Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA066468. Arthur Jean, Jr., Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Chhoeuth Duong was convicted, following a jury trial, of one count of first degree murder of Gonzalo Gonzalez in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that appellant personally and intentionally discharged a firearm causing death within the meaning of section 12022.53, subdivisions (b), (c), and (d) and committed the murder for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The trial court sentenced appellant to 25 years to life in state prison for the murder conviction plus 25 years to life for the firearm enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court abused its discretion in admitting the prosecutor's late-disclosed discovery and the admission of this evidence violated his constitutional right to due process and a fair trial. We affirm the judgment of conviction.
Facts
On December 25, 2004, shortly after 9:00 p.m., Gonzalo Gonzalez was shot in front of a liquor store near the intersection of Peterson and 14th Streets in Los Angeles. Gonzalez died from gunshot wounds to the head, chest, back, buttocks and legs.
The shooting was witnessed by Cesar Ayala, Saul Mata and Jose Lopez. Ayala was 14 years old and a member of the Hispanic gang "Mob to Kill." He did not remain at the scene because there was a warrant out for his arrest.
Ruben Santa Cruz, who lived near the shooting site, told police at the scene that he saw a white SUV drive away from the location where the shooting occurred. He confirmed this observation in a follow-up interview, but denied it at trial.
Mata told police at the scene that the shooter had come from a white Ford Explorer that had been circling the area. In a follow-up interview, he stated that the occupants of the Explorer were male Asians. At trial, he denied seeing a white SUV the night of the shooting.
Lopez was interviewed by police on January 25, 2005 and stated that he had seen a white Explorer circling the area before the shooting. He described the occupants as Asian males. Lopez stated that one of the men had wavy hair that was slicked back. He identified appellant in a photographic line-up as looking like that man.
The photograph of appellant used in the line-up was taken on December 29, 2004 by Long Beach Police Officer Armando Yearwood. Officer Yearwood and his partner Udon Sawai contacted appellant, Tommy Hon, Ratanka Kim and others. The photograph showed appellant with slicked back hair hanging close to his shoulders. The officers, who were part of a gang unit, prepared field identification cards documenting the stop.
On January 16, 2005, Officer Edward Greene conducted a traffic stop of a white Ford Explorer registered to Kim. Appellant was driving the vehicle. Officer Greene testified that appellant had very short hair at the time of the stop. During an impound search, a Long Beach police officer found a videotape showing appellant with Hon. In the videotape, appellant had a shaved head.
On January 19, 2005, Hon was arrested. He told police that he saw appellant at a party between 8:30 and 9:00 p.m. on December 25. Appellant showed Hon a nine millimeter handgun and said that he was going to kill some "donkeys." Appellant left the party in a white Ford Explorer. He returned later that night and told Hon that he had shot someone near 14th and Gundry. Appellant later showed Hon newspaper clippings about the murder and drove him by the scene. At trial, Hon admitted seeing appellant at the party but denied that the rest of his statement to police was true.
Ayala was arrested on March 18, 2005 and told police that he had witnessed the shooting of Gonzalez. He said that an Explorer stopped in front of the liquor store and appellant got out the driver's seat with a pillowcase over his arm. He shot Gonzalez, returned to the Explorer and drove away. Appellant had long wavy hair while the vehicle's three other occupants were bald. Ayala stated that he recognized the driver because he had previously been chained together with him on a trip from a juvenile detention facility to court. Ayala was shown a photographic line-up and selected appellant as the shooter.
Officer Morales testified that the shooting in this case occurred in territory claimed by two Hispanic gangs. He opined that Asian gang members would only drive in that neighborhood if they were looking for someone to shoot.
Detective Joe Pirooz testified that appellant was a member of an Asian gang. He noted that gang members typically brag and show news clippings about their crimes. Detective Pirooz opined that a shooting like the one in this case would be committed for the benefit of a criminal street gang.
In his defense, appellant offered the testimony of Siyta Nem, who had known appellant her entire life. She testified that she saw appellant at a birthday party sometime before 9:00 p.m. on December 25, 2004 and that he had a shaved head at that time. She also testified that she had seen many different people drive Kim's white Explorer.
Appellant testified on his own behalf and denied that he had ever shot or killed anyone. On the evening of December 25, 2004, he went to a party with his girlfriend Jenny and did not leave the party until midnight. He did not have long hair on that day. He did not show a gun to Hon, or tell him that he wanted to or had killed a person.
Discussion
Appellant contends that the trial court abused its discretion in admitting into evidence field identification cards, and related photos and reports (collectively "field identification cards") which were not timely disclosed by the prosecutor, and the error was prejudicial, violated his constitutional rights to due process and a fair trial and requires reversal. We agree that the field identification cards were not timely disclosed, but see no prejudice to appellant from their admission.
Section 1054.1 requires the prosecuting attorney to disclose certain specified 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." Subdivision (f) requires disclosure of "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecution intends to call at the trial."
