DeLosa v. Superior Court

DOOLING, J.

The petitioner herein is the defendant in the superior court under a grand jury indictment charging' him with the sale and possession of narcotics. The only testimony before the grand jury, except that of the chemist who analyzed the exhibit and testified to its narcotic character, was given by one witness who testified that he gave $40 to a “ confidential agent,” that in his presence the confidential agent gave this money to petitioner, and that later in his presence the petitioner handed the exhibit to the confidential agent.

Petitioner moved the superior court to order the prosecution to furnish him with the name of the confidential agent in advance of trial or to dismiss the indictment. His motion was denied and petitioner asked us for a writ of prohibition to prohibit the trial court from proceeding further with his prosecution. We elected to treat the petition as one for mandamus.

(Powell

v.

Superior Court,

48 Cal.2d 704 [312 P.2d 698];

Caminetti

v.

Superior Court,

16 Cal.2d 838 [108 P.2d 911];

Board of Trustees

v.

State Board of Equalization, 1

Cal. 2d 784 [37 P.2d 84, 96 A.L.R. 775].)

We deferred submission of the case to await the ruling of the Supreme Court in certain cases then pending before it involving the basic question of the defendant’s right to the disclosure of the identity of claimed confidential informers. Those eases have now been decided and in

People

v.

McShann, 50

Cal.2d 802, 808 [330 P.2d 33], that court said that ‘ ‘ [w] hen it appears from the evidence that the informer is a material witness on the issue of guilt and the accused seeks disclosure on cross-examination, the People must either' disclose his identity or incur a dismissal.”

[3]