In re Carrillo

Filed 9/10/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
B247837
In re
(Los Angeles County
JEROME CARRILLO Super. Ct. No. BA389735)
on Habeas Corpus.
ORIGINAL PROCEEDING; petition for writ of habeas corpus, William N. Sterling,
Judge. Petition granted.
Angela Berry; Law Office of Alex R. Kessel, Alex R. Kessel and Ivy Kessel for
Petitioner.
Jackie Lacey, District Attorney, Roberta Schwartz and Patrick D. Moran, Deputy
District Attorneys, for Real Party in Interest.
No appearance by Respondent.
——————————
Defendant was charged with assault with a deadly weapon with further allegations
that he personally used a firearm and acted to benefit a street gang in the commission of the
offense. The trial court released defendant on $90,000 bail. Shortly before a pretrial
conference, at an in camera ex parte hearing at which defendant was not present, the trial
court raised defendant‘s bail to $1 million. In this habeas proceeding, defendant challenges
his detention on this increased bond as in violation of Penal Code1 sections 1270.1 and
1289 and his Sixth Amendment and due process rights, and seeks vacation of the court‘s
order increasing his bail and reinstatement of the previously ordered bail. We conclude that
the trial court erred in failing to address the reliability of the confidential information;
further, the trial court failed to provide defendant with the gist of the prosecution‘s
requested increase in bail, and failed to consider some manner in which defendant could
participate in the hearing while at the same time preserving the government‘s need to
proceed in camera. We therefore grant defendant‘s petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 22, 2012, a felony complaint was filed against defendant, a member of a
gang, and several other codefendants charging them with assault with a deadly weapon.
(§ 245, subd. (a)(2).) The complaint also alleged defendant personally used a firearm and
committed the offense to further the interests of a street gang. (§§ 186.22, subd.(b),
12022.5, subd. (a).) Defendant was released on $90,000 bail, and appeared at a pretrial
hearing represented by counsel on March 7, 2012. On that date, a further pretrial
conference was set for March 21, 2013.
On March 14, 2013, the prosecution moved ex parte for an in camera hearing to
increase the amount of bail, and submitted a declaration under seal in support. The court
conducted an ex parte, in camera hearing in which it received confidential information. Our
review of the transcript of the hearing indicates the trial court made no effort to ascertain
the reliability of the information. After the hearing, the court ordered defendant‘s bail
1 All statutory references are to the Penal Code unless otherwise indicated.
2
forfeited, reset bail at $1 million, and issued a bench warrant for defendant‘s arrest. On that
same day, defendant was arrested and remains incarcerated. On March 20, 2013, defendant
requested an open hearing on his bail increase, but the court denied the request.
DISCUSSION
On April 8, 2012, defendant filed a petition for writ of habeas corpus asserting that
his detention on an increased bond violated sections 1270.1 and 1289 as well as his Sixth
and Fourteenth Amendment rights, and seeks to have his bail reinstated at $90,000. He
argues due process and the Sixth Amendment require an open hearing, and refutes that the
language of section 1289 permits ex parte in camera bail hearings. Lastly, deducing that
confidential information was used at the hearing, he contends he is entitled to discover the
material relied on by the prosecution in raising his bail. The People counter that no notice
to defendant was required by the literal language of sections 1270.1 and 1289.
I.
Well-settled principles govern the court‘s ability to set, increase, or reduce bail.
―Except under limited circumstances, the California Constitution guarantees a pretrial right
to release on nonexcessive bail. (Cal. Const. art I, § 12.). . . . The court in setting, reducing,
or denying bail must primarily consider the public safety. [Citation.] Additionally, the
court considers the seriousness of the offense charged, the defendant‘s criminal record and
the probability the defendant will appear for hearings or trial. [Citation.] As to the
seriousness of the offense charged, the court, inter alia, considers the alleged injury to the
victim, alleged threats to victims or witnesses, the alleged use of a firearm and the alleged
use or possession of controlled substances. (Ibid.)‖ (In re Weiner (1995) 32 Cal.App.4th
441, 444.) The trial court‘s statement of reasons shall ―contain more than mere findings of
ultimate fact or a recitation of the relevant criteria for release on bail; the statement should
clearly articulate the basis for the court‘s utilization of such criteria.‖ (In re Pipinos (1982)
33 Cal.3d 189, 193.)
Section 1270.1 requires notice and a hearing for the setting of bail. Section 1270.1,
subdivision (a), provides that for serious and violent felonies, a person may be released on a
3
scheduled bail amount after a hearing before an magistrate or judge in an ―open court.‖
(§ 1270.1, subd. (a).) Under section 1289, bail may reduced or increased; but it may be
increased only by a showing of good cause. (§ 1289; In re Annis (2005) 127 Cal.App.4th
1190, 1195–1196.) Section 1289 makes no provision for a hearing; but if defendant applies
for a reduction in bail, the statute expressly provides notice must be given to the
prosecution, yet no such corollary provision for notice to the defendant exists for an
increase in bail.2 We review the court‘s decision to increase or reduce bail for an abuse of
discretion. (In re Christie (2001) 92 Cal.App.4th 1105, 1107.)
