Opinion
B224361
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. MANUEL DIAZ et al., Defendants and Appellants.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Manuel Diaz. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Jose Eseberre. Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Aguilar. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Antonio Zavala. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. BA360376
APPEAL from judgments of the Superior Court of Los Angeles County, Robert Parry, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Manuel Diaz.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Jose Eseberre.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Aguilar.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Antonio Zavala.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General for Plaintiff and Respondent.
Appellants Manuel Diaz, Jose Eseberre, and Jorge Aguilar appeal from the judgments on convictions for conspiracy to commit possession for sale and sale of a controlled substance; conspiracy to possess money or instruments over $100,000; possession of money or instruments over $100,000 obtained through unlawful cocaine or narcotics trafficking, and weapons possession and enhancements. Before this court they claim that the trial court erred in denying a pre-trial motion seeking the disclosure of the identification of the confidential informant involved in the drug "sting" in which they were arrested, and that the court further erred in preventing them to comment in closing argument on the prosecutor's failure to call the informant as a witness at trial. As we shall explain, neither of the claims has merit. Based on the record before this court it appears that the confidential informant was not a material witness who could provide evidence on the issue of guilt that might exonerate the appellants, and thus disclosure of the informant's identity was not required. In addition, because the informant had no material evidence to present, he was effectively unavailable at trial and thus the court properly limited counsel's arguments concerning the informant's absence from trial. Accordingly, we affirm.
Appellant Antonio Zavala was involved in the drug sting with the other appellants, and was similarly charged. Zavala was tried separately and convicted. Zavala filed a timely notice of appeal. However, his court appointed counsel notified this court pursuant to People v. Wende (1979) 25 Cal.3d 436, that counsel was unable to find any arguable issues to assert on appeal. As we shall explain, our review of the record convinces us that no arguable issues exist, and consequently we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crimes
In 2008, California Department of Justice, Bureau of Narcotics, Special Agent Frank Cortez ("Agent Cortez") worked undercover and was assigned to the Narcotics and Violence Team. In this case, Agent Cortez posed as a Columbia drug trafficker and worked in a reverse sting operation and worked with a confidential informant "Tony" ("CI Tony") who was assisting with the investigation.
On August 6, 2008, Agent Cortez and CI Tony met appellants Diaz and Zavala in Ontario at the parking lot of a Denny's Restaurant and Comfort Inn Motel to negotiate a drug transaction. Prior to the meeting, CI Tony had met Diaz and CI Tony had begun negotiating a drug transaction of between 20 and 300 kilograms of cocaine with Diaz. The meeting on August 6 was the first time Agent Cortez met Diaz and Zavala. At the meeting Agent Cortez showed Diaz and Zavala a kilogram brick of cocaine and provided a small sample of cocaine to appellants Diaz and Zavala. They negotiated a price of $15,500 a kilogram for a deal in excess of 100 kilograms.
Another undercover officer drove a vehicle containing the drugs and parked nearby. Agent Cortez and Zavala got in the back of the undercover vehicle where Agent Cortez showed him the kilogram of cocaine. Cortez gave appellant Zavala a small amount of cocaine. Cortez and appellant Zavala exited the vehicle. The undercover agent drove away.
The interaction was monitored by law enforcement. Special Agent Supervisor Ernesto Limon ("Agent Limon") participated in the surveillance of the parking lot. Agent Limon was about 50 to 100 yards away from Agent Cortez. Agent Cortez wore a body transmitting device, and Agent Limon could hear some of what was being said.
Agent Cortez continued negotiating with Diaz. On September 4, 2008, at about 10:00 a.m., Agent Cortez and CI Tony spoke with Diaz over the telephone in coded language. During the conversation Diaz was referred to as "El Grande." During the conversation they discussed the amount of drugs that was going to be provided by Agent Cortez and the location where the drug transaction would take place. Agent Cortez said that he would send his associate CI Tony to verify that Diaz had the money before the drugs would be provided. After receiving confirmation, Agent Cortez said he would transport the drugs. Diaz said he had several customers for the drugs and specifically one man who had two customers.
The phone call was recorded (Peo. Exh. 4 [CD]). (2RT 618-619, 621-622.)~
Later that day, CI Tony went to a park in Los Angeles County to meet Diaz and several others. A surveillance team, including Agent Limon, observed the meeting. Agent Limon then followed them to a house in Long Beach. Agent Cortez also followed CI Tony to Bell Gardens and stayed at a distance. Agent Cortez was in regular phone contact with CI Tony who provided updates.
It appears that Lopez, Zavala and Eseberre also attended this meeting.
At about 8:00 p.m. that evening Agent Cortez met CI Tony in the parking lot of a Food 4 Less grocery store in Bell Gardens where they anticipated the drug transaction would occur that evening. Approximately 15 surveillance officers, including Agent Limon, were in various undercover vehicles in the parking lot and had the area under surveillance at the time.
Agent Cortez spoke with Diaz over the phone. At this point, all the officers were at Food 4 Less and CI Tony was with Agent Cortez. They discussed that Agent Cortez had been in the area for five or six hours attempting to do the transaction. Diaz apologized for the delay and that the original transaction he had planned did not go through. Diaz stated that he had a different customer who would purchase a smaller amount of 20 kilograms of cocaine. Agent Cortez asked Diaz to meet him at Food 4 Less. At approximately 9:00 p.m., Agent Cortez had another phone conversation during which Diaz said that he was in transit to the location. About 40 minutes later, Diaz (driver) and Zavala (front passenger) arrived in the parking lot in a black Chevy Tahoe with Arizona license plates. Diaz and Zavala got out of the car and approached Agent Cortez and CI Tony. Diaz again apologized about the previous transaction that did not occur. Diaz and Zavala said another customer was coming. They said this customer had the money, was reliable, and going to complete the transaction for 20 kilograms. Diaz said the price on the cocaine had been inflated in order for him to make his fee. Diaz told Agent Cortez to take the money for the 20 kilograms, or $380,000, and the rest of the money was to be handed over to Diaz and Zavala. Diaz and Zavala also indicated that if they established a good working relationship with Agent Cortez then he could leave the drugs with them, they would broker the drug deals, and Agent Cortez would only have to pick up the money. Diaz said he could move 300 kilograms of cocaine per month.
