Opinion
D058992 Super. Ct. No. INF058714
02-03-2012
THE PEOPLE, Plaintiff and Respondent, v. CARLOS GREGORY DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, David B. Downing, Judge. Affirmed.
A jury convicted Carlos Gregory Diaz of the first degree murder of Jaime Ceron and found true the allegation that Diaz had personally and intentionally discharged a firearm causing "great bodily injury and death." Diaz admitted two prior prison term conviction allegations. The trial court denied Diaz's request for a new trial, but reduced the murder conviction to voluntary manslaughter and reduced the firearm finding to personal use. It sentenced Diaz to a total of 23 years in prison. Diaz contends the trial court erred in denying his motion for a new trial, which was based on his claim that the prosecution failed to turn over impeachment evidence for two rebuttal witnesses in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). We find no prejudicial error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2006, Jaime visited his brother, Jorge Ceron, at Jorge's home. At the time of trial, Jorge was in custody following a state prison commitment for an unrelated felony. He initially refused to answer questions at trial. When Jorge ultimately testified, he claimed that he heard the gunshots but did not know who had shot Jaime, denied that Jaime had identified Diaz as the shooter, and denied writing Diaz's name on a piece of paper for the police. Jorge's version of the shooting came from a recorded interview and a recorded reenactment conducted about a month after the shooting. Both recordings were played for the jury. Jorge's Police Interview
During the police interview, Jorge stated that on the day before the shooting, Diaz had telephoned Jorge's home several times, that Jaime had answered the calls and gotten into a verbal altercation with Diaz. Jorge claimed that Jaime and Diaz did not get along and that the men tried to avoid each other. The following morning, Jaime was angry after discovering that someone had erased the phone numbers he had stored in his cell phone. Lenette Saubel, Jorge's sister-in-law, was at Jorge's home at this time. Diaz called and spoke to Jorge and Saubel over the telephone.
Diaz later pulled his car into Jorge's driveway and walked into the garage. Jaime jumped up, rushed to Diaz and began punching him in the face and body. As Jaime pursued him, Diaz ran out of the garage to his car and put his hand on a 9mm Desert Eagle handgun that he always carried in his waistband. Jaime taunted Diaz, asking whether he carried the gun for show or whether he actually knew how to use a gun. Diaz pointed the gun at Jaime and fired three shots at him. After firing the shots, Diaz got in his car and drove away. Saubel later left the house, but then returned a short time later. Diaz's Testimony
Diaz and Jorge were close friends, but Diaz had never met Jaime. Diaz learned from Jorge that Jaime had shot a man about two months earlier, a claim that another witness verified. Diaz admitted that he had called Jorge's home and gotten in an argument with Jaime about his tone of voice. The following morning, Diaz spoke to Saubel and Jorge, and then stopped by Jorge's home and parked in the driveway.
Diaz walked in the garage and saw Jorge, Jaime and Saubel. As Jorge and Saubel went into the house, Jaime aggressively approached and swung a punch at Diaz. Diaz blocked the punch and saw that Jaime had a pistol in his hand. Diaz backed out of the garage, but Jaime followed him. As Jaime raised his pistol, Diaz pulled his gun from his waistband and fired three shots. The first shot hit Jaime in the right side and spun him. Diaz watched Jaime fall, saw him run into the garage and then into the house. Fearing Jaime or Jorge might shoot him, Diaz got in his car and left. Diaz claimed that he was in shock the whole day, but admitted that he was able to take apart his gun and melt it down. Diaz testified that before the incident he had never previously shot anybody, and denied shooting a friend in the buttocks. Other Testimony
Police officer Mark Fields arrived at the scene and spoke to Jaime and Jorge. Jaime did not answer questions about who had shot him. Jorge was also uncooperative, but ultimately wrote Diaz's name and directions to Diaz's residence on a piece of paper.
The trauma surgeon who attempted to save Jaime's life testified that Jaime suffered gunshot wounds to his left flank, midback and right chest. He wrote in his report that the right chest wound was an entrance wound and the torso wound was an exit wound, but admitted at trial that his only training regarding identifying gunshot entrance or exit wounds came from his "life and experience."
