Twiggs v. Superior Court

• Decision Date: 25 August 1983
• Docket Number: S.F. 24529
• Citation: 667 P.2d 1165,194 Cal.Rptr. 152,34 Cal.3d 360
• Parties: , 667 P.2d 1165 Leroy TWIGGS, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest.
• Court: California Supreme Court

Page 152

194 Cal.Rptr. 152

34 Cal.3d 360, 667 P.2d 1165

Leroy TWIGGS, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent The PEOPLE, Real Party in Interest.

S.F. 24529.

Supreme Court of California, In Bank.

Aug. 25, 1983.

Steve Emery Teich, San Francisco, for petitioner.

Donna Chew, Deputy Atty. Gen., San Francisco, for real party in interest.

BROUSSARD, Justice.

This case raises questions involving the duty of the prosecution to reveal the identity and location of a police informant whose testimony is material to the defendant's guilt or innocence, and the propriety of the prosecution's attempt to amend the information to charge prior felony convictions after the defendant has refused a plea bargain and invoked his right to a retrial.

Defendant seeks a writ of prohibition or mandate to prohibit the superior court from proceeding to retry him without ordering disclosure of the "identity" of the informant and striking the prior felony convictions which were added to the original charges as enhancements. We conclude that the trial court should hold further hearings to determine whether defendant is entitled to the relief requested.

Defendant was charged by information with possession of heroin for sale in violation of Health and Safety Code section 11351, and possession for sale of one-half ounce or more of heroin in violation of Penal Code section 1203.07. In addition, the information sought an enhancement for a prior felony conviction within the meaning of Penal Code section 667.5, subdivision (b).

Defendant pled not guilty and subsequently moved for an order that the district attorney reveal the identity and present whereabouts of an informant. Counsel's declaration in support of the motion alleged that the informant had contacted defendant with the express purpose of making a "controlled buy" for the police, and that defendant was entrapped into possessing the heroin by the police informant who enticed defendant to hold the heroin. The trial court denied the motion, and a writ of prohibition/mandate was denied by the Court of Appeal on December 11, 1981.

At trial, defendant testified, elaborating on the entrapment defense. He testified that about December 6, 1980, a close friend, Larry Douglas, came to his apartment and pleaded with him to hold some heroin and paraphernalia. Defendant further testified that Douglas claimed that his life was in danger, that he could not safely keep the drugs in his own residence, and that he would give defendant $1,000 if defendant would package the drugs and hold them until Douglas returned in a few days.

According to defendant, Douglas returned on December 8, took some of the heroin, and gave defendant $40. The next day, the police entered defendant's apartment pursuant to a probation search condition, found the heroin, and arrested him.

The jury was unable to reach a verdict, and a mistrial was declared. Prior to retrial, defendant again filed a motion to reveal the identity and whereabouts of the informant. The motion was denied insofar as it requested the informant's identity because the defense already knew his identity. However, the trial court also ruled that the prosecution would have to furnish the last known address of the witness-informant. Defendant's attorney asked the court if the prosecution was to provide the current whereabouts of Larry Douglas. The court responded only that the order was for the prosecution to provide Douglas' last known address. The prosecution provided Douglas' last known address, but defendant was unable to locate him.

At the pretrial conference on defendant's second trial, defendant rejected an offer to plead guilty in exchange for a three-year prison sentence. Two or three days later, the district attorney moved to amend the information to allege that defendant had been convicted of five additional prior felony convictions and had served a separate term in state prison for each offense. Defendant opposed the motion, claiming that the prosecution had known of the prior convictions since before the original trial, and accused the prosecution of retaliatory vindictiveness in response to the defendant's assertion of his right to a retrial. The trial court expressed concern about the appearance of vindictiveness created by the late amendment, but accepted the prosecutor's explanation that she had some question whether the prior convictions fell within the scope of Penal Code section 667.5 ¹ and had waited until she received the certified records from the Department of Corrections before moving to amend. The record suggests, however, that the prosecutor took no steps to investigate the prior convictions, and that she only discovered that the prior convictions could be charged after a different prosecutor showed her defendant's "prison package" at a joint pretrial conference involving this and another case.

