People v. Landers (2019) · DecisionDepot

People v. Landers

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Court of Appeal Feb 7, 2019 No. A145037MPublished

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Holding. The court held that a defense attorney did not violate a reciprocal discovery order by failing to disclose a witness he did not intend to call, even if he later cross-examined that witness after she was called by a co-defendant.

Issues

Whether a defense attorney violates a reciprocal discovery order by failing to disclose a witness he does not intend to call in his own case-in-chief.
Whether an attorney's cross-examination of a co-defendant's witness triggers a retroactive discovery obligation for that witness's statements.

Disposition. reversed

Quotations verified verbatim against the opinion

“We conclude Raju did not violate the reciprocal discovery order, and accordingly, shall reverse the sanctions order.”

Filed 2/7/19 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff, A145037 v. ADRIAN LANDERS, (City & County of San Francisco Super. Ct. No. 221100) Defendant; MANOHAR RAJU, Objector and Appellant.

THE COURT:

It is ordered that the opinion filed herein on January 14, 2019, be modified as follows:

1. On page 3, in subheading “B” entitled “Pretrial Investigation and Discovery by the Defense”, delete the words “and Discovery.” 2. On page 8, in the first sentence that starts with “Addressing specifically to the accusations of discovery default,” delete the word “to” so the phrase reads, “Addressing specifically the accusations of discovery default,”. 3. On page 13, in the first paragraph, in the sentence that starts, “Alternatively, an abuse of discretion will be found if the factual findings underlying the order under review are factually unsupported,” delete the word “factual.”

The modifications effect no change in the judgment.

Dated: February 7, 2019 _______________________________ Acting P. J.

A145037/People v. Landers (Raju)

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.

Related research

& Gell v. Hartmarx Corp. (1990) 496 U.S. 384, 413 (conc. & dis. opn. of Stevens, J.) (Cooter & Gell).) Just as it is the duty of the court imposing sanctions to do so only when truly warranted, it is our duty on appeal to review the facts of such a case with great care to determine whether the sanctions were properly imposed. We thus recite the facts of this case in some detail. 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 Penal Code section 187, subdivision (a).1 The murder charge against Landers was discharged at the preliminary hearing due to insufficient evidence, but was later re-filed by amended information in early February 2014. A section 995 motion seeking to strike the amendment was heard and denied, and a few weeks later, on March 4, 2014, the case was assigned to Judge Anne Bouliane for trial. 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

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,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 2 Landers appealed his gun conviction, which we affirmed in an unpublished opinion. (People v. Landers (May 31, 2017, A142513) [nonpub. opn.].)

Latino waving a gun around after the shooting. They also offered background information about people involved, “some relevant and some not.” 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.

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. 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

knew store owners, including Omar Nadel, and had a friend, Luis Morales, who was mentoring Landers in auto mechanics in the neighborhood. 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.

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 Dunlap, a very experienced trial attorney, who had encouraged Raju to undertake a minimal defense in the case and advised him not to call Fletcher as a witness. 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) 54 Cal.3d 356, 376, fn. 11 (Izazaga), she rejected his contention, finding that Raju “reasonably anticipate[d]” calling Fletcher as his witness, that Raju’s intent to call Fletcher was formulated at the time of opening statements, and that “this omission was designed to gain a tactical advantage over the People and was done without good cause or substantial justification.” 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)

