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People v. Williams

California Court of Appeals, Fifth District
Feb 8, 2011
No. F059481 (Cal. Ct. App. Feb. 8, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No. BF123224A, Kenneth C. Twisselman II, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

DAWSON, J.

Appellant Philip Jeffrey Williams stands convicted, following a jury trial, of driving under the influence of alcohol or drugs within 10 years of three or more separate such violations (Veh. Code, §§ 23152, subd. (a), 23550; count 1), and driving with a blood-alcohol content of 0.08 percent or more within 10 years of three or more separate such violations (id., §§ 23152, subd. (b), 23550; count 2). Following a bifurcated court trial, he was further found to have suffered, as to each count, three prior convictions (id., §§ 23152, 23540). His motion for a new trial was denied, imposition of sentence was suspended on counts 1 and 2, and appellant was placed on probation for five years on various terms and conditions.

Appellant was also charged with driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a); count 3), and leaving the scene of an accident (id., § 20002, subd. (a); count 4). Prior to his first trial, which ended in a mistrial, appellant pleaded no contest to count 3 and admitted two prior conviction allegations (id., §§ 14601.1, 14601.2, subd. (d)(2)). Count 4 was dismissed on the prosecutor’s motion. At sentencing, probation was denied as to count 3, and appellant was sentenced to jail for a term to be served concurrently with the term ordered as a condition of probation with respect to count 1.

In this timely appeal, appellant contends the trial court erred by denying the mistrial motion he made during jury selection, and abused its discretion in denying his motion to exclude the testimony of a surprise witness and denying his motion for new trial. For the reasons that follow, we will affirm.

FACTS

Prosecution Evidence

Around dinnertime on the evening of April 11, 2008, Julie Elsberry met her friend, Susan Llewellyn, at Pizzaville, a combination restaurant and bar in Bakersfield. As Elsberry arrived, she saw appellant kind of stumbling around the parking lot. She went inside and ordered her pizza. Sometime later, appellant came inside and was talking to people. He was stumbling around while inside.

Llewellyn arrived at Pizzaville a bit after Elsberry. As she was pulling into a parking space, she saw appellant walking around. He was not talking on a cell phone. Llewellyn did not notice him stumbling at all, but only saw him for a couple of minutes as she parked and went inside. Llewellyn subsequently noticed appellant inside Pizzaville. He did nothing that caught her attention.

About 15 minutes later, Elsberry and Llewellyn went outside to get a sweater from Elsberry’s car. Appellant was outside. According to Elsberry, he was stumbling around with his keys in his hand. He tried the keys in two or three cars before finding the right one. He then struggled to get the key into the driver’s side door. When he finally got the car door open, he got into the driver’s seat. During this time, Elsberry never saw him talking on a cell phone.

When appellant got into the car, Elsberry saw him put both hands up in the air. He started honking and yelling to “move out of [the] way, get your F-ing car out of the way.” No moving cars were in his way; all of the cars were parked. Appellant backed out and pulled forward into the slot three times. The first time he backed up, he hit a small car on the side. The second or third time, appellant hit a new black Hummer that was parked in front of him. He did not stop or get out, but instead backed up and almost hit Elsberry and Llewellyn. He then exited the parking lot. Elsberry ran back into the restaurant, retrieved her cell phone, and called 911.

The recording of her call, which was played for the jury, showed she reported that a young man got in his car, drunk, and hit a black Hummer. She described the person, said he was in a small green car with the front smashed in and that it was obvious he had been in a wreck before he hit the Hummer, and gave the vehicle’s license plate number.

Llewellyn described appellant as walking around aimlessly and staggering a little bit. He was not on his cell phone. He looked like he was trying to find his car, and he seemed mad and agitated. He was motioning and yelling, although she could not make out what he was saying. He appeared to be speaking to himself. Llewellyn believed him to be intoxicated. He walked from one vehicle to another and tried to use his keys to enter them. When he reached his vehicle, he missed the keyhole and was cursing and upset. Eventually, he managed to unlock the car. Once inside, he was yelling, honking his horn, and raising his hands like he was angry.

Llewellyn saw appellant back slowly out. It seemed like his vehicle just stopped, and Llewellyn thought he might have hit the car on the right. He then went forward and hit a black Hummer that was on his left side. He went back and forth in reverse and forward a couple of times. The last time, he came close to hitting Elsberry and Llewellyn; then he left.

Kevin Burton was eating at Pizzaville when one or two females came in and said that a black Hummer had been hit and that the person left the scene. Burton went outside and discovered it was his Hummer. He found slight but fresh damage underneath the vehicle, which was raised. It appeared a vehicle had gone underneath and then backed up.

Burton did not recognize appellant at trial. He recalled seeing three people inside Pizzaville, one of whom, a White male a little over six feet tall with a medium build, was extremely intoxicated. He was not walking in a sober manner and his speech was stuporous. This person was leaving.

Elsberry’s 911 call was received at 7:13 p.m. Bakersfield Police Officer Robert Routh was dispatched to an apartment complex on F Street, which was the address of the registered owner of the suspect vehicle, and arrived on the scene at 7:21 p.m. The suspect vehicle was parked on the street; a records check showed appellant as the registered owner.

