Bowens v. Superior Court

Opinion

LAZARUS, J.* Petitioner seeks a writ of mandate commanding the Superior Court for the County of Alameda to grant his motion for disclosure of the identity of a confidential informer.

The matter was once before under consideration in this court when the petition was denied on November 7, 1974. Thereafter, on December 5, 1974, a petition for hearing by the Supreme Court was granted. The matter was then transferred to the Supreme Court, but was retransferred here with directions to issue an alternative writ of mandate, which this [129]court did on December 11, 1974. In its order retransfering the case, the Supreme Court referred to People v. Williams, 51 Cal.2d 355 [333 P.2d 19].

Petitioner was charged with one count of violating section 11352 (sale of a controlled substance) based on a purchase of narcotics allegedly made from petitioner on January 22, 1974, by Raymond Clark, an Oakland undercover police officer, at 724 Willow Street. The premises where the sale took place, a large Victorian type home with a number of rooms, had been under vice squad surveillance for narcotic violations since October 1973.

A complaint charging petitioner with the crime was filed in the municipal court on February 4, 1974, and he was arrested on February 6, 1974. On August 15, 1974, after a preliminary hearing, he was held to answer to the superior court. He entered a plea of not guilty, and a motion for disclosure of the identity of the informant was heard in that court on October 9, 1974. The denial of that motion resulted in this proceeding. The Supreme Court has ordered a stay of further proceedings pending the final outcome of this petition.

Officer Clark, the only witness to testify at the hearing on the motion to compel disclosure, stated that he purchased narcotics from petitioner at the Willow Street address on two prior occasions. The sequence of events was, according to his testimony, as follows:

On November 30, 1973, he went there with the informant who introduced him to “Fat Robert,” a man who the officer believed to be Bowens. Clark thought that he may have seen this man in the building on other occasions, but had never actually met him before. The informant then left, and was not present when the officer thereafter purchased illegal drugs from this individual.

The next transaction is said to have taken place on January 15, 1974. On that date he returned to the Willow Street premises with the informant. The informant was admittedly present on this occasion when Clark purchased a balloon of heroin from a man who he again believed to be the petitioner. He testified that when this transaction took place the informant was one of six or seven people in the room; none of the others were persons who Clark knew or could identify; that because of the number of individuals in the room he could not state whether the informant was one of those who “visually saw” what took place in connection with this purchase.