Opinion
B202012
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. LARRY JAMES, Defendant and Appellant.
Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Larry James appeals the conviction entered following conviction by jury of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) James admitted two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and two prior convictions within the meaning of Health and Safety Code section 11370, subdivision (a). The trial court sentenced James to a term of six years in state prison. We affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The Peoples evidence.
Los Angeles Police Officer Dale Zeismer testified that at 4:25 p.m. on March 23, 2007, he was working with a narcotics task force in downtown Los Angeles. Zeismer was assigned to surveillance and he was stationed approximately 120 to 130 feet from San Julian Street at an elevation of between 50 to 60 feet. Zeismer observed James standing on the west sidewalk of San Julian Street south of Sixth Street. Zeismer described the area as "skid row" characterized by transients, homeless people, drug addicts and sellers of narcotics. The area is notorious for narcotic activity, especially the sale of rock cocaine.
Using 18×50 binoculars with image stabilization, Zeismer saw James remove a bindle from his mouth from which he poured off-white solids resembling rock cocaine into his left hand. James then engaged in hand-to-hand exchanges with three different males. In each of these exchanges, Zeismer observed the male give James currency and, in return, James gave the male an off-white solid which the male placed in his mouth before walking from Zeismers view.
Zeismer testified there were a lot of people "basically . . . standing around" on the sidewalk when Zeismer made these observations. However, these people did not obstruct Zeismers view and there was not a lot of pedestrian traffic.
Zeismer contacted uniformed officers who arrested James. The arresting officers found James had 0.23 grams of cocaine base in his left hand and a glass pipe and $47 in his pocket. In a backpack, James had a prescription pill bottle that contained 0.47 grams of cocaine base.
Zeismer testified the prescription pill bottle contained about $15 worth of rock cocaine and that rocks of this size are commonly sold in the area. Based on the location of the arrest, the observation of the hand-to-hand transactions and the recovery of rock cocaine and money, Zeismer opined that James possessed the cocaine base for the purpose of sale. The presence of the glass pipe did not dissuade Zeismer from this opinion because it is common for sellers at this level also to be users.
Zeismer explained the purchasers were not arrested because, once they put the object they received from James into their mouth, there was little likelihood of recovering it. Also, once visual contact with a purchaser is lost, there is no way to know if an object recovered from that individual was obtained from the defendant.
2. Defense evidence.
James testified in his own defense. James indicated he lived in a shelter at 38th Street and Broadway. He was on San Julian Street waiting for a bus operated by the shelter. James asserted he possessed the cocaine for his personal use. James testified he has AIDS and is constantly in severe pain. James had just purchased the cocaine found in his left hand and he intended to purchase more cocaine before the bus arrived. The money found on his person was part of the SSI benefits he received.
CONTENTION
James contends the trial court erroneously refused to order disclosure of the surveillance location from which Zeismer observed the hand-to-hand exchanges.
DISCUSSION
1. The trial courts ruling.
At a pretrial hearing conducted outside the presence of the jury, Officer Zeismer testified he was in a building 100 to 130 feet from James when he made the observations. Zeismer declined to state the location of the building claiming official privilege under Evidence Code section 1040 et seq.
The trial court then conducted an in camera hearing at which Zeismer disclosed the location of the surveillance post. Zeismer testified that, from the post, he could observe James on the west sidewalk of San Julian Street. Zeismer testified his field of view was "clear and unobstructed." James remained in the same location when he conducted the transactions and James was in Zeismers field of view at all times.
Zeismer claimed the privilege to ensure the safety of the operator of the building from which the observations were made. Zeismer testified disclosure of the location would render it "almost automatic that [the manager of the building] would be hurt" by "whoever the sellers want to use to go in there and hurt people." Zeismer indicated he had made a commitment to the people who allowed him to use the building that he would not disclose the location.
The trial court found disclosure of the surveillance location would result in substantial danger for the people who worked in the building and sustained the claim of privilege. The trial court indicated it had balanced the defendants right to a fair trial against the interest served by the privilege.
After the in camera hearing, the trial court indicated defense counsel could ask the officer in the presence of the jury the officers distance from James and his elevation. Defense counsel also could determine that Zeismer was in a building at the time of the observations and could establish that Zeismer had an unobstructed field of vision.
2. Jamess argument.
James contends the location of the surveillance post was critical to the defense because none of the individuals to whom James allegedly sold drugs were apprehended or searched. Thus, the only basis on which James could corroborate his denial that he sold drugs was to impeach Zeismers ability to see what he claimed he had seen. James argues he could not impeach Zeismer on this point without knowing the location of the surveillance post.
James concludes the location was material to his defense and the trial courts failure to order disclosure of the location unconstitutionally deprived James of the right to present a defense. (Evid. Code, § 1042, subd. (a).)
3. Applicable law.
Under Evidence Code section 1040, a public employee has a privilege to refuse to disclose official information acquired in confidence in the course of his or her duty if "[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . ." (Evid. Code, § 1040, subd. (b)(2).) Included within the public information privilege is the exact location of a surveillance location if the public interest in preserving the confidentiality of that information outweighs the need for disclosure. (In re Sergio M. (1993) 13 Cal.App.4th 809, 813.)
