P. v. Stewart
Filed 11/12/13 P. v. Stewart CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. DEANTE STEWART, Defendant and Appellant. | A136221 (Solano County Super. Ct. No. FCR291353 & FCR290834) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING |
[NO CHANGE IN JUDGMENT] |
BY THE COURT:
It is
ordered that the nonpublished opinion filed herein on October 21, 2013, be
last sentence in the first full paragraph on page 19, beginning with the words,
“Unlike in the present case, . . . .â€
This
modification does not effect a change in the judgment.
The
petition for rehearing is denied.
Dated: ____________________________
P.J.
Filed 10/21/13 (unmodified version)
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. DEANTE STEWART, Defendant and Appellant. | A136221 (Solano County Super. Ct. No. FCR291353 & FCR290834) |
Defendant
Deante Stewart appeals after conviction of two counts of second degree robbery,
one count of assault with a firearm, and one count of possession of a firearm
by a convicted felon. (Pen. Code, §§ 211, 245, subd. (a)(2), 29800, subd.
(a)(1).)
of the first three counts and had one prior strike conviction and one violent
prison prior. (§§ 667, subd. (b)-(i),
667.5, subd. (b), 1170.12, subds. (a)-(d), 12022.5, subd. (a)(1), 12022.53,
subd. (b).) He was sentenced to more
than 21 years in prison. He claims his
convictions must be reversed because he was denied discovery of a police report
relating to a similar crime committed while he was in custody by an individual
with a similar appearance, and because the court did not allow him to present a
third party culpability defense based on that other crime. We find no error and we affirm.
The
prosecution’s case
On February 11, 2012, about 7:00 p.m., Arthur Hernandez and his friend
Michael Shishido were accosted from behind by an armed man as they were walking
through a lawn area on their way to Hernandez’s apartment in a gated community
in Fairfield known as the Parkland
apartments. The man demanded money, so
Hernandez threw his wallet to the ground near the robber. The wallet held no cash, only expired credit
cards and Hernandez’s driver’s license and social security card. The robber
picked up the wallet, then pointed his gun at Shishido and demanded money from
him. The robber hit Shishido on the back
of his head with his gun, so Shishido took a $10 bill from his pocket and gave
it to the robber. Shishido testified the
robber also kicked him in the leg. The
robber took off northbound, toward the entry gates to the apartment complex.
Hernandez
and Shishido continued walking to Hernandez’s apartment. Hernandez’s girlfriend had been walking with
them just before the robbery but had “slithered away†during the robbery. When
Hernandez discovered she was not in the apartment, he went to look for
her. As he approached the entry to the
apartment complex he saw the robber standing with a woman, talking to someone
in a car. He “couldn’t believe†the man
was still in the vicinity.
Hernandez returned
to his apartment as Shishido was describing the robber to a 911 operator.
Shishido described the robber as a 25-year-old African American with dreadlocks
and a cap. Hernandez described him as
Black, in his 20’s, with long dreadlocks and a white baseball cap, wearing a
gray or silver pullover hooded sweatshirt and jeans.
After
hearing a description of the robber broadcast, Fairfield Police Officer Joshua Kresha spotted defendant walking on a
nearby street with a woman. Defendant
was wearing a baseball cap and a gray sweatshirt, and he had long
dreadlocks. Kresha pulled his patrol car
up behind the two, got out of his car, drew his firearm, and ordered defendant
to the ground. The woman walked on and
Kresha could not identify her. Kresha
searched defendant but found nothing connecting him to the crime: no gun, no
wallet, and no $10 bill.
After
police interviewed Hernandez and Shishido, they took the men to the Foster
Lumberyard, about a block away from the Parkland
apartments, for a field show up. The
show up occurred some five to fifteen minutes after the crime. Both Hernandez and Shishido individually and
independently identified defendant as the robber. Hernandez immediately
recognized him and testified at trial he had “no doubt†about the
identification. Shishido also told the
police he was “absolutely†“one hundred percent certain†of the identification
and testified at trial he had “no doubt.â€
Kresha
told Fairfield Police Officer Patrick High that defendant was accompanied by an
unidentified female at the time of his arrest.
After participating in the field show up at the lumberyard, High
went to the Travis Lodge in Fairfield
(about a block and a half from the Foster Lumberyard) because he had had a
previous contact with defendant and a female at that location. He asked the desk clerk if either defendant
or his woman friend was registered there.
The clerk knew the woman, Dewaynna Gross,
as a frequent guest at the hotel and told High she had been in the hotel in the
vending machine area before the police arrived.
High
found Gross sitting in a stairwell of the hotel. He searched her with her consent but found
neither the fruits of the robberies nor a gun.
However, when High checked the area near the vending machines he found a
loaded gun under the ice machine. The
hotel clerk had not seen Gross hide a gun under the ice machine, but he had not
been watching her the entire time she was in that area. The police also searched along the path Gross
presumably would have traveled to the hotel from the area where defendant was
arrested, but they never found Hernandez’s wallet or the $10 bill Shishido had
given the robber.
