PEOPLE v. TILLIS (1997)

While driving a stolen vehicle, defendant took Ron Smith and Duran (“Randy”) Grant to a car wash in Stockton intending to shoot one Link Rhodes.²  Defendant located Rhodes and parked behind a brick wall from which Smith fired shots from a rifle in Rhodes's direction.   Rhodes emerged unscathed but the shots killed Johnny Quan in the Grand Save Market, the grocery store he owned adjacent to the car wash;  the shots also injured three other bystanders.   While driving across town after the shooting, defendant stopped the vehicle and Smith got out of the car, pointed the rifle at a young boy and stole the boy's puppy.   A jury convicted defendant of ten crimes arising from these escapades.

In the published portion of this opinion, we conclude that after defendant complied with Penal Code section 1054.3 by providing discovery to the prosecution of his intent to call a particular drug expert, the prosecution was required to disclose the witnesses and statements relied on to establish that this defense expert had been arrested for using cocaine on a lunch break while testifying in a previous criminal case.   The prosecution's failure to provide this discovery denied defendant federal due process and discovery he was entitled to under Penal Code section 1054.1.   We further conclude this error was harmless.

In the unpublished portion of this opinion, we find no prejudicial error among defendant's other contentions, which allege a Miranda violation, an exclusion of an offer to take a polygraph test, various instructional errors, and two sentencing errors.   Nor do we find any cumulative prejudicial impact.   Consequently, we affirm.

I. FACTS*

II. RECIPROCAL DISCOVERY

Prior to trial defendant complied with the prosecution's demand to disclose the witnesses he intended to call, one of whom was Dr. Stephen Pittel, a psychologist, who testified as an expert regarding heroin use and its effects on mental acuity.   The prosecutor impeached Pittel by eliciting testimony that he had been arrested for using cocaine during a lunch break while testifying as an expert in a previous criminal case.   The prosecutor did so without first providing the defense with discovery of the witnesses and statements establishing the arrest.   We agree with defendant that once he complied with Penal Code section 1054.3's requirement that he disclose his intent to call Pittel, the prosecutor's failure to disclose the witnesses and their statements establishing Pittel's arrest denied defendant federal due process and discovery he was entitled to under Penal Code section 1054.1.   The violation, however, was not prejudicial.

On June 5, 1990, California voters passed Proposition 115, the “Crime Victims Justice Reform Act.” Proposition 115 added section 30 to article I of the California Constitution which states in relevant part:  “(c) In order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature as prescribed by the Legislature or by the people through the initiative process.”   Proposition 115 also enacted certain Penal Code sections that mandated reciprocal discovery and that authorized prosecutorial discovery in criminal cases. (§ 1054 et seq.;   all further references to undesignated statutory sections are to the Penal Code unless otherwise indicated.)   Pertinent sections of Proposition 115, now codified in the Penal Code, provide as follows:

Section 1054 states:

“This chapter shall be interpreted to give effect to all of the following purposes:

“(a) To promote the ascertainment of truth in trials by requiring timely pretrial discovery.

“(b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.

“(c) To save court time in trial and avoid the necessity for frequent interruptions and postponements.

“(d) To protect victims and witnesses from danger, harassment, and undue delay of the proceedings.

“(e) To provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.”

Section 1054.1 states:

“The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

“(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.

“(b) Statements of all defendants.

“(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.

“(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

“(e) Any exculpatory evidence.

“(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.”

Section 1054.3 states:

“The defendant and his or her attorney shall disclose to the prosecuting attorney:

“(a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.

“(b) Any real evidence which the defendant intends to offer in evidence at the trial.”

Section 1054.7 provides in pertinent part:

“The disclosures required under this chapter 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․” 3

In the Information filed against defendant, the prosecution requested “that ․ defendant and his ․ attorney disclose ․ all information and materials described in Penal Code Section 1054.3.”   Defendant complied with this demand.

