Filed 10/3/17 P. v. Valle CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found defendant Francisco Valle guilty of attempting to murder two San Francisco police officers; assaulting those officers with a firearm; being a past-convicted felon in possession of a firearm; and receiving stolen property. He was sentenced to state prison for two consecutive life terms, plus 45 years. He contends the trial court erred in denying his mid-trial motion to represent himself, and in denying his motion for a new trial. We conclude the new trial motion should have been granted. In light of this conclusion, and there being no likelihood of it recurring, we express no opinion on the ruling on the self-representation motion.

BACKGROUND

The parties’ briefs disclose a thorough knowledge of the trial record, and defendant does not contend the evidence in that record is insufficient to support any of his convictions. So, the evidence need not be set forth at length. While defendant’s brief has an exhaustive statement of facts, he summarizes his trial as follows: “Appellant was convicted of having attempted to murder two police officers by shooting at them. The trial was a credibility contest between the two officers, who testified that appellant initiated the shooting, and appellant, who testified that one of the officers initiated the shooting by shooting at appellant in an apparent surprised panic when he suddenly saw appellant at his window surrendering with his hands up. Appellant testified that the man standing behind appellant returned fire at the police officers until appellant seized the gun from him to stop the shooting and ran away.”

While as far as it goes this is a fair summary, some greater level of detail is appropriate to appreciate the dispositive issue. The following narrative abbreviates the trial record in the light most favorable to the prosecution and in support of the jury’s verdicts. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

On the night of May 19, 2007, San Francisco Police Officers Cravalho and Morgado responded to a report of two fleeing burglars, one on foot and the other riding a bicycle. Morgado, who was driving, spotted defendant[1] riding a bicycle in the middle of the street.[2] When defendant in turn spotted the police vehicle, he increased his speed, rode away from the vehicle, rode onto the sidewalk, and ignored Cravalho’s shouted demands to halt. Defendant abandoned the bicycle. Cravalho left the police vehicle to follow defendant on foot.

Cravalho spied defendant crouching behind a minivan parked nearby. Morgado began nosing the police vehicle in front of the minivan. Cravalho testified that defendant “was focused on the patrol car.” Cravalho, who had drawn his firearm and was behind defendant, shouted, “Police. Hands up.” At that point, according to Cravalho, defendant “popped up” and “opened fire on the patrol car.” Morgado saw defendant pull a firearm from his waistband immediately prior to opening fire.[3] Morgado dived out of vehicle, and made it across the street to take cover behind another vehicle. He testified that “As I am doing a running low crawl, I literally saw the ricochets bouncing off the pavement next to my body.”

From a distance of approximately seven feet, Cravalho began firing at defendant. Taken by surprise, defendant turned and began trading shots with Cravalho.

When his 13-cartridge weapon was empty, Cravalho dived for cover behind the minivan, and then behind another vehicle, where he met Morgado. Defendant fled. Cravalho reloaded, and began a foot pursuit, followed by Morgado. After being joined by other officers, Cravalho lost sight of defendant. Both Cravalho and Morgado were taken to the hospital in ambulances as a “perimeter” was being established. Up to the point that defendant fled, Cravalho saw no other person on the street, and specifically no one described as approximately 5’ 9” in height and weighing about 300 pounds.[4] Morgado testified that he also saw no one on the street prior to the first shots, and no one other than defendant. Morgado never fired a shot.[5]

The officers on the “perimeter” began searching for defendant. They discovered a “blood trail,” which was followed. At about 5:00 a.m., defendant was found several blocks away hiding behind bushes. According to the officer who discovered him, defendant “went to great efforts to” “conceal” himself. Claiming to be “just a homeless person,” defendant refused the command to show his hands. As the officer testified, the command was not only for officer safety: “if I saw a bloody hand, I would know that’s my guy.” Moreover, “the gun hadn’t been recovered from that shooting.” Defendant was eventually immobilized and dragged out of the bushes by a police dog. There was a “significant” amount of blood on one hand. A gun found in the bushes was, according to a criminalist, the one which fired the 9-mm. bullets at the officers. Gunshot residue was on defendant’s hands.

