Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA280488, William C. Ryan, Judge.
Athena Shudde, under appointment by Court of Appeal, for Defendant and Appellant.
Edmond G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Nathaniel Flowers appeals his convictions for attempted murder, discharging a firearm from a motor vehicle and assault with a semiautomatic firearm. In connection with these offenses, the People asserted various firearm and bodily injury enhancements and gang enhancements pursuant to Penal Code section 186.22, alleging the crimes were committed for the benefit of a criminal street gang. During the trial Flowers objected to the admission of a photograph depicting a child “throwing” a gang sign arguing it was irrelevant to the charges and was inadmissible under Evidence Code section 352. The court found the photograph was relevant to, among other things, prove the existence of Flowers’ gang, and that its probative value outweighed any prejudice. The jury convicted Flowers and found the gang allegations true. Thereafter, Flowers filed a motion for a new trial asserting that after the trial the prosecutor disclosed information possessed by the prosecutor prior to trial implicating one of the victims in this case in a fatal shooting in another case. Flowers argued that the failure to disclose this evidence amounted to a violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). The trial court disagreed, observing another superior court judge had reviewed the potential Brady material pre-trial and found disclosure was not required. In any event, the trial court found no Brady violation, concluding the evidence was not “material” under Brady.
On appeal, Flowers asserts the trial court should not have admitted the picture of the child throwing a gang sign; and the court erred in denying his motion for a new trial based on the Brady violation. As we shall explain, neither of his claims has merit. The gang evidence at issue was relevant to prove the gang enhancement and its admission did not result in prejudice. Likewise, Flowers has not established the potential Brady evidence was “material.” Given the manner in which the victim was portrayed at trial and the other evidence against Flowers, the trial court properly concluded the withheld evidence did not rise to a Brady violation. Accordingly we affirm.
FACTUAL AND PROCEDURAL HISTORY
The Gang War.
Flowers, known as “G-Wiz,” is a member of the Geer Gang Crips, a criminal street gang which claims as its territory an area south of the 10 Freeway between La Cienega Boulevard and La Brea Boulevard. The gang, with about 117 members at the time of trial, is predominately African-American in its membership. Geer members use a distinctive hand sign in the shape of a “G” to signify membership in the gang. The Geer Gang shares some of its territory with a rival criminal street gang, the 18th Street Gang, a predominately Hispanic street gang. Several victims of the shootings in this case were members of the 18th Street gang.
In early December 2004 a gang war erupted between the Geer and 18th Street gangs. It began with an attack by Geer Gang members on a younger member of the 18th Street Gang. Thereafter late on Christmas Eve 2004 members of the 18th Street Gang ambushed and fatally shot a Geer Gang member, John Johnson, also known as “Big-Fly” at a Geer gang location in Geer territory (the “Big-Fly Shooting”). The next morning, Anthony Perry, known as “Chaos,” a member of the 18th Street Gang was shot in the calf (the “Christmas Shooting”) as he rode his bicycle on Adams. Perry initially told authorities Flowers was the shooter and that he used a nine millimeter weapon.
Perry went to the hospital for treatment. While there he used a false name and indicated that he did not know who had shot him. He told authorities that he used a false name at the hospital because he had an outstanding arrest warrant. Although he told police and originally testified that Flowers was the person who shot him on Christmas day, he later recanted and claimed he did not remember implicating Flowers.
The Charged Crimes.
Counts 1-3
At around noon on January 3, 2005, Perry went into a mini-market on the corner of Hauser and Washington to buy cigarettes. According to the store clerk, Perry stated that he had been shot the week before, and that the people who had shot him were after him. After buying the cigarettes, Perry left the store and proceeded to ride his bicycle east on Washington. As he rode, Perry noticed two cars driving towards him. He did not recognize anyone in the first car, but recognized the driver of the second car as Flowers whom Perry had known from the neighborhood for many years. The people in the two cars began shooting at Perry; Flowers fired a semi-automatic weapon at Perry. As Perry attempted to evade his pursuers, he was shot in the back of his arm near his left shoulder. (Hereinafter known as the “January Shooting.”)
