Opinion
B162573.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JABAAR P. WALTON, Defendant and Appellant.
Phillip I. Bronson, 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, Senior Assistant Attorney General, Marc E. Turchin and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Jabaar P. Walton appeals from judgment entered following a jury trial in which he was convicted of two counts of assault with a semiautomatic firearm, counts 1 and 2 (Pen. Code, § 245, subd. (b)), making criminal threats, count 3 (Pen. Code, § 422), and possession of a firearm by a felon, count 4 (Pen. Code, § 12021, subd. (a)(1)). Relative to the first three counts, the jury additionally found that he personally used a firearm within the meaning of Penal Code section 12022.5. As to all counts, the court found he suffered a prior car jacking conviction within the meaning of Penal Code sections 667, subdivision (b) through (i) and 1170.12, subdivisions (a) through (d). Sentenced to prison for 14 years, he contends the trial court improperly imposed a discovery sanction, which precluded a defense witness from testifying. For reasons explained in this opinion, we affirm the judgment.
STATEMENT OF FACTS AND
PROCEDURAL HISTORY
On May 21, 2001, Elizabeth Perla parked her car in a parking structure next to the Ballys gym in Hollywood. When she returned to her car following her workout, she observed a brown Mercedes vehicle blocking her and she was unable to leave. Perla needed to get to work and spoke to the manager of the gym and to the parking attendant. Perla had spent approximately one hour and a half at her car, with other people trying to help her, when appellant, the owner of the Mercedes, approached. Appellant said something to the effect of, "Did I [come] at the right time?" Perla was very angry because she had to be at work and was "really stressed out." She told appellant he was "an hour and a half late" and that she could be fired. Appellant "just looked at [her] and . . . said whats the big deal, you fucking wetback. Youre only going to make minimum wage." Perla responded angrily with a racial slur and the two argued for 15 to 20 minutes. Perla saw appellant reach into the passenger side of his car and then pull a "dark" gun from behind his back. She heard him pull the slide of the weapon back and forth, putting a bullet in the chamber. Appellant pointed the gun at her and said he was "having a fucking bad day, dont make it worse." The parking attendant told appellant, "Dont be crazy" and pushed Perla to the side. Appellant then pointed the gun at the parking attendant and Perla backed up and called 911 on her cell phone. Appellant and the attendant argued and appellant threatened to "blow the top of [the attendants] head off or something like that."
Edy Duran, the parking structure supervisor, testified that when appellant retrieved his gun, he grabbed Durans neck from behind and put the automatic handgun to his forehead. When a security guard approached, appellant got into his vehicle, backed up, hit a nearby car and the security guard, and drove away.
On June 4, Los Angeles Police Department Detective Harry Stirwalt went to appellants address and found the brown Mercedes parked approximately one block away. He searched the passenger compartment of the vehicle and found a toy gun underneath the drivers seat.
Following appellants arrest and advisement and waiver of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, appellant stated he worked in the area of the gym and had parked in the lot because he was late for work that day. When he was in the parking structure, Perla cursed at him as did Duran. When he saw several men running toward him, he got in his car, backed up, and drove away. He denied striking anything with his car and pointing a toy gun, or anything else, at anyone that day.
Perla testified the toy gun was not the gun appellant used during the assault.
Appellant testified that on May 21, 2001, he felt ill at work and left early. In order to go in and out of his office building, he had to go through a metal detector and he was able to go in and out of the building without problems that day. When he arrived at his car in the parking structure, he apologized to Perla for blocking her car. Perla stood in back of his car and would not let him leave because she wanted his car towed. His conversation with Perla was three to four minutes and she raised her voice at him. Appellant was exhausted and sick and did not have the energy to raise his voice. He was nervous and pressed the "Send" key on his cell phone which automatically called the last person he had previously telephoned, Tasha Fulbright. He called her, "because there was a situation occurring" and he was nervous. He opened his car door and he heard Perla yell the word, "gun." He did not point a gun at Perla or Duran and, in fact, did not point anything at anyone. To his knowledge, when he left the location, he did not hit anything. He drove slowly to be sure he did not hit anyone or any cars.
DISCUSSION
Appellant contends the trial court improperly imposed an order precluding defense witness, Tasha Fulbright, from testifying as a discovery sanction. We disagree.
Defense counsel represented that Fulbright would testify that on May 21, 2001, at approximately 11:15, she received a phone call from appellant and heard someone yelling, "Hes got a gun, hes got a gun." Fulbright would additionally testify she heard appellant say, "I dont have a gun, I dont have a gun, Im just trying to get my car out of here."
