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)
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
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 put his hands in his waistband, appearing to grab a weapon, while yelling racially-charged taunts and beckoning nearby compatriots to back him up; that Lemalie was fearful, so he went in his house and grabbed a shotgun; that when he came out, Solis charged toward him at the corner of 26th and Treat, yelling threats and holding a metal object (Lemalie thought it was a gun, but it turned out to be a knife); and finally that, to save himself, Lemalie fired two shotgun blasts at Solis, killing him.
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,
B. Pretrial Investigation 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
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.
C. In Limine Motions and Discovery Order
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
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
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."
D. The Dispute Among Counsel Following Opening Statements
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.
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 knew store owners, including Omar Nadel, and had a friend, Luis Morales,
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
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.
Addressing specifically the accusations of discovery default, Raju argued he had no duty to disclose what he knew about who was shown on the video, and for emphasis, he added in any event that the video was evidence belonging to the prosecution, not the defense. At this point, Judge Bouliane halted the discussion, advising Raju, "this is a little disingenuous. Okay. We're stopping now. I want you to know that I'm aware. I have some concerns." She admonished Raju that if and when he had any witnesses who were not previously disclosed, he would have to talk to the court prior to calling them before the jury.
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 contempt, a jail sentence of up to five days, and a disciplinary report to the State Bar.
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 good, clever in no negative sense. That's good, clever, effective, artful advocacy." Keane pointed out that Raju did, in fact, turn over the witness statement when directly ordered to do so by the court. He pointed out that Raju also followed the advice of his supervisor, Robert
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 Code of Civil Procedure section 177.5, she found Raju violated the order in one respect, a violation she characterized as "the most obvious." That single violation was for failing to identify Fletcher as a witness as required by section 1054.3. Judge Bouliane acknowledged Raju's argument that Goldrosen called Fletcher as Lemalie's witness, but based on the test enumerated in Izazaga v. Superior Court (1991)
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 hoped to avoid his discovery obligation by first persuading Goldrosen to call Fletcher as his witness and then relying on Goldrosen's assertion that he was going to call her as his witness at trial.
Raju timely appealed.
A. Standard of Review
Code of Civil Procedure section 177.5 provides in relevant part, "A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification." Code of Civil Procedure section 177.5"is fully applicable to both criminal and civil matters." ( People v. Tabb (1991)
"The proper approach for evaluating" the appeal of a sanctions order entered against an attorney under Code of Civil Procedure section 177.5 is to apply its "requirements for knowing violations of valid court orders, together with the applicable Rules of Professional Conduct" and the rules of practice or procedure the sanctions order seeks to enforce. ( Conservatorship of Becerra (2009)
B. Reciprocal Discovery in Criminal Cases
The statutory scheme governing reciprocal discovery in criminal cases was added to the Penal Code by Proposition 115 in 1990 and may be found at Penal Code, Title 6, Chapter 10 (§ 1054 et seq.) (Chapter 10). "The purpose of [Chapter 10] is to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare
Chapter 10 is designed to be an exclusive statutory vehicle for discovery in criminal cases. (See § 1054, subd. (e) ["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"]; § 1054.5 ["[n]o order requiring discovery shall be made in criminal cases except as provided in this chapter"].) Thus, courts are "preclude[d] ... from broadening the scope of discovery beyond that provided in the chapter or other express statutory provisions, or as mandated by the federal Constitution. ... [I]f none of those authorities requires disclosure of a particular item of evidence, [courts] are not at liberty to create a rule imposing such a duty." ( People v. Tillis (1998)
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 section 1054.3 in this case, we address a threshold issue concerning the availability of post-trial sanctions to address discovery violations alleged to have occurred at trial or earlier. Citing People v. Bohannon (2000)
Bohannon addressed only the remedies "necessary to enforce the provisions of" Chapter 10, which include "immediate disclosure, contempt
Code of Civil Procedure section 177.5 confers on trial courts a limited but important reservoir of power to address affronts to the court's authority, one carrying less wallop but more freely available than the power of contempt. Sanctions under Code of Civil Procedure section 177.5 may be used as a deterrent and imposed for punitive purposes, not simply for prospective enforcement. ( Woodham , supra ,
