Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC466972
RUSHING, P.J.
Statement of the Case
Defendant Dennis James Sierra appeals from a judgment entered after a jury convicted him of first degree murder and found that he personally used a knife and, after a separate trial, further found that he was sane at the time of the murder.
On appeal, defendant claims the prosecution committed a Brady violation in failing to provide the defense with a tape recording of his arrest. He further claims that because the evidence of his insanity was so overwhelming, the jury reasonably could not have rejected it.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
We find that there was a Brady violation and reverse the judgment.
Background
On September 21, 2004, the Santa Clara County District Attorney filed a felony complaint against defendant, alleging that on September 19, 2004, defendant murdered Andrew Sierra (Sierra), his grandfather. After a hearing on March 23, 2005, the court found defendant not competent to stand trial and committed him to a state hospital. On July 13, 2005, the court conducted a further hearing, found defendant competent, and reinstated criminal proceedings. On August 5, 2005, the district attorney filed an information alleging first degree murder.
Prosecution at Guilt Phase
It is undisputed that defendant killed Sierra, who was 88-years old and had a prosthetic leg. On September 17, 2004, they argued about a fence, and defendant threatened to kill him. On September 19, 2004, between 8:30 and 9:00 a.m., a neighbor saw defendant beating Sierra with a stick on the porch of Sierra’s house. After the beating, Sierra called 911. While Sierra was on the phone, defendant broke in through the back door. Screaming and in a rage, defendant threw concrete blocks at Sierra’s head and then stabbed him to death.
A short time later, Officer William Hoyt of the San Jose Police Department saw defendant standing near the light rail tracks not far from Sierra’s house. He was fully clothed. Officer Hoyt lost sight of him and called for backup.
Twenty minutes later, fellow Officer Bach Tran saw a naked man walking on Heeding Street. He did not know that it was defendant. He thought the man might be on drugs or in need of help. He called for backup and decided to transport him to the station. Three officers arrived, and defendant got into Officer Tran’s police van without incident. However, when a radio broadcast identified defendant as a possible perpetrator of an assault, defendant immediately lunged for the door and became combative. One officer shot him with a taser, but it apparently had no effect. Defendant said he felt nothing and that the officer was not real. It took all four officers to subdue him.
At trial, one officer testified that defendant initially identified himself as James Dean and said he was a government agent. Officer Tran testified that defendant screamed and yelled while being transported and said that a “big neighbor” had been hitting Sierra. Defendant also said that he had felt hot and had taken off his clothes. Another officer testified that after he shot defendant with a taser, defendant said that “you can’t hurt me because you’re not real.”
Christy Montano lived with Sierra for three years. She testified that defendant and Sierra did not get along, and defendant had threatened to kill her and Sierra a couple of times during the weeks before the murder.
Martin Kahn testified that during the summer of 2004, defendant stayed with him and Michael Garza. At one point, defendant became confrontational and accused Garza of withholding his social security check.
Defense at the Guilt Phase
The defense to the first degree murder charge was that defendant suffered from mental illness that negated premeditation and deliberation; the defense to murder in general was that at the time of the killing and as a result of his mental illness, defendant harbored an actual but unreasonable belief in the need to use deadly force in self-defense against Sierra.
Doctor James Missett, a psychiatrist, testified as an expert for the defense on forensic psychiatry. Prior to trial, he had reviewed the 911 tape, the records of Doctors Douglas Harper, Mark Patterson, and David Echeandia, and pertinent medical and criminal records from Patton State Hospital, San Francisco General Hospital, and the San Jose Police Department. He also interviewed defendant for almost two hours.
Doctor Missett explained that psychosis means that one’s thinking is unrealistic and does not comport with reality as most people experience it. Psychotic experiences include false visual or auditory perceptions or hallucinations and delusions, which are firm and fixed beliefs despite evidence to the contrary. Examples of delusions are being paranoid that someone or organization is trying to cause harm or feeling that something is growing inside or has been implanted in a tooth.
Doctor Missett noted that defendant had manifested psychotic behavior several months before the homicide. He noted that defendant was admitted to a university hospital in Utah, after he started building a monument to the victims of 9/11 and reported to the police that the children in his house were being molested and exposed to pornography in a room in the basement. However, there was no factual basis for defendant’s report. At that hospital, defendant gave inconsistent answers to the some questions and said he was hearing and seeing things. Defendant was later hospitalized at San Francisco General, where he appeared delusional and complained that several men were chasing him with knives.