During trial, the prosecution brought up the issue that, "For days now Ive been hearing about some phantom witness that the defense plans on calling. I have not been given a name. I have not been given a date of the birth. Were in the middle of trial now. I have not had a chance to interview this witness. Ive [not] had . . . a chance to investigate this witness."[]
On December 18, 2001, prior to trial, appellant was granted pro. per. status and his counsel was appointed to act as stand-by counsel. On this same date, the defense indicated that there were telephone records and a female witness pertinent to the defense and funds were needed to locate the witness.
On May 1, 2002, defendant indicated he had a defense witness whose name and birth date had never been provided to the prosecution. The court advised if it was reasonably probable defendant was going to call the witness, then the defendant would have to provide that information. Otherwise, the prosecution could ask for sanctions, which included precluding testimony. The court suggested defendant give the prosecution "what youve got."
On the first day of trial, defendant was relieved of his pro. per. status for refusing to participate with the jury selection, and his stand-by counsel was appointed to represent him.
The defense indicated the witness was "Tasha Fulbright" and that it had two phone numbers for her. The defense claimed the witness was the person who appellant called from his cell phone during the confrontation and that her testimony would demonstrate appellant was carrying a cell phone and not a gun. The prosecution objected that it was being "sandbagged."
Defense counsel noted the name of the witness was brought to his attention the previous morning and that although he had asked for the witnesss birth date, he had not yet received the information. The prosecution argued that appellant had known this person for at least a year now and would have been able to get her birth date if he had wanted to.
The court observed that while defense counsel had "just stepped into this yesterday. . . . [I]t would appear that this kind of testimony was reasonably likely to be produced at trial. I mean, thats the standard that triggers the defense obligation to supply the information. I mean, its so fundamental. [& para;] If the defense is he didnt have a gun but he had a cell phone and [previous defense counsel] way back at the prelim stage or at some later stage in superior court subpoenaed these records, that certainly indicates to [the court] there was a reasonable possibility that the evidence would be produced in trial so Im concerned that there appears to be a discovery violation but the question is whats the appropriate remedy." The court indicated it would defer making any kind of ruling as the prosecution might have time to talk to the witness before the defense started its case.
The prosecution indicated it might be able to "talk to her and run a rap sheet" if it got a date of birth but that there was no way for it within twenty-four or even forty-eight hours to verify her telephone number on the date of the incident as it would have to subpoena her phone records. The prosecution stated that it had some phone records for an account in the name of "Marshall Kirsner" from Verizon Wireless that shows phone calls being made on May 20, May 21 and May 22 but there was no way to verify that this was defendants phone.
Defense counsel represented that "Marshall Kirsner is the individual who was the lessee of the phone containing the phone number that [appellant] had in his possession" and that the defense did not know the whereabouts of Kirsner. Defense counsel represented he telephoned the company where appellant had been working and there had never been a Marshall Kirsner working there.
Thereafter, the court advised that it appeared that defendant had failed to turn over discovery for the purpose of gaining a tactical advantage in bad faith. The court noted that even though defendant was not a lawyer, while representing himself, he was held to that standard and the situation was coming "very close to what the cases talk about [as] witness preclusion." The court suggested the defense do everything to make the witness available to minimize any prejudice.
The following day, the prosecution indicated that while they were able to reach Fulbright she had not wanted to talk to the investigator. The prosecution argued that while Fulbright had the right not to speak to the investigator, because of the late notice, it had not been able to do any investigation with respect to the witness. In particular, the prosecution argued that had it known what the witness was going to testify to, it would have been interested in her telephone records. Such records would have shown whether she was the owner of the phone number that appellant claims he called.
Defense counsel indicated he had obtained Fulbrights name the previous day; he spoke to her that morning and she told him about the conversations; while she had learned four or five months ago that appellant was in custody, she did not know anything about the case; she was made aware of the trial three days ago.
Defense counsel indicated "Marshall Kirsner was leasing a number of phones . . . [and] gave the phones he was leasing to a supervisor [who worked for the same company as appellant] and this supervisor gave [appellant] one of the phones." Counsel also indicated the entries for the phone calls were "11:42" "11:18" and "11:49" and the relevant call was the "11:18" one. Defense counsel also indicated the number shown on the phone records was "not [Fulbrights] current phone number."
The court, thereafter, found it was a "bad faith discovery failure on the defendants part to gain tactical advantage" and precluded Fulbright from testifying.
