Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF099153A, SF082290A
ROBIE, J.
In case No. SF099153A, a jury found defendant Tony Audencio Ramirez guilty of first degree murder of Walter Torres and attempted murder of Maria Barragan. In addition to these charges, he was found guilty of other offenses and the jury found true a special circumstance allegation that defendant murdered Torres by discharging a firearm from a motor vehicle with the intent to inflict death and allegations that he intentionally and personally discharged a firearm in the commission of the murder. Defendant admitted two prior strike convictions of dissuading a witness by force or threat. He was given a lengthy prison sentence.
In case No. SF082290A, defendant admitted violating his probation by committing the offenses in case No. SF099153A.
On appeal, defendant contends: (1) the prosecution violated his discovery and due process rights by failing to provide timely discovery of photographs of his injuries; and (2) his first degree murder conviction must be reversed because the jury instructions did not require unanimous agreement as to the theory of first degree murder. We shall affirm the judgment.
FACTS
A
Prosecution’s Case-In-Chief
On December 24, 2005, Maria Barragan and her boyfriend went to a friend’s house in San Joaquin County. About 9:30 p.m., Barragan spoke on a cell phone with Walter Torres who wanted her to buy him some methamphetamine. After five minutes, Barragan walked outside the house and saw Torres seated in his car, waiting for her to take him to buy methamphetamine. Barragan got into the passenger seat. She and Torres talked for about five minutes.
A maroon car pulled up next to Torres’s car. Defendant said, “Hey,” which drew Barragan’s attention to the car. Barragan saw defendant in the driver’s seat and another person, who was leaning back, in the passenger seat. Defendant pulled out a gun and started shooting. Barragan heard four or five shots fired. Torres turned, said “[o]h shit,” and held Barragan in his arms. Torres was shot once below his neck, twice in his left shoulder, and once in his left arm. There was also a grazing gunshot wound on his right hand. After the shooting stopped, Barragan fell out of the car. The maroon car drove off.
The bullets recovered from Torres’s body were either .38 Special or .357 Magnum, either of which can be fired from a .357 Magnum revolver.
Barragan screamed for her boyfriend and told him that Torres had been shot by “Tony.” The boyfriend told her to “[s]hut up” and say nothing.
San Joaquin County Sheriff’s deputies were dispatched to the scene. They pulled Torres out of the car and performed CPR on him. He had no signs of life. Barragan did not tell the deputies anything because she was scared and did not know what to do. When a victim advocate drove Barragan home, Barragan saw defendant’s mother’s van arrive at Barragan’s residence. In response, Barragan asked to be taken to her mother’s residence on the same street.
On December 30, 2005, Sergeant Michael Jones spoke with Barragan for the first time. She acknowledged that she had more information about the shooting than what she had originally told the officers. She was taken to the sheriff’s department where she identified a photograph of defendant as the shooter and told a detective what had happened.
Barragan testified at trial that she has known defendant all her life. Her uncle is married to his aunt.
Barragan testified that the shooter did not have any wounds to his head. After twice testifying that he had no mustache, Barragan expressed uncertainty as to the difference between a mustache and a beard. After appearing to resolve her uncertainty, she testified that the shooter had a mustache. Later, after stating that the shooter “probably did” have a mustache and that she “kn[e]w he had a mustache,” she inexplicably testified that “[p]robably at the time, he didn’t. I don’t know.”
“[THE PROSECUTOR] Q. Did he have a mustache?
Barragan testified that no one had suggested to her that defendant was the shooter. She identified him as the shooter because that was “what [she had] seen that night.”
In February 2006, Stockton Police officers conducted surveillance looking for defendant. He was seen leaving a residence and entering the backseat of a car. The car was stopped and defendant was handcuffed and searched. During the stop, defendant tried to avoid an officer’s grasp. Officer Steve Cole responded by taking defendant to the ground. Defendant’s face hit the ground, evidently causing a light abrasion on the right side of his forehead.
The prosecutor showed Officer Cole the booking photograph of defendant. Cole testified that in the photograph, defendant appeared to have marks on his forehead above his right eyebrow. When he observed this injury during the arrest, Cole thought the mark looked fresh and believed it had occurred when he took defendant to the ground.
In the car seat where defendant had been sitting, officers found a clear baggie containing 0.04 grams of cocaine.