II.
The purpose of the Sixth Amendment is to guarantee a fair trial. (Faretta v.
California (1975) 422 U.S. 806, 818 [95 S.Ct. 2525, 45 L.Ed.2d 562].) To that end, the
Sixth Amendment provides that ―the accused shall enjoy the right to a speedy and public
trial.‖ (U.S. Const., 6th Amend.) The right to a public trial ―has always been recognized as
a safeguard against any attempt to employ our courts as instruments of persecution. The
knowledge that every criminal trial is subject to contemporaneous review in the forum of
public opinion is an effective restraint on possible abuse of judicial power.‖ (In re Oliver
(1948) 333 U.S. 257, 270 [68 S.Ct. 499, 92 L.Ed.2d 682].)
―Although the Sixth Amendment refers to a ‗public trial,‘ the right encompasses
more than the trial itself,‖ and ―is not limited to issues that arise after a jury is sworn or
times when the jury is present.‖ (United States v. Waters (9th Cir. 2010) 627 F.3d 345,
360.) The public-trial right attaches to those hearings whose subject matter ―involve[s] the
values that the right to a public trial serves.‖ (United States v. Ivester (9th Cir. 2003) 316
F.3d 955, 960.) Namely, the right ensures a fair trial, reminds the prosecutor and judge of
2Section 1289 provides, ―After a defendant has been admitted to bail upon an
indictment or information, the Court in which the charge is pending may, upon good
cause shown, either increase or reduce the amount of bail. If the amount be increased, the
Court may order the defendant to be committed to actual custody, unless he give bail in
such increased amount. If application be made by the defendant for a reduction of the
amount, notice of the application must be served upon the District Attorney.‖
4
their responsibility to the accused and the importance of their functions, encourages
witnesses to come forward, and discourages perjury. (United States v. Waters, supra, 627
F.3d at p. 360.) Thus, it ―‗extends at least to those pretrial hearings that are an integral part
of the trial, such as jury selection and motions to suppress evidence.‘ [Citation.]‖ (Ibid.)
The public trial right has been applied to suppression hearings of wrongfully seized
evidence (Waller v. Georgia (1984) 467 U.S. 39, 46–47 [104 S.Ct. 2210, 81 L.Ed.2d 31]
(Waller), jury selection (Presley v. Georgia (2010) 558 U.S. 209 [130 S.Ct. 721, 175
L.Ed.2d 675]), and in limine motions (Rovinsky v. McKaskle (5th Cir. 1984) 722 F.2d 197,
201). Bail hearings ―fit comfortably within the sphere of adversarial proceedings closely
related to trial.‖ (United States v. Abuhamra (2d Cir. 2004) 389 F.3d 309, 323
(Abuhamra).) Indeed, ―bail hearings, like probable cause and suppression hearings, are
frequently hotly contested and require a court‘s careful consideration of a host of facts about
the defendant and the crimes charged. . . . Bail hearings do not determine simply whether
certain evidence may be used against a defendant at trial or whether certain persons will
serve as trial jurors; bail hearings determine whether a defendant will be allowed to retain,
or forced to surrender, his liberty during the pendency of his criminal case.‖ (Id. at pp. 323–
324.)
In Waller, supra, 467 U.S. 39, the high court discussed procedural safeguards that
must be observed before the courtroom could be closed over the objections of the defendant
in the context of a suppression hearing. Waller noted that the right to a public trial is not
absolute and must sometimes give way to other interests essential to the fair administration
of justice. (Id. at p. 45.) ―‗The presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential to preserve higher values and
is narrowly tailored to serve that interest.‘‖ (Ibid.) Thus, to justify complete closure of a
trial or portion thereof, four criteria must be met: (1) there must be ―an overriding interest
that is likely to be prejudiced‖; (2) the closure must be narrowly tailored, i.e., ―no broader
than necessary to protect that interest‖; (3) ―the trial court must consider reasonable
alternatives to closing the proceeding‖; and (4) the trial court ―must make findings adequate
5
to support the closure‖ and allow a reviewing court to determine whether the closure was
proper. (Id. at p. 48.)