The car was parked adjacent to apartment A, so Routh walked toward that apartment. As he approached, he saw appellant outside, pacing around. Appellant was on his cell phone. Routh asked who lived in apartment A; appellant responded a woman and her crazy boyfriend. Appellant then walked past Routh and onto F Street with his cell phone toward his ear. Having a feeling this might be the subject in question, Routh yelled “‘Philip,’” whereupon appellant stopped and turned around. Routh then detained him pending further investigation and placed him in the back seat of his patrol vehicle, pending the arrival of Officers Aaron Stringer and Jeffrey Middleton, who were handling the investigation.

Elsberry and Llewellyn were transported to the F Street location, and both positively identified appellant. When Officer Middleton subsequently opened the rear of the patrol vehicle, he smelled an odor of an alcoholic beverage that he believed to be beer. Appellant showed symptoms of alcohol intoxication, specifically red, watery eyes and slurred speech. When Middleton asked if he had been drinking, appellant’s response was “‘fuck you.’”

Appellant was arrested for driving under the influence. He refused to submit to a chemical test. Once it was determined he would be transported to Kern Medical Center to have blood drawn, appellant started screaming and yelling and cursing. He never mentioned a girlfriend. Appellant calmed down during the ride, and Middleton asked a series of preliminary medical questions, one of which was what had he been drinking. Appellant answered, “Beer.” When asked how much he had been drinking, appellant responded that he did not know.

Once at the hospital, appellant became agitated and combative. A nonconsensual blood draw was taken about 8:45 that night Appellant’s blood-alcohol content was 0.23 percent, nearly three times the legal limit.

Defense Evidence

On April 11, 2008, Trevor Smith, an acquaintance of appellant’s from high school, arrived at Pizzaville around 6:30 p.m. Appellant was already there. They spoke briefly; Smith did not see appellant drinking, smell any odor of alcohol, or observe any signs of intoxication.

Camila Torres and appellant dated for a while. She called him several times on the afternoon of April 11, starting at 2:09 p.m. She broke up with him, and appellant became very emotional. The couple had phone conversations later that day. By the time of the 6:53 p.m. call, they were arguing. Appellant was yelling. His speech did not sound slurred.

Valerie Aparicio, appellant’s upstairs neighbor, was looking out of her window on the evening of April 11 when she saw two officers escorting appellant from the direction of his apartment. Appellant was yelling for help and for someone to call the police. Aparicio had observed a police car parked on F Street for 30 to 40 minutes by this time. One of the officers escorting appellant had been sitting in that vehicle. When Aparicio was allowed to talk to appellant to try to calm him down, appellant was crying and appeared intoxicated.

Appellant, who suffered a conviction in 2003 for a fraudulent check, testified that on April 11, he went to Pizzaville a little after 6:00 p.m. He drove his car, the front end of which was damaged from when the vehicle had been stolen about six months earlier. At Pizzaville, he made some phone calls. He did not have anything to drink. He was not stumbling or staggering, although he may have been pacing around outside while he was on the phone. He was trying to arrange to have visitation with his daughter for the night as the child’s mother previously had agreed, but he learned right around 7:00 p.m., just before he left Pizzaville, that the child’s mother was backing out of the agreement. Appellant was very upset. Around the same time, his conversation with Torres turned unpleasant.

Appellant had ordered a pizza, but was so mad that he left without even picking it up. He probably raised his hands once in a “what the heck” gesture. He was not intoxicated at all, although he may have uttered an obscenity. He honked his horn once, but only out of anger. He never went from car to car, trying out his keys. When he pulled out of the parking space, he did not go in and out, but made a simple three-point turn. He got close to the Hummer, but did not think he hit it. He backed up again, looked to confirm that he had not hit it, and left.

It took appellant a couple of minutes to get home. He parked on the street, then went inside. Still upset, he decided to have a drink. There was a big bottle of vodka left over from a gathering a couple of days earlier. Appellant turned on the television and some music and started to relax and “get a buzz.” He put his keys away; he was not going to drive. All told, he had two or three drinks in a regular water glass, with about half vodka or a little more and a splash of soda on top. They were “going down pretty fast,” as he was angry.

Almost immediately after appellant started drinking, the neighbors upstairs started fighting. Not long after, one police car and then another arrived. Appellant thought the police were there for the couple upstairs, but then there was a knock at his door. He opened it; Middleton and Routh were there, and appellant directed them to the upstairs apartment. However, they asked if he was Philip Williams; when he said yes, Middleton said he had two witnesses who saw appellant hit a car at Pizzaville. Appellant denied it, because he did not think he hit a car. Routh then stepped inside, grabbed appellant, and yanked him out of the apartment. Middleton asked if he had been drinking, and appellant said yes, in his apartment. Appellant became agitated and started screaming because they had come inside and grabbed him. He thought they were violating his rights. At no time did he tell Middleton that he had been drinking beer.

The first officer to arrive sat in the parking lot for 20 or 30 minutes before going to appellant’s door.

Middleton tried several times to get appellant to take a chemical test. Appellant refused. Once, Middleton tightened the handcuffs as if it would make appellant take a test. Appellant continued to refuse, saying he had been drinking in his own home and did not have to take a test. At Kern Medical Center, one of the nurses would not take his blood because he kept refusing to consent. After Middleton threatened to take her to jail, she drew appellant’s blood. This was not the nurse who testified to doing so at trial, however.

