THE PEOPLE v. RANDY GARBUTT (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Randy Garbutt appeals from a conviction of possession of marijuana for sale.   He contends the trial court erred in denying his motion to exclude evidence as a sanction for the prosecution's untimely disclosure of that evidence in violation of Penal Code section 1054.7.¹  He also asserts instructional error.   We affirm.²

FACTS

Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that Los Angeles Police Officer Tracy Hauter, and her partner, Ryan Boykin, were investigating a report of illegal narcotics activity when they detained defendant and three other men on August 5, 2008.   Hauter arrested defendant upon learning that he was the subject of an outstanding arrest warrant for driving while unlicensed.   After defendant was arrested, another officer at the scene, Jose Covarrubias, smelled marijuana coming from a nearby parked Mazda.   In a search of that car, Covarrubias found a backpack containing five small plastic bags of marijuana inside one larger bag, two glass mason jars filled with marijuana, and a digital scale with marijuana residue on it;  in the driver's side door, he found the car keys and $130 in currency, comprised of one $50 bill, two $20 bills, three $10 bills and two $5 bills.   Hauter found two individually wrapped baggies of marijuana in the glove compartment, sitting on top of a car rental agreement.   Based on the location, quantity of marijuana and manner in which it was packaged, digital scale, currency denominations and absence of smoking paraphernalia, Hauter opined that the marijuana was possessed for sale, not personal use.   After the officers found the marijuana in the Mazda, defendant asked them not to “impound my car.”  (Italics added.)   Although Hauter had already determined that the Mazda, a Hertz rental car, was not registered to defendant, defendant's statement led Hauter to assume that defendant had been operating the Mazda.   Boykin and Covarrubias both heard defendant ask Hauter not to impound “my” car.

During the five- to ten-minute ride to the police station in Hauter and Boykin's patrol car, defendant repeated his request that Hauter not impound his car and also volunteered that the marijuana was from Humboldt County;  Hauter was aware that the Humboldt area was known for growing high quality marijuana.   Hauter did not ask defendant any follow up questions because she understood it was not her place to do so;  it was a task for the investigating detectives.   At the police station, Hauter decided not to impound the car;  in response to Hauter's inquiry, defendant said to release the car and the backpack to his girlfriend.   Boykin gave the empty backpack and the car keys to a woman who came to the police station, after defendant confirmed that she was his girlfriend.   When Hauter wrote the police report of the incident, she did not include the names of the other three men detained along with defendant that day, or defendant's statements about impounding his car or about the marijuana coming from Humboldt.   Hauter first mentioned these statements to the prosecutor a few days before the trial began.

PROCEDURAL BACKGROUND

Defendant was arrested on August 5, 2008.   At his arraignment on September 29, 2008, he was represented by Deputy Public Defender Rita Olague and the People were represented by Deputy District Attorney Eloise Phillips, both of whom continued their representation through the beginning of trial in January 2009.

On January 23, 2009, both sides announced ready for trial.   According to the clerk's transcript, Evidence Code section 402 hearings were held on January 26 and 27.   The appellate record does not include a reporter's transcript of those proceedings.   Meanwhile, voir dire had commenced and on January 28, a jury was selected.   But a mistrial was declared on January 29 because of medical reasons unrelated to the retrial.

Over the next several weeks, Olague continued to represent defendant while different deputy district attorneys appeared at subsequent proceedings.   Deputy District Attorney Elan Carr made his first appearance in the matter on March 11, 2009, the day jury voir dire commenced in the second trial;  defendant was still represented by Olague.

Prior to opening statements in the second trial, defendant moved to exclude the following evidence on the grounds that he was in custody but not given his Miranda ³ warnings when he made statements (1) at the scene admitting that he had rented the Mazda;  (2) at the scene requesting that the Mazda not be impounded;  (3) in the patrol car on the way to the police station about the marijuana coming from Humboldt;  and (4) at the police station authorizing release of the Mazda and backpack to his girlfriend.⁴  After defendant requested an “offer of proof” as to each prosecution witness, this colloquy ensued:  “THE COURT:  I'm not sure I'd ask the People to give offers of proof for every witness.  [¶] [DEFENSE COUNSEL]:  It doesn't have to be in depth, just an officer at the scene, or if it's a chemist.   There was nothing listed to some of the names that were on the list.  [¶] ․ [¶] THE COURT:  And would you also tell [defense counsel] generally what they'll be testifying about?   [¶] [THE PROSECUTOR]:  Well, I don't know what they would be testifying about, because I haven't interviewed them, but they're all in the police report.   I haven't listed anybody who is not in the police report, so - so [¶] THE COURT:  All right.  [¶] [THE PROSECUTOR]:  [Defense counsel] knows as much as I do about what they might say.  [¶] THE COURT:  If you learn from one of your officers when you do interview them, and they tell you that [defendant] made a statement, you're ordered to immediately disclose that.  [¶] [THE PROSECUTOR]:  Of course.”