The disclosure requirements of section 1054.1 extend to rebuttal witnesses. As our Supreme Court has explained: "[T]he disclosure by the defense of its witnesses under section 1054.3 signals to the prosecution that the defense 'intends' to call those witnesses at trial. It follows that the prosecution must necessarily 'intend' to call any of its witnesses who will be used in refutation of the defense witnesses if called." (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375.) "[T]he requirement that the prosecution disclose the witnesses it 'intends to call at trial' [includes] 'all witnesses it reasonably anticipates it is likely to call....' [Citation.]" (Id. at p. 376, fn. 11.) The requirement to disclose rebuttal witnesses extends to the "written or recorded statements of [those] witnesses." (Id. at p. 374.)
The parties have not cited, and we are not aware of, any published cases deciding if a field identification card is a written or recorded statement of a witness. Neither party argues that it should not be considered as such. We will assume that the card is a written statement within the meaning of section 1054.1.
In the trial court, appellant's counsel represented that he had requested field identification cards from the prosecutor. The prosecutor did not dispute this representation.
The photograph of appellant in one of the six-pack photographic line-ups used in this case showed appellant with long hair. After Nem testified that appellant was almost bald on December 25, 2004, the prosecutor called Officer Yearwood, who testified that he took the photograph used in the line-up on December 29, 2004, when he stopped appellant and some companions. Appellant's counsel asked Officer Yearwood if he prepared field identification cards for the stop, and Officer Yearwood agreed that he and his partner did prepare such cards. The next day, the prosecutor produced the cards and sought to introduce them into evidence.
Appellant objected that the cards had not been timely disclosed. The prosecutor responded that she did not call Officer Yearwood as a witness at the first trial and did not "intend" to call him at the current trial until Nem testified that appellant was almost bald on the day of the murder. Nem was not a witness at appellant's first trial, and the prosecutor contended that baldness was not an issue in the first trial.
The first trial ended in a mistrial before deliberations began, apparently due to the loss of jurors.
It is questionable whether the prosecutor accurately remembered the details of the first trial. The reporter's transcript of the first trial is not before us on this appeal, but the clerk's transcript shows that a video of appellant shaving his head was introduced in the first trial as well as the second trial. Appellant's trial counsel represented, without contradiction from the prosecutor, that Officer Greene, a CHP officer who conducted a traffic stop of appellant in January 2005, and impounded the vehicle appellant was driving, was asked about appellant's hair in the first trial, and testified that appellant was almost bald at the time of the traffic stop. The video of appellant shaving his head was found in the vehicle impounded by Officer Greene. Thus, it seems unlikely that baldness was not an issue at all in the first trial.
While it is true that the prosecutor did not call Officer Yearwood in the first trial, she did call Officer Yearwood's partner Udon Sawai in that trial. Officer Sawai was present at the stop on December 29, 2004 when the photographs of appellant with long hair were taken and which was documented in the field identification cards at issue on this appeal. There is no suggestion that Officer Sawai was involved in this case other than in connection with that stop. Officer Yearwood testified that "we" produced FI cards, showing that Officer Sawai participated in the creation of the cards. It appears that the field identification cards should have been produced in connection with Officer Sawai's testimony in the first trial.
Even assuming for the sake of argument that baldness was not an issue at the first trial, the issue came up very early in the second trial. Appellant's counsel clearly stated in his opening statement that "the evidence will show that on December 25, 2004, the day of the shooting, that [appellant's] hair was... not quite bald but somewhat cut very close." Opening statements were given on June 20, 2008. Thus, the prosecutor clearly knew before Nem testified (on June 24) that baldness would be an issue in the trial. Officer Yearwood did not testify until June 25, and the prosecutor did not produce the field identification cards until the second day of Officer Yearwood's testimony, June 26, the day after appellant's counsel asked about the existence of field identification cards in his cross-examination.
Late disclosure of inculpatory evidence may render a trial fundamentally unfair. "For example, a trial could be rendered fundamentally unfair if a defendant justifiably relies on a prosecutor's assurances that certain inculpatory evidence does not exist and, as a consequence, is unable to effectively counter that evidence upon its subsequent introduction at trial." (Lindsey v. Smith (11th Cir. 1987) 820 F.2d 1137, 1151.)
There was no fundamental unfairness here. Appellant does not dispute that he was given a copy of the six-pack containing a photograph of him with long hair. The prosecutor stated that appellant was given a copy of the police reports and that right next to the six pack photograph in the police report it lists the date the photo was taken as December 29. Appellant did not dispute that characterization. The field identification cards simply show that same date. It is difficult to see how the cards prejudiced appellant. Appellant contends that the cards "clarified the date of the photo, which prior to that point had been established only by the recollection of Detective Moss." In addition to Detective Moss's testimony and the police report referenced by the prosecutor, the date was also shown by the testimony of Officer Yearwood. He testified that he took the photograph on December 29. His testimony showed a clear memory of the details of the encounter. Thus, the additional probative effect of the cards was very small. There is no reasonable probability or possibility that appellant would have received a more favorable outcome in the absence of the field identification cards.
Even without a date, it is difficult to imagine that appellant was unaware of the approximate date the photograph was taken.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.