Due process similarly requires transparency. ―‗Parties whose rights are to be
affected are entitled to be heard; and in order that they may enjoy that right they must first
be notified.‘‖ (Fuentes v. Shevin (1972) 407 U.S. 67, 80 [92 S.Ct. 1983, 32 L.Ed.2d 556].)
―Although . . . due process tolerates variances in the form of a hearing ‗appropriate to the
nature of the case,‘ [citation], and ‗depending upon the importance of the interests involved
and the nature of the subsequent proceedings [if any],‘ [citation], [this] Court has
traditionally insisted that, whatever its form, opportunity for that hearing must be provided
before the deprivation at issue takes effect.‖ (Id. at p. 80.) ―Particularly where liberty is at
stake, due process demands that the individual and the government each be afforded the
opportunity not only to advance their respective positions but to correct or contradict
arguments or evidence offered by the other.‖ (Abuhamra, supra, 389 F.3d at p. 322.)
Whether a defendant can show no prejudice as a result of the denial of a public
trial is inconsequential. While prejudice may once have been a subject of controversy, the
requirement has now been rejected uniformly by federal courts. (Rovinsky v. McKaskle,
supra, 722 F.2d at p. 201.) ―[I]t would be difficult, if not impossible, . . . for a defendant
to point to any definite, personal injury. To require him to do so would impair or destroy
the [public trial] safeguard.‖ (United States v. Kobli (3d Cir. 1949) 172 F.2d 919, 921.)
III.
Where the prosecution requests a bail increase based on factors that the prosecution
determines must be kept confidential, the open trial right applicable to bail hearings collides
with the need to protect sensitive information. ―[T]the right to an open trial may give way
in certain cases to other rights or interests, such as . . . the government‘s interest in
inhibiting disclosure of sensitive information. Such circumstances will be rare, however,
and the balance of interests must be struck with special care.‖ (Waller, supra, 467 U.S. at
p. 45.)
6
In Abuhamra, supra, 389 F.3d 309, the court followed the factors set forth in Waller,
supra, 467 U.S. 39 to determine whether the court could hold a closed bail hearing. In
Abuhamra, the defendant was convicted of money laundering and dealing in contraband
cigarettes, and sought to be released on bail pending sentencing. (Id. at p. 314.) Before
trial, defendant was free on a $20,000 bond for four and a half years. While on bail,
defendant was granted two extraordinary requests for travel to Mecca for a pilgrimage in
2000, and to travel to Yemen in 2003 for three months to visit his dying father. (Id. at
pp. 314–315.) After the verdict, the prosecution moved to remand defendant pursuant to
the Bail Reform Act,3 (18 U.S.C. § 3143(a)(1)).4 The prosecution relied on the
presumption of danger and flight created by section 3143, and defendant‘s recent contact in
Yemen with a fugitive codefendant—contact established by photographs in defendant‘s
possession upon defendant‘s return to the United States after visiting Yemen. (Abuhamra,
3 The Bail Reform Act of 1984 (18 U.S.C. § 3141 et seq.) (Bail Reform Act)
mandates the release of a person pending trial unless no condition or combination of
conditions will ―reasonably assure‖ the appearance of the person as required and the safety
of the community. (18 U.S.C. § 3142(c)(1).) Under section 3142(f), the magistrate shall
hold a hearing to determine whether release on bail should be granted to a defendant
pursuant to section 3142(c). Section 3142(g) provides factors for the court shall to consider
in granting or denying bail, and a defendant may be retained without bail if there is a
finding that no condition or combination of conditions will reasonably assure the
appearance of the defendant and the safety of the community. (18 U.S.C. § 3142(e).) The
Bail Reform Act requires that a detention hearing be held, at which time the defendant may
request counsel to appear on his behalf, may testify and present witnesses, may cross-
examine the witnesses appearing at the hearing, and offer evidence by proffer or otherwise.
(18 U.S.C. § 3142(f).)
4 That section provides, ―the judicial officer shall order that a person who has been
found guilty of an offense and who is awaiting imposition or execution of sentence, other
than a person for whom the applicable guideline . . . does not recommend a term of
imprisonment, be detained, unless the judicial officer finds by clear and convincing
evidence that the person is not likely to flee or pose a danger to the safety of any other
person or the community if released under section 3142(b) or (c). If the judicial officer
makes such a finding, such judicial officer shall order the release of the person in
accordance with Title 18 United States Code section 3142(b) or (c).‖
7
at p. 315.) Defendant disputed the identity of the person in the photograph. (Id. at pp. 315–
316.)
