Opinion
G053326
06-23-2017
In re HENRY RODRIGUEZ on Habeas Corpus.
Tony Rackauckas, District Attorney, and Stephan L. Sauer, Deputy District Attorney, for Plaintiff and Appellant. James M. Crawford for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 98NF2206) OPINION Appeal from an order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. Tony Rackauckas, District Attorney, and Stephan L. Sauer, Deputy District Attorney, for Plaintiff and Appellant. James M. Crawford for Defendant and Respondent.
In his first trial, a jury convicted Henry Rodriguez of two counts of murder and conspiracy to commit murder. This court reversed his convictions because his pretrial statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Before Rodriguez's second trial, the defense subpoenaed Rodriguez's housing records from the Orange County Sheriff's Department (OCSD) before filing a motion to exclude the testimony of Michael Garrity, an inmate who was housed next to Rodriguez and who elicited a confession from him, because Garrity was a confidential informant (CI); Garrity did not testify at Rodriguez's first trial. Judge Frank F. Fasel ordered some records be produced, and he later denied Rodriguez's motion to exclude Garrity's testimony. In Rodriguez's second trial, Garrity testified, and a jury convicted him of the same offenses. This court affirmed his convictions.
Throughout these proceedings, the concepts "confidential informant," "CI," "informant," "rat," and "snitch" have been used interchangeably. We recognize not every inmate who provides information is a "confidential informant" for purposes of Massiah v. United States (1964) 377 U.S. 201 (Massiah).
Years later, Rodriguez filed a petition for writ of habeas corpus arguing his Brady v. Maryland (1963) 373 U.S. 83 (Brady), and Massiah, supra, 377 U.S. 201, rights were violated because Garrity was a CI and the prosecution team did not produce favorable and material records before his second trial. After a three-week evidentiary hearing where the trial court heard from 12 witnesses and considered voluminous exhibits, the court granted Rodriguez's habeas petition and vacated his convictions because of Brady and Massiah error. The court ruled the Orange County District Attorney (OCDA) should have produced to the defense OCSD "TRED" records and two pages from the OCDA CI index (OCII), and this failure required a new trial.
In our record, the records are referred to as "TRED" or "TREAD" records. We will refer to them as "TRED" records. The record includes no explanation about what the acronym TRED means.
The OCDA appeals from the trial court's order granting Rodriguez's habeas petition. As to the TRED records, the OCDA argues it did not suppress them and they were not material. With respect to the OCII, the OCDA contends it was not material. As we explain below, the court did not err by granting the habeas petition because the TRED records and the OCII were material and favorable to the defense.
"'It is the State that tries a man, and it is the State that must insure that the trial is fair.' [Citations.] This obligation serves 'to justify trust in the prosecutor as "the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done."' (Kyles [v. Whitley (1995)] 514 U.S. [419,] 439 . . . ." (In re Brown (1998) 17 Cal.4th 873, 883, fn. omitted (Brown).)
FACTS
The OCDA was prosecuting Rodriguez for aiding and abetting Richard Tovar in killing Jeanette Espeleta and her unborn child, renting a boat, and dumping them in Long Beach harbor in July 1998. At the Orange County jail (jail) awaiting trial in 1999, Rodriguez was housed in module J's protective custody unit (PC) in a cell next to Garrity, whose cellmate was Keith Higgins. Garrity was serving a jail sentence for, inter alia, possessing a controlled substance. Garrity was in PC in module J because inmates suspected he was a CI. I. First Trial
The record is silent on the issue of why Rodriguez was placed in PC.
In 2000, in a case prosecuted by then deputy district attorney (DDA) Walt Schwarm, a jury convicted Rodriguez, who was represented by Patrick McNeal, of first degree murder, second degree murder, and conspiracy to commit murder, and the trial court sentenced him to two indeterminate prison terms. This court reversed Rodriguez's convictions, concluding his Miranda, supra, 384 U.S. 436, rights were violated but his convictions were supported by substantial evidence; James M. Crawford represented Rodriguez on appeal. (People v. Rodriguez (June 30, 2003, G028236) [nonpub. opn.].) II. Second Trial
In a separate trial, a jury convicted Tovar, and this court affirmed his convictions on appeal. (People v. Tovar (June 30, 2003, G028242) [nonpub. opn.].) A third man, Nicholas Gray, pleaded guilty to voluntary manslaughter and received a reduced sentence in exchange for his testimony.
In an order dated May 12, 2016, we granted Rodriguez's request for judicial notice of the record in case No. G036855.
In late 2003, an amended information charged Rodriguez with the following: murder of Espeleta (Pen. Code, § 187, subd. (a)) (count 1); murder of Espeleta's unborn child (§ 187, subd. (a)) (count 2); and conspiracy to commit murder (§ 182, subd. (1)) (count 3). The prosecution produced to the defense records concerning Garrity, including a recording/transcript of Fullerton Police Department (FPD) Detectives Sean Fares and Anthony Sosnowski's interview with Garrity on June 7, 1999. DDA Dennis Conway was to prosecute the case. A. Subpoenas Duces Tecum
All further statutory references are to the Penal Code, unless otherwise indicated.
Rodriguez served five subpoenas duces tecum on the OCSD's custodian of records seeking the following: (1) Garrity's jail records regarding him providing confidential information to OCSD deputy sheriff (DS) James Fouste; (2) Garrity's cell assignment records during 1999; (3) Garrity's jail files; (4) Garrity's jail visitation log for 1999; and (5) OCSD's written rules and policies concerning its inmate classification system. OCSD filed a motion to quash the subpoenas.
At a hearing before Judge Fasel on March 25, 2005 (subpoena hearing), Rodriguez's defense counsel, Crawford, and deputy county counsel Laura Knapp appeared on OCSD's motion to quash. Knapp argued the following: "Just for the record, I would like to point out to the court, and we did discuss this in chambers, that there are several documents which were requested in the subpoenas that we have -- that my client has informed me quite recently that we do not have records. [¶] So, those would be essentially moot from the motion to quash, and I would -- while my objections would remain on the record, we do not have any records for housing movement visitation dating back to 1999. So those would no longer be presented to the court for argument. [¶] Our -- our argument, your honor, is with regard to the classification records and with regard to the class policies as requested on . . . Garrity. It is the [OCSD's] contention that these records are highly confidential investigatory files, which are not written or created and should not be disclosed given that they are effectively stream of consciousness, thoughts of the jail staff written in an effort to keep the jail safe, to keep the inmates safe, and to keep the staff safe. [¶] And, disclosure of this information, given the declaration provided by . . . Crawford, should -- does not rise to the level of good cause to warrant disclosure and, therefore, the records should remain confidential."
After the trial court stated it would address the subpoenas individually, Knapp stated OCSD objected to the first subpoena, Garrity's jail records regarding him providing information to Fouste, because it sought classification records. When the court inquired about the second subpoena, Garrity's cell assignment records during 1999, Knapp replied the following: "Well, our arguments, we believe, are still valid. There are no records. It is moot." With respect to the third subpoena, Garrity's jail files, Knapp said she had "simple basic records" but OCSD objected on privacy grounds. Knapp added there were no disciplinary records or written correspondence dating back to 1999, "although [OCSD's] original objections would remain on the record." As to the fourth subpoena, Garrity's jail visitation log for 1999, Knapp stated there were no records. Finally, Knapp stated OCSD objected to the fifth subpoena, OCSD's written rules and policies concerning its inmate classification system.
Defense counsel argued the records requested in the first, third, and fifth subpoenas were relevant and any privacy/confidentiality concerns could be addressed. As to the first subpoena, counsel argued the jail records regarding whether Garrity was a CI and received benefits was relevant to a motion pursuant to Massiah, supra, 377 U.S. 201. The trial court noted the second (Garrity's 1999 cell assignment records) and fourth (Garrity's jail visitation log) subpoenas were moot because OCSD had no records. The court granted OCSD's motion to quash the fifth subpoena (OCSD's inmate classification system policies) because Rodriguez's request was overbroad and the information was privileged. Finally, the court stated it would conduct an in camera hearing on the first (Garrity's confidential information to Fouste) and third (Garrity's jail files) subpoenas. Near the end of the hearing, DDA Conway appeared for the OCDA.
At the in camera hearing before Judge Fasel (in camera hearing), Knapp and OCSD Sergeant Fouste were present. In response to the first subpoena (Garrity's information to Fouste), Fouste produced Garrity's "classification [TRED] which are the notes [that] reference him and all his movement for every in-custody he has ever had since 1992," and his special handling folder. In response to the third subpoena (Garrity's jail files), Knapp produced Garrity's booking file.
The trial court stated the following: "I think this is all discoverable. It is just a question of what information -- I know you have a general privacy objection, Ms. Knapp. And within the general parameters regarding [CI] information, some of this information is relevant if he was working as a [CI] on other cases which is the whole thrust of the subpoena duces tecum. [¶] Now, if there is something else in here above and beyond that that the custodian feels should be redacted, that's what I am asking." Fouste asked that information regarding Garrity pre-1996 be redacted, and the court agreed. The court stated the following: "No, I think that's fine. The materiality and relevancy with respect to the court -- the case that's before the court is any information regarding . . . Garrity -- basically, what they are looking for is what deals may have been cut by law enforcement with . . . Garrity to testify in other cases. And, for a limited purpose, that's discoverable. [¶] [I]t is discoverable if he is working as a [CI] and has a quote unquote -- I know this is overbroad -- snitch jacket. [¶] But, other individuals, if there are safety concerns, I am not real impressed from a legal technical standpoint with privacy concerns, with security concerns."
After Fouste argued general security concerns weighed in favor of confidentiality, the court asked Fouste whether he was an investigator in Rodriguez's case. Fouste explained he was a DS in the special handling unit (SHU) and he made entries on a document and wrote a letter for Garrity. Knapp stated defense counsel had the letter and added the following: "That's why during oral argument I tried to explain it is hard when you don't have the documents. That these records, while responsive to the subpoenas, do not address that particular issue . . . ." After Fouste stated information regarding Rodriguez's classification level was not contained in the records, the trial court said he read the first subpoena to request written information from Garrity to Fouste. Knapp replied perhaps she misinterpreted the first subpoena to request Garrity's classification records.
The trial court stated the following: "The court has done a review of the first group of documents that I just indicated that I thought were discoverable. I am going to strike that because . . . in rereading this declaration, it is clear to me that for the purpose of this discovery request that the defense is looking for written documentary evidence memorialized by . . . Fouste. [¶] I don't see anything like that in here." After the court reviewed other documents, the court ordered produced a few redacted letters from Garrity to Fouste.
The trial court next addressed the packet of documents Fouste asserted should be kept confidential for security reasons. Knapp stated there was information Garrity assisted with Anaheim Police Department (ADP) and FPD investigations and the information was not responsive to the first subpoena. The court stated, "I agree." After Knapp and Fouste stated this was information to secure the jail, the court stated the following: "Okay. All right. Well, I think just as I have indicated, then we will do [a] redacted version of that." With respect to the third subpoena (Garrity's jail files), the court found there was nothing discoverable.
