P. v. Corona

Filed 10/26/06 P. v. Corona CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.

Carlos Corona appeals from a judgment convicting him of attempted murder with enhancements for personally using and discharging a firearm, causing great bodily injury, and acting for the benefit of a gang. He asserts his due process rights were violated because (1) the prosecution peremptorily challenged the only two African-Americans in the jury venire, and (2) he was prevented from presenting the testimony of a defense witness. We reject his arguments and affirm the judgment.

FACTS

On the night of August 13, 2003, Kenneth Guyton was shot five times by a man whom Guyton identified as Corona.

Guyton, age 38 at the time of trial, had used methamphetamine since he was 19 years old. He had five felony convictions, and had repeatedly been in prison. He was a member of an Otay gang, and when he was in prison he was a member of the Hispanic "Southern" gang. His gang moniker was "Chapo."

One of Guyton's methamphetamine suppliers was Monica Yanez. Yanez sold methamphetamine for the Mexican Mafia gang. Yanez frequently "fronted" Guyton the drugs with the understanding that he would pay her later. In June or July 2003, Guyton lost his job and was living in hotels or his truck. During the days preceding the shooting, Corona had allowed Guyton to spend the night at a house in Eastlake where Corona was living with a girlfriend. Corona, known as "Li'l Man," was a member of the National City "Locos" gang.

During this time period, Guyton had not paid Yanez for drugs she sold him because he was unemployed. He owed Yanez $500, but he reduced the debt to $250 by trying to help Yanez's brother post bail. Guyton and Yanez had repeated phone conversations about the money he owed her.

On August 13, 2003, Guyton played chess and smoked methamphetamine with some visitors at the Eastlake house, and then "vegged out" at the house the rest of the day. At some point Guyton noticed his cell phone, which had been plugged into the wall, was no longer there. He asked Corona about the phone, but Corona stated he had not seen it. Guyton never found his cell phone. That same day Yanez's brother, Jose Yanez, known as "Trips," arrived at the Eastlake house. Trips and Corona worked on installing a stereo in Trips's car, an older model, black, two-door Bronco vehicle.

In the evening, about two carloads of gang members arrived at the house. Yanez was with the group. Guyton approached Yanez as she got out of her vehicle. Yanez asked Guyton "Where's my fucking money, Chapo?" Guyton told her he was working on getting it. Yanez and the rest of the group entered the house, sat around for "a minute," and then left. The group had been getting ready to smoke methamphetamine, but all of a sudden Yanez "looked disgusted" and changed her mind. Guyton walked with Yanez out to the street and told her he was going to get her money to her. Yanez gave him a look as if she were disgusted.

After the group left, Guyton started sorting laundry. However, Corona interrupted him and told him to "get ready to go." Around 9:30 p.m., Corona, Guyton, and Trips left the house in Trips's black Bronco. Trips was driving; Corona was sitting in the front passenger seat; and Guyton was sitting in the backseat behind Corona. Guyton thought they were going out "[t]o come up with the money" owed to Yanez. While they were driving, Guyton fell asleep. When he woke up, he noticed they were in east San Diego; he then fell asleep again until Corona woke him up and told him to get out of the vehicle. Corona got out of the vehicle and moved the front passenger seat back to allow Guyton to exit. When Guyton was outside the vehicle, Corona shot Guyton, saying that the shooting had been "okayed by the homies," and " 'this is for the money that you owe Monica [Yanez]. . . . This is for fucking with my bitches.' " After he was shot, Guyton saw the headlights of another car coming up the street; he managed to get in front of the car and told a man in the car he needed help.

During their investigation of the shooting, the police discovered that phone calls to Yanez from Guyton's cell phone were made minutes before and after the shooting. At Yanez's residence, the police found evidence of methamphetamine sales and a "pay and owe" sheet indicating that "Chapo" (Guyton) owed Yanez $500. There was also a notation indicating that "Li'l Man" (Corona) owed $1,090 to Yanez. Expert witnesses testified that a drug debt can be "clean[ed] . . . up" by performing a "hit" for the gang, and that a gang may order a shooting or assault to set an example to other people who owe money for drugs.

Corona presented an alibi defense through the testimony of a girlfriend, who stated that Corona spent the night with her at her home in Lemon Grove on the night of August 13, 2003.

DISCUSSION

I. Batson/Wheeler Error

Corona argues the trial court erred in denying his Batson/Wheeler^[1] motion, brought on the basis that the prosecutor exercised peremptory challenges to excuse the only two African-Americans in the jury venire.

Background

The jury venire consisted of 50 prospective jurors. George O. and Edmund O., the only African-American prospective jurors, were seated next to each other and identified as juror numbers 28 and 29.

