People v. LandersPeople v. Landers
Raju contends the sanction order was improper because he never intended to call Fletcher at trial, and in fact did not call her. Rather, he contends, he relied on a state-of-the evidence defense for Landers, putting on no affirmative defense case and eliciting what he needed through cross-examination of various witnesses, one of whom was Fletcher. We conclude Raju did not violate the reciprocal discovery order, and accordingly, shall reverse the sanctions order.
I. BACKGROUND
A formal sanctions order of any kind necessarily tarnishes an attorney‘s reputation, the most precious professional asset any member of the bar possesses. (Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384, 413 (conc. & dis. opn. of Stevens, J.)
A. Charges, Defenses, and Procedural History
Raju represented Landers on charges he carried an illegal firearm and was an aider and abettor in the September 16, 2012 shotgun slaying of Jesus Solis by Lemalie. Both Lemalie and Landers were charged with murder under
Relying heavily on a collection of video surveillance clips taken on the afternoon of the shooting, the People argued at trial that Solis, his girlfriend Sara Herrera, and his friend Hugo Fuentes, encountered Lemalie and Landers on Kamille Court, near the Bernal Dwellings public housing complex. According to the People, both Landers and Lemalie were armed, Landers with a handgun and Lemalie with a shotgun. At first there was an exchange of threats at a distance between Fuentes and Landers, and then, in a “coordinated attack,” Landers chased Solis towards the corner of 26th and Treat, where a waiting Lemalie shot him to death.
Lemalie argued self-defense. He contended that Solis and Fuentes, known to him as members of the Norteño street gang, arrived in the Bernal Dwellings neighborhood looking to stir up trouble; that they had threatened to “blow up” the neighborhood a few weeks before the shooting; that, watching Fuentes from a distance, Lemalie saw Fuentes
Landers argued a variation on this defense, putting the exact locations of the events near Bernal Dwellings the afternoon of the shooting into sharp focus. He contended that the Norteños came into the neighborhood armed, and started trouble separately, in different places; that he was not present at the corner of 26th and Treat when Solis was shot; that he didn‘t see or talk to Lemalie before the street confrontation with Solis and had no idea it even happened; that, when the shooting occurred, he was in a different location, involved in a confrontation with a gun-wielding Fuentes; that in the video clip of him running, he was fleeing from Fuentes, headed in a direction away from Solis; and that only after hearing shots fired did he go to 26th and Treat, where Lemalie handed him a shotgun, which he held for only few seconds before tossing it under a parked car.
At the conclusion of trial, the jury returned a verdict convicting Landers of illegal possession of a firearm,2 but failed to reach any verdict on the remaining counts. The case subsequently resolved through a plea to accessory after the fact by Landers and a plea of manslaughter by Lemalie.
B. Pretrial Investigation and Discovery by the Defense
In early January 2014, Raju‘s investigator, Timothy Kingston, met with Fletcher and her mother Joyce Allen to talk about what they had seen on the day of the shooting. Both women indicated that they had been nearby but did not witness what happened. They went outside and saw some of the aftermath. Both stated that they had seen a
On February 26, 2014, Kingston went back to interview Fletcher and Allen, this time accompanied by Raju. Fletcher and Allen reviewed the videotape of the shooting and identified themselves in it, as well as other individuals. Among those individuals was a person named “Wes” or “Wesley” who lived a few doors down from Fletcher. Also shown on the video tape, according to Fletcher, was Wesley‘s brother, and a person known as Quis, to whom Landers tossed some keys. Kingston was of the opinion that neither Fletcher nor Joyce Allen would be particularly a good witness because each had a difficult time staying on topic. He described his interview with them as “long[,] winding[,] and convoluted.”
Sometime “prior to March 2014,” according to a declaration filed by Mark Goldrosen, Lemalie‘s attorney, Raju told Goldrosen that Fletcher had seen Fuentes brandishing a firearm shortly after the shooting. Goldrosen decided Fletcher was an important witness because her testimony corroborated the defense theory that Fuentes and Solis were both armed and posed threats to Lemalie before he shot Solis in self-defense. Although Goldrosen had not yet personally interviewed Fletcher, based on Raju‘s representations he included her on his witness list, which was filed March 10.
