P. v. Daniels

Filed 3/8/07 P. v. Daniels CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol Koppel, Judge. Affirmed.

Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Arlance Dion Daniels appeals from the judgment entered following his conviction by jury on count 1 possession of a controlled substance (Health & Saf. Code,  11350, subd. (a)) and count 2 possession of a smoking device (Health & Saf. Code,  11364) with admissions that he suffered a prior felony conviction (Pen. Code,  667, subd. (d)) and five prior felony convictions for which he served separate prison terms (Pen. Code,  667.5, subd. (b)). The court sentenced him to prison for six years.

In this case, in which appellant, by a discovery motion, sought exclusion of anticipated testimony from a deputy on the ground the People first disclosed it to appellant just before opening statements, we reject his contention that the trial court abused its discretion by denying the motion. Appellant claims the trial court tried to use its denial of the discovery motion to pressure appellant into accepting a plea bargain by exposing him to a trial at which the anticipated testimony would be admitted. However, the record fails to support the claim. Instead, the record reflects appellants trial counsel repeatedly raised the issue of plea negotiations but, because appellant personally had indicated he did not want to settle, the court indicated the matter should proceed to trial and if appellant later changed his mind and wanted to settle, he could do so.

Appellant also claims the trial court erroneously failed to grant a continuance to permit him to meet the anticipated testimony. Appellant never requested a continuance. Because appellant personally had indicated he did not want to settle, the trial court indicated it did not want to delay trial for further plea negotiations. However, the issue of continuing the trial to permit appellant to meet the anticipated testimony never arose.

As to whether a discovery violation occurred at all, appellant, in his opening brief, does not claim he was entitled to disclosure of the anticipated testimony under Californias discovery statutes; therefore, he has failed to demonstrate a discovery violation. Although appellant argues in his reply brief that the anticipated testimony was a report[] of the statement[] of [a] witness[] within the meaning of Penal Code section 1054.1, subdivision (f), we reject that argument because it is first raised in his reply brief.

On the merits, even if disclosure was required under Penal Code section 1054.1, subdivision (f), the prosecutor disclosed the anticipated testimony as soon he learned about it; therefore, no discovery violation occurred. Even if a discovery violation occurred, appellant never sought the usual remedy, a continuance, and exclusion of the anticipated testimony would have been improper since other remedies had not been exhausted. Finally, there was no prejudice from any discovery violation; therefore, reversal of the judgment is not warranted.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 11:30 a.m. on March 22, 2005, Los Angeles County Sheriffs Deputies Randy Megrdle and Richard Ellis saw appellant sitting in a car in a hotel parking lot in Los Angeles County. Appellant was sitting in the drivers seat. The cars registration had expired. The deputies determined that appellant was the cars registered owner, and that he had an outstanding traffic warrant. The deputies arrested appellant.

Ellis recovered a glass crack pipe from under the drivers seat of appellants car. Megrdle testified the pipe was commonly used to ingest illegal substances, especially, or only rock cocaine. When Ellis gave the pipe to Megrdle, appellant said, youre not going to charge me with that too.

Megrdle recovered a hotel key from appellant. Appellant identified which room was his, and deputies used the key to enter the room. Ellis testified there was no one else inside. Ellis also testified he saw a metal spoon containing a substance consistent with cocaine base on a nightstand between two beds. Megrdle testified he saw the spoon on a dresser adjacent to a television set.

Inside the dresser was male clothing and paperwork bearing appellants name. There was a bag containing female clothing in the room. The room appeared to have been occupied by more than one person, but no one was inside at the time. The spoon contained .07 grams of cocaine in base form.

Megrdle had training and experience in determining whether persons were under the influence of a controlled substance. Based on Megrdles observations of appellant, Megrdle thought appellant was under the influence. Melody Gray told deputies she was staying in the room with appellant. Megrdle saw no signs that Gray, who was pregnant, was under the influence.

Gray, a Peoples witness, subsequently testified as follows. On March 22, 2005, Gray was pregnant and appellant was her boyfriend. Gray was staying in the hotel room but not appellant. The spoon with the crack cocaine belonged to Gray. However, she told deputies at the scene that the spoon was not hers. Gray was shown a pipe at the scene and she said the pipe was hers. However, at trial, she denied the pipe was hers.

Megrdle later testified as follows. On March 22, 2005, Megrdle showed to Gray the crack pipe recovered from appellants car. Gray denied knowledge of the pipe and said that, because she was pregnant, she did not use illegal substances. When she was shown the items recovered from the vehicle and the room, she replied, Hell, no. Im pregnant. Appellant presented no defense evidence.

CONTENTION

Appellant contends the trial court abused its discretion by denying his discovery motion.