As part of the voir dire process, the jurors orally answered a list of standard questions the court had provided to elicit general background information. George O. answered the questions on the questionnaire by stating he works in manufacturing; he is single with no children; he had no prior jury duty and no friends in law enforcement or the legal profession; and he thought he could be fair. Next, Edmund O. answered the questions by stating he works as a senior custodian at a college; his wife works at the same college; he has two children who work at a department store and at a community college; he had two cousins in law enforcement both of whom are deceased; he has a cousin who works as a detective for the Chicago police department; and there was no reason he could not be fair.

The trial court then inquired whether any of the jurors had close friends or relatives who had been victims of crimes similar to the ones alleged against Corona; i.e., attempted murder or assault with a firearm. Edmund O. advised the court that about 10 years earlier three of his cousins had been murdered in San Diego. Edmund O. explained that detectives met with his family and told them they knew who committed the crimes, but the detectives stated no charges would be filed because there was not enough evidence. When asked how he felt about the fact that law enforcement did not pursue the case, Edmund O. indicated that he understood they did not have any witnesses and thus they could not make a case. Edmund O. stated there was nothing about the situation that would prevent him from being a fair juror and that he believed he could set aside any feelings he might have from the case involving his cousins.

During voir dire by defense counsel, defense counsel asked if the lives of any of the jurors, or the lives of people they know, had been affected by gang activity. Edmund O. stated that his mother was compelled to sell some property because she was contacted by the City and was unable to control the gang activity on her property. Further, Edmund O. stated he had two cousins who were in the Crips gang. In response to defense counsel's questions, Edmund O. stated he would not automatically convict, nor would he lighten the prosecution's burden of proof, if Corona was a gang member.

After the attorneys finished voir dire and exercised their peremptory challenges, Corona made a Batson-Wheeler motion based on the prosecutor's striking of the only two African-Americans from the jury venire. The court denied the motion, ruling that it was not going to require the prosecutor to make a showing in response to the defense motion because the court believed there were factors about both the prospective jurors supporting the peremptory challenges for nondiscriminatory reasons. Regarding George O., the court stated it "had a substantial difficulty understanding him" which "probably translated into a difficulty, at least not a sophistication, in understanding English to the extent we are going to need it in this case . . . ." As to Edmund O., the court cited his responses indicating he had family members who had a criminal history, who had been victims of crimes, and who were in law enforcement.

The court's denial of the Batson-Wheeler motion occurred on June 13, 2005. On that same date, the United States Supreme Court filed its decision in Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 2415-2419] (Johnson), which reversed a California Supreme Court decision holding that the defendant must show a " 'strong likelihood' " that the prosecutor's preemptory challenges were based on racial or group bias in order to shift the burden to the prosecutor to present a race or group neutral explanation. The United States Supreme Court held that the defendant need only make a showing sufficient to support an inference of discriminatory purpose, and further that if this showing was made the trial court should not speculate about the prosecutor's reasons but should require the prosecutor to respond to the issue. (Ibid.)

On June 14, 2005, Corona asked for reconsideration of his Batson/Wheeler motion based on the high court's holding in Johnson. The trial court responded that in making its ruling it had not applied a "strong likelihood of discrimination" standard, and that it would have required the prosecutor to give reasons for the challenges if there had been an inference of discriminatory purpose. The trial court explained that it was clear there was no inference of discriminatory purpose and there were valid, obvious reasons to support the challenges.

Nevertheless, because of the recent Johnson decision, the trial court stated defense counsel could have another opportunity to explain why there was an inference of discriminatory purpose. Defense counsel asserted that George O. and Edmund O. were both "polite, well[-]dressed, well[-]groomed" and appeared "to be middle class African-American males"; she failed to see any race-neutral explanation for their excusal; and they were the only two African-Americans in the jury venire. The trial court responded that although it appeared that Edmund O. was born and raised in the United States, George O. was apparently an immigrant of African descent given his "very thick accent" and the difficulty the court had at times in understanding him. The court stated that because of the apparent language difficulty, George O. was not an appropriate juror for the case given the "relatively complex issues" the jury would have to resolve.

Although it did not find a prima facie case of discriminatory purpose, to ensure compliance with the dictates of Johnson the court instructed the prosecutor to state his reasons for the excusals. The prosecutor stated that the primary reason he excused George O. was that he had difficulty understanding George O. and it appeared that English was not his first language. The prosecutor explained there was going to be a lot of "street slang" terminology used in the case, which would be more difficult for a person whose first language was not English to understand than for a person without the language difficulty. The prosecutor also stated that George O. did not stand out as someone who would be a good juror for the prosecution, and there were other prospective jurors that the prosecutor felt would be better jurors and he wanted to get them on the jury. Regarding Edmund O., the prosecutor stated that although he had relatives in law enforcement, he also had three cousins who were murdered and had family members who were in the Crips gang. The prosecutor inferred that the murders and the Crips gang memberships may have been related, and felt that because Edmund O. had such "close ties" to the issues in the case he was "just not right for this case." The prosecutor additionally noted that because George O. and Edmund O. were sitting next to each other, "obviously they are in a position where . . . they are ripe for going to be kicked. Had one been No. 50, I don't think we would have ever gotten to that issue."

