Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA328073, Michael Pastor, Judge.
Landra E. Rosenthal, 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, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Bourgeois appeals his convictions for murder (Pen. Code, § 187), attempted murder (§§ 187/664), attempted robbery (§§ 211/664), and burglary (§ 459), contending that they should be reversed because the prosecution failed to disclose exculpatory evidence as required by Brady v. Maryland (1963) 373 U.S. 83 (Brady). We affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 19, 2007, Rodney Bourgeois entered the Limelite Liquor Store, picked up a container of milk, and asked cashier Vladimir Akkerman its price. Bourgeois stepped away and set the milk down, and then held Akkerman’s co-worker Pulod Davlatnazarof at gunpoint, demanding money.
Akkerman was unable to calm Bourgeois. He saw Bourgeois shoot Davlatnazarof, and then Bourgeois shot him in the stomach. Bourgeois fled. Akkerman called the police and pushed the silent alarm. Davlatnazarof died from a gunshot to the neck and head, and Akkerman spent three months in the hospital recovering from his injuries.
The incident was recorded on surveillance video. Police recovered a container of milk from a shelf near the cold storage area where the milk was kept. The milk container was swabbed for DNA at the crime lab by criminalist Elizabeth Swanson.
Buccal swabs for DNA were taken from store employee Yeusef Khutoryanskiy (who had stocked the shelves with milk) and from Bourgeois. Criminalist Stephanie McLean analyzed the DNA on the swabs and found that the milk carton had on it DNA from at least two individuals. The DNA’s minor profile was consistent with Khutoryanskiy and the major profile matched the sample obtained from Bourgeois. The frequency associated with the match with Bourgeois was one in one quintillion.
At trial, Bourgeois was identified as the shooter by Akkerman, and the videotape of the incident was played for the jury. Bourgeois was convicted of first degree murder, attempted murder, attempted robbery, and burglary. He moved for a new trial after learning that Swanson, the criminologist who had swabbed the milk container for DNA, had been suspended from DNA extraction analysis—information that had not previously been disclosed by the prosecution.
The court conducted a hearing on the motion for new trial at which a supervising criminalist, Harry Klann, Jr., testified about the deficiencies in Swanson’s work and the actions that were taken as a result. Swanson had submitted five quality control reports between April 2004 and July 2005 in which she had detected and reported anomalies in her work. Klann suspended Swanson from case work and recommended retraining, remediation, mock cases, and a competency test before she returned to case work. Swanson’s errors did not result in any incorrect reports being issued, nor were they the type of anomalies that resulted in the false positive identification of a suspect. During her suspension from DNA extraction analysis, Swanson was permitted to continue to screen evidence for the presence of biological material. In Bourgeois’s case, Swanson had not extracted or analyzed DNA, nor had she screened evidence for the presence of biological material; she had merely swabbed the milk container. The DNA extraction and analysis was performed by a different criminologist.
Bourgeois argued that had he known that Swanson had been suspended, he would have cross-examined her on contamination and on the protocols she followed in handling the DNA evidence here. Although Bourgeois conceded that Swanson neither extracted nor analyzed the DNA here, he pointed out that she was the first to “deal with” the potential DNA evidence, and “the integrity of that evidence is dependent entirely on her following the proper protocol to swab that evidence in a manner that comports with the protocols that the LAPD and FBI have promulgated. There are problems with her contaminating the evidence. She was taken off of DNA case work because of these problems.”
The prosecutor acknowledged that although she had no personal knowledge of the issue concerning Swanson, she “should have been and my office was aware. So I concede that my office collectively had the knowledge in question.” She argued, however, that the evidence was not admissible here because the task in question, swabbing for DNA, is a simple process requiring no technical skill. There was no evidence that Swanson had any difficulty with this process—her problems had arisen with the highly complicated process of extracting and analyzing DNA. In short, the prosecutor contended, just because Swanson was suspended for her analytical work problems, this does not tend to suggest that she was unable to properly swab for DNA evidence, and therefore, the evidence of her suspension and work difficulties was inadmissible under Evidence Code section 352.
The trial court denied the motion for a new trial, concluding that although the evidence about Swanson would have been relevant, it would not have been admissible under Evidence Code section 352, and it would not have changed the jury’s verdict. Bourgeois appeals.
DISCUSSION
Bourgeois claims that his convictions should be overturned and the matter remanded for a new trial because the prosecution did not disclose before trial that Swanson’s extraction and analysis of DNA had been called into question and that she was no longer permitted to do certain types of DNA casework. Bourgeois claims that the failure to provide this information to the defense violated the requirement of Brady, supra, 373 U.S. 83 that prosecutors must disclose material exculpatory evidence to defendants.
For purposes of Brady, supra, 373 U.S. 83, evidence is material if there is a reasonable probability its disclosure would have altered the trial result. (People v. Verdugo (2010) 50 Cal.4th 263, 279.) Here, the trial court held that the evidence, although relevant, would have been excluded under Evidence Code section 352; and even if it had been admitted, that no reasonable jury would have returned a different verdict—in other words, that the evidence was not material under Brady standards. We independently review the question of whether Brady was violated, but give great weight to findings of fact that are supported by substantial evidence. (People v. Letner& Tobin (2010) 50 Cal.4th 99, 176.) We conclude that the trial court properly denied the motion for a new trial because the evidence was not material.
In this case, the direct evidence of Bourgeois’s guilt was overwhelming. He was seen on what the trial court characterized as an “extraordinary” surveillance film—clearer than any the court had ever seen—which “shows Mr. Bourgeois, the defendant, involved in the crimes at issue.” Akkerman also identified Bourgeois as the shooter in court. Bourgeois did attempt to establish an alibi and to challenge the identification on the surveillance tape based on differences between his height and weight and that of the suspect description the police initially developed from the footage, but the direct evidence remained exceptionally strong. We agree with the trial court’s assessment that evidence concerning Swanson’s deficiencies in DNA analysis would not have affected the verdict because her task here was one of mere collection of DNA rather than its analysis, and because the other evidence identifying Bourgeois as the shooter was so very strong. Accordingly, because there is no reasonable probability that the disclosure of this evidence would have altered the trial result, the evidence was not material, and there was no violation of Brady, supra, 373 U.S. 83. (Strickler v. Greene (1999) 527 U.S. 263, 281 [“[T]here is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict”].)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.