P. v. McHenry

Filed 1/18/07 P. v. McHenry CA3

Received for posting 3/12/07

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sierra)

----

Defendant Silas Craig McHenry, a licensed attorney and cattle rancher, was charged with seven counts of felony cruelty to animals (Pen. Code, 597, subd. (b); undesignated section references are to the Penal Code). All counts alleged that defendant unlawfully deprived animals of necessary sustenance and water on or about December, 2001 -- count 1 as to livestock generally, count 2 as to an individual bull, and counts 3 through 7 as to individual calves.

A jury convicted defendant on counts 1, 3, 4, 5, and 7, but acquitted him on counts 2 and 6. The trial court denied defendants motion for new trial, then sentenced him to five years probation.

Defendant appeals in propria persona, renewing several grounds raised in his motion for new trial: (1) The trial court was so consistently biased against defendant that it [a]cted as a [s]econd [p]rosecutor. (2) The trial court erred prejudicially by prohibiting the testimony of defendants key expert witness. (3) The prosecutor committed misconduct. Defendant also contends the trial court erred by refusing to reduce his felony convictions to misdemeanors and by denying his motion for new trial. Lastly, he contends he has been unconstitutionally deprived of citizenship rights for criminal conviction under a negligence standard.

We conclude the trial court abused its discretion by excluding defendants key expert as a discovery sanction without properly considering whether a lesser sanction would suffice. Moreover, because the case turned on a battle of the experts, we cannot find the error harmless beyond a reasonable doubt. Therefore, we shall reverse. In light of this conclusion, we do not reach defendants other claims of error.

FACTS

Prosecution case

In July 2001, after Animal Control had contacted defendant about the condition of the cattle on his ranch in Sierra County, defendant asked veterinarian Martin Schafer to evaluate them. Dr. Schafer saw that there was no feed on the ground and the pasture had been eaten clean.^[1] He thought a third of defendants cattle were very, very thin and another third were thin. Using a nine-point scale for beef cattles nutritional state known as body conditioning scoring, in which one is the lowest score, Dr. Schafer assessed the thinnest cattle visually at one or two; five to seven would be average for the region.^[2] Dr. Schafer gave defendant some recommendations for feeding the cattle, but defendant was resistant and did not agree that the cattle were too thin; he also suggested some of the recommendations would cost too much. Dr. Schafer thought defendant just wanted him to say the cattle were fine so as to placate Animal Control.

Michael Cassida, a neighboring cattle rancher, testified that by November 2001 defendant had brought his cows into a different field, but they appeared thin and in pretty poor condition. Cassida never saw defendant feeding them, even after a snowstorm hit.^[3]

On December 7, 2001, Cassida asked Animal Control to look at defendants cattle. Animal Control Officers Dan Olsen and Martin Schneider went there and observed them through binoculars, but saw nothing wrong.

On December 11, 2001, after another snowstorm, Cassida notified Animal Control that he could see three dead calves on defendants property. Officers Olsen and Schneider returned, searched the property, and found six dead cattle -- one adult bull and five calves -- close together in a dry creek bed. The pasture was eaten down to stubble, there was only moldy hay in sight, and there was almost no water. From the lack of tracks in the snow, it appeared no one had been out there since the storm.

Defendant drove up while the officers were there. According to Officer Schneider, defendant said, he only fed when it snowed and, he hadnt fed for two days; he also said the pasture was about done.

The officers called in veterinarian Richard Bloomfield, who was employed by Sierra Pet Clinic, to examine the dead animals. Dr. Bloomfield had worked with dairy cattle in the eastern United States in the 1970s but had only a small amount of experience with western beef cattle and had not worked on large animals in the last five years.^[4]

Dr. Bloomfield observed there was just no pasture, only stubble and weeds; the small amount of hay in the vicinity was moldy, rotted, and inedible. Examining the dead animals, he detected no underlying signs of disease. He was struck by their emaciation and severe muscle atrophy; he could see no body fat. Using body conditioning scoring, he assessed them all at one.^[5] In his opinion, the animals starved to death. They had all died within the last week, because the carcasses were remarkably fresh.

The officers sent two dead calves (the most intact and least damaged by predators) to the Animal Health and Safety Laboratory at the University of California at Davis (UC Davis), where veterinary pathologist Bradd Barr performed necropsies. Dr. Barr found mild frostbite and mineral deficiencies, along with a minor level of pneumonia, but none of these could have caused death. More significantly, he found an absence of muscle, fat, and subcutaneous tissue. He concluded the animals suffered from malnutrition, resulting in severe atrophy of fat and muscle and finally starvation. He could not be absolutely certain about the cause of death, but no other explanation appeared.

