Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 01F03016
DAVIS, Acting P. J.
A jury convicted defendant Jerry Wayne Perryman of lewd acts with a child under age 14 (Pen. Code, § 288, subd. (a); count one), attempted lewd acts with a child under age 14 (§§ 288, subd. (a), 664; count two), failure to register as a sex offender (former § 290, subd. (g)(2) [now § 290.018, subd. (b)]; count three), and failure to provide notice of a change of location (ibid.; count four). The jury found he had suffered a 1982 robbery conviction and two 1990 lewd acts convictions. He was sentenced to state prison for a determinate term of 10 years plus a consecutive indeterminate term of 150 years to life.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion by denying his request for a continuance during trial, thereby violating his federal due process and fair trial rights. We shall affirm the judgment.
Facts
The facts of defendant’s offenses are not at issue and need not be set forth in this opinion. Relevant procedural facts will be set forth in the Discussion.
Discussion
Defendant contends the trial court abused its discretion by denying his request for a continuance during trial, thereby violating his federal due process and fair trial rights. We find no prejudicial error.
Background
Defendant testified on his own behalf at trial. On Monday, December 11, 2006, the prosecutor cross-examined him about his jail visits with his wife, Kelly Winters. When the prosecutor inquired whether defendant and Winters had displayed written notes to one another in lieu of speaking through a telephone system that records conversations, defense counsel objected that there had been no discovery in that area. An off-the-record bench discussion ensued. When the prosecutor questioned defendant about whether he and Winters had worked out a system of nonverbal communication so that he could instruct her during her testimony, defense counsel again objected that there had been no discovery. On redirect, defendant denied instructing Winters what to say.
After the jurors were excused for the day, the trial court noted for the record that “some mention was made of tapes that the district attorney just received and I guess over the lunch hour started reviewing.” The prosecutor explained that she had just received a recording of defendant’s December 5 and 6, 2006, jail visits with Winters. The prosecutor stated she had found the recording in her box at the district attorney’s office when she returned from court at the lunch hour. She was able to listen to a portion, but not all, of the recording, and she did not know if it would be used as rebuttal evidence. She promised that copies would be provided to defense counsel that afternoon.
The trial court ruled that, although it would have been “better to have a little more lead time,” the prosecutor “had a good faith basis to ask” the questions about coaching, and the information on the recordings was “clearly within the purview and possession of the defendant in this case.” The court declined to find that “anything untoward or unfair” had occurred. The court gave both counsel an opportunity to listen to the recordings and was prepared to make any further rulings that were necessary the next morning, Tuesday, December 12, 2006.
On Tuesday morning, the prosecutor marked for identification a compact disc (CD) recording of the December 5, 2006, jail conversation, a CD recording of an excerpt from the original CD, and a transcript of the excerpt. The prosecutor asserted that the information on the recording was relevant to the jury’s assessment of the credibility of defendant and Winters.
On our own motion, we had exhibit No. 35, the original recording, transmitted to this court.
Defense counsel acknowledged that he had received a CD recording of the jail visits at 3:00 p.m. the previous day. Counsel noted that the CD contained two recordings, each more than an hour in length. He explained that it was “extremely hard to hear any of the conversation” on the CD. Regarding the portion later excerpted by the prosecutor, defense counsel explained that he “did not hear this particular discussion at all.” He obtained the assistance of another person, who perhaps “had better ears” than him, but evidently that person was no more successful than counsel.
Defense counsel objected that he had not had sufficient opportunity to go over the information with defendant or Winters, or to listen to the recording in any meaningful fashion. Defense counsel requested a mistrial based on the lack of fair trial, discovery violation under section 1054, and prosecutorial misconduct; in “lieu of” the foregoing, he asked that the matter be continued; and “in lieu of that,” he asked that the jury be admonished regarding late discovery.
The trial court expressly denied the motions for mistrial and jury admonishment regarding late discovery. The court found no violation of section 1054. The court ruled the prosecutor had provided the information to the defense in a timely manner. Moreover, the information “was also within the knowledge of” defendant. The court noted for the record that the excerpt sought to be admitted was “difficult to hear,” but it was “not impossible to hear.” The court impliedly denied the motion for continuance.
Winters was recalled as a prosecution rebuttal witness and testified regarding her December 5, 2006, jail visit. She denied that defendant had given her physical cues that he could use during her testimony in order to instruct her how to testify. She also denied that he had told her how to testify at trial.
The prosecution played the excerpted recording for the jury and provided jurors a transcript that is included in the appellate record. The transcript states:
“Perryman: I’ll tell you how . . . . Here’s how you do it. If, um, (silence). Exactly what he . . . (silence). And I’ll remember, ok?
“Winters: I’ll try, Jerry.
“Perryman: OK--if I do this . . . . If I lean down here like this, together you do nothing like he told you . . . . If I do this . . . (silence).
“Winters: And if I’m asked well did he tell you? Did you ask him?
“Perryman: But if not then (unintelligible).
“Winters: If I’m asked did he tell you--did you ask?
“Perryman: (unintelligible)
“Winters: Huh?
“Perryman: Yes, that’s what I told you . . . . That’s what I told you . . . which is true.
“Winters: But . . . (silence).
“Perryman: (unintelligible) . . . instead of lying, use the words I don’t remember. That’s your easiest way out. Always the easiest way out.
“Winters: Yeah.
“Perryman: That helps, I don’t recall, you know . . . . They cannot catch you . . . remember.”
