Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. YJ32435 Robin Miller Sloan, Judge; Irma J. Brown, Judge.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
O.C. (the minor) appeals from an order declaring him a ward of the court after the juvenile court sustained a Welfare and Institutions Code section 602 (section 602) petition alleging that the minor committed a second degree burglary. He contends: (1) the finding is not supported by substantial evidence and (2) the prosecution failed to disclose exculpatory evidence in violation of the federal due process clause and Brady v. Maryland (1963) 373 U.S. 83 (Brady). We affirm the order.
The minor also requests that we independently review the sealed transcript of the trial court’s in camera review of documents produced in response to his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531; see also People v. Mooc (2001) 26 Cal.4th 1216, 1228.) We have done so and find the trial court adequately described the documents it reviewed and correctly concluded there were no relevant documents to be produced.
FACTUAL AND PROCEDURAL BACKGROUND
“Art Share” is a community arts program for young people located on the ground floor of a building on East Fourth Place, in Los Angeles. The upper floors of the building contain residential apartments. From August 25 through August 28, 2009, the minor worked part-time in the Art Share building. In August 2009, Youth Radio, an organization that trains young people to be journalists, rented an office in the Art Share space. There was a lot of equipment in the Youth Radio office, most of it under lock and key, but on Sunday, August 30, there was one new computer that was not locked up. Sabiha Khan was working in the Youth Radio office that day. Her responsibilities included checking out the equipment to the students. Sometime after noon, Khan noticed the minor standing outside the door to the office. Khan was familiar with most of the students in the Youth Radio program and the minor was not one of those students. She assumed he was an Art Share student. After awhile, the minor entered the Youth Radio office and asked to use the new computer. He then resumed his position outside the office door, where he paced back and forth. Khan did not see the minor when she and the students left the Youth Radio office for a break at about 2:00 or 3:00 p.m. As Khan locked the office door she noticed that some paper had been wadded up and put it in the door lock, as though someone was trying to prevent the door from locking. Khan could not recall what time she left work that night. However, it was her habit to leave at about 6:00 p.m. and she did not recall working late that night. As she was locking up for the night, Khan noticed the minor was once again standing outside the Youth Radio office. The next morning, Monday, August 31, Khan arrived at work at about 9:30 a.m. The door was locked and there was no sign of forced entry, but upon entering the office Khan immediately noticed that a laptop and the computer that the minor had asked about the day before were both missing. It appeared that someone had also tried to take a stereo system, but gave up because there were so many wires attached to it. Khan never gave the minor permission to take the computer or laptop. Khan explained that it was possible to enter the Youth Radio office from the room next door through the ceiling. The morning she discovered the missing items, Khan also noticed a footprint on a cabinet that one could climb on to access the ceiling, and a footprint on a nearby wall. The emergency exits from the Art Share space to the residential area of the building, which should have been locked, were not locked.
The morning of August 31, Eva Mah was in the residential part of the Art Share building packing for a camping trip. Between 8:30 and 9:00 a.m., the minor approached Mah and asked whether there was a way to get from the residential to the commercial part of the building. Mah directed the minor to a fire exit stairwell which accessed both the Art Share space and the outdoors. When Mah saw the minor about 20 minutes later, he was carrying a duffle bag with a computer monitor sticking out of it. Mah stopped the minor and asked him, “Are you stealing that thing?” The minor said, “No, I work downstairs. I just started.” In response to Mah’s inquiry, the minor identified himself as “Lafayette Jackson or something like that” and said he worked for “the gay kid.” Mah said, “Daniel?” The minor responded, “Yeah, that guy.” Mah noticed that the minor was holding some keys that Mah thought looked like the Art Share keys. On September 1, a woman who worked in the Art Share part of the building told Mah that her computers had been stolen and asked Mah if she saw anything weird. Mah told the woman about her interaction with the minor and wrote a statement describing it.
Mah testified that her encounter with the minor occurred on August 31, while she was packing for a camping trip. Mah “believed” it was a Saturday morning. The juvenile court took judicial notice of the fact that Saturday was August 29, which means that August 31 would have been a Monday, not a Saturday.
