Trial court erred by imposing sanctions order on defense counsel when he had no obligation to turn over discovery for a codefendant’s witness he did not intend to call at trial. The trial court imposed a $950 sanction on a deputy public defender (PD), who represented Landers in a two-defendant gang murder trial, for violating a reciprocal discovery order. Following trial, the prosecution filed a motion seeking a contempt finding because the PD did not turn over multiple statements from a witness called by Landers’ codefendant. The PD argued the sanctions order was improper because he never intended to call the witness and in fact did not call her. He put on no affirmative defense and relied on the state of evidence as his defense. The court found that the PD failed to disclose to the prosecution the name and statements taken from the witness called by Landers’ codefendant. The trial court imposed the sanctions order, and the PD appealed. Held: Sanctions order reversed. The prosecution’s right to discover defendant’s witnesses under Penal Code section 1054.3 is triggered by the intent of the defense to call that witness. “Intent to call” means that all witnesses a party reasonably anticipates it is likely to call must be disclosed. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375.) Here, the PD had several statements from a witness that he determined not to call at trial. He disclosed some content of the statements to codefendant’s counsel, who in turn interviewed the witness and provided those statements to the prosecution. On cross-examination, the witness testified that the PD had interviewed her long before the trial and had written notes during the interview. The PD contended that his duty of loyalty to his client obligated him not to make any disclosures about the witness unless and until he decided to impeach her testimony. The appellate court agreed, concluding that in the face of considerable uncertainty in the law, the PD took a legal position that was fully consistent with the Rules of Professional Conduct of the State Bar. The trial court improperly applied the relevant factors recited in Izazaga and inappropriately relied on a novel theory that a defense attorney’s professed strategy of calling no witnesses and relying solely on cross-examination may justify the inference that he actually intended to call the witness for purposes of section 1054.3 all along.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A145037M.PDF