judgment, after jury trial, convicting him of firing a rifle at an automobile (Veh. Code, § 23110, subd. (b)) and assaulting a police officer with a deadly weapon (Pen. Code, § 245, subd. (b)).
About 1:30 a.m., February 25, 1968, San Diego Police Sergeant Gore drove a marked police car eastwardly on Imperial Avenue in San Diego City. As he entered the 28th Street intersection, he heard an explosion. Sergeant Gore circled the area, drove through the 28th Street-Imperial Avenue intersection again, and when he was midway in the 2800 block of Imperial Avenue he heard another explosion. He later found two .22'caliber bullet holes in his police ear.
An informant told San Diego Police Lieutenant Stevens Singletary had committed the sniping and had a .22 caliber rifle in his bedroom closet. Lieutenant Stevens gave Police Sergeant Sehwalbach this information. On February 29, 1968, Sergeant Sehwalbach went to Singletary’s home where he met Singletary’s mother and asked her for the rifle. She gave him a .22 caliber pistol with which he left. Later the same day Sergeant Sehwalbach returned again and asked Mrs. Singletary for the rifle; followed her to Singletary’s bedroom where, from the closet, she gave him a .22 caliber riffle with the bolt missing. Sehwalbach unsuccessfully searched the bedroom for the bolt but did find a rifle scope and .22 caliber cartridges.
The next day Sehwalbach picked up Singletary and took him to the police station where, after interrogation, Singletary confessed he was the sniper. At the trial, Singletary recanted his confession and offered an alibi defense.
On appeal, Singletary challenges the legality of Sehwalbach’s search of his room; the admissibility of his confession; and the refusal of the judge to allow the jury to view the scene of the shootings. These issues presented mixed questions of [603]*603law and fact upon which evidence conflicted. Since we find error which will require a retrial of this ease, it would he inappropriate for us to rule on those matters, as they must be resubmitted to the trial process.
Singletary tried to learn the identity of the informer who told Lieutenant Stevens Singletary was the sniper and had the rifle in his closet. He subpoenaed Stevens to the trial. The deputy district attorney moved the court to quash Stevens’ subpoena on the ground no foundation was laid the informant would be a material witness on the issue of guilt. The court erroneously quashed the subpoena. No offer of proof or foundation is normally required to summon any witness, let alone a foundational witness. A police officer enjoys no immunity to a subpoena. This is not like the situation of a subpoena duces tecum, where an affidavit or declaration of materiality is required by statute. The right of a public entity to refuse disclosure of an informant’s identity (Evid. Code, § 1041) may not be exercised where a defendant demonstrates a reasonable possibility the anonymous informant could give evidence on the issue of guilt which might exonerate him (Honore v. Superior Court, 70 Cal.2d 162, 167-168 [74 Cal.Rptr. 233, 449 P.2d 169]; People v. Garcia, 67 Cal.2d 830, 839-840 [64 Cal.Rptr. 110, 434 P.2d 366]).
The prosecution’s oral motion to quash was based on the deputy district attorney’s statement Lieutenant Stevens “would-be unable to give any relevant testimony in this case, and the only purpose of the subpoena would be to place Detective Stevens on the stand and obtain from him the identity of the informant.” The defense stated it wanted to question Stevens regarding any knowledge he had about the informant, what kind of person he was, when the information was received and what type of information it was.
It is always permissible for a defendant to show his trial is being unfairly conducted. By establishing the prosecution is suppressing a material witness he demonstrates he has been denied a fair trial and due process. ‘ Such a denial would . . . exist where the prosecution was allowed to control the course of proceedings in a manner which would prevent the accused from presenting material evidence. The rule requiring the disclosure of the identity of an alleged informer is designed to prevent such injustices. The rationale of that rule is that the defendant, through the testimony of the informer when his identity is made known, might be able to rebut a material element of the prosecution’s case and thereby [604]*604prove Ms innocence. The denial hy the prosecution [or the trial court] of an opportunity for the defendant to seek out the informer and to defend by "these means, where the testimony of the informer would be material to the issues, is unfair and oppressive to the defendant, and deprives him of due process of law. [Citing eases.] ” (People v. Kiihoa, 53 Cal.2d 748, 752 [3 Cal.Rptr. 1, 349 P.2d 673].) If the prosecution persists in its refusal to divulge an informant’s identity after the defense demonstrates a reasonable possibility the informant could give material evidence on the issue of guilt which might exonerate the defendant, then the defendant is entitled to a dismissal. (Honore v. Superior Courts supra, 70 Cal.2d 162,167.)
