Opinion
A148981
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. VIVIAN DELLA BRUNT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-151988-3)
Defendant and appellant Vivian Della Brunt appeals following her conviction of possession of cocaine for sale. We affirm.
PROCEDURAL BACKGROUND
In November 2015, the Contra Costa County District Attorney filed an information charging appellant with one count of possessing cocaine for sale (Health & Saf. Code, § 11351). In April 2016, a jury found appellant guilty as charged. In July 2016, the trial court placed appellant on probation for three years. This appeal followed.
FACTUAL BACKGROUND
Prosecution Case
On September 10, 2014, at approximately 8:45 p.m., Detective Brian Hoffman of the Richmond Police Department, along with a number of other officers, executed a search warrant at a single-family residence located on Second Street in Richmond, California. Appellant was one of six individuals inside the house when the officers entered.
During the search, Detective Hoffman found in a bathroom a cloth bag, inside of which was a "press-lock" bag containing 12 smaller "press-lock" bags. Each of the smaller bags contained a white powdery substance that subsequent testing determined was cocaine salt.
Appellant led Detective Hoffman to the bag the night of the search, but her statements to the detective during the search were excluded from evidence. (See Part I, post.)
In the bedroom adjoining the bathroom where the narcotics were located, Detective Hoffman found two digital scales, a razor blade, a pair of scissors, a box of sandwich bags, and $1,479 in cash in various denominations. He also found a notepad that an expert witness identified as a "pay/owe sheet." Finally, the detective found a utility bill addressed to appellant at the Second Street residence, as well as a California identification card with appellant's name and the same address.
Later the night of the search, Detective Hoffman interrogated appellant in an interview room at the Richmond Police Department. After advising her of her Miranda rights, he asked appellant if she wanted to speak with him "about the items located in her bedroom." Appellant responded, "I'm just nickels and dimes. I just gotta do what I can to survive." Appellant admitted the cocaine found in the bathroom was hers. She told the detective she "typically purchased a quarter to a half ounce of cocaine a week," which she then packaged and sold. Appellant said she sold "hard," meaning she sold cocaine base rather than cocaine salt. Appellant admitted the bags, scissors, scales, and razor found in her bedroom were used for drug sales, and $900 to $1,000 of the cash came from selling drugs.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
After being presented a hypothetical with facts mirroring those in the present case, an expert witness opined the individual in the hypothetical possessed the cocaine for sale. Defense Case
Appellant testified that in 2014 she was a habitual user of cocaine and would consume as much as a quarter ounce per week. The cocaine the police found in her bathroom was intended for her personal use. She used the scales to weigh her purchases; she had two because one was malfunctioning. Appellant testified she is a hairstylist; the scissors found in her bedroom were for that business, and she earned the cash found in her bedroom by styling hair. The notepad in her bedroom contained only a budget for tracking her bills; the word "solid" written on the notepad referred to a t-shirt company called "Solid City." She told Detective Hoffman she sold cocaine because she was "frazzled and discombobulated," she thought agreeing with him would get her out of trouble, and she was worried about her father (who had also been detained).
Two other witnesses confirmed that appellant was a hairstylist and that she was paid in cash.
Prosecution's Rebuttal
On rebuttal, among other things, the prosecution presented evidence of a text message exchange found on appellant's phone, dated September 3, 2014 (one week before execution of the search warrant). An outgoing message asked "how much soft you want," and the response was "7 Gs."
DISCUSSION
I. Trial Court Did Not Err in Admitting Appellant's Statements at the Police Station
Appellant contends the trial court erred in admitting her statements to Detective Hoffman in an interview room at the police station, made after she received the advisements required by Miranda v. Arizona, supra, 384 U.S. 436. The trial court did not err.
A. Factual Background
In April 2016, the trial court held an Evidence Code section 402 hearing on appellant's motion to exclude the statements she made during the search of her home and at the police station. The interrogating officer, Detective Hoffman, testified about the search of appellant's home on September 10, 2014. He was the lead detective, and he was accompanied by eight to ten other officers. They all wore "tactical gear," including patches identifying them as law enforcement. The officers knocked and announced their presence and then "let [them]selves in." The police detained the four or five people present and handcuffed appellant and her father, Melvin Brunt.