In their analyses of the reciprocity issue, the parties focus on Hobbs v. Municipal Court (1991) 233 Cal.App.3d 670, 284 Cal.Rptr. 655 (Hobbs ).   In Hobbs, a defendant charged with misdemeanor burglary was ordered to disclose certain items listed in section 1054.3.   He petitioned for a writ of mandate contending, in part, that forcing him to disclose the information listed in section 1054.3 would deny him due process under the United States Constitution because the statutory discovery statutes of Proposition 115 fail to explicitly require the prosecution to disclose to the defense information the prosecution may present in rebuttal after it has received defense-supplied discovery.  (Id. at p. 686, 284 Cal.Rptr. 655.)

Hobbs noted that the United States Supreme Court, in Wardius v. Oregon (1973) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, had articulated a federal due process requirement of reciprocity in criminal discovery statutes.  (233 Cal.App.3d at p. 689, 284 Cal.Rptr. 655.)   The Wardius court had reasoned that “[i]t is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.”  (412 U.S. at p. 476, 93 S.Ct. at pp. 2212-2213.)

 The court in Hobbs concluded that the discovery provisions of Proposition 115 do not violate the federal due process clause.  (233 Cal.App.3d at p. 689, 284 Cal.Rptr. 655.)   This is because a provision requiring reciprocal discovery with respect to material disclosed by the defense-as mandated by Wardius-can be read into Proposition 115.  (Id. at pp. 687-688, 284 Cal.Rptr. 655.)

The Hobbs court reasoned as follows:

““Section 1054.1 imposes upon the prosecution the duty to disclose to the defendant various materials and information, including information the prosecution plans to use at trial.  (See § 1054.1, subds. (a) and (f).)  Since rebuttal is part of a trial, this section logically includes information the prosecution plans to use in either its case-in-chief or in rebuttal.   Further, among the information that [the] prosecution is required to disclose under section 1054.1 is the type of information that could be used during rebuttal to counteract defense evidence. (§ 1054.1, subd[s].(a), (d) and (f).)   Under section 1054.7, which provides the parties have a continuing duty to immediately disclose material as it becomes known to them, a reciprocal duty on the part of the prosecution per Wardius, supra, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, is implicit.””  33 Cal.App.3d at p. 688, 284 Cal.Rptr. 655.)

Eight days after Hobbs was decided, our Supreme Court, in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304, concluded similarly that the discovery provisions of Proposition 115 do not violate the federal due process clause.  (54 Cal.3d at pp. 372-378, 285 Cal.Rptr. 231, 815 P.2d 304.)   In doing so, the court in Izazaga rejected a defense claim that reciprocity under the due process clause requires that the prosecution disclose not only its rebuttal witnesses (and their recorded statements or reports of their statements), but also all other evidence it intends to use to refute the evidence disclosed by the defense.  (Id. at p. 376, 285 Cal.Rptr. 231, 815 P.2d 304.)  Izazaga said in this respect:

“Reciprocity [under the due process clause] requires a fair trade, defense witnesses [and their statements] for prosecution witnesses [and their statements], and nothing more.   We glean nothing from the [United States] Supreme Court's interpretations of the due process clause to lead us to conclude that reciprocity requires the prosecutor to disclose other evidence gathered in response to a compelled defense disclosure that may be used to refute the defendant's case, when the defense is not required to do the same following discovery of the prosecution's witnesses.”  (54 Cal.3d at p. 377, 285 Cal.Rptr. 231, 815 P.2d 304, fn. omitted.)

 The People contend here that federal due process in the discovery context only requires disclosure of favorable evidence that the defense could use either to impeach the state's witnesses or to exculpate the accused;  that the language in Hobbs is dicta that should not be followed;  and that the plain language of section 1054.1 only requires the prosecution to turn over reports “of” one's own experts, not reports “about” the disclosed defense witnesses.   We are not convinced by the People's argument.   For reasons we shall explain, we conclude that the federal due process requirement of criminal discovery reciprocity articulated in Wardius, Hobbs and Izazaga and implied in the statutory language of the discovery provisions of Proposition 115, encompasses a requirement that the prosecution disclose the witnesses and witness statements (or reports of their statements) it was relying on to establish the arrest of Pittel.

