People v. Gooch

Opinion

AMERIAN, J. Appellant Vernon Gooch, Sr., was found guilty of violation of sections 11351 and 11378 of the Health and Safety Code, after court trial.

Procedural Background

Prior to trial, appellant had filed a motion to quash the search warrant which had been issued for his person and residence premises. The affidavit for the search warrant, sworn to by a police officer, referred to information from an undisclosed confidential informant. The trial court granted the motion to quash the search warrant. The People took a writ and on August 18, 1980, this court issued a peremptory writ of mandate, directing the trial court to vacate its order granting the motion to quash and enter an order denying the motion.

[344]Thereafter appellant’s motion to disclose identity of the confidential informant was heard. On March 13, 1981, the trial court ordered under Evidence Code section 1042, subdivision (d),1 that an in camera hearing be conducted on the “informant disclosure issue” prior to April 8, 1981. The hearing was held on March 13, 1981. On April 9, 1981, the trial court issued an order stating, “motion to compel disclosure of confidential informant is denied.” The matter subsequently went to trial and appellant was convicted of the two crimes with which he was charged. He was sentenced to four years in state prison.

One of appellant’s points on appeal is that the motion for disclosure of identity of the informant was improperly denied. In that connection we ordered a copy of the sealed reporter’s transcript of the March 31, 1981, in camera proceeding at which only the judge, prosecutor, informant witness and a police officer were present. That transcript disclosed that the only witness called at the in camera hearing, the informant, was never placed under oath on March 31, 1981, before he answered the questions put to him.2 The parties were then invited to brief the question of the significance, if any, of this defect.

Issue

Where witnesses are called at an in camera hearing held under Evidence Code section 1042, subdivision (d), is an order denying a motion to disclose identity of an informant required to be based on testimony under oath or affirmation from the witnesses?

[345]