Criminal Appeal

No Prejudice Established From Jury Instruction on Late Defense Discovery (CALJIC 2.28). People v. Saucedo, no. B166883 (Cal.Ct.App. (2d Dist., Div. 7) Aug. 18, 2004) (partial publ.).

The court, citing Bell (my post here) and Cabral (my post here) expressed reservations about CALJIC 2.28, but concluded any error was harmless because the prosecutor would have argued the late disclosure of the alibi anyway, and the alibi was particularly incredible.

Panel: Johnson, Woods, Zelon

Error in instructing jury on late defense discovery (CALJIC 2.28) People v. Cabral, no. F042217 (Cal.Ct.App. (5th Dist.) Aug. 13, 2004).

Note: This opinion was issued on rehearing. The court reversed itself, having been conviced by the reasoning of the First District (Division 3) in People v. Bell (2004) 118 Cal.App.4th 249. Read my post on Bell here.

Warning: Summary of Opinion from June (I'm still catching up on a few 9th Circuit Opinions I missed due to vacation.)
Evidence of prior drug smuggling was admissible under FRE 404(b) to rebut duress defense. U.S. v. Verduzco, no. 03-50044 (9th Cir. June 29, 2004).

(1) Evidence of prior drug smuggling was admissible under FRE 404(b) to rebut duress defense. (2) Response to jury question regarding duress defense properly stated the law; (3) No error in exclusion of defense expert on drug culture in Tiajuana. Evidence was excluded for discovery violation, relevance (defendant was experienced in American life), and under Rule 403(b).

Panel: Myron H. Bright (8th Cir.), O’Scannlain, and McKeown

Defense Counsel May File Sealed Declaration in Support of Pitchess Motion for Discovery of Police Officer Personnel Records. Garcia v. Superior Court, no. G032739 (Cal.Ct.App. (4th Dist., Div. 3) July 27, 2004).

In addition to holding that declarations in support of Pitchess motions may be filed under seal, the court outlined procedures for such sealed proceedings.

Panel: O'Leary, Moore, Fybel

Review Grant: Pitchess. The California Supreme Court granted review yesterday in Ebbert v. Superior Court, COA no. D042600, S.Ct. no. S123713, in which the Court of Appeal held that a Pitchess protective order does not cover derivative information obtained through the Pitches motion:

We conclude the protective order envisioned by section 1045, subdivision (e), limiting use of the information disclosed on grant of the Pitchess motion to the proceeding in which the motion was granted, does not encompass the derivative information obtained from use of the Pitchess motion information. We further conclude that when a trial court in an unrelated subsequent proceeding grants a second litigant's independent Pitchess motion as to the same peace officer who was the subject of a prior litigant's successful Pitchess motion, and orders disclosure to that second litigant of Pitchess information duplicative of that disclosed to the first litigant, the section 1045, subdivision (e) protective order in the prior proceeding does not prohibit the second litigant from obtaining from the prior litigant the duplicative Pitchess information previously given to the prior litigant.

Trial Court Erred in Summarily Denying Pitchess Motion Without In Camera Inspection of Police Officer's Personnel Records. People v. Johnson, no. G032076 (Cal.Ct.App. (4th Dist., Div. 3), May 4, 2004)

Error to Give Tardy-Discovery Instruction.
People v. Bell, no. A097378 (Cal.Ct.App. (1st Dist., Div. 3) May 3, 2004)

The trial court committed prejudicial error by giving CALJIC No. 2.28 regarding the late disclosure by the defense of statements given by alibi witnesses. The instruction contained a misstatement, attributing the delayed disclosure to the defendant, rather than his counsel and investigator. Perhaps more significantly, the court also found that the instruction provided no guidance to the jury on what to do with this information:

They could disbelieve, discount, or look askance at the defense witnesses. But it is not clear why, or to what extent, they should do so in the absence of evidence that the prosecution was unfairly prevented from showing that the witnesses were unreliable. Just as the failure of disclosure was not Bell’s fault, there is absolutely no indication that the witnesses were responsible for the delayed discovery.

Defense Does Not Have to Divulge Subpoenaed Materials to Prosecution.
Case:Teal v. Superior Court, no. D043340 (Cal.Ct.App. (4th Dist., Div. 1), Apr. 2, 2004)
Proceeding: Petition for writ of mandate from order denying defense request for subpoena of materials relating to a witness and ordering defense to divulge material obtain from subpoena granted.