Doctor Missett testified that the cause of defendant’s psychosis was not clear. He noted that some doctors thought it was caused by drug use or withdrawal. However, other doctors thought defendant was schizophrenic, a chronic abnormal condition caused, in part, by a chemical imbalance.
Doctor Missett agreed with the latter diagnosis and opined that defendant suffered from chronic paranoid schizophrenia. He explained that schizophrenia is a biologically based condition that diminishes the ability to function effectively and increases impulsivity. Schizophrenics are more attuned to their own thoughts and can have difficulty interpreting what is going on around them, especially if they are distracted by hallucinations or delusions. They tend to withdraw from others and avoid those whom they think pose a danger.
Schizophrenics, however, are not in a constant state of psychosis. They may experience symptoms one day but not others. At times they can respond much as normal people do; and even when they are experiencing symptoms, they are not completely oblivious to how the world functions and can perform ordinary activities such as driving and shopping. They do, however, tend to avoid those who they believe pose danger, interpret gestures of support or help or affection as signs of danger and respond aggressively, and miscalculate the level of force needed to avert the apparent danger.
Doctor Missett noted that some people malinger—i.e., intentionally make false or exaggerated claim of psychiatric or psychological problems for some personal gain, such as avoiding military duty, getting a bigger settlement in a lawsuit, avoiding an unpleasant job, and avoiding a conviction. He also conceded that in general, mental health professionals do not look for malingering because they do not want to find it.
He acknowledged that Doctor Falvia Jorge, a staff psychologist at Patton State Hospital had treated defendant for a lengthy period and concluded that he was malingering. She found that defendant knew the symptoms of paranoid schizophrenia because he had looked them up on the Internet. He had tried to act in an unrealistic way to present himself as psychologically disturbed. And he was preoccupied with utilizing insanity as a defense in an unrelated court case.
Doctor Missett could not discount her evaluation. Nevertheless he did not think Doctor Jorge’s analysis explained defendant’s two hospitalizations within a matter of weeks before the homicide in this case. He noted that one of the hallmarks of schizophrenics is a denial of being impaired. He further noted that many of his patients look up their conditions or medicines on the Internet to find out more about them.
Concerning defendant’s stay at San Francisco General Hospital, Officer Shawn Ryback of the San Francisco Police Department testified that on September 14, 2005, he responded to a 911 call from defendant, who complained that people with knives had been chasing him for several days. When defendant pointed them out, Officer Ryback did not see anyone. Defendant said that he had been off his medication for a month. Officer Ryback concluded that defendant was unable to care for himself and transported him to the hospital for an involuntary 72-hour psychiatric hold. However, defendant was released after 12 hours.
Defense at the Sanity Phase
Doctor David Berke, a psychologist, testified as an expert on forensic psychology. He reviewed the 911 recording; police report; defendant’s criminal history; reports from Patton State Hospital, University of Utah Hospital, and San Francisco General; and the reports by psychiatrist Douglas Harper and psychologists Shelley Coat, Mark Patterson and David Echeandia. He also interviewed defendant nine times, spending a total of 18 hours with him. Based on the material and his interviews, Doctor Berke concluded that defendant suffered from paranoid schizophrenia. He opined that as a result of his mental illness, defendant was legally insane at the time of the homicide, in that he was unable to distinguish right from wrong. In particular, defendant had delusions about what Sierra was doing to him, he was hallucinating, and he thought that the killing was morally justified.
Doctor Burke testified that at first defendant denied killing Sierra and was paranoid about presenting a mental defense. Defendant also thought schizophrenia was a curable social disorder and said that he had stopped taking his anti-psychotic medication. Later, however, defendant suggested that maybe he had been temporarily insane. Doctor Burke noted that at times, defendant presented himself in a grandiose, strong, and super-healthy way, saying he intended to be a self-esteem counselor. However, he also said he was not interested in prolonging his life and had stopped taking his HIV medication. Doctor Burke opined that the very erratic nature of defendant’s self-presentation supported his diagnosis of schizophrenia
Doctor Burke further noted that defendant believed that Sierra was a cannibal called “the Saw,” who stole other people’s limbs and wanted to steal defendant’s leg. Defendant had said that Sierra had killed his grandmother with poison and was poisoning him, and he wanted a liver biopsy to prove it. Defendant also thought Sierra was withholding his social security checks. One of defendant’s delusions was that God had counseled him to do justice by killing Sierra. Doctor Burke acknowledged, however, that the defendant’s medical records before the homicide contained no references to Sierra or defendant’s fear or anger toward him. He also acknowledged that initially defendant said he had not heard any voices but later said that he heard voices and that God had directed him to kill.
