Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FWV026332, Ingrid Adamson Uhler, Judge. Affirmed.
Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
At 2:00 a.m., in an alley in Ontario, defendant Juan Esquives Mercado shot and killed Juan Cruz. The key issue at trial was self-defense -- defendant claimed that the victim threw a beer bottle at him, then came at him with a knife.
The jury, evidently rejecting the self-defense claim, found defendant guilty on one count of second degree murder (Pen. Code, § 187, subd. (a)), with an enhancement for personally discharging a firearm and causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)), and on one count of unlawful possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). It found gang enhancement allegations on both counts to be not true. (Pen. Code, § 186.22, subd. (b)(1).) The trial court found a bifurcated “strike” prior allegation to be not true. (Pen. Code, §§ 667, subds. (b)(i), 1170.12.) Defendant was sentenced to a total of 40 years to life in prison.
Defendant now contends that the trial court erred by:
1. Denying defendant’s motion to dismiss, which was based on the prosecution’s failure to timely disclose two prior instances of violent conduct by the victim.
2. Denying defendant’s motion for a continuance so he could locate a witness to the victim’s prior violent conduct.
3. Denying defendant’s request for instructions on the prosecution’s failure to timely disclose evidence.
4. Denying defendant’s motion for production of recordings of telephone calls that prosecution eyewitness Samuel Maldonado made while incarcerated before trial.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
On October 11, 2002, around 2:00 a.m., defendant shot and killed Juan Cruz. The shooting occurred in an alley outside an apartment complex on Fourth Street in Ontario.
A. Testimony of Diane Diaz.
Diane Diaz, the victim’s fiancée and the mother of his children, saw the shooting. She admitted that Cruz was a methamphetamine addict. However, she denied that he was associated with a gang.
Diaz testified that she went with Cruz to the apartment complex because his parents had just kicked him out, and he was looking for “a friend to stay the night with . . . .” She waited in an alley while Cruz went up to a “bunch of guys” who were standing near a stairwell. When Cruz came back, he said, “Come on, baby. Let’s go. They’re trippin’.” He added, “These fools are from LOS,” referring to a Los Angeles gang.
Cruz and Diaz were walking away down the alley when they realized that two men were following them. One of the men was walking toward them; the second man was standing off to the side. Cruz said, “I’m gonna see what he wants,” then turned and walked back. Cruz was wearing a long, dark trench coat. In one hand, he was holding a 32-ounce bottle of beer; his other hand was at his side. He did not say anything.
The first man said, “Hey, homes, why you trippin’?” He then shot Cruz. Cruz dropped his beer; the bottle broke. The second man said, “Oh, shit, he’s with his lady.”
Diaz identified defendant as the shooter and Samuel Maldonado as the second man. She denied ever having seen defendant before.
Diaz told police that, when Cruz first came back to her, she asked, “[W]ho were you talking to[?]” Cruz “said a name and then he said those guys from East Los.” She could not remember the name he said. Cruz knew the shooter was from Los because he had seen him and talked to him before. She told police that she, too, had “seen him in the past . . . .”
She also asked Cruz, “[W]hat did they tell you?” Cruz told her they had asked him “why was he walking like that[,] with his hands in his pocket,” and he had replied, “[T]his is the way I walk.” She said she thought Cruz got shot “because he had a long trench[ ]coat on and his hands were in his pockets.”
Contrary to her trial testimony, Diaz told police that, as Cruz approached defendant, he said, “Hey, homes, what’s up?” She told them it looked as if they were going to fight.
B. Testimony of Samuel Maldonado.
Samuel Maldonado lived at the apartment complex. He admitted being a former member of the Monrovia Nueva Varrio (MNV) gang. He testified that defendant was also a member.
On the night of the shooting, defendant, Maldonado, and several other men were hanging out in a stairwell. Cruz approached them and asked them for marijuana and methamphetamine. He was holding a 40-ounce bottle of beer and wearing a long trench coat. Maldonado later told police that he “looked like a scary movie.” Maldonado had seen Cruz at the complex before, also trying to buy drugs. The men told Cruz they did not have any, and he went away.
A few minutes later, as Maldonado was going to buy cigarettes, he came across defendant and Cruz together in the alley. He heard Cruz ask defendant again for methamphetamine. One of Cruz’s hands was in his pocket. Defendant asked, “Why you disrespecting me?” Defendant then shot Cruz.