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)
The foundational case governing the duty of witness disclosure is Izazaga , supra ,
Until our decision today, no case has addressed whether a criminal defense lawyer in a multidefendant case is duty bound to disclose under section 1054.3 a witness he claims he does not intend to call, but reasonably anticipates a codefendant is likely to call. The trial court first addressed this issue on April 4, during Fletcher's testimony. On March 10, Goldrosen had disclosed Fletcher as his witness, and he later provided discovery concerning interview statements he and his investigator took from her. On cross-examination
With no clear guidance on the discovery obligations of defense disclosure in codefendant 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
For purposes of criminal discovery under Chapter 10, core "thoughts and impressions" work product is exempt from section 1054.3 disclosure. ( Izazaga , supra ,
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 section 1054.3, at the time he delivered his opening statement or at any other point in this trial. In the face of considerable uncertainty in the law,
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 the court took into account in drawing the conclusion Raju's duty to
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 anticipated it was likely he would be calling Fletcher, someone who it is undisputed he evaluated as a problematic witness and his supervisor advised him not to call. By conflating "possibility" with "likelihood," the trial court determined, essentially, that Raju's claimed minimalist defense strategy was a sham designed to evade his discovery obligations. We cannot agree that it was.
As things played out at trial, Raju not only executed the strategy he claimed to be following, he was successful with it. The
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 section 1054.3 all along, regardless of who called the witness to the stand, thus triggering exposure to sanctions. As applied here, the notion is that Raju's "in-court conduct" (cross-examining Fletcher beyond the scope of direct in one instance) combined with his "statements" (repeated insistence that he, in fact, intended to elicit exculpatory evidence on cross examination), and the state of his pretrial knowledge (he had long known Fletcher had exculpatory information), provide a basis to infer that he must have intended to call Fletcher from the outset of trial. Whatever viability this theory may have on some other record, we conclude that the findings the trial court made in support of it here, as a matter of law, do not make out a violation of section 1054.3.
The trial court cites
The court also cites Jackson , supra ,
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
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 deceptive or untoward. He chose to inform Goldrosen of the existence of Fletcher (and subsequently of Wesley and Eric Jones) and helped locate these witnesses in order to further Landers's interests, knowing if he successfully steered Goldrosen toward calling them, they would be disclosed to Trevisan, which is in fact what happened.
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
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)
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 ,
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 section 1054.1, subdivision (a), in failing to disclose a witness, the record must affirmatively demonstrate that a specific witness or witnesses were known to and intended to be called by the prosecutor, but were undisclosed to the defense as required by the discovery chapter." ( Tillis , supra ,
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 section 1054.3 must receive the most weight under Izazaga , and to the extent Littlefield permits declared intent to be overridden, the compressed timeline and the unique contingencies Raju faced
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
Citing Evidence Code section 773, subdivision (b), the court found that "[a]ll of [Raju's] questioning of [Fletcher] was outside the scope of direct."
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, which he began by drawing Fletcher's attention to her prior testimony about "the person that you identified with what you described as a white sweater with a hoodie [who] pointed a gun at your mom and grandmother." Then, referring Fletcher to a photograph, he asked "Do you know what Dylan's grandmother looks like?"
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- Evidence Code section 773, subdivision (b), cited by the court, does not address the crucial issue here. While it is true that Raju's interest in Fletcher was not adverse to Goldrosen's, establishing an adverse relationship only governs the form of questioning (i.e., instead of being able to ask leading questions of the witness during cross, counsel may be required to observe the same rules that are applicable to a direct). (See Evid. Code, § 773, subd. (b).) The purpose of Evidence Code section 773 is to regulate the manner in which examination proceeds. A single, isolated violation of its strictures as to form tells us nothing whatsoever about whether, at some previous point in a trial, or before trial, the examining attorney may be said to have "intend[ed] to call" the witness as his own within the meaning of section 1054.3.
