People v. Lanfrey

• Citation: 204 Cal.App.3d 491,251 Cal.Rptr. 189
• Court: California Court of Appeals Court of Appeals
• Decision Date: 08 September 1988
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerome LANFREY, Defendant and Appellant. H000465.

Page 189

251 Cal.Rptr. 189

204 Cal.App.3d 491

The PEOPLE, Plaintiff and Respondent, v. Jerome LANFREY, Defendant and Appellant.

H000465.

Court of Appeal, Sixth District, California.

Sept. 8, 1988.

Fred Baker, San Francisco, for defendant and appellant.

Jeffrey M. Bryant, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

CAPACCIOLI, Justice.

Jerome Lanfrey appeals from a judgment of conviction for assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) ¹ with an enhancement for intentional infliction of great bodily injury ( § 12022.7) entered following a court trial. ( § 1237.) This case concerns, among other things, the public entity privilege of nondisclosure (Evid.Code, §§ 1041, 1042) ² as it relates to the identity of a nonparticipating eyewitness to an assault who furnished confidential information regarding the offense to the police.

Following the original decision of this court affirming Lanfrey's conviction, Lanfrey filed a petition for review which our Supreme Court granted. The cause has been retransferred to this court with directions to determine (1) "... whether the undisclosed witness was an 'informer' within the meaning of Evidence Code sections 1041 and 1042 ..." and (2) "... if so, whether disclosure is nevertheless required under Price v. Superior Court (1970) 1 Cal.3d 836, 843 [83 Cal.Rptr. 369, 463 P.2d 721] and People v. Lee (1985) 164 Cal.App.3d 830, 835-836 ."

Lanfrey specifically challenges (1) the trial court's denial of his motion to disclose the identity of the eyewitness-informer on the ground that the informer was a material witness on the issue of guilt, (2) the court's denial of his motion to suppress evidence ( § 1538.5, subd. (m)) and concomitant motion to disclose the identity of the eyewitness who supplied information which contributed to probable cause to arrest, and (3) the use of his extrajudicial statements for impeachment purposes. We again affirm.

I

Nondisclosure of Confidential Eyewitness-Informer's Identity

A Procedural History

In the municipal court, Lanfrey moved to compel disclosure of a confidential informant on the ground that the informant was a material witness on the issue of guilt. It was established through the examination of an officer that a nonparticipating eyewitness to the alleged assault confidentially conveyed information to the police. The People invoked the privilege to refuse to disclose the informant's identity. Following an in camera hearing, the municipal court denied Lanfrey's disclosure motion.

Prior to trial, Lanfrey renewed his disclosure motion before the superior court. The prosecution again asserted the privilege to refuse to disclose the informant's identity and requested an in camera hearing. At the hearing, the court reviewed the transcripts of the previous in camera hearing and satisfied itself that the eyewitness-informer "... would not exonerate or exculpate the defendant in any way...." The court denied the disclosure motion.

During trial, Lanfrey testified that he stabbed the victim because he thought the victim was holding a knife and was going to stab him. However, he then admitted the victim had merely been holding a beer bottle which he mistakenly believed was a knife. Following that testimony, Lanfrey once again renewed his disclosure motion on the ground he was for the first time asserting that he acted in self-defense while intoxicated ³ and the relevant facts might not have been explored during the prior in camera hearings. The trial judge, who had not ruled on defendant's prior disclosure motions nor read the in camera transcript, summarily denied Lanfrey's motion.

B Eyewitness as an Informer

The first issue posed by the Supreme Court is whether the undisclosed eyewitness was an "informer" within the meaning of Evidence Code sections 1041 and 1042. Evidence Code section 1041, subdivision (a), establishes that the public entity privilege of nondisclosure applies to "... the identity of a person who has furnished information as provided in subdivision (b) [of Evidence Code section 1041] purporting to disclose a violation of law of the United States or of this state or a public entity in this state...." Subdivision (b) of that section states: "This section applies only if the information is furnished in confidence by the informer to: [p] (1) A law enforcement officer; [p] (2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated; or [p] (3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2)." (Emphasis added.) Thus, the term "informer" in subdivision (b) refers back to subdivision (a), which indicates that an "informer" is one who furnishes information purporting to disclose a violation of law.

