Opinion
THOMPSON, J.
In the case at bench, defendant William Michael Dukes has appealed from a judgment of conviction of possession of heroin based upon his plea of guilty. Defendant Lily Coleman has appealed from a judgment of conviction of the same offense entered after a waiver of jury trial and submission of the matter upon the transcript of the preliminary hearing with supplementing testimony.
The Dukes appeal concerns primarily the issue of that defendant’s right to withdraw his guilty plea in light of the plea’s having been entered with the erroneous understanding that a certificate of probable cause issued by the trial court would preserve, as an issue on appeal, the propriety of a trial court order denying Dukes’ motion for the disclosure of the identity of an informer. The Coleman appeal involves primarily the issue of the effect of the 1969 amendment adding subdivision (d) to Evidence Code section 1042. The appeal concerns the consequences of the amendment to the burden and quantum of proof necessary to establish that failure to disclose the identity of an informer will deny a defendant a fair trial.
Bound by the rule of People v. DeVaughn (1977) 18 Cal.3d 889 [135 Cal.Rptr. 786, 558 P.2d 872] (see also People v. Meals (1975) 49 Cal.App.3d 702 [122 Cal.Rptr. 585] and People v. Brown (1971) 18 Cal.App.3d 1052 [96 Cal.Rptr. 476]), we conclude that the Dukes judgment must be reversed and the matter returned to the trial court so that Dukes may be permitted to withdraw his plea of guilty. Noting that the statutory purpose of Evidence Code section 1042, subdivision (d), is not served by a process which in court and in camera determines that a defendant will not be denied a fair trial by nondisclosure of an [292]*292informer’s identity based upon a record consisting of: (1) testimony which discloses that the informer is a material witness to the issue of guilt; (2) hearsay evidence that the informer incriminated the defendant; and (3) opinion testimony to the effect that the informant’s testimony will not aid the defense, we reverse the Coleman judgment.
Dukes Appeal
After a preliminary hearing, Dukes was held for trial in the superior court upon the charge of possession of heroin for sale. His motions to suppress evidence and for disclosure of the identity of an informer having been denied, Dukes negotiated a plea bargain with the prosecution.
By the terms of the bargain, Dukes agreed to plead guilty to the included offense of simple possession of heroin. The prosecution agreed to that plea. With the acquiescence of the prosecutor, Dukes’ counsel informed the court that the bargain included the preservation of Dukes’ right “to appeal the denial of the request for the informant.” The trial judge responded: “[t]he record can indicate the representations you are making. As far as the legal effect of it, that will be up to the Court of Appeal. An appeal from a guilty plea requires a certificate .... And if you file the appropriate document the Court will consider that certificate.” Defense counsel answered: “Fine, Your Honor.”
The trial court issued its certificate purporting to permit an appeal from the judgment, raising the issue of the propriety of the trial court action denying Dukes’ motion for disclosure of the identity of the informer.
Where a defendant’s plea is “induced by misrepresentations of a fundamental nature” such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. (People v. DeVaughn, supra, 18 Cal.3d 889, 896; see also People v. Meals, supra, 49 Cal.App.3d 702, 710; People v. Brown, supra, 18 Cal.App.3d 1052, 1055.)
Here the bargain was one beyond the power of the trial court. “Issues cognizable on an appeal following a guilty plea are limited to issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ resulting in the plea. [Citations.] The issuance of a certificate of probable cause pursuant to [Penal Code] section 1237.5 does not operate to expand the grounds [293]*293upon which an appeal may be taken as that section relates only to the ‘procedure in perfecting an appeal from a judgment based on a plea of guilty.’ ” (People v. DeVaughn, supra, 18 Cal.3d 889, 895-896.) “An order denying a motion to disclose the identity of an informant is not subject to review on appeal after the defendant has entered a plea of guilty.” (People v. Castro (1974) 42 Cal.App.3d 960, 963 [117 Cal.Rptr. 295].)
Hence Dukes’ plea of guilty was induced by a material mistake in which the trial court participated so that the judgment based upon the plea must be reversed and the matter remanded to the trial court with instructions to permit Dukes to withdraw the plea. Cases such as People v. Castro, supra, 42 Cal.App.3d 960, cited by the prosecution for a contrary result, are not apposite. In those decisions, the right to review on appeal of a pre-judgment order was not encompassed in the plea bargain.