Defendant testified that he is a painter living in Lodi, who was in San Francisco for a visit with his daughter. On the night in question, he met with David Fuentes, a “[v]ery close friend” (who stood “about” 5’ 8” and weighed “about 255 pounds”) at a bar in Daly City. After some drinking, they drove into San Francisco. They parked at Rivera and lower Great Highway (which is about two blocks away from where the shooting occurred at Taravel and 48th Avenue) and smoked a joint. According to defendant, he and Fuentes were walking to a bar when he “noticed there was [a] bike on the ground. . . . I was stoned, acting silly. I picked it up, got on it, rode out into the street.” That’s when he encountered Officers Cravalho and Morgado.

Defendant further testified that when he saw Cravalho get out of the police vehicle with gun drawn, he thought “I was going to jail.” He jumped off the bike, and hid behind the minivan. When the police vehicle came towards him, “I stopped in the middle of the driveway; he turned in; I jumped out of the way. And I looked into . . . the passenger side at him [Morgado] and had my hands up in the air, and I got shot.” “[T]he bullet hit my finger when I put my hands up in the air.” It was Morgado, from inside the vehicle, who shot him.

Defendant dropped to the ground as Morgado fired a second shot. It was at this point that Fuentes—who was behind defendant, standing next to the minivan—started firing at the police vehicle. Morgado fired a third shot about the time he jumped out of his vehicle. According to defendant, Fuentes was now “standing in front of me.” When the shooting stopped, defendant started running. He was carrying Fuentes’s gun. “I said, ‘Give me that.’ I took his gun. I put it in my pocket and I told him: ‘Go.’ ”

Defendant recounted how he ran to a nearby house, pounded on the front door while yelling “ ‘Please help me. Call the police.’ ” Getting no answer, “I took off from that house, I just kept running. I don’t know where I was running to, I was just running. I ended up by some bushes and I just fell into them.” He stayed there for three hours because he was afraid the officers would resume shooting at him. Fuentes had fled in the opposite direction. Defendant still had Fuentes’s gun when he was removed from the bushes. Defendant never had a weapon of his own, and he never fired at the officers. Defendant conceded his version was “a crazy-ass story,” but “[t]hat’s exactly how it happened.” At the time of trial, Fuentes was no longer alive. Defendant had spoken to Fuentes several times after that night, but he never asked Fuentes to come forward and “straighten this out” because “I didn’t want him to get in trouble. This man just saved my life. I’m not going to tell him to turn himself in.”

DISCUSSION

A recurring theme behind the scenes was that Officers Morgado and Cravalho were not paragons of the law enforcement profession. The defense knew before trial that Morgado was under investigation for misconduct, and that Cravalho was facing a criminal charge for battery. Indeed, the jury was instructed with CALCRIM No. 316 that “you may consider evidence that Officer Morgado committed a crime or other misconduct for the purpose of determining whether or not Officer Morgado has a character trait for violence and if so, whether or not Officer Morgado’s conduct on May 19, 2007 was in conformance with that character trait.”

After the jury returned its verdicts, additional information was sought and exchanged.[6] The new information expanded the possible misconduct to the prosecution’s ballistics expert, and showed that Morgado had been terminated from the police department five months after the verdicts. Shortly before new counsel was appointed for preparation of defendant’s new trial motion, the trial court conducted a massive in camera review in accordance with Brady v. Maryland (1963) 373 U.S. 83 and Pitchess v. Superior Court (1974) 11 Cal.3d 531, as a result of which, in defendant’s words, he was “provided . . . almost 900 pages of sealed discovery regarding Officers Cravalho and Morgado.”[7]

In April 2012, defense counsel noticed a motion styled “Motion To Set Aside Jury Verdict And Dismiss Case And Alternatively For New Trial.” The basis for relief was stated as follows: “This motion is based on the grounds that the prosecution failed to discover highly material and exculpatory information under Brady v. Maryland . . . and that the nondisclosure of exculpatory information at jury trial was an egregious violation of defendant’s due process rights and right to a fair trial. The discovery violations constituted egregious and prejudicial prosecutorial and law enforcement error such that a miscarriage of justice resulted, and that dismissal of this case is the proper and just remedy under the California Constitution and the United States Constitution.” This was also the basis for a new trial.

