Opinion
C080547
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID LYNN DEVOY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F03012)
Defendant David Lynn Devoy appeals following conviction of possession of a gun (a Deutsche Werke 7.65 mm. semiautomatic gun) by a felon, possession of ammunition by a prohibited person, and misdemeanor resisting, delaying or obstructing a peace officer in the performance of his duties. (Pen. Code, §§ 29800, subd. (a)(1), 30305, subd. (a)(1), and 148, subd. (a)(1); further undesignated statutory references are to this Code unless otherwise indicated.) The jury found defendant not guilty of possessing a Beretta 9 mm. handgun. The trial court placed defendant on formal probation for five years.
Defendant contends the trial court erred in denying his motion to suppress evidence and revising his proposed jury instruction on possession, and the prosecutor committed misconduct in closing argument. Defendant also asks us to review whether the trial court abused its discretion in finding no discoverable police records in response to his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Finding no grounds for reversal, we affirm the judgment.
FACTS AND PROCEEDINGS
At 4:35 p.m. on May 15, 2015, Citrus Heights Police Sergeant Joseph Aguilar, in uniform, went with a detective and a probation officer to conduct a probation search of a house listed as the residence of probationer Stephen Cunningham. The front door was open; the screen door was closed. They knocked. Dogs inside the home began to bark. A person (later identified as defendant) peeked his head out from a hallway, saw the police, and retreated. Aguilar called out for defendant to return, but he did not.
Sharon M. (homeowner) called out from the living room and asked who was at the door. Aguilar identified himself and asked where Cunningham was. Sharon said he was asleep on the couch. Nicole F. then came out from the hallway where defendant had retreated. The Sergeant asked her to secure the dogs. She put them in the backyard and let the officers inside. They asked where Cunningham was. She hesitated, then said he was on the couch. Cunningham came into view. The police handcuffed him outside the house and said they were there for a probation search. Aguilar and the detective entered the house. They saw that Sharon was not in good health and had a hospital bed in the living room, so they let her stay there during the probation search.
Nicole identified defendant as the male who disappeared down the west hallway and said he was in the southwest bedroom. The police went down that hallway and called for defendant to come out, but he did not do so. After a couple of minutes and further unheeded command, the officer announced a police canine was on the way. Defendant then emerged, but from the northwest bedroom, and he was taken outside.
Detective Austin Azevedo proceeded with the probation search and protective "sweep." In the southwest bedroom, he saw what he recognized as a gun case in plain view on a large box. He looked inside the case and discovered a gun. The gun -- a Deutsche Werke 7.65 millimeter semi-automatic, .32 caliber -- was loaded, and a bag in the gun case contained 47 loose .32 caliber bullets. In the same room police found Nicole's purse and a backpack containing paperwork belonging to defendant. Though the room was filled with clutter, the room also contained a futon and was used as a "break room" for Sharon's caretakers, which on the date in question included Cunningham and Nicole. Sharon required 24-hour care. Her companion Tracey H. cared for her at night, but Nicole sometimes spent the night when Tracey had to work late or travel for work.
Police discovered another gun, a 9 mm Beretta, in the northwest bedroom, but since the jury found defendant not guilty of possessing the Beretta, we need not discuss it.
Defendant was a long-time friend of the homeowners and, through them, met and started dating Nicole. Around the date of the search, defendant would visit three or four times a week. He had access to the rooms where the guns were found, and Sharon knew defendant had been in the break room and sometimes left things there.
Tracey testified both guns were hers, and she did not give anyone permission to use them. The last time she saw the German gun, it was in the closet. She had shown the gun to defendant a few times over the years, and he once handled the gun at her request, to show her how to break the gun down and put it back together, because the slide was difficult to operate. She started keeping the gun loaded in April 2015, because one day someone peeked in the window and her dogs failed to do their job of barking.
Tracey allowed Cunningham to keep two tubs of his clothing in her garage but did not consider him to be living at her home. She knew Cunningham reported her address as his residence, and she did not like it, because this is the third time the police came to her house for probation searches. He had ignored her demand that he change his address with the probation department.