Dukes contends, in addition, that a search which disclosed the contraband which he is charged with possessing was illegal. It is sufficient for our purpose here to note that the search is validated by probable cause to arrest Dukes in the apartment where the heroin was found, much of the contraband was in plain view when the door to the apartment was opened in response to the knock of the police, and the search was with consent.
Coleman Appeal
Facts'. On September 16, 1975, Los Angeles Police Officer Gregory Hancock received information from an “untested informant” that the informant had witnessed known “drug users make a buy . . . at. . . Lily Coleman’s residence, 1422 East 112th Street . . . .” One transaction involved a “dime bag” of heroin. The informant told Hancock that he saw on the kitchen table of the Coleman residence a sifter, heroin, lactose, measuring spoons, an Excedrin bottle containing balloons, and an automatic pistol. The informant said that Coleman had balloons inside her purse.
In Hancock’s presence, the informant dialed a number subsequently established to be Coleman’s. With the informant’s permission, Hancock listened to the conversation. A woman answered the phone. The informant asked if the “stuff” was still there. The woman, whose voice Hancock later recognized as Coleman’s, answered, “Yes, we still have [294]*294the stuff.” The informant asked to speak to “Duke.” Dukes, whose voice Hancock was later able to identify, picked up the phone and said to the informant, “I still have the dew here, come on over.”1
Hancock, in the company of several other officers, went to Coleman’s residence. Hancock went to the rear door. In response to his knock, the door was opened by Dukes. Through the doorway, Hancock saw on a kitchen table a brown bottle containing a powdery substance, a jar containing white powdeiy substances, measuring spoons, funnels, balloons, a sifter, an Excedrin bottle, and a lady’s purse.
Addressing Coleman and Dukes, Hancock asked who paid the rent on the apartment. Coleman stated that she did. Hancock asked for permission to search.
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Opinion
THOMPSON, J.
In the case at bench, defendant William Michael Dukes has appealed from a judgment of conviction of possession of heroin based upon his plea of guilty. Defendant Lily Coleman has appealed from a judgment of conviction of the same offense entered after a waiver of jury trial and submission of the matter upon the transcript of the preliminary hearing with supplementing testimony.
The Dukes appeal concerns primarily the issue of that defendant’s right to withdraw his guilty plea in light of the plea’s having been entered with the erroneous understanding that a certificate of probable cause issued by the trial court would preserve, as an issue on appeal, the propriety of a trial court order denying Dukes’ motion for the disclosure of the identity of an informer. The Coleman appeal involves primarily the issue of the effect of the 1969 amendment adding subdivision (d) to Evidence Code section 1042. The appeal concerns the consequences of the amendment to the burden and quantum of proof necessary to establish that failure to disclose the identity of an informer will deny a defendant a fair trial.
Bound by the rule of People v. DeVaughn (1977) 18 Cal.3d 889 [135 Cal.Rptr. 786, 558 P.2d 872] (see also People v. Meals (1975) 49 Cal.App.3d 702 [122 Cal.Rptr. 585] and People v. Brown (1971) 18 Cal.App.3d 1052 [96 Cal.Rptr. 476]), we conclude that the Dukes judgment must be reversed and the matter returned to the trial court so that Dukes may be permitted to withdraw his plea of guilty. Noting that the statutory purpose of Evidence Code section 1042, subdivision (d), is not served by a process which in court and in camera determines that a defendant will not be denied a fair trial by nondisclosure of an [292]*292informer’s identity based upon a record consisting of: (1) testimony which discloses that the informer is a material witness to the issue of guilt; (2) hearsay evidence that the informer incriminated the defendant; and (3) opinion testimony to the effect that the informant’s testimony will not aid the defense, we reverse the Coleman judgment.
Dukes Appeal
After a preliminary hearing, Dukes was held for trial in the superior court upon the charge of possession of heroin for sale. His motions to suppress evidence and for disclosure of the identity of an informer having been denied, Dukes negotiated a plea bargain with the prosecution.
By the terms of the bargain, Dukes agreed to plead guilty to the included offense of simple possession of heroin. The prosecution agreed to that plea. With the acquiescence of the prosecutor, Dukes’ counsel informed the court that the bargain included the preservation of Dukes’ right “to appeal the denial of the request for the informant.” The trial judge responded: “[t]he record can indicate the representations you are making. As far as the legal effect of it, that will be up to the Court of Appeal. An appeal from a guilty plea requires a certificate .... And if you file the appropriate document the Court will consider that certificate.” Defense counsel answered: “Fine, Your Honor.”
