Opinion
I. Introduction
In this appeal, defendant, Tyrant Ote Walker, challenges his conviction for the sale or transportation of cocaine (Health & Saf. Code, § 11352) on the ground that the trial court failed to make an adverse finding after sustaining a police officer’s invocation of a privilege pursuant to Evidence Code *233 section 1040. 1 We determine that the trial court acted properly and affirm the judgment.
II. Procedural History
Defendant was convicted of one count of sale or transportation of a controlled substance. Defendant filed a new trial motion on the sole ground that the trial court erred in allowing the officer to invoke a confidential privilege for his surveillance location. At the hearing on the motion, defendant asserted the officer’s testimony should have been stricken. The trial court concluded that based on the evidence at trial nothing could have been gained by knowing the officer’s exact location and denied the motion. Defendant was sentenced to a three-year prison term.
III. Facts
A. The Prosecution’s Case
At the trial, Long Beach Police Officer Joseph Bahash testified that on Sunday, October 2, 1988, he was working in uniform on a surveillance of a single building at 219-221 East Artesia in Long Beach. At approximately 5:45 p.m. that day, Officer Bahash observed defendant in the courtyard which joins 219 and 221 East Artesia. A person identified as Gabriel Gomez (Gomez), pulled an older model, white Ford station wagon in the alley to the rear of 219-221 Artesia. A woman was also in the car. Gomez parked behind 221 East Artesia and went inside the courtyard. Officer Bahash was standing approximately 25 feet away from the area when he observed defendant have a short conversation with Gomez. Defendant then went up the stairs of the 219 East Artesia building and disappeared from view for about three minutes. When defendant returned, Gomez handed him some currency and received a small object from defendant. The object was small enough that it could be held between the thumb and forefinger. Officer Bahash was standing about 15 feet away from the exchange of the currency and the small object. Gomez placed the object in his right shirt pocket and got into the white station wagon. Officer Bahash advised other detectives of the vehicle’s description and license plate. Officer Bahash testified that he had a clear unobstructed view of the drug transaction. Officer Bahash asserted an official-information privilege and refused to disclose the location from which he made the observation.
Officer Tyrone Hatfield testified that within two to three minutes of hearing Officer Bahash’s broadcast, he came into contact with Gomez and *234 his female passenger and detained them. The officer recovered a piece of rock which appeared to be rock cocaine from Gomez’s right shirt pocket. Michael Hoover, a Long Beach Police Department criminalist, testified the rock found in Gomez’s pocket was cocaine.
After Gomez was arrested, Officer Bahash met with two other officers to discuss arresting defendant. When he returned to the location, he could not find defendant. On October 8, 1988, six days after Gomez was arrested, Officer Bahash observed defendant in the rear of 221 East Artesia putting objects into a garbage can. Officer Bahash recognized defendant immediately and placed him under arrest.
Officer Robert Sergi testified that when he interviewed defendant after the October 8, 1988, arrest, defendant stated “ ‘You think I sold some rock cocaine to a little white guy, don’t you?’ ” Defendant then told Officer Sergi that on Sunday, he made contact with a little white guy who was driving a Ford station wagon with a female passenger. Defendant said to the “white guy” that he (defendant) did not sell cocaine but directed him to “Tekington” to buy “coke.” Gomez was a Caucasian and, as previously mentioned, was driving a Ford station wagon with a woman as a passenger.
B. Defense Case
Defendant denied selling cocaine to Gomez or having the conversation with Officer Sergi in which he admitted talking to Gomez. Defendant believed that a vacant house in the rear of the buildings where Officer Bahash might have made his observations was 34 to 39 feet from the area where the drug transaction was made. He testified that he was playing basketball at Coolidge Park at 5:45 p.m. on October 2, 1988. He did not know the names of any of the people that played in the game.
Defendant’s mother testified that defendant left the apartment in the morning of October 2, 1988, and did not return until around 8:30 p.m. She observed police officers arrest her boyfriend, Otis Palmer, in her apartment. A number of police officers were in the area of the apartment building from about 3 that afternoon until they began making arrests. She left her apartment to attempt to post bail for Palmer. She returned home about 8:30 p.m. that evening. She did not see the white station wagon that Gomez was driving that day.
IV. Discussion
Defendant contends that after the trial court upheld the surveillance location privilege, it erred in not striking Officer Bahash’s testimony. Citing
People
v.
Montgomery
(1988)
California and other jurisdictions which have considered the question of whether a police officer’s surveillance location is entitled to a confidential privilege, have determined that the information is privileged. (See
People
v.
Montgomery, supra,
205 Cal.App.3d at pp. 1017-1019;
Hines
v.
Superior Court, supra,
In determining whether to uphold the privilege, the trial court is required to engage in a balancing process under section 1040, subdivision (b)(2) which provides that a governmental privilege will be upheld “where the necessity for confidentiality ‘outweighs the necessity for disclosure in the interest of justice,’. . .”
(People
v.
