(Super. Ct. No. 10F06027)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Tyrone Page of possessing a firearm as a convicted felon (former Pen. Code, § 12021, subd. (a)(1), repealed by Stats. 2010, ch. 711, § 4, operative on Jan. 1, 2012),*fn1 and possessing a short-barreled shotgun (former § 12020, subd. (a), repealed by Stats. 2010, ch. 711, § 4, operative on Jan. 1, 2012).*fn2 The trial court found defendant had four prior serious felony convictions (§ 667, subds. (b)-(i)) and had served three prior prison terms (§ 667.5, subd. (b)). The trial court dismissed three of the prior serious felony convictions as well as one of the prior prison terms. The trial court sentenced defendant to six years in state prison.
On appeal, defendant argues (1) this court must independently examine the sealed portion of the hearing on his motion to disclose the identity of an anonymous informant to assess whether the trial court erred in denying defense counsel's motion to disclose the informant's name, (2) the trial court erred by admitting testimony about circumstances of the police encounter with defendant prior to his arrest, (3) the admission of testimony about the anonymous informant's tip violated the Confrontation Clause, (4) his motion for mistrial should have been granted after a police officer testified defendant had previously been convicted of burglary, and (5) the cumulative prejudice of these errors compels reversal of the judgment.
We have examined the sealed portion of the record and find no error in the denial of defense counsel's motion to disclose the identity of the anonymous informant. We conclude the trial court did not commit evidentiary error in allowing testimony about how the police encountered defendant or evidence about the anonymous tip regarding defendant's possession of a shotgun. The trial court did not err in denying defendant's motion for mistrial because the testifying officer's brief mention of defendant's burglary conviction was cured by instructions given to the jury. Having found no error, we reject defendant's claim of prejudice as a result of multiple errors at trial. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Around 5:00 p.m. on September 12, 2010, Sacramento Police Officers Matt Armstrong and Edward Macaulay arrived at an apartment complex located at 375 El Camino Avenue in Sacramento. The officers planned to serve a warrant on someone believed to live in apartment 4. While standing in front of apartment 4, the officers saw defendant leaning out the window of apartment 1. The officers decided to investigate because no one was supposed to be in apartment 1 after the occupants had been arrested on the previous day.
As a result of their investigation, the officers detained defendant in the back seat of the patrol vehicle and discovered he was on parole. The officers placed defendant under arrest at the request of his parole officer. One of the police officers then received an anonymous tip that defendant "was in possession of items that he was prohibited from owning."
Later that evening, officers searched a residence on Beaumont Street that defendant had listed as his current address. Defendant's parole agent had been to this one-bedroom apartment on Beaumont Street three days earlier and had contacted defendant there.
During the search of the Beaumont Street apartment on September 12, 2010, police officers found an illegal, short-barreled shotgun and an unfired shotgun shell under the bed. In the same room, the officers found a picture of defendant and his wife, defendant's parole identification card, and several more identification cards for defendant.
No fingerprints were discovered on the shotgun or the shotgun shell.
At trial, the parties stipulated defendant had previously been convicted of a felony.
I Motion to Disclose the Identity of the Anonymous Informant
Defendant contends we must examine the sealed portion of the hearing on his motion to disclose the identity of the anonymous informant to determine whether the motion was properly denied. The People agree that we may examine the sealed record as requested by defendant. We conclude the sealed portions of the hearing establish no error in the trial court's denial of the motion to disclose.
A. Defendant's Motion to Disclose
Prior to trial, defense counsel moved to disclose the identity of the anonymous source of the tip that defendant possessed items that violated conditions of his parole. The People opposed the motion. After conducting an in camera hearing, the trial court denied the motion to disclose. In doing so, the court stated:
"Based on the hearing, the Court is denying the request. [¶] And getting a rather thorough walk through as to the chain of events [on the day of the search], including the day prior and the other apartment complex, there is no singular individual that is being in law enforcement on this sort of search for a shotgun at different -- at each of those locations, so, instead, convinced that this is a situation where the person relied on by law enforcement does fall under the [sic] merely pointed a finger of suspicion against [defendant]. [¶] I don't think that the person rises to the level of a material witness as envisioned under Evidence Code Section 1041. As for those reasons that the Court -- and given obviously concerned [sic] about an informant's well-being when providing information to law enforcement in a confidential fashion that the Court is denying the motion at this time."
At trial, Officer Macauley testified he personally received a tip from "a person who wished to remain anonymous" that defendant "was in possession of items that he was prohibited from owning." Officer Macauley explained the police sometimes receive anonymous tips from "someone [who] will call the police department or inform an officer of some information, and they wish to totally be anonymous, not be written down, not be mentioned by identifying information." In this case, "the anonymous source was someone [Officer Macauley] spoke with" but whose identity he did not record.
The California Supreme Court has explained, "the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851.) An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. (People v. Borunda (1974) 11 Cal.3d 523, 527.)" (People v. Lawley (2002) 27 Cal.4th 102, 159-160.)
"Where the evidence indicates the informer was an actual participant in the crime alleged or was a nonparticipating eyewitness to that offense, ipso facto it is held he [or she] would be a material witness on the issue of guilt and nondisclosure will deprive the defendant of a fair trial." (People v. Lee (1985) 164 Cal.App.3d 830, 835-836.) Otherwise, disclosure is compelled "only if the defendant makes an adequate showing that the informant can give exculpatory evidence." (Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277, italics added.) Moreover, "[a]n informant is not a 'material witness' nor does his [or her] nondisclosure deny the defendant a fair trial where the informant's testimony although 'material' on the issue of guilt could only further implicate rather than exonerate the defendant." (People v. Alderrou (1987) 191 Cal.App.3d 1074, 1080.) Thus, when the evidence adduced at an in camera hearing fails to show a "reasonable possibility that a particular percipient eyewitness-informer could give evidence on the issue of guilt which might result in a defendant's exoneration. [Citation.] [T]he witness would not be material under the test for materiality established by the California Supreme Court." (People v. Lanfrey (1988) 204 Cal.App.3d 491, 502-503.)
With these principles in mind, we have reviewed the transcript of the in camera hearing held on February 8, 2011. We conclude the trial court properly conducted the hearing in order to determine whether defendant's right to a fair trial and confrontation of material witnesses required disclosure of the anonymous informant's identity. The court questioned Officers Armstrong and Macauley before concluding the motion to disclose should be denied and the transcript of the in camera hearing be ...