honore makes no reference to an evidentiary showing, but simply to a showing. Evidence Code section 1042(d), which has been added to the code since the trial of this case, in providing for an evidentiary hearing outside the presence of the jury and for an in camera hearing as well, if the prosecutor so requests, does not require that the defendant at the evidentiary hearing present evidence in support of his request for the disclosure of the informer's identity. In Honore, supra, 70 Cal.2d 162, at page 170, 74 Cal.Rptr. 233, at page 238, 449 P.2d 169, at page 174, the court pointed out that, "by the very nature of the problem here confronting defendants it is impossible for them to state facts which would show the materiality of the informant's testimony." Furthermore, in both Honore and the subsequent case of Price v. Superior Court, 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721, the evidence analyzed by the court to determine whether a sufficient showing had been made was exclusively the allegations of the affidavit filed to obtain the issuance of the search warrant.

Under the evidence in this case, much like Honore, there were in addition to appellant, at least three, and possibly more, individuals to whom the heroin found in appellant's apartment might have belonged. On the other hand, unlike Honore, the record here does not establish either that the informer had ever been in appellant's apartment or that his information was firsthand. It is true that an inference to this effect could be drawn from its very detailed nature (see People v. Hamilton, 71 Cal.2d 176, 181, 77 Cal.Rptr. 785, 454 P.2d 681, Guerrero v. Superior Court, 2 Cal.App.3d 136, 140, 82 Cal.Rptr. 443), but this nature in itself did not...