Opinion
F055655
7-8-2009
THE PEOPLE, Plaintiff and Respondent, v. HAROLD SCOTT BALL, Defendant and Appellant.
J. Wilder Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
After learning during trial that a prosecution eyewitness would testify that defendant Harold Scott Ball was not the perpetrator of the attack charged in this case, the prosecutor told the witness she could go home. The defense did not find out until after the close of evidence. Despite the prosecutors agreement that she made a mistake entitling Ball to relief, the trial court refused to reopen the case or grant a new trial, saying, "the jury ... would not have believed" the witness. Ball was convicted of willful infliction of corporal injury on a spouse or cohabitant.
The prosecutions failure to disclose the witnesss statement denied Ball due process of law under Brady v. Maryland (1963) 373 U.S. 83. The court also erred in failing to obtain waivers of Balls rights before accepting his admission of facts supporting a sentence enhancement. We reverse the judgment.
FACTUAL AND PROCEDURAL HISTORIES
The victim, Toni Sanders, was at her friend Ginger Caywoods house on February 1, 2008, drinking alcohol and using methamphetamine. Also present were Caywoods daughter Lacey ONeal and Caywoods friend Amy Wilson. Wilson informed Sanders that someone named Scott was at the door for her. Sanders went to see him.
According to Sanders, the man at the door was Ball, her boyfriend, with whom she had been having a dispute over, among other things, wages she said she was owed for acting as his home health aide. Ball was injured in a motorcycle accident in August 2007 and usually walked with a cane or walker.
Sanders testified that Ball pulled her outside, beat her, threatened her with a knife, ordered her to get in his car, chased her with his car when she ran away, and tried to drag her into the car when he caught up with her. When she finally escaped and got back inside Caywoods house, according to her testimony, Ball drove up next to her car, got out, and slashed her tires. Sanders did not call the police; Caywood and ONeal did so. In addition, Sanders did not seek medical attention, but instead asked a friend with medical training to stitch a gash on her cheek that had been caused by one of Balls punches. Sanders also testified that Ball had committed other violent acts against her, including a blow in October 2007 that caused a facial injury requiring stitches. She did not, however, report these incidents because she did not want him to get into trouble.
The district attorney filed an information charging four counts relating to the events of February 1, 2008: (1) attempted kidnapping (Pen. Code, §§ 207, subd. (a), 664); (2) willful infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)); (3) assault with a deadly weapon (§ 245, subd. (a)(1)); and (4) making a criminal threat (§ 422). A fifth count alleged infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) on October 12, 2007. For purposes of sentence enhancement under section 667.5, the information alleged that Ball had previously been convicted of willfully inflicting corporal injury on a child (§ 273d) and had served a prison term for that offense.
At trial, only two eyewitnesses besides Sanders testified about the events of February 1, 2008: Caywood and ONeal. Both testified as prosecution witnesses but neither said Ball was the assailant. Caywood recalled that Amy Wilson answered the door and said the person had identified himself as Scott Ball. The man Caywood saw at the door had blond or dirty-blond, shoulder-length hair and facial hair, and stood about 5 feet 10 or 11 inches tall. Ball has brown hair and is six feet two inches tall. Caywood testified that the man was not Ball, whom she met for the first time later, and that the assailant was not in the courtroom. Caywood failed to corroborate other parts of Sanderss testimony as well. Caywood said that, after the assailant began punching Sanders at the door, Caywood distracted him and Sanders ran away. Then the assailant left and Sanders came back alone. Caywood said she never saw the assailant chasing Sanders. She asserted that Sanders was "a shit starter." A police officer, however, testified that, on the night of the incident, Caywood gave a statement describing the assailant threatening Sanders with a knife and chasing her with a car. Sanders testified that she heard Caywood had entered into some kind of relationship with Ball after the incident and lived with Ball for awhile, but Caywood denied this occurred.
ONeals testimony was very brief. She said she called 911 on February 1, 2008, "[b]ecause of the incident that happened at the house." She did not describe the incident except to say that Sanders had "gotten into an argument or dispute with her boyfriend and I guess it followed to my moms house." ONeal was never asked to identify the assailant.
Testimony about the assailants car gave mixed support to the claim that Ball was the assailant. Sanders said the car was Balls plum-colored Hyundai Sonata. Caywood said she never saw a car. ONeal testified that she saw the assailant pull away but did not get a good look at the car; it looked purple or reddish to her, but her report to the 911 operator that it was a purple Sonata was based only on Sanderss statement to her. A police officer who went to Balls home that night found his purple Hyundai there. The hood felt warm. Ball told the officer that his niece had just driven it to get something to eat. Kelly Azevedo, who replaced Sanders as Balls home health aide, testified that she drove Balls niece to McDonalds sometime between 8:30 and 9:15 that night in Balls Sonata. The police received the 911 call at around 9:30.
