Summary
In People v. Acuna (June 15, 2011, B223744) [nonpub.opn.], we found that, because the factual scenario on which appellant's Pitchess motion was premised involved alleged coercion of a witness, personnel records related to coercion were discoverable.
Summary of this case from People v. AcunaOpinion
NOT TO BE PUBLISHED
APPEAL and PETITION for writ of habeas corpus from a judgment of the Superior Court of Los Angeles County No. VA104941, Margaret M. Bernal and Philip H. Hickok, Judges. Judgment affirmed in part, conditionally reversed in part and remanded to the trial court with directions.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Defendant Benito Acuna appeals from the judgment entered upon his jury conviction of gang-related first-degree murder. Defendant contends the prosecution withheld material exculpatory evidence, and the trial court should have admonished the investigating officer for speaking to defendant’s wife during a recess of her direct testimony. We reject these contentions. At defendant’s request, we have reviewed the sealed transcript of the in camera proceeding on his motion for pretrial discovery of confidential police personnel records and determined that the trial court withheld material information. The judgment is therefore affirmed in part, conditionally reversed in part, and remanded to the trial court with directions. The related habeas corpus petition is denied.
FACTUAL AND PROCEDURAL SUMMARY
On February 24, 2008, a car wash to raise money for the funeral of a slain member of the Varrio Hawaiian Gardens gang was held in the parking lot of Jim’s Burgers in Hawaiian Gardens. Jeffrey Martinez, who had no gang affiliation, had driven his father, a Dog Patch gang member, to Jim’s Burgers to get something to eat. On their way out, they got into a fight with some older members of the Varrio Hawaiian Gardens gang who were at the car wash, and Martinez was fatally shot. Six shots were fired from the same gun.
Defendant and his 15-year-old son Benito (also referred to as Junior) were arrested on March 19, 2008. Junior initially denied being at the car wash at the time of the shooting. After the detectives told him that his father said Junior should tell the truth, Junior admitted being at the car wash, hearing shots, and seeing his father running toward him with a gun. He stated that, at his father’s behest, he hid the gun at their apartment building. Later, when he was returned to the detention cell, Junior volunteered the additional statement that his grandmother drove them to a ditch, where unbeknownst to her, his father disposed of the gun. At defendant’s jury trial in December 2009, Junior’s recorded statements were played to the jury, but he recanted them on the stand, claiming they were prompted by psychological coercion because the detectives had threatened to jail his entire family.
In June 2009, Junior pled guilty to being an accessory to murder.
The principal prosecution witness at trial was sixteen-year-old Ryan Parks, who had entered the witness protection program. Parks testified that he was washing a car when the fight broke out. He identified defendant as the person he saw leave the fight, take a gun from under some towels, put it in his pocket, go back to the fight, punch Martinez, and draw the gun. At that point, Parks hit the ground and heard shots. In his initial interview, Parks identified defendant’s photograph, believing defendant was Junior’s uncle Mono based on a rumor that the uncle was the shooter.
Mayra Acuna, defendant’s wife and Junior’s mother, began her testimony on December 8. She testified her family was at the car wash. After hearing the shots and as she was driving away with defendant, she saw her brother Jose Ceja standing in the parking lot of Jim’s Burgers with a gun in his hand. Ceja had come in from Arizona with their mother, Araceli Lopez Bunrostro. Mayra did not see Ceja shoot the gun. Later, she told her mother that Ceja had destroyed her life, and she told Ceja to leave her house. In June 2008, Mayra flew to Arizona and begged Ceja to turn himself in.
Junior testified that Ceja’s nickname was Mono.
Bunrostro testified that after the shooting Mayra repeatedly accused some unidentified person of ruining her life and her children’s lives.
At an ex parte in camera hearing on December 9, the prosecutor asked for a continuance so the prosecution could interview Ceja. At the hearing, Detective Sloan stated that he had spoken to Bunrostro, who related to him a phone conversation she had with Ceja earlier that morning. The detective indicated he was informed that Ceja was driving from Arizona to California to turn himself in. The detective reported that Ceja had told his mother: “I am sorry. God bless you. This car will take me to my destiny. I can’t tell you what I have done, because I don’t want to hurt you.” The court sealed this part of the hearing to allow the prosecutor to investigate.
