People v. Bishopp CA4/3 ( 2021 )

Filed 5/26/21 P. v. Bishopp CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058089
v. (Super. Ct. No. 16WF1256)
SEAN ERIC BISHOPP, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Gary S.
Paer, Judge. Reversed.
Paul R. Kraus for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Police officers arrested Sean Eric Bishopp while he sat in a vehicle parked
near a store waiting for his wife and mother-in-law to return from their attempt to steal
the store’s merchandise. Bishopp’s mother-in-law ran toward his car carrying stolen loot
pursued by the store’s loss prevention officers. A physical altercation ensued when one
of the officers attempted to stop her. Meanwhile, one of the officers spotted Bishopp’s
wife videotaping Bishopp’s arrest with her cell phone. Officers arrested her, seized the
phone, and booked it into evidence.
Bishopp was charged with felony resisting arrest, conspiracy to commit
theft, grand theft, and an Estes robbery. (People v. Estes (1983) 147 Cal.App.3d 23, 27-
28 (Estes); see also People v. Robins (2020) 44 Cal.App.5th 413, 415, 418 [use of force
or fear to keep possession of the victim’s property is sometimes referred to as an “Estes
robbery”].) Bishopp told his trial attorney he did not resist officers when arrested and he
believed the cell phone video his wife took would support his claim. Bishopp’s trial
attorney, however, failed to file a formal motion to obtain the cell phone video or conduct
any investigation on what, if anything, happened to the cell phone after it was booked
into evidence at the police department.
Bishopp decided to accept the prosecutor’s plea agreement after his trial
attorney told him the video was not part of the discovery and “nothing ever came of [the
issue].” Bishopp pleaded guilty to conspiracy to commit theft, grand theft, and felony
resisting arrest in exchange for dismissal of the robbery count. Bishopp was placed on
three years’ formal probation on condition he serve 364 days in jail.
Bishopp’s new attorney filed a motion to withdraw Bishopp’s guilty plea
based on his trial attorney’s constitutionally inadequate representation. Bishopp’s motion
counsel asked the trial court to enforce his subpoena of the police department’s custodian
of records so he could obtain the cell phone video or present evidence it had been
destroyed. The court declined to enforce the subpoena and denied Bishopp’s motion.
2
Bishopp contends the trial court denied his right to a fair hearing when it
refused to enforce the subpoena of the custodian of records. We agree and reverse the
order denying Bishopp’s motion to withdraw his guilty plea.
I
FACTS AND PROCEDURAL HISTORY
A. Bishopp’s Arrest and Prosecution
In June 2016, Bishopp’s wife, Rosita Bishopp, and her mother, Nellie
Saenz (Saenz)—both codefendants—collected fashion merchandise valued around
$4,000 and then left a department store without paying. Two of the store’s loss
prevention employees pursued Saenz when she left the store with the merchandise.
Once outside, Saenz ran toward a parked car with false license plates, idling
at a location not designated for parking. Bishopp sat in the driver’s seat and Saenz’s
husband sat in the rear passenger seat. A struggle ensued when the employees caught up
with Saenz outside the vehicle’s front passenger door as Saenz held onto the merchandise
While the employees struggled to handcuff Saenz, Costa Mesa Police
Department Officers Tripp and Gallardo, who had arrived on the scene earlier, contacted
Bishopp and Saenz’s husband as they sat in their vehicle. According to Tripp’s
preliminary examination testimony five months later, Bishopp obeyed an initial
command to turn off the engine but refused to get out of the car and started yelling at the
officers. Tripp claimed Bishopp disobeyed three or four commands to exit the vehicle
before Gallardo opened the door to pull him out. According to Tripp, Bishopp resisted
Tripp’s efforts to remove him from the car. Tripp spotted Rosita standing outside the car
and it appeared as if she had videotaped Bishopp’s arrest with her cell phone. Tripp
seized the phone and booked it into evidence without watching the video.
The Orange County District Attorney’s Office filed a complaint charging
Bishopp, Rosita, and Saenz with grand theft, Saenz with misdemeanor battery on a store
employee, and Bishopp with misdemeanor resisting arrest. At the preliminary hearing,
3
Tripp testified about the events underlying the charges. Bishopp was held to answer and
a week later the prosecutor charged Bishopp with a felony resisting count involving both
Officers Tripp and Gallardo. Sixteen months later, in April 2018, the prosecutor added
an Estes robbery count against Bishopp and Rosita.