A "few minutes" after entry into the house, Detective Hoffman spoke to appellant. "For privacy," he pulled her "slightly aside away from the other people detained." Other officers were a "matter of feet" away, but they did not participate in the questioning. The detective said he tried to keep his voice down in order to "[m]ake it a conversation between" appellant and himself. He asked appellant whether there was "anything illegal within the house." Appellant responded, "There's some soft, but it's not even anything, just a little." The detective understood her to be referring to cocaine salt and he asked her where it was. Appellant directed him to a bathroom that was off a bedroom in the back of the house. The detective asked if the bedroom was hers, and appellant responded, "It's my room." Appellant then directed the detective to a small cloth bag in the bathroom.
Detective Hoffman asked appellant if the cocaine in the bag belonged to her, and she said it did. Appellant was then "escorted" back to the front of the house, and Detective Hoffman continued the search. He did not use any force on appellant or make any threats or promises to her.
After the search was completed, appellant was transported to the police station in a van with Detective Hoffman and other officers. Appellant was still in handcuffs. The ride was "[u]nder ten minutes." The detective did not recall talking to appellant on the way to the station.
At the police station, about an hour after the start of the search of appellant's home, Detective Hoffman spoke to appellant in a small interview room. The detective advised appellant of her Miranda rights, reading from a card. He asked appellant if she understood each right, and appellant indicated she did. He asked her if "knowing her rights she wanted to tell [him] about the items located in the bathroom." Appellant said she was "just nickels and dimes," and she was doing "what she had to do to survive."
Detective Hoffman asked appellant whether she sold drugs, and she admitted she did. He asked her how much cocaine she purchased each week, and she said she typically bought "a quarter to a half ounce of cocaine a week." He asked if she used cocaine herself and she said "sometimes." The detective asked how much cocaine was in each small bag within the cloth bag discovered in the bathroom, and appellant replied ".3 to .4 of a gram." At the end of the interrogation, Detective Hoffman asked appellant "if she would be willing to provide information" to him, and "she said no right away." The police station interrogation lasted about 10 minutes.
The trial court ruled that appellant's unwarned statements during the search of her home were inadmissible, but her statements at the police station were admissible. The court concluded the circumstances during the first questioning were not coercive, and the two interrogations were not "a deliberate two-step avoidance or an end around Miranda." The detective testified at trial about the statements appellant made to him at the police station.
B. Legal Background
" 'In order to combat [the pressures inherent in custodial interrogation] and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights.' [Miranda v. Arizona, supra, 384 U.S. at p. 467.] A Miranda warning functions both to reduce the risk that an involuntary or coerced statement will be admitted at trial and to implement the Fifth Amendment's self-incrimination clause. [Citations.] Thus, if a suspect in custody does not receive an adequate warning effectively apprising him of his rights before he incriminates himself, his statements may not be admitted as evidence against him." (United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1151-1152 (Williams).)
In People v. Camino (2010) 188 Cal.App.4th 1359, the Fourth District summarized the law applicable to so-called "midstream Miranda warnings." (Id. at p. 1368; see also Williams, supra, 435 F.3d at pp. 1152-1158 [summarizing law regarding "admissibility of a confession obtained after a Miranda warning but preceeded by the suspect's earlier, unwarned incriminating statements"].) The court explained: "In [Oregon v. Elstad (1985) 470 U.S. 298 (Elstad)] and [Missouri v. Seibert (2004) 542 U.S. 600 (Seibert)], the United States Supreme Court discussed the admissibility of a defendant's inculpatory statements made before and after advisement of Miranda rights. [¶] Elstad held that a suspect who responds 'to unwarned yet uncoercive questioning' may later waive his rights and confess after being 'given the requisite Miranda warnings.' [Citation.] If the suspect's unwarned statement was voluntary, the 'relevant inquiry is whether, in fact, the second statement was also voluntarily made.' [Citation.] 'As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.' [Citation.] Elstad did not, however, 'condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect's will to invoke his rights once they are read to him.' " (Camino, at p. 1368; see also Williams, at p. 1153 ["under Elstad, if the prewarning statement was voluntary (or if involuntary, the change in time and circumstances dissipated the taint), then the postwarning confession is admissible unless it was involuntarily made despite the Miranda warning"].)