Agent Cortez wore a body wire. Agent Limon could hear part of the conversation between agent Cortez and appellants.
While waiting in the parking lot, Diaz received a phone call and made several phone calls. Diaz gave directions to a person who was coming to the Food 4 Less.
At approximately 10:10 p.m., a brown Chevy pickup truck with Texas license plates was on Eastern Avenue. While Diaz gave directions on the phone he said, "You just passed us." The brown truck entered the parking lot. Eseberre (driver) and codefendant Wilberth Lopez exited the brown truck. They were followed by a dark green Honda. Aguilar (driver) exited the Honda. A woman identified only as Marquez and a three-year-old child were also in the Honda.
Eseberre, Lopez and Aguilar approached Diaz and the others in the parking lot. Diaz introduced Agent Cortez as "the Columbian" to Eseberre, and Aguilar, and Lopez. Agent Cortez said the drugs were at a residence nearby and asked to see the money. Eseberre said the money was in the Honda. Appellant Eseberre asked, "Are we going to do this right here, like in the open [sic] parking lot?" Agent Cortez replied, "No, we can go to a nearby residence where I have the drugs stashed." Aguilar unlocked the trunk of the Honda from inside the car. Eseberre and Aguilar opened the trunk and Eseberre pointed to boxes in the trunk and said the money was there. Agent Cortez asked if they had enough money to purchase 20 kilograms of cocaine. Agent Cortez asked to see the money inside the boxes and Eseberre and Aguilar opened the boxes. Zavala and Lopez and CI Tony, standing about 10 feet away, could hear what was being said.
Agent Cortez told appellants to follow him to the location where the drugs were stashed, but that he only wanted a few people to go with him. Eseberre and Aguilar agreed to ride together in the Honda. Diaz said he would follow in his Tahoe. Eseberre told appellant Zavala and Lopez to wait at their truck.
Agent Cortez and CI Tony got into the undercover vehicle. Once inside the vehicle, Agent Cortez updated the surveillance team. Aguilar and Eseberre followed in the Honda, and Diaz followed in the Tahoe. Agent Cortez drove behind the Food 4 Less and gave the arrest signal. Officers stopped the Honda and Tahoe and made the arrests. Agent Limon searched the trunk of the green Honda and found two boxes containing $402,525.
Agent Harward stayed at the original location in the Food 4 Less parking lot. After the arrest signal was given, Agent Harward and other officers stopped the brown truck--Lopez was driving the truck and appellant Zavala was the passenger. Police recovered a loaded Smith and Wesson .9 millimeter handgun on the driver's side of the center console.
At trial, the parties stipulated that Agent Harward recovered a stolen gun from the brown truck.
Based on his training and experience, Agent Cortez determined that the 20 kilograms that he was selling to appellants was for the purposes of sale. Appellants told him that they were brokering the deal to resell it to others. S. Agent Cortez opined that in the transaction, Diaz brokered the deal by connecting the buyers and seller; Zavala assisted Diaz and acted as a "lookout"; Eseberre was part owner of the money and friends with appellant Aguilar, who was the "money guy" and actual customer; and Lopez was assisting Eseberre by acting as security.
B. The Charges
Appellants Diaz, Zavala, Eseberre, and Aguilar, and codefendant Lopez were charged with conspiracy to commit possession for sale and sale of a controlled substance (Pen. Code, § 182, subd. (a)(1) (Count 1)); and conspiracy to possess money or instruments over $100,000 (§ 182, subd. (a)(1) (Count 4)). As to Count 1, appellants were further charged with the special allegations that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1), and the substance involved exceeded 10 kilograms by weight within the meaning of Health and Safety Code section 11370.4, subdivision (a). In addition, Eseberre and Aguilar were charged with possession of money or instruments over $100,000 obtained through unlawful cocaine or narcotics trafficking (Health & Saf. Code, § 11370.6, subd. (a) (Count 2)). Zavala, Eseberre and Lopez were also charged with having a concealed firearm in a vehicle (§ 12025, subd. (a)(1) (Count 3)). Diaz, Zavala, Eseberre, and Aguilar each pled not guilty.
Statutory references are to the Penal Code unless otherwise indicated.
Prior to trial Lopez pled guilty to count 1. He is not a party to this appeal.
Prior to trial, appellant Zavala's case was severed from the case of the other appellants because Zavala's counsel was ill and could not participate in the trial.
C. The Trial of Diaz, Eseberre, and Aguilar
Agents Cortez, Limon and Harward testified at the trial as described above, but CI Tony was not called as a witness. The defendants all testified.
Specifically, Diaz testified he worked on war planes in Baja, California, and had three children. He said he had never been arrested prior to this case. He testified that on August 2 or 3, 2008, Diaz met with the C.I. Tony at a gas station. According to Diaz, CI Tony liked Diaz's truck and asked if he would sell it. They exchanged phone numbers. Thereafter, CI Tony called appellant Diaz everyday and wanted to get together. They developed a friendship, speaking two or three times per day.