Prior to trial, in his interviews with the police Perry identified Flowers as the shooter in the January Shooting. Perry also identified Flowers at the first trial. At the second trial Perry stated he could not remember identifying Flowers and claimed he had never seen Flowers before and stated that Flowers was not the person who shot him. While acknowledging the prior identification of Flowers (to the police), Perry testified he could not identify anyone in either car and identified Flowers only because he felt pressure to cooperate with police. Perry did testify, however, that he had a “green light” meaning that there was an order from the top of the gang hierarchy that he be killed.
Officers recovered shell casings and bullet fragments from the scene, indicating a .45 caliber gun and a nine millimeter semi-automatic weapon had been used.
Counts 4-9
At around 4:00 p.m. on February 3, 2005, Joshua Fells, a member of the 18th Street Gang, and two non-gang members, Luis Carmona and Josefina Morales, stood in the vicinity of Longwood and St. Elmo. A black car drove slowly down Longwood and turned onto St. Elmo towards them. When the car was a couple of feet away it stopped and, Flowers, who was identified as the passenger in the car, made a “G” gang sign with his hands. Flowers then shot at Carmona and Fells using a nine millimeter semiautomatic handgun. Carmona and Fells fled on foot. (Hereinafter known as the “February Shooting.”)
Shell casings recovered from the scene matched the nine millimeter casings recovered from the January 3, 2005, shooting of Perry.
When originally questioned by police Fells described the shooter and the vehicle in some detail, but later at trial, Fells testified that Flowers was not the shooter and indicated that even if he saw the shooter in court he would not identify him. Fells testified that he did not see the gun and was only guessing when he originally told police it was a nine millimeter weapon. Carmona told police what had happened, and he identified Flowers as the shooter. He also told the police Flowers made a “G” sign with his hands just before firing.
Flowers’ Arrest and the Trial Proceedings.
When Flowers was arrested in mid-March 2005, police detectives allowed Flowers to use a cell phone. During one of Flowers’ cell telephone calls which was recorded, Flowers referred to Perry. Flowers stated that he knew Perry had identified him in an ambush shooting where Perry was hit in the calf (i.e., the Christmas Shooting).
At the time of these telephone calls, Perry had not yet told police about the Christmas Shooting. In fact, Perry did not disclose he had been shot in the calf by Flowers until his police interview six months later in August 2005.
Flowers was charged with: (1) attempted willful, deliberate and premeditated murder (Counts 1, 8 & 9); (2) discharging a firearm from a motor vehicle (Counts 2, 6 & 7); and (3) assault with a semiautomatic firearm (Counts 3, 4, & 5). As to each charge the People also alleged various enhancements, including a gang enhancement pursuant to Penal Code section 186.22. The enhancement alleged the crimes had been committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members.
The People also alleged various firearm enhancements and injury enhancements.
At trial, in addition to the testimony of Perry, Fells and Carmona, and the detectives who investigated the crimes, the prosecutor also presented evidence from a firearms examiner who compared the casings from the January and February shootings and determined that the same gun was used in both shootings.
The People also presented testimony from a police gang expert in support of the gang allegations. The expert testified as to the gang war that was occurring between the Geer and 18th Street gangs at the time and the retaliatory shootings. He further testified as to how each of the gangs operated and described gang culture. He explained how they used signs and symbols to identify themselves. He testified that the January and February shootings were done for the benefit of Flowers’ gang. The expert further testified that a rival gang member would not purposely misidentify a rival gang member because the penalty would be severe punishment, including death.
On July 26, 2006, Flowers was found guilty on all counts and the special allegations were found to be true. In August 2006, after the verdicts were entered but prior to sentencing, the prosecutor gave Flowers’ counsel a packet of information which contained previously undisclosed (to Flowers) evidence obtained prior to trial by the police which appeared to implicate Perry in the December fatal shooting of Big Fly. Based on the disclosure of this evidence and a claim of jury misconduct, Flowers filed a motion for a new trial. The court denied the motion.
The case was originally brought to trial in January 2006, but the court granted a mistrial after the jury deadlocked.
Flowers was sentenced to an aggregate term of 40 years consecutive to 70 years to life.
Flowers appeals.
DISCUSSION
Flowers asserts two claims on appeal. He contends that the court erred in admitting over his objection, a photograph depicting a small child “throwing” a Geer Gang hand sign. In addition, Flowers claims the court erred in failing to grant his motion for a new trial based on the untimely disclosure of Brady material that implicated Perry in the shooting of “Big Fly.” As we shall explain, neither of these claims warrants a reversal of the judgment.