Rather than resolve the identity dispute, the court asked whether the prosecution had
any other reasons for opposing defendant‘s release; the prosecution suggested that it
submit—in camera and ex parte by affidavit—evidence of defendant‘s dangerousness.
(Abuhamra, supra, 389 F.3d at p. 316.) The prosecution refused to give defendant ―the
gist‖ of the intended proffer, stating to do so would compromise the identity of witnesses or
national security. (Ibid.) After conducting an ex parte in camera hearing, the court issued a
six-page sealed final order and a public order stating, ―‗For the reasons stated in the [sealed]
Decision and Order, the Court finds by clear and convincing evidence that the defendant
will pose a danger to [the] community and a risk of flight, if he is released.‘‖ (Id. at
pp. 316–317.)
At the outset, Abuhamra, supra, 389 F.3d 309 observed that defendant had no
constitutional right to bail pending sentencing, instead defining the issue as whether due
process permitted a bail application to be denied based on ex parte submissions. (Id. at
p. 317.) Abuhamra found ―due process is a flexible standard that can vary in different
circumstances‖ depending on the interest affected compared to the government‘s asserted
interest, and the burdens the government would face in providing greater process. ―A court
must carefully balance these competing concerns, analyzing ‗―the risk of an erroneous
deprivation‖ of the private interest if the process were reduced and the ―probable value, if
any, of additional or substitute safeguards.‖‘‖ (Id. at p. 318, quoting Mathews v. Eldridge
(1976) 424 U.S. 319, 335 [96 S.Ct. 893, 47 L.Ed.2d 18].)
Abuhamra, supra, 389 F.3d 309 noted that ―in borrowing the Waller, supra, 467
U.S. 39 factors, we recognize that they are intended to identify circumstances where the
public may be excluded from a criminal proceeding. Waller did not contemplate that the
defendant would also be denied access to the closed proceedings. Because ex parte
submissions in opposition to bail have just this result, we conclude that the Waller factors,
by themselves, are inadequate to safeguard a defendant‘s basic due process rights to notice
8
and a fair hearing. Thus, we conclude that a second prerequisite to the receipt of ex parte
evidence in opposition to bail is disclosure to the defendant of the gist or substance of the
reasons advanced in the government‘s sealed submission so that the defendant may fairly
meet this challenge.‖ (Abuhamra, at p. 330.) Thus, Abuhamra did not foreclose the
possibility that, on rare occasions, extraordinary circumstances might warrant receipt of ex
parte evidence in opposition to bail release, and ―that the circumstances necessary to fit
within this narrow exception [are] (a) satisfaction of the factors outlined by the Supreme
Court in Waller . . . to exclude the public from certain criminal proceedings, (b) disclosure
to the defendant of the gist or substance of the government‘s ex parte submission, and
(c) careful scrutiny by the . . . court of the reliability of the ex parte evidence.‖ (Abuhamra,
at p. 329.) Abuhamra remanded the case before it for the district court to apply the factors it
had enunciated. (Id. at p. 332.)
In contrast, the minority view is more indulgent of the government‘s ability to
proceed in camera and is set forth in United States v. Terrones (S.D. Cal. 1989) 712 F.Supp.
786 (Terrones), where the district court conducted a subsequent bail increase hearing and
considered ex parte in camera evidence. The defendant and two codefendants in Terrones
were charged with unlawfully importing 737 pounds of cocaine; if convicted, the offense
carried a mandatory minimum sentence of 10 years, a maximum term of life imprisonment,
and a $4 million fine. (21 U.S.C. § 841(b)(1)(A)(ii)(II).) Defendant was released on bond
secured by real property pledged by the defendant‘s family. (Terrones, at p. 788.) Just two
days after the defendant‘s bail hearing, the prosecution moved for reconsideration of the
bail order and presented an in camera affidavit. The next day, the magistrate interviewed
the persons referenced in the sealed affidavit. Neither defendant nor his counsel was
present at the in camera interview, but defense counsel was invited to submit written
questions for the magistrate to ask the witnesses. After the in camera hearing, the
magistrate denied bail and ordered defendant detained until trial, finding he was a flight
risk. (Ibid.)
9
The court concluded its reliance on evidence not made available to defendant was
permitted by the Bail Reform Act and passed constitutional muster. First, the Bail Reform
Act did not expressly preclude in camera hearings. (Terrones, supra, 712 F.Supp. at
p. 791.) Second, although due process was flexible and not every potential loss of liberty
required the full panoply of adversarial protections available at a criminal trial, i.e.,
representation by counsel, confrontation, and cross-examination, Terrones found
deprivation of liberty must be accompanied by procedural safeguards. Terrones also
observed that courts have frequently considered in camera evidence in criminal
proceedings, such as when a court took information from a confidential informant yet
protected the identity of such informant or when a court ―determine[d] whether to issue
search warrants, arrest warrants, and wire-tap authorizations.‖ (Id. at p. 793.)