Back on the record, the trial court ordered County Counsel to prepare copies of the records it reviewed in camera and file them with the court under seal. Admittedly, the record here is unclear as to what Judge Fasel ordered County Counsel to produce. Later, the parties stipulated that in response to the court's order, the defense received one document, a declaration prepared by County Counsel and signed by Fouste. B. Evidence Code section 402 Hearing
Rodriguez filed a motion to exclude Garrity's testimony pursuant to Massiah, supra, 377 U.S. 201. He contended Garrity was a CI who provided information on at least three defendants, including Juan Huizar, and who deliberately elicited statements from Rodriguez, who was represented by counsel, while they were in custody.
At an Evidence Code section 402 hearing on January 4 and 5, 2006 (section 402 hearing), before Judge Fasel, Rodriguez offered the testimony of inmate Huizar and defense investigator Jane Macrorie. The prosecution, DDA Cameron Talley, offered Fares's testimony. Huizar, through a Spanish language interpreter, testified briefly he was in custody in jail awaiting trial for murder. Huizar added he had trouble speaking English and spoke only Spanish in jail, he did not speak to any Caucasians about his case, and he did not know Garrity.
Macrorie testified she interviewed Huizar in prison and he had a basic understanding of English; they communicated in both English and Spanish. When she showed him a photograph of Garrity, Huizar said he looked familiar but it had been a long time and he would have never "spoken to a white dude . . . about his case." On cross-examination, Macrorie stated she read portions of a letter, exhibit No. 1, Garrity wrote about Huizar's case to Huizar. After her recollection was refreshed, she read portions of the letter into the record. Macrorie stated Huizar denied he ever spoke with Garrity about his case.
Fares testified that on June 7, 1999, he and FPD Detective Anthony Sosnowski interviewed Garrity at the jail about the Espeleta murder. Fares stated the interview was recorded, and a transcript of the interview was marked as exhibit No. 2. Fares explained the transcript included an error and he clarified who made a couple of the statements. Garrity brought letters he wrote to law enforcement to the interview, marked as exhibit No. 3. Fares stated Garrity provided information because it was the right thing to do and not for consideration.
For purposes of the hearing, the parties stipulated to the following: as he had in the Rodriguez case, Garrity contacted law enforcement and provided information on Huizar and Mike Salinas in a similar manner; and Garrity does not speak Spanish. The trial court admitted the exhibits into evidence and heard counsels' argument.
As relevant here, defense counsel argued that as he had done with at least two other defendants, Garrity elicited incriminating statements from Rodriguez, who was represented by counsel, for consideration. In response to Judge Fasel's question, counsel agreed there was no evidence OCSD "plant[ed]" Garrity next to Rodriguez. The prosecutor argued the following: "[T]here is no suggestion that . . . Garrity, based on the record, has tried to get anything back in exchange for what he has done on any of these cases. And then, when the defense says he is seeking moral relief in exchange for information, we are pretty far afield of that point. [¶] We don't have somebody who ever was, as far as the records indicates, used as a plant in any of these cases. We have somebody who has heard some bad stuff in jail and decided to relate it."
The trial court stated, "[Garrity] definitely was a government agent with respect to . . . Huizar and, evidently, was placed in [PC] for that reason." The court opined that although "[t]here [was] no evidence . . . the police sought to use . . . Garrity against . . . Rodriguez and for that reason placed him in that [PC] cell[,]" there was evidence "Garrity becomes an informant . . . on about page 37 of the transcript." The court concluded Rodriguez made voluntary statements to Garrity, who was a "passive listener." The court added, "I do appreciate the fact that there are some credibility issues, but those haven't really been rolled up to the court for the purposes of the motion." The court concluded, "that someone wants to volunteer information to someone who is a snitch on other cases, so be it." Judge Fasel denied Rodriguez's motion to exclude Garrity's testimony at trial without prejudice. C. Trial
At trial the following week, the prosecution offered evidence of the following: Rodriguez knew of Tovar's plan to kill Espeleta and her unborn child because Tovar did not want to pay child support; Rodriguez intended to conspire to commit the murder; and Rodriguez intended to help facilitate the murder. Garrity, who was in an adjoining cell, testified Rodriguez initiated a conversation and said a friend of his had shot a woman because he did not want to pay support for her unborn child. Rodriguez disclosed he had helped plan the killing and disposing of the body, and said he was the only one who knew the location of the gun. During closing argument, the prosecutor argued Garrity provided information to DS's because it was the right thing to do and not to receive any benefit. The jury convicted Rodriguez of count 1, first degree murder, count 2, second degree murder, and count 3. The trial court sentenced Rodriguez to 40 years to life in prison. This court affirmed Rodriguez's convictions. (People v. Rodriguez (Sept. 27, 2007, G036855) [nonpub. opn.].) In affirming his convictions, we rejected inter alia his contention admission of Garrity's testimony violated his Sixth Amendment right to counsel. III. Petition for Writ of Habeas Corpus A. Moving Papers
Seven years later, Rodriguez filed a habeas petition and exhibits, arguing his Brady, supra, 373 U.S. 83, and Massiah, supra, 377 U.S. 201, rights were violated before his second trial. In his habeas petition, Rodriguez argued Garrity was a CI, and Judge Fasel erred by denying his motion to exclude Garrity's testimony. The OCDA filed an informal response. Days later, Rodriguez filed correspondence in reply to the informal response. In response to Rodriguez's discovery request, the prosecution produced OCSD TRED records regarding Rodriguez, Garrity, and Huizar.
Rodriguez filed a supplemental habeas petition pursuant to People v. Chiu (2014) 59 Cal.4th 155, and later supplemental exhibits, which included the TRED records. Rodriguez then filed an amended habeas petition with exhibits. He also filed a discovery motion requesting 11 categories of information, including TRED information, OCSD DS records, and information regarding Garrity.
The trial court issued an order to show cause. With respect to Rodriguez's discovery motion, the court granted it in part, denied it in part, and deferred ruling on some of the categories. The OCDA filed a return and exhibits, and Rodriguez filed a traverse and exhibits. Rodriguez later filed additional exhibits. B. Evidentiary Hearing
The evidentiary hearing before Judge Thomas M. Goethals began in February 2016. The trial court declined to take judicial notice of the proceedings in People v. Scott Evans Dekraai (Super. Ct. Orange County, 2015, No. 12ZF0128), and stated it would limit its decision to the facts in this case. 1. Stipulations and Exhibits
After oral argument, we invited the parties to file letters briefs on the effect, if any, of People v. Dekraai (2016) 5 Cal.App.5th 1110 (Dekraai), on this appeal. Because the trial court declined to take judicial notice of the proceedings in that case, and the issues in that case are different than the issues in this case, we conclude Dekraai is inapplicable here.
The parties entered into three stipulations during the course of the hearing. Stipulation No. 1 admitted four exhibits. The first exhibit included the documents Judge Fasel reviewed during the March 25, 2005, in camera hearing. Those documents were Garrity's OCSD classification and TRED records.
The third stipulation was a legend for the first stipulation.
The second exhibit was a declaration prepared by County Counsel and signed by Fouste in response to Judge Fasel's order after the March 25, 2005, in camera hearing where he "ordered [OCSD] (through County Counsel) to disclose a portion of information contained in the classification records." As relevant here, Fouste declared, "It should be noted that there are no housing, visitation, or jail records on . . . Garrity as those records are not maintained from 1999." In response to Judge Fasel's order, Fouste declared as follows: "On September 22, 1999 at approximately 1120 hours I spoke with inmate . . . Garrity (OCN # 744772.) . . . Garrity told me that he felt he was no longer safe housed in level 5, [PC] housing. He felt that his life and the lives of his family members would be placed in jeopardy if he was not moved to isolation housing for the duration of his time in custody." Fouste stated he evaluated the threats, moved Garrity to isolation housing, and "noted such information in the classification system." (Italics added.) Defense counsel stipulated he received Fouste's declaration and used it as a basis for his cross-examination of Garrity at the second trial.
Fouste's declaration in the second exhibit of Stipulation No. 1 is not signed. However, the parties stipulated it is the declaration County Counsel prepared and Fouste signed.
The third exhibit was a February 2015 letter from the OCDA to the OCSD requesting Rodriguez's and Garrity's classification records.
The fourth exhibit included the following documents Rodriguez did not receive before his second trial in 2005 and Judge Fasel did not have to consider at the section 402 hearing: Garrity's OCSD classification records the OCDA received in February 2015 and produced to the defense for the first time in March 2015. The fourth exhibit included the following:
The fourth exhibit documents, first produced to the defense in March 2015, are nearly identical to the first exhibit documents, those Judge Fasel reviewed during the in camera hearing. Based on our review, the fourth exhibit appears to be missing four documents, three of which provide no information regarding Garrity working as a CI. The fourth document contains information found in other TRED records prepared by DS Verderame on April 12, 1999. A Classification Screening-Special Instructions card dated April 12, 1999, with Verderame's name printed, states Garrity was in PC because "other [inmates] found out [he] was a CI."
• TRED entries from July 1996 indicate Garrity tried to escape from Theo Lacy because he wanted to see his mother who was in the hospital.
• TRED entry from February 15, 1999, recounted his attempted jail escape in 1996 and stated Garrity claimed "he [was] an informant for Riverside SO."
• TRED entry from March 11, 1999, stated Garrity gave information to a narcotics investigator about drugs coming into jail and "[Garrity was] afraid that his cellmates and tankmates suspect[ed] him of snitching."
• TRED entry from April 1, 1999, stated Garrity gave information to a DS that inmate Michael Henry had methamphetamine and "other inmates suspect[ed] [Garrity] of giving up the info[.]"
• TRED entries from April 1, 1999, made by DS "RS" Szewczyk stated the following: "[Garrity] [was] very cooperative and ha[d] apparently provided staff with good info. He was advised to notify staff should he have any probs and is aware pc status will
result if probs continue[;]" "[Garrity] stated he ha[d] provided info on the PC187 case of inmate Huizar, Juan . . . to APD (unconfirmed at this time)[;]" "[Garrity] stated his name may come out in discovery. Call will be made to APD to verify [Garrity's] story. Although [Garrity] [wa]s sentenced he will be made total sep for court purposes do to the possibility he may be a witness on Huizar's case."
• Inmate screening form from April 12, 1999, from DS "KJ" Verderame stated Garrity said he was an informant for OCSD and his contact was "Mike w/ homicide." In a comments section it stated, "Informing on a 187, suspect is a possible gang member (F-Troop?) housed in mod M Juan Huizar."
• TRED entry from April 12, 1999, made by DS KJ Verderame stated, "[Garrity] rolled himself out of mod N due to being found out that he was a CI."
• Classification: Response #1 & 3, dated April 12, 1999, DS Verderame stated Garrity was in PC because he was a "snitch."
• TRED entries from April 16, 1999, made by Fouste stated the following: Garrity wrote a letter to classification to determine the status of the Huizar case because he wanted to be reclassified to mainline security. Fouste advised him it was best to remain in PC until the DA prosecuting Huizar decided whether to call Garrity as a witness.
• TRED entries from May 17, 1999, made by Fouste stated Garrity wanted to be reclassified but changed his mind when he went for an attorney visit and saw too many people he knew.