After hearing further argument by defense counsel, the trial court denied the motion.

Governing Legal Principles

A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias violates the federal and state Constitutions. (Batson v. Kentucky, supra, 476 U.S. at p. 89; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Huggins (2006) 38 Cal.4th 175, 226.) When a defendant objects to the prosecutor's peremptory challenges as discriminatory, the trial court uses a three-step procedure to evaluate the issue. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the [defendant] has proved purposeful racial discrimination.' [Citation.]" (Johnson, supra, 125 S.Ct. at p. 2416, fn. omitted.) In Johnson, the United States Supreme Court reversed a California Supreme Court holding that the first step required the defendant to show that it was " 'more likely than not the [prosecution's] challenges, if unexplained, were based on impermissible group bias.' " (Ibid.) Instead, the Johnson court concluded that a defendant satisfies the first step "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Id. at p. 2417.)

If the defendant satisfies the first step by showing a plausible claim of discriminatory purpose, the Johnson court cautioned that a trial court should not speculate about the prosecutor's reasons for the challenge; rather, the inquiry should move to the second step requiring the prosecutor to set forth a race-neutral explanation. The trial court should not "engag[e] in needless and imperfect speculation when a direct answer can be obtained by asking a simple question." (Johnson, supra, 125 S.Ct. at p. 2418; see People v. Cornwell (2005) 37 Cal.4th 50, 73.) It " 'does not matter that the prosecutor might have had good reasons . . . [w]hat matters is the real reason they were stricken . . . .' " (Johnson, supra, 125 S.Ct. at p. 2418.) If a "stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false." (Miller-El v. Dretke (2005) 545 U.S. 231 [125 S.Ct. 2317, 2332].)

The first two steps govern the production of evidence, whereas at the third step the trial court determines the persuasiveness of the defendant's constitutional claim. (Johnson, supra, 125 S.Ct. at pp. 2417-2418.) At the third step, the defendant "carries the 'burden of persuasion' to ' "prove the existence of purposeful discrimination." ' " (Id. at p. 2417.) To carry this burden, the defendant may point to such factors as the prosecutor's striking of most or all members of an identified group, the prosecutor's use of a disproportionate number of peremptory challenges against the group, the heterogeneity of the stricken jurors apart from their membership in the identified group, the prosecutor's failure to engage the stricken jurors in significant voir dire, and the prosecutor's failure to ask the stricken jurors about the issue of claimed concern. (People v. Reynoso (2003) 31 Cal.4th 903, 914; People v. Huggins, supra, 38 Cal.4th at p. 233.) Further, the defendant " 'need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.' " (People v. Reynoso, supra, 31 Cal.4th at p. 914; see Campbell v. Louisiana (1998) 523 U.S. 392, 397-398.)

The prosecutor may justify the challenges by showing that they were exercised " 'on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses--i.e., for reasons of specific bias,' " or by referring " 'to the totality of the circumstances' "; for example, " 'demonstrat[ing] that in the course of . . . voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds.' " (People v. Reynoso, supra, 31 Cal.4th at p. 915.) When reviewing the prosecutor's showing, the trial court may consider " 'how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy.' " (People v. Huggins, supra, 38 Cal.4th at p. 233.) The prosecutor's justification need not rise to the level of a challenge for cause, and even a "trivial" reason or a "hunch," if genuine and neutral, may suffice. (People v. Arias (1996) 13 Cal.4th 92, 136; People v. Turner (1994) 8 Cal.4th 137, 165; People v. Cornwell, supra, 37 Cal.4th at p. 70.) For example, a trial court may credit a prosecutor's claim of a nondiscriminatory motive based on such matters as " 'the prospective jurors' body language or manner of answering questions.' " (People v. Reynoso, supra, 31 Cal.4th at p. 917.) "The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons." (Id. at p. 924.) However, " 'implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.' " (Id. at p. 916.)

In determining whether the defendant ultimately has carried his or her burden of proving purposeful racial discrimination, the trial judge " 'must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observation of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . ." [Citation.]' " (People v. Reynoso, supra, 31 Cal.4th at p. 919.) The trial judge's findings " ' "largely will turn on evaluation of credibility." ' " (Id. at p. 918.) On appeal, we review the trial court's ruling on purposeful discrimination for substantial evidence. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009.) "It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court's ability to distinguish 'bona fide reasons from sham excuses.' [Citation.] As long as the court makes a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' " (Ibid.)