Bishopp faced the following felony charges: second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c); count 1; all further undesignated statutory references are
to the Penal Code); conspiracy to commit theft (§ 182, subd. (a)(1); count 2); grand theft
(§ 487, subd. (a); count 3); and resisting Officers Tripp and Gallardo (§ 69; count 4).)
Before pleading guilty, Bishopp received pretrial discovery materials that
included the department store’s video footage of the theft, but did not include Rosita’s
cell phone video. At Bishopp’s motion to withdraw his plea, Bishopp’s trial attorney
testified he verbally requested the phone video from the prosecutor, but the prosecutor
verbally replied “there was no video” because “it didn’t exist anymore or there wasn’t
anything on the phone anymore.” Counsel also believed Tripp had been “involved in an
incident . . . involv[ing] a video that turned up [showing] the officers that conducted that
incident . . . were lying,” but did not file a Pitchess motion for officer personnel records
after the prosecutor told him that no Brady material for Tripp existed. Counsel also failed
to file a formal motion requesting production of the video.
Bishopp and his trial counsel reviewed the discovery materials provided,
including police reports and the store’s surveillance videos. Counsel did not discuss with
Bishopp the possibility of a Pitchess motion, but on multiple occasions Bishopp and trial
counsel discussed the video on Rosita’s phone. According to Bishopp, trial counsel first
advised “he would get [the video],” before reporting “he [had] tried,” and would “try
again.” Bishopp later testified that when deciding whether to accept the plea bargain,
counsel told him “nothing ever came of [the issue],” and advised that “everything we
have is what [the prosecution] gave us.”
4
B. Bishopp’s Guilty Plea
On the first day of trial, the prosecutor reached a plea agreement with both
Bishopp and Rosita. Although Bishopp told his trial attorney he wanted to go to trial, he
followed his counsel’s advice and pleaded guilty to counts 2, 3, and 4: conspiracy to
commit theft, grand theft, and felony resisting arrest. Bishopp’s counsel read the guilty
plea form with him, which Bishopp initialed and signed. The form included the
following written factual basis for Bishopp’s guilty plea: “I resisted Costa Mesa Police
Officers Gallardo and Tripp by using force or fear while they were lawfully performing
their duties.”
In exchange for Bishopp’s plea, the prosecutor moved to dismiss the Estes
robbery against Bishopp and Rosita, and recommended each receive 364 days in county
jail and three-year formal probation sentence. The trial court approved the agreement,
suspended imposition of sentence and placed Bishopp on formal probation on condition
he serve 364 days in county jail.
C. Motion to Withdraw Guilty Plea
Bishopp retained new counsel to file a motion to withdraw his guilty plea
based on his trial attorney’s constitutionally inadequate representation in failing to obtain
the cell phone video and failing to file a Pitchess motion. Bishopp and his trial attorney
testified at the hearing. Motion counsel represented he subpoenaed the custodian of
records from the Costa Mesa Police Department to testify about Rosita’s phone, but the
custodian failed to appear. The trial court denied counsel’s request to compel the
custodian’s appearance.
1. Bishopp’s Testimony
Bishopp claimed he pleaded guilty because his trial counsel told him “we
had no defense . . . [and] that [a plea bargain] was pretty much the only option we had.”
Bishopp claimed he had not wanted to initial the factual basis section of his Tahl form
because he had not done “what it said on the factual statement.”
5
According to Bishopp, on the day of the department store theft, he was
standing outside his vehicle when the store’s loss prevention employees stopped Saenz as
she ran toward his car. He got back in his car because one of the employees “told [him]
to get back in.” Officers Tripp and Gallardo then arrived on the scene. Bishopp claimed
Tripp pointed a gun at his head and Gallardo opened the vehicle door and “started
punching [him] in the face.” Bishopp testified: “They pulled me out of the vehicle and
they proceeded to attack me or beat me up a little bit, and then they got me handcuffed.”
Bishopp testified he had instructed Rosita to video record the arrest and that
she had done so for “about five minutes.” Bishopp discussed the video with his counsel.
He considered the video “important” and personally went to the Costa Mesa Police
Department to learn what happened to it, but the trial court sustained a hearsay objection
when asked what he was told about the phone.