Superior Court
(1971)
The issue in this case is whether the trial court committed reversible error once it sustained the privilege claim of Officer Bahash and did not strike the officer’s testimony. Under California law, once the privilege is claimed the trial court should conduct an in camera hearing pursuant to the procedural guidelines set forth in
People
v.
Superior Court, supra,
19 Cal.App.3d at pages 530-532, to determine if the testimony relates to issues that are material.
(People
v.
Montgomery, supra,
Defendant argues that based upon two California cases,
Montgomery
and
Hines,
location is always material and accordingly the judgment must be reversed because the trial court did not strike the testimony. We agree that current California case law holds that when the trial court determines that the location is material, the testimony of the officer should be stricken
(Hines
v.
Superior Court, supra,
On the specific facts of this case, the trial court did not abuse its discretion in determining that the exact location was not material. In discussing the
*238
concept of materiality requiring disclosure of informant’s identity, the California Supreme Court held: “The defendant’s ‘burden extends only to showing that “in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.” [Citation.] “That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.” . . .’ [Citation.]”
(Price
v.
Superior Court
(1970)
In both Hines and Montgomery, the officer made observations at a substantial distance under the questionable circumstances. In this case, the *239 observation was made 15 feet away from the drug transaction. In Montgomery, the trial court, on defendant’s request, refused to strike portions of a police officer’s testimony after a surveillance location privilege was upheld. The officer made his observations from a position 25 to 35 yards away. At the same time that he observed defendant, he was observing the activities of two other suspects. He observed defendant in an intersection flagging down cars and shouting that he had “Thai” for sale and forming a “T” both of which are names for a type of marijuana from Thailand. The officer observed defendant make contact with a woman and exchange a plastic baggie for currency. Although the woman’s description was broadcast to other officers, she was not apprehended. As the officers moved in to arrest defendant, he ran into an apartment. The officers pursued him and heard the sound of a toilet flushing. Defendant came out of the restroom pulling up his pants. The officer observed only clear water in the toilet tank but recovered a plastic bag containing 22.70 grams of marijuana which although less than an ounce was more than sufficient for personal consumption and could be divided into 20 to 30 street packages for street sale. On these facts, the trial court found that the location was material but then refused to make an adverse ruling against the prosecution. The Court of Appeal held that because defendant demonstrated how the information affected the presentation of his defense he was entitled to an adverse finding which in Montgomery required dismissal of the case. The court noted that it was possible that due to the distance, the officer may have been unable to distinguish defendant’s activities from the other suspects’ activities. (People v. Montgomery, supra, 205 Cal.App.3d at pp. 1019-1023.)]
In
Hines,
the drug transaction took place 50 yards from the surveillance location. The officer watched the transaction through binoculars on an overcast day. The appellate court concluded that the magistrate committed error in sustaining the privilege since the information was material to the officer’s ability to adequately observe the transactions.
(Hines
v.
Superior Court, supra,
203 Cal.App.3d at pp. 1234-1235.) There is no basis in this case to conclude that in view of the evidence, the exact location would have been material on the issue of guilt. Accordingly, the officer’s refusal to disclose his exact location did not deprive defendant of a fair trial
(Price
v.
Superior Court, supra,
*240 V. Disposition
The judgment is affirmed.
Boren, J., and Grignon, J., concurred.
A petition for a rehearing was denied June 10, 1991, and on June 13, 1991, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied August 21, 1991.
Notes
All further statutory references are to the Evidence Code.
Section 1042 provides in part: “(a) 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.”
Section 1040 provides in part: “(a) As used in this section ‘official information’ means 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. [j|] (b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and: . . . [j|] (2) Disclosure of the information 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; . . .”
The federal standard for determining the informant’s identity privilege was set forth in the United States Supreme Court case of
Roviaro
v.
United States
(1957)
Reynolds
was a civil case involving the federal government’s refusal to disclose sensitive military documents in a tort action brought by the survivors of the victims of a airplane crash from a test project. In dicta, the court stated the government, in a criminal proceeding, may invoke the confidential privileges “only at the price of letting the defendant go free. . . . [I]t is unconscionable to allow it to undertake the prosecution and then invoke its governmental privileges to deprive the accused of anything which might be
material to his defense.”
(Italics added.) (
Cases that have considered the consequences of invoking a surveillance location privilege in other jurisdictions have relied upon the United States Supreme Court decision in Roviaro v. United States, supra, 353 U.S. at pages 61-66 [1 L.Ed.2d at pp. 645-648], Roviaro involved a governmental privilege for an informant’s identity. The court held that the privilege is limited by fundamental requirements of fairness. (Id. at pp. 60-61 [1 L.Ed.2d at pp. 644-645].) The court concluded: “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” (ibid., fns. omitted.) Later, the Supreme Court concluded: “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Id. at pp.61-62 [1 L.Ed.2d at pp. 645-646].)
For example, the
Roviaro
balancing test was applied in the
United States
v.
Harley, supra,