*1429 Opinion
I. INTRODUCTION
Appellant was convicted of selling rock cocaine, and possessing it for sale, based in part on what a police officer observed from a surveillance location. At trial, the prosecution declined to identify the location, citing the government information privilege codified in Evidence Code section 1040. 1 After a brief in camera hearing at which neither appellant nor his trial counsel was present, the trial court permitted the prosecution to assert the privilege, without striking the officer’s testimony or making any finding adverse to the prosecution’s case under section 1042.
On appeal, appellant argues that the identity of the location from which the officer made his observations was material. He contends the trial court therefore made an error of constitutional dimensions in permitting the prosecution to keep the location secret without excluding the officer’s testimony, or making some other adverse finding, as a consequence.
We conclude that the surveillance location was not material because the police officer’s testimony about observations from that location was sufficiently corroborated by independent evidence that there was no realistic possibility that disclosing the location would have enabled appellant to raise a reasonable doubt as to the veracity or accuracy of the officer’s testimony. Therefore, we affirm appellant’s conviction.
H. FACTS AND PROCEDURAL BACKGROUND
On April 30, 2007, at 1:45 p.m., San Francisco Police Officer Bryant was watching the area where Market Street intersects with Sixth Street and Taylor Street, from a location in or on a building, elevated above street level. Bryant was using “pretty powerful” binoculars to look for narcotics transactions on the street. He saw a man, later identified as appellant, standing on Market at the comer of Market and Taylor, about 50 to 100 feet away from Bryant’s location. A woman approached appellant, holding money. After a brief conversation, appellant pulled out a plastic baggie, from a location that Bryant did not recall. Appellant reached into the baggie, took out an object, 2 *1430 and handed it to the woman; she then gave him some money, the denominations of which Bryant could not discern. Bryant testified that he had an unobstructed view of the transaction, and that his ability to observe it was not diminished by any weather conditions.
After the transaction was complete, Bryant transmitted a description of the woman to Officers Yick and Mackenzie by police radio, and watched as they arrested her. Yick and Mackenzie drove up to the woman from behind as she walked north on Taylor. When their car was a few feet away from her, she dropped an object, which the officers retrieved, and which they believed, based on their experience, was a small rock of cocaine.* * 3 The object was not wrapped in anything when the woman dropped it. After the officers detained the woman and picked up the object, Yick reported to Bryant by radio that they had recovered what they thought was a narcotic. At that point, Bryant quickly turned his attention back to appellant. Appellant was still where he had been when his transaction with the woman occurred, but he soon crossed Market and began walking south along the east side of Sixth. Bryant’s view of appellant was still unobstructed.
Bryant then transmitted appellant’s description, location, and direction of movement to Officers Pedroza and Fomeris. Fomeris saw more than one person wearing clothing matching the description Bryant had given, and asked Bryant for clarification. Bryant responded that the seller was bald or had a shaved head, and Pedroza then knew that it could not be the other person in similar clothing, because that person had dreadlocks. 4 Bryant continued to watch and direct Pedroza and Fomeris as they followed appellant, who began to ran when he saw the officers, discarding an empty plastic bag as he fled. Appellant was farther away from Bryant when he was arrested than he had been during his transaction with the woman, but Bryant could still see him clearly.
Within three or four minutes after the transaction occurred, Pedroza and Fomeris caught up with appellant, on Sixth Street between Market and Stevenson, and detained him. Bryant then left his surveillance location and went to meet up with Pedroza and Fomeris.
*1431 A search revealed that appellant had some rock cocaine hidden in his sock, later determined to weigh 2.25 grams. 5 A police expert witness testified, based on the circumstances of the case, including the amount of the cocaine, that appellant possessed the drug for sale. The expert conceded, however, that a quantity of 2.25 grams could be possessed for personal use. Appellant apparently did not have a significant amount of money on him when he was arrested, but there was evidence that sellers of illegal drugs sometimes discard or dispose of their cash if they think they are about to be arrested. The record showed that appellant could have done this, without Bryant seeing him, within the approximately two minutes that passed while Bryant was watching Yick and Mackenzie follow and arrest the woman.
