P. v. Tuttle

Filed 10/18/06 P. v. Tuttle CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of the County of Los Angeles. Sam Ohta, Judge. Reversed.

Dwyer & Biggs and John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

Following a jury trial, appellant Harvey Haverson Tuttle was convicted of assault with a deadly weapon, by means of force likely to produce great bodily injury (count 1), battery with serious bodily injury (count 2), and mayhem (count 3). The jury also found that appellant personally committed great bodily injury, as to count 1, and personally used a knife, as to counts 2 and 3. He was sentenced to six years and eight months in prison. He contends that the trial court abused its discretion when it refused to exclude testimony by a prosecution rebuttal witness as a discovery sanction. We agree with him, and reverse.

FACTS

At 3:00 p.m. on August 31, 2004, 17-year-old Jusue P. passed an alley as he walked to a bus stop after school. Appellant and an unknown companion rode through the alley on bicycles. They approached Jusue.

Appellant got off his bicycle and said to Jusue, “Let’s get down. Why are you dogging me?” To Jusue, the latter sentence meant, “How come I’m staring at him.” Jusue stood still. He did not want to fight. He told appellant that he was not “dogging” him. Appellant replied, “Nah, you are. I’m going to stab you.” From his back pocket, appellant pulled out a knife with a four-inch blade. Jusue did not have a weapon. He crossed his forearm over his chest, to protect himself. Appellant made three “roundhouse” stabbing motions towards Jusue, connecting twice with Jusue’s forearm. Then appellant and his companion rode off into the alley on their bicycles.

The lesser of the two stab wounds required stitches. The other wound was so deep that it went completely through Jusue’s arm. Surgery was required to repair the severed radial nerve. A year later, at the time of trial, Jusue still suffered from pain, impaired movement, and decreased strength in that arm. Permanent damage was likely.

Jusue told the police that he was stabbed by “Harvey,” which is appellant’s first name. He picked out appellant’s picture from a photo lineup. He explained at the trial that he had seen appellant in the neighborhood for years, feared him, and tried to avoid him. He was younger than appellant, and used to be smaller than appellant.[1] He had last seen appellant about a year earlier, but they had not interacted at that time. About five years earlier, appellant had tried to take Jusue’s skateboard. About three years earlier, Jusue had been present when appellant hit Jusue’s friend Thomas in the face and tried to take Thomas’s skateboard. Appellant had also tried to take Thomas’s skateboard on other occasions.

No defense testimony or prosecution rebuttal testimony was presented.

DISCUSSION

Appellant contends that the trial court abused its discretion when it refused to sanction a discovery violation by excluding testimony by Jusue’s friend Carlos C.[2] He argues that the trial court’s decision to postpone a ruling on whether Carlos could testify in rebuttal until appellant testified meant that appellant could not take the witness stand, out of fear of what Carlos would say. He also claims that he was prejudiced because his counsel had told the jury during opening statement that there would be a defense of self-defense, but no such defense was presented, as the failure to preclude rebuttal testimony by Carlos meant that appellant could not take the witness stand. Finally, he argues that the court should have granted his motion for new trial, based on the same grounds.

A. The Record

On July 6, 2005, before the start of trial, the court ruled that if appellant testified, he could be impeached with a 2004 conviction for driving without the owner’s consent. (Veh. Code, § 10851, subd. (a).)[3] Defense counsel verified that Jusue had no criminal record. After further preliminaries, jury selection began.

On July 7, the second day of jury voir dire, defense counsel announced that he had just received “new statements and a new witness.” The prosecutor explained that he had spoken that morning to Jusue, who had moved to Florida after the incident, but had returned for the trial. Jusue told the prosecutor that appellant had previously “bullied” Jusue and his friends, and Jusue and a friend had seen appellant with a knife “on a couple of occasions” in the past. The prosecutor wanted to bring in evidence of that prior knife possession under Evidence Code section 1105, to show that appellant had a habit and custom of carrying a knife. He did not know what the defense would be, but had “been given some inclination that the defendant is going to claim some type of self-defense . . . .”[4] He did not give the name of Jusue’s friend.

