Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2007021343, Lee E. Cooper, Judge,Kevin J. McGee, Judge
Robert C. Kasenow, II, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Tyrone Cedrick Fisher appeals his conviction by jury of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), attempted destruction of evidence (Pen. Code, §§ 664/135), and resisting, obstructing and delaying a peace officer (Pen. Code, § 148, subd. (a)(1)). Appellant admitted three prior drug convictions (Health & Saf. Code, § 11370.2, subd. (a)) and was sentenced to 13 years state prison. We affirm.
In case number 2005005506, the trial court revoked probation and sentenced appellant to one year four months state prison based on a prior plea to two counts of sale/transportation of a controlled substance (Health & Saf Code, § 11352, subd. (a)) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The sentence was ordered to run consecutive to the 13 year sentence in case number 2007021343.
Facts and Procedural History
On June 6, 2008. Ventura County Sheriff Narcotics Detective Victor Fazio went to Premium Inns in Newbury Park to conduct a probation search of appellant. Appellant was staying in room 206. He saw Jessica Cortez leave the room with a towel wrapped around her waist. Cortez was staggering and carrying a bucket of crab legs. The detective asked Deputy Matthew De La Huerta to detain Cortez and bring her to the front parking lot. Cortez had fresh needle marks on her hand, admitted recently using heroin and said there was heroin in the motel room.
Detective Fazio observed a vehicle drive up and let three children out. After the children went up to room 206, appellant got out of a blue vehicle. Detective Fazio identified himself and asked appellant to submit to a probation search. During the patdown, appellant broke free and ran. Detective Fazio and Deputy Gene Martinez gave chase, ordering appellant to stop.
As appellant ran through a planter area littered with trash and overgrown bushes, he reached into his right pocket to remove something. Deputy Martinez saw appellant turn and throw a small white object towards the parking lot. Appellant suddenly stopped, put up his hands and said "I give up."
Detective Fazio found $900 in appellant's front right pocket and asked the officers to search the parking lot and planter area. Deputy De La Huerta searched the area for about 10 minutes and found a white plastic baggie, about the size of a golf ball, under a Chevrolet Tahoe SUV. Deputy Martinez identified the white baggie and said it was consistent with the object thrown by appellant. It contained a 4.9 gram chunk of cocaine base, commonly known as rock cocaine.
Waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], appellant claimed that he ran because he was scared and did not want to be searched in front of his kids. Detective Fazio assumed the baggie contained cocaine powder and asked about it. Appellant said that "he didn't mess with any powder cocaine."
Officers searched the motel room and found a glass pipe, heroin, and a syringe loaded with heroin in a purse.
At trial, Detective Fazio opined that appellant possessed the cocaine for sale based on the quantity, the $900, and because appellant was not under the influence of the drug.
The defense theory was that Cortez threw the cocaine under the SUV. Deputy Dean Cook, however, watched Cortez before she was detained and did not see her throw anything. Deputy De La Huerta testified that Cortez did not throw or drop the baggie. When Deputy De La Huerta searched the parking lot, Deputy Cook stood guard over Cortez and did not see her toss or kick anything near the SUV.
Discovery Sanction - Exclusion of Defense Witness Testimony
Appellant argues that the trial court erred in excluding the testimony of his brother, Herbert Fisher, who purportedly gave appellant the $900 to buy jail commissary goods. Appellant was scheduled to report to jail on June 8, 2007, on a probation matter.
On the third day of trial, appellant stated that he was calling his brother as a witness. The prosecutor objected on the ground that the brother was not on appellant's witness list. The trial court sustained the objection. "We have rules of discovery in criminal cases. We have rules of disclosure of witnesses.... And now we're at the last minute, we're in the middle of trial, and an undisclosed witness comes up." The brother was not permitted to testify.
Penal Code section 1054.3, subdivision (a) provides that a defendant must disclose the names and addresses of persons he or she intends to call as witnesses at trial. Absent good cause, the disclosure must be made at least 30 days prior to trial. (Pen. Code, § 1054.7.) "[T]imely pretrial disclosure of all relevant and reasonably accessible information, to the extent constitutionally permitted, facilitates 'the true purpose of a criminal trial, the ascertainment of the facts.' [Citations.]" (In re Littlefield (1993) 5 Cal.4th 122, 131.)
When appellant was arrested, he told the officers that the $900 came from "Littles" but told no one that Littles was his brother. The trial court found that appellant "knew all along he was going to claim that his brother gave him the money. That should have been made clear to you, Mr. Lehr [defense counsel], by [appellant]. If it wasn't made clear to you, then [appellant] brought the problem on himself."
