Hines v. Superior Court

Opinion

Petitioner challenges the denial of his motion to set aside the information against him pursuant to section 995 of the Penal Code.

Section 1040 provides a privilege for “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Subd. (a).) A public entity has a privilege to refuse to disclose official information if “[d]isclosure ... is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; . . .” (Subd. (b)(2).)

Petitioner contends that Weir’s surveillance location does not come within the privilege because the record does not show that the location was “acquired in confidence . . . during the course of his . . . duty.” “Officer Weir did not ‘acquire’ knowledge of the location from which he was operating; he simply selected it, and chose to keep it secret.” The effect of the magistrate’s ruling, argues petitioner, is to elevate anything that comes within an officer’s knowledge during an investigation to “official information.”

Petitioner takes too restrictive a view of the statutory word “acquire.” The term does not exclude information that is generated by the person claiming the privilege. To acquire means “to come into possession ... of often by some uncertain or unspecified means.” (Webster’s Third New Internat. Diet. (1981) p. 18.) To hold, as petitioner seems to suggest, that the location could be official information if petitioner was told of it by Officer Wells rather than discovering it himself creates a distinction which is neither required by the statute nor consistent with the purpose of the privilege. We hold the surveillance location was information to which the privilege could apply.

However, as Justice Kaus commented, the exercise of the privilege under section 1040 is a mixed blessing because of the requirement of an adverse finding in section 1042. (Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823 , 830 [ 133 Cal.Rptr. 325 ].) Section 1042, subdivision (a) provides: “Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.”

The adverse finding is only required if the privileged information is material. In In re David W. (1976) 62 Cal.App.3d 840 [ 133 Cal.Rptr. 342 ], the

In the instant case the Attorney General argues that the location of the surveillance is not material on the question of guilt or innocence. However, he concedes that “what is important is whether or not Officer Weir was able to adequately observe the transactions.” The purpose of the defense in learning the location was to test that very observation—did Officer Weir actually have a clear and unobstructed view of the scene? This was the very issue to which the privileged information was material.

In sustaining the privilege the magistrate has severely limited the petitioner’s right to cross-examine on this material issue. The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the accuracy of the truth-determining process. (Chambers v. Mississippi (1972) 410 U.S. 284 , 295 [ 35 L.Ed.2d 297 , 308-309, 93 S.Ct. 1038 ].) The Sixth Amendment’s right of an accused to confront the witness against him is, just like it’s right-to-counsel guaranty (see Gideon v. Wainwright (1963) 372 U.S. 335 [ 9 L.Ed.2d 799 , 83 S.Ct. 792 , 93 A.L.R.2d 733 ]), “ ‘ “a fundamental right, essential to a fair trial” ’ and ‘thus [was] made obligatory on the States by the Fourteenth Amendment.’ ” (Pointer v. Texas (1965) 380 U.S. 400 , 403. [ 13 L.Ed.2d 923 , 926, 85 S.Ct. 1065 ]) When invoking the privilege results, as here, in depriving the petitioner of his fundamental right to cross-examination on a material issue, an adverse finding is mandated by section 1042 and the magistrate’s failure to make one requires reversal.

For the guidance of magistrates faced with similar decisions in the future we briefly address the question of what “finding of fact adverse to the public entity” the magistrate should have made. The Law Revision Commission Comments to section 1042 suggest that the consequences of invoking the privilege are based upon the public policy of simple fairness, quoting United States v. Reynolds (1953) 345 U.S. 1 , 12 [ 97 L.Ed. 727 , 735, 73 S.Ct. 528 , 32

We agree with the Attorney General that the appropriate order here should have been for the magistrate to strike the testimony of Officer Weir’s observations. Without that testimony there remains insufficient evidence to support the holding order. (See Rideout v. Superior Court (1967) 67 Cal.2d 471 [ 62 Cal.Rptr. 581 , 432 P.2d 197 ].)

Let a peremptory writ of prohibition issue restraining the Contra Costa Superior Court from taking any further action other than to grant the motion pursuant to Penal Code section 995.

Poché, J., and Channell, J., concurred.