Long

This is an appeal by the People (Pen. Code, § 1238, subd. (a)(8)) from an order dismissing an information which charged defendant with possession of heroin for sale (former Health & Saf. Code, § 11500.5). The order was entered after the People refused to disclose the identity of a confidential informant or to reduce the charge to simple possession of heroin. (Health & Saf. Code, § 11350.)

The facts adduced in support of the motion to compel disclosure of the informant were as follows: Officer Ingels of the Los Angeles Police Department received information February 3, 1973, from a confidential informant that heroin was being sold from a residence at 1030 West 38th Street by a person described only as a male Negro. The informant did not know the seller’s name. The informant was an addict who had personally purchased heroin at the location within the previous three days. The informant had supplied information to the officer for over two years and was paid for his tips. Based on information previously received from the informant, the officer had made over 12 arrests which resulted in at least five felony and several misdemeanor convictions.

Ingels did nothing with respect…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 753 OPINION This is an appeal by the People (Pen. Code, § 1238 , subd. (a)(8)) from an order dismissing an information which charged defendant with possession of heroin for sale (former Health Saf. Code, § 11500.5). 1 The order was entered after the People refused to disclose the identity of a confidential informant or to reduce the charge to simple possession of heroin. (Health Saf. Code, § 11350.) The facts adduced in support of the motion to compel disclosure of the informant were as follows: 2 Officer Ingels of the Los Angeles Police Department received information February 3, 1973, from a confidential informant that heroin was being sold from a residence at 1030 West 38th Street by a person described only as a male Negro. The informant did not know the seller's name. The informant was an addict who had personally purchased heroin at the location within the previous three days. The informant had supplied information to the officer for over two years and was paid for his tips. Based on information previously received from the informant, the…

I would reverse the order of dismissal. The prosecution was under no duty to divulge the name of the informant. ( Theodor v. Superior Court, 8 Cal.3d 77 , 88 [ 104 Cal.Rptr. 226 , 501 P.2d 234 ]; People v. Garcia, 67 Cal.2d 830 , 836-837 [ 64 Cal.Rptr. 110 , 434 P.2d 366 ].) Here, the informant could not have testified in such manner as to infer that defendant merely possessed the narcotic but did not possess it for sale. The fact that another person who was not on the premises at the time of defendant's arrest had sold narcotics to the informant at the premises where defendant was arrested gives rise to no exculpatory inference as it relates to defendant. The majority argue that an inference might be drawn that defendant *Page 759 possessed the narcotic not for sale but for personal use or only to destroy if the informer testified he had purchased contraband from a person other than defendant. I cannot follow this gossamer logic, whether it finds support in the decision of People v. Lamb, 24 Cal.App.3d 378 [ 101 Cal.Rptr. 25 ] or not. *Page 760