Counsel appointed to represent defendant on this appeal has commendably devoted more than 30 pages in his exhaustive opening brief detailing, with scrupulous fairness and accuracy, the wealth of material—much of it confidential and

sealed—produced in connection with the dismissal/new trial motion, and with the complex arguments addressed to the court. Argument on the motion was the subject of three hearings before the court made its ruling at the fourth. That ruling (which took it as conceded that the prosecution had failed to make full and appropriate disclosure), was stated on the record at considerable length, on July 29, 2013—more than two and

one-half years after the jury returned its verdicts on December 9, 2010.

“ ‘To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.’ [Citation.] ‘[T]he trial court has broad discretion in ruling on a new trial motion . . . ,’ and its ‘ruling will be disturbed only for clear abuse of that discretion.’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 308.)[8] This is essentially the same for a Brady violation. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 175–176 [Brady violation does not require reversal unless the suppressed or withheld evidence results in prejudice; “ ‘ “Prejudice, in this context, focuses on “the materiality of the evidence to the issue of guilt and innocence.” [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction “more likely” [citation], or that using the suppressed evidence to discredit a witness’s testimony “might have changed the outcome of the trial.” [citation]. A defendant instead “must show a ‘reasonable probability of a different result.’ ” ’ ”].) Denial of the motion, we conclude, was error.

At the outset we note certain matters not ordinarily emphasized in the standard review. First, the normal deference extended to the denial of a new trial motion is premised upon the denial being made by the same judicial officer who presided over the trial. That premise is absent here. Defendant’s new trial motion was not heard by the trial judge but a different judge replacing the trial judge by reason of illness. This circumstance placed the replacement judge (Honorable Newton Lam) at a disadvantage, a disadvantage he felt keenly: “I wish I had sat through the trial, because it would have been so much better to have sat through this trial . . . I’m so disappointed with that transcript.”

Second, even though defendant himself characterized his version of events as “a crazy-ass story,” as a reviewing court we can make no such judgment. Because defendant’s version is not physically impossible, its truth or falsity must be left entirely with the jury. (People v. Cudjo (1993) 6 Cal.4th 585, 608–609.)

Third, the jury did not totally reject defendant’s “crazy-ass story.” As already noted (see fn. 2, ante), it acquitted him of stealing a bike from inside the building he was accused of burglarizing. In addition, the jury rejected the prosecution’s view that the attack was the product of premeditation. Moreover, the jury returned its verdicts only after deliberating for three full days, including read-backs of the principals’ testimony, and examination of some of the physical evidence.

Against the background of these considerations, we now turn to the trial.

It was Morgado who provided the strongest identification of defendant, providing the most unambiguous testimony that defendant had the gun from the beginning, and that it was defendant who fired the first shot. Defendant’s strategy was to discredit Morgado with the mass of unfavorable material disclosed to the defense. Accordingly, the jury heard considerable evidence of Morgado’s professional misconduct in the form of violence against civilians. Defendant attacked Morgado as an accomplice to the killing of Asa Sullivan; as guilty of the unprovoked attack on James Washburn; and also guilty of the assault and false arrest of Charles Haynes, which resulted in Morgado’s criminal prosecution. And it was Morgado who was castigated by defense counsel in closing argument as “quick to react,” “has a bad temper, and . . . he’s not afraid to use deadly force.” The jury was asked the rhetorical question “do you know how difficult it is for a San Francisco police officer to be arrested for a crime?” and invited to ponder “what could someone have done to end up in court as a San Francisco police officer?” “This is an indictment of Mr. Morgado’s character,” who, because of his “history of violence,” was “simply not believable.”