Maldonado heard screaming, then saw a girl in the alley. He denied saying, “Oh, shit, he’s with his lady.” He did not see Cruz holding, dropping, or throwing the beer bottle.
The next morning, the police arrested Maldonado and told him that he “was going to jail for murder.” He admitted that, as a result of being arrested and having to testify, he was angry with defendant.
When the police first interviewed Maldonado, he did not tell them that Cruz asked for methamphetamine in the alley. He also did not tell them that defendant said, “Why are you disrespecting me?”
C. Physical Evidence.
Police responding to the shooting scene found a broken 32-ounce beer bottle in the alley. The pieces were spread out over approximately the same length as a nearby mattress. According to a defense expert, the beer bottle, if merely dropped, probably would not have broken; it had most likely been thrown.
Also in the alley the police found three empty shell casings and one expended bullet. A search of defendant’s apartment revealed a .22-caliber handgun, wrapped in a bandanna and hidden in the oven. This gun matched the shell casings.
Two bullets were found in Cruz’s body. One had entered his left abdomen, most likely after causing a graze wound found on his left wrist. The other had entered his left back, puncturing his lung and aorta, causing death. Autopsy results showed a very high, intoxicating level of methamphetamine, along with lower, nonintoxicating levels of cocaine and alcohol.
D. Cruz’s Background.
According to a gang expert, Cruz was an associate of the Carnales gang. In September 1999, police found Cruz in a park; in a trashcan next to him, they found a gun. In December 1999, police found Cruz in a park with a BB gun.
E. Defendant’s Statement to Police.
When the police interviewed defendant, he told them that about a month earlier Cruz had stabbed him; the following day, Cruz had shot at him but missed. He showed them what appeared to be a stab wound. He also showed them what could have been a graze wound from a gunshot.
On the night of the shooting, defendant said, he was “sitting on the stairs” with his “homies” when Cruz came up and asked him for drugs. When defendant said he did not have any, Cruz “started getting a little wild . . . .”
Defendant let Cruz walk away, into the alley, then followed him. At that point, defendant saw Cruz’s girlfriend, “[a]nd that bitch, she hates me.” Defendant hid behind a trashcan, but Cruz saw him, then turned and started walking back toward him. Cruz demanded methamphetamine; he said, “What you got is mine, I’m gonna take it from you . . . .” He threw his beer bottle at defendant, then “charge[d]” at defendant with either a knife or a screwdriver. Rather than “get stabbed again,” defendant shot him.
No weapon was found at the scene. However, the police did not search Diaz.
II
BRADY ISSUES
Defendant raises several contentions based on the prosecution’s belated disclosure of two instances of violent conduct by the victim.
A. Additional Factual and Procedural Background.
In March 2001, Cruz committed vandalism. According to the police report, a witness named Ernestine Vaca saw Cruz, outside her apartment, holding a beer bottle in his hand while arguing with someone. Cruz threw the bottle down, then smashed Vaca’s window with his fist. He ran through her apartment complex, breaking three more windows. Cruz was taken to a hospital for treatment of cuts on his arm. At that point, at least, he was not arrested.
In June 2001, Cruz allegedly committed spousal battery. (Pen. Code, § 243, subd. (e)(1).) According to the police report, Diane Diaz told police that Cruz pushed her during an argument. Cruz’s mother confirmed that Cruz pushed Diaz. As far as the record reflects, this incident did not lead to an arrest.
At least twice before trial, defense counsel asked the prosecutor for Cruz’s rap sheet. It appears that, rather than provide it, the prosecutor simply advised defense counsel that Cruz had no felony convictions and no misdemeanor convictions involving moral turpitude.
In their brief, the People state that the prosecutor did provide the rap sheet. The record is to the contrary.
Somehow -- probably through a public records search -- defense counsel became aware of the vandalism incident. She asked the prosecutor to provide the police report on this incident. The prosecutor responded that the incident was “just a run of the mill broken window case” and therefore irrelevant.
Initially, the prosecutor told defense counsel that the vandalism incident had not resulted in any charges. Later, however, in opposition to defendant’s motion for a new trial, the prosecutor revealed that this incident had, in fact, resulted in a vandalism conviction.
In their brief, the People state that defense counsel never requested the police report before trial. Once again, the record is to the contrary.
About five months before trial, the prosecutor offered to “open [her] files to defense counsel . . . .” Defense counsel did not take her up on this offer. At that point, the prosecution’s files did contain Cruz’s rap sheet. However, they did not contain the police reports on the two incidents.