Defense case

The defense claimed the animals were not starved or malnourished. Rather, they died from exposure to a sudden snowstorm following a year of exceptionally severe weather.^[6]

Meteorologist Ryan Knapp testified that 2001 was a year of extreme drought in the Sierra Valley, broken by a surprise late-November storm which brought subzero temperatures with winds up to 70 miles per hour and over a foot of snow. A second severe storm hit in early December.

Defendants son Joshua McHenry, who worked on the ranch in 2001, testified that these conditions occurred there that year. To cope with them, defendant and Joshua fed the cattle hay throughout the year in an amount based on a formula recommended by an experienced local rancher. The property was irrigated, although not every part of it received water.^[7] Defendant and Joshua gave the animals water in a trough supplied by a pump from elsewhere on the property. (On December 11, the day Animal Control came out, the trough was dry because they had had to unhook the hoses during the storm to keep them from freezing.)

In late November, a week before the first snowstorm, defendant and Joshua stopped feeding the cattle hay in the corral and put them out in the field. When they heard the weather warnings, they put out grass bales for the cattle to feed on and to use for shelter. During the November storm, which lasted a week, they continued taking hay out to the cattle in the field despite the blizzard conditions. They did the same during the December storm, feeding two or three times a day.

Tony Maddelena, a local cattle rancher, inspected defendants cattle in December 2001 and found them in good condition for the time of year and the weather. He estimated the mature cows he saw as mostly fives and sixes on the body conditioning scale.^[8]He did not score the calves because cattlemen do not apply body conditioning scoring to calves. Calves normally nurse for six to seven months; because there were still calves with the cows in defendants corral, they must have been born in the fall. It is common for younger calves in the Sierra Valley to die during severe cold weather. Even mature cattle can die from cold stress.

Carol Marin, another Sierra Valley cattle rancher, testified that cattle ranches suffer annual calf loss from five percent in a great year to 15 percent in a tough year. In 2001, because of the drought followed by the sudden storms, it was probably heavier than usual. A sudden storm hits the calves hard with overnight pneumonia, frostbite, and cold stress. Cold stress, which drops an animals temperature, is a recognized killer of cattle, especially baby calves.

William Loveridge, a high school agriculture teacher, observed defendants cattle on his ranch at several times in 2001. He never saw any that looked emaciated or distressed. Those that he saw before December would have scored four to seven on the body conditioning scale.

Dr. Steve Damonte, a large-animal veterinarian who also helps run his familys cattle ranch, opined that defendants dead animals succumbed to stress, not starvation. Looking at the prosecutions photographs of these animals, he opined, contrary to Dr. Bloomfield, that they did not show emaciation.^[9] He disagreed with Dr. Bloomfields ratings of the animals with a body conditioning score of one, partly because this scoring method is not meant for dead animals. Dr. Damonte opined (also contra Dr. Bloomfield) that one cannot determine a dead animals date of demise from its appearance, which can vary depending on the season (cold preserves corpses longer) and the progress of predation. Dr. Damonte additionally disagreed with Dr. Bloomfields claim that defendants field showed a lack of available feed, asserting that the photographs as to which Bloomfield made this claim showed both green regrowth and edible stubble.

Asked about the necropsy report, Dr. Damonte opined that Dr. Barrs severe atrophy of fat assessment was not significant [b]ecause these are young calves and they usually dont have that much fat. Dr. Barrs observation that one calf had sufficient antibodies in its system revealed that the calfs mother must have been well-nourished in order to provide those antibodies in its milk. Dr. Barrs finding of frostbite in that calf suggested exposure to the weather as a possible cause of death, as did a low selenium level (common to cattle in the region, which has selenium-deficient soil), indicating a compromised immune system. Dr. Barrs observation of marked diffuse muscular atrophy in the other calf could be explained by the fact that cattle lose muscle mass when they freeze; this calf also showed a low liver level, pneumonia, and a gastrointestinal disorder. Dehydration, which can be caused by illness, was a possible cause of death for both calves.^[10]

Dr. Jeffrey Hurst, a veterinarian with 14 years of livestock practice, opined that Dr. Barrs report was inconclusive as to the cause of death. Any stressful event can cause a severe atrophy of fat, which Dr. Barr observed. The first calf Dr. Barr evaluated would not have had much fat in any event because it was only two weeks old, based on dentition, but its body contained digested milk from its mother. The second calf had 23 pounds of undigested feed in its rumen (the first of a cows four so-called stomachs).