An autopsy performed by a forensic pathologist revealed that Jaime had two gunshot entrance wounds to his back, one to his central back and another on his left posterior flank. One of the bullets then exited from Jaime's right front chest. The forensic pathologist testified that "there was no question" that the back wounds were entrance wounds. As to the chest wound, the forensic pathologist stated that an "untrained eye" might confuse it as being an entrance wound, but that an experienced pathologist would not and that there was "no question" that the chest exit wound corresponded to the entrance wound on Jaime's back. The physical findings during the autopsy were "most consistent" with Jaime standing with his back toward the gun. Rebuttal Witness Testimony
On the morning of the day of the shooting, Diaz took his ex-wife, Darla Garcia Yzarraraz, to work. Diaz called Yzarraraz later that day, but she noticed nothing unusual about his demeanor. Jennifer Sunshine, Diaz's acquaintance, spoke to him several times over the phone on the day of the shooting and later met him to give him some computer software. Sunshine stated that Diaz did not appear nervous and "seemed the same as any other day."
Cheryl Seefeldt knew that Diaz always carried a gun and that he had been involved in a shooting where he shot someone in the buttocks. Specifically, Diaz's car was being chased by another car when he pulled over. As three or four men approached him, he pulled out a gun. When the men fled to the car, Diaz shot one of them in the buttocks.
On the morning of the shooting, Diaz went to a home that Seefeldt shared with her former fiance. Diaz told Seefeldt's ex-fiance that he had just shot somebody. Diaz elaborated that he had gone to someone's house and felt awkward when everyone sitting in the garage got up and left. A man approached Diaz from behind and struck him in the back with a pipe, knocking him to the ground. When Diaz pulled out his gun, the man told him that if he was going to pull the gun he had better shoot. Fearing the man was going to hit him again, Diaz shot the man. Seefeldt testified that at the time of the shooting she used methamphetamine daily. She stated that she did not like Diaz because she believed he was dangerous, she did not like how he treated women, and did not think he was the right person to hang around. Closing Argument and Verdict
Although the prosecutor conceded that Jaime had attacked Diaz, she argued that Diaz committed premeditated murder and that he did not act in self-defense because he shot Jaime in the back. Defense counsel argued that Jaime, Jorge and Saubel set Diaz up to be assaulted by Jaime, that Jaime lay in wait in the garage with a gun, and Diaz shot Jaime in the chest in self-defense. Defense counsel argued that after the shooting, Saubel left the house with "something in her hands," suggesting she took Jaime's gun before police arrived. The jury found Diaz guilty of first degree murder. New Trial Motion
The prosecutor knew that Sunshine had a 2003 misdemeanor conviction not involving moral turpitude, but did not disclose this information to defense counsel. Before testifying at trial, Sunshine alerted a district attorney investigator that she had an outstanding warrant. Immediately after her testimony, the district attorney investigator met with Sunshine and took her to the courthouse to have the misdemeanor case put on calendar so she could appear and have a bench warrant recalled. Unbeknownst to defense counsel before trial, Seefeldt had suffered a 2009 conviction for filing a false police report.
After Diaz's conviction, defense counsel brought a new trial motion arguing a Brady violation and that the evidence was insufficient to support the verdict. Counsel asked the court to grant a new trial or to modify the jury's verdict to find Diaz guilty of involuntary manslaughter. In its written response to the motion, the People claimed that Sunshine received no "special treatment" and that "having the warrant recalled and setting a future date to appear [was] consistent with how these cases are handled." As to Seefeldt, People asserted that it did not disclose the conviction because it had run her rap sheet using a misspelled name (Ceefeldt).
The trial court held a lengthy hearing on the motion. At the start of the hearing, the court indicated that it had reviewed 88 pages of notes taken during trial and certain portions of the evidence. The trial court found "most of [the civilian witnesses] to be completely and utterly incredible." After reviewing the evidence, it found that Jaime was the initial aggressor and that Diaz had shot and killed Jaime while acting in imperfect self-defense. Based on these findings, the trial court reduced the conviction to voluntary manslaughter. The trial court found that involuntary manslaughter did not apply because Diaz harbored an intent to kill. As to the Brady issue, the trial court presumably found no Brady violation as to Sunshine and remedied any Brady violation as to Seefeldt by reducing the conviction to voluntary manslaughter.
