Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA074541, Joan Comparet-Cassani and Mark Kim, Judges. Reversed.
Richard L. Fitzer, 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, Keith S. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Elwood Mitchell appeals from the judgment entered following his plea of nolo contendere to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)). Appellant contends the trial court denied him his constitutional right to compulsory process by refusing to require the sheriff to execute a body attachment. We agree.
Unless otherwise noted, all further statutory references pertain to the Health and Safety Code.
FACTS
Long Beach Police Department Officer Yun Kim detained appellant because he saw appellant throw a cigarette on the ground. After appellant admitted he was on parole, Kim patted him down. Kim found three rocks of what appeared to be cocaine base and a charred glass pipe that could be used to smoke rock cocaine.
Appellant moved to suppress the evidence on the ground that Kim illegally detained him. At the hearing on the motion, Kim testified that he stopped Jeffrey Towner for jaywalking. During Towner’s detention, Kim saw appellant, who was walking with a woman, throw a lit cigarette on the ground. Kim detained appellant by telling him to approach. He asked appellant if he was on probation or parole, and appellant admitted he was on parole. Kim used the computer terminal in his car to verify that appellant was on parole and subject to a search condition, then patted appellant down. In appellant’s jacket pocket, Kim found a charred glass tube of a sort commonly used to smoke rock cocaine and three off-white rocks that Kim believed were rock cocaine.
Jeffrey Towner testified that he saw his girlfriend and was crossing the street to meet her when a police officer stopped him for jaywalking. Towner’s girlfriend and appellant were near him at the time. Towner did not recall whether appellant had a cigarette and did not see him drop one. On redirect examination, Towner admitted he was not certain whether appellant was the third person at the scene that night.
Angela Dean testified that appellant was her “common law husband” of more than 17 years, and she had never seen him smoke or possess cigarettes.
Appellant informed the court that he had subpoenaed Maria Jones to testify at the suppression hearing, but she was not present. The court found that appellant’s subpoena was “in order” and offered to issue a body attachment for her. Defense counsel asked to wait a few days, and the court continued the suppression hearing. On September 25, 2007 the court issued the attachment. That attachment does not appear in the record, and its subsequent treatment is uncertain.
Judge Comparet-Cassani ruled on appellant’s suppression motion.
All further date references pertain to 2007, unless otherwise noted.
The suppression hearing was continued twice before the court issued an order to show cause (OSC), which was apparently directed to the City of Long Beach. That OSC was dissolved on November 26.
At the next hearing defense counsel reminded the court that when they were “halfway through a suppression motion,” the court issued a body attachment for Maria Jones. Defense counsel informed the court that his investigator served an OSC on the sheriff’s department. The record does not include such an OSC, and the clerk’s minute orders do not mention it. Counsel further told the court that Deputy County Counsel Paul Yoshinata had told him of an ex parte contact with “the presiding judge” in which “the presiding judge decided … that the sheriff’s department did not have to come to court for this order to show cause.” Appellant argued that his state and federal constitutional rights to compulsory process had been violated. The court asked why “the presiding judge downtown” told the sheriff’s department that it was not required to appear. Defense counsel did not know, and the court stated, “Well, I’m not going against the presiding judge. I need to know why they did that.” The court insisted that defense counsel must discover the reason.
The prosecutor argued that unless appellant made a sufficient offer of proof regarding Jones’s materiality, the trial court lacked jurisdiction to order the sheriff to arrest her. The prosecutor also suggested that the defense had the burden of notifying the police when Jones was at home so they could arrest her.
The court asked appellant for an offer of proof. Counsel replied, “I expect her to say that she was walking to the particular liquor store the same night that my client was arrested. She was going to meet her boyfriend after walking to the liquor store on the same corner on Pacific Coast Highway …. [S]he’s going to say that she was waking [sic] in the same direction on the same street as Mr. Mitchell, that he was not smoking a cigarette, and he did not litter a cigarette, and the police came up and immediately detained him. Since littering a cigarette is the probable cause in this case, her testimony very well may be material. [¶] Now, to be completely candid with this court, Mr. [Towner] and Miss Jones … have never been cooperative with the defense. … And Miss Jones first told the defense investigator that they didn’t remember the incident at all. However, we subpoenaed them anyway because we knew they were present and we thought they were being uncooperative. [¶] … When Mr. [Towner] came to court he admitted on cross-examination when I confronted him with the call history showing that the officer actually got his name[,] his date of birth and that of his girlfriend, Mr. [Towner] reversed himself and then said, oh, now I remember, I was there, I was walking with him. And the way that he stated that, your honor, made me believe … that he was being uncooperative before he got up on the stand. Because I had talked to him beforehand. The prosecutor had an investigator talk to him beforehand about the detail, and he still did not want to say it until he was under oath and actually confronted with the call history on the stand, and then he admitted he was there. [¶] What he testified to was that Miss Jones was the person we really needed to talk to because all he did was meet them. And she is the one walking with them [sic] in the same direction.”
After further colloquy, the court stated, “What you’ve told the court so far is she’s not a material witness because from what I understand, you’re saying she is indicating she doesn’t remember the incident.” The court ruled that Jones was not a material witness.