Dr. Hurst also opined that if the six dead animals had died of starvation, other dead animals should have been found in the same small area. A simpler explanation for their presence together in that spot was that they got caught in a snowstorm, then covered with snow. Dr. Barrs report was consistent with that conclusion. However, his findings were not consistent with Dr. Bloomfields opinion that the animals starved to death, because the calves had recently ingested milk or feed.^[11]

DISCUSSION

Defendant contends the trial court erred reversibly by prohibiting the testimony of his most important expert (and all reference to that experts opinions by other witnesses) under section 1054.5, subdivision (b) ( 1054.5(b)).^[12] We agree.

Section 1054.5, subdivision (c) ( 1054.5(c)), requires a trial judge to find, before prohibiting a witnesss testimony, that all other discovery sanctions have been exhausted. Furthermore, a trial judge may properly impose this sanction only if the discovery violation was willful and done to gain a tactical advantage, and the prejudice to the opposing party is substantial and irremediable. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1747, 1757-1759 (Gonzales); see People v. Edwards (1993) 17 Cal.App.4th 1248, 1261-1265 (Edwards); People v. Jackson (1993) 15 Cal.App.4th 1197, 1203 (Jackson).)

So far as the trial court made such findings, the record does not support them. Furthermore, though the court recognized that its order gravely prejudiced defendant, it did not attempt to weigh the harm to defendant against the possible harm to the prosecution from a lesser sanction. Thus, the order was an abuse of discretion. Given the state of the evidence before the jury, we cannot find the courts abuse of discretion harmless beyond a reasonable doubt. (Gonzales, supra, 22 Cal.App.4th at p. 1759 [violation of compulsory process clause requires harmless-error analysis under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman); accord, Edwards, supra, 17 Cal.App.4th at p. 1266.) Reversal is therefore required.

Background

Pretrial events

Defendant, a licensed attorney, at one time sought to represent himself. He did substantial trial preparation, including interviewing prospective witnesses. By the time of trial, however, his license had been suspended. He was represented at trial by attorney Thomas Buckwalter, though he voir-dired and cross-examined a few witnesses himself.

Before trial, the defense disclosed Dr. John Maas as a prospective witness, identifying him as DVM [sic], University of California[-]Davis and providing his telephone number. The defense did not state that Dr. Maas had prepared a report.

The initial disclosure

The first testifying defense expert, Dr. Damonte, stated that he had prepared by reviewing [e]verything that was sent to me, including . . . Dr. Maas, Dr. Bloomfields report . . . . (All italics in this section added.) The prosecutor asked: Excuse me, did you say Dr. Ma[a]ss report? Dr. Damonte answered, Yes. The prosecutor asked: Dr. Maas prepared a report? Dr. Damonte said: Actually it wasnt a report[,] it was -- I dont have it with me. It was just an outline of what his opinion was of the case.

In front of the jury, the trial court asked Dr. Damonte where the report was. The prosecutor complained that the defense had failed to provide any discovery and he had never heard of any report by Dr. Maas. After verifying that Dr. Damonte did not have the report with him, the court said: The sanction is he may not be able to testify.^[13]

Attempting again to clarify the subject, Dr. Damonte said: Actually I dont think it was a written report, I think it was more of a transcript of what [defendant] had discussed with Dr. Maas over the phone. The court said: I think he is entitled to it. After this, the court finally called a recess to discuss the issue in camera.

The first in camera hearing

Outside the jurys presence, attorney Buckwalter produced his copy of the document to the prosecutor. The prosecutor asserted: Its a real extensive report is what it is. Dr. Damonte confirmed it was the report that I saw. The court clerk determined it was 11 pages long.

Buckwalter asked the prosecutor if he wanted to see it again. The prosecutor declined.^[14]

Dr. Damonte said he had been disclosed as a witness in February 2004, but had received Dr. Maass report only a week ago.^[15] Asked whether the report was dated, Dr. Damonte said: No. It says recorded interview of November 12 th, 2004[.]

The court ruled Dr. Damonte could not refer to the document or anything in it if he were allowed to testify. The prosecutor said: Then we have to deal with Dr. Maas. The court said: Dr. Maas probably doesnt get to testify. Buckwalter said: Thats our whole case, Your Honor. The court replied: I know.

