Filed 10/20/14 P. v. Lora CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049939

         v.                                                            (Super. Ct. No. INF1101881)

PAULINO VALDIVIA LORA,                                                 ORDER GRANTING REQUEST
                                                                       FOR MODIFICATION OF
     Defendant and Appellant.                                          OPINION; NO CHANGE IN
                                                                       JUDGMENT


                   Appellant’s request to modify our opinion filed on September 22, 2014, is
GRANTED.
                   It is ordered that the opinion filed herein on September 22, 2014, be
modified as follows: On page 2, in the first paragraph, at the end of the last sentence
beginning “The trial court sentenced,” delete the phrase “without the possibility of
parole,” so the sentence now reads:
                            The trial court sentenced Lora to a term of 82
                            years to life in prison.
          This modification does not effect a change in the judgment.




                                            FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.




                                        2
Filed 9/22/14 P. v. Lora CA4/3 (unmodified version)




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049939

         v.                                                            (Super. Ct. No. INF1101881)

PAULINO VALDIVIA LORA,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Riverside County,
Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
                   R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent
                                             *               *               *
                                             I.
                                      INTRODUCTION
              A jury convicted Paulino Valdivia Lora of the first degree murder of
Alfredo Stultz (Pen. Code, §§ 187, subd. (a), 189; count 1) and the premeditated
attempted murder of Julian Sanchez (id., §§ 187, subd. (a), 189, 664; count 2). The jury
found true allegations with respect to both counts that Lora personally and intentionally
discharged a firearm causing great bodily injury or death (id., §§ 12022.53, subd. (d),
1192.7, subd. (c)(8)), and personally used a firearm (id., §§ 12022.5, subd. (a), 1192.7,
subd. (c)(8)). With respect to count 2, the jury found true allegations that Lora personally
inflicted great bodily injury on Sanchez. (Id., §§ 12022.7, subd. (a), 1192.7,
subd. (c)(8)). The trial court sentenced Lora to a term of 82 years to life in prison without
the possibility of parole.
              The issue presented is whether the trial court erred by denying Lora’s
motion to disclose the identity of a confidential informant. Lora contends disclosure was
required under Evidence Code section 1041 because the informant would have provided
exculpatory evidence that Lora acted in self-defense. We conclude the trial court did not
err by denying Lora’s motion to disclose the identity of the confidential informant, and
therefore affirm.


                                             II.
                                          FACTS
A. Summary
              During the evening of August 2, 2011, several members of the West Drive
criminal street gang were hanging out on the lawn of the Country Hills apartment
complex in Desert Hot Springs. Among those gathered were Stultz, who was a West
Drive gang member, and Sanchez, who was a member of a gang in Imperial County. At

                                             2
some time during the evening, Lora approached the group and asked if anyone had seen
his lost dog. Lora also asked Sanchez where he was from, and Sanchez replied,
“Calecia.” Lora identified himself as “Sur Trece.” Nobody had seen the dog, and Lora
departed.
              Stultz and Sanchez followed Lora. Moments later, witnesses heard several
gunshots. Lora had shot Stultz three times, twice from behind and a third time while
Stultz lay on the ground. Lora had shot Sanchez four times, and some of the shots had
been fired while Sanchez lay on his right side on the ground. Sanchez survived, but
Stultz died from his gunshot wounds. A loaded pistol was found underneath Stultz’s
body.
              The parties stipulated: “As a teenager . . . Lora joined the Palm Springs
street gang Varrio Palmas gang. In 2006 he was charged with the killing of Sergio
Campa, another gang member. At his trial [Lora] testified about the gang and the
Mexican Mafia as well as testifying that he killed Mr. Campa in self-defense. Mr. Lora
was acquitted by the jury of all charges.”


B. Crime Scene Investigation
              On August 2, 2011 at 11:18 p.m., Desert Hot Springs Police Officer Philip
Weigle was dispatched to a shooting at the Country Hills apartment complex. When he
arrived, several people directed him to Stultz, who was lying on his back on the east side
of building 10. Two women appeared to be performing cardiopulmonary resuscitation on
him. Weigle knew Stultz to be a member of the West Drive criminal street gang.
              Weigle saw a large amount of blood coming out of a bullet hole in Stultz’s
chest. In the midst of a “chaotic” scene, Weigle checked Stultz’s vital signs. Stultz was
not breathing, and Weigle could not detect a pulse. On the sidewalk just east of Stultz
was a large trail of blood. Two types of shell casings, .45 caliber and nine millimeter,
were scattered around the general area. The wooden handle of a .32-caliber gun was

                                             3
sticking out from under Stultz’s back, in the area between his right arm and his torso.
Weigle seized the gun, removed the fully loaded magazine, pulled the slide back, and
determined no round of ammunition was chambered. The bullets inside the gun were
.32 caliber.
               A man ran to Weigle and told him, “there is another guy around the corner
who is also shot.” The other victim was Sanchez. Paramedics arrived and transported
Stultz and Sanchez to the hospital. Stultz died, while Sanchez survived but was in critical
condition.