Although it was not necessary for defendant to own the gun in order to be guilty of its possession, the parties describe evidence about ownership. At the scene, when the gun was found, defendant, after being read his Miranda rights, admitted to police that it was his gun and described it. The tape-recorded conversation was played for the jury.
At trial, defendant testified in his own defense and denied owning the gun. He falsely told police it was his gun in order to protect Nicole, because the officer said he was going to charge Nicole with having the gun unless defendant had anything to say. He lied to protect Nicole because he had previously talked her out of having an abortion, and the baby (not defendant's) went into foster care while Nicole was in jail, and she was working hard to regain full custody. He was able to describe the gun because the Sergeant had described it to him (before starting the tape recorder).
Defendant in his trial testimony admitted he knew about the gun, had seen it before, and knew it was Tracey's gun. He did not remember handling it for her but thought it had to have been quite a few years ago. He did not know where she kept the gun in the house. He visits the house but does not live there and does not think he has the right to control any gun in the house.
Defendant admitted he was aware it was law enforcement officers knocking at the door but said he retreated because the occupants' dogs scared him. He heard the officers calling for him to come out, but he did not immediately come out "because I know I'm going to jail" because there was a warrant for his failure to stay in contact with his probation officer.
The jury found defendant guilty of possessing the German gun and ammunition and guilty of delaying a peace officer discharging his duty (Counts 1, 2, and 4), but not guilty of possessing the Beretta (Count 3). The trial court found defendant in violation of probation for not keeping in touch with his probation officer. The trial court found true that defendant had prior convictions for drug offenses, though two of them would now be misdemeanors.
On October 16, 2015, the trial court placed defendant on formal probation for five years. Though defendant was ineligible for probation absent unusual circumstances (§ 1203, subd. (e)(4)), the judge found such circumstances. She found defendant credible and disagreed with the jury's guilty verdicts.
DISCUSSION
I
Suppression Motion
Defendant argues the trial court should have granted his motion to suppress all evidence, including the guns and bullets and his statements to police, because the warrantless search violated the Fourth Amendment. We disagree.
At the hearing on the suppression motion, Sergeant Aguilar testified they believed Cunningham resided at the house based on his having reported that address to the probation department, the police department's KPF [known persons finder], and Facebook photos of him in that house dating back to 2013. At the scene, Cunningham claimed he did not live there but only worked there.
Aguilar was concerned when he saw a male (defendant) peek around the corner and then retreat when he saw the officers. That evasive behavior concerned the officers, so "at that point we ended up finding out who he was, and a record check determined that he had a felony warrant for his arrest, and that he was on searchable probation. So we ended up making some announcement for him to come out." On appeal, defendant suggests the officers did not learn defendant's status until after they brought him outside the house. However, Aguilar testified at trial that he had already learned defendant's identity from Nicole and already knew defendant was on searchable probation when the officers were in the hallway trying to get defendant to come out. Nicole said defendant was in the southwest room. Defendant initially ignored their demands to come out. He eventually came out of the northwest room.
The trial court said it appeared defendant did not have standing to challenge the search of the house but, if he did, the search was a valid probation search based on Cunningham having given that address as his residence. Also, the weapon was found in a protective sweep of the bedrooms that was warranted, particularly because the officers knew the person who had retreated down that hallway was also on searchable probation, but was warranted even if the police did not know defendant's status until later. Once the officer saw the gun case in plain view, it was reasonable for the officer to open the case for the officers' own safety.
A. Standing
To challenge a warrantless police search under the Fourth Amendment, the defendant must prove a legitimate subjective expectation of privacy in the area searched that society is prepared to recognize as reasonable. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104 .) An overnight house guest has a legitimate expectation of privacy. (Minnesota v. Olson (1990) 495 U.S. 91, 96-98; People v. Cowan (1994) 31 Cal.App.4th 795, 799.) Merely being permitted on the premises is not enough, but a frequent social visitor may have a reasonable expectation of privacy depending on the circumstances. (Minnesota v. Carter (1998) 525 U.S. 83, 90-93 [presence for commercial transaction not enough]; People v. Magee (2011) 194 Cal.App.4th 178, 186-187 [society does not recognize as reasonable an expectation that an ongoing social relationship with residents meant the defendant could use the house as a sanctuary to escape police contact].) Cowan held that a defendant who had a standing invitation to visit and make full use of the facilities did not have a Fourth Amendment right to privacy because he did not demonstrate that he had authority to be in the apartment alone, enter without a resident's permission, store belongings there, invite anyone else to enter, or visit without advance notice. (Id. 31 Cal.App.4th at p. 799.)
