Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF021192. Sherrill A. Ellsworth, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Meagan Beale and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Larry Frank Lopez appeals from judgment entered following a jury conviction for assault with a deadly weapon, a knife. (Pen. Code, § 245, subd. (a)(1).) The jury also found true the allegation that defendant personally used a deadly weapon in violation of section 12022, subdivision (b). Defendant admitted the prior strike conviction allegation (§§ 667, subds. (c), (e)(1)) and prior conviction resulting in a prior prison term (Health & Saf. Code, § 11551, § 667.5, subd. (b)). The trial court granted defendant’s motion to dismiss his prior strike conviction and sentenced defendant to five years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court abused its discretion in denying his motion to exclude evidence the prosecution delayed disclosing to the defense. Defendant alternatively argues the trial court abused its discretion in failing to instruct the jury on the prosecutor’s failure to comply with his duty immediately to disclose evidence. We conclude there was no prejudicial error and affirm the judgment.
1. Facts
During the evening of April 29, 2007, defendant’s oldest brother, Timmy A., hosted a birthday party for his son, Paul A., who was 16 years old. The party was held at the home of the A.’s, defendant’s parents. Defendant’s youngest brother, Daniel, who was 20 years old, arrived at the party at 6:00 p.m. Defendant’s brothers and Paul drank beer and rum throughout the evening.
Sometime between 11:00 p.m. and midnight, Daniel’s parents, who had been drinking, began arguing. Daniel attempted to intervene. Defendant entered the room and asked what was going on. Daniel told defendant nothing was going on and to “just leave it alone.” Defendant and Daniel began arguing and fist fighting.
According to Paul’s trial testimony, he heard the argument and came inside. He saw Daniel and defendant standing about two feet apart, arguing and fist fighting. Daniel’s mother was trying to stop Daniel and defendant from fighting. When Paul was about three feet behind Daniel, Paul saw defendant stab Daniel in the knee. Daniel fell to the ground.
Daniel testified that he accidentally stabbed himself in the leg. While arguing with defendant, he pulled out his knife and, when he began to raise it, his mother got in front of him and tried to push him away. Daniel lowered his knife and ran to Timmy’s bedroom. His older cousin, Freddy Avila (who did not testify) was there. Freddy took Daniel’s knife away from him and tried to calm him down.
Daniel testified that about a minute later he left the bedroom. On his way to the living room, he saw defendant and grabbed a kitchen knife. The two started arguing again in the living room. Ten or 12 other people were there yelling at defendant and trying to separate defendant and Daniel. As Daniel was swinging the knife up and down, he accidentally stabbed himself in his left thigh. He noticed blood running down his leg and asked defendant, “Did you stab me?” Defendant said no. Daniel punched defendant in the face and then lay down on the couch.
Daniel testified that others in the room, including Paul and Avila, accused defendant of stabbing Daniel. Daniel said he initially accused defendant of stabbing him because he was scared about what might happen. Also, he was mad at defendant and drunk at the time. Daniel claimed he told the truth at the trial because he felt guilty. Daniel acknowledged that when he arrived at the party, he had seen a knife in a leather holster on defendant’s belt. Daniel claimed he did not see defendant pull out the knife during the incident.
Noe Escobar, who rented space for his tow truck on the A.’s property, testified that, as Escobar was about to leave the property in his truck, defendant entered the passenger side of Escobar’s truck and asked for a ride. Defendant appeared nervous. Escobar refused. Then the police arrived.
Officer Rodriguez testified that around midnight, he responded to a call that there had been an assault with a deadly weapon at the A home. Backup officers and an ambulance also arrived about the same time. Two young men told Rodriguez the perpetrator had run into the backyard. Rodriguez entered the house, saw Daniel on the couch, and asked him who assaulted him and where the perpetrator was. Daniel replied, “Larry did it, and he is in the back yard.”
Rodriguez went to look for defendant in the backyard with Officer Fraker. They found him in Escobar’s truck parked in the rear of the A.’s property and ordered Escobar and defendant out of the truck. Defendant appeared to have been punched in the eye. Fraker searched the truck and found a knife in a sheath. Escobar said the knife was not his and that defendant had “brought it in.”