I. Admission of Gang Evidence
A. Photograph of a Child
During the examination of the police gang expert the prosecutor elicited testimony from the expert that the Geer Gang had a distinct and unique hand sign. He also identified two photographs depicting Flowers “throwing” the Geer gang hand sign. Thereafter the prosecutor proceeded to introduce a photograph showing an unidentified child and an unidentified adult making the Geer hand sign. Flowers objected to the photograph on the ground of relevance and at a sidebar conference, Flowers argued that the photo of the child (who appeared to be between three and six years of age) was not relevant to any of the charges or the enhancements and was highly inflammatory. The court indicated that the evidence was relevant “to show that the gang lifestyle is passed on from generation to generation to show how pervasive gangs are … [¶] It’s to show the existence of gangs.” The court further ruled that its probative value outweighed any prejudice.
B. Legal Principles
As a general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Consequently, gang evidence may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; see generally Evid. Code, § 352.) “Evidence of the defendant’s gang affiliation -- including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like -- can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; see, e.g., People v. Jones (2003) 30 Cal.4th 1084, 1114-1116 [evidence of gang membership and formation of gang admissible because relevant to show relationship between individuals involved in the robberies and advance plan to kill victims and witnesses].) Indeed, where as here a gang allegation is alleged, then the prosecutor must prove that the charged crimes where committed for the benefit of, at the direction of or in association with a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).) A “criminal street gang” for the purposes of section 186.22 is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated . . . [elsewhere in section 186.22], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).)
Although the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory effect (Williams, supra, 16 Cal.4th at p. 193), the evidence should be excluded only when it is “tangentially relevant” to the charged offenses. (People v. Cox (1991) 53 Cal.3d 618, 660.) The decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court. (People v. Avitia, supra, 127 Cal.App.4th at p. 193; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [A trial court’s “admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason]”.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, italics in original; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369-1370.) It is appellant’s burden on appeal to establish an abuse of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Before this court Flowers argues that certain gang evidence presented, specifically the photograph of a child making a gang hand sign, was irrelevant and highly prejudicial. In addition to the arguments concerning relevance and Evidence Code section 352 he asserted below, Flowers also contends on appeal the evidence should have been excluded because it was cumulative of other gang evidence. Finally, Flowers asserts the erroneous admission of the gang evidence requires reversal because it deprived him of his constitutional due process rights under federal law to a fair trial. As we shall explain, we do not agree.
The photograph at issue was relevant in two respects. First, evidence of the Geer gang hand sign was clearly material to prove the element—a “common identifying sign or symbol”—of the gang enhancements alleged pursuant to Penal Code section 186.22, subdivision (f). Thus, the photo depicting the child “throwing” a Geer gang hand sign was probative. The prosecutor, however, presented other evidence to the same effect—photographs of Flowers making the Geer hand gesture and expert testimony concerning the unique hand sign for the gang. Though in the trial court Flowers did not object on the basis that it was cumulative evidence, the photo of the child was additional evidence on the common sign or symbol element. This notwithstanding, the photo was also relevant in another respect. As the court observed, the photo was probative on the issue of the gang’s existence—i.e., how gangs operate and recruit, how they hand down their culture and establish their identity within their community. In this respect the evidence at issue was relevant to other broader aspects of the enhancement, such as “ongoing organization, association of a group of three or more persons” elements. Consequently, we find no abuse of discretion in the court’s finding the photograph was relevant.
Turning to Flowers’ claim under Evidence Code section 352, we note this section applies to prevent undue prejudice, that is “‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues’ not the prejudice ‘that naturally flows from relevant, highly probative evidence.’” (People v. Padilla (1995) 11 Cal.4th 891, 925.) “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ . . . In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” [Citation.]’ [Citation.]” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138, quoting People v. Karis (1988) 46 Cal.3d 612, 638.) Moreover, the undue prejudice must substantially outweigh its relevance. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) There is no question that a photograph showing a small child making a gang hand gesture is prejudicial. However, we are not convinced that the prejudice was unfair or that it outweighed its probative value. Indeed, neither the child in the photograph nor the other adult depicted with the child was identified or shown to be connected to Flowers. Given the other evidence presented in the case concerning gang activities, practices and crimes, the evidence concerning injuries suffered and the brutality exhibited by those involved, the evidence of this photograph was not prejudicial.