DISCUSSION

I. Batson-Wheeler Claim

Appellant challenges the trial court’s denial of his motion for a mistrial, which was brought as a result of alleged Batson-Wheeler error predicated on the prosecutor’s peremptory excusals of five prospective jurors who were female. Women are a cognizable group for purposes of Batson-Wheeler analysis. (See J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129, 130-131; People v. Bonilla (2007) 41 Cal.4th 313, 341.)

Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

“The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove prospective jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However,

“‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias-that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”-violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)

“There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.]” (People v. Bonilla, supra, 41 Cal.4th at p. 341.)

“The United States Supreme Court has … reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the … exclusion” by offering permissible [gender]-neutral justifications for the strikes. [Citations.] Third, “[i]f a [gender]-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful [group] discrimination.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168.)

The California Supreme Court has “endorsed the same three-part structure of proof for state constitutional claims. [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 596; see Wheeler, supra, 22 Cal.3d at pp. 280-282.)

With these principles in mind, we turn to the case before us.

A. Factual Background

The prosecutor used her first four peremptory challenges to excuse prospective jurors L.R., N.D., C.P., and M.R. Each had at least one relative or close friend with one or more convictions for driving under the influence (DUI). L.R. had been unemployed for 10 years, was trying to go back to school, and was unsure of her career goal. M.R. worked in the food court at Sam’s Club and was not in school, although she wanted to be a veterinary technician. N.D. was unemployed, but had previously been a cashier and done bookkeeping. C.P. had been employed as a housing specialist for the Kern County Housing Authority for two years.

After the prosecutor exercised her fourth peremptory challenge, defense counsel made a Batson-Wheeler motion, alleging that the prosecutor was excusing female jurors in a discriminatory fashion. The trial court found the defense had not stated a prima facie case, and so denied the motion.

The prosecutor used her fifth peremptory challenge to excuse prospective juror D.B. Originally a police officer in Peru, D.B. was a housewife, attending a local college, and studying to be a teacher. Asked why she left her job as a police officer, D.B. replied that she guessed she was not cut out for that kind of job. She was disillusioned with the way things were, thought there was not enough justice, and found the work was not as interesting as she had thought it would be. When asked by the prosecutor if, assuming the prosecutor proved her case beyond a reasonable doubt, D.B. would vote guilty, D.B. responded, “I think I can, yes.” The prosecutor asked what she meant; D.B. answered that she had not been in this situation before, but did not think she would have a problem with it.

Defense counsel renewed his Batson-Wheeler motion when the prosecutor excused D.B. The court found a prima facie case and directed the prosecutor to state her reasons for excusing all five prospective jurors.

As to L.R., the prosecutor relied on the DUI convictions, L.R.’s extended unemployment, and the fact she was not looking for work. As for N.D., the prosecutor relied on the DUI convictions and N.D.’s unemployment. The prosecutor also stated that “the body language of her alternating in her chair back and forth” did not give the prosecutor “a good feeling about her respect towards the court system.” The prosecutor opined that she had some anti-prosecution feelings. Asked by the court if there was anything more specific about her body language, the prosecutor said no.

With respect to C.P., the prosecutor relied on the DUI conviction and negative body language. Asked by the court to be more specific, the prosecutor responded that C.P. would not make eye contact with the prosecutor, and seemed very cold and “straight faced.” The prosecutor did not get a good feeling from her, and did not think she wanted to be there, especially on a DUI case.

As for M.R., the prosecutor relied on the DUI convictions, and the fact that M.R. worked at a food court and was not in school. The prosecutor did not think she had much direction in her life and did not believe she was very educated. The prosecutor concluded: “I don’t think that she has the life experience that I am looking for in order to vote guilty in this case.”

With respect to D.B., the prosecutor noted that she had asked almost every prospective juror whether that individual could vote guilty if the prosecutor met her burden of proof beyond a reasonable doubt. D.B.’s response was that she thought she could. When asked to clarify, D.B. said she thought she could, but did not know because she had never been in this situation. Every other prospective juror had said yes to the question, and D.B.’s response was “a little bit too wishy-washy” for the prosecutor. In addition, D.B. left the police department in Peru. The prosecutor did not know the exact reasons, but believed she mentioned something about not wanting to get into it or not wanting to talk about it. The prosecutor assumed Peru had a very different justice system than America, and did not know what D.B. witnessed as an officer or how she viewed other officers, or how she might react to a uniformed officer testifying. That, coupled with “I think,” was “just a little bit too unsure” for the prosecutor to keep her on the panel.

Invited by the court to respond, defense counsel asserted that N.D. did nothing to stand out from the other prospective jurors, at least one of whom seemed more uninvolved than N.D. As for C.P. not making eye contact and her facial expression, defense counsel stated that the courtroom was arranged in such a way that C.P. was seated almost directly perpendicular to the prosecutor, making eye contact between the two awkward and uncomfortable; moreover, he observed a neutral expression. For purposes of comparative analysis, defense counsel asserted that prospective juror E.R., who was then seated in the box, had a number of family members with DUI’s and a father who had a very negative experience with law enforcement. Yet, the prosecutor chose to challenge M.R. The court found the argument premature, since the prosecutor had not yet indicated if she was going to exercise a peremptory challenge against E.R. Defense counsel then turned to D.B. and stated he saw nothing in her body language or appearance that indicated disrespect or an unwillingness to be fair and honest. He asserted that the prosecutor’s professed concern about her “I think” answer was merely an excuse for trying to remove females from the jury.