At an Evidence Code section 402 hearing on March 12, 2009, Hauter and Boykin testified that, based on two anonymous tips, they were dispatched to investigate narcotics activity in an area where the sale of illegal narcotics was an ongoing problem.   At the location, Hauter and Boykin immediately ordered defendant and the three other men they saw there to line up facing a fence, with their hand behind their backs.   When backup officers arrived a few minutes later, the four men were handcuffed.   After the men were handcuffed, the officers obtained their identifying information and ran wants and warrants checks on each of them.   Hauter arrested defendant on an outstanding arrest warrant for unlicensed driving.   After defendant was arrested, Covarrubias informed Hauter that he smelled marijuana coming from a Mazda parked nearby.   In response to Hauter's question, “Whose car is this?” defendant said he was renting the car.

The trial court excluded defendant's admission that the Mazda was his car.   It reasoned that defendant made the admission in response to a question by Hauter;  because defendant was in custody, defendant should have been given Miranda warnings before Hauter asked the question.   However, the trial court found that defendant's request that the Mazda not be impounded, his statement in the patrol car about the marijuana coming from Humboldt, and the authorization to release the car to his girlfriend were not made in response to any questions and were therefore admissible.⁵

Defendant next moved to exclude the statements on the grounds of late discovery, arguing that none of the statements was included in the police report.   The prosecutor explained that he only learned of the statements the day before and immediately disclosed them to defense counsel.   The trial court overruled the objection.

During the trial, defendant objected to Covarrubias testifying that he heard defendant ask Hauter not to impound the Mazda because the prosecutor had not revealed that Covarrubias was also a witness to this statement.   The prosecutor countered that defendant's statement was disclosed, just not the fact that Covarrubias also had heard it.⁶  The trial court overruled the objection, observing that there was no showing of bad faith by the prosecutor and Covarrubias's evidence was relevant to counter the defense argument that Hauter and Boykin were not being truthful.   As part of its instructions to the jury, the trial court gave a modified CALCRIM No. 306 on delayed discovery.

Finally, at the conclusion of the prosecution's case-in-chief, defendant moved for a mistrial on the grounds that he was denied a fair trial as a result of the prosecution's failure to timely provide discovery.   The trial court denied that motion as well as a motion for a continuance in order to investigate what defendant characterized as “new” evidence of defendant's statements.

DISCUSSION

A. Admission of Defendant's Statements Was Not an Abuse of Discretion

Defendant contends the trial court erred in denying his motions to exclude testimony about defendant's statements because the evidence was not timely disclosed to defense counsel, a violation of the reciprocal discovery rules. (§ 1054 et seq.)   He argues that the prosecutor violated his reciprocal discovery obligations by (1) waiting until the day before trial to ask the officers present at the scene if they heard defendant make any statements, thus ensuring that the information would not be timely disclosed to the defense;  and (2) not disclosing that Covarrubias would testify that he heard defendant ask Hauter not to impound his car.   We find no error.

The trial court's discovery rulings are reviewed for abuse of discretion.   (People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1185.)   Violation of the reciprocal discovery statute is a basis for reversal only where it is reasonably probable that the omission affected the trial result.   (People v. Verdugo (2010) 50 Cal.4th 263, 280 (Verdugo ), citing People v. Watson (1956) 46 Cal.2d 818, 836.)

Wholly independent of the prosecutor's duties under Brady v. Maryland (1963) 373 U.S. 83 (Brady ) and the federal due process clause which requires the disclosure of exculpatory evidence, California has a statutory scheme of reciprocal discovery. (§ 1054 et seq.;  Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377-378 (Izazaga ).)   Under California's statutory scheme, “no discovery shall occur in criminal cases except as provided by” section 1054 et seq., unless as mandated by the United States Constitution or other express statutory provisions. (§ 1054, subd. (e).)

