Opinion
B227430
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. PAUL PALACIO, Defendant and Appellant.
David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan, and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA082620)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Reversed and remanded.
David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan, and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Paul Palacio appeals from a jury verdict convicting him of first degree residential burglary, a violation of Penal Code section 459, and grand theft auto with a prior theft, a violation of Penal Code section 666.5. He contends the trial court improperly excluded testimony from an alibi witness. We agree and reverse the judgment.
All further statutory citations are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
On June 9, 2009, Sagi Hasson entered the parking garage of his condominium complex and saw a white pickup truck towing his trailer with his motorcycle on it. Hasson reached through the truck's open driver's side window and turned off the ignition. The driver exited the truck and fled from the garage on foot.
Responding police officers took Hasson's description of the suspect. He stated that the driver was wearing a soft cast or bandage on his arm and had facial hair.
The truck was impounded and processed for fingerprints. Two identifiable prints were found. One on the outside of the driver's side door just below the handle was identified as belonging to appellant. A print found on the inside of the truck did not match appellant's fingerprints.
Officers identified the registered owner of the truck as Martin Perez. Perez told officers he recently had purchased the truck and sold it the same or following day to Alfredo Mendoza. Police interviewed Perez again and he stated he had actually sold it to another person. At a third interview, Perez stated he had not sold the truck but had loaned it to appellant on the day of the burglary.
Officers prepared a six-pack photographic lineup containing appellant's photograph and showed it to Hasson. Hasson could not identify the suspect from the lineup. On a subsequent date, Hasson picked appellant from a second six-pack lineup.
Appellant was charged and the matter was set for trial. On the morning of trial, just before voir dire, appellant's counsel notified the court that the defense had discovered an alibi witness previously unknown to appellant or counsel. The court stated it would not hold a hearing pursuant to Evidence Code section 402 and instead asked appellant's counsel to relate how the witness was discovered. Counsel said appellant went to church on the Sunday before trial and saw his former boss, Rudy Pulido. While discussing the charges against appellant, Pulido recalled that appellant had an employment review around the date of the burglary. He told appellant he would check his records, and on Monday found the document confirming that he and appellant had conducted an employment review on June 9. On the morning of trial (Tuesday, the next day), appellant gave this information to his attorney, who interviewed Pulido and conveyed the information to the prosecutor.
The prosecutor objected and moved to exclude Pulido's testimony based on late disclosure. Counsel responded that appellant had not recalled the employment review because he was arrested some two months after the burglary had occurred. The court stated, "I don't believe [appellant]. I can't—I find it incredible that one has an alibi and forgets it. Unbelievable . . . what your client is telling you on the day set for trial, when the jurors are waiting outside, is incredible, unbelievable, and in my opinion not trustworthy, and also it's late discovery—it's an alibi—which would prevent the people from thoroughly investigating or subpoenaing everything that they need in order to attack it. So he will not testify."
After Hasson's testimony for the prosecution, appellant's counsel again requested that Pulido be allowed to testify as to an alibi and to impeach Hasson's testimony that appellant had facial hair and was wearing a soft cast on the day of the burglary. The court ruled Pulido would be allowed to testify as an impeachment witness but could not testify about alibi. The court stated "[s]o, number one, it's late discovery. Number two, it is not believable, not credible. That was my ruling. That is still my ruling."
Prior to Pulido's testimony, defense counsel requested the court clarify the scope of permissible testimony. The judge ruled that Pulido could testify that he saw appellant in "the afternoon" on the day of the burglary, but could not refer to a specific time.
The next day, just before Pulido's testimony, defense counsel requested that Pulido be allowed to say he saw appellant at lunchtime to establish that it would have been difficult for appellant to shave off any facial hair or remove any bandages between the meeting and the attempted theft. The court only allowed him to say "afternoon."
Appellant was convicted on all counts. His attorney moved for a new trial. He argued the court erroneously excluded the alibi evidence under section 1054.5, subdivision (c) which requires that courts exhaust all other enumerated discovery sanctions in section 1054.5, subdivision (b) prior to excluding witness testimony for failing to comply with the discovery scheme. The court denied the motion because it found "the withholding of this information by the defendant was willful, was done . . . to obtain an advantage so the People would have no recourse . . . [, and] was done for the purposes of irreparable prejudice to the People." This timely appeal followed.
