People v. Garbutt CA2/4 ( 2021 )

Filed 8/17/21 P. v. Garbutt CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B306555
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA482189)
v.
MARCUS AARON GARBUTT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert C. Vanderet, Judge. Affirmed.
Rachael A. Robinson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill and Heidi
Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
A police sergeant who responded to a call about a bleeding
man in Skid Row immediately located surveillance footage of two
individuals beating the victim. After viewing the footage, the
sergeant radioed descriptions of the individuals to other nearby
officers. Appellant Marcus Garbutt, whose physical
characteristics and clothing matched the description of one of the
individuals in the video, was arrested around the corner from the
scene. He was charged with robbery and assault by means of
force likely to produce great bodily injury.
Prior to his jury trial, appellant filed a Pitchess1 motion for
discovery of the confidential personnel records of the police
sergeant who viewed the surveillance footage and radioed the
description. Appellant asserted that the sergeant lied about
identifying him in the surveillance video. The superior court
found that appellant had not shown good cause for the discovery
and denied the motion.
After a jury was empaneled, the prosecutor advised the
court and defense counsel that a police officer on her witness list
had just disclosed that she had seen appellant in the area shortly
before the assault. At that time, appellant was with a woman
who matched the description of the other assailant; the same
officer arrested appellant in the woman’s presence after hearing
the description over the radio. Appellant asked the court to
exclude the evidence as late discovery. The court initially
granted the request, but later admitted the evidence with a
curative jury instruction. The court denied appellant’s requests
for a mistrial and a continuance. The jury found appellant guilty
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
of attempted robbery and assault by means of force likely to
produce bodily injury.
Appellant contends the court abused its discretion by
denying his Pitchess motion and request for a continuance. We
disagree and affirm.
PROCEDURAL HISTORY
An information filed November 26, 20192 charged
appellant with second degree robbery (Pen. Code, § 211)3 and
assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4)). The information further alleged that
appellant personally inflicted great bodily injury on the victim
during the commission of both offenses (§ 12022.7, subd. (a)),
rendering them serious (§ 1192.7, subd. (c)(8)) and violent
(§ 667.5, subd. (c)(8)) felonies. The information also alleged that
appellant was released on bail or his own recognizance at the
time of the offenses (§ 12022.1) and had suffered prior strike
convictions (§§ 667, subds. (b)-(j), 1170.12).
A jury found appellant guilty of the lesser-included offense
of attempted robbery (§§ 211, 664) and the charged assault
offense (§ 245, subd. (a)(4)). It also found true the allegations
that appellant personally inflicted great bodily injury on the
victim. After a subsequent bench trial, the court found that
appellant was on bail at the time of the offenses and suffered the
prior convictions alleged in the information.
2 The record indicates that a previous information was filed
and dismissed, and the November 26, 2019 information was a
refiling of the original charges. Neither the original information
nor a transcript of any preliminary hearing that preceded it is in
the record.
3All further statutory references are to the Penal Code
unless otherwise indicated.
3
After denying appellant’s Romero4 motion to strike his
prior strike offenses, the trial court sentenced him to a third-
strike term of 25 years to life for the assault. The court
sentenced appellant to a concurrent term of 25 years to life for
the attempted robbery. Appellant timely appealed.
FACTUAL BACKGROUND
At approximately 1:30 a.m. on July 12, 2019, someone
called 911 to report “a man on the ground” bleeding extensively
from his face at 5th and San Julian in downtown Los Angeles.
Los Angeles Police Department (LAPD) Officers Davon McCoy
and Mark Correa both testified that they responded to the area.
They found a man lying in a pool of blood; photos of the scene
taken by Correa’s body-worn camera were admitted into
evidence. Both officers testified that the victim was going in and
out of consciousness. McCoy added that the man’s nose was
“misaligned” and his left eye and the surrounding area were
swelling. McCoy called an ambulance.
While waiting for the ambulance to arrive, McCoy and
Correa asked the victim what had happened. Body-worn camera
video footage of the discussion was played for the jury and
admitted into evidence. The victim said that “a male, Black” had
come up to him and “just started swinging.” He added, “And I
know they did rob me.” An unidentified woman standing nearby
told the officers she had seen “a guy stomp [the victim’s] head on
the concrete.” The woman was unsure if the assailant robbed the
victim.
