P. v. Estes

Filed 3/15/07 P. v. Estes CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Shaun Jermaine Estes was convicted at jury trial of the sale of cocaine base (Health & Saf. Code, 11352, subd. (a)), which occurred during a March 3, 2004, undercover buy operation conducted by the San Jose police in the Fountain Alley area, which Sargent Kevin Abruzzini, an expert on drug sales, described as the last of the open air drug markets . . . [in] San Jose.[1] Defendant was sentenced to three years in state prison.[2]

Defendant appeals, contending that the trial courts denial of his motion for disclosure of the details of the surveillance and the location of the surveilling officer violated his rights to due process, confrontation, and cross-examination under both the federal and California state Constitutions. He requests that this court review the sealed portion of the transcript of the hearing on the motion to ensure that [his] due process rights were protected by the trial courts ruling and the remedy provided and implemented. The People agree and we have reviewed the transcript.

FACTS

On March 3, 2004, San Jose Police Officer Tracy Millhone was working on an undercover narcotics operation in plainclothes and wearing a body wire monitoring device. She was walking up and down Fountain Alley near Second Street, waiting for somebody to make eye contact with her or motion her to come over to buy drugs.

At 11:30 a.m., defendant motioned for Millhone to approach him, and when she did, he said, what do you want? She said, a twenty, meaning $20 worth of rock cocaine. Another man approached them a few seconds later and while defendant and Millhone talked, he kept saying that he wanted a piece of it and that he had a pipe also. After a short negotiat[ion] for the $20, defendant said come over here and motioned for Millhone to follow him a short distance away. The man followed. Millhone handed defendant a $20 bill, whose serial number had been recorded, and held out her hands and defendant dropped the rock of cocaine into them so she did not take it from him. Millhone kept talking to defendant--basic, generic, now I got my rock. I had what I wanted. The transaction occurred in the middle of the alley, out in the open, in front of several stores; the location was not obstructed or hidden from view.

During the short conversation with defendant that followed the transaction, Millhone gave her verbal bust signal, consisting of an agreed-upon phrase indicating the conclusion of a drug transaction. The signal was for the benefit of Officer Mario Brasil, the officer monitoring Millhones body wire transmitter. Defendant was about a foot away at that time. Defendant walked away about five seconds later. Millhone walked away also and gave a visual bust signal, an agreed-upon, seemingly innocuous physical movement indicating the conclusion of a drug transaction. This signal was for the benefit of Officer Javier Acosta, the surveillance officer observing the transaction from a hidden location. The other man followed Millhone when she walked away and kept walking around and talking to her.

Defendant was detained about 10 minutes later. Meanwhile, Millhone gave the rock of cocaine defendant sold her to Officer Fabian Torrico. He then drove her to a position about 35 feet away from the location where defendant was detained and she made an in-field identification of him. Millhone stated her identification was based on her recognition of defendant, not on the fact that he was arrested. Some time later, Millhone also identified a photograph of defendant as the person who sold her the rock cocaine.

On the audiotape of the buy played for the jury, Millhone identified defendant as wearing a yellow shirt, but at the end of the tape, she also described defendant as wearing all black. At trial, Millhone explained that defendant had a black sweatshirt, a big, black hood and he had a black jacket. Millhone also stated that when she documented his actual entire clothing, his pants were light, possibly tan. The other guy had a light-colored shirt on.

Officer Acosta was assigned to the mobile surveillance unit observing Millhone in Fountain Alley. He was in contact with Officer Brasil, the case officer in charge of the operation who was monitoring Millhones body wire, but not with Millhone. Acosta kept Millhone in view from a distance of about 30 feet or less throughout the contact with defendant. Acostas view was unobstructed. Acosta testified he saw Millhone with defendant, and could see well enough to see any hand-to-hand transactions, but did not in fact see a hand-to-hand transaction between Millhone and defendant nor could he hear what was being said.

Acosta stated he did not notice a third person join Millhone and defendant; his primary focus was Millhone. After the case made signal was given, he transferred his attention to defendant. He was instructed to follow a Black male adult wearing a black hooded sweatshirt and khaki pants. Acosta followed defendant to First Street where after waiting for about a minute, they got on a bus. Acosta watched defendant the entire time they were on the bus but had no contact with him.

At one point, defendant turned around and started talking to the people behind him. Two men and a woman had gotten on the bus when it stopped for a red light after leaving the bus stop. They knocked on the front door of the bus and the driver let them in. They sat near defendant and spoke to him. Acosta could not hear defendants conversation with them because he was wearing a radio. At one point, defendants hands met the hands of one of the other persons. Acosta could not see if anything was exchanged but he knew from his experience with these operations that immediately after the sale, the seller usually gives the money to other persons in case he or she is stopped. After defendant and the people behind him talked, the bus was stopped by police. Acosta just got off the bus. He was not part of the arrest team.