The trial court was concerned about propensity evidence, as the charge was use and not possession of a knife. It ruled that Jusue’s friend’s evidence of appellant’s prior possession of a knife would be admissible only as rebuttal evidence, and its admissibility would depend on what appellant testified.

Defense counsel then requested the name, telephone number and rap sheet of Jusue’s friend, so he could interview him. Defense counsel said the prosecutor had told him he had the friend’s number and was “running his rap sheet.” The court asked the prosecutor if he was “in the process of getting the information“ for defense counsel. The prosecutor answered, “Yes. I will get him that.” (Emphasis added.) Jury selection resumed, and was completed later that day.

Proceedings on the next day, July 8, began with pretrial admonitions. The instructions included the principles that the statements of counsel are not evidence, and the facts must be determined solely from the evidence.

The prosecutor’s opening statement then summarized the testimony the People planned to present. His description of Jusue’s anticipated testimony mirrored Jusue’s subsequent testimony, indicating that appellant approached Jusue and made an unprovoked stabbing attack.

In response, defense counsel’s opening statement indicated that Jusue and the defense would present different versions of the incident, and the jurors would have to decide which one was more believable. The defense version was that Jusue provoked the fight and stabbed appellant, and appellant then picked up Jusue’s knife and stabbed Jusue in self-defense. Defense counsel’s very detailed summary of the defense version used language that implied that appellant would take the witness stand. For example, he discussed what appellant was thinking during the incident, and said the jurors would “hear the story of Mr. Tuttle.”

After the opening statements, Jusue began his testimony. A new problem surfaced after the lunch break that day. Defense counsel said that when he walked out of the courtroom to go to lunch, he saw Jusue with a friend. He then discovered that the friend, Carlos C., was the potential witness who had been discussed the previous day, July 7. Defense counsel moved to exclude any testimony by Carlos, because his opening statement had been based on a credibility contest between Jusue’s and appellant’s versions of the incident. He had assumed that the People had decided not to use the witness discussed on July 7, as the prosecutor disclosed no further information about that witness before the trial started on July 8. Defense counsel also said that Carlos told him he had spoken to the prosecutor on July 7. He argued that there was a discovery violation because he had learned about Carlos by chance, and not from the prosecutor. On the other hand, there would be “no problem” if the prosecutor did not intend to call Carlos.

According to defense counsel, Carlos told him these facts: Three or four years earlier, appellant had confronted Carlos with a sharp metallic object called a “dike.” Appellant said, “ ‘This is what I’m going to do to you,’ “ and stabbed Carlos’s skateboard with the dike. Somebody then took the skateboard and the dike. In a different incident a year later, appellant challenged Carlos to fight. Carlos did not want to fight, so he sat down. Appellant pushed Carlos down, and they got into a fistfight. Appellant left, returned with a big wooden object, again challenged Carlos to fight, and threw the object at a window. On another occasion, appellant ran after Carlos with a knife. Finally, Carlos had seen appellant threaten another person with a baseball bat.

The prosecutor responded that Jusue told him on July 7 that his friend “Thomas” could describe previous incidents involving appellant. (See footnote 2, ante, regarding the confusion over names.) At the prosecutor’s request, Jusue had “called back” with that friend’s name and birthday. The prosecutor had run the friend’s rap sheet and found “no hits.” On July 8, Jusue had arrived at court “unexpectedly” with that same friend, “Carlos.” There was no subpoena for Carlos, who had “just been waiting outside.” When the prosecutor interviewed Carlos at 9:00 a.m. on July 8, Carlos described the prior incidents in which appellant used a knife. The prosecutor had not disclosed Carlos’s possible testimony to defense counsel on the morning of July 8 because the court had ruled on July 7 that Carlos could only be a rebuttal witness, and the prosecutor thought the discovery law did not require disclosure of rebuttal witnesses. The prosecutor now sought to admit Carlos’s evidence in his case-in-chief, to explain the unprovoked attack on Jusue, or for motive.