In “early March,” according to Goldrosen, he arranged for his investigator to subpoena Fletcher and to confirm that she had seen Fuentes with a gun. When Goldrosen‘s investigator was unable to locate Fletcher, Raju arranged for one of his “neighborhood connections” to facilitate an interview. On March 13, 2014, Raju was present when Goldrosen‘s investigator met with Fletcher. At this meeting, Fletcher confirmed she had seen Fuentes with a gun. After receiving a verbal report from his investigator the same day, Goldrosen emailed prosecutor Heather Trevisan a summary of Fletcher‘s interview, along with her home address. On March 27, Goldrosen personally met with Fletcher and confirmed what she had seen on the date that Solis was shot. And on March 29, Goldrosen emailed these statements to Trevisan.
Because Trevisan had received virtually no discovery from Raju by March 2014 even though the case was filed in September 2012, she was suspicious. To that point, the only discovery she had received from Raju were disclosures of a potential expert witness and a witness who might testify that he picked up Landers on the day of the murder for a 49ers football game. Concerned that “this specific attorney regularly failed to disclose evidence admitted at trial,” Trevisan included in her trial brief a written motion in limine for compelled defense disclosures under
On March 13, 2014, a week before trial, Judge Bouliane orally granted Trevisan‘s discovery motion, compelling each defendant to disclose the following: “(1) The names and addresses of all persons defendant intends to call during trial . . . [¶] (2) Witness statements or reports of statements, no matter how recorded or by whom recorded of all witnesses the defense intends to call at trial . . . [¶] (3) Expert reports including the results of physical or mental exams . . . [¶] (4) Unrecorded statements of witnesses.” The fourth prong of the order, as framed in the motion, and as granted, was a catchall, without anything limiting it to witnesses the disclosing defendant intended to call.3
Upon issuing this reciprocal discovery order, Judge Bouliane emphasized that counsel should produce all witness statements of which they were aware, whether written or not, and prefaced the announcement of her ruling with the cautionary statement, “I don‘t think I need to say this to you, folks, but something happened in another trial. I was very distressed by it. If something new comes up, do not bring it up in front of the jury the first time before mentioning it to the court.”
Opening statements commenced March 20, 2014, and “something new” did come up that had not been mentioned to the court. Whether Raju was responsible for the ensuing dispute, or Trevisan was, became a matter of intense debate centering on surveillance video clips shown by Trevisan during her opening, and Raju‘s response in his opening.
In one clip shown by Trevisan, Lemalie could be seen shooting Solis with a shotgun. Using a different clip, taken from a different camera, at a different angle, Trevisan told the jury that prior to the shooting Landers could be seen running towards Solis and pointing a gun at him. After Landers “spots” Solis, she contended, he “chase[s] him back into the path of Lemalie,” who then shoots him.
Raju, on behalf of Landers, embraced Goldrosen‘s self-defense theory—since that defense, if successful would eliminate any aiding and abetting exposure Landers might have—but also contended that the full, uncut version of the video clip shown by Trevisan would disprove Trevisan‘s claim of Landers‘s role in the shooting. Pointing out that Trevisan had mischaracterized the video, Raju took the position Landers did not herd anyone towards Lemalie. Interpreted correctly, Raju contended, the video showed Landers was not chasing Solis, but was himself being chased by Fuentes.
While fleeing Fuentes, Raju told the jury, Landers ran past a person wearing an Alex Smith 49ers jersey. Drawing upon details learned in the February 26th interview of Fletcher, including the detail that Landers at one point threw keys to Quis, Raju claimed Trevisan was wrong about the people depicted in the video clips she showed. The person in the Alex Smith jersey, according to Raju, was not Solis, who was wearing a Jerry Rice jersey. He was the brother of another individual who was also at the scene, someone identified only as “Wesley.”
In addition, Raju devoted some of his opening to discussing Landers’ ties to the community and his extensive family in the area of the Bernal Dwellings. Landers was familiar with the neighborhood, Raju claimed, and often took his little brothers to play soccer in Garfield Park. According to Raju, the evidence would also show that Landers
Raju turned out to be right about the identification of who could be seen on the video, and the People make no attempt here on appeal to argue the point, referring in their responding brief to “the People‘s mistake” and Raju‘s knowledge of “exactly who the People were misidentifying.” The mystery man in the video clip that sparked the dispute among counsel during opening statements would later be identified at trial as Eric Jones, Wesley‘s brother, who Raju had personally represented years before Lemalie and Landers were tried. Wesley, who was called by Goldrosen as a witness for Lemalie, gave the identifying testimony under direct examination by Goldrosen.