Azevedo also testified that, after Balls arrest that night, he called her from jail and asked her to go check on his house. She went around midnight and found Sanders there with a man 5 feet 9 or 5 feet 10 inches tall, with blond shoulder-length hair and a goatee. They were taking boxes and bags from the house and loading them into a truck. Inside, the house looked "ransacked." Azevedo believed the boxes and bags had been packed by members of Balls family and contained belongings of Balls aunt, who recently had died. Sanders testified that she went to Balls house, where she had been living, the morning after the incident to get her clothes.
Much of the police testimony appeared to imply that all the eyewitnesses believed Ball was the assailant. The investigating officer testified, for example, that "they witnessed ... Mr. Ball hit or strike the victim," and that "[t]hey told me that they witnessed Mr. Ball driving off the roadway on to the curb and nearly strike the victim with the vehicle." He said the witnesses referred to the assailant as Harold. The officer also said he was told that, after one witness answered the door, she announced that Ball was there; this partially confirmed Sanderss testimony that Wilson announced that someone she did not know, calling himself Scott, was at the door. When questioned directly on the subject, however, the officer testified that Sanders was the only witness the police ever asked to make a positive identification of the assailant.
Balls friend John Petz testified about the facial injury Sanders sustained in October 2007. He said he was talking with Ball in Balls living room one day when, from the garage, he "heard like stumble, like a ooh, you know what I mean?" He said Sanders told him she had tripped and fallen and asked him to take her to a dentist, because she had knocked a tooth loose. He did not see Ball hit her that day. Sanders testified that she thought Petz saw Ball hit her that day.
The defense rested on May 21, 2008, at 10:10 a.m. After the jury was excused, Azevedo entered the courtroom and asked defense counsel to come out to the hallway, where Azevedo introduced counsel to Amy Wilson, the eyewitness who had not testified. Wilson told counsel she had come to the courthouse at the beginning of the day pursuant to the prosecutions subpoena and met with the prosecutor. The prosecutor pointed out Ball, and Wilson told her he was not the perpetrator of the February 1, 2008, attack. The prosecutor told her she would not need to testify and could go home. The prosecutor did not inform defense counsel of Wilsons statement. Wilson left, but came back to tell defense counsel what had happened. The prosecutor admitted it and said her failure to tell defense counsel was unintentional. She and defense counsel went to see the trial judge in his chambers, and both asked him to reopen the case so Wilson could testify. The court denied the request.
The jury found Ball guilty of count two, willful infliction on February 1, 2008, of corporal injury on a spouse or cohabitant. It found him not guilty of the remaining charges. Ball admitted the prior conviction and prison term.
Ball filed a motion for a new trial on count two, arguing that the prosecutors failure to disclose Wilsons exculpatory statement contravened Brady v. Maryland, supra, 373 U.S. 83, that the prosecutor committed misconduct by not disclosing the statement, and that the trial court erred in refusing to reopen the case to allow Wilson to testify. The prosecutor declined to file a response to the motion and at the hearing admitted a new trial was necessary: "I think legally I would agree that a Motion For A New Trial should be granted ...." She said she released Wilson from her subpoena because she thought Wilson would give false testimony; but she admitted she should have told defense counsel about Wilsons statement and failed to do so through neglect.
The court denied the motion. Although only Caywood stated that Ball was not the perpetrator, the court mistakenly stated that both Caywood and ONeal testified "in a manner favorably to Mr. Ball ...." The court went on: "[S]till the jury did not believe them. The Court is not persuaded that a third witness saying the same thing would have made any difference to the jury." The court repeated three more times that there were two witnesses who said Ball was not the assailant. It stated that a third witness saying the same thing would be "superfluous" and "repetitive." Even after defense counsel pointed out that ONeal did not, in fact, testify about the identity of the assailant, the court said:
"Okay. And based on the jurys finding, its the Courts opinion the jury still would not have believed it. If they didnt believe two people, I dont think they would have believed three so I will deny the motion for a new trial."
The court expressed surprise that the prosecutor did not oppose the motion. It faulted defense counsel for not finding out what Wilsons testimony would be and subpoenaing her as a defense witness.
Ball received the middle term of three years for count two. He received an additional year for the prior prison-term enhancement.
DISCUSSION
I. Brady violation
"[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady v. Maryland, supra, 373 U.S. at p. 87.) The prosecutions duty to disclose applies regardless of whether or not the defense has requested the evidence. (Strickler v. Greene (1999) 527 U.S. 263, 280.) As the Supreme Court has explained, a Brady violation has three components:
"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, supra, 527 U.S. at pp. 281-282.)