However, the statutory privilege of nondisclosure does not apply to every "informer." The privilege applies only if the information is furnished in confidence to specified persons, the privilege is claimed by a person authorized by the public entity to do so, and disclosure is forbidden by an act of the United States Congress or California statute or disclosure of the informer's identity is against the public interest. (Evid.Code, § 1041, subds. (a) and (b).)

Evidence Code section 1042 sets forth when the privilege of nondisclosure may be invoked without the public entity suffering an adverse ruling. Although the section uses the words "informer" and "confidential informant," it does not suggest any further definition of those terms. As we read Evidence Code section 1041 and 1042, a nonparticipating eyewitness who furnishes information concerning a crime in confidence to police is both an "informer" and a "confidential informant" within the meaning of those sections.

Lanfrey argues that the "... the only reasonable interpretation of [Evidence Code] Section 1041 is that the [undisclosed] eyewitness to the stabbing was not an informer" because "... the witness had never provided the police with information in the past" and "... received nothing in return for reporting the stabbing." He completely discounts the fact that the witness approached police with information regarding Lanfrey's commission of the offense and his whereabouts, but requested that his identity remain confidential. He implies that it would violate public policy if the identity of any eyewitness could be withheld simply because he requested confidentiality.

There are several flaws in this argument. First, Evidence Code section 1041 does not require that the information be furnished as a part of an ongoing relationship with authorities or in exchange for some benefit. Second, the privilege of nondisclosure does not apply unless information was "furnished in confidence." The requirement of confidence eliminates from the ambit of the privilege most eyewitnesses who simply provide information to authorities upon being interviewed. Third, the existence of the privilege where information is provided in confidence on a one-time basis is consistent with its public policy purpose of encouraging and protecting communication by citizens as an aid to effective law enforcement. (See People v. McShann (1958) 50 Cal.2d 802, 806, 330 P.2d 33.) Thus, Lanfrey's arguments are not well taken.

C. Disclosure of Eyewitness-Informer

The next question presented is whether disclosure is nevertheless required. The Supreme Court has directed our attention to Price v. Superior Court (1970) 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721 and People v. Lee (1985) 164 Cal.App.3d 830, 210 Cal.Rptr. 799. After a thorough review of those cases and other decisions of our high court, we find that disclosure is not mandated under the circumstances of this case.

In Price v. Superior Court, supra, 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721, the defendant was charged with discharging a firearm at a vehicle, assault, and attempted murder. (Id. at pp. 838-839, 83 Cal.Rptr. 369, 463 P.2d 721.) He sought to compel the trial court to suppress evidence obtained pursuant to a search warrant and to order disclosure of the identity of a confidential informer. (Ibid.) The search warrant affidavit contained statements of the informer indicating that the informer had overheard statements implicating Price from persons who the informer knew were present in the immediate area of the shooting. ( Id. at p. 839, 83 Cal.Rptr. 369, 463 P.2d 721.) The affidavit did not contain facts affirmatively establishing that the informer had been a percipient witness to the shooting. (Ibid.)

Citing earlier Supreme Court decisions, the court in Price stated: "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 him of a fair trial. [Citation.] The People must either disclose the informer's identity or incur a dismissal. [Citation.] [p] The defendant need not prove that the informer would give testimony favorable to the defense in order to compel disclosure of his identity, nor need he prove that the informer was a participant in or even an eyewitness to the crime." (Id. at pp. 842-843, 83 Cal.Rptr. 369, 463 P.2d 721.)

As to the extent of defendant's burden of proof on a disclosure motion, the court quoted its earlier decision of Honore v. Superior Court (1969) 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169. ( Price v. Superior Court, supra, 1 Cal.3d at p. 843, 83 Cal.Rptr. 369, 463 P.2d 721.) In Honore, the court had stated: "[A defendant's] 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 .) 'That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could...