After the ambulance arrived, McCoy and Correa escorted
the victim to Good Samaritan Hospital. By the time Correa
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4
returned to the police station later that day, appellant had been
arrested in connection with the incident. Correa testified that he
later performed a strip search of appellant at the jail, during
which he removed black and red sneakers from appellant’s feet.
Correa testified that the sneakers, which were admitted into
evidence, had “what appeared to be blood” on the “narrow grooves
of the tread towards the toe and the ball of the feet.” McCoy
testified on cross-examination that he did not see any bloody
footprints at the crime scene. Correa testified on cross-
examination that the sneakers were never tested for blood.
LAPD sergeant Andrew Cullen testified that he responded
to the crime scene in his capacity as a supervising officer. While
the other officers were interviewing the victim and other people
in the area, Cullen canvassed the area for surveillance cameras.
He found one affixed to a nearby building, and the building’s
security guard immediately assisted him in “pulling video.”
Cullen estimated that he viewed the video approximately 15
minutes after the crime occurred.
Cullen testified that the video, which was played for the
jury and admitted into evidence, showed three people: the victim,
a person wearing a white shirt, and a person wearing a red
hooded sweatshirt. The person in white placed his arms around
the victim’s neck while the person in red punched the victim and
“rifl[ed] through” his pockets. The person in white released the
victim and then punched him in the face. The victim fell to the
ground, and the person in white kicked and then “stomped” on
the victim’s head. Cullen testified that after he viewed the video,
he used his police radio to broadcast a description of the person in
white. He described the person as “bald . . . [with] a close-
cropped beard, white or gray in color, a white shirt, dark pants.
5
They’re wearing tennis shoes that have like a red or bright-
colored sole or strip [sic] on it.”
Shortly after Cullen’s broadcast, LAPD Officers Bolor and
Emestica responded that they had detained a possible suspect.
Cullen drove to their location, which was around the corner from
the crime scene; he testified it took him about 30 seconds to drive
there. He saw that Bolor and Emestica had detained appellant,
whom Cullen identified in court. Cullen testified that appellant,
like the assailant in the video, was bald, had a white beard, and
was wearing a white t-shirt, dark pants, and tennis shoes with
bright-colored soles. Cullen attempted to locate witnesses to
conduct a field show-up, but no one was willing to participate.
On recross-examination, Cullen admitted that he was unaware of
any efforts to have the victim identify the assailants. To Cullen’s
knowledge, no money was found on appellant.
Officer Reiner Bolor testified that she and her partner,
Officer Emestica, were patrolling Skid Row on foot on the night of
July 11-12, 2019. From about 12:11 a.m. to 12:57 a.m. on July
12, they patrolled the “5th Street corridor” between Crocker and
San Julian. During that patrol, Bolor encountered a woman
wearing a red hoodie; appellant was with her. Bolor, who
recognized the woman from earlier encounters, “made small talk”
with the pair. Bolor’s body-worn camera was not turned on at the
time.
Later that night, “probably around 1:30 a.m.,” Bolor heard
a radio call about a possible suspect in an assault that had
occurred in the area of 5th and San Julian: “a male African-
American, white t-shirt, dark pants, and approximately 40 years
old,” wearing “bottom red” shoes. Bolor responded to 5th and San
Julian and saw appellant for a second time that night. He was
6
around the corner from 5th and Julian, standing in the middle of
the road outside 545 San Pedro Street. The woman from the
earlier encounter was across the street from him. Bolor detained
appellant because he matched the description she had heard.
Bolor noticed that appellant was sweaty and having a hard time
breathing. She allowed the woman from the earlier encounter—
who was no longer wearing a red hoodie—to give appellant some
water while he was detained.
DISCUSSION
I. Pitchess Motion
A. Background
Prior to trial, appellant filed a Pitchess motion seeking
discovery of complaints concerning sergeant Cullen’s “character[ ]
for honesty and integrity,” including accusations of “lying, filing
false police reports, fabricating admissions, confessions or other
evidence, perjury, theft, fraud, misrepresentation, or
malfeasance,” as well as “making false, misleading, or inaccurate
statements (or committing any other dishonest misconduct, such
as threatening or coercing or interfering with witnesses), orally,
in writing, or in any other form, during an official, internal
affairs or any other investigation conducted by the Investigating
Department or any other agency.”
Appellant’s counsel filed an accompanying declaration in
which she made the following relevant assertions:
“5. At the preliminary hearing, Sergeant Cullen testified
that he watched surveillance footage of the offense and positively
identified the defendant as the suspect involved.