The prosecutor argued: This case might not have gone to trial if I had this report and been able to evaluate. This is an ambush, which has been illegal in this state for 15 years. The court interjected: This is not a game. The prosecutor continued: Exactly. We wasted all these jurors time. We might not even have called them. We might not have pursued this case had we had this stuff.

The prosecutor added: Dr. Barr works at U.C. Davis, and our entire line of questioning might have been different had we had Dr. Maas[s] report. [] . . . [] . . . I asked Dr. Barr if he talked to Dr. Maas because I was interested in why he wasnt being called. He saw nothing, he knew nothing other than what he was told from the [d]efendant. And Dr. Barr said he didnt talk to Dr. Maas.

After ruling that Dr. Damonte could testify but could not refer to anything provided by Dr. Maas, the court observed that what had happened was not Dr. Maass fault but defendants. As an attorney he presumably knew the rules of discovery, and he had complained before trial about not getting it from the People, yet he had basically hid[den] this[.] The court tentatively ruled: Dr. Maas doesnt get to testify. The sanction would be that he does not testify.

Buckwalter said: Hes not due till Thursday but that totally is the defense case. The court offered Buckwalter more time to talk with Dr. Damonte because he may have to carry the ball for you. Its too bad. Buckwalter replied: He cant testify to the same things Dr. Maas could testify to. I know that based on my conversation. The court answered that it did not know that because no one but defendant and Buckwalter knew what Dr. Maas would testify to.^[16] The court then offered Buckwalter 15, 20 minutes to regroup[.]

The second in camera hearing

The next day, the court and the parties revisited the issue outside the jurys presence.

The court asked the prosecutor when discovery began in the case. The prosecutor said it had been ongoing for several years because the case had been delayed, but defendant had sent notice as of January 10, 2004, that he would call Dr. Maas. The prosecutor reiterated that he had constantly asked for reports and . . . been advised there were none. As late as yesterday, Buckwalter had said defendant had not given him any expert reports.

The prosecutor asserted the report was not protected by the work product privilege because other witnesses had used and relied on it. The court agreed defendant had waived any privilege when he sent the report to Dr. Damonte. The court then opined: The problem I see is the fact that you had your experts testify without your knowledge of this document . . . , which could have, in effect, changed manner [sic] or method by which you examined your experts. . . . Thats the prejudice to the District Attorney. You cant unring that.

Buckwalter said defendant had originally meant to handle all the expert witnesses, but after cross-examining two of them changed his mind. Defendant then gave Buckwalter the so-called Maas report, which is not a report from Dr. Maas, it is what [defendant] had prepared for himself to examine Dr. Maas when Dr. Maas was on the stand.And he did not prepare this until just recently, even though the interview occurred November 12th of 2004. Defendant believed the document to be work product. Buckwalter conceded, however, that after researching the issue he had concluded mailing the document to Dr. Damonte waived that privilege.

Citing section 1054.5(c), Buckwalter proposed the alternative sanction of a continuance to give the People time to prepare. The court said: No. See, the prejudice has been that his witnesses have testified. Buckwalter said the prosecutor could call them back. The court replied: But if he had that document before they testified it might have changed his preparation, his methodology of examination and his questions, and even his strategies. So its basically -- it is an ambush. It doesnt do any good to hold you in contempt. That doesnt do any good to hold [defendant] in contempt. Because of the prejudice to the prosecution in the case I think the only available sanction is to not let Dr. Maas testify.

After making this order, the court added: When you come right down to it Dr. Damonte isnt much of a witness. He testified mostly from photographs. Hes not a photograph interpreter or expert. The prosecutor added that Dr. Hurst, defendants other expert, isnt going to do a whole lot more. Thus, the court had every reason to accept Buckwalters claim that Dr. Maas was our whole case, and apparently did so.

The testimony Dr. Maas would have given

Because Buckwalter did not make an offer of proof and the court did not request one, Dr. Maass qualifications and the substance of his proposed testimony were not before the court when it ruled. However, in light of the above we cannot imagine the court would have ruled differently had it had that information.^[17]

After the jury returned its verdict, Dr. Maas wrote a letter to the probation officer in which he fully set out his credentials and his opinions on the case. The People do not dispute that the letter reveals what Dr. Maas would have testified and what qualified him to do so. Therefore, we give its substance here.