"In Seibert, an officer 'testified that he made a "conscious decision" to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once." ' [Citation.] Employing this 'question-first practice' [citation], the interrogating officer left the defendant alone in an interview room at the police station for 15 to 20 minutes, then 'questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating' a suggestive, accusatory remark [citation]. After the defendant confessed and was given a 20-minute break, the officer read her the Miranda warnings, resumed the questioning by mentioning their previous conversation, 'and confronted her with her prewarning statements.' " (Camino, supra, 188 Cal.App.4th at pp. 1368-1369.)
"A divided Supreme Court held the defendant's postwarning statements were inadmissible. [Citation.] Justice Souter's plurality opinion focused on whether 'it would be reasonable to find that in these circumstances the warnings could function "effectively" as Miranda requires' [citation], noting that the giving of midstream Miranda warnings 'without expressly excepting the statement just given, could lead to an entirely reasonable inference that what [the accused] has just said will be used, with subsequent silence being of no avail' [citation]. [¶] Justice Kennedy's concurring opinion . . . . observed that a deliberate two-step technique intended to violate Miranda did 'not serve any legitimate objectives' and presented inherent temptations for police abuse (such as the use of a defendant's prewarning statement to obtain an incriminating postwarning statement). [Citation.] Justice Kennedy concluded: 'I would apply a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.' [Citation.] 'If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. . . ." [Citation.] Because Justice Kennedy 'concurred in the judgment[] on the narrowest grounds' [citation], his concurring opinion represents the Seibert holding." (Camino, supra, 188 Cal.App.4th at p. 1369.)
In determining whether an interrogator used a deliberate two-step strategy, " 'courts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.' [Citation.] 'Such objective evidence would include the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements.' " (Camino, supra, 188 Cal.App.4th at p. 1370, quoting Williams, supra, 435 F.3d at pp. 1158-1159.) We review for substantial evidence the trial court's determination that Detective Hoffman did not deliberately use a two-step interrogation to circumvent Miranda. (Camino, at p. 1372; accord People v. Delgado (Oct 1, 2018, C082480) ___ Cal.App.5th ___ .)
C. Substantial Evidence Supports the Trial Court's Finding Detective Hoffman Did Not Deliberately Use a Two-Step Interrogation to Circumvent Miranda
Appellant contends "Detective Hoffman deliberately used a two-step interrogation procedure to undermine and obscure the Miranda warnings' meaning and effect." She argues the "post-warning interrogation at the police station was merely a continuation of the pre-warning interrogation that had begun at the house" because both interrogations were conducted by the same detective, occurred relatively close in time, and were related to the cocaine found at the house. We conclude substantial evidence supports the trial court's finding the detective did not deliberately use a two-step tactic. (Camino, supra, 188 Cal.App.4th at p. 1372.)
The analysis in Camino, supra, 188 Cal.App.4th 1359, is instructive. In that case, the defendant, a suspect in a shooting, was interviewed twice—first without Miranda advisements and then following the advisements less than half an hour later. (Camino, at p. 1368.) The first interview was extensive, including a range of probing questions and a "complete account" of the defendant's "actions before and after the shooting"—the officers even had the defendant draw a map of the area of the shooting. (Id. at pp. 1372-1373.) The second, post-Miranda advisement interrogation "repeated the same information already elicited in the first interview with a few extra details." (Id. at p. 1373.) In an Evidence Code section 402 hearing, one of the interrogating officers testified he did not intentionally withhold a Miranda advisement in the first interview. (Camino, at p. 1374.) The court of appeal upheld the trial court's finding the police did not use a deliberate two-step interrogation strategy. (Id. at pp. 1375-1376.) The court reasoned that, although the first interview was comprehensive and had " 'all the earmarkings of a classic custodial interrogation,' " the trial court's finding was supported by the officer's testimony denying an effort to circumvent Miranda and by the circumstance that the defendant's role in the shooting was unclear at the outset of the first interview. (Camino, at p. 1376.)
