Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF 073627B-01 James W. Hollman, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Jose Rogelio Calderon stands convicted of various offenses arising out of a traffic collision that occurred while law enforcement officials pursued him as he drove a stolen vehicle. In this, his third appeal, he contends the trial court erred when it denied his motion for a new trial based on prosecutorial nondisclosure of impeachment evidence and misconduct. For the reasons that follow, we affirm.
By separate order, we have taken judicial notice of our records and opinions in Calderon’s prior cases (People v. Calderon (2005, F044054) 129 Cal.App.4th 1301 (Calderon I); People v. Calderon (June 23, 2008, F051316 [nonpub. opn.] (Calderon II)).
On September 28, 2001, a jury convicted Calderon of second degree murder (Pen. Code, § 187, subd. (a)), evading an officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)), being a felon in possession of a firearm (§ 12021, subd. (a)(1)), leaving the scene of an accident resulting in death (Veh. Code, § 20001, subd. (a)), unlawfully driving or taking a vehicle (id., § 10851, subd. (a)), driving under the influence of alcohol or drugs (id., § 23152, subd. (a)), and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). (Calderon I, supra, 129 Cal.App.4th at p. 1304.) On appeal, we reversed the murder conviction because, in addition to instructing the jury on implied malice as a basis therefor, the trial court instructed on the legally incorrect theory of felony murder based on the violation of Vehicle Code section 2800.2. (Calderon I, supra, at pp. 1306-1312.) We affirmed Calderon’s convictions on the remaining counts. (Id. at p. 1313.) Because we concluded Calderon’s conduct would support a finding of implied malice, we permitted him to be retried on that theory of second degree murder. (Id. at p. 1312.)
All statutory references are to the Penal Code unless otherwise stated.
Calderon’s retrial resulted in a deadlocked jury and, on February 24, 2006, declaration of a mistrial. (Calderon II, supra, F051316, at p. 2.) A third trial ensued; on August 14, 2006, a jury again convicted Calderon of second degree murder. (Ibid.) On September 13, 2006, he was sentenced to 15 years to life in prison, consecutive to any other term served or being served. (Ibid.) By opinion filed June 23, 2008, we affirmed. (Id. at p. 16.)
In Calderon’s trials, one of the prosecution’s main witnesses was Eric Cantu, who was a Tulare County sheriff’s deputy at the time of the incident that gave rise to the charges against Calderon. Cantu, who attempted to stop the vehicle Calderon was driving because it was the subject of a “be on the lookout” broadcast, initiated pursuit when the vehicle failed to yield and accelerated away from him. Cantu testified that Calderon proceeded through Goshen at approximately 35 to 40 miles per hour. The speed limit was 25 miles per hour. According to Cantu, Calderon made numerous turns and ran a number of stop signs, the majority of which were at places where he made right turns. At one point, Calderon attempted to make a turn at approximately 40 miles per hour, but spun slightly in an open field and crashed through a chain link fence before regaining the road, running more stop signs, and heading out of town. (Calderon I, supra, 129 Cal.App.4th at p. 1305; Calderon II, supra, F051316, at p. 3.) Calderon ran a red light, and, once on the highway, reached speeds of approximately 70 to 80 miles per hour. The speed limit was 55 miles per hour, and Calderon was driving erratically and passing vehicles. A couple of times, he nearly struck another vehicle head-on. Cantu estimated that Calderon passed 10 to 15 vehicles. Approximately 10 minutes after Cantu first saw the vehicle driven by Calderon, California Highway Patrol Officer Yokley took over as the primary pursuit unit. A short time later, the fatal collision occurred when Calderon attempted to pass a truck and trailer on a bridge and hit an oncoming vehicle head-on. (Calderon I, supra, 129 Cal.App.4th at p. 1305; Calderon II, supra, F051316, at pp. 3-4.)