After further argument, the prosecutor promised to give Carlos’s telephone number to defense counsel. The trial court ruled that Carlos was not to testify in the People’s case-in-chief, but might testify as a rebuttal witness, depending on what appellant testified. A ruling on whether Carlos would be a rebuttal witness was therefore postponed.

Later in the trial, the court said that, based on its additional research, it now understood that the prosecutor has a duty to disclose all witnesses, including rebuttal witnesses. It was concerned that the prosecutor had interviewed Carlos prior to opening statement and not told defense counsel what Carlos would say. Therefore, if the court later ruled after appellant testified that Carlos could testify, it would be willing to entertain a defense motion for a midtrial continuance, if the defense needed additional time to investigate Carlos’s information. The court found that no discovery violation had occurred, as defense counsel obtained Carlos’s information on the same day that the prosecutor did. Still, it ordered the prosecutor to turn over to defense counsel all information about Carlos.

After the People rested, defense counsel stated at bench that appellant was not going to testify, due to the risk of rebuttal witnesses. The court summarized its previous rulings. The prosecutor insisted that he had no duty to disclose the information from Carlos, whom he called “Thomas,” because he did not intend to call Carlos in his case-in-chief. The court decided to give the jurors additional instructions not to use opening statement as evidence or draw an inference from appellant’s failure to testify. It then polled the jurors, who all said they could follow that admonition. The court’s final instructions again reiterated the principles that the statements of counsel are not evidence, the verdict must be based solely on the evidence, and no inference can be drawn from a defendant’s failure to testify.

After the guilty verdict, appellant unsuccessfully moved for a new trial based on the discovery problem. At the hearing on that motion, the prosecutor clarified that he learned about Carlos from Jusue on July 7, but did not actually speak to Carlos until 9:00 a.m. on July 8. The court ruled that the prosecutor should have told defense counsel about Carlos at the start of the July 8 proceedings, but the prosecutor did not intentionally violate his duty under Penal Code section 1054.7 to immediately disclose information.[5]

B. Analysis

The parties dispute whether there was a discovery violation, the appropriate sanction if a violation occurred, and the existence of prejudice.

The reciprocal discovery provisions of the discovery law are designed “to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial.” (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201.)

Section 1054.1, subdivision (a) requires the prosecutor to disclose to the defense “[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial.” Subdivision (f) of that section requires disclosure of the statements, or reports of statements, of “witnesses whom the prosecutor intends to call at the trial. . . .” “If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately,” absent specified exceptions inapplicable here. (§ 1054.7.)

We are particularly struck by these facts: The prosecutor knew on July 7 that the defense was contemplating a defense of self-defense. He also knew that same day, from talking to Jusue, that Jusue had a friend who would say appellant possessed a knife in the past. The prosecutor promised to provide defense counsel with the name, number and rap sheet of that person. He ran the person’s rap sheet on July 7 after Jusue called him with the necessary information. When Jusue came to court on July 8 with that friend, Carlos, the prosecutor interviewed Carlos at 9:00 a.m., and did not tell defense counsel. Defense counsel happened to see Carlos and Jusue together outside the courtroom at the noon break that day, subsequent to opening statement. From talking to Carlos, defense counsel learned that Carlos was the person discussed the previous day, and he could describe past incidents in which appellant had actually used a knife. The prosecutor’s explanation for why he did not immediately disclose what Carlos told him at 9:00 a.m. was that Carlos could testify only as a rebuttal witness, and disclosure of rebuttal witnesses was not required. The court found that no discovery violation had occurred because defense counsel obtained the information from Carlos only three hours after the prosecutor did.

Unlike the trial court, we find a violation of the discovery law. “To establish on appeal a violation of section 1054.1, subdivision (a), in failing to disclose a witness, the record must affirmatively demonstrate that a specific witness or witnesses were known to and intended to be called by the prosecutor, but were undisclosed to the defense as required by the discovery chapter.” (People v. Tillis (1998) 18 Cal.4th 284, 292.) Here, the record affirmatively demonstrates that the prosecutor knew about Carlos, intended to call him as a rebuttal witness if the trial court permitted it, and failed to “immediately” disclose to defense counsel what Carlos told him at 9:00 a.m. on July 8, in contravention of section 1054.7. Carlos was a witness the prosecution could “reasonably anticipate[] it [was] likely to call” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11; see also People v. Tillis, supra, 18 Cal.4th 284 at p. 287), but defense counsel found out about him only because he happened to see him in the hallway.