With this background in mind, we now turn to the specific circumstances presented here.

Defendant had Dr. Pittel testify as an expert on heroin's effect on mental functioning.   Pittel testified that defendant has a long-established pattern of drug abuse and heroin addiction.   According to Pittel, shortly after a person ingests heroin, they enter a period called the “nod” in which they are “highly suggestible.”   The “nod” lasts for about 20 to 30 minutes.

Pittel opined that defendant's drug abuse is probably based on some form of “self-medication” that may be related to a history of depression and to possible brain injury.   Defendant's depression, Pittel continued, including his two suicide attempts, appears to be triggered by the actual or imminent end of a relationship.   These break-ups cause increased drug use.   Pittel then concluded:  “And because of the self-medication, that is, that's what probably triggers the depression, which in turn triggers increased use of substances.   And therefore, probably is associated with greater impairment in his mental functioning at those times.”

The prosecutor then cross-examined Pittel, ending that examination with the following exchange:

“Q: And you have given some of the research that you have conducted in this area, has part of your research included you actually taking certain drugs yourself?   It has, hasn't it?   Certain of these illegal drugs?

“A: Not as part of my research, no.

“Q: Have you been arrested for using drugs yourself?

“A: Yes, I have.

“Q: Okay. And that was back in 1990, correct, December?

“A: Yes.

“Q: And that was during a lunch break while you were testifying as an expert in a case, just like this case, right?

“A: Yes.

“Q: And in that case you were caught by some plain clothes officers, snorting cocaine in your Porsche, is that correct?

“A: That's correct.”

In a hearing outside the jury's presence, defense counsel noted that he had provided the prosecution with timely discovery regarding Dr. Pittel, including the doctor's report.   Defense counsel objected to this impeachment evidence because the prosecutor had failed to disclose it.   The trial court expressed uncertainty about the discovery issue, but said:  “[W]here you are talking about cross-examination of a defense expert, ․ I'm not aware of any specific requirements as far as disclosure.   But if there are any, you can take a look at that.”

We start with the due process linchpin of Wardius that “[i]t is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.”   (412 U.S. at p. 476, 93 S.Ct. at pp. 2212-2213.)

 The reciprocal discovery requirements delineated in Hobbs and clarified in Izazaga were not merely passing thoughts to be given little weight.   They were made a necessary part of the discovery provisions of Proposition 115 so those provisions could pass constitutional muster under the federal due process requirement articulated in Wardius of reciprocity in criminal discovery statutes.  (233 Cal.App.3d at pp. 687-689, 284 Cal.Rptr. 655.)   The prosecutor's failure to disclose the discovery at issue here violated those requirements and accordingly denied defendant due process under the United States Constitution.⁴

The People's reliance on United States v. Bagley (1985) 473 U.S. 667, 674-677, 105 S.Ct. 3375, 3379-3381 87 L.Ed.2d 481, is misplaced.   In Bagley, the Supreme Court was not confronted with, as here, a statutory scheme which compels the defense to furnish the prosecution with discovery.   As we have noted, the Supreme Court set the standards for analyzing such statutes under the Due Process Clause when it decided Wardius.   The significance of Bagley is that it clarified the standard the Court would use in reviewing the prejudicial impact of a prosecutor's failure to provide, upon request, discovery of information that could be used to impeach a government's witness.   The Court had earlier declared such evidence to be “evidence favorable to an accused” as that term is used in Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215.  (Giglio v. United States (1972) 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104.)  Bagley did not add anything to or even address the analysis set forth in Wardius.

 Defendant also correctly claims his statutory discovery rights were violated in the same manner.  Section 1054.1 provides in pertinent part:  “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:  (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial ․ (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial․”  It can be reasonably inferred from the prosecutor's detailed examination of Pittel that the prosecutor was prepared to present witnesses or statements of witnesses concerning the arrest in the event Pittel denied it or failed to adequately confirm the circumstances.⁵  The prosecutor was not engaged in a foray into the unknown when he inquired about the arrest.   Had he been there would have been nothing for him to disclose.