In opposition to defendant’s motion to dismiss, the prosecutor testified that her files included “the print-out involving Juan Cruz’s various and sundry contacts with the Ontario Police Department,” thus at least implying that they would have disclosed both incidents. Eventually, however, in opposition to defendant’s motion for new trial, she made it clear that the rap sheet in the files would have revealed the vandalism incident, which resulted in a conviction, but not the spousal battery incident, which did not.
On the sixth day of trial, the prosecutor provided defense counsel with the police reports in connection with the two incidents. The trial court stated that it would allow defendant to introduce evidence of both incidents.
Defendant then filed a written motion to dismiss, arguing that the prosecution’s failure to disclose the police reports before trial violated Brady v. Maryland (1973) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215].
The prosecutor filed a written opposition, arguing that defendant had only recently claimed that the victim was violent; that defense counsel could have inspected the prosecution files; and that, in any event, the trial court should exclude evidence of both incidents under Evidence Code section 352.
The trial court denied the motion to dismiss. Once again, it stated that it would allow defendant to introduce evidence of the incidents.
Defense counsel then told the trial court that her investigator had been trying to locate Ernestine Vaca, an eyewitness to the vandalism incident, but so far had not been able to. She therefore requested a continuance.
The trial court denied a continuance. It explained that the defense still might be able to locate the witness; “[a]nd, bottom line, if you can’t, then I probably would be under an inclination to just go ahead and allow you to introduce the police report . . . .”
Shortly before resting, defense counsel renewed the motion to dismiss and, alternatively, the motion for a continuance. She stated that she still had not been able to locate Vaca. The trial court denied both motions. It noted that, in the vandalism incident, the person Cruz had been arguing with was his mother; if his mother were called, she would testify that she, not Cruz, was the person who threw down the beer bottle. It admitted the police report on the vandalism incident and read it out loud to the jury. It likewise admitted the records of Cruz’s hospital admission after the vandalism incident; it called the jury’s attention to the fact that, according to those records, Cruz’s blood alcohol level was 0.232 percent, he cut his right hand and arm, and the cuts required stitches.
Defense counsel requested CALJIC No. 2.28. She also requested a special instruction to the effect that the prosecution had violated its duty to disclose exculpatory evidence to the defense; that the violation was without lawful justification; and that the violation “amounted to an attempt at concealing” the fact that Cruz’s conduct in the vandalism incident was “substantially similar” to defendant’s account of Cruz’s conduct before the shooting.
Former CALJIC No. 2.28, as relevant here, states: “The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [Concealment of evidence] [and] [or] [[D][d]elay in the disclosure of evidence] may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party’s evidence.
The proposed special instruction stated: “The prosecution is required to disclose to the defense any evidence that would help prove Mr. Mercado’s innocence in this case. The prosecution is required to disclose this information at least 30 days in advance of the trial. In this case, the prior intoxicated and violent conduct of Juan Cruz on 3-19-01 is evidence that helps prove Mr. Mercado’s innocence in this case. The prosecution was obligated to provide that information to the defense at least 30 days in advance of this trial. The prosecution did not provide this information to the defense until 6-16-05, two weeks after this trial commenced. The prosecution[’]s failure to produce this information was without lawful justification. The prosecution’s failure to produce this information is the reason why the witnesses were not able to be located and subpoenaed by the defense in such a short time period, and why the Court read and placed the police report into evidence in this case. The prosecution’s failure amounted to an attempt at concealing the fact that Juan Cruz’s past violent conduct while he was intoxicated on 3-19-01 of throwing his beer bottle and smashing in windows is conduct substantially similar to what Mr. Mercado had described Cruz’s violent and intoxicated behavior was [sic] at the time of this incident on 10-11-02.”
The trial court refused to give either instruction. It found that the prosecutor’s failure to disclose may have been either inadvertent or negligent, but it was not intentional. It noted that defense counsel had had an opportunity to inspect the prosecutor’s files. It added, “I think I have cured any defect [by] allowing . . . the entire report to be submitted as a court exhibit . . . .” Finally, it found that defendant had not been prejudiced by having to rely on the police report rather than live witnesses, because the police report was not subject to cross-examination and because Cruz’s mother would have testified that she threw the beer bottle.
B. Brady Violation.
Defendant contends that the prosecutor’s failure to disclose the police reports of the vandalism and spousal battery incidents prior to trial violated Brady.
