What is the test for making a motion for discovery in a criminal case?

No order for discovery can be made in a criminal case except as provided in title 6, chapter 10 of the Penal Code. ( 1054.5, subd. (a).) If the defense does not comply with its discovery obligations under section 1054.3, the trial court may make any order necessary to enforce those obligations, "including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." ( 1054.5, subd. (b).) Although a trial court has discretion in these matters, that discretion is not unfettered. "The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." ( 1054.5, subd. (c).) However, "prohibiting the testimony of a witness is not an appropriate discovery sanction in a criminal case absent a showing of significant prejudice and of willful conduct." (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1747, 1758 (Gonzales).)

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