Thus, applying the balancing test of Mathews v. Eldridge, supra, 424 U.S. 319,
Terrones, supra, 712 F.Supp. 786 concluded no due process violation occurred because the
liberty interest of the individual was outweighed by ―the interests of society
articulated . . . in the Bail Reform Act.‖ Further, the court‘s consideration of the in camera
evidence ―assist[ed] in guarding against erroneous detention determinations. . . . [B]y
employing procedural safeguards when analyzing such material, detainees will be protected
against the violation of due process.‖ (Terrones, at p 793.) The procedural safeguards used
in Terrones included requesting questions from the defendant to be submitted to the in
camera hearing. (Id. at p. 794.)
Conceding that ex parte evidence should be used only in ―rare and unusual cases,‖
the court found the case before it such a rare and unusual case: ―First, the in camera
information is extraordinarily relevant and material on the issues of flight and
dangerousness. Second, the court cannot envision any other source of the information but
for the confidential affiant(s). Third, the court finds that the affiant(s) suffer(s) from a real
threat of serious bodily harm or death if identified. Fourth, the identification of the
affiant(s) cannot be disclosed because this threat will not abate even if the defendant is
detained. Further, because of the danger to the affiant(s), if identified, the in camera
10
evidence in this case cannot be disclosed to the defendant except in the most conclusory of
terms.‖ (Terrones, supra, 712 F.Supp. at p. 794.)
IV.
―‗Fairness can rarely be obtained by secret, one-sided determination of facts decisive
of rights.‘‖ (Abuhamra, supra, 389 F.3d at p. 322, quoting Joint Anti-Fascist Refugee
Comm. v. McGrath (1951) 341 U.S. 123, 171 [71 S.Ct. 624, 95 L.Ed. 817] (Frankfurter, J.,
concurring).) A defendant seeking bail release has ―the right to know what information is
being submitted to the decisionmaker and the opportunity to challenge the reliability of the
government‘s sources as well as provide contrary information.‖ (United States v. Accetturo
(3d. Cir. 1986) 783 F.2d 382, 390–391.) Given the Sixth Amendment principle of an open
hearing and due process foundation of notice and a hearing that are at stake here, we cannot
read Penal Code section 1289 as permitting closed bail hearings without adherence to the
procedural steps outlined in Abuhamra. First, the defendant‘s interests here were
significantly affected by the revocation of bail and imposition of a significantly higher bond
without giving him the chance to refute the People‘s information in open court. Second,
there is a risk of error where the decision to revoke bail is based entirely on confidential
information. Third, a defendant who has already established his suitability for release on
bail has a dignity interest in receiving notice of the decision to revoke bail and in attending
the hearing held thereon.
A.
Therefore, we adopt the additional safeguards of Abuhamra, supra, 389 F.3d 309and apply them here.5 Thus, a consideration of whether defendant‘s March 14, 2013 bail
hearing comported with due process and the Sixth Amendment requires ―(a) satisfaction of
the factors outlined by the Supreme Court in Waller . . . [, supra, 467 U.S. 39] to exclude
5 Contrary to defendant‘s assertion, In re Alberto (2002) 102 Cal.App.4th 421, is
not a flat-out prohibition on ex parte, in camera bail increase hearings. Alberto addressed
whether a second trial judge could reverse a prior judge‘s increase in bail, and held such
an action violated principles of comity, not the bail statutes. (Id. at pp. 427–431.)
11
the public from certain criminal proceedings, (b) disclosure to the defendant of the gist or
substance of the government‘s ex parte submission, and (c) careful scrutiny by the [trial]
court of the reliability of the ex parte evidence.‖ (Abuhamra, at p. 329.)
In addition to the four Waller factors, Abuhamra goes beyond Waller and adopts two
additional procedural safeguards. Most important here, the third step in Abuhamra‘s
analysis requires scrutiny of the reliability of the information. In Abuhamra, the court
pointed out that ―[p]recisely because ex parte submissions are not tested for reliability in the
usual adversarial crucible, a judicial officer who receives such evidence ‗has the singular
responsibility for ensuring that he has been provided with all the facts and circumstances
necessary to make an informed assessment of reliability.‘ [Citation.] In a case such as this,
in which, as defendant notes, the ex parte evidence is ‗a hearsay affidavit based upon
information supplied by another person or persons,‘ [citation] the court must carefully
consider the totality of the circumstances in assessing the reliability of the evidence. For
example, where an informant is involved, the court may consider: the source‘s past record
for reliability; his relationship, if any, to the defendant; his motive for providing the
evidence at issue; the specificity of the information disclosed; the circumstances under
which the evidence was procured and disclosed; the confidential source‘s willingness to
testify to this information, at least ex parte, in the bail proceeding and, if not, the reasons for
that decision; the consequences faced by the confidential source if his disclosures prove
false; and the degree to which the disclosures are, or can be, corroborated by other evidence.
