PEOPLE v. WASHINGTON

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Bertrand WASHINGTON, Defendant and Appellant.

No. B101643.

Decided: September 17, 1997

Eileen S. Kotler, under appointment by the Court of Appeal, Pacifica, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Shawn A. McGahey, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Bertrand Washington represented himself in a jury trial and was found guilty of assault with a deadly weapon upon Renee Williams.   (Pen.Code, § 245, subd. (a)(1).) 1  The jury also found true an allegation that appellant personally inflicted great bodily injury upon Ms. Williams. (§ 12022.7, subd. (a).)  Allegations that appellant had been convicted on or about November 22, 1978, in San Francisco case No. 97737 with three serious and violent “strike” priors, namely, robberies with personal use of a firearm, were found true by the court. (§§ 211, 12022.5, 667.5, subd. (c)(8), 1192.7, subds. (c)(8), (19), 1170.12, subds. (a)-(d), 667, subds. (a), (b)-(i).)

Appellant's motion for a new trial was denied.   The court struck one of appellant's prior convictions.   Appellant was sentenced to a term of 14 years in state prison calculated by doubling the three-year middle term (§§ 245, subd. (a), 667, subd. (e)(1), 1170.12, subd. (c)(1)), and adding consecutive enhancements of five and three years (§§ 667, subd. (a), 12022.7, subd. (a)).

On appeal, appellant contends (1) the trial court had a sua sponte duty to give a voluntary intoxication instruction, (2) the prosecutor failed to provide impeachment discovery in a timely manner, (3) the government failed to release exonerating evidence to him upon his request, (4) the prosecutor committed misconduct, (5) the trial court failed to give complete consideration to striking more than one of appellant's prior convictions, (6) it was error to enhance his sentence pursuant to section 667, subdivision (a), (7) appellant's prior convictions were improperly charged as three strikes, and (8) appellant's 1978 bank robberies do not qualify as strike priors.

Respondent contends the trial court (a) improperly sentenced appellant as a second-strike defendant, (b) improperly awarded appellant presentence conduct credits, and (c) remand for reinstatement of the prior conviction and resentencing is necessary.   For reasons we shall explain, remand for resentencing is required pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, but in all other respects, the judgment is affirmed.

FACTUAL SUMMARY 2

Renee Williams, her 10-year-old daughter, Renisha Bolton, and Ms. Williams's neighbor, Hortencia Llanas, testified on behalf of the prosecution.3  On December 3, 1994, appellant had an argument with his live-in girlfriend, Christine Hudson, and wanted to get out of the house.   Thus, appellant accompanied his platonic friend, Renee Williams, and her five-year-old daughter and Renisha, who was nine years old at the time, to the laundromat.   While Ms. Williams was doing her laundry, appellant made three trips to a nearby store, returning each time with a different alcoholic drink:  Old English 800 beer, a Long Island Iced Tea, and a wine called White Irish Rose. Renisha thought appellant was drunk because when her mother asked appellant to help with the laundry, he said, “no, cause he was drinking.”   When they returned to Ms. Williams's home, appellant took his bottle of White Irish Rose into the bedroom of Ms. Williams's son and turned on the television.

Ms. Williams asked appellant to help her bring the laundry inside the house.   Appellant replied, “ ‘I am not doing a M[other] F[ucking] thing.’ ”   Appellant then broke the power button on the TV. Ms. Williams became angry and told appellant not to speak to her like that in front of her children.   She grabbed appellant's duffel bag and put it outside the front door and told appellant to leave.   Appellant walked out the door, picked up the duffel bag, and threw it over his shoulder.   Then, without saying a word, appellant grabbed Ms. Williams by the throat with one hand and began punching her in the face with the other.   Renisha jumped on appellant's back to fight him.   Ms. Williams fell to the ground feeling weak and delirious.   Her jaw was broken and her left eye was damaged from appellant's blows.   Appellant walked away and turned the corner.

