Navarro v. Sup. Ct.

Filed 9/27/06 Navarro v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of prohibition to challenge an order of the Superior Court of Orange County, Francisco P. Briseno, Judge. Petition denied.

Halpern and Halpern and H. Russell Halpern for Petitioner.

No appearance for Respondent.

Tony Rackauckas, District Attorney, and Stephan L. Sauer, Deputy District Attorney, for Real Party in Interest.

* * *

Defendant Anthony Navarro petitions for a writ of prohibition directing the court to vacate its order denying his motion to discover the identity of a confidential informant (CI) for the FBI. But only the FBI knew the CI’s identity, and it refused to disclose it. Thus, the prosecution lacked actual or constructive knowledge of the CI’s identity. The court cannot compel the prosecution to produce information it does not have and cannot obtain. We deny the petition.

FACTS

Defendant faces trial for allegedly recruiting fellow gang members to commit a murder-for-hire in 2002.[1] He asked the FBI to produce information regarding his former work for them as a CI. The FBI apparently declined the request. Defendant next issued subpoenas to the FBI. The FBI replied it would consider complying with the subpoenas if defendant satisfied the applicable federal statutes and regulations by clarifying his request and obtaining a court order.

In response to a defense motion, the court ordered the prosecution to ask the FBI to disclose its information about defendant. In response to the prosecution’s request, the FBI produced more than 340 pages of documents, which the district attorney apparently produced to defendant. According to one document, “[a]nother reliable Confidential Informant” had informed the FBI in September 2000 that defendant’s “life was in danger because various gangs and [their] members believe [defendant] is cooperating with the Los Angeles Police Department.”

Defendant moved for an order compelling the prosecution to disclose the name and address of the CI mentioned in the FBI documents. He contended the CI could confirm defendant’s fellow gang members did not trust him, disproving the prosecution’s claim that defendant recruited some of them for the murder-for-hire. Before responding to defendant’s motion, the prosecutor asked the FBI to disclose this information. The FBI refused to do so, stating that releasing the information “would jeopardize pending federal investigations and/or prosecutions in addition to endangering the lives of the informant(s) and his or her family.” In a declaration filed in opposition to defendant’s motion, the prosecutor related the FBI’s refusal and stated, “[n]either I nor any member of the prosecution team knows the identity of the CI mentioned in [the FBI documents].” The court denied defendant’s motion.

Defendant petitioned for a writ of prohibition directing the court to vacate its order denying his motion. We requested an informal response from the Orange County District Attorney, and issued an order to show cause.

DISCUSSION

The prosecution must disclose to the defense “all pertinent information which might assist the defense to locate” a CI who is a material witness. (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851.) The parties’ dispute whether the CI mentioned in the FBI documents is a material witness in this case. But it is undisputed the prosecution does not know the CI’s identity. Thus, the threshold issue is whether the prosecution must obtain that information from the FBI.

For guidance, we turn to established case law construing the prosecution’s duty to obtain material exculpatory evidence from investigative agencies. As the California Supreme Court has observed, the prosecution has a “‘duty to ascertain as well as divulge “any favorable evidence known to the others acting on the government’s behalf . . . .”’” (In re Steele (2004) 32 Cal.4th 682, 696-697 (Steele).) “Thus, the prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government’s behalf that were gathered in connection with the investigation.” (Id. at p. 697; cf. In re Littlefield (1993) 5 Cal.4th 122, 135 (Littlefield) [prosecution must disclose information “‘reasonably accessible’“ to it, including “information in the possession of all agencies (to which the prosecution has access) that are part of the criminal justice system,” italics added].)

But as the California Supreme Court has also observed, the prosecution need not rifle through every government filing cabinet. “[T]he prosecution cannot reasonably be held responsible for evidence in the possession of all governmental agencies, including those not involved in the investigation or prosecution of the case. ‘Conversely, a prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material.’” (Steele, supra, 32 Cal.4th at p. 697; accord People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315, 1318.)

