Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SF014028A Kenneth C. Twisselman II, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
This is the second appeal in this matter. In the first appeal (People v. Wagoner (Aug. 13, 2009, F055486) [nonpub. opn.]), we reversed appellant Jimmy D. Wagoner’s conviction for possession of heroin. We also reversed his conviction for possession of heroin in jail and remanded with directions to conduct an Evidence Code section 1042, subdivision (d) hearing. The in camera hearing was held; the trial court declined to order disclosure of the confidential informant; and the conviction for possession of heroin in jail was reinstated.
All further statutory references are to the Evidence Code unless otherwise specified.
Wagoner asks this court to review the transcript of the in camera hearing for any error. He further asserts the trial court applied an incorrect standard in denying disclosure of the confidential informant. Finally, he contends the trial court erred in reinstating a conviction for possession of heroin, which we previously reversed.
We conclude the trial court erred in declining to order the disclosure of the confidential informant’s identity and in reinstating the possession of heroin conviction. Thus, we will reverse the judgment and remand the matter to the trial court.
FACTUAL AND PROCEDURAL SUMMARY
On September 16, 2010, this court granted Wagoner’s request to take judicial notice of the opinion and record on appeal in case No. F055486.
The evidence in case No. F055486 established that Wagoner entered the Lerdo jail facility on June 20, 2007, and was assigned a cell in A-pod; on June 25 he was moved to a cell in D-pod. On June 26, Deputy Sheriff Dustin Alkire was informed by an inmate in A-pod that Wagoner had heroin in his possession and had taken it with him to his cell in D-pod. Alkire checked the computer and learned that Wagoner was in D-pod, unit 1, cell No. 109.
Alkire notified his sergeant, who ordered that Wagoner’s cell be searched. Alkire and two other deputies went to Wagoner’s cell; Alkire remained outside the cell while the other deputies entered and commenced a search. Upon entering the cell, the two deputies handcuffed Wagoner, placed him face down on the lower bunk, and commenced a search of the cell. Alkire entered the cell to complete the search while the other deputies escorted Wagoner to an interview room.
Alkire found a small amount of heroin wrapped in plastic under the mattress of the lower bunk in the cell. Alkire testified that the package was small enough that a person lying or sitting on top of the mattress would not notice its presence. Alkire assumed the lower bunk was Wagoner’s because when he entered the cell, Wagoner was lying face down on that bunk, handcuffed, with his personal effects next to him.
The evidence at the trial also included testimony that (1) cells were open and unlocked several hours a day; (2) other inmates would have access to the cells when they were unlocked; (3) inmates were not assigned a specific bunk in a cell; (4) Wagoner had preferred the upper bunk in his previous cell assignments; and (5) Wagoner’s cell was searched just after it had been opened for a four-hour period.
Alkire testified that the confidential informant (CI) had told him what to find and where to find it. Defense counsel asked for the name of the CI; the privilege under section 1041 was invoked; and the trial court denied the defense request for an in camera hearing.
Wagoner maintained at trial that he did not know of the heroin’s presence and it must have been placed there by a third party. A jury convicted Wagoner of possession of heroin and possession of heroin in jail; Wagoner appealed.
In our previous opinion, we reversed the possession of heroin charge as it is a lesser included offense of possession of heroin in jail. We concluded it was error to deny the request for an in camera hearing and reversed the possession of heroin in jail conviction. We remanded the matter for the trial court to conduct an in camera hearing and directed that the possession of heroin in jail conviction be reinstated if, after the in camera hearing, the trial court found no reasonable possibility the failure to disclose the CI’s identity deprived Wagoner of a fair trial.
On remand, the trial court did conduct an in camera hearing. The in camera hearing was held on January 8, 2010. The trial court articulated the purpose of the in camera hearing “was to determine if the confidential informant is a material witness whose identity must be disclosed.”
Wagoner’s counsel submitted written questions to be asked of the CI at the in camera hearing. At the in camera hearing, the CI was duly sworn and the prosecutor was allowed to ask questions of the CI; the trial court then posed questions.