[Citation.]‖ (Abuhamra, supra, 389 F.3d at pp. 331–332.)
As there is a paucity of law on the use of confidential information to raise bail, we
borrow from Fourth Amendment jurisprudence. When a magistrate is evaluating whether
probable cause exists to issue a search warrant, an informant‘s tip is scrutinized under the
totality of the circumstances test, requiring a consideration of the veracity, reliability and
basis of knowledge of the informant. (Illinois v. Gates (1983) 462 U.S. 213, 238–239
[103 S.Ct. 2317, 76 L.Ed.2d 527].) There is no rigid formula, and a strong showing in
one area may compensate for a deficiency in another. (Id. at p. 233.) ―If, for example, a
12
particular informant is known for the unusual reliability of his predictions of certain types
of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth
the basis of his knowledge surely should not serve as an absolute bar to a finding of
probable cause based on his tip. [Citation.] Likewise, if an unquestionably honest citizen
comes forward with a report of criminal activity—which if fabricated would subject him
to criminal liability—we have found rigorous scrutiny of the basis of his knowledge
unnecessary. [Citation.] Conversely, even if we entertain some doubt as to an
informant‘s motives, his explicit and detailed description of alleged wrongdoing, along
with a statement that the event was observed firsthand, entitles his tip to greater weight
than might otherwise be the case.‖ (Id. at pp. 233–234, fn. omitted.) ―‗―[V]eracity,‖
―reliability,‖ and ―basis of knowledge‖ are weighed together with any other evidence that
supports the finding of probable cause. They are viewed cumulatively, not as
independent links in a chain. [Citation.]‘‖ (Higgason v. Superior Court (1985) 170
Cal.App.3d 929, 937.) ―[T]he quantum of detail, particularly as it describes subsequently
verified future activity, is regarded as a significant factor in assessing the informant‘s
reliability, unless, of course, the independent police investigation reveals patently
criminal activity.‖ (People v. Lissauer (1985) 169 Cal.App.3d 413, 423.)
The informant must establish his or her reliability and that the information has a
factual basis. (Illinois v. Gates, supra, 462 U.S. at p. 230.) ―The rule that the affiant
must demonstrate a tipster‘s probable reliability or credibility arises not only from the
usual distrust of hearsay evidence but also from an assumption that information provided
by customary police sources is inherently suspect.‖ (People v. Kurland (1980) 28 Cal.3d
376, 392.) The type of informant, the type of evidence (hearsay or personal knowledge)
and whether the evidence is corroborated all work together to determine whether probable
cause exists. The reliability of an informant can be confirmed in a variety of ways, ―as by
corroboration of the information received [citations], the informant‘s previous record of
accuracy in similar situations [citation], or indications that the informant has spoken
against penal interest. [Citation.]‖ (Ibid.)
13
With respect to the type of informant, we have distinguished between those
informants who ―are often criminally disposed or implicated, and supply their ‗tips‘ . . . in
secret, and for pecuniary or other personal gain‖ and victims or chance witnesses of crime
who ―volunteer their information fortuitously, openly, and through motives of good
citizenship.‖ (People v. Ramey (1976) 16 Cal.3d 263, 268–269.) Citizen informants are
presumptively deemed reliable. (Ibid.) Further, ―[i]nformation received from sources
who are themselves the focus of pending criminal charges or investigations is inherently
suspect.‖ (People v. Campa (1984) 36 Cal.3d 870, 882.) Before a person supplying
information can be regarded as a citizen informant, the affidavit must set forth the
circumstances that justify an inference of that status. (People v. Smith (1976) 17 Cal.3d
845, 852.) A person‘s status as a citizen informant affects only the person‘s credibility,
not the sufficiency of information provided to establish probable cause. (Bailey v.
Superior Court (1992) 11 Cal.App.4th 1107, 1113.)
Further, although hearsay may be used, where the informant is untested the hearsay
has little value if the information is lacking in detail and is uncorroborated. (People v.