In a similar context, the California Supreme Court held the prosecution did not have to obtain and produce documents from the FBI. (People v. Parham (1963) 60 Cal.2d 378 (Parham).) In Parham, the defendant contended he did not receive a fair trial because an FBI agent refused to produce statements obtained from prosecution witnesses. (Id. at pp. 380-381.) The court noted federal regulations precluded the trial court from compelling the FBI agent to produce the statements or holding the FBI agent in contempt. (Id. at p. 381.) And the court refused to assign any responsibility for obtaining the statements to the prosecution. It observed, “[t]he prosecution did not withhold the statements, but on the contrary made every effort to obtain them from the F.B.I. The prosecution cannot be penalized because those efforts failed.” (Id. at p. 382.)

In this case too, the prosecution had no duty to obtain and disclose the CI’s identity. The prosecutor does not know the CI’s identity, nor does his investigative team. Only the FBI knows it. And the FBI will not tell. The court cannot compel the FBI to do so.[2] (Parham, supra, 60 Cal.2d at p. 382.) And because the FBI played no role in investigating or prosecuting defendant in this case, the court cannot require the prosecution “to search for or to disclose such material.’” (Steele, supra, 32 Cal.4th at p. 697; cf. Littlefield, supra, 5 Cal.4th at p. 135 [prosecution need not disclose information held by agencies to which it lacks reasonable access].)

Defendant cites no authority requiring the prosecution to disclose information it does not have and cannot obtain. He relies on two cases in which the prosecution had potential defense witnesses deported. (United States v. Valenzuela-Bernal (1982) 458 U.S. 858; People v. Mejia (1976) 57 Cal.App.3d 574, abrogated by constitutional amendment on proper materiality standard to apply to loss of testimonial evidence, as recognized by People v. Valencia (1990) 218 Cal.App.3d 808.) These cases are inapt because, in this case, the prosecution did nothing to render the CI’s identity unavailable. It simply never had the information.

At any rate, we doubt defendant met his burden of showing the CI is a material witness. (See People v. Lawley (2002) 27 Cal.4th 102, 159.) A CI is a material witness if a “reasonable possibility” exists the CI “could give evidence on the issue of guilt that might exonerate the defendant.” (Ibid.) But “‘[w]hen the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility.’” (People v. Hardeman (1982) 137 Cal.App.3d 823, 829 (Hardeman).)

We see scant reasonable possibility the CI’s testimony might exonerate defendant. Nothing suggests the CI was “‘a participant in [or] a non-participant eyewitness to the charged offense.‘” (Hardeman, supra, 137 Cal.App.3d at p. 829.) And even if the CI knew some gang members suspected defendant was cooperating with the authorities in 2000, there is no indication that the suspicions still lingered in 2002, or that the alleged participants in the murder-for-hire knew about the suspicions. To the contrary, the documents produced by the FBI suggest defendant quickly cleared his name of any such suspicions. Defendant’s fellow gang members continued to trust him, telling him about several planned murders, introducing him to high-ranking drug cartel members, and eventually inducting him as a “brother” in the Mexican Mafia.

Finally, defendant contends the court erred by denying his motion without at least compelling the prosecution to disclose the CI’s identity at an in camera evidentiary hearing. (See Evid. Code, §§ 1041, 1042, subd. (d) [describing procedure for determining whether prosecution may assert privilege to withhold CI’s identity].) We disagree. “It is incumbent on the defendant to make a prima facie showing for disclosure before an in camera hearing is appropriate.” (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152.) Defendant failed to do so for the reasons already discussed.

DISPOSITION

The petition is denied.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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[1] According to defendant’s petition, the Orange County District Attorney charged him with one count each of murder with special circumstances (Pen. Code, §§ 187, 190.2, subds. (a)(1), (a)(17)(B), & (a)(22)), conspiracy (Pen. Code, § 182, subd. (a)(1)), street terrorism (Pen. Code, § 186.22), and kidnapping to commit robbery or rape (Pen. Code, § 209, subd. (b)).

[2] Federal regulations restrict Department of Justice employees from producing material in its files or disclosing information concerning any such material. (See, e.g., 28 C.F.R. § 16.22(a) (2003).)