At the crime scene, Daniel identified defendant as the person who had stabbed him. Others at the scene also identified defendant as the perpetrator.
While at the hospital where defendant had been transported, Paul told Officer Rodriguez that he saw defendant stab Daniel.
On September 11, 2007, Daniel told district attorney investigator Roy Reed over the phone that he was not going to cooperate with anyone attempting to prosecute his brother and that he did not know who stabbed Daniel; anyone could have.
At trial Rodriguez testified that in order for Daniel’s injury to have been self-inflicted, Daniel would have had to have twisted his hand 180 degrees, in an awkward position.
2. Delayed Disclosure of Evidence
Defendant contends the trial court committed prejudicial error by denying his motion to exclude evidence that Daniel called Paul the night before Paul’s testimony and asked him not to lie. Defendant argues that evidence of the phone call destroyed defendant’s theory of the case and thus violated his constitutional rights to due process, a fair trial, and effective assistance of counsel.
A. Background Facts
Right after the jury was sworn in and on a break, the defense counsel informed the court that she had just received a note from the prosecutor stating that Daniel wanted to “confess something.” The prosecutor told the court he had just been informed of this.
When the court asked Daniel what he wanted to tell the court, Daniel stated that he stabbed himself. The court told Daniel not to say anything else. Defense counsel stated she had believed this was true but Daniel had never informed her of this before. The court noted Daniel’s statements might constitute perjury and appointed counsel for him.
After the prosecutor gave his opening statement and the defense reserved its opening statement, Daniel was called as the prosecution’s first witness. Paul was scheduled to testify after Daniel.
Contrary to Daniel’s previous statement to Officer Rodriguez that defendant stabbed Daniel, Daniel testified that he accidentally stabbed himself. Daniel stated during cross-examination, that he was intoxicated at the time and that his mother had taken the kitchen knife away from him after the incident.
On re-direct examination, the prosecutor asked Daniel, “Prior to your testimony here today, have you had any contact with any members[sic] of your family in an effort to try to influence the testimony here today?” Daniel replied, “No.” Defense counsel objected on the grounds the question was argumentative and vague. The court overruled the objection.
Upon completion of Daniel’s examination, the court excused him subject to recall. Paul took the stand and testified he saw defendant stab Daniel in the knee. The prosecutor asked Paul, “Prior to your testimony here today, has anybody asked you to do anything other than tell the truth?” Paul responded, “Yes.” Defense counsel objected and the matter was discussed out of the presence of the jury. Defense counsel claimed surprise and complained that she had not received any discovery. She also requested an offer of proof regarding any attempt to influence Paul.
In response, the prosecutor stated that Daniel had contacted Paul and told him to say he did not remember. The prosecutor further stated that this “came to light” the day before but was not discoverable because it was impeachment of a prosecution witness. Defense counsel complained she was never told about Daniel contacting Paul and therefore the prosecution committed discovery and due process violations.
The prosecutor explained that Paul’s mother had reported to her and Rodriguez the day before that Paul had told her Daniel had called Paul. The prosecutor argued the phone call incident was only prejudicial to plaintiff’s case.
The trial court concluded the prosecution had committed a discovery violation by delaying disclosure of the phone call and tentatively ruled that evidence of the call would be excluded. The court permitted the parties to submit briefing on the issue. The court also ordered Rodriguez to prepare a supplemental report on the phone call incident. Before excusing the jury for the day, the court told the jury it was tentatively striking the last question and Paul’s answer (that someone had asked him to lie).
The next court day, several days later, the court heard oral argument and reviewed the parties’ briefs on the matter. The court ruled there was no deceit, misconduct or violation under Brady v. Maryland (1963) 373 U.S. 83 (Brady); the delay in informing the defense of the phone call incident was less than 24 hours and did not involve exculpatory evidence; and evidence regarding the phone call was impeachment evidence of a prosecution witness and thus was only minimally prejudicial.