When defendant was arrested, he had no drugs, no paraphernalia, no cell phone or pager, no weapon or any other incriminating evidence that would link defendant to drug dealing in general or to the particular transaction. The $20 bill was not recovered.

Later that same day, the undercover unit working the Fountain Alley area made two other arrests for the alleged sale of crack cocaine. Millhone was not involved with those arrests. Four minutes after defendants arrest, another man was arrested who exactly fit the description that Millhone had given of defendant. Officer Brasil described both defendant and the second arrestee as being black males in their mid-twenties, approximately five foot seven, with medium builds, afro hairstyles with wavy and curly hair. The only difference between the two men was that defendant was wearing tan pants while the second individual was all in black as Millhone had described defendant. The buy money was recovered in the second and third incidents from the arrested individuals.

Before trial, defendant filed an in limine motion (Evid. Code, 402)[3] objecting to police witnesses invocation of the official information privilege ( 1040, subd. (b)(2) (hereafter, 1040(b)(2)) to authorize their refusal to give details of the operation such as Acostas surveillance location and what the verbal and visual case made signals were.

At the hearing on the motion,Acosta testified consistently with his trial testimony. However, on the ground that certain answers threatens the safety of officers and future operations, he refused to answer questions such as: (1) was Acosta moving or stationary when he observed Millhone; (2) was Acosta at street level or in an elevated location; (3) was he in a building or did he enter or exit a building; (4) was he on foot, in a car, or on a bicycle; (5) what was the verbal bust or case made signal used; (6) what was the visual bust or case made signal used; (7) how far away was Acosta when he followed the suspect to the bus; and (8) in which direction was Acosta in relation to Millhone when he saw the interaction between her and the suspect.

In response to questions by the trial court, Acosta stated that during the time he was watching Millhone in the Fountain Alley location, Millhone was very close to numerous trees, buses, light rail transport, parked cars, buildings, alleyways, and other objects that could obstruct a persons view.

Brasil testified that it was his responsibility to set up the location for the surveillance officer, Acosta, but he, also, refused to disclose it pursuant to section 1040(b)(2). Brasil stated he was not directly at the location and did not personally observe anything that transpired. He testified that Millhone first gave a verbal case made signal and then a visual signal. Again pursuant to section 1040(b)(2), he refused to state what the verbal signal was. He stated that Millhone described the person she had purchased $20 work of rock from as a Black male in his early 20s and wearing all black. Brasil stated that at the time of the transaction, there were two potential suspects present and interacting with Millhone, and he admitted it was of critical importance to know exactly when the verbal case made signal was made so that the officer observing the transaction (in this case, Acosta) would know who to follow and arrest.

In ruling on the motion, the trial court stated: The cases tell us that the first order of business . . . is for the defendant to establish the reasonable possibility that the disclosure of information might result in defendants exoneration, . . . or the lack of a disclosure might deprive defendant of a fair trial so its the defendants burden.

The court stated that virtually all of the privileged assertions related to Acostas ability to make observations, and added, [w]ell, in . . . Garza,^[[4]] that case tells us that the defense is required to make some showing that there was some point within the area surveilled that the officer could not have observed the defendant because of some obstruction. And then quoting another case, but relying on it, it says, The defendant is obliged to show not only that there are locations in the area from which the view is impaired or obstructed, but also that theres some reason to believe that the officer was making his observations from such a location. We dont have that here. I dont have a photo of the area, I dont have a construct or layout of the buildings or other potential obstructions. At best, its the defendant kind of wishing and hoping that somebody might say there was something in my view. Without that, I cant say that the defendant has met their [sic] burden to show the materiality of the sought-for information. So as to those matters which relate to the ability of the officer to observe, there has not been a sufficient showing by [the] defense to overcome the privilege asserted.

The court added that defendant had not shown that there was a potential obstruction of vision. Show me where an officer might have been, given the facts we have here, that vision could be obstructed, then we have something to go on. I dont have that showing at this point. As for location, the court upheld the privilege.

Before ruling on the privilege invoked by Brasil as to the verbal buy signal, the court held an in camera hearing with the prosecutor and Brasil. After reviewing the transcript of the tape recorded conversation made at the time, the court stated it was unclear when the verbal buy signal was actually given. The prosecutor and Brasil were to more closely review the actual tape and try to resolve the problem before trial. The outcome of their efforts was disclosed at an unreported informal discussion held in chambers before the start of the trial. According to a settled statement on appeal, the prosecutor with Brasils help ascertained that the buy signal was given while defendant was still in the company of Millhone. The trial court ruled that because of this, there was no necessity to disclose what the signal was or when it was made in the context of the transcript of the tape recording of the transaction.

