COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
November 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TIMOTHY KEITH GOOSBY, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Margie G. Woods, Judge. (Super. Ct. No. SCD220618; SCD212028; SCD222557)
The opinion of the court was delivered by: Haller, J.
P. v. Goosby
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found Timothy Goosby guilty of grand theft of personal property, unlawful driving a vehicle with a prior conviction for the same crime, and receiving stolen property. After finding true several prison prior allegations, the court imposed a sentence of nine years four months. The court also imposed concurrent sentences in two unrelated cases against Goosby, one involving a probation revocation and one involving a guilty plea.
Goosby raises a single issue on appeal: whether the court erred in refusing his request for discovery of a one-page document containing email communications between a deputy district attorney and her paralegal. Goosby requests that we review the sealed document and determine whether the court erred in refusing to order the document disclosed. The Attorney General concedes it is proper for this court to review the sealed document.
After reviewing the document, we concur with the trial court's conclusions that the document was not discoverable. We additionally determine there is no reasonable probability the disclosure would have affected the outcome of the trial.
Goosby was tried jointly with co-defendant Archie Hurn. The charged crimes arose from incidents occurring on May 10, 2009. First, at about 4:00 a.m. Goosby and Hurn broke into a gas station mini-mart, where they stole beer and cigarettes. About one hour later, defendants drove in a stolen truck to another gas station where they used the truck to ram into, and then dislodge, an automated teller machine (ATM) which they then placed inside the bed of the truck.
A gas station cashier employee, Jonalyn Soriano Reid, who was in a small booth near the ATM, witnessed the incident and called 911. A police officer, who happened to be sitting in his vehicle near the gas station, also saw the two men lifting the ATM onto the back of the stolen truck and leave the gas station. The police officer immediately pursued the truck. After a brief high-speed chase, defendants pulled into a motel parking lot, exited the truck, and attempted to run away. The police officer followed Goosby and arrested him. Hurn was arrested shortly thereafter. In the bed of the truck, the police found the stolen goods from the first mini-mart theft and the ATM from the second incident.
At trial, the prosecutor showed security videotapes for both theft incidents, in which the perpetrators were wearing clothing resembling the clothing defendants wore (or attempted to hide) at the time of their arrests. The officer who chased and arrested Goosby identified him at trial as the person in the stolen vehicle.
The prosecution also called witness Reid (the gas station employee) who identified Goosby and Hurn as the perpetrators shortly after the incident and at trial. She accurately described their clothing but acknowledged she could not see the faces of the perpetrators because it was dark and they had handkerchiefs covering their mouths "[u]p to the nose."
During her direct examination, Reid repeatedly denied the handkerchiefs slipped down during the crime. However, the prosecutor called an investigating detective, Gregory Olson, who testified that after the crime, Reid told him that she saw the faces of the perpetrators because the bandanas came off while the men were trying to lift the ATM, and she was therefore able to "take a look at their faces."
Goosby did not present any affirmative evidence, but his counsel argued the prosecution did not meet its burden of proof to show he committed the crimes. In particular, defense counsel focused on the lack of DNA evidence and argued Reid's identification was not credible because she never saw his face and her initial description of the perpetrators did not match Goosby's age or appearance.
The sole appellate issue raised by Goosby is whether the court erred in refusing his request for discovery of a one-page document containing email communications between the deputy district attorney who handled the preliminary hearing (Jessica Coto) and Coto's paralegal (Tamara Carver). We first discuss the circumstances under which the issue arose, and then set forth the applicable legal principles and explain our conclusion that the document was not subject to mandatory disclosure.
I. Relevant Factual Background
The discovery issue arose during the testimony of witness Reid, who gave her testimony through a Tagalog interpreter. Reid was a reluctant and nervous witness, who frequently made inconsistent and/or confusing statements. But the essence of her testimony was clear. Reid testified she was in a cashier booth about 12 feet from the ATM when a truck rammed into the ATM and then two men dislodged and loaded the machine on their truck. Several hours after the crime and at trial, Reid identified defendants as the perpetrators, but she testified at trial that she never saw the perpetrators' faces during the incident because they were wearing handkerchiefs and it was dark.
During her direct examination of Reid, the prosecutor asked Reid whether the perpetrators' handkerchiefs fell down during the crime. Reid repeatedly denied this had occurred. The prosecutor then asked whether Reid had told Detective Olson that the handkerchiefs had "slipped below the individuals' chin." Reid responded: "I did not say that. I remember the paralegal asking me if the handkerchief dropped. [¶] But I said I didn't -- like what I said, I was asked by the paralegal if there was a time when this handkerchief dropped and I did not say no because I told her that I'm scared to witness."