But all of this had yet to occur when opening statements were given, and what started as a kerfuffle over remarks to the jury about the video evidence during openings eventually led to the post-trial sanctions order now under review. Based on the level of detail in Raju‘s remarks, Trevisan lodged repeated objections throughout his opening, largely based on lack of discovery. At a sidebar, Raju explained he had been surprised by Trevisan‘s theory that Landers had herded Solis toward Lemalie. The discussion devolved into finger-pointing, with Raju claiming Trevisan had misrepresented the evidence, and Trevisan claiming Raju had failed to provide discovery concerning any of the individuals he mentioned during his opening and must be planning an ambush.
Raju admitted he had seen the video before, but after talking to people in the community he had figured out the identity of those shown in it. He claimed he had been telling the prosecution for months there was no evidence that Landers had chased Solis. To prove the misidentification, he insisted he could use a witness “[w]ho‘s already been disclosed” to testify. According to Raju, Trevisan relied on a different video clip in her opening statement than the one the People used at the preliminary hearing, saying “out of thin air that [Solis] is the person . . . Landers is chasing.” Faced with a new spin on the video evidence, Raju contended, he decided he had to prove who was who on the clip used by Trevisan in opening, so he responded in kind with specific facts he thought he could elicit on cross-examination.
E. Post-Trial Contempt and Sanctions Proceedings
Following trial, the People filed a motion seeking a contempt finding and imposition of monetary sanctions against Raju for 19 separate discovery violations, including that he allegedly failed to disclose the identity and statements of Fletcher. The motion sought a wide range of remedies, starting with a fine of up to $1,000 for each
On the showing made by the People, Judge Bouliane issued an order to show cause (OSC) why Raju should not be found to have willfully violated a court order under
Proceeding in two steps on the OSC, the court first heard arguments from the parties, and then heard testimony from defense expert witness Peter Keane. Keane opined that Raju did not do anything unethical or otherwise engage in discovery abuse. In Keane‘s opinion, turning over a statement of a witness, when there is no intent to call the witness, is a violation of an attorney‘s statutory duty of loyalty to his client. It would also have been a violation of the ethical responsibility of an attorney to “protect the secrets of his client.” According to Keane, there is also no rule that requires an attorney to turn over statements of a witness that their codefendant intends to call or does call.
Keane thought Raju engaged in “good advocacy,” explaining that “if you can convince or cajole or in some way influence a co-counsel to go ahead and put on material that you want that‘s going to help, there‘s nothing unethical about that. I think that‘s
Following this bifurcated set of hearings, Judge Bouliane ultimately issued a detailed 19-page order addressing only the issue of sanctions, without reaching contempt and without addressing 18 of the 19 alleged violations of its March 13, 2014 reciprocal discovery order. Under
In support of her order, Judge Bouliane specifically found as follows: 1) Raju repeatedly stated that he did not intend to call any witnesses during the trial and would elicit any information through cross-examination; 2) Raju‘s cross-examination of Fletcher, a witness called by Goldrosen, was outside the scope of her direct examination; 3) Raju knew Fletcher had potentially “exculpatory” evidence for Landers (she could identify Eric Jones as the person in the 49ers jersey running by Landers, she saw Fuentes waving a gun around after the shooting, and she could legitimize Lander‘s presence in the neighborhood); 4) Raju could not be certain that Goldrosen would call Fletcher as a witness; 5) Raju referred to the “exculpatory evidence” in his opening statement; 6) Raju knew that Fletcher had this information before the trial began based on previous interviews with her and recognized the importance of the information to his case; and 7)
Raju timely appealed.7
II. DISCUSSION
A. Standard of Review
B. Reciprocal Discovery in Criminal Cases
The statutory scheme governing reciprocal discovery in criminal cases was added to the
Chapter 10 is designed to be an exclusive statutory vehicle for discovery in criminal cases. (See
C. The Trial Court Had Post-Judgment Jurisdiction to Impose Sanctions Under Code of Civil Procedure Section 177.5
Before turning to the application of
Bohannon addressed only the remedies “necessary to enforce the provisions of” Chapter 10, which include “immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order,” all of which are directed to rectifying a discovery default prior to or during trial. (
D. The Sanctions Order Was An Abuse of Discretion
Reciprocal discovery is simple in concept, but far from simple in application. “Prosecutorial discovery,” in particular, “often raises complex and serious constitutional questions.” (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1167 (Hubbard).) While the defense obligation to provide discovery “is a pure creature of statute, in the absence of which, there can be no discovery” (ibid.), the corresponding prosecutorial obligation to disclose goes beyond Chapter 10 under Brady v. Maryland (1963) 373 U.S. 83. It must also be kept in mind that “[l]aw enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime . . . [, while d]efense counsel has no comparable obligation to ascertain or present the truth.” (United States v. Wade (1967) 388 U.S. 218, 256 (conc. & dis. opn. of White, J.) (Wade).)