C. Physical Evidence
               Mark McCormick, a forensic pathologist for the Riverside County
coroner’s office, performed the autopsy of Stultz. McCormick testified Stultz had
suffered three gunshot wounds. First, he had a graze wound on the back of his left
forearm. The bullet traveled from his elbow toward his wrist and was consistent with
having been inflicted from behind. A second bullet entered the back of his left hip. It
had an upward trajectory, which was consistent with Stultz having been shot from behind
by someone who was further down a hill. That bullet (a .45-caliber bullet with a fully
coppered jacket) had been recovered near Stultz’s navel.
               A third bullet entered Stultz’s chest, inward from his right nipple. That
bullet passed through the rib cage, the middle lobe of the right lung, the right atrium of
his heart, the lower lobe of his left lung, the descending thoracic aorta, and the back of his
rib cage before exiting at the left side of his back. The exit puncture of the third bullet
was consistent with Stultz having fallen after receiving the bullet in the hip and with
having been shot in the chest while on the ground. The chest wound was fatal.
               A toxicology study determined Stultz had had an ethyl alcohol level of
0.07 percent and detected the presence of cannabinoids. McCormick testified alcohol and



                                              4
marijuana are central nervous system depressants and, in general, the combination of the
two would have had a calming effect on the physiology and behavior of the user.
               Investigator Terry Sherman went to the crime scene, where he collected
eight .45-caliber shell casings, five nine-millimeter shell casings, and one spent bullet
jacket. A resident of the apartment complex found a .45-caliber shell casing in a grassy
area directly in front of his unit.
               Criminalist Michele Nichols examined ten .45-caliber cartridge casings and
five nine-millimeter Luger cartridge casings recovered from the apartment complex. She
determined that all 10 of the .45-caliber casings were fired from a single Glock pistol, but
could not determine whether the five Luger casings were fired from a single gun. In her
opinion, at least four of the five Luger casings were once held in the same magazine.
               Daniel Gregonis, a senior criminalist with the Department of Justice,
testified he received six blood samples taken from different locations along the blood trail
leading to, and continuing past, Stultz’s body. All six matched Sanchez’s DNA profile.


D. Witness Testimony
               Sylvia Nuno testified that in the evening on August 2, 2011, she and
Sanchez walked to the Country Hills apartment complex to get some marijuana. Stultz
arrived about 10 minutes later. A group of people was “hanging out” at the apartment
complex, and some had been drinking beer. At some point, a bald man wearing a black
Oakland Raiders jersey walked up and said he was looking for his dog. Nuno was not
sure if the man was Lora. Police officers had shown her a photographic lineup and asked
her to circle the photograph of the man who was looking for his dog. Although the
testimony is somewhat unclear, it appears she circled Lora’s photograph.
               Nuno testified the man looking for his dog seemed angry. The man asked
Sanchez where he was from. Sanchez said he was from Calexico and asked, “[w]here are
you from?” The man responded, “Sur Trece,” and walked away with a “fat” Hispanic