• On August 20, 1999, Garrity wrote an inmate message slip as directed by Fouste asking to speak with Fouste immediately because his cellmate looked at his file and read something Garrity wrote about Rodriguez. Garrity added he had been informing to the FPD about Rodriguez.
• TRED entries from September 20, 1999, made by DS Szewczyk stated the following: "[Garrity] wrote an inmate message slip stating his cellmate Higgins, Keith . . . went through his file folder and found info relating to [Garrity] giving info to [FPD] about the PC187 case of inmate Rodriguez, Henry . . . . [Garrity] claim[ed] Higgins told Rodriguez of this and word is spreading fast to other PC's in mod J."
• Classification Screening-Special Instructions card dated September 20, 1999, with DS Szewczyk's name printed stated Garrity was in PC for the following reasons: "Snitch Jacket, Working with police on two PC 187 cases involving two inmates currently in custody (1 PC, 1 mainline)."
• TRED entries from September 22, 1999, made by Fouste stated the following: "[Garrity] [wa]s in fear for his safety and the safety of his family. [Garrity] [wa]s currently total sep and request[ed] to be housed in isolation housing for duration of his I/C. [Garrity] ha[d] assisted in [two] 187 investigations APD and FPD, and several I/C matters. Due to [Garrity's] cooperation and [Garrity's] request [Garrity] will be housed in iso housing for the duration of his I/C, unless changed by me or Lt. Estep."
• Classification: Response #1 & 2, dated September 22, 1999, Fouste stated Garrity was in PC because he had a "rat jacket."
• Classification Screening-Special Instructions card dated September 22, 1999, with Fouste's name printed stated Garrity was in PC for the following reasons: "Rat jacket Potential victim Special Handling and Police Informant."
The photocopy of this card is dark and difficult to read.
Rodriguez did not receive exhibit No. 4 before his second trial in 2005 and Judge Fasel did not have it to consider at the section 402 hearing. Exhibit No. 4 was titled "Orange County District Attorney's Defendant/Informant Index History Card" and had two entries. The first entry, dated February 5, 2005, provided as follows: "[I]nquiry by DDA . . . Conway wants to use him as wit in homicide trial and needs to know if anything to discover. Checked LA clear - no hit. Per E. Hatcher." The second entry, dated February 10, 2005, provided as follows: "I called Riverside DA's office and spoke to Ron Lillard. Asked him to check to see if CI had worked for them[.] He got back to me and said there was no record to indicate that he had received any consideration on any cases there. Bob Jones provided me with court docs from our county which indicated CI did receive consideration on cases here in our county. BJ provided copy of docs to DDA Conway[.] Copy of docs in in CI OCCII file also. BJ instructed Conway to refrain from providing copies to defense unless ordered by the court. Per E. Hatcher."
The second stipulation identified the following documents Rodriguez did receive before his second trial in 2005: recordings of Garrity's interviews with APD and FPD; and Bates stamped pages 1-3650 and 3651-3665.
As to the former, there were four interviews, one with APD and three with FPD. With respect to the latter, counsel assisted the trial court and identified the relevant documents as exhibit No. 13. Exhibit No. 13 included the following: Garrity's letters to his prior defense counsel, OCSD DS's, APD, and FPD; FPD reports and documents; Garrity's court documents; DS Fouste's November 4, 1999, letter to Garrity's defense counsel; Garrity's motion to modify his sentence and related documents; and numerous other documents. We will discuss the relevant documents from exhibit No. 13 chronologically in relation to the interviews.
Before the second trial, the OCDA also produced the documents contained in exhibit No. 14, Garrity's OCII file, less exhibit No. 4.
APD detectives Chuck Sullivan and Ken McAlpine interviewed Garrity on March 10, 1999, and obtained two notes he wrote. Garrity said he and Huizar were housed in the same cell and then next to each other. When Sullivan told Garrity to tell him what Huizar told him, Garrity said it was the same thing he wrote in the letter he gave the APD sergeant. He added, "I, it's pretty much what the way I summed it up. I mean I asked a few questions, but I to get . . . you know, some of the answers I got, but it was like I didn't have to *** . . . ." Garrity said Huizar confessed his involvement in a 1993 gang related murder and attempted murder case. Garrity told them about another inmate, Salinas, who was writing bad checks. After Garrity said it would be great if the detectives could get him "a program of some kind," both detectives told Garrity not to ask Huizar questions but to listen, write down what Huizar said, and let Sullivan know.
One of the notes is difficult to read because the ink is too light. In this note, Garrity stated he would work with narcotics officers because he had information about a methamphetamine manufacturer and drug sales both in the jail and outside. He identified two inmates to watch. In the other note, Garrity stated Huizar confessed to him. He added, "The days spent with him, he spoke pretty openly to me. This is just the . . . story he told me less the questions I asked him out of curiosity."
In an undated letter to his attorney, Garrity stated he could provide information about the Huizar and Rodriguez case. He said, "Please . . . try hard to get me in a program."
In a letter dated June 4, 1999, to a "Deputy-Sergeant," Garrity stated the inmate next to him, Rodriguez, told him about his case. There are other undated letters where Garrity details what Rodriguez told him. In one undated letter, Garrity references a prior letter where he recounted Rodriguez's alleged confession. He was tormented by his informing, which he attributed in part to the inhumanity of jail, and said he wanted nothing in return for his information.
In an FPD call slip, an officer "B. Coffman" wrote to the FPD special investigations unit that OCSD DS John Trimmer called to inform FPD that Garrity indicated Rodriguez discussed his case and Garrity could provide information.
Fares and Sosnowski interviewed Garrity on June 7, 1999. Garrity stated Rodriguez told him what he did and Garrity wrote it down because it was the right thing to do. Garrity said Rodriguez was "opening up more and more very day." After Garrity detailed some of what Rodriguez told him, Fares asked him if Rodriguez told him what type of car they used to dispose of Espeleta's body. Garrity answered, "No, but I can find out if you want." Garrity said Rodriguez told him that they took the body on a boat, and "[Espeleta's] shark bait." When Fares questioned Garrity about whether Rodriguez revealed how they killed Espeleta, Garrity answered, "I brought that up to him about. He'll bring little bits and pieces in." Garrity said Rodriguez spoke to him about his case whenever Rodriguez's cellmate left the cell.
Garrity said he provided information on another murder case to APD. He also provided information to DS's about an inmate who smuggled methamphetamine into jail. He brought documents regarding his sentence reduction to the interview because he wanted to get into a program.
After Fares stated they wanted to ensure the people responsible are held accountable, Sosnowski said, "But a couple things we're gonna want to know, if you, if you can, uh, solicit it from him, is where's the car. More specifically than just Mexico. Maybe you can get him to tell you that somehow. . . . Um, maybe something a little more specific about where he dumped the body." After Garrity clarified Rodriguez never told him that he was on the boat when Tovar and "that other guy" dumped Espeleta in Long Beach harbor, Fares asked whether Garrity would talk to them again. Detectives told Garrity to write down Rodriguez's statements and the date and time. Sosnowski added, "And, uh, if you could, if you could solicit those couple things that we asked you, specific." The detectives repeated where the car was, how she died, and where her body was. Fares said he would return and talk to Garrity the next week.
On June 9, 1999, Garrity wrote a letter to DS Trimmer that stated, "I was told that if I found out where the body of the girl in . . . Rodriguez's case was that you would let the homicide detectives know in Fullerton." He also wrote four notes that same evening and two the following day. The notes demonstrate Garrity repeatedly questioned Rodriguez about his participation in the crime, including some of the areas Sosnowski requested. On June 14, 1999, Garrity wrote a note stating that if Rodriguez's cellmate could be moved to a different cell, "[he] would find out exactly where that car was and what happened to the weapon exactly and every detail."
After receiving Garrity's message, Fares and Sosnowski interviewed him again on June 15, 1999. Garrity provided the detectives with information where Tovar and Gray dumped Espeleta's body, and said they would never find the gun. Garrity said that when he asked Rodriguez whether there was any physical evidence connecting him to the crime, he said, "No." When Fares asked whether Rodriguez disclosed the car's location, Garrity said, "I will get that[,]" and Fares replied, "Okay." During the remainder of the interview, Garrity said he asked Rodriguez about various aspects of the crime. Fares again told Garrity to contact them if he obtained additional information.
On June 18, 1999, Garrity wrote a note stating Rodriguez shared more information about the crime and Garrity questioned him about the boat. After receiving Garrity's message, Fares and Sosnowski interviewed Garrity on September 16, 1999; another CI was present for this interview. Garrity said Rodriguez told him that his deceased grandmother owned property in Ensenada, and Garrity thought the car might be there. During the remainder of the interview, Garrity said on a few different occasions he asked Rodriguez about the house and the car. On September 21, 1999, Fares prepared reports detailing the three interviews with Garrity.
On November 4, 1999, OCSD DS Fouste wrote a letter to Garrity's attorney, Michael R. Bruggeman, that stated the following: "Garrity has been very cooperative with me concerning several matters in [j]ail Security. He has confidentially provided me with information that has assisted me in assuring the safety and security of . . . [j]ail [s]taff and inmates incarcerated within . . . [j]ail. [¶] . . . Garrity has been a model inmate in our custody and is not to be considered a discipline problem." In correspondence to Bruggeman dated November 10, 1999, Chapman House stated it had accepted Garrity to its chemical dependency treatment program pending court approval.
Days later, Bruggeman filed a motion to modify Garrity's sentence to reduce it by five months and requested he be sent to the Chapman House because he had been a model inmate and had provided information on "several pending cases" and "jail security" matters. Judge Marjorie Laird Carter granted Garrity's request. 2. Rodriguez's Evidence
Inmate Higgins testified he was housed in the same cell as Garrity at the jail. Garrity told Higgins "he was an informant and he was trying to get information about the people in the cell next to us." Rodriguez was housed in the cell next door, and Garrity stated he was intentionally placed in the cell next to Rodriguez to gather information. Higgins saw Garrity listen to conversations through the air vents in the adjoining cell and speak with him in the dayroom, including asking him questions. Garrity told Higgins he was a CI several times, and it was his "job." Garrity elicited information from people by asking rhetorical questions or questions he knew the answer to. If Garrity was not satisfied with the answer, he would "dig around a little more" and approach it from a different angle. Garrity stated that in the case he was investigating "deputies had been dragging . . . a lake" for the body of a woman who was killed. On cross-examination, Higgins admitted Garrity never said he was working for the OCSD, and Garrity talked about "deputies" not "police officers" when discussing his informant work. Higgins assumed Garrity worked on behalf of OCSD because he received extra shower time, extra telephone time, extra underwear, and extra food.
OCSD DS Robert Szewczyk testified he worked in the SHU where his responsibilities included housing classification and management of high profile, administrative segregation, and PC inmates to ensure jail safety. He previously worked in classification where his duties included interviewing newly booked inmates to determine appropriate housing. He explained an OCSD classification form is used when a DS places an inmate in either administrative segregation or PC. The form asks whether an inmate is a CI, has a "snitch jacket," and is a CI for any police or government agency. When defense counsel asked Szewczyk whether OCSD ever had a CI program, he answered, "not that I am aware of."