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) 82 Cal.App.4th 798, 806 (Bohannon), disapproved of on other grounds by People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, the Public Defender of Alameda County, as amicus for Landers, argues that the trial court lacked power to order monetary sanctions for a violation of section 1054.3, subdivision (a), after judgment became final. We disagree. 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. (§ 1054.5, subd. (b), italics added; see Bohannon, supra, at p. 805, fn. 8.) While the regime of affirmative disclosures imposed on both prosecution and defense under Chapter 10 is the exclusive statutory authority for discovery in criminal cases, the remedies for non-compliance, by the plain terms of section 1054.5, are not exclusive. And in Code of Civil Procedure section 177.5, the Legislature separately authorized the imposition of monetary sanctions for violation of a court order, civil or criminal. 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, 95 Cal.App.4th at p. 444.) We see no reason why jurisdiction to invoke Code of Civil Procedure section 177.5 ought not to continue post-trial. Quite the contrary, there are good reasons why it should, since disabling the power to impose monetary sanctions post-trial might have the unintended consequence—as the able and experienced trial judge here clearly recognized—of allowing mid-trial sanctions issues to distract from the more important work at hand during trial, which runs contrary to one of the stated objectives of Chapter

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, section 1054.3 “does not create a symmetrical scheme of discovery” (Hubbard, supra, 66 Cal.App.4th at p. 1170), at least not in the sense of an exact match on both sides. Chapter 10 “creates a nearly symmetrical scheme of discovery . . . , with any imbalance favoring the defendant as required by reciprocity under the due process clause.” (Izazaga, supra, 54 Cal.3d at p. 377, italics added.) For the defense, unless a claimed item of discovery falls within the express terms of section 1054.3, “there is no statutory or constitutional duty on the part of

cross-examination by Trevisan, Fletcher testified that Raju and his investigator had interviewed her long before trial, and when she described her recollection of seeing a man wielding a gun running around immediately after the shooting, they “wrote it down.” At a break in Fletcher’s testimony on April 4, there ensued a colloquy outside the presence of the jury as to whether any notes from Raju’s interview of her were discoverable under section 1054.3, even though he did not call her as a witness and disclaimed ever having any intention to do so. 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

Court, and without the guidance ultimately provided by that case (id. at p. 126), attorney Littlefield took the position that he had no obligation to acquire and disclose to the prosecution this witness’s address. No such issue is presented here. Unlike the defendant in Littlefield, Landers was not forced to call any particular witness or go without a defense. He could reasonably expect an array of witnesses to be called, each presenting him with an opportunity to elicit favorable testimony by cross-examination. Nor is this a case in which defense counsel temporized about his intention. Raju was always definitive that he did not intend to call Fletcher, which was fully consistent with the objective circumstances at trial, since Goldrosen, in fact, subpoenaed her, and Goldrosen, in fact, called her. 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 section 1054.5, subdivision (a), an issue the appellate court reviewed for abuse of discretion, but also for whether it violated the compulsory process clause of the Sixth Amendment. These two issues were discussed in separate sections of the opinion. (Jackson, supra, 15 Cal.App.4th at pp. 1203–1204.) The fact defense counsel knew well before trial that his surprise witness had exculpatory evidence—the aspect of the opinion the sanctions order relies upon—was central to the Jackson court’s rejection of the defendant’s compulsory process argument, but was nowhere mentioned in its statutory abuse of discretion discussion. (Id. at p. 1204.) 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

that “the determination whether to call a witness is peculiarly within the discretion of counsel.” (Sandeffer, supra, 18 Cal.App.4th at p. 678.) “Even when counsel appears to the court to be unreasonably delaying the publication of his decision to call a witness,” the court explained, “it cannot be within the province of the trial judge to step into his shoes,” even where “the court… suffer[s] understandable annoyance at perceived violation by defense counsel of the discovery provisions of the act[.]” (Ibid.) 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 section 1054.1 to disclose it as reciprocal discovery. (Id. at p. 289.) The Court of Appeal held that the prosecutor’s mode of cross examining Pittel—which was so detailed it suggested a classic a setup for impeachment—was an objective circumstance allowing an inference that the prosecutor must have had “ ‘witnesses or statements of witnesses concerning the arrest’ ” that he was prepared to use in the event the Pittel denied it. (Id. at p. 291.) Reversing, the Supreme Court held that was conjecture, insufficient to warrant inferring from it that the prosecutor reasonably anticipated the likelihood of calling an impeachment witness. (Id. at p. 292.) Central to the Tillis Court’s reasoning was the holding in Standeffer, 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, 18 Cal.4th at p. 293.)