The trial court issued its certificate purporting to permit an appeal from the judgment, raising the issue of the propriety of the trial court action denying Dukes’ motion for disclosure of the identity of the informer.
Where a defendant’s plea is “induced by misrepresentations of a fundamental nature” such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. (People v. DeVaughn, supra, 18 Cal.3d 889, 896; see also People v. Meals, supra, 49 Cal.App.3d 702, 710; People v. Brown, supra, 18 Cal.App.3d 1052, 1055.)
Here the bargain was one beyond the power of the trial court. “Issues cognizable on an appeal following a guilty plea are limited to issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ resulting in the plea. [Citations.] The issuance of a certificate of probable cause pursuant to [Penal Code] section 1237.5 does not operate to expand the grounds [293]*293upon which an appeal may be taken as that section relates only to the ‘procedure in perfecting an appeal from a judgment based on a plea of guilty.’ ” (People v. DeVaughn, supra, 18 Cal.3d 889, 895-896.) “An order denying a motion to disclose the identity of an informant is not subject to review on appeal after the defendant has entered a plea of guilty.” (People v. Castro (1974) 42 Cal.App.3d 960, 963 [117 Cal.Rptr. 295].)
Hence Dukes’ plea of guilty was induced by a material mistake in which the trial court participated so that the judgment based upon the plea must be reversed and the matter remanded to the trial court with instructions to permit Dukes to withdraw the plea. Cases such as People v. Castro, supra, 42 Cal.App.3d 960, cited by the prosecution for a contrary result, are not apposite. In those decisions, the right to review on appeal of a pre-judgment order was not encompassed in the plea bargain.
Dukes contends, in addition, that a search which disclosed the contraband which he is charged with possessing was illegal. It is sufficient for our purpose here to note that the search is validated by probable cause to arrest Dukes in the apartment where the heroin was found, much of the contraband was in plain view when the door to the apartment was opened in response to the knock of the police, and the search was with consent.
Coleman Appeal
Facts'. On September 16, 1975, Los Angeles Police Officer Gregory Hancock received information from an “untested informant” that the informant had witnessed known “drug users make a buy . . . at. . . Lily Coleman’s residence, 1422 East 112th Street . . . .” One transaction involved a “dime bag” of heroin. The informant told Hancock that he saw on the kitchen table of the Coleman residence a sifter, heroin, lactose, measuring spoons, an Excedrin bottle containing balloons, and an automatic pistol. The informant said that Coleman had balloons inside her purse.
In Hancock’s presence, the informant dialed a number subsequently established to be Coleman’s. With the informant’s permission, Hancock listened to the conversation. A woman answered the phone. The informant asked if the “stuff” was still there. The woman, whose voice Hancock later recognized as Coleman’s, answered, “Yes, we still have [294]*294the stuff.” The informant asked to speak to “Duke.” Dukes, whose voice Hancock was later able to identify, picked up the phone and said to the informant, “I still have the dew here, come on over.”1
Hancock, in the company of several other officers, went to Coleman’s residence. Hancock went to the rear door. In response to his knock, the door was opened by Dukes. Through the doorway, Hancock saw on a kitchen table a brown bottle containing a powdery substance, a jar containing white powdeiy substances, measuring spoons, funnels, balloons, a sifter, an Excedrin bottle, and a lady’s purse.
Addressing Coleman and Dukes, Hancock asked who paid the rent on the apartment. Coleman stated that she did. Hancock asked for permission to search. Coleman responded in the affirmative and added, “and everything else that you can find you can take.” Both defendants were then arrested, it being Hancock’s opinion that the items on the table established that defendants were in possession of heroin for purposes of sale.
Heroin was found in the purse which also contained Coleman’s identification cards. Her defense was to the effect that Dukes had placed the heroin in the purse without Coleman’s knowledge.
Proceedings in the trial court: At their preliminary hearing and again at trial, Coleman, along with Dukes, moved for disclosure of the identity of the informer. Hancock refused to reveal the informant’s identity and claimed the privilege against disclosure provided in Evidence Code section 1041. In each instance, the court conducted an in camera hearing pursuant to subdivision (d) of Evidence Code section 1042.