Prejudice ensued if the undisclosed evidence is material; the evidence is material if there is a reasonable probability that its disclosure would have led to a different result. (Strickler v. Greene, supra, 527 U.S. at p. 281.) Our task is not to determine whether the evidence was still sufficient to support the judgment after discounting the inculpatory evidence to take account of the undisclosed favorable evidence; it is instead "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." (Id. at p. 290.)
There is no doubt that Wilsons statement that Ball was not the assailant was favorable to Ball and no doubt that the prosecution suppressed it, inadvertently at least, by sending Wilson away without telling defense counsel what happened. Further, Wilsons statement was material evidence and there is a reasonable probability that the outcome would have been different if she had testified. Only two witnesses testified about the identity of the assailant. Sanders said it was Ball. Caywood said it was not Ball. Although Caywoods testimony contradicted some of the statements she made to police, there was no evidence that she ever positively identified Ball as the assailant at any time. The jury apparently rejected major portions of Sanderss testimony, finding that Ball did not assault her with a deadly weapon, attempt to kidnap her, or make a criminal threat to her; it also found she was not telling the truth when she testified that Ball hit her in October 2007. The jury believed Sanders and disbelieved Caywood about the identity of the person who came to Caywoods house and attacked Sanders, but in light of the jurys other conclusions, it is reasonably probable that another eyewitnesss denial of Sanderss account would have changed the jurors minds. We are not persuaded by the trial courts view, reiterated by the People on appeal, that Wilsons testimony would have been cumulative and would have added little to the sum total of evidence presented to the jury. The prosecutors failure to disclose Wilsons statement was a denial of Balls due process rights and requires reversal.
Ball also argues that the court erred in refusing to reopen the case as requested the day the defense rested and in denying the motion for a new trial he filed after the verdict. He further contends that defense counsel provided ineffective assistance because counsel should have learned in advance that Wilson would testify favorably and should have subpoenaed her as a defense witness. Because we are reversing the conviction on Brady grounds, we need not separately analyze these additional claims.
II. Failure to make advisements and obtain waivers before accepting admission
On the morning of the final day of testimony, before the jury came in for the prosecutions last witness, defense counsel raised the question of whether Ball would admit that he had a prior conviction and prison term or would require a trial on that issue. The court granted a short recess, during which counsel discussed the question with Ball. Counsel returned and the following discussion took place:
"[Defense counsel]: Hes willing—hes only charged with a single prison prior I believe in the Information. Hes willing to admit to it outside of the presence of the jury and I guess forestall the necessity of a possible bifurcated trial.
"THE COURT: All right. [¶] Mr. Ball, it is alleged pursuant to Penal Code Section 667.5(b) that you have suffered the following prior conviction:
"On November 16th of 1995 for violation of Section 273d of the Penal Code, a felony, in Fresno Superior Court, Case Number 536721-4, and that a term was served as described in Penal Code Section 667.5 for that offense, and that you did not remain free of prison custody for and did commit an offense resulting [in] a felony conviction during a period of five years subsequent to the conclusion of that term.
"Do you admit that, that would be subject to a conviction in this case if it were such?
"[Defense counsel]: Yes.
"THE COURT: Do you admit that?
"[Defendant]: Yes, sir.
"THE COURT: Counsel joins?
"[Defense counsel]: Yes, Your Honor.
"THE COURT: All right, thank you. [¶] Bring the jury back in?"
The court did not advise Ball on the record of his rights to have the question of his prior conviction and prison term tried to a jury, to remain silent about it, or to confront witnesses on the issue. He did not waive any of these rights on the record.
Before a trial court may accept a defendants plea of guilty to an offense, the court is required to advise the defendant, and obtain the defendants voluntary and intelligent waivers, of his rights to be tried by jury, to remain silent, and to confront adverse witnesses. This must be done on the record. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244; In re Tahl (1969) 1 Cal.3d 122, 132.) The California Supreme Court has held that the same requirements apply to a defendants admission of a prior conviction. (In re Yurko (1974) 10 Cal.3d 857, 863; see also People v. Mosby (2004) 33 Cal.4th 353, 360 [court assumes Boykin/Tahl requirements apply to prior conviction admissions where defendant has right to jury trial under state law, despite holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, that there is no federal constitutional right to jury trial for prior-conviction allegation].) If the trial court fails to advise and obtain waivers, however, its failure is harmless if the totality of the circumstances shows the admission and waiver were voluntary and intelligent. (People v. Mosby, supra, at pp. 360-361; People v. Howard (1992) 1 Cal.4th 1132, 1175.)