Obviously, this does not mean defense counsel is licensed to put forward false facts or tell “half-truth[s]” (U.S. v. Nobles (1975) 422 U.S. 225, 241), but what it does mean is that the defense always has the option of standing mute and putting the state to its proof. (Wade, supra, 388 U.S. at p. 257 [“Defense counsel need present nothing, even if he knows what the truth is.“].) As a practical matter, therefore,
The foundational case governing the duty of witness disclosure is Izazaga, supra, 54 Cal.3d 356. There, our Supreme Court held that “the prosecution‘s right to discover defendant‘s witnesses under
1. Raju‘s Legal Position That He Had No Duty Under Section 1054.3 To Disclose to the People Fletcher‘s Identity Or Statements Taken From Her Was Not Taken Without Good Cause Or Substantial Justification
Until our decision today, no case has addressed whether a criminal defense lawyer in a multidefendant case is duty bound to disclose under
With no clear guidance on the discovery obligations of defense disclosure in co-defendant cases, Raju took the position he had no independent obligation to disclose a witness statement taken by his investigator from Fletcher, a witness called by Lemalie, until she gave testimony inconsistent with that statement, thus requiring him to call his investigator for impeachment. Citing Tillis, Hubbard, Andrade, Wade, and Izazaga, Raju insisted that any obligation he had to make disclosures about Fletcher would not ripen until he announced an intent to call her as his own witness or cross-examined in the same area that Trevisan had covered. Until then, he contended, his duty of loyalty to his client obligated him not to make any disclosures about Fletcher.
The trial court rejected this position, citing the general discussion of relevance in a criminal discovery treatise, the overall purpose of Chapter 10 to promote the truth-seeking process, and specifically relying on Littlefield as it ultimately did again in its post-trial sanctions order. Over a work product objection from Raju, the court ordered him to produce the notes, explaining its ruling as follows: “I think those notes should be given over . . . . [¶] . . . [¶] It‘s not Ms. Trevisan‘s witness. It, candidly, is your witness, although Mr. Goldrosen happened to call your witness. [¶] . . . [¶] Quite frankly, you‘re the one that first came up with this witness months ago. [¶] . . . [¶] This has been your witness until Mr. Goldrosen got wind of it. [¶] . . . [¶] Mr. Raju, what I don‘t think you get to do is witness after witness have them and hope that Mr. Goldrosen is going to call them, and then you can ‘cross examine,’ and I‘m saying that in quotation marks[,] [¶] . . . [¶] and not be required to give over your discovery that I think you‘re required to give over by the statute. [¶] . . . [¶] I‘ve made my record, and I‘m just going down looking at
For purposes of criminal discovery under Chapter 10, core “thoughts and impressions” work product is exempt from
The concluding paragraph of the sanctions order recites the phrase “without good cause or substantial justification,” but never examines what those words mean. Giving content to the phrase “without good cause or justification” in the criminal discovery context requires us to bear closely in mind, as the Supreme Court cautioned in its seminal decision in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Marriage of Flaherty), that a balance must be struck “that will ensure both that indefensible conduct does not occur and that attorneys are not deterred from the vigorous assertion of clients’ rights.” (Id. at p. 648.) If courts are too quick on the trigger with money sanctions against advocates, as the Court cautioned in Marriage of Flaherty, it “would inject undesirable self-protective reservations into the attorney’s counselling role,” and prevent counsel from devoting their entire energies to their clients’ interests.” (Id. at p. 647.) The Legislature signaled a sensitivity to these concerns by including an “advocacy” exception to
For help in interpreting the phrase “without good cause or substantial justification,” Marriage of Flaherty is perhaps the most important guidepost, but there is additional, more specifically pertinent civil authority to draw upon as well. A number of civil statutes use the language “without substantial justification” as a trigger for fee awards against counsel (see Tetra Pak, Inc. v. State Bd. of Equalization (1991) 234 Cal.App.3d 1751, 1763, fn. 5 [“[t]he phrase is enjoying quite a vogue as the benchmark for sanctions“]),18 and under those statutes courts have consistently held that the term ” ‘[s]ubstantially justified’ ” means ” ‘not necessarily a prevailing position’ but one which is ‘justified to a degree that would satisfy a reasonable person’ or . . . has a ’ “reasonable basis both in law and in fact.” ’ ” (Lennane, supra, 51 Cal.App.4th at pp. 1188–1189.) Indeed, where “reasonable minds could . . . differ,” an accused attorney’s