Holding: (1) "[T]rial court abused its discretion in ordering defense counsel to provide the subpoenaed materials to the prosecution and that the error impinged upon Teal's constitutional rights." (If defense were to use the material at trial, it would then have to comply with reciprocal discovery provisions of section 1054, et. seq. (2) Although personnel records of motel security guard were not discoverable, name, address and telephone number of the security guard should have been disclosed to the defense, if found in material produced by prosecution.

Still No Free-Floating Discovery. In a unanimous opinion authored by Associate Justice Ming W. Chin, the California Supreme Court, today, issued an opinion in In re Steele, no. S114551,"resolv[ing] important procedural and substantive issues regarding" Penal Code section 1054.9, which provides for post-conviction discovery in capital and LWOP cases.

"Procedurally," the Court held that section 1054.9 discovery requests made in connection with a habeas corpus proceeding should first be made in the trial court. "Substantively," the court held that "section 1054.9’s discovery includes, and is limited to, specific materials the prosecution or law enforcement authorities involved in the case currently possess that the defendant can show fall into any of these categories: (1) materials the prosecutor provided at time of trial but have since become lost to the defendant, (2) materials the prosecution should have provided at time of trial, or (3) materials the defendant would have been entitled to at time of trial had the defendant specifically requested them."

This is welcomed, but there's still no "free floating" discovery in California habeas proceedings, and nothing akin to 1054.9 for non-capital/non-LWOP cases.

Cal. Supreme Court - One Opinion to Issue Tomorrow. According to last Friday's notice, at 10 a.m. on Monday, the California Supreme Court will issue an opinion in one case: a habeas case involving penalty phase discovery in capital cases.

In Re Steele no. S114551

Here's the summary from the court: "In this case, which is related to the automatic appeal in People v. Steele (2002) 27 Cal.4th 1230, the court issued an order to show cause including the following issues: (1) Should a post-conviction discovery motion pursuant to Penal Code section 1054.9 generally be filed in the first instance in this court or in the trial court? (2) What is the scope of the prosecution’s duty, if any, to provide discovery under section 1054.9 of materials unrelated to the charged crimes or prosecution evidence in aggravation but that might provide penalty phase mitigating evidence?"

9th Cir.: Conviction Vacated Because District Court Failed to Conduct In Camera Review of Witnesses' Presentence Reports Upon Defendant's Brady Material Request. In U.S. v. Alvarez, no. 01-10686, the Ninth Circuit vacated appellant Alvarez's conviction, but affirmed appellant Valenzuela's conviction.

As to Alvarez, the Court held that (1) the evidence was sufficient that Alvarez knowingly participated in a conspiracy; (2) the magistrate had a substantial basis for the probable cause finding made in issuing a search warrant; (3) the district court did not err in admitting evidence of hand-held radios, police scanners, and a transceiver device found at the defendant's home; (4) by not renewing it at the close of evidence, Alvarez waived his claim that the district court erred in denying a severance motion, and any error was not prejudicial anyway; and (5) (here's where Alvarez gets relief) "where a district court fails to conduct an in camera review of the probation files of significant witnesses pursuant to a timely defense request for Brady materials, we will vacate the defendant’s conviction and remand the case to the district court with instructions to conduct the review"; (6) there was no error in other discovery rulings; (7) Alvarez’s sentence did not violates Apprendi because there was no jury determination of drug quantity; (8) sufficient evidence supported the district court drug quantity calculation.

As to Valenzuela, the court held that (1) any error in the conspiracy instruction was harmless; (2) "the trial court did not abuse its discretion in finding that the statements describing people’s actions in 1996 did not constitute inadmissible hearsay"; (3) any error in the disqualification of jurors outside the presence of the defendant and without a defense opportunity for rehabilitation was harmless; (4) the district court did not error in denying a defense motion to compel the government to grant use immunity to a witness; (5) there was no abuse of discretion in admitting evidence of drug trafficking during the period of the charged conspiracy.

Phew.

Defense Need Not Produce Discovery In Probation Revocation Proceeding

The California Court of Appeal (4th Dist., Div. 1), issued a writ of mandate today in Jones v. Superior Court, no.D042335, holding that, "the reciprocal discovery provisions set forth in the criminal discovery chapter of Proposition 115 (§ 1054 et seq.) do not apply to a probation revocation hearing, and thus a probationer has no obligation to provide discovery to the prosecution in such a proceeding, because (1) a probation revocation proceeding is not a criminal trial within the meaning of section 1054.3 governing the scope of the discovery obligations of the defense; and (2) neither this chapter, the Constitution of the nited States, nor other statutory authority provides for such discovery."