Szewczyk stated that as a SHU DS, he had the ability to move CIs around the jail or put CIs in a cell next to an inmate to have the CI question the inmate, but he did not remember ever doing so. When defense counsel asked him whether he worked with CIs, Szewczyk replied as a "conduit" when a law enforcement agency contacted him to arrange an interview with a CI. If a DS told Szewczyk an inmate had information, he would interview the inmate. He added the majority of information he received involved jail security, i.e., possession of weapons, drugs, or alcohol. Szewczyk gave a CI extra food for providing information.
Szewczyk stated he was familiar with the OCSD classification system, which DS's referred to as the TRED system. He explained that originally, if an inmate provided information, a DS would write the information on a card but now the information is entered into a computer system. He stated that if an inmate told a DS he was a CI, the DS would enter that into the TRED system. He added that if an inmate told a DS he was a CI and expressed safety concerns, the DS would enter that into the TRED system and try to verify the information.
Szewczyk testified concerning April 1, 1999, TRED entries he made regarding Garrity. Szewczyk stated he reclassified Garrity to level 1, minimum security and he was cooperative and provided staff with good information. Garrity told Szewczyk that he had provided the APD information on a murder case involving inmate Huizar. Szewczyk confirmed Garrity and Huizar were housed together. Szewczyk said Garrity told him that he was providing information on another murder case.
Szewczyk testified concerning September 20, 1999, TRED entries he made regarding Garrity, who was housed in module J. Szewczyk stated Garrity reported his cellmate, Higgins, went through his file folder and learned Garrity was providing information to FPD on a murder case involving Rodriguez and Higgins shared this information with other inmates.
Szewczyk stated he was familiar with an OCSD form called "Classification Screening-Special Restrictions," referred to as J-119. Garrity's J-119 stated he was booked on February 15, 1999, and Szewczyk prepared the form on September 20, 1999. The J-119 states Garrity was to have "[t]otal [s]eparation [a]t [a]ll [t]imes" because he was working with police on two murder cases involving other inmates and had a "'[s]nitch [j]acket.'" Szewczyk did not determine when Garrity started working with either of the agencies on those two cases. He said that if an inmate said he was a CI, he would not verify that information before putting it into the TRED system because the information was relevant to the inmate's safety. A little later, Szewczyk stated there were "actually four" cases Garrity was providing information on, two with OCSD DS's, one with APD, and one with FPD.
On cross-examination, Szewczyk stated an inmate who provides information is not necessarily a CI. On redirect examination, Szewczyk stated DS's do not make the determination whether an inmate is a CI but instead must contact the agency to make that determination. He added that if an inmate stated he was a CI for OCSD, he would contact the DS. When defense counsel asked Szewczyk about Garrity's inmate-screening form from April 12, 1999, prepared by DS Verderame, Szewczyk said he was aware of that form, which was to place Garrity in PC. He acknowledged Garrity stated he was a CI for OCSD whose contact was "Mike" from homicide and he was providing information on Huizar. Szewczyk stated it was customary to place CIs in PC if they have safety concerns. Szewczyk did not investigate "Mike's" identity.
OCSD Sergeant Fouste worked in the SHU in 1999 as a DS; in 2005, he was a supervisor in classification. In the SHU, Fouste's duties included housing and security for high profile, administrative segregation, PC, and gang-affiliated inmates. Fouste explained there are two types of informants in the jail. Inmate informants provide information about what goes on in jail, i.e., when an inmate has contraband—these informants do not receive compensation for their information. CIs sign up to be an informant with an investigating agency and provide information in exchange for consideration on a case or financial remuneration. As a SHU DS, Fouste could move anyone in the SHU from one module to another, including a CI next to another inmate to gather information.
When defense counsel asked him whether he was familiar with the Orange County Informant Index, Fouste replied the extent of his knowledge was that he had "heard of it." Fouste was familiar with TRED records, which he described as "a slang term for a portion of the classification records." Fouste stated DS's use TRED to, inter alia, explain inmates' classification status and why they are moved. He added that if an inmate stated he was a CI, he would enter that information into TRED, which was significant because the information was relevant to jail security. In the past, Fouste had verified an inmate's claim he was a CI with the outside agency. And he admitted that if an inmate stated he had information about a case with an outside agency, he would contact the agency.
Fouste was Garrity's primary contact in the jail in 1999. Fouste directed inmates to write to him when they wanted to speak with him. Garrity would communicate with Fouste through inmate message slips, "snivel sheets," and in person. Fouste admitted Garrity told him he was a CI.
After Fouste said he reviewed Garrity's TRED records to prepare for his testimony, he testified concerning an entry on April 16, 1999. The TRED entry stated Garrity wrote a letter requesting reclassification from PC to mainline security. Fouste advised him to remain in PC until he learned whether he would testify in the Huizar case.
When defense counsel asked Fouste whether Garrity felt threatened because he was a CI, Fouste referred to a TRED entry written by DS Verderame on April 12, 1999, that Garrity "rolled himself out of Mod N due to being found out that he was a CI." Fouste said at this point Garrity was moved to PC and was under the SHU's supervision.
Fouste also testified concerning a September 22, 1999, TRED entry. Garrity met with Fouste and told him that he was in fear for his and his family's safety and he asked to be housed in isolation. Garrity told Fouste that he had provided information to APD on a murder case, FPD on a murder case, and several in custody matters. Fouste did not recall contacting APD or FPD to verify Garrity's claim.
Fouste testified concerning two class cards, a computer "card" or screenshot that can be updated and reflected an inmate's classification. A card with Fouste's name dated September 22, 1999, reflects Garrity was in PC because he had a "rat jacket," a term used by inmates who suspect a person is a "snitch" or CI. A card with DS Verderame's name dated April 12, 1999, reflects Garrity was in PC because he was a "snitch."
When defense counsel asked Fouste whether he had access to Garrity's inmate screening form from April 12, 1999, prepared by DS Verderame, Fouste agreed he would because it would be in his special handling folder. He acknowledged Garrity stated he was a CI for OCSD whose contact was "Mike" from homicide. Defense counsel questioned Fouste about the in camera hearing. Counsel also questioned Fouste about a reference letter he prepared for Garrity on November 4, 1999. Fouste stated Garrity's attorney, Bruggeman, requested he prepare the letter.
On cross-examination, Fouste explained DS's have to know when an inmate provides information to ensure the inmate's protection. When the prosecutor asked Fouste about his September 1999 TRED entry, Fouste explained that because Garrity claimed he provided information to APD and FPD and he feared for his safety, he thought it appropriate to keep him in isolation housing for the remainder of his sentence. The prosecutor questioned Fouste about two inmate message slips from Garrity to Fouste in August 1999 expressing his concern for his safety. Fouste testified that if he moved a CI next to an inmate to gather information he would put that information in the TRED system. He did not believe Garrity was moved next to another inmate to elicit information. Finally, Fouste stated he agreed to write a letter for Garrity because he was cooperative in jail and not to confer any benefit.
On redirect examination, Fouste testified module J was one of two locations where all PC inmates were housed in jail. He agreed all CIs who were in PC would be housed in one of those two locations. He said that based on Garrity's TRED records, Garrity and Rodriguez were housed together in module J. Fouste admitted he knew Garrity attempted to escape from jail when he wrote the letter for him. However, Fouste did not mention the escape attempt in his letter. On recross-examination, Fouste testified concerning Garrity's housing classifications from February 1999 to September 1999. Fouste stated he never directed Garrity to elicit information from Rodriguez.
OCSD DS Jonathan Larson worked in the SHU in 2011-2012. Like Fouste, Larson testified there were two types of informants. As a DS in the SHU, Larson agreed one of his jobs was to develop informants, i.e., talk to inmates and obtain information from them. Larson stated if the inmate provided information that involved another agency and the inmate wanted consideration, he would contact the agency and it would assume responsibility. Larson would help facilitate an interview between the CI and the agency; he did not remember working with FPD. He admitted that he, and other SHU DS's, "handle[d]" CIs, i.e., provided them security. He said there were CIs housed in module J. Larson testified he had access to TRED records when he worked in the SHU. He agreed that if an inmate claimed to be a CI, he would enter that information in TRED. He also agreed that if he wanted to learn why an inmate was moved, he would review TRED records.
On cross-examination, Larson admitted he had no knowledge of jail practices in 1999. He clarified that when he agreed he developed informants, he meant obtain information from inmates about other inmates and not obtain information from inmates about cases with outside agencies to receive consideration. He agreed that when an inmate claims to be an informant it is not important whether the claim is true because the information is relevant to jail and inmate security. He stated that it is reflected in TRED records when an inmate is moved next to another inmate for a specific reason.
On redirect examination, Larson explained that when an inmate arrives, the SHU will confirm whether an inmate is a CI. He agreed the inmate screening form documents an inmate's claim he is a CI. He stated it was "common practice" to document in TRED why an inmate is moved. 3. Prosecution's Evidence
Fares, a former FPD detective, assisted on the investigation in Rodriguez's case. He explained that on June 5, 1999, a DS contacted a FPD officer and told him a jail inmate had information about the Rodriguez case. A couple days later, Fares and Sosnowski interviewed Garrity. Fares told Garrity that they were not promising him anything in return for his information. Fares testified FPD did not request any assistance from OCSD or ask OCSD to place a CI next to Rodriguez. On cross-examination, Fares stated Garrity told them he was providing information to APD. Fares admitted Sosnowski asked Garrity to obtain information from Rodriguez about two things.
DDA Conway was assigned Rodriguez's case in 2005 after DDA Schwarm obtained convictions in the first case and this court reversed those convictions. After reviewing the case file and speaking with Schwarm, Conway believed he might have to call Garrity as a witness and knew he had to obtain his background information. Conway notified Rodriguez's defense counsel he might call Garrity as a witness and indicated he would produce information about him. Conway's investigator, Pat O'Sullivan, obtained the documents Conway requested. Conway requested records from the OCII, an index that stores information on people who do work for local law enforcement agencies, and obtained documents, which he produced to Rodriguez's defense counsel, which was identified as exhibit No. 13. Conway never spoke with Garrity, and DDA Talley eventually prosecuted Rodriguez.
On cross-examination, when defense counsel asked whether the "actual index itself" was produced to counsel, Conway answered, "I don't believe so[,]" but then asked for clarification on what counsel meant by the "'actual index.'" When counsel showed Conway a document marked OCII file dated May 5, 1999, Conway said it looked like something from the OCII file. After Conway explained the process to obtain documents from OCII, Conway asked counsel whether this document was produced, and counsel responded, "No." Conway could not remember whether he disclosed Bruggeman's motion to modify Garrity's probation that was part of the OCII. Conway explained OCDA lawyers maintain the OCII; it was currently Ben Masangkay and before that Elise Hatcher. When counsel inquired whether he asked O'Sullivan to contact OCSD to obtain Garrity's housing records, Conway replied, "I don't believe so." Conway was not familiar with TRED records until "the last couple of years."
