Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA336137 Barbara R. Johnson, Judge.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Imankhwaja Askari appeals for a second time from the judgment entered following a jury trial that resulted in his convictions for possession of a controlled substance, cocaine base, and misdemeanor possession of a smoking device. Askari was sentenced to a prison term of five years. In Askari’s first appeal, we concluded the trial court had erred by denying his Pitchess motion without first examining certain records in camera. We conditionally reversed the judgment and remanded with directions to conduct the in camera inspection pursuant to Evidence Code sections 1043 and 1045. We further instructed that if information was disclosed as a result of the in camera review, the trial court was to allow Askari the opportunity to demonstrate prejudice, and order a new trial if there was a reasonable probability the outcome would have been different had the information been disclosed before trial. On remand, the trial court conducted the in camera review and disclosed certain information, but denied Askari’s subsequent new trial motion. Askari contends this was error. He also requests that we review the sealed record of the trial court’s Pitchess examination to determine whether the court abused its discretion by failing to order sufficient disclosure. (People v. Mooc (2001) 26 Cal.4th 1216.) We affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
Portions of our discussion of the factual and procedural history are taken from our unpublished opinion in Askari’s first appeal. (People v. Askari (June 24, 2009, B209061).)
a. People’s case.
On February 7, 2008, at approximately 10:00 p.m., Los Angeles Police Department (L.A.P.D.) Officer Anthony Jackson was working in an undercover capacity on San Julian Street, between 5th and 6th Streets, in Los Angeles. Detective Vip Kanchanamongkol was nearby in an unmarked vehicle, wearing plainclothes. Uniformed Officers Fernando Ortega and Jared Miller were nearby in their patrol vehicle, as were Officers Christopher Paterson and Eric Miller in a second patrol car. The area was well-known for narcotics use and transactions.
Officer Jackson completed an undercover buy of narcotics from an individual later identified as Tony Ryals. Jackson broadcast the suspect’s description to the other officers, who headed to the location. Kanchanamongkol stopped in front of 627 South San Julian Street and observed Askari standing with at least 10 persons around him. The two marked patrol cars arrived immediately thereafter. Although it was ultimately determined that Askari was not the individual who had sold the cocaine, he matched the description provided by Jackson. When the police vehicles pulled up, Askari looked in their direction and sprinted away, at a “frantic” pace. Detective Kanchanamongkol and Officers Paterson and Ortega chased Askari on foot. While Askari was in the middle of the street, he threw several small, off-white solid substances to the ground with his right hand. Ortega and Kanchanamongkol both observed Askari’s action. There was no traffic, and no other pedestrians were in the street. Officer Paterson, who was closest to Askari, did not see him throw anything.
Askari attempted to jump a wrought iron fence, but a security guard pushed him back. Askari continued running approximately 20 to 25 feet further, until he was detained and handcuffed. A search of Askari’s person revealed a glass pipe, of a type commonly used for smoking rock cocaine.
Approximately 15 seconds after detaining Askari, Detective Kanchanamongkol and Officer Ortega both returned to the spot where they had observed Askari drop the off-white items. Each officer recovered three small off-white rocks, which were placed in two Ziploc baggies and given to Officer Jackson. The rocks were tested and determined to contain cocaine base, with one baggie containing.30 net grams and the other containing.38 net grams. Detective Kanchanamongkol opined that the amount recovered was a usable amount of cocaine.
b. Defense case.
Askari testified in his own behalf. He admitted being addicted to cocaine. He also admitted being in the area of San Julian Street on the evening in question, though he had no particular business in that area, and possessing the crack pipe. He had been awake for days because he had been high on crack cocaine. In fact, he had just smoked cocaine an hour before he was stopped by police. He did not, however, possess any drugs when stopped by the officers, did not have anything in his hands, and did not throw anything. He fled because he was afraid it looked as if he had been smoking cocaine.
c. Conviction and sentence.
After a jury trial, Askari was convicted of possession of a controlled substance, cocaine base (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). Askari admitted suffering a prior “strike” conviction for first degree burglary (§ 459), as well as six prior convictions within the meaning of section 667.5, subdivision (b). The trial court denied Askari’s Romero motion and sentenced him to a term of five years in prison. It imposed a restitution fine, a suspended parole restitution fine, a laboratory analysis fee and related penalty assessment, and a court security fee.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2. First appeal.
