Opinion
B227562
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN LARNTHELL LOVE, Defendant and Appellant.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA035962)
APPEAL from a judgment of the Superior Court of Los Angeles County, John Murphy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant John Love guilty of the second degree robberies of Eloisa Ochoa, Ingemar Ochoa, and Magaly Alvarado Ochoa in violation of Penal Code section 211, specially finding defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). The trial court sentenced defendant to a prison term of 23 years 8 months, consisting of 15 years for the base count (the upper term of 5 years, plus the 10-year weapon enhancement) and consecutive terms of 4 years 4 months for the other two robberies (one-third the middle term of 3 years, plus one-third of the weapon enhancement).
We refer to the Ochoas by their first names due to their common surname.
All further statutory references are to the Penal Code, unless stated otherwise.
In his timely appeal, defendant makes two contentions concerning his unsuccessful new trial motion: (1) the trial court's denial of a continuance was an abuse of discretion and so arbitrary as to violate his right to due process under the state and federal Constitutions, and (2) his federal due process rights under Brady v. Maryland (1963) 373 U.S. 83 (Brady) were violated by the prosecution's failure to disclose material evidence.
We affirm.
STATEMENT OF FACTS
Ingemar owned a dry cleaning shop called Galaxy Cleaners located on East Palmdale Boulevard, where he worked with his sister Magaly and his wife Eloisa. At approximately 7:30 p.m. on August 15, 2006, he was in the back of the store. He heard a loud noise and walked toward the front. He saw an African-American male standing next to Magaly. A second African-American male—defendant—was hitting Eloisa's head with the butt of a handgun. Defendant walked to Ingemar, pistol-whipped him, and demanded that he open the cash register. Ingemar complied with defendant's demand. Defendant took the money but was very angry because he wanted more. He continued to strike Ingemar with the gun and demand more money, asking about the safe. When Ingemar said there was no safe, defendant searched the cabinets below the cash register. Defendant found a box but threw it down when he found it was empty. Defendant demanded money and struck Ingemar again. Ingemar eventually handed defendant the cash he had in his pockets.
Ingemar identified defendant in court as the robber with the gun, who struck him and his wife.
Defendant took approximately $400 from the register and from Ingemar's person. Defendant also took an identification card, an employment authorization card, and credit cards from Ingemar's pocket. He ordered Ingemar, Magaly, and Eloisa onto the ground. The other robber stood next to Magaly. When the cell phone in Magaly's purse rang, defendant walked over and grabbed it. Defendant kicked Ingemar and told him not to call the police because defendant knew his name. Before leaving, defendant struck Ingemar on the head with his gun and ordered him not to get up.
The robbery lasted approximately 10 minutes. The store was well lit and Ingemar saw defendant's face, which was not covered. Within a week of the robbery, Ingemar chose defendant's photograph from a "six-pack" photographic lineup. He was also confident of his in-court identification. Ingemar was not present during his wife's identification, and he had not told her about his identification.
Magaly saw the robbers approach her and Eloisa. Defendant was the gunman, who was standing next to Eloisa. Defendant struck Eloisa in the head with his handgun. Defendant pointed the gun at Ingemar, demanded money, and took the money out of the cash register. When Ingemar said there was no more, defendant struck him repeatedly with the gun. After the cell phone rang, defendant took her purse and struck her head with his gun. Her identification card was inside the purse, along with a credit card and a debit card. Defendant took those cards and her cell phone. In addition to her in-court identification of defendant, Magaly identified his accomplice, the robber who stood next to her, from a photographic lineup.
Magaly did not recognize anyone in the photo-spread shown to her on August 16, 2006.
Eloisa recalled seeing two men enter the shop. Defendant kicked the door, pointed a handgun at her, and said, "Don't move" and demanded money. Eloisa, who did not speak English, said, "I don't know." Defendant struck her head with his gun. She was able to see defendant's face. After demanding money a third time, defendant grabbed her hair and pulled her blouse over her face to prevent her from looking at him. Eloise chose defendant's photograph from a six-pack lineup the day after the robbery. Ingemar was not with her at the time she viewed the photographs. Eloisa was very sure of her in-court identification.