Bishopp testified he pleaded guilty because he felt “pressured by my
attorney. We had no defense, and [counsel] pretty much told me it’s going to be my
word against an officer’s word and they’re going to go with the officer, so you need to –
you need to take this [plea bargain offer].”
2. Trial Counsel’s Testimony
Bishopp’s trial counsel testified he was a criminal defense attorney with 40
years of experience. He confirmed Bishopp wanted to go to trial up to the day he pleaded
guilty. On impeachment evidence, trial counsel admitted: “a Pitchess motion should
have been filed and [not filing one] was clearly a mistake on my part.” When asked why
he had not filed the motion, counsel replied the prosecutor told him she checked for
Brady material on Tripp and there was nothing to disclose. This had been in response to
counsel having a “discussion with the [prosecutor] about Brady material regarding
Officer Tripp because [counsel] had some information regarding [] Tripp being involved
in some type of investigation by the Costa Mesa Police Department.”
6
Trial counsel conceded that, “depend[ing] on what [information was
discovered],” it “[p]ossibly could” have changed his advice to Bishopp to enter a plea
agreement, explaining “Officer Tripp was involved in an incident at a donut shop, and it
just so happened it also involved a video that turned up that showed that the officers that
conducted that incident at the donut shop were lying. This is the information that I
provided to the [prosecutor] . . . . when she told me she checked and they didn’t have []
Brady material.”
As to the phone video evidence, trial counsel testified that, at the time of
advising Bishopp to enter the plea deal, counsel believed Rosita had recorded exculpatory
evidence on her phone, neither he nor Bishopp had considered that “the phone might
have been destroyed,” and he would not have advised Bishopp to plead guilty if he knew
it had been destroyed. Counsel explained that following the prosecutor’s belated addition
of the Estes robbery charge against Bishopp in 2018, counsel decided not to file a
vindictive prosecution motion, but would have if he found out the phone had been
destroyed.
On the department store’s footage of Saenz and Rosita’s theft, trial counsel
testified he informed Bishopp there were “things on the video that [were] very favorable
for the prosecution.” Notwithstanding, trial counsel claimed “there was strong evidence
to support [Bishopp’s] position that he had nothing to do with the theft,” asserting Saenz
had been “high on drugs and totally out of control.”
Trial counsel testified he did not explain to Bishopp “there could
potentially be more investigati[ng he] could [have done] in order to support [Bishopp’s]
version of the events” and agreed the information at issue in Bishopp’s motion—
potentially exculpatory evidence on the phone video and potentially discoverable
impeachment evidence against Tripp—were “all pieces of evidence that might [have
been] used” at trial. Trial counsel confirmed he recommended Bishopp accept the plea
bargain, explaining he “was more concerned about the theft from the store and how [the
7
prosecutor] could connect Bishopp to that based on the circumstantial evidence,” and that
he “thought[,] under the circumstance at that time[,] it was the best deal we were going to
get, and [he] didn’t think the risk was worth waging to have a chance of getting convicted
of a robbery at trial.”
As to the factual basis in the Tahl form, trial counsel testified he and
Bishopp “were upset with the language in the factual basis,” that Bishopp consistenly
stated he had not resisted the officers, and that counsel “explained to [Bishopp] that in
order to accept the deal from the [prosecutor, they] had no choice but to initial that box
and agree with it[,] even if [Bishopp and counsel] believed it wasn’t factually true.”
3. Trial Court Denies Counsel’s Request to Compel Attendance of the
Custodian of Record
As noted, Bishopp’s motion counsel sought to compel the attendance of the
police department’s custodian of records based on his representation he had subpoenaed
the witness. When no one appeared at the hearing, motion counsel requested the court to
enforce the subpoena, asserting the witness was needed to testify on whether police
officials had destroyed the phone or whether they still had it in their possession. Motion
counsel stated he “belie[ved,] based on [his] investigation outside of court that [the
phone] ha[d] in fact been destroyed, and it was destroyed before [Bishopp’s] plea was
taken.”
The trial court denied the request, ruling it “ha[d] enough information [] to
make a decision on whether [Bishopp] should be allowed to withdraw his plea.” The
court noted Bishopp’s trial counsel never saw, obtained, or made efforts to secure the
purported video, but ruled the issue of the phone’s possible destruction was “a collateral
issue.” The court found the issue was speculative because it was not known if the alleged
video even existed and, even if it did, what it showed.
