Opinion
NOT TO BE PUBLISHED
Super. Ct. No. TF032996A
DAVIS, Acting P.J.
A jury convicted defendant James Anthony Guerrero of felony possession of a fictitious note (counterfeit money) with intent to defraud (Pen. Code, § 476), felony assault (§ 245, subd. (a)(1)), and giving false information to a peace officer (§ 148.9), a misdemeanor. The jury also found that defendant had four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and that he was sane at the time of the offenses.
Hereafter, undesignated section references are to the Penal Code.
Sentenced to state prison for concurrent terms of 25 years to life for each felony and a concurrent jail term for the misdemeanor, defendant appeals. He contends the trial court committed reversible error when it refused to (1) require the prosecution to disclose the criminal history of a potential witness, and (2) instruct the jury regarding the prosecution’s failure to produce records relating to a drug container found in defendant’s pocket. We shall affirm the judgment.
Facts
As of May 1, 2006, defendant had been living in a spare bedroom in the residence of Marc and Michelle Turnovsky. On May 1 defendant, accompanied by a neighbor and his son, went to a Sears store to purchase a plug for the son’s electronic system. Defendant selected an item of merchandise and gave it to a clerk, asking him to ring it up. As the clerk began scanning the item, defendant struck him on the side of the head and continued to hit him until he fell, at which point defendant kicked him and stomped on his head.
Store security personnel saw the attack over the store’s video system and called the police. Defendant, who had been told to remain at the store, fled when the police arrived, but shortly thereafter was taken into custody. Defendant had no identification and refused to identify himself beyond saying that his name was James.
Officer Kevin Miller transported defendant to the police station for booking. Miller removed some articles from defendant’s pocket, including a small plastic vial of a type commonly used to store methamphetamine or cocaine, and placed them on the counter. At one point, defendant “snatched” the vial from the counter and it “disappeared.” Defendant began hyperventilating, grasped his side and bent over as if he was in pain and fell to the ground. Miller found the vial under the counter and it was empty, leading him to believe defendant may have ingested any contents it may have had.
Defendant was transported to a hospital where he continued to act as if he was in pain, but refused to be examined. When defendant’s “‘complaints mysteriously ceased,’” he was taken back to the police station where he gave his correct name and was booked. Although defendant did not have identification, a wallet, or credit cards, he did have three counterfeit $100 bills in his right pants pocket. Defendant claimed he found the bills in front of the Sears store prior to his entry.
Michelle Turnovsky testified that a few days before defendant’s arrest her husband, Marc, had moved out over a disagreement regarding defendant’s use of drugs and his being in the house. The day of defendant’s arrest, Michelle found papers printed with $100 bills behind the refrigerator near defendant’s bedroom, which she shredded because she did not want them in the house. The police came to her house early the next morning to search defendant’s room and Michelle gave them the shredded bills. Marc had several computers in the home because he was a graphic artist, including one in the room defendant was using. The police seized the computer from defendant’s bedroom along with other computer equipment and parchment paper which were also in his room.
United States Secret Service Agent James Maples, an expert on counterfeit currency, testified that the three $100 bills were counterfeit, that they had been generated on a computer, and that they were of poor quality.
Defendant rested without presenting any evidence.
Discussion
I
Defendant contends the trial court committed reversible error pursuant to section 1054.1, subdivisions (d) and (e) and Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] when it refused his request to order the prosecutor to obtain and turn over to the defense discovery concerning the criminal history of Marc Turnovsky, a parolee whom the defense had placed on its witness list as a potential witness. We find no error.
Section 1054.1 requires the prosecution to disclose to the defendant “[t]he existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial” (subd. (d)) and “[a]ny exculpatory evidence” (subd. (e)) that the prosecution either possesses or knows is in the possession of one of its investigating agencies. Brady holds that suppression by the prosecution of evidence favorable to an accused upon request violates due process if the material is relevant to either guilt or punishment, irrespective of good or bad faith by the prosecution. (Brady, supra, 373 U.S. at p. 87.)
“Evidence is ‘material’ ‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different.’ [Citation.]” (In re Sassounian (1995) 9 Cal.4th 535, 544.)
Defendant makes the following argument, which he essentially made to the trial court, regarding the materiality of Marc Turnovsky’s testimony: “The defense could have questioned [Marc Turnovsky] about his computer equipment and whether he had created counterfeit money that he used to pay [defendant.] If Turnovsky denied such conduct, the defense then could have impeached him with his prior convictions. This would have been exculpatory because it would have created substantial evidence that [defendant] did not create the counterfeit money, as the prosecution contended, and did not have the intent to defraud anyone with it.”
What defendant has failed to appreciate in making this argument is that, as the court observed when it denied his request, defendant was not charged with counterfeiting, i.e., producing the fake bills, but was charged only with possessing them with the intent to defraud. Hence, how defendant came into possession of the bills was wholly immaterial. The only relevant question was whether defendant possessed the fake bills with an intent to defraud. That intent was established by defendant’s offering the clerk an item of merchandise to ring up, but having no credit cards or money to pay for the item other than the three counterfeit bills he possessed. Consequently, the court was not required to order disclosure of Marc Turnovsky’s rap sheet to defendant.
During final argument, defense counsel conceded that since “any fool could tell that those bills were counterfeit,” no argument would be made regarding a lack of knowledge that the bills were counterfeit.
II
Defendant contends the trial court committed reversible error when, during the insanity phase of his trial, it refused to instruct the jury that the prosecution had suppressed favorable evidence, namely a property sheet listing the plastic vial that had been taken from him at the police station. He contends the court’s refusal to give the instruction was error because the existence of the vial was material to his insanity defense, and the property sheet was relevant because it would corroborate the vial’s existence and show that it was taken from defendant. We disagree.
During trial, Officer Miller testified that when defendant was initially taken to the police station for booking, Miller removed a plastic vial from defendant’s pocket and placed it on the counter. At some point, defendant grabbed the vial and then fell to the floor and began hyperventilating. The vial was later found by Miller under the counter.
Defendant’s counsel informed the court that he was unaware of the vial’s existence until Miller’s testimony, and that he had spoken with the prosecutor, who confirmed that the property sheet listing the vial could not be found. Claiming the property sheet constituted “relevant, material, Brady issue matter” for both trial and a potential insanity defense, counsel wanted an instruction given “indicating that the prosecution has suppressed favorable evidence.” The court refused to do so.
Later, the matter was revisited and counsel offered an instruction on the prosecution’s failure to inquire into or locate the property sheet that listed the vial as having been taken from defendant. The court refused to give the instruction. Among other reasons, it concluded the property sheet would not have aided defendant.
Defendant’s proposed instruction read: “Both the People and the defense must disclose their evidence to the other side before trial within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence or to counter opposing evidence or to receive a fair trial. [¶] The People’s attorney, Mark Ott, failed to inquire into or locate a property booking sheet that would have disclosed the items in [defendant’s] pocket, including but not limited to an apparent drug receptacle testified to by Officer Miller. [¶] In evaluating the weight and significance of that evidence you may consider the effect, if any, of that late disclosure.”
Evidence Code section 210 provides in pertinent part: “‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
The existence of the vial and its having been taken from defendant at the Tracy police station were not “disputed fact[s].” Indeed, it was the prosecution’s witness, Officer Miller, who testified to having taken the vial from defendant at the Tracy police station. Since the property sheet would only have corroborated an undisputed fact, it was not relevant evidence. (Evid. Code, § 210.) Consequently, defendant was not entitled to an instruction sanctioning the prosecution for failure to provide such evidence.
Disposition
The judgment is affirmed.
We concur: MORRISON, J., ROBIE , J.