The day after the robbery at 11:00 a.m., Officer Martin Nunes of the California Highway Patrol was in his patrol car when he saw a Ford Focus driving northbound on Interstate 5, apparently speeding. The officer's radar confirmed that the Focus was travelling at 96 miles per hour. Officer Nunes pursued the car and pulled it over. Defendant was the sole occupant. He identified himself as John Love and said he did not have his driver's license, which was suspended. When defendant handed the officer the car rental agreement, some marijuana spilled out. Officer Nunes asked if he had more. Defendant lifted a shirt on the passenger seat to reveal a plastic bag containing marijuana.
Officer Nunes searched the car. In the trunk, he found a roller bag containing Ingemar's identification card, employment authorization card, and credit card, along with Magaly's identification card, credit card, and debit card. Defendant told the officer that he had the cards for a legitimate purpose—they were employees of defendant's "phone business" and he needed to make copies of the cards because he believed they were illegally in the country. Defendant was arrested and turned over to the sheriff's department, along with the car and the property found inside. Deputy Brian Mohr found Magaly's cell phone in the Focus.
An audio-recording of the custodial interview of defendant by Detective Steven Saylor was played to the jury. Defendant was read and waived his Miranda rights, agreeing to talk about the robbery. He said he was at his sister's house from 7:00 to 8:00 on the night of August 15, 2006. At some point that evening, he went to a cigarette shop located near 45th Street. Defendant offered an explanation for his possession of the victims' identification cards that was entirely different from the one he gave to Officer Nunes—telling the detective that he went to a gas station where a "cat" offered to sell him a cell phone. He bought the phone, along with the cards. Defendant admitted putting them in the suitcase in his trunk. When told the owners of those cards had identified his photograph, defendant denied committing a robbery.
Defendant's nephew, Anthony Taylor, turned himself in for the Galaxy Cleaners robbery. Taylor's photograph was placed in a six-pack and shown separately to the victims on September 20, 2006. Eloisa identified Taylor's photograph as being the "person with the gun." Magaly identified Taylor's photograph as being the person who stood with her while the other robber took the money.
Defense
It was stipulated that when Taylor walked into the sheriff's station, he was not under arrest and not handcuffed. Taylor broke down crying and said that when his uncle had been stopped for speeding, the officers found a cell phone and credit card that Taylor had accidentally left behind.
Taylor testified that he was defendant's nephew. At the time of the robbery, Taylor lived in Palmdale. Defendant visited his house on the day before the robbery. He and defendant went out to dinner and spent the night at the home of his cousin, Tiffany Holland. Taylor planned to travel with defendant to Oakland the following day to work for defendant's company. They spent most of the day of August 15 at the home of Taylor's mother. A few others were there too, including Taylor's friend Tracy (who would later be identified as Tracy Cathey).
At approximately 6:00 p.m., Taylor and Cathey left the house alone intending to commit a robbery. Defendant had already left to go somewhere else. The store Taylor and Cathey had planned to rob, however, was closed when they arrived. On the drive back to Taylor's mother's home, they saw the Galaxy Cleaners and decided to rob it. Taylor had a nine-millimeter handgun. Taylor took the money from the cash register. Taylor took Ingemar's cards from his pocket, along with some cash. Taylor, not Cathey, had the gun at all times during the robbery.
After driving away, they stopped at a gas station and filled the car using the female victim's credit card. After that, they returned to Taylor's mother's house. Taylor told defendant he would go to Oakland the next morning. Taylor packed his belongings and the stolen cards in a roller bag and put it in the trunk of the Focus. He put the stolen cell phone in the center console. Taylor overslept and when he awoke, defendant had already driven off.
Taylor found out defendant had been arrested. He attended some of defendant's court hearings. Taylor decided to turn himself in when the victims identified defendant and it appeared that defendant might be convicted. Taylor pled no contest to the robbery and was sentenced to a prison term. When interviewed by the defense, Taylor said he did not know Tracy's last name. He also said Tracy was the gunman. Both statements were lies. Taylor did not mention Tracy when he turned himself in—he lied to the sheriffs.
Marquis Love, defendant's friend and non-relation, testified that he knew defendant and Cathey. On the evening of August 15, 2006, he saw defendant when Marquis was going to a weekly Jehovah's Witness meeting that began at 7:30 p.m. Defendant was in a car with Jonathan Harrison and Sal Gallegos driving southbound on 50th Street, while Marquis was driving northbound. Later that night, at approximately 10:00 p.m., he saw defendant, Harrison, and Taylor at Tiffany's house.
