Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF007999. Eugene L. Huseman, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant and appellant Charles Alen Moffat appeals from his conviction of robbery (Pen. Code, § 211, count 1), criminal threats (§ 422, count 2), and assault with a semiautomatic firearm (§ 245, subd. (b), count 3). The jury also found true the allegations that defendant had personally used a firearm in the commission of the crimes. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) Defendant contends his conviction of count 3 and the firearm enhancements should be vacated for federal due process violations because (1) the trial court denied a defense motion to dismiss count 3 and the firearm use allegations based on the loss or destruction of favorable material evidence (specifically the nine-millimeter handgun and the pellet gun recovered from the getaway vehicle and the surveillance videotape of the robbery); (2) the trial court denied a defense motion to exclude still photographs, whose accuracy and reliability could not be tested at trial without the undisclosed evidence; and (3) the trial court refused to give a requested jury instruction that would have informed the jury of, and allowed the jury to consider, the nondisclosure of the evidence and its impact on defendant’s ability to defend against the charges and allegations. Defendant further contends his concurrent sentence for count 3 violated section 654. We find no error, and we affirm.
All further statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL BACKGROUND
At around 10:30 p.m. on May 31, 2004, Monique Brown, an employee of the Exxon Mobil gas station and minimart on Perris Boulevard in the City of Perris, went to take out the garbage; the gas station had just closed. Dawn Jillson, the gas station manager, and Eva Flores and Roberta Oliver, gas station employees, were standing outside near the front entrance. Brown suddenly returned, followed by a man who was dressed in black or blue clothing and was wearing a hooded sweatshirt with the hood pulled over his head covering his face.
The man ordered the women to go inside. Jillson unlocked the door, and they all entered the gas station. Oliver tripped on a mat and fell down; she then lay on the floor a few feet inside the door. The man followed Flores and held a hard object, which felt like a metal gun, against her back, using it to push her inside. Flores turned and looked at the man and saw he had a silver gun in his left hand. When she turned, the man hit her on the back of her head with a heavy metal object, which she assumed was the gun. He hit her hard enough that she saw “lights” or “stars.” The man told her to lie down, then pushed her to the ground and ordered her to keep her face down. The man yelled, “Nobody move or I’ll shoot.”
The man walked to the back office and ordered Jillson to give him money. The gas station’s cash had previously been sorted into blue numbered envelopes. The man took the money in those envelopes and ran out of the store, stepping on Flores’s back on the way out. Oliver was hit with something during the incident, and she had a cut on her face.
At around the same time, Sarah Tiley, her boyfriend Steve, and another friend, Stevie Taylor, passed by the gas station in Steve’s car. Tiley noticed a man “sort of darting around at the front” of the gas station in a frantic manner. The man was wearing dark pants, light shoes, and a white hooded sweatshirt with a dark jacket over it. Tiley suspected a robbery was taking place and told Steve to stop.
Steve drove into the gas station’s parking lot, and as he did so, the man ran out of the station and around the corner. Steve and the others followed in their car at a distance of about 15 feet as the man ran to a white Chevrolet van parked in a nearby lot and got into the passenger side. The man looked back while he was running, and Tiley saw his face. Tiley did not see a gun, but the man had his hands in his sweatshirt pockets as if he was holding on to something.
Meanwhile, Taylor called 911 and gave the dispatcher the license plate number of the van. The driver was looking back at them through the driver’s side window, and Tiley could clearly see his face. He was an older man with a white beard, a hat, and glasses. The van drove quickly away, turning right out of the parking lot.
Tiley and the others went into the gas station and found the women inside crying hysterically. Two of the women were bleeding.
Corporal Chad Loeffler of the Riverside County Sheriff’s Department heard the dispatch report of an armed robbery at the gas station and started driving to the area at around 10:45 p.m. Within two minutes of the dispatch broadcast, Corporal Loeffler spotted a van that matched the description of the vehicle involved in the robbery. The van was heading north on Perris Boulevard less than two miles from the gas station. The van’s license plate matched the number dispatch had reported, and Loeffler and backup officers stopped the van. Wayne Peterson was the driver, and defendant was the only passenger.
Peterson entered a plea of guilty to one count of robbery (§ 211) with a firearm enhancement (§ 12022, subd. (a)(1)).
Deputy Sheriff Sam Morovich searched the van. In the center console, he found numbered envelopes from the gas station containing $1,431.25 in cash. Beneath the money, he found an unloaded nine-millimeter semiautomatic handgun, silver or platinum in color. The gun was registered to Peterson. No magazine for the gun was found in the van. Morovich found a black pellet gun just inside the van’s rear hatch doors underneath a heavy bag of tools and a tool belt. There were two rows of bench seats between the front seats and the hatch area where the pellet gun was found. Peterson told Corporal Loeffler that the pellet gun, not the silver gun, had been used in the robbery.
In an in-field showup shortly after the van was stopped, Tiley and Taylor identified defendant and Peterson as the ones seen leaving the Mobil station.