"The purpose of [Penal Code] section 1054 et seq. is 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. [Citation.] Reciprocal discovery is intended to protect the public interest in a full and truthful disclosure of critical facts, to promote the Peoples interest in preventing a last minute defense, and to reduce the risk of judgments based on incomplete testimony. [Citation.] [¶] Thirty days before trial, the defense shall disclose: `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 . . . . [Citation.] The phrase `intends to call includes `all witnesses it reasonably anticipates it is likely to call . . . . [Citations.] [¶] `Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, 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. . . . [Citation.]" (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201-1202.)
Pursuant to Penal Code section 1054.5, subdivision (c), the court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. "Although alternative sanctions are available, in some instances they would perpetuate `prejudice to the State and . . . harm to the adversary process. [Citation.] If an omission is willful in hope of obtaining a tactical advantage, the court may exclude the witnesss testimony. [Citation.] It is not unreasonable to suspect testimony from `a defense witness who is not identified until after the 11th hour has passed. [Citation.]" (People v. Jackson, supra, 15 Cal.App.4th 1197, 1203.)
"Under federal law, the factors to be considered in determining the appropriate remedy for discovery violations include: (1) the effectiveness of less severe sanctions, (2) the impact of preclusion on the evidence at trial and the outcome of the case, (3) the extent of prosecutorial surprise or prejudice, and (4) whether the violation was willful. [Citations.] [& para;] Under Californias reciprocal scheme, there is an additional statutory requirement. Subdivision (c) of Penal Code section 1054.5 allows a trial court to preclude the testimony of a witness `only if all other sanctions have been exhausted." (People v. Edwards (1993) 17 Cal.App.4th 1248, 1264.)
Here, the trial court did not abuse its discretion when it precluded the subject witness from testifying. The trial court expressly found, and substantial evidence supports the finding, that appellant withheld discovery in bad faith to gain a tactical advantage. Appellant sought to have Fulbright testify that she had received a phone call from him during the subject altercation, overheard that appellant was accused of having a gun, but that he denied it, and that one of the victims of the assault stood behind appellants car and refused to allow him to leave. The disclosure of Fulbrights identity came in the middle of trial and as the prosecution was concluding its case. The phone number that allegedly had been Fulbrights had been disconnected and there was no evidence connecting her to the phone number called. Additionally, the cell phone from which the call was made was not in the name of appellant and there was no evidence connecting appellant to the use of that particular phone. Further, according to the phone records, the allegedly relevant call was the first call made to that phone number rather than the second one as appellant had testified. Cross-examination of Fulbright would have been severely limited and introduction of "such potentially unreliable evidence untested by [meaningful] cross-examination would have not only prejudiced the Peoples case, but also undermined the discovery process." (People v. Jackson, supra, 15 Cal.App.4th 1197, 1204; Cf. People v. Edwards, supra, 17 Cal.App.4th 1248, 1263-1264.)
Additionally, the trial court considered other sanctions before imposing preclusion. The court observed it was not withholding a critical defense from the jury or unduly distorting the evidence and that the jury had already heard the defense by way of appellants testimony. The court noted the proffered evidence was very weak and that it could think of no other remedy other than preclusion.[]
The court stated it had been "wracking [its] brain for some other remedy, but as [the prosecution] points out, the investigation the People would do would be fairly time-consuming. It would involve phone records. It would involve investigating not only the witness but the defendant. [¶] I mean, the phone the defendant uses isnt even in his name. And youve got the witness, you know, who the People would have to subpoena [and] phone records to see if this was even her phone. [¶] Apparently, you cant do that by just checking current records. [& para;] So I think that the People are really hamstrung by this discovery violation so Im going to preclude the witness testimony."
While appellant now asserts an effective sanction would have been to allow Fulbright to testify and for the court to instruct the jury that the defense had concealed the witnesss identity, address and telephone number until the middle of trial, defense counsel had not proposed that strategy or special instruction. (Cf. People v. Henderson (2003) 110 Cal.App.4th 737, 741-742.)
Moreover, were we to have found error, any error would have been harmless. Several people, including victim Duran who had the gun held to his forehead, saw appellant pull out a gun and not a cell phone. Appellants defense theory, that he had a cell phone and not a gun in his hand and called someone during the altercation, was presented to the jury. The preclusion sanction did not prevent appellant from presenting a defense but only cumulative evidence.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, Acting P.J. and HASTINGS, J.