Section 1054.1 requires the prosecutor to disclose to defense counsel the following information, if it is in the possession of the prosecutor or if the prosecutor 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. [¶] ․ [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial․”  (§ 1054.1.) The disclosure must be made at least 30 days prior to the trial. (§ 1054.7.) The prosecutor must make immediate disclosure of information that becomes known to him or her within 30 days of trial.  (Ibid.;  People v. DePriest (2007) 42 Cal.4th 1, 38.)   Under the California statutory scheme the prosecution is under no duty to disclose inculpatory evidence of which it has no actual knowledge.   Thus, in People v. Zambrano (2007) 41 Cal.4th 1082 (Zambrano ), overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22, our Supreme Court held that there was no violation of the discovery statutes where the prosecution first learned of letters written by the defendant's deceased sister to prison officials describing defendant as insane on a Friday during the trial and disclosed them to defense counsel the following Monday where it was undisputed that the letters were not previously in the possession of the prosecution and the prosecutor was unaware of their existence.  (Zambrano, supra, at p. 1133.)   Although several remedies may be available for failing to comply with discovery obligations, only if all other sanctions have been exhausted may the trial court prohibit the testimony of a witness. (§ 1054.5;  People v. Hammond (1994) 22 Cal.App.4th 1611, 1621.)

Here, the prosecutor, who was new to the case, represented that he first learned of the challenged statements when he interviewed the arresting officers the day before trial.   He disclosed the statements to defense counsel the next day.   Under Zambrano, this was not a violation of section 1054.1.⁷

Contrary to defendant's claim, the prosecutor had no duty to disclose that he intended to present evidence that Covarrubias heard defendant ask Hauter not to impound his car.   Section 1054.1, subdivision (a) requires the prosecutor to disclose identifying information of witnesses, not the content of their expected testimony.   Section 1054.1, subdivision (b) requires the prosecutor to disclose “[s]tatements of all defendants,” but does not expressly require the prosecutor to disclose every witness who is expected to testify to the statement.   Even assuming such a requirement for the sake of argument, it has been satisfied in this case.   There is no contention that the prosecutor failed to disclose Covarrubias's identity as a witness;  and, as we have already discussed, defendant's statements were timely disclosed under the statute.   Inasmuch as Covarrubias was identified in the police report as one of the officers present at the scene of defendant's arrest, he would naturally be expected to testify to the circumstances surrounding the arrest, including statements defendant allegedly made at the time.   Thus, the prosecutor satisfied his obligations under the statute.

B. CALCRIM No. 306

Defendant also argues the court erred in fashioning the instruction on timely discovery that it gave to the jury.   In relevant part, CALCRIM No. 306 reads:  “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law.   Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial.  [¶] An attorney for the (People/defense) failed to disclose:  _ [within the legal time period ].  [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”  (Italics added.)   Defendant contends the trial court erred in giving a modified version of CALCRIM No. 306, which did not include the italicized words from the pattern instruction, and added the word “normally” between the words “defense” and “must” in the first sentence.⁸  Defendant argues that “[t]he modified instruction was so eviscerated, not to mention confusing, that neither side discussed it in closing.”

Defendant has forfeited this contention by not objecting to the trial court's modified version of the instruction.  (Cf. People v. Milosavljevic (2010) 183 Cal.App.4th 640, 648 [failure to object to modified unanimity instruction forfeits the contention].)   Even assuming defendant did not forfeit this claim, he has failed to show that it is reasonably probable a result more favorable to defendant would have been reached in the absence of the alleged error.   (People v. Mendoza (2000) 24 Cal.4th 130, 177.)   Although use of the word “normally” in some sense might suggest discovery obligations are more flexible than required by statute, in the context of this case we do not see how its insertion could have caused this jury to consider the case any differently.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

FOOTNOTES

FN1. Garbutt was charged with transportation of marijuana (Health & Saf.Code, § 11360, subd. (a)) and possession of marijuana for sale (Health & Saf.Code, § 11359).   The transportation charge was dismissed pursuant to defendant's Penal Code section 1118.1 motion.   Following his conviction for possession for sale, defendant was sentenced to three years' formal probation.   He filed a timely notice of appeal.All further undesignated statutory references are to the Penal Code..  FN1. Garbutt was charged with transportation of marijuana (Health & Saf.Code, § 11360, subd. (a)) and possession of marijuana for sale (Health & Saf.Code, § 11359).   The transportation charge was dismissed pursuant to defendant's Penal Code section 1118.1 motion.   Following his conviction for possession for sale, defendant was sentenced to three years' formal probation.   He filed a timely notice of appeal.All further undesignated statutory references are to the Penal Code.