ISSUE

Defendant claims that his due process and confrontation and cross-examination rights were violated by the trial courts refusal to require disclosure of the surveillance details. Defendant charges that the court failed to balance the interests of the opposing parties as required under section 1040(b)(2) and failed to conduct an in camerahearing to examine the details of the surveillance and the Peoples alleged need for confidentiality. Furthermore, the courts misinterpretation and misapplication of dicta from Garza, supra, 32 Cal.App.4th 148 caused it to find (1) that the specifics of the surveillance were not material to defendants case which led to (2) not even a minimal showing . . . by the People of the importance of maintaining the privilege.

SURVEILLANCE LOCATION PRIVILEGE

Defendant argues that the trial court misapplied Garza in failing to balance the defendants need for disclosure against the Peoples need to preserve confidentiality, and protect informants, ongoing criminal investigations, specialized secret police procedures, or related matters. Defendant asserts that every case that has examined this issue has required that the People make at least a minimal showing of the need for confidentiality. . . . [] The Court below interpreted . . . Garza, supra, to hold that before this balancing takes place, there is a threshold requirement and affirmative burden upon defendant to show materiality of the surveillance details. Furthermore, this affirmative burden can only be met with specific evidence that there were obstructions that might have blocked the surveillance officers[] view and thus lead to a misidentification.

An accused has a right to disclosure of information material to his or her defense based on the constitutional right to due process. (People v. Montgomery (1988) 205 Cal.App.3d 1011, 1018.) However, [a] public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so . . . . ( 1040, subd. (b).) [O]fficial information means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. (Id., subd. (a).) [A] surveillance location is information to which this privilege can apply. (In re Sergio M. (1993) 13 Cal.App.4th 809, 813.)

If a defendants assertion of a right of disclosure is met with a claim of official information privilege, the trial court must apply the standard provided by section 1042. Section 1042 deals with disclosure of an informants identity; however, [i]n People v. Walker [(1991)] 230 Cal.App.3d [230] at page 238 [(Walker)], that court held that because the informants identity and surveillance location issues are analogous, section 1042 is also the appropriate standard for determining the materiality of a surveillance location. (Garza, supra, 32 Cal.App.4th at p. 154.)

Subdivision (d) of that section requires the defendant to show that the information is a material witness on the issue of guilt. [] However, the test of materiality is not simple relevance; it is whether the nondisclosure might deprive defendant of his or her due process right to a fair trial. [Citation.] Under section 1042, subdivision (d), [t]he 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 [an] in camera hearing [to balance the necessity for disclosure in the interests of justice to defendant and the necessity for confidentiality in the public interest (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 404)], the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. (Garza, supra, 32 Cal.App.4th at pp. 153-154.) In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered. ( 1040(b)(2).)

The defendants burden to establish materiality under section 1042 is discharged when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendants exoneration. (Garza, supra, 32 Cal.App.4th at p. 154, quoting Price v. Superior Court (1970) 1 Cal.3d 836, 843.) To meet the requirement of reasonable possibility of exoneration, the court in . . . Walker, supra, 230 Cal.App.3d at page 238, required some showing that there was some point within the area surveilled that the officer could not have observed defendant because of some obstruction. In Anderson v. U.S. (D.C. App. 1992) 607 A.2d 490, 497, the court even went further: We therefore hold that the defendant is obliged to show not only that there are locations in the area from which the view is impaired or obstructed, but also that there is some reason to believe that the officer was making his observations from such a location. Without some reason so to believe, the existence of obstructed locations is logically irrelevant. (Garza, supra, 32 Cal.App.4th at p. 154.)

In the instant case, Acostas evidence established that he personally observed defendant with Millhone from no more than 30 feet away; he did not personally observe the buy; he received the case made signal verbally over the wire via Brasil and saw Millhones visual signal as she was walking away from defendant; he received a description of defendant and his clothing over the wire; he was instructed to follow defendant, which he did based on the description and because defendant was the person he saw with Millhone before the case made verbal signal; he remained 30 or fewer feet from defendant as he followed him 70 feet to the bus stop, waited with him for a bus, and boarded the bus after him; and he sat keeping defendant in view although the bus was pretty full until the bus was stopped by police. Acosta also observed defendant talking to passengers who got on at the red light after he and defendant boarded, and he saw the hands of defendant and one of these passengers touch. He could not see if anything changed hands. When other officers stopped the bus, he got off.

The evidence shows that in the Fountain Alley area, there were people walking around, stores open, and buildings, buses, cars parked, and the light rail line, and that Millhone was very close to any of those objects at the time of the alleged transaction. However, Acosta was assigned to a mobile surveillance point and he testified he kept Millhone under surveillance without obstruction until he switched his attention to defendant after the buy.