Here, the evidence was only that defendant visited the home often, could go into the break room and other rooms, and sometimes had belongings in the break room. There was no evidence that he ever stayed the night or had a key or expected privacy in the break room used by multiple persons who did not live there but merely worked for the residents. Moreover, defendant cannot have it both ways. If he had a legitimate expectation of privacy in the break room, it would presumably be subject to search under his probation search condition.
In our view, defendant did not have standing to challenge the search that revealed the guns and ammunition, but even assuming for the sake of argument that defendant had standing, he fails to show grounds for reversal because the search was justified as a valid probation search and protective sweep.
B. Valid Probation Search
A warrantless search is valid when authorized by probation terms that require probationers to submit to searches of their residence at any time by any law enforcement officer with or without a warrant. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 ; People v. Bravo (1987) 43 Cal.3d 600, 605-608.) A probationer consents to the waiver of his Fourth Amendment rights in exchange for avoiding service of a prison term. (Bravo, supra, 43 Cal.3d at p. 608.) Persons living with a probationer have a diminished expectation of privacy, because shared areas of the residence may be searched in a probation search. (People v. Robles (2000) 23 Cal.4th 789, 795-796.) Officers generally may search only those portions of the residence over which it is objectively reasonable to believe the probationer has at least joint control. (People v. Woods (1999) 21 Cal.4th 668, 682; People v. Smith (2002) 95 Cal.App.4th 912, 916.)
Here, it is undisputed that Cunningham told the probation department that this was his residence. Even though the homeowners said Cunningham did not actually live there and did not like that he gave their address to law enforcement, they knew he gave that address as his residence, because this was the third time that law enforcement officers did a probation search. And Cunningham, who was one of the homeowner's caregivers, clearly had access to the break room where the gun was found.
Defendant acknowledges it was reasonable for the officers to believe Cunningham had authority to consent to a probation search of the premises when they approached the residence. But defendant claims that, when the officers saw Sharon's hospital bed in the living room, it was no longer reasonably clear that it was Cunningham's residence, or what areas he had joint control over. Defendant claims that, when the officers saw Sharon in a hospital bed in the living room, they could not have reasonably believed that "Cunningham owned the house" and should have asked Sharon who owned the house and who had control over what areas of the house.
However, it does not matter who owned the house or that the owner lived there. Multiple people can share a house. Cunningham said he lived there, and he was in fact present, taking a nap in the living room, when the officers arrived. Thus, defendant is not helped by asserting (without citation of evidence) that it must be "fairly routine" for probationers to lie about where they live. And this was the third probation search at that home, with no evidence of any objection to the two prior searches, and it is undisputed that probationer Cunningham, as one of Sharon's caregivers, had joint control over the break room.
This was a valid probation search pursuant to Cunningham's probation condition, and we need not decide whether it was also pursuant to defendant's probation condition.
C. Valid Protective Sweep
It was also a valid protective sweep.
A protective sweep may occur in conjunction with a valid probation search. (People v. Ledesma (2003) 106 Cal.App.4th 857, 864.) There must be articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the scene. (Maryland v. Buie (1990) 494 U.S. 325, 327, 334 .) Courts evaluate the totality of circumstances to determine whether the officer had a particularized and objective basis for suspecting danger, not a mere inchoate and unparticularized suspicion or hunch. (People v. Werner (2012) 207 Cal.App.4th 1195, 1205.) A protective sweep inside a house may be justified to ensure safety of officers effectuating an arrest outside the house. (Id. at p. 1206.) A prudent officer will consider the safety concerns triggered by a probation search in determining the appropriateness of first conducting a sweep, and a reviewing court must do the same. (Ledesma, at pp. 864-865.)