According to the CI, inmates had free run of the dormitory areas of the pods during the day because cell doors were left open and unlocked. There were about 28 to 30 men in each pod. The CI testified that during one of these open dormitory periods, Wagoner showed him the heroin and was trying to sell it while the two were in A-pod. The CI claimed Wagoner had drugs hidden on his body—either “keistered” or in his waistband—and was selling drugs to inmates.
This is a term used by inmates to describe hiding items in the buttocks.
The CI did not like the way Wagoner was “pushing people around and fighting.” Wagoner had gotten into a fight with the CI’s cellmate. Wagoner also fought with one of the CI’s friends.
The CI testified that he slipped a note to Alkire stating he wanted to talk with Alkire. The CI spoke with Alkire in the recreation yard before and after Wagoner was moved out of A-pod. The CI testified variously (1) he did not know where Wagoner was being moved to; (2) it was Alkire who told him Wagoner had been moved to D-pod; and (3) Wagoner said he was being moved to D-pod. After speaking with Alkire about Wagoner, the CI was moved to H-pod.
When asked if it would be accurate to say he did not have “any axe to grind with Mr. Wagoner, ” the CI responded, “No.” The CI claimed he did not receive any special treatment with respect to charges that had been pending against him as a result of his information against Wagoner. The CI testified that he had multiple felony convictions and had helped deputies on several occasions in the past with “some information.” The CI had been at Lerdo a month or more before informing on Wagoner. The CI was incarcerated at the time of the hearing.
At the conclusion of the CI’s testimony, the trial court opined that it appeared “there’s an issue as to whether he would have had some grudge toward Wagoner.” The prosecutor argued that our previous opinion was positing whether the CI would have had a “grudge that would have caused [the CI] to be involved with planting or having drugs in D-pod” and that this had not been established. The prosecutor argued that the CI had “never been to D-pod and would not have known where the drugs would have been hidden, didn’t know anybody that could have communicated or could have transported drugs to D-pod, [and] didn’t know any sort of porter or anyone else who would have had access from A-pod to D-pod” to plant the drugs.
The trial court then noted that there was an “inconsistency” between the CI’s testimony and Alkire’s testimony at the trial. The prosecutor acknowledged there was an inconsistency in the testimony of Alkire and the CI, but argued the inconsistency did not give rise to a “suspicion” that the CI had “some axe to grind” against Wagoner. The prosecutor argued that there was a certain code of conduct among those who are institutionalized and that wanting “peace and harmony inside a correctional facility is a harmless reason for wanting to tell on someone.”
The trial court then offered that based on its knowledge of correctional facilities, an inmate in the CI’s position could have had a way to communicate with another inmate and “send a message” that the CI wanted Wagoner to be found in possession of heroin and cause someone to put the heroin under Wagoner’s mattress. The prosecutor responded this was “speculation” because there was no evidence the CI had done this.
With both parties present and the court in open session, the trial court stated that it had assessed the evidence and “[found] no reasonable possibility that failure to disclose the informant’s identity deprived Wagoner of a fair trial.” The trial court went on to state that as to third party culpability evidence that Wagoner attempted to raise in his trial, the trial court had assessed the evidence from the in camera hearing and determined that “the probative value of such evidence is substantially outweighed by the risk of undue delay, prejudice, and or confusion” and concluded the evidence should be excluded. The trial court then concluded there was no “reasonable probability” that failure to disclose the informant’s identity deprived Wagoner of a fair trial and reinstated the judgment.
DISCUSSION
Wagoner asks this court to review the transcript of the in camera hearing and confirm (1) the CI testified under oath at the in camera hearing, and (2) the trial court asked the CI the questions submitted by defense counsel. Wagoner contends the trial court articulated an incorrect standard for determining whether the identity of the CI should be disclosed. Finally, Wagoner notes the judgment erroneously reinstates a conviction this court reversed and must be corrected.