The
gun found under the ice machine was a .380-caliber, semiautomatic, with a
predominantly black finish. No usable
fingerprints were found on the weapon.
It was registered to a San Leandro
man who had no connection to defendant or anyone else involved in the
case. He believed the gun had been
stolen by a house guest in September 2011, but there was no evidence to
implicate defendant or Gross in the theft.
Hernandez
and Shishido both testified at trial that the gun found under the ice machine
could have been the one used in the robbery, but neither man was sure. Neither was familiar with firearms. Shishido thought the gun he saw during the
robbery was silver or shiny and appeared bigger when the robber had it. Hernandez testified it was black, and he
thought it was a revolver. Hernandez had
previously told police the gun the
robber used was a semiautomatic.
On
March 30, 2012, a
correctional officer at the Solano County Jail attempted to conduct a live
lineup with defendant at the request of defendant’s attorney. Hernandez and Shishido showed up to view the
lineup, but defendant refused to participate, saying, “Are you guys deaf? I’m not going in. Didn’t you hear me?†Consequently, no lineup was conducted.
The
parties stipulated at trial that defendant had previously been convicted of a
felony for purposes of the felon in possession count.
The defense case
Defendant
did not testify. On cross-examination,
Shishido admitted he had tested positive for methamphetamine a month before the
robbery, when he was on probation.
Defense counsel asked several questions obviously intended to elicit
that Shishido had bought methamphetamine from defendant in the days preceding
the alleged robbery. Shishido denied all
such accusations, however, and denied that the robbery incident was related to
a methamphetamine transaction.
Counsel
also called one of the officers who had interviewed the victims at the crime
scene, eliciting that Hernandez had not provided as much detail during
preliminary interviews as he had testified to at trial. Hernandez was unable to describe the robber’s
facial features immediately after the offense.
Defense
counsel argued in closing that Shishido had been trying to purchase
methamphetamine from defendant on the evening of the alleged robberies and was
not satisfied with the amount he received.
Inferably, Shishido and Hernandez therefore sought revenge by falsely
accusing defendant of robbery and assault.
The judgment
Defendant
was convicted by jury verdict on all counts on June 4, 2012. The
prior conviction allegations were bifurcated and tried to the court, which
found the allegations true. On July 27, 2012, defendant was
sentenced to 21 years, four months, in prison based in large part on his prior
record, multiple offenses, and use of a firearm.
Before
trial, defense counsel moved for permission to put on a defense of third party
culpability with respect to two incidents she wanted to explore for purposes of
presenting evidence of such third party culpability. After being permitted to inspect the police
reports, she withdrew her request with respect to one of the incidents. The trial court denied counsel’s request for
a copy of the other report, ruling the crime was not sufficiently similar to
make the incident admissible as third party culpability evidence. Defendant argues the court erred. In addition, defendant contends he was
entitled to a copy of the police reports under Brady v. Maryland (1963) 373 U.S.
83 (Brady).
Background
Defense
counsel filed a motion to introduce “evidence that a third party, who may
currently still be at large, is the perpetrator of the offenses charged in the
above entitled cases.†The motion
claimed there were two other crimes so similar to the one with which defendant
was charged that the jury might reasonably believe the perpetrator of those
crimes (committed while defendant was in custody) must also be the one who
committed the Hernandez-Shishido robbery.
The
first incident was a robbery on April
2, 2012, in Fairfield
in which the perpetrator was described as a “black male with dreads wearing a
gray sweatshirt and armed with a handgun.â€
The second incident was a carjacking in Fairfield
on April 11, 2012. “During that incident, an individual
approached and then struggled with the occupant of a car and hit him in the
head with a handgun, ultimately stealing the vehicle. The perpetrator is described as a black man
in his mid-20s with long dreadlocks, a black hooded sweatshirt and black
pants.â€
The
motion claimed the police sketch of the second suspect shows “a black man with
hair that is virtually identical to Mr. Stewart’s with a broad face and facial
features.†Defendant argues on appeal
the two men were so similar in appearance they could be twins. We cannot assess defendant’s characterization
due to an inadequate record.
name="_ftnref3" title="">[3]
At
the hearing on the motion, the court allowed defense counsel to inspect the
police reports, neither of which was lengthy.
The court then offered defense counsel a chance to look over the
reports, and she acknowledged on the record, “I have had a chance to briefly
review the reports.†While there is no
indication in the record as to whether counsel had the opportunity to take
notes on what she read, she clearly had digested the contents. For example, with respect to the carjacking,
defense counsel had sufficiently absorbed the information in the police report
that she was able to recite the suspect’s height, weight, hair length and
style. The only other similarity she
reported was that the carjack victim also reported being “hit in the head with
a phone,†which she evidently considered comparable to Shishido’s being hit in
the head with a gun.
After reading the
reports, counsel withdrew her motion with respect to the April 2, 2012, incident because it was “a
different type of incident.†However,
defense counsel maintained the defense was entitled to a copy
incident so she could “investigate†the matter further.