Dr. Maas states that he has been the University of California Cooperative Extension Veterinarian for beef cattle since 1993; before that, he was the Case Supervisor at what is now known as the California Animal Health and Food Safety Laboratory on the UC Davis campus (the facility where Dr. Barr worked at the time of trial). In addition to his doctorate in veterinary medicine, he is board-certified in veterinary nutrition and veterinary internal medicine. He has also given expert testimony in court cases where persons were convicted of starving animals or treating them inhumanely. On this basis, he feels more than qualified to comment on Dr. Barrs and Dr. Bloomfields reports.

In Dr. Maass professional opinion, based on the facts he had been given about the case and the reports he had read, there was not . . . sufficient evidence to suspect that starvation was the cause of death of [defendants] cattle[.] The primary reason for their deaths was the early severe snowstorm that hit the Sierra Valley, which caused the cattle to move[] to a low spot in the field, near a waterway, to avoid the wind and blowing snow. This is a common response for cattle, particularly older cattle and young cattle. It appears that snow drifted into this area, accumulated and eventually buried these cattle. In my opinion, the cattle died as a direct result of hypothermia caused by the drifting snow and the wind.

Dr. Barrs reports substantiated this opinion. They showed that the older calf had a preexisting pneumonia stemming from an earlier viral respiratory infection, which would have made it more susceptible to severe cold and hypothermia. They also showed that the younger calf was less than 14 days old, an age at which cattle have very little fat and energy reserves and would thus also be very susceptible to the effects of hypothermia. Furthermore, that calf had a high level of circulating immunoglobulins, showing (1) his dam was sufficiently well-nourished to produce the milk that contains these immunoglobulins, (2) the calf was strong and vigorous enough at birth to be able to suckle well, and (3) the mother was well-vaccinated and able to pass on that immunity to the calf. Thus, the dam was well cared for prior to calving and this is not evidence of starvation or inhumane treatment. Finally, Dr. Barrs report showed both calves suffered from frostbite, further evidencing exposure to extreme cold and supporting hypothermia as the cause of death.

Dr. Bloomfields use of the body conditioning scoring system to assess the dead calves was not appropriate and cannot be justified by accepted medical or scientific practices. In his report, to support his use of this system Dr. Bloomfield cited a chapter of a textbook written by Dr. Maas. As the author of this text, Dr. Maas is very familiar with the use of BCS in cattle. It is a semi-quantitative method to assess the amount of subcutaneous fat in live, adult cattle. It is not meant to be used in cattle that have been dead for a number of days or weeks and it is not meant to be used for calves. Furthermore, as cattle carcasses dehydrate after death, the tissues shrink, making the bones under the skin more prominent. The BCS system was validated for live, adult, well hydrated animals. It has never been validated for the type of dead, dehydrated carcasses examined in the McHenry case. In my opinion, the BCS system will never be validated for that type of animal. Finally, the system is meant to be used when cattle are closely restrained as in a squeeze chute or stanchion. There is both a visual assessment . . . and an assessment by palpation . . . . There is no evidence that this type of BCS assessment was performed in this instance. It is my opinion that the BCS system was used inappropriately in this case and would have to be discounted because of that misuse.

In conclusion, [t]he documented facts in this cattle death case do not support a suspicion of starvation in my opinion and alternative causes of death were obvious and documented by the pathologists reports.

Defendants motion for new trial

Defendant moved for new trial, raising grounds which included the prohibition of Dr. Maass testimony. The motion argued on this point: (1) Dr. Maas was informally disclosed as an expert witness on March 9, 2004, then officially noticed as such on June 11, 2004, but the prosecutor never interviewed him.^[18] (2) Dr. Maass testimony would have been the core of defendants case. (3) Dr. Maass statement, the discovery of which in May 2005 led to the courts order, did not reveal anything about his views that the prosecutor could not have learned a year before. (4) Even assuming a discovery violation, the defenses proposed sanction of a continuance would have adequately protected the prosecution, whereas the sanction chosen by the court effectively gutted the defendants case.

In support of the motion, defendant declared inter alia: (1) He interviewed Dr. Maas on November 12, 2004, taping the interview with permission. (2) He then forgot about the tape until May 2005, when it became clear that trial was about to begin. (3) In preparing for trial, he remembered the tape, located it, and transcribed it in writing; the transcript was his own work product, not a report prepared by the witness. (4) After completing the transcript on May 10, 2005, he immediately faxed a copy to his counsel; on May 12, 2005, he mailed a copy to Dr. Damonte. Defendant did not attempt to hide the transcript.

