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People v. McGlohen

California Court of Appeals, Fourth District, Second Division
Jul 16, 2008
No. E043844 (Cal. Ct. App. Jul. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. INF050985, John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Rod Pacheco, District Attorney, and Daniel Ackerman and Jacqueline Jackson, Deputy District Attorneys, for Plaintiff and Appellant.

Kennedy & Roe and Michael J. Kennedy for Defendant and Respondent.


OPINION

King J.

After the trial court held defendant to answer for various charges related to a vehicle collision in which defendant was alleged to have been intoxicated, defendant filed a nonstatutory motion to dismiss and various other pleadings alleging the People committed Brady error in failing to provide defendant with information regarding a potentially exculpatory witness prior to the preliminary hearing. After a hearing during which that witness testified, the trial court found that the witness was material, that he was known to the People prior to the preliminary hearing, and that his testimony would have made a difference in the outcome of that hearing. Hence, the trial court granted defendant’s motion and dismissed all charges. On appeal, the People contend the court erred in determining that the witness’s testimony was exculpatory and would have made a difference in the probable cause determination. We find that no Brady error was committed because the witness’s testimony was neither favorable nor material; therefore, defendant was not deprived of a substantial right. The trial court erred in determining that disclosure of the witness would have undermined the probable cause determination. The judgment is, therefore, reversed.

Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady).

I. FACTS AND PROCEDURAL BACKGROUND

On March 20, 2005, at approximately 2:30 a.m., David Torres’s red Honda Civic collided with defendant’s vehicle in the middle of the intersection of Ramon Road and Indian Canyon. Torres’s vehicle was carrying passengers Christiana Clancy and John Garcia. Torres testified he was traveling westbound on Ramon Road. Torres and both his passengers indicated that he had a green light as he entered the intersection. Torres testified that as he proceeded into the intersection, defendant ran the red light. Torres indicated that defendant’s vehicle was coming from Torres’s left side, traveling southbound on Indian Canyon. He testified that Indian Canyon is a southbound one-way street; however, he also indicated he is dyslexic, gets directions mixed up, and that his indication that defendant was traveling southbound was a guess.

After extricating himself from his vehicle, Torres proceeded over to defendant’s vehicle, which he characterized as a 1986 or 1987 Toyota Corolla or Camry. Defendant was bloody and “passed out, laying across his driver’s seat and passenger seat.” Torres was bleeding profusely, for which he was taken to the hospital in an ambulance. He received eight or nine staples for a two-inch laceration on his head.

Officer Kyle Stjerne was dispatched to the scene of the accident. He found defendant unconscious and slouched in his vehicle across the front passenger section. Defendant informed Stjerne that he was driving on his way home from a bar. Defendant told him he had consumed four or five alcoholic beverages that night. Defendant indicated that on a scale of one to ten, he would characterize his level of intoxication as a five. Defendant said he saw a red light prior to entering the intersection; however, he denied running a red light. Defendant told Stjerne he was traveling northbound on Indian Canyon. Stjerne indicated that defendant’s breath smelled of alcohol, his speech was slow and slurred, and his eyes were red and watery. Stjerne found several open, empty containers of alcohol in defendant’s car, including three bottles of malt liquor and two large cans of beer; however, none of them were moist to the touch. Stjerne did not conduct field sobriety tests on defendant or place him under arrest because defendant was receiving medical treatment. Stjerne found a small pipe in defendant’s pants pocket at the hospital. Defendant said he had not smoked marijuana, but that he would probably test positive for it.

Based on the foregoing facts, Stjerne believed defendant was under the influence of alcohol when he was driving. Therefore, he called forensic blood nurses to come draw defendant’s blood. Sarah Villnave responded. At 4:13 a.m., Stjerne watched Villnave draw defendant’s blood. Testing of defendant’s blood resulted in a determination that it was .22 percent ethyl alcohol weight per unit of volume.

The People evidently charged defendant with several counts regarding the incident. After a preliminary hearing held in May 2005, at which defendant was apparently held to answer, defendant filed a Penal Code section 995 motion, which was granted. The People refiled, charging defendant with driving under the influence and, while so driving, violating an act forbidden by law which resulted in bodily injury to another person (count 1—Veh. Code, § 23153, subd. (a)) and driving under the influence with a blood/alcohol level of .08 or higher and, while so driving, violating an act forbidden by law which resulted in bodily injury to another (count 2—Veh. Code, § 23153, subd. (b)). The People alleged additional enhancements, including personal infliction of great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)), two separate allegations of injury to additional victims (Veh. Code, § 23558), and that defendant had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)). The second preliminary hearing occurred on July 20, 2005. As developed at the hearing, the violation of an act forbidden by law was alleged to have been defendant’s running of the red light. The court held defendant to answer on all charges. Beginning in October 2005, defendant began filing various motions for further discovery and dismissal pursuant to Penal Code section 995. On March 16, 2006, defendant filed a motion averring that the People had committed Brady error in failing to disclose a percipient witness with exculpatory testimony.