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 stand, under circumstances where she had been called originally by Goldrosen, and she remained on the witness stand appearing to the jury as Goldrosen's witness during his brief direct. When Trevisan objected on scope grounds, there could have been many reasons why Raju felt compelled, at that moment, to say yes to the court's invitation. Raju may have believed, for example, it was more prudent to accede to the court's prompting rather than decline or engage in argument in in front of the jury. But to conclude that he saw this moment coming from the outset of trial, or at any point in time before his final re-cross of Fletcher, is an unsustainable proposition. That he had no need to ask about the single topic he saw as essential to his defense-the issue of who was depicted running on the video tape-by itself, is enough to refute the idea that he intended to call Fletcher for purposes of section 1054.3.
Though nearly eight decades old, People v. Melone (1945)
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 interposed a beyond-the-scope objection here, she did not seek an order barring further cross-examination, the remedy invoked in Melone . Rather, Raju chose the unremarkable course not to debate the matter and instead concluded his re-cross with a handful of questions in the form of direct examination, an option any experienced cross-examiner knows is an accepted way of meeting a scope objection-if it is permitted by the court, which it was here. The bottom line is this: We do not think it fair to infer from this fleeting episode that Raju intended all along to call Fletcher on direct, but we do think it fair to infer that, had there been a genuine basis to invoke the remedy of preclusion on grounds of prejudicial surprise, Trevisan would have requested it. She never did.
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.
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
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. 515-17)-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 section 1054.6 and Code of Civil Procedure section 2018.030, subdivision (a). During trial, well before Raju sought the unsealing of the March 28 in camera transcript and filed declarations revealing his strategic thinking in great detail, thus waiving any confidentiality protection at that point, the court expressed concern about Raju's failure to disclose to the People exculpatory information his opening statement revealed he knew, telling him "it's absolutely clear that you never provided possibly exculpatory information that you had[.]"
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 Code of Civil Procedure section 177.5 cannot stand because the underlying order went
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. ( Code of Civ. Proc. § 2018.020, subds. (a), (b) ; Coito , supra ,
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
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 section 1054.3, we have concluded Raju did not have a duty to disclose all he knew about Fletcher to the prosecutor because, at the time of his opening statement, and at all points thereafter in the course of the trial, he did not intend to call her, he did not reasonably anticipate any likelihood of calling her, and he did not have a general duty to disclose exculpatory information.
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.
The order imposing sanctions against Manohar Raju in the amount of $950 is reversed.
We concur:
Reardon, J.
Lee, J.
Notes
Unless otherwise specified, all further statutory citations are to the Penal Code.
Landers appealed his gun conviction, which we affirmed in an unpublished opinion. (People v. Landers (May 31, 2017, A142513) [nonpub. opn.].)
As authority for these discovery orders, Trevisan cited, respectively, for no. 1, section 1054.3, subdivision (a); for no. 2, section 1054.3, subdivision (a), Thompson v. Superior Court (1997)
The same accusations of discovery non-compliance by Raju surfaced again at later points in the trial, most concretely during Fletcher's testimony. But before Fletcher took the stand, one other instance is particularly notable. On March 26, in a colloquy outside the presence of the jury, Judge Bouliane inquired of counsel, "Let me just ask you where are we on the witness issues?" That led to a lengthy discussion in which Trevisan repeated her lack-of-discovery objections and suggested Raju was planning to present "surprise witness[es]." In further discussions with counsel outside the presence of the jury on March 28, Judge Bouliane indicated "I reviewed again the opening statements, and I have some concerns that some specific witnesses were mentioned, in particular Jones, the previous client, Mr. Raju, of yours in your opening statement without any discovery being given over." Raju and Goldrosen then made confidential in camera proffers to try to explain the circumstances under which Raju had relayed information about Fletcher and the Jones brothers to Goldrosen, which both defense attorneys told the court arose as a result of late-breaking investigative developments and involved no coordinated plan between them. These in camera proffer sessions were purely record-making exercises. The court made no ruling following their completion. And because they took place at counsel's request for the express purpose of sharing core work product information with the court (see section 1054.7), the transcripts were sealed.