Doctor Burke opined that defendant probably had some sense that he was killing Sierra and that doing so was wrong because he left the scene of the crime and took off all of his bloody clothes. However, he noted that is it not normal to get completely naked, which would have attracted attention. Moreover, he thought that defendant was also having vivid delusions concerning Sierra and hallucinations about blood in the streets and people being flayed, which rendered him in a state of unreality, where his actions were necessary and morally justified. The belief that his grandfather was stealing his checks could only have added to his paranoia and contributed to defendant’s state of mind. Doctor Burke found further evidence of defendant’s psychosis in his statements to police, identifying himself as James Dean, saying he was a government agent, and saying he did not feel being shot with a taser.
Doctor Burke said that he would have no difficulty saying that defendant was malingering if there had been some signs of it. However, he found no such evidence and considered it outside the realm of reasonable explanations to think that defendant had plotted to kill his grandfather and then taken his clothes off to appear crazy. Nor did he believe that defendant’s prior hospitalizations were contrived.
He acknowledged Doctor Jorge’s view that defendant had been malingering Patton State Hospital. However, he noted that at that time, defendant was taking psychotropic medication and had had ample opportunity to stabilize. When he saw defendant later in September, however, defendant was very psychotic, and it took a long time to stabilize him. He further opined that the overwhelming weight of evidence, including the police reports, observation of correctional staff and numerous psychiatrists, was that defendant was not malingering.
Doctor David Echeandia, a psychologist, testified as a court-appointed psychological expert. He reviewed all of the pertinent records and spent two hours with defendant. He acknowledged that defendant had a history of drug abuse, which can exacerbate psychotic symptoms. However, he found that defendant suffered from a deeply entrenched underlying mental disorder. He generally agreed with the previous diagnoses of psychosis and concluded that defendant suffered from psychosis, paranoid delusions, and auditory hallucinations. He further opined that due to his mental disease, defendant did not appreciate the wrongfulness of his conduct.
Concerning the homicide, Doctor Echeandia conceded that in general, a person can be mentally ill and yet understand what he or she is doing and whether it is wrong. However, he opined that although defendant knew he was killing Sierra, he could not distinguish between right and wrong at the time and believed that he was justified in killing him in self-defense. He found that defendant had little insight into the severity of his mental illness.
Doctor Echeandia conceded the possibility that a patient could exaggerate his symptoms and fool mental health professionals. However, given defendant’s documented history of mental illness, delusions, and hallucinations and defendant’s behavior over a lengthy period of time, he did not believe that defendant suddenly invented a mental disorder or had started faking mental illness five years before the homicide to set up a legal defense. He disagreed with Doctor Jorge’s view that defendant was malingering. He noted that she did not challenge defendant’s underlying diagnoses but merely believed that he was exaggerating his symptoms. Moreover, he opined that the test she conducted had little relevance concerning his sanity at the time of the killing, and he noted that a more recent test indicated that defendant was not malingering.
Doctor Mark Patterson, a psychologist, also testified as a court-appointed psychological expert. He reviewed the pertinent medical and criminal history and interviewed defendant for over two hours. He administered three tests and concluded that defendant suffered from paranoid schizophrenia with ongoing delusional and psychotic thinking and hallucinations. He further found a low likelihood of malingering.
The court previously had appointed Doctor Patterson during proceedings to determine whether defendant was competent to stand trial.
Doctor Patterson noted that in January 2005, defendant complained that his antipsychotic medication was not working and he had occasionally refused to take it. He explained that mentally ill patients often stop taking medication because of its unpleasant side effects and feelings that they do not need it. He found that defendant lacked insight into his own mental illness and called it a social disease. He noted that defendant’s statements and behavior immediately after the incident reflected his mental disturbance and pointed out that defendant talked about having conversations with God, who had told him he was doing well. Defendant also reported that Sierra had abused him, tried to poison him, and had stolen his money.
Doctor Patterson found defendant’s thought process illogical, irrational, and difficult to follow. However, when defendant was asked about events leading to the homicide, he said he could not reveal them because his statements could be used against him. He said only that he killed Sierra because he had been abusive. “Like a brittle twig that snapped, I just got tired of him stealing from me, so I killed him, there was no other motive.” Defendant also seemed familiar with the concept of not guilty by reason of insanity, understood that the defense was available, and sought that verdict.