Defendant testified on his own behalf. In approximately 1998 and 2001, he was convicted of possessing narcotics for the purpose of sales. He owns an Oakland-based business called, "Brand New Life Sales and Marketing," which offers low-income home telephone service. On August 14, 2006, he stopped in Palmdale on his way back from Las Vegas with a girlfriend. He saw Taylor that day, and they spoke about Taylor working for him in Oakland, but Taylor was reluctant. They went out to dinner together that night and slept at Tiffany's house. The next morning, they went to defendant's sister's house. Harrison was there. At some point, defendant left the house to buy liquor with Harrison and Taylor. Later that afternoon, Cathey arrived. At that time, however, defendant did not know Tracy's last name.
On cross-examination, he testified that he did not know his business's address.
Later that evening, Taylor and Cathey left the garage where they were all drinking and smoking. Defendant did not know where they were going. Defendant did not see them again for "about two hours." While Cathey and Taylor were out, defendant went to a smoke shop with Harrison, Sal, and Cathey's girlfriend, Ashley Collins. Shortly thereafter they returned but left again, this time to buy marijuana. On the way, he saw Marquis. Upon returning, they smoked marijuana in the garage. Taylor and Cathey returned sometime after that and went inside the house. They did not mention committing a robbery.
When he saw Taylor some time later that evening, Taylor "might have had a suitcase." Defendant had planned to leave for Oakland with Taylor the next morning. He warned Taylor that he would not wait for him. Defendant did not know Taylor had placed the roller bag in the car trunk. The next morning, Taylor had a "hangover" and did not want to leave. He and defendant argued. Defendant "stormed out," got into his car, and headed north on the freeway, where he was pulled over by the California Highway Patrol.
Defendant lied to the officer about the identification cards because he knew they were from Taylor and he did not want to "tell on him." Defendant saw the officer remove them from Taylor's suitcase. When questioned by the detective, defendant lied about the incident at the gas station where he supposedly got the identification cards. Again, he was "scared to tell on [his] nephew." By that time, defendant had "put two and two together" and realized Taylor must have committed the robbery, and he was suspicious about whether Cathey was Taylor's accomplice. He spoke to his attorney about it, but not to law enforcement. Defendant did not own a gun in 2006, and he did not use a gun in the charged robberies.
Mitchell Eisen, Ph.D., testified regarding how the human memory works. According to the psychologist, all memory is "reconstructed." Most people recall quite well the major features of what they experience, but every time they recall it, they fill in details or gaps—and those new additions, whether correct or mistaken, become the memory. A "source monitoring error" occurs when a person receives plausible additional information from sources other than his or her initial experience of the event and comes to believe that he or she remembered the new information. Generally speaking, people are worse at identifying persons of different races from their own. When an event is perceived under stressful conditions, the witness is less likely to perceive surrounding circumstances and events. A person's ability to recall an event diminishes dramatically over the first 20 to 100 hours after it occurs. Persons who perceive the same event will tend to give similar reports after talking to each other. The psychologist also stated there was almost no relationship between a witness's confidence in his or her identification and the accuracy thereof.
Rebuttal
Dan Peavy, an investigator for the public defender's office, interviewed Taylor in Lancaster State Prison on December 1, 2006, concerning defendant's case. Taylor said nothing about going to Oakland with defendant. Taylor did not want to identify his accomplice or "crimey." Peavy asked Taylor about Tracy because the name was listed on the police report as a person who was in the house. Peavy wanted to interview Tracy and tried to find out his last name and a physical description, but Taylor would not provide that information. When Peavy asked why Taylor did not tell the police about Tracy, Taylor said Tracy was not with him. Taylor told Peavy that Taylor had left items from the robbery in defendant's car.
Defendant never told Detective Saylor during the interview about Taylor going with him to Oakland. When Detective Saylor received information potentially linking Tracy Cathey to the robbery, he created a new six-pack that included Cathey's photograph and showed it to all three victims on June 28, 2007. None recognized anyone in the six-pack as being involved in the robbery.
Detective Saylor had received Cathey's name from defense counsel. He did not know about his name before that.