Diaz testified that on August 6, Diaz met with CI Tony and a man he later learned was Agent Cortez. CI Tony introduced Agent Cortez as his boss and the "Columbian." Agent Cortez bragged that he was an important person, but they never discussed supplying drugs. CI Tony told appellant Diaz that he worked with Agent Cortez and that S. Agent Cortez had warehouses.
On September 4, Diaz and Zavala met CI Tony at a park. At about 4:00 or 5:00 p.m., the three of them went to the house in Long Beach where Diaz was staying. Diaz made a deal to sell his truck to CI Tony for $40,000. CI Tony made a phone call to Agent Cortez and said, "I got the truck from the big guy."
Diaz drove the truck to the Food 4 Less to sell it to CI Tony. Agent Cortez was also present. Diaz invited Zavala, Eseberre and Lopez to come along because it was late and he did not know the area and was afraid that because he was going to receive a lot of money for the truck he might get robbed. Tony asked Diaz if he was alone. Diaz said that someone was going to pick him up after he sold the truck. Diaz said that he had invited Lopez and Eseberre to dinner that night and that they were going to give him a ride home after he sold the truck. Diaz denied that he talked about delivering a buyer for cocaine to Agent Cortez. Aguilar arrived in a Honda and opened the trunk. Diaz did not know Aguilar and did not know what was in the trunk. Diaz did not sell his truck because he was arrested.
Eseberre also testified at trial. He stated that he was a technician on computer satellites from Texas. He testified that prior to September 4, 2008, appellant Eseberre arrived in Los Angeles to visit his two children, brothers, and sisters. He stated that on the day he was arrested, Diaz, whom Eseberre had known for about six months, called Eseberre. Eseberre asked appellant Diaz if he could lend him $300 so he could return to Texas. Diaz said that he was about to sell his truck. They agreed to meet at Food 4 Less later that night. At approximately 8:00 p.m., Eseberre and codefendant Lopez arrived at the Food 4 Less to pick up the money from Diaz. Appellant Diaz also had invited Eseberre and Lopez to go out to dinner. When Eseberre arrived at the parking lot he said that he saw Diaz with three other people, including Zavala. Diaz told Eseberre that he had already sold his truck and told Eseberre to go with Aguilar to receive payment for the truck. Eseberre claimed that he never opened the trunk of appellant Aguilar's car and never saw money in the trunk of the car. Eseberre had never met Aguilar before. Appellant Eseberre got into the back seat of Aguilar's car. Eseberre never heard anything about a drug deal, and had never been involved in a drug deal.
Aguilar testified at trial as well. He said he worked as an auto mechanic and in security. On Thursday, September 4, 2008, Aguilar, his fiancé and his stepson had driven from San Fernando Valley to Aguilar's cousin's house in Downey. Aguilar had lent his cousins $3,500 and had gone to pick it up. After collecting the money from his cousin, Aguilar put $1,000 in his pocket and $2,500 in the center console. As Aguilar and his cousin were talking outside, an unidentified man approached Aguilar and said he was having car problems. Aguilar offered to look at the car. The unidentified man said, "Well, if you can help me, I have these presents that I have for my family that my cousins are waiting for me at the Food 4 Less." The unidentified man then asked Aguilar if he could drop off the gifts instead of fixing the car. The man had two boxes with him which he placed in Aguilar's trunk. The man told appellant Aguilar to look for a gray truck and brown truck each with out-of-state plates in the Food 4 Less parking lot. Aguilar agreed to help. Diaz said that the Food 4 Less was at Florence and Eastern. Aguilar, his pregnant fiancé, and two-year-old stepson drove to the Food 4 Less. Aguilar said he did not speak to anyone on the phone. When appellant Aguilar arrived at the Food 4 Less, he drove around looking for the trucks. He pulled up to a gray truck, brown truck, and black truck. He saw a couple of men standing around. Somebody approached Aguilar's vehicle. Appellant Aguilar opened the trunk, and got out of his car. Eseberre jumped into the back seat of Aguilar's car. Aguilar heard the trunk close. Aguilar said, "What the hell is going on?" Eseberre asked for a ride and told him to follow the gray Toyota Camry or Solora. Aguilar's fiancé told appellant Aguilar to "just go." Aguilar did not see or speak to Agent Cortez. Aguilar testified that he never opened the trunk for Agent Cortez to show him the box and did not know what they contained.
The jury found Diaz, Eseberre, and Aguilar guilty as to count 1; Eseberre and Aguilar guilty as to count 2; Eseberre not guilty as to count 3; and Diaz, Eseberre and Aguilar guilty as to count 4. In addition, the jury found the weight enhancement true and the firearm enhancement not true. Diaz, Eseberre and Aguilar all received multi-year prison sentences.
They appeal from the judgments of conviction.
D. The Trial of Zavala
Agents Cortez, Harward and Limon also testified at Zavala's trial, which was approximately two weeks after the trial of appellants Diaz, Eseberre and Aguilar. The agents gave essentially the same testimony that they had given at the previous trial of the other defendants.
The prosecution also presented evidence that on September 5, 2008, Agent Juan Vasquez read Zavala his Miranda rights and Zavala waived those rights. Zavala told the Agent that he had been in Arizona and had been told that there was a narcotics deal in southern California and was given a telephone number. Zavala was told to call the phone number when he arrived in Los Angeles. He took a bus from Arizona to Los Angeles. Once he arrived in Los Angeles, he called the number and an individual by the name of Lopez arrived in a pickup truck. Lopez took him to a house in Long Beach. Zavala was told he would receive $3,000 for driving contraband. He knew that what he was going to do was illegal. During the course of the day, Zavala spoke to a person by the name of "El Grande." Zavala did not know anything about the gun in the car.