Doctor Missett testified again at the sanity phase. He interviewed defendant for around two hours. He diagnosed defendant with paranoid schizophrenia, but he acknowledged the possibility of drug-induced psychosis. He explained that psychotic symptoms cannot be controlled without medication, which helps alleviate them, improve thinking, and increase rationality.
Doctor Missett again opined that defendant was legally insane when he killed Sierra. He noted that defendant had suffered documented mental disorders for months before the incident; and at the time of the killing, he knew he was hitting and stabbing Sierra, but he did not know or understand the nature and quality of his conduct. He thought that Sierra was trying to hurt him and did not think that killing him in self-defense was wrong.
Doctor Missett did not agree with Doctor Jorge’s analysis and view that defendant was malingering, although he understood how she could have reached that conclusion. In his view, defendant’s answers to Doctor Jorge’s tests were no more indicative of malingering than of psychosis and were not exaggerated for a person with residual psychotic symptoms. Moreover, defendant exhibited psychotic symptoms long before the offense, and psychotics sometimes try to appear normal and may succeed. He also noted that at the time of Doctor Jorge’s tests, staff at the Patton State Hospital were giving defendant more than the normal dosage of antipsychotic medication.
The Prosecution at the Sanity Phase
Doctor Jorge, staff psychologist at Patton State Hospital, testified as an expert. She was responsible for defendant’s care from April to June 2005. She regularly observed him, consulted with staff, led his group therapy session, and spoke with him on an unscheduled basis.
Doctor Jorge testified that during his hospitalization, defendant was taking anti-psychotic medication and appeared normal. Unlike many schizophrenic patients, who react to internal stimuli, defendant did not exhibit any of the psychotic symptoms he had reported such as delusions and hallucinations. It did not appear that he was reacting to internal stimuli. She noted that he researched schizophrenia on the Internet, told Doctor Jorge that he had had those symptoms, and reported during a group session that he intended to present an insanity defense and had done so in the past.
Doctor Jorge testified that she and other staff suspected that defendant was exaggerating his symptoms. She found him to be manipulative, cynical, sarcastic, and demanding. He also violated rules and instigated conflict. Such behavior was not usually indicative of mental illness. As a result, Doctor Jorge evaluated defendant for malingering using two tests. Results from the first test were inconclusive. Results of the second test indicated that he was malingering and trying to create the impression of severe psychopathology. She believed that his prior psychotic episodes were drug related.
Doctor Jorge noted that defendant was anxious for the court to get the test results, but when he learned them, he was concerned about the court seeing them. She thought such presence of mind indicated calculation rather than schizophrenia.
The Tape Recording
Defendant contends that the prosecutor’s failure to provide the defense with a copy of a tape recording of defendant’s arrest and transportation to the hospital until after the sanity phase constituted a Brady violation and denied him due process of law.
Background
The existence of the tape recording was noted in the police report, which summarized its contents. Defense counsel requested a copy of the recording on September 28, 2005. The prosecutor immediately asked the investigating officer to provide copies of the tape to both him and defense counsel. Trial began on October 4, 2005. Jury selection was completed on October 12th. That day, defense counsel again asked the prosecutor for a copy of the tape. The prosecutor responded that the officer was supposed to bring the tape the next day. However, the tape was not produced.
On October 20, 2005, the jury convicted defendant of first degree murder. On November 1, the jury found that he was sane at the time of murder. On November 2, defense counsel finally received the tape. On November 30, he filed a motion for new trial based, in part, on prosecution’s failure to provide the tape. In support of the motion, defendant submitted a copy of the tape and a transcript.
The tape and transcript are part of the record on appeal, and we have listened to the tape.
The court denied the motion. It did not find a discovery violation because the defense never moved to compel production of the tape before or during trial. The court noted that the defense had received the police reports containing a summary of the tape. Defense counsel cross-examined the witnesses who were present during defendant’s arrest about statements that he had made. The jury was made aware of the conversation as much as possible through that testimony. And the psychological experts testified about statements recounted in the police report. Accordingly, the court found that the failure to provide the tape did not result in the total exclusion of evidence from the jury. Therefore, it found no Brady violation.