The
prosecutor opposed the motion. She
argued that evidence of third party culpability should be excluded under
Evidence Code section 352 because such evidence would tend to confuse and
mislead the jury, particularly because the suspect had not been identified in
the April 11 incident. The prosecutor said, “If the defense is allowed to
bring in every male black with dreadlocks in Fairfield
who committed crimes similar to this, robberies with guns and carjackings, we
could just open up the flood gates.†The
prosecutor argued there were inconsistencies in the two crimes (most
significantly that one was a carjacking and one an armed robbery), and asserted
the official information privilege, emphasizing the carjacking case was an
“unsolved incident.â€
The
prosecutor’s opposition stated “there is no evidence linking anyone other than
the defendant to this crime . . . .†She argued the police reports should not be
released to defense counsel because they involved ongoing investigations and
their release would “violate privacy interests of the victims and witness in
those cases . . .â€
The
court took the motion under submission to “review the report again and some
additional points and authorities.â€
Several days later it denied the defense motion, reasoning as follows:
“THE
COURT:
[¶] . . . [¶] I’m going to deny the motion to
allow third party culpability evidence.
I just do not see any sufficient showing that the party responsible for
these unsolved robberies was in any way involved in the matters for which
Mr. Stewart is charged. And the
fact that the suspect in these other matters is of the same ethnic background
as Mr. Stewart, and wears his hair in the same fashion, and approximately the
same age, is not in and of itself convincing to the Court in any way. So the request does not cause the Court to
believe that there is any type of reasonable probability it’s the same individual,
or it’s the type of evidence that would likely raise a reasonable doubt to the
jury hearing this matter. The motion for
third party culpability is going to be denied.â€
After
hearing defense counsel’s argument, the court continued: “Well, I am just not prepared to order the
police department to release its investigation into ongoing, serious criminal
matters based on the showing that’s been made.
There is nothing in the circumstances of that report that the Court
reviewed, and allowed counsel to review, that is at all similar to the type of
robbery that occurred to what Mr. Stewart is being charged with, and so the
request for the release of that information will be denied.â€
We
are at a disadvantage in reviewing this issue, since we do not have access to
the police reports in question, nor do we have a clear basis for comparison of
defendant’s appearance with that of the unidentified carjacker. (See fn. 3, ante.) We note that defense
counsel could have—but did not—request that a copy of the police reports be
filed under seal. (Cal. Rules of Court,
rules 2.550-2.551.) Neither she nor
appellate counsel took any action to secure a copy of the police report for our
review. All the more reason for us to
defer to the trial court so long as its ruling was not an abuse of
discretion. We have no basis for such a
finding on this record.
Evidence of Third Party Culpability
Defendant
contends, “The trial court erred in denying defendant’s trial counsel’s request
for access to the police reports of the robbery committed in April in order to
investigate and present the defense of mistaken identity.†He further contends, “The trial court erred
in excluding evidence that there was an armed robber active in Fairfield at the
time of the Parkland robbery who looked and dressed very much like appellant
and used robbery tactics identical to those used in that robbery.â€
First,
we note that defense counsel was not entirely denied access to the report; she
was denied a copy of it. More fundamentally, we find there was not
sufficient similarity between the two crimes or criminals to make the report
admissible as evidence of third party culpability. If defense counsel wanted to pursue this line
of defense she could have conducted further investigation based on what she saw
in the police reports.
“It
is a defense against criminal charges to show that a third person, not the
defendant, committed the crime charged.
(People v. Hall (1986) 41
Cal.3d 826, 832.) A criminal defendant
has a right to present evidence of third party culpability where such evidence is
capable of raising a reasonable doubt as to his guilt of the charged
crime. However, as the Supreme Court
explained in People v. Hall, ‘we do
not require that any evidence, however remote, must be admitted to show a third
party’s possible culpability . . . . [E]vidence of mere motive or opportunity to
commit the crime in another person, without more, will not suffice to raise a
reasonable doubt about a defendant’s guilt: there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the
crime.’ ( Id. at p. 833.) In addition,
on appeal, the defendant must show prejudice from the erroneous denial of
discovery. (People v. Memro (1985) 38 Cal.3d 658, 684.)†(People
v. Jackson
(2003) 110 Cal.App.4th 280, 286.)
Trial
courts should “simply treat third-party culpability evidence like any other
evidence: if relevant it is admissible
([Evid. Code,] § 350) unless its probative value is substantially
outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,]
§ 352).†(People v. Hall, supra, 41 Cal.3d at p. 834.) In People
v. Elliott (2012) 53 Cal.4th 535 (Elliott),
the Supreme Court further explained the relevancy inquiry: “ ‘[T]o be admissible, evidence of the
culpability of a third party offered by a defendant to demonstrate that a
reasonable doubt exists concerning his or her guilt . . . must link
the third person either directly or circumstantially to the actual perpetration
of the crime. In assessing an offer of proof relating to such evidence, the
court must decide whether the evidence could raise a reasonable doubt as to
defendant’s guilt and whether it is substantially more prejudicial than
probative under Evidence Code section 352.’
