P. v. Duran
Filed
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ALFONSO DURAN, Defendant and Appellant. | D047059 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Raymond Edwards, Jr., Judge. Affirmed and remanded with instructions.
In this carjacking case, defendant and appellant Joseph Alfonso Duran took a car from a car salesman during the course of a test drive. On the day following the carjacking, Duran was stopped by law enforcement officers while driving the stolen car and arrested. The salesman, who had spent a few minutes in the car in fairly close proximity to Duran before the carjacking took place, was able to positively identify him and testify against him at trial. During the course of trial, at which Duran acted in propria persona, the prosecution provided him with a police report which stated that two other employees of the car dealership were unable to identify him as the carjacker. The prosecution did not call the other two employees as witnesses and Duran did not ask for a continuance to further investigate the information in the police report.
Following entry of a guilty verdict, Duran moved for a new trial on the grounds that his defense was unfairly prejudiced by the failure of the prosecution to produce the police report in a more timely fashion. On this record the trial court did not err in denying his motion for new trial. Given the car salesman's positive identification and the circumstances which made that identification credible, testimony about the inability of the other employees to identify Duran would not have materially improved his case. Because, unlike the car salesman, the other employees had not been in close proximity to Duran, a reasonable jury would not have found any inconsistency between their statements and the salesman's positive identification.
SUMMARY
On Sunday morning
Duran told Garcia that his mother had given him $15,000 to buy a car and he was interested in a 2000 Jeep Wrangler. In passing, Duran told Garcia that he had just had a cast removed from his right hand and lifted his sleeve to show Garcia the lighter skin color the cast had left on his right hand. Duran told Garcia he wanted to test drive the Wrangler. The two men got into the Wrangler and Duran started driving toward Interstate 5. At that point Garcia noticed a promotional balloon was attached to the car's right side mirror. Garcia asked Duran to pull into a parking lot across from the dealership so that he could untie the balloon. As Garcia was getting ready to get out of the car, Duran told Garcia: " Why don't you get the fuck out of the car" and lifted his shirt. Garcia saw what appeared to be the black handle of a gun; after he saw the gun, Garcia jumped out of the car and started running back toward the dealership. Duran quickly drove out of the parking lot, leaving skid marks.
When he got back to the dealership, Garcia told the assistant manager what had happened. The assistant manager called the National City police and by telephone Garcia gave the police dispatcher a general description of Duran. Later, a National City police officer came to the dealership and took a report from Garcia, including a description of Duran's discolored right hand.
On the following evening,
The deputy contacted the National City police department and a police officer and the deputy interviewed Duran. In the course of the interview, they forcibly took photographs of Duran's hands, including, in particular, his discolored right hand.
Garcia later identified Duran in a photographic lineup. At trial Garcia testified he was 100 percent positive Duran was the carjacker.
On the morning of the last day of trial, just before proceedings commenced, the prosecutor gave Duran a three-page police report, entitled " Detective Follow-up Report." The prosecutor had just received the report himself. The report documented the results of the photographic line-up shown to Garcia, Ochoa, the other car salesman on the lot, and Rachel Robinson, another employee of the dealership. According to the report, Ochoa told the detective he did not believe he could identify the man who drove away with Garcia and when Ochoa was shown the photographic lineup Ochoa was unable to make any identification. On the morning of
After briefly reviewing the report, Duran asked that any reference to Ochoa's and Robinson's statements be excluded. The trial court advised Duran that his objection was premature because no such statements had been offered and because neither Ochoa nor Robinson were on the prosecutor's witness list.
Duran took the stand on his own behalf. He denied being the carjacker and explained that he had borrowed his neighbor's jeep to run some errands because his car was out of gas. He further testified that if he had been the carjacker he would not have permitted the deputy sheriff to stop him. Defendant admitted he had previously been convicted of grand theft.
The jury returned a verdict finding Duran guilty of carjacking, robbery and unlawfully taking and driving a vehicle. (Pen. Code,[1] §§ 215, subd. (a), 211; Veh. Code, § 10851, subd. (a).) After the jury returned its verdict, Duran's investigator contacted Ochoa, Robinson and a potential fourth eyewitness, Jose Morales. All three indicated to the investigator that they might be able to identify Duran in a physical lineup.
Duran moved for a new trial. He argued the prosecution violated its discovery obligations under section 1054.1[2] and that the police report contained exculpatory evidence within the meaning of Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady). The trial court denied his motion. The trial court then sentenced Duran to a total of 40 years to life. The sentence was comprised of his sentence for carjacking as a third strike under section 667, subdivision (a)(1), and enhancements for serious prior convictions and prior prison terms.
Duran filed a timely notice of appeal.
DISCUSSION
I
In his principal argument on appeal, Duran argues the prosecution's belated delivery of information about Ochoa and Robinson denied him a fair trial and the trial court therefore erred in denying his motion for a new trial. We find no error.