In an effort to retaliate, Ms. Williams pursued appellant with a two-inch blade Bowie knife, which she normally carried for protection.   Ms. Williams caught up with appellant, grabbed hold of his duffel bag and swung the knife at him.   Appellant kept saying, “ ‘Go home Renee.   Go home Renee.’ ”   Renisha also begged her mother to go home.   Ms. Williams told Renisha to call the police because appellant “ ‘․ ain't going nowhere until the police come [.]’ ”  Ms. Williams did not lunge, charge, or strike appellant with the knife and appellant did not appear to be afraid of Ms. Williams or the knife.   Appellant finished off the wine in his bottle while Ms. Williams was swinging the knife.   He then said, “ ‘I am getting tired of you, Renee,’ ” took three or four steps towards Ms. Williams and smashed the wine bottle across the left side of her face, knocking her unconscious.   Appellant bent over Ms. Williams, Renisha jumped on his back, appellant threw her off and ran away.   However, appellant returned and sat on the curb until the paramedics and police arrived.

Ms. Williams spent a month in the hospital.   She suffered cuts to her face, a bruised eye, her jaw was broken in two places, she lost teeth, and she had no feeling in two-thirds of the left side of her mouth.   She underwent three operations, lost a tremendous amount of weight, and suffered memory loss.   By the time of trial, September 25, 1995, she had scheduled appointments with a plastic surgeon, and was still taking medication and undergoing psychiatric care.

Appellant's cross-examination of the witnesses was based on a defense that Ms. Williams was the pursuer and that he acted in self-defense.   Appellant's physician, Dr. Morris Taub, testified that he treated appellant for hypertensive cardiomyopathy, congestive heart failure and malignant arrhythmia.   Dr. Taub prescribed medication for appellant for these conditions, but appellant could not afford them.   Dr. Taub told appellant that doing anything strenuous could cost him his life and he doubted whether appellant could have run a block.

Officers Timothy O'Donnell and Victor Vidriales also testified on appellant's behalf.   When Officer O'Donnell arrived at the scene, he found Ms. Williams to be hysterical and bleeding profusely, and she appeared to be in extreme pain.   He smelled alcohol on Ms. Williams's breath and surmised that she may have ingested alcohol.   Officer Vidriales questioned appellant at the scene.   Appellant was cooperative and tried to explain the situation.   Private Investigator Richard Ervin measured the distances to the locations testified to by other witnesses and took photographs of the crime scene.   Appellant's girlfriend and legal runner, Christine Hudson, eavesdropped on one of Ms. Williams's conversations and heard Ms. Williams deny having a knife at the time of the incident.   Ms. Hudson and appellant had not been in many arguments during their three years together, and those never resulted in physical violence.   Appellant respected women.   Ms. Hudson had never seen appellant drink alcohol to the point of intoxication.

On rebuttal, Deputy District Attorney Peter Bregman testified he handled the case until it was assigned to another prosecutor for trial.   Mr. Bregman recalled appellant mentioning a jacket with knife cuts on the sleeve.   Mr. Bregman did not recall that he ordered such a jacket to be brought to court for appellant.

DISCUSSION

I.***

II.

Appellant contends his constitutional rights to due process and confrontation were violated because the prosecutor failed to timely inform him that Ms. Williams had suffered three misdemeanor convictions of petty theft.   On June 20, 1995, appellant filed a formal motion for discovery requesting “(1) Police records of any convictions and rap-sheet of every witness intended to be called by the District Attorney.”   It was not until the conclusion of the prosecution's direct examination of Ms. Williams on September 25, 1995, that the prosecutor disclosed the existence of these misdemeanor convictions to appellant and the court.   When informed of the convictions, the court stated:  “The convictions are not relevant.”   The defendant then inquired, “So I can't use-[¶] THE COURT:  You can't use the facts she was convicted.”