While the appeal in Calderon II was pending, Calderon filed a petition for writ of habeas corpus in the trial court, requesting that the judgment be vacated so that he could file a motion for new trial. The grounds asserted were newly discovered evidence, prosecutorial misconduct, and a violation of his constitutional right to discovery under Brady v. Maryland (1963) 373 U.S. 83 (Brady). Calderon alleged that, on or about October 31, 2006, his trial attorney received a memorandum from the prosecutor, who claimed he had just found out that Cantu had sustained a felony conviction in February 2002 for a violation of section 550, subdivision (a)(1). Upon further investigation, defense counsel ascertained that, on August 31, 2001, Cantu was charged in Fresno County Superior Court with insurance fraud (§ 550, subd. (a)(1)), perjury (§ 118), and arson of a vehicle (§ 451, subd. (d)). Cantu was arraigned on the morning of September 26, 2001, and testified in Calderon’s first trial later that same day. On January 15, 2002, Cantu pleaded no contest to a single count of insurance fraud and was subsequently placed on three years’ probation. On April 21, 2003, Cantu was charged in Tulare County Superior Court with driving under the influence and with a blood-alcohol level of 0.08 percent or greater (Veh. Code, § 23152, subds. (a) & (b)) and impersonating a peace officer (§ 146). On May 14, 2003, Cantu pleaded no contest to a violation of Vehicle Code section 23152, subdivision (b), and was placed on three years’ probation. Calderon alleged that at no time prior to or during any of his three trials did Deputy District Attorney Jackson (the prosecutor at Calderon’s first trial) or Deputy District Attorney Underwood (the prosecutor at Calderon’s second and third trials) disclose this information to defense counsel.
Such a motion must be “made and determined before judgment.” (§ 1182.)
The trial court issued an order to show cause. In support of the People’s response that the undisclosed impeachment evidence did not warrant relief, Underwood submitted a declaration in which he stated that, on or about October 31, 2006, he was informed by a colleague that Cantu had sustained convictions for insurance fraud and driving under the influence of alcohol, and he informed defense counsel of those convictions on the same date. Underwood stated that he had not previously been aware of the convictions.
In his reply to the return, Calderon alleged that Cantu had resigned his position with the Tulare County Sheriff’s Department in June 2001; hence, Jackson committed misconduct at the first trial by addressing him as “Deputy Cantu” and by failing to ask about Cantu’s current employment, as he did other witnesses, but instead asking whether Cantu had been employed with the Tulare County Sheriff’s Department on the date of the incident. Calderon also claimed Jackson had violated Brady in another, unrelated matter.
The court vacated the judgment to afford Calderon the opportunity to file a new-trial motion, to be heard by the trial judge. Defense counsel subsequently declared a conflict because his office had represented Cantu in Cantu’s Tulare County case, and new counsel was appointed for Calderon. Calderon subsequently moved for a new trial based on newly discovered evidence, viz., Cantu’s criminal convictions. The People opposed the motion, arguing that a different result at trial was not probable.
The parties do not address whether the lower court had jurisdiction to make such an order. Although resulting in an odd procedural posture, it appears that the pendency of the appeal did not divest that court of jurisdiction in the matter, since the court was exercising its habeas jurisdiction with respect to a claim that did not appear upon the face of the record on appeal and, hence, was not and could not have been raised on said appeal. (See People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 329-332.)
Records of Cantu’s cases, which were attached as exhibits to Calderon’s writ petition, showed that Deputy Public Defender Prekoski, who represented Calderon at his second and third trials, also represented Cantu when the latter pleaded no contest to driving under the influence.
The trial court found no evidence that the prosecution intentionally withheld the information from the defense and, as Underwood disclosed the information upon his receipt of it, no bad faith. The court agreed the information should have been disclosed before trial, but observed that the public defender’s office could have discovered the convictions as easily as the prosecution. The court further found that the fact one of the pursuing officers was subsequently convicted of a felony was not germane to the main issue in the case, i.e., whether the victim’s death constituted murder or manslaughter; moreover, the majority of that witness’s testimony was corroborated by other, independent witnesses. Accordingly, the court denied the motion for new trial.
Calderon filed a timely notice of appeal that purported to appeal from denial of the motion for new trial. Ignored by both parties is the fact an order denying a new trial motion is not itself appealable, but is reviewable upon appeal from a final judgment. (§ 1237, subd. (a); People v. Ault (2004) 33 Cal.4th 1250, 1261; People v. Federico (1981) 127 Cal.App.3d 20, 24, fn. 1; People v. Jenkins (1970) 3 Cal.App.3d 529, 531, fn. 1.) Inasmuch as the trial court directed that Calderon be returned to state prison, we will treat the court’s order as having implicitly reinstated the judgment and Calderon’s appeal as being from said judgment.