DISCUSSION
Appellant makes claims of constitutional and state law error based on the trial court's exclusion of Pulido's alibi testimony. Although the exclusion of alibi witness testimony implicates a criminal defendant's constitutional rights to compulsory and due process (see Chambers v. Mississippi (1973) 410 U.S. 284; Washington v. Texas (1967) 388 U.S. 14), because we do not reach constitutional issues unless necessary (People v. Brown (2003) 31 Cal.4th 518, 534) we only reach appellant's statutory arguments.
I
Respondent argues appellant forfeited his claim that the court improperly sanctioned him by excluding Pulido's alibi testimony. Respondent asserts that because appellant did not specifically articulate that the preclusion sanction was improper under state law, appellant failed to preserve these claims for appellate review.
Section 1259 provides: "Upon an appeal taken by the defendant, the appellate court may . . . review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant." "The reasons for the rule are these: '"In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal. [Citation.]"'" (In re Seaton (2004) 34 Cal.4th 193, 198.)
Evidence Code section 354 provides that "[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means . . . ."
Here, appellant's attorney attempted to add Pulido as a witness and admit his testimony about appellant's employment review. The prosecutor moved to exclude Pulido's testimony as untimely discovery. Appellant's attorney explained why the late addition of Pulido was not an intentional or willful violation of discovery rules. The court ruled to exclude Pulido's testimony.
Thereafter, appellant's attorney again requested that Pulido be allowed to testify regarding alibi. The court reiterated its previous ruling. Appellant's counsel then made another request that Pulido be allowed to testify with greater specificity as to when he saw appellant on the day in question. The court also denied this request.
After the verdicts were returned, counsel filed a motion for a new trial arguing the court erroneously excluded the alibi evidence. Counsel's written motion briefed the state law claim, and during oral argument on the motion, counsel for both sides discussed constitutional arguments about the court's exclusion of the evidence.
Respondent contends that appellant did not preserve the issue because he did not specifically object to the court's ruling excluding the testimony. However, appellant was attempting to affirmatively introduce evidence, which does not require an objection in order to preserve the claim for appellate review under the Evidence Code. (Compare Evid. Code, § 352 [review of erroneously admitted evidence], with Evid. Code, § 354 [review of erroneously excluded evidence].)
Three requests to introduce Pulido's alibi testimony and a motion for a new trial after the verdict was entered, sufficiently advised the trial court of the "substance, purpose, and relevance" of Pulido's testimony for the court to understand the impact of its ruling. (Evid. Code, § 354; see also Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114). Appellant's attorney offered the substance of Pulido's testimony and explained why he wanted to introduce it.
Moreover, counsel informed the court of the claims appellant advances here. Counsel stated his contention that exclusion of the evidence was improper under section 1054.5 in the written motion for a new trial. In addition, during one of the requests to admit the testimony during trial he argued, "under the statute there are measures that allow [Pulido's] testimony . . . including a jury instruction specifically tailored for that purpose." This argument is consistent with the language of section 1054.5, and sufficient to advise the court of appellant's claims of error. The court ruled to exclude the testimony.
The record shows appellant's counsel tried to introduce the testimony before, during, and after trial. He advised the court of the substance and purpose of the testimony, and claimed the trial court's ruling excluding the testimony was an improper sanction of first resort under state law. The court and the prosecution thus had the opportunity to correct the claims of error, but did not do so. (See In re Seaton, supra, 34 Cal.4th at p. 198.) Because appellant's claims on appeal are not different from those advanced in the trial court, we conclude that appellant did not forfeit his challenges to the trial court's exclusion of Pulido's alibi testimony, and we reach the merits.
II
Appellant argues the sanction was improper under section 1054.5. California's reciprocal discovery law requires both sides in a criminal case to reveal their witnesses at least 30 days before trial. (See § 1054 et seq.) Section 1054.3, subdivision (a), requires that the defendant (and his or her attorney) disclose to the prosecution the "names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons. . . ." This requirement applies to "'all witnesses [a party] reasonably anticipates it is likely to call. . . .' [Citation.]" (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11, superseded by statute on other grounds as stated in Bowens v. Superior Court (1991) 1 Cal.4th 36, 40.) In addition, section 1054.7 provides in relevant part that the disclosure of witness names and addresses "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."
Appellant does not contend the trial court erred by finding he violated the disclosure requirement under section 1054.3.
Section 1054.5, subdivision (b), provides in part that "[u]pon a showing that a party has not complied with [the disclosure requirements] . . . , a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (See also People v. Riggs (2008) 44 Cal.4th 248, 305-306.)