The jury found defendant guilty as charged and found the firearm enhancements true. The trial court sentenced him to 12 years in prison.
III. DISCUSSION
A. Federal Due Process
Defendant contends he was deprived of federal due process because the trial court (1) denied a defense motion to dismiss count 3 and the firearm use allegations based on the destruction of favorable material evidence; (2) denied a defense motion to exclude still photographs, whose accuracy and reliability could not be tested at trial without the destroyed evidence; and (3) refused to give a requested jury instruction that would have informed the jury of, and allowed the jury to consider, the nondisclosure of the destroyed evidence and its impact on the ability to defend against the charges and allegations. Defendant contends the undisclosed evidence was critical to his defense that he had used a pellet gun, not a firearm, in the commission of the robbery.
1.Additional Background
The gas station surveillance cameras videotaped the events of the robbery. The videotape was passed back and forth between the sheriff’s department and the district attorney’s office between August 2004 and March 2005, but the videotape was lost or destroyed while in the custody of the People, and it was never provided to the defense. At some point, still photographs had been taken from the videotape, and several of the stills were admitted into evidence at trial. Four of those photographs showed defendant wielding a shiny or silver gun. The nine-millimeter firearm and the pellet gun were also lost or destroyed and were not provided to the defense. Photographs of both guns recovered from the van were introduced into evidence.
Defendant’s trial counsel filed a written motion to dismiss the case or for alternative sanctions because of the loss or destruction of evidence. Counsel argued that defendant would contend at trial that he did not use the silver handgun in the robbery, and that without access to the two guns and the videotape, the defense would be unable to review the evidence and provide an opinion whether the still photograph images were consistent with the lighting in the gas station and the “material make-up” of the firearm. Counsel’s declaration in support of the motion stated that despite requests for production of the evidence, he had been informed that the evidence had “been destroyed by accident.” The declaration further stated that counsel believed the still photographs taken from the videotape might “have been hand-selected because they show[ed] a shiny gun,” and there might have been other stills showing the gun to be black, which would have indicated the gun used was the pellet gun. Counsel stated that the missing evidence went “to the very heart” of the defense.
Following a hearing, the trial court denied the motion, explaining “it appear[ed] that the items that were lost were more of value to the People than they were to the defendant.” The court indicated it “would not be adverse” to considering an instruction on the loss or destruction of evidence.
Defense counsel also filed a motion in limine seeking the exclusion of the undisclosed and lost surveillance video and the photographic stills taken from the video on the ground that the stills were “not in focus” and were “hand-selected” to show defendant with a firearm. The trial court denied the motion.
Defense counsel proposed an instruction that stated: “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, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose the surveillance video of the event, the silver handgun, and the black pellet air gun. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that lack of disclosure.” The trial court refused to give defendant’s proffered instruction.
Defense counsel filed a postverdict motion for new trial that raised, among other grounds, the same grounds raised in the pretrial motion to dismiss and the motion in limine. The trial court denied the motion.
2.Analysis
The prosecution has an affirmative duty under the due process clause of the Fourteenth Amendment to disclose to a criminal defendant any evidence that is both favorable to the defendant and material to the resolution of guilt or punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87; Strickler v. Greene (1999) 527 U.S. 263, 281-282.) Under section 1054.1, subdivision (c), the prosecutor has a duty to disclose “[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged.”
“Evidence is ‘favorable’ if it either helps the defendant or hurts the prosecution....” (In re Sassounian (1995) 9 Cal.4th 535, 544.) Materiality has two prongs: evidence is material if it “‘both [(1)] possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [(2) is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’” (People v. Fauber (1992) 2 Cal.4th 792, 829-830, quoting California v. Trombetta (1984) 467 U.S. 479, 489.) “Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
However, “‘[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.’” (People v. Fauber, supra, 2 Cal.4th at p. 829.) The defendant must show a reasonable probability that the result would have been different had the evidence been disclosed to the defense. (People v. Salazar (2005) 35 Cal.4th 1031, 1043.) A reasonable probability is a probability sufficient to “‘put the whole case in such a different light as to undermine confidence in the verdict.’” (Strickler v. Greene, supra, 527 U.S. at p. 290.) The reason for the nondisclosure (i.e., whether it was intentional, negligent, or inadvertent) does not affect the analysis. (Id. at pp. 281-282.)
Here, we will assume for purposes of argument that the lost evidence met the second prong of materiality—it was of “‘such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’” (People v. Fauber, supra, 2 Cal.4th at pp. 829-830.) Defendant contends the lost evidence also met the first prong of materiality—that the evidence was exculpatory. He asserts that without having the ability to examine the missing guns and videotape, “a defense expert could not determine whether those prosecutor-selected still photographs had been enhanced or modified in any way.” This argument is based purely on speculation about what the missing evidence might have showed, and thus, defendant has failed to show the evidence had an exculpatory value that was apparent before the evidence was lost. We therefore conclude defendant has failed to show constitutional due process error requiring reversal.