Appellant was charged with one count of selling cocaine, and one count of possession of cocaine for sale. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5.) Appellant made a pretrial motion for the disclosure of Bryant’s surveillance location, and reiterated it outside the jury’s presence after Bryant invoked the privilege during his testimony. After a brief in camera hearing, the trial court denied the motion.
A jury found appellant guilty on both counts. At a bifurcated court trial on appellant’s two prior convictions, appellant admitted both convictions. One of them was incorrectly charged, however, so the trial court found that only one of the priors was proven. On February 5, 2008, appellant was sentenced to a total of seven years in prison. This timely appeal ensued.
III. DISCUSSION
The trial court permitted Bryant to withhold the identity of his surveillance location under section 1040. This statute provides a privilege for nonpublic “information acquired in confidence by a public employee in the course of his or her duty,” the disclosure of which would be “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 . . . .” In
Hines
v.
Superior Court
(1988)
*1432
What appellant does argue is that as a condition of upholding the prosecution’s invocation of the section 1040 privilege, the trial court should have stricken Bryant’s testimony about his observations, or made an appropriate factual finding adverse to the prosecution, under section 1042. Section 1042 provides that when the trial court in a criminal case permits the prosecution to invoke the section 1040 privilege, the court “shall make such order or finding of fact adverse to the [prosecution] as is required by law upon any issue in the proceeding to which the privileged information is material.” (§ 1042, subd. (a).) This provision in section 1042 is intended to preserve the constitutionality of the section 1040 privilege by ensuring that its application does not detract from the constitutional rights of criminal defendants to confrontation, cross-examination, and a fair trial. (See
People v. Montgomery
(1988)
Both parties recognize there is only a small constellation of published California appellate opinions—six in all, and all involving drug dealers—that have applied sections 1040 and 1042 in the context of police testimony about observations made from a surveillance location as to which the prosecution had asserted the section 1040 privilege. As we discuss below, while these cases are not entirely consistent, a legal standard emerges from these opinions from which courts can determine under what circumstances an adverse finding under section 1042 is required. 6
The first of the six cases was
Hines, supra,
In
Hines,
the court advised that the appropriate adverse “order or finding” (§ 1042, subd. (a)) would be an order striking the officer’s testimony regarding his observations, from the privileged location, of the defendant’s narcotics sale activities.
(Hines, supra,
A few months after
Hines
was decided,
Montgomery, supra,
After determining that the proper procedure had not been followed, the court in Montgomery went on to comment that if, after a hearing on remand, the trial court were to uphold the prosecution’s invocation of the privilege, the trial court would be obligated, under section 1042, to strike the testimony of the police officer regarding his observations from that location. (Montgomery, supra, 205 Cal.App.3d at pp. 1022-1023.) In that connection, the court opined that “the information [about the location] was material on the issue of guilt or innocence . . .” because “[t]he purpose of the defense learning the surveillance location was to test the only observation of the [drug] sale itself.” (Id. at p. 1022.) The court went on to note that in the case before it, this information “was particularly material because there was no other direct evidence of the sale; the purchaser had not been detained, and the transaction had not been photographed or otherwise memorialized. [Citation.] Also, the observation of the sale formed an essential basis for the expert testimony that [the defendant] possessed [the drug] for sale. Under these circumstances, sustaining the privilege seriously affected [the defendant’s] fundamental right of cross-examination as to both counts.” (Id. at pp. 1022-1023, fn. omitted.)
*1434
Three years later, the Second District issued an opinion in a surveillance location privilege case that resolved the section 1042 issue against the defendant. In
People v. Walker
(1991)
The next published opinion to consider the issue was the first of two filed by the Sixth District. In
In re Sergio M.