A protective sweep of the rooms on the west side of the house was justified because Aguilar testified the officers were concerned for their safety because they saw defendant retreat after seeing them, learned he was on searchable probation with an outstanding arrest, and he refused their initial commands to show himself. Though defendant eventually emerged from the northwest room and was taken outside, he had time and opportunity to access both rooms, and Nicole told the officers that defendant was in the southwest room. Although defendant emerged from the northwest room, the fact remained that Nicole had told police that someone was in the southwest room. Even though defendant was outside the house at the time of the sweep, the officers had found at least two people on searchable probation in the house, one of whom had refused to come out and was subject to an arrest warrant, causing the officers to summon a canine unit.
It was reasonable for the detective to do a visual protective sweep of the rooms, at which point he saw the gun case in plain view and reasonably looked in it for officer safety.
We conclude defendant fails to show reversible error in denial of his suppression motion.
II
Jury Instruction
Defendant contends the trial court erred in giving the jury a revised version of a jury instruction as proposed by the defense concerning possession of a firearm by a felon.
On appeal, we review the instructions as a whole to determine de novo whether the trial court fully and fairly instructed on the applicable law. (People v. Burney (2009) 47 Cal.4th 203, 246.) The trial court may properly refuse an instruction if it is argumentative, duplicative, or potentially confusing. (Ibid.)
Any person convicted of a felony who "owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." (§ 29800.) Possession may be actual or constructive, and constructive possession is established if the defendant knowingly exercised a right to control the gun either directly or through another. (People v. White (2014) 223 Cal.App.4th 512, 524.)
The trial court instructed the jury with the form instruction (CALCRIM No. 2511) on possession of firearm that the People must prove defendant possessed a firearm, knew that he possessed a firearm, and had previously been convicted of a felony, and that ". . . Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. . . ." The court also instructed with the same quoted language in the form instruction for possession of ammunition (CALCRIM No. 2591).
Defendant proposed an additional instruction that:
"Mere proximity to the weapon, standing alone, is not sufficient evidence that the defendant possessed it. Access to an item, with unspecified restrictions, is not the same as having the right to control it. Dominion and control cannot be inferred simply from mere presence or access. The possibility that the defendant might have had access does not by itself provide a basis to infer that he had the right to control the weapon. You may but you are not required to conclude from other evidence presented in the trial that the defendant had the right to control the weapon. The [P]eople must prove each element beyond a reasonable doubt."
The prosecutor objected.
The trial court rejected the wording proffered by the defense and instead instructed the jury:
"Mere proximity or opportunity of access to a firearm or ammunition, standing alone, is not enough, by itself, to establish possession. The additional circumstances may, in some contexts, be rather slight. The People have the burden of proving each and every element of the offense beyond a reasonable doubt."
In rejecting the defense's wording, the trial court said its revision gave a better explanation, and the rest of the proffered instruction was argument rather than a statement of the law.
Defendant argues his proposed instruction was not argumentative, and the instruction, as given, was deficient because it did not address whether proximity or access have any relationship to the "right to control" a weapon, a phrase that is stated but not defined in CALCRIM Nos. 2511 and 2591. Defendant further claims the error was not harmless, because closing arguments featured "access," and the instruction left open the prosecutor's theory that "knowing access" to the gun sufficed, which according to defendant was an incorrect legal theory and was one of two theories presented to the jury, and it was likely the jury followed the prosecutor's incorrect example.
However, defendant's proposed instruction was argumentative. It stated that "control cannot be inferred simply from mere presence or access. The possibility that the defendant might have had access does not by itself provide a basis to infer that he had the right to control the weapon." However, no instruction or argument suggested that access alone sufficed to constitute possession, i.e., the right to control. To the contrary, the form instruction specified that the prosecutor must prove not only that defendant possessed (i.e., had control over) the gun, but that he "knew" he possessed (had control over) the gun.
And the prosecutor's closing argument told the jurors that mere access was not enough, that defendant also had to know the gun was there, and here defendant not only knew the gun was there but also had handled it in the past. Defendant himself admitted at trial that, when he told police the gun was his, he knew the gun in question and knew it was Tracey's gun. He even asked the police to wait until Tracey got home, but they would not.