In view of the foregoing we reject Flowers’ claims of error with respect to the relevance and Evidence Code section 352.
Notwithstanding our conclusion that the court did not abuse its discretion in admitting this evidence, we do not condone the prosecutor’s subsequent references to this evidence during closing argument. The prosecutor used this evidence to argue that the gang lifestyle was entrenched in the community and passed down from generation to generation. The prosecutor’s argument was both irrelevant to the issues and inflammatory; it exceeded the bounds of acceptable argument. However, as we explain elsewhere, given the strength of the evidence against Flowers, the prosecutor’s argument did not result in prejudice.
Likewise we reject Flowers’ argument on appeal that the admission of this evidence violated his federal constitutional rights to due process, rendering his trial fundamentally unfair. (See Estelle v. McGuire (1991) 502 U.S. 62, 70.) To prove a deprivation of federal due process rights, Flowers must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
Flowers did not assert a specific federal due process claim in the trial court. Nonetheless, under People v. Partida (2005) 37 Cal.4th 428, 437 (Partida), his due process claim is subsumed within his Evidence Code section 352 objection, and thus has been preserved for appeal. Thus, he may argue “the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.” (Id. at p. 435.)
As discussed elsewhere here, the jury could properly infer from the photograph the existence of the criminal street gang and other aspects of the gang organization and operations which are relevant to the gang enhancement. This case is not one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant’s trial fundamentally unfair.
Finally, even if we were to assume error for the sake of argument, Flowers has not demonstrated prejudice under either the People v. Watson (1956) 46 Cal.2d 818, 836, or under Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Boyette (2002) 29 Cal.4th 381, 428 [Watson standard applies to prejudicial-error analysis for errors of state law, while beyond-a-reasonable-doubt standard of Chapman applies to similar analysis for federal constitutional errors such as the deprivation of due process].)
The evidence against Flowers was strong. He was unequivocally identified by one of the victims (Carmona) as the shooter in the February incident. In addition, the evidence demonstrated the same nine-millimeter semiautomatic weapon used in the February shooting was used in the January Shooting of Perry. Moreover, though Perry recanted at trial, there was evidence that Perry had, under oath and on more than one occasion, identified Flowers as one of the shooters in the January shooting. Furthermore the store clerk testified that minutes before the January shooting Perry told the clerk that he had been shot in late December and the same people were after him again. Thus, given the nature and amount of this gang evidence at issue, relative to the other evidence, presented at trial, we are convinced under either the state or federal standards of prejudicial error that reversal is warranted.
II. New Trial Motion
On appeal, Flowers argues that the trial court erred in failing to grant him a new trial based on a violation of the Brady discovery principles. Specifically, he contends that the prosecutor violated Brady when she failed to disclose information she possessed before the trial which appeared to implicate Perry in the Big Fly Shooting. As we explain below, the court did not err in denying the new trial motion.
A. Purported Brady Material
After Flowers was convicted in July 2006, but prior to his sentencing the prosecutor provided Flowers’ counsel with a packet of documents that contained information forming the basis of Flowers’ Brady new trial claim. This information revealed the following:
In April 2005 prior to Flowers’ first trial, detectives investigating the Big Fly Shooting interviewed Laval Coates who was incarcerated at the Wayside Honor Ranch. Coates told detectives that in February 2005 he was in the lock-up with Perry in the Men’s Central Jail. Coates knew Perry from the neighborhood as “Crow,” and he identified Perry from a photograph. According to Coates, Perry stated that he and other 18th Street Gang members ambushed Big Fly. He further stated he shot Big Fly during the attack. Thereafter, on August 19, 2005, (after Perry identified Flowers as having shot him in the calf on Christmas Day) the police revealed to the prosecutor in this case that Perry was under investigation by the LAPD as a suspect in the Big Fly Shooting.