French (2011) 201 Cal.App.4th 1307, 1317.) On the other hand, where an informant has no
track record yet the information is set forth on the basis of personal knowledge, this may
compensate for a ―less than conclusive‖ demonstration of credibility. (Ibid.)
Corroboration is required for unverified information from an untested or unreliable
informant. ―‗Because unverified information from an untested or unreliable informant is
ordinarily unreliable, it does not establish probable cause unless it is ―corroborated in
essential respects by other facts, sources or circumstances.‖ [Citations.]‘‖ (People v.
Gotfried (2003) 107 Cal.App.4th 254, 263.) Adequate corroboration is found where
police investigation has uncovered indications of criminal activity consistent with the
informant‘s information. ―‗Even observations of seemingly innocent activity provide
sufficient corroboration if the anonymous tip casts the activity in a suspicious light.‘‖ (Id.
at p. 264.)
14
Lastly, ―The opinions of an experienced officer may legitimately be considered by
the magistrate in making the probable cause determination.‖ (People v. Deutsch (1996)
44 Cal.App.4th 1224, 1232.)
Our examination of the in camera proceedings indicates the trial court made no
effort to ascertain the reliability of the prosecution‘s confidential information. Instead, the
trial court accepted the prosecution‘s claims of reliability at face value. No percipient
witnesses were called and the prosecution relied on hearsay testimony. No other
corroborating evidence of the serious charge against defendant was presented.6 The
dangers of hearsay evidence in informant affidavits are well-known. ―Although hearsay
may be relied upon in seeking a search warrant, the hearsay has little value where the
informant is untested and the information is uncorroborated and lacking in detail.‖ (People
v. French, supra, 201 Cal.App.4th at p. 1317.)
B.
The second Abuhamra, supra, 389 F.3d 309 procedural step requires that, at a
minimum, some disclosure be made to the defendant of the ―gist‖ or substance of the
government‘s basis for seeking relief. This step is consistent with the second and third
Waller, supra, 467 U.S. 39 factors, and Waller contemplated that in some cases, the
proceedings could be completely closed to the defendant. Abuhamra, on the other hand,
mandates at least the disclosure of the substance of the prosecution‘s information. Here, as
defendant has deduced, confidential information was used in revoking his bail and
increasing the amount.
Courts have long recognized an informant privilege and the policy reasons
underlying the privilege. (People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs); McCray v.
Illinois (1967) 386 U.S. 300, 308–309 [87 S.Ct. 1056, 18 L.Ed.2d 62].) The common law
privilege to refuse disclosure of the identity of a confidential informant is codified in
Evidence Code section 1041, which provides that a public entity has a privilege to refuse to
6While it is not the basis for our reversal, we note the trial court failed to have the
witness sworn before testifying.
15
disclose the identity of an informant.7 The primary policies served by this privilege are
twofold: to encourage citizens to report crimes regardless of their motives for doing so and
to avoid inhibiting law enforcement‘s necessary use of professional informants. (McCray,
at pp. 308–309.)
The scope of the privilege is limited by its underlying purpose. Where disclosure of
the contents of a communication will not tend to reveal an informant‘s identity, the contents
are not privileged. The privilege is also limited by notions of fundamental fairness. Where
disclosure of an informant‘s identity, or the contents of his communications, is relevant and
helpful to an accused‘s defense or to a fair determination of a cause, the privilege must
yield. The trial court may order disclosure and, if the government refuses, may dismiss the
action. (Hobbs, supra, 7 Cal.4th at pp. 958–959, citing Roviaro v. United States (1956) 353
U.S. 53, 60–61 [77 S.Ct. 623, 1 L.Ed.2d 639].) Whether or not disclosure is relevant to a
defense or a fair determination of a cause turns largely on whether the informant is also a
material witness on the issue of guilt. (Hobbs, at p. 959.)
In Hobbs, supra, 7 Cal.4th 948, the court addressed a challenge to a search warrant
based upon information obtained from an informant. The information was placed under
seal in order to avoid disclosing the identity of the informant, and the trial court conducted a
hearing, a portion of which was held in camera, on defendant‘s related motions to disclose
the sealed materials, quash the search warrant and suppress any evidence seized thereunder,
traverse the warrant, and discover the identity of the confidential informant. (Id. at pp. 954–
955.) Hobbs noted that ―‗if disclosure of the contents of [the informant‘s] statement would
tend to disclose the identity of the informer, the communication itself should come within
the [informant] privilege. . . .‘‖ (Hobbs, at p. 962.) Hobbs discussed the procedure to
follow in the context of evaluating a defendant‘s access to the information underlying a
7 Evidence Code section 1041 which provides that a public entity has a privilege to
refuse to disclose the identity of an informant, and to prevent anyone else from doing so,
if the informant has disclosed a violation of law to a law enforcement officer, and the
necessity of preserving the confidentiality of his or her identity outweighs the necessity
for disclosure in the interest of justice. (Evid. Code, § 1041, subds. (a)(2), (b)(1).)