Defendant again filed a petition for writ of prohibition/mandate, which was summarily denied by the Court of Appeal. This court then granted a petition for hearing and retransferred to the Court of Appeal with directions to issue an alternative writ. After the Court of Appeal discharged the alternative writ and denied the petition for issuance of a peremptory writ, we again granted a hearing.

1. The duty to disclose an informant's identity.

This court has set forth the rule regarding the prosecution's duty to disclose the identity of an informant. "When an informer is a material witness on the issue of guilt, the People must disclose his identity or incur a dismissal. (Roviaro v. United States (1957) 353 U.S. 53 [77 S.Ct. 623, 1 L.Ed.2d 639] [citations]; People v. McShann (1958) 50 Cal.2d 802, 808 [330 P.2d 33] [citations]; see Evid.Code, §§ 1041, 1042.) ... What must be disclosed is the witness's 'identity'; not merely his name, but all pertinent information which might assist the defense to locate him." (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 83 Cal.Rptr. 586, 464 P.2d 42.)

In so holding, we specifically disapproved decisions stating that the "prosecution automatically fulfills its obligation of disclosure when it reveals all that it knows, despite the inadequacy of such data to locate the informer." (Eleazer v. Superior Court, supra, 1 Cal.3d at pp. 851-852, 83 Cal.Rptr. 586, 464 P.2d 42, fn. omitted.) Rather, we concluded that when "through police tactics or happenstance the informer becomes a material witness, the police should make such inquiries and arrangements as are reasonably necessary to enable the prosecution and defense to locate him." (Id., at p. 852, 83 Cal.Rptr. 586, 464 P.2d 42, fn. omitted.)

Moreover, the duty to disclose arises irrespective of the defendant's ability to obtain the information through his own efforts, because the prosecution knows from the outset whether the informer is a material witness, and the prosecution has greater investigatory resources and superior knowledge of and contacts with the informer. (Eleazer v. Superior Court, supra, 1 Cal.3d at p. 853-854, 83 Cal.Rptr. 586, 464 P.2d 42.)

Defendant suggests that the facts of this case are similar to those presented in People v. Frohner (1976) 65 Cal.App.3d 94, 135 Cal.Rptr. 153, where the court, applying the rule stated in Eleazer, concluded that the prosecution had failed in its duty to locate the informer. (Id., at pp. 106-107, 135 Cal.Rptr. 153.) In Frohner, several factors led the court to conclude that the informant was a transient and likely to conceal his address, considerations that should have triggered prosecution efforts to maintain contact. (Id., at p. 107, 135 Cal.Rptr. 153.) The court concluded, however, that the prosecution had done virtually nothing to assure that the informant would be available for the defendant's trial. Thus, despite the fact that the defendant had the address that the informant had used at the preliminary hearing, defendant could not locate the informant, and the court properly concluded that under the circumstances the prosecution had failed in its duty to make reasonable efforts to locate the informant.

The Attorney General contends that Frohner is distinguishable because in that case the informant was clearly transient, so the prosecution had a greater duty to maintain contact, in which it failed. Relying on this distinction, and the language in footnote 10 in Eleazer, ² to the effect that the prosecution's duty may be greater if the informant is transient, the Attorney General argues that because in this case the record does not affirmatively disclose that the informant was transient, the prosecution had fulfilled its obligation by providing the last known address. Two independent reasons compel us to reject this contention.

First, the language in footnote 10 of Eleazer merely illustrates that what constitutes reasonable efforts will vary depending on the circumstances of each case. The suggested alternative obligations were premised on the presumption that a person who maintains stability in his place of residence and employment, and who has no motive to conceal his whereabouts, can likely be subpoened when the defense merely obtains the person's address and telephone number. But where it is likely that the informant cannot be located by merely providing the last known address, the trial court is under an obligation to ascertain whether the prosecution has more information and whether it has made reasonable efforts to obtain information useful in locating the informant. This obligation is necessarily required to implement the mandate of our decision in Eleazer, which "recognized the futility of a rule requiring disclosure of the information which the police know about a material witness informer without a further requirement that the police make efforts to obtain information useful in locating the informer as well." (People v. Goliday (1973) 8 Cal.3d 771, 778, 106 Cal.Rptr. 113, 505 P.2d 537.) Fairness to the accused requires...