                                              5
     1
girl. Sanchez was not angry, but it appeared to Nuno he was dumbfounded about what
had happened. Nuno did not see anyone shake hands and did not remember seeing a little
boy with the man. In a police interview, Nuno had stated that when the man looking for
his dog approached, all the men in the area stood up, and Sanchez started “getting crazy.”
               A few minutes later, Sanchez and Stultz walked off in the same direction in
which the man had gone. Neither Sanchez nor Stultz appeared angry. Soon thereafter,
Nuno heard gunshots. As Nuno started to leave, she saw Sanchez, who was “full of
blood,” running toward her. Sanchez told Nuno he had been shot, then dropped to the
ground. She grabbed Sanchez’s cell phone out of his pocket and dialed 911. She
testified she did not see Sanchez with a gun that day.
               Rachel Martinez testified that on August 2, 2011, she was at the apartment
complex in Desert Hot Springs visiting a friend. At some point, Sanchez arrived with
Nuno, and, eventually, Stultz arrived too. A man wearing an Oakland Raiders jersey
stopped by with a woman and a toddler. They introduced themselves, and the man in the
jersey said he was looking for his dog. He did not seem angry and Martinez thought she
saw everyone shake hands. About five minutes later, the man left. No one appeared
angry. Sanchez and Stultz talked for a bit, and then wandered off in the direction in
which the man looking for his dog had gone. Martinez next heard about 13 gunshots.
               Juan Rodriguez testified that in August 2011, he was living in the Country
Hills Apartments next door to either Lora or his mother. At around 11:00 p.m. on
August 2, 2011, he heard two sets of gunshots. One set was louder than the other, as
though each set of gunshots had been fired by a different caliber firearm. Just after
hearing the gunshots, Rodriguez looked out of his apartment window and saw Lora
running toward the street while holding what appeared to be a dark-colored
semiautomatic gun in his hand. He was wearing black shorts, a black Oakland Raiders

 1
     At that time, Lora’s wife was pregnant.

                                               6
jersey, and gloves. Another man wearing a light blue polo shirt and white shoes was
running behind him.
              Matt Wallace testified that in August 2011, he was living in the Country
Hills Apartments with his wife and two children. On August 2, 2011, he heard some
gunshots. After the first set of shots ceased and there was silence, he looked out his
window and saw a man, later identified as Lora, fire about five shots at someone lying on
the ground in a fetal position. Wallace did not see anyone else outside at the time. After
another period of silence, Wallace stepped outside and saw people run up to the bushes in
front of his apartment. Wallace noticed that somebody was lying in front of the bushes.
A woman was smacking that person’s face and yelling, “Peanut, wake up.” One of the
people running up to the bushes was a man holding a Glock nine-millimeter
semiautomatic handgun with the slide locked back. Two to three minutes later, Wallace
heard more gunshots off in the distance.
              Wallace’s wife (ex-wife at the time of trial) testified that on August 2,
2011, she heard about seven gunshots. A minute or two later, she heard about seven
more shots from what sounded like a different location. She tried to administer
cardiopulmonary resuscitation to the victim on the ground near her house, but he did not
respond.
              Sanchez, who testified under a grant of immunity, admitted he was a gang
member from Imperial County. On August 2, 2011, he was in Desert Hot Springs
visiting his mother and went to the Country Hills Apartments to be tattooed. Stultz,
whom Sanchez had known for a long time, was at the apartment complex that evening.
At some point, a man came by looking for a dog. Several people introduced themselves
and shook hands with the man, and he left. Sanchez claimed the man was by himself.
Sanchez did not remember telling a detective that the man was with a woman who was
“kind of chunky.” According to Sanchez, no one was angry.



                                             7
              At some point, Sanchez got shot in his left arm, his back, the left side of his
neck, and his left side. When he was shot through the neck and through the side, he was
lying on the ground on his right side.
              Sanchez at first refused to identify Lora in court. When confronted with the
fact that he had previously spoken to police and identified Lora as the shooter, Sanchez
claimed that he only did so because he was “[m]edicated up.” Sanchez explained it
would not be safe for him to testify against Lora because, in gang culture, there are
consequences for testifying in court. The prosecutor asked Sanchez what it meant to
have “paper” on somebody. Sanchez replied, “[i]t’s all bad,” and “[i]t means bad.” He
testified that if there were a transcript of him testifying against somebody, or a police
report showing that he identified someone who committed a crime, the result would be
that he would have a “paper.”
              Sanchez feigned memory loss regarding statements he had made previously
to police. After being confronted with the fact that he probably already had “paper” on
him for talking to the police, Sanchez conceded Lora was the man who had approached
looking for his dog. He also made a gesture toward Lora in court and said: “He killed
my homie. I’m already a snitch.” Sanchez also testified he did not see Stultz do anything
that would justify being shot.
              Desert Hot Springs Police Detective Raul Sandoval testified he spoke with
Sanchez on August 10, 2011 in the intensive care unit of Desert Regional Medical
Center. Sanchez initially did not want to offer much information. After Sandoval proved
to Sanchez that Stultz had died, Sanchez revealed he had gone to the Country Hills
Apartments with Nuno to get some marijuana. A man, whom Sanchez later identified
from a photographic lineup as Lora, walked up with a short, chubby woman asking about
a dog. Sanchez told Sandoval that Lora was wearing an Oakland Raiders jersey and
dark-colored shorts or trousers with white socks. Sanchez and Lora exchanged
descriptions of their gang alliances and shook hands. Sanchez and Stultz (whom Sanchez