8
4. Trial Court Ruling
The trial court denied Bishopp’s motion to withdraw his guilty plea, noting
Bishopp’s trial counsel’s experience and describing Bishopp’s plea bargain terms as “a
great deal.” The trial court found Bishopp “made a knowing, voluntary, and intelligent
waiver of his [constitutional] rights based upon his verbal statements to the court and the
written documents before the court.” The court explained trial counsel had no obligation
to pursue speculative motions when presented with a favorable plea agreement. The
court concluded trial counsel “was not ineffective[] and [] got a great deal for [Bishopp].”
II
DISCUSSION
Bishopp raises four grounds to support his contention the trial court erred in
denying his motion to withdraw his guilty plea: (1) the court violated his constitutional
right to compulsory process when it denied his request to enforce his subpoena of the
police department’s custodian of records; (2) his motion counsel provided ineffective
assistance by failing to subpoena the personnel records of the arresting officers; (3) the
prosecutor committed misconduct during his cross-examination of Bishopp; and (4) and
cumulative error. We agree the court violated Bishopp’s due process right to secure the
attendance of a subpoenaed witness who had material information concerning trial
counsel’s alleged failure to investigate a crucial defense. Because the error here
prejudicially affected Bishopp’s ability to show his trial counsel provided inadequate
assistance, we need not address the other grounds raised by Bishopp.
“Before entering his plea, [a defendant is] ‘entitled to rely upon his counsel
to make an independent examination of the facts, circumstances, pleadings and laws
involved and then to offer his informed opinion as to what plea should be entered.’
[Citation.] The attorney’s role in investigating the facts and researching the applicable
law prior to advising the petitioner to plead becomes particularly important because of
9
the serious consequences of a guilty plea. [Citations.]” (In re Williams (1969) 1 Cal.3d
168, 175, fn. omitted.) “If counsel’s ‘failure (to undertake such careful inquiries and
investigations) results in withdrawing a crucial defense from the case, the defendant has
not had the assistance to which he is entitled.’ [Citations.]” (In re Saunders (1970)
2 Cal.3d 1033, 1042.)
To prevail on his motion to withdraw his plea based on ineffective
assistance of counsel, Bishopp had the burden to show his trial attorney’s failure to
investigate fell below professional norms and “affected the outcome of the plea process.
In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart (1985)
474 U.S. 52, 59 (Hill) [applying Strickland v. Washington (1984) 466 U.S. 668(Strickland).) Prejudice is shown if discovery of the evidence would have led counsel to
change his recommendation to plead guilty and if the evidence likely would have
changed the outcome of a trial. (Ibid.)
The evidence showed Bishopp’s trial attorney failed to take any steps to
secure the video and verify Bishopp’s claim he did not resist the officers when arrested.
Contrary to the trial court’s claim, trial counsel must independently investigate
potentially exonerating evidence so the client can intelligently and voluntarily decide
whether to accept a plea offer or exercise the defendant’s constitutional right to a jury
trial. Bishopp’s trial attorney failed to investigate or attempt to obtain the video. Indeed,
the trial court found Bishopp’s trial counsel “never saw the video” and “never made
efforts to get the video.” This established Bishopp’s trial attorney failed to provide
constitutionally adequate representation, but Bishopp still had to show his trial lawyer’s
failure to investigate was prejudicial.
To meet his burden to show Strickland prejudice, Bishopp subpoened the
police department’s custodian of records to learn whether police officials destroyed the
10
cell phone video. This is a relevant inquiry; indeed, vital to satisfy Bishopp’s burden. If
produced, the video could corroborate the officer’s claim Bishopp resisted arrest, or
affirmatively show the officers assaulted an unresisting Bishopp. Of course, Bishopp
would establish trial counsel’s failure to obtain the video prejudiced him if the video
showed he did not resist the arresting officers. Bishopp likely would have achieved a
more favorable outcome at trial on the resisting and robbery charges or he likely would
1
have received a far better plea agreement than the one he received here.