We have no trouble concluding that reasonable minds could have differed about whether, in this multiple defendant case, Raju had an obligation to disclose Fletcher under
2. The Trial Court Failed to Apply Izazaga Correctly
The second problem we see with the sanctions order is that the trial court, while quoting the relevant language from Izazaga in a recitation of applicable law, and reiterating the Izazaga standard in its conclusion, did not apply the standard correctly. This is evident from the court’s repeated paraphrase of Izazaga in the body of its analysis applying the law to the facts before it. Three times, it states that Raju’s duty to disclose was triggered because he “reasonably anticipated” calling Fletcher, omitting any mention of whether it was “likely” he would call her. It is also evident in several of the factors
In our view, the seven factors cited by the trial court in support of its sanctions order, singly and together, suggest at most that Raju knew it was possible his strategy of lying low and pointing Goldrosen to witnesses he knew possessed exculpatory information for Landers could fail, which might, at some point in the course of trial, depending on how the evidence came in, force him to call someone from Goldrosen’s witness list. But what might occur at trial was not the issue here. Under Izazaga, the issue was whether, when Raju delivered his opening statement, Raju reasonably
As things played out at trial, Raju not only executed the strategy he claimed to be following, he was successful with it. The trial court seems to have interpreted what Raju did as an elaborate ruse designed to disadvantage the People by hiding Fletcher, but we fail to see how. Fletcher had already been disclosed as a trial witness before the Court entered its March 13 discovery order. And at trial, the thrust of Landers’s defense—the most critical piece of which was that Eric Jones, not Solis, was the person running next to Landers in the video—came in through witnesses called by Goldrosen other than Fletcher. Thus, when, during the course of trial, Raju briefly called Fletcher as “his” witness at the court’s invitation after it sustained a single objection for exceeding the scope of cross-examination during a brief re-cross—an episode discussed in more depth below (see Section II.D.3.c., post)—Raju’s primary mission for Landers had already been accomplished. The handful of questions Raju posed to Fletcher at that point explored areas of detail relevant to the strand of his defense that was supportive of Lemalie’s theory of provocation, but that added nothing material to his effort to expose Trevisan’s interpretation of the video as flawed.21
3. The Trial Court’s Sham Cross Examination Theory Is Not Legally Viable on This Record
A third problem with the sanctions order is that it relies on the novel theory that a defense attorney’s professed strategy of calling no witnesses and relying solely on cross-examination may be declared a fraud after the fact, thereby justifying the inference post-trial in a sanctions proceeding that any witness who was subjected to the attorney’s “faux” cross-examination was “really” his witness for purposes of
a. The Cases on Which the Trial Court Relied: In Re Littlefield and People v. Jackson
The trial court cites Littlefield, supra, 5 Cal.4th at page 136, a single-defendant case, where our Supreme Court found that a defense attorney’s in-court conduct revealed his intention to call a witness, despite his protestations of uncertainty. (Ibid.) The witness in question, the only “person . . . whom the defense possibly would call as a witness at trial” (id. at p. 127), had appeared in court on the day set for trial. When the trial was continued, defense counsel asked the court to order her back to court. (Id. at p. 126.) While constitutional challenges to Chapter 10 were still pending in the Supreme
The court also cites Jackson, supra, 15 Cal.App.4th 1197, another single defendant case, but overreads it. In Jackson, the defense in a drug possession case tried to call a previously undisclosed investigator to testify to a hearsay statement taken from a witness who claimed the drugs were hers, not the defendant’s. The scenario there was a true ambush situation, since the defense had known about the witness statement for three months and the witness was called by surprise after the prosecution had rested. (Id. at p. 1200.) Presented on appeal was the trial court’s decision to preclude the proffered witness under
In the abuse of discretion section of the opinion, the appellate panel framed two issues, either one of which would have been sufficient for affirmance. First, was the omission willful, thus justifying preclusion of the proffered testimony as a sanction for nondisclosure? Second, did the state face such severe prejudice from surprise that no