[Citations.] Evidence of a third
party’s prior crimes is inadmissible to establish the third party’s criminal
propensity. [Citations.] For evidence of an uncharged offense to be admissible
to establish the third party’s identity as the perpetrator of the charged
crimes,‘ “[t]he pattern and characteristics of the crimes must be so
unusual and distinctive as to be like a signature.†’ [Citations.]
A large number of common marks may, when viewed in combination,
establish the required distinctive pattern.
[Citation.] A trial court’s
ruling excluding third party culpability evidence is reviewed for abuse of
discretion. [Citation.]†(Id. at
pp. 580-581; see also, People v. Hall,
supra, 41 Cal.3d at pp. 833‑834.)
The
link between the robber in the case before us and the carjacker in the April 11
crime was simply too tenuous. The court
did not abuse its discretion in finding it inadmissible―and not subject
to further discovery―when balanced against the People’s interest in
confidentiality and third party privacy interests.
The
Supreme Court rejected a similar argument in People v. Brady (2010) 50 Cal.4th 547, where a defendant
accused of murdering a police officer sought to introduce hotline tips from the public concerning the
murder, including a recorded confession (later recanted) and an unsigned letter
claiming responsibility for the murder.
The court also excluded evidence that another individual resembled the
composite drawing of the killer and evidence intended to link an Asian man with
the killing because he had killed two other police officers.
those tips on relevance grounds. (
The
Supreme Court concluded “the trial court did not abuse its discretion in
excluding the four clues, as the proffered evidence suggested no link between
the third parties and the actual perpetration of [the officer’s] murder.†(People
v. Brady, supra, 50 Cal.4th
at p. 558.) With respect to the unsigned
letter claiming responsibility, the court observed: “Third party culpability evidence that does
not identify a possible suspect is properly excluded. (See People
v. Sandoval (1992) 4 Cal.4th 155, 176-177.)†(Id.
at p. 559.) And even assuming the trial
court erred in excluding evidence of the hotline tips, the error was not
prejudicial under either the state or federal standard of review. (Id.
at p. 559.)
In
People v. Page (2008) 44 Cal.4th 1,
the defendant claimed two other men were potential suspects in the offense of
which he was convicted, but they had not been thoroughly investigated. (Id.
at pp. 35-36.) The Supreme Court
found no abuse of discretion in excluding evidence of their possible
culpability “because it did not link any third person to the actual
perpetration of the crime.†(
evidence linking the third person to the actual perpetration of the crime,†as
opposed to simply showing that the person had the motive or opportunity to
commit the offense. (
v. South Carolina (2006) 547 U.S.
319, 327 [noting “widely accepted†rule that third party culpability evidence
that does not sufficiently connect the third party to the crime may be
excluded].)
In
the case before us the argument in favor of admissibility is even weaker. The argument was similar to that in
wrong man and failed to investigate another potential suspect―but the
unidentified “other suspect†was deemed a suspect by defendant alone. And defendant claimed he was a suspect based
on nothing more substantial than superficial resemblance and his use of a gun
in another crime.
The
trial court did not abuse its discretion in denying defense counsel’s request
to copy police reports and introduce evidence
of third party culpability. First, the
suspect in the April 11 Fairfield
carjacking had not been identified. The investigation into that crime was
ongoing. As noted above, “[t]hird party
culpability evidence that does not identify a possible suspect is properly
excluded.†(People v. Brady, supra,
50 Cal.4th at p. 559; see also, Jackson,
supra, 110 Cal.App.4th at p. 288
[“the defense value of . . . other similar crime files was tenuous
unless the crimes were solvedâ€].)
Second,
there was no evidence to “link the third person either directly or
circumstantially to the actual perpetration of the crime.†(Elliott,
supra, 53 Cal.4th at
p. 580.) Defense counsel argued the
police sketch of the suspect in the carjacking resembled defendant. Counsel also argued the crimes were similar
because the carjacker used a handgun and struck the victim on the head. However, there was no evidence linking the
suspect to the robberies committed against Hernandez and Shishido.
Third,
there was nothing remotely approaching a “pattern†in the two crimes “so
unusual and distinctive as to be like a signature.†(Elliott,
supra, 53 Cal.4th at p. 581.) One crime was a run-of-the-mill street
robbery and the other a seemingly ordinary carjacking. The February incident involved a demand for
money and the April incident involved the demand for a cell phone and the
taking of a vehicle. The fact that guns
were used in both incidents is not unusual or distinctive, nor is the fact that
the perpetrator in both instances struck the victim with his gun. Such details are depressingly familiar and
common.
Moreover,
there were distinct differences between the two crimes. The robbery of Hernandez and Shishido was
committed at approximately 7:00 p.m.,
while the carjacking was committed at 1:40 a.m. The robbery occurred in the common area of a
private residential complex. The carjacking
apparently occurred at an intersection of two public streets. The robber in February took off on foot,
while the carjacker drove off in the victim’s car.
Finally,
the prosecutor urged the court to exclude the evidence under Evidence Code
section 352. “ ‘Under Evidence Code
section 352, the trial court enjoys broad discretion in assessing whether the
probative value of particular evidence is outweighed by concerns of undue
prejudice, confusion or consumption of time.