On August 23, 2005, the prosecutor and lead detective in this case and the detective investigating the Big Fly Shooting attended an ex parte hearing before the judge then assigned to this case, Judge Kellogg, seeking a ruling on whether the prosecutor was required to disclose Coates’ statement implicating Perry to Flowers. During the ex parte hearing the court inquired as to whether Flowers had any involvement in the Big Fly Shooting, and specifically whether there was any evidence that Perry had attempted to shoot Flowers. The detectives indicated that the on-going investigation in the Big Fly matter had not revealed that Flowers was present at the Big Fly Shooting or a target of the ambush. In addition, the detectives further explained that the Big Fly Shooting occurred on Christmas Eve and that as of the date of the ex parte hearing the detectives did not have any other corroborating evidence (other than Perry’s jailhouse admissions to Coates) connecting Perry to the Big Fly Shooting. The detectives further revealed that Coates was attempting to obtain some kind of a “deal” for this information. The court ruled the prosecutor was not obliged to turn over to Flowers the information that Perry was a suspect in the ongoing investigation of the Big Fly Shooting. The court explained: “Right now, I see no nexus whatsoever. First of all, it’s an investigation. It’s an open investigation. There is no corroborating evidence as to the informant’s statements. It’s not even a detailed description . . . [¶¶] I don’t see any reason to turn this information over, the statement at all. I mean, there is no nexus. It’s not—even if—Let’s just say that there are two gangs involved, and each is a member of gang one and gang two. That still isn’t even enough. And if there is a clique within the gang and each of them were members of the clique within the gang that was a retaliatory shooting A to B, B to A. Still not enough. [¶¶] Saying Perry is a suspect in an ongoing investigation . . . Even if it were true and even if it was verifiable it still doesn’t have a nexus between the two.” The court also ordered that the transcript from the ex parte hearing be sealed.
Thereafter, in late October 2005, the detective investigating the Flowers case interviewed a Geer Gang member, Errol Myers who was in custody on a domestic violence charge. During the interview, Myers revealed he was an eye witness to the Big Fly Shooting. According to Myers, Perry was one of three shooters in the Big Fly Shooting. Myers also indicated that a member of the Geer Gang returned fire towards one of the shooters (not Perry), but Myers did not state whether anyone other than Big Fly was injured in the ambush.
According to the prosecutor, as of the date of Flowers’ new trial motion no case had been filed against Perry for the Big Fly Shooting and the matter was still under investigation.
Flowers supported his new trial motion with a declaration of his counsel describing the foregoing facts and attaching Coates’ and Myers’ statements to the police. Flowers argued that the evidence Perry was a suspect in the investigation of the Big Fly Shooting should have been disclosed pursuant to Brady because the evidence would have allowed Flowers to impeach Perry at trial and to undermine his claims that Flowers shot him on Christmas Day as well as his claim that Flowers shot him in January 2005.
The prosecutor opposed the motion, arguing among other things, that the information was not “material” under Brady. The prosecutor pointed out that the evidence was actually more favorable to the People than Flowers because at the second trial Perry recanted his prior testimony and statements in which he had identified Flowers, and thus the prosecution, rather than the defense, was in the position of having to “impeach” Perry. In addition, the prosecutor pointed out that evidence other than Perry’s testimony linked Flowers to the January and February shootings and thus any impact of this additional impeachment evidence would have been minimal.
The court denied the new trial motion, indicating its belief that it could not revisit Judge Kellogg’s prior ruling and that in any event the information at issue was not “material.”
Judge Kellogg did not preside over the trial or new trial motion.
B. Relevant Legal Principles
Although Penal Code section 1181 provides the statutory grounds for a new trial motion, the California Supreme Court has also recognized that a new trial may be granted for errors in addition to those enumerated in the statute. “[T]he statute should not be read to limit the constitutional duty of the trial courts to ensure that defendants be accorded due process of law. . . . The Legislature has no power, of course, to limit this constitutional obligation by statute. [Citation.]” (People v. Fosselman (1983) 33 Cal.3d 572, 582 [finding the trial court can assess claims of ineffective assistance of counsel in connection with a new trial motion even though counsel’s lack of competence is not among the grounds for a new trial in section 1181].) The principles announced in Fosselman have been extended to apply to new trial motions based on a claim that the prosecutor failed to disclose evidence favorable to the defendant as well as a claim that the prosecutor’s untimely disclosure of information amount to a due process violation under Brady. (People v. Hoyos (2007) 41 Cal.4th 872, 917 [alleged Brady violation];see also People v. Drake (1992) 6 Cal.App.4th 92, 97 [defendant based request for new trial on a claim the prosecutor failed to disclose the identity of an expert witness who had expressed an opinion that would have assisted the defense].)