The present case does not present the factors relied upon by the court in Camino in upholding the trial court's finding of no deliberate effort to circumvent Miranda. Detective Hoffman was not asked in his hearing testimony whether he deliberately withheld Miranda warnings in questioning appellant during the search of her home, and appellant's alleged role was clear before the initial questioning. On the other hand, the factors that weighed towards a finding of deliberateness in Camino are not present in this case. The initial questioning was not comprehensive; rather, it was brief and did not even address the critical question of whether the cocaine was possessed for sale. Thus, the interrogation sequence in the present case was unlike that at issue in Seibert, which Williams described as "a two-step interrogation strategy, termed 'question-first,' that called for the deliberate with-holding of the Miranda warning until the suspect confessed, followed by a Miranda warning and a repetition of the confession already given." (Williams, supra, 435 F.3d at p. 1154.) Here, appellant did not confess to possessing the cocaine salt for sale in the first interrogation, so the second interrogation cannot be viewed as an effort to re-affirm a confession already given. (See United States v. Stewart (7th Cir. 2008) 536 F.3d 714, 722 ["the lack of overlap between the warned and unwarned statements is evidence that the interrogator did not deliberately use a two-step strategy designed to circumvent Miranda"].)
Moreover, the first questioning did not have " 'all the earmarkings of a classic custodial interrogation.' " (Camino, supra, 188 Cal.App.4th at p. 1376.) The contrast between the unwarned questioning in Seibert and that in the present case is striking. In Seibert, "[t]he unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment." (Seibert, supra, 542 U.S. at p. 616.) In the present case, the unwarned questioning did not take place in an interrogation room and Detective Hoffman did not ask numerous probing questions. Instead, he asked only a few questions calculated to expedite the process of uncovering the contraband in appellant's home. Of course, appellant's answers were predictably incriminating. But the contrast between the informal questioning during the search and the formal police station interrogation supports the trial court's finding that Detective Hoffman did not deliberately use a two-step interrogation to circumvent Miranda. (Camino, at p. 1370.)
Appellant suggests Detective Hoffman's question at the end of the second interrogation about whether she would be "willing to provide information" shows he hoped to elicit her cooperation as an informant and deliberately delayed administering Miranda warnings to aid in that effort. Appellant's argument is misplaced, because the detective only asked appellant about the possibility of providing information at the end of the second interrogation, after appellant had been advised of her Miranda rights and admitted to selling cocaine. Appellant does not explain how the delay in providing the Miranda advisement aided an effort to get her assistance as an informant. (Cf. United States v. Barnes (9th Cir. 2013) 713 F.3d 1200, 1205-1206 [concluding that officers deliberately delayed giving Miranda warnings to avoid scaring off the defendant, who they hoped would cooperate in an ongoing investigation].) --------
D. Appellant's Post-Miranda-Advisement Statements Were Voluntary
Because substantial evidence supports the trial court's finding Detective Hoffman did not deliberately use a two-step interrogation tactic, appellant's post-Miranda-advisement statements are admissible unless they were involuntary. (Camino, supra, 188 Cal.App.4th at p. 1368; see also Williams, supra, 435 F.3d at p. 1153.) Appellant contends her police station statements were involuntary because her unwarned statements during the search were the product of coercion. Under Elstad, supra, 470 U.S. at p. 310, "When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession."
"The prosecution has the burden of establishing voluntariness by a preponderance of the evidence. Whether a confession was voluntary depends upon the totality of the circumstances. We accept a trial court's factual findings, provided they are supported by substantial evidence, but we independently review the ultimate legal question." (People v. Scott (2011) 52 Cal.4th 452, 480 (Scott).)
The trial court did not err in concluding appellant's statements during the search of her home were voluntary. "In evaluating the voluntariness of a statement, no single factor is dispositive. [Citation.] The question is whether the statement is the product of an ' "essentially free and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his capacity for self-determination critically impaired" ' by coercion. [Citation.] Relevant considerations are ' "the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health." ' [Citation.] [¶] 'In assessing allegedly coercive police tactics, "[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." ' " (People v. Williams (2010) 49 Cal.4th 405, 436.) " 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence." (People v. McWhorter (2009) 47 Cal.4th 318, 347.)