I. Review of Sealed Transcript
Both Wagoner and the People agree that this court should review the transcript of the in camera hearing to determine if the CI and any other witnesses who testified were testifying under oath and to verify that questions posed by defense counsel were asked. We have reviewed the sealed transcript of the in camera hearing and confirmed that the only witness who testified, the CI, was placed under oath before testifying. Also, the questions posed by defense counsel were asked of the CI, although they were not stated verbatim as presented by defense counsel.
The information elicited at the in camera hearing is addressed in part II. below.
II. Disclosure of the Identity of the Informant
As this court noted in its previous opinion, “the evidence was far from overwhelming that Wagoner had knowledge of and constructively possessed the heroin under the lower bunk of the cell to which he had been assigned for one day.” (People v. Wagoner, supra, F055486.) We evaluate the CI’s testimony under the circumstances where possession is based upon constructive possession in a location where Wagoner had access, but not exclusive access, and over which he had some control, but not exclusive control, and the evidence of possession is slight.
In reviewing the CI’s testimony, we have four areas of concern: (1) the CI acknowledged a basis for holding a grudge against Wagoner; (2) the CI’s testimony was inconsistent with Alkire’s testimony at trial and clearly inconsistent with Alkire’s report that prompted the search; (3) the CI’s testimony regarding where Wagoner hid drugs was not consistent with where the heroin was found by Alkire; and (4) the information that the CI had multiple convictions and had served as an informant on several occasions was not disclosed to the jury. We also note that although Alkire was subpoenaed for the in camera hearing, the prosecution made no effort to question Alkire under oath regarding the inconsistencies between the CI’s testimony and Alkire’s report and testimony at trial.
Standard of Review
Section 1042, subdivision (d) provides in relevant part that if “the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial, ” the CI’s identity must be disclosed or charges dismissed. The People contend that the standard of review for a trial court’s determination whether to order disclosure after an in camera hearing is not settled, citing People v. Gordon (1990) 50 Cal.3d 1223, 1246. The comment in Gordon that the law in this area is not settled is somewhat mystifying, as the California Supreme Court in People v. Borunda (1974) 11 Cal.3d 523, 529 (Borunda) held that the issue is one of law and subject to de novo review. (See People v. Otte (1989) 214 Cal.App.3d 1522, 1535-1536.)
Borunda has been cited with approval by numerous cases addressing disclosure of a CI’s identity. (See, e.g., People v. Lawley (2002) 27 Cal.4th 102, 159; People v. Bacigalupo (1991) 1 Cal.4th 103, 123.) In People v. Lee (1985) 164 Cal.App.3d 830 (Lee), this court addressed a trial court’s decision on disclosure of a CI after an in camera hearing. We cited to Borunda, exercised independent judgment on whether the facts required disclosure of the confidential informant, and concluded the trial court had erred. (Lee, at pp. 835, 840.) Following our holding in Lee, we will apply a de novo standard of review in this case.
Analysis
The CI privilege (§ 1041) is necessary to promote the free flow of information to law enforcement. Anonymity provides protection to the informant. The public interest would suffer if an informant’s identity always were discoverable. (People v. Hobbs (1994) 7 Cal.4th 948, 958.) Although retaining confidentiality promotes a strong public interest, fundamental fairness requires the privilege to be limited in its scope. “‘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. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.’ [Citation.]” (Id. at p. 959.) This is the precise situation presented by this case.
With specified exceptions, “a public entity has a privilege to refuse to disclose the identity of a person who has furnished information [to a law enforcement officer] purporting to disclose a violation of a law of … this state.” (§ 1041, subd. (a).) Moreover, “otherwise admissible evidence of information communicated to a peace officer by a confidential informant” may be introduced in a criminal proceeding under specified conditions “without requiring that the name or identity of the informant be disclosed.” (§ 1042, subd. (c).) The state’s interest in preserving confidentiality, however, must be balanced against the defendant’s right to due process and a fair trial. (Heafey & Blitch, Cal. Trial Objections (Cont.Ed.Bar 2010) Privilege for Identity of Informer, § 44.9, pp. 589-590.)
