Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR037397
DAVIS, Acting P.J.
A jury found defendant Silverio Soto guilty of unauthorized use of a vehicle in violation of Vehicle Code section 10851, subdivision (a). Defendant appeals the trial court’s denial of his motion for dismissal or mistrial or, in the alternative, for a jury instruction, which was based on his claim that the People failed to turn over certain discovery items. We shall affirm the judgment.
Hereafter, undesignated section references are to the Vehicle Code.
FACTS AND PROCEDURAL HISTORY
On the evening of September 23, 2003, long-time friends Amy Walsh and Amy Wingfield were out cruising on Esplanade Street in Chico in Walsh’s 1994 Acura Integra. They pulled up next to another car and began talking with defendant and the other two men inside. After exchanging telephone numbers with them, Walsh and Wingfield invited the three men over to Walsh’s apartment. Walsh and Wingfield cruised a while longer, then drove home and parked in the carport around the corner from Walsh’s apartment. Defendant and the other two men went to buy alcohol and arrived at the apartment approximately 45 minutes later.
Walsh and Wingfield sat around with defendant and his two friends drinking and talking. Walsh showed them pictures of her car in her bedroom and took them outside to show them her car while Wingfield talked on her cell phone on the couch. After drinking two or three strong mixed drinks, Walsh passed out on the couch. She was awakened by Wingfield, who told her the three men had taken Wingfield’s cell phone and left the apartment. When they went outside, defendant and the other two men were gone, as were Wingfield’s cell phone and Walsh’s car. They called the police and reported the theft. Walsh also provided sheriff’s deputies with the cell phone number the men had given her, and told them defendant had identified himself as “Marco” or “Marcus.”
A subsequent investigation by the district attorney’s office revealed that the cell phone number the men gave to Walsh and Wingfield belonged to someone named Marco A. Corona.
On November 25, 2003, at approximately 12:30 a.m., Yolo County sheriff’s deputies noticed two vehicles--a Hyundai and Walsh’s Acura Integra--parked in an orchard just off a county road. Defendant was sitting in the passenger seat of the Hyundai and Maria Espino, defendant’s coworker, was sitting in the driver’s seat. When deputies ran the license plate on the Acura, they learned that it was stolen. Espino told deputies defendant had been driving the car for about two months. Defendant, however, told them he had only had the car two days and had borrowed it from his ex-girlfriend, a woman named “Michelle,” whose last name and telephone number he did not know.
Defendant was arrested and charged with one count of theft or unauthorized use of a vehicle (§ 10851, subd. (a)), and an alternative count of receiving stolen property (Pen. Code, § 496, subd. (a)). He pleaded not guilty to both counts.
When the car was returned to Walsh, she found items in it that were not hers, including a stack of mail with defendant’s name on the mail.
An investigator from the district attorney’s office interviewed Walsh and Wingfield on August 23, 2004, and August 26, 2004, respectively. The resulting investigative report, which references the fact that the interviews were tape-recorded, was provided to defendant’s counsel on September 1, 2004.
On June 14, 2005, Wingfield identified defendant as a potential suspect. Walsh also identified him some time prior to that date.
Trial commenced on January 31, 2006. Several days before trial, Walsh and Wingfield were separately shown photographic lineups which included pictures of Marco Corona (aka Marco Silva) and Jose Silva. Neither woman identified anyone from the photos as a suspect.
Defendant’s picture was not included in either of the photo lineups.
At trial, both Walsh and Wingfield identified defendant as one of the three men who visited Walsh’s apartment the night Walsh’s car was stolen. Defendant put on several witnesses to testify that he was at work the night of the incident.
On February 1, 2006, the second day of trial, defense counsel requested for the first time copies of the tape-recorded interviews of Walsh and Wingfield, as well as transcripts of those tapes. The tapes were turned over within several hours of the request; however, the district attorney’s office refused to turn over the transcripts. In a subsequent motion for dismissal or mistrial or, alternatively, for the court to instruct the jury with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 306, defendant argued the case against him should be dismissed due to prosecutorial misconduct arising out of the district attorney’s failure to provide the tapes and transcripts, and three investigative reports related to Marco Corona (aka Marco Silva) and Jose Silva, in a timely manner. The court denied the motion, finding the prosecution had not intentionally withheld discovery and had turned late discovery over “as soon as it was developed.” The court also noted that defense counsel “knew about that tape for months and never requested it.”
The jury found defendant guilty of section 10851, subdivision (a) (unauthorized use of a vehicle), and found him not guilty of the remaining charge. The court suspended imposition of sentence and placed defendant on three years’ probation, ordering him to serve 240 days in county jail.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the prosecution did not meet its duty, under Penal Code section 1054.1 and Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady), to turn over the tapes and transcripts of the Walsh and Wingfield interviews as soon as it had access to them. Second, he contends the prosecution failed to “start the investigation of the ‘Marco’ lead until a day or two before the trial started.” We disagree on both counts.
We review the trial court’s ruling on matters regarding discovery under an abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 299.)
Penal Code section 1054.1 requires a prosecuting attorney to “disclose” to the defendant or his or her attorney certain materials and information if it is “in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies,” including “[a]ny exculpatory evidence,” and “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case.” (Pen. Code, § 1054.1, subds. (e), (f).)
