IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ISSUE PRESENTED

            The sole issue presented by this petition is whether the Superior Court has the authority to exclude the testimony of a prosecution witness, whose identity was disclosed to the defense after the trial had begun and critical testimony has already been adduced by the prosecution, if the Superior Court finds that 1) the disclosure delay was prejudicial to the defense; 2) a continuance in the trial would not cure the delay; but 3) the disclosure delay was not willful on the part of the prosecution.

            In support of the requested Writ of Mandate, petitioner, by this verified petition, alleges as follows:

I.

Defendant, Def Witness, was ultimately arraigned on a first amended information alleging violations of Vehicle Code §§§ 20001(a) (leaving the scene of an accident causing injury), 23153(a) (DUI causing injury), and 23153(b) (DUI with BAC above .08% causing injury).  See Exhibit A attached:  Copy of information dated October 22, 2007.

II.

At the preliminary hearing on August 21, Witness testified.  She identified defendant as the driver who left the scene of the accident.  See Exhibit B attached:  Copy of transcript dated August 21, 2007.

III.

On October 28, 2007, a 402 hearing was conducted regarding the possible suggestiviness of the lineup where Mr. Witness was identified by Witness.  Ms. Witness again testified at length about her identification of Mr. Witness.   The court ruled that Ms. Witness will be permitted to testify at trial about her identification of Mr. Witness.   See Exhibit C attached:  Copy of transcript dated Monday, October 28, 2007.

IV.

On October 29, the DDA DA DA submitted her formal witness list to the court.  This list did not include Def.  See Exhibit D attached:  Prosecution witness list dated October 29, 2007.

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V.

On October 30, 2007, jury selection began.  See Exhibit E attached:  October 30, 2007 minute order.

VI.

Jury selection continued on October 31, 2007, and the jury was selected on November 1, 2007.  See Exhibits F and G attached:  Minute orders from October 31, 2007 and November 1, 2007.

VII.

On November 5, 2007, opening statements were made and the prosecution began presenting her case.  The first witness was the victim.  She was unable to identify the driver.  The next witness was Witness, the sole ID witness.  The third witness was Officer Cop.  The trial was adjourned until the following day.

VIII.

On November 6, 2007, in the morning, DDA DA DA, met with defense counsel and the court.  She said that she was just handed (by Officer Def) a previously undisclosed police report, authored by an Officer Cop, who interviewed Def at the scene.  Miss Def also identified Mr. Witness as the driver.

IX.

In the morning of November 6, 2007, defense counsel asked that Ms. Def be precluded from testifying, because the entire defense was predicated on the premise that there was only one ID witness, whose identification of Mr. Witness was shaky at best.  Judge X reserved ruling on the issue.

X.

In the afternoon of November 6, 2007, DDA DA presented a bench brief re: late discovery.  See Exhibit H attached.

DDA DA presented the remainder of her witness, which did not deal in any way with identification of the defendant.

XI.

After DDA DA presented her remaining witnesses, and the jury was excused for the day, a lengthy discussion was held on the record regarding the remedy for the late discovery.  Judge X reserved ruling on the issue.

XII.

The morning of November 7, 2007, DPD f prepared a response to the Bench Brief re: Late Discovery.  See Exhibit I.  There was no testimony that morning.  Again a lengthy discussion was on the record about the possible exclusion of Miss Def's testimony.  Judge X reserved ruling until the afternoon.

XIII.

The afternoon of November 7, 2007, Judge X ruled that the defense has shown prejudice as a result of the late discovery, because the defense was predicated on a theory that the only eyewitness identification was shaky at best.  He also ruled that a continuance would be meaningless because core issue of the case was the sole witness.  However, Judge X felt that he had no authority to exclude the witness because the defense did not show that DDA DA's late discovery was in any way willful on her part.  Therefore, Judge X felt that he had to allow the testimony of Miss Def.  He did, however, give defense counsel the option of a continuance to investigate the witness (although he agreed that it would not help in this case), or a stay in the trial to give her an opportunity to file a writ. 

XIV.

With the defense agreement (given the limited options at that point), Judge X excused the jury until Monday, November 19, 2007.  The case is scheduled for a status hearing on Thursday, November 15, 2007.

XIV.

The refusal of Respondent Court to preclude Def's testimony, based on his erroneous interpretation of the case law, constitutes an abuse of discretion.  It is a violation of Petitioner's constitutional rights, in that he now is forced to choose among agreeing to a noncontinuous trial (in order for this writ to be filed, or to investigate the witness), or asking for a mistrial that was neither contemplated nor desired.

XV.

Petitioner has no plain, speedy, or adequate remedy at law.  Unless restrained by this court, petitioner and his counsel are placed in the dilemma of not being able to present a meaningful defense at trial.

XVI.

