Filed 9/26/17 P. v. Ayala CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Law Office of Nicco Capozzi and Nicco Capozzi for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Raul Ayala contends the trial court abused its discretion in denying his motion for a mistrial on the grounds the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose two potential witnesses. We disagree and affirm.

FACTUAL AND PROCEDURAL SUMMARY

Teenaged Joselyn was watching a movie with her 10-year-old sister in a bedroom of their home when she heard glass breaking. Joselyn came out of the bedroom and saw Ayala in the home; he was covered in blood. She recognized Ayala as their next-door neighbor for the past 13 years. Ayala ran to the kitchen with a baseball bat and began smashing windows.

Ayala made eye contact with Joselyn and started approaching her. She ran back to the bedroom, closed the door, and placed her body weight against the door to prevent it from being opened. After Ayala was unable to gain entry to the bedroom, Joselyn heard him unlock the front door. Joselyn came out of the bedroom and saw blood and glass everywhere and the front door open.

Joselyn’s grandmother was outside of the house doing laundry during the time Ayala was in the house. Grandmother did not come into the home until after Ayala had left.

Bakersfield Police Officer Jonathan Berumen responded to the scene and observed the front window was shattered and most of the glass was inside the home, indicating the window had been broken from outside. Inside the home, he found blood in the living room and kitchen, including shoe tracks in blood. The kitchen window had been shattered and was bowed outward, indicating it was hit from inside the house.

Berumen followed the blood trail outside the house; it led to the neighboring house where Ayala lived with his parents. Inside the fence, he found a T-shirt and aluminum baseball bat with blood on them. The blood trail led inside the house to a back bedroom, where more items with blood on them were found.

While Berumen was in Ayala’s house, another officer called out that Ayala had been located two houses away. Ayala initially began walking away from officers, but was apprehended and taken into custody. Ayala had a significant amount of blood on his clothing. A pat-down search uncovered a 14-inch kitchen knife in Ayala’s waistband, which was covered by his shirt.

Ayala was convicted of first degree burglary (Pen. Code[1] § 460, subd. (a)); carrying a concealed dirk or dagger (§ 21310), and vandalism of property exceeding $400 (§ 594, subd. (b)(1)). It also was found true that the burglary constituted a violent felony (§ 667.5, subd. (c)(21)); all three offenses were committed while Ayala was released on an earlier felony offense (§ 12022.1); and that he had suffered one prior serious felony conviction (§ 667, subds. (c)-(j)).

A total term of 15 years imprisonment was imposed. On May 17, 2016, Ayala filed a notice of appeal.

DISCUSSION

Ayala contends the prosecution violated its duty under Brady prior to the preliminary hearing, thereby denying him due process. We disagree.

Factual Background

After Joselyn testified on direct examination that, when Ayala broke into the house, she had been in the bedroom with her sister while her grandmother was in the backyard, defense counsel requested a sidebar. Defense counsel indicated he would move for a mistrial. Defense counsel proceeded to cross-examine Joselyn, after which the jury was excused.

After the jury was excused, defense counsel moved for a mistrial on the grounds the prosecution had failed to disclose Joselyn’s sister and grandmother as potential witnesses. Defense counsel stated that the police reports contained no mention of Joselyn’s sister or grandmother; claimed the prosecution knew about the potential witnesses; and alleged the discovery violation warranted granting a mistrial or a continuance. There also was no mention of the sister or grandmother at the preliminary hearing.

The prosecution responded that it had learned of the sister’s presence in the bedroom that morning, shortly before Joselyn testified. The trial court noted that Joselyn testified the grandmother was “outside,” which it took to mean outside the house and did not see anything. The trial court denied the motion for a mistrial and stated it would “resolve the problem.”

Later on the record, the trial court stated that it worked with counsel to provide the defense the names of the people who came up during Joselyn’s testimony; and to coordinate a chance to allow the defense to get statements from these two people.

The prosecution stated that it had been able to ascertain that the defense investigator did speak with the grandmother, but not the 10-year old sister. Joselyn was interviewed by the defense investigator and “thinks she said something” about her sister’s presence, but could not really remember.

Defense counsel argued for a mistrial. The trial court reaffirmed its initial ruling denying the motion for mistrial, stating the defense had access to all witnesses.