The court found that appellant failed to establish that the proffered explanations were pretextual and not genuine; therefore, a group bias had not been proven. The court stated:

“And in making this determination I have considered the totality of the circumstances. I have also considered the reasons that [the prosecutor] has given which relate to body language and things that are observable but are not necessarily reflected in the record made by the court reporter.

“And based upon my observations of the jurors, I believe that [the prosecutor] is being sincere by proffering demeanor-based reasons as to the jurors that she described.

“So, for all those reasons, the Wheeler-Batson motion is denied.

“The Court is also … aware of the appropriate consideration of comparative juror analysis which the Courts of Appeal and the Supreme Court have indicated must be considered in the trial court.

“And after [the prosecutor] passes the peremptory challenge, [defense counsel], if you feel there is a comparative-analysis argument that then could be renewed-for example, she just passed the challenge, meaning she’s accepted male jurors who fit the identical profile of some of the female jurors that she excused-then you can renew your comparative-analysis argument.”

The next challenge was with the defense, which exercised one of its peremptories. The prosecutor used her next peremptory challenge to excuse E.R. At no time during the remainder of jury selection did defense counsel renew his motion or his comparative analysis argument.

B. Analysis

The trial court ruled for the defense in step one of the Batson-Wheeler analysis by finding a prima facie case of improper discrimination with respect to the renewed motion. We assume substantial evidence supports that determination. (See People v. Silva (2001) 25 Cal.4th 345, 384; People v. Alvarez (1996) 14 Cal.4th 155, 197.) Accordingly, we move to step two.

Appellant does not contend the trial court erred by finding no prima facie case when the motion initially was made. Such error would be immaterial in any event, since the prospective jurors who were the subjects of the original motion were also covered by the renewed motion.

At step two, the prosecutor must come forward with a gender-neutral explanation for each challenged excusal. (People v. Silva, supra, 25 Cal.4th at p. 384.)

“A neutral explanation in the context of our analysis here means an explanation based on something other than the [gender] of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed [gender] neutral.” (Hernandez v. New York (1991) 500 U.S. 352, 360 (plur. opn. of Kennedy, J.).)

At this stage, the explanation need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)

“‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 613, italics omitted.)

Whether a prosecutor has offered a gender-neutral reason for his or her peremptory challenges is a question of law subject to our independent review. (People v. Alvarez, supra, 14 Cal.4th at p. 198, fn. 9; Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 699.) As no discriminatory intent was inherent in any of the prosecutor’s reasons here, we conclude those reasons were gender neutral (Hernandez v. New York, supra, 500 U.S. at p. 360 (plur. opn. of Kennedy, J.)); hence, the prosecutor met her burden with respect to step two of the Batson-Wheeler analysis.

Accordingly, we move to step three. At this stage of the analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful gender discrimination by a preponderance of the evidence. (Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) The persuasiveness of the proffered justification now becomes relevant (Johnson v. California, supra, 545 U.S. at p. 171), as implausible or fantastic justifications will often be found to be pretexts for purposeful discrimination (Purkett v. Elem, supra, at p. 768). “What is required are reasonably specific and neutral explanations that are related to the particular case being tried.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.)

Once the prosecutor comes forward with such an explanation, the trial court must satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 167.) “In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.)

“This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for ‘we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ [Citation.]” (People v. Hall, supra, 35 Cal.3d at pp. 167-168; see also People v. Lomax (2010) 49 Cal.4th 530, 570-571.)

In undertaking this evaluation, the trial court need not make affirmative inquiries, but must find the gender-neutral explanations to be credible. (People v. Hamilton (2009) 45 Cal.4th 863, 907.)

“When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix, supra, 44 Cal.4th at p. 627; see Paulino v. Harrison, supra, 542 F.3d at p. 699.) Deference does not, of course, “imply abandonment or abdication of judicial review.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)

The record before us clearly establishes the trial court made a sincere and reasoned effort to evaluate each of the prosecutor’s stated reasons for her peremptory challenges, even going so far as to question her concerning the demeanor- and body-language-based explanations. Accordingly, application of the substantial evidence standard is appropriate. Such evidence supports the trial court’s ruling as to each of the challenged prospective jurors; the trial court neither erred by accepting the prosecutor’s explanations nor failed in its duty to examine those reasons for gender discrimination.

The prosecutor’s non-demeanor-based reasons for excusing the five prospective jurors were both inherently plausible and supported by the record. (See People v. Silva, supra, 25 Cal.4th at p. 386.) All but D.B. had family members who had incurred DUI arrests or convictions. This was a legitimate basis for a peremptory strike. (See, e.g., People v. Turner (1994) 8 Cal.4th 137, 171, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cummings (1993) 4 Cal.4th 1233, 1282; People v. Jordan (2006) 146 Cal.App.4th 232, 255-256.) It was also proper for the prosecutor to seek jurors with life experience or who, contrary to M.R., appeared to have some direction in their lives. (See, e.g., People v. Sims (1993) 5 Cal.4th 405, 429-430; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) The prosecutor was reasonably specific with respect to her concerns about prospective jurors’ employment or lack thereof (contrast People v. Turner (1986) 42 Cal.3d 711, 725; People v. Allen (2004) 115 Cal.App.4th 542, 552-553), and a prospective juror’s occupation (or, by parity of reasoning, unemployment) is something that, in the prosecutor’s subjective and sincere estimation, may not render him or her the best type of juror to sit on the case being tried (see People v. Reynoso (2003) 31 Cal.4th 903, 924-925). With respect to D.B., the prosecutor reasonably could have been concerned by the “I think I can” response; that the prosecutor’s memory may have been faulty with respect to D.B.’s reasons for leaving the police force in Peru does not make reliance on that reason impermissible. (See People v. Williams (1997) 16 Cal.4th 153, 188-189.)