                                              8
referred to as Alfred or “P,” which stood for Peanut) then walked around the apartments
to talk to Lora. As Sanchez and Stultz walked up to Lora, he pulled out a gun, took a step
back, and started shooting. Sanchez denied that he or Stultz was carrying a gun. Sanchez
told Sandoval that Stultz was three to five feet away from Lora when Lora started
shooting.
              Sandoval interviewed Sanchez again on August 25, 2011. A recording of
that interview was played for the jury. In the interview, Sanchez stated that he did not
have a gun on the night of August 2, 2011. He stated he and his friend went to the
apartment complex to get some marijuana. A man walked up, looking for his dog.
Sanchez had never seen this man before. The man shot Sanchez first. Sanchez looked
over and saw Stultz on the ground. Sanchez ran over to Stultz and told him to get up, but
Stultz was dying. Sanchez then jumped a brick wall and found his friend, Nuno.
              Lora’s son, I.L., testified at trial. He was five years old at the time of the
shootings. I.L. testified that on the night of August 2, 2011, he lost his dog and went
looking for him. He saw his daddy shoot people who were standing next to each other.
I.L. testified both of the other men had guns and the other men took their guns out first.
After the shooting, I.L. and his parents drove to Mexico.
              Denise Moore, from the department of children’s services, interviewed I.L.
on August 15, 2011. A video of that interview was played for the jury. During the
interview, I.L. stated that on the night of August 2, 2011, he and Lora were looking for
their dog and some boys came. One boy (the bald one who did not die) pulled out a gun
first. Then, his dad pulled a gun from his pocket. I.L. initially stated the other man had
fired first, then his dad then “clocked it” and started shooting. Later, I.L. said his dad was
the first person to fire a gun. When I.L. and his mother heard the shots, they ducked.




                                              9
Later, some guys came to the home of I.L.’s grandmother with guns and started shooting
                2
at the house.
                    The next time I.L. saw his dad was at his dad’s brother’s house. His dad
put on a different shirt and a hat. At some point, Lora’s brother took them to Mexico and
left them there. Lora threw his gun in the desert in Mexico and had thrown the bullets
into the street after cleaning them with a napkin. Lora told I.L. that the reason he shot the
other guys was that they had “come up on him and they pulled out a gun.”


E. Lora’s Interview
                    Eight days after the shooting, Lora was apprehended while crossing back
into the United States from Mexico with his wife and son. Lora agreed to speak with the
police, and his interview was recorded and played for the jury. During the interview, he
denied any involvement in the shooting. During the execution of a search warrant at the
home of Lora’s brother’s house, officers found a picture of Lora wearing a black Oakland
Raiders jersey.


F. Defense Evidence
                    Enrique Tira, a licensed private investigator, testified as an expert for the
defense. He testified that once a gang member is labeled a “snitch” or a “rat,” the gang
member is no longer welcome in any gang. Tira explained the term “paperwork” means
there is documentation to show “you are a snitch or you’ve cooperated with law
enforcement in one fashion or another.” The most common way for paperwork to be
created is by the subject testifying in court, “[t]hat in itself creates paperwork, which is
the court papers, which is in plain black and white.” Tira testified paperwork creates a

 2
   The parties stipulated that within two hours of the shooting at the Country Hills
Apartments on August 2, 2011, two unidentified men approached the home of Lora’s
parents in Desert Hot Springs and fired gunshots at the front door.