We fail to see what tactical advantage Raju stood to gain here, or did gain, by attempting to evade any discovery obligation to disclose Fletcher under the reciprocal discovery order, given the fact that, by March 13, Fletcher had already been disclosed as a trial witness for Lemalie. The People could not have suffered any disadvantage simply because Raju failed to disclose her again. In the weeks before trial, Trevisan knew Fletcher would likely testify and nothing stopped her from tracking Fletcher down or doing whatever else she needed to do to prepare for Fletcher’s testimony. This is not a case, as Littlefield was, involving a defense lawyer’s willed ignorance of a witness’s whereabouts, employed as a calculated means of blocking the People’s pretrial access to the witness. Nor did the way Raju handled the issue of disclosure suggest anything
There may have been considerable unpredictability to this type of defense strategy, since, if Goldrosen did not go along, Landers might be left with no choice but to call one or more of these witnesses for the critical fact, unique to his defense, that Solis was not the person seen running on the video tape, and he might be precluded from calling any of them. But based on the circumstances known to Raju when he gave his opening—with Fletcher having been disclosed by Goldrosen, and with the chance Goldrosen could be convinced to disclose one or both of the Jones brothers as well—it is unreasonable to conclude he thought it was likely he would have to call any of these witnesses. Both Littlefield and Jackson involved witnesses about whom, if the lone defendants in those cases did not call them at trial, there was no reason to expect anyone would. It is an unexceptional proposition that a defendant with no recourse but to call a particular witness violates
b. The Cases the Trial Court Overlooked: Sandeffer v. Superior Court and People v. Tillis
More pertinent than Littlefield or Jackson, in our view, are two other cases—Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672 (Sandeffer) and Tillis, supra, 18 Cal.4th 284. The sanctions order does not consider Sandeffer, and cites Tillis only in passing, without discussion. In Sandeffer, a Fourth District panel reversed an order compelling the production of information and reports of an expert before she was identified by defense counsel as a trial witness. (Id. at pp. 674–675.) Citing Littlefield, the Sandeffer court began from the premise that a trial court “may order defense counsel to produce information or materials the court reasonably finds have been improperly withheld, notwithstanding counsel‘s protestations to the contrary,” but then emphasized
Sandeffer would be enough to justify reversal here on its own terms, since it calls for a degree of deference to defense counsel’s discretionary judgment about whether to call witnesses. But even if we took a different view, we could not simply disagree with it, or look past it, as the trial court did. The Supreme Court embraced Sandeffer in Tillis, supra, 18 Cal.4th at page 293, upgrading it as precedent and adding another independent reason to reverse. Tillis involved a situation in which Stephen Pittel, a defense expert in a drug case, was confronted on cross examination with a prior arrest for drug usage. (Id. at pp. 288-289.) Defense counsel did not know about the arrest, claimed surprise, and took the position that the prosecutor breached his duty under
Central to the Tillis Court’s reasoning was the holding in Sandeffer, which it adopted as an appropriate rule of appellate review. The Court explained that “[t]o establish on appeal a violation of
The circumstances here provide a good illustration why it is perilous to try to reverse-engineer what a defense attorney “must have intended” with respect the calling of witnesses based on exculpatory information the attorney knew at some specific point in time prior to trial. Raju’s interest in proving facts he knew Fletcher had tells us very little about whether he intended to call her, or anyone else, to prove those facts. To assess that issue on this record, Raju’s declared intent at the time he was alleged to have violated his obligations under
In the end, Raju claims, he thought Fletcher was more helpful to Lemalie than to Landers. That gave him options. He could call Fletcher, or he could try to persuade Goldrosen to call her while continuing to investigate other leads. He chose the latter course, risky though it was. Ultimately, the call he made bore fruit when he found and relayed information to Goldrosen about the Joneses as well. Raju’s pursuit of this strategy helped Goldrosen’s client, and his own—the crucial evidence for Landers, unique to Landers’ defense, came in through Wesley Jones under direct examination by Goldrosen—while at the same time ensuring that all witnesses with potentially exculpatory information on the misidentification issue were disclosed to the People as soon as a decision to call them was made. We see nothing nefarious here. Instead, what we see is a typically fast-moving, fluid series of investigative events, requiring close judgment calls on less than full information in the weeks before trial and continuing during trial itself. The Sandeffer rule wisely accommodates this type of situation.