The court ordered that Daniel’s attorney appear in court, be provided the reports concerning the phone incident, and confer with Daniel. Upon defense counsel’s request, the court granted defendant a two hour continuance to allow defense counsel an opportunity to investigate the phone call incident further. The court also informed the jury that it was changing its previous tentative ruling sustaining defense counsel’s objection to Paul’s testimony. Without repeating the previous question or response, the court stated it was overruling the previous objection and permitting Paul’s response to stand.
Paul then testified that the night before his initial testimony, Daniel had called him and asked him not to be a “rat.” Daniel told Paul to testify that he did not see anything, because if Paul got in trouble and went to prison, he would not get beat up for being a snitch. Daniel asked Paul to lie and say he did not see anything.
B. Delay in Disclosing Evidence
Defendant argues the untimely disclosure of Daniel’s telephone call to Paul, asking Paul to lie on the witness stand, constitutes Brady error and a statutory discovery violation of section 1054.1. Under sections 1054.1 and 1054.7, the prosecutor must immediately disclose to the defense investigative or exculpatory evidence discovered within 30 days prior to trial.
Section 1054.1 provides in relevant part: “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following 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: [¶]... [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial,...”
Likewise, under Brady, supra, 373 U.S. at page 87, and its progeny, “the prosecution has a sua sponte obligation... to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant.” (People v. Bohannon (2000) 82 Cal.App.4th 798, 804; accord, In re Sassounian (1995) 9 Cal.4th 535, 543-544.) “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
The prosecution’s statutory duty to disclose all exculpatory evidence under section 1054.1 is not greater than its duty under Brady. “Section 1054, subdivision (e), precludes us from broadening the scope of discovery beyond that provided in the chapter or other express statutory provisions, or as mandated by the federal Constitution.” (People v. Tillis (1998) 18 Cal.4th 284, 294.) Thus, if there was no Brady violation, there was no violation of section 1054.1.
The people argue there was no prejudicial reversible error under section 1054, subdivision (e) because evidence that Daniel asked Paul to lie on the witness stand was not exculpatory. The evidence did not exonerate defendant. We agree. The evidence was inculpatory. Paul’s testimony regarding Daniel’s phone call was used to undermine Daniel’s credibility as a defense witness and impeach Daniel’s testimony that defendant did not stab Daniel. The evidence thus was not favorable to defendant.
Defendant argues the evidence should have been excluded under subdivision (f) of section 1054.1 because the evidence fell within the category of evidence stated in subdivision (f), which includes oral “reports of the statements of witnesses whom the prosecutor intends to call at the trial,...” (§ 1054.1, subd. (f).) Subdivision (f) of section 1054.1 encompasses “witnesses’ oral statements contained in oral reports to counsel.” (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165.) The court in Roland explained that including such evidence “will help ensure that both parties receive the maximum possible amount of information with which to prepare their cases, which in turn facilitates the ascertainment of the truth at trial. This objective is undermined if oral statements reported to counsel are excluded from the statute’s disclosure requirement.” (Ibid.)
Here, the evidence consisted of an oral statement that Daniel had called Paul and asked him to lie on the stand. This occurred the day before Paul was going to testify. Paul told his mother, Mrs. M., who in turn reported the incident to the police and prosecutor. This evidence falls within section 1054.1, subdivision (f). It constituted a relevant oral report of a witness statement by Daniel, a witness the prosecutor intended to call at the trial and impeach if he testified contrary to his original statement to Rodriguez that defendant stabbed him. The evidence was relevant to defendant’s defense that Daniel’s stab wound was self-inflicted and to Daniel’s credibility as a witness.
Even assuming the prosecution should have immediately provided the defense with the evidence under section 1054.1, subdivision (f), it was harmless error. It is not reasonably probable that defendant would have realized a more favorable verdict had the phone call evidence been provided any sooner or been excluded due to the delay. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) The prosecutor even acknowledged at one point during the trial, when arguing the prosecution had committed cumulative error, that Paul’s testimony regarding Daniel’s phone call was relatively innocuous.