The totality of the circumstances do not show coercive police tactics directed at compelling appellant to incriminate herself during the search. There is no evidence Detective Hoffman made any threats or promises; there was no prolonged questioning or repeated urging that appellant admit wrongdoing; the detective did not employ any deception or other "psychological ploys" (People v. Williams, supra, 49 Cal.4th at p. 436) to obtain a confession; and there is no evidence the detective used a threatening tone or any physical coercion. In arguing that her unwarned statements were involuntary, appellant points to the generally intimidating circumstances in which she found herself—in handcuffs, with numerous officers in "tactical" gear searching her home. But appellant cites no authority a determination of involuntariness can be based on an intimidating environment, absent any coercive police tactics actually directed at obtaining a confession. Even assuming an intimidating environment can be considered a coercive police tactic for purposes of the voluntariness inquiry, the circumstances in the present case do not show appellant's "will [was] overborne and [her] capacity for self-determination critically impaired." (Williams, at p. 436.) Accordingly, appellant's statements during the search were voluntary and there is no coercion that might have "carried over into the second confession." (Elstad, supra, 470 U.S. at p. 310.)
Because appellant's unwarned statements were voluntary, " 'The relevant inquiry is whether, in fact, the second statement was also voluntarily made.' " (Scott, supra, 52 Cal.4th at p. 477, quoting Elstad, supra, 470 U.S. at p. 318; see also People v. San Nicolas (2004) 34 Cal.4th 614, 639 [" 'A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement' "].) Appellant points to no coercive tactics that could support a finding of involuntariness as to appellant's statements during the police station interrogation. Accordingly, her statements at the police station were admissible, despite the inadmissibility of her prior unwarned statements. (Camino, supra, 188 Cal.App.4th at p. 1368; Williams, supra, 435 F.3d at p. 1153.)
II. Any Error in Admission of the Two Text Messages Was Harmless
Appellant claims the trial court erred by admitting evidence of two text messages discovered on one of appellant's cell phones. In particular, the court admitted a photograph of appellant's cell phone displaying an outgoing message asking, "How much soft u want?," and a response from "Marco" that read, "7 Gs." The messages were dated September 3, 2014.
On appeal, appellant argues the prosecution violated appellant's statutory discovery rights (§ 1054 et seq.) and the California Electronic Communications Privacy Act (§ 1546 et seq.) by not timely disclosing the text messages evidence and notifying the defense of the search of appellant's cellphone.
We need not determine whether the trial court erred in failing to find a statutory violation and in failing to exclude the text messages at trial, because there is no reasonable probability the outcome of trial would have been more favorable to appellant had the text messages been excluded. (People v. Sivongxxay (2017) 3 Cal.5th 151, 178 ["to obtain reversal of the judgment based on a violation of a state statute, a defendant must demonstrate that it is 'reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error' "].) Appellant argues "the text messages were strongly suggestive of drug sales," and she "presented a strong case for simple possession" based on her testimony she was a habitual cocaine user and her "reasonable explanations for the items found in her bedroom." However, appellant does not suggest any reason why the jury would have ignored her confession to selling cocaine. That confession, combined with all the physical evidence strongly suggestive of drug dealing (the cocaine separated into small bags, packaging material, scales, large amounts of cash, and a pay-owe sheet), was overwhelming evidence of her guilt. Appellant has not shown prejudice from any error as to the text messages evidence.
III. The Trial Court Did Not Abuse Its Discretion in Denying Disclosure of the Confidential Informant
The September 10, 2014, search of appellant's home was based on a search warrant obtained pursuant to an affidavit by Detective Hoffman. The detective's statement of probable cause explained that in August he was contacted by a confidential informant who told him a woman named "Vivian" was selling cocaine at an address on Second Street in Richmond. "Within ten (10) days" of August 21, the informant made a "controlled purchase" of cocaine base under the "direct control of RPD detectives." Detectives observed the informant enter the Second Street residence, then exit a "short time later" with cocaine base. The informant said he/she purchased the cocaine from "Vivian" and identified appellant as "Vivian" from a photograph. The informant made a second controlled buy "within ten (10) days" of September 5. On that occasion the informant purchased cocaine base from a man later determined to be appellant's father, Melvin Brunt. A magistrate issued the search warrant on September 9.
Before trial, defense counsel moved for disclosure of the identity of the confidential informant. The trial court denied the motion, reasoning, "Here we have an informant who made two purchases not on the day the search warrant was served but sometime before that. And the charged offense here is not the sale of that cocaine to the informant on either one of those days. The charged offense here is possession for sale. And here the informant was nowhere near the property at the time of the offense that occurred pursuant to the search warrant. [¶] So there -- under these facts, there is simply no ground on which the Court could find that that informant would be able to give exculpatory information."