 The People's focus on the distinction between reports “of” one's own experts, rather than reports “about” the disclosed defense witnesses (see § 1054.1, subd. (f)), is illusory.   The more appropriate focus, in this context, concerns the witnesses and their recorded statements or reports of their statements that support the questioning of Pittel regarding the arrest.   The express language of section 1054.1 mandates disclosure of the witnesses the prosecutor intended to call to establish Pittel's arrest and reports of their statements.   In violation of section 1054.1, the prosecutor mistakenly withheld this information. (§ 1054.1, subds. (a), (f).) ⁶

People v. Santos (1994) 30 Cal.App.4th 169, 35 Cal.Rptr.2d 719 is not of any help to the People.   There the court construed section 1054.1, subdivision (e), which requires the prosecution to disclose to the defendant “[a]ny exculpatory evidence” that it has or that it knows investigating agencies have.  Santos concluded that evidence of a prosecution witness's misdemeanor conviction is not such “exculpatory evidence” because it “does not tend to demonstrate the defendant is free from guilt․”  (Id. at p. 178, 35 Cal.Rptr.2d 719.)

 Still remaining, however, as Santos noted, was the question of whether the federal due process clause mandates disclosure of a prosecution witness's misdemeanor conviction when the defense requests that information and the prosecutor has it.  (30 Cal.App.4th at p. 178, 35 Cal.Rptr.2d 719.)   Santos answered yes to that question.  (Ibid.)

 However, we conclude that this violation of defendant's right to discover the witnesses or statements of witnesses the prosecutor intended to present to establish the arrest was harmless.   A failure to disclose relevant impeachment evidence, under the federal due process clause, requires reversal “ ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”  (People v. Hayes (1992) 3 Cal.App.4th 1238, 1245, 5 Cal.Rptr.2d 105, quoting from People v. Hayes (1990) 52 Cal.3d 577, 612, 276 Cal.Rptr. 874, 802 P.2d 376;  People v. Santos, supra, 30 Cal.App.4th at p. 179, 35 Cal.Rptr.2d 719;  see Bagley, supra, 473 U.S. at pp. 678, 682, 105 S.Ct. at pp. 3381-3382, 3383-3384.)   We cannot find such a reasonable probability here.

The evidence of defendant's involvement in the June 18 shooting was overwhelming.   Defendant confessed he was the driver in that incident, and a number of witnesses, most of whom were independent of defendant and some even friendly to him, connected him to the car involved in the shooting and the “drive-by” robbery that took place shortly after it.   Although the issue narrowed to defendant's culpability in the shooting, this did not make the failure to disclose Dr. Pittel's drug arrest any more significant.

The evidence did not show defendant to be in some drug-induced stupor.   Smith initially stole the Honda Accord, but brought it to defendant's and had defendant take over the driving duties.   Before taking the wheel, defendant was careful to don gloves so as not to leave fingerprints.   After picking up Grant, the three (defendant, Smith and Grant) proceeded to drive across town.   They drove by Rhodes's house three times over a half-hour period, looking for Rhodes.   They discussed shooting at him.   They were wearing hats and possibly bandannas trying to conceal their identities.

Significantly, defendant acknowledged that he wanted to shoot at Rhodes, intending to scare him as Clifton had done to defendant's mother, Reeves.   If one can formulate an intent to scare, one can formulate an intent to kill.   Moreover, defendant had little success in showing that Clifton had simply fired into the air at Reeves.   The more credible evidence showed that Clifton had fired at Reeves.

When defendant arrived at the scene of the shooting, he positioned the stolen car behind a brick wall with an interlaced top.   No doubt this maneuver was to aid concealment, and from there Smith fired.   After the shooting, the trio, with defendant still at the wheel, drove across town and eventually disposed of the car.