rely upon is too slim a reed to support the conclusion that that Raju recognized the need to call her from the outset. 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.” We see nothing in the record to support that finding. Goldrosen, on direct, elicited from Fletcher that she lived at the intersection of Treat Way and Kamille Court, near 26th Street; that she recognized images on the video as having been taken in the area of that intersection; that she and Lemalie had grown up together in the neighborhood; that she recognized herself talking to her “God Auntie” on the video; and that there was a nearby park where, on the day of the shooting, she saw a “boy” who was always starting trouble, pointing a gun at “my mom and Dylan’s grandmother.” Trevisan, on cross, brought out that Fletcher had seen Landers “chilling” in the area that day, and that Landers, her nephew, who considered her his “favorite auntie[,]” had come to her house after the shooting. 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?”24 It was here that Trevisan objected for the first time on scope grounds, arguing that “[t]his is far beyond the scope of direct or cross,” despite the fact that, quite plainly, Raju was following up on a topic that had just been explored by her that day in completing her 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—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 24 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.

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) 71 Cal.App.2d 291, the case cited by the trial court to support its sweeping, after-the-fact finding that Raju violated Evidence Code section 773, subdivision (b), is instructive. There, the trial court excluded testimony of a witness who was being cross-examined by the appellant upon finding that the testimony was collateral and not related to the direct examination, after opposing counsel lodged a vigorous objection on exceeding-the-scope grounds. (Id at p. 298.) In excluding the witness from testifying further, the court found the attorney was seeking to elicit, through the cross-examination of the witness, evidence that had no bearing on the real issue in the case. (Ibid.) None of the cross-examination questions at issue, the Court of Appeal held, went to “matters [that] were referred to on direct examination.” (Id. at p. 299.) “ ‘A party who has not opened his case is not permitted to do so by propounding, under the guise of cross-examination, questions which relate, neither directly nor collaterally, to the subject matter of the original examination; if he wishes to propound such questions, he should, when permitted, call the witness as his own[,]’ ” subject to “ ‘the same rules as a direct examination.’ ” (Ibid.) 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. (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.

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 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 beyond the court’s statutory authority, invading core

work product. The cases cited by the People as support of prong 4 of the reciprocal discovery order (Lamb, supra, 136 Cal.App.4th at p. 580, Roland, supra, 124 Cal.App.4th at p. 165) do not support the order in the breadth it was entered. It was undisputed in Lamb and Roland that the defense intended to call the witnesses at issue there. The question presented was whether the obligation to disclose statements taken from those witnesses could be evaded by the simple expedient of not writing anything down, an issue not presented in this case. Both courts, unsurprisingly, held that such gamesmanship violates the rule in Littlefield, supra, 5 Cal.4th 122, since it is indistinguishable from the ostrich-like posture taken in that case by attorney Littlefield toward a witness his client had no choice but to call. 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, 54 Cal.4th at p. 496.) The reason Raju was so confident Solis was not to be seen on the video clip Trevisan showed the jury in her opening statement may have been simply that he was a 49ers fan and knew the numbers of the jerseys he saw, while she did not; or perhaps it was due to Raju’s investigative industry and effort; or maybe he had prior relationships with people in the neighborhood from past cases, even a past client. In the end it does not matter how he came to know what he knew. On this record, he had not obligation to disclose any of it, since there was no legally or factually supportable basis on which to conclude he reasonably anticipated a likelihood of calling Fletcher at trial. 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

further stated he did not even know Talika’s last name,25 that Talika identified Wesley in the video, and that she knew the person next to him was his brother. Raju stated, “That’s all the information she had, and that’s all the information I have, so it’s something I’m getting through cross-examination.” Raju told the court he had “no interest” in calling these individuals as witnesses and that any information he needed he would get through cross-examination. 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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

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