c. The Sham Cross-Examination Theory Relied On By The Trial Court Is Unsupported by Substantial Evidence, And As Applied Here, Violates Due Process
Not only is the trial court’s theory of sham cross-examination inconsistent with Sandeffer and Tillis, it is unsupported by substantial evidence on this record. Save for a single occasion near the end of Fletcher’s testimony, the People interposed no objections to the form of any of Raju’s cross-examinations of any witness; nor did the trial court make any sua sponte rulings or give any admonitions warning Raju that his approach to cross-examination was improper. Given the total absence of any objective evidence to support the charge that Raju’s claimed strategy of eliciting facts favorable to Landers on cross-examination was feigned, we must conclude that the one instance the court does
Citing
Following up on various topics opened up by Goldrosen and Trevisan, Raju’s cross-examination and re-cross examinations touched on the relationships with one another of various people living in the area (including Landers); how much Fletcher knew about Landers’s personal background (such as his age, his job in the area, people he knew); the gun-pointing incident in a neighborhood park; whether Landers ever took “his little brothers” to the park where Fletcher’s mother and grandmother were threatened; and, after showing Fletcher some photographs, whether she recognized the area in which the photos were taken as Kamille Court and Treat. He did not ask Fletcher about who was depicted running on the video tape.
For most of Raju’s cross-examination, neither Trevisan nor Goldrosen objected on grounds that Raju’s questions went beyond the scope of direct, and Goldrosen never did. The first and only such objection, by Trevisan, came near the end of the final round of cross examination and re-cross examination of Fletcher on April 9. During this final round of questions, Trevisan elicited details about the gun-pointing threat to Fletcher’s mother and Grandmother, a threat which was carried out by a man dressed in a white sweater and a hood. At that point, Raju conducted a third round of re-cross examination,
Even if it were clear, contrary to what the record shows, that “[a]ll of [Raju’s questioning of [Fletcher] was outside the scope of direct,” as the trial court found—without reference to any particular questions—
Nor is it correct to say that because Raju accepted the court’s invitation to call Fletcher on re-cross, he therefore called her in the sense of sponsoring her as a witness in support of an affirmative case for Landers. Fletcher was physically still on the witness
Though nearly eight decades old, People v. Melone (1945) 71 Cal.App.2d 291, the case cited by the trial court to support its sweeping, after-the-fact finding that Raju violated
The trial court found that “[a]s in Melone, Mr. Raju tried to substantiate his case, under the guise of cross-examination [of Fletcher], with questions that did not relate to Mr. Goldrosen’s direct examination.” But unlike that case, when Trevisan finally
We hardly need point out that objections to the form of examination are forfeited unless asserted contemporaneously, which serves the salutary purpose of giving the court the opportunity to rule question-by-question—thereby producing a meaningful record for review—while giving the questioner notice of any defects in the mode of questioning, and an opportunity to cure. Arbitrarily bypassing this basic rule of forfeiture so that, after the fact, and without warning, the examining attorney may be sanctioned for failing to disclose a witness he claims he never intended to call, and did not call, goes beyond the accepted norms of trial practice Raju may be charged with knowing. It also produced effectively unreviewable findings, since we have nothing but a sweeping conclusion that we cannot test against anything in the record, except by guess. In addition to all of the other flaws identified above, we must therefore conclude not only that the sham cross-examination theory lacks support in the record, but as applied here it violates due process. (See Marriage of Flaherty, supra, 31 Cal.3d at p. 654 [“Due process, fundamental fairness and the integrity of our judicial system all require that counsel be permitted to pursue their clients’ interests with the confidence that they will not be singled out at random for sanctions.“].) Levying sanctions on this ground may not have been as random as the proverbial bolt from the blue, but it was close.
4. Raju Had No General Obligation to Disclose Exculpatory Information He Expected to Come From Witnesses Called by Lemalie.