                                                   10
“green light” or “target” so that the subject of the paperwork “can be taken care of
whether it be just by a beat down, a severe beat down, or even killed.” Gangs are very
careful not to act “unless there is actual paperwork . . . you can see,” such as a trial
transcript, minute order, or other public record. In Tira’s opinion, paperwork was created
on Lora when he testified in a prior case about the Mexican Mafia. Based on a
hypothetical mirroring the facts of this case, Tira testified that Sanchez and Stultz were
acting on paperwork and intended to seriously hurt or kill Lora.
              The transcript of Lora’s testimony in the prior trial was not generated by
the court reporter until July 12, 2012, nearly a year after the charged offenses in this case
occurred. The minute order documenting the fact Lora had testified would not have
included the substance of his testimony. According to Tira, paperwork on Lora
nonetheless could have been created when he took the stand and testified.
              Investigator Ryan Monis of the Riverside County District Attorney’s Office
stated that Lora’s testimony in the prior trial placed Lora in a position in which “he is not
going to be looked upon in a positive light” by Varrio Palmas gang members. The person
Lora killed was a Varrio Palmas gang member. But, in Monis’s opinion, if Lora had
paperwork, he never would have approached the West Drive members in an attempt to
find his missing dog, and would not have “hit[] up” another gang member (i.e., Sanchez)
by asking where he was from. Monis had not seen any evidence that Lora had been
“green-lighted for execution.” Since 2005, Monis had seen over 20 legitimate “hit lists”
from the Riverside County area and had not seen Lora’s name or gang moniker on any
list.
              On August 17, 2011, Monis and another district attorney investigator
contacted a confidential informant. The informant told Monis that on the night of the
shooting, Stultz had a gun. The informant said Stultz had learned, while in prison, that
Lora had “a snitch rap.” On the night of the shooting, Lora went looking for his lost dog
and “bumped into” Stultz and Sanchez (recently released from prison). Sanchez wanted

                                              11
to “hit . . . up” Lora and question him about “his paperwork.” Monis believed the
informant accurately provided information the informant knew personally or had learned
from others. Monis testified that Stultz had once confronted Lora about the “snitch jacket
information,” but nothing had happened to him as a consequence.


                                           III.
                                       DISCUSSION
A. Lora’s Motion to Discover the Identity of the Confidential Informant
             Before trial commenced, Lora made a motion to discover the identity of the
confidential informant. Attached to the motion was a report by Monis, who had talked
with the informant. The relevant paragraphs of the report state:
             “The Informant indicated that he/she attended Stultz’[s] funeral the
previous day with fellow members of the West Drive Locos criminal street gang, which
he/she is an active member of. The Informant indicated that during the funeral, other
members of the gang, which he/she would not identify, were talking about the shooting
that led to Stultz’[s] death. The Informant said that the shooter Paulino ‘Psycho’ Lora
was the shooter and the cops had the right guy in custody. The Informant said Lora who
was a friend of various members of West Drive in the past had a ‘Snitch’ []rap on him,
discovered by Stultz a couple of years ago when Stultz was in prison. The Informant said
Lora had ‘paperwork’ on him. The Informant said since Lora was a past friend of many
members of West Drive including Stultz, nothing was done other than WDL members not
continuing to hang around Lora. The informant said Stultz once confronted Lora [about]
the ‘paperwork’, but nothing serious ever happened with that confrontation.
             “Informant said on the night of the shooting, Lora was out looking for his
pit bull. The Informant said that Stultz was at the complex with Sanchez who had just
gotten out of prison. During that time, Lora apparently bumped into Stultz and Sanchez.
Sanchez at some point realized who Lora was and heard about his ‘paperwork’ and

                                            12
wanted to hit him up and question him about it. Shortly after the confrontation the
shooting started and Sanchez was shot first. Lora then shot Stultz who fell to the ground,
ultimately killing him.
              “I asked the Informant if he was aware who else from West Drive was at
the complex at the time of the shooting. The Informant said from what he/she heard it
was Eulisez ‘Doser’ Rodriguez, Robert ‘Lil Mono’ Parra and Alejandro ‘Bandit’ Chavez.
The Informant said he/she heard that Stultz had a gun, but was not aware if Sanchez had a
gun. The Informant said other than Lora shooting at Stultz and Sanchez, he/she was
unaware of anyone else shooting a gun.
              “The information provided by this informant was due to conversation
he/she overheard and he/she was not present at the time of the shooting. Disclosure of
this informant’s identity would put his or her safety at risk, which could result in serious
bodily injury or death from others who disclosed this information to him/her.”
              Lora’s trial counsel argued: “This is a self-defense case against persons
who were members of that criminal street gang. So we are requesting discovery of the
name of that person. They [sic] may or may not talk to us, but we would like the
opportunity to talk to that person to discover evidence that would be exculpatory to my
client.”
              The trial court denied the motion because “[t]he informant is not a
percipient witness to the incident. The informant is only relating what certain gang
members, who[m] he refused to identify, told him about the circumstances of the event.
It does amount to speculation. The court can’t find that the informant is a material
witness on the issue of guilt.”