As for the demeanor- and body-language-based explanations, they are neither affirmatively contradicted by the record nor inherently improbable. (See People v. Reynoso, supra, 31 Cal.4th at pp. 925-926; People v. Jordan, supra, 146 Cal.App.4th at p. 256.) Generally speaking, a prospective juror’s demeanor may properly be considered by a prosecutor in deciding whether to exercise a peremptory challenge. (See, e.g., People v. Ward (2005) 36 Cal.4th 186, 202; People v. Turner, supra, 8 Cal.4th at pp. 170-171; People v. Cummings, supra, 4 Cal.4th at p. 1282.) The trial court here was in the best position to observe the prospective jurors’ demeanors; its acceptance of the prosecutor’s reasons is entitled to great deference especially where, as here, the court expressly based its finding of the prosecutor’s sincerity in part on its own observations of the prospective jurors. (People v. Stanley (2006) 39 Cal.4th 913, 939; contrast People v. Long (2010) 189 Cal.App.4th 826, 847-848.) Under the circumstances, the fact defense counsel did not observe something, or interpreted it differently than the prosecutor, does not call into question the credibility of the prosecutor’s stated reason. (People v. Jordan, supra, at p. 255.) In addition, the trial court was in the best position to observe the prosecutor’s demeanor, and the manner in which she exercised her peremptory challenges, in assessing the prosecutor’s credibility. (People v. Stanley, supra, at p. 939; see People v. Lomax, supra, 49 Cal.4th at pp. 570-571.)

We recognize that “[i]f a prosecutor’s proffered reason for striking a [female] panelist applies just as well to an otherwise-similar [male] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step. [Citation.]” (Miller-El v. Dretke (2005) 545 U.S. 231, 241.) Accordingly, we have undertaken the requisite comparative analysis (see People v. Lenix, supra, 44 Cal.4th at pp. 607, 621-622); “[v]iewing such comparative evidence in light of the totality of evidence relevant on the claim, we conclude it does not demonstrate purposeful discrimination.” (People v. Cruz (2008) 44 Cal.4th 636, 659.)

We have examined the responses of Juror Nos. 1, 4, 5, 8, 10, and 12, whom appellant identifies in his claim of disparate treatment. (See People v. Lenix, supra, 44 Cal.4th at p. 624.) Several had someone close to them who had been arrested for DUI or a similar offense. However, all were either employed in a managerial or supervisorial position, or were attending school. As the record suggests the unchallenged jurors had qualities in terms of life experience, management-type skills, and/or goal-oriented direction in their lives that L.R., N.D., C.P., and M.R. appeared to lack, appellant’s comparisons do not suggest purposeful discrimination or pretextual reasons for the prosecutor’s peremptory challenges. As for Juror No. 1’s “I think I can” response, the question he was asked was whether he could set aside any feelings arising from his family members’ experiences with law enforcement and the judicial system and decide the case only on the evidence and law as the trial court gave it. By contrast, the question asked of D.B. was whether she could vote guilty if the prosecutor proved her case beyond a reasonable doubt. The two questions are quite different; moreover, the prosecutor followed up with Juror No. 1 on the issue of whether he had any bad feelings as a result of his family’s experiences.

“[T]he trial court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments.” (People v. Lenix, supra, 44 Cal.4th at p. 624.) Thus, we question appellant’s inclusion of jurors who were not questioned until after the trial court had ruled on the Batson-Wheeler motion. Nevertheless, we have included them in our analysis.

Finally, we note that some of the trial jurors were female. “‘While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.’ [Citation.]” (People v. Ward, supra, 36 Cal.4th at p. 203; accord, People v. Lewis (2008) 43 Cal.4th 415, 480.) Our review of the record as a whole demonstrates that substantial evidence supports the trial court’s conclusion that the prosecutor’s peremptory excusals of L.R., N.D., C.P., M.R., and D.B. were not motivated by discriminatory intent. (See People v. Cruz, supra, 44 Cal.4th at p. 661.) The Batson-Wheeler motion was properly denied.

II. Admission of Testimony of Surprise Witness

Appellant says the trial court abused its discretion by refusing to exclude the testimony of Kevin Burton, the owner of the black Hummer hit by appellant, and by denying appellant’s new trial motion that was based on admission of Burton’s testimony. We conclude appellant has not established cause for reversal.

A. Factual Background

As previously noted, the charge of leaving the scene of an accident was dismissed before trial. During in limine motions, the prosecutor represented that she had turned over to the defense all notes and statements of witnesses that were interviewed and whom she intended to call at trial. Kevin Burton’s name was not on the prosecutor’s witness list.

In her opening statement, the prosecutor described what she expected the evidence to show with respect to what Elsberry and Llewellyn would say about how appellant was driving. In the course of this description, the prosecutor stated that appellant hit a parked car and did not stop, at which point 911 was called. Later, in describing the sequence of events leading up to the police officers’ contact with appellant, the prosecutor stated that Officer Routh was investigating the accident from the hit-and-run in the parking lot. In his opening statement, defense counsel asserted that each time Elsberry and Llewellyn told their story, their description of appellant’s level of impairment grew. He also represented that, over time, the two women’s stories became very similar. In part, he expected them to say that appellant crashed into cars, maybe even several cars, but that there would be no testimony of any owners of damaged cars or evidence of insurance claims or paint transfer or accident measurements.

