Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA082849. Joan Comparet-Cassani, Judge.
Waldemar D. Halka, 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, Senior Assistant Attorney General, Linda C. Johnson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Chance Grable-Hughes appeals his rape conviction (Pen. Code, § 261, subd. (a)(2)). He argues that the trial court erred in excluding three witnesses in response to a discovery violation; in refusing to permit the cross examination of the victim with respect to crime victim payments; in excluding a prior inconsistent statement; and in allowing the victim to testify through a sign language interpreter. He further alleges that the cumulative effect of the errors was prejudicial and that improper fees were imposed. We conclude that the witnesses were improperly excluded and that the error was not harmless. We therefore reverse the judgment and remand for a new trial.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Grable-Hughes was charged with two counts of forcible rape (§ 261, subd. (a)(2)); forcible oral copulation (§ 288a, subd. (c)(2)); and sexual penetration by a foreign object (§ 289, subd. (a)(1)).
At trial, complaining witness D.J. testified as follows: On the evening of August 3, 2009, a party honoring the third anniversary of D.J. and her boyfriend was held at the house where Grable-Hughes lived with two roommates. D.J. drank a lot of alcohol over the course of the evening and she and others remained overnight at the house. At one point in the evening, the men at the party got into a fight, and she gave Grable-Hughes a towel to clean his face after one of the other men pushed him. D.J. did not participate in any wrestling. Eventually, one of the roommates went to bed, as did D.J.’s boyfriend and D.J.’s sister, leaving Grable-Hughes and D.J. the only ones still awake. D.J. continued to drink while sitting on the porch, got what she described as “really, really drunk, ” and eventually passed out on the chair. That night, D.J., who has a hearing impairment, was wearing a hearing aid set to its highest level.
When D.J. awoke, Grable-Hughes was touching her inner thigh with his hand. She pushed his hand away and pressed her legs together, then passed out again. She was roused by Grable-Hughes touching her again, rubbing her legs and placing his hand in her pants, and touching her labia with his hand. D.J. tried to get up and asked Grable-Hughes what he was doing. The touching was unwelcome and she felt scared. D.J. was unable to stand, describing her body as “very, very heavy and I just couldn’t stand up.” She pushed herself to her feet by grabbing Grable-Hughes’s shirt and pushing off from his legs. She had difficulty opening the door to the house, and Grable-Hughes helped her by opening the door.
Grable-Hughes helped D.J. walk into the house. They walked down a hallway, with D.J. intending to find her boyfriend, and then Grable-Hughes pushed D.J. into his bedroom. D.J. bumped into the door and fell on Grable-Hughes’s bed. She heard Grable-Hughes close and lock the bedroom door behind them.
In the dark room Grable-Hughes aggressively pushed down D.J.’s shorts and underwear to her ankles. D.J. said no several times, but she could not yell because she was crying, sobbing, and choking. Grable-Hughes asked, “What do you mean, no?” and continued. Grable-Hughes orally copulated D.J., and inserted first a finger and then his penis into her vagina. D.J. grabbed his arms to push him away, and she rolled off the bed.
Grable-Hughes picked D.J. off the floor and tossed her back on the bed. He held her down by her wrists and inserted his penis in her again. She rolled off the bed a second time, stood, put on her underwear and shorts, and she walked to the door. She opened the locked door, but Grable-Hughes kicked it shut. He said, “Don’t tell—you’re not gonna tell anyone, right?” D.J. responded, “No, that’s not right.” Grable-Hughes said, “Don’t tell Alex [D.J.’s boyfriend] or Ramon [one of the housemates].”
D.J. pushed past Grable-Hughes and went to the room where her boyfriend was sleeping. D.J., her boyfriend, and her sister left the house, and once they were in the car, she told them that Grable-Hughes had raped her. D.J.’s sister and boyfriend left the car, then later returned. They drove to a nearby parking lot, where they called the police. D.J. was taken by ambulance to the hospital, where she received treatment and a sexual assault examination.
D.J.’s boyfriend, her sister, and the sexual assault nurse who examined D.J. all testified for the prosecution. D.J’s boyfriend generally corroborated D.J.’s account of the evening, including that he went to bed while she was still awake. In the night, he awoke to the sound of a door slamming, but he thought nothing of it because doors were always being slammed at the house. He went back to sleep, and awoke to D.J. urging him to leave; he observed that she was shaking and upset. D.J., her boyfriend, and D.J.’s sister left the house. Once they were in the car, D.J. told her boyfriend that Grable-Hughes had raped her.
