(Super. Ct. No. DL039797) Appeal from an order of the Superior Court of Orange County, Deborah C. Chuang, Judge.
The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
CEERTIFIED FOR PUBLICATION
Marcos B. was adjudged a ward of the court under Welfare and Institutions Code section 602, based on findings he violated Health and Safety Code section 11351 (possession of narcotics for sale), Health and Safety Code section 11350, subd. (a) (possession of narcotics and controlled substances), Health and Safety Code section 11351.5 (possession of cocaine base for sale), and Health and Safety Code section 11378 (possession of controlled substances for sale). The case against Marcos relied heavily on the observations of Santa Ana Police Officer Corey Slayton, who declined to reveal the exact location from which he observed Marcos and two others engaging in what Slayton described as drug sales. After an in camera hearing, the court upheld the prosecutor's claim that the location was privileged information under Evidence Code section 1040 (all further statutory references are to the Evidence Code) and ruled the location was not material information for purposes of section 1042.
Marcos asks us to review the transcript of the in camera hearing, to ascertain whether the court abused its discretion in determining the location qualified as privileged information under section 1040, and argues that even if the claim of privilege was properly sustained, the court erred by concluding the officer's location was not material information. We reverse.
Our review of the transcript of the in camera hearing demonstrates the prosecution provided the court with no information about Slayton's surveillance location, let alone demonstrated why the public interest in preserving the secrecy of this particular location might outweigh the necessity of disclosure in the interests of justice. Absent such a showing, we conclude the court abused its discretion by upholding the claim of privilege.
Moreover, even if the claim of privilege had been properly sustained, we would conclude the court erred in determining that the location from which Slayton observed Marco's alleged crimes was not material information in the context of this case. As Marcos points out, Slayton's observations comprised essentially the entire case against him. Although a cache of drugs was retrieved near the scene of Marco's alleged crimes, none were found in his possession, and it is Slayton's testimony alone which links Marcos to the cache and marks him as a participant in the alleged drug sales. Under these circumstances, it is crucial that the defense be able to cross-examine Slayton in a manner designed to test whether his claimed observations were both reliable and credible. Knowledge of Slayton's claimed location in relation to Marcos at the time of those observations was key to that effective cross-examination, and the court's refusal to allow its disclosure consequently denied Marcos a fair trial.
Slayton testified he was patrolling on foot in the area of 1700 South Evergreen in Santa Ana at approximately 6:15 in the evening of July 31, 2011. He was in full uniform. While walking in an alley parallel to Evergreen, which runs in a north/south direction, he noticed 15-year-old Marcos, another male minor and an adult male standing on the west side of the street.
Slayton recognized both the other minor and the adult from prior contacts. While Slayton watched, a male Hispanic approached the three from the north, removed money from his pocket and handed it to the other minor. That minor handed the money to the adult male who then handed it to Marcos. Marcos walked across to the east side of the street, went to a "white PVC drainage pipe" and removed from it a large plastic baggie that contained numerous smaller baggies. He took one of the small baggies out, and it appeared to contain a "white sort of substance, crystal-like substance . . . ." Marcos then put the large baggie back into the pipe, walked back across the street and handed the small baggie to the adult male. The adult handed the small baggie to the other minor, who handed it to the Hispanic male. The Hispanic male departed.
That same series of events, referred to by Slayton as a "narcotics hand-to-hand transaction," was repeated after the trio was approached by a white male. Slayton testified the multi-party hand-off procedure for both the money and then the drugs was designed to make it more difficult to catch any of the participants in the transaction.
During the time Slayton was observing the transactions, he maintained radio contact with another officer, who was located to the south of Slayton, and advised the other officer about his observations. After completion of the second transaction, both Slayton and the other officer approached Marcos and his cohorts from their separate locations. Slayton testified he approached Evergreen from the east through a "breezeway" between two residential buildings located approximately three houses north of where the Marcos and the others were located. Slayton detained the adult and the other minor and the other officer detained Marcos.
While the other officer stayed with all three suspects, Slayton went over to the PVC pipe from which he had seen Marcos remove and replace the plastic bag of smaller baggies containing the white substance and retrieved the plastic bag from the pipe. The plastic bag held approximately 47 small baggies. Slayton performed reagent field tests which showed the contents of the baggies tested positive for heroin and crack cocaine. The substances in the baggies were later tested in a laboratory, which revealed the baggies contained crack cocaine, heroin and methamphetamine.
After Slayton retrieved the bag from the PVC pipe, he searched Marcos and found Marcos was in possession of $120 in $20 bills.
2. The claim of privilege
Defense counsel cross-examined Slayton about his observation of the drug transactions. Based upon statements contained in Slayton's written report, counsel established Slayton was walking in an alley parallel to Evergreen when he first saw Marcos and the others. Defense counsel then asked Slayton which direction he had been walking in the alley. Slayton demurred, explaining he "would rather not say where I was coming from." The prosecutor then objected on the basis the information was privileged under Evidence Code section 1040 and requested an "in camera hearing if the court is inclined to allow counsel to continue."
Defense counsel objected to the claim of privilege, pointing out "I need to know where he was" when Slayton made his observations. Over defense counsel's objection that he was entitled to know the basis of the privilege claim and despite his offer to abide by an order not to share any confidential information with his client, the court allowed the prosecutor to ...