Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 21144474
McGuiness, P.J.
After a contested hearing, the trial court found appellant Craig Jerome Waters in violation of probation based on incident in which he assaulted another individual with a cane. The court revoked probation and imposed an upper term sentence of three years imprisonment. On appeal, appellant claims the prosecution’s failure to provide timely discovery in accordance with Brady v. Maryland (1963) 373 U.S. 83 (Brady) violated due process, and the trial court’s refusal to recall the complaining witness was an abuse of discretion. We affirm the judgment.
BACKGROUND
On April 22, 2004, appellant pleaded guilty to a felony charge of battery on a peace officer. (Pen. Code, § 243, subd. (c)(2).) The court ordered imposition of sentence suspended and placed him on probation for three years, subject to various conditions. Thereafter, appellant’s probation was revoked and reinstated on five separate occasions. On November 2, 2006, the district attorney filed a sixth motion for revocation, and this time the matter proceeded to a contested hearing.
Vince Turner testified for the prosecution. According to Turner, on the afternoon of October 31, 2006, he and his friend Abdiaziz Kerow were helping move the office of the African Immigrant and Refugee Resource Center (the Center) from downtown San Francisco to a new location. At one point during the move, an argument ensued between Kerow and some people whom Turner believed were trying to usurp their moving job. Turner intervened, placing himself in front of Kerow and urging the men to stop fighting “over just a couple pennies, couple dollars.” Kerow walked away and left Turner standing with appellant, who was holding a wooden cane. Turner did not know appellant and had never spoken to him before. He put out his hands to show he was unarmed and told appellant, “ ‘Brother, I’ve got no problem with you. If this is about the moving job, we don’t need to be fighting about money.” Nevertheless, appellant hit Turner with the cane several times on his left forearm and his head and neck. The cane broke over Turner’s arm, and appellant then tried to stab Turner with the broken piece. Meanwhile, an associate of appellant’s was circling around with a hand in his pocket, and Turner believed this man was trying to stab him. Turner fled to a nearby café and called 911. At the revocation hearing, Turner identified appellant as his assailant, and photographs of bruises on Turner’s arm and red marks on his head, neck and chest were admitted in evidence.
Timothy Veite, a witness to the altercation, also testified at the revocation hearing. Veite was sitting with his girlfriend in his car, which was parked near the intersection of Eddy and Mason Streets, when his attention was diverted by loud noises in the street. Veite saw a man he identified as appellant advance on another individual, brandishing a cane. Appellant was followed by three or four others, and all were yelling and behaving aggressively toward the victim, who was backing away from them. The victim raised his arm to block the blows, but appellant struck him repeatedly with the cane. On the third blow to the victim’s arm, Veite saw the cane break, and then the victim ran away. Veite stayed at the scene. When police officers arrived, Veite gave them a statement and identified appellant as the attacker.
San Francisco police officer Damon Hart and his partner arrived on bicycles around 1:20 p.m. Appellant was on the scene, talking to his mother on a cellular phone, and he told the officers he had called 911. Appellant explained there had been an altercation but everyone involved had left the scene. Meanwhile, Veite motioned for Officer Hart’s partner to come over to his car, and Veite told the officer appellant had been involved in the fight. The officers arrested appellant and recovered pieces of the broken cane from the sidewalk and an intersection crosswalk.
The defense presented testimony from four witnesses. Adoubou Traore, the executive director of the Center, testified that on October 31, 2006, Turner and Kerow, both clients of the Center, were helping move the Center’s offices. When Traore arrived, he saw two other men helping whom he did not recognize. At some point, an argument started between Kerow and Turner and the two men Traore did not know. Traore believed these men were Jamaicans because one wore his hair in dreadlocks, with a knit bonnet. Although Traore urged the men to stop arguing, the man with dreadlocks picked up a walking stick that had been among the office things and walked up to Turner. He then started hitting Turner very hard and broke the stick over Turner’s arm. Appellant was not wearing his hair in dreadlocks at the revocation hearing, and Traore testified he did not believe appellant was the man who had hit Turner with the stick. The first time Traore ever saw appellant was when he stepped into the courtroom for the hearing.
Appellant’s mother testified that around noon on the day in question appellant called her using his friend’s cellular phone. Over the phone, she heard noise from people “cussing and hollering,” and appellant told her the sounds were from “ ‘people down the street . . . fighting over some furniture.’ ”
Willie Dotie testified that he and appellant were watching two of their friends perform a moving job, and at one point appellant assisted them. Sometime between 12:30 and 1:00, appellant borrowed Dotie’s cellular phone to call his mother. When Dotie’s friends asked to be paid for the moving work, two other men arrived and acted as if they were in charge. Dotie did not see anybody fighting or striking anybody with a cane. Dotie testified that appellant’s hair was closely cropped on the day in question, not in dreadlocks, and he did not recall appellant wearing a cap or head scarf.