Appellant then testified that on the night he was stopped by the police, he met Maria Jones on his way to a liquor store. She was on her way to meet her boyfriend, and after appellant bought a beer, he walked with Jones to meet her boyfriend. He and Jones were side-by-side, talking the whole time. Appellant did not smoke and did not have any cigarettes. He did not throw down a cigarette. He had a beer in his left hand and the handlebars of his bicycle in the other hand. The police contacted appellant and Jones when they were near a furniture store. Jones was looking at appellant when the officers pulled up, as he and Jones were still conversing. Appellant denied telling the officers he was on parole before they patted him down.
The trial court stated it did not believe appellant and denied the suppression motion.
At the next hearing, which was before Judge Kim, appellant withdrew his not guilty plea and pled nolo contendere to the sole count, which alleged a violation of section 11350, subdivision (a). Appellant also admitted he had previously been convicted of a serious or violent felony within the scope of the Three Strikes Law and had served three prior prison terms within the scope of Penal Code section 667.5, subdivision (b). He further admitted that he had a prior conviction that made him ineligible for probation, pursuant to section 11370, subdivisions (a) and (c). The trial court struck appellant’s strike prior and sentenced him to three years in prison, consisting of the low term of two years, plus a one-year prior prison term enhancement.
DISCUSSION
Appellant contends the trial court violated his state and federal constitutional rights to compulsory process by failing to require Jones’s presence or at least determining whether the sheriff’s department had a legitimate reason for not executing the body attachment.
Appellant does not seek dismissal of the charges, but merely a new opportunity to acquire Jones’s testimony though the court’s process.
The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor ….” The United States Supreme Court has noted that its “cases establish, at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56, 107 S.Ct. 989.) “Few rights are more fundamental than that of an accused to present witnesses in his own defense…. Indeed, this right is an essential attribute of the adversary system itself.” (Taylor v. Illinois (1988) 484 U.S. 400, 408, 108 S.Ct. 646.) “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” (Washington v. Texas (1967) 388 U.S. 14, 19, 87 S.Ct. 1920.)
“Of course, the right to present relevant testimony is not without limitation. The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ [Citation.]” (Rock v. Arkansas (1987) 483 U.S. 44, 55, 107 S.Ct. 2704.) “ ‘[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.’ [Citations.] This latitude, however, has limits. ‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.”’ [Citations.] This right is abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and are ‘“arbitrary” or “disproportionate to the purposes they are designed to serve.”’ [Citations.]” (Holmes v. South Carolina (2006) 547 U.S. 319, 324-325, 126 S.Ct. 1727.)
Article I, section 15 of the California Constitution provides an equivalent state right to compulsory process: “The defendant in a criminal cause has the right … to compel attendance of witnesses in the defendant’s behalf ….” The state constitutional right is “at least as broad and fundamental as the federal.” (In re Martin (1987) 44 Cal.3d 1, 30.) “A defendant’s constitutional right to compulsory process is violated when the government interferes with the exercise of his right to present witnesses on his own behalf.” (Ibid.)
Appellant “bears the burden of demonstrating at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable ….” (People v. Harris (2005) 37 Cal.4th 310, 343.) To establish a violation of the Sixth Amendment, appellant “must at least make some plausible showing of how [the] testimony would have been both material and favorable to his defense.” (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867, 102 S.Ct. 3440 (Valenzuela-Bernal).) For a violation of the California Constitution’s guaranty of compulsory process, the materiality requirement is satisfied where the witness either participated in the charged crime or was an eyewitness in a position to observe the relevant events. (People v. Schroeder (1991) 227 Cal.App.3d 784, 788; Cordova v. Superior Court (1983) 148 Cal.App.3d 177, 181-182.)
It is unclear from the record on appeal whether the sheriff’s department, the trial court, or both, are responsible for the failure to execute the body attachment for Jones. The parties seem to agree that the sheriff’s department never executed the attachment, which would be consistent with the issuance of an OSC, if indeed the court issued an OSC directed to the sheriff’s department. If the court did not issue such an OSC or otherwise attempt to compel the sheriff’s department to execute the body attachment, then the court was also responsible for the failure to compel Jones’s attendance. In any case, the ultimate outcome was that Jones was not brought to court to testify, and there was no showing of a valid excuse, such as an inability to locate her. The end result, then, was state action that apparently violated appellant’s constitutional right to compulsory process.
This court ordered the trial court to conduct a hearing to settle the record regarding why the OSC was quashed. The trial court conducted the hearing, but it settled nothing, as no one in attendance had any knowledge not already reflected in the record.
Respondent argues, however, that appellant did not make a sufficient showing that Jones would provide material, favorable testimony.
Appellant’s offer of proof and testimony set forth facts demonstrating that Jones had been his companion for a time before the police stopped him as he met her on the way to the liquor store and she walked with him to the liquor store and then on to meet Towner. She was still appellant’s companion and was standing very near him at the moment the police stopped him. She had been looking at appellant and would therefore be able to state whether he had a cigarette in his hand and dropped it, as Kim testified, or, as appellant testified, did not have a cigarette, but instead had a beer can in one hand and the handlebars of his bicycle in the other. Appellant’s account was consistent with Towner’s, although Towner was unable to identify appellant with certainty and did not know whether appellant dropped a cigarette. Appellant’s account that he was walking with Jones when the police detained him was also consistent with Officer Kim’s testimony.