Defendant’s house was searched pursuant to a warrant. Two firearms, ammunition, and a holster were found. The parties stipulated that neither firearm found was the murder weapon.
Three rolls of film were found in defendant’s residence. A digital memory card was found inside a Nikon camera.
B
Defense
On December 24, 2005, defendant and his family celebrated Christmas Eve by making tamales at his house. His cousin, Cynthia Reynoso, was there from about 12:30 p.m. until about 5:45 p.m., and again from about 7:00 p.m. until about midnight. Reynoso and several other relatives testified that they never saw defendant leave the house or go outside during that time. Several of the relatives were in the kitchen making tamales, and defendant was never in the kitchen. One cousin explained that the room was open and she would have seen defendant leaving the house if he had done so.
Reynoso claimed that she and defendant had been in a dating relationship at the time, even though he had been residing with a girlfriend and their child.
A neighbor, Tafilele Sao, testified that he resided about 10 yards from defendant’s home. On December 24, 2005, at approximately 3:00 p.m., he met defendant for the first time. Many neighbors were mingling outside their residences. Sao talked to defendant for 15 to 20 minutes. Sao heard defendant talking to another man about gang-related matters and did not want to overhear the conversation. Sao left about 6:00 p.m. to be with his family. He returned and resumed drinking with defendant at approximately 10:30 p.m.
Defendant testified on his own behalf that he was at his house at the time the murder was committed. He admitted that he possessed cocaine on the date of his arrest. He also admitted that he possessed the firearms and ammunition found at his house.
DISCUSSION
I
The Discovery Issue For Murder, Attempted Murder, And Felon In Possession Of A Firearm
Defendant contends his convictions must be reversed because the prosecution failed to timely provide discovery of photographs of his injuries. He claims the delayed discovery violated Penal Code section 1054.1, subdivision (b), and denied him due process and a fair trial. We are not persuaded.
All further statutory references are to the Penal Code unless otherwise indicated.
Police officers conducted a warrant search of defendant’s residence. Three rolls of film were found. A digital memory card was found inside of a Nikon camera.
On August 30, 2006, defendant sent the prosecution an informal discovery request seeking, among other things, “[a]ny and all photographs developed from digital memory cards seized during the search of” defendant’s residence.
On September 22, 2006, defendant filed a formal motion requesting discovery of the same items listed in the informal request. Defendant’s counsel declared that the prosecution had not previously provided the requested items. The record does not indicate that the trial court ruled on this motion prior to trial.
On November 20, 2006, defendant’s counsel informed the prosecutor that the seized items had not been processed. He requested that the undeveloped film be developed. The prosecutor then called the detective who possessed the film and requested that the undeveloped film and digital memory card be processed and photographs sent to him.
On December 15, 2006, the prosecutor received the processed items and sent copies of the photographs to defendant’s counsel. The prosecutor had been advised that the received items constituted everything that had been seized from defendant’s residence.
Trial commenced on January 4, 2007. During in limine motions on January 8, 2007, the prosecutor informed the court that the film had been developed.
Barragan testified on January 23, 2007. She explained that she had not seen any scars, wounds, or marks on the face of the man who fired the gun.
Officer Cole testified on January 26, 2007. He explained that he took defendant to the ground and defendant bumped his head. Cole viewed a booking photograph and opined that it showed the injury that occurred when he took defendant to the ground.
At some point during the week prior to January 31, 2007, i.e., January 22 to 26, defendant’s counsel alerted the prosecutor that he could not determine which photographs were from which camera. The prosecutor directed his investigator to process every photograph from the film and the digital memory card and to keep the photographs from each source separate.
On January 30, 2007, the investigator brought the newly processed photographs to the prosecutor who observed certain photographs from the digital memory card that neither counsel had previously received. The prosecutor allowed defendant’s counsel to examine the photographs and promised to make copies for him. The new photographs showed injuries that defendant had sustained prior to his arrest.
On January 31, 2007, defendant’s counsel moved for a mistrial, arguing that if the newly discovered photographs had been available before trial, he would have used them to impeach two prosecution witnesses, Barragan and Officer Cole.
The trial court attempted to determine if defendant had been prejudiced by the late receipt of the photographs. On February 7, 2007, the court found that defendant had not been prejudiced because all witnesses were available to be recalled and cross-examined with the photographs. The mistrial motion was denied.