Analysis

Corona challenges the sufficiency of the evidence to support the trial court's finding of no discriminatory purpose. He contends (1) when first ruling on the Batson/Wheeler motion, the court improperly speculated as to the reasons justifying the exclusion, which reasons were later adopted by the prosecutor, and (2) when ruling on the motion for reconsideration, the court did not make a sincere and reasoned effort to evaluate the prosecutor's reasons. We disagree.

When the trial court made its initial ruling, it did not have the benefit of the Johnson decision which clarified the relevant standards. After reviewing the Johnson decision, the court explained that it had applied the correct "reasonable inference" standard identified in Johnson and it had found Corona had not made a prima facie case of discrimination. Thus, there was no need for the prosecutor to have set forth his reasons for the challenges. As we shall explain, the record supports the trial court's finding there was no prima facie showing of discriminatory purpose and shows the trial court was not engaging in improper speculation when it set forth the factors supporting this conclusion.

In deciding whether the defendant has presented a prima facie case, "the trial court should consider all the relevant circumstances." (Batson v. Kentucky, supra, 476 U.S. at p. 96.) On appeal, we review the trial court's ruling on this issue for substantial evidence. (People v. Huggins, supra, 38 Cal.4th at p. 228, fn. 13.)

The trial court could reasonably find there were obvious race-neutral reasons applicable to each of the jurors that precluded an inference of discriminatory purpose. As to Edmund O., the case involved a defendant gang member, and Edmund O. had family members who were in gangs.^[2] Additionally, three of Edmund O.'s cousins had been murdered and law enforcement had failed to prosecute the perpetrators. The trial court could reasonably conclude these factors showed that any prosecutor would naturally want to exclude Edmund O. based on the possibility he would be sympathetic to the gang

member defendant and unsympathetic to prosecuting authorities. As to George O., the trial judge himself stated he had difficulty understanding him.^[3] Given the need for jurors to listen to oral testimony from a variety of witnesses and to deliberate with each other as a group, the trial court could reasonably conclude that a juror whose English was difficult to understand evinced a potential language difficulty that conclusively established a race-neutral justification for a peremptory challenge.

Additionally, the trial court could consider that the circumstances of this case were not such that they suggested a clear motive for the prosecutor to excuse African-Americans. In Johnson, the high court found there was a prima facie case of racial bias because the defendant was Black, the victim was White, and the prosecutor had excluded all three Black persons in the jury venire. (Johnson, supra, 125 S.Ct. at pp. 2415, 2419.) Here, both the defendant and the victim are Hispanic. Although Corona was entitled to raise the issue of racial bias even though he is not African-American, the factual scenario here is not comparable to Johnson where the circumstances facially supported an inference of discrimination.^[4]

Based on the trial court's assessment that race-neutral reasons for the exclusion were obvious, combined with the lack of racial ties between the excused jurors, the defendant, and the victim, there is substantial evidence to support the trial court's finding that Corona did not make a prima facie showing of discriminatory purpose.

Alternatively, even assuming a prima facie case of discrimination was presented and the trial court erred in speculating about the prosecutor's reasons for excusing the two jurors, we are satisfied the court did not influence the prosecutor to present reasons that he did not genuinely entertain. (See People v. Ledesma (2006) 39 Cal.4th 641, 680, fn. 7.) As to Edmund O., the trial court referred to reasons arising from family members' involvement with crime (i.e., gangs) and the criminal justice system that would have been obvious to any observer. Similarly, as to George O., the trial court stated a fact that was facially observable; i.e., heavily-accented English that was difficult to understand. Thus, the trial court was not providing the prosecutor with any information that was not readily apparent. Also, when the trial court in an abundance of caution required the prosecutor to set forth his reasons, the trial court credited the prosecutor's claims that his motivations

for the challenges were George O.'s possible English language difficulty and Edmund O.'s family associations and experiences with gangs and the criminal justice system. Under well-settled principles, we defer to this credibility assessment.

Corona further argues that the prosecutor's statement that the two jurors were "ripe" for being challenged because they were sitting next to each other shows that the prosecutor excused them because of their race. This is not a reasonable inference. Reviewing the entirety of the prosecutor's remarks, it is apparent that the prosecutor was merely pointing out that if one of the men had been one of the last jurors in the jury venire (i.e., towards number 50), it is likely the requisite number of jurors would have been selected before they reached him and the issue of the exclusion of two African-Americans in the venire would not have surfaced.

Corona also asserts the pretextual nature of the prosecutor's stated reasons for excusing the two jurors is shown by the fact that the prosecutor did not ask George O. more questions about his English language ability or whether he would make a good juror for the prosecution, and did not ask Edmund O. about the details of his family members' gang membership or whether the murder of his cousins was tied to gang activity. Although the failure to question a juror about the claimed area of concern is a valid factor to consider, here the jurors' answers provided enough information to support the race-neutral reasons and thus the lack of further questioning does not require an inference of pretext. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1018, and fn. 14.) We defer to the trial court's assessment that George O.'s strong accent was readily apparent and made him difficult to understand; thus, the prosecutor could draw inferences from this fact without further questioning. The prosecutor is not required to present reasons that rise to the level of a challenge for cause, and could reasonably decide to peremptorily challenge a juror whose English was difficult to understand without further inquiry about his English language ability. Similarly, as to Edmund O., it was not necessary for the prosecutor to inquire about the details of the gang membership of his family members or the possible connection between the murders of his cousins and gang activity, because these factors--even without further details and even if unconnected--could legitimately support a "hunch" that Edmund O. might not be favorable to the prosecution.