Discussion
In Brady, supra, 373 U.S. 83, the United States Supreme Court held 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.” (Id. at p. 87.) Under Brady and its progeny, the state is required to disclose to the defense any material, favorable evidence, even in the absence of a discovery request by the defense. (Ibid.; United States v. Bagley (1985) 473 U.S. 667, 678 (Bagley); United States v. Agurs (1976) 427 U.S. 97, 107; In re Sassounian (1995) 9 Cal.4th 535, 543.)
“The scope of this disclosure obligation extends beyond the contents of the prosecutor’s case file and encompasses the duty to ascertain as well as divulge ‘any favorable evidence known to the others acting on the government’s behalf . . . .’ [Citation.] Courts have thus consistently ‘decline[d] “to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.” ’ [Citation.]” (In re Brown (1998) 17 Cal.4th 873, 879, fn. omitted.) Thus, the prosecution must disclose evidence that is actually or constructively in its possession or accessible to it from other agencies, including the police department. (People v. Kasim (1997) 56 Cal.App.4th 1360, 1380.)
“Evidence is ‘favorable’ if it hurts the prosecution or helps the defense” (People v. Earp (1999) 20 Cal.4th 826, 866; In re Sassounian, supra, 9 Cal.4th at p. 544), that is, if it is exculpatory or has impeachment value. (Strickler v. Greene (1999) 527 U.S. 263, 282.) Moreover, “the prosecution’s duty of disclosure extends to all evidence that reasonably appears favorable to the accused . . . .” (People v. Morris (1988) 46 Cal.3d 1, 30, fn. 14, italics omitted, disapproved on other grounds in In re Sassounian, supra, 9 Cal.4th at pp. 543-545, fns. 5 & 6.)
Evidence is material, where there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Bagley, supra, 473 U.S. at p. 682.) The defendant need not show that disclosure of the evidence would have resulted in acquittal; rather, “[t]he question is . . . whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (Kyles v. Whitley (1995) 514 U.S. 419, 434.) A Brady violation thus occurs where the nondisclosed favorable evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Id. at p. 435, fn. omitted.)
On appeal, the defendant has the burden to establish the elements of a Brady violation. (Strickler v. Greene, supra, 527 U.S. at pp. 289, 291.) On appeal, we independently review the trial court’s legal determinations concerning those elements. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
Concerning whether the tape was favorable to the defense, defendant notes that it documented numerous bizarre statements he made during his arrest and while being transported to the hospital. For example, defendant called himself food for the arresting officers, offered himself as a gift, and invited them to eat him. He asked the officers if they were going to harvest his body and offered it to them. He asked if they were going to kill him and repeatedly begged them to do so. He said that Sierra had molested, stolen from, poisoned him, and wanted his body. He said he was a CIA agent, and there were helicopters in the air listening to him. He referred to himself as a saint and a martyr, who would accept his punishment and death. He said he was being cut up, asked the police if they were going to chop his head off, and invited them to do so. And he repeatedly said that it was all a dream and the officers were figments of his imagination and not real. Defendant further notes that the tape also reproduced his frantic, emotionally charged, and highly disturbed tone and manner.
Defendant argues that the tape represented vivid and highly probative evidence that he was in an irrational, psychotic, and delusional mental state shortly after the homicide. As such, the tape would have supported his defense at both the guilt and sanity phases of trial—i.e., he did not act with premeditation and deliberation, he acted with the unreasonable belief in the need to defend himself against Sierra, and he was not sane when he killed Sierra. He further argues that the tape would have undermined the prosecution’s claim that he had concocted a mental defense and faked his symptoms after the killing to escape or minimize criminal liability.
Defendant’s argument accurately summarizes the statements on the tape and the nature of his tone and manner. We also agree with his claim concerning the potential value of the tape to the defense, in that it captures him in a highly agitated state making delusional statements. Accordingly, we find that the tape was favorable evidence that the prosecution had a duty to disclose.
The Attorney General argues that the tape was not favorable because defendant made some prejudicial and incriminating statements on it. The Attorney General notes that defendant threatened to kill again; he indicated that he killed Sierra because of prior molestation and theft; he knew that Sierra had been killed; and he said he loved Sierra, denied responsibility for the killing, and blamed a neighbor. We find this argument unpersuasive.
The circumstances here are similar to those in Bailey v. Rae (9th Cir. 2003) 339 F.3d 1107. There, the defendant was charged with sexual abuse predicated on his victim’s alleged inability to give consent due to her mental disability. (Id. at p. 1110.) After trial, the defense learned about written reports from the victim’s therapist to the effect that despite the victim’s disabilities, she knew the difference between good and uncomfortable touching and knew she could say no to inappropriate contact. (Id. at p. 1111.)