B. Evidence Code Section 1041 and Standard of Review
              Evidence Code section 1041 permits a public entity to refuse to disclose the
identity of an informant who has furnished information in confidence to a law

                                             13
                     3
enforcement officer. The prosecution must disclose the identity of an informant who is a
material witness or dismiss the charges. (People v. Lawley (2002) 27 Cal.4th 102, 159.)
“An informant is a material witness if there appears, from the evidence presented, a
reasonable possibility that [the informant] could give evidence on the issue of guilt that
might exonerate the defendant.” (Ibid.) The defendant bears the burden of producing
some evidence showing the informant might be a material witness (ibid.) and this
showing “‘must rise above the level of sheer or unreasonable speculation’” to reach “‘at
least the low plateau of reasonable possibility’” (People v. Luera (2001) 86 Cal.App.4th
513, 526). “The defendant must show that the informant was in a position to perceive
‘“the commission or the immediate antecedents of the alleged crime.”’” (Davis v.
Superior Court (2010) 186 Cal.App.4th 1272, 1276-1277.)
              We review the trial court’s ruling on the disclosure of the identity of a
confidential informant under the abuse of discretion standard. (Davis v. Superior Court,
supra, 186 Cal.App.4th at p. 1277.)


C. The Trial Court Did Not Err by Denying Lora’s Motion.
              Lora did not meet his burden below of showing there was a reasonable
possibility the confidential informant could give exonerating evidence on the issue of
guilt. Monis’s report showed the informant was not a percipient witness. Instead, the
informant’s knowledge about the shootings was gained by overhearing statements made


 3
    As relevant here, Evidence Code section 1041, subdivision (a) provides: “(a) Except
as provided in this section, a public entity has a privilege to refuse to disclose the identity
of a person who has furnished information as provided in subdivision (b) purporting to
disclose a violation of a law of the United States or of this state or of a public entity in
this state, and to prevent another from disclosing the person’s identity, if the privilege is
claimed by a person authorized by the public entity to do so and either of the following
apply: [¶] . . . [¶] (2) Disclosure of the identity of the informer is against the public
interest because the necessity for preserving the confidentiality of his or her identity
outweighs the necessity for disclosure in the interest of justice.”

                                              14
at Stultz’s funeral. The report stated, “[t]he information provided by this informant was
due to conversation he/she overheard and he/she was not present at the time of the
shooting.” Thus, the informant could not have given exonerating evidence because the
informant’s testimony on the issue of guilt would have been inadmissible hearsay.
              Lora posits the confidential informant’s testimony would have been
admissible as statements against penal interest, but that, at best, is sheer speculation.
Lora also argues disclosure of the informant’s identity might have led to the discovery of
admissible exculpatory evidence. But that is not the standard. The standard is whether
there was a reasonable possibility the confidential informant could give exonerating
evidence.
              Lora contends the denial of his motion to reveal the identity of the
confidential informant violated his rights under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution. The prosecution has “a constitutional
duty to turn over exculpatory evidence that would raise a reasonable doubt about the
defendant’s guilt.” (California v. Trombetta (1984) 467 U.S. 479, 485.) However, under
federal law, the government has a privilege to withhold from disclosure the identity of
persons who provide information about violations of law to law enforcement officers.
(Roviaro v. United States (1957) 353 U.S. 53, 59.) This privilege gives way “[w]here 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.” (Id. at pp. 60-61.) The informant’s privilege does not violate the Sixth
Amendment or the due process clause of the Fourteenth Amendment to the United States
Constitution. (McCray v. Illinois (1967) 386 U.S. 300, 312-313.)
              Here, disclosure of the confidential informant’s identity would not have
been relevant or helpful to Lora’s defense, was not essential to a fair determination, and
would not have raised a reasonable doubt about Lora’s guilt. As we have explained, the
confidential informant was not a percipient witness, was not present when the shootings

                                              15
occurred, and gained his or her information entirely by overhearing conversations at
Stultz’s funeral. Thus, the confidential informant could not have offered admissible
evidence on the issue of guilt. Through Monis’s testimony, the jury was told about the
confidential informant and the contents of the report. The prosecution did nothing to
prevent Lora’s trial counsel from conducting an investigation and speaking to those
persons who had attended Stultz’s funeral and who might have had relevant and
admissible exculpatory testimony. As our explication of the facts and evidence at trial
demonstrates, Lora was fully able to present his defense that Stultz and Sanchez set out to
attack him because he had “paperwork” and he shot Stultz and Sanchez in self-defense.


                                           IV.
                                      DISPOSITION
              The judgment is affirmed.




                                                 FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.




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