Outside the presence of the jury, Hurn's counsel expressed concern about Reid's reference to a conversation with a paralegal, noting that he had no discovery reflecting this conversation and requested that the prosecutor disclose any reports of the conversation. Goosby's counsel joined in the disclosure request. The prosecutor responded she was also surprised by the reference to a discussion with a paralegal, and she had "no idea where that came from." The prosecutor said she was aware of two conversations, one with Detective Olson and one with an officer at the scene, and reports of both conversations had been provided to defense counsel.
The court then agreed to permit defense counsel to question Reid outside the presence of the jury about Reid's conversations with the paralegal. During this questioning, Reid said she had a phone conversation with a paralegal before her preliminary hearing testimony, but she could not recall the paralegal's name. Reid said she told the paralegal that she was "scared to go to the court because I might see the relatives [of the defendants]. I asked if I could wear a mask. And I told them that I don't want to go to the court. Besides, they were already arrested, those who were carrying the ATM machine." Reid said the paralegal responded that she needed to "go because I'm the only witness." Reid also volunteered that she did not tell the paralegal that the handkerchiefs had dropped.
During follow-up questioning, Hurn's counsel asked: "You told us that when you talked to [the paralegal] on the telephone that you discussed with her what happened on the day that you were at the gas station, right?" Reid responded: "At first I told her that I was scared. But . . . she told me that you need to go there to testify. And I told her that -- why do I need to go there? They were already arrested. And she told me you need to go there to testify that the handkerchief was dropped. And I told . . . her that there is no need because they were already arrested and they were caught carrying the ATM machine. And one more. I'm the only one -- I'm the only witness, so I need to go to the court." (Italics added.)
Defense counsel then expressed continuing concern about the issue whether the district attorney's office attempted to improperly influence Reid's testimony. In response, the court directed the prosecutor to investigate to determine the identity of the paralegal and the existence of any conversations between this paralegal and Reid. But the court denied a defense request for a trial delay pending this investigation.
During the lunch break, a district attorney investigator met with the paralegal assigned to the case during the preliminary hearing proceedings (Carver)*fn1 , and prepared a report of this meeting (the Investigator's Report). The report states that Carver confirmed she was responsible for scheduling Reid's preliminary hearing testimony and she spoke with Reid on the telephone in May 2009. Carver did not recall any specifics about the telephone conversation, but she said she generally does not discuss cases with witnesses, nor does she tell them how to testify. Carver also said it is her standard practice to document any witness information in an email sent to the prosecutor assigned to the preliminary hearing.
With respect to Reid's testimony that she spoke with a paralegal about the case, the Investigator's Report states:
"I asked Carver if she remembered discussing with [Reid] something about the defendants wearing hoods, or wearing handkerchiefs over their faces. She told me that does not sound familiar to her and she does not remember [Reid] talking to her about those details. She told me again she does not remember the nature of any conversation she may have had with [Reid].
I asked Carver to review her emails . . . that relate to [Reid]. Carver notified me of one email she sent to [deputy district attorney] Coto, dated 05/22/2009. In the email, Carver informed . . . Coto that [Reid] is 'uncooperative and is very afraid to come in' and doesn't want the defendants to see her face. Carver provided . . . Coto with [Reid's] phone number and indicated a Tagalog interpreter would be needed. There was no mention of any additional statements made by [Reid]."
Immediately after the lunch break, the court confirmed it had a copy of the Investigator's Report and both defense counsel had received a copy of the report. The court then asked whether defense counsel wished to make any comments about the document. Defense counsel stated the report referred to emails reflecting that Reid was "uncooperative" and was afraid to testify, and that this was discoverable information that had not been disclosed to counsel.
The prosecutor responded that the emails were between the paralegal (Carver) and the prosecutor assigned to the pretrial proceedings (Coto) and that the information is not discoverable because it is "work product between . . . the paralegal and the attorney." The prosecutor said the emails were "back and forth conversations between the paralegal as to the status of a witness . . . ," concerning "[t]he fact that [the witness] sounds nervous, maybe you should give her a call, things along those lines." The prosecutor also said the emails do not contain relevant new information because "[i]t's all over the police reports that this witness was . . . scared of the defendants." The prosecutor represented that she had a one-page document containing the emails between the prosecutor and the paralegal, and that the "People's position is that [it is] work product," but if the court ordered her to provide it to defense counsel, she would do so.
