People v. Tillis

• Decision Date: 18 June 1998
• Docket Number: No. S060909,S060909
• Citation: 956 P.2d 409,75 Cal.Rptr.2d 447,18 Cal.4th 284
• Parties: , 956 P.2d 409, 98 Cal. Daily Op. Serv. 4691, 98 Daily Journal D.A.R. 6619 The PEOPLE, Plaintiff and Respondent, v. Marcellous Lee TILLIS, Defendant and Appellant
• Court: California Supreme Court

Page 447

75 Cal.Rptr.2d 447

18 Cal.4th 284, 956 P.2d 409, 98 Cal. Daily Op. Serv. 4691,

98 Daily Journal D.A.R. 6619

The PEOPLE, Plaintiff and Respondent, v. Marcellous Lee TILLIS, Defendant and Appellant.

No. S060909.

Supreme Court of California

June 18, 1998.

[18 Cal.4th 286] [956 P.2d 410] Stephen Temko, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

John T. Philipsborn, San Francisco, as Amicus Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, Justice.

In this case we must apply reciprocal discovery statutes adopted by the voters as part of Proposition 115 in the June 5, 1990, General Election. Specifically at issue is the requirement that the prosecution disclose to the defense the names and addresses, along with any relevant written or recorded statements, of all witnesses it intends to call at trial. (Pen.Code, § 1054.1, subds. (a), (f); all further statutory citations are to this code; see also § 1054.3 [defense disclosure duties].) ¹ In Izazaga v. Superior Court Because the impeachment information about which defendant complains falls outside the scope of section 1054.1, and because the record does not establish the existence of undisclosed evidence properly discoverable under that statute, we conclude the prosecutor committed no discovery violation. We further conclude the midtrial revelation of the impeachment evidence at issue here did not deny defendant due process. Consequently, we affirm the judgment, albeit on reasoning different from that employed by the Court of Appeal.

                (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304 (Izazaga ) we defined the quoted phrase as referring to all witnesses the prosecution " 'reasonably anticipates it is likely to call.' "  (Id. at p. 376, fn. 11, 285 Cal.Rptr. 231, 815 P.2d 304, quoting State v. Howard (1978) 56 Ohio St.2d 328, 331, 10 O.O.3d 448, 383 N.E.2d 912, 915.)   The Court of Appeal in the present case concluded the prosecutor violated section 1054.1 and denied defendant due process by failing to disclose, before trial, certain evidence used during cross-examination to impeach a defense expert witness.  The Court of Appeal inferred that, by engaging in a particular line of cross-examination, the prosecutor must have intended to call witnesses to establish the impeaching facts had the witness not admitted them.  The court therefore found violations of the discovery statute and due process, although it concluded defendant had suffered no prejudice
                

FACTS AND PROCEDURAL POSTURE

The facts of the crimes of which defendant was convicted are of minimal relevance to the issue before us, and will be briefly summarized. ² Defendant, in a stolen vehicle, drove two accomplices, Smith and Grant, to a car wash in Stockton, intending to shoot one Link Rhodes. Defendant parked behind a brick wall from which Smith fired several rifle shots in Rhodes's direction. Rhodes was unharmed, but shots killed the owner of an adjacent market and wounded three bystanders. While driving across town after the shooting, defendant stopped the car while Smith got out to point the rifle at a young boy, whose puppy Smith then stole.

Defendant admitted to police his involvement in the shootings, but claimed he had intended only to scare Rhodes. At trial, defendant testified he had used heroin habitually for two years, to and including the day of the shooting. Dr. Stephen Pittel, a psychologist, testified as an expert on the effects of heroin. Pittel opined defendant was a heroin addict whose abuse of the drug was related to a history of depression and possible brain damage. On cross-examination of Pittel, the following exchange occurred:

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

"A. Not as part of my research, no.

"Q. Have you been arrested for using drugs yourself?

"A. Yes, I have.

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

"A. Yes. "Q. And that was during a lunch break while you were testifying as an expert in a case, just like this case, right?

"A. Yes.

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

"A. That's correct.

"Q. Have you done any illegal drugs today?

"A. No.

"Q. And you are not under the influence at this time, is that right?

"A. No."