(1993)
The Sergio M. court held that section 1042 did not require an adverse finding in that case, because the exact location of the officer’s surveillance post was not material. The officer’s testimony as to his observations, including the location and exact description of the bag from which he observed the minor remove the object sold to the passenger, was corroborated by the officer’s later retrieval of a bag matching that description from the same location, as well as by the passenger’s possession of a bag of marijuana. (Sergio M., supra, 13 Cal.App.4th at pp. 814-815.) Given these facts, the court declared itself unable “to see how the disclosure of [the officer’s] exact location would result in the minor’s exoneration.” (Id. at p. 814.)
Two years after
Sergio M., supra,
The defendant in Garza filed a habeas corpus petition together with his direct appeal, contending that his trial counsel rendered ineffective assistance by failing to move for the disclosure of the location from which the officer observed him. In assessing this contention, the court first noted that section 1042 does not require an adverse finding or other remedy unless there is a reasonable possibility that nondisclosure of the privileged information might deprive the defendant of a fair trial. 7 (Garza, supra, 32 Cal.App.4th at pp. 153-154.) The court went on to opine that the defendant had not met this requirement in the case before it, because the police officer conducting the surveillance had been able to broadcast detailed descriptions of the defendant and his accomplice, and their activities, over the radio to other police officers as he made his observations. Because this would not have been possible unless the officer actually had a clear view of the suspects, the court held it was not reasonably possible that disclosure of the officer’s location *1436 would have exonerated the defendant, and therefore the location was not material. (Id. at pp. 154-155.) Moreover, the quantity of cocaine found in the defendant’s possession was sufficient to establish possession for sale even without the evidence obtained from the officer’s observations. Thus, the court held that the ineffective assistance of counsel claim was without merit, and denied the habeas corpus petition. (Id. at p. 155.)
Finally, the most recent case on the issue is
People v. Haider
(1995)
At the defendant’s trial in Haider, the prosecution asserted the section 1040 privilege as to the identity of the building whose rooftop had been used by the officer as a surveillance location. Defense counsel was permitted, however, to cross-examine the officer as to the existence of any obstructions; the officer’s distance from a fence in the area; the officer’s angle of vision; and the direction from which the officer observed the defendant. The officer testified in detail as to these facts, and precisely described the position of the defendant’s hand and how he moved it when he transferred the cocaine into Alvarez’s hands. The defendant did not make any showing that there was any second-story rooftop within 100 to 120 feet of his location, at an angle consistent with the officer’s testimony, from which the officer would not have been able to see the defendant due to an obstruction blocking the officer’s view. (Haider, supra, 34 Cal.App.4th at pp. 666-667.)
The court in
Haider
held that the trial court properly denied the defendant’s motion to strike the officer’s testimony under section 1042.
(Haider, supra,
The
Haider
court cited
People
v.
Walker, supra,
The
Haider
court noted that the record before it showed the officer had an unobstructed view through binoculars on a sunny day, and that defense counsel was permitted to cross-examine the officer regarding his observations of the defendant’s interaction with Alvarez. Accordingly, the court concluded that “[t]he officer’s refusal to disclose the exact location of the surveillance site did not deprive [the defendant] of a fair trial,” so the trial court properly permitted the prosecution to assert the privilege without striking the officer’s testimony.
(Haider, supra,
In the case before us, appellant’s counsel argues that the later cases from other districts permitting the trial court to uphold the privilege without *1438 making an adverse finding cannot be reconciled with this district’s earlier decisions in Hines and Montgomery. He also argues that the reasoning of the later cases results in effectively nullifying the adverse finding requirement of section 1042, contending that those cases recognize the materiality of a surveillance location only if the defendant can demonstrate that the observations were, or could have been, made from a location with an obstructed view, and that such a showing is impossible to make unless the location is disclosed. We disagree, for two reasons.
First, the section 1040 privilege does not prevent a defendant from cross-examining the testifying officer about the distance and angle of view from which the officer made the observations. In this case, for example, the trial court properly permitted appellant’s trial counsel to examine Bryant freely with respect to all aspects of his observations, with the sole exception of the exact location from which they were taken. 9 The information derived from such cross-examination should be sufficient to permit the defendant to determine whether any of the potential surveillance locations—i.e., those meeting the officer’s description in terms of distance and angle—are in fact subject to obstructions making it difficult or impossible to obtain a clear view of the defendant’s position at the time of the events described in the officer’s testimony.