Goosby's counsel responded that it appears the document is "beyond work product and it's discoverable since it does go to the witness's demeanor . . . ." Hurn's counsel stated that "[based on the] investigator's report . . . , it appears that some of [the emails] may be work product but not all of it. Some of it seems to be the statement of a witness, which is plainly discoverable under [section] 1050 . . . ."
The court then stated it would examine the document and rule on defendants' request for disclosure. After reading the one-page document, the court stated the document contained copies of four emails, two from the paralegal to the prosecutor and two from the prosecutor to the paralegal. The court then sustained the prosecutor's objection and declined to order disclosure. The court stated: "The witness statements are contained in the report by the District Attorney investigator. And the balance of the comments, communications, the Court finds would be work product and not discoverable under the discovery statute and under due process guidelines and rules." The court placed the document in a sealed envelope. The court also noted that to the extent defense counsel believes there might have been conversations between Reid and the deputy district attorney or her paralegal, counsel may fully explore this issue during cross-examination of Reid. The court also denied a defense motion for a mistrial.
Defense counsel then continued their cross-examination of Reid before the jury. During this examination, Reid was asked whether she saw the men's faces while she was looking outside the cashier's booth, and Reid responded: "Like what I said. The faces were covered by the handkerchiefs. That's why I couldn't see them." Reid also reiterated there was "never a time" when the handkerchief "was falling off" their faces, and that she had told "the paralegal" that the handkerchief never dropped. Defense counsel then repeatedly attempted to have Reid repeat her earlier claim that the paralegal told her to testify that the perpetrator's handkerchiefs fell down during the incident. In confusing and contradictory testimony, Reid sometimes adhered to her earlier testimony that the paralegal had made this statement, but at other times she denied that the paralegal had told her to testify about the handkerchiefs and said that the paralegal had told her to tell the truth.
Later during the trial, paralegal Carver testified consistent with her statements in the Investigator's Report. She said she did not recall any conversation with Reid, but her standard practice is not to discuss any facts with the witnesses and to refer witnesses to the prosecutor if they wish to speak about the facts of the case.
II. Legal Principles
Penal Code section 1054.1 provides for discovery in criminal cases. The prosecuting attorney must disclose the names and addresses of trial witnesses, any statements of the defendant, all relevant evidence obtained during the investigation, the existence of a felony conviction of material witnesses, any exculpatory evidence, and written or recorded statements of witnesses. (Pen. Code, § 1054.1.) However, the work-product doctrine is expressly made applicable to criminal cases by Penal Code section 1054.6, which states: "Neither 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 . . . ." (See People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 717.)
Code of Civil Procedure section 2018.030, subdivision (a) provides: "A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances." (See Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 814.) Under this rule, an attorney's evaluations of a witness are protected work product, but "statements that merely reflect what a [witness] said during an interview are not work product." (People ex rel. Lockyer v. Superior Court (2000) 83 Cal.App.4th 387, 398.) "When a witness's statement and the attorney's impressions are inextricably intertwined, the work product doctrine provides that absolute protection is afforded to all of the attorney's notes." (Rico, supra, 42 Cal.4th at p. 814.) Moreover, a paralegal's written communication about the attorney's impressions qualifies as work product. (See id. at p. 815.)
We have reviewed the one-page sealed document, which contains four brief emails between the deputy district attorney and her paralegal. We agree with the trial court that these communications are primarily work product and are not discoverable. Additionally, there is nothing in the emails that was exculpatory or otherwise material to the defense.
The emails reflect communications between an attorney and her agent about the attorney's impressions and conclusions as to whether this witness was needed at trial and the paralegal's discussion of the witness's availability and willingness to come to trial. The only reference to a witness statement is the paralegal's observation that the witness was afraid to testify and did not want the defendant to see her face. This reference was a component of the attorney and paralegal evaluations of the witness, and thus was not discoverable. Moreover, as noted by the trial court, this statement had been fully disclosed to defense counsel in the Investigator's Report.
Having independently reviewed the sealed document, we conclude the trial court did not err in refusing to order the document disclosed to defendants.
Further, there is no reasonable probability of a different outcome had the evidence been disclosed. (See People v. Gaines (2009) 46 Cal.4th 172, 182-183; People v. Phillips (1985) 41 Cal.3d 29, 48.) At trial, counsel had the full opportunity to cross-examine Reid and the paralegal, and to challenge Reid's identification testimony based on Reid's repeated admission that she never saw Goosby's face and based on the fact that her original descriptions of the perpetrators did not precisely match Goosby's age and height. There is nothing in the sealed document that was material to the disputed issues or would have been helpful to the defense.
WE CONCUR: MCCONNELL, P. J. IRION, J.