The trial court questioned Conway. The court asked Conway to read a portion of exhibit No. 4, a "History Card" from the "Orange County District Attorney's Defendant/Informant Index." In part, the card states, "BJ instructed Conway to refrain from providing copies to defense unless ordered by the court. Per E. Hatcher." Conway stated he did not write the entry and did not recognize the writing. Conway agreed with the court it was reasonable to infer "BJ" was a reference to senior DDA Bob Jones, but Conway did not remember speaking with Jones about Garrity. Conway said he spoke with Hatcher about the OCII when he was researching Garrity. In response to the court's hypothetical question, Conway stated he would have produced exhibit No. 4, page 1, to the defense. In fact he stated, "Absolutely. It is my bar card. I don't care what somebody tells me. You turn it over and then litigate whether it comes in."
Conway repeated he was not familiar with TRED records until he heard about them in the Dekraai case. The trial court asked whether it occurred to him when he decided to call Garrity as a witness to contact OCSD to obtain his classification records. Conway replied, "I can't remember, and I don't think I did. And there was -- I think [defense counsel] actually brought something like that up and ran a motion which I wasn't privy to." When the court asked whether he remembered the subpoena hearing, he said he did not and his recollection was he handled it like he did other subpoenas with OCSD and County Counsel. He said the following: "I think I left and said, 'you know, this has nothing to do with me.'" Conway did not remember the in camera hearing or talking to Fouste or Knapp; he left it to them to comply with the subpoena and ask them to let him know if anything was produced. When the court asked whether he asked O'Sullivan to investigate Garrity's background as a CI, Conway responded as follows: "No, I don't think I -- I don't think I -- I can't remember." At the time, Conway understood Rodriguez allegedly confessed to Garrity in custody but he did not think to investigate whether Garrity was a CI in any other cases. Conway agreed with the court he was a "conduit," he requested and received information from OCII and O'Sullivan regarding Garrity and produced those documents, but he never saw exhibit No. 4.
Later, the prosecutor recalled Conway. Conway clarified he did not believe exhibit No. 4 should have been produced as discovery but that the court documents referenced in exhibit No. 4, Garrity's court documents, should have been produced. On cross-examination, Conway stated it was his understanding exhibit No. 4 was not produced to the defense. The court again examined Conway to understand the reason for the clarification. During a somewhat lengthy and passionate exchange with the court, Conway described exhibit No. 4 as attorney work product. After redirect examination, defense counsel elicited from Conway the following: the OCDA does not list every witness in OCII; the OCDA maintains the OCII; the OCII lists CIs; the OCDA listed Garrity in the OCII; and the fact the OCDA listed Garrity in the OCII could mean he was a CI.
OCSD DS Trimmer testified that in 1999 he worked as a prowler, walked the floor to maintain security, in module J of the jail. Trimmer stated that in June 1999, he received a message from Garrity stating the person in the cell next to him was bragging about his case and saying he was going to get away with it. Trimmer conveyed the information to a detective with the FPD. On cross-examination, Trimmer stated Rodriguez and Garrity were housed next to each other in PC in module J. He did not believe Rodriguez was a CI. Before Trimmer could answer defense counsel's question why Rodriguez was housed in PC in module J, counsel transitioned and questioned Trimmer concerning the OCSD computer system.
Former APD detective, now OCDA investigator, Charles Sullivan investigated the Huizar case. He stated the OCSD contacted him to interview Garrity. He and Detective Ken McAlpine interviewed Garrity on March 10, 1999; the interview was recorded. Sullivan advised Garrity he would receive no consideration for his information. Garrity gave detectives a document and later forwarded other documents to APD. On cross-examination, Sullivan stated he was not familiar with the OCII.
Former OCDA investigator Patrick O'Sullivan was assigned to the Rodriguez case and worked with DDAs Schwarm, Conway, and Talley. O'Sullivan explained his duties included numbering all the discovery, which related primarily to Garrity's criminal history, and acting as a liaison between OCDA and law enforcement agencies. O'Sullivan was not aware Conway or Talley promised Garrity any consideration to testify. On cross-examination, when defense counsel asked whether he was familiar with the OCII, O'Sullivan answered, "No." O'Sullivan never met Garrity. On redirect examination, O'Sullivan stated as far as he knew, OCSD was not part of the Rodriguez investigation.
The trial court examined O'Sullivan. When the court asked whether he was familiar with the OCII, O'Sullivan answered, "I believe, yeah, I knew they did have an informant index." When the court asked if he knew who supervised the OCII, O'Sullivan stated, "I am going to take an educated guess and say Bob Jones." Neither DDAs Conway nor Schwarm asked him to investigate whether Garrity was a CI or check the OCII. O'Sullivan never heard of TRED records until reading about them in the newspaper concerning the Dekraai case. He had no knowledge of exhibit No. 4, and he was not involved in what it described.
Former DDA Talley prosecuted Rodriguez after he acquired the case from DDA Conway. Talley stated, "[he] re-discovered everything out[,]" including one interview with APD and three interviews with FPD even though he only intended to admit the first FPD interview. He believed it was possible that after the first interview, Garrity could be considered an agent for Massiah purposes. Talley did not promise Garrity anything for his testimony. Talley stated the only benefit he knew Garrity received was "Bruggeman . . . got [him] a drug program."
On cross-examination, Talley testified he did not remember asking O'Sullivan to investigate Garrity's background as a CI. Talley said he was aware OCDA maintained OCII. When defense counsel asked Talley if he investigated to see whether Garrity was in the OCII, he said he would not "swear [he] talked to Bob Jones[,]" but he "probably" did. He admitted the OCII was not in his discovery boxes and Judge Fasel did not have exhibit No. 4. Talley could not access OCII because you had to ask the "gatekeeper[,]" senior DDA Jones. He admitted "[He] did not go and access the [OCII]." And he did not contact OCSD or see its records, which included any TRED records. He had not heard of TRED records until recently. Talley stated Garrity did not receive any consideration other than the drug program, which defense counsel mentioned at the section 402 hearing. Talley did not believe Garrity was a CI because he did not provide information expecting a benefit. When counsel asked whether he had ever obtained jail records, Talley eventually answered he had tried "a gazillion cases" and "I remember getting lots of stuff from the jail. There is mail cover." If Talley wanted jail classification records, he would tell his investigator to obtain them. He did not tell his investigator to obtain Garrity's jail classification records in this case.
The trial court examined Talley. Talley decided soon after he spoke with DDA Conway that he would have to call Garrity as a witness and he knew Garrity obtained statements from Rodriguez in custody and wrote notes. When the court suggested Talley was aware of the possible Massiah issues, as evidenced by the fact Talley did not seek to admit Garrity's second and third interviews with FPD, Talley answered, "Right." He was not aware of DS Verderame's April 12, 1999, inmate screening form in which Garrity claimed to been a CI for OCSD whose contact was "Mike" from homicide. When the court asked Talley to explain what he did to determine Garrity's history as a CI, Talley stated he spoke to Fares, Conway, and possibly senior DDA Jones but he did not speak with DDA Schwarm or anyone with OCSD. He also reviewed the entire file and all the discovery, including the transcripts of Garrity's interviews with law enforcement. Talley admitted nothing prevented him from contacting OCSD to obtain records. He added, "But I can't -- in other words, if there is no reason to inquire into something, there would be no reason for me to do it." In response to the court's hypothetical question, Talley agreed he would have produced Garrity's TRED records had he had them before litigating Rodriguez's motion to exclude Garrity's testimony.
On redirect examination, Talley said he understood his Brady obligation extended to the investigating agency but the OCSD was not part of the prosecution team. Talley did not request and the OCSD did not provide any assistance in this investigation. When the prosecutor asked how he would obtain classification records, Talley replied, "I would go to my investigator and say, 'hey, how do we get those records that we want,' or 'can we get them.'" Talley did not remember ever requesting OCSD classification records because "you are not going to be able to use it against them anyway."
OCDA Ben Masangkay was the OCII coordinator. Masangkay explained the OCII is an informant index that consists of both hard and computer files and contains biographical data of people who have developed a relationship with law enforcement either openly or confidentially. He stated there are three types of informants, CIs, mercenary informants (who inform for money), and citizen informants. He explained whether a person is listed in the OCII is based on that person's subjective intent, i.e., the reason she/he provided information which is relevant to her/his credibility. He agreed exhibits Nos. 14 and 4 were Garrity's entire OCII file. On cross-examination, Masangkay stated a DDA could only obtain information from the OCII from him. The trial court examined Masangkay, who said exhibit No. 4 was a hard copy from Garrity's file that is retained in file cabinets in a locked room; he did not recognize the handwriting. He said his predecessor was Elizabeth Hatcher. He added senior DDA Jones supervised the unit that included the OCII.
Former OCDA DDA Marc Rozenberg prosecuted Huizar. In 1999, Rozenberg obtained information from Sullivan that he had received from APD about a CI. Rozenberg never called the CI to testify because Huizar pleaded guilty after the preliminary hearing. Rozenberg never promised the CI any consideration.
The trial court accepted stipulation Nos. 1, 2, and 3, and admitted the exhibits into evidence. The parties also stipulated the court could consider the section 402 hearing and Garrity's trial testimony. After counsel argued, the OCDA filed a supplemental brief. 4. Trial Court's Ruling
After counsel presented argument, the trial court took the matter under submission. At a hearing the following week, the trial court issued its eight-page written ruling, portions of which it read into the record.
The trial court provided a detailed procedural history of the case. The court explained that at the subpoena hearing, deputy county counsel made "inaccurate" representations about the existence of the requested records, including Garrity's classification records, which OCSD had in its possession at the hearing. The court explained that at the in camera hearing, Fouste described some of the records Judge Fasel reviewed as what we call "the classification [TRED] which are the notes reference [sic] him and all of his movement for every in-custody he has ever had since 1992." The court stated that despite the fact Judge Fasel "immediate[ly] and unequivocal[ly]" concluded all the records must be produced, Garrity's TRED records were not produced to the defense until March 2015. The court attributed the error to Judge Fasel's "arguably somewhat ambiguous" order and not the deputy county counsel's intentional conduct.
The trial court then detailed the most relevant TRED entries concerning Garrity's history as a CI that were included in the documents Judge Fasel reviewed. After detailing seven different entries, the court stated none of the information was produced to the defense, despite Judge Fasel's comment the information was discoverable. The court noted that at the hearing on Rodriguez's motion to exclude Garrity's testimony, the prosecutor argued the court should deny the motion because the record includes no evidence Garrity was a "plant" who sought consideration for his information but instead merely heard "'bad stuff in jail and decided to relate it.'" (Underscore omitted.) The court reasoned that because the record did not include Garrity's TRED records, the prosecutor was able to argue to Judge Fasel, and later the jury, that Garrity provided information because it was the right thing to do.
As to Garrity's TRED records, the trial court stated, "It is impossible for this court [10] years later to know with any certainty how the [TRED]-related evidence might have influenced Judge Fasel's judgment on the Massiah issue . . . ." (Italics added, underscore omitted.) The court stated though it was clear the defense should have had the TRED records before litigating its motion to exclude Garrity's testimony. The court opined, "This court agrees . . . discovery of the documents reviewed by Judge Fasel in camera, . . . was mandatory in 2005[]" (underscore omitted) pursuant to Brady because "these documents constituted potentially exculpatory material" to the Massiah issue. The court characterized the prosecution's failure to provide Garrity's TRED records to the defense as "an error of constitutional dimension."