Finally, Corona contends that a comparative analysis with Juror No. 11 (who is not Black and who was not excused) shows the prosecutor's discriminatory purpose. Juror No. 11 stated that he had uncles and cousins who were gang members although "nothing really like . . . they had been incarcerated," and that one cousin was involved in a National City gang. We will assume arguendo that a comparative analysis is proper for the first time on appeal. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1017; People v. Huggins, supra, 38 Cal.4th at p. 232.)^[5] Under a comparative analysis review, " '[i]f a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.' " (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1017.) In making the comparative analysis, the proper inquiry is whether the prosecutor "honestly found pertinent and legitimate dissimilarities between members of the group he challenged and [members of] the group he accepted." (People v. Huggins, supra, 38 Cal.4th at p. 233.)

Juror No. 11 and Edmund O. were not similarly situated so as to show that the prosecutor excused Edmund O. because of his race. Edmund O., unlike Juror No. 11, had experienced the murders of three cousins, and law enforcement had failed to prosecute those responsible for the murders. Even though Edmund O. stated this experience would not bias him, the prosecutor was entitled to reject this statement and decide not to risk keeping a juror who might have some resentment towards law enforcement. Given Edmund O.'s family history involving gangs and murders, the trial court could reasonably credit the prosecutor's overall assessment that Edmund O. was not a desirable juror for the prosecution because he had experiences too closely associated with the circumstances of the current case. The fact that Juror No. 11 also had family ties to gangs does not override the trial court's conclusion the prosecutor was not setting forth sham reasons regarding Edmund O.

We conclude the trial court made a sincere and reasoned effort to evaluate whether the peremptory challenges were exercised for race-neutral reasons, and there is substantial evidence to support the trial court's finding of no discriminatory purpose. Accordingly, Corona's appellate challenge based on the denial of his Batson/Wheeler motion fails.

II. Delfina Miller's Testimony

Corona argues his due process rights were violated because he was prevented from presenting the testimony of Delfina Miller, a witness crucial to impeachment of Guyton's testimony identifying him as the shooter.

Background

In or about February 2004, Corona's counsel learned from a police report provided during discovery that Delfina^[6] was a relevant defense witness. Delfina subsequently moved to Arizona, but the defense did not discover this until trial had already started. Finding that the defense had not been diligent in looking for Delfina before trial, the trial court denied the defense request for a continuance to secure Delfina's attendance at trial, and also denied the defense's new trial motion.

Delfina was interviewed by Officer Damian Ballardo at the time of the shooting and by defense investigator Esteban Hernández after the trial had concluded.^[7] Delfina, who at the time of the shooting lived near the intersection of Paradise Drive and East 10th Street where the shooting occurred, provided the following information. At about 11:00 p.m., she was in bed when she heard an argument that made her dogs bark. She then heard three gunshots. She jumped out of bed and ran to her front window that faces East 10th Street. She saw a man, who appeared to come from the same area as the shots, run past the front of her house. After she alerted her husband and as her husband went to the man lying on the street, Delfina saw a car driving the wrong way down the one-way street. The car stopped on the corner of East 10th Street and Paradise Drive, picked up the man who had run past her house, and then drove southbound on Paradise Drive. The car was an older, white, "Cholo-type" car with four doors. She only heard one car on the street.

Corona's counsel, Inge Brauer, considered Delfina an important impeachment witness because her description of the white vehicle at the scene was different from the black, two-door vehicle described by Guyton.

It was apparent from the police report provided during discovery that Delfina was an important defense witness. Because Delfina's address was redacted from the police report, on December 15, 2004, Attorney Brauer requested that the prosecutor provide Delfina's address and telephone number. On January 7, 2005, the prosecutor provided Attorney Brauer with an address for Delfina on East 10th Street. On this same date, the prosecutor notified Attorney Brauer that Delfina's husband, James Miller, was a potential prosecution witness. The prosecutor was contemplating having James testify because he had called 911 on the night of the shooting; however, according to the prosecution, he did not have any further information pertinent to the issues.