The evidentiary portion of trial started on the afternoon of Tuesday, December 15, 2009. On direct examination, the prosecutor questioned Elsberry and Llewellyn about their observations of appellant on the night in question, including that he hit a parked black Hummer and did not stop or get out of his car. During cross-examination, defense counsel attempted to show that the women’s stories had changed over time, and he questioned them about whether they had discussed the case. Defense counsel also cross-examined Officer Middleton about whether he inspected the Hummer, took photographs, or checked for any paint transfer. Middleton testified that appellant’s vehicle hit the Hummer’s bumper, but that he did not see any paint transfer and did not take measurements because he did not handle the hit-and-run investigation.

Court was closed on December 16, 2009. On the morning of Thursday, December 17, defense counsel informed the court that he was advised by the prosecutor the day before that she intended to call Kevin Burton as a witness to testify that his Hummer was damaged, and that he was inside Pizzaville and saw appellant stumbling around. Defense counsel represented that neither of those statements was previously provided to the defense. The prosecutor responded that she did not know the accident with the Hummer was going to be an issue in the case, since appellant was not charged with hit and run. From defense counsel’s cross-examination, however, she believed the defense was making an issue of Elsberry’s and Llewellyn’s credibility with respect to whether an accident with a black Hummer actually occurred. The prosecutor represented that she had never known the name of the Hummer’s owner and she had only learned the first name through a report by the defense’s investigator. She learned the owner’s last name on Tuesday afternoon. The prosecutor related that Middleton knew Kevin Burton, contacted him Tuesday night, and asked him to telephone the prosecutor. Burton telephoned her on Wednesday, at which time she determined that the Hummer was damaged and that he remembered seeing the person inside Pizzaville. She did not take notes, but immediately contacted defense counsel by e-mail.

Defense counsel represented that Kevin Burton’s name, along with his contact information, appeared on a traffic collision report filed by a Bakersfield police officer. The report was provided to the defense by the district attorney’s office, which was how the defense knew the name of the Hummer’s owner. Burton’s statements, however, were a complete surprise. While the defense was aware he was the owner of the Hummer, they had no knowledge he would testify. Defense counsel argued that he did not “open the door” on the subject of damage to the Hummer; rather, the prosecutor brought up the fact that Middleton responded to Pizzaville to assist the investigation. Defense counsel argued that the prosecutor had known “from day one” of the witness’s identity, and that during the preliminary hearing, Officer Stringer indicated he had spoken to Burton. No reports of the conversation were generated.

The court noted that Penal Code section 1054.1, subdivision (a) requires the prosecutor to provide the names and addresses of persons the prosecutor intends to call at trial. The court observed that Burton could be questioned concerning when he was first contacted by someone from the district attorney’s office or law enforcement, and that if he was contacted prior to Tuesday night, the defense would have more support for an assertion of game playing. Barring that, however, the court found no reason to doubt the prosecutor’s assertions and overruled the defense’s objection to allowing Burton to testify.

Further statutory references are to the Penal Code.

Defense counsel then proceeded to question Middleton about his relationship with Burton. Middleton testified that they went to high school together and that he considered Burton an acquaintance. Middleton further testified that he was dispatched to Pizzaville to assist Officer Stringer in a hit-and-run investigation, that a record check done at the accident scene showed the Hummer was registered to Burton, and that Burton was present in the parking lot. Middleton did not talk to him at that time about the case, but instead talked to him that night after Burton gave Stringer the information Stringer needed for his traffic collision report. However, they did not talk about the accident or the condition of Burton’s vehicle.

After Middleton, the prosecutor called a criminalist to testify concerning the blood-alcohol content of appellant’s blood. Her next witness was Kevin Burton, who testified that his Hummer sustained some damage to a steel bar underneath. He further testified that he spoke to Middleton and another officer at the scene, but that one of them left with a witness in the car. Burton had not spoken with anybody from the district attorney’s office prior to the day before, when Middleton contacted him and asked him to call the prosecutor. Burton called the prosecutor late the previous morning; she asked if he remembered the incident and would testify about the damage to his vehicle. Burton testified that he remembered seeing someone inside Pizzaville who was extremely intoxicated, and he described the individual. Right after this person left Pizzaville, the two women came in and were asking about the owner of the Hummer. Burton did not recognize appellant in the courtroom.

On cross-examination, Burton testified that he and Middleton went to high school together. They might talk once every six months to a year, and Burton might occasionally see Middleton on his motor bike, driving around town. That was the extent of their contact, although Burton considered Middleton a friend because they had known each other for a long time. At Pizzaville, Middleton asked Burton if there was any damage done to Burton’s vehicle. Burton did not remember any officers taking measurements or photographs; they just got out of the patrol car and looked at the Hummer’s undercarriage. Burton testified that he did not file an insurance claim with respect to the Hummer. There was very little damage because the vehicle was “a Sherman tank.” Burton denied making up any of his testimony simply because he went to high school with Middleton.