On December 10, defense counsel indicated that he had spoken to Ceja, who admitted he was at the scene but denied having a gun. Defense counsel moved for a mistrial or a continuance to reinterview Ceja and other witnesses. The court denied the motion for the time being, advising counsel it could be renewed later in the day or on the following day if necessary. When Mayra resumed her testimony, she admitted that in her taped interview with the police in 2008 she claimed to have left the car wash before the shooting. It was stipulated that, until she testified in court, she had not told defense counsel that Ceja had a gun, and she admitted not having told anyone else about this. During this part of her testimony, Mayra claimed she saw Ceja with a gun after she heard the shots and as she was running to her car. After Mayra’s direct testimony, both sides indicated that they were not going to call Ceja as a witness. At the end of the day, after both sides had rested, the court indicated that it would unseal the ex parte hearing from the day before.
On December 14, the jury convicted defendant of first degree murder and possession of a firearm by a felon and found true various allegations, including the allegation that the crimes were gang related. Defendant was sentenced to 50 years to life in prison. His motion for a new trial was denied, and he timely appealed from the judgment. In November 2010, he filed a petition for a writ of habeas corpus.
DISCUSSION
I
Defendant contends the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by not disclosing to the defense Detective Sloan’s recorded conversation with Bunrostro, which was brought up during the December 9 ex parte hearing. More specifically, defendant challenges nondisclosure of the statement by Ceja that Bunrostro had related to the detective: “I am sorry. God bless you. This car will take me to my destiny. I can’t tell you what I have done, because I don’t want to hurt you.”
Under Brady, the prosecution has a self-executing duty to disclose to the defense evidence that is favorable to the accused and material to the issues of guilt or punishment. (People v. Verdugo (2010) 50 Cal.4th 263, 279 (Verdugo).) ‘“[E]vidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] 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.]’ [Citations.]” (Verdugo, supra, 50 Cal.4th at p. 279.) “‘[W]hen information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.’ [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 715.)
The record on appeal does not reveal whether Detective Sloan’s conversation with Bunrostro was disclosed to the defense, but defendant has filed a habeas corpus petition based entirely on the alleged Brady violation. The petition is supported by a declaration, in which defendant’s trial counsel affirms that he learned of this conversation only on November 15, 2010, eleven months after the trial. Counsel further states that, had he been apprised of Ceja’s statements to Bunrostro, he would have changed his trial strategy by calling Ceja as a witness, impeaching him with his statements to his sister and his mother, and if Bunrostro reneged, impeaching her with her recorded conversation with Detective Sloan. The People have not opposed the petition. Instead, in their response to the appeal, they assume the detective’s recorded conversation with Bunrostro was not disclosed to the defense. The People’s concession renders the habeas corpus petition moot.
Notwithstanding the concession, the assumption that Detective Sloan’s conversation with Bunrostro was recorded appears to be based on statements the trial court made at the December 9 ex parte hearing. At that hearing, neither the prosecutor nor the detective told the court that the conversation with Bunrostro was recorded. The only taped conversation brought up at the hearing was that of Mayra’s 2008 interview with the police. The court suggested to the prosecutor that he could impeach “the mother” with her “interview on tape with [Detective] Sloan, or whoever it was.” When defense counsel joined the hearing, the court let him know that it had told the prosecutor he could impeach Mayra with her interview. Considering the court’s statements in context, it is much more likely that during the ex parte portion of the hearing the court was referring to Mayra’s taped 2008 interview with the police. The taped interview favored the prosecution, already had been brought to the court’s attention at the hearing, was later identified by the court as the impeachment material referred to earlier in the hearing, and was indeed used by the prosecution to impeach Mayra on the next day of trial. To the extent that both sides premise the existence of a recorded conversation with Bunrostro on the trial court’s statements during the ex parte portion of the hearing, their assumption is not supported by the record.
Even assuming that the prosecution failed to disclose the substance of Detective Sloan’s conversation with Bunrostro to the defense, that would not amount to a Brady violation if the information was available to the defense at the time of trial and could have been obtained through due diligence. That was the case here as the information adduced at the prosecution’s ex parte meeting with the court on December 9, which was sealed for a day, was unsealed before the end of trial. The ex parte meeting proceeded under Penal Code section 1054.7. That statute allows the court, for good cause, to deny, restrict or defer disclosures, including disclosures of exculpatory evidence under Penal Code section 1054.1, subdivision (e). Good cause includes “possible compromise of other investigations by law enforcement.” (Pen. Code, § 1054.7.) The statute allows the court to seal the record of the in camera hearing at which good cause is shown and to unseal it after trial and conviction. (Pen. Code, § 1054.7.) In conformance with the statute, the court sealed the record of the December 9 ex parte hearing to allow the investigation into Ceja’s involvement in the shooting to proceed. On December 10, after both sides had rested, the court asked the prosecutor in defense counsel’s presence whether “[t]he other portion that we did yesterday” needed to be sealed. The prosecutor answered that it did not need to be sealed. The court then ruled, “All right, we’ll unseal it.” Unsealing the sealed portion of the hearing made the information presented ex parte to the court available to the defense. Yet, although defense counsel was aware that an ex parte hearing had taken place the day before and would no longer be sealed, in his declaration in support of defendant’s habeas corpus petition counsel stated that he did not learn of Ceja’s statement until November of the following year. Either counsel did not recall or did not review the record that he knew was available to him. Regardless, this additional information was not material in light of information counsel already had.