The courts response

Arguing the motion, Buckwalter cited Dr. Maass letter to show his importance to defendants case. The court said: That is assuming that the jury would believe him; right? [] . . . [] . . . All of the papers in fact assume that Dr. Maas is the last word in the subject matter. We dont know that because he never testified. Notwithstanding this skepticism about the value of Dr. Maass testimony, the court then reaffirmed the reasoning it gave during trial for prohibiting that testimony (which presumed irreparable damage to the People from allowing the testimony under the circumstances). In particular, the court reiterated that, because defendant is an attorney, he should have known that his work product became discoverable when he sent it to Dr. Damonte.

Analysis

Considering the entire record on this issue, we are convinced that the trial court disregarded both the plain mandate of section 1054.5(c) and the standard set by case law to justify prohibiting a witnesss testimony. Furthermore, although substantial evidence clearly supports the verdicts rendered, the jury also heard substantial evidence which could have justified a more favorable outcome for defendant. Even without Dr. Maass testimony, the jury acquitted defendant on two counts. Under all the circumstances, the trial courts abuse of discretion in prohibiting Dr. Maas from testifying cannot be found harmless beyond a reasonable doubt.

Unlike lesser discovery sanctions authorized by section 1054.5(b), prohibiting a witnesss testimony infringes on the defendants constitutional right to compulsory process. This is undoubtedly why the Legislature took pains to specify that a trial court may order this sanction only if all other sanctions have been exhausted. ( 1054.5(c).) This is also why we must assess the harm from ordering this sanction an error under the Chapman standard. (Gonzales, supra, 22 Cal.App.4th at p. 1759; Edwards, supra, 17 Cal.App.4th at p. 1266.)

Here, the trial court found that defendants proposed alternative sanction -- a continuance to allow the People to study the so-called Maas report and recall their expert witnesses -- would not suffice.^[19] But the courts finding exaggerated both the gravity of the discovery violation and the potential harm to the People from the lesser sanction, while treating the actual harm to defendant from the loss of Dr. Maass testimony (which the court conceded during trial, though minimizing it later) as unworthy of consideration.

Under the standards laid down by the United States Supreme Court (Michigan v. Lucas (1991) 500 U.S. 145 [114 L.Ed.2d 205]; Taylor v. Illinois (1988) 484 U.S. 400 [98 L.Ed.2d 798]), preclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial[.] (Edwards, supra, 17 Cal.App.4th at pp. 1261-1263.) The record here does not clearly demonstrate such an egregious discovery abuse.

At the outset, we note that, although the prosecution and the trial court insisted on calling the non-disclosed document a report, it was not an experts report in the usual sense. Rather, it was a transcript of an interview between defendant and Dr. Maas. While we question whether the document could be withheld from discovery as attorney work-product, we think that the position is arguable. The unusual nature of the document suggests that its non-disclosure could not be a willful violation in the sense contemplated by the discovery statutes.

The prosecutor asserted that defendant willfully and deliberately concealed the so-called Maas report in order to stage an ambush, and the trial court used the same term when it ruled.^[20] Yet, in response to defendants new trial motion, the court stated that defendant, as an attorney, should have known he had waived the work product privilege by furnishing the document to another witness. This finding appears to concede that defendants actions might have been innocently negligent, rather than willful and deliberate.

Furthermore, the People never factually rebutted the accounts given by defendants counsel during trial and by defendant in his declaration on the new trial motion of how the so-called report was created and disseminated, and the trial court never stated that it found them incredible. If believed, these accounts showed that defendant and his counsel were merely mistaken or confused about the legal effect of defendants actions.

Finally, the prosecutor knew before trial that defendant had designated Dr. Maas as an expert, yet never sought to interview him. Nothing in the record suggests that Dr. Maas would have stonewalled the prosecutor; indeed, his letter to the probation officer and the evidence defendant offered on his new trial motion suggest that Dr. Maas was more than willing to disclose his views at any time. Thus, the prosecutors cry of ambush appears not well taken.