Hancock was the only witness at the in camera hearings. The informant, having told Hancock that he would under no circumstances appear in court even if his appearance were secret and having been assured by Hancock no appearance would be required, was not called. Hancock’s testimony paralleled that given by him in open court. He added detail of how he had come in contact with the informer and the length of the informer’s acquaintanceship with Coleman and Dukes. He stated that the informer had said that Dukes kept his inventory of heroin at the apartment, and that Dukes “had more control over the situation” than Coleman. Hancock added his opinion that nothing the informant [295]*295“could say . . . could help either [Coleman or Dukes] as to this particular case.” Hancock testified further that the informer’s life would be in great danger if his identity were revealed. The identity of the informer was not disclosed in camera.
Based upon the information received in court and in camera, the magistrate conducting the preliminary hearing and the judge presiding over the trial both found “that there is no reasonable possibility that nondisclosure might deprive the defendants of a fair trial.” Both the magistrate and the trial judge denied the motions to disclose the informer’s identity.
Statutory and decisional history in context of facts here present. Evidence Code sections 1041 and 1042 were originally enacted in 1965. Section 1041 granted a public entity the privilege to refuse to disclose the identity of an informant furnishing information of a crime where “there is a necessity for preserving the confidentiality . . . that outweighs the necessity for disclosure in the interest of justice.” In its original form, section 1042 required that the trier of fact “make [an] order... adverse to the public entity bringing the proceeding . . . upon any issue in the proceeding to which the privileged information is material” when the 1041 privilege was successfully asserted.
Section 1042 was liberally construed in favor of the defendant in a criminal proceeding. The prosecution was required either to disclose the informer’s identity or incur a dismissal “[w]hen it appealed] from the evidence that an informer [was] a material witness on the issue of the defendant’s guilt . . . .” (People v. Hunt (1971) 4 Cal.3d 231, 239 [93 Cal.Rptr. 197, 481 P.2d 205].) Otherwise, “nondisclosure would deprive [the defendant] of a fair trial.” (Price v. Superior Court (1970) 1 Cal.3d 836, 842 [83 Cal.Rptr. 369, 463 P.2d 721].) The defendant’s burden of establishing a case for disclosure was discharged when the “ ‘defendant demonstrate^] a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.’ ” (Price v. Superior Court, supra, 1 Cal.3d 836, 843.) The defendant was not required to “state factually what [the informer] will say if he is required to testify.” (Id.)
Evidence Code section 1042 was amended in 1969. The section’s original content was retained essentially intact but a new subdivision (d) was added. That subdivision provides for a hearing outside the presence of the jury when “a party demands disclosure of the identity of the [296]*296informant on the ground the informant is a material witness on the issue of guilt . . . .” It states that the prosecutor may demand an in camera hearing from which the defendant and his counsel are excluded and continues: “At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” The subdivision provides finally that “The court shall not order disclosure . . . nor dismiss the criminal proceeding, . . . unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”
As the California law existed prior to the 1969 addition of subdivision (d) to Evidence Code section 1042, Coleman established a case for disclosure of the identity of the informer or dismissal if the identity were not disclosed. The informer was a material witness to the possession of heroin. He had been present in the Coleman-Dukes apartment only a few hours before the contraband was found by the police. He knew of the relationship of Coleman and Dukes and that Dukes was the dominant party in it. While the court was cognizant that the informer had told Hancock that Coleman was a participant in Dukes’ heroin business, the court remained uninformed of the extent to which the informant would testify consistently with his hearsay declaration when placed under oath. The court remained similarly uninformed on the extent to which the informer’s knowledge of the detail of the Dukes-Coleman relationship might corroborate Coleman’s defense that Dukes had placed the heroin in her purse without Coleman’s knowledge. In those circumstances and leaving the effect of subdivision (d) aside, Evidence Code section 1042 requires disclosure of the informer’s identity or dismissal of the proceedings. (People v. Perez (1965) 62 Cal.2d 769, 773-774 [44 Cal.Rptr. 326, 401 P.2d 934]—informer who was a percipient witness to defendants’ possession “might” have confirmed the defendants’ testimony that they did not know that bags in their possession contained marijuana; People v. Williams (1958) 51 Cal.2d 355, 359-360 [333 P.2d 19]—informer who witnessed sale of narcotics by the defendant to an undercover officer might have contradicted the officer’s testimony that the defendant was the seller.)