The People argue that the admission was voluntary and intelligent under the totality of the circumstances because Ball was in the midst of a jury trial, saw his counsel cross-examine adverse witnesses, and would later exercise his right to remain silent while his counsel presented his defense. He must have been aware of his rights and must have knowingly waived them, the People say.
This is unpersuasive. There is no evidence Ball understood that all the rights he had with respect to the substantive offenses also applied to the prior conviction and prison-term allegations. This is, of course, far from obvious to a nonlawyer. In fact, the United States Supreme Court has held that the federal Constitution protects no such rights with respect to an allegation of a prior conviction (Apprendi v. New Jersey, supra, 530 U.S. at p. 490), so these rights are protected only by state law. This case is unlike People v. Mosby, supra, 33 Cal.4th at pages 364-365, in which our Supreme Court viewed the fact that the defendant had just undergone a jury trial in which he exercised his rights as supporting the view that he understood his rights in the context of a prior-conviction allegation. Mosby was not told he had a right to remain silent and confront witnesses, but the court did inform him of and ask him to waive his right to a jury trial on the prior. He also had pleaded guilty and received Boykin/Tahl advisements in a previous case. There is no similar record here.
As the People point out, Ball was present when his counsel said, "[I]n the event the jury finds against him on the princip[al] charges, hes also entitled to a jury trial or a court trial as to whether he suffered the prison prior thats alleged in the Information." We have found no authority, and the People have cited none, however, according to which a sufficient advisement can be found because defense counsel—but not the court—mentioned one of the three Boykin/Tahl rights.
It is also true that Ball had prior experience with the criminal justice system and that this sometimes supports a conclusion that a defendant knew his rights. (People v. Mosby, supra, 33 Cal.4th at p. 365.) Unlike in Mosby, however, here there is no evidence that Ball ever received Boykin/Tahl advisements in a previous case and, even if he did, no basis for a conclusion that he knew those rights applied to prior-conviction allegations.
Further, even if Ball did know what his rights were in this context, nothing shows that he voluntarily and intelligently waived them. In this regard, this case is indistinguishable from People v. Johnson (1993) 15 Cal.App.4th 169, which the Mosby court discussed. (People v. Mosby, supra, 33 Cal.4th at p. 362.) In Johnson, as here, the defendant was tried by jury on the substantive offenses and then admitted to priors without being given advisements by the court of any of the three Boykin/Tahl rights. The Supreme Court used this as an example of a case in which "the defendant was not advised of the right to have a trial on an alleged prior conviction" and a reviewing court "cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (People v. Mosby, supra, at p. 362.) The determination that Ball had the prior conviction and prison term, based on his admission, must be reversed.
III. Business and Professions Code section 6086.7
Business and Professions Code section 6086.7, subdivision (a)(2), requires us to notify the State Bar "[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney." We have considered whether the prosecutors failure to disclose witness Wilsons exculpatory statement to the defense, upon which we base the reversal of the judgment, constituted misconduct we must report.
We conclude it did not. A Brady violation does not necessarily constitute prosecutorial misconduct as that term is used in the case law, for a Brady violation may arise from an inadvertent failure to provide information, while prosecutorial misconduct amounting to grounds for reversal must be behavior that is "egregious." (People v. Harris (1989) 47 Cal.3d 1047, 1084.) Here, the prosecutor admitted her error on the day of the violation, when defense counsel asked to reopen the case, and again later, when defendant moved for a new trial. She told the court the nondisclosure was inadvertent. True, she did not admit what happened until after defense counsel found out about it independently, and there is no way to rule out the possibility that she never would have told otherwise. This mere possibility, however, is not enough. Our reversal is based on a Brady violation, but we cannot, upon this record, say it is based on attorney misconduct.
Ball makes an argument, separate from his Brady argument, that the prosecutor committed reversible misconduct because she contravened a court order by telling Wilson she could go home. This contention is based on the fact that Wilson had reported to the court on May 19 pursuant to the prosecutors subpoena, but she did not testify that day and the court ordered her to return on May 21. It was on May 21 that the prosecutor told Wilson she could leave. It is unnecessary to reach this claim because our holding on the Brady issue (and the Boykin/Tahl issue) suffices to dispose of the case. This means the reversal of the judgment is not "based in whole or in part" (Bus. & Prof. Code, § 6086.7, subd. (a)(2)) on the independent claim of misconduct.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further proceedings.
WE CONCUR:
Vartabedian, Acting P.J.
Hill, J. --------------- Notes: Subsequent statutory references are to the Penal Code unless indicated otherwise.