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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY FRANCISCO MORENO,
Defendant and Appellant.
A117250
(Lake County Super. Ct. No.
CR911259)
Following a jury trial, defendant Anthony Francisco Moreno was sentenced to state prison for three years for felony drunk driving. On this timely appeal, he presents a single contention, namely, that the trial court abused its discretion when it denied his motion for a mistrial made on the first day of the trial when it was discovered that the prosecution had not made the full measure of required disclosure prior to the start of the trial. We conclude that the trial court had a sound basis for concluding that the delayed production of the information did not result in prejudice to the defense. We further conclude that the trial court did not abuse its discretion in refusing a mistrial. We thus affirm.
BACKGROUND
On December 21, 2006, the District Attorney of Lake County filed an information with three counts: (1) defendant drove a vehicle "while under the influence of an alcoholic beverage," a felony (Veh. Code, § 23152, subd. (a)) ; (2) defendant drove a vehicle "while having 0.08 percent, by weight, of alcohol in his blood," also a felony (§ 23152, subd. (b)); and (3) defendant drove a vehicle "when his . . . driving privilege was suspended and revoked for driving under the influence of an alcoholic beverage," a misdemeanor (§ 14601.2, subd. (a)). It was further alleged in the information that defendant had five prior drunk driving convictions, and that he had "refused a peace officer's request to submit to, and willfully failed to complete[] a chemical test" (§ 23577).
Opening statements and the start of testimony occurred on February 15, 2007. The first witness was California Highway Patrol Officer Joseph Wind, who testified as follows:
About 9:30 p.m. on November 23, 2006, he was on duty when he received a report from Officer Steven Tanguay of a "vehicle collision, on the Hopland grade. So I responded to assist him." When Wind arrived at the scene, he found Tanguay and defendant. After putting out flares on the road, Wind investigated the scene and found a vehicle which he determined had gone off the road and broken through a wire fence. Wind found fresh skid marks starting on the highway that went "off the roadway to the area of disturbed dirt and essentially up to the vehicle."
Officer Wind further testified that the area was unlighted, and there was no rain. Wind found dents and scratches on the front and side of the vehicle. He inspected the interior of the vehicle; he found no alcohol, and could not find the keys to the vehicle. Wind spoke to defendant "after he said his license was suspended." Defendant did not deny driving the vehicle. Wind was present "when Officer Tanguay advised him [defendant] of the PAS, the preliminary alcohol screening test admonishment. Suffice it to say, he didn't want to take it. So . . . that is when Officer Tanguay placed him under arrest."
Later that night, Wind testified that he was dispatched to Sutter Lakeside Hospital because "Officer Tanguay had asked his dispatch to send him additional units, that he was having problems with the subject." At the hospital Wind saw defendant in Officer Tanguay's vehicle; Tanguay was there with two other CHP officers. Defendant, who had been "cooperative" at the accident scene, was now "agitated." Wind testified that he "tried to explain to him the refusal process" and the consequent "forced blood draw." So did Officer Garcia. Defendant "still refused" to undergo "the chemical testing." According to Officer Wind, defendant "didn't have very nice things to say to me—or about me."
After Officer Wind left the stand, the court advised the jury "there has been a stipulation entered into by the parties, and that stipulation as to Count 3, the misdemeanor violation of Vehicle Code section 14601.2, . . . it is stipulated that the defendant's driving privilege was suspended for a reason within the meaning of Vehicle Code section 14601.2(a) and that on November 23rd, 2006, he had knowledge that his license was so suspended."
Officer Steven Tanguay was the next witness. He testified that after being dispatched to the scene, he found defendant standing by road, approximately 200 feet from the crashed vehicle. After learning that defendant was not injured, Tanguay asked for ID and "what happened." Defendant produced "a California identification card." Tanguay asked "Well, where's your license? And he told me that it was suspended." Defendant told Tanguay "the he was driving westbound on [highway] 175. I asked him about how fast he thought he was going. He said about 35. And then he stated that there was this white truck that was coming towards him around the corner that was in his lane, and so he had to turn the wheel, otherwise it was going to be a head-on crash. So he said his car went off the road. He said he got out, ran to see if the white truck would stop, and it didn't. And he was very upset about that."
