Karmelich

Defendants were jointly charged with possession of heroin, in violation of section 11350 of the Health and Safety Code. After a trial by juiy, they were found guilty as charged and sentenced to state prison. They have appealed; we affirm.

On this appeal, defendants contend: (1) That the trial court erred in denying their motion for the identity of an informant; and (2) that the evidence does not support the verdicts of guilt. We reject both contentions.

I

Based on an affidavit stating that the officer had received information both from a tested and from an untested confidential informant, the police obtained a search warrant to search a motel room occupied by the defendants. The untested informant had stated that he had been inside the room and there purchased heroin from the defendants. Defendants duly moved to obtain the identity of the untested informant. The motion was denied. We see no error.

The theory of the defense is that the informant might have testified that only one of the defendants was involved in the sale to him, thus exonerating the other defendant, or that the informant might identify a third person as the seller. However, the record is clear that…

I dissent.

I disagree with the majority’s holding that the trial court did not err in denying defendants’ motions for the identity of an untested informer. The majority’s position seems to be that defendants were not entitled to disclosure of the identity of this informer because sufficient evidence was presented from which the trier of fact could conclude that the two defendants were jointly in control of the motel room involved and its contents. The majority takes the view that, in a case in which defendants are charged only with possession of narcotics, the only matter which the prosecution needs to prove is that the defendants had control of the premises. I do not believe this to be the law.

The law relating to a defendant’s right to disclosure of the identity of an informer is well established. The rule can be simply stated: If it appears that an informer is a material witness on the issue of defendant’s *457 guilt or innocence and defendant seeks disclosure of the informer’s identity, the prosecution must either disclose such identity or incur dismissal of the action. (People v. Hunt (1971) 4 Cal.3d 231, 239 [ 93 Cal.Rptr. 197 , 481 P.2d 205 ].) In such a situation,…

KINGSLEY, Acting P.J.

Defendants were jointly charged with possession of heroin, in violation of section 11350 of the Health and Safety Code. After a trial by jury, they were found guilty as charged and sentenced to state prison. They have appealed; we affirm.

On this appeal, defendants contend: (1) That the trial court erred in denying their motion for the identity of an informant; and (2) that the evidence does not support the verdicts of guilt. We reject both contentions.

(1) Based on an affidavit stating that the officer had received information both from a tested and from an untested confidential informant, the police obtained a search warrant to search a motel room occupied by the defendants. The untested informant had stated that he had been inside the room and there purchased heroin from the defendants. Defendants duly moved to obtain the identity of the untested informant. The motion was denied. We see no error.

The theory of the defense is that the informant might have testified that only one of the defendants was involved in the sale to him, thus exonerating the other defendant, or that the informant might identify a third person as the seller. However, the…