On appeal, a trial court’s ruling on a motion for new trial based on alleged Brady violation is reviewed under an abuse of discretion standard. (People v. Hoyos, supra, 41 Cal.4th at p 917, fn. 27.) This court will not disturb the lower court ruling unless defendant establishes “‘a manifest and unmistakable abuse of discretion.’” (People v. Delgado (1993) 5 Cal.4th 312, 328.) In addition, this court will review independently conclusions of law or mixed questions of fact and law involved in the lower court’s determination of the Brady elements. (See also People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) As we shall explain, under any standard of review our conclusion would be the same—the prosecutors’ post trial disclosure of the evidence implicating Perry did not amount to a Brady violation.
The United States Constitution obliges a prosecutor to disclose exculpatory material evidence to the defendant in a criminal case. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377.) This duty arises because a prosecutor is more than an advocate. The prosecutor’s duty “‘is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial.’” (People v. Ruthford (1975) 14 Cal.3d 399, 405, overruled on another point in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7, citations omitted.) As the our Supreme Court observed in Rutherford, “[u]nless the prosecutor is required to make such disclosures the adversary system of criminal justice would be reduced to one in which the determination of guilt or innocence may be controlled by the prosecuting attorney’s tactical choice to suppress favorable evidence, or his negligent failure to disclose it, rather than by the well-informed decision of the finder of fact. When such conduct hinders the ascertainment of truth, restraints must be imposed to prevent the denial of a fair trial as guaranteed by the due process clause of the Fourteenth Amendment of the Constitution of the United States.” (Ibid.)
In Brady the United States Supreme Court held the prosecution must disclose to the defense any evidence that is “favorable” to the accused and “material” on the issue of guilt or punishment. (People v. Ruthford, supra, 14 Cal.3d at p. 405 ; Kyles v. Whitley (1995) 514 U.S. 419, 432-433; United States v. Bagley (1985) 473 U.S. 667, 682; In re Brown (1998) 17 Cal.4th 873, 879.) Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87.) United States v. Agurs (1976) 427 U.S. 97, 107, extended Brady to impose a duty on prosecutors to volunteer “Brady material” to the defense even without a request for such material. (See also Salazar, supra 35 Cal.4th at p. 1043.) Thus, there are three elements to a Brady claim: first, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching ”; second, “that evidence must have been suppressed by the State, either willfully or inadvertently”; and third, “prejudice must have ensued.” (Id., quoting Strickler v. Greene (1999) 527 U.S. 263, 281-282.) We examine these elements as they apply here.
The constitutional duty that requires prosecutors to disclose exculpatory evidence to a criminal defendant under Brady is independent from the statutory duty to provide discovery under Penal Code section 1054.1. (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 378; Pen. Code, § 1054, subd. (e).) Thus, evidence that is material under Brady must be disclosed to the defense, notwithstanding any failure of the defense to enforce its statutory right to discovery.
1. Nature of the Evidence
The constitutional duty of disclosure under Brady applies to any evidence that is “favorable to the accused.” (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366-367.) Evidence is favorable if it helps the defendant or hurts the prosecution. Accordingly, the obligation to disclose favorable evidence under Brady includes evidence that serves to impeach the testimony of a prosecution witness. (Strickler v. Greene, supra, 527 U.S. 263, 280-281; United States v. Bagley, supra, 473 U.S. at p. 676.)
Flowers does not contend the evidence contained in Coates’ and Myers’ statements to police which implicated Perry in the Big Fly Shooting is exculpatory. Instead he contends this evidence may have been admissible to impeach Perry during the trial. (People v. Johnson (2006) 142 Cal.App.4th 776, 786 [information withheld by the prosecutor implicating a key prosecution eyewitness in a separate, unrelated crime constituted impeachment evidence under Brady which should have been disclosed to the defendant].) In our view while the information implicating Perry in the Big Fly shooting technically qualifies as impeachment evidence under Evidence Code sections, the ultimate value of this evidence for impeachment purposes is not nearly as great as Flowers asserts. Indeed, the Big Fly Shooting and the crimes charged here—the January 2005 and the February 2005 Shootings—while part of an ongoing gang war between and Geer Gang and the 18th Street Gang in late 2004 and early 2005, are nonetheless all separate and distinct crimes. There is no evidence Flowers had any involvement in the Big Fly Shooting, he was neither present nor the target of the ambush and there is no indication that either Perry or Flowers had a personal vendetta against each other beyond their rival gang allegiances. In addition, contrary to Flowers suggestion, there is no evidence in the record before this court supporting the inference that Perry was shot in the calf during the Big Fly Shooting, rather than the next day as he reported to police. Furthermore, we do not agree with Flowers’ contention that Perry’s involvement in the Big Fly Shooting provided Perry with a motive to falsely identify Flowers as his assailant on either Christmas Day or in January 2005. Equally unpersuasive is Flowers’ argument that Perry implicated Flowers to distract police attention away from his involvement in the Big Fly Shooting. The police investigations of these distinct crimes were conducted separately and simultaneously. Finally, the value of this withheld evidence to Flowers’ defense is further diminished because at the second trial Perry recanted, changing his version of the events so many times that the prosecutor was in the position of having to impeach Perry while Flowers had the task of bolstering his credibility. Thus, in view of these circumstances the usefulness of evidence implicating Perry in the Big Fly Shooting was limited.