Given the exculpatory content of the reports, the court found that they constituted favorable evidence. They would have helped counter the state’s claim that the victim was incapable of giving consent. (Bailey v. Rae, supra, 339 F.3d at pp. 1114-1115.) The court further observed that “[t]he State downplays the exculpatory nature of the evidence by cherry-picking isolated references from the reports[,]” in which the therapist stated that the victim’s developmental problems made her an easy target for victimization. The court explained that “[t]o say that evidence is ‘exculpatory’ does not mean that it benefits the defense in every regard or that the evidence will result in the defendant’s acquittal. Rather, the preliminary inquiry in a Brady claim has always been whether the evidence in question is ‘favorable’ to the accused. [Citations.]” (Id. at p. 1115; see United States v. Howell (9th Cir. 2000) 231 F.3d 615, 625 [“That the information withheld may seem inculpatory on its face in no way eliminates or diminishes the government’s [Brady ] duty”]). According to the Bailey court, “The State mistakenly assumes that the passages it references somehow negate the documents’ exculpatory nature, when the text of the reports suggests just the opposite. For all the emphasis the State places on [the therapist’s] characterization of [the victim] as ‘developmentally delayed,’ the State conveniently ignores [the therapist’s] observation that [the victim] can tell the difference between proper and improper touches despite her delayed development.” (Bailey v. Rae, supra, 339 F.3d at p. 1115.)
Here, too, the Attorney General isolates a few of defendant’s statements and ignores both the greater number of his irrational statements, his tone and manner, and his obvious state of agitation. Moreover, when viewed in the context of defendant’s nonstop ranting and raving, the isolated statements by defendant lose much of their incriminating value.
For example, four officers were present when defendant resisted arrest and was shot with a taser. He continued to resist and then said he was ready to fight “as soon as I kill someone.” According to the Attorney General, this threat was prejudicial to defendant’s case. However, before defendant uttered the “threat,” he had been raving, and after he said it, he repeatedly screamed to the officers to “Kill me now.” Given the presence of so many officers, defendant’s alleged “threat” was fully consistent with his claim of insanity.
Similarly, just before defendant mentioned what Sierra had done to him, he begged the officers to kill him and asked if they were going to harvest the skin from his body. Immediately after his comments about Sierra, defendant said he was a CIA agent and there were helicopters in the air, and he again invited the police to kill him. Thus, in context, defendant’s comments about Sierra would not have substantially undermined his defense.
In short, defendant claims, and we agree, that the tape’s “vast expanses of irrationality and insanity consisted not only of content but also of tone and demeanor, and greatly outweighed the occasional isolated statement that gave lukewarm support for an inference of rationality. On balance, the recording was overwhelmingly favorable to the mental disorder defense . . . .”
The Attorney General argues that even if the tape was favorable, the prosecution did not “suppress” it. Citing People v. Morrison (2004) 34 Cal.4th 698, he asserts that the defense was aware of the tape, but it failed to exercise reasonable diligence to obtain it before trial by seeking an order to compel its production. According to the Attorney General, “The most likely explanation . . . is that defense counsel reasonably determined that the recording was not relevant.”
A prosecutor’s duties under the due process clause are “wholly independent” of California’s statutory scheme of reciprocaldiscovery. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378, italics omitted.) As noted, under Brady, the prosecution has a sua sponte duty to disclose favorable evidence even without a request. Defense counsel’s knowledge that the tape existed does not excuse the prosecution’s failure to provide it, which it had an obligation to do without a request, let alone an order compelling production. (See Banks v. Reynolds (10th Cir. 1995) 54 F.3d 1508, 1517 [that defense knew or should have known about possibly exculpatory evidence is irrelevant in determining whether prosecution had duty to disclose it].) Moreover, here defense counsel twice requested the tape, and the prosecutor gave assurance, which turned out to be false, that it would be produced.
Under the circumstances, we do not believe that defendant was required to seek a court order to compel the prosecution to comply with its obligations under Brady. Nor does Brady suggest that defendant’s failure to do so somehow excused the prosecution’s failure turn over the tape in a timely fashion. Indeed, the Attorney General’s position turns the notion that the prosecution has a sua sponte duty to disclose on its head and would foster a hide-and-seek gamesmanship concerning evidence favorable to the defense.
