People v. Rivas

• Decision Date: 19 July 1985
• Citation: 216 Cal.Rptr. 477,170 Cal.App.3d 312
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pedro Ortiz RIVAS, Defendant and Appellant. Crim. F003442.
• Court: California Court of Appeals Court of Appeals

Page 477

216 Cal.Rptr. 477

170 Cal.App.3d 312

The PEOPLE, Plaintiff and Respondent, v. Pedro Ortiz RIVAS, Defendant and Appellant.

Crim. F003442.

Court of Appeal, Fifth District, California.

July 19, 1985.

Review Denied October 23, 1985.

[170 Cal.App.3d 314] Rose & Arnold Law Corp., Ronald W. Rose, Mark A. Arnold and Carleen R. Arlidge, San Jose, for defendant and appellant.

John K. Van de Kamp, Atty. Gen. and J. Robert Jibson, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

WOOLPERT, Acting Presiding Justice.

After a trial by the court, defendant was convicted of one count of possession of cocaine for the purpose of sale. (Health & Saf. Code, § 11351.) Defendant appeals from the judgment of conviction, claiming certain pretrial rulings by the magistrate and the trial court operated to deny him his right to challenge the accuracy of an affidavit which was used to obtain a search warrant for his residence. We conclude that defendant was denied a reasonable opportunity to challenge the affidavit.

PROCEDURAL HISTORY

After being arrested and charged, defendant made a motion for pre-preliminary examination discovery. The motion sought various documents, allegedly held by the prosecution, which defendant believed might undermine certain statements contained in the search warrant affidavit; specifically, the statements alleging a particular confidential informant had been a reliable source of information to the police in other cases. The motion was granted for numerous items, but was denied for many others.

Defendant unsuccessfully petitioned the superior court for a writ of mandate to compel discovery of the remaining items. Defendant then unsuccessfully petitioned this court for the same writ of mandate. We denied the petition, exercising "our discretion in original proceedings to deny review of the difficult issues raised by the petition" at that early stage of the proceedings.

A preliminary examination was held, during which defendant was restricted in his cross-examination of the search warrant affiant concerning the reliability of the confidential informant. Defendant was held to answer on the charge.

Later, in superior court, defendant filed a motion to set aside the information (Pen.Code, § 995), ¹ challenging the magistrate's partial denial of his discovery motion, as well as the magistrate's restriction of defendant's inquiry at the preliminary examination into the reliability of the confidential Next, defendant filed a petition for a writ of prohibition with this court, challenging the denial of his section 995 motion. The same day, however, defendant waived his right to a jury trial and submitted the question of his guilt to the superior court based upon the transcript of his preliminary examination. Defendant was found guilty of the charge and, ultimately, was sentenced to state prison for the middle term of three years. This court subsequently denied defendant's petition for a writ of prohibition when it learned that defendant's trial had already taken place. Defendant appeals from the judgment of conviction.

informant. This motion likewise was denied.

THE FACTS

Police officers searched defendant's residence, pursuant to a search warrant, and found a quantity of cocaine in his bedroom. The affidavit which was used to obtain the search warrant for defendant's residence relied heavily upon information supplied to the police by a confidential informant. The affidavit included the following statement to establish the reliability of the informant:

"In the past six months, the informant has furnished your affiant with information which, through investigation, has led to the arrest of at least two persons for narcotic and dangerous drug violations. Further, that during the past six months, this informant has furnished your affiant with information which, through investigation, has led to the seizure of dangerous drugs and narcotics."

The affidavit further alleged that the informant had been paid a sum of money by the police in exchange for his information and that the informant was familiar with narcotics and dangerous drugs based upon his prior use and experience with them.