DISCUSSION
New Trial Motion
On March 24, 2008, defendant filed his first new trial motion, which was based on allegations of juror misconduct not at issue on appeal. It was denied on May 1, 2008. On October 21, 2008, after a series of continuances of the sentencing hearing, defendant retained private counsel Howard Williams in place of appointed trial counsel Wayne Redmond.
The second new trial motion was filed on January 28, 2010, asserting two grounds for relief. The first, which is not at issue on appeal, concerned instances of alleged jury misconduct. The motion also alleged that a new trial was warranted on the basis of newly discovered evidence consisting of a private investigator's report of Cathey's December 19, 2009 verbal confession to being Taylor's sole accomplice in the Galaxy Cleaners robbery. According to the report and declaration of Investigator Rick Hippach, he interviewed Cathey at the Pitchess Detention Center, where Cathey was incarcerated for an unrelated offense. Cathey gave the investigator a detailed description of his role in the robbery in which Taylor was the gunman. The statement generally accorded with Taylor's trial testimony. "Cathey also insisted that [defendant] had no idea what [Taylor and Cathey] were up to that day . . . ."
Defendant moved to augment the appellate record to include Hippach's declaration filed with the new trial motion, which is missing from the superior court file. This court issued an order on August 11, 2011, assigning a referee to conduct an investigation and hearing in an effort to identify a copy of the declaration. The commissioner is to hold a hearing within 30 days of that order and file a report 10 days after the hearing. John Murphy, a superior court commissioner, obtained the declaration from appellate counsel and forwarded it to this court on September 7, 2011.
On April 14, 2010, the trial court conducted a hearing on the new trial motion. Prior to that, the sentencing hearing had been continued approximately nine times since new counsel had been retained.
The trial court examined trial counsel Redmond, who testified that he was aware of Cathey during his trial preparations, having learned about him from defendant's first counsel on this matter, Deputy Public Defender Dana Plummer. Plummer did not provide any statements by Cathey, nor did Plummer provide Redmond with a photograph. Redmond worked with his investigator to obtain information about Cathey. He asked his investigator to find a photograph of Cathey, but he had no access to the Department of Motor Vehicles or booking records. Redmond eventually reached an agreement with the prosecutor's office to perform another photographic lineup with the victims using a photograph of Cathey in the possession of the prosecutor's office. Redmond's investigator found nothing else and could not locate Cathey. Redmond presumed the prosecutor's office had no information of Cathey's whereabouts or it would have been disclosed to him. The prosecutor knew the defense theory was that the two robbers were Taylor and Cathey.
On cross-examination by the prosecutor, Redmond acknowledged that he did not know what efforts his investigator took to locate Cathey, including whether he checked the telephone listings. Redmond understood that at least some persons in defendant's family were not able to provide Cathey's location. Hippach also testified concerning his interview of Cathey. When he arrived at the jail, Cathey said he had been expecting the visit. Cathey said that defendant was innocent; Cathey "did it."
The trial court found Redmond's testimony credible and that Redmond reasonably relied on his investigator's efforts in trying to locate Cathey. The court declined to make an immediate ruling on the motion, however, ordering the matter continued to May 12, 2010, with the understanding that the prosecution would have the opportunity to investigate Cathey prior to that date.
The prosecution's written opposition to the new trial motion, filed May 11, 2010, contained a report by a senior investigator for the district attorney's office, stating that he and another investigator attempted to conduct a digitally-recorded interview with Cathey on the morning of April 28, 2010, at the state prison where he was incarcerated. When read his Miranda rights, Cathey invoked his right to remain silent. While the investigators were packing up their materials to leave, Cathey changed his mind. One of the investigators turned the recording equipment back on and read the witness his Miranda rights again. Cathey waived his rights and agreed to talk about the matter.
Cathey told the investigators that he did not participate in the Galaxy Cleaners robbery, but on December 17, 2009 (two days before the interview by Hippach), he made the decision to help out defendant, his lifelong friend. Cathey "decided to accept the blame and the conviction [for] the robbery, a crime he did not commit, because he expected to get only two years prison time and [defendant] would go free." On that day, Cathey and defendant were fortuitously placed in the same holding cell. Defendant threatened Cathey and said Cathey would only receive a two-year sentence because of his "clean criminal record." When the defense investigator met with him, Cathey chose to "confess" to the robbery because of defendant's threat and because the investigator said he would receive a two-year sentence. Cathey received "some of the details" about the robbery from Taylor.