Defendant’s trial counsel is entitled to inspect, view, hear, or copy any and all items disclosed by the prosecution. The district attorney, however, is not required to seek out defense counsel and present the items to him for inspection. Rather, it is defense counsel’s duty to go to the office of the district attorney and inspect the items available to him there. (People v. Garner (1961) 57 Cal.2d 135, 142.)
The trial court concluded that the prosecution met its duty of disclosure under Penal Code section 1054.1 by providing defense counsel, in September 2004, with a copy of the investigative report referencing the tape-recorded statements of Walsh and Wingfield. We agree. Once the existence of those tapes was disclosed in the investigative report, defense counsel had a duty to request copies of the tapes or go to the district attorney’s office to hear them. The stipulation regarding the informal discovery process between the Yolo County Public Defender and the Yolo County District Attorney further confirms that duty. Defendant made no attempt to listen to the tapes, and made no actual request for copies of them until the second day of trial. The tapes were produced within hours.
Defendant also argues that the prosecution had a duty to provide copies of the transcripts in addition to the tapes themselves. However, because he cites no authority for that specific proposition, and we are not aware of any such authority, we need not discuss it further. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority].) In any event, subdivision (f) of section 1054.1 is written in the disjunctive, requiring disclosure of “written or recorded statements of witnesses,” not both. (Italics added.) Disclosure of the tapes satisfied the section 1054.1 requirement.
We are similarly not persuaded that the failure to provide the tape-recorded statements of Walsh and Wingfield constituted a Brady violation. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286].)
Defendant argued at trial that there were inconsistencies between the statements given by the two women and their trial testimony “that could have been used to impeach each of them at trial.” Although we are at somewhat of a disadvantage because neither the investigative report nor the tapes were made a part of the record, defense counsel’s declaration in support of defendant’s motion to dismiss sets forth the claimed inconsistencies, including: (1) the number of men that went to Walsh’s apartment the night of the incident; (2) the make and model of the car the men were driving; (3) the manner in which Wingfield’s cell phone was taken from her (i.e., taken from her while she slept, or taken out of her hand while she was talking to someone); (4) whether or not one or both of the women passed out or fell asleep; and (5) whether defendant told them his name was Jose or Marcus. In the context of the crime charged, we do not find any one of those points, either alone or in conjunction with any other point, to be particularly beneficial for purposes of impeachment.
Defendant was charged with theft or unauthorized use of the car on November 26, 2003 (not with the actual theft of the vehicle on September 23, 2003). An element of the crime charged is defendant’s use of the car “without the consent of the owner” and with the intent to “permanently or temporarily deprive the owner” of title or possession of the car. (§ 10851, subd. (a).)
Both women positively identified the defendant prior to and at trial as one of the men at Walsh’s apartment that night. None of the alleged inconsistencies impeach that testimony because they do not call into question the issue of whether or not defendant was at the scene of the crime. Walsh and Wingfield’s positive identifications provided sufficient evidence that defendant was present when the car was stolen, and therefore establish that he knew it to be stolen when he was found in possession of it on November 25, 2003, and arrested. Coupled with the testimony of defendant’s coworker, Espino, that defendant had been driving Walsh’s car for two months, the complete absence of evidence to support defendant’s claim that he had just borrowed the car two days prior from “Michelle,” and the fact that it was undisputed at trial that defendant was in possession of the car on November 25, 2003, there was an abundance of evidence to prove the charge of unauthorized use of the car by defendant.
We also note that defense counsel addressed the inconsistencies without the benefit of the tapes on cross-examination of both Walsh and Wingfield (e.g., the number of men in the apartment, that defendant called himself Marco, the type of car driven by the three men), and was able to recall Wingfield for further examination on the inconsistencies after having listened to the tapes (e.g., how the cell phone was taken from Wingfield and whether or not the victims passed out).
Defendant also contends that the prosecution violated its discovery duties by failing to “start the investigation of the ‘Marco’ lead until a day or two before the trial started.” We are not persuaded.
As the People correctly point out, the prosecution has no duty to conduct defendant’s investigation for him. “[W]hen 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.” (United States v. Brown (5th Cir. 1980) 628 F.2d 471, 473; see also United States v. Stuart (8th Cir. 1998) 150 F.3d 935, 937 [“Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence”]; United States v. Slocum (11th Cir. 1983) 708 F.2d 587, 599.) The information regarding “Marco” or “Marcus” was provided to sheriff’s deputies when the crime was reported in September 2003. The police report was available to defendant early on in the case. Similarly, defense counsel was provided with investigative reports regarding the prosecution’s investigation of “Marco” and photographic lineups conducted with Walsh and Wingfield the same day the reports were prepared. Defendant could just have easily pursued his own investigation of “Marco” and/or Jose based on the information in the police report, and certainly had the opportunity to fully examine both Walsh and Wingfield on that subject during trial.
In any event, Walsh and Wingfield both identified the defendant as one of the three men in the apartment that night; they did not identify Marco or Jose from the photo lineups. While the name and telephone number defendant gave to Walsh and Wingfield apparently belong to a real person--Marco A. Corona--it is not difficult to imagine that defendant gave the two women Corona’s name and cell phone number in order to avoid detection for the eventual theft and/or unauthorized use of the stolen Acura.
We find no error in the trial court’s denial of defendant’s motion.
DISPOSITION
The judgment is affirmed.
We concur: HULL , J., ROBIE , J.