“6. The defendant denies that he was involved in the
incident and denies that he is depicted in the surveillance
footage.
7
“7. Specifically, I am informed and believe that the
assertion by Sergeant Cullen as set out below is a lie.
“a. That he knows the defendant is depicted in the
surveillance video.
“8. The Defense intends to raise the defense at trial that
Sergeant Cullen lied about his identification of the defendant in
the video because the defendant happened to be in the area of the
crime. To prove this, the defendant would use any evidence of
prior instances of dishonesty or fabrication of evidence to
impeach the officer when he testifies at trial.”
The LAPD filed a written opposition to the Pitchess motion.
It argued that appellant failed to establish a prima facie case of
intentional misconduct by Cullen because he did not provide a
“plausible alternative scenario that is possible and consistent
with the events and observations of the witnesses.”
At the hearing on the motion, the court summarized the
facts as it understood them from the materials before it: “it
appears that two other officers wrote a report and interviewed
the complaining witness and the witness gave a description and
subsequently a videotape was found and the sergeant is
identifying your client as being the person on the tape.”5 The
court stated it was inclined to deny the motion because there was
no “plausible alternative scenario put forth,” and “the video
probably speaks for itself.” It added, “I mean, he’s either correct
or incorrect. And if he’s incorrect, he’s either lying or mistaken.
But how would you be able to distinguish whether or not he’s
mistaken or lying.” The court also noted that the police report,
5 According to the testimony at trial, McCoy wrote the
police report.
8
which is not in the appellate record, stated that appellant was
found with a $50 bill in his possession and blood on his shoes.
Appellant’s counsel explained that Cullen “relie[d] upon his
own observations instead of interviewing witnesses to make the
identification,” and no independent witnesses identified appellant
as the assailant. She further disputed the police report’s claims
that there was physical evidence linking appellant to the alleged
robbery. The court concluded that appellant failed to put forth “a
sufficient factual basis” or “alternative plausible scenario” and
denied the motion without conducting an in camera hearing.
B. Analysis
Appellant contends the court erred by denying his Pitchess
motion. We review the trial court’s ruling for abuse of discretion.
(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) A trial
court abuses its discretion if its ruling exceeds the bounds of
reason. (People v. Galan (2009) 178 Cal.App.4th 6, 12.)
Pitchess, supra, 11 Cal.3d at pp. 536-537, established that a
criminal defendant may obtain discovery of certain relevant
information in police personnel files by making general
allegations establishing cause for the discovery and showing how
this information supports a defense to the charges against him or
her. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-
1019 (Warrick).) “To initiate discovery, the defendant must file a
motion supported by affidavits showing ‘good cause for the
discovery,’ first by demonstrating the materiality of the
information to the pending litigation, and second by ‘stating upon
reasonable belief’ that the police agency has the records or
information at issue.” (Id. at p. 1019, quoting Evid. Code, § 1043,
subd. (b)(3).) “This two-part showing of good cause is a ‘relatively
low threshold for discovery.’ [Citation.]” (Ibid.) “If the trial court
9
finds good cause for the discovery, it reviews the pertinent
documents in chambers and discloses only that information
falling within the statutorily defined standards of relevance.”
(Ibid.)
At issue here is whether appellant made the requisite
showing of good cause. To make that showing, counsel’s
declaration in support of a Pitchess motion “must propose a
defense or defenses to the pending charges” and “articulate how
the discovery sought may lead to relevant evidence or may itself
be admissible direct or impeachment evidence [citations] that
would support those proposed defenses.” (Warrick, supra, 35
Cal.4th at p. 1024.) “Counsel’s affidavit must also describe a
factual scenario supporting the claimed officer misconduct.”
(Ibid.) The extent of the proffered factual scenario necessary
depends on the circumstances of the case. In some cases, the
factual scenario may consist of a mere denial of the facts in the
police report. (Id. at pp. 1024-1025.) In other cases, where the
motion and affidavit are accompanied by “witness statements, or
other pertinent documents,” the defendant “must present . . . a
specific factual scenario of officer misconduct that is plausible
when read in light of the pertinent documents.” (Id. at p. 1025.)
A “plausible scenario of officer misconduct is one that might or
could have occurred.” (Id. at p. 1026.) It is “both internally
consistent and supports the defense proposed to the charges.”