When there is a “reasonable possibility” that nondisclosure might deprive the defendant of a fair trial, the CI’s identity must be disclosed. (People v. Alderrou (1987) 191 Cal.App.3d 1074, 1080.) To establish a reasonable possibility that an informant could give exonerating testimony, the defendant must show something more than “sheer speculation, ” but need not establish the informant would give favorable testimony. (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1043-1044.)
Here, there is more than mere speculation that refusing to disclose the CI might deprive Wagoner of a fair trial. Wagoner denied culpability; he maintained that a third party was culpable; and he was denied the ability to assert any third party culpability at his trial, except as to his cellmate of less than one day. (People v. Wagoner, supra, F055486.) The inconsistencies between the CI’s testimony and the report from Alkire, plus other information and inconsistencies in the CI’s testimony, could cause a juror to doubt the prosecution had proved its case beyond a reasonable doubt.
The CI’s testimony was inconsistent with Alkire’s report that prompted the search. The report stated the CI told Alkire that Wagoner was in D-pod and had heroin. The CI stated he initially spoke to Alkire when he and Wagoner were in A-pod. The CI variously testified he did not know where Wagoner was being moved or that it was Alkire who told him that Wagoner was in D-pod.
At trial, Alkire testified the CI told him “what to find and where to find it.” (People v. Wagoner, supra, F055486.) The CI told Alkire that Wagoner had probably “keistered” the drugs; yet, the deputies commenced a search of Wagoner’s cell, not his person, despite the search being conducted immediately after the cell had been opened.
The CI testified that Wagoner kept the drugs “keistered” or in his waistband because he was selling the drugs to other inmates during the time the cells were open. Yet, when the prosecution opposed Wagoner’s discovery request seeking disclosure of the identity of the CI, the prosecution stated the CI had not provided information on drug sales. (People v. Wagoner, supra, F055486.)
The CI also acknowledged a basis for holding a grudge against Wagoner. Yet, Wagoner was precluded from arguing any culpability by a third party and specifically precluded from arguing any culpability or complicity by the CI. (People v. Wagoner, supra, F055486.)
The CI had multiple felony convictions. There was no indication the jury was made aware of these convictions during Wagoner’s trial. The jury may have inferred the CI merely was awaiting trial on a first offense.
While the CI claimed he received no special treatment as a result of his providing information to deputies, he was moved from A-pod to H-pod immediately after informing on Wagoner, even though Wagoner was no longer in A-pod. Also, there was no attempt to verify whether the CI’s statement was true with respect to charges that had been pending against him at the time he informed on Wagoner.
Conclusion
We conclude there was a reasonable possibility that nondisclosure of the CI’s identity and precluding Wagoner from asserting third party culpability might have deprived Wagoner of a fair trial. Wagoner denied culpability, was precluded from asserting third party culpability at trial, and the facts supporting constructive possession were weak. Wagoner had been in the cell less than one day and evidence establishing whether the lower bunk was used by Wagoner was conflicting. When these facts are assessed in conjunction with the testimony at the in camera hearing, they establish (1) the CI acknowledged a basis for holding a grudge against Wagoner; (2) the CI’s testimony was inconsistent with Alkire’s testimony at trial and clearly inconsistent with Alkire’s report that prompted the search; (3) the CI’s testimony regarding where Wagoner hid drugs was not consistent with where the heroin was found by Alkire; and (4) the information that the CI had multiple convictions and had served as an informant on several occasions was not disclosed to the jury.
We will direct the trial court to order disclosure of the CI and Wagoner shall be entitled to a new trial. The case shall be dismissed if the prosecution refuses to disclose or is unable to produce the CI.
DISPOSITION
The judgment is reversed and the matter is remanded for a new trial. The trial court is directed to order disclosure of the CI’s identity. If the prosecution refuses to disclose the identity of the CI, or is unable to produce the CI for trial, the charges shall be dismissed.
WE CONCUR: WISEMAN, Acting P.J., POOCHIGIAN, J.