Askari appealed. As relevant here, Askari asserted that the trial court erred by denying his Pitchess motion without conducting an in camera review. We concluded that the trial court correctly declined to conduct an in camera review of records related to certain officers who had neither recovered the cocaine nor witnessed Askari drop it. Likewise, we held that the trial court properly found a lack of good cause for review of records related to categories of misconduct that were irrelevant to the misconduct alleged by Askari. However, we concluded that Askari’s motion established good cause for an in camera review of Detective Kanchanamongkol’s and Officer Ortega’s records for information relating to falsified police reports, planted evidence, or perjury.
Accordingly, we conditionally reversed the judgment and remanded the matter for an in camera review of the relevant records. We ordered: “If no relevant information is contained in the officers’ records, the trial court is to reinstate the judgment and sentence. [Citations.] If the trial court determines that relevant discoverable information exists, it must order disclosure, allow Askari an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. [Citations.] If Askari is unable to show prejudice, the trial court is to reinstate the judgment and sentence. [Citations.]” (People v. Askari, supra, B209061, at pp. 12-13; see People v. Gaines (2009) 46 Cal.4th 172, 176; People v. Hustead (1999) 74 Cal.App.4th 410, 419; People v Johnson (2004) 118 Cal.App.4th 292, 304-305.)
3. Proceedings on remand.
On remand, the trial court conducted the in camera review as directed and ordered disclosure of certain information. Askari subsequently filed a motion for a new trial based on the new information. Appended to that motion was counsel’s unsworn declaration, which stated the following. Counsel interviewed Jeffrey Wallace, one of the persons located as a result of the Pitchess disclosure, at the Pitchess Detention Center. “Upon information and belief, ” counsel averred the following. Wallace had filed a complaint against Detective Kanchanamongkol related to an incident that occurred on September 21, 2006. According to Wallace, on that date he was in the area of 5th and Crocker Streets in Los Angeles, when he was accused of selling drugs by Officer Rubalcava and Detective Kanchanamongkol. Rubalcava stated that Wallace gave him drugs in exchange for cash, and Kanchanamongkol stated that he saw Wallace drop the “ ‘buy money.’ ” Wallace denied taking or dropping money, or giving Rubalcava drugs. Wallace had filed a complaint because he “felt the officers involved lied and made false claims in the reporting of the case.”
Counsel’s declaration explained that none of the information relayed was a direct quotation; she had been unable to tape record the conversation in the jail; and she took very few notes, because Wallace was hesitant to speak to her. He had refused to speak to a defense investigator.
In his new trial motion, Askari urged that had Wallace testified at his trial, a more favorable outcome was reasonably probable. Wallace’s testimony would have “added weight to the defense theory” and would have supported Askari’s testimony that the officers were lying when they claimed they saw him drop something. In Askari’s view, Wallace’s testimony, coupled with his own, would have balanced out that of the two officers. Askari urged that the jury would have been more likely to believe his account of what transpired had it heard that Kanchanamongkol had “a history of lying in the same manner in the same area about the same topic.”
The People argued that (1) the new trial motion was defective because Askari had failed to produce an affidavit from Wallace, as required by section 1181; (2) Wallace had been very reluctant to speak with defense counsel, making it merely speculative that he would actually testify as the defense hoped; and (3) assuming that Wallace’s testimony was credited by the jury, in order to render a verdict more favorable for Askari, jurors would have had to disbelieve not only Detective Kanchanamongkol, but also two other officers.
The trial court denied the motion. The court opined that the jury had not found Askari’s self-serving trial testimony believable; officers besides Kanchanamongkol had been present; and because Wallace was in custody his credibility was likely to be impeached at trial. There was, therefore, no reasonable probability of a different outcome even had Wallace testified. Defense counsel queried whether the court’s ruling was influenced by the fact Wallace had not provided an affidavit. Counsel requested that, if such was the case, the defense be given an opportunity to obtain an affidavit or have Wallace testify at the new trial hearing. The trial court responded, “I don’t think that would make a difference if you had his affidavit. That’s part of it. But I mostly believe that the jury didn’t believe Mr. Askari. [¶]... [¶]... I don’t think that the outcome would have been different even if the witness had come to court, ” in light of Wallace’s criminal history and the fact a second officer had observed Askari drop the narcotics.