The investigator reported that a computer database search confirmed that both defendant and Cathey were present in the Antelope Valley Courthouse on December 17, 2009.
The recording was stopped while the prosecution investigators contacted the deputy district attorney concerning Cathey's "penalty exposure." They returned to the recorded interview with the information that the minimum penalty in defendant's case was 21 years 8 months. Cathey told the investigators he did not believe them because "everyone told him two years would be the sentence."
The May 12, 2010 hearing was continued twice on defendant's request to August 10, 2010. On that date, the defense requested another continuance "to tie up some loose ends" regarding the newly discovered evidence. Counsel had been unable to do that because of "a lack of funds" from his client, but he had just received payment for further efforts. He represented that he knew Cathey had lied to the prosecution investigators and requested a chance to "find out why." The trial court denied the continuance and the motion, finding Cathey's confession would not affect the verdict on a retrial because the witness would have little or no credibility in light of his recantation.
The trial court had listened three times to Cathey's recorded interview with the prosecution investigators. In comparing the defense investigator's report with the audio-recording of the prosecution interview, the trial court found "Cathey has recanted his confession"—a confession he was "put upon to make in the first place." It also found that information concerning Cathey's whereabouts had been readily available in the court file since approximately 2006. In making its ruling, the court found no good cause to grant a further continuance because the defense had already been given a reasonable amount of time to complete its investigation. Moreover, additional defense investigation was not likely to be fruitful because the confession had been so persuasively recanted.
Denial of Continuance
Defendant contends the trial court's denial of a continuance to conduct further investigation on his new trial motion was an abuse of discretion and so arbitrary as to violate his right to due process under the state and federal Constitutions. The contention fails because the trial court's ruling was reasonable in light of the court's well-supported findings that defendant had failed to justify his delay in completing the investigation and further investigative efforts would be of little or no value in light of Cathey's credible recantation.
We review the trial court's ruling on a new trial motion under a deferential abuse-of-discretion standard. (People v. Coffman (2004) 34 Cal.4th 1, 127; People v. Navarette (2003) 30 Cal.4th 458, 526.) As our Supreme Court has explained: "'"The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."' [Citations.] '"[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background."' [Citation.]" (People v. Delgado (1993) 5 Cal.4th 312, 328.) At the same time, however, as to our ultimate prejudice inquiry, "article VI, section 13 of the California Constitution obliges the appellate court to conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred. As in any appeal from a final judgment, the reviewing court must determine for itself whether errors denied a fair trial to the party against whom the judgment was entered." (People v. Ault (2004) 33 Cal.4th 1250, 1261-1262, fns. omitted (Ault).)
"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, supra, 5 Cal.4th at p. 328; People v. Musselwhite (1998) 17 Cal.4th 1216, 1251-1252 [a new trial is authorized under § 1181, subd. (8) "when 'new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial.'"].)
With regard to the fourth factor—exercise of reasonable diligence in discovering the newly discovered evidence—we see nothing arbitrary or improper. The defense had always been aware of Cathey's supposed role in the robbery. According to the prosecution investigation, Cathey was defendant's "lifelong friend." Review of Cathey's court records would have revealed his address. The jury rendered its verdicts on February 18, 2008. The first new trial motion was filed on March 24, 2008, by appointed counsel. Some seven months later, defendant retained private counsel, who filed the underlying new trial motion three months after that, on January 28, 2010, based on the report of Cathey's December 19 confession. Even after the initial hearing on the motion, defendant was granted two continuances of the May 12, 2010 hearing date—to August 10, 2010, the defense requested another continuance of unspecified length, based entirely on the representation that counsel had only just received payment to conduct further investigation. Defendant offered no explanation as to why a complete investigation could not have been completed within the time made available, despite the numerous continuances granted.
