ORIGINAL PROCEEDING. Petition for writ of mandate. Leslie E. Brown, Judge. Writ granted. (Los Angeles County Super. Ct. No. GA067142).
The opinion of the court was delivered by: Ashmann-gerst, J.
CERTIFIED FOR PUBLICATION
In the underlying murder case against Thomas Jerome Mitchell (Mitchell), the trial court excluded multiple prosecution witnesses, dog scent evidence and gunshot residue evidence as a sanction for the People's failure to provide discovery. By way of writ petition, the People contend that the trial court exceeded its jurisdiction under Penal Code section 1054.5, subdivision (c)*fn1 because it was required to exhaust less drastic sanctions first.*fn2 We agree and grant the petition.
In 2006, Mitchell was charged with the murder of Nicole Kaster (Kaster) for the benefit of a criminal street gang.
At the preliminary hearing, the trial court heard testimony from members of the Los Angeles County Sheriff's Department. The investigating officers learned that Michael Minor was shot and killed. As the shooting occurred, someone yelled, "Eastside Duarte." Michael Minor's son was a member of the Du-Roc Crip gang. At the time, the Eastside Duarte gang was at war with the Du-Roc Crip gang. When Mitchell, Lamone Lacy (Lacy),*fn3 Robert Paden (Paden) and other Du-Roc Crip gang members heard about Michael Minor's murder, they were upset. They were all at the home of Mitchell's sister. There was a tech-nine machine gun near a dumpster on her property. Lacy got a call informing him that his infant son needed medical attention due to breathing problems.
He drove his girlfriend Yvette Bodella (Bodella)*fn4 and son to a hospital.
A few hours later, an Eastside Duarte gang member named Marcus Maturino was standing next to Kaster in front of Kaster's residence drinking beer. At about 1:00 a.m. on August 10, 2006, they received gunfire. A witness saw Paden and another black male shoot at Kaster's residence from across the street. She was shot in the face and killed. The shooting was done for the benefit of the Du-Roc Crip gang as immediate retaliation for the murder of Michael Minor. Mitchell was arrested and interviewed. He said he was the getaway driver but was not involved in the shooting of Kaster. He admitted he saw a gun that night and had a good idea what was going to happen. A confidential informant verified that Mitchell drove the shooters to the scene of the crime.
A tech-nine machine gun was recovered from Lacy's residence. He was questioned and said that after Kaster's murder he looked for the weapon at Mitchell's sister's house and found an empty gun case. Mitchell told Lacy that the weapon was "hot" and that it was in the possession of Steven Skills Barron (Barron). Lacy drove to Barron's residence and obtained the weapon from Barron. The investigating officers believed the tech-nine machine gun was used in the shooting of Kaster. Joe Dallura, the scent K-9 handler for the Los Angeles County Sheriff's Department, did a scent comparison of Mitchell's jail house clothes and the bullet casings recovered from the shooting.*fn5
Over the next several years, the trial court repeatedly ordered deputy district attorney Martin J. Bean (Bean) to produce discovery and meet and confer with deputy public defender David L. Canas. In June 2009, deputy public defender Elizabeth Lashley-Haynes (Lashley-Haynes) was assigned to represent Mitchell. Months later, the trial court ordered the People to turn over dog scent evidence and provide a date, time and place for Lashley-Haynes to interview Lacy.*fn6 The deadline was October 7, 2009.
Lashley-Haynes filed a motion to compel production of discovery and requested all reports and tests regarding scientific evidence, and updated information from the murder book. She also filed a motion to preclude dog scent evidence and prevent Lacy's testimony. She submitted a declaration and averred: Prior to October 7, 2009, she spoke to Bean and reminded him that she needed the dog scent evidence and a meeting with Lacy. On the due date of the discovery, Bean said he believed that Lashley-Haynes had received all the dog scent evidence, and that he had not set up a meeting with Lacy.
At the hearing, the trial court precluded dog scent and gunshot residue evidence. Next, the trial court precluded the testimony of Lacy and his fiancé, Bodella. As to the murder book, Lashley-Haynes stated: "[S]ince this case is three years old I would believe that there has been ongoing interviews and investigation by the police department aside from the original murder book that was produced in . I think it's logical to assume that the police continue to investigate considering that there are two potential shooters out there in this case and maybe they haven't but I would request that the court have the [investigating officer] on this case take the stand and state that since 2006, he has interviewed no one." The trial court replied: "I think it would be more efficient to just preclude any testimony by any [of the] People's witness[es] regarding any information not previously provided to the defense."*fn7