Rejecting the OCDA's contentions it was not legally responsible for the OCSD's/County Counsel's failure to produce Garrity's TRED records to the defense because the OCDA did not participate in the in camera hearing and the OCSD was not part of the prosecution team, the trial court opined Brown, supra, 17 Cal.4th 873, refuted its claims. After providing the Brown court's rationale, and discussing two cases the OCDA relied on, People v. Zambrano (2007) 41 Cal.4th 1082 (Zambrano), and People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305 (Barrett), the court opined OCSD was not merely Rodriguez's "'jailer.'"
Disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.
The trial court reasoned as follows: "In this case, when the [OCSD] intentionally inserted itself into the chain of events that generated evidence of a purported confession from [Rodriguez], and the [FPD] accepted the [OCSD's] offer of assistance, OCSD joined the 'prosecution team.' Indeed, there would have been no alleged confession to argue about but for the 'assistance' provided by the [OCSD]." The court concluded, "the OCDA was . . . responsible for providing to [Rodriguez] any and all exculpatory evidence in the [OCSD's] possession that related to the procurement of [Rodriguez's] alleged confession to . . . Garrity." The court stated that having concluded the OCDA deprived Rodriguez of relevant discovery material in 2005, the remaining issues were whether the information was material and whether he was prejudiced.
The trial court explained that had Rodriguez received materials that were "the actual or functional equivalent" of Garrity's TRED records, he would not have been prejudiced. The court stated, however, that even if the OCSD was not part of the prosecution team, the OCDA created and maintained exhibit No. 4. The court said exhibit No. 4 established that in February 2005, one year before Rodriguez's motion to exclude Garrity's testimony was litigated, a member of the OCDA, "perhaps senior [DDA] Bob Jones, wrote in [the] OCDA's Informant Index that . . . Garrity 'did receive consideration on cases here in our county.'" After the court said the issue of whether Garrity received consideration for his information was a "hotly contested factual issue" before Judge Fasel, the court noted the author of the entry in the OCII concluded that entry stating, "'BJ instructed ([DDA] . . .) Conway to refrain from providing copies to defense unless ordered by the court per (deputy [DA]) E. Hatcher.'" With respect to exhibit No. 4, the court concluded as follows: "This court will not speculate about what impact exhibit [No.] [4] might have had on Judge Fasel's analysis or his 2006 ruling. What cannot be seriously debated is that, pursuant to Brady, [Rodriguez] had a right to see and consider this document in 2005 since it is potentially favorable evidence related to the Massiah issue." (Italics added, underscore omitted.)
After discussing In re Neely (1993) 6 Cal.4th 901 (Neely), the trial court stated defense counsel was fulfilling its obligations pursuant to that case by requesting information concerning Garrity's work as a CI and any consideration he received. The court explained the significance of the records as follows: "If [defense] counsel had received the material he specifically asked for and to which he was legally entitled, he would then have been able to make an informed decision as to what to do next, e.g., attempt to interview [senior DDA] Jones informally, and/or subpoena him to testify during the Massiah motion to confirm that . . . Garrity did in fact have a pre-existing relationship with law enforcement that had resulted in him receiving benefits 'on cases.' Such evidence might well have undermined the prosecutor's argument to Judge Fasel or the trial jury that . . . Garrity had simply 'heard some bad stuff in jail and decided to relate it.'" Rejecting the OCDA's suggestion the court should infer what the author of exhibit No. 4 was thinking, the court concluded Rodriguez had a right to obtain Garrity's TRED records and exhibit No. 4 in 2005 to conduct an investigation.
The trial court ruled as follows: "Finally, the evidence at issue is a purported confession by Petitioner in a case in which very little other evidence linked him to the charged homicide. This court finds that this evidence is 'material' in that 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' [Citation.] This court also finds that the discovery failures that occurred in this case prejudiced [Rodriguez] since the court believes that there is a reasonable probability that litigation related to his second trial would have produced a result more favorable to [Rodriguez] had he received this discovery before that 2006 trial."
In concluding, the trial court opined "The factual record in this case is troubling." The court explained the trouble began at the subpoena hearing and continued through trial when the prosecutor argued facts that "did not mirror reality." The court added the materials regarding Garrity the OCDA produced to Rodriguez before his second trial in 2006 "were not the actual or functional equivalents of the Brady material" concerning Garrity that the OCDA produced to Rodriguez in 2015 and 2016. The court concluded the following: (1) the OCDA deprived Rodriguez of relevant discovery regarding Massiah before his second trial in 2006; (2) the missing discovery was material to the Massiah issue; (3) Rodriguez was prejudiced; and (4) because Rodriguez's constitutional rights were violated, he deserved a new trial, including the right to relitigate his motion to exclude Garrity's testimony.
DISCUSSION
"[W]e review the grant of a writ of habeas corpus by applying the substantial evidence test to pure questions of fact and de novo review to questions of law. (In re Collins (2001) 86 Cal.App.4th 1176, 1181 . . . .) '[W]hen the application of law to fact is predominantly legal, such as when it implicates constitutional rights and the exercise of judgment about the values underlying legal principles, [the appellate] court's review is de novo.' [Citation.]" (In re Taylor (2015) 60 Cal.4th 1019, 1035.)
Implicated here are two constitutional protections afforded criminal defendants, Brady, supra, 373 U.S. 83, the right to favorable and material evidence, and Massiah, supra, 377 U.S. 201, the right to counsel free from governmental questioning.
Pursuant to Brady, "'The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' [Citation.] 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."' [Citation.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1043.)
Pursuant to Massiah, "[O]nce an adversarial criminal proceeding has been initiated against the accused, and the constitutional right to the assistance of counsel has attached, any incriminating statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against that defendant. [Citations.] In order to prevail on a Massiah claim involving use of a government informant, the defendant must demonstrate that both the government and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citation.] Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements. [Citations.]" (Neely, supra, 6 Cal.4th at p. 915.) I. Was the Evidence Suppressed? A. TRED Records
The OCDA argues it did not suppress the TRED records because OCSD was not part of the prosecution team and defense counsel knew, or should have known, the essential facts contained in the TRED records. We disagree. 1. Prosecution Team
"Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request [citation], a general request, or none at all [citation]. The scope of this disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any favorable evidence known to the others acting on the government's behalf . . . .' [Citation.] Courts have thus consistently 'decline[d] "to draw a distinction between different agencies under the same government, focusing instead upon the 'prosecution team' which includes both investigative and prosecutorial personnel."' [Citation.] 'A contrary holding would enable the prosecutor "to avoid disclosure of evidence by the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial," [citation].' [Citations.] Thus, 'whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government.' [Citations.] [¶] As a concomitant of this duty, any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution. 'The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation.' [Citations.] The Supreme Court recently reiterated this principle: 'whether the prosecutor succeeds or fails in meeting this obligation [to learn of favorable evidence] (whether, that is, a failure to disclose is in good faith or bad faith, [citation]), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.' [Citations.]" (Brown, supra, 17 Cal.4th at pp. 879-880, fns. omitted, emphasis added.)
"[T]he prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government's behalf that were gathered in connection with the investigation. But the prosecution cannot reasonably be held responsible for evidence in the possession of all governmental agencies, including those not involved in the investigation or prosecution of the case. 'Conversely, a prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material.' [Citation.]" (In re Steele (2004) 32 Cal.4th 682, 697.)
"Although rigorous, we do not perceive the duty imposed by Brady as too onerous. [Citation.] 'Obviously some burden is placed on the shoulders of the prosecutor when he is required to be responsible for those persons who are directly assisting him in bringing an accused to justice. But this burden is the essence of due process of law.'" (Brown, supra, 17 Cal.4th at p. 883.)
As to the TRED records, the issue is whether OCSD was part of the prosecution team, i.e., was it investigating Rodriguez or merely jailing him? Our Supreme Court has held that when an agency is merely a jailer and not involved in the investigation or prosecution, there is no constitutional, or statutory, duty of disclosure. (Zambrano, supra, 41 Cal.4th at p. 1133 [defendant's sister's letter to DS expressing fear of brother and requesting notice of release not discoverable].) Here, the OCDA concedes "the OCSD has a hybrid status[,]" both investigator and jailer. Thus, we must determine whether there was evidence OCSD was part of the prosecution team investigating Rodriguez or merely jailing him. As we explain below, unlike Zambrano where there was a one-way communication, here there was ongoing communication between Garrity and OCSD for the benefit of FPD and the OCDA.
In Barnett v. Superior Court (2010) 50 Cal.4th 890, 894 (Barnett), our Supreme Court addressed the issue of whether section 1054.9, a postconviction discovery provision, governs materials possessed by out-of-state law enforcement agencies (agencies). In deciding whether the agencies were part of the prosecution team, the Barnett court looked to federal authority, including U.S. v. Reyeros (3d Cir. 2008) 537 F.3d 270, 282. (Barnett, supra, 50 Cal.4th at p. 904.) The Barnett court explained those courts answered the following questions: "'"(1) whether the party with knowledge of the information is acting on the government's 'behalf' or is under its 'control'; (2) the extent to which state and federal governments are part of a 'team,' are participating in a 'joint investigation' or are sharing resources; and (3) whether the entity charged with constructive possession has 'ready access' to the evidence."' [Citations.]" (Ibid.)
Here, first, the evidence demonstrated OCSD was acting on the OCDA's behalf. Although DS Larson worked in the SHU in 2010 and he admitted he did not know of the procedures in the SHU in 1999, he testified part of his duties in the SHU was the development of informants. Larson stated when an inmate provided information that involved another agency, he would help facilitate an interview between the CI and the agency.
DS's Szewczyk and Fouste, who both worked in the SHU in 1999, admitted they could move CIs around the jail or put CIs in a cell next to an inmate to have the CI question the inmate. Additionally, both admitted they acted as "conduits" with law enforcement agencies, i.e., that if an inmate stated he had information about a case with an outside agency, he would contact the agency. Both Szewczyk and Fouste had contact with Garrity and knew he claimed to be providing information to APD, on Huizar's case, and FPD, on Rodriguez's case. Both also admitted they knew Garrity had a "rat jacket" or a "snitch jacket," which meant he was providing information to law enforcement.
Additionally, both DS's Szewczyk and Fouste knew Garrity provided information to OCSD. Szewczyk admitted he was aware of Garrity's inmate screening form from April 12, 1999, that said Garrity was a CI for OCSD whose contact was "Mike" from homicide and he was providing information on Huizar, but he did not investigate who Mike was. Fouste too would have been familiar with Garrity's inmate screening form dated April 12, 1999, that indicated Garrity stated he was a CI for OCSD whose contact was "Mike" from homicide.
Garrity's letters establish he was in frequent contact with SHU DS's during the time he was housed next to Rodriguez. When Garrity wrote a letter, he would give it to a DS, on one occasion Trimmer, who would forward it to the appropriate law enforcement agency. Trimmer stated that in June 1999, he received a message from Garrity stating the person in the cell next to him was bragging about his case, and Trimmer conveyed the information to the FPD. In response to Garrity's letters to OCSD DS's, FPD interviewed Garrity three times.