By contrast, having no such arsenal against Cravalho, defense counsel essentially gave him a pass, telling the jury “Officer Cravalho did the very best he could,” and while “making one error after another,” was nevertheless “a hero.” Defense counsel summarized: “This is someone just quickly reacting . . . . Which is why I always feel sorry for Mr. Cravalho,” he was in a state of shock. Yet all this failed to persuade the jury to disbelieve Morgado, and to accept defendant’s version of Morgado’s out of the blue attack of deadly force.

What defendant terms the “Pitchess/Brady material regarding Officer Cravalho” are subject to a trial court order securing their confidentiality, which constrains our ability to discuss the details. (See Cal. Rules of Court, rule 8.46(f)(1).) It may be safely said that the material describes misconduct that pretty much covers the rainbow. It ranges from the purely private to the quasi-official. It includes adjudicated criminality as well as actions that could be viewed as criminal. Recurring themes are Cravalho’s belligerence and his tendency to evade accountability by emphasizing his status as a police officer. Granted, these themes were manifested off duty, and were commonly tied to intemperate consumption of alcohol. Still, the breadth and magnitude of the claimed “misconduct” is impressive. And without question, some of it reflects adversely on Cravalho’s ability to speak only truth.

At the beginning of this opinion we quoted appointed counsel’s characterization that the trial was, at bottom, a credibility contest between the two officers and defendant. The Attorney General does not dispute this characterization, but she maintains the evidence against defendant was “overwhelming, such that even the effective impeachment of Officer Cravalho would not have affected the jury’s verdict.” On this latter point, we do not agree.

True, the defense had every opportunity to impeach Morgado, yet it failed to dent his credibility for the jury. Still, that was when the defense was compelled to accept Cravalho at face value, even conceding to the jury that he was a “hero.” But what if Cravalho lost his halo? As already shown, the jury did not uncritically accept the prosecution’s view of defendant’s culpability. How much more critical would it have been had it known that Cravalho was a proven teller of untruths, with an established history of aggressive conduct towards civilians, and demonstrated propensity for throwing around his weight as a police officer? The answer is impossible to quantify, but we think the Attorney General errs in treating it as negligible.

Certainly, the defense would have been different. It would not have handled Cravalho with kid gloves, having the much easier task of directly challenging both officers’ credibility, painting them both as falling short of acceptable law enforcement professionalism. Defense counsel’s question to the jury—“do you know how difficult it is for a San Francisco police officer to be arrested for a crime?”—could now be directed at both Morgado and Cravalho, with the reinforcement that in each case the arrest had led to a conviction. Any jury could entertain reasonable doubts about the credibility of officers who fell so short of professional norms.

As previously noted, this was essentially a one-issue case for the jury—did they believe Morgado and Cravalho or defendant? The jury wrestled with that issue for five days before returning their verdicts when they had the information impeaching only one of the officers. We believe that if the defense had the opportunity to show that both Morgado and Cravalho had histories of failing to control their tempers, the jury’s doubts about the prosecution’s case would have been strengthened. We do not think the jury would have the same opinion of Cravalho’s veracity had it known that, just like Morgado, Cravalho too had a criminal conviction. In short, if the prosecution had to rely on two distinctly compromised witnesses, we believe there is a reasonable probability the jury would have accepted even less of the prosecution’s case. (People v. Verdugo, supra, 50 Cal.4th 263, 308.) The information not used at trial is clearly material, not cumulative, and sufficient to undermine confidence in the trial’s outcome. (People v. Beeler (1995) 9 Cal.4th 953, 1004; United States v. Bagley, supra, 473 U.S. 667, 678.)

This court has noted that error will more often prove prejudicial when there is only a narrow area of dispute between the prosecution and the defense. (People v. Vance (2010) 188 Cal.App.4th 1182, 1205–1207.) So it is here, because, as noted, the only genuine issue for the jurors was which of the two versions would they credit.

We reject defendant’s contention that our reversal should be accompanied with a direction that the cause be “dismissed with prejudice,” because it is predicated upon a multitude of claimed errors not found at trial and not sustained on this appeal.

The judgment of conviction is reversed.

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Richman, J.

We concur:

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Kline, P.J.

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Miller, J.