DISCUSSION
I
Denial of New Trial Motion
Calderon contends that suppression of Cantu’s criminal history requires reversal of his murder conviction under Brady, supra, 373 U.S. 83. The People concede that Cantu’s felony conviction should have been disclosed, but argue there was no prejudice. Neither discusses the law applicable to denials of new trial motions, but that is necessarily our starting point.
A. Applicable Legal Principles
1. New trial motion
Section 1181, subdivision 8, permits one convicted of a crime to move for a new trial “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
Evidence that merely impeaches a witness will not ordinarily be significant enough to make a different result probable. (People v. Huskins (1966) 245 Cal.App.2d 859, 862.) In the present case, however, the evidence was not just newly discovered, but allegedly had been suppressed in violation of Brady. Accordingly, Calderon’s due process rights are implicated. (See In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.) This fact gives rise to some question as to the proper standard of review of the trial court’s denial of the new trial motion.
Generally speaking, a motion for new trial on the ground of newly discovered evidence is looked upon with disfavor, and the trial court’s ruling is reviewed for abuse of discretion. (People v. Delgado, supra, 5 Cal.4th at p. 328; People v. Shoals (1992) 8 Cal.App.4th 475, 485.) However, where a new trial motion alleges grounds such as juror bias or presentation of false evidence, which implicate a defendant’s constitutional fair trial rights, some courts have stressed the need for independent review of the trial court’s reasons for denial. (People v. Ault, supra, 33 Cal.4th at pp. 1261-1262; People v. Adams (1993) 19 Cal.App.4th 412, 426-427.) Although modern authorities do not uniformly hold that an order denying a motion for new trial on such grounds is subject to independent review (Ault, supra, at p. 1262, fn. 7), that is the standard we utilize in determining whether Brady error itself occurred (People v. Salazar (2005) 35 Cal.4th 1031, 1042; People v. Uribe (2008) 162 Cal.App.4th 1457, 1473). Most recently, the California Supreme Court has applied the deferential abuse of discretion standard to a motion for new trial based, inter alia, on the constitutional ground of an asserted Brady violation. (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27.) As the court stated, “[T]he asserted abuse of discretion is the asserted failure of the trial court to recognize violations of defendant’s constitutional rights. Our constitutional analysis below therefore also addresses the abuse of discretion issue.” (Ibid.)
2. Brady
“[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, supra, 373 U.S. at p. 87.) The duty to disclose such evidence is wholly independent of the prosecutor’s obligation under section 1054 et seq. (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244), exists even where there has been no request by the accused (United States v. Agurs (1976) 427 U.S. 97, 107), encompasses both impeachment and exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676), and extends to evidence known only to law enforcement investigators and not to the prosecutor (Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870; Kyles v. Whitley (1995) 514 U.S. 419, 438). “In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.]” (People v. Salazar, supra, 35 Cal.4th at p. 1042, quoting Kyles v. Whitley, supra, at p. 437.) Disclosure must be made at a time when it would be of value to the accused. (People v. Superior Court (Meraz)(2008) 163 Cal.App.4th 28, 51.)
Because the good or bad faith of the prosecutor is not determinative (Brady, supra, 373 U.S. at p. 87; In re Ferguson (1971) 5 Cal.3d 525, 532), and suppression of materially favorable evidence violates due process regardless of whether it was intentional, negligent, or inadvertent (In re Sodersten, supra, 146 Cal.App.4th at p. 1225), the trial court’s finding of no bad faith on Underwood’s part has no effect on a Brady analysis. In any event, we review that court’s result and not its reasoning. (Currie v. Superior Court (1991) 230 Cal.App.3d 83, 92.)
Section 1054.1 provides in part: “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] … [¶] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [¶] (e) Any exculpatory evidence.”
Although “the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence – that is, to any suppression of so-called ‘Brady material’ – … there 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.” (Strickler v. Greene (1999) 527 U.S. 263, 281, fn. omitted.) Thus, to merit relief on due process grounds, “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.]” (People v. Dickey (2005) 35 Cal.4th 884, 907-908.) “A showing by the [defendant] of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of ‘error’ and ‘prejudice.’ For, here, there is no ‘error’ unless there is also ‘prejudice.’ [Citations.] It follows that harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24, with its standard of ‘harmless beyond a reasonable doubt,’ is not implicated.” (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7.)