“Under the due process clause of the United States Constitution the prosecution must disclose to the defense any evidence that is ‘favorable to an accused’ and is ‘material’ on either guilt or punishment. [Citation.] Failure to do so violates the accused’s constitutional right to due process. [Citation.] ‘Evidence is material under the Brady standard “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 587, quoting City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8, quoting Brady v. Maryland, supra, 373 U.S. at p. 87 and United States v. Bagley (1985) 473 U.S. 667, 682 [105 S.Ct. 3375, 87 L.Ed.2d 481].)
“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.]” (Kyles v. Whitley (1995) 514 U.S. 419, 434 [115 S.Ct. 1555, 131 L.Ed.2d 490], quoting United States v. Bagley, supra, 473 U.S. at p. 678.) To put it another way, the question is whether “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, at p. 435, fn. omitted.)
Certainly the police reports were favorable to the accused. As the prosecutor was well aware, defendant was claiming self-defense. “‘It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.’ [Citations.]” (People v. Wright (1985) 39 Cal.3d 576, 587, quoting People v. Rowland (1968) 262 Cal.App.2d 790, 797; see also Evid. Code, § 1103, subd. (a)(1).) The police reports depicted the victim acting in a violent and aggressive manner.
The prosecution, however, did disclose the police reports, albeit belatedly. Under these circumstances, the question is whether the delay was material -- i.e., whether there is a reasonable probability of a different result if the evidence had been disclosed to the defense earlier. (See People v. Cook, supra, 39 Cal.4th at p. 590.)
We perceive no such reasonable probability. With respect to the vandalism incident, the trial court admitted the police report itself; accordingly, the jury received all of the information in it. With respect to the spousal battery incident, although Diane Diaz had already testified, she had been “excused subject to recall[.]” If defense counsel wanted to question her about the incident, all she had to do was recall her.
In any event, both incidents, although relevant, were only weakly probative. In the vandalism incident, Cruz was arguing with a person, but he took out his aggression exclusively on windows. In the spousal battery incident, he merely pushed Diaz; there was no evidence that he injured her in any way. Thus, these incidents did not put the case in such a markedly different light as to undermine confidence in the verdict.
Defendant argues that he was unable to locate Ernestine Vaca, listed in the police report as the principal eyewitness to the vandalism incident. There is no indication, however, that if he had been given the police reports sooner, he would have been able to locate her. There is also no indication that she would have been able to give any favorable testimony not contained in the police report itself, which the jury heard. Finally, it appears that Cruz’s mother could also have testified to the vandalism incident. However, because she would have testified that it was she, not Cruz, who threw the beer bottle, defendant was better off with the police report.
Defendant also argues that his counsel was unable to refer to this evidence in voir dire or in opening statement. Given the limited scope of proper voir dire (Code Civ. Proc., § 223), it seems highly unlikely that this evidence would have even come up in it. Moreover, it is not uncommon for evidence to be developed at trial that was not mentioned in opening argument; what matters is that defense counsel had a chance to tie it in with her overall self-defense theme in closing argument.
As some of our footnotes, ante, may suggest, we do not condone the prosecutor’s conduct. It appears that she was being less than frank with opposing counsel and with the trial court itself. The fact remains that she did eventually disclose the police reports and that her delay in doing so had no appreciable effect on the fundamental fairness of the trial.
C. Denial of a Continuance.
Defendant also contends that the trial court erred by denying his motion for a continuance.
“[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 920.)
“When a continuance is sought to secure the attendance of a witness, the defendant must establish ‘he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1037, quoting People v. Howard (1992) 1 Cal.4th 1132, 1171.) Here, there was no indication that, even if the trial court granted a continuance, defense counsel could have located Ernestine Vaca within a reasonable time. Moreover, the facts to which Vaca would testify not only could be but in fact were otherwise proven -- by admission of the police report. It follows that the trial court did not abuse its discretion.
“Finding the trial court did not abuse its discretion by denying a continuance, we also reject defendant’s further claims that the court’s ruling violated various of his constitutional rights. . . . [O]ur conclusion the trial court acted within its broad discretion in denying a continuance forecloses a constitutional challenge [citation].” (People v. Roldan (2005) 35 Cal.4th 646, 671.)
D. Refusal to Instruct on the Prosecution’s Failure to Timely Disclose Evidence.
Finally, defendant contends that the trial court erred by refusing to instruct on the prosecution’s failure to timely disclose evidence.