The Attorney General’s reliance on People v. Morrison, supra, 34 Cal.4th 698 is misplaced. There, the defendant was given evidence that a police officer had released a substantial amount of money to a prosecution witness. At an Evidence Code 402 hearing before trial, the officer testified that money was released because it was found in the witness’s house. On appeal, the defendant claimed the prosecution’s failure to reveal the officer’s reason sooner violated Brady. The Supreme Court disagreed. It noted that the prosecution had disclosed all of the critical facts about the money, its release, and the officer who released it. The court opined that the officer’s testimony merely confirmed what defense counsel had already gleaned from the evidence. (Id. at pp. 713-715.)
The court further opined that it was incumbent on defendant to investigate evidence that had been disclosed and interview the officer to discover other possibly favorable evidence. The court explained, “Because Brady and its progeny serve ‘to restrict the prosecution’s ability to suppress evidence rather than to provide the accused a right to criminal discovery,’ the Brady rule does not displace the adversary system as the primary means by which truth is uncovered. [Citation.] Consequently, ‘when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.’ [Citations.]” (People v. Morrison, supra, 34 Cal.4th at p. 715, italics added.)
Here, it cannot reasonably be argued that the prosecution fully disclosed all of the critical information contained on the tape. On the contrary, counsel knew only that the tape existed and asked for it twice. Moreover, counsel’s failure to seek an order compelling discovery is not comparable to the defendant’s failure to independently investigate the information that had been disclosed in People v. Morrison, supra, 34 Cal.4th 698.
Last, defense counsel’s ignorance of what was on the tape, his two requests that it be produced, and the motion for new trial that he filed immediately after receiving the tape rebut the Attorney General’s speculation that counsel sought no motion to compel because he figured the tape was irrelevant.
Concerning whether the tape was material, defendant argues that although the arresting officers testified about defendant’s arrest and ride to the hospital, their testimony was a “tame, tepid, pale and abbreviated summary of a few things [he] said after his arrest.” Moreover, the psychological experts did not have access to the tape, and their testimony did not “flesh out the bare-bones testimony of the officers.” What little information Doctors Berke, Echeandia, Patterson, and Missett had about isolated statements in the police report merely confirmed their diagnosis and conclusion. However, defendant asserts that “the tape contains a much more accurate, detailed and powerful presentation of defendant’s state of mind mere minutes after the homicide.” Thus, contrary to the impression left by the officers’ testimony that defendant made a few statements, resisted arrest, and yelled on the way to the hospital, the tape reveals ongoing, tortured, desperate, and bizarre statements and was the most accurate evidence of his physical, mental, and emotional state at the time. Under the circumstances, defendant claims that had the tape been played for the jury, it would have put the prosecutions case in such a substantially different light that it is reasonably probable he would have obtained a more favorable result.
The Attorney General claims, however, the tape was merely cumulative and would not have changed the verdict. He notes that after listening to the tape, the trial court found that its substance had been sufficiently presented to the jury through the direct and cross-examination of the witnesses. In support of the court’s finding, the Attorney General notes that the jury learned that defendant was walking down the street naked, forcibly resisted officers, was unfazed by taser shocks, said he did not feel pain, told the officers they were not real, and screamed all the way to the hospital. Again, we are not persuaded.
In People v. Filson (1994) 22 Cal.App.4th 1841, 1845 (Filson), overruled on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452, the jury convicted the defendant of one count of lewd conduct with a minor but could not reach a verdict on two identical counts. At trial, the defendant claimed that he lacked the requisite specific intent to commit the crime because he was too drunk. The record revealed that he was arrested after the party, interviewed, and then taken to the hospital where a blood sample was drawn. The mother of one of the alleged victims testified that the defendant had been drinking at the party but was not intoxicated. The arresting officer testified that although the defendant appeared to be under the influence and had some difficulty keeping his balance and following commands, he nevertheless followed those commands, seemed oriented to his surroundings, and made sense when he spoke. (Id. at pp. 1845-1846.)
During trial, defense counsel learned about a tape recording of the defendant’s arrest and transportation to the hospital and sought to have it produced so that he could evaluate it and possibly introduce it as evidence of the defendant’s demeanor and state of intoxication. The prosecutor argued that it did not have to provide the tape because the defendant had not made a general discovery request and the evidence was merely cumulative of other evidence of intoxication. The trial court denied the defendant’s request. (Filson, supra, 22 Cal.App.4th at pp. 1846-1847.)