Finally, Rickie Brumfield testified that on October 31, 2006, a woman hired him and his friend Mack to help with a moving job. After they started work, however, the woman disappeared and a white man (Turner) approached insisting he was in charge of the job. An argument ensued with “a lot of hollering” among five people and with several bystanders. Brumfield said he and appellant were trying to smooth things over when Turner came rushing down the street at them. Brumfield did not see Turner or anyone else get hit with a cane.
At the close of the hearing, the court found a probation violation had been shown by a preponderance of the evidence. The court revoked probation and, based on appellant’s numerous prior convictions, imposed an aggravated sentence of three years imprisonment.
DISCUSSION
Appellant’s revocation hearing was held over two days. After Turner testified on the first day, January 8, 2007, the defense agreed to excuse him, and the People rested their case. The parties then returned to court on January 29, 2007, and the court heard testimony from the defense witnesses. After the last witness testified and the defense rested, defense counsel asked to admit “one more piece of physical evidence,” a printout of an email message purportedly sent from Turner to Kerow on December 31, 2006. Defense counsel explained he did not receive a copy of the message until after the close of the People’s case, and so, although the message was relevant for impeachment purposes, he could not introduce it when Turner testified. Both of appellant’s arguments on appeal concern this email message.
The message, apparently sent from Turner to Kerow on December 31, 2006 in reply to a message from Kerow, states: “I promis[]ed you and myself that if you did not act within ‘one-moon’ that I would and it would include fucking you up. Well it has been more than one moon & you did nothing. You also understood that if you did not act your ass was on the line with me. [¶] KC will get his as soon as I make a deal with the fucker in jail, then it is your time. Run bitch, run and hide. [¶] You started this by contacting me. I am very happy, I pay no rent & I live [in] a beautiful hotel with an[] excell[e]nt apartment coming, bought new clothes, eat very well, sleep very well, have twenty women that want to date and no le[e]ches like you around me. [¶] Happy, yes I am with the exception of the little fucker that used me then lied and ran like a bitch, (oh, that is you; you[’re] too bad) & then tried to make fun of me. Ha, ha, all you want your time is d[]windling down daily!!!!!! [¶] God is great all the time, (look at my new wonderful life) I was telling you in a[] way that you would understand that I am coming for you but then again your brain must still be [w]rapped around meth still. [¶] I will see how much you[r] cyber lips match your real world lips when I kick your ass any time after Jan[.] 10, 2007 unless there is another continuance.” According to the printout, Kerow forwarded Turner’s message to an investigator at the district attorney’s office on January 2, 2007, and the investigator forwarded it to a deputy district attorney on January 5, 2007, with a note explaining that the message “refers to a witness, Abdiaziz Kerow, in the Craig Waters case.”
The trial court admitted a printout of the email message into evidence but disagreed with defense counsel about its significance. The court observed it was unclear whether the statement about a person in jail referred to appellant or some other person. Nor did the court believe Turner’s statements about doing well and being happy with his life necessarily referred to benefits he was receiving from the victim’s assistance program. Defense counsel argued the message showed Turner “had an ax to grind with” appellant and this “personal vendetta” was the true motivation for his testimony. Counsel also made an offer of proof that “there’s some bad blood” between Turner and the person referred to in the email message as “KC,” and, because Turner was aware appellant and KC were friends, this situation gave Turner a motive to lie under oath about appellant’s involvement in the incident. Having considered these arguments, the court denied counsel’s request that “Turner [be] brought back” for further examination before the case was submitted.
I. No Brady Violation Occurred
Appellant first complains the prosecution’s failure to provide the email message to him before Turner testified was a violation of due process pursuant to Brady, supra, 373 U.S. 83. We subject the trial court’s conclusions regarding elements of a Brady claim to independent review. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) However, “[b]ecause the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence. [Citation.]” (Ibid.)
The prosecution has a duty to disclose evidence to an accused if the evidence is favorable to the accused and material as to either guilt or punishment. (United States v. Bagley (1985) 473 U.S. 667, 674; Brady, supra, 373 U.S. at p. 87.) “ ‘There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ (Strickler v. Greene (1999) 527 U.S. 263, 281-282, fn. omitted.) Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.” ’ (Banks v. Dretke (2004) 540 U.S. 668, 699.)” (People v. Salazar, supra, 35 Cal.4th at p. 1043.)