We first consider defendant’s due process claim. “The federal due process clause prohibits the prosecution from suppressing evidence materially favorable to the accused. The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials. [Citations.] The obligation is not limited to evidence the prosecutor’s office itself actually knows of or possesses, but includes ‘evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citation.] [¶] For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133.)
Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].
Defendant’s due process claim fails because the late discovered photographs were not material. There is no reasonable probability that earlier disclosure of the photographs would have altered the trial result. (People v. Zambrano, supra, 41 Cal.4th at p. 1132.)
Barragan had known defendant her whole life and viewed him under enormously stressful conditions when he suddenly appeared on the scene and fired several gunshots into the car in which she and Torres were sitting. The fact that she recognized the person she had known her whole life, but did not notice injuries that she had been unaware of, is hardly surprising. As the prosecutor argued in summation, Barragan was “focused on [defendant’s] eyes and him with the gun.” Under these circumstances, any reasonable person would have been similarly focused. It is not reasonably probable that her failure to notice facial injuries could have successfully rebutted her identification of defendant as the shooter.
Defendant’s claim that Barragan failed to see his mustache is unavailing. After testifying that the shooter had no mustache, Barragan evidently reconsidered the definitions of beard and mustache and concluded that he did have a mustache. Later, after testifying that the shooter probably had a mustache and that she knew he had a mustache, she inexplicably opined that he probably did not have a mustache and that she did not know. In its entirety, her testimony neither supports nor refutes defendant’s claim that she failed to see a mustache.
In order to find that Barragan had mistakenly misidentified defendant, the jury would have to conclude that she had seen a shooter who looked exactly like someone she had known her whole life but who lacked the head injuries that were visible in the late discovered photographs. It is not reasonably likely that the jury would have drawn this inherently improbable conclusion.
No evidence supported a finding that Barragan intentionally or willfully misidentified defendant or had any motive for doing so. In contrast, the alibi witnesses who were members of defendant’s family had a strong motive to fabricate. The only nonfamily alibi witness was Sao, who was not present from about 6:00 p.m. until approximately 10:30 p.m., an hour after the shooting. Defendant’s claim that he presented “substantial alibi evidence,” which could persuade a reasonable juror to reject Barragan’s identification of him, has no merit.
Finally, the discovery failure did not unduly emphasize the testimony of Officer Cole. Defendant had suffered facial injuries in an automobile accident the month before the shooting. Because Cole had not seen defendant’s face before he took defendant to the ground, his testimony did not stand for the proposition that defendant’s face had been uninjured prior to that time.
This brings us to defendant’s statutory claim. “[T]he reciprocal discovery statute independently requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence ‘in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies.’ (§ 1054.1.) Evidence subject to disclosure includes ‘[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged’ (id., subd. (c)) and ‘[a]ny exculpatory evidence’ (id., subd. (e)). Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)” (People v. Zambrano, supra, 41 Cal.4th at p. 1133.)
We shall assume for present purposes that the photographs from the digital memory card should have been provided at least 30 days prior to trial. The remedy for noncompliance with discovery requirements should be no broader than necessary to guarantee a fair trial. (People v. Wimberly (1992) 5 Cal.App.4th 773, 792-793; Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 788.) Except in circumstances not present here, the standard of review on matters regarding discovery in criminal cases is abuse of discretion. (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1212; Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366.)
In this case, no remedy was necessary to guarantee a fair trial because the photographs were discovered before the trial was concluded and the two prosecution witnesses were subject to recall by defendant to permit further impeachment. The trial court identified this as the proper solution. In his reply brief, defendant claims the assessment of prejudice “turns to a great extent upon the instincts of defense counsel. [Defendant]’s defense counsel believed he could not effectively recall Barragan and Officer Cole and conduct a limited cross[-] examination of them based on the belated discovery of the suppressed photograph.” But no rule of law requires the trial court to subjugate its own assessment of prejudice to that of defendant’s trial counsel. No abuse of discretion is shown. (Kennedy v. Superior Court, supra, 145 Cal.App.4th at p. 366.)
II
The CALCRIM No. 521 Issue
Defendant contends he was deprived of federal due process under the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution because the jurors were erroneously instructed pursuant to CALCRIM No. 521 that they “need not agree on the same theory” of first degree murder. We are not persuaded.