Analysis
“The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. [Citations.]” (See § 1050, subd. (e); People v. Sakarias (2000) 22 Cal.4th 596, 646 (Sakarias); accord, People v. Gray (2005) 37 Cal.4th 168, 225; People v. Snow (2003) 30 Cal.4th 43, 70.) “‘“‘That counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel.’ [Citations.]”’ [Citation.]” (People v. Fontana (1982) 139 Cal.App.3d 326, 333 (Fontana), quoting Jennings v. Superior Court (1967) 66 Cal.2d 867, 875-876.)
In this case, the denial of a continuance deprived defense counsel of a reasonable opportunity to prepare for the new evidence. At 3:00 p.m. the day before the recordings were played, defense counsel received “a CD” containing two separate recordings, each more than an hour in length. Although the prosecutor later offered into evidence a second CD containing a “redacted portion” of the first CD, which evidently was limited to the brief exchange that consumes just 16 lines of transcript, nothing in the appellate record suggests that defense counsel had the benefit of a “redacted” CD that was limited to the relevant passage.
We thus deduce that counsel was required to comb through two hours of poor quality recordings in search of the relevant 16 lines. He did not succeed. Counsel acknowledged at the hearing that he “did not hear this particular discussion at all.” He obtained the assistance of another person, who perhaps “had better ears” than him, but evidently that person was no more successful than counsel.
The trial court found that the passage was “difficult to hear” but “not impossible to hear.” But for purposes of the right to counsel, what matters is whether counsel heard the passage, not whether someone with more time or more acute hearing could have heard it. “A criminal defendant is entitled to a prepared counsel, not merely to a counsel who had time to prepare.” (Fontana, supra, 139 Cal.App.3d at p. 333.)
Not only had counsel not heard the relevant passage, he also lacked time to discuss it with the two participants. This raises the specter of surprise at trial, which the criminal discovery statutes are designed to minimize. Those statutes “promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial. [Citation.]” (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201, italics added.)
The trial court evidently believed no continuance was necessary, because “[t]he information is clearly within the purview and possession of the defendant in this case,” and because the information provided on the CD was “within the knowledge of” defendant. Defendant claims this was “no answer” because Winters visited him approximately 30 times and even if he had “photographic recall,” the defense would have needed some time to obtain the recordings, locate the pertinent passages, and prepare defense exhibits responding to the prosecution’s rebuttal. We agree.
In any event, a defendant might naturally recollect important facts and relate them to counsel somewhat more favorably to his or her perceived interest than hard evidence such as a recording or transcript would support. If defense counsel is to defend effectively against the prosecution case, counsel cannot be confined to the client’s perhaps sugar-coated version but must be allowed effective discovery of the potentially more damaging version possessed by the prosecution. It is that version, not defendant’s version, which must be discussed with the participants and placed in its appropriate evidentiary context.
Because the denial of a continuance deprived defense counsel of any reasonable opportunity to prepare for the new evidence, we conclude the denial was an abuse of discretion. (Sakarias, supra, 22 Cal.4th at p. 646.) The remaining question is whether the abuse of discretion was prejudicial. We conclude it was not.
Defendant claims he was prejudiced because his counsel did not know the context in which the brief, but seemingly harmful, exchange had taken place. In her rebuttal testimony, Winters attempted to place the exchange in context. She explained that defendant had advised her to say she did not remember, rather than tell a lie, only because she had voiced concern about not remembering dates. Defendant predicts that, “[h]ad counsel been given the continuance necessary to review the other jailhouse conversations between [defendant] and Winters, he might have been able to find similar passages between them clarifying that [he] had only been trying to calm down Winters, rather than directing her testimony.” He speculates that “other passages” “might have placed in context for the jury the innocuous meaning behind the single, cryptic paragraph of conversation the People presented.”
To the extent defendant’s argument is founded upon recorded conversations other than the two on the CD, it exceeds the scope of his objection at trial. There, counsel was concerned only with placing the excerpt in the context of the CD from which it was taken. Because the appellate record is limited to the conversations on the CD, any claim of prejudice based upon other jailhouse conversations is not properly before us.
In any event, although Winters’ trial testimony addressed the portion of the exchange in which defendant counseled her to say she did not remember, it avoided any discussion of the dialogue in which he appeared to pair his own physical gestures with her suggested responses. Nothing in the record suggests that the discussion of gestures and responses was intended merely to calm down Winters. Nothing supports defendant’s appellate argument that this portion of the discussion bore any “innocuous meaning.”
Finally, this court has obtained exhibit No. 35 and listened to its contents. In major portions of the recordings, Winters’ voice is clearly audible, while defendant’s voice is absent or barely audible; and when audible, defendant’s voice most often is unintelligible. At several points, Winters is heard complaining that she cannot hear or understand defendant. The portion that was excerpted and transcribed is audible but defendant’s voice is at a very low level. Defense counsel’s complaint that he had not heard the disputed passage appears to have been well founded.
We have searched the CD without success for any dialogue that would have placed the disputed exchange in an innocuous or less culpable context. Because the CD contains no audible exculpatory material, the failure to grant a continuance to further search for such material could not have contributed to the verdict obtained. Denial of a continuance was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]; see People v. Flood (1998) 18 Cal.4th 470, 494.)
Disposition
The judgment is affirmed.
I concur: ROBIE , J.
I concur in the result: NICHOLSON , J.