D.J.’s boyfriend testified that he returned to the house and found Grable-Hughes sleeping in his bedroom with his penis hanging out of his pants. He punched and pushed Grable-Hughes; accused him of rape; and said he would call the police. Grable-Hughes said, “You aren’t calling nobody.” “Watch me, ” replied D.J.’s boyfriend, and he left the house. D.J.’s boyfriend drove the three of them to a nearby parking lot and called the police.
D.J.’s boyfriend testified that D.J. did not have bruises before the party but that after that night she had bruises on her wrist and back. He testified that other than some contact between “Ray” and Grable-Hughes during the party he did not see anyone wrestling, fighting, kickboxing, or engaged in any similar activity.
D.J.’s sister testified that she, too, went to bed before D.J. did. She also heard a door slam but went back to sleep, waking up to the sound of D.J. crying and saying she wanted to go home. She described D.J. stating in the car that she had been raped by Grable-Hughes, and she followed D.J.’s boyfriend back into the house afterwards. She saw Grable-Hughes’s penis out of his jeans, witnessed the confrontation between the men, and heard Grable-Hughes say in an aggressive way, “No one’s gonna call the cops.” She also testified that “Ray” was participating in some wrestling during the party, but that she had not seen D.J. participate in it.
The nurse who performed the sexual assault examination on D.J. also testified. She testified that she had documented the early stages of bruises on D.J.’s left arm. The bruising was consistent with fingers being used to hold down her left arm. D.J. also had redness and abrasions to her vaginal area that were consistent with blunt force trauma. Overall, the examination was consistent with D.J.’s account of what had occurred, although it was also consistent with consensual sex.
A nurse who examined Grable-Hughes on the morning of August 4, 2009, testified that he had an abrasion on the back of his arm consistent with being scratched by a fingernail. He also had two “red linear markings” on his chest that had been inflicted recently.
Grable-Hughes testified in his own defense, acknowledging sexual contact with D.J. but claiming it was consensual. He said that during the party, they were all—including Grable-Hughes and D.J.—wrestling in the living room, “pinning each other down and grabbing each other, and stuff like that.” He stopped wrestling when his back began to hurt, which angered one of the attendees, Ray. Ray followed Grable-Hughes outside and pushed him into a wall, causing Grable-Hughes to start bleeding. D.J. helped him clean and treat the wound.
Grable-Hughes described staying up late talking with D.J. about serious personal subjects such as their childhoods and previous relationships. They sat close together, knees touching. According to Grable-Hughes, at one point they fell silent, and he asked her why she was still awake, and she said “to take care of my boy.” He said that he “was just kind of looking at her, trying to figure out the situation, ” and he started to rub the inside of her thigh. He kissed D.J. and put his hand under her shorts and underwear, against her vagina. D.J. said, “Let’s put you to bed, ” and he followed her inside the house. Grable-Hughes reported that D.J. walked into his room and lay down on his bed. He closed the door and turned off the light. In the dark he took off her shorts and put his finger inside her vagina. D.J. never told him to stop or said no. He performed oral sex on her, and she did not ask him to stop. It appeared to him that she wanted him to do it. He then had sexual intercourse with her for 15 to 20 minutes. He stopped without ejaculating because he was tired and it sounded like she had experienced an orgasm. Grable-Hughes denied throwing D.J. on the bed, holding her arms or any part of her body down, or forcing her to have sexual intercourse with him.
When Grable-Hughes stopped, D.J. got up and put her shorts back on, and he asked her what was wrong because she sounded like she was crying. She said nothing, and he assumed that she was upset because she had just cheated on her boyfriend. She had opened the door, and he shut it again with his toes while he spoke to her, but the door did not slam because it dragged on the carpet in the room. He asked D.J. if she wanted to talk about whatever was wrong, and she said no. He asked her if they could keep what happened just between the two of them; she did not respond, and left the room. Grable-Hughes went to bed. The next thing he remembered, he was being attacked by D.J.’s boyfriend, who accused him of rape. He testified that he denied raping her. Later on, he was awakened by the police, who took him to the hospital for examination.
During trial, the court refused to permit the defense to call three witnesses who had appeared on the prosecution’s witness list but whose statements to the defense had not been provided to the prosecution.
Grable-Hughes was convicted of forcible rape; the jury hung on the other charges and those counts were dismissed. Sentenced to six years in prison, he appeals.
DISCUSSION
The trial court refused to permit three people who were at the party on the night of the incident, Ruben Villegas, Ramon Villegas, and Neyli Martinez, to testify for the defense at trial because their names were not included on the defense witness list and their statements had not previously been disclosed to the prosecution. Grable-Hughes argues that the court erred when it excluded these witnesses; that the court erred when it permitted the prosecutor to select a remedy for the discovery violation; and that his counsel rendered ineffective assistance by failing to provide the witness names to the prosecution. We conclude that the court erred by excluding the witnesses and that the error was not harmless.
