March 13, 2014
THE PEOPLE, Plaintiff and Respondent,
JOSEPH MANUEL MONTES, Defendant and Appellant.
The opinion herein, published at 58 Cal.4th 809 [169 Cal.Rptr.3d 279, 320 P.3d 729], advance report, is modified as follows and the petition for rehearing is DENIED:
In the paragraph beginning on page 887 of the published opinion, and ending on page 888, advance report, all text after the first sentence is deleted. The remaining sentence of this paragraph, followed by citations as indicated hereafter, is combined with the ensuing paragraph of the opinion, also modified as indicated below. The last two paragraphs on page 888 remain as originally written.
The modified passage is thus amended to read: Defendant contends the prosecutor committed misconduct by violating his discovery obligation to disclose the letter to the defense if he intended to use it as rebuttal evidence at the penalty phase. (See, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 955-960 [44 Cal.Rptr.3d 237, 135 P.3d 649].) However, assuming for the sake of argument the prosecutor erred by not disclosing the letter, we find the error harmless beyond a reasonable doubt because the prosecutor withdrew his use of the letter and the trial court admonished the jury. Under these circumstances, there can have arisen no reversible impact on the defense’s ability to make informed tactical decisions about which witnesses to call (see ibid.; People v. Pinholster (1992) 1 Cal.4th 865, 941 [4 Cal.Rptr.2d 765, 824 P.2d 571]); it is as though the letter never existed as an undisclosed obstacle to the presentation of mitigating testimony by defendant’s wife.
This modification does not change the judgment.
The petition for rehearing is denied.