Contrary to defendant's assertion, mere lack of funds to pay one's retained counsel does not require the granting of a continuance. The case defendant relies on, People v. Goodwin (1927) 202 Cal. 527 (Goodwin),presented a far more compelling case. At the time of that decision, of course, there was no constitutional right to counsel in criminal trials as recognized in Gideon v. Wainwright (1963) 372 U.S. 335. In Goodwin, the defendant was without funds at the time of trial and was therefore without an attorney "for some time." (Goodwin, supra, at p. 538.) Additionally, his retained counsel failed to perform an adequate trial investigation, which was exacerbated by trial counsel's documented lack of preparation and physical infirmities: "The record discloses that this attorney was so nearly blind that he was compelled to rely upon his daughter to read not only the transcript of the daily proceedings, but all the exhibits and documents offered at the trial and he was also suffering from other physical infirmities of a most serious nature." (Ibid.) Additionally, the defendant "had been obliged to change attorneys several times because those who had undertaken to represent him would not proceed without a retaining fee"—and one of his attorneys did nothing with the information the defendant had provided. (Id. at pp. 538-539.)
In contrast, defendant was not only represented by appointed counsel at trial and through the course of the first new trial motion, but defendant retained counsel to prepare a second new trial motion—and that counsel managed to obtain Cathey's statement. No justification other than nonpayment of fees was shown for the delay in undertaking additional investigation in an effort to challenge Cathey's recantation.
Moreover, the record provides strong support for the trial court's finding that defendant failed to satisfy the third factor— that the newly discovered evidence would render a different result probable on a retrial of the cause. Here, the strength of Cathey's initial confession depended on a credibility determination that took his subsequent recantation into account. "The role of the trial court in deciding a motion for new trial based upon a witness's recantation is to determine whether the new evidence is credible, i.e., worthy of belief by the jury. That determination is made after a consideration of all the facts pertinent to the particular issue. The trial court is not the final arbiter of the truth or falsity of the new evidence. [¶] Once the trial court has found the recantation to be believable, it must then decide whether consideration of the recantation would render a different result on retrial reasonably probable." (People v. Minnick (1989) 214 Cal.App.3d 1478, 1482; see also People v. Delgado, supra, 5 Cal.4th at p. 329.)
The trial court listened carefully to Cathey's recantation in the recorded interview and found it entirely credible. That determination finds strong support in the record. As the prosecution established at trial, none of the witnesses recognized Cathey's photograph when Detective Saylor presented it to them in a pretrial photographic lineup. Also, when a defense investigator interviewed Taylor in prison, Taylor said Cathey was not with him during the robbery. Thus, even if further posttrial investigation yielded a sworn statement by Cathey in which he reaffirmed his hearsay confession, it is entirely reasonable to find that it would not carry much weight with a jury, given the strong bases for impeachment, including a highly persuasive recantation coupled with defendant's threats. Accordingly, we find no abuse of discretion. Nothing in the record would support our interference with the trial court's denial of the continuance and the motion for new trial. (See People v. Delgado, supra, 5 Cal.4th at p. 329.)
We are aware that in People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 and footnote 7 (Albarran),our colleagues in Division Seven of this court read Ault, supra, 33 Cal.4th at page 1261 and People v. Nesler (1997) 16 Cal.4th 561, 582 to dictate de novo review for orders denying motions for new trial when the ruling implicates the defendant's federal constitutional rights to due process and concerns the fundamental fairness of his trial. We do not understand Ault or Nesler as having changed our Supreme Court's longstanding precedent concerning the standard of review applicable to new trial rulings. Rather, those decisions merely recognized that in conducting an assessment of prejudice or in determining whether a lower court ruling affected a miscarriage of justice, a reviewing court will typically make the kind of independent evaluation appropriate for such mixed questions of law and fact. In any event, as in Albarran, supra, at page 225, footnote 7, our conclusion would be the same under either standard. Brady Error
In a related argument, defendant contends his right to due process under the Brady line of cases was violated by the prosecution's failure to disclose material evidence— specifically, information of Cathey's whereabouts. The claim fails because that information was not material for purposes of the Brady rule. Defendant fails to demonstrate that the prosecution had reason to consider Cathey an exculpatory witness at any time during the pretrial investigation or during the trial itself.