 The court was correct to the extent that evidence of Ms. Williams's convictions was inadmissible hearsay.  (People v. Wheeler (1992) 4 Cal.4th 284, 288, 14 Cal.Rptr.2d 418, 841 P.2d 938.)   However, her past criminal conduct of committing petty theft was relevant, subject to the trial court's discretion in permitting its introduction, because thievery has a logical bearing upon veracity.  (People v. Wheeler, supra, at p. 295, 14 Cal.Rptr.2d 418, 841 P.2d 938;  Cal. Const., art.   I, § 28, subd. (d).)  In other words, although Ms. Williams's credibility could not be impeached with her misdemeanor convictions, her conduct in committing petty theft was admissible for that purpose. Assuming the court had been requested to exercise its discretion under Evidence Code section 352 to admit her conduct 6 and admitted the evidence, her conduct could have been proven by “ ‘․ more direct means, including [her] admission on ․ cross examination that ․ she committed such conduct.’  [Citation.]”  (People v. Santos (1994) 30 Cal.App.4th 169, 177, 35 Cal.Rptr.2d 719, quoting People v. Wheeler, supra, 4 Cal.4th at p. 300, fn. 14, 14 Cal.Rptr.2d 418, 841 P.2d 938.)

The Attorney General contends that neither appellant's due process nor confrontation rights were violated because pretrial disclosure of such information is not required.  (Weatherford v. Bursey (1977) 429 U.S. 545, 559-560, 97 S.Ct. 837, 845-846, 51 L.Ed.2d 30;  Jones v. Superior Court (1962) 58 Cal.2d 56, 59, 22 Cal.Rptr. 879, 372 P.2d 919;  People v. Armbruster (1985) 163 Cal.App.3d 660, 664, 210 Cal.Rptr. 11.)

 We agree with the Attorney General's position that the failure to provide pretrial discovery is not a violation of the confrontation clause.   In Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, the United States Supreme Court explained:  “[T]he right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.  [Citations.]”  (Id. at pp. 51-52, 107 S.Ct. at pp. 998-999.)   But the court refused to transform the confrontation clause into a constitutionally compelled rule of pretrial discovery, holding:  “Nothing in the case law supports such a view․  The ability to question adverse witnesses ․ does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.”  (Id. at pp. 52-53, 107 S.Ct. at p. 999.)

 However, we disagree with respect to respondent's due process argument.   The due process clause of the Fourteenth Amendment obligates the government “to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.  [Citations.]”  (Pennsylvania v. Ritchie, supra, 480 U.S. at p. 57, 107 S.Ct. at p. 1001.)   Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, held:  “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment․”  (Id. at p. 87, 83 S.Ct. at pp. 1196-1197.)  “Such evidence is ‘evidence favorable to an accused,’ ” because “if disclosed and used effectively, it may make the difference between conviction and acquittal.  [Citation.]  (‘The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend’).”   (United States v. Bagley (1985) 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481, quoting Napue v. Illinois (1959) 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217;  see also Pennsylvania v. Ritchie, supra, 480 U.S. at p. 65, fn. 2, 107 S.Ct. at p. 1005, fn. 2, conc. opn. of Blackmun, J. [Bagley “rejected any distinction between exculpatory and impeachment evidence for purposes of Brady v. Maryland․ ”];  People v. Pensinger (1991) 52 Cal.3d 1210, 1272, 278 Cal.Rptr. 640, 805 P.2d 899 [“The duty to disclose evidence favorable to the accused extends to the disclosure of evidence relating to the credibility of witnesses ․”] and People v. Hayes (1992) 3 Cal.App.4th 1238, 1243-1246, 5 Cal.Rptr.2d 105 [federal due process clause required prosecutor to disclose pending charges, probation status, acts of dishonesty, and prior false reports of sex offenses of alleged victim].)