Petitioner is the party beneficially interested in these proceedings and an aggrieved party in the proceedings in the respondent court.  The other interested parties are the respondent, the San Bernardino Superior Court, and the real party in interest, the People of the State of California, by and through their attorney, D.A, District Attorney of the County of San Bernardino.  All actions complained of in this Petition have occurred within the territorial jurisdiction of the respondent court and the Court of Appeal of the State of California, Fourth Appellate District, Division Two.

XVII.

No other petitions seeking relief sought herein have been filed by or on behalf of the petitioner.   

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WHEREFORE, Petitioner prays that:

1.         A peremptory Writ of Mandate be issued directing the respondent court

to set aside its order announced on November 6, 2007, allowing the testimony from Def, and

2.         For such other and further relief as the court deems appropriate and in the interests of justice.

VERIFICATION

            I, DEF ATTORNEY, declare that I am an attorney duly licensed and admitted to the practice of law before all courts of the State of California and am a Deputy Public Defender for the County of San Bernardino.  I am the trial attorney for Petitioner, Def Witness, in Case No. FSB703036 now pending in the Superior Court of the State of California in and for the County of San Bernardino and in that capacity I appeared with and represented Petitioner from his arraignment on information on September 5, 2007 through present.

I have read the foregoing Petition for Writ of Mandate and all documents lodged in support thereof.  I know the contents of the foregoing Petition for Writ of Mandate and declare that the same are true of my own personal knowledge.

            I declare under the penalty of perjury that the foregoing is true and correct.

            Executed this 7^th day of November 2007, at San Bernardino, California.

                                                                                                                                                                                                            DEF ATTORNEY

MEMORANDUM OF POINTS AND AUTHORITIES

            Petitioner, Carlos Witness, by and through his attorney the Public Defender of the County of San Bernardino, respectfully submits the following Memorandum of Points and Authorities in support of his Petition for Writ of Mandate.

I.                   A PROPER SANCTION FOR LATE DISCOVERY IS THE EXCLUSION OF THE PROFFERED TESTIMONY.

In People v. Reyes et.al. (1974) 12 Cal.3d 486, Mr. Reyes was convicted of murder.  At trial, the district attorney presented eyewitness testimony of Henry Meade, Emily Mallas, Marilyn Stoeltje, and Melba Penn, all of whom either identified Reyes or gave a description that matched Reyes.  This testimony placed Reyes at the scene of the crime.  John Sanderson, a bartender, placed Reyes at a nearby bar just after the murder.  A consent search at Reyes' home revealed bloody clothes and the victims' wallet.  Reyes' palm print was in the victim's apartment, and his car was found at the victim's apartment. At trial, Reyes confessed to the killing.    Id. at 491-494.  At the time of the crime, the police also interviewed another neighbor of the victim, Deborah Routh; however, they were not impressed with her, given the fact that she had a reputation in the community as a liar and a drunk.  No report was generated.  Id. at 494.  However, they reinterviewed her after the trial began, and the district attorney called her to testify. 

The trial court found that the failure to disclose Ms. Routh's information prior to trial was "inadvertent, unintentional, and without negligence.  It further found that the failure did not sufficiently prejudice [] appellant such as to justify excluding Mrs. Routh's testimony or granting a mistrial.  The court's ruling was correct."  Id. at 502 (emphasis added).  The court noted that, if the "failure to disclose was not willful, should not be punished by exclusion, but rather a continuance to meet the new evidence."  Ibid. Emphasis added.

The court stated that "[Reyes fails] to show that failure of the police to comply with the discovery order earlier resulted in prejudice that could not be cured by the granting of a continuance.  The burden is on [] [the appellant] to establish prejudice on the failure to comply with a discovery order."  People v. Reyes, et.al., supra, 12 Cal.3d 486, 502.

In People v. Pinholster, (1992) 1 Cal.4th 865, the Court cited Reyes favorably.  It noted that two witnesses were not disclosed to the defendant until the middle of trial.  These witnesses would testify about prior consistent statements made to them by a critical prosecution witness.  People v. Pinholster, supra, at 941.  The court did note "some skepticism" about the prosecutor's claim that she did not think it would be relevant, but it did not rule on the willfulness of the prosecution's conduct. Ibid.  One of the witnesses was never called to testify, so "it is inconceivable that any delay in disclosing her identity could have affected the defendant, since [she] did not testify."  Ibid.  The trial court offered "as much time as you want" to the defense counsel to investigate the other witness, and Supreme Court noted "There is no suggestion that the defense would have been different had defendant been aware of [the witness'] testimony before trial."  Ibid (emphasis added).

The willfulness issue was fully addressed in People v. Jackson (1993) 15 Cal.App.4th 1197.  In that case, the defense handed over a statement from a witness who made a declaration against her penal interest.  The court refused to permit the testimony because of the late discovery.  People v. Jackson, supra, at 1200.  The appellate court upheld the trial court's ruling.  It stated:  "The [trial] court granted the People's motion to preclude the statement, because no other sanctions would suffice.  Id at p. 1201.  Although the appellate court seemed to share the trial court's skepticism about the defense claim that the nondisclosure was not willful, it stated:  "Even if withholding the identity of the witness were not willful, lesser sanctions would not have been adequate."  Id. at p. 1203.  Emphasis added.