B. Brady Analysis
1. Most of the evidence was favorable to Calderon because it would have impeached Cantu’s credibility.
In order for the first component of a true Brady violation to be established, the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching. (Strickler v. Greene, supra, 527 U.S. at pp. 281-282.) There can be little doubt the evidence at issue here would have been favorable to Calderon. A witness may be impeached by prior felony convictions (People v. Castro (1985) 38 Cal.3d 301, 314-315), nonfelony conduct involving moral turpitude (People v. Wheeler (1992) 4 Cal.4th 284, 295), probationary status (Davis v. Alaska (1974) 415 U.S. 308, 316-318; Millaud v. Superior Court (1986) 182 Cal.App.3d 471, 476-477); and pending criminal charges (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080; People v. Coyer (1983) 142 Cal.App.3d 839, 842-843). Cantu had criminal charges pending at the time of Calderon’s first trial. By the time of the third trial, it appears, simply from the chronology of events, that he had completed his probationary periods. However, he had suffered a felony conviction for insurance fraud, a crime involving moral turpitude. (See People v. Chavez (2000) 84 Cal.App.4th 25, 28.) He had also been accused of impersonating an officer and had admitted, by his no-contest plea, driving under the influence. While misdemeanor driving under the influence may not be a crime involving moral turpitude (see People v. Forster (1994) 29 Cal.App.4th 1746, 1756-1757), impersonating an officer is (see People v. Castro, supra, at p. 315).
2. The felony conviction was suppressed by the prosecution.
In order for the second component of a true Brady violation to be established, the evidence at issue must have been suppressed by the state, either willfully or inadvertently. (Strickler v. Greene, supra, 527 U.S. at p. 282.) Here, the trial court credited Underwood’s declaration that he disclosed Cantu’s prior convictions to defense counsel as soon as he learned of them, and the record affords no reason to conclude otherwise. In order for Underwood to have been informed of the convictions by a colleague, however, someone in the Tulare County District Attorney’s Office must have known of them. “‘The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation.’ [Citations.]” (In re Brown (1998) 17 Cal.4th 873, 879.) “Thus, ‘whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government.’ [Citations.]” (Ibid.)
“[A] defendant is entitled to discovery of criminal charges currently pending against prosecution witnesses anywhere in the state.” (People v. Coyer, supra, 142 Cal.App.3d at p. 842.) Nevertheless, a question arises whether, at the time of the first trial, the Tulare County prosecutor was “in possession” of the fact Cantu was facing charges in another county. “[A] prosecutor ‘[usually] does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor [generally] does not have the duty to search for or to disclose such material.’ [Citation.]” (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 53-54, original brackets; accord, People v. Zambrano (2007) 41 Cal.4th 1082, 1133, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The felony charges against Cantu were prosecuted in Fresno County. Although the record does not reveal the law enforcement agency involved, nothing suggests it was the Tulare County Sheriff’s Department or California Highway Patrol, the agencies involved in Calderon’s case. Similarly, nothing suggests that any Fresno County agency was involved in Calderon’s case. There is some suggestion, however, that Jackson, the prosecutor at Calderon’s first trial, was at least aware Cantu was no longer a deputy sheriff, as he was careful to ask Cantu whether he was so employed on April 16, 2001, as opposed to the date when he testified.
We need not determine whether a Brady violation occurred at or before Calderon’s first trial; it is Calderon’s conviction for murder in the third trial that is before us. By the time Cantu testified at the third trial, he had suffered both felony and misdemeanor convictions. As he was a prosecution witness, the prosecutor was required to disclose his prior criminal record. (People v. Castro, supra, 38 Cal.3d at p. 309.) Whether Underwood personally knew Cantu had committed a felony is immaterial; “his duty is not linked to his personal knowledge; his duty to inquire and disclose is created by section 1054.1 and his reasonable access to rap sheets.” (People v. Little (1997) 59 Cal.App.4th 426, 433.) Brady creates the same duty and result. (Little, supra, at p. 433.) Cantu’s felony conviction was suppressed for Brady purposes.
Cantu’s misdemeanor conviction and related charged conduct stand in a different posture. “Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant’s investigation for him. [Citation.] 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, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it ‘“by the exercise of reasonable diligence.”’ [Citations.]” (People v. Salazar, supra, 35 Cal.4th at pp. 1048-1049.) “Consequently, ‘when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.’ [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 715.)