"Under Evidence Code section 1041, subdivision (a), a public entity has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a law. The prosecution, however, 'must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.]' [Citation.] '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,' on which issue the defendant has the burden of producing 'some' evidence. [Citation.] The defendant must show that the informant was in a position to perceive ' "the commission or the immediate antecedents of the alleged crime." ' [Citation.] We review the trial court's ruling concerning the disclosure of the identity of a confidential informant under the abuse of discretion standard." (Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1276-1277.)
Appellant has not shown an abuse of discretion. The confidential informant stated he/she purchased cocaine from both appellant and her father. Appellant suggests the informant could have provided evidence "that it was actually appellant's father who sold, packaged, and controlled the cocaine" discovered in the September 10, 2014 search. However, appellant was not prosecuted for "the particular sale—or any sale—which [she] may have made to the confidential informant or which the confidential informant may have witnessed. Instead the crime for which [she] was charged and convicted was the possession of cocaine which had not yet been sold to anyone but was intended to be sold by someone at some time to someone else." (People v. Alderrou (1987) 191 Cal.App.3d 1074, 1081; accord People v. Dimitrov (1995) 33 Cal.App.4th 18, 30-31.) The informant did not purchase cocaine on the day of the search, and there is no basis to conclude the informant had any knowledge of the cocaine kept in appellant's bathroom. (See People v. Alvarez (1977) 73 Cal.App.3d 401, 407 ["there is also no indication in the record that the informant had the opportunity to see" contraband "found in closed cabinets and drawers"].) Thus, the informant "could not testify that [appellant] was not in control of the contraband at the time of the search." (People v. Saldana (1984) 157 Cal.App.3d 443, 462.) Even if the informant could testify he/she saw appellant's father with the cocaine, it would not exonerate appellant because "conviction for possession of narcotics can be predicated upon a showing of nonexclusive or joint possession." (Id. at p. 460.)
Appellant relies on Williams v. Superior Court (1974) 38 Cal.App.3d 412, and People v. Tolliver (1975) 53 Cal.App.3d 1036, for the proposition that disclosure of an informant's identity is required where the informant has seen both the defendant and another person in possession of narcotics. Although those cases also involve informants who gave information about drug sales implicating more than one person, neither case establishes the trial court abused its discretion. In Williams, the informant had been to an apartment and had seen both occupants in possession of contraband on the same day the search occurred. (Williams, at p. 416.) The court of appeal emphasized the informant's "very recent observation of contraband on those same premises" in concluding the informant "had a sufficiently proximate vantage point" to provide evidence exonerating the defendant. (Id. at p. 423; see also People v. Alvarez (1977) 73 Cal.App.3d 401, 408 [distinguishing Williams where "[t]he record shows only that the informant was at the apartment 'within the last seven days' "].) In the present case, the informant allegedly purchased cocaine from appellant within ten days of August 21, 2014—at least ten days before the September 10 search. The informant purchased cocaine from appellant's father within ten days of September 5, but necessarily prior to the September 9 issuance of the search warrant. Williams is distinguishable.
In Tolliver, supra, 53 Cal.App.3d 1036, the police received a report from an informant that the defendant and a woman were selling heroin from a house. (Id. at pp. 1039-1040.) The informant was sent to purchase heroin and he reported he purchased it from the woman, with the defendant "standing by and overseeing the transaction." (Id. at p. 1040.) The police obtained a warrant and searched the premises the same day. (Id. at pp. 1040-1041.) Thus, Tolliver is distinguishable on the same basis as Williams. Furthermore, Tolliver emphasized there was evidence the defendant was not in possession of the premises, because he said he did not live there and because documents bearing his name found in the residence bore a different address. (Id. at p. 1047.) Finally, Tolliver involved an appeal by the People following grant of motion to disclose an informant. (Id. at p. 1039.) Accordingly, Tolliver does not stand for the proposition that a trial court abuses its discretion by denying disclosure in similar circumstances.
Appellant has not shown the trial court abused its discretion in denying disclosure of the informant's identity.
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.