ORIGINAL PROCEEDINGS in mandate. Margaret Miller Bernal, Judge. Petition granted. (Los Angeles County Super. Ct. No. VA106301).
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PUBLICATION
Petitioner Adolfo Davis was charged with the attempted murder of David Ochoa, who, along with other witnesses, identified Davis as the man who shot him. A confidential informant also told police officers that he saw Davis shoot Ochoa. When Davis filed a motion to obtain the name of that informant and percipient witness, the trial court denied it. Davis petitioned this court for a writ of mandate*fn1 and argued that disclosure was mandatory. We disagree that disclosure of the confidential informant's identity was mandatory simply because the informant was also a percipient witness, but we agree that an in camera hearing should be held. We therefore grant the petition for a writ of mandate and order the trial court to hold an in camera hearing.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background.*fn2
On June 18, 2008, David Ochoa was walking with Farid Moran (Farid) and Shearid Moran (Shearid), Anthony Mendoza, and Cynthia Bravo. They saw a group of about eight Hispanic men. Ochoa recognized " 'Alan.' "*fn3 Another man asked Ochoa if he gang banged. The man had a mustache and goatee and a tattoo like a bar going down the right side of his neck. The tattoo was black with spots in it. Ochoa said he did not gang bang, but the man said " 'Bay' " and shot Ochoa*fn4 with a small silver gun he withdrew from his pocket or waistband.*fn5 The shooter ran toward some railroad tracks, while the other people in his group got into a car and left.*fn6
Farid described the shooter as "light" and bald with a mustache. From a photographic line-up, Farid identified Davis as the shooter, although she could not identify him at the hearing because he looked different than he did at the time of the shooting. Farid told the police that one of her cousins saw a tattoo on the shooter. Bravo and Shearid testified that they did not get a good look at the shooter's face, but they agreed he was bald. Both witnesses identified Davis from photographic line-ups, but neither made a positive identification of him at the preliminary hearing.
Mendoza said the shooter was bald with a little facial hair, that is, a little hair on his chin. From where he was standing, he did not see any tattoos on the shooter. Both Ochoa and Mendoza identified Davis as the shooter at the preliminary hearing.
II. Procedural Background
Davis was charged with attempted murder and with a gun-use enhancement. (Pen. Code, §§ 187, subd. (a), 664, 12022.53, subds. (b), (c) & (d).) Three counts for assault with a firearm were later alleged.
Because the prosecution refused to disclose the name of a witness who identified him as the shooter, Davis moved for disclosure of the informant's identity. He argued that the informant was a material witness because he was an eyewitness to the alleged events. The People opposed the motion. The trial court denied the motion "based upon the fact that there is independent I.D. of the defendant outside of any information from the informant by multiple parties. [¶] And the court does not find any Brady issues . . . which would necessitate the disclosure."*fn7
Davis then filed a petition for a writ of mandate in this court and, on January 12, 2010, we issued an alternative writ of mandate to the superior court directing it to change its order or to show cause in this court. The ...