Whether fortuitously or by design, OCSD knew Rodriguez was confessing to Garrity, and OCSD facilitated the relationship by allowing them to remain housed next to each other for months. Moreover, OCSD participated in the investigation by contacting FPD and arranging for detectives to continue to question Garrity, an inmate who was providing information on another murder case, Huizar, and at least two jail inmates. Regardless of whether the OCDA asked for the OCSD's assistance, this evidence demonstrated OCSD was working on the OCDA's behalf.
Second, the evidence established OCSD, FPD, and OCDA were part of a team participating in a joint investigation. Many of the same facts that support the conclusion the OCSD was acting on behalf of the OCDA also support the finding the three agencies were part of a team investigating Rodriguez. The number of contacts between Garrity, a known CI providing information on two murder cases, and OCSD DS's was significant. The record demonstrates that while in custody at the jail, Garrity had one interview with APD and three interviews with FPD in six months. Rodriguez confessed to Garrity, Garrity contacted DS's, FPD met with Garrity at the jail, Garrity returned to his cell and obtained more information from Rodriguez, and FPD met with Garrity again. Garrity then testified for the prosecution at trial. Based on these facts, it is certainly reasonable to conclude OCSD DS's knew any confession would be used by the OCDA at trial.
Finally, the evidence demonstrated OCDA had ready access to OCSD's TRED records, despite the prosecutors' testimony they were unaware of OCSD TRED records when they prosecuted the case in 2005. It is true both DDAs Conway and Talley testified they did not know OCSD maintained TRED records until 2015 as a result of the Dekraai case. Although they may not have been aware of TRED records, the record before us demonstrates both Conway and Talley were aware of OCSD jail classification records and could have requested all OCSD classification records regarding Garrity's work as a CI in this and other cases.
With respect to DDA Conway, he knew Rodriguez allegedly confessed to Garrity in jail and Garrity wrote notes, but it did not occur to him to contact OCSD. He was served with County Counsel's motion to quash defense counsel's subpoena duces tecum requesting OCSD's classification records. And Conway appeared at the open portion of that hearing, however briefly. This demonstrates Conway was on notice Garrity was working as a CI and should have contacted OCSD and requested Garrity's classification records.
As to DDA Talley, he too knew Rodriguez allegedly confessed to Garrity in jail and Garrity wrote notes, but he did not think it was necessary to contact OCSD about this. Talley knew defense counsel intended to argue Rodriguez's Massiah rights were violated, and Talley suspected Massiah was implicated as demonstrated by the fact he did not seek to admit Garrity's second and third interviews with FPD. But Talley did nothing to investigate the extent of Garrity's work as a CI while under OCSD's supervision. Talley admitted all he had to do was ask his investigator to get the records from OCSD. Based on this record, we conclude the OCDA had ready access to OCSD's TRED records. As Talley testified concerning other OCSD jail records, all he had to do was tell his investigator to "'go get that.'"
The OCDA relies on People v. Jacinto (2010) 49 Cal.4th 263 (Jacinto), and Barrett, supra, 80 Cal.App.4th 1305, to argue OCSD was nothing more than Rodriguez's jailer. Again, we disagree.
The OCDA also discusses County of Placer v. Superior Court (2005) 130 Cal.App.4th 807 (County of Placer). But in that case the court stated at the outset, "In the end, the 'prosecution team' concept is not controlling here." (Id. at p. 814.) The OCDA does not explain how County of Placer applies here, in light of that abjuration of the position they now take.
In Jacinto, supra, 49 Cal.4th at page 269, our Supreme Court addressed defendant's claim of prosecutorial violation of the right to compulsory process. In addressing the first prong, prosecutorial misconduct, the court had to determine whether the Sonoma County sheriff was part of the prosecution team when it released a percipient witness to immigration officials. (Id. at p. 270.) After explaining the sheriff was both jailer and investigator, the court stated the following: "But this formal identity between sheriff's deputies operating and providing protective services in the jail and detectives in the law enforcement division investigating crimes does not automatically render the deputies assigned to the jail members of the prosecutorial team. Absent some additional showing of affirmative prosecutorial involvement in [the witness's] removal, we cannot hold the prosecutor legally responsible merely because a sheriff's deputy working at the jail was involved." (Id. at pp. 270-271, fn. omitted.)
In Barrett, supra, 80 Cal.App.4th at pages 1309-1310, defendant charged with the murder of his cellmate requested pretrial discovery from the Imperial County District Attorney (ICDA) of records maintained by the California Department of Corrections (CDC), including records from the administrative segregation unit and incident logs. After the trial court ordered the ICDA to produce the materials, it filed a petition for writ of prohibition. (Id. at p. 1309.) The court concluded the prosecution had no duty to produce most of the records because in maintaining them, the CDC was not acting as an investigating agency. (Id. at pp. 1317-1320.) The court reasoned as follows: "[T]he status of CDC in this case is not straightforward. In addition to being an investigatory agency in the . . . prosecution, CDC first and foremost supervises, manages and controls the state prisons . . . . [Citations.] CDC is a distinct and separate governmental entity from the [ICDA] . . . . Thus, for our purposes, CDC has a hybrid status: part investigatory agency, and part third party." (Id. at p. 1317, fn. omitted.)
In explaining the distinction between investigatory agency and jailer, the Barrett court stated the following: "With respect to CDC's role as an investigatory agency, [defendant] can only compel discovery of materials generated or maintained by CDC relating to its investigation of the . . . homicide . . . . [¶] However, the bulk of the . . . CDC documents . . . , most of which predate the homicide, are records kept by CDC in the course of running the prison. [Citation.] [Defendant] cannot rely on [section 1054 et seq.] for discovery of materials from CDC that are strictly related to its operation of [the prison], that is, materials CDC generated when it was not acting as part of the prosecution team. To the extent [defendant] is seeking records that CDC maintains in the regular course of running [the prison], [defendant] is trying to obtain material from a third party." (Barrett, supra, 80 Cal.App.4th at pp. 1317-1318.) The court concluded defendant must obtain prison administration records by subpoena duces tecum. (Id. at p. 1318.)
OCDA's reliance on Jacinto, supra, 49 Cal.4th 263, and Barrett, supra, 80 Cal.App.4th 1305, is misplaced. Unlike Jacinto, here there was an additional showing of OCSD involvement in the investigation of Rodriguez. As we explain above, OCSD was the conduit between Garrity and the FPD that resulted in Rodriguez's confession, which the OCDA used at the second trial to obtain his convictions.
And unlike in Barrett, OCSD does not "first and foremost supervise[], manage[] and control[]" the jail. (Barrett, supra, 80 Cal.App.4th at p. 1317.) As the OCDA concedes, the OCSD is a hybrid, both investigator and jailer. In support of its contention OCSD's TRED records are analogous to the CDC administration records in Barrett, the OCDA cites to DS's Fouste's, Szewczyk's, and Larson's testimony TRED records were administrative records used to maintain jail security and inmate safety. Although the TRED records may be considered custodial records, i.e., regularly maintained administrative records to ensure jail security, these TRED records also document an inmate obtaining confessions from two inmate murder suspects and providing that information to law enforcement agencies. As such, the OCSD TRED records were investigatory records the OCDA should have produced, and not records strictly related to jail operations.
The OCDA contends that because Rodriguez's defense counsel filed subpoenas duces tecum to obtain the records, that establishes the OCSD was a third party and thus not part of the prosecution team. It is true the reciprocal discovery statutes apply only to parties, and a party seeking records from a non-party, i.e., a third party, must obtain those records via subpoena. (§ 1054, subd. (b); Barrett, supra, 80 Cal.App.4th at pp. 1311-1313.) But we found no case law, and the OCDA cites to none, that establishes that because a criminal defendant sought to obtain records from an agency that fact alone establishes the agency was not part of the prosecution team. Rodriguez's defense counsel had a duty to try to obtain records from the OCSD by any method possible. Although the record reflects the OCDA can obtain information via an e-mail, there is no indication the defense would have the same access.
In November 2004, counsel filed a discovery motion requesting the OCDA produce the information required by section 1054.1 and "Any relevant material or information which has been provided by an informant." In counsel's mind, this discovery motion called for production of OCSD TRED records. When counsel did not receive the records he believed the OCSD possessed and the OCDA should have produced, he did the only thing he knew to do, subpoena the records from the OCSD. Indeed, Neely, supra, 6 Cal.4th at page 919, required counsel to do so or face a claim of ineffective assistance of counsel for failing to competently investigate an alleged Massiah violation. These actions do not support the OCDA's position. We conclude the OCSD was part of the prosecution team. 2. Known or Should Have Known
The OCDA contends it did not suppress OCSD TRED records because the defense knew, or should have known, the essential facts contained in the TRED records from other records the OCDA did produce to the defense. Not so.
"Since the prosecutor's duty to disclose . . . extends only to 'information which had been known to the prosecution but unknown to the defense,' [citation], evidence is not suppressed and Brady is not applicable where the defendant either knew or should have known the essential facts permitting him to take advantage of the evidence in question. [Citations.]" (United States v. Esposito (2d Cir. 1987) 834 F.2d 272, 275.)
Here, the OCDA states Garrity's TRED records contain the following five categories of information that might be exculpatory: (1) DS's moved Garrity after inmates suspected he was a CI; (2) Garrity provided information to APD about Huizar; (3) Garrity provided information to DS's about jail misconduct; (4) Garrity provided information to FPD about Rodriguez; and (5) DS's moved Garrity to isolated housing after his cellmate looked at his file and told Rodriguez that Garrity informed on him. The OCDA argues it did not suppress Garrity's TRED records because the defense knew, or should have known, about these facts from the documents the OCDA did produce to the defense, including Garrity's four interviews with law enforcement, Garrity's notes, and records establishing he received a sentence modification.
We agree with the OCDA the records it produced to the defense before the second trial include information also contained in the OCSD TRED records and that the defense could use the information to impeach Garrity. But the importance of the OCSD TRED records is not limited to whether Garrity was a CI. OCSD's TRED records were of paramount importance to the defense's attempt to establish before Judge Fasel that the OCSD violated Rodriguez's Massiah rights, i.e., OCSD operated a custodial CI program where DS's placed CIs near represented defendants, including Rodriguez, to elicit custodial statements. The OCDA cites to nothing in the records it produces to the defense, and we found nothing, that would have assisted the defense in establishing OCSD operated a custodial CI program.