16
search warrant, principles which are no less applicable in the context of an ex parte in
camera bail hearing. Hobbs provided that with respect to the scope of materials to be made
available to the defendant, the trial court should consider whether the affidavit or any part
of it was properly sealed and whether additional portions may be redacted and divulged.
The prosecutor may be present, and defendant and his lawyer are excluded unless the
prosecutor consents to their presence. Further, defense counsel should be allowed to submit
written questions of a reasonable length, which the trial judge will then ask of any witnesses
called to testify at the in camera proceeding. As the defendant may be unable to specify
what materials the court should review in camera, the court must take it upon itself to
examine the affidavit for inconsistencies or insufficiencies regarding the showing of
probable cause, and inform the prosecution of the materials or witnesses it requires. As the
defendant‘s access to the essence of the affidavit is restricted, the trial court may also, in its
discretion, find it necessary to call other witnesses it deems necessary to rule upon the
issues. If an informant is called as a witness, steps may be taken to protect his or her
identity, including holding the in camera hearing. (Id. at pp. 972–973; accord, Abuhamra,
supra, 389 F.3d at p. 329 [―We similarly conclude that a district court presented with a
request to submit evidence ex parte should require the government to demonstrate that it
proposes to put under seal only those materials (or portions of materials) that would
genuinely be compromised by disclosure to the defendant. Every reasonable effort at
redaction should be explored. Further, the court should require the government to
demonstrate that there are no alternative means by which the government could present in
open court, or the defense could be given access to, the information that supports its
opposition to bail‖].)
Here, the trial court expressly applied Waller, supra, 467 U.S. 39 in concluding that
nothing could be revealed to defendant except that his bail had been astronomically
increased. However, as outlined in Hobbs, supra, 7 Cal.4th at pp. 972–973, steps may be
taken to safeguard the identity of informants such that they can appear before the court in
camera and present live testimony at which time the court can evaluate their credibility.
17
Here, the trial court concluded the nature of the information could not be disclosed to
defendant under any circumstances. Our review of the in camera proceedings indicates the
trial court appears to have acceded, without its own independent analysis, to the
prosecution‘s evaluation of the information that nothing could be revealed to the defendant.
Further, the court did not even consider permitting the defendant to submit questions. As a
result, the matter must be remanded for the trial court to conduct an in camera proceeding
that includes its explicated evaluation of what, if any, information can be made available to
the defendant and whether defendant should be able to submit questions that will ensure due
process while at the same time protecting confidential information. In sum, the court is to
reconsider whether any kind of disclosure can be made to defendant, or whether this case
presents the ―rarest of circumstances‖ such that the bail hearing must remain closed.8
C.
Lastly, we reject the People‘s contention that section 1289 can be read literally to
sanction ex parte bail revocation hearings on the theory that the statute‘s inclusion of a
phrase requiring mandatory notice to the prosecution can be read to imply no notice need be
given to defendant. Ordinarily, the enumeration of one item in a statute implies that the
Legislature intended to exclude others. (People v. Guzman (2005) 35 Cal.4th 577, 588.)
However, this principle is not applied if the result would be contrary to legislative intent or
when no manifest reason appears for excluding one matter and including another. (People
v. Anzalone (1999) 19 Cal.4th 1074, 1079.) Here, in light of the constitutional rights at
stake, we interpret the inclusion of mandatory notice to the prosecution to mean not that no
notice need be given to defendant, but that where a defendant seeks a reduction in bail, the
societal interest in ensuring the propriety of the proceedings and the prosecution‘s interest
in refuting or opposing the request, mandate such notice.
8Indeed, holding a hearing where these procedures are considered and used to the
extent possible will also accommodate defendant‘s corollary Sixth Amendment rights,
namely, the right to counsel and the right to confront witnesses.
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DISPOSITION
The petition for writ of habeas corpus is granted. The trial court is directed to vacate
its order of March 14, 2013 and reinstate defendant‘s bail at $90,000. Should the
prosecution desire to reinstitute proceedings to increase defendant‘s bail, the trial court is to
conduct further proceedings consistent with the views and procedural steps described in this
opinion. The original reporter‘s transcript of the March 14, 2013 hearing shall remain
under seal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
MALLANO, P. J.
CHANEY, J.
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