JEFFERSON (Bernard), J. I dissent.
I disagree with the majority’s holding that the trial court did not err in denying defendants’ motions for the identity of an untested informer. The majority’s position seems to be that defendants were not entitled to disclosure of the identity of this informer because sufficient evidence was presented from which the trier of fact could conclude that the two defendants were jointly in control of the motel room involved and its contents. The majority takes the view that, in a case in which defendants are charged only with possession of narcotics, the only matter which the prosecution needs to prove is that the defendants had control of the premises. I do not believe this to be the law.
The law relating to a defendant’s right to disclosure of the identity of an informer is well established. The rule can be simply stated: If it appears that an informer is a material witness on the issue of defendant’s [457]guilt or innocence and defendant seeks disclosure of the informer’s identity, the prosecution must either disclose such identity or incur dismissal of the action. (People v. Hunt (1971) 4 Cal.3d 231, 239 [93 Cal.Rptr. 197, 481 P.2d 205].) In such a situation, nondisclosure deprives the defendant of a fair trial. (Price v. Superior Court (1970) 1 Cal.3d 836 [83 Cal.Rptr. 369, 463 P.2d 721].)
There is no dispute about the showing which a defendant must make to secure disclosure of an informer’s identity. A defendant seeking such disclosure bears the burden of demonstrating that there is “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.” (People v. Garcia (1967) 67 Cal.2d 830, 840 [64 Cal.Rptr. 110, 434 P.2d 366].)
In the case at bench it is clearly possible that the informer could give testimony which might exonerate one or the other or both of the two defendants. The charge of possession of heroin relates to heroin which was found in the motel room where both defendants had been seen to enter and exit at various times. The tested informer had given no information to the police officer that such informer had ever been in the motel room involved. The information from the untested informer was to the effect that, on several occasions, he had made purchases of heroin from each of the defendants in the motel room. It is reasonably possible that the untested informer might testify that when he made a purchase of heroin from defendant Samudio, the heroin was actually obtained by defendant Karmelich or a third person from some area of the motel room, and that defendant Samudio’s participation consisted of only a momentary handling of the heroin in passing it from defendant Karmelich or the third person to the informer. The informer might testify that he was advised by Samudio that he, Samudio, had no heroin, and that any heroin which could be purchased was solely that of the codefendant Karmelich or that of the third person.
In similar vein, it is reasonably possible that the untested informer might testify to the reverse, which would place the defendant Samudio or the third person as the sole possessor of the heroin with defendant Karmelich having only the role of a person with a fleeting or momentary handling of any heroin purchased by this informer. A fleeting or momentary handling of heroin does not constitute “possession” and precludes a conviction for possession. (People v. Mijares (1971) 6 Cal.3d 415 [99 Cal.Rptr. 139, 491 P.2d 1115].)
[458]It is my view that the possible testimony of the untested informant, as set forth above, would negate the elements of the offense of possession of narcotics with respect to one or the other or both of the codefendants before us. “The elements of the crime of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence of the drug and its narcotic character [citations]; possession need not be exclusive. [Citations.]” (People v. White (1969) 71 Cal.2d 80, 82 [75 Cal.Rptr. 208, 450 P.2d 600].)
My quarrel with the majority’s holding is that the majority relies upon the evidence admitted on the question of guilt to lead to the conclusion that the defendants were not entitled to disclosure of the identity of the untested informant. It is true that the elements of the crime of possession of narcotics may be established by circumstantial evidence and any reasonable inference drawn therefrom (People v. Groom (1964) 60 Cal.2d 694 [36 Cal.Rptr. 327, 388 P.2d 359]), and that actual possession of a narcotic substance may constitute substantial evidence that the possessor was aware of its narcotic character (White, supra, 71 Cal.2d 80), but these rules of law are irrelevant to a consideration of whether, upon a hearing on a pretrial motion for disclosure of the identity of an informer, a defendant has made the requisite showing as set forth in Garcia.
It is my view that the case at bench is indistinguishable from People v. Tolliver (1975) 53 Cal.App.3d 1036 [125 Cal.Rptr. 905], in which we held that the trial court had properly granted defendants’ motion for disclosure of the identity of an informant and had properly dismissed the information because of the prosecution’s refusal to make disclosure. In Tolliver, as in the case at bench, heroin was found in premises where the two defendants were also found with items such as clothing and other indicia which would indicate that both defendants could have been in possession of the premises. The informer in Tolliver, as the informer in the case before us, provided information to a police officer that he had been on the premises and had purchased heroin from each of the defendants there.
In Tolliver, we set forth the law pertaining to the right of a defendant to obtain disclosure of the identity of an informer in the following language: “To obtain disclosure of an informant’s identity, the defendant is not required to show that the informer was either a participant in the crime charged or an eyewitness thereto. Obviously, the participant-informer presents the clear-cut example of an informant who is a material witness on the issue of guilt or innocence. Nor is it required, in order to obtain [459]disclosure of the informant’s identity, that defendant establish that the informer would give favorable testimony. Defendant cannot be expected to know this about an undisclosed informant. [If] Likewise, it is not required for a defendant to obtain disclosure of an informant’s identity, that he demonstrate a reasonable possibility of the exact testimony the informant is expected to give. Such a requirement would impose an insuperable task. [1] However, 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. If defendant’s showing falls short of demonstrating a reasonable possibility that the informer could give evidence favorable to defendant’s exoneration, the prosecution’s claim of privilege for nondisclosure of the informer’s identity must be sustained.” (Tolliver, supra, 53 Cal.App.3d 1036, 1043-1044.) (Italics in original.)
We pointed out in the Tolliver case that both defendants there could properly advance the contention that an informer might testify that the contraband which was sold to the informant by each defendant came from a third person on the premises who was in control of such contraband.
We emphasized in Tolliver that the record did not reveal that the informant there had told the police officer, with respect to any sale transaction with either defendant, where such defendant obtained the contraband—whether from the other or a third person, whether from that defendant’s person, or whether from a specific area in the premises such as a cupboard in the kitchen, a drawer of a chest of drawers, or a suitcase from under a bed.
Similarly, in the case at bench, there is no evidence that the untested informer indicated the source in the motel room from which the specific defendant obtained the heroin which the informer purchased.
It is my view that Tolliver mandates a reversal of the convictions of the two defendants before us because of the denial of the pretrial motions made by each of these defendants for disclosure of the untested informer’s identity.
It is significant that, in the case at bench, the prosecution did not seek an in camera hearing at which the untested informer could have been produced for questioning as authorized by Evidence Code section 1042, subdivision (d). Had the prosecutor requested such an in camera hearing, [460]the trial court would have been in a position to assess correctly the importance of the informer’s testimony insofar as each of these defendants is concerned. Apparently the prosecutor did not request such an in camera hearing in spite of defendant’s pretrial motions for disclosure of identity based on the assumption—which turned out to be accurate—that the trial court would not grant the motion for disclosure. It is my view that the prosecution should not be permitted to fail to request an in camera hearing and gamble on the prospect of obtaining a favorable ruling from the trial court denying a motion for disclosure of the identity of an informant.
Accordingly, I would reverse the judgments of conviction, thus requiring that the prosecution disclose the identity of the untested informer or incur a dismissal for failure to do so.
A petition for a rehearing was denied May 11, 1979, and appellants’ petitions for a hearing by the Supreme Court were denied July 12, 1979.