In proceedings outside the presence of the jury, defense counsel described the anticipated testimony of these witnesses. Grable-Hughes’s housemate Ruben Villegas was expected to testify that he was sleeping in the room with D.J.’s sister and boyfriend, left the room to get a glass of water, and saw D.J. and Grable-Hughes walking down the hall together toward Grable-Hughes’s room. He would also testify that although there was a television on in his room, it was playing at a low volume. He would testify that earlier in the party there was wrestling going on, in which D.J. participated. Ramon Villegas was expected to testify that he saw D.J. wrestling and wrestled with her, and that he saw D.J. sitting in a chair with Grable-Hughes. Neyli Martinez was expected to testify that she was the only one in the house who was not drinking alcohol that night because she had an infant for whom she was caring. She was “up and down all night” due to the child; had awakened at 3:00 a.m. and showered; and was awake from that time until the police arrived later in the morning. Her room was adjacent to Grable-Hughes’s room, but she heard no noise and nothing unusual.
The prosecutor objected to the testimony because she had received no discovery of many of the witnesses’ statements. Specifically, Ruben Villegas’s account of wrestling was not in any report, nor was his statement that he got up for water. The prosecutor observed that there was nothing in the police report about D.J. engaging in wrestling or that Ramon Villegas had wrestled with her. Moreover, although the police report mentioned Neyli Martinez being awake to care for her child, there was nothing about her being in and out of the room or having an adjacent room. The prosecutor complained that this was late discovery and that had she known of it, she would have questioned differently the witnesses who had already testified.
Defense counsel explained that he had met with the witnesses the prior night and that Ruben Villegas had told him about the wrestling then, while Ramon Villegas had mentioned wrestling previously, shortly after he assumed the representation of Grable-Hughes. The court asked why defense counsel had not turned over the information to the prosecution, and defense counsel said he did not think it was necessary. Once a witness had appeared on the People’s witness list, counsel explained, he believed that the prosecution had interviewed that witness and was therefore “aware of whatever went on.” The court told defense counsel, “You are completely avoiding and ignoring the fact that you didn’t turn over the information you obtained. Whether or not they had an opportunity to interview him is irrelevant. You have a duty to provide discovery to the people, just as they provide discovery to you.”
The court asked the prosecutor whether she preferred that the witnesses be excluded or that they be permitted to testify with a jury instruction about late discovery. The prosecutor stated her preference for the witnesses’ exclusion, and the court ruled that the witnesses would not be permitted to testify. Defense counsel filed points and authorities requesting that the court reconsider the ruling; this was denied because, the court said, “You had all morning to tell the D.A., and you never disclosed to her either any of this information.”
We agree with Grable-Hughes’s contention that there was no discovery violation here. The three witnesses were on the prosecution’s witness list. Defense counsel had no obligation to disclose any statements that he obtained from prosecution witnesses that he might have used to refute the prosecution’s case during cross-examination. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn. 14.) Therefore, so long as the information was expected to be used for cross-examination, counsel had no obligation to disclose it.
Defense counsel’s duty to disclose the witnesses and the content of their statements arose only when he decided to call them as defense witnesses at trial. (§ 1054.3, subd. (a)(1).) Counsel explained to the court that he had interviewed the witnesses the evening before, from 7:30 p.m. to 10:30 p.m., and that “It was my intention to call them.” Once that intention to call them as witnesses had been formed, counsel had the duty under section 1054.3 to disclose these witnesses to the prosecution and the content of their statements. Counsel appears, from the limited record, to have disclosed at least two of the witnesses names at that time: the first line of the transcript from the day in question is the disclosure that the defense may “also” call Martinez as a witness. The prosecutor’s response makes it clear that this was not the first witness being disclosed: “Again, Your Honor, I was never given notice of any of these witnesses.” The court was unconcerned: “I wasn’t either, but they’re on your list, so you do know them.” A reference to Ramon Villegas during this discussion suggests that his name had been disclosed at that time prior to going on the record.
The extensive discussion set forth above of what the three witnesses would testify to was placed on the record later in the morning session the same day. Accordingly, the prosecutor was alerted to these defense witnesses from her own witness list within a matter of hours of the interview by defense counsel, and fewer than 14 hours, most of them at night, had passed between the time of the interviews and the time of the disclosure of the witnesses’ names and the expected substance of their testimony. There was, therefore, no discovery violation here, and the trial court abused its discretion by excluding the witnesses.