At an initial hearing on the matter, Christiana Clancy testified that, at some point, she became aware that an acquaintance of hers, Matt Power, had witnessed the accident. She reported this to the district attorney’s office and gave a deputy Power’s phone number. She testified she gave the information to the deputy on the day of the second preliminary hearing. However, she later indicated it was on the same day that she testified. It was uncontradicted below that Clancy testified solely at the first preliminary hearing, not the second. She variously testified that she gave the deputy Power’s name and phone number on the same day and that she gave the deputy Power’s name on one day, but his phone number some time much later. In any event, it appears indisputable that the district attorney’s office had some information regarding a percipient witness to the accident prior to the second preliminary hearing. The deputy district attorney later indicated that she “would be willing to stipulate that [Matt Power’s testimony would be] exculpatory.” She later reiterated, “I would be glad to stipulate that it was exculpatory”; however, defense counsel declined acceptance of the stipulation. The matter was continued to permit the examination of Power.

Matt Power testified that he observed the traffic collision from the IHOP parking lot at the corner of Ramon Road and Indian Canyon. He indicated that he told Clancy that night that he witnessed the accident. He testified that the car driving on Indian Canyon ran the red light. He did not recall telling the district attorney’s investigator or any of several other people who had contacted him regarding the accident that the car driving on Ramon Road ran the red light. Later, in response to defense counsel’s question as to whether he recalled telling defense counsel that the car on Ramon Road ran the red light, he replied, “[v]aguely.” Power testified that two vehicles were involved in the collision. One was a red Honda Civic two-door and the other was an older, dark, four-door vehicle with tinted windows, possibly a Nissan Maxima made in the 1980’s or early 1990’s. Indian Canyon runs north and south. Ramon Road runs east and west. The Honda was traveling eastbound on Ramon Road. The four-door sedan was traveling northbound on Indian Canyon. He could see the traffic lights going eastbound on Ramon Road. He could not see the traffic lights for Indian Canyon. The traffic light for Ramon Road, on which the Honda was traveling at the time of the accident, was green. When Power encountered defendant, defendant reeked of alcohol. He acknowledged that the district attorney’s investigator’s report indicated that Power had said that the Honda was traveling northbound, however, that was a mistake on his part or a misinterpretation on the part of the investigator.

Kalli Bolanis, a defense investigator, testified that Power indicated in an interview that the vehicle traveling on Ramon Road ran the red light. However, Power indicated during that interview that it was the Honda which was traveling north on Indian Canyon and the other car was traveling either east or west on Ramon Road. At a later point, Bolanis testified that Power told her he did not actually see which car was traveling in which direction because he had been blinded by the glare of the car’s headlights coming towards him. Thus, he only saw the vehicles’ make and model after the collision in which they had been spun around.

Defense counsel testified that during his multiple interviews with Power, Power always indicated that the car driving on Ramon Road was the one that ran the red light; however, defense counsel was careful never to discuss the makes or models of the cars involved. Defense counsel only questioned Power regarding directional issues.

The People indicated that it had requested investigators speak with Power on July 21, 2005. On July 29, 2005, an investigator spoke with Power. The People generated a report regarding the interview and faxed it to defense counsel on August 4, 2005. On August 19, 2005, defense counsel informed the People that no phone number was included for Power on the report. On September 26, 2005, the People gave defense counsel Power’s phone number.

The court determined that the only issue before it was whether Power could be considered an exculpatory witness. It noted that prior to the issuance of a subpoena, Power’s statements consistently reflected that the vehicle traveling on Ramon Road ran the red light. The judge, who was the presiding magistrate at the first preliminary hearing, resolved that, “If [Power] testified during [the] first prelim, I wouldn’t have held anybody to answer on a felony. I wouldn’t have probable cause or that level of evidence to hold him to answer. But he was not produced at the first prelim, and I don’t think that anybody except Ms. Clancy knew about him before the first prelim.” The court noted that Power “clearly has the wrong car going the wrong way no, ands[,] ifs[,] or buts.” Thereafter the court ruled “that Mr. Power was a material witness known before the second prelim and his testimony would have, at least in my mind, made a difference in the outcome of the prelim. And the motion to dismiss is granted.”

