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Name: People v. Cabral
Case #: F042217
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/13/2004

In appellant’s forgery trial, the court instructed on late defense discovery to the prosecution pursuant to CALJIC 2.28, telling the jury that the defendant had failed to timely disclose the testimony of his wife, and that the jury could consider weight and significance of the delayed disclosure. Just after the original opinion was issued in appellant’s case, the First DCA issued an opinion reversing a conviction based solely on the prejudice caused by CALJIC 2.28. That court held that the instruction imputes to the accused any delay his or her counsel or investigator might have caused. This court granted rehearing and reversed the conviction, finding the rationale of Bell persuasive. Appellant’s wife’s testimony corroborated the defense, and the instruction invited the jury to reject her testimony as a sanction for the discovery violation imputed to appellant. On the record, it is reasonably probable that appellant might have achieved a more favorable result had the court not instructed with CALJIC 2.28.