[Citation.]’ [Citation.] A trial
court’s discretionary ruling under Evidence Code section 352 will not be
disturbed on appeal absent an abuse of discretion.†(People
v. Lewis (2001) 26 Cal.4th 334, 374.)
Allowing the defense to introduce evidence of the unsolved April
carjacking would have sidetracked the jury with evidence of an unsolved crime
involving an unknown suspect with no proven connection to the crimes in this
case. The result would have been jury
confusion and undue consumption of time.
Failure to provide defense counsel with a copy of the April 11 police
report
The
trial court also was well within its discretion in refusing to provide a copy
of the police reports to defense counsel, having based its decision in part on
the fact that the carjacking had not been solved and involved an ongoing
investigation. The prosecution asserted
the official government privilege under Evidence Code section 1040 in response
to defendant’s request for copies of the police reports. “Ongoing investigations
fall under the privilege for official information. (Evid. Code, § 1040.)
Moreover, the victims have a constitutional right of privacy. (Cal.
Const., art. I, § 1.) Both of these
factors weigh heavily against a criminal defendant’s right to potentially
exculpatory material.†(
Evidence Code section 1040 expressly requires the “necessity for
preserving the confidentiality of the information†to be weighed against “the
necessity for disclosure in the interest of justice.†(Evid. Code, § 1040,
subd. (b)(2).)
Two
cases cited to the court below dealt specifically with “whether a defendant’s
entitlement to potentially exculpatory material outweighs the official
information privilege and a victim’s privacy rightsâ€: Jackson, supra, 110 Cal.App.4th at page 288 and People v. Littleton (1992) 7 Cal.App.4th 906.
A
“ ‘trial court has discretion “ ‘to protect against the disclosure of
information which might unduly hamper the prosecution or violate some other
legitimate governmental interest,’ †or when there is an “ ‘absence
of a showing which specifies the material sought and furnishes a “plausible
justification†for inspection . . . .’ †[Citation.] Although policy may favor
granting liberal discovery to criminal defendants, courts may nevertheless refuse
to grant discovery if the burdens placed on government and on third parties
substantially outweigh the demonstrated need for discovery. [Citations.]’ [Citation.]†(Littleton
, supra, 7 Cal.App.4th at p.
910.)
the privacy interests of victims and citizen witnesses in those cases
outweighed the “tenuous and speculative†benefit to defendant in discovering
those police reports. (
In
Littleton
the defendant had requested copies of police reports in 12 other burglary-rape
cases in the same geographic area where defendant’s crime had occurred, in
which no suspect had been identified and the defendant had not been eliminated
as a suspect. (Littleton, supra, 7 Cal.App.4th at pp. 909-911.) “Because no one had been arrested or charged
with those other crimes in this case, the information in the reports would have
been of no value to the defendant unless he was able to solve the other crimes and identify the
perpetrator. . . .
Weighed against this speculative benefit was the government’s legitimate
need for confidentiality of ongoing police investigations and the privacy
interests of the victims and witnesses identified in those other reports.†(Id.
at p. 911.) A similar result was
reached in Jackson,
supra, 110 Cal.App.4th at pp.
288-289, which involved a challenge based on both state statutory and federal
constitutional grounds.
The courts in
defendant was granted discovery of police investigation files of similar crimes
on grounds that the other crimes in that case had been solved and other
individuals had been charged with their commission. “[T]his distinction is critical: the government’s interest in maintaining
confidentiality in a case of ongoing investigation is far greater than in a
case where a suspect has been charged and the matter has entered the public
view through the court system.†(
7 Cal.App.4th at pp. 910-911.)
The
court here fully reviewed the police report in question. Following that review, the trial court saw no
striking similarities between offenses or offenders such as to render
admissible evidence of the carjacking.
Indeed, defense counsel, having reviewed the whole report, came up with
no explanation about why she needed a copy of it except to locate the victim
and possibly other witnesses and to “investigate†the matters contained in the
police report. She did not point out any
additional details contained in the reports that needed follow-up. On appeal defendant proposes only that the
victim of the carjacking could have testified that defendant looked a lot like
the carjacker. It seems to us that, having
reviewed the police report, defense counsel probably gleaned enough information
to follow up with the victim if she deemed it necessary.
Moreover,
defendant himself could have testified he was not involved in the robbery and
told the jury, as he did the arresting officer , that another man in the
immediate vicinity resembling him in appearance and hairstyle and wearing
identical clothing was the actual culprit.
present the drug‑deal‑gone‑bad defense.
Finally,
any error in excluding evidence of third party culpability was harmless under
either the state or federal standard of review.
(Chapman v. California (1967)
386 U.S. 18, 24 (Chapman);
836 (Watson).) The evidence against defendant was
compelling. Both Hernandez and Shishido
identified him near the crime scene moments after they were robbed. They were absolutely positive about their
identification both at the crime scene and at trial. A gun similar to the one used in the robbery
was found in a location where defendant’s female companion had gone shortly
after the robbery. And finally,
defendant refused to participate in a live lineup at the jail, which tended to
show consciousness of guilt. Even if
evidence of the April 11 carjacking had been admitted, there is no reasonable
possibility or probability defendant would have received a more favorable
outcome. (Chapman, supra, 386 U.S.
at p. 24; Watson,
Brady v.