DISCUSSION
1. The trial court properly denied Askari’s new trial motion.
a. Applicable legal principles.
A finding that Pitchess evidence has been erroneously withheld does not invariably mean that a defendant’s due process rights have been infringed. (People v. Gaines, supra, 46 Cal.4th at p. 183.) It is “ ‘settled that an accused must demonstrate that prejudice resulted from a trial court’s error in denying discovery.’ ” (Id. at p. 181.) A trial court’s “failure to disclose relevant information in confidential personnel files, like other discovery errors, is reversible” only if the defendant demonstrates a “reasonable probability of a different result had the information been disclosed” (id. at pp. 176, 182), the familiar standard applied to claims the prosecution improperly withheld exculpatory evidence in violation of Brady v. Maryland (1963) 373 U.S. 83. (People v. Gaines, supra, at p. 183.) To establish a due process violation, a defendant must do more than show that helpful evidence was withheld. (People v. Gaines, supra, at p. 183.) The failure to disclose amounts to a constitutional violation requiring reversal “ ‘only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.’ [Citations.]” (Id.at pp. 184-185.) When considering this question, a reviewing court must “ ‘ “consider the non-disclosure dynamically, taking into account the range of predictable impacts on trial strategy.” ’ [Citation.]” (Id. at p. 184.)
A trial court’s ruling on a new trial motion, brought on the basis of newly discovered evidence, is reviewed for abuse of discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 308.) However, Askari argues that independent review is appropriate when a defendant moves for a new trial after a court erroneously denies Pitchess discovery. He points out that Gaines adopted the prejudice test applicable to Brady error, and Brady claims are subject to independent review. (See People v. Salazar (2005) 35 Cal.4th 1031, 1042; People v. Uribe (2008) 162 Cal.App.4th 1457, 1473.) By parity of reasoning, he suggests, an appellate court should exercise independent review on the analogous issues presented here. We conclude that, whether subject to independent review or an abuse of discretion test, the result is the same: the trial court’s ruling was correct.
b. Section 1181, subdivision (8) and failure to grant continuance.
Preliminarily we address (1) the People’s contention that Askari’s motion was procedurally defective because it was unsupported by Wallace’s affidavit, and (2) Askari’s related contentions that section 1181 was inapplicable, and in any event the trial court failed to grant a continuance to allow him to obtain such an affidavit.
Section 1181, subdivision (8) provides in pertinent part: “When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.”
The People urge that Askari’s motion was fatally flawed because it did not comply with section 1181, in that Askari did not produce an affidavit executed by Wallace, or indeed any affidavits whatsoever. Askari counters that section1181 is inapplicable where the evidence was not disclosed prior to trial due to court or prosecutorial error. Alternatively, he urges that if an affidavit was required the trial court should have granted a continuance to allow him to cure the flaw, both as matter of fundamental fairness and in compliance with section 1181. (See § 1181, subd. (8) [expressly providing for postponement of a new trial hearing to allow affidavits to be procured].) He faults the People for failing to clearly challenge the motion on technical grounds in their written opposition below, and contends the timing of the People’s opposition below was disadvantageous to him. To the extent the trial court’s ruling was based on his failure to secure Wallace’s affidavit, he asserts, the matter should now be remanded so he can obtain the affidavit and the trial court can reconsider its ruling.
We need not resolve the parties’ contentions on these points, because the trial court did not base its ruling primarily on the absence of Wallace’s affidavit. To the contrary, although the trial court stated that its denial of the motion was partly based on this ground, the court expressly held that it would not have ruled differently even had the affidavit in question been filed. It explained: “I don’t think that would make a difference if you had his affidavit. That’s part of it. But I mostly believe that the jury didn’t believe Mr. Askari.” Given the court’s analysis, a continuance so the defense could obtain an affidavit would have been pointless, as would a remand for reconsideration now. (See generally People v. Beeler (1995) 9 Cal.4th 953, 1003 [an “important factor for a trial court to consider” when deciding whether to grant a continuance is “whether a continuance would be useful”]; People v. Gutierrez (2003) 29 Cal.4th 1196, 1205 [“ ‘Busy trial courts need not engage in idle acts’ ”].)
c. The motion was properly denied on the merits.