DISCUSSION

The Trial Court Did Not Erroneously Deny Appellants Discovery Motion.

1. Pertinent Facts.

a. Discovery Motion.

On Monday, July 18, 2006, shortly before the People presented their opening statement, the court, outside the presence of the jury, indicated as follows. Counsel for the parties twice told the court that there was new discovery regarding a test conducted on appellant and an alleged defense witness. The court explained that a deputy had observed appellant and the defense witness, and the deputy would testify appellant had symptoms of being under the influence of a drug.

Appellant complained it was unfair that the prosecutor was informing appellant about the anticipated testimony just before opening statements. Appellants trial counsel, Stuart Dumas, argued he had a duty to prepare a defense to permit him to negotiate a disposition based on all the evidence that reasonably should have been known.

The court indicated the prosecutor had just received the information that day, and the information was neither in the police report nor in the preliminary hearing transcript. The court indicated the deputies were in court the previous Thursday, the case was three months old, and Dumas had conversed with the deputies.

Dumas replied he previously had talked to the deputies but had not specifically asked about whether appellant had displayed symptoms of being under the influence. Dumas did not state why he had failed to ask. Appellant argued the presentation of the anticipated testimony was untimely and he was not charged with being under the influence; therefore, in the interests of justice and fairness to appellant, the court should exclude the anticipated testimony. In the alternative, appellant asked the court to impose a sanction for late discovery.

The court indicated as follows: It was the courts understanding that appellants defense would be that he did not possess the cocaine and the amount was de minimis. The anticipated testimony was admissible to rebut that defense; therefore, there was no reason not to receive the testimony as part of the Peoples case-in-chief. Appellant argued he might not put on any defense evidence, but agreed the anticipated testimony was relevant.

The following later occurred: [Dumas]: . . . This isnt a new witness that just came out of nowhere. This isnt a new -- or scientific -- [] The Court: He brought it on himself. Dumas replied, So he just found out about it himself; that doesnt mean that he couldnt have found out about it a long time ago. Dumas continued, It doesnt mean that the officers couldnt have put it in the police report or . . . mentioned . . . it[.] Dumas later argued, We sat here and we spent a long time to try and resolve this case based on everything we knew about the case. The court later commented, it should be given an opportunity to resolve the matter right now. Dumas replied, Great.

The court then stated, But I dont want to recess it and keep the jury waiting. The court stated, [Appellant] doesnt want to settle; he thinks youve got a good defense. So why dont we just hear the witness -- today and settle along the way . . . .

Dumas replied the Peoples plea bargain offer, a prison sentence of eight years with execution of sentence suspended, was not a good offer. The court said that, based on appellants background, all of the facts, and the fact that appellant had never been successful on probation or parole, the high term even would be good because this is his last chance, it sounds like. And with this new evidence coming in.

Dumas replied, High term[^[1]] suspended and the drug program. The prosecutor explained that the eight year offer consisted of the upper term doubled, plus two prison priors, and the court agreed. Dumas replied, Three years joint suspended, your Honor. And a program. The court indicated eight years was more appropriate, and reminded appellant that the court, on a previous day, had explained to Dumas why eight years was appropriate.

The court ruled the anticipated testimony was admissible. The court did not expressly grant or deny appellants request for a discovery sanction, except to the extent appellants request for exclusion of the anticipated testimony was a request for a discovery sanction and the court denied it.

b. Trial Testimony.

As mentioned, Megrdle testified he had training and experience in determining whether persons were under the influence of a controlled substance and, based on Megrdles observations of appellant, Megrdle thought appellant was under the influence.

During cross-examination, Megrdle testified that, in his expert opinion, appellant was under the influence of a controlled substance, in particular, a stimulant. Megrdle did not put that in the police report. The first time Megrdle told the prosecutor about this observation was the afternoon of July 18, 2006, when Megrdle discussed it with him. A section of the police report had a box to check if a suspect was under the influence, but the box was not checked. Megrdle testified that that was for secretarial purposes only, it had nothing to do with the report, and a different form was used in connection with a person under the influence.

Megrdle did not ask appellant to take a blood test, but he was not charged with being under the influence and Megrdle did not feel it necessary to charge him with that crime. The crime of being under the influence was a misdemeanor. Megrdle did feel it necessary to charge appellant with possessing a smoking device, and that crime was a misdemeanor. During redirect examination, Megrdle testified he wrote reports mainly to refresh his recollection and to make a mental picture of events. The report was not a transcript of everything that had happened.

2. Analysis.

a. The Court Did Not Pressure Appellant To Accept A Plea Deal.

