Filed 10/3/17 P. v. Turner CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Jerry D. Turner guilty of first degree burglary with a person present. On appeal, defendant contends the trial court erred in refusing to find that the prosecutor failed to timely disclose an original sketch of defendant (rather than a copy) and by refusing to instruct the jury on late discovery. We affirm.

BACKGROUND

Defendant was charged with burglary. One of the burglary victims got a “[v]ery clear” look at defendant before he walked away. The victim could see acne or pock marks on defendant’s face.

That victim met with a sketch artist shortly after. At trial, the victim was shown the original sketch from the sketch artist and testified it looked like the intruder he saw.

Outside the jury’s presence, defense counsel explained that he had not received the original sketch as part of discovery. He had only received a photocopy of the sketch. He therefore objected to the introduction of the original into evidence.

The trial court overruled the objection, finding the prosecution had provided full discovery under the discovery statute. It noted the defense was aware of the existence of the original and had timely received a copy of it. The court added, “the relatively small additional material that’s made available by looking at the original of the sketch . . . , while relevant and not insignificant, is not in any way unduly prejudicial.”

Later, the trial court made findings regarding the original sketch and the copies. As to the original, it found, “it is clear that there is a drawing . . . of what appeared to be acne scars on the suspect’s left cheek.” As to the copy given to the defense, the court found, the scars could be seen, “although it is not as pronounced.”

Prior to jury deliberation, defense counsel requested a late discovery instruction. The court denied the request, finding no late discovery. It noted the copy showed scarring, just not as pronounced as the original. And both parties had had the opportunity to review the original.

The jury thereafter found defendant guilty of first degree burglary and found there was a person present during the burglary.

DISCUSSION

On appeal, defendant contends the trial court erred in refusing to find that the prosecutor failed to timely disclose the original sketch and in refusing to instruct the jury on late discovery. He argues he was not provided with a copy of the sketch adequately showing the scarring described by eyewitnesses. And the jury -- without being told the defense did not have access to the original -- could not properly weigh the significance of the sketch against the weakness of other identifying evidence. We disagree.

We review a trial court’s ruling on discovery matters for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.)

The trial court acted well within its discretion. The court found the original sketch clearly showed “what appeared to be acne scars on the suspect’s left cheek.” The defense’s copy did as well, albeit “not as pronounced.”

Having neither the original nor the copy of the sketch in the record before us, we will assume the trial court’s assessment of the quality of the defense’s copy was correct. Accordingly, on this record, the trial court did not abuse its discretion in finding no discovery violation and in denying the requested instruction.

DISPOSITION

The judgment is affirmed.

/s/

Robie, J.

We concur:

/s/

Raye, P. J.

/s/

Hoch, J.