The gist of the information about Ceja’s conversation with Bunrostro that was provided at the ex parte hearing was also made available to the defense through another source. At an Evidence Code section 402 hearing held on the morning of December 10, Mayra was questioned by defense counsel regarding her conversation with Detective Sloan the day before. She testified that she told the detective: “[M]y brother had called my father saying he was going to turn himself in.” She also testified that her brother had told her, “I’m sorry for what I have put you through.” Mayra’s testimony apprised defense counsel of the two pieces of information that the prosecution brought to the court’s attention during the ex-parte hearing: that Ceja was planning to turn himself in and that he was sorry about something. The court advised defense counsel that if Ceja testified he could be impeached with various statements Mayra claimed he had made to her. Yet, later in the day, defense counsel announced his decision not to call Ceja as a witness even though he knew that it would preclude his use of Ceja’s statements to Mayra. Counsel did not renew his motion for a mistrial or a continuance to reinterview Ceja, even though the court had left this option open. Nor is there any other showing that counsel attempted to follow up on Mayra’s claim that Ceja told their father he was going to turn himself in, presumably in relation to this case. Counsel’s trial decisions, made with knowledge of Mayra’s testimony at the section 402 hearing, render unconvincing defendant’s contention Ceja’s vague statement to Bunrostro that he was sorry about something he had done would have made a difference in the defense’s trial strategy. Brady was not violated.
At oral argument, defendant cited United States v. Kohring (9th Cir. 2011) 637 F.3d 895. There, the court found that the government’s failure to disclose documents favorable to the defense and material to the impeachment of key government witnesses in a public corruption case violated Brady. None of the issues before the Kohring court concerned the prosecution’s failure to disclose evidence under circumstances similar to those here—namely, where the withheld evidence is information about a third party’s vague statement of guilt, which the court temporarily seals but which is available to defense counsel from other sources and is ordered unsealed before the end of trial.
II
Defendant contends that Detective Sloan’s contact with Mayra during the recess of her direct examination constitutes governmental intimidation of a defense witness and infringes on his rights to compulsory process and due process of law. A violation of the right to compulsory process occurs when a government agent’s conduct, unrelated to the agent’s duties, substantially causes the loss of a defense witness’s material testimony. (In re Martin (1987) 44 Cal.3d 1, 31-32.) Defendant concedes that he cannot establish that such a violation occurred because Mayra continued to testify. He concedes too that the detective’s conduct was not so outrageous as to violate defendant’s right to due process. Nevertheless, defendant contends the detective intimidated Mayra enough to cause her to change her testimony at trial, and he urges us to provide guidance to the trial court on when it is proper to admonish a government agent who contacts a testifying witness.
Defendant cites no authority for the proposition that an investigating officer may not contact a testifying witness. Nor is contacting a witness tantamount to intimidation. Rather, witness intimidation occurs when a government agent threatens a defense witness with prosecution for perjury or for any crime revealed during the witness’s testimony, or warns that the witness’s testimony will have some other adverse consequence for the witness, or arrests the witness. (In re Martin, supra, 44 Cal.3d at pp. 30-31.) There is no evidence that Detective Sloan engaged in witness intimidation in this case. The alleged contact occurred on December 9, the day after Mayra implicated her brother in the shooting. The prosecutor already had obtained a one-day continuance to investigate. Detective Sloan approached Mayra outside the courthouse and asked her questions meant to elicit general information about the brother—whether she had spoken to him or knew where he was, as well as his wife’s name and his cell phone number. When Mayra tried to end the conversation, the detective expressed general frustration about the lack of cooperation with the investigation. Mayra subsequently changed her testimony and located the point at which she saw her brother with a gun closer to the time of the shooting. But it would be speculative to attribute Mayra’s inconsistency to Detective Sloan’s contact with her because the detective did not comment on Mayra’s testimony or threaten Mayra in any way, regardless of what her subjective perception of the encounter may have been. And her post-recess testimony that she saw her brother holding a gun immediately after the shooting was more favorable to the defense than her original testimony that she saw him holding the gun when she was in a car driving away from the scene.