Appellant asserts the trial court misused the denial of a discovery motion to pressure him to accept a plea deal. We reject the assertion. Indeed, the record suggests that what really happened here is that trial counsel sought to parlay a discovery issue into a more favorable plea bargain for appellant.

The record demonstrates it was appellant who introduced the issue of plea negotiations and sought to dicker with the court concerning a sentence. After the issue of the anticipated testimony arose, the first reference to plea negotiations occurred when Dumas said he had a duty to prepare a defense to negotiate based on all the evidence that should have reasonably been known at the time to get a disposition on this case. The court did not then discuss negotiations, but addressed appellants claim that he was just learning about the anticipated testimony.

As appellant notes, the court did state, He brought it on himself, but the court stated this in reply to appellants arguments about fairness, newly discovered evidence, and new witnesses. Neither the court nor appellant were discussing negotiations at that point.

It was appellant who reintroduced the issue of negotiations when Dumas said, We sat here and we spent a long time to try and resolve this case based on everything we  knew about the case. Only after that did the court state it should be given an opportunity to resolve the matter right now. Appellant did not object to the courts statement on the ground the court was pressuring appellant. Instead, Dumas replied, Great.

Moreover, the court subsequently commented it did not want to keep the jury waiting, a comment inconsistent with an effort by the court to obtain a conviction by plea. In fact, the court acknowledged appellant did not want to settle and thought he had a good defense. In that context, the court stated, So why dont we just hear the witness . . . today and settle along the way. That is, not only was the court not pressuring appellant to settle, but the court, willing to defer to appellants then-present unwillingness to settle and his desire to try the case, proposed that the trial go forward with the understanding that appellant might later change his mind and wish to settle.

However, Dumas rejected the courts proposal and insisted on pressing the issue, replying, Peoples offer of joint eight years suspended is not a good offer. Appellant then began dickering about his sentence and, in that context, the court explained why it thought eight years suspended was appropriate before the court returned to the admissibility issue. Appellant did not accept a plea deal; a jury convicted him.

The burden is on appellant to demonstrate error; error will not be presumed. (In re  Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Appellant has failed to demonstrate that the trial court misused the denial of a discovery motion to pressure appellant to accept a plea deal.

b. The Court Did Not Erroneously Fail to Grant a Continuance. Appellant also asserts the trial court should have granted a continuance to permit appellant to respond to the anticipated testimony. However, appellant never requested a continuance to meet the anticipated testimony. Moreover, it is true the court commented that the court did not want to recess and keep the jury waiting. However, the context demonstrates the court was indicating, not that it would not continue the matter to permit appellant to meet the anticipated testimony, but the court did not want to delay matters for further plea negotiations.

c. No Discovery Violation Occurred.

(1) Applicable Law.

Proposition 115, adopted by voters in 1990, contained Penal Code section 1054, et  seq. Those sections set forth Californias criminal discovery statutory scheme, an almost exclusive procedure for reciprocal discovery in criminal cases. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1311 (Barrett).) Penal Code section 1054, states This chapter shall be interpreted to give effect to all of the following purposes: . . . [] (e) To provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.^[2](Italics added.)

Pursuant to the statutory scheme, the prosecutor is required to disclose various information, specified in Penal Code section 1054.1, subdivisions (a) through (f),^[3]if the information is in the prosecutors possession or the prosecutor knows it to be in the possession of the investigating agencies. The list of categories of information specified in Penal Code section 1054.1, subdivisions (a) through (f), is exclusive. (Barrett, supra, 80 Cal.App.4th at pp. 1313, 1317.)

Penal Code section 1054.5, subdivision (a), states, No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, [or] law enforcement agencies which investigated or prepared the case against the defendant, . . . (Italics added.) Penal Code section 1054.5, subdivision (b) discusses enforcement of required disclosures, and subdivision (c), states, inter alia, The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted.

Penal Code section 1054.7, states, in relevant part, The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. 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, unless good cause is shown why a disclosure should be denied, restricted, or deferred.

(2) Analysis.

We note at the outset that the trial court never expressly granted or denied appellants discovery motion except to the extent appellants request for exclusion of the anticipated testimony was a request for a discovery sanction and the court denied it. Except to that extent, we might have concluded that appellant, by failing to secure a ruling on the motion, waived any issue pertaining to it. (See People v. Brewer (2000) 81 Cal.App.4th 442, 459-462; People v. Heldenburg (1990) 219 Cal.App.3d 468, 474-475; People v. Rhodes (1989) 212 Cal.App.3d 541, 554; Evid. Code, 353.) However, there is no need to decide that issue.