There was overwhelming evidence, apart from the evidence of Daniel’s call, impugning Daniel’s credibility as a witness. Daniel’s credibility was highly suspect due to his inconsistent statements as to how the incident occurred. According to Rodriguez, right after the incident on April 29, 2007, Daniel said defendant had stabbed Daniel in the leg. Then on June 4, 2007, Daniel told an investigator he accidentally fell into a knife and he did not know who stabbed him. District attorney investigator Roy Reed testified that when he contacted Daniel on September 11, 2007, Daniel told him he might have told the police defendant stabbed him. But when Reed asked Daniel who stabbed him, Daniel said it could have been anyone. Daniel told Reed he did not know who stabbed him.
There was also overwhelming evidence refuting Daniel’s version of the incident. Paul testified he saw defendant holding a knife and saw defendant stab Daniel in the leg. Paul also testified he did not see Daniel holding a knife. Escobar testified that right after the argument between Daniel and defendant, defendant, who appeared nervous, got in Escobar’s truck and asked Escobar to give him a ride. The police arrived at that time, searched the truck, and found a knife, which Escobar told the officers defendant put in his truck. Others at the crime scene had also said defendant stabbed Daniel.
Defendant argues that had the prosecution immediately notified him of Daniel’s phone call to Paul, defendant might have decided not to call Daniel as a witness. But had defendant not called Daniel as a witness, there would have been little, if any, evidence supporting defendant’s defense that he stabbed himself.
Defendant complains that because his attorney was unaware of the telephone call evidence, his attorney made inadvertent uninformed tactical decisions regarding Daniel’s cross-examination and the defense in general. But defendant has not established that had different tactics been undertaken, the outcome would have been any different.
The delay in disclosure was less than 24 hours. The court granted a brief continuance to allow defense counsel an opportunity to investigate the phone call incident. In addition, defendant had an opportunity to cross-examine Daniel further regarding the incident and could have called him as a defense witness but chose not to. Defendant argues that he might have been precluded from eliciting further testimony from Daniel since Daniel could have refused to testify under the Fifth Amendment based on possible perjury charges. This argument is speculative.
The prosecution’s delay in disclosing the phone call evidence was harmless error since there was overwhelming evidence supporting defendant’s conviction and the delay in defendant discovering the evidence was brief. It is not reasonably probable that defendant would have realized a more favorable verdict had defendant been notified of the call sooner, and the delay in disclosure was harmless beyond a reasonable doubt. (Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24.)
3. Instructional Error
Defendant alternatively argues the trial court abused its discretion by failing to instruct the jury that the prosecution inappropriately delayed disclosing the phone call during which Daniel asked Paul to lie at trial. Defendant requested such an instruction but the court rejected it, finding it would not benefit either party.
Defendant asserts that the court should have given CALCRIM No. 306, as modified, which states: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose: that on the night before Paul’s testimony, Daniel called him and told him to lie and say that he did not see the stabbing occur. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
Defendant argues that the trial court’s failure to give this instruction resulted in the jury not taking into consideration the prosecution’s discovery violation of withholding evidence when evaluating Paul’s testimony. The jury was not told the prosecution withheld evidence. Defendant argues that if the jury had been told this, it is reasonably probable the jury would have rejected Paul’s testimony that defendant stabbed Daniel and would not have found defendant guilty as charged.
We disagree. Even assuming the prosecution committed a discovery violation, the court’s rejection of defendant’s instruction request does not constitute prejudicial error. There was no abuse of discretion in the court rejecting the instruction since the court reasonably concluded that giving the instruction would have been detrimental to the defense, as well as the prosecution. It would have highlighted Paul’s testimony that Daniel asked him to lie. The court reasonably concluded any benefit in instructing the jury that the prosecution had inappropriately delayed disclosing Daniel’s phone call to Paul would have been outweighed by the detriment caused by the instruction emphasizing Daniel’s attempt to persuade Paul to lie and not testify that defendant stabbed Daniel.
The error was also harmless in light of the overwhelming evidence that defendant stabbed Daniel. (People v. Breverman (1998) 19 Cal.4th 142, 178 [describing the Watson standard of harmless error when determining prejudice].) It is not reasonably probable defendant would have obtained a more favorable outcome had the trial court given CALCRIM No. 306.
4. Disposition
The judgment is affirmed.
We concur: Ramirez, P. J., Hollenhorst, J.