But even assuming defendant willfully violated the discovery rules to gain an unfair advantage at trial, there is another condition which must be satisfied before a trial court may properly prohibit a witness from testifying. In accordance with section 1054.5(c), the court must find that the prejudice to the People from any lesser sanction would be substantial and irremediable. (Gonzales, supra, 22 Cal.App.4th at p. 1757.) Furthermore, before the court so determines, the consequence to the truth-finding process [must] be carefully balanced. It should not be lightly considered that the consequence of exclusion of significant evidence may so distort the truth-finding process as to undermine its reliability. (Id. at pp. 1757-1758; italics added.) The trial courts findings also fail this test.

The court found the People had been prejudiced because they had not been able to prepare their experts, who had already testified, to anticipate and rebut the as yet unknown opinions of Dr. Maas. While this circumstance was unfortunate, the court never explained why the prejudice it created was irremediable. Defendant proposed an obvious remedy: grant a continuance, then let the prosecutor recall his experts to give testimony that would counter Dr. Maass views. In response, the court merely observed that bells cannot be unrung. But by that logic, a continuance could never adequately sanction a discovery violation. Section 1054.5(b) provides otherwise.

Furthermore, the court did not seriously consider, let alone balance, the consequence to the truth-finding process from excluding defendants lead expert. (Gonzales, supra, 22 Cal.App.4th at pp. 1757-1758.) When counsel said Dr. Maas was our whole case, the court replied, I know, then ruled as if the gutting of defendants case did not matter.^[21]More precisely, the court ruled as if defendants conduct was so outrageous he deserved to lose his case -- even if the banned testimony would have won it for him.

The consequences to defendants case were as devastating as counsel predicted. The defense tried to get Dr. Maass opinions in through other witnesses, but none had his authority, and the courts order also prevented them from citing him. Defendants veterinarians, Drs. Damonte and Hurst, had not observed the dead animals, as had Dr. Bloomfield, and lacked the scientific expertise to counter the necropsy findings of Dr. Barr. Thus, both were easy marks on cross-examination. Furthermore, though some defense witnesses questioned Dr. Bloomfields use of body conditioning scoring to assess dead calves, those challenges could not have carried the weight of an opinion by the man who wrote the book on which Dr. Bloomfield purported to rely. So far as the court found, in denying defendants new trial motion, that it could not be known whether Dr. Maass testimony would have been persuasive because he did not testify, the court merely reasoned in a circle.

To justify the courts order, the People cite only People v. Jackson (1993) 15 Cal.App.4th 1197 (Jackson). That case does not assist them.

In Jackson, after the People rested, the defendant proffered an allegedly exculpatory written statement by a witness whose whereabouts were unknown. (Jackson, supra, 15 Cal.App.4th at p. 1203.) Counsel had known of the statement for three months, but had never given it to the prosecutor. (Id. at pp. 1200-1201.) Counsel unbelievably claimed he had never considered calling the witness until moments before he did. (Id. at p. 1203.) Thus, the defense discovery violation was almost certainly willful. (Ibid.) No lesser sanction than excluding the statement would have sufficed, because the witness was unavailable for cross-examination and any other sanction would have failed to give the People a fair opportunity to rebut or impeach the statement. (Ibid.) In short, there was both a willful discovery violation done to gain an unfair tactical advantage and significant irremediable prejudice to the People. In our case, even assuming a deliberate discovery violation it is far less egregious than in Jackson, and defendant suffered greater prejudice from the sanction imposed than the People would have suffered from a lesser sanction.

Finally, we cannot find the courts abuse of discretion in excluding Dr. Maas to be harmless beyond a reasonable doubt. The lay testimony did not overwhelmingly prove defendants guilt. There was evidence defendant underfed and underwatered his cattle, but there was also contrary evidence, much of it coming from fellow Sierra Valley cattle ranchers. In addition, there was unrebutted evidence that it is normal for cattle, especially young calves, to die under such unusually harsh conditions as those which prevailed locally in 2001. Thus, two facially plausible explanations of the deaths of defendants animals, both supported by substantial lay evidence, were before the jury. The case therefore turned on the persuasiveness of the opposing experts.

Dr. Maas was by far the most authoritative expert the defense had. The remaining experts, unable even to cite his views, could not compensate for his absence, especially as to Dr. Barrs findings. The imbalance in the weight of the expert testimony created by Dr. Maass exclusion so distort[ed] the truth-finding process as to undermine its reliability. (Gonzales, supra, 22 Cal.App.4th at p. 1758.) For this reason, we must reverse defendants convictions.

In light of this conclusion, we do not reach defendants other claims of error.

DISPOSITION

The judgment is reversed, and the case is remanded to the Superior Court for a new trial.