II. DISCUSSION

“Under Brady, ‘“the prosecution must disclose to the defense any evidence that is ‘favorable to the accused’ and is ‘material’ on the issue of either guilt or punishment.” [Citation.] Under Brady, “[e]vidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [¶] 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.]” (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1212.) “[D]ismissal is a proper sanction for a criminal discovery violation only when it is required by the United States Constitution . . . .” (Id. at p. 1208.)

“‘A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome . . . .’” (United States v. Bagley (1985) 473 U.S. 667, 674-675 [105 S.Ct. 3375, 87 L.Ed.2d 481].) “To the extent that California decisions construe the prosecution’s duty to disclose evidence under the Fourteenth Amendment’s due process clause more broadly [than federal law] [citation], they are erroneous and are hereby disapproved. It is plain that the federal constitutional provision ‘requires disclosure [by the prosecution] only of evidence that is both favorable to the accused and “material . . . .”’ [Citation.] Hence, it is not correct to state, for example, that ‘the prosecution’s duty of disclosure extends to all evidence that reasonably appears favorable to the accused . . . .’ [Citation.] Although some of our decisions may contain ambiguous language, they are substantially sound, and should be read in conformity with Bagley. [Citations.]” (In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.)

While not raised by the People, it is problematic that the present facts even implicate Brady. From the record, it would appear that the People were notified of Power’s identity on May 17, 2005, after the first preliminary hearing. One day following the second preliminary hearing, the district attorney began its effort to locate Mr. Power. Indeed before the second preliminary hearing, the district attorney had no knowledge, constructive or otherwise, as to what Mr. Power would say. (See In re Littlefield (1993) 5 Cal.4th 122, 135; Eleazer v. Superior Court (1970) 1 Cal.3d 847, 852-854.)

Failure to disclose material, exculpatory evidence to the defense prior to a preliminary hearing is Brady error. (Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1597; Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 272; Currie v. Superior Court (1991) 230 Cal.App.3d 83, 100-101.) Where Brady error has been committed at the preliminary hearing stage, the defendant has been denied a substantial right and dismissal of the charges may be appropriate. (Merrill v. Superior Court, supra, at p. 1597; Stanton v. Superior Court, supra, at p. 271; Currie v. Superior Court, supra, at pp. 100-101.) A “nonstatutory motion to dismiss is the appropriate vehicle for redress of an error not known or visible at the [preliminary] hearing itself. [Citations.]” (Merrill v. Superior Court, supra, at p. 1596; see also People v. Duncan (2000) 78 Cal.App.4th 765, 772; Stanton v. Superior Court, supra, at p. 271; Currie v. Superior Court, supra, at pp. 90-92.) Here, defendant correctly filed a nonstatutory motion to dismiss the charges because the basis of his Brady error contention did not appear on the face of the preliminary hearing transcript itself, but required resort to the additional testimonies of Clancy, Power, Bolanis, and defense counsel himself.

When a trial court is faced with a nonstatutory motion to dismiss based on Brady error, the court is required to “look to the materiality of the nondisclosed information and what effect it had on the determination of probable cause.” (Merrill v. Superior Court, supra, 27 Cal.App.4th at p. 1596.) “It is appropriately the trial court’s responsibility to accord weight and then to balance the relative importance of testimony. . . . [T]he lower court [must] scrutinize[] each piece of incriminating evidence from the preliminary hearing and then carefully weigh[] it against the exculpatory effect [of the nondisclosed information]. That weighing process [is] best . . . done by the judicial officer who personally observed each witness.” (Id. at p. 1597.)

On review, “[c]onclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review. [Citation.] Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence. [Citation.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)

Here, the trial court’s finding that Power’s testimony would have affected the determination of probable cause at the second preliminary hearing is not supportable. In the first instance, the court failed to conduct the proper balancing test of weighing the incriminating evidence from the preliminary hearing with any exculpatory effect of the nondisclosed evidence. The judge was not the same magistrate who made the probable cause determination at the second preliminary hearing, but was the magistrate who presided over the first preliminary hearing. While the court apparently indicated that it had read the transcripts of the second preliminary hearing, the court appears to have assessed Power’s testimony against the evidence adduced solely at the first preliminary hearing: “I didn’t do the second prelim. If [Power] testified during [the] first prelim, I wouldn’t have held anybody to answer on a felony. I wouldn’t have probable cause or that level of evidence to hold him to answer. But he was not produced at the first prelim, and I don’t think that anybody except Ms. Clancy knew about him before the first prelim.”