The trial court correctly determined that there was no reason to admonish the detective under these circumstances.
III
Defendant requests that we conduct an independent review of the sealed transcript of the in camera proceeding on his motion for pretrial discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Pitchess holds that a criminal defendant is entitled to discovery of confidential police personnel records that are material “to the subject matter of the pending litigation.” (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).) The trial court examines the records in camera to determine if any records are subject to disclosure. (Ibid.) If our review of the record of the trial court’s in camera examination reveals relevant undisclosed information, the matter must be remanded to the trial court for defendant to “demonstrate a reasonable probability of a different outcome had the evidence been disclosed.” (Id. at p. 182.) If defendant does demonstrate that probability, the court must order a new trial; if not, the judgment will be reinstated. (Id. at pp. 181–182.)
A defendant must present “a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025 (Warrick).) In this case, defendant’s Pitchess motion was accompanied by his counsel’s declaration, a supplemental report by Detective Sloan that recounted Junior’s statements to the police, and excerpts from Junior’s preliminary hearing testimony in which Junior claimed that he implicated his father in the shooting because he was coerced by the interviewing officers’ deceiving, threatening, and coaching him. Counsel characterized detective Sloan’s claims in the supplemental report as “false, misleading and inaccurate... fabrications.” Defendant sought discovery of other complaints against two of the officers who had interviewed Junior accusing them of “making false, misleading or inaccurate statements (or committing any other misconduct, such as threatening or coercing or interfering with witnesses).” The trial court (Judge Margaret M. Bernal) granted the motion “only as to fabrication” and, after an in camera review of the officers’ records, ordered one item released to the defense.
On our own motion, we augment the record on appeal with defendant’s written Pitchess motion, which was sealed and not included in the court’s transcript prepared for this appeal. (See California Rules of Court, rule 8.155(a).)
The factual scenario on which defendant’s Pitchess motion was based accused the officers of eliciting false statements from defendant’s son through psychological manipulation. Coercion may result in a false statement. (People v. Memro (1985) 38 Cal.3d 658, 682, fn. 24 (Memro), overruled on other grounds in Gaines, supra, 46 Cal.4th at p. 181, fn. 2.) Evidence that a statement was coerced is thus relevant to its admissibility and weight, and similar prior complaints against the interviewing officer are discoverable in a Pitchess motion. (See Memro, at pp. 681-683 [“evidence that the interrogating officers had a custom or habit of obtaining confessions by violence, force” or threats admissible to support a coerced confession claim]; see also People v. Jenkins (2000) 22 Cal.4th 900, 966 [at trial, a defendant may seek to exclude an involuntary third party’s statement on the ground that it was “made unreliable by coercion”].) At the hearing on the Pitchess motion, the trial court asked whether both officers were involved in Junior’s interview, indicating that it recognized the motion was premised on the officers’ conduct during the interview. No other fabrication scenario was presented. While the court limited the scope of discovery to other complaints of fabrication against the two interviewing officers, its ruling under the circumstances necessarily encompasses complaints that the officers coerced false statements from witnesses.
After reviewing the sealed transcript of the trial court’s in camera examination of the officers’ personnel records, we conclude that the trial court may have unduly restricted disclosure of material information. We remand the matter to the trial court for further proceedings, with directions that it review the officers’ records again and order disclosure of information relevant to defendant’s claim that Junior was coerced into making false statements. If such evidence is found, it should be disclosed to defense counsel who should then be given an opportunity to demonstrate prejudice. A new trial should be granted if there is a reasonable probability the outcome would have been different had the information been disclosed; otherwise, the judgment will be reinstated. (Gaines, supra, 46 Cal.4th at pp. 181-182.)
DISPOSITION
The petition for habeas corpus is denied. The judgment is affirmed in part and conditionally reversed in part. The cause is remanded to the trial court with directions to hold a new in camera hearing on defendant’s Pitchess motion and to order disclosure of all information relevant and material to the claim that the officers coerced a witness to falsely implicate defendant in a crime. The court is further directed to allow defendant to demonstrate prejudice and to order a new trial if there is a reasonable probability the outcome would have been different if the information had been disclosed. If the court finds defendant cannot establish that he was prejudiced by the denial of discovery, the judgment shall be reinstated as of that date.
We concur: WILLHITE, J., SUZUKAWA, J.