Standard of Review

“‘The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant’ when the evidence is ‘both favorable to the defendant and material on either guilt or punishment.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 866; see Brady, supra, 373 U.S. at p. 87.) “The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials. [Citations.] The obligation is not limited to evidence the prosecutor’s office itself actually knows of or possesses, but includes ‘evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citation.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see Kyles v. Whitley (1995) 514 U.S. 419, 437.) “Because ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police’ [citation], ‘Brady suppression occurs when the government fails to turn over even evidence that is “known only to police investigators and not to the prosecutor”’ [citations].” (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225; see Youngblood v. West Virginia (2006) 547 U.S. 867, 870.)

For Brady purposes, “[e]vidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [Citation.] [¶] Evidence is ‘material’ ‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the result … would have been different.’ [Citations.] The requisite ‘reasonable probability’ is a probability sufficient to ‘undermine[] confidence in the outcome’ on the part of the reviewing court. [Citations.] It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]” (In re Sassounian (1995) 9 Cal.4th 535, 544; see Kyles v. Whitley, supra, 514 U.S. at p. 434.)

To obtain relief, a defendant “must show both the favorableness and the materiality of any evidence not disclosed by the prosecution.” (In re Sassounian, supra, 9 Cal.4th at p. 545.) Such a showing “establishes at one stroke what in other contexts are separately considered under the rubrics of ‘error’ and ‘prejudice.’ For, here, there is no ‘error’ unless there is also ‘prejudice.’ [Citations.]” (Id. at p. 545, fn. 7.) In other words, “there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different [result].” (Strickler v. Greene (1999) 527 U.S. 263, 281.)

Analysis

Ayala moved for a mistrial on the basis of a violation of discovery rules. He never raised a Brady violation as a grounds for a mistrial. Failure to assert a violation of a fundamental constitutional right, such as a Brady violation, in the trial court constitutes a waiver of any claim of error on appeal. (People v. Romero (2008) 44 Cal.4th 386, 411; People v. Carpenter (1997) 15 Cal.4th 312, 411 [Brady violation is forfeited if not asserted in trial court].) Consequently, Ayala’s claim of a Brady violation is forfeited and not cognizable on appeal.

Regardless, the standard of review on a trial court’s ruling on a motion for mistrial is abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573.) Here, there was no abuse of discretion. The two potential witnesses, the 10-year-old sister and the grandmother, were not percipient witnesses to any of the events. According to Joselyn’s testimony, the grandmother was outside and the sister remained in the bedroom; neither of them, therefore, could have seen whether it was Ayala in their house. Moreover, the trial court made sure the defense was provided the names of these potential witnesses and the defense investigator interviewed the grandmother, apparently uncovering no relevant evidence as she was not called to testify.

Even if the claim of a Brady violation had been preserved for appeal, it does not warrant reversal of the convictions, and had it been raised in the trial court, would not have warranted granting a mistrial. There is no indication either the grandmother or the sister had any information that would assist the defense, which is a prerequisite for finding a Brady violation. (In re Sassounian, supra, 9 Cal.4th at p. 544.) “[T]here is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different [result]” and there is no indication in the record that these potential witnesses had any information that could have produced a different result. (Strickler v. Greene, supra, 527 U.S. at p. 281.) Mere speculation that potential witnesses might have had information useful to the defense is not sufficient to demonstrate a Brady violation. (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1214.)

Furthermore, there is no Brady violation if information is available to the defense during the trial, which through the exercise of reasonable diligence, the defense could have discovered the additional information, in this case that two other people besides Joselyn were on the premises when Ayala entered. (People v. Morrison (2004) 34 Cal.4th 698, 715.) The defense was aware early in the case that Joselyn would be a potential witness and had the opportunity to interview her. Presumably, the defense investigator could simply have asked Joselyn if any other people were present at the home at the time.

In sum, Ayala has failed to preserve his claim of a Brady violation for appeal; demonstrate that the sister or grandmother had any information that potentially could assist the defense; and has not shown that there is a reasonable probability earlier disclosure of these two people would have resulted in a different outcome for Ayala.

DISPOSITION

The judgment is affirmed.