Moreover, we disagree with any insinuation of Power’s testimony as even remotely exculpatory. Power testified that defendant’s vehicle was the one traveling on Indian Canyon and that defendant had run the red light. He testified that Torres’s vehicle was traveling on Ramon Road and had a green light at the time of the collision. While he acknowledged that the district attorney’s investigator’s report indicated that he had initially stated that Torres’s vehicle was the one traveling on Indian Canyon, he clarified that this was either a mistake on his part or a misinterpretation by the investigator. Regardless, the report still indicated that Power stated Torres had the green light. While Bolanis, the defense investigator, testified that Power had reported that the car traveling on Ramon Road had run the red light, Bolanis conceded that Power stated defendant was the one traveling on Ramon Road and that Torres was traveling on Indian Canyon. Likewise, while defense counsel testified that in his multiple interviews with Power, Power consistently stated that the car traveling on Ramon Road had run the red light, he admitted that he never asked Power which car was traveling on which road. While Power may have exhibited confusion at some points regarding which vehicle was traveling on which road and in which direction, Power consistently indicated that Torres had a green light and defendant ran the red light. Any attempt to “spin” Power’s account as exculpatory for defendant simply does not work.

At oral argument, defendant submitted that the trial court’s dismissal of the case inferentially reveals that it made a credibility determination in favor of Bolanis’s testimony that Power told her he did not see the make or model of either vehicle until after the accident. Hence, the court concluded that Power only witnessed the color of the traffic light on Ramon Road immediately prior to the collision. Thus, the trial court effectually discounted the accounts Garcia, Torres, and Clancy provided to Stjerne and the credibility of the testimonies of Torres, Clancy, and Power, as well as Bolanis’s initial testimony that Power told her he did see the types of vehicles traveling on the respective roads prior to the accident. This left the court solely with the fact that Power had seen “the car” traveling on Ramon Road, which we now know to be Torres’s vehicle, run the red light. Such a credibility determination, argues defendant, may not be set aside by this court. However, the record does not reveal that the trial court made any such credibility determination. First, the trial judge who dismissed the instant case did not preside over the second probable cause determination; thus, he was not in a position to judge the credibility of the accounts provided by Garcia, Torres, and Clancy to Stjerne and developed by his testimony at that hearing. Likewise, he could not make a credibility determination regarding Torres’s testimony at that hearing. Second, the court actually determined that Power’s testimony, not Bolanis’s, would have made a difference in the probable cause determination. Power’s testimony was that defendant ran the red light. Power never testified that Torres ran the red light, that he ever said that Torres ran the red light, or that he did not know which car ran the red light. Thus, Power’s testimony strengthened the probable cause determination.

Furthermore, when weighed against the incriminating evidence from the preliminary hearing, it is clear that Power’s testimony would not have altered the probable cause determination. Torres and both his passengers, Garcia and Clancy, indicated that Torres had the green light. Torres testified that defendant ran the red light. While defendant denied running the red light, he admitted seeing a red light prior to entering the intersection. While Torres also indicated some confusion regarding the direction defendant was traveling at the time of the collision, he consistently indicated that defendant ran the red light, while he had a green light. There was simply nothing in Power’s testimony to overcome the incriminating evidence adduced at the preliminary hearing. Indeed, as the People noted below, rather than being exculpatory, Power’s testimony further incriminated defendant. Power uniformly indicated that defendant ran the red light. The only way the trial court could have determined that the nondisclosed evidence would have altered the probable cause determination is by ignoring all the evidence presented at the preliminary hearing and ignoring Power’s own testimony and Bolanis’s testimony that Power witnessed defendant’s vehicle run the red light. The trial court’s reliance on defense counsel’s testimony alone, that Power witnessed “the car” traveling on Ramon Road run the red light, while entitled to some deference, flys in the face of all the remaining evidence. Moreover, it violated the court’s duty to balance that testimony with that presented at the preliminary hearing. Based on our independent review of the record, no Brady violation occurred. The judgment is reversed.

“Ordinarily, if there is some evidence in support of the information, the reviewing court will not inquire into its sufficiency. [Citations.] Thus, an . . . information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged. [Citations.]” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)

Because we determine that the trial court’s judgment was not supported by substantial evidence and must, therefore, be reversed, we do not address, as unnecessary, the People’s additional contentions that the order was void because the court did not state its reasons for the dismissal in the minutes and that the court was required to impose a less severe sanction for any Brady error.

III. DISPOSITION

The judgment is reversed.

We concur: Ramirez P.J., Hollenhorst J.


Summaries of

People v. McGlohen

California Court of Appeals, Fourth District, Second Division
Jul 16, 2008
No. E043844 (Cal. Ct. App. Jul. 16, 2008)
Case details for

People v. McGlohen

Case Details

Full title:THE PEOPLE, Plaintiff and Appellant, v. JOHN ROSS MCGLOHEN, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 16, 2008

Citations

No. E043844 (Cal. Ct. App. Jul. 16, 2008)