The motion pulled no punches. The People contended that "Mr. Raju's abuse of the discovery process could not be more egregious. At a minimum," they claimed, "he failed to [disclose] any of the evidence discussed in his opening statement prior to March 20, 2014. Mr. Raju violated both the self-executing obligation of reciprocal discovery under California law, and under the Court's express order to produce any and all discovery Mr. Raju would rely on for trial, entered on March 13, 2014." Despite the March 13, 2014 discussion Judge Bouliane had with all counsel about the importance of pretrial disclosures, the People argued, "Raju never produced any evidence prior to trial." The People contended that Mr. Raju must have known how he would respond to the People's herding theory "long before" entry of the March 13, 2014 reciprocal discovery order. But "even assuming Defendant [sic .] argues that he did not 'reasonably intend' to introduce the evidence prior to opening statement, which is laughable, Defendant [sic .] never even produced the evidence until defense witnesses were testifying, if at all."
Before submitting his opposition to the OSC, Raju moved to unseal the confidential in camera proffers he and Goldrosen made to the court on March 28. That motion was granted.
We granted the requests of the Alameda County Public Defender, the Alternate Defender of Contra Costa County, and the California Public Defender's Association to file amicus curiae briefs. Each filed a brief, and the District Attorney filed a separate response to each amicus.
Code of Civil Procedure "[s]ection 177.5 was enacted in 1982 at the request of the superior courts of Los Angeles and San Diego Counties. (Enrolled Bill Mem. Assem. Bill No. 3573, dated September 23, 1982.) According to the author of the bill and its proponents, [the statute] was enacted to 'insure all parties are present and prepared for court appearances' and 'to help eliminate unnecessary delays in civil proceedings.' (Enrolled Bill Report, AB 3573)." (Seykora v. Superior Court (1991)
The idea that a mere difference of opinion between the appellate and trial courts will not justify reversal of a sanctions order under Code of Civil Procedure section 177.5 reflects the practical reality that sanctions determinations often involve " 'fact-intensive, close calls.' " (Cooter & Gell , supra ,
People v. Thompson (2016)
Section 1054.6 provides, "[n]either the defendant nor the prosecuting attorney is required to disclose any materials or information which are work product as defined in subdivision (a) of Section 2018.030 of the Code of Civil Procedure, or ... are privileged pursuant to an express statutory provision, or are privileged as provided by the Constitution of the United States." (See Izazaga , supra , 54 Cal.3d at pp. 381-382 & fn. 19,
Section 1054.5, subdivision (a) was not cited by the People in their pretrial motion to compel discovery, or by the trial court when it granted the motion orally, but given the exclusivity of the statutory scheme, this specific provision was necessarily the source of the court's statutory authority to issue an order a week before trial enforcing the defendants' discovery obligations. Whether that order was properly entered under section 1054.5, subdivision (a), has not been raised as an issue in this appeal. We assume that it was, all procedural objections to its entry having been waived. We note, however, that nowhere in the record is there any indication that, prior to seeking it, the People made an "informal request" for the section 1054.3 disclosures they now claim were never made. (See § 1054.5, subd. (b) ["Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information."].)