We also disagree with the Attorney General's reliance on People v. Pinholster, supra, 1 Cal.4th at page 941, 4 Cal.Rptr.2d 765, 824 P.2d 571, for the proposition that “due process is satisfied so long as the impeachment information is provided to the defendant prior to his cross-examination of the witness.”   In Pinholster, the prosecutor resisted discovery of the identity of three informants, but eventually complied with discovery upon order of the court about a month before jury selection commenced and almost two months before the evidentiary portion of the trial began.   During the middle of the trial, the prosecution determined that it would call two other witnesses to rebut the contention that one of its witnesses, defendant's accomplice, had fabricated his testimony.   The identity of these two witnesses, only one of whom testified, was at that time disclosed to the defense, based upon the prosecutor's representation that she never considered the witness's identity and statement would be relevant.   The Supreme Court determined that “[w]hile we may share defendant's skepticism at [the prosecutor's] statement, ․ we fail to see how any delay in disclosing this witness harmed defendant.   The court gave defendant ample time to investigate once the witness and his proposed testimony were disclosed․  It is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.  (People v. Reyes (1974) 12 Cal.3d 486, 502 [116 Cal.Rptr. 217, 526 P.2d 225].)   There is no suggestion that the defense would have been different had defendant been aware of [the witness's] testimony before trial.   As a matter of due process there was no suppression of material evidence favorable to the accused, and any failure to timely disclose the witness was harmless and did not undermine the reliability of the proceedings.  (See People v. Pensinger, supra, 52 Cal.3d at pp. 1273-1274, 278 Cal.Rptr. 640, 805 P.2d 899.)”  (People v. Pinholster, supra, 1 Cal.4th at p. 941, 4 Cal.Rptr.2d 765, 824 P.2d 571.)   From the foregoing language, we think the Attorney General has taken too broad a view of Pinholster.   It does not stand for the proposition that the prosecutor may delay disclosing impeachment information;  rather, it provides a definition of materiality and a standard of review for the failure to timely disclose impeachment evidence.

 In any event, putting aside federal constitutional principles, we conclude that the prosecution violated the statutory discovery provisions applicable to criminal trials which were enacted by Proposition 115.   Section 1054.1 was added to the Penal Code by initiative on June 5, 1990, inter alia, “(a) To promote the ascertainment of truth in trials by requiring timely pretrial discovery. [¶] ․ [¶] (c) To save court time in trial and avoid the necessity for frequent interruptions and postponements.” (§ 1054, subds. (a), (c), italics added.)   It provides:  “The prosecuting attorney shall disclose to the defendant ․ all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:  [¶] ․ [¶] (e) Any exculpatory evidence.” (§ 1054.1.)

“The disclosures required under [section 1054.1 et seq.] shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred.   If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred.   ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” (§ 1054.7.)

 The Attorney General relies on People v. Santos for the rule that misdemeanor convictions are not exculpatory evidence within the meaning of section 1054.1, subdivision (e).   In Santos, the court did not perceive evidence of a witness's misdemeanor conviction as being “exculpatory” because “[s]uch evidence does not tend to demonstrate the defendant is free from guilt and it does not demonstrate the defendant was in fact innocent of the charged crime.”   Accordingly, Santos held, “disclosure of the misdemeanor conviction is not required by section 1054.1, subdivision (e).”  (People v. Santos, supra, 30 Cal.App.4th at p. 178, 35 Cal.Rptr.2d 719.)   We disagree with the limited statutory meaning of “exculpatory evidence” given by the Santos court.   As we have stated, misdemeanor convictions cannot automatically be excluded from Brady's definition of exculpatory evidence, a point with which the Santos court is in agreement.  (Ibid.) Thus, in our view, subdivision (e) of section 1054.1 requires that the prosecution disclose misdemeanor convictions involving dishonest, fraudulent, or perjurious conduct regardless of whether the accused makes a discovery request.  (See People v. Hayes, supra, 3 Cal.App.4th at p. 1244, 5 Cal.Rptr.2d 105.)

 We are also somewhat dubious about the Attorney General's argument that the delay in releasing the impeachment information did not deprive appellant of the ability to question Ms. Williams regarding the conduct underlying her misdemeanor convictions.   If appellant had been made aware of Ms. Williams's petty theft convictions in a timely manner, he would have had time to conduct his legal research, may have discovered the Wheeler rule and learned how to cross-examine Ms. Williams with evidence of her prior conduct.7  Respondent also argues appellant could have requested a continuance to prepare his cross-examination in light of the newly disclosed impeachment evidence, but opted not to.   We are not too impressed with this argument either.   As we have pointed out, one of the reasons for requiring disclosure 30 days before trial is to avoid interruptions and postponements of trials.8