Pittel's testimony was not of great help on the issue of intent.   He opined that defendant was under the influence of heroin based on defendant's account of his heroin use on the day of the shooting.   This was hardly news, as other witnesses had described defendant's repeated heroin use.   Pittel could not say whether defendant was in the “highly suggestible” “nod” state around the time of the shooting.   It is known that defendant performed several careful actions and drove extensively on the day of the shooting, criss-crossing Stockton in his travels.   Pittel also noted that heroin can affect one's memory, and opined that defendant's mental functioning was probably impaired at the time of the shooting due to drug use and depression.

Had the prosecutor disclosed Pittel's drug arrest to defendant prior to trial, it's likely defendant would have obtained another expert.   But if Pittel's substantive testimony fell short, it was not because the substance of that testimony or Pittel's expertise fell short.   Pittel's education, experience and knowledge appeared impressive.   He had qualified as a similar expert witness on approximately 100 previous occasions.   There just was not a lot Pittel, or any drug expert, could add to the jury's understanding of defendant's mental state at the time of the shooting, given the sketchy and anecdotal basis of defendant's drug use and depression prior to the shooting and his careful actions and expressed thoughts concerning the shooting.

We conclude there is not a reasonable probability that the trial outcome would have been different had the prosecution disclosed the evidence of Pittel's arrest to the defense.

III. REMAINING CONTENTIONS**

IV. DISPOSITION

The judgment is affirmed.

FOOTNOTES

2.   Defendant believed that Rhodes had given a man named Deschel Clifton (“Fatty So”) a gun that Clifton had used to assault defendant's mother a few days before the shooting.

FOOTNOTE.   See footnote 1, ante.

3.   The Attorney General does not contend that there was “good cause” for denying discovery of the information at issue as that term is defined in section 1054.7.

4.   We note that the federal due process requirement of discovery reciprocity exists “ ‘wholly independent of any statutory scheme of reciprocal discovery.’ ”  (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244, 5 Cal.Rptr.2d 105, quoting Izazaga v. Superior Court, supra, 54 Cal.3d at p. 378, 285 Cal.Rptr. 231, 815 P.2d 304, italics in original.)   This distinction is of no consequence here given the similarity of defendant's federal due process and state statute claims.

5.   In a petition for rehearing, which has resulted in a modification of this opinion, the People state that the only evidence the prosecutor had in his possession concerning Dr. Pittel's arrest was a copy of a portion of a transcript from a criminal trial in Orange County in which Dr. Pittel admitted the facts of his arrest.   As this information is outside the record, we cannot consider it.   In any event, we can perceive no functional distinction, for reciprocal discovery purposes, between this recorded testimony of Dr. Pittel and a recorded statement of a rebuttal witness.   Contrary to the People's concern, a prosecutor does not have “to search out and disclose all such prior testimony of a defense expert witness.”   Under section 1054.1 and the due process clause, a prosecutor need only disclose the (required) information that is in his or her possession or that he or she knows to be in the possession of the investigating agencies.

6.   Our construction of section 1054.1 in the context of this evidence of an arrest has practical consequences that serve the limitations placed on such evidence by the Supreme Court's holding in People v. Wheeler (1992) 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938.   In the aftermath of Proposition 8's “Truth-in-Evidence” amendment to the state Constitution (Cal. Const., art.   I, § 28, subd. (d)) declaring that “relevant evidence shall not be excluded in any criminal proceeding,” a witness's arrest is admissible for impeachment.  (Wheeler, supra, 4 Cal.4th at pp. 295-297, and fn. 7, 14 Cal.Rptr.2d 418, 841 P.2d 938.) However, such evidence is limited at the outset by the relevance requirement of moral turpitude and by the trial court's discretion under Evidence Code section 352 to exclude probative evidence that is unduly prejudicial.  (Id. at p. 296, 14 Cal.Rptr.2d 418, 841 P.2d 938.)   If the first disclosure of the arrest information is when the prosecutor cross-examines a material defense witness at trial, there is no opportunity to preliminarily consider whether this evidence concerns an offense of moral turpitude or whether it should be excluded under Evidence Code section 352.

FOOTNOTE.   See footnote 1, ante.%

DAVIS, Acting Presiding Justice.

RAYE and MORRISON, JJ., concur.