We cannot conclude that the error was harmless. That specific sexual acts occurred in this case was not in dispute. The case turned on whether the jury believed D.J.’s account that Grable-Hughes forced her into these acts against her will, or whether it believed Grable-Hughes’s assertions that she appeared to invite and welcome the contact and did not protest it. From the outcome—one conviction, hung on three counts—it appears that the jury found neither the victim’s nor the defendant’s account wholly accurate or reliable. Accordingly, to the extent that other testimony tended to corroborate the explanation of Grable-Hughes or to discredit the account given by D.J., that testimony could easily have altered the jury’s conclusions about what happened in Grable-Hughes’s bedroom.
D.J. had two witnesses to back up her description of the evening—her boyfriend and her sister – and the physical evidence of bruises on her wrist tended to support her account that she was assaulted. For his part, Grable-Hughes sought to present three witnesses to corroborate his story, but the court did not permit them to testify, leaving him the only person to testify to his version of events. The anticipated testimony of two of these witnesses would have tended to support the defendant’s account of the evening and would have given independent credibility to Grable-Hughes’s version of the events. Specifically, Ramon and Ruben Villegas’s testimony about D.J. wrestling at the party would have contradicted the testimony of D.J., her boyfriend, and her sister that she did not participate in wrestling, and it would have corroborated Grable-Hughes’s testimony that D.J. did wrestle. The wrestling evidence is significant because it offers an alternative explanation for how D.J. acquired bruises on the night of the party. Given that the bruises were one basis on which the sexual assault team nurse concluded that the contact between D.J. and Grable-Hughes was consistent with sexual assault, and that the prosecutor argued that the bruises were evidence of force in the rape, this testimony was significant to assessing the events that occurred that night.
The remaining testimony—concerning sightings of D.J. and Grable-Hughes in the house and the hallway, and the noise level and the absence of unusual noises in the house—in our view is less significant. This testimony would generally have corroborated Grable-Hughes’s account but would not have tended to contradict D.J.’s testimony, as she testified that he walked her down the hall, that they were together alone outside, and that she did not loudly protest during the sexual assault. Ruben Villegas’s anticipated testimony that the television was playing radio at a very low volume was consistent with the testimony of D.J.’s boyfriend that the television was on and that they were listening to a radio station at a volume loud enough for them to hear it but “not loud.” D.J. had testified that the volume was high, but the noise level in the house was not particularly significant because there was no allegation that D.J. was protesting or struggling but that resultant noises were drowned out. Accordingly, the excluded testimony that the television was playing at a low volume would have contributed little to the jury’s understanding. Although we acknowledge that there was some disagreement in the testimony about whether Grable-Hughes slammed his bedroom door or merely shut it, D.J.’s boyfriend had also testified that it was common for doors to be slammed in the house, so Martinez’s testimony that there were no unusual sounds in the house does not strongly corroborate one version of events rather than another. Therefore, even if this testimony had been permitted, it did not particularly tend to establish that Grable-Hughes, rather than D.J., was telling the truth about what occurred in Grable-Hughes’s room that night. Finally, the final element of the proposed testimony was that Ramon Villegas “noticed D.J. sitting in a chair with defendant.” As his description of the anticipated testimony on this point included no further detail, Grable-Hughes has not demonstrated that this evidence was of such a nature that it is reasonably probable that he would have obtained a more favorable result had the testimony been permitted.
Under any standard of review the error with respect to excluding the witnesses who would have testified that D.J. participated in wrestling that night cannot be considered harmless. Grable-Hughes was denied the ability to put on a witness whose testimony would have supported his alternative explanation for how D.J. came to have the bruises that were the chief physical evidence to support D.J.’s contention that the sexual intercourse she had with Grable-Hughes was without her consent. In this credibility contest, Grable-Hughes’s testimony stood alone against the testimony of three witnesses instead of being bolstered by that of his own witnesses. It is reasonably probable that if the jury had heard that others witnessed D.J. wrestling and even wrestled with her (contrary to what she and her witnesses testified), the jury, which was evidently divided and in conflict about which account to accept, would have assessed both her credibility and Grable-Hughes’s credibility differently, resulting in a result more favorable to Grable-Hughes. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Allen (1978) 77 Cal.App.3d 924, 938-939 [when the credibility of the defendant and his witnesses versus the credibility of prosecution witnesses is the key issue, preventing the jury from considering evidence that might have substantially affected the credibility of prosecution witnesses cannot be considered harmless].) We therefore reverse the judgment and remand the matter for a new trial.
Because of our conclusion, we need not address Grable-Hughes’s remaining claims of error.
DISPOSITION
The judgment is reversed and the matter remanded for a new trial.
We concur: PERLUSS, P. J., WOODS, J.