At Zavala's trial, the court granted the defense motion to dismiss Count 3. The jury found Zavala guilty as to count 1. The jury found the weight and firearm enhancements true.
Zavala received a multi-year prison sentence. Zavala filed a timely notice of appeal. However, his court appointed counsel subsequently notified this court pursuant to People v. Wende (1979) 25 Cal.3d 436, that counsel was unable to find any arguable issues to assert on appeal.
DISCUSSION
I. Appeals of Appellants Diaz, Eseberre, and Aguilar
Before this court, Diaz, Eseberre and Aguilar argue that the court erred in denying the pre-trial motion to disclose the identity of the CI Tony. They claim that the court's failure to order disclosure violated their federal and state constitutional rights to due process, a fair trial and to present a complete defense. As we shall explain, we do not agree.
A. Disclosure of the Identity of Confidential Informant
1. The Relevant Proceedings:
Prior to trial, Diaz filed a "Motion to Discover Confidential Informant." In the motion, Diaz asserted that CI Tony was "a material witness on the issues of guilt or innocence in this action, and as such, the disclosure of the informant's identity is essential to a full and fair determination of the case." Diaz supported the motion with a declaration from his counsel declaring that CI Tony acted as an agent and partner of Agent Cortez; that CI Tony arranged for, was present and participated in the transaction; and that CI Tony met with the defendants outside the presence of Agent Cortez. In addition, Diaz's counsel maintained that disclosure was necessary because CI Tony could give testimony which "could impeach the undercover agent's testimony and exonerate the defendant." The prosecutor filed an opposition to the motion, contending that disclosure was not warranted because there was no reasonable possibility that the informer could provide exonerating testimony.
Co-defendant Lopez also filed a motion to discover the identity of the confidential informant. There is no evidence in the record before this court that Eseberre, Aguilar or Zavala filed similar motions or joined in Diaz's or Lopez's motions.
On October 22, 2009, Judge John S. Fisher stated that he was inclined to grant the motions to disclose the identity of the C.I. and asked for the prosecution to respond. The prosecutor stated: "Although the CI [Confidential Informant] was present there was an undercover officer [agent] that was present also. What the case law states is that the confidential informant becomes material when that confidential informant can offer evidence that would exonerate the defendants. And it's the opposite. The CI would offer evidence that would inculpate them." Thereafter the court agreed to hold an in camera hearing to find out "what the informant might say." The court also invited counsel to submit questions to ask during the in camera proceeding.
The in-camera hearing was held on November 4, 2009. The prosecutor, Agent Cortez and CI Tony were present at the hearing. Agent Cortez and CI Tony were placed under oath and provided testimony. They responded to the court's questions and the questions submitted by co-defendant Lopez about the events at issue in the case. The court also discussed with the prosecutor the theory of the prosecution and whether she intended to call CI Tony as a witness. The prosecutor indicated that she did not intend to call CI Tony because his testimony was unnecessary in view of the testimony that she expected to elicit from the law enforcement witnesses. If her intention not to call him changed, she would inform the court because the prosecutor recognized that the court might then change its view as to whether to grant disclosure of CI Tony's identity.
Diaz did not submit any questions to be asked during the in camera hearing.
At a hearing on November 5, 2009, with all counsel present, the court stated: "The court did have an in-camera with all relevant parties and asked the questions that were submitted . . . and the motion is denied based on my evaluation and understanding of the case law." Diaz counsel then inquired: "I filed a motion also, your honor, and was granted. Basically, I wanted to know exactly what the informant would say and whether the undercover agent himself was telling the truth because the informant, if we had a chance to interview him, could contradict what the undercover agent said specifically as to Mr. Diaz involvement. So is that going to be denied also?" The court stated that the motion was denied as well.
2. Applicable Law
This issue is governed by the privilege against the disclosure of the identity of confidential informants set forth in Evidence Code section 1041 and the procedure for challenging the assertion of that privilege set forth in Evidence Code section 1042.
Section 1041 provides in pertinent part: "(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and: [¶] (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or [¶] (2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the identity of the informer be disclosed in the proceeding. In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered."
The procedure for challenging an assertion of privilege set forth in Evidence Code section 1041 is detailed in Evidence Code section 1042, subdivision (d): "When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. A reporter shall be present at the in camera hearing. Any transcription of the proceedings at the in camera hearing, as well as any physical evidence presented at the hearing, shall be ordered sealed by the court, and only a court may have access to its contents. The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial."
Pursuant to this statutory scheme, "the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 159-160; see also Evid. Code, § 1042, subd. (d).) "Where the evidence indicates [that] the informer was an actual participant in the crime alleged or was a nonparticipating eyewitness to that offense, ipso facto it is held he would be a material witness on the issue of guilt and nondisclosure will deprive the defendant of a fair trial." (People v. Lee (1985) 164 Cal.App.3d 830, 835-836.) Nonetheless, it is not enough that the witness could provide evidence relevant to issues of guilt, or is a percipient witness or participant. (People v. Davis (2010) 186 Cal.App.4th 1272, 1277-1278.) "An informant is not a 'material witness' nor does his nondisclosure deny the defendant a fair trial where the informant's testimony although 'material' on the issue of guilt could only further implicate rather than exonerate the defendant." (People v. Alderrou (1987) 191 Cal.App.3d 1074, 1080; People v. Garza (1995) 32 Cal.App.4th 148, 155.)