Tanguay further testified that he then "reconfirmed that he was driving the car": "I asked him if anyone else was in the car at the time of the crash, thinking that if there was somebody else in the car, I wanted to make sure they weren't lying in the field somewhere or, you know, who knows what happens to passengers in a crash. I asked him if there was anyone else in the car at the time of the crash, and he said no, there wasn't."
By this time, Tanguay had noticed things that led him to suspect defendant might be under the influence: defendant's eyes were red and watery, his speech was slurred, and the officer smelled alcohol on his breath. Defendant told Tanguay he had slept about six hours the previous night. He was driving home from Thanksgiving at his brother's home, where he had consumed four beers between 5:00 p.m. and 8:30 p.m. that night. When Tanguay asked if defendant felt "the effects of alcohol," defendant replied "he thought he made a mistake when he got behind the wheel."
Tanguay further testified that he then administered a number of field sobriety tests—and defendant flunked them all. Tanguay then decided to test defendant with the Preliminary Alcohol Screening Device, also know as a breathalyzer. When Tanguay "asked if he would blow into this machine to help me. . . determine where he was at this point," defendant refused, saying, "If I blow into that thing, you and I both know that you're going to take me to jail." Tanguay concluded that defendant was "under the influence of alcohol" and arrested him.
Tanguay testified that "I then gave him the implied consent law, which is basically your choice of a breath test or a blood test." Defendant replied "he would take a blood test." Defendant was driven to Sutter Lakeside Hospital. Once at the hospital, however, defendant refused to have blood drawn. After Officers Wind and Garcia failed to change defendant's mind, he was driven to Red Bud Hospital for a "forced blood draw." It was there that a blood sample was taken at approximately 12: 30 a.m.
On cross-examination, Officer Tanguay admitted he did not know how word of the accident first came to the CHP dispatcher who sent the officers to the scene. Shortly after defendant's counsel began his cross-examination, he asked Officer Tanguay about defendant's version of how the accident occurred:
"Q. BY MR. RHOADES [Defense Counsel]:You said that Mr. Moreno initially advised you or at least early in your contact with him that essentially he had been run off the road or swerved to avoid an oncoming vehicle; is that correct?
"A. Yes.
"Q. Did you place that information within your report anywhere?.
"A. On Mr. Moreno's statement.
"Q. On Mr. Moreno's statement?
"A. Yes.
"Q. What page of your report would that be?
"A. May I refer?
"Q. Sure.
"A. Thank you. [] Last paragraph of page 8.
"Q. Your page 8?
"A. Yes . . . . It's under ‘Statements.'
"MR. MCKILLOP [Prosecutor]: Page 16 of ours.
"Q. BY MR. RHOADES [Defense Counsel]: I'm looking at page 8 of your narrative where it says ‘Parties." Is that the page?
"A. Yes, then, ‘Physical evidence,' and then the heading of, ‘Statements.'
"(PAUSE IN THE PROCEEDINGS)
"MR. RHOADES: Judge, may we have a brief out of presence hearing?
After the jury left the courtroom, defense counsel addressed the bench:
"MR. RHOADES: Judge, I have a bit of a problem. This is not the officer's fault, as best I can tell anyway. I'm looking at what's considered to be discovery page 16 that was provided to me. It's listed at the top as, ‘Narrative Supplemental.' It shows page 8 in I presume this officer's handwriting. However, on this page the only thing listed is, ‘Parties.' There's nothing on this page beyond that point.
"Mr. McKillop just showed me a copy of what I'm guessing is the original of the same page which includes a heading of, ‘Physical evidence,' and a heading of, ‘Statements.' That has not been provided to me. I've never seen that before. . . . [] . . . [] . . . I'm not blaming Mr. McKillop. I want to be very clear on that. It's simply an oversight somewhere the line or a mistake, and I need a moment to correct it.