Mah also spoke to the police about the incident. The police showed her a “six pack of photos” (six-pack). Mah circled one of the photos and wrote her name and the date next to it. Mah testified that the person whose photograph she circled was the minor. But Los Angeles Police Officer Ron Gilder testified that he prepared the six-pack Mah viewed, which included a photograph of the minor in position number 4; Mah, however, circled the photograph in position number 3. Gilder testified that Mah expressed difficulty identifying anyone from the six-pack because, Mah said, the people in the photographs looked so similar. Eventually, Mah said that the person pictured in position number 3 looked very similar to the person she saw – he had the same haircut, eyebrows, face shape and was the same age – but she was not positive that he was that person. Mah told Gilder that she believed she would be able to identify someone if she saw them in person. The police report of the theft stated that Mah did not identify anyone, not that she identified someone other than the minor.
Officer Gilder was present on September 10, when the minor was questioned about the theft by Officer Del Torro. In a hand written statement, the minor attested that he worked in the Art Share building part-time from August 25 to August 28, 2009; the last time he was ever in the building was on August 28. The minor once asked someone in the building named “Sabat” about using the internet. The minor admitted occasionally using the name “Lafayette Jackson” and owning a black “Everest type” backpack.
DISCUSSION
A. Sufficiency of the Evidence
The minor contends there was insufficient evidence that he was the person who committed the burglary. He argues that Mah’s identification is insufficient because she identified someone other than him from the photographic six-pack and because she testified that she saw the minor with a computer on Saturday, August 29, although the theft did not occur until the evening of August 30 or morning of August 31. We disagree.
On appeal from an order sustaining a petition under section 602, we review the trial court’s findings for substantial evidence. (In re Sylvester C. (2006) 137 Cal.App.4th 601.) “The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. In either type of case, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 605, fn. omitted.) Reversal for insufficiency of the evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We may reject a finding of the trier of fact only if it is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.)
The evidence on which the trier of fact, here the juvenile court, could reasonably have relied in concluding that the minor was the person who took the items from the Youth Radio office included:
Khan’s in-court identification of the minor as the person she saw loitering around the Youth Radio office on August 30 (two days after the minor claimed was the last day he was ever in the building) and that he asked about using the very same items that were stolen later that night or the next morning;
Mah’s in court identification of the minor as the person she saw in the residential portion of the building shortly before the theft was discovered, that he was holding a duffle bag containing a computer monitor and he identified himself as “Lafayette Jackson;”
The minor’s written statement that he was never in the Art Share building after August 28 (which was contradicted by Khan’s and Mah’s testimony that they each saw him there after that date) and his admission that he occasionally used the name “Lafayette Jackson.”
It matters not that there were conflicts in the evidence – Mah’s inability to identify the minor from the six-pack and her mistaken belief that August 31 was a Saturday, when it was actually a Monday – because any conflicts, weaknesses, or inconsistencies in the evidence are for the trier of fact to resolve. (Cf. People v. Solomon (2010) 49 Cal.4th 792, 818.) Mah’s confusion about the day of the week does not make it physically impossible or inherently improbable that Mah saw the minor on Monday, August 31, the day after Khan saw him in the Youth Radio office and the same day the computer and laptop were discovered missing.
B. There Was No Brady Violation
The minor contends the prosecutor violated Brady, supra, 373 U.S. 83, by not disclosing that Mah identified someone other than defendant on the six-pack shown to her by Officer Gilder. He argues that, notwithstanding that the prosecutor did not know of the misidentification until after Gilder testified, the People are responsible for failing to disclose known or unknown evidence. We find no error because the minor has failed to establish the materiality element of a Brady violation.
Under the federal due process clause and Brady, the prosecution has a self-executing duty to disclose to the defense any evidence that is favorable to the accused and material to the issues of guilt or punishment. (People v. Verdugo (2010) 50 Cal.4th 263, 279 (Verdugo); People v. Bohannon (2000) 82 Cal.App.4th 798, 804, disapproved on another point in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) The prosecutor has a duty to learn of any favorable evidence known to the police because the rule encompasses evidence known only to the police, even though not known to the prosecutor. (Strickler v. Greene (1999) 527 U.S. 263, 280-281; see also People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 47 (Meraz) [prosecutor’s duty applies to evidence the “prosecution team” possesses; “prosecution team” includes investigative agencies].)