(Ibid.) It need not be credible or persuasive, however. (Ibid.)
The court did not exceed the bounds of reason in concluding
that appellant failed to show good cause. Appellant asserted that
he was not depicted in the surveillance footage, but Cullen falsely
identified appellant in the video because appellant happened to
be in the vicinity shortly after the incident. Appellant made no
10
claim that either the victim who described an assailant or the
officer who documented that description in the police report was
lying. Nor did he dispute that he in fact matched the description.
Moreover, the veracity of Cullen’s identification was minimally
material at best, as the surveillance video on which he relied was
available and indeed was presented to the jury for an
independent assessment. (See People v. Mackreth (2020) 58
Cal.App.5th 317, 341-342 [finding no good cause where defendant
alleged officers used excessive force and incident was recorded on
four videos].) “Warrick permits courts to apply common sense in
determining what is plausible, and to make determinations based
on a reasonable and realistic assessment of the facts and
allegations.” (People v. Thompson (2006) 141 Cal.App.4th 1312,
1318-1319.) The court appropriately did so here.
II. Motion for Continuance
A. Background
After the jury was empaneled but before opening
statements were made, the prosecutor informed the court and
appellant of the following. “During the lunch hour I spoke with
officer Bolor, who is one of the witnesses who would be called to
testify. She did not write a report in this case. She was a second
responding officer. The statements that I gathered from her, I
emailed to defense counsel over the lunch hour, and I provided a
printed-out copy. The statement that I would want to have
admitted would be that she was working starting July 11th at
5:00 p.m. At approximately 12:11 a.m. on July 12th, she began a
foot beat in the area of San Pedro and 5th Streets. During that
foot beat, she recognized a female who was with the defendant.
She engaged in conversation with the two of them, or she had
some sort of contact with them. That woman who she recognized,
11
she had had several conversations in the past and knows her
because of how often she patrols the area. Later on after the
assault occurred, officer Bolor detained the defendant, and - -
because he matched the description that she was given over the
radio. And while the defendant was detained, that same woman
who was with him before the incident came out dressed
differently and assisted with Mr. Garbutt because he had
vomited and he needed some water. And she did not have body-
worn video during the foot beat and she did not write a report.”
Appellant’s counsel objected on late discovery grounds. The
court stated it was “disinclined to allow it,” and the prosecutor
responded that the court could instruct the jury on late discovery
or restrict the scope of the testimony. The prosecutor also
reiterated that this was the first time she had spoken to Bolor
and learned of the information at issue. The court ruled that it
was “not going to allow it,” because “it’s of marginal relevance
and I don’t find the curative instructions to be particularly
effective.”
Later, after McCoy and Cullen had testified, and the
surveillance video of the attack had been played for the jury, the
court notified counsel that it was “reconsidering” its ruling. The
court then continued, “It’s clearly of more than marginal
relevance. I’ll allow you to call that witness.” Appellant’s counsel
objected and requested a mistrial or “additional time to deal with
this [new] evidence.” She explained, “There is new information
that I could have investigated. I didn’t even know that this
officer was involved beyond booking my client until now. So
there is much more I could have done with respect to this officer’s
testimony if I had known about this statement ahead of time. I
know the People just received it, but that doesn’t change the
12
position I am in.” The court denied the request for mistrial and
said it would consider instructing the jury on late discovery.
The following day, appellant’s counsel filed a written
motion for a continuance of “about two weeks.” In her
declaration in support of the motion, she stated that she needed
additional time “to investigate the case and prepare the case for
trial.” Counsel stated that if granted a continuance, she would
consult with an eyewitness identification expert to prepare a
report and possibly testify; file a Pitchess motion seeking
discovery on Bolor; obtain Bolor’s body-worn camera footage from
a recent arrest during which Bolor claimed to have again seen
the woman in the red hoodie; and, based on counsel’s information
and belief that “Bolor is mixing up the individual in the video
with another individual who Mr. Garbutt knows,” contact the
latter individual and “ask her to testify regarding her
whereabouts at the time of the incident.” Counsel further
asserted that if she had received the information from Bolor
earlier, she would have changed some of her trial tactics,
including voir dire, opening statement, and cross-examinations of
McCoy and Cullen.