Appellant made a tactical decision to call the brother as a surprise witness. This type of gamesmanship, trial by ambush, is the proper subject of a witness exclusion order. (In re Littlefield, supra,5 Cal.4th at pp. 132-133.) "[T]he defense must disclose the anticipated testimony to the prosecutor prior to trial, just as the prosecutor must disclose to the defense any reports of relevant statements made by the People's witnesses. [Citation.]" (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165.)
Defense counsel stated that the brother "was present in the courtroom when the first witness in this case began to testify yesterday morning. I think that was Deputy De La Huerta. [¶] During his testimony, it was discussed, with my client whispering in my ear, something about the $900 coming from his brother. So at the first break [I] talked to his brother and his brother said, yes, I gave Mr. Fisher $1,500 about two or three days before the date in question.... [¶] Frankly, if I was told that before, I didn't remember it.... [A]t the end of that Miranda interview the cash was discussed and it's on [the] tape that the People gave me and it says that the money came from his brother for the remand."
Appellant argues that the witness preclusion order is improper because the prosecution never made a discovery request. Appellant, however, provided a witness list that was relied on by the prosecution and the trial court. It would have been futile to make a formal discovery request. The brother was a surprise witness – a surprise not only to the prosecutor but to defense counsel who stated, "[f]rankly, I missed it. And until yesterday I didn't have the intention of calling the witness. [¶] As soon as I had the intention, I told [the prosecutor] It should not be a surprise.... and he's been here for the entire trial." (Emphasis added.)
Counsel's protest that counsel had just decided to call the brother as a witness was no excuse in light of the trial court's finding that appellant knew that the brother was an important witness and concealed it from his own attorney. "[S]uch gamesmanship is inconsistent with the quest for truth, which is the objective of modern discovery." (In re Littlefield, supra, 5 Cal.4th at p. 133.)
Appellant asserts that the trial court erred in not imposing a less drastic sanction such as a continuance or a jury admonition, all of which were discussed by counsel. Penal Code section 1054.5, subdivision (c) provides: "The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted."
Although witness preclusion should be sparingly used, it may be imposed where there has been a willful and deliberate discovery abuse to gain a tactical advantage at trial. (People v. Edwards (1993) 17 Cal.App.4th 1248, 1262-1264.) Preclusion is justified where a less severe sanction "'would perpetuate rather than limit the prejudice to the State and the harm to the adversary process.' [Citation.]" (Michigan v. Lucas (1991) 500 U.S. 145, 152 [114 L.Ed.2d 205, 214].) If the rule was otherwise, the integrity of the adversary process would be compromised and "parties with little to lose would be encouraged to not comply with pretrial discovery rules." (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.)
Appellant complains that "it is unfair to visit the sins of the lawyer upon his client," but the harm was self-inflicted. (Taylor v. Illinois (1988) 484 U.S. 400, 416 [98 L.Ed.2d 798, 815]. In the words of the trial court, appellant "brought the problem on himself." We concur. A defendant cannot profit from his own wrongdoing. (See e.g., Giles v. California (2008) ___ U.S. ___, ___ [128 S.Ct. 2678, 2683] [discussing forfeiture by wrongdoing where defendant engaged in conduct to prevent witness from testifying].)
The trial court concluded that a lesser sanction would prejudice the prosecution and delay the trial which was soon to go to the jury. There was no abuse of discretion. (People v. Jackson, supra, 15 Cal.App.4th at p. 1203.) Appellant knew the trial judge was a visiting judge scheduled to leave the next day and that defense counsel was leaving on vacation. Had the prosecution known about the brother, it would have in all likelihood asked the trial court to exclude the brother from the courtroom until called to testify. (Evid. Code, § 777, subd. (a).) The prosecution was also denied "a reasonable opportunity to investigate prospective defense witnesses before trial so as to determine the nature of their anticipated testimony, to discover any matter that might reveal a bias or otherwise impeach the witness's testimony, and to avoid the need for midtrial continuances for these purposes. [Citation.]" (In re Littlefield, supra, 5 Cal.4th at p. 131.)
Appellant asserts that the discovery order violated his due process rights but did not object on that ground. Having waived the issue, he is precluded from asserting it for the first time on appeal. (See e.g., United States v. Olano (1993) 507 U.S., 725, 731-732 [123 L.Ed.2d 508, 517-518]; People v. Champion (1995) 9 Cal.4th 879, 918.) Waiver aside, appellant cites no authority that a criminal defendant has a due process right to engage in discovery abuses. Appellant "cannot disregard the rules of procedure, then later claim, an absolute right to present surprise testimony. He was not denied his constitutional right to compulsory process and due process." (People v. Jackson, supra, 15 Cal.App.4th at p. 1204.)
