Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050403576
McGuiness, P.J.
The People appeal from an order dismissing an information charging defendant Sergio Mendoza Chavez with three felony counts of selling, distributing, or transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). We reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
At a preliminary examination, the prosecution’s sole witness was a Drug Enforcement Administration (DEA) agent who testified to statements made to him by another DEA agent acting undercover and a DEA chemist who had been previously qualified as an expert in the area of detecting the presence of methamphetamine. The witness testified that he was told by the undercover agent that on separate occasions in May, June, and July 2001, the undercover agent had prearranged to purchase methamphetamine from defendant. Each exchange of money for drugs took place after the defendant entered the undercover agent’s car. The witness was a member of the visual surveillance team on the first two occasions, and the witness indentified defendant as the individual who entered the undercover agent’s car. The witness did not know whether defendant identified himself by name to the undercover agent. Nor was the witness asked if he saw the actual exchange of money for drugs that took place in the undercover agent’s car. After each of the first two sales, the witness was present when the undercover agent secured the purchased drugs in evidence bags. The witness was not present on the third occasion when the undercover agent purchased drugs from defendant. However, the witness spoke with the undercover agent who reported that he had prearranged the sale and purchased and secured the drugs in the same manner as the prior two occasions. The witness also testified that the DEA chemist told him that all the purchased substances contained D-methamphetamine hydrochloride. The magistrate found the evidence was sufficient to hold defendant on three counts of selling, distributing or transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a).
The district attorney filed an information charging defendant with three felony counts of violating Health and Safety Code section 11379, subdivision (a), with a special allegation that defendant committed the three offenses while on probation. Sometime thereafter, defense counsel learned that before the preliminary hearing the prosecutor had in his possession certain potential impeachment information concerning the undercover agent. Defendant filed a nonstatutory motion to dismiss the information on the ground that he had been deprived of a fair preliminary hearing because the discovered potential impeachment information constituted Brady material (Brady v. Maryland (1963) 373 U.S. 83) that should have been voluntarily turned over to the defense before the preliminary hearing. The prosecutor opposed dismissal on the ground that defendant had neither a statutory right to discovery nor a federal constitutional right to receive Brady material before the preliminary hearing. In reply, defendant argued his constitutional right to due process as enunciated in Brady and its progeny was denied by the prosecutor’s suppression of material exculpatory evidence that was not presented at the preliminary hearing. After hearing arguments of counsel, the trial court granted defendant’s motion to dismiss the information. The People timely appeal from the order of dismissal.
The potential impeachment information consisted of two letters dated August 28, 2001, and May 28, 2002 from the undercover agent’s employer. The letters discussed certain disciplinary proceedings taken against the agent, in December 1996 (3-day suspension) and January 2001 (2 day suspension), for poor judgment and inattention to duty and conduct unbecoming an agent, and proposed disciplinary action in August 2001 (5-day suspension) for failure to timely submit secured non-drug evidence to the non-drug custodian on five occasions in 1999 and three occasions in 2000. On March 4, 2002, the undercover officer was removed from his position for false statements and failure to follow written instructions regarding his failure to appropriately process and timely submit secured non-drug evidence to the non-drug custodian. The undercover agent appealed his removal to the Merit Systems Protection Board but no final decision had been rendered as of the May 2002 letter.
In addition to the parties’ briefs, we have considered a brief filed by the Contra Costa County Public Defender as amicus curiae in support of defendant.
DISCUSSION
It is well settled that “in the felony preliminary hearing context . . . ‘ “ ‘[p]robable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ ” [Citations.]’ [Citations.] In making the determination of probable cause, the magistrates do not themselves decide whether the defendant is guilty. [Citations.] Rather, they simply decide whether a reasonable person could harbor a strong suspicion of the defendant’s guilt. In doing so, they may ‘weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses.’ [Citation.] But the proceeding is not a trial . . . . [T]he magistrate’s role is limited to determining whether a reasonable person could harbor a strong suspicion of the defendant’s guilt, i.e., whether such a person could reasonably weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses in favor of harboring such a suspicion.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 251-252.)
