P. v. Ryder
Filed 7/26/12 P. v. Ryder CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JARRED P. RYDER,
Defendant and Appellant.
D060138
(Super. Ct.
No. SCE309940)
APPEAL from
a judgment of the Superior Court
of
County, William J. McGrath, Jr., Judge. Affirmed.
A jury
convicted Jarred P. Ryder of first degree
burglary of an inhabited dwelling (Pen. Code, §§ 459, 460).
formal probation and ordered him to perform 20 days of community service.
On appeal,
Ryder argues the late disclosure of the presence of a second police officer
during an interview with Ryder prejudicially violated the reciprocal discovery
statutes (Pen. Code, § 1054 et seq.), his rights to a fair trial and
effective assistance of counsel, and his due process rights under the
States Constitution. We affirm the
judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
On the
evening of March 28, 2011,
two men burglarized a converted garage located on property near Ryder's
residence. Later that evening, Ryder
spoke to the investigating officer, San Diego Deputy Sheriff Phillip Fuhr,
about the burglary. Ryder told Fuhr that
a friend named "Derek" came to the property earlier that evening with
two other men. Derek had called Ryder
earlier in the evening and told Ryder he wanted to rob the converted
garage. Ryder told him not to do it, but
Derek came over anyway. Ryder stood by
Derek's van and saw Derek go behind the garage with one of the other men,
remove the window from the back of the garage, and drop it to the ground,
causing it to break. Ryder saw Derek and
the other man make at least two trips from the garage to the van, carrying
various items. During these events,
Ryder stayed by the van. He told Fuhr he
was the "lookout" for the burglary.
Another
deputy, Cliff LaPlante, was at the scene as a cover officer and heard Ryder's
statement to Fuhr that he was the "lookout." However, Ryder's trial counsel and the
prosecutor did not know about LaPlante's presence during Ryder's interview with
Fuhr until Fuhr identified him as the interview cover officer in the course of
redirect examination at trial.
LaPlante's name is not mentioned in any of the police reports written by
Fuhr and provided to defense counsel by the prosecutor. LaPlante did not write any reports related to
the incident.
Ryder's
trial counsel sent pretrial discovery to the prosecution, asking for all
statements attributed to Ryder, a list of "all persons present during
which such statement[s] [were] made," and the names of "each law
enforcement officer and agency who was present during any questioning of
[Ryder]." Ryder's trial counsel did
not receive a response to these requests and prepared for trial under the
assumption that no one other than Fuhr was present at the time Ryder admitted
to being the lookout.
After Fuhr
testified regarding LaPlante's presence during Ryder's interview, Ryder's trial
counsel argued LaPlante should not be allowed to testify and moved for a
mistrial based on the late disclosure of LaPlante. He argued he would have advised his client to
accept a plea offer to felony grand theft made by the prosecutor before the
start of trial had Ryder's counsel known LaPlante was a witness. That knowledge would have affected his trial
strategy, and he would not have considered calling Ryder to testify.
The
prosecutor agreed not to present LaPlante as a witness in the People's
case-in-chief. However, were Ryder to
testify, the prosecution would call LaPlante as a rebuttal witness. The prosecutor also noted that were
LaPlante's presence known earlier, the State would not have made a plea offer
to Ryder the day before because LaPlante's presence strengthens the
prosecution's case.
The trial
court denied the mistrial motion,
concluding no irreparable damage had been done to Ryder's case and the jury has
not been prejudiced. The court would not
allow the prosecution to reopen its case-in-chief to call LaPlante. If Ryder testified, however, the court ruled
the prosecution could call LaPlante as a rebuttal witness and it would give a
limiting instruction to the jury regarding late discovery. Ryder's counsel decided not to call Ryder to
testify and the defense rested without presenting any evidence.
DISCUSSION
Ryder
argues the court's ruling on the late discovery of LaPlante's presence during
Fuhr's interview with Ryder was a prejudicial violation of the reciprocal
discovery statute (§ 1054.1), and the late discovery violated his
I
The
reciprocal discovery statute requires the prosecutor to disclose to the
defendant certain categories of evidence in the possession of the prosecuting
attorney or known to be in the possession of any investigating agencies. (§ 1054.1.) The prosecuting attorney shall disclose
"[t]he names and addresses of persons the prosecutor intends to call as
witnesses at trial."
(§ 1054.1, subd. (a).) These
disclosures shall be made at least 30 days prior to the trial, but "[i]f
the material and information becomes known to . . . a party within 30
days of trial, disclosure shall be made
immediately . . . ."
(§ 1054.7.)
Before a
defendant may seek court enforcement of any of the disclosures required under
section 1054.1, the defendant must make an informal request of the prosecutor
for the desired material and information.
(§ 1054.5, subd. (b).) On a
showing the prosecuting attorney has not complied with section 1054.1 and the
defendant has made an informal request for the desired material, "a court
may make any order necessary to enforce [the statute], including, but not
limited to, 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."
(§ 1054.5, subd. (b).) The court may also advise the jury of any
untimely disclosures. (
prohibit the testimony of a witness if all other sanctions have been exhausted
and it may only dismiss a charge if required to do so by the United States
Constitution. (§ 1054.5, subd.