The prosecutor did not argue an incorrect legal theory of "knowing access." Rather, the prosecutor accurately refuted the flawed defense theory that mere knowing access is not enough without proof that the defendant has the gun owner's permission to control the gun. Defense counsel gave an example of a felon who goes to his grandfather's house to visit, and the grandfather has a rifle displayed as decoration hanging on his wall. Defense counsel said there would be no crime, even though the felon could take the rifle off the wall if he wanted to do so. Defense counsel argued defendant here had access to the gun because it was not locked away, but he did not have "possession" of the gun within the meaning of the Penal Code, because "Does he have a right to it? Did he have permission to touch it or bring it out of the house? The answer is no." In rebuttal, the prosecutor correctly told the jury that the hypothetical felon at his grandfather's house would "technical[ly]" be in violation of the law, because neither ownership nor the owner's permission to touch the gun is an element of the offense, but in any event this case is more than a technical violation because the evidence showed defendant knew this gun was there and had handled it in the past, and the gun was in a gun case in plain view in a room that also contained defendant's backpack.
There was no instructional error.
III
Claims of Prosecutorial Misconduct
Defendant argues the prosecutor engaged in two instances of misconduct that likely affected the jurors and violated defendant's due process rights. We disagree.
A prosecutor's conduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutor's conduct that does not render the trial fundamentally unfair is misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or the jury. (Ibid.) When the claim focuses upon a prosecutor's comments to the jury, the question is whether there is a reasonable likelihood that the jury construed or applied the remarks in an objectionable fashion. (Ibid.)
A. Claimed Misstatement of Law
It is improper for a prosecutor to misstate the law, particularly regarding the elements of the offense, and in reviewing such misstatement, the issue is whether there is a reasonable likelihood that the jury construed or applied the misstatement in an objectionable way. (People v. Centeno (2014) 60 Cal.4th 659, 666.)
Defendant claims the prosecutor misstated the law in closing argument by saying that defendant having "knowing access" to the gun "in a separate room" sufficed to prove possession.
Defendant has forfeited this point because he did not object in the trial court. (People v. Sapp (2003) 31 Cal.4th 240, 310.) He argues he sort of objected by trying to get in his pinpoint instruction.
Even assuming for the sake of argument that the point is not forfeited, it fails because the prosecutor did not misstate the law. He correctly refuted the defense argument that access to the gun was insufficient to convict defendant without evidence that he had the owner's permission to touch the gun. The prosecutor correctly told the jury that it did not matter if Tracey did not give defendant permission to touch her gun or even if she told him not to touch it. What mattered was that the gun was there; defendant knew it was there; and defendant had easy access to it. The prosecutor argued that the instruction -- that mere opportunity of access does not prove possession -- would come into play if a felon were in a room with a hidden gun that he does not know is there.
The prosecutor did not misstate the law.
B. Claim That Prosecutor Impugned Defense Counsel
Defendant claims the prosecutor impugned defense counsel by implying that she concocted the defense case. We see no ground for reversal. The prosecutor told the jurors that all of the evidence was important, and "what the defense commonly does, and it's a good argument, is hey, let's take each piece of evidence and talk about some insufficiency with that. . . . Then they will say now that I pointed out some issue with it, let's throw that piece of evidence away. [¶] That's not what your job is to do. Your job is to put all the evidence together so you can consider that piece of evidence with some other piece of evidence. That's important in this case because this case is going to require you to put together everything, to really look at a lot of the details, because you have the defense coming in and crafting the story to help out the defendant."
Defense counsel objected to "crafting a story." The trial court overruled the objection but admonished the jurors, "Ladies and gentlemen, this is argument. This is not evidence. Attorneys get creative during argument. That's why they're trial lawyers."
The prosecutor continued: "All right. So the defense in this case has come in and crafted this story to deal with the People's evidence in the case and trying to convince you that the defendant is not guilty in this case or that the evidence is not sufficient. [¶] So like I said, this case you'll have to put together all the evidence."