Officer Stringer subsequently testified that he spoke to Elsberry and Llewellyn, then contacted Burton and confirmed that there was fresh damage to the vehicle. He then broadcast the information given to him by the two witnesses. Officer Middleton was also there; he was contacted by Officer Routh, who had responded to the F Street address of the registered owner of the suspect vehicle, and so Middleton then left to transport Llewellyn for an in-field showup.

In her closing argument, the prosecutor asserted that Burton’s testimony corroborated Elsberry’s and Llewellyn’s stories. Defense counsel argued that Burton’s and Middleton’s testimonies differed in a number of material respects, including as to the extent of their relationship and whether they talked about the incident. Defense counsel asserted that Middleton’s testimony was not true, that the officers were just making things up, and that the prosecutor was trying to use argumentative, leading, and suggestive questions to make her case, which was not supported by the real facts.

The jury returned its verdicts after less than two hours of deliberations. Appellant subsequently moved for a new trial based on the prosecutor’s failure to disclose Burton’s statements to officers made during the investigation of the case, and her failure to timely and adequately disclose evidence that Burton personally knew one of the case’s investigating officers. Appellant argued that the discovery violations further constituted prosecutorial misconduct. The prosecutor responded that Burton’s name and address were in the police report, so the defense could have subpoenaed him if desired; she did not intend on calling Burton until after defense counsel made an issue of the accident; and she was not aware of Officer Middleton’s relationship with Burton until immediately before Burton testified, and defense counsel was able to question both Burton and Middleton about it in front of the jury. Defense counsel asserted that had he known earlier of the relationship between Burton and Middleton, he would have been better able to prepare a defense, and possibly follow up on Burton’s association with one of the investigating officers. Defense counsel also argued that the accident itself became an issue because of Elsberry’s and Llewellyn’s varying descriptions of what occurred; moreover, Burton’s description of the behavior inside Pizzaville of someone fitting appellant’s description was consistent with that of Elsberry, whereas Llewellyn said she never saw appellant staggering.

The trial court found no prosecutorial misconduct or discovery violation, nor did it find a failure to disclose potential Brady material. Even assuming there was prosecutorial misconduct as alleged, the court did not find, under either federal or state authorities, that it would rise to the level of good cause to grant a motion for new trial. Accordingly, it denied appellant’s motion.

Brady v. Maryland (1963) 373 U.S. 83 (Brady).

B. Analysis

Generally speaking, a trial court’s ruling on discovery matters is reviewed under an abuse of discretion standard. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 49.) We apply the same standard when reviewing a ruling on a motion for new trial, even when the motion was based on the constitutional grounds of an asserted Brady violation (People v. Hoyos (2007) 41 Cal.4th 872, 917; see People v. Robarge (1953) 41 Cal.2d 628, 633), although we independently review the elements of a Brady claim itself (People v. Salazar (2005) 35 Cal.4th 1031, 1042). As for claims of prosecutorial misconduct,

“‘[a] prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Hoyos, supra, at p. 923.)

We turn first to a prosecutor’s statutory duty of disclosure. Section 1054.1 requires the prosecutor to disclose to the defense, if in the prosecutor’s possession or known to the prosecutor to be in possession of the investigating agencies, the names and addresses of persons the prosecutor intends to call as witnesses at trial (id., subd. (a)), any exculpatory evidence (id., subd. (e)), and reports of statements of witnesses the prosecutor intends to call at trial (id., subd. (f)). Disclosure must be made at least 30 days before trial unless the information first becomes known to or in the possession of a party within that 30 days; in that case, disclosure must be made immediately. (§ 1054.7.) A violation of section 1054.1 is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Verdugo (2010) 50 Cal.4th 263, 280.)

For purposes of section 1054.1, the witnesses a prosecutor intends to call at trial are all witnesses it reasonably anticipates it is likely to call. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11.) On the record before us, we see no reason the prosecutor reasonably should have anticipated calling Kevin Burton at trial, given the fact the charge involving the accident had been dismissed. Although the prosecutor mentioned the accident in her opening statement and questioned her witnesses about it in the context of appellant’s conduct and state of intoxication, it was defense counsel who chose to make it an issue by using it to suggest the witnesses lacked credibility. Under the circumstances, the trial court did not err by finding the prosecutor did not violate the provisions of section 1054.1.

Moreover, even assuming there was a violation of section 1054.1, the trial court did not err by refusing to exclude Burton’s testimony. Section 1054.5, subdivision (b) permits a court, in the face of a discovery violation, to “make any order necessary to enforce the provisions of [section 1054 et seq.], including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness, … continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.”

The imposition of a discovery sanction is a matter entrusted to the trial court’s discretion. (See People v. Ayala (2000) 23 Cal.4th 225, 299.) The court’s power to craft appropriate sanctions is not unlimited, however. (People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 49.) Subdivision (c) of section 1054.5 allows the court to prohibit the testimony of a witness “only if all other sanctions have been exhausted.” “[T]he exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. [Citation.]” (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) Appellant did not make such a showing here; nor did he suggest he could not have contacted Burton or that delaying Burton’s testimony or granting a short continuance would not have constituted a sufficient remedy. (See People v. Walton (1996) 42 Cal.App.4th 1004, 1016-1017, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) For the trial court to have precluded Burton’s testimony under the circumstances would have constituted error. (See People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459.)

