Wilson v. Super. Ct. CA5 ( 2013 )

Filed 3/19/13 Wilson v. Super. Ct. CA5
Received for posting 3/21/13
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
NEKO WILSON, F066521
Petitioner, (Fresno Super. Ct. No. 192419)
v.
OPINION
THE SUPERIOR COURT OF FRESNO
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
THE COURT
ORIGINAL PROCEEDING; petition for writ of mandate. John F. Vogt, Judge
Alonzo J. Gradford, for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Luis M. Vasquez, Leanne Le
Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
 Before Cornell, A.P.J., Gomes, J., and Franson, J.
-ooOoo-
Petitioner challenges the denial of his discovery requests regarding the informant
S. G., other confidential informants who may have provided information on this case, and
whatever additional evidence pertinent to this case is in the possession of the Multiple
Gang Enforcement Consortium (MAGEC).
The People concede that “the police and the district attorney must make
reasonable efforts in good faith to locate the [material] informer so that either party or the
court may, if desired, subpoena her as a witness….
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.’”
The transcript of the interview with S. G. establishes that she was a percipient
witness to discussions regarding a plan to rob the victims Gary and Sondra DeBartolo at
their residence. S. G. indicated that the participants in those discussions were members
of the Asian Boys Club, two Hispanic men, two Asian females, and another female who
was called “Thumper.” It appears that at one point during the interview, S. G. identified
a photo as the person called “Thumper.” Petitioner asserts without contradiction that one
of those females was the codefendant Dawn Singh. S. G. also stated that at least one
other male was involved but who was not present during the discussions.
From the facts revealed during the interview with S. G., there “‘appears ... a
reasonable possibility that ... she could give evidence on the issue of guilt that might
exonerate the defendant.’” For example, S. G. might be able to identify one or more of
the codefendants as being participants in the discussions. Thus, the Office of the District
Attorney was obligated to make good faith efforts to locate S. G. and make her available
to the defense.
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With respect to petitioner’s request for the identities of other confidential
informants who might have provided information pertinent to the conspiracy and
murders, the People concede the they must provide such information “if it is in the
possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies[.]”
The conclusional and unsworn verbal assertions by the Deputy District Attorney at
the hearing held on November 30, 2012, that there were no confidential informants in this
case other than S. G. constituted insufficient evidence that the Office of the District
Attorney had made appropriate inquiries to the police agencies to determine whether
there were reports regarding informants other than S. G. who provided or could provide
information pertinent to the conspiracy and murders. Any such showing should have
been made in sworn testimony and/or declarations declared to be true under penalty of
perjury.
Petitioner is entitled to appropriate relief. (Code of Civ. Proc., § 1085; see
Whitney’s at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266.) A peremptory
writ of mandate is proper and should issue. (Code of Civ. Proc., § 1088; Palma v. U. S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181; Goodenough v. Superior Court
(1971) 18 Cal.App.3d 692, 697.)
The petition is granted as specified below, and otherwise denied.
Let a peremptory writ of mandate issue directing respondent superior court to
vacate its denials of petitioner’s requests regarding S. G. and any other confidential
informants, and to order the People: 1) to make good faith efforts to locate and produce
S. G. for the defense, 2) to make appropriate inquiries to the police agencies and officers
who provided reports regarding information pertinent to this case from unnamed
confidential informants to determine their identities and to inform the defense unless the
superior court determines that such information should remain confidential, 3) to make
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appropriate inquiries to determine whether said police agencies and officers possess any
other information pertinent to or from S. G. which has not already been provided to the
defense, and 4) to respond to the orders with a declaration under penalty of perjury.
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