"Though a trial court has discretion in these matters, that discretion is not unfettered." (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459.) Subdivision (c) of section 1054.5 adds "[t]he court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." A trial court exceeds its jurisdiction in precluding witness testimony as a discovery sanction when it fails to exhaust other sanctions first. (Mitchell, supra, at p. 459.)
Under federal law, the effectiveness of less severe sanctions is a factor to be considered in determining the appropriate remedy for discovery violations. (See Taylor v. Illinois (1988) 484 U.S. 400, 415, fn. 19.)
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Here, the court did not consider whether less restrictive sanctions would have been effective. Preclusion was the first and only sanction considered and imposed. (See People v. Edwards (1993) 17 Cal.App.4th 1248, 1264.)
Other effective discovery sanctions were available to the court. A jury panel had not yet been called to the courtroom. The court could have granted a short delay or continuance to allow the prosecutor to interview Pulido and prepare for cross-examination and trial accordingly. For most discovery violations, "a continuance . . . to allow the surprised party the opportunity to prepare" will remedy any prejudice from the violation. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757.)
The trial court also could have instructed the jury about the untimely production of Pulido. (See, e.g., CALCRIM No. 306; People v. Riggs, supra, 44 Cal.4th at pp. 310-311 [upholding a jury instruction where defendant failed to timely disclose alibi witnesses].) This course would have allowed appellant to present the alibi evidence and allowed the prosecutor to argue appellant had not produced it earlier because it was fabricated. More fundamentally, it would not have infringed appellant's right to present a defense. (Ibid.)
In sum, the trial court did not comply with California's discovery statute, which requires courts to exhaust less restrictive discovery sanctions. (§ 1054.5, subd. (c).) Since the trial court did not conduct a hearing or make other factual findings about the late disclosure of Pulido as an alibi witness, it was an abuse of discretion to preclude appellant from presenting any alibi evidence. Preclusion is the harshest sanction available, and our discovery scheme requires courts to exhaust other, less restrictive sanctions before imposing preclusion. Preclusion as a sanction of first resort in this case was improper.
III
Because the preclusion sanction was improper under state law, we must determine whether it is reasonably probable that appellant would have achieved a more favorable result had the testimony not been excluded under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Lawson (2005) 131 Cal.App.4th 1242, 1249.) We conclude it is.
The evidence against appellant, while sufficient to support a conviction, was not overwhelming. The prosecutor introduced evidence that Hasson was able to get a good look at the perpetrator since Hasson reached into the truck's open window while the perpetrator was still in the driver's seat. Hasson later identified appellant from a six-pack photographic lineup. The jury also heard Perez, the owner of the truck, testify that he loaned the truck to appellant, and appellant's fingerprint was found underneath the door handle on the outside of the driver's side door of the truck.
Defense counsel countered by pointing out that the victim identified appellant only after viewing a second photographic lineup and failed to identify him from the first lineup he saw. Counsel also impeached Hasson's testimony through Pulido's testimony that appellant did not have facial hair or bandages on the day of the burglary. Counsel solicited from Perez that he had loaned the truck to appellant prior to the date of the burglary so that his fingerprint could have been placed there one of the other times appellant borrowed the truck. Counsel also pointed out that Perez lied to police officers twice about selling the truck.
Respondent argues the error was harmless because Pulido would not have been able to confirm the exact time the employment review occurred, and the jury could have found there was ample time for appellant to commit the burglary and attend the employment review. Respondent also contends that the jury would have doubted Pulido's testimony because he had been appellant's boss and attended the same church as appellant.
We cannot assume the jury would have found Pulido's testimony to be unbelievable, particularly because Pulido never testified about the alibi on the record. To do so would be purely speculative given the state of the evidence. Pulido's testimony sought to provide appellant with an alibi, and appellant presented business documents that would have corroborated Pulido's testimony. Because Pulido's testimony, if accepted by the jury, could have negated a finding that appellant committed the crime, it is reasonably probable he might have received a more favorable result had the testimony been admitted.
IV
We do not reach appellant's claim that the court erred by excluding third party culpability evidence. Appellant sought to present a theory that Perez was involved in the crime by showing that Perez closely resembled Hasson's physical description of the suspect, he twice lied about his ownership of the truck, and his truck was used in the crime. While we are concerned about the trial court's exclusion of this evidence, we do not reach the merits since we reverse the judgment on other grounds.
DISPOSITION
The judgment is reversed and the matter is remanded to the superior court for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
MANELLA, J.
SUZUKAWA, J.