Defendant
contends, “Evidence that a very similar crime has been committed by someone
other than the defendant is potentially exculpatory evidence which must be
disclosed under Brady v. Maryland.†Under Brady,
the prosecution violates a defendant’s right to due process if it withholds
exculpatory evidence―that is, evidence “favorable to the
accusedâ€â€•material to the defendant’s guilt or punishment. (Brady,
supra, 373 U.S. at p. 87.) Evidence
is “material†within the meaning of Brady
when there is a reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different. (Cone
v. Bell
(2009) 556 U.S.
449, 469-470.) A “reasonable probability
does not mean that the defendant ‘would more likely than not have received a
different verdict with the evidence,’ only that the likelihood of a different
result is great enough to ‘undermine[] confidence in the outcome of the
trial.’ †(Smith v. Cain (2012) __ U.S. __, 132 S.Ct. 627, 630, quoting
434.) On a claim of Brady violation, we review the record independently. (People v.
Salazar (2005) 35 Cal.4th 1031, 1042.)
As
the Attorney General points out, “[t]here is no Brady violation ‘where a defendant “knew or should have known the
essential facts permitting him to take advantage of any exculpatory
information,†or where the evidence is available . . . from another
source,’ because in such cases there is really nothing for the government to
disclose. [Citations.]†(Coe v.
Bell (6th Cir. 1998) 161 F.3d 320, 344.)
“When, as here, a defendant has enough information to be able to
ascertain the supposed Brady material
on his own, there is no suppression by the government.†(United
States v. Aichele (9th Cir. 1991) 941 F.2d 761, 764.)
In
this case defendant’s Brady claim
fails because the defense had access to the key information concerning the
carjacking on April 11, 2012. Indeed, defense counsel attached a copy of
the police sketch of the carjacking suspect to her motion to admit evidence of
third party culpability. During the
hearing on the motion, the court permitted defense counsel to personally review
the police reports. Though the court
refused to give her a copy of the report relating to the carjacking, there is
no reason to think she could not have made a mental note of the victim’s name
and pursued further investigation as warranted.
Even
after reviewing the report she was not able to list any truly significant
similarities between the robbery of Hernandez and Shishido and the April 11
carjacking. The only additional information she provided was that the carjacker
was five feet, eight inches tall and weighed 150 pounds, whereas defendant was
five feet, six inches tall and weighed 140 pounds. Defense counsel acknowledged the height and
weight of the two suspects were “inconsistent.â€
Other
than that, she continued to argue the same factors she had in her written
motion based on the police sketch and accompanying press release alone: the
robber and carjacker were of the same race, both had shoulder-length
dreadlocks, both wore hoodies, both used guns, and both pistol-whipped their
victims. These are the same factors
defendant now argues on appeal. This
strongly suggests the police report itself offered no additional details about
the carjacking or the carjacking suspect to support a finding of similarity
between the two crimes. For instance, we
think it is fair to infer that the police report said nothing about the
carjacker having acne, or defense counsel would have pointed that out to the
court. In the absence of some more
distinctive trait of appearance, and in the absence of a distinctive modus
operandi, it is doubtful such evidence can be considered truly “exculpatoryâ€
within the meaning of Brady. But even assuming for purposes of argument
the evidence was “exculpatory,†we cannot find it material.
In
determining the materiality of evidence allegedly suppressed by the
prosecution, we consider both the probative force of the evidence that was
withheld from the defense and the strength of the evidence actually
presented. The more uncommon the
physical characteristics of the defendant which are shared by the criminal at
large, the stronger the probative value of the unsolved crime. Similarly, the more the manner in which the
two crimes share uncommon and “signature-like†features, the more likely it is
the evidence of the unsolved crime may be considered material. The tenuous connection between the two
criminal episodes in this case makes the probative value of the evidence weak
at best.
It
is questionable whether evidence that a perpetrator of a similar height,
weight, and ethnic background also committed a robbery on a date when the
defendant was in custody―without more―can rightly be considered
“favorable†to the defense. Yet, in this
case the physical features that suggested the robber and the carjacker were the
same person were nothing more than generic characteristics, such as age, race,
and hairstyle. The heights and weights
were not identical. The clothing styles
were similar but not identical, and were common among young men in defendant’s
age group. The police report on the
present crime notes that defendant has acne, whereas, so far as we can discern,
no such observation was made about the carjacker.
Nor
was the mere use of a handgun―either as a means of intimidation or in the
pistol-whipping that occurred in each case―an unusual factor in today’s
crimes. There was no “signature†modus
operandi. The crimes were not even the
same, one being a garden-variety armed robbery and the other being a seemingly
ordinary carjacking.