The prosecutor’s explanation for nondisclosure showed that he had a major misconception about the applicable law. The prosecution is required “to disclose rebuttal witnesses as well as witnesses it intends to use in its case-in-chief.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 33, p. 79, citing Izazaga v. Superior Court, supra, 54 Cal.3d at pp. 375-376; see also People v. Jordan (2003) 108 Cal.App.4th 349, 356, 360.) “[T]he only reasonable interpretation of the requirement that the prosecution disclose ‘[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial’ is that this section includes both witnesses in the prosecution’s case-in-chief and rebuttal witnesses that the prosecution intends to call. The phrase ‘at trial’ means exactly that--at the trial, not merely during the prosecution’s case-in-chief.” (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 375.)

We also part company with the trial court regarding the appropriate sanction.

The trial court’s response to the discovery problem was to (a) preclude testimony from Carlos in the prosecution’s case-in-chief, (b) postpone a ruling on whether Carlos could testify as a rebuttal witness until after appellant testified, (c) promise to entertain a defense midtrial motion for a continuance if it later ruled that Carlos could testify in rebuttal, (d) repeat the instructions to base the verdict on the evidence and draw no inference of guilt from a failure to testify, and (e) poll the jurors individually on their ability to follow the instruction.

That response was inadequate, as the only sanction that could guarantee appellant a fair trial was outright exclusion of Carlos’s testimony.

Section 1054.5 sets forth a variety of possible sanctions for a discovery violation. In general, the sanction should not be broader than is necessary to guarantee a fair trial. (People v. Wimberly (1992) 5 Cal.App.4th 773, 792.) Exclusion of a witness’s testimony is to be utilized “only if all other sanctions have been exhausted” (§ 1054.5, subd. (c)), and “is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial.” (People v. Jordan, supra, 108 Cal.App.4th at p. 358, citing People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.) However, if lesser sanctions are inadequate, precluding the testimony of a witness has been found appropriate, even if the nondisclosure was not willful. (People v. Jackson, supra, 15 Cal.App.4th at p. 1203.)

In our view, the facts here showed “willful conduct motivated by a desire to obtain a tactical advantage at trial.” (People v. Jordan, supra, 108 Cal.App.4th at p. 358.) Regardless of his mistake of law, the prosecutor promised the court and defense counsel on July 7 that he would provide information about Jusue’s friend, and unilaterally decided on July 8 not to provide any information. He thereby obtained a tactical advantage, by keeping defense counsel in the dark about what Carlos said on July 8. Viewed as a whole, those circumstances establish willful conduct.

We also find significant prejudice from the discovery violation. We recognize that “[n]ot every discovery violation is a due process violation-only those that undermine confidence in the outcome.” (People v. Ochoa (1988) 19 Cal.4th 353, 474.) Our confidence in the outcome of this case is undermined for these reasons:

(1) Believing that he had received complete discovery, defense counsel gave an opening statement with the following detailed summary of anticipated defense testimony: Appellant was in the area to meet a female friend. Jusue approached appellant and said, “You got a problem?” Jusue had formerly been smaller than appellant, but now he was larger. Appellant could not “back down,” as “everybody would pick on him” in that community. He went into the alley with Jusue. He turned his back, turned around, and saw that Jusue had pulled out a knife. Jusue stabbed appellant, causing injuries. Appellant backed away. Jusue stabbed appellant “a couple more times.” Appellant could not run, because his bicycle was behind him. He decided to defend himself. “And as [appellant] grabs the knife, the arm with the knife, he punches him in the chest, causing the knife to fall. When he falls down, fearing for his safety, he’s already been stabbed twice, he grabs the knife, and at that moment [Jusue] starts banging his head, banging him in the head. Mr. Tuttle star[t]s jibing away from him with the knife. And obviously, as he just indicated to you, it was with a force that the knife went through [the arm], in fact, provoked by one thing. That kind of force could be generated by one or two things, deep anger. You hate this guy, want to stab him with anger or deep fear, stabbing fear, away, he’s already gotten blood on him. He’s fearing for his safety, stabs at him. As [Jusue] backs away, my client gets on his bike and rides away. He’s afraid for his safety here, rides away, ladies and gentlemen.”