"MR. MCKILLOP: I can make a copy immediately.
"THE COURT: It's ordered that Mr. Rhoades be immediately provided with a copy of the discovery. Maybe you want to go through and exchange reports to make sure that you gave him the correct report in other instances."
After a recess in which the oversight was corrected, defense counsel told the court out of the presence of the jury that "discovery has been provided . . . it's now complete." However, in the copy of Officer Tanguay's report initially provided to the defense, "I could find no reference in the report I had . . . as to statements regarding a vehicle that may have been involved other than Mr. Moreno's in the accident. And I made that representation to the jury in the opening statement as well." Going on, defense counsel stated "I'm uncertain as to what curative statement or admonition could be given to the jury that would correct that without having it appear as though information was either being flatly denied by the defense or somehow obfuscated by the defense when in fact it hadn't been provided." Defense counsel twice reiterated that "I'm not blaming Mr. McKillop for this," but then jumped to "suggesting a declaration of mistrial because of this error."
The court then heard the following argument:
"MR. MCKILLOP: I don't feel that . . . what was missing is that prejudicial. I mean, it just alludes to the defendant's admissions that he was driving that are strewn throughout the report. I don't think that the jury's been tainted in any way . . . Mr. Rhoades was well aware that the defendant had admitted in the report that the—that he was driving, and so I—I don't think that there's anything so off in here or would throw the defense so out of their strategy that it would . . . require a mistrial.
"MR. RHOADES: The position of the defense, Judge, is that the testimony of Officer Tanguay related to another vehicle, yet the information I had been provided did not contain that information in any way. It was certainly the defense tactic to suggest that if such a large error was made, that it was not contained in the report. Now I'm being told that this is in the report, and it's just been provided.
"THE COURT: The motion for a mistrial stands submitted. I'll deny that motion. I don't think that that is an error to such that would require a mistrial. [] The Court would, however, be willing to instruct the jury . . . about the untimely disclosure of evidence. However, unintentional it may have been, the People did not make full disclosure."
The jury was then brought back and instructed on the matter "Ladies and gentlemen, both the People and the defense must disclose their evidence to the other side before trial within time limits that are set by the law. And failure to follow this rule of disclosure may deny the other side the chance to produce all relevant evidence, counter opposing evidence, or receive a fair trial. [] The People in this case failed to disclose to the defense the evidence about the defendant's statement that was just being discussed on cross-examination within that time period. It was just disclosed now. [] In evaluating this evidence and the weight and significance of that evidence, you may consider the effect of the People to make that timely disclosure on the value of that evidence."
When cross-examination of Officer Tanguay resumed, he briefly reiterated that the complete report did reflect that defendant at the scene had recounted his version that the accident was caused by the white truck.
The next prosecution witness was Devin Roderick Sheridan, a nurse at Sutter Lakeside Hospital. She testified that she was present when defendant refused to have a blood sample taken.
She was followed by Catherine Goulardt, a "phlebotomist" at Red Bud Hospital, who testified that that she drew a sample of blood from defendant in the early hours of November 24, 2006. Defendant was handcuffed to a gurney, and five or six police officers were present. The sample was taken without incident.
At the conclusion of Ms. Goulardt's testimony, the trial was adjourned to February 21.
The first witness on February 21 was the final witness for the prosecution's case in chief. Gregory Priebe testified that he is a senior criminalist for the Department of Justice. He analyzed defendant's blood sample and found that the alcoholic content was .14. A person with this level would "most definitively" be too impaired to drive. Priebe estimated that the blood alcohol level at the time defendant left his brother's house at 8:30 p.m. on November 23 was .17, "and that's being conservative."
Defendant then took the stand and testified as follows: He had "a few beers" with Thanksgiving dinner at his brother's. After the meal, defendant went to a nearby casino, arriving there between 7:30 p.m. and 8:00 p.m. At the casino, he consumed more alcohol, and met a woman named Pam. He left the casino between 9:00 p.m. and 9:30 p.m. Because he was "plastered, no doubt," Pam drove his car. They were going to her house in Hopland when a truck "was coming in our lane, and she swerved to avoid the truck. And it was a little embankment thing, and the car kind of caught air and went bam. I was like, whoa. She looked at me, I looked at her. I said, are you okay? She said, yeah, I'm okay. And the truck, he just kept going."