In People v. Robinson (1995) 31 Cal.App.4th 494, 498-499, the court accurately summarized the prosecutor's discovery obligations: " The prosecutor has a constitutional (Brady v.
whether that suppression is intentional or inadvertent, the defendant's due process rights are abridged. [Citations.]' [Citation.]
" The scope of a prosecutor's disclosure duty includes not just exculpatory evidence in his possession but that possessed by investigative agencies to which he has reasonable access. As the
" When exculpatory evidence involves an eyewitness to the crime, what must be disclosed is not just the witness's identity 'but all pertinent information which might assist the defense to locate him.' (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851.)" (Fn. omitted.)
In In re Brown (1998) 17 Cal.4th 873, 886-887, the court summarized our obligations in reviewing the materiality of information which the prosecution failed to disclose to a defendant: " The current standard of review for Brady materiality was first articulated in Bagley, supra, 473 U.S. 667, although the United States Supreme Court began developing it in earlier decisions. [Citations.] Recently in Kyles, supra, 514
" Second, 'it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' (Kyles, supra, 514 U.S. at pp. 434-435.)
" Third, 'once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review.' (Kyles, supra, 514 U.S. at p. 435.) The one subsumes the other. (Id. at pp. 435-436.)
" Fourth, while the tendency and force of undisclosed evidence is evaluated item by item, its cumulative effect for purposes of materiality must be considered collectively. (Id. at pp. 436-437 & fn. 10; [citation].)
" In Bagley, the court identified another relevant consideration in noting that 'an incomplete response to a specific [Brady] request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.' (Bagley, supra, 473 U.S. at p. 682.) Given this possibility, 'under the [" reasonable probability" ] formulation the reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response.' (Id. at p. 683 [105 S.Ct. at p. 3384]; see, e.g., Payne, supra, 63 F.3d at p. 1209.)" (Fn. omitted.)
We tend to agree with Duran that if the information in the police report was material to his defense, it would be difficult for us to find that the prosecution met its discovery obligations. The fact the prosecutor himself did not receive the information until the last day of trial would not excuse the failure of the police department, which was reasonably accessible to the prosecutor, from producing the information. (See People v. Robinson, supra, 31 Cal.App.4th at p. 499.) The fact the information was produced before the end of the trial is also of little significance. As a practical matter a defendant can be seriously prejudiced even if evidence is produced before a trial has ended. The critical question is whether material information was produced in a fashion which permitted the defendant to effectively make use of it. (See In re Brown, supra, 17 Cal.4th at p. 887.)
However, on this record we cannot find that the information in the police report would have been of any material assistance to Duran. The day after the carjacking he was stopped driving the stolen car. In general he matched the description given by Garcia and in particular had a discolored right hand similar to the one Garcia had reported. Garcia talked to Duran directly and drove for a short while in the car with him. Thus Garcia had an excellent opportunity to recognize Duran and was able to pick him out of a photographic lineup.
In contrast, the witnesses disclosed in the report had not been in a car with Duran and in fact apparently wanted nothing to do with him while he was at the car dealership. Importantly, unlike Garcia, none of the undisclosed witnesses had been the victim of a harrowing carjacking. Under these circumstances a jury would not find their failure to identify him at all surprising or inconsistent with Garcia's testimony. Indeed, given the undisclosed witnesses' casual opportunity to observe him, had Duran called them and had them testify about their inability to pick him out of the photographic lineup, Duran would have established in a fairly conclusive fashion that the photographic lineup was not in any manner suggestive. Thus the witnesses' entirely explicable failure to identify Duran could have easily been used to support the validity of Garcia's positive identification.
In short given the at best neutral nature of the information the undisclosed witnesses could have provided and the real potential the information could have been used to buttress Garcia's identification, the prosecution's failure to provide the information on a more timely basis in no manner undermines confidence in the jury's verdict. The undisclosed witnesses' inability to identify Duran did not directly contradict Garcia's testimony and would not have provided Duran any fruitful avenue by which to rebut the evidence against him.
II
Respondent has conceded that under People v. Jones (1993) 5 Cal.4th 1142, 1150, Duran was subject only to five-year enhancements under section 667, subdivision (a), and that the prison term enhancements imposed by the trial court under sections 667.5, subdivision (a), and 667, subdivision (b), should be stricken.
Accordingly, the case is remanded to the trial court with directions to strike the prior prison term enhancements under sections 667.5, subdivision (a), and 667, subdivison (b), and to send to the Department of Corrections a corrected abstract of judgment. In all other respects, the judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] The section provides:
" The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:
" (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.
" (b) Statements of all defendants.
" (c) All relevant real evidence seized or obtained as part of the investigation of the offenses charged.
" (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.
" (e) Any exculpatory evidence.
" (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."