Further references to CALCRIM are to the Judicial Council of California criminal jury instructions (2006-2007).
The jury was instructed: “The defendant has been prosecuted for first degree murder under two theories. One, the murder was willful, deliberate and premeditated; [¶] And, two, the murder was perpetrated by shooting a firearm from a vehicle. Each theory of first degree murder has different requirements, and I will instruct you on both theories. [¶] You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant has committed first degree murder. But all of you need not agree on the same theory.” (Italics added.)
In Schad v. Arizona (1991) 501 U.S. 624 [115 L.Ed.2d 555], the defendant was prosecuted for first degree murder on alternative theories of premeditation and felony murder, and no instruction required the jury to be unanimous on this point. (Id. at pp. 630-631 [115 L.Ed.2d at pp. 564-565].) The court held that unanimity was not required. (Id. at pp. 645 [Opn. of Souter, J. with Rehnquist, C.J. and O’Connor and Kennedy, JJ.], [155 L.Ed.2d at p. 574] 649 [conc. opn. of Scalia, J.] [155 L.Ed.2d at p. 577].) A plurality of four justices reasoned: “If . . . two mental states are supposed to be equivalent means to satisfy the mens rea element of a single offense, they must reasonably reflect notions of equivalent blameworthiness or culpability, whereas a difference in their perceived degrees of culpability would be a reason to conclude that they identified different offenses altogether. Petitioner has made out no case for such moral disparity in this instance.” (Id. at p. 643 [155 L.Ed.2d at p. 573].)
Defendant claims this case presents the moral disparity that was absent from Schad. He reasons that, unlike felony murder, murder by shooting from a motor vehicle does not reflect a notion of blameworthiness or culpability that is equivalent to premeditation and deliberation.
The People respond that resolution of the Schad issue is unnecessary because “there [wa]s also evidence that the jury did unanimously agree on one theory, even though it was not required” since the jurors unanimously found true the drive-by shooting special circumstance. In the People’s view, “[t]he elements of this allegation are the same as the elements required to find [defendant] guilty of first degree murder under the drive-by-shooting theory.”
Defendant replies that the elements are not identical, because “under the drive-by-shooting theory of first degree murder, the jury was required to find an intent to kill Torres,”, whereas “the elements of the drive-by-shooting special circumstance was [sic] satisfied if [defendant] had the intent to kill either Torres or Barragan.” We disagree.
The instruction on the “drive-by-shooting theory of first degree murder” required that defendant: (1) “shot a firearm from a motor vehicle”; (2) “intentionally shot at a person who was outside the vehicle he shot the firearm from”; and (3) “intended to kill that person.” (CALCRIM No. 521 (mod.).)
The instruction on the “drive-by-shooting special circumstance” required that defendant: (1) “shot a firearm from a motor vehicle, killing Walter Pineda Torres”; (2) “intentionally shot at a person who was outside the vehicle”; and (3) “[a]t the time of the shooting, the defendant intended to kill.” (CALCRIM No. 735 (mod.).)
The drive-by shooting theory of first degree murder required that defendant “intentionally shot at a person” who was outside the vehicle, and that defendant “intended to kill that person.” (Italics added.) But the theory did not require that the person who was intentionally shot at, and whom defendant intended to kill, was the same person who was killed as a result of the shooting. Thus if defendant intentionally shot at Barragan, intending to kill Barragan, but Torres was struck and killed, defendant was guilty under the drive-by shooting theory.
Moreover, the jury instruction on “Intent to Kill Related to First or Second Degree Murder” provided that, “[i]f the defendant intended to kill one person but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed.” (CALCRIM No. 562.)
This transferred intent instruction applied to the drive-by shooting theory of first degree murder. It allowed the jury to convict defendant even if he “shot at Barragan rather than at Torres.” Thus, neither the drive-by shooting theory nor the drive-by shooting special circumstance required the jury “to find an intent to kill Torres,” as opposed to Barragan. Under these circumstances, the verdict was unanimous as to at least one theory and any instructional error under Schad was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., BUTZ, J.
“A. A mustache is this, right, or this? A beard is this, a mustache is this? He had a mustache, no beard, right? [¶] That’s what you were asking?
“Q. Did he have a mustache?
“A. A mustache, yeah.
“Q. He did?
“A. Yeah.”