There remains the issue of the effect of the 1969 amendment to Evidence Code section 1042 upon the case at bench. The addition of [297]*297subdivision (d) to section 1042 provides a method by which, despite a defendant’s prima facie case for disclosure, the court can, by an in camera hearing, determine whether in fact the nondisclosure of the informant will deprive the defendant of a fair trial. (People v. Pacheco (1972) 27 Cal.App.3d 70, 80 [103 Cal.Rptr. 583].)
Subdivision (d) is susceptible of two constructions. One is that the subdivision retains the pre-1969 material witness—potential aid to the defense test for disclosure but contemplates that evidence may be produced, with the protection of secrecy, which will, by elimination of speculation otherwise inherent in the process, aid the court in determining whether the testimony of the informer may aid the defense. (People v. Pacheco, supra, 27 Cal.App.3d 70, 80.) The other is that subdivision (d) changes the pre-1969 test and permits the court to deny disclosure despite a showing that the informer is a material witness and a lack of specific evidence of the informer’s reasonably anticipated testimony.
We conclude that the first construction is required, both by the purpose of the amendment and its language.
“Since the crucial question as to disclosure is whether the informant could give testimony on the issue of guilt which would exonerate the defendant, the procedure contained in [subdivision (d) of section 1042] is highly advantageous and provides a method of eliminating the ‘guessing game’ qualities which have often attended these determinations. [Citation.] It allows the prosecutor to produce the informant in camera so that the court can determine just what the informant knows, and whether this testimony would be material on the issue of guilt. If his testimony at the in camera hearing shows that there is no reasonable possibility the informant could aid the defense, the public interest in nondisclosure of his identity can be preserved without any infringement on the defendant’s right to a fair trial. [Citations.]” (People v. Aguilera (1976) 61 Cal.App.3d 863, 868-869 [131 Cal.Rptr. 603]; see Brenner, In Camera Hearings on Informant Disclosure, 15 Santa Clara Law. 326; Note, Non-Disclosure of the Informant’s Identity, 1 Pacific L.J. 610.)
Where the proceedings in camera combined with those in open court do not eliminate “the guessing game qualities,” the purpose of subdivision (d) of Evidence Code section 1042 is not served.
[298]*298Subdivision (d), as added to Evidence Code section 1042, preserves the pre-1969 case law test of “reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” It mandates that the test be applied to the combination of evidence produced in court and in camera. Those factors disclose a legislative intent to preserve the pre-amendment test for nondisclosure while providing an expanded evidentiary base for the court’s determination.
Evidence on the hearing in court and in camera: Here the evidence produced at the hearing to compel the disclosure of the identity of the informer and at the proceeding in camera establishes that the informer is a percipient witness on the issue of Coleman’s guilt or innocence, but does not begin to eliminate the guesswork involved in speculating what the informer’s testimony would be if he were called to testify.
The only evidence presented as to the expected testimony of the informer is the bald opinion of Officer Hancock that the informer could not say anything that would aid the defense. The opinion is unsupported by factual recitation of its basis. The unsupported opinion is not competent to prove anything.
Knowledge of informer’s identity: The prosecution seeks to salvage the situation by arguing that the record supports the inference that Coleman already knew of the informer’s identity because of the telephone call so that disclosure of identity was not required. Leaving aside the proposition that the basis of the Evidence Code section 1041 privilege would not then be present for lack of a showing of any public interest in nondisclosure, the argument suffers from dependence upon guesswork. It assumes that the informer, if called to testify, would confirm and not rebut Hancock’s testimony that Coleman was the female party to the telephone conversation.
Conclusion: We thus conclude that Coleman has demonstrated a “ ‘ “reasonable possibility that the anonymous informant . . . could give evidence on the issue of guilt which might result in [her] exoneration,” ’ ” as that terminology is used in the controlling precedent of Price v. Superior Court, supra, 1 Cal.3d 836, 843. We conclude further that the evidence produced in court and in camera does not dispel the proposition that denial of disclosure will deprive Coleman of a fair trial. Hence, the trial court erred in denying Coleman’s motion for disclosure of the identity of the informant. It was required to grant the motion on the [299]*299showing made and to dismiss the proceedings if the prosecution persisted in its claim of privilege.
We note, as to Coleman’s other contentions, that the search which disclosed the heroin was legal and that substantial evidence supports the judgment.
Disposition
The Dukes judgment is reversed with instructions to the trial court to permit Dukes to withdraw his plea of guilty and to proceed to trial on the original charges against him if the plea is withdrawn. The Coleman judgment is reversed.
Lillie, Acting P. J., concurred.