Bishopp also would establish prejudice if police officials destroyed the
video. Bishopp testified he would not have pleaded guilty if he learned the video had
been destroyed, and his trial attorney corroborated Bishopp’s testimony while adding that
he also would have advised Bishopp not to plead guilty, explaining he would have filed a
2
vindictive prosecution motion. At a minimum, counsel would have an obligation to
investigate the circumstances surrounding the destruction of the video under the
Trombetta and Youngblood guidelines.
Thus, the police department custodian of records potentially could establish
the element of prejudice to support Bishopp’s claim his trial attorney provided inadequate
1
It appears the Estes robbery charge was based on Bishopp’s resistance to his arrest,
which arguably aided Saenz’s efforts to flee with the merchandise. Consequently, a
video showing Bishopp did not resist would show he did not aid and abet Saenz’s Estes
robbery, although he still would be an aider and abettor of the theft.
2
The vindictive prosecution doctrine prohibits “the prosecution from taking certain
actions against a criminal defendant, such as increasing the charges, in retaliation for the
defendant’s exercise of constitutional rights.” (People v. Jurado (2006) 38 Cal.4th 72,
98.) A presumption of vindictiveness arises when the prosecutor increases the criminal
charges under circumstances showing a reasonable likelihood of vindictiveness. (In re
Bower (1985) 38 Cal.3d 865, 879.) The doctrine usually arises posttrial after the
defendant has successfully appealed. While the destruction of defense evidence by the
police implicates due process, it is analyzed under the guidelines articulated in Arizona v.
Youngblood (1988) 488 U.S. 51 (Youngblood) and California v. Trombetta (1984)
467 U.S. 479 (California v. Trombetta). The vindictive prosecution doctrine does not
apply in this setting.
11
assistance. The trial court, however, declined to enforce the subpoena and compel the
custodian’s attendance, explaining whether the video existed or not was a “collateral
issue.”
Bishopp contends the trial court’s decision not to enforce the subpoena
violated his right to compulsory process under the federal and state Constitutions when it
denied his motion to enforce his subpoena of the police department’s custodian of
records. We agree.
“The state and federal Constitutions provide that a criminal defendant has
the right ‘to have compulsory process for obtaining witnesses in his favor.’ (U.S. Const.,
6th Amend.; see Cal. Const., art. I, § 15.) The federal compulsory process right is ‘so
fundamental and essential to a fair trial that it is incorporated in the Due Process Clause
of the Fourteenth Amendment,’ making it applicable to the states. [Citation.]” (People v.
Capers (2019) 7 Cal.5th 989, 1008 (Capers).)
“Article I, section 15 of the California Constitution similarly guarantees as
a matter of state constitutional law ‘[t]he defendant in a criminal cause has the right . . . to
compel attendance of witnesses in the defendant’s behalf. . . .’” (People v. Jacinto (2010)
49 Cal.4th 263, 269.) The right is fundamental and a basic component of fairness. (Ibid.)
“This right is a fundamental element of due process of law.” (Washington v. Texas
(1967) 388 U.S. 14, 19.) The right is deemed fundamental because “an essential
component of procedural fairness is an opportunity to be heard.” (Crane v. Kentucky
(1986) 476 U.S. 683, 690.) To prevail on a compulsory due process claim, a defendant
“‘must show at least a reasonable possibility that the witness could have given testimony
that would have been both material and favorable.’” (Capers, supra, 7 Cal.5th at p. 1008,
italics added.) A defendant also must show the deprivation of the right to present a
witness was arbitrary and disproportionate to any legitimate purpose. (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 367-368.)
12
Here, the evidence demonstrates a “reasonable possibility” the record
custodian would have provided material and favorable evidence on Bishopp’s claim his
trial lawyer’s failure to secure the video was prejudicial. The arresting officer believed it
was material because he seized the cell phone from Bishopp’s wife as evidence. Bishopp
testified at the hearing he did not resist the officers when they arrested him. Obviously, a
video corroborating his claim would be material and favorable. Evidence that police
officials destroyed the video also could be material and favorable. Bishopp potentially
could have secured a dismissal of the resisting arrest charge if an investigation revealed
officers destroyed the video knowing it had “exculpatory value” or that it was
“‘potentially useful’” to Bishopp’s defense. (See People v. Alvarez (2014)
229 Cal.App.4th 761, 773-776 [applying Trombetta and Youngblood guidelines in
finding police destruction of a video that “had the potential to exonerate or considerably
reduce the culpability” of the defendants].) Accordingly, the court’s refusal to enforce
the subpoena of a witness who could have provided material and favorable evidence to
Bishopp was arbitrary and disproportionate to any legitimate purpose.