“Any credibility determination to be made at the probable cause stage . . . in a . . . criminal proceeding, is a gross and unrefined one. . . . [T]o reject the prosecution evidence at the probable cause stage, either the evidence presented must be inherently implausible, the witnesses must be conclusively impeached, or the demeanor of the witnesses must be so poor that no reasonable person would find them credible. Thus, if the prosecution presents evidence a reasonable person could accept over that presented by the defense, probable cause should be found. The superior court may not substitute its own personal belief as to the ultimate determination to be made at trial for that of a reasonable person evaluating the evidence.” (Cooley v. Superior Court, supra, 29 Cal.4th at pp. 257-258.)
In seeking dismissal of the information, defendant did not challenge the sufficiency of the evidence establishing probable cause. He argued that had he known about the undisclosed potential impeachment material, he would have presented the material to the magistrate, and the prosecutor’s failure to disclose the material denied him a fair preliminary hearing requiring dismissal of the information. However, as we now discuss, dismissal of the information subject to a new preliminary hearing and refiling of the information or the return of the matter to the magistrate for a determination of the undercover agent’s credibility is not mandated in this case.
“Proposition 115, enacted in 1990, adopted article I, section 30, subdivision (b) of the California Constitution, declaring hearsay evidence admissible at preliminary examinations in criminal cases, as may be provided by law. [Citation.] In addition, the measure amended Penal Code section 872, subdivision (b), to provide that a probable cause determination at a preliminary examination may be based on out-of-court declarants’ hearsay statements related by a police officer with certain qualifications and experience. [Citation.] Additionally, the measure added Evidence Code section 1203.1 to provide a preliminary examination exception to the general requirement that all hearsay declarants be made available for cross-examination. [Citation.] [¶] Further, the 1990 measure amended Penal Code section 866, subdivision (a), to give magistrates discretion to limit defendants’ right to call witnesses on their behalf. [Citation.] Finally, the measure added Penal Code section 866, subdivision (b), which explains, ‘It is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant had committed a felony. The examination shall not be used for purposes of discovery.’ ” (People v. Miranda (2000) 23 Cal.4th 340, 347-348.)
Evidence Code section 1203, subdivision (a), reads: “The declarant of a statement that is admitted as hearsay evidence may be called and examined by any adverse party as if under cross-examination concerning the statement.” Evidence Code section 1203.1 reads: “Section 1203 is not applicable if the hearsay statement is offered at a preliminary examination, as provided in Section 872 of the Penal Code.”
Penal Code section 866, subdivision (a), reads: “When the examination of witnesses on the part of the people is closed, any witness the defendant may produce shall be sworn and examined. [¶] Upon the request of the prosecuting attorney, the magistrate shall require an offer of proof from the defense as to the testimony expected from the witness. The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her sound discretion, that the testimony of that witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.”
Defendant’s argument that he might not have been held to answer if he had been able to challenge the credibility of the undercover agent with knowledge of the potential impeachment material bearing on the agent’s general credibility “is entirely speculative.” (People v. Jenkins (2000) 22 Cal.4th 900, 951.) Proposition 115 does not require that when a preliminary hearing witness testifies to statements made by an out-of-court declarant “that the underlying hearsay evidence itself be reliable or trustworthy.” (People v. Miranda, supra, 23 Cal.4th at p. 354.) Consequently, in this case, “by reason of Proposition 115 and the nature of the probable cause hearing, defendant had a right to cross-examine [the testifying agent], a right that he exercised. . . . But [defendant] had no right to cross-examine [the undercover agent] at the preliminary hearing, because [the undercover agent] did not testify in that proceeding.” (Id. at p. 353.) Defendant was not precluded from cross-examining the testifying officer about his reasons for believing the undercover agent’s statements about the drug purchases from defendant. Nor did defendant move to strike the testimony because the witness lacked knowledge of the undercover agent’s credibility. Defendant also failed to take advantage of his right to call the undercover agent as his own witness. (See People v. Erwin (1993) 20 Cal.App.4th 1542, 1550-1551). Although he would have been required to make an offer of proof if requested by the prosecutor (Pen. Code, § 866, subd. (a)), defendant does not argue that without the undisclosed information he would have not have been able to make a sufficient offer of proof. Finally, even had defendant called the undercover agent as his witness, the magistrate was not statutorily required to allow defendant to ask questions based upon the potential impeachment material, and the undercover agent’s answers to such questions would not have statutorily required the magistrate to refuse to issue a holding order. (See Currie v. Superior Court (1991) 230 Cal.App.3d 83, 98-101; Farrell L. v. Superior Court (1988) 203 Cal.App.3d 521, 528; People v. Stone (1983) 139 Cal.App.3d 216, 221-225; People v. Wilson (1960) 183 Cal.App.2d 149, 152-153.)