Penal Code section 1054.1, subdivision (e) requires the prosecutor to disclose “[a]ny exculpatory evidence.” (Italics added.) This duty is not limited by the same high materiality threshold as is the duty under Brady. Under Penal Code section 1054.5, subdivision (b), “a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.”
“We generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, ‘a trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecution’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 299, quoting People v. Wimberly (1992) 5 Cal.App.4th 773, 792.)
Here, the sanction that the trial court chose was to admit the police report of the vandalism incident into evidence. The question is whether it abused its discretion by not also giving one or both of the instructions that defendant requested.
Both CALJIC No. 2.28 and defendant’s proposed special instruction would have told the jury that the prosecution had attempted to conceal evidence but would not have told the jury what use it should make of this information. Indeed, CALJIC No. 2.28 has been criticized for this reason: “The instruction implied that the jurors should ‘do something’ but they were given no idea what that something should be.” (People v. Bell (2004) 118 Cal.App.4th 249, 255.) The trial court reasonably could conclude that these instructions would not have assisted the jury.
The principle at issue (but which the instructions failed to convey) was that, if the prosecution delayed in disclosing evidence, the jury could consider that delay in determining the believability or weight to be given to that particular evidence. Here, however, the information in the police report was uncontradicted; moreover, the trial court itself read the police report to the jury. Thus, an instruction on the subject would have served little purpose.
Finally, for similar reasons, assuming the trial court erred by refusing the requested instructions, the error was harmless. We see no reasonable probability that, even if these instructions had been given, defendant would have enjoyed a more favorable result. (Cf. People v. Cabral (2004) 121 Cal.App.4th 748, 753; People v. Bell, supra, 118 Cal.App.4th at p. 257.)
We therefore conclude that the trial court did not abuse its discretion by refusing defendant’s requested instructions.
III
RECORDINGS OF MALDONADO’S TELEPHONE CALLS WHILE IN CUSTODY
In a supplemental brief, defendant contends that the trial court erred by refusing to require the prosecution to produce recordings of telephone calls that eyewitness Samuel Maldonado made while incarcerated before trial.
A. Additional Factual and Procedural Background.
Maldonado was in jail for about five months prior to trial, on a petty theft conviction. Defense counsel asked the trial court to compel the prosecutor to produce recordings of the monitored telephone calls that Maldonado had made while in jail.
The prosecutor objected that the recordings were not in her possession; that “it [wa]s a fishing expedition”; and that “there [we]re security/safety reasons” for her refusal to produce the recordings.
The trial court declined to rule on the request at that time but stated, “[I]f you can provide me reasons for the request . . ., that it’s not merely a fishing expedition, my suggestion is ultimately I do an in-camera review . . . .”
Meanwhile, the prosecutor was allowed to conduct a conditional examination of Maldonado. In it, Maldonado testified that, while in jail, he had not had any telephone conversations with the prosecutor, with prosecution investigators, or with the Ontario police; moreover, he had not had any telephone conversations “about this case[.]”
The prosecutor then filed a brief, stating that she had obtained the recordings but objecting to producing them. In a supporting declaration, she testified:
“ . . . I listened to each and every telephone call[.] [¶] . . . [¶]
“At no time did [Maldonado] ever discuss the facts of the case with anyone[.]
“The calls discussed personal matters of the witness, such as his family, future plans regarding where he would be living, and with whom[.]
“Telephone numbers were recorded on the calls or contained in 3-way calls, which would supply information as to the identity of his contacts (such as friends and relatives) and there is information contained within the calls as to their locations[.]
“There is no Brady material contained in any of the calls, i.e.[,] any impeachment material as to what he has said to police or testified to in court[.]”
In response, defense counsel filed a motion to compel disclosure of the recordings. She stated: “[T]he defense cannot be expected to rely upon the prosecutor to determine what will be helpful in Mr. Mercado’s defense.” She offered “to be bound by a protective order not to disclose the witness [sic] telephone numbers, locations, or addresses to anyone without further order of the Court.”
The trial court denied the motion. It explained: “As an officer of the Court, I’m going to accept [the prosecutor’s] representations. [¶] Based on those representations, I’m not going to allow those tapes to be discovered by the defense. I am going to request, though, that I take custody of those tapes so that I could seal them and place them into the court file for appellate review.”
Defendant filed a motion for new trial on several grounds, including that the trial court had erred by refusing to compel discovery of the recordings. In it, he argued for the first time “that the tapes were relevant because[] the statements that Mr. Maldonado w[as] making during this time period were different and tended to be more incriminatory toward [defendant] than had been his original statements to the investigating officers. The defense believe[s] that his taped telephone calls might shed light on his ‘new memories’ of the events in question.” The trial court denied the motion.