We next turn to Brady. “[T]he suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87.) The duty to disclose such evidence is wholly independent of the prosecutor’s obligation under section 1054 et seq. (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244), exists even where there has been no request by the accused (United States v. Agurs (1976) 427 U.S. 97, 107), encompasses both impeachment and exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676), and extends to evidence known only to law enforcement investigators and not to the prosecutor (Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870; Kyles v. Whitley (1995) 514 U.S. 419, 438). “In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.]” (People v. Salazar, supra, 35 Cal.4th at p. 1042, quoting Kyles v. Whitley, supra, at p. 437.) Disclosure must be made at a time when it would be of value to the accused. (People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 51.)

Because the good or bad faith of the prosecutor is not determinative (Brady, supra, 373 U.S. at p. 87; In re Ferguson (1971) 5 Cal.3d 525, 532), the suppression of materially favorable evidence violates due process regardless of whether it was intentional, negligent, or inadvertent (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225).

Although “the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence-that is, to any suppression of so-called ‘Brady material’- … there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” (Strickler v. Greene (1999) 527 U.S. 263, 281, fn. omitted.) Thus, to merit relief on due process grounds,

“the evidence a prosecutor failed to disclose must have been both favorable to the defendant and material on either guilt or punishment. Evidence would have been favorable if it would have helped the defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a reasonable probability that, had it been disclosed to the defense, the result would have been different. The requisite reasonable probability is a probability sufficient to undermine confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 907-908.)

“A showing by the [defendant] of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of ‘error’ and ‘prejudice.’ For, here, there is no ‘error’ unless there is also ‘prejudice.’ [Citations.] [¶] It follows that harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24, with its standard of ‘harmless beyond a reasonable doubt,’ is not implicated.” (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7.)

We will assume the evidence here was favorable to appellant; although we doubt it, the relationship between Burton and Middleton conceivably could have led the jury to conclude that one or both had some personal bias affecting credibility. (See People v. Salazar, supra, 35 Cal.4th at pp. 1047-1048; People v. Hayes, supra, 3 Cal.App.4th at p. 1244.) However, it was not suppressed within the meaning of Brady and its progeny.

“Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant’s investigation for him. [Citation.] If the material evidence is in a defendant’s possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it ‘“by the exercise of reasonable diligence.”’ [Citations.]” (People v. Salazar, supra, at pp. 1048-1049.)

Here, Burton’s name and contact information were contained in a police report that was disclosed to the defense. Nothing in the record suggests the defense was somehow precluded from contacting and interviewing him. “In any event, evidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 715.)

Although a finding the evidence was not suppressed ends our Brady analysis, we will discuss the materiality requirement. In order for the third and final component of a true Brady violation to be established, the undisclosed evidence must have been material. (In re Sodersten, supra, 146 Cal.App.4th at p. 1226.)

“Materiality … requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”’ [Citation.]” (People v. Salazar, supra, 35 Cal.4th at p. 1043.)

Having undertaken the cumulative evaluation required, we conclude that disclosure of the assertedly suppressed evidence would not have made a different result reasonably probable. (Kyles v. Whitley, supra, 514 U.S. at p. 441; In re Sodersten, supra, 146 Cal.App.4th at p. 1228.) “[T]he evidence was not such as ‘“could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 955, quoting Strickler v. Greene, supra, 527 U.S. at p. 290.)

“‘In general, impeachment evidence has been found to be material where the witness at issue “supplied the only evidence linking the defendant(s) to the crime,” [citations], or where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case, [citations]. In contrast, a new trial is generally not required when the testimony of the witness is “corroborated by other testimony,” [citations].’ [Citation.]” (People v. Salazar, supra, 35 Cal.4th at p. 1050.)

Here, defense counsel was able to cross-examine Burton about the extent of the damage to his Hummer, what he saw inside Pizzaville, what he told the police at the time of the incident, and his relationship with Officer Middleton. Defense counsel was also able to cross-examine Middleton on his relationship with Burton and on what Burton told him at Pizzaville. (See Randolph v. California (9th Cir. 2004) 380 F.3d 1133, 1149.) The notion that earlier disclosure might have permitted the defense to investigate the extent of the connection between the two men, and that this somehow would have worked in favor of an acquittal, is sheer speculation. (See People v. Jenkins, supra, 22 Cal.4th at p. 955.) Defense counsel was also able to fully cross-examine Elsberry and Llewellyn about discrepancies between their testimony at this trial and in earlier proceedings, and whether they talked to each other about the incident and the like. Significantly, the recording of Elsberry’s call to 911 showed that she reported, from the time of the incident, that the driver of the car was drunk and that he hit a black Hummer. There is simply no reasonable probability of a different result.

Last, appellant contends the prosecution’s failure to disclose constituted misconduct. Since we find no violation of section 1054.1 or Brady, we reject this claim. Were we to find misconduct, however, we would conclude it did not amount to a violation of due process or otherwise prejudice appellant for the reasons stated, ante, in our discussion of Brady.

DISPOSITION

The judgment is affirmed.

WE CONCUR: GOMES, Acting P.J., FRANSON, J.


Summaries of

People v. Williams

California Court of Appeals, Fifth District
Feb 8, 2011
No. F059481 (Cal. Ct. App. Feb. 8, 2011)
Case details for

People v. Williams

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PHILIP JEFFREY WILLIAMS…

Court:California Court of Appeals, Fifth District

Date published: Feb 8, 2011

Citations

No. F059481 (Cal. Ct. App. Feb. 8, 2011)