Apart from the question of the alleged procedural deficiency, the motion was properly denied because Askari failed to demonstrate a reasonable probability of a different result had Wallace testified at trial. There was no dispute that Askari was addicted to cocaine. There was no dispute he was present in an area known for narcotics sales and use, and had no innocent explanation for his presence there. He admitted using cocaine just prior to the arrival of police, as well as during the preceding days. A crack pipe was found on his person. He admittedly panicked and ran immediately upon observing the arrival of police vehicles. Under these circumstances, jurors were unlikely to put much stock in Askari’s testimony that he had no cocaine when he fled from police.
Furthermore, Detective Kanchanamongkol was not the only officer who observed Askari drop the cocaine; Officer Ortega observed Askari’s actions as well. Within minutes of Askari’s flight, Ortega and Kanchanamongkol each retrieved rocks of cocaine in the area where they claimed to have seen Askari drop them. Those rocks were then given to another officer, Jackson. Wallace was not a witness to the incident; his story did not directly rebut the officers’ testimony. If credited by the jury, Wallace’s account would, of course, have impeached Detective Kanchanamongkol’s character for truthfulness, potentially suggesting Kanchanamongkol was prone to lie under similar circumstances. However, in order to conclude Kanchanamongkol’s testimony was a fabrication in the instant case, jurors would have been required to find not only that Kanchanamongkol was lying, but also that Officer Ortega was untruthful. Further, cocaine was actually recovered at the scene. Therefore, in order for Wallace’s testimony to have influenced the outcome, jurors would have had to conclude either that Officer Jackson was also lying about receiving the cocaine from Kanchanamongkol and Ortega, or that Kanchanamongkol and Ortega were not only lying but also carried spare rocks of cocaine on their persons in order to plant the drug should an opportunity arise. Given the totality of the evidence, the failure to disclose Wallace’s information prior to trial does not undermine confidence in the outcome. There is no reasonable probability of a different result had Wallace testified at trial.
Askari urges that Wallace’s testimony would have made a difference for a variety of reasons. He suggests that Wallace’s account had particular persuasive value due to the “striking similarity” between the Wallace incident and the instant matter. The Wallace incident purportedly transpired in the “same general skid row area of Los Angeles, ” only a year and a half before Askari’s arrest. Detective Kanchanamongkol allegedly committed the same misconduct in both instances, that is, lying about seeing a suspect drop incriminating evidence. Askari points out that the rocks of cocaine at issue were very small, it was nighttime, and Kanchanamongkol did not pick up the cocaine immediately, undercutting the veracity of his testimony that he saw the cocaine dropped and was able to return to the precise spot to retrieve the rocks. Further, during deliberations, the jury sent a question asking whether Kanchanamongkol had testified to reviewing the case file before testifying. In Askari’s view, the jury’s question indicated it was concerned about Kanchanamongkol’s testimony. Jurors would likely have given less credence to Kanchanamongkol’s testimony had they heard evidence he lied under similar circumstances. According to Askari, the addition of Wallace’s testimony to his own denial that he possessed cocaine, coupled with Officer Paterson’s testimony that he did not see Askari drop anything, would likely have countered Kanchanamongkol’s and Ortega’s contrary account, making a more favorable result reasonably probable. Askari’s arguments are not without some force, but in our view they do not carry the day. While Wallace’s testimony might well have been helpful to the defense, that is not enough. (See People v. Gaines, supra, 46 Cal.4th at p. 183.)
Askari makes a variety of other points in support of his argument, none persuasive. Relying on the principle that “the effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others” (Kyles v. Whitley (1995) 514 U.S. 419, 445), he suggests we should discount the fact Officer Ortega also testified to seeing Askari drop the cocaine. But neither Kyles nor United States v. Agurs (1976) 427 U.S. 97, 112-113, the authorities cited by Askari, require that we disregard or minimize the significance of Ortega’s testimony. Both Kyles and Agurs hold that in determining Brady error, the omission must be evaluated in the context of the entire record, the approach we have employed here. (Agurs, at p. 112; Kyles, at pp. 436, 460.) Moreover, the facts in Kyles and the hypothetical given in Agurs are entirely unlike the circumstances of the instant case.