It was unreasonable to require Singletary to establish the informer might be a material witness for the defendant before allowing Mm to question Stevens concerning the information Stevens had about, and received from, the informant. Stevens was the only known witness likely to have knowledge of facts wMeh might overcome the privilege of nondisclosure. He was a preliminary witness to a possible material .witness, the informer. It is not necessary to' lay the foundation before examining a foundational witness. Although defendant had the burden of demonstrating the informer would be a material witness on the issue of guilt (People v. Garcia, supra, 67 Cal.2d 830, 839), here he was deprived of even being allowed to begin an attempt to carry that burden. Defendant was prevented' from questioning the one known foundational witness who could assist in determimng whether the informer was a material witness. Rather than being broad in nature or a fishing expedition, the examination necessarily would have had to concentrate on facts to determine the materiality of the informant as a witness, and if those facts warranted it, his identity. In quashing the subpoena for Lieutenant Stevens, the court exercised an extraordinary power which can be upheld only where it is clear the witness subpoenaed 'could not offer relevant testimony on defendant’s behalf. (In re Finn, 54 Cal.2d 807, 813 [8 Cal.Rptr. 741, 356 P.2d 685]; People v. Rhone, 267 Cal.App.2d 652, 656-657 [73 Cal.Rptr. 463].) The bare conclusionary statement by the deputy district attorney that Lieutenant Stevens could not offer any relevant testimony is not controlling.
Honore v. Superior Court, supra, 70 Cal.2d 162, 166 (fn. 5) suggests the-proper method to learn an informant’s identity is by use of a motion for pretrial discovery. We do not [605]*605take this to mean that is the exclusive method. Pretrial discovery complements rather than supplants trial discovery (See People v. Renchie, 201 Cal.App.2d 1, 4-5 [19 Cal.Rptr. 734]).
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judgment, after jury trial, convicting him of firing a rifle at an automobile (Veh. Code, § 23110, subd. (b)) and assaulting a police officer with a deadly weapon (Pen. Code, § 245, subd. (b)).
About 1:30 a.m., February 25, 1968, San Diego Police Sergeant Gore drove a marked police car eastwardly on Imperial Avenue in San Diego City. As he entered the 28th Street intersection, he heard an explosion. Sergeant Gore circled the area, drove through the 28th Street-Imperial Avenue intersection again, and when he was midway in the 2800 block of Imperial Avenue he heard another explosion. He later found two .22'caliber bullet holes in his police ear.
An informant told San Diego Police Lieutenant Stevens Singletary had committed the sniping and had a .22 caliber rifle in his bedroom closet. Lieutenant Stevens gave Police Sergeant Sehwalbach this information. On February 29, 1968, Sergeant Sehwalbach went to Singletary’s home where he met Singletary’s mother and asked her for the rifle. She gave him a .22 caliber pistol with which he left. Later the same day Sergeant Sehwalbach returned again and asked Mrs. Singletary for the rifle; followed her to Singletary’s bedroom where, from the closet, she gave him a .22 caliber riffle with the bolt missing. Sehwalbach unsuccessfully searched the bedroom for the bolt but did find a rifle scope and .22 caliber cartridges.
The next day Sehwalbach picked up Singletary and took him to the police station where, after interrogation, Singletary confessed he was the sniper. At the trial, Singletary recanted his confession and offered an alibi defense.
On appeal, Singletary challenges the legality of Sehwalbach’s search of his room; the admissibility of his confession; and the refusal of the judge to allow the jury to view the scene of the shootings. These issues presented mixed questions of [603]*603law and fact upon which evidence conflicted. Since we find error which will require a retrial of this ease, it would he inappropriate for us to rule on those matters, as they must be resubmitted to the trial process.
Singletary tried to learn the identity of the informer who told Lieutenant Stevens Singletary was the sniper and had the rifle in his closet. He subpoenaed Stevens to the trial. The deputy district attorney moved the court to quash Stevens’ subpoena on the ground no foundation was laid the informant would be a material witness on the issue of guilt. The court erroneously quashed the subpoena. No offer of proof or foundation is normally required to summon any witness, let alone a foundational witness. A police officer enjoys no immunity to a subpoena. This is not like the situation of a subpoena duces tecum, where an affidavit or declaration of materiality is required by statute. The right of a public entity to refuse disclosure of an informant’s identity (Evid. Code, § 1041) may not be exercised where a defendant demonstrates a reasonable possibility the anonymous informant could give evidence on the issue of guilt which might exonerate him (Honore v. Superior Court, 70 Cal.2d 162, 167-168 [74 Cal.Rptr. 233, 449 P.2d 169]; People v. Garcia, 67 Cal.2d 830, 839-840 [64 Cal.Rptr. 110, 434 P.2d 366]).
