In re Carrillo ( 2013 )


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  • 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 309
    and 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.
    18
    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.
    19