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People v. Rizo4/24/2002
testifying. We have determined that the court's rulings on the admission of this evidence were not error or, if error, were not prejudicial. Therefore, defendants cannot make the showing of materiality required for reversal as to those items of evidence. (People v. Santos, supra, 30 Cal.App.4th 169, 179.)
The remaining item of evidence - the fact Santoyo refused witness protection - was never offered by the defense. Defendants now claim the evidence was relevant to impeach Santoyo's claim that he gave false identity information to the police because he was afraid of defendants. However, the fact they did not even seek to introduce the evidence demonstrates it could not have been material in the sense required for reversal. In any event, as discussed previously, Santoyo's claim that he feared retaliation from defendants had minimal significance either in bolstering his credibility or portraying defendants as dangerous.
Defendants contend that, even if they cannot make a specific showing of prejudice, we should exercise our discretion to order reversal to deter future misconduct by prosecutors in failing to comply with their discovery obligations. We do not find the prosecutor's conduct in this case to be such as to warrant reversal.
First, with respect to the evidence Santoyo had been arrested, defendants' theory is that the evidence was relevant to impeach his credibility by showing he lied under oath when he initially denied having been arrested. Under that theory, the evidence did not become relevant until Santoyo denied having been arrested. Once that occurred, however, the prosecutor promptly disclosed the fact Santoyo had previously been arrested by eliciting that fact on redirect examination.
Second, the fact Santoyo refused witness protection did not become arguably relevant, under defendants' theory, until Santoyo claimed on the stand he was afraid of defendants. Defendants acknowledge they had already learned of the refusal of protection by that time. They cannot reasonably fault the prosecutor for failing to disclose the refusal sooner.
Finally, the record is at best equivocal whether the prosecutor should have known the lunch meeting might be subject to discovery. Although as stated Santoyo said the parties discussed the case briefly before lunch, the prosecutor maintained he did not talk to Santoyo about the facts of the case.
Prudence would dictate that a prosecutor err on the side of disclosure in discovery matters. On this record, however, we are not prepared to say that any delay in disclosure was so blameworthy as to warrant reversal without a showing of prejudice. As there has been no such showing, we decline defendants' request for reversal.
G. Prosecutorial Misconduct; Ineffective Assistance for Not Objecting
The blue jury defendants contend the prosecutor committed misconduct in argument to the jury. They also contend that, by failing to object and request an admonition to some of the prosecutor's statements, defense counsel rendered ineffective assistance.
1. Implying Santoyo was in protective custody
Defendants argue the prosecutor unfairly insinuated Santoyo had to be held in protective custody during the trial because he feared retaliation, when in fact he was in custody because the prosecution considered him a flight risk. The prosecutor stated that, although Santoyo had "acknowledged that he had failed to appear for a subpoena in the case," he had "told the prosecutor that he did not want to testify because he feared for his life . . . ." He also said Santoyo "sat in custody for 30 days over Christmas and the millenium New Year to come in, having committ
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