In
similar circumstances Jackson,
supra, 110 Cal.App.4th 280, cited by
the People below, applied the rationale of
of a Brady claim. The court held it was proper under both
statutory discovery rules and Brady
to deny a burglary-rape defendant discovery into police investigative files of
other burglary-rapes in the area. (
291.) This was true even though one of
three crimes on which discovery was sought “shared many similarities with the
crimes charged against appellant, including the time and location of the
attack, mode of entry, nature of the touchings, flight of the suspect and his
initial description.†(
Defendant
distinguishes Littleton
grounds that he can be eliminated as a suspect in the April 11 carjacking
because he was in custody when that offense was committed, whereas the
defendants in Littleton
not be eliminated as suspects in the other cases. However, defendant’s argument essentially
boils down to this: a criminal defendant
is entitled to discover police investigative files related to all similar (not
even identical) unsolved crimes in the same city where the charged offense
occurred, at least insofar as the perpetrator in those cases resembled the
defendant in height, weight, race, hairstyle and clothing style, the crimes
bore some generic similarities such as gun use, and the defendant may be
eliminated as the perpetrator of the second offense. We cannot carry either Brady or the defendant’s right to discovery that far. There must be something more distinctively
similar about the crimes or the criminals to warrant the burdens inherent in
requiring such disclosure. Commonplace
similarities in appearance, such as age, height, weight and race, are
insufficient.
Defendant
relies almost exclusively on United
States v. Jernigan (9th Cir. 2007) 492 F.3d 1050 (Jernigan), in which a diminutive Hispanic woman with acne or pock
marks on her face was convicted of bank robbery after allegedly robbing three
banks. While she was in custody and
awaiting trial, three more bank robberies were committed in the area by a woman
“whose description bore an uncanny physical resemblance†to Jernigan’s. (Id.
at p. 1051.) “Although the prosecution
knew that other nearby banks had been robbed by a diminutive, Hispanic female
with poor skin after Jernigan’s arrest, the prosecution failed to relay this
information to defense counsel.†(
The government did not dispute “that the evidence of an additional bank
robber matching Jernigan’s description was favorable to Jernigan and that the
government failed to provide it to defense counsel . . . .†(Id.
at p. 1053.) The only issue in dispute
was whether the evidence was material. (Ibid.) Unlike in the present case, a specific
individual had been arrested and charged with the later bank robberies. (Id.
at p. 1052.)
After
reviewing the evidence as well as national statistics showing “only six percent
of all bank robbery perpetrators were female†in the year the robberies took
place, and “[o]nly six percent of bank robbers overall (male and female) were
Hispanic,†the Ninth Circuit concluded the evidence was material and Jernigan
was prejudiced by its suppression. (
1056.) The holding of
another known or believed to have committed a similar crime who both have
“phenotypically similar†traits. (
Of
particular significance in our view was that both Jernigan and the other
accused robber had acne or pock marks on their faces. This unusual coincidence of largely
inalterable physical features, together with the low crime statistics for the
defendant’s sex and ethnic group, appears to have had a major impact on the
court’s decision.
There
are several important distinctions between our case and Jernigan. First, the crime committed by the bank
robber in Jernigan was identical to
the defendant’s crime (i.e., bank robbery), and in fact she robbed the same
bank branch that defendant was convicted of robbing. (Jernigan,
supra, 492 F.3d at p. 1052.) Common
experience tells us bank robberies are less common than street robberies such
as that involved in our case. Indeed, in
our case defendant sought to introduce evidence of a suspect in an entirely
different crime, namely a carjacking.
Although both the robber and the carjacker carried guns and used their
weapons to strike their victims on the head, these are not distinctive or
unusual features of such unfortunately common crimes. None of the behavior of
the April 11 carjacker makes his conduct or existence material in the present
case.
As
for his appearance, the defendant in Jernigan,
had an “uncanny physical resemblance†to a still active bank robber. (Jernigan,
supra, 492 F.3d at p. 1051.) “[B]oth
women were roughly five feet tall, Hispanic, and had acne or pock-marked
complexions.†(Id. at p. 1051, fn. omitted.)
This combination of unusual physical features was “noteworthy†to the
court’s decision. (Id. at p. 1051.)
In
this case, there was no evidence of a “noteworthy†or “uncannyâ€
resemblance. The carjacker was reported
to be two inches taller than defendant (5 feet 8 inches versus 5 feet 6 in
ches) and ten pounds heavier. Neither
the individual similarities pointed out by defendant (race, age, weight,
hairstyle, style of dress) nor their combination in a single individual are
unusual in the population, as were the pock marks of the short Hispanic
woman. Many young African Americans wear
their hair in dreadlocks and wear hoodies.
Interestingly, the arrest report for defendant shows that he, too, had
acne, but there was no similar notation for the carjacker.
The
court in Jernigan also had before it
statistics to show a Hispanic female was “a most unlikely bank robber.†(
In our case we have been presented with no statistics to suggest that
young African American men, with or without dreadlocks, are underrepresented in
committing the types of crime involved here.
Therefore, Jernigan is not
persuasive.
As
the prosecutor told the trial court, “If the defense is allowed to bring in
every male black with dreadlocks in Fairfield
who committed crimes similar to this, robberies with guns and carjackings, we
could just open up the flood gates.†The
trial court did not abuse its discretion in refusing to open those flood gates.