FN2. Concurrently with his appeal, defendant filed a petition for writ of habeas corpus (case No. B222270).  The petition was based on alleged ineffective assistance of counsel for trial counsel's failure to move to suppress all evidence obtained as a result of an unlawful detention.   We address that petition in a separate order..  FN2. Concurrently with his appeal, defendant filed a petition for writ of habeas corpus (case No. B222270).  The petition was based on alleged ineffective assistance of counsel for trial counsel's failure to move to suppress all evidence obtained as a result of an unlawful detention.   We address that petition in a separate order.

FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda )..  FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda ).

FN4. The record does not indicate whether this evidence was also the subject of the Evidence Code section 402 hearing in the first trial, at which a different deputy district attorney represented the People..  FN4. The record does not indicate whether this evidence was also the subject of the Evidence Code section 402 hearing in the first trial, at which a different deputy district attorney represented the People.

FN5. On appeal, defendant does not challenge the trial court's Miranda rulings.   He seeks to suppress the statements as part of the relief requested in his habeas corpus petition (case No. B222270)..  FN5. On appeal, defendant does not challenge the trial court's Miranda rulings.   He seeks to suppress the statements as part of the relief requested in his habeas corpus petition (case No. B222270).

FN6. We note that Covarrubias was identified in the police report as one of the officers at the scene that day..  FN6. We note that Covarrubias was identified in the police report as one of the officers at the scene that day.

FN7. We are not persuaded by defendant's assertion that “[t]here is no conceivable reason” to treat reciprocal evidence differently than exculpatory evidence is treated under Brady,supra, 373 U.S. 83 and the due process clause of the federal Constitution.   Generally, reciprocal discovery is not mandated by the United States Constitution.  (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 61-62.)   Thus, under the due process clause and Brady, the prosecution has a self-executing duty to disclose to the defense any evidence that is favorable to the accused.   (Verdugo,supra, 50 Cal.4th at p. 279;  Izazaga,supra, 54 Cal.3d at pp. 377-378.)   By contrast, reciprocal discovery in California is not self-executing and the prosecution has no duty to learn of inculpatory evidence known to other agencies. (§ 1054.1;  see Zambrano,supra, 41 Cal.4th at p. 1133;  Izazaga,supra, at p. 374.).  FN7. We are not persuaded by defendant's assertion that “[t]here is no conceivable reason” to treat reciprocal evidence differently than exculpatory evidence is treated under Brady,supra, 373 U.S. 83 and the due process clause of the federal Constitution.   Generally, reciprocal discovery is not mandated by the United States Constitution.  (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 61-62.)   Thus, under the due process clause and Brady, the prosecution has a self-executing duty to disclose to the defense any evidence that is favorable to the accused.   (Verdugo,supra, 50 Cal.4th at p. 279;  Izazaga,supra, 54 Cal.3d at pp. 377-378.)   By contrast, reciprocal discovery in California is not self-executing and the prosecution has no duty to learn of inculpatory evidence known to other agencies. (§ 1054.1;  see Zambrano,supra, 41 Cal.4th at p. 1133;  Izazaga,supra, at p. 374.)

FN8. As given, CALCRIM No. 306 read:  “Both the People and the defense normally must disclose their evidence to the other side before trial.   Failure to follow this rule may deny the other side a chance to produce all relevant evidence, counter opposing evidence or to receive a fair trial.   The People did not disclose the existence of the statements the defendant allegedly made to law enforcement until immediately before this trial began.   In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”  (Italics added.).  FN8. As given, CALCRIM No. 306 read:  “Both the People and the defense normally must disclose their evidence to the other side before trial.   Failure to follow this rule may deny the other side a chance to produce all relevant evidence, counter opposing evidence or to receive a fair trial.   The People did not disclose the existence of the statements the defendant allegedly made to law enforcement until immediately before this trial began.   In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”  (Italics added.)

BIGELOW, P. J. FLIER, J.