We also reject defendant’s argument that the prosecutor’s failure to disclose the potential impeachment material deprived him of a fair preliminary hearing requiring dismissal of the information. Defendant’s argument is based upon the decisions in Stanton v. Superior Court (1987) 193 Cal.App.3d 265 (Stanton), and Merrill v. Superior Court (1994) 27 Cal.App.4th 1586 (Merrill). In those cases, Division Three of the Fourth District Court of Appeal was concerned with the prosecutor’s failure to disclose either “substantial material evidence on the issue of guilt” (Merrill, supra, 27 Cal.App.4th at p. 1594), or “exculpatory evidence on the focal issue before the magistrate” (Stanton, supra, 193 Cal.App.3d at p. 272). In Stanton, the prosecutor failed to turn over to defense counsel an investigative report, received before the preliminary hearing, that included three key witnesses’ statements taken shortly after the accident that cast doubt on the credibility of their later preliminary hearing testimony regarding the circumstances of the vehicle accident they had observed. (193 Cal.App.3d at p. 268.) The Court of Appeal held that the defendant was entitled to have the investigative report before the preliminary hearing because it “contained exculpatory evidence on the focal issue before the magistrate and would have served the dual purpose of impeaching the prosecution’s case and establishing an affirmative defense to the gross negligence” allegation of the vehicular manslaughter charge. (Id. at p. 272.) The Court of Appeal held that “Nondisclosure of evidence impeaching eyewitnesses on material issues is the deprivation of a substantial right,” and “The magistrate, having heard the impeachment of the three key witnesses, might well have stricken the gross negligence allegation . . . .” (Ibid.) In Merrill, the prosecutor presented at the preliminary hearing certain incriminating evidence regarding defendant’s identification as one of two perpetrators of a robbery murder. The prosecutor however failed to disclose to defense counsel that a witness who saw the two alleged perpetrators on the day of the robbery emphatically denied that defendant was one of the two men he saw that day. (27 Cal.App.4th at p. 1592.) The Court of Appeal held that although the witness’s refusal to identify the defendant was material on the issue of the identity of defendant as one of the perpetrators, the trial court had appropriately ruled that a new preliminary hearing was not required. (Id. at pp. 1596-1597.) The Merrill court explained that under Stanton and the intervening decision by Division Seven of the Second District Court of Appeal in Currie v. Superior Court, supra, 230 Cal.App.3d at p. 93, the trial court—and the appellate court in reviewing that court’s decision for an abuse of discretion—is to “look to the materiality of the nondisclosed information and what effect it had on the determination of probable cause.” (Merrill, supra, 27 Cal.App.4th at pp. 1596; see id. at p. 1597.) The Merrill court then held that the trial court had not abused its discretion in determining there was not “a reasonable probability that the outcome” at the preliminary hearing in that case would have been affected by the inclusion of the undisclosed information of the witness’s emphatic refusal to identify the defendant. (Id. at p. 1596, fn. 5.)
The prosecutor here presents an extensive argument challenging the continued validity of Stanton and Merrill in light of the passage of Proposition 115. However, we need not address the issue, and we express no opinion on whether Stanton and Merrill may require reconsideration in an appropriate case. Even assuming the continued validity of Stanton and Merrill, as defendant and amicus curiae argue, dismissal of the information in this case is not required.