The question is, must we reverse appellant's conviction because of the prosecutor's failure to timely disclose Ms. Williams's petty theft convictions.   Here, we find ourselves in agreement with the Attorney General.   Ms. Williams's testimony was corroborated by the testimony of her daughter, Renisha, who testified in detail as to all of the events and who gave a noncontradictory report to Officer Thomas H. Keleher in the emergency room before an opportunity of collusion between mother and daughter arose.   In addition, Ms. Williams's neighbor, Hortencia Llanas, saw appellant strike Ms. Williams such a hard blow it spun her around and dropped her to the ground.   We also note that appellant's cross-examination of Ms. Williams pointed out a number of discrepancies in Ms. Williams's perception of the events.

 Under both federal and state law “ ‘the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.’  [Citation.]”  (People v. Pensinger, supra, 52 Cal.3d at p. 1272, 278 Cal.Rptr. 640, 805 P.2d 899, quoting United States v. Bagley, supra, 473 U.S. at p. 678, 105 S.Ct. at pp. 3381-3382;  People v. Pinholster, supra, 1 Cal.4th at p. 941, 4 Cal.Rptr.2d 765, 824 P.2d 571.)   We do not condone the failure to timely disclose Ms. Williams's petty theft convictions.   The day may come when the prosecution's failure to adhere to the disclosure requirements of section 1054 et seq., is not harmless error.   But that day is not yet here.   Upon review of this record, we are convinced that the prosecution's error was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705;  see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674.)

III.-VIII.†

DISPOSITION†

FOOTNOTES

1.   Unless otherwise noted, all further statutory references are to the Penal Code.

2.   We set forth the “ ‘․ evidence in the light most favorable to the People and ․ presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’   [Citation.]”  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103, quoting People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643.)

3.   Long Beach Police Officer Thomas H. Keleher also testified on behalf of the prosecution.   He was the responding officer and interviewed Renisha Bolton in the emergency room of the hospital while her mother was being treated.   He took a written statement from Renisha at that time, was present when she was interviewed by the prosecutor, and was present in court when she testified.   In his opinion, Renisha's testimony was a fuller and more detailed account than what was in his report, but it did not contradict anything in his report.

FOOTNOTE.   See footnote *, ante.

6.   Apparently, appellant did not understand the nuances of the Wheeler rule, however “ ‘[a] defendant appearing in propria persona is held to the same standard of knowledge of law and procedure as is an attorney.’  [Citation.]”  (People v. Pinholster (1992) 1 Cal.4th 865, 958, fn. 18, 4 Cal.Rptr.2d 765, 824 P.2d 571, quoting People v. Clark (1990) 50 Cal.3d 583, 625, 268 Cal.Rptr. 399, 789 P.2d 127.)   Appellant was specifically warned by the court before he was granted in propria persona status, “It is a very unwise thing to do to represent yourself.   You will be going up against a qualified and experienced attorney who will not make any allowances for you in the questions or in the way that evidence is brought out.   Do you understand that?  [¶] THE DEFENDANT:  Yes, I do.  [¶] THE COURT:  And you will have to keep to the same rules of evidence and procedures as a qualified and experienced attorney.   Do you understand that?  [¶] THE DEFENDANT:  Yes, I do.  [¶] THE COURT:  Knowing all those things, do you still wish to represent yourself?  [¶] THE DEFENDANT:  I most definitely do.”

7.   We discerned from our review of the record that appellant was an articulate defender of his rights and showed that, while unfamiliar with the nuances of Wheeler, for a layperson, he had a fairly good grasp of legal principles.

8.   Indeed, where a prosecutor's delay in turning over the discovery is without “good cause,” and causes an interruption or postponement of the trial, the trial court is justified in imposing sanctions including instituting contempt proceedings. (§ 1054.5, subd. (b).)  The same rule applies equally to defense counsel.

FOOTNOTE.   See footnote *, ante.

BARON, Associate Justice.

CHARLES S. VOGEL, P.J., and EPSTEIN, J., concur.