On appeal, the court opined that the defendant could have used the tape to impeach the witness’s testimony that he was not intoxicated and the officer’s testimony concerning the extent of his intoxication. Moreover, “a tape preserving the sounds of a grossly intoxicated defendant talking would constitute persuasive circumstantial evidence supporting the defense theory that defendant was too drunk to form the specific intent needed for conviction.” (Filson, supra, 22 Cal.App.4th at p. 1848.) The court found the lack of a general discovery request irrelevant because the prosecutor had an independent constitutional duty to disclose and produce evidence favorable to the defense.
The court also rejected the prosecution’s claim that the evidence was cumulative. The court explained that “the actual sound of defendant speaking contained on the tape would be much stronger evidence than [the officer’s] opinion testimony regarding defendant’s condition at the time of his arrest. ‘Evidence that is identical in subject matter to other evidence should not be excluded as “cumulative” when it has greater evidentiary weight or probative value.’ [Citation.]” (Filson, supra, 22 Cal.App.4th at p. 1851, quoting People v. Mattson (1990) 50 Cal.3d 826, 871.)
Under the circumstances, the court concluded that the trial court had “prevented the defense from obtaining and using the tape, and also foreclosed all inquiry into the legitimate field of favorable inferences deducible from defendant's statements. The net effect was to hobble defendant’s ability to challenge a crucial prosecution witness and to present independent, objective, and admissible evidence for the sole defense theory.” (Filson, supra, 22 Cal.App.4th at p. 1852.) The court held that the error amounted to a violation of due process that could not be deemed harmless (Ibid.; see In re Sodersten (2007) 146 Cal.App.4th 1163, 1169, 1172-1173, 1192-1204, 1225-1236 [failure to disclose tapes interviews of two witnesses and conversation between one witness and petitioner witnesses violated Brady and denied the defendant a fair trial].)
The tape in this case was no less favorable and important evidence than the tape in Filson, and we disagree with the trial court’s view that the tape was, in essence, cumulative of the officers’ testimony about the arrest. The tape revealed many more bizarre and irrational statements than were presented at trial. More importantly, it provided a direct auditory experience of defendant’s manner, tone, volume, repetitions, and emotional agitation that was far more accurate, detailed, and vivid than the officers’ testimony about some of defendant’s statements and behavior.
Furthermore, such first hand evidence of defendant’s state of mind shortly after the homicide would have powerfully substantiated the opinions of the psychological experts that defendant suffered from delusions at the time of the homicide and was not legally sane. The evidence would have substantially undermined the impact and effect of Doctor Jorge’s view that during a prior hospitalization, she found that he was malingering. The evidence also would have undermined the prosecution’s argument that defendant was sane and acted with premeditation and deliberation when he killed Sierra.
Last, when viewed in light of all the evidence, the evidence that defendant acted with premeditation and deliberation and was not insane or suffering under a mental disease or insane was not so overwhelming as to render it unlikely that the tape would have made a difference. On the contrary, in our view, the tape represents such strong and compelling evidence of defendant’s mental state shortly after the homicide and puts the case in such an entirely different light that its exclusion undermines our confidence in the jury’s verdicts at both the guilt and sanity phases of the trial. (See Kyles v. Whitley, supra, 514 U.S. at p. 435; Strickler v. Greene, supra, 527 U.S. at p. 290.) In other words, we find it reasonably probable the result would have been different had the jury heard the tape. Thus, we agree with defendant that the tape was favorable and material.
In sum, defendant has satisfied his burden to show a Brady violation: the prosecution withheld favorable and material evidence. Accordingly, the jury’s verdicts cannot stand and the judgment must be reversed. (See Kyles v. Whitley, supra, 514 U.S. at pp. 435-436 [Brady violation encompasses determination that nondisclosure was prejudicial]; In re Brown, supra, 17 Cal.4th 873, 887.)
Given our reversal of the judgment, we need not address defendant’s claim that the sanity verdict must be reversed because the jury could not rationally have rejected the testimony of the experts who said that defendant was not legally sane when he killed Sierra. It suffices to say that Doctor Jorge’s testimony provided a rational basis to infer that defendant was malingering and not suffering under a mental disease at the time of the homicide. Defendant’s reliance on People v. Duckett (1984) 162 Cal.App.3d 115 (Duckett) is misplaced. We find the circumstances here to be materially distinguishable from those in Duckett.
Disposition
The judgment is reversed.
WE CONCUR: PREMO, J., ELIA, J.