Thus, when the evidence adduced at an in camera hearing tends to establish the lack of a "reasonable possibility that a particular percipient eyewitness-informer could give evidence on the issue of guilt which might result in a defendant's exoneration . . . , the witness would not be material under the test for materiality established by the California Supreme Court." (People v. Lanfrey (1988) 204 Cal.App.3d 491, 502-503; see People v. Lawley, supra, 27 Cal.4th at p. 159.) Mere speculation as to materiality is not sufficient to warrant disclosure. (People v. Luera (2001) 86 Cal.App.4th 513, 526.) A "defendant's showing to obtain disclosure of an informant's identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility." (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1044.) "'The standard of "reasonable possibility" has "vague and almost limitless perimeters which must be determined on a case-by-case basis." The courts have indicated that the measure of the "reasonable possibility" standard to be utilized in individual cases is predicated upon the relative proximity of the informant to the offense charged. "[T]he evidentiary showing required by those decisions is . . . as to the quality of the vantage point from which the informer viewed either the commission or the immediate antecedents of the alleged crime."'" (In re Benny S. (1991) 230 Cal.App.3d 102, 108.)
In Roviaro v. United States (1957) 353 U.S. 53 (Rovario), the United States Supreme Court recognized the prosecution's privilege to refuse to disclose the identity of a confidential informant, but imposed various limitations on that privilege to ensure that its application comported with "the fundamental requirements of fairness." (Id. at p. 60.) "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." (Id. at pp. 60-61, fn. omitted.) The nature of that determination precluded the establishment of a "fixed rule with respect to disclosure." (Id. at p. 62.) Instead, the Roviaro court favored an approach that balanced the "public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." (Ibid.) "The existence of a 'reasonable possibility' an informant could provide exonerating evidence must be determined on a case-by-case basis. [Citation.]" (People v. Austin (1994) 23 Cal.App.4th 1596, 1610, overruled on another point in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.)
Evidence Code section 1042, subdivision (d), sets forth the procedural requirements for a motion to disclose a confidential informant's identity. The trial court must hold a hearing on a defendant's motion to disclose an informant's identity. At the hearing, the parties may produce evidence on the issue of disclosure. (Evid. Code, § 1042, subd. (d).) When a defendant brings a motion to disclose identifying information, it is the defendant's burden to produce "some evidence" that the informant is a material witness. (Lawley, supra, 27 Cal.4th at pp. 159-160; People v. Oppel (1990) 222 Cal.App.3d 1146, 1152 ["It is incumbent on the defendant to make a prima facie showing for disclosure before an in camera hearing is appropriate"]; see also Evid. Code, § 1042, subd. (d).) If the prosecutor or prosecution witness at the hearing refuses to answer questions about the informant, on the ground that the answers would reveal the informant's identity, then the prosecutor may request an in camera hearing. (Evid. Code, § 1042, subd. (d).) "[A]n in camera review procedure is specifically authorized when the defendant is seeking disclosure of the identity of a confidential informant 'on the ground the informant is a material witness on the issue of guilt.' ([Evid.Code,] § 1042, subd. (d).)" (People v. Hobbs (1994) 7 Cal.4th 948, 959, 963.)
In addition, the hearing must be conducted outside the presence of the defendant and his counsel if the prosecution so requests. "At the in camera hearing, the prosecution may offer evidence which would tend to disclose . . . the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial." (Evid.Code, § 1042, subd. (d).) Defense counsel should be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge or any witness called to testify at the proceeding. The court must take it upon itself both to examine the evidence offered by both sides and the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. (Hobbs, supra, 7 Cal.4th at pp. 972-973, fn. omitted.) If the privilege is upheld, the transcript of the hearing and any evidence presented therein must be ordered sealed, and neither such evidence nor the identity of the informant may be disclosed to the defense "unless, based upon the evidence presented [at the hearing], the court concludes that there is a reasonable possibility that nondisclosure might deprive defendant of a fair trial." (Hobbs, supra, at p. 961, fn. omitted.) At the in camera hearing, if "the trial court reasonably concludes [that] the informant does not have knowledge of facts exculpating defendant, [then] disclosure of the informant's identity is prohibited." (People v. Lee, supra, 164 Cal.App.3d at pp. 838-839.)
The standard of review on appeal for challenge to the trial court's denial of a motion for disclosure of the identity of a confidential informant appears to be unsettled. "The standard of review applicable to the [denial of a motion for disclosure of an informant's identity] is not settled. (Compare, e.g., People v. Otte (1989) 214 Cal.App.3d 1522,1535-1536 [suggesting review de novo] with People v. Alderrou (1987) 191 Cal.App.3d 1074, 1078, 1080 [assuming review for abuse of discretion]; see People v. Louis (1986) 42 Cal.3d 969, 985-987 [dealing generally with standards of review].)" (People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835; see People v. Davis (2010) 186 Cal.App.4th 1272 [applying the abuse of discretion standard].)
In applying the abuse of discretion standard, Davis cites to People v. Hobbs (1994) 7 Cal.4th 948. But a careful reading of Hobbs undermines the appellate court in Davis' reliance on the Hobbs case. Our Supreme Court in Hobbs wrote, "[I]t will first be recalled that defendant filed a separate motion to discover the identity of the confidential informant in order to determine whether the informant was a material witness to her guilt or innocence. Her plea of no contest, tantamount to a guilty plea, bars any appeal from the denial of that motion, and she does not contend otherwise." (See Hobbs, supra, 7 Cal.4th at pp. 975-976.) In other words, the Hobbs court did not review the defendant's motion to disclose the identity of the confidential informant on the basis that the informant was a material witness. Therefore, it does not appear that the Hobbs court resolved the issue as to which standard of review to apply in this context.