DISCUSSION
Diaz contends the trial court erred in denying his new trial motion because the prosecution's failure to disclose the rap sheets for rebuttal witnesses, Sunshine and Seefeldt, violated his right to due process under Brady, rendered his trial fundamentally unfair, and required that the court set aside his verdicts. He contends that with the missing information, defense counsel would have been able to more effectively impeach these witnesses during cross-examination, the jurors likely would have rejected or at least discounted the testimony of these witnesses, resulting in their adoption of his testimony that he shot Jaime in self-defense.
We review "a trial court's ruling on a motion for new trial . . . under a deferential abuse of discretion standard. [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27.) "The appellant has the burden to demonstrate that the trial court's decision was 'irrational or arbitrary,' or that it was not ' "grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." [Citation.]' " (People v. Andrade (2000) 79 Cal.App.4th 651, 659.) We find no abuse here.
There are three elements to a Brady claim: (1) the evidence must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) defendant suffered prejudice. (People v. Salazar (2005) 35 Cal.4th 1031, 1043.) " 'In general, impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant(s) to the crime," [citations], or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case, [citations]. In contrast, a new trial is generally not required when the testimony of the witness is "corroborated by other testimony," [citations].' [Citation.]" (Id. at p. 1050.)
Here, Sunshine testified that Diaz appeared normal on the day of the shooting, contradicting Diaz's claim that he was in shock all day. After her testimony, a district attorney investigator accompanied her to the courthouse to get a warrant recalled. Diaz suggests Sunshine perjured herself on the witness stand to get a deal in exchange for her testimony. The trial court, however, impliedly rejected this suggestion, finding that although what happened "look[ed] bad," it was common place. Moreover, Sunshine's testimony that Diaz appeared normal on the day of the shooting was corroborated by Yzarraraz's independent testimony. The presence of this corroborating evidence establishes the harmlessness of the error. (People v. Salazar, supra, 35 Cal.4th at p. 1050.) Accordingly, we agree with the trial court's implied conclusion that it is not reasonably probable that impeachment of Sunshine would have produced a more favorable outcome for Diaz.
Diaz claims that Seefeldt's testimony about what he told her former fiance about the shooting differed from his version of the incident. Seefeldt's testimony that Diaz shot a man in the buttocks as he fled also contradicted Diaz's denial of this incident and his testimony that he had never shot anybody. Diaz argues that had he been able to impeach Seefeldt with her prior conviction for lying to police, the jury would have questioned her credibility and believed his testimony that he shot Jaime in self-defense. As we shall explain, the trial court did not abuse its discretion in denying the new trial motion.
The trial court correctly found that Seefeldt's prior misdemeanor conviction for a moral turpitude offense was admissible for impeachment. (People v. Wheeler (1992) 4 Cal.4th 284, 296-297 [misdemeanor conduct demonstrating moral turpitude is admissible to impeach], superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459.) The trial court questioned whether impeaching Seefeldt would have made any difference, but speculated that the jury could have returned a verdict of voluntary manslaughter. It then "fixed" any Brady violation by reducing the conviction to voluntary manslaughter, finding that the first degree murder conviction was contrary to the evidence.
Diaz does not explain how the trial court abused its discretion in not granting a new trial based on a Brady violation when it had already modified the first degree murder conviction to voluntary manslaughter. Although Diaz argued to the trial court that a jury could have acquitted him or found him guilty of involuntary manslaughter, the court rejected these suggestions expressly finding that the facts of the shooting revealed that Diaz harbored an intent to kill.
Moreover, the jury had before it other evidence from which they could conclude that Seefeldt lacked credibility. Namely, Seefeldt admitted that at the time of the shooting she used methamphetamine daily and had been doing so for about three years, she acknowledged her methamphetamine use negatively impacted her memory and she could have been confused, and she admitted not liking Diaz. Thus, even if Diaz had been able to attack Seefeldt's credibility with evidence of her misdemeanor conduct of lying to police, we cannot reasonably conclude that the resulting impeachment would have changed the result, thus undermining our confidence in the verdict. Accordingly, under the unique facts of this case, we cannot say the trial court abused its discretion by not granting Diaz a new trial.
DISPOSITION
The judgment is affirmed.
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MCINTYRE, J.
WE CONCUR:
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BENKE, Acting P. J.
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IRION, J.