In closing argument the parties are entitled to comment on the evidence and reasonable inferences to be drawn therefrom, and a prosecutor is given wide latitude in closing argument. (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) Argument that denigrates or accuses defense counsel of deceit in a personal attack on the attorney rather than a comment on the evidence, directs the jury's attention away from the evidence and is improper. (People v. Young (2005) 34 Cal.4th 1149, 1189.)
The "crafting a story" comment did not rise to the level of prosecutorial misconduct. In context, the comment did not accuse defense counsel of fabricating a defense or factually deceiving the jury. Rather, the comment in context challenged the merits of defense tactics attempting to persuade the jury to reject the totality of prosecution evidence by minute and unjustified criticism of each separate piece of evidence.
The California Supreme Court compiled examples of similar prosecutorial remarks for which it "found no impropriety . . . (E.g., [People v.] Stitely [2005] 35 Cal.4th 514, 559-560 [argument that jurors should avoid ' "falling for" ' defense counsel's ' "ridiculous" ' and ' "outrageous" ' attempt to allow defendant to ' "walk" free' by claiming he was guilty only of second degree murder]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1216 [argument that defense counsel was talking out of both sides of his mouth and that this was ' "great lawyering" ']; People v. Breaux (1991) 1 Cal.4th 281, 306-307 [argument that law students are taught to create confusion when neither the law nor the facts are on their side, because confusion benefits the defense]; People v. Bell (1989) 49 Cal.3d 502, 538 [argument that defense counsel's job is to ' "confuse[]" ' and ' "throw sand in your eyes," ' and that counsel ' "does a good job of it" '].)" (People v. Zambrano (2007) 41 Cal.4th 1082, 1155 [failure to object forfeited claim but in any event prosecutor did not commit misconduct by arguing to jury that defense counsel's argument was a "lawyer's game" attempting to confuse the jury], overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Since there was no prosecutorial misconduct, we need not address the question of prejudice.
We nevertheless comment briefly on defendant's prejudice argument that this was a close case because the trial judge said she disagreed with the jury's verdict and found credible defendant's testimony that he falsely took blame for the gun in order to protect Nicole. However, it does not matter who owned the gun, and the judge's disagreement with the verdict is not a ground for reversal of the judgment. In any event, we know the prosecutor's comments did not prejudice the jurors against defendant, because they found him not guilty of possession of the Beretta.
IV
Pitchess Motion
Defendant asks us to review whether the trial court abused its discretion in finding no discoverable police records regarding the police officer, in response to the defense motion for discovery under Pitchess, supra, 11 Cal.3d 531.
When the trial court reviews an officer's file in camera and denies disclosure of information, the trial court should make a record of what documents it examined before ruling on the Pitchess motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1229 (Mooc).) The reviewing court examines the sealed transcript to determine whether the trial court made an adequate record of documents reviewed. (Id. at pp. 1228, 1232.)
We will not disturb a trial court's ruling on a Pitchess motion absent an abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Mooc, supra, 26 Cal.4th at pp. 1229-1232.)
Having reviewed the sealed transcript, we conclude the trial court did not abuse its discretion in determining no discoverable material existed. The custodian of records represented he did a thorough and complete search of all places where records might exist, and there were no complaints or investigations or anything of that nature within the parameters of the court's inquiry (coercion of confession, falsifying evidence, or dishonesty). There was only one document with regard to the officer, which was outside the parameters, but the custodian presented it and the trial court reviewed the document anyway and summarized it on the record to show it was completely inconsequential, and we agree.
The trial court did not abuse its discretion in concluding there were no materials to disclose.
Defendant mentions Brady v. Maryland (1963) 373 U.S. 83 , which addresses the federal constitutional right to disclosure of material evidence. But defendant develops no argument regarding Brady, and we therefore need not consider it. (People v. Marshall (1990) 50 Cal.3d 907, 945, fn. 9.) Moreover, if a defendant cannot meet the less stringent Pitchess materiality standard, he cannot meet the more taxing Brady materiality requirement. (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1474.)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: BUTZ, J. MAURO, J.