In People v. Gordon, supra, 50 Cal.3d 1223, our Supreme Court wrote that the abuse of discretion or independent standards of review may be applicable to such a ruling. (Id. at pp. 1245-1246.) "[A]buse of discretion is generally the proper standard of appellate review on matters regarding discovery in criminal cases [citation]. . . ." (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1212.) However, the Supreme Court has also concluded that Brady claims are subject to the independent standard of review. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) "Under Brady, '"the prosecution must disclose to the defense any evidence that is 'favorable to the accused' and is 'material' on the issue of either guilt or punishment." [Citation.]'" (Ashraf, supra, 151 Cal.App.4th at p. 1212.) In order to obtain identifying information concerning a confidential informant, a defendant must show that the informant's testimony might exonerate the defendant. (Lawley , supra, 27 Cal.4th at pp.159-160.) The legal issues involved in obtaining a confidential informant's identifying information are nearly identical to the legal requirements for obtaining Brady material. Because the instant issue is more akin to a Brady violation than a general discovery violation, in our view, the independent standard of review should apply. In any event, for purposes of our review of this challenge, we will assume that the more rigorous de novo standard of review applies because, as discussed below, the trial court's denial of defendant's motion for disclosure of the identity of the confidential informant was proper under any standard. With all of the foregoing principles in mind, we examine the merits.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
3. The Court Properly Denied the Motion
Before we examine the merits of whether the trial court properly denied the motion for disclosure of CI Tony's identification, we address several preliminary matters.
First, before this court appellants Diaz, Eseberre and Aguilar all challenge the lower court's denial of the motion. However, on the record before this court it appears that only Diaz and Lopez formally sought the discovery. There is no evidence that Eseberre or Aguilar filed motions to discover CI Tony's identity. Having failed to seek the disclosure of this information below, neither Eseberre nor Aguilar can complain on appeal of any error with respect to the court's ruling on the motion. As a number of courts, including the Supreme Court, have observed, the determination of whether a confidential informant's is a "material witness" (i.e., whether there is a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant) requires an individualized determination and is considered on a case-by-case basis. (See Roviaro v. United States (1957) 353 U.S. 53, 62; People v. Austin (1994) 23 Cal.App.4th 1596, 1610, overruled on another point in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.) Indeed, in this case each appellant had a different level of involvement in the crimes charged and the fact that CI Tony might have had evidence pertinent to one appellant does necessarily mean CI Tony had evidence as to all of them. Thus, both Eseberre and Aguilar forfeit their objection to the court's denial of the motion to disclose the identification of CI Tony because they never sought the discovery in the trial court.
Second, although Diaz filed the appropriate motion, he made a lackluster effort to produce "some evidence" to show "'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.'" (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 419.) Here, the motion was supported by a declaration of his counsel, who had no personal knowledge of the circumstances he described in the declaration. Such a showing fails to establish a prima facie case to obtain discovery. (See People v. Oppel (1990) 222 Cal. App.3d 1146, 1152-1153 [holding "that the affidavit of an attorney for a party, made on information and belief, cannot, as a matter of law, be construed to be evidence, and thus, such an affidavit made on information and belief cannot constitute the requisite factual foundation for the prima facie showing mandated on the issue of disclosure of a confidential informant's identity under section 1042(d)."]) In addition, Diaz did not submit any questions to the court to ask during the in camera hearing. Such questions might lead to the discovery of evidence to support the claim that CI Tony was a material witness subject to disclosure.
Finally, even though appellants claim the trial court's denial of the motion violated their federal constitutional rights, they failed to assert those rights in the lower court. In general, a federal constitutional right is forfeited on appeal if the claim is not specifically asserted below. (See People v. Sanders (1995) 11 Cal.4th 474, 510, fn 3.)
We also note that in his reply brief, Diaz challenges the constitutionality of Evidence Code sections 1041 and 1042. However, the use of an in camera proceeding to determine whether the subject information is privileged has long been proper and has withstood constitutional due process challenges where the defense has been given an opportunity to express its position with respect to its need for the information and where a record of the in camera hearing is preserved for appellate scrutiny. (People v. Levine (1984) 152 Cal.App.3d 1058, 1070-1071 [in camera hearing does not violate Sixth Amendment nor deprive defendant of fair trial]; People v. O'Brien (1976) 61 Cal.App.3d 766, 775 [in camera hearing does not violate defendant's constitutional rights of confrontation, cross-examination, compulsory process and the effective use of counsel]; People v. Pacheco (1972) 27 Cal.App.3d 70, 81-82 [in camera proceeding does not violate Sixth Amendment right to compulsory process]; People v. Reel (1979) 100 Cal.App.3d 415, 420, fn. 1 [constitutionality of the in camera proceeding has been upheld].) These conditions were satisfied here. The trial court gave defendant an opportunity to explain his need for the information and to counter the claim of privilege, and stated its ruling on the record. A sealed record of the in camera hearing was prepared and is part of the record on appeal.