The final link in the chain of reasoning on which the sanctions order rests is the trial court’s finding that “Raju hoped to circumvent the court’s [reciprocal discovery] order by arranging for Goldrosen to contact Ms. Fletcher and include her on his witness and list. This, he believed, enabled him to thwart his discovery obligations and elicit evidence under the guise of cross-examination.” To support its conclusion that Raju’s efforts to have Goldrosen call Fletcher amount to sanctionable discovery abuse, the court relied heavily on findings concerning what Raju knew about Fletcher prior to trial, how he knew it, when he learned it, his assessment of its importance to his defense of Landers, and the steps he took to facilitate Goldrosen’s interview of Fletcher, which were the very circumstances Raju and Goldrosen shared with the court on a confidential basis, in camera, on March 28.
At the time Raju delivered his opening statement—and at the time the court first adopted its sham cross-examination theory, on April 4 (see ante, pp. 19–20)—what he knew about Fletcher, his view of her as a witness, and his communications with Goldrosen about her, all constituted core “thoughts and impressions” work product, protected from discovery under
To the extent the court’s March 13 discovery order purported to compel Raju to disclose to Trevisan all exculpatory information he knew Fletcher possessed, whether or not he had any intent to call her—which is what prong 4 of that order does, on its face—the sanctions imposed here under
It may well be the case, indeed we have no doubt it is the case, that Trevisan was intensely curious about how and why in opening statement Raju displayed such a detailed knowledge of the evidence to come. But her felt need to know what Raju knew provided no basis to expect the disclosure of his storehouse of investigative knowledge. (
E. Raju’s Omissions During the In Camera Hearing
A major theme in the People’s defense of the sanctions order against Raju is that Judge Bouliane simply found his repeated claims that he had no intention to call Fletcher unworthy of belief. At the in camera hearing, Raju represented that all he knew about the Jones brothers came from someone named Talika, one of Goldrosen’s witnesses; Raju
Commenting pointedly on these statements, Judge Bouliane found in her sanctions order that what Raju represented was all he knew, in fact, was not “all the information he had.” While making this representation, Raju did not disclose that following opening statements, his investigator had determined the identities of Wesley and Eric Jones from the license plate in one of the surveillance videos. Raju also did not disclose that he had met with Wesley on March 21 and that Wesley said that he and his brother had been threatened by Solis, who was armed, just before Solis ran toward Lemalie and was shot. Nor did Raju disclose that he had personally met with Talika on at least two prior occasions (implying he must have known she was named Fletcher); and that she told him that she saw a Latino, later identified as Fuentes, brandishing a gun shortly after the murder.
These are troubling omissions. Any misrepresentation to a court by an attorney, affirmatively or by material omission, is wholly unacceptable, especially where it occurs in camera. But we have no occasion to address that issue here. Because we find the sanctions order is flawed on multiple grounds, legal and factual, we need not reach the question whether any statements or omissions by Raju during the in camera hearing violated his duty of candor to the court. Under
An adverse credibility finding based on the specific omissions the court highlighted in its sanctions order would not fill the legal and factual gaps in the rationale for imposing sanctions on this record. Without minimizing in any way the seriousness of the issue the People raise about the incomplete story Raju appears to have told the court in camera—an issue that potentially raises ethical concerns that are more serious in kind than simple discovery abuse—all we need say is that lack of candor with the court, at the in camera hearing or on any other occasion, was not the basis of the OSC or the sanctions order.
III. DISPOSITION
The order imposing sanctions against Manohar Raju in the amount of $950 is reversed.
Streeter, Acting P.J.
We concur:
Reardon, J.*
Lee, J.**
A145037/People v. Landers (Raju)
* Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
** Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial court: San Francisco City & County Superior Court
Trial judge: Hon. Anne Bouliane
Counsel:
Jeff Adachi, Public Defender (San Francisco), Matt Gonzalez, Chief Attorney, and Christopher F. Gauger, Deputy Public Defender for Objector and Appellant.
Laura Arnold for California Public Defender’s Association as Amicus Curiae on behalf of Objector and Appellant.
Brendon D. Woods, Public Defender (Alameda), and Brian Bloom, Assistant Public Defender as Amici Curiae on behalf of Objector and Appellant.
Elizabeth K. Barker, Supervising Attorney and Garrick Byers, Special Assignment Attorney for Alternate Defender Office of Contra Costa County as Amici Curiae on behalf of Objector and Appellant.
George Gascón, District Attorney (San Francisco), Louise Ogden, Assistant District Attorney, and Joseph Frislid, Assistant District Attorney for Plaintiff.