"Although Izazaga ... involved the requirements for disclosure by the defense under section 1054.3, rather than ... by the prosecution under section 1054.1, the relevant language of both sections is identical. Given the 'manifest intent' of the electorate to create a reciprocal system of obligations ... [the Court interpret[s] this aspect of the two statutes identically." (Tillis , supra ,
The key difference is that the weaker form of protection, the qualified work product privilege, Code of Civil Procedure section 2018.030, subdivision (b), is not available in the criminal setting. "[S]ection 1054.6 expressly limits the definition of 'work product' in criminal cases to 'core' work product; that is, any writing reflecting 'an attorney's impressions, conclusions, opinions, or legal research or theories.' Thus, the qualified protection of certain materials under [former] Code of Civil Procedure section 2018, subdivision (b) [now § 2018.030, subd. (b) ], applicable in civil cases, is no longer available in criminal cases. The more recent statute limiting the definition of work product in criminal cases carves out an exception to the older work product rule applicable to civil and criminal cases alike." (Izazaga , supra ,
The OSC does not cite failure to comply with the April 4 order to turn over Kingston's notes as a basis for potential contempt or sanctions. Nor does the sanctions order rely on failure to comply with that order as a basis for imposing sanctions.
"This power shall not apply to advocacy of counsel before the court." (Code Civ. Proc. § 177.5.)
Cf. Strickland v. Washington (1984)
Code of Civil Procedure sections 2023.030, subdivision (a) and 2023.010, subdivisions (g) and (h) (sanctions for discovery misuse under Civil Discovery Act); see Doe v. United States Swimming, Inc. (2011)
Diepenbrock v. Brown (2012)
It is not an overstatement to say that the Izazaga "intent to call" standard marks a constitutional boundary. In that case, Chapter 10 was attacked as facially unconstitutional on the ground, among others, that its scheme of mandatory witness disclosure violates the Sixth Amendment because it has the effect of "chilling defense counsel's trial preparation." (Izazaga , supra ,
To be sure, the trial court found that Raju cross-examined Fletcher on certain background points he could not have known Goldrosen would ask about (such as Landers's age, his reason for being in the neighborhood, and his relationships with people in the neighborhood), all of which were apparently designed to humanize him and inoculate himself against any suggestion by the People that he too was a gang member. But the issue for Raju was not whether Goldrosen would ask Fletcher the questions Raju would ask on Landers's behalf. Rather, the issue was whether the subject matter opened for Raju's cross-examination-by Goldrosen's direct examination, and by Trevisan's cross-examination, collectively-would be broad enough to allow inquiry on Landers' behalf into these background matters. It is far from clear on this record how predictable that was in advance, as illustrated by the fact that, when Raju did explore them, Trevisan did not view the inquiry as particularly material, because she made no motion to strike, and, except for a single instance, failed to object on exceeding the scope grounds. In fact, her failure to object on scope grounds points to a separate defect in the sanctions order, which we discuss below. (See Section II.D.3.c., post .)
(See Jackson , supra ,
The sanctions order in this case quotes a cautionary comment from the Tillis that "[t]he rule of appellate review we announce today does not license counsel to temporize about his or her intentions in the face of clear indications on the record that counsel in fact intends to call a particular witness." (Tillis , supra ,
The significance of Raju's follow-up questioning about the issue of threats against Fletcher's mother and Dylan's grandmother at gun-point in the park had nothing to do with the issue of Trevisan's having mistaken the identities of the runners on the videotape, but instead lent further support to Goldrosen's theory of armed provocation. A subtheme Goldrosen's self-defense case, elicited by him from Fletcher and a number of other witnesses, was to portray Fuentes as someone who was known for indiscriminately threatening people in the neighborhood with a gun. To Goldrosen, it didn't matter whether the jury thought Lemalie felt threatened by Solis or Fuentes. They were both dangerous and potentially lethal, in his view of the facts for Lemalie.
Talika Fletcher is sometimes referred to as Talika Jones, her birth name, and sometimes as Talika Fletcher, since Fletcher is the surname of her late father. Her mother is Joyce Allen. She identified herself as Talika Fletcher at trial.
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.