On January 7, 2005, Attorney Brauer instructed defense investigator Hernández to locate and interview Delfina. Hernández's efforts to locate Delfina were unsuccessful. In a report he prepared for Attorney Brauer dated June 19, 2005, Hernández delineated these efforts. Hernández stated he went to the 10th Street address provided by the prosecutor at varying times on January 8, 10, 13, and 19; February 8, 19, and 23; and April 11 and 22, 2005. There was no answer at the door, and the neighbors had no information on Delfina's schedule. Hernández believed Delfina still lived at the residence but that she was " 'dodging' " him. On May 19, 2005, a woman answered the door and told Hernández that Delfina did not live there, and she had no information about her whereabouts. On May 20, 2005, Hernández performed a database search for Delfina's address, but the search failed to provide a Social Security number for Delfina. Hernández reported he could not locate her without a Social Security number. On June 10 and 14, 2005, Hernández left a subpoena for Delfina at her last known address on 10th Street.

According to Attorney Brauer, during the week before the scheduled trial date of June 13, 2005, the prosecutor informed her that he would likely call James Miller as a witness. At the time of this discussion regarding James, there is no indication that defense counsel advised the prosecutor that she was having trouble locating James's wife Delfina, and apparently the prosecutor did not yet know the Millers had moved.

On June 9, 2005, the prosecutor's investigator went to subpoena James at the 10th Street address and discovered the Millers had moved to Arizona. The prosecutor's office did some investigation and found an address and telephone number for the Millers in Arizona. However, the prosecutor decided it was not worth bringing James from Arizona to testify about the 911 call and accordingly did not attempt to make contact with him. The prosecutor did not advise Attorney Brauer of the fact that the Millers had moved to Arizona.

The jury was selected on June 13, 2005, and the prosecution's witnesses began testifying on June 14, 2005.

On June 15, 2005, the defense discovered that the Millers had moved to Arizona. On that date, defense investigator Hernández received a telephone call from Pete Matey advising that he had bought the house from the Millers the previous year and that the Millers had moved to Arizona. Hernández performed a records check on the 10th Street property which confirmed the sale to Matey and listed the transfer date as May 2004. Attorney Brauer immediately told the prosecutor about this information, and the prosecutor gave her the telephone number and address for the Millers in Arizona that his office had uncovered. Hernández attempted to call the telephone number in Arizona on June 15, 16, 17, 18, and 19, 2005, but the phone was answered by a fax machine.

On June 15, 2005, while the prosecution was still presenting its case in chief, Attorney Brauer orally advised the court of the problems she was having securing Delfina's testimony. Attorney Brauer explained to the court that the prosecutor had provided her an address where Delfina no longer lived, that she had just received Delfina's Arizona address, and that she would try to have her subpoenaed in Arizona. Attorney Brauer also stated she would do everything possible to have Delfina available when it was time for her to testify, but that a recess might be necessary. The trial court indicated that the decision as to whether allow a recess would be made at the appropriate time.

On June 16 and 17, 2005, Attorney Brauer obtained a certificate for attendance of a material out-of-state witness from the trial court, and communicated with the public defender's office in Arizona about the need to secure Delfina's attendance in court on June 21, 2005. On June 20, 2005, the Arizona public defender's office responded that it took one month to complete the out-of-state subpoena process through the Arizona courts and that it would be impossible to have Delfina available to testify on June 21.

On June 20, 2005, after the prosecution had rested, Corona moved for a mistrial, or for a continuance until Delfina's attendance could be secured. Corona asserted the prosecution was dilatory in providing an up-to-date address for Delfina, and because of the prosecution's delay it was unlikely Delfina's attendance could be secured through an out-of-state subpoena before the conclusion of the trial. Corona's counsel acknowledged that the prosecution generally has no duty to keep track of noninformant witnesses. However, defense counsel asserted that because the address had been redacted from the police report and the prosecution did not provide the address until much later, the prosecution was obligated under Brady^[8] to verify Delfina's address at the time it was disclosed.

On June 20, 2005, the court denied Corona's requests for relief. The court found the prosecutor satisfied its duty by disclosing Delfina's last known address; the prosecutor had no affirmative duty to maintain a current address for Delfina; and there was no indication the prosecutor had tried to hide Delfina's current address from the defense. Further, the court found the defense failed to conduct an adequate investigation to find Delfina. The court stated that repeatedly returning to the residence was insufficient, and that the defense could have searched such common sources as Department of Motor Vehicle records, voter registration records, and tax records.^[9]

On June 21, 2005, trial proceeded with the presentation of defense witnesses, closing arguments, and instructions. The jury reached its verdict on June 22, 2005.

On September 12, 2005, Corona filed a motion for new trial on essentially the same grounds as his midtrial request for a mistrial or a continuance. To support his motion, Corona submitted a report from defense investigator Hernández who, after the trial was over, interviewed Delfina on September 7, 2005, in Arizona, confirming the substance of what her testimony would have been. The trial court denied the new trial motion, again finding the prosecution did not violate Brady's disclosure requirements.