Unlike the exculpatory evidence directly related to the guilt or innocence of the defendants in Stanton and Merrill, in this case we are concerned with the nondisclosure of impeachment evidence relating to the undercover agent’s general credibility. None of the undercover agent’s reported misconduct related to his role in the three purchases of drugs from defendant. The undisclosed evidence hardly suggests that the undercover agent would have misreported the circumstances of the sales and the seller’s identity to the testifying officer who described his own personal surveillance observations of the undercover agent and defendant from his position in a parking lot on two occasions and recounted discussions with the undercover agent. Thus, we conclude that there is no reasonable probability that the magistrate would have failed to find probable cause had the information regarding the undercover agent’s disciplinary record and reported misconduct been disclosed at the preliminary hearing.
We also conclude that there is no basis for upholding the dismissal based upon Brady and its progeny. In general, Brady requires the prosecution to disclose to the defendant any material exculpatory evidence, which includes impeachment evidence related to a prosecution witness whose “ ‘reliability . . . may well be determinative of guilt or innocence.’ ” (Giglio v. United States (1972) 405 U.S. 150, 154.) However, “implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” (United States v. Agurs (1976) 427 U.S. 97, 104.) In other words, “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” ’—‘strictly speaking, 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. . . .’ [Citations.]” (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51.)
In this case even if the potential impeachment material should have been turned over to the defense before the preliminary hearing, the prosecutor’s failure to do so did not deprive defendant of a fair preliminary hearing. The undercover agent’s disciplinary record and reported misconduct was “extraneous” to his purchase of drugs from defendant, and “provided no evidence of adverse bias, interest, or motive” for lying about those transactions. (Currie v. Superior Court, supra, 230 Cal.App.3d at p. 100.) “At most, such evidence would only go to the weight of the direct evidence,” not its sufficiency. (People v. Wilson, supra, 183 Cal.App.2d at p. 153.) We therefore hold that on this record defendant’s inability to present information to the magistrate that the undercover agent may have been untruthful on other occasions does not establish defendant was deprived of a fair preliminary hearing requiring dismissal of the information.
Because the prosecutor’s failure to turn over the potential impeachment material regarding the undercover agent did not deprive defendant of a fair preliminary hearing, it is not necessary to address the broader general issues raised by the parties regarding whether the prosecutor is obliged to turn over Brady material before a preliminary hearing and whether the prosecutor’s failure to turn over Brady material violates a defendant’s federal constitutional right of equal protection. We express no opinion on these broader issues, and our decision to reverse in this case should not be read as implying how we might rule on those issues in an appropriate case.
Because defendant did not seek discovery before the preliminary hearing, the prosecutor’s alternative arguments for reversal—that the reciprocal discovery scheme does not apply to preliminary hearings and the magistrate does not otherwise have the authority to grant defendant discovery before the preliminary hearing - are not properly before us. In a similar vein, because defendant did not seek Pitchess discovery (Pitchess v. Superior Court (1974) 11 Cal.3d 531, codified at Pen. Code, §§ 832.7 & 832.8; Evid. Code, 1043-1045 as stated in City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81) before the preliminary hearing, we have no occasion to address and express no opinion on the recent decision of Division Eight of the Second District Court of Appeal in which the court held that a defendant was not entitled to Pitchess discovery for use at a preliminary hearing. (Galindo v. Superior Court (2009) 169 Cal.App.4th 1332, 1333, 1336-1341, petn. for review pending, petn. filed Feb. 13, 2009.)
We therefore conclude that the order dismissing the information should be reversed because the prosecutor’s failure to turn over potential impeachment evidence concerning the undercover agent, an out-of-court declarant, neither violated the statutory scheme for preliminary hearings nor deprived defendant of a fair preliminary hearing. In so concluding, we again emphasize that our ruling is limited to the specific facts and circumstances of this case.
DISPOSITION
The order dismissing the information is reversed and the matter is remanded for further proceedings.
We concur: Pollak, J., Siggins, J.