(c).)
A violation
of section 1054.1 is subject to the harmless error standard established in
818. (People v. Verdugo (2010) 50 Cal.4th 263, 280.) Under this standard, a defendant must
demonstrate the error resulted in prejudice.
(Watson, at p. 834.) A reversal is required if the evidence
indicates it is "reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error." (Id. at
p. 836.)
If late
discovery implicates a defendant's constitutional rights, a reviewing court
evaluates whether the error is harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24; People
v. Gonzalez (2006) 38 Cal.4th 932, 961.)
Under the Chapman standard, "an otherwise valid conviction
should not be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a reasonable
doubt." (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 681.)
II
Ryder
claims the People prejudicially violated the reciprocal discovery statute when
LaPlante's presence during Ryder's interview was not disclosed until
trial. Although the People admit a
witness was disclosed late in the case, they do not concede section 1054.1 was
violated. The trial court acknowledges
the prosecutor has an obligation to respond to an informal discovery letter in
some fashion, for example, by calling the main officer and asking if anyone
else was present at the time the defendant was questioned. However, the trial court made no ruling about
whether the prosecutor's conduct violated section 1054.1 and we also decline to
reach any conclusion on this point.
Assuming
arguendo that the reciprocal discovery statute was violated, we conclude it did
not result in prejudice to Ryder under Watson. Ryder has not proven it is reasonably
probable that a result more favorable to him would have resulted had he known
about LaPlante's presence earlier in the case.
All the evidence points to the conclusion that the result would have
been less favorable to Ryder if
LaPlante's presence was known earlier.
For example, Ryder would not have received a plea offer and the
prosecution would have called both Fuhr and LaPlante to testify that Ryder made
an incriminating statement. We conclude
any error regarding the late discovery of LaPlante was harmless under the
abuse its discretion when it restricted the prosecution from calling LaPlante
in its case-in-chief and offered a limiting instruction were LaPlante to
testify in rebuttal.
name="_ftnref2" title="">[2] (See People
v. Ayala (2000) 23 Cal.4th 225, 299.)
Ryder also
asserts the late discovery implicated his constitutional rights and, under the
prove this error was harmless beyond a reasonable doubt. (Chapman
v. California, supra, 386 U.S. at
p. 24.) As discussed above, were
LaPlante's presence known to the parties sooner, the outcome would have been
prosecution except to plead guilty to the charged count, and would have
prepared for a trial against two witnesses to his incriminating statements
rather than one. We conclude any
prejudice to Ryder from the late discovery was harmless beyond a reasonable
doubt.
The late
discovery of LaPlante certainly presented Ryder's counsel with an unwelcome
surprise in the middle of trial, which California's discovery statutes
generally seek to avoid. We agree that
incomplete or delayed responses to specific discovery requests put the defense
in a difficult position and might cause it to " 'abandon lines of
independent investigation, defenses, or trial strategies that it otherwise
would have pursued.' " (
887.) As Ryder recognized in his
briefing, on review we consider whether the prosecutor's failure to respond had
any adverse effect on the
presentation of defendant's case. (
163 Cal.App.4th 28, 53.) As discussed
above, we do not agree that Ryder was harmed by the late discovery.
advised Ryder differently or changed its trial strategy is speculative. Generalized, speculative claims that counsel
would or could have either advised his or her client differently or adjusted
the defense theory of the case are insufficient to support a claim of
prejudicial error. (See
pp. 281-282.) We conclude Ryder has not
demonstrated prejudice under either the Watson or Chapman standards.
III
Although
Ryder does not directly assert the prosecution committed a Brady
title="">[4]
LaPlante's presence at the time Ryder made inculpatory statements, the People
address this issue in their brief to respond to Ryder's constitutional claims.
In
held that "the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." (Brady v. Maryland, supra, 373 U.S. at p. 87.) This duty to disclose evidence applies even
when there has been no request by the accused (U.S. v. Agurs (1976) 427 U.S. 97, 107), and
includes impeachment evidence as well as exculpatory evidence (U.S. v.
Bagley (1985) 473 U.S. 667, 676).
" 'There
are three components of a true Brady violation:
The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.' " (People v.
Salazar (2005) 35 Cal.4th 1031, 1043, quoting Strickler v. Greene (1999)
527 U.S. 263, 281-282.) We review de
novo whether a defendant established the elements of a Brady claim. (Salazar,
at p. 1042.)
We conclude no
likely inadvertently suppressed by the prosecution, his testimony would have
corroborated that of Fuhr, providing further inculpatory evidence that Ryder
admitted to being a lookout on the night of the burglary. The suppressed evidence is not favorable to
the defense and does not fall within the scope of Brady constitutional violations.
DISPOSITION
The
judgment is affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] We
also note that the trial court's ruling, if viewed as a sanction for violating
section 1054.1, provided a greater sanction than authorized by the
statute. Section 1054.5, subdivision
(c), specifically provides that the court "may prohibit the testimony of a
witness . . . only if all other
sanctions have been exhausted."
(Italics added.)