Defendant further testified that he tried to make a call on his cell phone, but "I had no reception." He then told Pam, "one of us needs to go for help. Since it's my car, I'll stay here. You know the area better than I do. And she's all, okay. So she took off," sometime between 9:00 p.m. and 9:30 p.m. The next thing he noticed was "[a] spotlight in my face" from the CHP.
According to defendant, he did not tell Officer Tanguay that he was driving the car, or that it was a mistake for him to get behind the wheel. He stayed with the car because he thought help was coming. He had no idea what happened to the car's keys. Defendant acknowledged he refused to take the breathalyzer test, but that was because "I didn't feel I had to. I didn't feel I did anything wrong to take the test," that is, because he was not driving. He did admit he told Tanguay that he was "loaded."
Defendant testified that he agreed to have a blood sample taken from him, and he never changed his mind. The reason a sample was not taken at the first hospital was that "They did not have a blood test kit there, and he said we're going to another hospital." Defendant did not tell Officer Tanguay he stopped drinking at 8:30; on the contrary, he told Tanguay he had continued drinking at the casino.
Defendant admitted that in 1993 he was convicted of three "weapons charges" felonies, and that in 2003 he was convicted of drunk driving when he had refused to "submit to a blood test." His explanation for the last conviction was that "I was guilty. I was driving, I was drinking. I had no reason to. I was behind the wheel." He was adamant that "I was not driving" on November 23.
Defendant did acknowledge on cross-examination that he knew his license was suspended, and that he admitted as much to Officer Tanguay. Defendant did not know Pam's last name.
When defendant was finished, the prosecutor made his closing argument. In his closing argument, defense counsel made no reference to the discovery matter in his closing argument. The thrust of the defense was simply that defendant was not driving the car at the time of the accident. Everything known at the trial was consistent with Pam being the actual driver, who then left the isolated scene to seek help (and reflexively taking the keys), leaving defendant to be discovered alone by the officers.
In its instructions to the jury, the court reiterated the instruction about the
prosecution's discovery omission that was tailored to the precise issue of the omission: "Both the People and the defense must disclose their evidence to the other side before trial within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [] An attorney for the People failed to disclose information relating to the white pick-up truck within the legal time period. In evaluating the eight and significance of that evidence, you may consider the effect, if any, of that late disclosure." (Italics added.)
The jury deliberated for less than three hours before returning verdicts finding defendant guilty as charged on all counts. Immediately after the verdicts were recorded, defendant admitted his prior drunk driving convictions as alleged in the information.
On March 19, 2007, the court denied defendant's request to be admitted to probation, and sentenced him to the aggravated term of three years on Count 1. The same term was imposed on Count 2, but it was ordered to be served concurrently, and that sentence was stayed pursuant to Penal Code section 654. An additional term of 180 days, "to be served in any penal institution," was imposed on Count 3.
Defendant filed a timely notice of appeal two days later.
DISCUSSION
We take it as a given that the prosecution did not make full discovery to the defense, as constitutionally required, in a timely manner. The Attorney General does not argue otherwise. Although the prosecution's obligation to provide discovery is founded upon the due process guarantee of the federal constitution (Brady v. Maryland (1963) 373 U.S. 83, 87), defendant acknowledges in his brief that he has to satisfy the state standard for prejudicial error (People v. Watson (1956) 46 Cal.2d 818, 836). This follows from the manner in which in which defendant frames his claim of error, choosing to attack the trial court's ruling in denying his motion for a mistrial.
The state standard for error in this area is stern: "we review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.) Here, the trial court determined that defendant suffered no prejudice from the prosecution's discovery omission, which we—and the parties—treat as the equivalent of determining that defendant could still receive a fair trial. We conclude that the trial court's determination does not qualify as an abuse of discretion.