Defense counsel added that appellant was afraid after the incident to say that Jusue provoked it, as Jusue immediately told the sheriff’s deputies that appellant stabbed him.

Respondent argues that, when defense counsel chose to make the foregoing opening statement, he had notice from the previous day’s proceedings that there was a friend of Jusue’s who could describe appellant’s prior possession of a knife. The flaw in that argument is that the prosecutor had promised the previous day that he would provide defense counsel with information about Jusue’s friend. When no such information was provided before the trial started, it was reasonable for defense counsel to assume that the prosecutor had decided not to use that witness. There was no way for defense counsel to know that the prosecutor had changed his mind about disclosure, and the witness was actually waiting outside in the hallway.

(2) The prosecutor received “the advantage of the disadvantage“ he had created by violating the discovery law (see People v. Gonzales, supra, 22 Cal.App.4th at p. 1757), when the trial court postponed a ruling instead of ruling that Carlos could not testify. That postponement meant the defense was forced to change tactics and abandon the defense it had promised to present, taking its chances on the jury not believing Jusue. It is impossible to overstate the effect of defense counsel’s abandonment of the clearly articulated defense he had presented in his opening statement. There was a serious risk that the jurors would believe that defense counsel had misled them or that he had no confidence in his client’s version of the incident.

(3) At two points in the prosecutor’s final argument, he took advantage of the failure of the defense to present evidence of self-defense. He told the jurors he expected the defense to argue that Jusue was lying, even though “what the defense was -- where they originally were which was self-defense, [sic] which is what they said they might try to show you.” He later argued, “And the defense now started in their opening of self-defense is now going to shift the burden. [Sic.] Now the only thing they do because I.D. is not an issue, because the injuries are not an issue, because the law is not an issue, they’re going to attack [Jusue].”

(4) Questions asked by the jurors show that they had concerns with the prosecution’s case. For example, the jurors wanted to know how and with whom Jusue arrived at school, the nature of his school, how appellant reacted when he was arrested, and whether Jusue initially named appellant as his attacker.

The combination of the above circumstances causes us to reject respondent’s argument that any error was harmless, whether we apply the standard of People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1966) 386 U.S. 18, 24.[6] On the facts of this case, it was an abuse of discretion to postpone a ruling on whether Carlos could testify, instead of excluding testimony by Carlos. We therefore reverse appellant’s conviction. On retrial, the prosecutor will have the opportunity to call Carlos as a witness, provided that Carlos’s testimony is ruled admissible by the trial court. We make no finding on the admissibility of his testimony. Also on retrial, appellant will have an opportunity to investigate Carlos, which will permit an informed decision on whether or not appellant wishes to testify.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J.

BOLAND, J.

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[1] According to a statement at a bench conference, Jusue was bigger than appellant at the time of trial.

[2] Out of an abundance of caution, we use first names for Jusue’s friends, as they may have been minors. The record contains inconsistent and confusing references to their names. Those problems do not affect our resolution of this case.

[3] Appellant was on probation for the Vehicle Code offense at the time of the crime alleged here. A probation violation was later found, based on this case.

All subsequent dates occurred in 2005 unless otherwise stated.

[4] In contrast, at the hearing on the motion for new trial, the prosecutor said that he “had no knowledge of how the defense was going to go” before opening statement.

[5] All subsequent code references are to the Penal Code unless otherwise stated.

[6] Respondent also argues that appellant waived this claim by not taking the witness stand. Given the repeated strenuous objections below, a finding of waiver is not justified.