In the instant case, the court has repeatedly stated, on the record, that he feels that lesser sanctions would not cure the defect.  The crux of the trial was the fact that only one witness identified Mr. Witness as the driver.  This issue was heavily litigated throughout the preliminary hearing and pretrial motions.  It was discussed at length during jury selection.  In opening statements, each attorney spoke of only one witness who would identify Mr. Witness as the driver.  And indeed, the sole witness testified.  Only after this did the "new" witness come to the attention of the defense.  This is a bell that cannot be unrung.  It wasn't a remark made in passing that the jury could disregard.  The trial court has, in fact ruled that it is prejudicial, and a continuance (or jury instruction) would not remedy the situation.  He has also ruled that the eyewitness identification is the crux of the case.   This is not a case where the other evidence of the defendant's guilt is so overwhelming, the addition of the new evidence, even if in error, would be harmless.  This is exactly the case envisioned by the appellate courts that would require exclusion of the witness.  And the trial court would exclude it, if he felt he was permitted to do so based on the case law.

II.                EVEN ASSUMING THAT THE LATE DISCLOSURE WAS NOT WILLFUL, THE WITNESS MUST STILL BE EXCLUDED, BASED ON THE PROSECUTOR'S ABSOLUTE DUTY TO TURN OVER EVIDENCE.

Although it is clear that "willfulness" on the part of the prosecutor has very little bearing on the court's administration of sanctions for late discovery, there was much discussion in the trial court on that very issue, so it should be addressed. 

            In In re Brown (1998) 17 Cal.4th 873, the court provides an excellent discussion of the prosecution's discovery obligations.  In that case, Mr. Brown's defense to capital murder was diminished capacity from methamphetamine use (the murder occurred in 1980, prior to the enactment of Penal Code § 28), despite the fact that the district attorney introduced a lab result sheet, which indicated that Mr. Brown's blood tested negative for any drugs.  In re Brown, supra, 17 Cal.4th 873, 876.  Only after he was convicted did the defense become aware of the lab worksheet (as opposed to the result sheet) that indicated a presence of PCP.  Id at p. 873.  The Court relied on the fact that "the referee [who was given the task of figuring out who knew what, and when] impliedly found the prosecutor had no knowledge of the worksheet and thus could not have disclosed it."  Id. at 878. 

However, this does not excuse the prosecution:  "Courts have thus consistently ‘declined to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team' which includes both investigative and prosecutorial personnel.'" In re Brown, supra, 17 Cal.4th 873, 879 (quoting United States V. Auten (1980) 632 F.2d 478, 481).  Further, "'[t]he individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation." Ibid. 

            Lastly, "any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.'" In re Brown, supra, 17 Cal.4th 873, 881 (quoting Kyles v. Whitley, 514 U.S. 419, 438).

            The Reyes court opined that if a defendant can establish prejudice, and if a defendant can show that a continuance cannot cure the prejudice, then the trial court can exclude testimony.  In Mr. Witness's case, he has amply demonstrated that he has been prejudiced by the disclosure of the second ID witness, and he has demonstrated that a continuance would be meaningless.  Judge X agreed with Mr. Witness regarding these issues.  However, Judge X feels that he is without authority to exclude the witness, which is in error.  Willfulness can be a factor when deciding the severity of the sanctions.  However, a defendant's right to a fair trial, and a speedy trial, cannot be compromised merely because the prosecution denies culpability and pawns off her discovery obligations onto the police department.  If that were the test, then a defendant who has the misfortune of being prosecuted by a "nice" but derelict district attorney would have to suffer through a meaningless trial with a late-disclosed witness, while a defendant being prosecuted by a "mean" DA who purposely hides discovery would get the witness testimony excluded.  Mr. Witness's constitutional right to due process and a fair trial cannot be subject to the vagaries of who happens to be assigned to his case.

CONCLUSION

            Mr. Witness has demonstrated, and Judge X agreed, that he is prejudiced by the late discovery.  Judge X also agreed that a jury instruction, or a continuance to investigate the "new" witness, would be meaningless, since the jury has already been promised, and provided, a "one-witness" defense.  It is not necessary for the defense to show willfulness on the part of the district attorney in order for Judge X to preclude the testimony of Miss Def.  Therefore, it is respectfully requested that the court issue the Writ of Mandate prayed for.

Dated:                                                                         Respectfully Submitted,

                                                                                    DOREEN BOXER,

                                                                                    Public Defender

                                                                        By:                                                                                                                                                      DEF ATTORNEY

                                                                                    Deputy Public Defender and

                                                                                                                                                                                                                                    GEORGE TAYLOR

                                                                                    Deputy Public Defender

                                                                                    Attorneys for Petitioner