The trial court orally denied the motion. It explained, “I
don’t think this is an issue on which additional time is really
necessary, and that counsel isn’t able to do a cross-examination
with the additional day I gave.” After appellant’s counsel
reminded the court that she had not in fact had a full day to
investigate the information, the court said it understood but still
believed “it’s weighed against the inconvenience of having jurors
come back. I don’t think it’s necessary. So it’s denied.”
Bolor took the stand and testified as summarized above.
On cross-examination, appellant’s counsel explored the delay in
13
Bolor’s disclosure of her first interaction with appellant and the
woman. She also highlighted several inconsistencies in Bolor’s
testimony. Over the prosecutor’s objection, the court instructed
the jury on late discovery with a modified version of CALCRIM
No. 306. It read, “Both the People and the Defense must disclose
their evidence to the other side before trial, within the time limits
set by law. Failure to follow this rule may deny the other side the
opportunity to produce all relevant evidence, to investigate and
counter opposing evidence, and to receive a fair trial. In this
case, the People failed to disclose to the Defense, within the legal
time period, Officer Bolor’s testimony regarding the identity of
the individual in the red sweatshirt, and the fact that she
observed the defendant in the area prior to the incident. In
evaluating the weight and significance of that evidence, you may
consider the effect, if any, of that late disclosure.” Appellant’s
counsel reminded the jury about the late disclosure during her
closing argument.
B. Analysis
Appellant contends the court erred by denying his motion
for continuance. Relying on People v. Hughes (2020) 50
Cal.App.5th 257 (Hughes) and People v. Murphy (1963) 59 Cal.2d
818 (Murphy), he argues that the lack of a continuance deprived
him of a reasonable opportunity to respond to new evidence and
therefore violated his due process and confrontation rights. He
further contends the curative instruction the court provided was
inadequate to cure the prejudice he suffered.
We review the trial court’s denial of a continuance under
the abuse of discretion standard. “The granting or denial of a
motion for continuance in the midst of trial traditionally rests
within the sound discretion of the trial judge who must consider
14
not only the benefit which the moving party anticipates but also
the likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether
substantial justice will be accomplished or defeated by a granting
of the motion.” (People v. Laursen (1972) 8 Cal.3d 192, 204; see
also People v. Doolin (2009) 45 Cal.4th 390, 450 (Doolin).) As a
reviewing court we consider the circumstances of the case and the
reasons presented for the request to determine whether the trial
court’s ruling was so arbitrary as to deny due process. (Doolin,
supra, 45 Cal.4th at p. 450.) “Absent a showing of an abuse of
discretion and prejudice, the trial court’s denial does not warrant
reversal.” (Ibid.) We assess prejudice under the harmless error
standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836.
(People v. Verdugo (2010) 50 Cal.4th 263, 280.)
The trial court did not abuse its discretion here. Contrary
to appellant’s assertion that the court “provided no meaningful
explanation for its decision to deny the request, except to
curiously conclude that this was not ‘an issue on which additional
time [was] really necessary,’” the court stated that it had weighed
the request “against the inconvenience of having jurors come
back.” This was a proper consideration and a reasonable
conclusion in light of the short time estimate given to the jury
and the significant disruption the proposed two-week
continuance would cause.
The significant burden of a mid-trial continuance was not
outweighed by the benefit appellant asserted it would provide.
Appellant’s proposed additional investigation would at best have
served to more effectively impeach Bolor. Even if the jury
concluded Bolor was not credible and rejected her testimony in
full as a result, it would still have before it the surveillance video
15
of the incident, the body-worn camera footage of the victim’s
description, Cullen’s testimony about the description he
broadcast, Cullen’s testimony that appellant was arrested a short
time after the incident around the corner from the crime scene,
and the possibly bloodied shoes appellant was wearing at the
time he was arrested. In light of this strong evidence, there is no
reasonable probability the jury would have reached a verdict
more favorable to appellant had the trial been continued and
Bolor more thoroughly impeached. (See People v. Watson, supra,
46 Cal.2d at p. 836.) This is particularly true in light of the
court’s instruction informing the jury that it could consider the
effect, if any, of the late disclosure6 on the weight and
significance to afford Bolor’s testimony.