Second, and more significantly, our analysis of the published cases reveals that a standard of materiality emerges that is both consistent with the results of virtually all of the published cases (with the exception of
Hines, supra,
For example, in
People v. Walker, supra,
Garza, supra,
Montgomery, supra,
*1440
Appellant acknowledges that
Montgomery, supra,
We now come to the one published case that does not appear to conform to the materiality standard gleaned from the above authorities.
Hines, supra,
Thus, the court held in
Hines
that an adverse finding was required, even though, in
that
case,
the
observing officer’s testimony was corroborated by the facts that the arresting officers were apparently able to identify the defendant from the observing officer’s radioed description; were able to locate the defendant’s “stash of narcotics” by following the observing officer’s directions; and found a hypodermic needle in the defendant’s possession.
(Hines, supra,
Finally, we must address appellant’s argument that section 1042 always requires an adverse order or finding, because a surveillance location is always material. He bases this contention on a reductio ad absurdum, pointing out that if a police officer testifies about observations made from a location that is not subject to the section 1040 privilege, the prosecutor cannot validly object, on materiality grounds, to the defense counsel’s questions about where the officer was when the observations were made.
This argument is based on a conflation of materiality with relevance. Evidence does not need to be
material
in order to be admissible; it only needs to be relevant (and not otherwise objectionable). (§ 351 [“Except as otherwise provided by statute, all relevant evidence is admissible.”];
People v. Carter
(2005)
For all of the foregoing reasons, we conclude that the trial court did not err in upholding the section 1040 privilege as to Bryant’s surveillance location without making any adverse order or finding under section 1042. Appellant does not contend that the trial court made any other reversible error, or that the evidence is insufficient to sustain his conviction if Bryant’s testimony was properly admitted.
*1442 IV. DISPOSITION
The judgment is affirmed.
Sepulveda, J., and Rivera, J., concurred.
Appellant’s petition for review by the Supreme Court was denied July 22, 2009, S173094. George, C. J., and Kennard, J., did not participate therein.
Notes
All further statutory references are to the Evidence Code unless otherwise stated.
Bryant testified, based on his experience, that it was unusual for a drug dealer to sell unwrapped pieces of rock cocaine directly from a plastic baggie rather than carrying them prewrapped for sale and concealed in the dealer’s clothing. It was also unusual to see a drug *1430 dealer in that location at that time, given that most of the drug dealers in the area had moved from Market onto Turk or Taylor due to police activity.
The evidence at trial established that the object dropped by the woman was a piece of rock cocaine weighing 0.32 grams. A police expert testified that a buyer in the area of Sixth and Market would pay $10 for a rock of that size.
Bryant testified that during the time that he was observing appellant, he did not notice any other bald Black males wearing similar clothing.
Bryant conceded on cross-examination that it was unlikely the baggie was in appellant’s sock at the time he pulled it out to retrieve the rock cocaine he sold to the woman.
One commentator has noted that, because these cases are not entirely consistent, the California Supreme Court should intervene to clarify the applicable standard. (See Comment, Ripe for Resolution: A Critique of the Surveillance Post Privilege (2002) 36 U.S.F. L.Rev. 1067, 1094-1097.)
The
Garza
court criticized
Montgomery, supra,
The defendant in
Haider, supra,
Commendably, the trial court here also permitted appellant’s trial counsel to suggest questions that he wanted posed to the officer at the in camera hearing. Our review of the sealed transcript indicates that the court did in fact pose counsel’s suggested questions to Bryant. Nothing in the sealed transcript indicates that disclosure of the surveillance location would have cast doubt on the veracity of Bryant’s testimony about his observations, or otherwise revealed potentially exculpatory evidence.
As respondent points out, such a reading of
Hines
is undercut by the
Hines
court’s reliance on
In re David W.
(1976)