Notwithstanding these matters, we have reviewed the transcript of the in camera hearing, as well as the proceedings in open court. All evidence introduced at the in camera hearing was given under oath, and no opinions, characterizations of witness statements, or assumptions or conclusions were uttered by any testifying officer - merely facts. We are satisfied from the information imparted during the in camera hearing that CI Tony was not a material witness who could provide evidence that might result in appellant's exoneration. The trial court conducted "a sufficiently searching inquiry," and properly concluded "that the informant could not have provided any evidence that, to a reasonable possibility, might have exonerated defendant." (People v. Lawley, supra, 27 Cal.4th at p. 160.) In fact, it appears that CI Tony's evidence corroborated Agent Cortez's version of events and thus would have only served to further implicate Diaz and the others. Based on this de novo review, disclosure of the informant's identity was not a prerequisite to a fair trial in this case, and the trial court did not err under Evidence Code sections 1041 or 1042 or under state or federal constitutions in denying the disclosure motion. "[W]hen an in camera hearing has been held and the trial court has reasonably concluded, as in [this] case, that the informant does not have knowledge of facts that would tend to exculpate the defendant, disclosure of the identity of the informer is prohibited by Evidence Code section 1042, subdivision (d), since the public entity . . . invoked the privilege pursuant to [Evidence Code] section 1041." (People v. McCarthy (1978) 79 Cal.App.3d 547, 555.)
B. Limitation Imposed on Closing Argument
Diaz, Eseberre and Aguliar also claim that the trial court erred in failing to allow them to comment during closing argument about the prosecutor's failure to call CI Tony as a witness during the trial.
1. The Relevant Proceedings
During closing argument, Diaz's trial counsel argued that CI Tony was present and acted as a partner with the undercover officer. Diaz's counsel also told the jury:
What we don't know is what would he have said if he came to court to testify. And you have to ask yourself, just like the missing recorded conversations, why wasn't he called as a witness to confirm or deny what the undercover officer said - ."
The court interrupted the closing argument and asked to see the parties at sidebar. At sidebar, the court said the issue had been discussed, and it had told counsel that this was an improper argument because another judge had found that there was no reasonable possibility that the failure to disclose the informant would deprive his client of a fair trial. Diaz's counsel said the prior judge had only ruled that the informant's name did not have to be disclosed, but that ruling did not preclude the defendants from arguing that the prosecutor failed to call him as a witness. The prosecutor said the prior ruling was that the C.I. could not offer exculpatory evidence.
The court told appellant Diaz's counsel that the problem with the argument was it invited the jury to speculate that the informant could offer exculpatory evidence. Diaz's counsel responded that he could argue about witnesses that the prosecution should have called and allow the jury to speculate about the absence of prosecution witnesses. The court disagreed and said that it would instruct the jury that another judge had taken testimony in camera from the informant and had made a decision that the informant had no exculpatory information. The court noted that Judge Fisher ruled pursuant to Evidence Code section 1042 that the informant did not have to be disclosed; the court stated that to make that finding Judge Fisher necessarily had to conclude that there was no reasonable possibility that nondisclosure of the informant would deny the defendants a fair trial.
Diaz's counsel responded that even though Judge Fisher ruled that the identity of the informant did not have to be disclosed; however, Diaz could still comment to the jury about why the prosecution did not call the informant to corroborate the officer's testimony.
Eseberre's counsel said he agreed with appellant Diaz's counsel assessment, "but I do accept the court's ruling. And it was not defendant Eseberre who brought this subject up." The court presumed that all defendants were joining in Diaz's counsel's argument to comment on the absence of evidence from CI Tony. Eseberre's counsel said that he was not joining in appellant Diaz's motion "because of the court's ruling not to do so."
The court asked if he was joining in the motion to argue. Eseberre's counsel said if the court told the jury that CI Tony gave no exculpatory evidence, then the jury would infer that CI Tony would give incriminating evidence. He added, "And Mr. Eseberre has not done anything to cause himself to be in that position. I think that would tilt the case completely." Eseberre's counsel suggested that the court instruct the jury to disregard anything about CI Tony's absence at the trial and to not speculate what CI Tony would have said had he testified at trial. He added that to say "he would not give any exculpatory evidence inferentially means that he would necessary give incriminating evidence, and I object on the part of my client." The court and the prosecutor agreed that Eseberre's suggested instruction would be a better course to follow.
Aguilar's counsel joined in appellant Diaz's motion.
Diaz's counsel continued to argue that Judge Fisher's ruling denying access to the informant's name had nothing to do with what the defense could argue to the jury. The court said that Judge Fisher's ruling was that the informant could not be disclosed because he had no exculpatory information. The court pointed out that defense counsel was asking the jury to speculate that the informant would have added something to Diaz's case when counsel knew that Judge Fisher effectively ruled to the contrary. Diaz's counsel said that he wanted to argue about the informant not being wired and not having testified. He added that the previous judge's finding that the informant did not provide exonerating testimony did not bind him from any type of cross-examination.
The court again rejected the argument, finding the Judge Fisher ruled that the defense was not entitled to the informant's name and that the ruling meant that there was no exculpatory information that the informant could provide. Because of that ruling, the court found that the defense was arguing improperly when it invited the jury to speculate that the informant would have provided exculpatory information. The court recognized that normally the defense could comment about the prosecution's failure to call a witness. The court stated, "What makes this case different is that you've got a ruling that says you can't call this person because he doesn't have anything to add to your case. Just like I wouldn't let you argue, where is somebody that you knew was dead."
Diaz's counsel responded that Judge Fisher did not know what the defense was going to be at the time and thus it was proper argument to comment on why the informant was not at the trial. Diaz's counsel claimed that the defendants were deprived of an opportunity to cross-examine the informant in chambers. He said that one of the purposes of trying to find out the identity of the informant was so that he could ask him questions that could contradict the undercover officer's testimony. However, he stated those decisions did not mean that he could not argue about the informant in front of the jury.
