The People v. J.E.

File 2/28/13 In re J.E. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re J.E., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, G046215 Plaintiff and Respondent, (Super. Ct. No. DL041131) v. OPINION J.E.,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Nick A. Dourbetas, Judge. Reversed. Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lilia E. Garcia and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court found 17-year-old J.E. possessed cocaine base for sale and actively participated in a criminal street gang. Minor contends the juvenile court violated Evidence Code sections 1040 and 1042 (all statutory citations are the Evidence Code unless noted), and constitutionally erred in permitting the prosecution to maintain the confidentiality of the testifying police officer’s surveillance location without striking the officer’s testimony, or making some other adverse finding against the prosecution. For the reasons expressed below, we reverse. I FACTS AND PROCEDURAL BACKGROUND The Orange County District Attorney filed a Welfare and Institutions Code section 602 petition alleging minor possessed cocaine base for sale (Health & Saf. Code, § 11351.5) to benefit a criminal street gang (Pen. Code, § 186.22, subd. (b)) and actively participated in a criminal street gang (Pen. Code, § 186.22, subd. (a)) on September 17, 2011. At the jurisdictional hearing, Santa Ana Police Officer Rashad Wilson testified he was a gang detective on duty at approximately 12:45 p.m. on September 17, 2011. He and his partner, Justo Capacete, were in a “slick top” (no overhead lights) marked patrol car in the vicinity of 800 South Townsend Street. This was a “high gang activity” area, as well as a “high narcotic activity [area] for sales.” From a vantage point approximately 25 yards away, Wilson saw minor and another juvenile, M.B., in the west alley behind the apartment building at 802 South Townsend. The weather was clear and sunny and nothing obstructed Wilson’s view. The minors stood about three feet apart, conversing and gesturing with their hands. Wilson observed three apparent drug transactions in the span of 20 minutes. Each time, minor whistled at or flagged down a passing vehicle, and then directed M.B. over to the stopped vehicle. M.B. approached the vehicles, contacted a person on the driver’s side, and received cash from the occupant in exchange for an off-white substance in a baggie taken