Simply put, the defense litigated the Massiah motion based on an incomplete record, and as we explain below more fully, this allowed the prosecutor to misrepresent Garrity provided information because it was the right thing to do. Based on the record before us, the records the OCDA produced did not include the fact Garrity received "consideration" on cases in Orange County. This information was essential for the defense to fairly litigate its Massiah motion before Judge Fasel. Therefore, the OCDA did suppress Garrity's TRED records because OCSD was part of the prosecution team and the defense did not know or should not have known of the essential facts in the TRED records from other records it did receive. B. Exhibit No. 4
In the introduction to its opening brief, the OCDA asserts that although it did not produce exhibit No. 4 to the defense before the section 402 hearing, the defense knew or should have known of the facts contained in exhibit No. 4 based on other records it did receive before that hearing. But in its discussion of exhibit No. 4, the OCDA does not develop this argument. In its reply brief, the OCDA states, "the [OCDA] do[es] not dispute that [e]xhibit No. 4 should have been disclosed to the defense prior to the [section] 402 hearing." We accept the OCDA's concession it suppressed exhibit No. 4. II. Was the Evidence Favorable? A. TRED Records
The OCDA concedes the TRED records are favorable to the defense. "'For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.]'" (People v. Cordova (2015) 62 Cal.4th 104, 123.) Here, the TRED records hurt the OCDA because they assist Rodriguez in establishing the prosecution team violated his Massiah rights when Garrity, a government agent, elicited custodial statements from Rodriguez about his crime while he was represented by counsel. We agree with the OCDA the TRED records were favorable to Rodriguez. B. Exhibit No. 4
In its opening brief, the OCDA does not directly address the favorability element. Instead, it focuses on the materiality element. In its reply brief, after quoting a portion of the trial court's ruling where it opined Rodriguez "had a right to see and consider [exhibit No. 4] in 2005 since it [was] potentially favorable evidence related to the Massiah issue[,]" the OCDA states the following: "Again, this finding only addresses the favorability and suppression factors of a Brady analysis. And, again, the [OCDA] do[es] not dispute that [e]xhibit No. 4 should have been disclosed to the defense prior to the [section] 402 hearing." Here, exhibit No. 4 hurt the OCDA because it tended to establish the OCDA was aware Garrity received consideration in exchange for providing information on cases and that the OCDA attempted to withhold this information from the defense. We agree with the OCDA that exhibit No. 4 was favorable to Rodriguez, and we interpret its briefs as conceding this element. III. Was the Evidence Material?
The OCDA contends neither the TRED records nor exhibit No. 4 were material. We disagree.
Generally, we assess materiality based on whether there is a reasonable probability the trial result would have been different had the evidence been disclosed. (Zambrano, supra, 41 Cal.4th at p. 1133, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Relying on Rodriguez's habeas petition, and analogizing to a motion to suppress evidence, the OCDA asserts however, "[T]he pertinent focus of the materiality analysis in this case is whether there is a reasonable probability that the disclosure of the TRED records would have altered the result of the [section] 402 motion." We agree with the OCDA.
"'[The] touchstone of materiality is a "reasonable probability" of a different result . . . . The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."' [Citation.] In determining whether evidence is material under this standard, we consider '"the effect of the nondisclosure on defense investigations and trial strategies."' [Citation.]" (People v. Williams (2013) 58 Cal.4th 197, 256.) "Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]" (Zambrano, supra, 41 Cal.4th at p. 1133.)
To determine whether the TRED records were material, we must determine whether it was reasonably probable that had the defense received the TRED records and Judge Fasel considered them, he would have granted Rodriguez's motion to exclude Garrity's testimony based on a Massiah violation.
"To prevail on a Massiah claim, a defendant must show . . . the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citations.] '[T]he evidence must establish . . . the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit . . . , and (2) deliberately elicited incriminating statements.' The requirement of agency is not satisfied when law enforcement officials 'merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.' [Citation.] A preexisting arrangement . . . need not be explicit or formal, but may be inferred from evidence of the parties' behavior indicative of such an agreement. [Citation.]" (People v. Coffman (2004) 34 Cal.4th 1, 67.)
"[Evidence of a prior working relationship] may, depending on the circumstances, give rise to an inference that the police encouraged the informant to elicit incriminating information [citation]; but it does not, by itself, establish such an agency or illegal directive. In fact, . . . , the Sixth Amendment is not violated simply because the police arrange with an informant to accept information that he obtains [citation], and as we made clear in our opinion on the appeal in this case, a general police policy of encouraging inmates to provide useful information does not transform inmates into police agents. [Citation.]" (In re Williams (1994) 7 Cal.4th 572, 598.) A. TRED Records
The OCDA asserts the TRED records were not material because the defense knew of the essential facts in those records from the records it received and the TRED records do not undermine Judge Fasel's conclusion Garrity was "a passive listener." Not so.
OCSD's TRED records demonstrate the following: Upon his arrival in the jail in February 1999, Garrity told DS's that he had a history of providing information, previously to the Riverside Sheriff's Department. Over the next few weeks, Garrity provided information to DS's about inmates possessing drugs in the jail. Just six weeks after arriving, DS Szewczyk noted Garrity had provided "good" information in the past and he was providing information to the APD regarding Huizar's murder case. Szewczyk told Garrity to notify him if he had any problems so he could move him to PC. About 10 days later, Garrity told DS Verderame he was an OCSD CI whose contact was "Mike w/ homicide[]" and he was providing information about Huizar. Over the following months, Garrity had frequent contacts with DS's about his security because other inmates suspected him of providing information to DS's. In August 1999, Garrity contacted Fouste and told him he had provided information to FPD about Rodriguez and his cellmate looked through his notes and discovered he was informing. OCSD TRED entries from Verderame, Szewczyk, and Fouste indicate Garrity was a "CI" and had a "rat jacket" or a "snitch jacket."
In determining whether it was reasonably probable Judge Fasel would have excluded Garrity's testimony had the OCDA produced the TRED records, it is necessary to recall what Judge Fasel concluded based solely on Garrity's June 7, 1999, interview with FPD and a few of Garrity's letters. Judge Fasel concluded Garrity was a government agent regarding Huizar, and Garrity was a government agent concerning Rodriguez near the end of that interview. Based on the TRED records, it is reasonable to infer there was a preexisting arrangement between OCSD and Garrity from the time he was first housed next to Rodriguez and he was acting on the government's behalf by deliberately eliciting incriminating statements from Rodriguez. Evidence that soon after his arrival Garrity provided information on a murder suspect, Huizar, and upon being moved to PC he provided information on another murder suspect, Rodriguez, refutes the conclusion Garrity was simply "a passive listener." It tends to demonstrate he was an active questioner working on the government's behalf.
Additionally, the TRED records also support the conclusion Garrity was a government agent soon after he arrived in the jail. Almost immediately, Garrity began providing information to DS's, particularly Fouste, and law enforcement agencies. We acknowledge Judge Fasel was working with an incomplete record, but he essentially found Garrity was a government agent with respect to Huizar, he stopped being a government agent during his initial encounters with Rodriguez, and he resumed being a government agent after his first interview with FPD. The TRED records provide the missing link. They demonstrate Garrity regularly contacted DS's to notify them he was eliciting information and in return DS's moved him to ensure his safety. From this evidence, it is reasonable to conclude DS's wanted to ensure Garrity would continue to provide information. Nothing in the records the OCDA produced to the defense before the second trial exposes the level of cooperation between Garrity and the OCSD. Finally, the fact there was no evidence explaining why DS's housed Garrity next to Rodriguez does not alter our conclusion. Thus, the TRED records were material. B. Exhibit No. 4
The OCDA argues exhibit No. 4 was not material for the following reasons: it was inadmissible hearsay; its author was unknown, and thus it could not be used for impeachment purposes; it would not lead to the discovery of other admissible evidence; and it did not undermine Judge Fasel's conclusion "Garrity was a mere listening post." None of its contentions have merit.
The relevant portion of exhibit No. 4 is dated February 10, 2005, and provided as follows: "Bob Jones provided me with court docs from our county which indicated CI did receive consideration on cases here in our county. BJ provided copy of docs to DDA Conway[.] Copy of docs in CI OCCII file also. BJ instructed Conway to refrain from providing copies to defense unless ordered by the court. Per E. Hatcher." (Italics added.)
"[I]n order for the newly-disclosed information to be material under Brady/Giglio, the information must be either admissible, lead to information that will be admissible, or capable of being used for impeachment. [Citations.] Nevertheless, a prosecutor does not have a duty to disclose 'his or her strategies, legal theories or impressions of the evidence.' [Citation.] In other words, the prosecutor does not have a duty under Brady/Giglio to disclose all opinion work product. '[I]n general, a prosecutor's opinions and mental impressions of the case are not discoverable under Brady[/Giglio] unless they contain underlying exculpatory facts.' [Citation.] . . . ." (United States v. Kohring (9th Cir. 2011) 637 F.3d 895, 907.)
Giglio v. United States (1972) 405 U.S. 150.
As to whether exhibit No. 4 was admissible, below the prosecutor argued it was inadmissible because the handwritten note contained privileged attorney work product. On appeal, the OCDA does not make the same claim and has apparently abandoned that argument. Instead, the OCDA argues it was inadmissible hearsay. To the extent this issue is preserved for appellate review, it is meritless. Exhibit No. 4 was admissible as a business record. (Evid. Code, § 1271.)
With respect to the note's author, DDA Conway testified that although he did not know who wrote the entry, he agreed it was reasonable to infer "B.J." was senior DDA Bob Jones. As to the likely author of the entry, former OCDA investigator O'Sullivan testified, "I'm going to take an educated guess and say Bob Jones." When the trial court asked DDA Talley if he investigated to see whether Garrity was in the OCII, he testified, although he would not "swear [he] talked to Bob Jones[,]" he "probably" did. The OCDA disputes the court's conclusion Bob Jones was the note's author. It characterizes the court's conclusion as speculation and asserts the entry is written in the third person. We find the court's conclusion senior DDA Jones was the author of the entry was a reasonable inference. But regardless of whether Jones was in fact the author, the evidence is clear an attorney in the OCDA's office wrote the entry. The OCDA conceded this point during closing argument at the habeas petition evidentiary hearing.
Exhibit No. 4 was admissible, and contrary to the OCDA's contention otherwise, it is not too speculative to conclude it would have led to other admissible evidence. Had the OCDA produced exhibit No. 4 to the defense, it could have called Jones to examine him under oath about his knowledge of any OCSD custodial CI program at the section 402 hearing. Again, contrary to the OCDA's claim otherwise, there was no reason for the defense to call Jones to testify without knowledge of exhibit No. 4 at that hearing.
Finally, exhibit No. 4 was material. Information contained in the OCDA's internal record that Garrity had in fact received consideration on cases in Orange County and that it attempted to withhold this information was material because it implicates the OCDA in the OCSD's custodial CI program. The court documents mentioned in exhibit No. 4, that the defense did have, did not include this information.
The defense was aware Garrity had received sentences that appeared lenient. Before Judge Fasel, defense counsel argued Garrity had provided evidence to the prosecution in exchange for being "released early" or being "sent to Chapman House for his drug addiction problem." DDA Talley countered by arguing to the court, "[T]here is no suggestion that . . . Garrity, based on the record, has tried to get anything back in exchange for what he has done on any of these cases." Talley, of course, was relying on a record that did not include exhibit No. 4. Had the OCDA produced exhibit No. 4 information as it concedes it should have, Talley would not have been able to make the same argument relative to Garrity. Talley, like DDA Conway before him, knew this court had previously concluded detectives violated Rodriguez's Miranda rights, and thus he had to call Garrity as a witness. Portraying Garrity as a morally upright inmate with a conscience who was just trying to do the right thing was of paramount importance to the prosecution. Thus, exhibit No. 4 was material. Based on the entire record, we conclude the trial court did not err by granting Rodriguez's petition for writ of habeas corpus and ordering a new trial, and if necessary allowing him to relitigate the Massiah motion.
DISPOSITION
The order is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.