Assuming, arguendo, that the trial court erred in not permitting the brother to testify, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 22-23 [17 L.Ed.2d 705, 710]; People v. Edwards, supra, 17 Cal.App.4th at p. 1266.) Deputy Martinez saw appellant throw a small white object that was retrieved and found to be cocaine base. When asked about the baggie, appellant said that he did not "mess with powder cocaine," the inference being that appellant did "mess" with rock cocaine. Appellant had a large amount of cash and was searched earlier that day by his probation officer. Detective Fazio testified that probationers and parolees who have just been searched often believe it is safe "to go use or buy drugs or sell drugs because they think that they're scot-free because they just got visited by their probation or parole officer and no one's going to bother them for a week or two."
On cross-examination, Detective Fazio was asked about the $900 in appellant's pocket. Appellant told the detective that his brother gave him $1,500 to buy food and toiletries after appellant was remanded to jail. The brother's testimony was cumulative and would have corroborated the prosecution's theory that appellant used the money to purchase cocaine base.
Appellant argues that the jury may have speculated why the brother did not testify. The jury, however, was instructed: "Neither side is required to call all witnesses who may have information about the case...." (CALCRIM 300.) It is presumed that the jury understood and followed the instruction. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Evidence of appellant's guilt was overwhelming. It included an attempted escape, the quick toss of a chunk of rock cocaine into the parking lot, and appellant's admission that he "did not mess with cocaine powder." It was a telling statement because the trier of fact could reasonably infer that a baggie of cocaine powder does not look like a golf ball or roll under a vehicle when tossed.
Partners in Crime - Impeachment Evidence
Appellant contends that the trial court erred in ruling that Jessica Cortez, if called as a defense witness, could be asked whether she sold drugs with appellant in a prior case. Appellant argued that the prior bad acts evidence was "too similar" and should be excluded pursuant to Evidence Code section 352.
The trial court found that the impeachment evidence was "permissible. Sort of the common plan, scheme, or design type of argument[]. I'll permit [the prosecutor] to ask who was – whether there was a codefendant in that case... [in] which [Cortez] was convicted and who that codefendant was."
Appellant did not call Cortez as a witness and claims that he was denied a fair trial because Cortez would have said that it was her cocaine. But that evidence was already before the jury based on Cortez's statements to the officers.
The trial court did not err in finding that the probative value of the evidence substantially outweighed the potential for prejudice. (Evid. Code, §352.) "[E]vidence that the witness and defendant... had been partners in crime, was far more probative to show the witness might be willing to perjure h[er]self to aid defendant...." (People v. Freeman (1994) 8 Cal.4th 450, 494.)
In Freeman, the defendant was charged with robbery and called an alibi witness who had two prior felony convictions, one of which was a 1961 robbery in which defendant was the codefendant. Our Supreme Court held that the prior robbery was admissible to show bias, interest or motive and did not violate the general prescription against the use of other crimes evidence. (Id., at p. 494.)
The same principle applies here. If Cortez testified, the impeachment evidence was not to prove appellant's character or disposition, but to show Cortez's bias, interest, and motive to lie. (Evid. Code, § 780, subd. (f); People v. Lang (1989) 49 Cal.3d 991, 1017.) Appellant had no due process right to give Cortez a false aura of veracity. (People v. Chavez (2000) 84 Cal.App.4th 25, 28; People v. Muldrow (1988) 202 Cal.App.3d 636, 646.)
Appellant claimed that Cortez threw the cocaine under the SUV but Cortez was a self-professed heroin user, was staggering, and left the motel room wrapped in a bath towel carrying an orange juice container and a bucket of crab legs. No one saw her carry a baggie of cocaine or drop or throw anything into the parking lot.
Defense counsel made an offer of proof that Cortez went down to the pool area "to exchange some coke for some more heroin because she was out of heroin. And that part is the part I'm most concerned about because she was going to testify to that today." (Emphasis added.) The trial court discredited the argument because Cortez told the officers she had heroin in the motel room and heroin was found in her purse. Cortez did not say that she was out of heroin or trying to exchange cocaine for heroin.
Defense counsel replied, "Then the case is over.... I'm not going to call her if it's impeachable. I'll just save the issue for appeal, if there is a conviction."
Appellant makes no showing that the trial court abused its discretion or that the alleged errors, either singularly or cumulatively, denied appellant a fair trial. (People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Jenkins (2000) 22 Cal.4th 900, 1056.) Having reviewed the entire record, we conclude that the alleged errors are harmless under any standard of review. (People v. Miranda (1987) 44 Cal.3d 57, 123.)
The judgment is affirmed.
We concur, GILBERT, P.J.,COFFEE, J.
The prosecutor argued: "The [brother's] name was not on the tape... And even if this witness [i.e., Deputy De La Huerta] knows the brother, that doesn't mean that the People know the brother or his name. [¶] And the defense certainly had an opportunity to talk to their own client about the issues and evidence in this case, specifically something so important as one of the major facts that go to the reason that we believe he was in possession of the cocaine for the purposes of sale."