In Kyles, a woman was shot and killed in a grocery store parking lot, and the assailant drove away in her car. Several eyewitnesses described the shooter, but their descriptions varied in highly significant respects, a fact that was never disclosed to the defense. Two days after the murder, police were contacted by “Beanie, ” an acquaintance of the defendant. Beanie––who, the evidence suggested, might well have been the actual killer––gave police a variety of inconsistent stories implicating Kyles. Much of the evidence suggesting Beanie’s unreliability was not disclosed to the defense. Undisclosed evidence also suggested Beanie had attempted to frame Kyles by planting incriminating items in his home and in his trash. By the time of trial, one of the state’s eyewitnesses had significantly changed his story to favor the prosecution and another had given a description of the perpetrator that did not fit Kyles, facts that were not apparent to the defense because the original witness statements had not been produced. Two other eyewitnesses had viewed the gunman only as he fled the scene, with his body partly concealed in the victim’s car. In this context, the court observed that a new trial was required even though the undisclosed evidence did not directly impeach the latter two eyewitnesses. (Kyles v. Whitley, supra, 514 U.S. at pp. 450, 454.)
Askari next complains that the failure to disclose Pitchess information regarding Wallace had a detrimental effect on other aspects of the defense case. Askari’s argument runs as follows. During cross-examination, Detective Kanchanamongkol denied knowing whether L.A.P.D. surveillance cameras were present on San Julian Street between 5th and 6th Streets. Thereafter, the defense sought to impeach Kanchanamongkol by introducing the testimony of a deputy public defender, Alla Eksler, that in September 2007 Kanchanamongkol had told her he was aware of video cameras located at Fifth and San Julian. The trial court excluded the Eksler testimony, reasoning it was irrelevant and speculative. Askari posits that, had the court been aware of Wallace’s allegation that Kanchanamongkol had purportedly lied on another occasion, the court would have been more inclined to allow Eksler’s testimony. We disagree. The trial court’s exclusion of Eksler’s testimony did not hinge on the existence, or nonexistence, of other impeachment evidence. To the contrary, the court’s ruling was rooted in different grounds. Nothing in the record suggests the court would have admitted Eksler’s testimony had it been aware of Wallace’s unrelated allegation.
The defense hoped to show that L.A.P.D. cameras could have taped the incident, but the officers chose not to use the cameras “because their behavior [was] such that they would not want it videotaped.” The prosecutor represented that she had made inquiries and no L.A.P.D. cameras were located on San Julian Street.
Askari does not challenge the trial court’s exclusion of Eksler’s testimony, and we do not consider whether the court’s ruling on this point was correct.
Next, Askari faults the trial court for assuming that Wallace’s credibility would be suspect because he was incarcerated. The court reasoned that because Wallace was apparently incarcerated at the Pitchess Detention Center, “even if he had [testified], he would have had to say what his prior criminal history is.” We agree with Askari that the court’s assumption was unwarranted. In general, a witness may be impeached with prior offenses or misconduct only if they involve moral turpitude. (People v. Rivera (2003) 107 Cal.App.4th 1374, 1379-1380; see generally People v. Harris (2005) 37 Cal.4th 310, 337.) Here, the reasons for Wallace’s incarceration, and the nature of his prior conviction(s), if any, were not revealed by the record. However, the trial court’s misstep was of no consequence. Wallace’s criminal history was only one of several factors cited by the trial court. In any event, it is well settled that “ ‘ “ ‘a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ ” ’ [Citation].” (People v. Geier (2007) 41 Cal.4th 555, 582; People v. Hollie (2010) 180 Cal.App.4th 1262, 1271-1272.)