The prosecution’s oral motion to quash was based on the deputy district attorney’s statement Lieutenant Stevens “would-be unable to give any relevant testimony in this case, and the only purpose of the subpoena would be to place Detective Stevens on the stand and obtain from him the identity of the informant.” The defense stated it wanted to question Stevens regarding any knowledge he had about the informant, what kind of person he was, when the information was received and what type of information it was.
It is always permissible for a defendant to show his trial is being unfairly conducted. By establishing the prosecution is suppressing a material witness he demonstrates he has been denied a fair trial and due process. ‘ Such a denial would . . . exist where the prosecution was allowed to control the course of proceedings in a manner which would prevent the accused from presenting material evidence. The rule requiring the disclosure of the identity of an alleged informer is designed to prevent such injustices. The rationale of that rule is that the defendant, through the testimony of the informer when his identity is made known, might be able to rebut a material element of the prosecution’s case and thereby [604]*604prove Ms innocence. The denial hy the prosecution [or the trial court] of an opportunity for the defendant to seek out the informer and to defend by "these means, where the testimony of the informer would be material to the issues, is unfair and oppressive to the defendant, and deprives him of due process of law. [Citing eases.] ” (People v. Kiihoa, 53 Cal.2d 748, 752 [3 Cal.Rptr. 1, 349 P.2d 673].) If the prosecution persists in its refusal to divulge an informant’s identity after the defense demonstrates a reasonable possibility the informant could give material evidence on the issue of guilt which might exonerate the defendant, then the defendant is entitled to a dismissal. (Honore v. Superior Courts supra, 70 Cal.2d 162,167.)
It was unreasonable to require Singletary to establish the informer might be a material witness for the defendant before allowing Mm to question Stevens concerning the information Stevens had about, and received from, the informant. Stevens was the only known witness likely to have knowledge of facts wMeh might overcome the privilege of nondisclosure. He was a preliminary witness to a possible material .witness, the informer. It is not necessary to' lay the foundation before examining a foundational witness. Although defendant had the burden of demonstrating the informer would be a material witness on the issue of guilt (People v. Garcia, supra, 67 Cal.2d 830, 839), here he was deprived of even being allowed to begin an attempt to carry that burden. Defendant was prevented' from questioning the one known foundational witness who could assist in determimng whether the informer was a material witness. Rather than being broad in nature or a fishing expedition, the examination necessarily would have had to concentrate on facts to determine the materiality of the informant as a witness, and if those facts warranted it, his identity. In quashing the subpoena for Lieutenant Stevens, the court exercised an extraordinary power which can be upheld only where it is clear the witness subpoenaed 'could not offer relevant testimony on defendant’s behalf. (In re Finn, 54 Cal.2d 807, 813 [8 Cal.Rptr. 741, 356 P.2d 685]; People v. Rhone, 267 Cal.App.2d 652, 656-657 [73 Cal.Rptr. 463].) The bare conclusionary statement by the deputy district attorney that Lieutenant Stevens could not offer any relevant testimony is not controlling.
Honore v. Superior Court, supra, 70 Cal.2d 162, 166 (fn. 5) suggests the-proper method to learn an informant’s identity is by use of a motion for pretrial discovery. We do not [605]*605take this to mean that is the exclusive method. Pretrial discovery complements rather than supplants trial discovery (See People v. Renchie, 201 Cal.App.2d 1, 4-5 [19 Cal.Rptr. 734]). If a defendant fails to establish his right to disclosure of an informant’s identity by pretrial discovery and a witness necessary to laying the foundation to overcome the governmental privilege of nondisclosure becomes unavailable at trial, then defendant’s failure to seek discovery may be considered on a motion for trial continuance. (See People v. McShann, 177 Cal.App.2d 195,199-200 [2 Cal.Rptr. 71].)
Here, however, Lieutenant Stevens, as a member of the San Diego police, must have been readily available for the trial. There is no contention otherwise. He had been subpoenaed. In neither the oral motion to quash nor in the trial judge’s stated reasons for granting it is the failure of defendant to pursue available pretrial discovery mentioned. Under these circumstances it was an abuse of discretion to refuse access to his testimony even though discovery may have been available and demand for his attendance was not made until trial. (See People v. Renchie, supra, 201 Cal.App.2d 1, 4-5.)
It is unfortunate this ease must be retried to learn whether Lieutenant Stevens’ testimony warrants a conclusion the anonymous informant might be a material witness. We cannot, speculate on this issue. It is enough that by blocking Singletary’s attempts to interrogate Stevens the court prevented the establishment of the informant as a material witness, thus depriving Singletary of a fair trial.
Judgment reversed.
Coughlin, J., concurred.