SIMS , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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^[1] Dr. Schafer conceded that this might have been a drought year in the Sierra Valley.

^[2] Dr. Schafer, whose practice was mostly devoted to small animals, did not use this scoring method frequently and was familiar with it only to some degree. He was not able to palpate the animals, an essential part of the method. He noted that the thin cattle were Black Angus, a breed which is harder to keep well-nourished than others.

^[3] Cassida admitted a history of conflict with defendant, including two unsuccessful lawsuits.

^[4] Asked why they had called Dr. Bloomfield in particular, Officer Schneider testified that veterinarians are often busy and the officers had contacted Dr. Bloomfields place of employment to see if anyone there could respond.

^[5] One of the guides Dr. Bloomfield relied on as to body conditioning scoring was a textbook by Dr. John Maas, the defense expert whom the trial court later excluded.

^[6] The People assert that defendant testified. The People are mistaken.

^[7] According to Joshua, a prosecution photograph of the field, in which it looked dry and barren, depicted the area that did not get irrigated.

^[8] Examining photographs of defendants cattle introduced into evidence by the prosecution, Maddelena visually estimated scores in the same range. None of the photographed animals looked thin or unhealthy to him.

^[9] However, the trial court observed during this testimony that Dr. Damonte, by his own admission, was not a photographic expert. At one point, in front of the jury, the court compared the defense procedure to Senator Frists diagnosis of Terri Schiavo after watching an edited videotape.

Outside the jurys presence, the trial court ruled that Dr. Damonte could not cite or rely on the opinions of Dr. Maas, the defense expert who was not permitted to testify. We discuss this point below.

^[10] On cross-examination, Dr. Damonte conceded that a veterinarian examining dead animals is better placed to observe their condition than one who works only from photographs. He also conceded that he is not aware of the microscopic findings that would show cold stress and that starvation was a possibility based on Dr. Barrs report.

^[11] On cross-examination, asked whether a veterinarian on the spot is in the best position to judge matters, Dr. Hurst replied that that was so [i]f he had the experience with that species[.] He admitted, however, that he had never reviewed a necropsy report before, that starvation could cause atrophy of fat, and that he had no idea what microscopic findings one would see with cold stress.

^[12] Section 1054.5 provides in part (italics added):

(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. . . .

(b) . . . Upon a showing that a party has not complied with [required discovery procedures] . . . , a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.

(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. ( 1054.5, subds. (a),(b),(c).)

^[13] By he, the court probably meant Dr. Damonte, not Dr. Maas. It is noteworthy, however, that the courts mind immediately jumped to the drastic sanction of witness prohibition before it had even heard the defenses story, and the court said so in front of the jury.

^[14] Evidence Code section 354 provides in part:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:

(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;

(b) The rulings of the court made compliance with subdivision (a) futile . . . .

Buckwalter did not state what Dr. Maass testimony would be before the court finally made its order. However, the People do not argue that defendants failure to make an offer of proof forfeits his claim of error. Moreover, Buckwalter could reasonably have deemed it futile to do so because the court was determined to prohibit Dr. Maass testimony in any event, as we shall show.

^[15] The current date was May 24, 2005.

^[16] Nevertheless, the court did not ask Buckwalter to disclose what Dr. Maas would testify to, apparently because it had already decided to prohibit his testimony.

^[17] As we discuss below, by the time the court denied defendants motion for new trial it was fully informed on the subject.

^[18] The supporting documentation included a letter from defendant to the prosecutor dated March 9, 2004 (before the prosecutor had finally decided to take the case to trial), which proposed submitting the question of the cause of death to an expert panel consisting of Dr. Barr and Dr. Maas. The letter described the qualifications of both experts and stated that Dr. Maas had agreed to serve on such a panel.

In defendants declaration on the motion for new trial, he averred that he first contacted Dr. Maas in February 2004 and wrote the March 9 letter at Dr. Maass suggestion.

^[19] The court also rejected the alternative (which defendant did not propose) of holding him or his counsel in contempt. We do not disagree with the courts finding that that sanction would have been useless.

^[20] It also said: But youre dirty, thats the problem.

^[21] It is true that the court then said it did not know whether other witnesses could testify on the subjects of Dr. Maass expertise because it did not know what he would have testified to. However, the court had already revealed its true feelings on the subject. In any event, as already mentioned, the court did not ask counsel to enlighten it with an offer of proof.