The Attorney General, like the trial court, argues the existence of the cell
phone was collateral to the issues raised in the motion to withdraw Bishopp’s guilty plea.
The Attorney General does not explain why the existence of potentially exonerating
evidence on the resisting charge was collateral to Bishopp’s inadequate assistance claim.
Nor does the Attorney General explain why the destruction of the video was immaterial
even though it may have provided grounds for a dismissal under Trombetta and
Youngblood. Instead, the Attorney General focuses on the benefit Bishopp received
when the prosecutor agreed to dismiss the Estes robbery, a potential strike. In other
words, that benefit rendered potential exculpatory evidence or facts supporting a
dismissal motion collateral to whether Bishopp could withdraw his plea. That is not the
issue before this court, nor is it the law in deciding challenges to guilty pleas based on
ineffective assistance of counsel.
13
The issue presented in this appeal is more fundamental than evaluating the
benefit Bishopp received in a plea bargain. Rather, the issue here is whether Bishopp
was denied his constitutional right to present material and favorable evidence that would
satisfy the prejudice prong of his claim he received constitutionally inadequate
representation. As explained above, the record shows a “reasonable possibility” the
testimony of the police department’s record custodian would have provided the requisite
information to satisfy the prejudice element. Only then would the trial court be in
position to determine whether counsel’s ineffective performance “affected the outcome of
3
the plea process.” (Hill, supra, 474 U.S. at p. 59.)
The Attorney General also argues the video evidence “was irrelevant to the
court’s finding that appellant entered a knowing, voluntary, and intelligent plea.” But
Bishopp based his motion to withdraw his plea on the violation of his Sixth Amendment
right to the effective assistance of counsel. In other words, his guilty plea was the
product of counsel’s ineffective assistance and therefore his plea was not entered
knowingly and voluntarily. (See People v. Orozco (2010) 180 Cal.App.4th 1279, 1285.)
The failure to enforce the subpoena denied Bishopp the opportunity to present evidence
counsel’s deficient representation was prejudicial.
The Attorney General complains Bishopp did not meet foundational
requirements to show Bishopp’s wife “captured the [arrest] on her cell phone and the
recording would have assisted the defense.” This is simply another way to argue the
information sought was not relevant or material. As noted above, Bishopp testified at the
hearing that he saw his wife record the arrest and the evidence showed the arresting
officer seized the cell phone as evidence, which supports the inference the arrest was
recorded since the phone was seized as evidence. Of course, Bishopp could not verify
the contents of the cell phone video because the officer seized the phone. Bishopp
3
We express no opinion on the merits of Bishopp’s motion to withdraw his guilty
plea, which will depend on the evidence presented in a subsequent hearing.
14
established the relevance and materiality of the evidence he sought to elicit from the
custodian of records.
Finally, the Attorney General argues Bishopp did not show a “lawful
subpoena was properly served” by offering the subpoena into evidence or asking the trial
court to make a finding the witness had not appeared. The prosecutor, however, failed to
object on that ground in the trial court. Moreover, the court accepted Bishopp’s claim he
subpoened the custodian, but denied Bishopp’s request to enforce the subpoena because it
viewed the evidence as collateral. “‘“An appellate court will ordinarily not consider
procedural defects . . . where an objection could have been but was not presented to the
lower court by some appropriate method . . . . [I]t is unfair to . . . the adverse party to take
advantage of an error on appeal when it could easily have been corrected at trial.”’”
(People v. Alistar Ins. Co. (2003) 115 Cal.App.4th 122, 126, fn. omitted [bail bond
forfeiture].)
In sum, the trial court’s denial of Bishopp’s request to enforce his subpoena
of the police department’s record custodian denied Bishopp his constitutional right to due
process. We therefore reverse the order denying Bishopp’s motion to withdraw his guilty
plea.
15
III
DISPOSITION
The order denying the motion to withdraw the plea of guilty is reversed and
remanded for further proceedings consistent with the views expressed in this opinion.
ARONSON, J.
WE CONCUR:
MOORE, ACTING P. J.
THOMPSON, J.
16