In January 2005, over two years after the shooting, the police reinterviewed Maldonado. He provided some details that he had not provided in 2002, including that Cruz had asked for methamphetamine in the alley and that defendant had responded, “[W]hy you disrespecting me for?”
B. Analysis.
As already noted, the prosecutor had a statutory duty to disclose “[a]ny exculpatory evidence.” (Pen. Code, § 1054.1, subd. (e).) She also had a statutory duty to disclose “[r]elevant . . . recorded statements of witnesses . . . whom the prosecutor intends to call at the trial . . . .” (Pen. Code, § 1054.1, subd. (f).) To obtain an order compelling statutory discovery, defense counsel had to make “a showing that [the prosecutor] ha[d] not complied with Section 1054.1 . . . .” (Pen. Code, § 1054.5, subd. (b).) Similarly, on a motion under Brady, “a defendant has the preliminary burden to establish . . . materiality.” (People v. Talamantez (1985) 169 Cal.App.3d 443, 465.) This is true even where the remedy sought is not immediate production, but in-camera review. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 58, fn. 15 [107 S.Ct. 989, 94 L.Ed.2d 40] [“Ritchie, of course, may not require the trial court to search through the CYS file without first establishing a basis for his claim that it contains material evidence”].)
Defendant faults the trial court for accepting the prosecutor’s representations. This ignores the fact that the prosecution did not have the burden of proof; defendant did, and he failed to meet it. In his motion to compel disclosure, he did not suggest any reason to suppose that the recordings contained any information that was relevant to this case. To the contrary, he asserted that “[t]he defense should have access to all recorded conversations of the People’s star witness to determine if and how the information contained therein will be relevant to the defense.” (Italics added.) In his motion for new trial, he argued -- albeit belatedly -- that the recordings “might” explain why Maldonado’s statements had become “more incriminatory” over time. But then again, they might not. This argument was wholly speculative.
In connection with his motion for new trial, defendant showed that the prosecutor had been caught shoplifting from a Target store and had been convicted of petty theft under $50. (Pen. Code, § 490.1, subd. (a).)
On the other hand, the prosecution, even though not required to do so, introduced some evidence that the recordings were not relevant; this included not only the prosecutor’s own representations, but also Maldonado’s testimony at the conditional examination that he had not had any telephone conversations about the case. Accordingly, the trial court did not have to review the recordings in camera; a fortiori, it did not have to require that they be disclosed.
In the interest of ensuring that our review is based on the entire record, this court has reviewed the recordings in camera. The only even potentially relevant information in them is that, after Maldonado was reinterviewed and before this case went to trial, a charge of assault or battery, incurred after he “socked up that guy at the 7-Eleven,” was dropped. A few days earlier, Maldonado had asked his mother to visit him in jail so they could discuss something that he did not want to discuss on the phone. Previously, she had been relaying information between Maldonado and the district attorney’s office (by way of “these motherfuckers,” apparently meaning his own counsel) regarding his release date.
IV
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., MILLER, J.
“Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the [People] [Defendant[s]] [concealed] [and] [or] [failed to timely disclose] the following evidence:
“Although the [People’s] [Defendant’s] [concealment] [and] [or] [failure to timely disclose evidence] was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial.
“The weight and significance of any [concealment] [and] [or] [delayed disclosure] are matters for your consideration. However, you should consider whether the [concealed] [and] [or] [untimely disclosed evidence] pertains to a fact of importance, something trivial or subject matters already established by other credible evidence. . . . ” (Former CALJIC No. 2.28 (Jan. 2005 ed.).)
Notably, some of the new details that Maldonado provided -- e.g., that Cruz was “totally shit-faced drunk” and said he was from an Ontario gang -- were inconsistent with other prosecution evidence and were used to impeach Maldonado at trial; presumably, then, these details were not due to coaching by the prosecution or the police.
We cannot say, on this record, that this information should have been disclosed to defense counsel. Indeed, for all we know, it was in fact disclosed. Even if not, one would assume that defense counsel, in the exercise of reasonable diligence, investigated Maldonado’s entire criminal record. In any event, the recordings indicate that the assault or battery charge was pending in California, but not in which county, nor do they indicate why the charge was dropped. Thus, we have no way of knowing whether this information would have had any tendency to impeach Maldonado.