Assuming appellant’s claim is not waived by his failure to raise an objection on Brady grounds below, the argument is flawed because the sequence of events does not establish that the prosecution suppressed favorable evidence. (See People v. Salazar, supra, 35 Cal.4th at p. 1048 [required element of a Brady claim is “that the evidence must have been ‘suppressed’ by the government”].) Here, the prosecution disclosed the email message to the defense before the revocation hearing concluded, and possibly before the defense presented its case. Defense counsel stated only that he received the evidence “after the close of the People’s case.” The prosecution rested after Turner testified on January 8, 2007, but the hearing did not resume until three weeks later, on January 29, 2007. It is evident that appellant had a copy of the message at the outset of the January 29, 2007 hearing, if not before, because defense counsel asked one of the witnesses if he knew a person named “KC.” “If the material evidence is in a defendant’s possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial . . . . [Citations.]” (People v. Salazar, supra, 35 Cal.4th at p. 1049.) Defense counsel had the evidence in hand but did not call Kerow to testify about it or take steps before the close of the hearing to have Turner recalled. Moreover, because the court admitted the email message into evidence and appellant was permitted to argue its relevance for impeachment, appellant did not suffer prejudice from a true suppression of evidence.
In addition, the evidence in question was not material. “Evidence is ‘material’ ‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different.’ [Citations.]” (In re Sassounian (1995) 9 Cal.4th 535, 544; see United States v. Bagley, supra, 473 U.S. at p. 682.) The email message does not even mention appellant. As the trial court observed, Turner’s statement about the “[expletive] in jail” could have referred to anyone. Even assuming this person was appellant, none of Turner’s threats in the message was directed at appellant; rather, Turner said he intended to harm KC and Kerow “as soon as [he] ma[d]e a deal” with someone in jail, possibly appellant. Turner also boasted about enjoying a wonderful life with free rent, money to spend, and many women to date, and appellant renews his argument that these statements could have been used to impeach Turner’s credibility by showing that he had reaped a financial benefit from testifying. However, as the prosecutor reminded the court, Turner already admitted on cross-examination that he had received benefits from the county’s victim’s assistance program. Turner denied “making money” from the program and explained he was actually in a bind because his victim’s assistance benefits were going to run out in 21 days and after that he would not be able to qualify for housing. In light of this testimony, any additional impeachment regarding assistance benefits would not likely have affected the result.
In any event, as the trial court observed, Turner’s animus against appellant was evident from his demeanor on the witness stand. The court—reasonably, in our view—attributed Turner’s dislike of appellant to the fact that appellant had assaulted him.
“ ‘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 [citation]. In contrast, a new trial is generally not required when the testimony of the witness is “corroborated by other testimony” [citations].’ [Citation.]” (People v. Salazar, supra, 35 Cal.4th at p. 1050.) As the trial court observed, Turner’s testimony was corroborated by an independent witness, Veite. Veite was especially credible because, unlike all of the other witnesses, he was a complete bystander and had no relation to any of the participants in the dispute. In light of this independent corroboration, which the trial court considered reliable, it is not reasonably probable that further impeachment of Turner using the subject email message would have produced a more favorable outcome for appellant.
II. No Abuse of Discretion in Denial of Defense Request to Reopen
In a related argument, appellant contends the trial court abused its discretion in refusing to reopen the case and recall Turner. “In determining whether a trial court has abused its discretion in denying a defense request to reopen, the reviewing court considers the following factors: ‘(1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.’ [Citation.]” (People v. Jones (2003) 30 Cal.4th 1084, 1110.)
Because the defense had rested before counsel moved to recall Turner, the court would have had to allow appellant both to reopen and to recall Turner, who had been excused. Leave to recall a witness who has been excused may be granted or withheld in the court’s discretion. (Evid. Code, § 778.)
For the reasons discussed in relation to appellant’s Brady claim, the trial court did not abuse its discretion in denying the request to recall Turner. Although defense counsel did not state for the record exactly when he received the email message, appellant’s diligence remains questionable because counsel did not alert the court to the existence of this new evidence, or move to recall Turner, until after the close of testimony. Moreover, given the scant relevance of the email message to appellant’s case, testimony from Turner about the email would likely have carried little, if any, significance. Further testimony about benefits Turner received from the victim assistance program would have been cumulative, and testimony explaining the reasons for Turner’s dispute with Kerow would likely have been completely irrelevant to the proceedings. An independent eyewitness corroborated Turner’s testimony that appellant was his attacker, and the trial court relied heavily on this eyewitness’s testimony in finding that appellant committed the assault. Under the circumstances, it is not reasonably probable the court would have reached a different conclusion upon further cross-examination of Turner. (See People v. Jones, supra, 30 Cal.4th at pp. 1116-1117 [applying reasonable probability standard of prejudice to error in denying a defense request to reopen].)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.