2. Suppression by the State
A prosecutor’s duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. (See In re Brown, supra, 17 Cal.4th at p. 879; People v. Robinson (1995) 31 Cal.App.4th 494, 499.) The prosecution must disclose evidence that is actually or constructively in its possession or accessible to it. (People v. Kasim (1997) 56 Cal.App.4th 1360, 1380.) The important determination is whether the person or agency has been “acting on the government’s behalf” (Kyles v. Whitley, supra, 514 U.S. at p. 437) or “assisting the government’s case” (In re Brown, supra, 17 Cal.4th at p. 881). Nonetheless, the prosecutor has no constitutional duty to conduct defendant’s investigation for him. Consequently, “when 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.” (United States v. Brown (5th Cir. 1980) 628 F.2d 471, 473; see also U.S. v. Stuart (8th Cir. 1998) 150 F.3d 935, 937 [“Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence”].)
The Attorney General asserts Flowers cannot demonstrate a Brady error because he cannot prove that the State suppressed the evidence implicating Perry in the Big Fly Shooting. The Attorney General argues that the “State” did not “suppress” the evidence because the prosecutor sought out guidance from the trial court on the matter and the evidence was suppressed pursuant to court directive.
In our view, the lower court’s order permitting the prosecutor to withhold this evidence did not excuse the State from its Brady obligations. A review of the transcript from the August 23, 2005, ex parte Brady hearing reveals the trial court did not consider the potential Coates’ statement might have had for impeachment purposes. The court based its ruling on the tenuous and speculative nature of Coates’ statement, and the fact that even if the evidence was verified, there was an insufficient nexus between the Big Fly Shooting and crimes charged to warrant disclosure to the defense. The court’s rationale, however, clearly did not address the aspect of the Brady obligation requiring the prosecutor to disclose information that is favorable to the defendant because it may be used to impeach a prosecution witness. (Strickler v. Greene, supra, 527 U.S. at pp. 280-281; United States v. Bagley, supra, 473 U.S. at p. 676; People v. Johnson, supra, 142 Cal.App.4th at p. 786.) In addition, the prosecutor’s obligations under Brady are ongoing throughout the prosecution and independent of the trial court’s pronouncements. (See Id. at p. 786 [concluding that the fact defendant’s case was on appeal when the prosecutor withheld the evidence was no excuse for concealing the Brady material].) In view of the prosecutor’s overarching constitutional duty concerning the full and fair presentation of the evidence, the prosecutor’s good faith reliance on the court’s ruling is beside the point. As this case progressed and additional evidence (i.e., October 2005 Myers gave his eyewitness account of the Big Fly Shooting) was developed the prosecutor had a duty to reexamine the evidence implicating Perry in light of the prosecutor’s Brady obligations. Other than the Attorney General’s argument before this court that Judge Kellogg’s ruling was broad enough to apply to Myers’ statement and thus exclude it from disclosure under Brady, there is no indication in the record or any claim that the prosecutor made any effort to revisit the evidence in light of the State’s ongoing obligations under Brady. In view of these unique circumstances, Flowers’ Brady claim does not fail on the “suppression” element.