But the failure to disclose exculpatory evidence does not always violate Brady. There are three components to a Brady violation: (1) the evidence must have been suppressed; (2) the suppressed evidence must have been favorable; and (3) it must have been material. As our Supreme Court explained in People v. Dickey (2005) 35 Cal.4th 884, 907-908, to constitute a Brady violation, “the evidence a prosecutor failed to disclose must have been both favorable to the defendant and material on either guilt or punishment. Evidence would have been favorable if it would have helped the defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a reasonable probability that, had it been disclosed to the defense, the result would have been different. The requisite reasonable probability is a probability sufficient to undermine confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]” “Materiality... 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.” ’ [Citation.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1043.) “ ‘Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]’ [Citations.]” (Verdugo, supra, 50 Cal.4th at p. 279.)
Moreover, without regard to whether it was presented in discovery, evidence that is presented at trial is not considered suppressed. (Verdugo, supra, 50 Cal.4th at p. 281, citing People v. Morrison (2004) 34 Cal.4th 698, 715 [“In any event, evidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery”]; see also Meraz, supra, 163 Cal.App.4th at p. 51, citing U.S. v. Davenport (9th Cir. 1985) 753 F.2d 1460, 1462 [no Brady violation where the defense had access to the exculpatory information (fact that witness saw a six-pack before attending a live lineup) from the beginning of trial and made use of it in cross-examination].) In Meraz, the prosecutor incorrectly, but unknowingly, represented to the defendant that there was no report of a traffic stop that occurred near where a homicide occurred. During jury selection, the prosecutor learned that field interview cards and photographs relating to the traffic stop were in the possession of the police department. The prosecutor immediately disclosed the information to the defendant. The appellate court “question[ed] whether there truly was suppression” because the material was disclosed prior to trial. (Meraz, supra, at p. 51.) It concluded that, inasmuch as the trial was continued, there was no Brady violation. (Meraz, supra, at p. 53.)
Here, in addition to the prosecution’s self-executing duty to disclose favorable material, the minor made a written demand for such in a pretrial discovery motion. The minor also informally asked the prosecution specifically for any “six-pack information.” The prosecution sent a discovery request to Officer Gilder. When Gilder did not turn anything over, the prosecution never followed up with Gilder. On this subject, the report stated “[w]itness [Mah] was not able to identify the subject from a six-pack photo line-up. Witness said she could identify the subject in person.” Relying on the police report, the prosecutor believed that no identification had been made. The prosecutor and the minor first learned that Mah identified someone other than the minor from the six-pack when Gilder so testified on the first day of the two-day hearing. The prosecutor explained that she “spoke with Officer Gilder prior to his testimony[.] I found out that [Mah] actually circled someone else when he testified. I did not know about that until the testimony that he gave through the questioning [by the minor’s counsel].” The next day, the minor’s counsel requested that the petition be dismissed as a sanction for the prosecution’s failure to disclose Mah’s six-pack identification in violation of Brady. The minor’s counsel did not request a continuance to investigate the identity of the person Mah identified and whether that person could possibly have been involved in the theft. The trial court expressed disapproval of the police investigation in this case, and of Gilder in particular, but concluded that there was no Brady violation, reasoning that nothing put the prosecutor on notice that she should inquire further.
Even though the exculpatory material was not known personally by the courtroom prosecutor, the prosecution had a legal duty to disclose the fact that Mah identified someone other than the minor on a six-pack because it was in the possession of the police. But the duty to disclose is just one element of a Brady violation. In this case, the minor has failed to establish the materiality element of a Brady violation. While there is no doubt that Mah’s identification of someone else is favorable to the minor, it is not such evidence as would “ ‘ “put the whole case in such a different light as to undermine confidence in the” ’ ” outcome. (People v. Jenkins (2000) 22 Cal.4th 900, 955, quoting Stickler v. Greene, supra, 527 U.S. at p. 290.) This is particularly true under the circumstances here, where the information was introduced at trial, and the minor had ample opportunity to cross-examine Mah about her identification of someone else on the six-pack. Finally, we observe that the court had expressed consternation with the police investigation. A defense request for a continuance to consider the newly discovered six-pack evidence likely would have been well received. Defense counsel’s failure to ask to continue the matter suggests counsel, too, thought nothing material would have been uncovered with additional time.
DISPOSITION
The order of wardship is affirmed.
WE CONCUR: FLIER, J., GRIMES, J.