Appellant established more than just Jones’s presence at the scene. She was not simply someone in the vicinity who might or might not have witnessed appellant’s interaction with the police. Appellant demonstrated, through his offer of proof and his subsequent testimony, that he and Jones were side-by-side, engaged in a conversation, and had been for some period of time. He established particular facts that constituted a plausible showing that Jones had material and favorable information and would provide testimony that was material and favorable to his defense, as required under the Sixth Amendment. He also showed a reasonable possibility that Jones could have given material and favorable testimony, as required under the California Constitution. Had counsel ended his offer of proof without describing his investigator’s attempt to interview Jones, it would be beyond question that appellant had made a sufficient showing that Jones was a material witness in his favor and a proper subject of his right to compulsory process.
The question then becomes whether counsel’s candor detracted from the sufficiency of his showing. In this regard, it is noteworthy that counsel described Jones as uncooperative and stated that she had told the investigator that neither she nor Towner remembered anything. Jones’s assertion on behalf of Towner, whose memory she could not know, supports defense counsel’s belief that Jones’s statement was based upon lack of cooperation, rather than a genuine lack of memory. While neither appellant nor anyone else could guarantee how Jones would testify if compelled to appear in court and put under oath, appellant’s offer of proof and testimony established at least a reasonable possibility that Jones could have given material and favorable testimony.
Counsel making an offer of proof is only required to “fully and clearly state ‘the fact which counsel desires to prove and the manner and evidence by which he proposes to prove it.’ [Citation.]” (People v. Jones (1960) 177 Cal.App.2d 420, 425, italics added.) “To preserve an evidentiary ruling for appellate review, the proponent of the evidence must make an offer of proof regarding the anticipated testimony.” (People v. Carlin (2007) 150 Cal.App.4th 322, 334, italics added.)
In Valenzuela-Bernal, supra, 458 U.S. 858, the United States Supreme Court recognized that where proposed witnesses were deported before the defendant could interview them, “it is of course not possible to make an avowal of how a witness may testify.” (Id. at p. 871.) Under such circumstances, “the defendant cannot be expected to render a detailed description of their lost testimony.” (Id. at p. 873.) Instead, the defendant need only make “a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.” (Ibid.) Valenzuela-Bernal made no showing of what the deported witnesses would say. The Court noted that because Valenzuela-Bernal was present throughout the commission of the crime, “[n]o one knows better than he what the deported witnesses actually said to him, or in his presence, that might bear upon whether he knew that Romero-Morales was an illegal alien who had entered the country within the past three years.” (Id. at p. 871.)
In Valenzuela-Bernal, the Court relied upon Roviaro v. United States (1957) 353 U.S. 53, 77 S.Ct. 623, which dealt with a defendant’s request, before and during trial, for disclosure of the identity of a confidential informant to whom he allegedly sold heroin. The defendant clearly had had no opportunity to interview the informant and could not make a showing of what his testimony would be. Nonetheless, the court concluded the defendant’s interest in preparing a defense against the charges outweighed the government’s interest in protecting the informant’s identity. (Id. at pp. 63-65.)
Appellant’s inability to guarantee that Jones would remember the events as appellant described them did not detract from the sufficiency of his showing that she was a material and favorable witness. To require appellant to demonstrate a greater degree of certainty would have imposed an insurmountable burden upon appellant. Such a burden would be arbitrary and disproportionate to the purpose that an offer of proof is designed to serve, i.e., giving “the trial court an opportunity to change or clarify its ruling” and providing a “reviewing court with the means of determining error and assessing prejudice.” (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) By effectively requiring appellant to make such a showing, the trial court placed an impermissible burden upon appellant’s right to compulsory process. By refusing to take any further steps to require the sheriff’s department to execute the body attachment for Jones unless appellant satisfied this impermissible and insurmountable burden, the court violated appellant’s right to compulsory process.
DISPOSITION
The judgment is reversed. The trial court is directed to conduct an evidentiary hearing at which appellant will have an opportunity to present the testimony of Maria Jones. If appellant properly subpoenas Maria Jones and she fails to appear, the court is directed to issue a body attachment for Maria Jones and order the sheriff’s department to execute it. If the testimony of Maria Jones is obtained, the trial court is directed to (1) vacate its order denying appellant’s suppression motion, (2) consider Jones’s testimony in conjunction with the testimony previously given in support of, and opposition to, the motion to suppress, and (3) rule upon the motion. If the court again denies appellant’s suppression motion, the trial court shall reinstate the judgment. If the court grants appellant’s suppression motion, appellant must be permitted to withdraw his plea of nolo contendere. If the testimony of Maria Jones cannot be obtained after affording appellant compulsory process, the trial court shall reinstate the judgment.
We concur: MALLANO, P.J. ROTHSCHILD, J.