Finally, Askari contends the trial court employed the incorrect analytical framework when evaluating the new trial motion. He states, accurately, that when a trial court erroneously denies a Pitchess motion the error is reversible only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the trial would have been different. (People v. Gaines, supra, 46 Cal.4th at pp. 176, 183; see also People v. Letner and Tobin (2010) 50 Cal.4th 99, 176 [applying same standard of prejudice in a Brady case]; Kyles v. Whitley, supra, 514 U.S. at p. 433.) Askari contrasts this standard with that applicable when a defendant seeks a new trial under section 1181, that is, when “ ‘new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.’ ” (People v. Cua (2011) 191 Cal.App.4th 582, 608.) Among other things, to establish entitlement to a new trial under section 1181 a defendant must show the evidence is such as to render a different result probable on retrial. (People v. Verdugo, supra, 50 Cal.4th at p. 308; People v. Delgado (1993) 5 Cal.4th 312, 328.) Askari argues that these are two distinct standards, one “retrospective” and the other “prospective, ” with the former being more “lenient” to the defense. (See generally United States v. Bagley (1985) 473 U.S. 667, 680-681.)
Askari posits that “[t]here is some ambiguity” regarding which standard the trial court used here. He points out that section 1181 was referenced in the parties’ papers below, as well as raised at oral argument. He also urges that the court’s ruling was influenced by its consideration of whether Wallace would actually testify at a new trial or not. During the hearing, the prosecutor argued that since Wallace was a reluctant witness at best, “what is to say that he would definitely come in here and testify to some of the things that he told [defense counsel]?” Askari urges that the matter must be remanded so the trial court may “unambiguously consider the matter retrospectively[.]”
We disagree. First, we are hard pressed to discern how, given the facts and the record in the instant matter, the distinction between “retrospective and “prospective” analysis makes any practical difference. But assuming arguendo the distinction is significant, the record makes clear that the trial court engaged in a “retrospective” analysis. The court stated, for example, “I don’t think that the outcome would have been different even if [Wallace] had come to court”; Wallace’s testimony would not have “changed the outcome of this case because there were other officers present”; and “I don’t believe that this possible witness, even if he had testified, there would have been a reasonable probability of a different outcome.” These statements clearly show the trial court applied the correct standard, that is, whether the result of the trial would have been different if the evidence had been disclosed to the defense. (People v. Gaines, supra, 46 Cal.4th at pp. 176, 183.) There was no error.
2. Review of in camera Pitchess examination.
As noted, in Askari’s first appeal, we instructed the trial court to conduct an in camera review of the records of Detective Kanchanamongkol and Officer Ortega for information related to falsified police reports, planted evidence, or perjury. (People v. Askari, supra, B209061, at p. 12.) On remand, the trial court conducted the in camera review. It determined that some discoverable material existed, and ordered disclosure pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. Askari requests that we review the sealed record of the trial court’s Pitchess review to determine whether the trial court abused its discretion by failing to order additional disclosure of information.
Trial courts are vested with broad discretion when ruling on motions to discover peace officer records (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial court's ruling for abuse of discretion. (People v. Mooc, supra, 26 Cal.4th at p. 1228; People v. Hughes (2002) 27 Cal.4th 287, 330.) We have reviewed the sealed transcript of the in camera hearing conducted on remand on July 8, 2009. That transcript constitutes an adequate record of the trial court’s review of any documents provided to it, and reveals no abuse of discretion.
DISPOSITION
The judgment is reinstated and affirmed.
We concur: KLEIN, P. J.KITCHING, J.
In the cited portion of Agurs, the court observed that when examining an alleged Brady violation, the omitted evidence must be evaluated in the context of the entire record. (United States v. Agurs, supra, 427 U.S. at p. 112.) The court illustrated its point with the following hypothetical examples. If one of only two eyewitnesses to a crime told the prosecutor the defendant was definitely not the perpetrator, nondisclosure of the witness’s statement would clearly require a new trial. Conversely, if 49 of 50 eyewitnesses testified that the defendant was the perpetrator, but the prosecution failed to disclose that the 50th eyewitness––who had not been wearing his badly needed glasses––was unsure, the result might be different. (Id. at pp. 112-113, fn. 21.) As is readily apparent, here neither the quantity nor quality of omitted evidence resembles that at issue in Kyles, nor is it akin to the Agurs hypothetical.