We are not persuaded otherwise by Hughes, supra, 50
Cal.App.5th 257. Defendant Hughes was charged with three
counts of murder after he struck a car while driving drunk. “The
critical issue at trial was whether Hughes’s drinking was a
substantial factor in causing the accident. The police and
highway patrol both concluded the deceased driver was the
primary cause of the accident, and their testimony suggested
Hughes’s speed and drinking may have played a role, but that
the physical evidence suggested he was not driving at an unsafe
6 The Attorney General asserts that the discovery rules
were not violated—and thus the instruction was unwarranted—
because the prosecutor notified appellant of the information from
Bolor as soon as she received it. (See § 1054.7 [stating that
discovery disclosures must be made at least 30 days prior to trial
or “immediately” if information is learned within 30 days of
trial].) Appellant disputes this assertion. We need not resolve
the dispute.
16
speed and he responded appropriately in attempting to avoid the
collision. After the jury heard that testimony, however, the
prosecution called as a witness a second member of the highway
patrol team which investigated the accident. The expert
disagreed with his colleagues and offered new expert testimony—
not previously disclosed to the defense in violation of the criminal
discovery statutes—that the accident wouldn’t have happened if
Hughes had been driving at the speed limit and hadn’t been
intoxicated.” (Hughes, supra, 50 Cal.App.5th at p. 260.) The trial
court denied Hughes’s motion for mistrial but instructed the jury
on the late disclosure. (Ibid.)
On appeal, Hughes argued, and the appellate court agreed,
that this was “a rare case in which the trial court abused its
discretion by declining to declare a mistrial.” (Hughes, supra, 50
Cal.App.5th at p. 283.) The court concluded that the prosecution
“surprised defense counsel with new technical evidence on the
most critical factual question relating to Hughes’s guilt,” on
which it previously had presented only “decidedly weak”
evidence. (Ibid.) The appellate court further concluded that the
jury instruction was “simply inadequate,” because it “did nothing
to enable Hughes’s defense team to test the merits of his [the
expert’s] new testimony” or provide them with time to find,
engage, and work with new experts “to produce a fact-based
response to what turned out to be damning testimony.” (Id. at p.
284.)
The instant case is distinguishable from the “rare case” of
Hughes. Bolor’s claim that she had seen appellant in the area
before the crime was not “new technical evidence on the most
crucial factual question relating to [his] guilt.” Rather, it was
straightforward lay evidence tending at best to support other
17
strong evidence—including video from a neutral source placing
appellant at the scene—suggesting that appellant was the
assailant. The crucial question in this case was whether
appellant was the person on the video, not whether he was in the
area; there was no dispute that appellant was arrested near the
crime scene. Moreover, appellant requested a continuance not
primarily to generate a “fact-based response” but rather to cast
doubt on Bolor’s credibility, which counsel’s cross-examination
and the jury instruction already did.
Murphy, supra, 59 Cal.2d 818, is also distinguishable.
There, the defendants were charged with aiding and abetting
specifically named individuals, Jim Prince and Jim McDonald, “to
have and accomplish an act of sexual intercourse” with a 17-year-
old girl. (Murphy, supra, 59 Cal.2d at p. 821.) On the morning of
trial, however, the court granted the prosecution’s request to
amend the information to change “Jim Prince” to “John Doe
William,” and “Jim McDonald” to “John Doe Bob.” (Id. at pp.
821-822.) The Supreme Court agreed with defendants that the
belated amendments “‘materially alter[ed] the entire nature of
the prosecution’s complaint and . . . entitle[d] the defendant[s] to
adequate time in which to prepare a defense to the amended
information.” (Id. at p. 825.) The court reasoned that the
amendments “did not relate to the names of the defendants
themselves but to those of the particular third persons whom
defendants were accused of aiding and abetting; and the latter
names were not simply corrected or made more specific, but were
stricken and replaced by wholly or partly fictitious names of
apparently different persons. To properly prepare a defense to
the charges as thus amended—which obviously allege different
criminal acts—counsel for defendants might well have needed,
18
for example, time to consult further with his clients, time to
investigate the identities of ‘William’ and ‘Bob,’ and time to
produce additional evidence or interview additional witnesses for
the purpose of establishing an alibi or laying the ground work
[sic] for impeachment of the prosecution’s testimony.” (Id. at p.
827.)
Bolor’s testimony did not alter the fundamental nature of
the allegations or evidence against appellant. With or without
the testimony, substantial evidence placed appellant in the area
and inculpated him in the offense. While additional time may
have improved appellant’s ability to impeach Bolor, the court
reasonably concluded any such benefit would be outweighed by
the substantial burden of a continuance. The court accordingly
did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
19