"If the court finds that a surveillance location is privileged, Evidence Code section 1042 provides the court must nonetheless make a finding adverse to the prosecution if the location is material to the defense." (People v. Haider (1995) 34 Cal.App.4th 661, 665, fn. omitted.) The test of materiality is not simple relevance; it is whether nondisclosure might deprive the defendant of his or her due process right to a fair trial. Evidence Code section 1042, subdivision (d), states the trial court "shall not order disclosure, . . . unless. . . the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial." (Evid. Code, § 1042, subd. (d).)
4. The trial court properly sustained Zeismers assertion of the privilege.
Here, Zeismer had an unobstructed view of James selling cocaine base on a clear day during daylight hours. Defense counsel cross-examined Zeismer with respect to his observations and elicited that Zeismers field of view was limited to the area occupied by James. Defense counsel also cross-examined Zeismer concerning his distance from the transactions, his use of binoculars, the extent to which Zeismers view was obstructed and the elevation from which the observations were made.
Zeismers observations were corroborated by the arresting officers who testified James possessed cocaine base in his left hand as Zeismer had described. Detention of the purchasers might have provided additional corroboration. However, Zeismer testified each of the three males who engaged in hand-to-hand exchanges with James placed the object they received from James into their mouth before walking out of Zeismers view. Thus, it was unlikely the object could have been recovered had they been detained.
Additionally, Zeismer admitted these individuals left Zeismers field of vision after the hand-to-hand exchanges. Consequently, even if these individuals had been detained, the officers could not be certain an object recovered from the individuals had been obtained from James. In these circumstances, additional corroboration simply was not possible. Consequently, in this case, detention of the alleged purchasers would not have corroborated Zeismers observations.
Given Zeismers unobstructed view, the detailed description of the exchanges and the breadth of the cross-examination regarding the surveillance location, the trial courts refusal to order disclosure of the precise location did not deprived James of his rights of confrontation, cross-examination or due process. (People v. Haider, supra, 34 Cal.App.4th at p. 669 [surveillance location properly not disclosed where officer had an unobstructed view of an exchange of rock cocaine for cash on a sunny day from a distance of 100 to 120 feet using high powered binoculars]; In re Sergio M., supra, 13 Cal.App.4th at pp. 814-815 [same].) Rather, the only purpose disclosure might have served would have been to endanger the individuals who allowed the officers access to the surveillance location.
In urging a contrary result, James relies on Hines v. Superior Court (1988) 203 Cal.App.3d 1231, and People v. Montgomery (1988) 205 Cal.App.3d 1011.
In Hines v. Superior Court, a police officer testified that, using binoculars, he saw a number of transactions in which something was apparently exchanged for money and that he believed the transactions involved narcotics. The officer made these observations from a distance of about 50 yards, the day was somewhat overcast, and his view was unobstructed. Hines held the surveillance location was material because the defense needed that information to test the officers observation. (Hines v. Superior court, supra, 203 Cal.App.3d at pp. 1235-1236.) In the present case, Zeismers observations occurred on a clear day, he observed the exchanges from a closer location, and Zeismers observations were more detailed in that he saw James remove an off white solid from his left hand and give the object to the three males who approached him.
In People v. Montgomery, supra, 205 Cal.App.3d 1011, a police officer observed a drug transaction from a distance of 25 to 35 yards using binoculars. James argues that, in Montgomery, like here, the purchaser was not detained. James asserts Montgomery found the surveillance location material to allow the defense to test the only observation of the sale.
However, contrary to Jamess argument, the result in Montgomery did not turn on the failure to detain the alleged purchasers of the narcotics but on the failure of the trial court properly to resolve the question of privilege. Montgomery noted the trial court failed to conduct a "full inquiry" into the assertion of the privilege and did not believe a weighing process was required based on its belief the privilege applied regardless of its materiality to the issue of guilt where there was evidence disclosure of the location would place individuals in danger. (People v. Montgomery, supra, 205 Cal.App.3d at p. 1021.) Montgomery concluded the conviction could not stand based "on the present state of the record" and remanded the matter to allow the trial court to make the determination required by the statute. (Id. at p. 1023.)
Here, the trial court followed the correct procedure and made its ruling only after balancing the relative merits of the competing interests. Based on the current record, we find the trial court properly exercised its discretion in sustaining the privilege under Evidence Code section 1040 and James was not deprived of a fair trial. Stated differently, there is no reasonable possibility the disclosure of the precise location from which the observations were made would constitute material evidence on the issue of guilt which could result in exoneration.
DISPOSITION
The judgment is affirmed.
We concur:
KITCHING, J.
ALDRICH, J. --------------- Notes: This court, on its own motion, has reviewed the sealed reporters transcript of the in camera hearing conducted by the trial court in connection with our resolution of the instant contention.