Defense counsel interposed no objection, and, after a brief redirect examination, a recess was taken. During the recess, defense counsel stated he was upset at not having been given notice the prosecutor planned to ask Pittel about his arrest. The prosecutor explained the information was proper cross-examination material, relevant to contradict a possible inference that Pittel might be affiliated with law enforcement and to show a pro-drug bias, but contended it did not fall within any of the categories of material discoverable under section 1054.1.

The trial court ruled the impeachment material relevant and admissible, and apparently concluded no authority required its discovery to the defense. The Court of Appeal disagreed, holding the prosecutor's failure to disclose the impeachment material both denied defendant the due process of law guaranteed him by the United States Constitution and violated the California criminal discovery statutes, section 1054 et seq. Finding the errors harmless, however, the Court of Appeal affirmed defendant's conviction. We granted the parties' petitions for review, limiting the issues to those relating to whether the prosecutor had the duty, under the applicable discovery principles, to disclose the impeachment evidence and, if so, whether the failure to do so prejudiced defendant.

DISCUSSION

Proposition 115 amended the California Constitution and Penal Code in numerous respects, among them to authorize reciprocal discovery in criminal cases. Section 30, subdivision (c), added to article I of the California Constitution by Proposition 115, declares discovery to be "reciprocal" in criminal cases. ("In order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the people through the initiative process.") Chapter 10 of title 6 of part 2 of the Penal Code, section 1054 et seq., also added by Proposition 115, governs the scope and process of criminal discovery. Portions of this chapter relevant to the present case are section 1054, providing for interpretation of the chapter to give effect to certain specified purposes, and section 1054.1, providing for discovery to the defense. Additionally, section 1054.3 prescribes discovery to the prosecution in language functionally identical to that at issue here. (Izazaga, supra, 54 Cal.3d at pp. 364-365, 285 Cal.Rptr. 231, 815 P.2d 304.)

Izazaga, supra, 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304, afforded this court a first opportunity to interpret and address the constitutionality of the statutory discovery provisions. We concluded the disclosure required of the defense pursuant to section 1054.3 does not violate the state and federal constitutional privileges against compelled self-incrimination (54 Cal.3d at pp. 365-372, 285 Cal.Rptr. 231, 815 P.2d 304); the statutory obligations on the defense and the prosecution are sufficiently reciprocal to satisfy due process (id. at pp. 372-378, 285 Cal.Rptr. 231, 815 P.2d 304); and the discovery statutes do not operate to deprive defendants of the effective assistance of counsel (id. at pp. 379-382, 285 Cal.Rptr. 231, 815 P.2d 304).

In the course of our due process analysis in Izazaga, supra, 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304, we made certain observations concerning statutory language identical to that with which we are presently concerned. ³ "[T]he prosecution's right to Both defendant and the Attorney General contend that, by adding a "reasonably anticipates" gloss to the statutory "intends to call" language, Izazaga decreed the application of an objective, rather than a subjective, standard in determining whether a duty of disclosure arises under section 1054.1 and, by analogy, section 1054.3. Both sides then proceed to argue whether, under this objective test, the record establishes the prosecutor reasonably anticipated calling witnesses to substantiate his cross-examination of Pittel. We conclude, however, that whether or not section 1054.1 mandates an objective or a subjective assessment of counsel's intent is not the dispositive question in this case. Rather, because the record does not demonstrate the prosecutor failed to disclose any discoverable material, and the undisclosed impeachment information fell outside the scope of the discovery statute, no discovery violation appears under any interpretation of the intent requirement.

                [956 P.2d 413] discover defendant's witnesses under section 1054.3 is triggered by the intent of the defense to call that witness.  Thus, the disclosure by the defense of its witnesses under section 1054.3 signals to the prosecution that the defense 'intends' to call those witnesses at trial."  (54 Cal.3d at p. 375, 285 Cal.Rptr. 231, 815 P.2d 304, italics in original.)   The prosecution, by the same token, "intends" to call any of its witnesses who will be used in refutation of the defense witnesses if called;  the same definition of "intends" applies to both parties.  (Ibid.) We noted in Izazaga:  "The Ohio Supreme Court defined the requirement that the prosecution disclose the witnesses it 'intends to call at trial' as including 'all witnesses it reasonably anticipates it is likely to call.  ...'  (State v. Howard, supra,

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