As mentioned, the anticipated testimony was that a deputy would testify that appellant had symptoms of being under the influence of a drug. Moreover, as also mentioned, the list of categories of information specified in Penal Code section 1054.1, is exclusive. Appellant, in his opening brief, does not claim that the anticipated testimony fell within any particular category of information listed in section 1054.1. Appellant has failed to demonstrate a discovery violation. (In re Kathy P., supra, 25 Cal.3d at p. 102; People v. Garcia, supra, 195 Cal.App.3d at p. 198.)

Appellant, for the first time in his reply brief, claims the anticipated testimony fell within the category specified in Penal Code section 1054.1, subdivision (f). We reject the claim because it is first raised in appellants reply brief. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Appellant is raising a discovery issue, and we reasonably might have expected appellant to refer in his opening brief to Penal Code section 1054 et seq., Californias nearly exclusive criminal discovery statutory scheme, or at least to Penal Code section 1054.1.

Moreover, as to the merits, the deputys anticipated testimony suggested the deputy made a statement to the prosecutor, namely, that appellant had symptoms of being under the influence of a drug. We assume without deciding that this statement was a report[] of the statement[] of [a witness] within the meaning of Penal Code section 1054.1, subdivision (f), and that appellant was entitled to this information. (Cf. Roland v. Superior Court (2004) 124 Cal.App.4th 154, 160.)

However, in the present case, the court indicated that counsel for both parties had twice indicated to the court that the anticipated testimony was new discovery. The court indicated the prosecutor said he just got the information just today[.] Appellant disputed whether the evidence was newly discovered. However, at one point, Dumas, apparently referring to the prosecutor, appeared to acknowledge, he just found out about it himself; but suggested the prosecutor might have been able to find out earlier. Appellant concedes in his statement of the case in his opening brief that [t]he prosecutor stated that he just discovered the testimony that same day.^[4]

The disclosure obligation of Penal Code section 1054.l, applies, by its terms, if the information is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies[.] (Italics added.) The trial court reasonably could have concluded the prosecutor first knew, on July 18, 2006, about the deputys anticipated testimony. Moreover, in that circumstance, Penal Code section 1054.7 required only that the prosecutor disclose the information immediately, which is what happened.

Appellant concedes the trial court had broad discretion with respect to ruling on discovery issues. If we accepted appellants argument, we would be holding that the courts denial of appellants discovery motion was irrational, capricious, or patently absurd (People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985) 176  Cal.App.3d 442, 446) and without even a fairly debatable justification. (People v. Clark (1992) 3 Cal.4th 41, 111.) Based on the record in the present case, we cannot come to that conclusion. Appellant has failed to demonstrate a discovery violation of Penal Code section 1054.1, subdivision (f). (In re Kathy P., supra, 25 Cal.3d at p. 102; People v. Garcia, supra, 195 Cal.App.3d at p. 198.)

Even if a discovery violation occurred, appellant never requested a continuance. He waived the issue of whether the trial court should have granted one. (Cf. People v. Alcala (1992) 4 Cal.4th 742, 782.) Moreover, the usual remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance. (People v. Robbins (1998) 45 Cal.3d 867, 884.) Further, appellant sought exclusion of the anticipated testimony, an impermissible sanction since other sanctions had not been exhausted. (Pen.  Code,  1054.5, subd. (c).)

Finally, even if appellants discovery motion was improperly denied, appellant agreed that the anticipated testimony was relevant. He never suggested to the court during argument on the motion that the deputys testimony might be false. In fact, the record suggests the truth of the anticipated testimony motivated appellant to insist on further plea negotiations. Appellant concedes [t]here was no direct evidence at trial that the respondent intentionally delayed disclosing the expert testimony against appellant. Appellant never requested a continuance to meet that testimony.

If the deputys observations occurred, appellant was obviously present at the time and presumably could have advised Dumas of the test conducted by the deputy. If it did not occur, appellant thoroughly cross-examined Megrdle on the issue at trial and elicited testimony from which appellant could have argued that the test did not occur. Dumas had previously spoken with the deputies. Dumas did not explain why he had not asked the deputies about the issue. Both deputies saw cocaine in the room. Appellant had been sitting in the drivers seat of his car, and Ellis recovered the pipe from under the drivers seat. Ellis showed the pipe to Megrdle. The jury reasonably could have concluded Grays testimony that the cocaine was hers was fabricated. The denial of appellants discovery motion was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] We note the high term on count 1 was six years. (Health & Saf. Code,  11350, subd. (a).)

^[2] Appellant presents no federal constitutional claim.

^[3] Penal Code section 1054.1, states, in relevant part, The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [] (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [] (b) Statements of all defendants. [] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [] (e) Any exculpatory evidence. [] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.

^[4] We note that, at trial, Megrdle testified that the first time he told the prosecutor about his observation was the afternoon of July 18, 2006, when Megrdle discussed it with him.