Here, the defense was or, by the exercise of reasonable diligence, could have been, fully aware of Cantu’s misdemeanor conviction and conduct by the time of the third trial: Not only was Cantu represented by the same public defender’s office that represented Calderon, but by the same deputy public defender. Accordingly, Calderon has no viable Brady claim with respect to that information. (People v. Morrison, supra, 34 Cal.4th at p. 715.)
Calderon was represented by private counsel at the time of his first trial. The public defender was appointed to represent him on September 15, 2005, prior to the second trial.
Had the charges for which Calderon’s attorney represented Cantu involved a felony, we would expect defense counsel further to have been aware of Cantu’s prior felony conviction. Since the Tulare County charges only involved misdemeanors, however, we cannot say they would have led counsel to investigate Cantu’s criminal record beyond ascertaining that he had no prior convictions for driving under the influence that might affect his sentence in the misdemeanor case. Thus, we conclude Calderon can raise a Brady claim with respect to the felony conviction.
3. The suppressed evidence was not material under all the circumstances.
Our analysis of and conclusion on this point would be the same even if we considered the misdemeanor conviction and related charged conduct.
In order for the third and final component of a true Brady violation to be established, prejudice must have ensued from the suppression. (Strickler v. Greene, supra, 527 U.S. at p. 282.) In short, the undisclosed evidence must have been material. (In re Sodersten, supra, 146 Cal.App.4th at p. 1226.) “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, supra, 35 Cal.4th at p. 1043.)
Having undertaken the cumulative evaluation required, we conclude that, in this case, disclosure of the suppressed evidence would not have made a different result reasonably probable. (Kyles v. Whitley, supra, 514 U.S. at p. 441; In re Sodersten, supra, 146 Cal.App.4th at p. 1228.) The issue at the third trial was whether Calderon committed manslaughter or implied-malice murder. The jury necessarily had to make this determination from Calderon’s conduct and how he drove. In this regard, it was undisputed that Calderon accelerated once Cantu’s patrol vehicle got behind him, that the bridge where the fatal collision occurred was clearly marked as a no-passing zone, that Calderon was in the oncoming lane of traffic when the collision happened, and that he fled without checking on the occupants of any of the involved vehicles after the crash.
This left the questions of the speed at which Calderon was driving and whether he drove recklessly while still in Goshen. Siblings Nadia and Neo Garcia, who were passengers in the car driven by Calderon, both testified that Calderon started accelerating once Cantu’s patrol car got behind them while in Goshen. Both said he was stopping at stop signs, although Neo testified he made a lot of sharp turns and was probably speeding. (Calderon II, supra, F051316, at p. 6, fn. 6.) Although Cantu testified that Calderon ran a number of stop signs, he conceded that the majority were at places at which Calderon made right turns. (Id. at p. 3.) According to Cantu, Calderon attempted to make a turn at approximately 40 miles per hour before crashing through a fence. (Ibid.) Nadia estimated the vehicle’s speed at 40 to 50 miles per hour after it hit the fence. (Id. at p. 6, fn. 6.) Neo testified that he became concerned for his and Nadia’s safety when the car reached estimated speeds of around 50 miles per hour in a residential area. (Ibid.) Once outside town, Calderon was driving fast and passing cars. The siblings and the front-seat passenger all told him multiple times to slow down. (Ibid.) According to Nadia, she and Neo both asked to be let out, to no avail. (Ibid.)
Cantu testified that, once on Road 80, he and Calderon were traveling anywhere from 55 to 65 miles per hour, with speeds reaching 70 miles per hour, and that Calderon was passing vehicles. (Calderon II, supra, F051316, at pp. 3-4.) Nadia estimated the car’s speed just prior to the crash on the bridge as 45 to 55 miles per hour, but acknowledged it could have been faster. (Id. at p. 6, fn. 6.) Significantly, Cantu did not testify to the vehicles’ speed when he ceded the pursuit to California Highway Patrol Officer Yokley. Yokley testified that, when he caught up to Cantu and Calderon, he paced them with his vehicle; they were travelling at 100 miles per hour. The collision occurred approximately 30 seconds after Yokley took over the pursuit. He estimated Calderon’s speed to be 70 to 80 miles per hour at the time of the collision. (Id. at p. 4.)