There is nothing in the evidence that establishes there were obstructions between Acosta and Millhone or between Acosta and defendant while the transaction with Millhone was taking place or afterward while Acosta was following defendant. Nor is there anything to establish the fact or allow the inference that Acosta was making his observations from a substantial distance or an obstructed location, or, in the trial courts examples, questionable circumstances such as pouring rain, deep fog, something, a fact, not just a guess, but a fact that would give me that theres some problem here with observation.

[D]efendant had the burden of showing that in view of the evidence, there was a reasonable possibility that the location could constitute material evidence on the issue of guilt which would result in his exoneration. (Walker, supra, 230 Cal.App.3d at p. 238.) The trial court was correct in concluding that it is not reasonably possible that had Acostas location been disclosed, the disclosure would have resulted in defendants exoneration.

CONFRONTATION AND CROSS-EXAMINATION

Nor was defendant deprived of his constitutional rights to confront and cross-examine witnesses about the location and exact details of the surveillance by the trial courts upholding of the official business privilege. As the trial court held, the exact location was not material evidence on the issue of guilt which would result in exoneration of the defendant, and the defense was allowed to cross-examine Acosta about his distance from Millhone and defendant during various aspects of the incident, any obstructions that might have existed, length of observations, etc. (Haider v. Director of Corrections (C.D.Cal. 1998) 992 F.Supp. 1192, 1197.)

Contrary to defendants assertion, the court did balance the necessity for preserving the confidentiality of the information sought against the necessity for its disclosure in the interest of justice. ( 1040(b)(2).) There was a hearing held in the presence of defendant and his counsel at which the parties were allowed to present testimony to establish the need for disclosure or nondisclosure ( 1042, subd. (d)) and defendants counsel was allowed to cross-examine the police witnesses. In that hearing, Acosta and Brasil articulated a need to protect officer safety and future operations. The prosecutor added that there are private businesses in and around that location, and . . . putting occupants or owners at surveillance sights [sic, sites] [in danger of reprisal (Walker, supra, 230 Cal.App.3d at pp. 235-236)] certainly is a factor . . . [in] determining whether . . . to release that information. (Citation from respondents brief added for clarity.) The trial court expressly rejected the defense contention that the information was material and implicitly accepted the reasons for confidentiality to be maintained.

An in camera hearing is not part of the protocol unless the prosecuting attorney requests one. ( 1042, subd. (d).) Contrary to defendants assertion, there was a hearing in chambers outside the presence of defendant and his counsel. The prosecutor offered evidence solely on the issue of the privilege for the verbal and visual case made signals. The transcript of the hearing was reported and sealed after the hearing. This court has reviewed it. Section 1042, subdivision (d), orders the court not to 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.

Before jury voir dire began, the attorneys met in chambers with the trial judge and resolved the matter of the case made signal. According to the settled statement on appeal prepared by the trial court, the prosecutor confirmed to the court and defense counsel that the [verbal] case made signal was given after the sale and while the defendant was still present in the company of the undercover officer. The trial court upheld the officers claim of privilege on that point.

The trial court did not err in upholding the privilege. No evidence, either adduced at the hearing in open court or in chambers, supports defendants contentions that he was denied due process or his rights to confrontation and cross-examination of the witnesses. All witnesses with percipient knowledge of the sale were available for cross-examination. The direct evidence of the sale came from Officer Millhone corroborated by the tape. It was further corroborated by Torricos testimony that Millhone handed him the rock she bought from defendant and that in his presence she made an in-field identification of defendant.

Acostas evidence could not corroborate the hand-to-hand sale: he testified unequivocally that he did not see it. However, Acostas evidence corroborated that of Millhone that defendant and she were in contact; and Acostas observations established that defendant was the same person who left Millhone after the case made signal, went to a bus stop, boarded a bus, had some contact with passengers on the bus, and was still on the bus when it was stopped and he was arrested.

Since Acosta was mobile, it is reasonable to infer that if any buildings, vehicles, pedestrians, trees, or light rail equipment on Fountain Alley threatened to interfere with his view of Millhone and defendant, he moved to avoid the interference. The trial court correctly found that the business information privilege applied.

DISPOSITION

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] An open air [drug] market[] [is] not related to a house or apartment and basically people stand[] on the street dealing drugs . . . . Police operations were designed to shut Fountain Alley down.

[2] It was also alleged that defendant had a prior serious or violent felony (Pen. Code, 667.5, subd. (c), 1192.7, subd. (c)). After defendants conviction of the charge by the jury, the trial court found the allegation true; however, the prior conviction was stricken pursuant to Romero v. Superior Court (1996) 13 Cal.4th 497 and was not a factor in the selection of the prison term.

[3] Further statutory references are to the Evidence Code unless otherwise stated.

[4] People v. Garza (1995) 32 Cal.App.4th 148 (Garza).