The prosecutor noted that the defense was given an opportunity to have evidence presented and to submit questions at the in camera hearing.
The court recognized that the government had the right to protect informants and if the informant was required to come forward at trial that would be contradictory to Evidence Code sections 1041 and 1042. The court said it would instruct the jury not to speculate as to what the informant would say or not say and that informants are protected under law. The court said that it would tell the jury that they were not to concern themselves with the informant, an informant has certain protections under the law, and to judge this case on the evidence they heard in court.
After a short break in the proceedings Diaz's counsel said he had to look at Evidence Code section 412 to determine what additional evidence could have been disclosed. He said that the ruling by Judge Fisher was not binding on the trial court. Diaz's counsel said there was an instruction that the People do not have to call all witnesses in order to prove their case. The court said that it would not let appellant Diaz's counsel argue that the evidence should be viewed with distrust pursuant to Evidence Code section 412. Eseberre's counsel said the prosecutor had the opportunity to produce stronger evidence pursuant to Evidence Code section 412 and the jury should be able to speculate why she did not do that. The court asked what was the purpose of the informant statute if defense attorneys could argue that the informant should have been called "because he could have really told us the truth here." Eseberre's counsel replied that the prosecution could have given stronger evidence as stated in Evidence Code section 412.
Before this court the Attorney General argues that Eseberre waived any objection to the court's order limiting closing and "invited error" when he suggested the instruction to the jury concerning CI Tony's absence from the trial. We do not agree. While Eseberre did not initially join in Diaz's objection to the court's order, and suggested a neutral instruction concerning the informant, by the end of the lengthy discussion of the matter, it appears that all of the defendants, including Eseberre, had joined in the complaint about the limitation on the argument.
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The court instructed counsel for each appellant not to argue the absence of the informant was something the jury should consider in weighing the evidence. When the jury returned to the courtroom, the court instructed them not to speculate about CI Tony and what he might have testified to if he had been called as a witness.
When Diaz's counsel resumed his closing argument he told the jury that the prosecution could have presented stronger evidence to support its case, but failed to do so.
2. The Court Did Not Err
The trial court has discretion to control the proceedings during the trial, including the argument to the jury. (Evid. Code § 1044; People v. Ponce (1996) 44 Cal.App.4th 1380, 1387.) Absent a showing of an abuse of discretion this court will uphold the lower court's actions. (People v. Cline (1998) 60 Cal.App.4th 1327, 1334.)
With certain exceptions, a comment inviting the jury to draw a logical inference based on the state of the evidence, including comment on the failure to call an available witness, is permissible. (See People v. Ford (1988) 45 Cal.3d 431, 449 [prosecutor permitted to invite the jury to infer that the defendant did not call his available alibi witnesses because their testimony would not support defendant's alibi.]) However, the trial court may properly preclude closing argument that misleadingly suggests an adverse inference be drawn from the failure of the opposing party to produce a witness when counsel knows the witness was, in fact, unavailable. (See People v. Frohner (1976) 65 Cal.App.3d 94, 103; Ford, at p. 449.)
Here, CI Tony was certainly unavailable to the defendants, and it would have been improper for the prosecutor to have suggested to the jury that the defendants had purposely failed to call him as a witness. But CI Tony was available to the People to call as a witness, at least until sometime shortly before trial when the delayed revelation of his identity would have deprived the defendants of their right to a fair trial. (See generally Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1151 ["when nondisclosure of the identity of a crucial witness will preclude the effective investigation and cross-examination of that witness, the confrontation clause does not permit the prosecution to rely upon the testimony of that witness at trial while refusing to disclose his or her identity"].) The prosecutor declined to call CI Tony as a witness not because of CI Tony's unavailability as a legal or factual matter but instead for tactical reasons such as a desire to keep his identity confidential, or the belief his testimony was unnecessary because merely repetitive of the undercover agent's or a combination of those two (or some other) motives.
If defense counsel were allowed to invite the jury to speculate about CI Tony's absence, however, then, as appellants' counsel acknowledged at oral argument, it would have been permissible for the prosecutor to counter that suggestion by explaining the government has a statutory right to protect its informants, a right it had exercised in this case. It was well within the trial court's discretion to control the proceedings to eliminate this back-and-forth by simply instructing the jury not to speculate one way or the other about CI Tony and what he might have testified if called as a witness. Consequently, in view of the circumstances we cannot say that the court abused its discretion in preventing appellants' lawyers from commenting about the prosecutor's failure to call CI Tony as a witness at trial.
Even if the court's limitation on closing argument was error, moreover, it was harmless whether measured by the Chapman or Watson standard. (See generally People v. Mower (2002) 28 Cal.4th 457, 484 [if trial court's error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S. Ct. 824], requires the People, in order to avoid reversal of the judgment, to "prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained"; but if the error violates only California law, the standard is that stated in People v. Watson (1956) 46 Cal.2d 818, 836, which permits the People to avoid reversal unless "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"].) As discussed, after the ruling limiting closing argument, Diaz's counsel still told the jury the People could have presented stronger evidence to support their case but failed to do so. In effect, defense counsel presented the very argument it now argues it was not permitted to make. The difference in language used to convey this point did not have any impact on the verdicts reached.
II. Appellant Zavala's Appeal
Appellant Zavala filed a timely notice of appeal. This court appointed counsel to represent Zavala on appeal. After examining the record, Zavala's appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, indicating that he was unable to find any arguable issues to assert on appeal. Thereafter, this court advised Zavala that he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied appellant's counsel has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgments are affirmed.
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WOODS , J.
We concur:
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PERLUSS, P. J.
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JACKSON, J.