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People v. Mayfield1/2/1997
must be given "before the cause is called to trial or as soon thereafter as the prosecution learns the evidence exists." ( People v. Pride (1992) 3 Cal. 4th 195, 258 [10 Cal. Rptr. 2d 636, 833 P.2d 643].) To be sufficient as to content, the notice must afford the defendant " 'a reasonable opportunity to prepare a defense to the allegation .' " ( People v. Arias, (supra) , 13 Cal. 4th 92, 166.) Generally, a defendant claiming lack of sufficient and timely notice must object at trial and request a continuance; failure to object is deemed a waiver of the point for appeal (Evid. Code, § 353; People v. Rodrigues (1994) 8 Cal. 4th 1060, 1153 [36 Cal. Rptr. 2d 235, 885 P.2d 1]), while failure to request a continuance generally "precludes any showing of prejudice attributable to delay" ( People v. Medina (1995) 11 Cal. 4th 694, 771 [47 Cal. Rptr. 2d 165, 906 P.2d 2]).
Here, the prosecution, well before the cause was called for trial, filed a notice listing eight categories of aggravating evidence that the prosecution intended to introduce at the penalty phase, including defendant's "record of prior felony convictions and facts and circumstances surrounding each offense." THE NOTICE FURTHER STATED: "The specific names of witnesses are contained in the discovery provided to defendant. Which particular witnesses will be called will depend on the testimony and evidence presented by prior witnesses and any stipulations agreed to by counsel."
Defendant thereafter submitted a written objection to the notice as being "untimely and insufficiently specific." The prosecutor submitted a written reply, claiming (erroneously) that the notice was sufficiently specific because it listed the factors under section 190.3 as to which the prosecution intended to introduce evidence.
There the matter lay until the guilt verdicts were returned. On that day, the prosecutor gave defense counsel a list of 23 possible witnesses. Not all of these related to the two prior felony convictions, however, and when the court considered the defense objection to the sufficiency of the notice, the prosecutor listed just six witnesses that he anticipated calling to prove the circumstances of the two prior felony convictions. The court and counsel proceeded to discuss other proposed prosecution evidence, with the trial court excluding most of it. The court then ruled that the prosecution's notice was timely and sufficient. Thereafter, the defense and the prosecution entered into a stipulation specifying the circumstances of the two prior felonies, as a result of which the prosecution did not call any witnesses to testify as to those crimes.
We agree with the trial court that the prosecution's notice was adequate as to the circumstances underlying the two prior felony offenses. These offenses were charged in the information as sentence enhancements under section 667.5. Moreover, because defendant had been previously convicted of these offenses, he was necessarily well aware of the circumstances of the offenses and of the witnesses who could testify concerning them. We find it significant that defense counsel did not claim surprise when provided with a list of possible witnesses and did not request a continuance. Although the prosecution should have provided the defense with the list of potential penalty witnesses before the guilt trial began, rather than after the guilt verdicts, defendant was not prejudiced by the delay.
C. Evidence of 7-Eleven Robbery
Defendant contends that the trial court erred in denying his motion to exclude evidence of the 7-Eleven robbery because it was insufficient to permit a rational trier of fact to find beyond a reasonable doubt that defendant was the robber,
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