People v. Acuna
People v. Acuna
Opinion of the Court
— Defendant and codefendant Freída Alford were charged with possession for sale of a narcotic, heroin (§ 11500.5, Health & Saf. Code). Defendant moved to suppress the evidence under section 1538.5, Penal Code, and to disclose the identity of the confidential informant. Subsequent to the denial of both motions he withdrew his plea of not guilty and entered a plea of guilty to a violation of section 11500, Health and Safety Code, a lesser but necessarily included offense. He appeals from the judgment. The appeal is based on the trial court’s refusal to order disclosure of the identity of the informant.
No evidence was taken on the discovery motion; however the reporter’s transcript of the oral proceedings had on the motion reflects a unanimity of understanding of the following facts apparently contained in the affidavit supporting the search warrant (before the trial court but not part of the record on appeal) and the reporter’s transcript of testimony taken at the preliminary hearing (before neither the trial court nor this court).
A confidential informant gave information to Sergeant Carter, the officer, that at a certain address and in the presence of defendant he had made a purchase of narcotics from codefendant Alford wherein she made “a hand-to-hand sale” to him; and that thereafter between August 29 and September 5, 1972, he saw defendant (presumably at the residence where the sale took place). Subsequently a search warrant was issued on the basis of an affidavit
During argument on the motion the prosecutor represented that on the trial the People’s case would exclude any past transaction between the informant and codefendant Alford and anything the informant saw prior to and which formed the basis for the issuance of the search warrant; and that the People’s entire case of possession for sale of heroin against
“When it appears from the evidence that an informer is a material witness on the issue of. defendant’s guilt, the informer’s identity may be helpful to the defendant and nondisclosure would deprive him of a fair trial. (Honore v. Superior Court, 70 Cal.2d 162, 167 [74 Cal.Rptr. 233, 449 P.2d 169].) The People must either disclose the informer’s identity or incur a dismissal. (People v. Garcia, 67 Cal.2d 830, 836 [64 Cal.Rptr. 110, 434 P.2d 366]; People v. McShann, 50 Cal.2d 802, 808 [330 P.2d 33].)
“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 eye-witness to the crime. The 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 non-disclosure of his identity would deprive the defendant of a fair trial.” (People v. Williams (1958) 51 Cal.2d 355, 359 [333 P.2d 19].) “That burden is discharged, however, when defendant demonstrates 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.” ’ ” (Price v. Superior Court, 1 Cal.3d 836, 842-843 [83 Cal.Rptr. 369, 463 P.2d 721]; People v. Goliday, 8 Cal.3d 771, 777 [106 Cal.Rptr. 113, 505 P.2d 537]; Theodor v. Superior Court, 8 Cal.3d 77, 88 [104 Cal.Rptr. 226, 501 P.2d 234]; People v. Hunt, 4 Cal.3d 231, 239 [93 Cal.Rptr. 197, 481 P.2d 205]; Honore v. Superior Court, 70 Cal.2d 162, 168 [74 Cal.Rptr. 233, 449 P.2d 169]; People v. Garcia, 67 Cal.2d 830, 840 [64 Cal.Rptr. 110, 434 P.2d 366].)
Appellant’s argument that the informant can clarify important questions such as whether the narcotic was his and if so, whether he possessed it for sale, is predicated on the false premise that the basis of the charge of possession for sale is the heroin found in the dish on a table in the apartment where he was present. The information charges defendant with possession for sale of a narcotic, heroin, on September 8, 1972; the sole basis of defendant’s violation is the heroin in the three balloons found in his pocket. Thus it is irrelevant that the heroin found in the dish might have belonged
In each case relied on by appellant (Theodor v. Superior Court, 8 Cal.3d 77 [104 Cal.Rptr. 226, 501 P.2d 234]; Price v. Superior Court, 1 Cal.3d 836 [83 Cal.Rptr. 369, 463 P.2d 721]; Honore v. Superior Court, 70 Cal.2d 162 [74 Cal.Rptr. 233, 449 P.2d 169]; People v. Garcia, 67 Cal.2d 830 [64 Cal.Rptr. 110, 434 P.2d 366]) there existed a reasonable possibility that the informant might testify in a manner that would exonerate the defendant, and in each case defendant demonstrated that the informer’s testimony might negate an essential element of the crime with which he was charged, bear on the issue of his guilt or aid him in some way. Appellant has made no such showing here; it must encompass more than mere speculation. (People v. Martin, 2 Cal.App.3d 121, 127 [82 Cal.Rptr. 414].) There is no adequate basis to compel disclosure of the identity of the informant; he simply pointed the finger of suspicion at defendant and put in motion the wheels of investigation which resulted in the search warrant but he played no part in the criminal act with which defendant is charged, and he is not a material witness on the issue of guilt. (People v. Shipstead,
The judgment is affirmed.
Thompson, J., and Hanson, J., concurred.
On motion pursuant to section 1538.5, Penal Code, defendant challenged the sufficiency of the affidavit supporting the search warrant; the motion was denied. No issue relative to this motion is before us.
It appears that at the preliminary hearing the officer gave his opinion that the heroin was possessed for sale on the basis of the heroin found in the residence—a total of seven grams—but “the opinion was also based upon the fact of the manner in which the three balloons were packaged.” On the hearing on the motion the prosecutor represented to the trial court that the. People intended to rely solely on the three balloons found on defendant’s person.
In refusing discovery the trial court stated, “how in the world can the informant add one way or subtract one thing from what happened, we’ll just say arbitrarily, eight days later? I don’t see it. I don’t see how the informant can in any way benefit the defendant and the defense has failed to satisfy the Court.”
Although as stated in People v. Garcia, 67 Cal.2d 830, 838, fn. 8 [64 Cal.Rptr. 110, 434 P.2d 366], and urged by appellant, that “an informant may be a material witness for the defense whose disclosure is necessary to a fair trial even though the prosecution seeks to make no substantive use of information provided by such informant to prove the guilt of the accused,” this does not relieve defendant of his burden of demonstrating a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in his exoneration.
Reference
- Full Case Name
- THE PEOPLE, and v. JUAN A. ACUNA, and
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- Published