The court also found there was no newly discovered evidence warranting a new trial. With respect to the issue of due diligence, during oral arguments on the new trial motion, defense counsel offered to have the defense investigator testify as to his pretrial efforts to contact Delfina. Defense counsel stated that the investigator had--in addition to going to the residence--looked in a database which revealed only the same 10th Street address. Although at one point during the discussions the trial court suggested the

defense's efforts may have been sufficiently diligent, the court determined it was not necessary for the investigator to testify, and ultimately the court was not persuaded to grant the new trial motion.

The court also found that the absence of Delfina's testimony was not prejudicial. The court concluded that although Delfina's testimony might have been beneficial to the defense as "fodder for argument," it would not have altered the outcome because the "victim/witness, was extremely credible, believable to the panel, notwithstanding the other baggage he had."

Analysis

On appeal, Corona argues the trial court violated his due process rights by impeding him from presenting Delfina's testimony. He challenges the court's denial of his requests for relief based on its rulings that (1) the prosecution did not violate its duties of disclosure under Brady, (2) there was no cause for a midtrial continuance because the defense did not exercise due diligence to secure Delfina's attendance, and (3) a new trial was not warranted. We consider these three matters in turn.

Prosecution's Duties of Disclosure

Brady establishes that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) Regardless of whether the defendant has requested disclosure, the prosecution must seek out and disclose all material exculpatory and impeachment evidence known to those acting on the government's behalf. (In re Brown (1998) 17 Cal.4th 873, 879-880; People v. Salazar (2005) 35 Cal.4th 1031, 1042.) When exculpatory evidence involves an eyewitness, the prosecution must disclose the witness's identity and " 'all pertinent information which might assist the defense to locate [the witness].' " (People v. Robinson (1995) 31 Cal.App.4th 494, 499; see In re Littlefield (1993) 5 Cal.4th 122, 132.)^[10] The prosecution may not avoid this obligation by deliberately failing to learn the whereabouts of a witness. (See Littlefield, supra, at p. 132.) Further, the prosecution is obligated to preserve exculpatory evidence that the defendant cannot obtain by other means. (People v. Catlin (2001) 26 Cal.4th 81, 159-160.)

However, there is generally no Brady violation when the government fails to provide information that it does not know about. (United States v. Chen Hsieh Hui Mei (9th Cir. 1985) 754 F.2d 817, 824.) If the prosecution gives the defendant "all the information necessary for the defendant[ ] to discover the alleged Brady material on [his or her] own," there has been no unlawful suppression of evidence. (U.S. v. Bracy (9th Cir. 1995) 67 F.3d 1421, 1428-1429.) These limits on the Brady disclosure requirements are consistent with the principle that the prosecution does not have a general duty to gather evidence that might be useful to the defense. (In re Littlefield, supra, 5 Cal.4th at p. 135.) Similarly, as to the location of witnesses who are not informants, the government generally has no duty to "produce or keep track of witnesses the defendant may later wish to have testify." (People v. Rance (1980) 106 Cal.App.3d 245, 253-254.)^[11] There is no due process violation if the defendant has the opportunity to assure the witness's presence at trial, and the prosecutor does not engage in conduct which deprives the defendant of this opportunity. (Bellizzi v. Superior Court, supra, 12 Cal.3d at pp. 36-37, and fn. 2.)

Here, once law enforcement obtained Delfina's address at the time of the shooting, it was not obligated to keep track of her whereabouts for the defense. The prosecution provided Corona with the address it had for Delfina, and Corona had six months before trial to verify if the address was correct and to research a new address. The prosecution did not know that the Millers had moved until shortly before trial, and did not know that Corona was having trouble locating Delfina. Thus, the prosecution did not suppress any information about Delfina in its possession nor attempt to mislead Corona about her whereabouts. There was no Brady violation, and the trial court did not err in denying Corona's requests for a mistrial, continuance or new trial on this ground.

Midtrial Continuance

The trial court denied Corona's request for a continuance during trial based on its conclusion that the defense had not exercised due diligence in finding Delfina.

To show the trial court abused its discretion in denying a continuance in the midst of trial, the defendant must establish " 'he had exercised due diligence to secure the

witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' " (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1036; People v. Wilson (2005) 36 Cal.4th 309, 352.) In making its decision, the trial court considers " ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by granting of the motion." ' " (People v. Jenkins, supra, 22 Cal.4th at p. 1037.)

We review the trial court's denial of a continuance to secure the attendance of a witness for abuse of discretion. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1036.) A denial of a request for continuance does not necessarily result in a due process violation even if the party is unable to offer evidence because of the denial. (People v. Jenkins, supra, 22 Cal.4th at p. 1039.) If "the defendant cannot show he or she has been diligent in securing the attendance of witnesses, or that specific witnesses exist who would present material evidence, '[g]iven the deference necessarily due a state trial judge in regard to the denial or granting of continuances,' the court's ruling denying a continuance does not support a claim of error under the federal Constitution." (Id. at pp. 1039-1040.)