It is clear from the foregoing that there was no significant discrepancy between Cantu’s testimony and that of other witnesses with respect to how Calderon drove. Although Cantu was an important witness for the prosecution in the sense that he was the officer who attempted to detain Calderon and conducted the bulk of the pursuit when Calderon failed to yield, his testimony with respect to the nature of Calderon’s driving was largely cumulative to, and confirmed by, that of other witnesses. Accordingly, there is no reasonable probability a different result would have been reached had Cantu been impeached with evidence of his prior felony conviction or conduct amounting to a misdemeanor.
We recognize that the jury deadlocked at Calderon’s second trial. This does not change our conclusion, as Calderon’s guilt did not turn on Cantu’s credibility with respect to what Calderon did, but instead on whether Calderon’s driving and postcollision conduct evidenced the mental state necessary to establish implied malice.
II
Prosecutorial Misconduct
Calderon contends the prosecution’s suppression of Cantu’s criminal history constituted misconduct. Contrary to his recitation of the pertinent facts, although this issue was raised in the pleadings he filed in conjunction with his writ petition, his new trial motion did not raise this ground. The propriety of the trial court’s ruling on the habeas petition is not before us on this appeal. Nevertheless, we will assume Calderon can raise the misconduct issue, as the People do not claim otherwise.
“The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
“To constitute a due process violation, the prosecutorial misconduct must be ‘“of sufficient significance to result in the denial of the defendant’s right to a fair trial.”’ [Citations.]” (Greer v. Miller (1987) 483 U.S. 756, 765, quoting United States v. Bagley, supra, 473 U.S. at p. 676 & United States v. Agurs, supra, 427 U.S. at p. 108.) Prosecutorial misconduct does not require a showing of bad faith. (People v. Hill (1988) 17 Cal.4th 800, 822-823.) Nor, generally speaking, must it have been intentional. (People v. Bolton (1979) 23 Cal.3d 208, 214.) “But in the context of the prosecutorial misconduct claimed here, the only way the actions of the prosecutor can be shown to be deceptive or reprehensible is if the prosecutor had intentionally withheld [the information concerning Cantu’s criminal record] for strategic advantage. In the absence of claims for intentional misconduct, defendant would merely be repeating his Brady claim, since nondisclosure under Brady does not require a showing of the moral culpability or the willfulness of the prosecutor. [Citation.]” (People v. Hoyos, supra, 41 Cal.4th at p. 924, fn. 36.)
“Under traditional application of this state’s harmless error rule, the test of prejudice is whether it is ‘reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant. [Citations.]’ [Citation.] However, if federal constitutional error is involved, then the burden shifts to the state ‘to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.]” (People v. Bolton, supra, 23 Cal.3d at p. 214.)
“The intentional suppression of substantial material evidence bearing on the credibility of a key prosecution witness is a violation of due process. [Citations.]” (People v. Ballard (1991) 1 Cal.App.4th 752, 758; see In re Ferguson, supra, 5 Cal.3d at p. 532.) Assuming there was intentional suppression in the present case, we conclude it was harmless beyond a reasonable doubt because, as we explained in conjunction with Calderon’s Brady claim, there was no significant discrepancy between Cantu’s testimony and that of other witnesses with respect to what Calderon did. Impeachment of Cantu's credibility would not have affected the jury’s determination of whether Calderon’s driving and postcollision conduct evidenced implied malice.
This does not mean we find no fault with the Tulare County District Attorney’s Office. “Rules of ethical conduct for attorneys prohibit suppression of evidence that they have a ‘legal obligation’ to disclose. [Citation.]” (Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1594.) Moreover, “[t]he duty of the district attorney is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial.… [¶] The search for truth is not served but hindered by the concealment of relevant and material evidence. Although our system of administering criminal justice is adversary in nature, a trial is not a game. Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal. Implementation of this policy requires recognition of a duty on the part of the prosecution to disclose evidence to the defense in appropriate cases.” (In re Ferguson, supra, 5 Cal.3d at pp. 531-532.) In the present case, it does not appear to us that Underwood intentionally suppressed information concerning Cantu’s criminal record, nor did he mislead the jury concerning the fact Cantu was no longer a law enforcement officer, as, in the third trial, he asked Cantu his current occupation. It seems highly probably, however, that Jackson knowingly withheld information at Calderon’s first trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., CORNELL, J.