Strength of the evidence as affecting admissibility of third party
culpability evidence
Defendant
contends the prosecution’s case was weak and that factor should have influenced
the court’s ruling on admissibility of evidence of third party
culpability. He argues the prosecution’s
evidence was so weak that additional evidence of the April 11 carjacking would
have been sufficient to raise a reasonable doubt as to defendant’s guilt. In particular, defendant argues “[t]he
evidence linking defendant to the crime was unreliable cross-racial
identification of him made under highly suggestive conditions,†and “[t]here
was none of the corroborating evidence one would expect to find if defendant
was actually the robber.†Defendant also
argues the gun found under the ice machine did not match the victims’
descriptions of the gun used in the robbery, there was no evidence defendant’s
female companion was Gross, there was no evidence defendant handed anything to
his female companion, there was no evidence Gross put a gun under the ice
machine, and there was no evidence linking the gun to either defendant or
Gross.
But
the evidence pointing to defendant’s guilt was much stronger than he
acknowledges. Defendant wore the same clothes as the robber. Both Hernandez and Shishido firmly identified
defendant near the scene within minutes of the robbery and were equally certain
at trial.
Defendant
asks us to discount the identification evidence because the identifications
were cross-racial.
title="">[9] The jury was instructed under CALCRIM No. 315
that, in evaluating identification testimony, it should take into account
whether the witness and the defendant are of different races. Given the victims’ certainty of the
identification, the close proximity in time between the show up and the crime,
and the court’s admonition to the jury, defendant’s complaint about
cross-racial identification carries little weight. Cross-racial or not, these two independent
identifications of defendant were strong evidence of his guilt.
The
rest of the evidentiary gaps cited by defendant could be filled by inference
from the evidence presented. Officer
Kresha told Officer High defendant had been in the company of a woman just
prior to his arrest. Officer High went
to Travis Lodge, not far from the crime scene, specifically because he
recognized defendant from a previous encounter there. He evidently went there on the hunch he might
find the woman who had accompanied defendant on the prior occasion. He learned from the front desk clerk that
Gross had come in earlier and passed through the vending machine area. He personally contacted Gross in the hotel’s
stairwell and would have known whether she was the same woman who had been with
defendant on the prior occasion. That
she was the same woman may be inferred from all the testimony.
Similarly,
when Officer High found the gun under the ice machine, it was reasonable to
infer Gross had abandoned it there. It
was also fair to infer she had obtained it from defendant after the robberies.
jury was instructed in accordance with CALCRIM No. 223 that both direct and
circumstantial evidence are acceptable forms of proof.
Defendant
also exaggerates the supposed contradictions in identifying the gun as the one
used in the robberies. Hernandez
testified the gun resembled the one used in the robbery. Shishido also testified it could have been
the same gun, although he was not sure.
Neither Hernandez nor Shishido was familiar with guns, and their
testimony about the gun was not altogether consistent. While Shishido thought the gun was silver or
shiny, Hernandez testified it was black.
The gun, in fact, is predominantly black with some silver showing, which
may explain the discrepancies in the two descriptions.
That
Hernandez’s wallet and Shishido’s ten dollar bill were never recovered did not
significantly undercut the prosecution’s case. Defendant could have secreted
the items somewhere, given them to Gross, or handed them to the man he and
Gross were seen talking to in a car.
Finally,
defendant points out he was “behaving in a very unusual manner for a person who
has just robbed two men at gunpoint . . . .†Defendant claims if he “had actually been the
man who robbed Mr. Hernandez a few minutes earlier,†he would have run away
rather than lingering near the apartment complex.
But
an armed assailant who successfully robbed two unarmed individuals would not
necessarily expect the victims to follow him.
It would not be unbelievable for defendant to rendezvous with his
girlfriend before leaving the area, which is precisely what occurred. Although defendant lingered several minutes,
he was in the process of leaving when Hernandez arrived and spotted him. And even if defendant’s behavior was unusual,
it could as easily be a testament to his brazen lawlessness as to his innocence. While flight is often evidence of a guilty
conscience, failure to flee is not necessarily indicative of innocence. (People
v. Williams (1997) 55 Cal.App.4th 648, 651-653.) The jury was aware of the facts and could
draw or refuse to draw available inferences.
Add
to that defendant’s refusal to participate in a lineup, and the evidence of
guilt was strong. Truly, the most
“unusual†behavior by defendant, as compared with that of an innocent man, was
his refusal to participate in a lineup that was scheduled at the request of his
attorney. Obviously, the lineup could
have exonerated him if he were truly innocent of the offense. His refusal to participate suggests a guilty
conscience and leads us to conclude the evidence of a carjacker with dreadlocks
was not likely to have raised a reasonable doubt about his guilt.
The
judgment is affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline,
P.J.
_________________________
Haerle, J.
Code.
1, 2012, in case no. FCR291353, and were jointly charged in the current offense
in FCR290834. The charges against Gross
were resolved prior to trial. All
charges from both dates were charged against defendant in a consolidated
information in no. FCR291353. The
charges stemming from the January 1 events were dismissed by the prosecutor at
the start of trial because the victim could not be served.