Defendant further contends that if the jury had been able to examine the pellet gun, the jury could have tested Flores’s credibility and could reasonably have determined that the pellet gun had been used in the robbery because the pellet gun’s characteristics were consistent with Flores’s description of the weapon used in the robbery. However, although Flores may have misremembered minor details of the events of the robbery (whether defendant wore mittens or gloves, the color of his hood, with which hand he held the gun), her testimony was consistent that the gun she had seen was silver.
Flores was the only one of the store employees present during the robbery who testified at defendant’s trial.
Moreover, even if error occurred, it was harmless. Deputy Morovich testified that the pellet gun was made of hard material and had a barrel that was either metallic or very shiny plastic. The pellet gun was discovered in the back of the van underneath a heavy tool bag. The nine-millimeter gun was found in the center console next to where defendant was seated in the van when the van was stopped, and underneath the money stolen from the gas station. Two rows of seats separated the front seats from the rear hatch area where the pellet gun was located. Tiley testified the robber had run out of the gas station and had immediately gotten into the passenger side of the van. Within minutes, and only two miles from the gas station, the police stopped the van; defendant was sitting in the front passenger seat. It simply was not plausible that defendant could have stashed the pellet gun in the back of the van before the van was stopped. In addition, defendant threatened the gas station employees, “Nobody move or I’ll shoot.” The jury could reasonably have inferred from that statement that defendant was carrying a real gun. Thus, any error in the trial court’s denial of the request to exclude evidence as a sanction for nondisclosure was harmless.
Deputy Morovich testified the pellet gun was either black or dark blue, and it resembled a black handgun. He further testified the pellet gun “was hard plastic. It had some weight to it, but it was a hard plastic.” He did not remember “if the receiver was metal or not, but [he] remember[ed] the handle and the grip being plastic and obviously fake.” On cross-examination, he testified the handle of the pellet gun was plastic, but he did not remember whether the rest of it, including the barrel, was metallic.” Defense counsel asked, “As you saw these pictures here [apparently referring to exhibits] and you saw the barrel part of it shine[,]... does that refresh your recollection to whether the barrel was metallic?” He responded, “My assumption is the barrel inside was probably metallic. That’s standard on pellet guns. As to this one, specifically, I can’t attest to it.” (Italics added.) Defense counsel continued, “Or at least a very shiny plastic?,” to which Deputy Morovich replied, “Sure.”
Defendant further contends the trial court erred by refusing a requested instruction on the loss or destruction of evidence. (The trial court did instruct the jury pursuant to Judicial Council of Cal. Crim. Jury Instns., CALCRM No. 300, that “[n]either side is required to... produce all physical evidence that might be relevant.”) Even assuming the trial court should have given the requested instruction, the error was one of state law subject to the Watson standard. (See People v. Rogers (2006) 39 Cal.4th 826, 875 [applying Watson standard to error in failing to instruct the jury that the mental state required for implied malice murder must exist at the same time as the acts causing death].) Under that standard, and in light of the evidence discussed above, any error was harmless. (People v. Von Villas (1992) 10 Cal.App.4th 201, 247 [any error in the trial court’s refusal to give a proffered defense instruction was harmless in light of the evidence in support of the jury and defense counsel’s argument to the jury].)
People v. Watson (1956) 46 Cal.2d 818, 836.
B. Section 654
Defendant contends his concurrent sentence for count 3 (assault with a firearm) constituted double punishment to the sentence for count 1 (robbery) in violation of section 654.
Section 654 proscribes double punishment when a defendant is convicted of multiple criminal offenses arising from a single act or indivisible course of conduct. (§ 654, subd. (a); People v. Villa (2007) 157 Cal.App.4th 1429, 1434.) Thus, a defendant may be punished only once “for all offenses incident to a single objective.” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1229.)
However, a defendant may properly be punished for each crime of violence against a different victim, even if the defendant carried out the crimes pursuant to a single objective. (People v. McFarland (1989) 47 Cal.3d 798, 803.) In other words, the multiple punishment bar does not apply when “‘one act has two results each of which is an act of violence against the person of a separate individual.’” (Neal v. State of California (1960) 55 Cal.2d 11, 20-21.)
Both the robbery charged in count 1 and the assault charged in count 3 are crimes of violence. (People v. Champion (1995) 9 Cal.4th 879, 935, disapproved on another ground as stated in People v. Combs (2004) 34 Cal.4th 821, 860; § 240; People v. Prater (1977) 71 Cal.App.3d 695, 699.) The two crimes involved separate victims. Defendant struck Flores in the head with a firearm, as charged in count 3. Defendant robbed Jillson as charged in count 1. Because the crimes involved acts of violence and were committed against separate victims, section 654 does not apply. Contrary to defendant’s contention, section 3 was not “on the house”; rather, the trial court appropriately sentenced defendant to a separate concurrent term for that offense.
IV. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., KING, J.