Due process requires the prosecution to disclose exculpatory material evidence to the accused. (Brady, supra, 373 U.S. at p. 87; People v. Jenkins (2000) 22 Cal.4th 900, 954 (Jenkins).)Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57; Jenkins, supra, at pp. 952, 954.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings." (Jenkins, supra, at p. 954.) "A prosecutor's duty under Brady to disclose material exculpatory evidence extends to evidence the prosecutor—or the prosecution team—knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. (See In re Brown (1998) 17 Cal.4th 873, 879.) In Kyles v. Whitley (1995) 514 U.S. 419, 437-438, the Supreme Court held that a prosecutor has a duty to learn of favorable evidence known to other prosecutorial and investigative agencies acting on the prosecution's behalf, including police agencies. The scope of the prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access. (People v. Robinson (1995) 31 Cal.App.4th 494, 499.)" (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314-1315.) On the other hand, "'[a]lthough 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 . . . the defendant has all that is necessary to ensure a fair trial . . . .' [Citations.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1134.)
Defendant's primary argument is that the prosecution team knew that the defense considered Cathey a potential defense witness and must have been aware of Cathey's whereabouts, but failed to disclose that information to the defense in violation of Brady and United States v. Agurs (1976) 427 U.S. 97, 110 (Agurs) (even without a specific request, a prosecutor must disclose evidence that "is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed"). As the Attorney General points out, however, it is clear that under Brady, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." (Agurs, supra, at pp. 109-110.) Again, the prosecution has no duty to conduct the defendant's investigation for him, which is essentially what defendant argues here. (People v. Salazar (2005) 35 Cal.4th 1031, 1048-1049.)
Defendant's repeated assertions that the prosecution suppressed material, exculpatory evidence all derive from the erroneous assumption that the prosecution team had reason to think Cathey possessed exculpatory evidence. However, as has been shown, the prosecution had no good reason to think Cathey could offer a reliable confession that exculpated defendant. To the contrary, not only did the victim-witnesses fail to identify Cathey's photograph, but as late as December 1, 2006, when interviewed by the defense, Taylor denied Cathey participated in the robbery (inconsistent with his trial testimony). The duty of disclosure under Brady jurisprudence "must derive from the obviously exculpatory character of certain evidence in the hands of the prosecutor"— evidence that is "clearly supportive of a claim of innocence." (Agurs, supra, 427 U.S. at p. 107.) In seeking to show the prosecution possessed such exculpatory evidence, defendant improperly assumes the availability and reliability of Cathey's posttrial confession. However, for Brady purposes, it is a matter of pure speculation that the defense could have located Cathey or obtained an admissible confession. Moreover, defendant's speculative approach ignores the trial court's credibility determination as to Cathey's posttrial recantation. That finding provides yet another basis for finding the supposed Brady information was nonmaterial.
Throughout defendant's appellate briefing, he charges that the prosecution committed "misconduct" by failing to provide information of Cathey's whereabouts. However, no allegations of prosecutorial misconduct were raised by the defense in the trial court, and the lower court had no occasion to make any findings on that issue. Therefore, to the extent defendant attempts to argue prosecutorial misconduct independently of his Brady claim, that argument is forfeited on appeal. "„To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.' (People v. Price (1991) 1 Cal.4th 324, 447.)" (People v. Kipp (2001) 26 Cal.4th 1100, 1130.)
Similarly, for purposes of the due process claim, the Brady court "expressly rejected the good faith or the bad faith of the prosecutor as the controlling consideration: 'We now hold that the suppression by the prosecution of evidence favorable to an accused upon request 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.'" (Agurs, supra, 427 U.S. at p. 110, fn. 17, quoting Brady, supra, 373 U.S. at p. 87.) As our discussion makes plain, nothing in the record supports a finding that the prosecution had reason to believe Cathey was Taylor's robbery partner.
We note that defendant's assertions in the appellate briefs that the prosecution "hid" evidence of Cathey's whereabouts, along with insinuations that the prosecution lied and concealed information, all find no support in the record.
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In sum, defendant fails to demonstrate the suppression of material evidence such that a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. (See Pennsylvania v. Ritchie, supra, 480 U.S. at p. 57; Jenkins, supra, 22 Cal.4th at pp. 952, 954.) As our discussion makes plain, on this record, there is no reasonable probability that disclosure of Cathy's whereabouts would have led to evidence yielding "a probability sufficient to undermine confidence in the outcome of the proceedings." (Jenkins, supra, at p. 954.)
DISPOSITION
The judgment is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J. MOSK, J.