Defendant argues that what the prosecution did "sandbagged the defense," caused it "irreparable harm," and "resulted in incurably prejudicial error." Boiled down to its essence, his argument is that "Here, . . . the defense was ‘sandbagged' into following a certain strategy, which was torpedoed by the subsequent disclosure of evidence repudiating the defense position." Defendant reasons that "Here the defense relied on the discovery provided and based its defense strategy thereon. It is clear that had complete discovery been provided in a timely manner, the defense would not have pursued the attack on the officer's failure to memorialize [defendant's] statement in the report as a central focus of the defense. Here, the late provision of discovery eviscerated the entire defense strategy and undermined the reliability of the proceedings." We are not persuaded.
Initially, we note that the logic of defendant's argument implicitly repudiates the position taken by defendant's trial counsel. As shown by the excerpts quoted above, Mr. Rhoades repeatedly declined to level an accusation of bad faith at the prosecution (or at Officer Tanguay). Moreover, he chose not to even mention the incident in his closing argument. It is therefore difficult for defendant at this point to get traction for a theory that the prosecution almost pulled off a cold-blooded "sandbagging" of the defense.
There is also grounds to be skeptical of the statement in defendant's brief that his "entire defense strategy was based on counsel's reasonable reliance that the police report provided by the prosecution was accurate and complete." As previously mentioned, defense counsel's opening statement was brief and somewhat tentative. (See fn. 5, ante.) There is nothing in the opening statement that partakes of a definitive and irrevocable approach such as is posited in defendant's brief. In other words, the prosecution did not, as defendant puts it, "eviscerate[] the entire defense strategy" because the defense had not committed to a strategy.
Thus, there is a substantial basis for doubting the characterization defendant now advances, that "critical information was missing from the police report." One reason for doubting that the missing part of Officer Tanguay's report was indeed "critical"—which also casts doubt on the bad faith theory of the prosecutor—was that the information was first elicited by the prosecutor in his direct examination of Officer Tanguay. There seems to have been no attempt by the prosecutor to hide, or take advantage of, the fact that defendant told Officer Tanguay—and the Officer recorded defendant's statement in his report—that defendant's vehicle swerved off the road to avoid a collision with the white truck. And the prosecutor thereafter never maintained that defendant's statement was inaccurate, i.e., that there was no truck involved in the accident.
Moreover, once the defense began cross-examination of Officer Tanguay, Mr. Rhoades does not appear to have been particularly flustered, as might naturally be expected of counsel when unexpectedly "sandbagged" out of a "critical" defense during trial. Insofar as we can judge from the dry record of the reporter's transcript, defense counsel appears to have rather quickly sized up the situation as, at most, an inadvertent bureaucratic oversight, and one requiring only, as counsel himself put it, "a moment to correct it." He did not, for example, ask for a continuance to consider the matter or recast the defense. Nor did he claim that the two curative instructions given would not neutralize his fear that the jury would hold something against the defense without knowing the cause was ignorance based on "the fact [that information] just hadn't been provided" by the prosecution. Finally, the subject of the statement was fully compatible with the defense theory ultimately presented to the jury, namely, that defendant was a passenger in the car at the time of the accident, but Pam was the driver.
Thus, if the trial court did not view the omitted material as "critical," the court could conclude that the delay in producing the material was not prejudicial to the defense. In light of the circumstances, we cannot condemn that conclusion as an abuse of discretion. (People v. Ayala, supra, 23 Cal.4th 225, 283.) Having examined the entire record, we cannot determine that defendant's chances of receiving a fair trial were irreparably damaged. (Ibid.) Stated another way, there is no reasonable probability that timely disclosure of the missing part of Officer Tanguay's report would have produced a more lenient verdict. (People v. Gonzalez (2006) 38 Cal.4th 932, 960-961; People v. Watson, supra, 46 Cal.2d 818, 836.)
DISPOSITION
The judgment of conviction is affirmed.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
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