When Corona requested a continuance midtrial, he submitted a report reflecting that his defense investigator went to the 10th Street address on 10 occasions between January and April 2005 during morning, afternoon, and evening times, and on each occasion there was "no answer at [the] door." On two occasions the investigator spoke to neighbors who "had no information on Delfin[a]'s schedule." There is nothing in the report to indicate that the investigator took any steps to try to find Delfina during this time period other than visit her residence. It was not until May 20, 2005, after contacting a woman at the residence who stated Delfina did not live there, that the defense finally performed a database search, which was apparently abandoned when no Social Security number was obtained. The trial court could reasonably conclude that the defense should have taken other investigative measures once it discovered that visits to the residence over a four-month period were not fruitful, and that the database search finally conducted in May 2005 should have been more extensive. The court also could reasonably determine that a one-month delay of the trial to secure the out-of-state subpoena was unreasonable in light of the lengthy period of time that the defense had to find Delfina after the disclosure of her identity and address and before the commencement of the trial. The trial court did not abuse its discretion in denying the midtrial continuance based on lack of diligence by the defense.

New Trial Motion

As to the denial of the new trial motion, Corona did not present any information to the trial court that required it to grant the motion. Trial courts are authorized to order a new trial when "new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial." (Pen. Code, § 1181, subd. 8.) A trial court's ruling on a new trial motion " ' "rests so completely within [its] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) During trial Corona knew Delfina's address in Arizona and the substance of her testimony, and the trial court ruled that a continuance should not be granted to secure Delfina's attendance because of the defense's lack of diligence. There was nothing new regarding Delfina's location or testimony presented at the new trial motion. Although at the hearing on the new trial motion defense counsel proffered evidence regarding additional pretrial efforts made by the defense investigator to find Delfina, defense counsel offered no explanation as to why any additional information regarding the investigator's efforts were not fully delineated at the time of the midtrial continuance motion. Thus, no newly discovered information was presented requiring the trial court to grant the new trial motion.^[12]

Given that the record supports the trial court's finding of no newly discovered evidence, we need not evaluate the court's finding at the new trial motion proceeding that the absence of Delfina's testimony did not cause prejudice.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

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^[1] Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.

^[2] Although being a member of a gang may not alone be a crime, we presume the trial court was referring to gang membership when it cited the factor of persons in Edmund O.'s family who had a criminal history.

^[3] Defense counsel stated she had no problem understanding George O. We defer to the trial court's contrary observation on this point.

^[4] Contrary to Corona's suggestion on appeal, the record does not reflect that the trial court believed Corona could not raise a Batson/Wheeler claim based on the exclusion of the two Blacks because Corona was not Black. The trial court noted this factor was "not determinative," and proceeded to consider the Batson/Wheeler claim on its merits.

^[5] In the past the California Supreme Court has declined to engage in a comparative analysis for the first time on appeal. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1017.) However, since the United States Supreme Court conducted such an analysis in Miller-El v. Dretke, supra, 545 U.S. 231, the California Supreme Court has recently assumed, without deciding the issue, that such review may be undertaken for the first time on appeal. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1017; People v. Huggins, supra, 38 Cal.4th at p. 232.)

^[6] To distinguish Delfina Miller from her husband, we shall refer to her by her first name.

^[7] Delfina's statements to the defense investigator after trial provided essentially the same information as she gave to Officer Ballardo, but with a few more details.

^[8] Brady v. Maryland (1963) 373 U.S. 83 (Brady).

^[9] The trial court also denied Corona's request that Delfina's statements be admitted through the hearsay testimony of Officer Ballardo. After Corona's requests for relief were denied, defense counsel requested that the defense investigator be allowed to testify before the jury about his unsuccessful efforts to find Delfina given that defense counsel had referred to Delfina's anticipated testimony in her opening statement. The trial court denied this request as well.

^[10] The prosecution also has a statutory duty to disclose the names and addresses of persons the prosecutor intends to call as witnesses at trial. (Pen. Code, § 1054.1, subd. (a); see In re Littlefield, supra, 5 Cal.4th at pp. 134-136.)

^[11] An exception to this rule applies to informants who are in contact with and under the control of the police. (Bellizzi v. Superior Court (1974) 12 Cal.3d 33, 37.)

^[12] In briefing on appeal, Corona asserts that the trial court found "defense counsel exercised due diligence to secure [Delfina] Miller's testimony at trial." To the contrary, when denying the midtrial motion for continuance, the trial court found the defense efforts had not been sufficiently diligent. It was not until the hearing on the new trial motion, after defense counsel proffered additional information, that the trial court intimated there may have been adequate diligence. However, the trial court did not allow more evidence to be presented on this issue, and ultimately denied the new trial motion. The trial court was not required to grant posttrial relief based on proffered information that could have been presented during trial.