At the hearing on defendant's discovery motion, the prosecutor stipulated that discovery should be granted for several items ² but contested the request for numerous others. The contested items included:

"9. All reports and notes regarding the information furnished by the informant in the six months prior to the affidavit which has led to the arrest of persons and the seizure of drugs ...;

"10. All reports regarding the arrest of the two persons which resulted from informant's information ...;

"11. All reports regarding the seizure of dangerous drugs and narcotics which resulted from informant's information ...;

"12. Any search warrants, together with their affidavits and returns, which resulted from informant's information ...;

"13. Rap sheets showing all felony convictions as to the informant who is referred to in the search warrant affidavit;

"14. Police reports of any cases pending against the informant at the time when the information about defendant Rivas was given;

"15. All pay vouchers of payments made for compensation or expenses to the informant for information supplied herein;

"16. All promises, representations or assurances, whether or not reduced to writing, given in exchange for information supplied by the informant herein."

Defense counsel prefaced his arguments in favor of permitting discovery of these items by stating that the motion was not an attempt to discover the identity of the confidential informant and that defense counsel would be willing to have any references to the identity of the informant deleted from the requested materials before they were turned over to him. The prosecutor objected to permitting discovery of the disputed items, claiming the defense requests were simply a veiled attempt to obtain information which would allow the defense to discover the identity of the informant. In response, defense counsel suggested the court could examine the disputed materials in an in camera hearing in order to prevent documents which might permit discovery of the informant's identity from being turned over to the defense. The magistrate denied discovery of the disputed items on the ground that the motion was no more than an attempt to learn the informant's identity.

At the preliminary examination, defense counsel attempted to question the search warrant affiant, Detective Stanley Mosley, about his representations in the search warrant affidavit that the informant had proved himself to be a reliable source of information for the police. The prosecutor objected, challenging the relevance of the defense questioning. After some discussion between defense counsel and the magistrate, the magistrate refused to permit any questioning of the officer about the prior reliability of the informant or anything else that would go behind the face of the search warrant affidavit. ³

Later, defense counsel made a motion to dismiss the information in the superior court, challenging the magistrate's denial of the defense discovery request as well as the restriction of cross-examination of Detective Mosley at the preliminary hearing. Defense counsel argued the pre-preliminary hearing discovery was essential to any subsequent defense attempts to bring a motion to traverse the search warrant affidavit. Counsel explained to the court that without the discovery, he would be unable to make the preliminary showing, required by Theodor v. Superior Court (1972) 8 Cal.3d 77, 103, 104 Cal.Rptr. 226, 501 P.2d 234 to show the affidavit contains inaccuracies before he could obtain a hearing on a motion to traverse the warrant.

Here again, the prosecutor argued against permitting discovery by claiming the requested information would allow defendant to determine the identity of the confidential informant. The trial court inquired of the prosecution whether the requested information could be screened by the court in camera in order for the court to excise those portions of the materials which might possibly lead to the discovery of the informant's identity.

After extensive arguments between both counsel and the court, the matter was submitted for decision. The following day the motion was denied on the ground that defendant was not entitled to discovery concerning the facts alleged in the affidavit or to cross-examine the affiant regarding the reliability of the informant without first satisfying the Theodor requirement to show that the affidavit contained inaccuracies.

I. DENIAL OF DEFENDANT'S DISCOVERY REQUESTS

On appeal defendant renews his claim that discovery of items 9-16 was necessary for him to exercise his right to controvert the facts contained in the search warrant affidavit. Defendant claims he needed items 9-12 in order to confirm whether the informant in fact provided the police with information within the six-month period prior to his arrest resulting in the arrest of two suspects and the seizure of dangerous drugs. Defendant claims he needed items 13-16 to determine whether the affidavit omitted any material information bearing negatively upon the informant's credibility in the present case. Defendant again asserts that without this discovery, he has no way to obtain the information needed to make a prima facie showing that the affidavit is inaccurate. Defendant points out that unless he can make such a preliminary showing, he is precluded by Theodor v. Superior Court, supra, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234, and Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, from obtaining a hearing to challenge the accuracy of the search warrant affidavit.

The People argue the magistrate correctly refused the discovery requests because the disputed information would tend to reveal the informant's identity. Additionally, the People claim that items 13, 14...