Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Ct. No. 2006019921, Allan L. Steele, Judge
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, David Zarmi and Blythe Lezkay, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Laura Gonzalez Condina was granted probation after a jury convicted her of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)). She appeals, contending that the trial court erred in ordering discovery of a videotaped reenactment by the victim. We modify the judgment to impose and stay a $200 probation revocation restitution fine (§ 1202.44) and affirm the judgment as modified.
All statutory references are to the Penal Code.
Facts and Procedural History
On the evening of May 24, 2006, appellant and Richard Finn lived together and were drinking alcohol. They argued about Finn's 14-year-old son and Finn's interest in one of appellant's friends. The argument escalated to hair pulling and slapping. After Finn went to bed, appellant picked up a two-pound dumbbell and hit him on the head with it. Appellant collected the phones so that Finn could not call the police.
Finn drove to a sheriff substation and asked for help. Paramedics responded and treated a bump on his head. Finn told a paramedic that appellant hit him on the head with a weight and that he wanted protection. Simi Valley Police Officer Brian Murray interviewed Finn and Finn's son in the parking lot. Finn's son saw appellant hit Finn with a two-pound dumbbell. Finn said that appellant was jealous and hit him with something on the back of the head.
Appellant claimed that Finn stumbled getting out of bed and hit his head on a nightstand. When Officer Murray asked Finn if that is what happened, Finn replied, "If that will keep [appellant] from going to jail, yeah, that's what happened."
Finn married appellant before trial and helped a private investigator make a video reenactment. The defense theory was that Finn slipped on some satin sheets and hit his head on a nightstand.
During informal discovery, appellant provided witness lists and advised the prosecutor that the physical exhibits included a videotape and photos of Finn's house. The prosecution brought a discovery motion to disclose recorded witness statements and "all real... evidence which the defense reasonably anticipates it is likely to offer in evidence at the trial, including exhibits." (§ 1054.3.) At the hearing on the motion, defense counsel stated that he had already given the videotape to the prosecutor. The trial court signed a generic discovery order and started jury selection the next day.
After the jury was empanelled, defense counsel complained that the prosecutor "has marked [the videotape] as People's Exhibit 12, it sounds like she is planning on using it. That is not the purpose of [Penal Code section] 1054, reciprocal discovery. I have to give it to her if I'm going to use it, but she cannot just pilfer it or harpoon it." Appellant claimed the videotape was work product. Defense counsel argued: "My investigator made the tape, and I paid for the tape. I paid for the time. It is my attorney work product, and she [the prosecutor] is not entitled to just take it over because she happens to get a copy of it."
The trial court overruled the objection.
Finn, invoked his Fifth Amendment right against self-incrimination, was granted immunity, and recanted his earlier claim that appellant hit him with a dumbell. On redirect, Finn denied that he had been working "with the defense team." He did, however, admit that he helped an investigator make a videotape reenactment.
Appellant testified that Finn slipped on some bed sheets, hitting his head on a night table.
Appellant moved to exclude the videotape, arguing that the prosecution could not use it. The trial court overruled the objection.
After the verdict was entered, appellant moved for new trial on the ground that the discovery order violated the work product doctrine and the right to effective assistance of counsel. The trial court denied the motion, suspended imposition of sentence, and granted probation with 60 days in the work furlough program.
Court Ordered Discovery
Although a trial court may not compel discovery of evidence that the defense has not yet decided to use, it may order discovery of "[a]ny real evidence which the defense intends to offer in evidence at the trial." (§ 1054.3, subd. (b).) Section 1054.3 requires "not only the disclosure of relevant written and recorded statements of intended witnesses,... but also the disclosure of relevant oral statements communicated directly to counsel by such a witness or communication to counsel via an investigator or some other third party." (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 167.)
Appellant argues that the trial court specifically ordered disclosure of the videotape. Defense counsel, however, gave the prosecution a copy of the videotape before the discovery motion was argued. Unlike Teal v. Superior Court (2004) 117 Cal.App.4th 488, 492, there was no order to turn over the videotape. At the hearing on the discovery motion, appellant stated "it's just a discovery order, no, I have no problem with that at all. I provided her [i.e., the prosecutor] everything."
Citing Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163 (Hubbard), appellant argues that a defendant is not required to disclose statements obtained from prosecution witnesses that may be used to refute the prosecutor's case during cross-examination. In Hubbard, the defendant was ordered to turn over witness statements gathered by a defense investigator, even though the defense had not yet decided to call the investigator as a trial witness. We held that "the prosecutor is not entitled to discover notes prepared by a defense investigator that relate to an interview of a 'prosecution' witness unless and until the defendant announces an intent to call the defense investigator as a witness." (Id., at p. 1165.)
Unlike Hubbard, appellant designated the defense investigator Lawrence Sanchez as a trial witness and gave the prosecution a copy of the videotape before the discovery motion was argued. Appellant intended to use the videotape as affirmative defense evidence and advised the prosecutor that the videotape was a physical exhibit. "[T]he discovery order did not require the defense to produce any information about witnesses whom the defense did not intend to call at trial." (People v. Combs (2004) 34 Cal.4th 821, 861.) Nor did the prosecution's acquisition of the videotape result from a discovery order. "In other words, the prosecution did not obtain the [videotape] through the enforcement of the discovery order." (Id., at p. 862.) Instead, appellant voluntarily produced it.
Appellant's assertion that the videotape was protected work product fails because witness statements are not attorney work product. (Roland v. Superior Court, supra, 124 Cal.App.4th at pp. 1168-1169.) The defense investigator testified that it was his idea to make the video, that defense counsel was not present, that the reinactment was unrehearsed, and that Finn was "very cooperative." Section 1054.6 limits work product " 'in criminal cases to "core" work product, that is, any writing reflecting "an attorney's impressions, conclusions, opinions, or legal research or theories." ' " (People v. Zamudio (2008) 43 Cal.4th 327, 355.)
Our Supreme Court has held that section 1054.3 does not violate a criminal defendant's right to due process, self incrimination, the attorney-client privilege, or the right to effective assistance of counsel. (People v. Tills (1998) 18 Cal.4th 284, 290; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364-372.) Recasting the argument as a violation of the work product privilege is without merit because "the work product doctrine is not constitutionally founded...." (Id., at p. 381.)
Probation Revocation Restitution Fine
Respondent argues that the trial court erred in not imposing and staying a $200 probation revocation restitution fine. (§ 1202.44) We agree. The fine is mandatory. (People v. Guiffre (2008) 167 Cal.App.4th 430, 434; People v. Taylor (2007) 157 Cal.App.4th 433, 436-437.)
Appellant was ordered to pay a $200 restitution fine. Section 1202.44 provides in pertinent part that the trial court "shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount.... This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on the record."
The trial court is directed to impose and stay a $200 probation revocation restitution fine pursuant to section 1202.44. The judgment, as modified, is affirmed.
We concur: GILBERT, P.J., PERREN, J.