3. Prejudice
As our Supreme Court explained in Salazar, “[p]rejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt and innocence.’” (Salazar, supra, 35 Cal.4th at p. 1043, quoting United States v. Agurs, supra, 427 U.S. p. 112, fn. 20.) This is because “‘the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.’” (Salazar, supra, 35 Cal.4th at p. 1050, quoting Kyles v. Whitley, supra, 514 U.S. at pp. 436-437.) Evidence is material under Brady “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (United States v. Bagley, supra, 473 U.S. at p. 682.) The requisite “reasonable probability” is a probability sufficient to “ undermine[ ] confidence in the outcome” on the part of the reviewing court.’ [Citation.]” (Salazar, supra, 35 Cal.4th at p. 1050; In re Brown, supra, 17 Cal.4th 873, 886-887.) The “reasonable probability of different outcome” test also applies post trial. Evidence is material in the context of review of a discovery violation post conviction if “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Kyles v. Whitley, supra, 514 U.S. at pp. 434-435; accord In re Brown, supra, 17 Cal.4th at pp. 886-887; In re Williams (1994) 7 Cal.4th 572, 611-612.) Absent such prejudice, “‘there is never a real “Brady violation.”’” (Salazar, supra, 35 Cal.4th at p. 1043.)
Flowers’ Brady claim ultimately fails on the “materiality” element. As discussed elsewhere herein, the value of the withheld evidence had limited impeachment value. Moreover, at the second trial the prosecutor, not Flowers, had the task of “impeaching” Perry with his various versions of the events the Christmas Day Shooting and the January 2005 Shooting. Thus, this additional evidence which would have only served to impeach him further would not likely have changed the outcome. Concomitantly, the disclosure of this evidence does not paint a different picture of this case. Perry was portrayed at trial as an admitted and active member of the 18th Street Gang. The prosecutor did not characterize or describe him as an innocent bystander or victim—Perry was cast as a player in the ongoing gang war between the Geer Gang and 18th Street Gang. In this respect, this situation is vastly different from that in People v. Johnson, relied upon by Flowers. In Johnson the prosecution’s chief witness, Mr. Curtis, was the sole eyewitness to the murder charged. (People v. Johnson, supra, 142 Cal.App.4th at pp. 780-781.) The prosecutor portrayed Curtis as a neutral bystander, who had no gang affiliations or connections; and the prosecutor stressed Curtis’s credibility and impartiality. (Id. at p. 783.) Thereafter, after Johnson was convicted, his lawyer learned that Curtis had been involved in a gang-related shooting after Johnson’s first trial but prior to his second trial. Curtis’s dress, demeanor and actions during the incident indicated he had gang affiliations. In addition, Johnson discovered that Curtis had lied about his involvement in the shooting. (Id. at pp. 784-785.) The Court of Appeal, Fifth District, observed that this evidence “paint[ed] quite a different picture of Curtis from the one in the record of Johnson’s second trial.” (Id. at p. 783.) The appellate court thereafter concluded that given the undisclosed evidence, the fact that there was no other evidence to corroborate Curtis’s testimony and the manner in which Curtis was portrayed in Johnson’s trial, the withheld evidence was “material” under Brady and the prosecutor’s withholding of the evidence violated due process. (Id. at p. 786.)
In this case, Perry was not held out as a credible, impartial or neutral witness to the events. Furthermore in contrast to the facts in Johnson, Perry did not supply the only evidence against Flowers. (Salazar, supra, 35 Cal.4th at p. 1050 [undisclosed evidence that tends to impeach a witness’s credibility is generally material only when the witness supplied the only evidence linking the defendant to the crime].) The prosecutor supplied additional evidence, independent of Perry’s statements, to support Flowers’ convictions. The proof of Flowers’ guilt for the February 2005 Shooting alleged in Counts 4-9 was supplied by Carmona, who identified Flowers as the shooter. In addition, ballistic evidence demonstrated that the same nine millimeter semiautomatic weapon was used in both the February 2005 and the January 2005 Shooting. At the hearing for a new trial Flowers’ counsel acknowledged that based on this evidence it was reasonable to infer that the same person did both of the shootings. Furthermore, Flowers’ statements during his recorded cell phone conversation implicated him in the Christmas Shooting, and Perry’s statement to the convenience store clerk—that he had been shot the week before and the same people were after him—just before he was shot on January 3, 2005—further corroborates the evidence implicating Flowers.
In view of the foregoing, we conclude that the withheld evidence could not reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Accordingly, the trial court properly concluded the evidence implicating Perry in the Big Fly Shooting was not “material” under Brady, and thus did not err in denying Flowers’ motion for a new trial.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.