Opinion
G053869
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL ANTHONY STEWART, JR., Defendant and Appellant.
Anthony J. Falangetti for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF3868) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Anthony J. Falangetti for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Forensic investigators found Paul Anthony Stewart's thumb and palm prints on the front passenger side window where the shooter aimed his gun at rival gang members inside a car before firing twice. (Pen. Code, §§ 187, subd. (a); 664, subd. (a); all further statutory references are to this code unless noted.) The jury convicted Stewart of attempted murder and found true enhancement allegations that Stewart personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)). The trial court denied Stewart's new trial motion under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and sentenced him to 42 years to life in prison. Stewart contends the court erred in denying his new trial motion because the prosecutor should have disclosed transcripts of a defense investigator's witness interviews regarding Stewart's involvement in a prior gang-related vandalism incident.
Specifically, Stewart's former attorney arranged the interviews and provided them to a different prosecutor in the vandalism case four years earlier, which that prosecutor eventually dismissed as to Stewart. But the transcripts remained in the People's files related to that case. A witness to the incident testified in the attempted murder prosecution that Stewart was present during the vandalism incident, as additional evidence of Stewart's gang ties. Having reviewed the witness's brief testimony, we agree with the trial court that the transcripts were not material under Brady because they do not undermine our confidence in the trial proceedings. We find no reasonable probability their disclosure would have yielded a different result, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On March 31, 2012, at approximately 2 p.m., a gunman approached a vehicle parked outside an apartment complex in an area of La Habra claimed by the Monos criminal street gang. Juan Yniquez and Raul Martinez, both members of the Monos gang, occupied the vehicle and had the passenger side window rolled down approximately two inches. Although reluctant to discuss the shooting with the police, the victims admitted the gunman called out, "Where are you from," and then stuck the gun "through like where that little hole is" in the lowered window. The gunman pulled the trigger either as Yniguez and Martinez fled out of the car, or after they exited it, and two bullets struck Yniguez in his shoulder and his leg.
Forensic investigators recovered Stewart's thumb and palm prints on the outside of the front passenger window of the victims' vehicle. An investigator explained at trial that because of the palm print's location "all the way up to the top edge of the window," the print "had to be deposited while that window was rolled down"; otherwise, the rubber trim around the door would have prevented a print there with the window up. Based on the film of dust and dirt that covered the rest of the car, but was absent in the area of "'recent disturbances'" marked by the prints, the investigator concluded the prints were fresh. The investigator acknowledged that dating the disturbances was inexact — the prints could have been left the previous day or as much as a week before, including, for example "in a mall parking lot," as Stewart's attorney suggested.
Yniguez and Martinez testified at trial, but neither would identify Stewart as the shooter. Both testified they did not want to be a "rat" and that "bad things" happened to rats, including beatings and murders. Yniguez similarly had refused to disclose the shooter's identity to the police. At trial, Yniguez testified he did not see the person who shot him and did not remember anything about the shooting. Martinez testified affirmatively on cross-examination that Stewart was not the shooter. Stewart's cousin testified Stewart was not in La Habra at the time of the shooting.
Officer Michael Costanzo of the La Habra Police Department testified as the prosecution's gang expert. He opined that Stewart was a member of the All West Coast criminal street gang (AWC), and he explained that AWC and Monos were rivals. Costanzo based his opinion Stewart was an active AWC member on multiple factors: (1) Stewart's tattoos, including a large "AWC" tattoo across his abdomen, "All West Coast" tattooed on his left arm, and "AWC" tattooed down his left leg; (2) field contacts Costanzo personally made with Stewart in 2007 and other AWC members, including one in which Stewart claimed within hearing of other members that he was an AWC member; (3) another field contact Costanzo personally made in 2009 in which Stewart admitted he belonged to AWC and that his moniker was "Sage"; (4) the facts of the charged crime, where the gunman shot a rival gang member after issuing a typical gang "hit up" challenge ("Where are you from"); and (5) Costanzo found ample gang indicia on Stewart's Facebook page, including photographs uploaded to the site in 2012 a few months before the shooting.
The social media photographs depicted: (a) Stewart's gang tattoos, AWC hand signs, and AWC graffiti; (b) a memorial photograph of a deceased AWC member; and (c) a photo of Stewart pretending to be an employee of a fictitious organization called "West Coast Postal" with his badge number displaying "345," a number commonly used by AWC to identify the gang. Stewart's Facebook page also included AWC-related comments and interactions with other known AWC gang members. Additionally, Costanzo testified he had been the investigating officer in a November 2008 incident in which Stewart was present when other AWC members vandalized a home while calling out "AWC."
Costanzo further explained that shooting a rival gang member in rival gang territory right after saying, "Where are you from?" benefits, furthers, and promotes a street gang's criminal activity and influence by increasing the gang's reputation for violence, elevating the individual's status in the gang, assisting with recruitment of new members by elevating the gang's status, and frightening the gang's rivals.
Irving Gutierrez testified briefly about the November 2008 vandalism incident at his apartment. He explained it arose when one of "my closest friends," an AWC member named Matthew Garcia, "jumped my little brother, and I had already left the party, so I didn't know until after when my brother came home all bruised up." A few days later, Gutierrez spotted Garcia walking by Gutierrez's apartment, and confronted Garcia about the beating. Garcia departed and returned later with several friends Gutierrez recognized as AWC members, including Stewart, whom Gutierrez knew as Sage. Gutierrez described the damage from the incident as a "broken window," caused by a "[b]eer bottle was thrown through it and then a few rocks." He testified the "subjects" "claimed" AWC during the confrontation and reminded him "you live[ in] All West Coast territory." Gutierrez did not say how the confrontation dissipated, but he knew vandalism charges had been brought against several of those present, but only Garcia was convicted.
The jury convicted Stewart in the present trial as noted above, and in the time between the verdict and sentencing, Stewart retained a new attorney who filed a new trial motion. Noting Stewart had been tried twice on the attempted murder charge, with the first trial ending in a mistrial, counsel argued that Gutierrez's testimony about the vandalism incident in the second trial—after he did not testify in the first trial—altered the outcome.
The jury in the first trial could not reach a verdict, with nine jurors favoring a guilty verdict, and three not guilty. Ruben Frias and Sheny Gutierrez represented Stewart in the two trials. Anthony Falangetti filed the new trial motion.
Specifically, in his new trial motion, Stewart asserted the prosecutor violated his obligations under Brady when he failed in the attempted murder prosecution to turn over to the defense transcripts of interviews a defense investigator had conducted when Stewart faced the vandalism charge, which was eventually dismissed as to Stewart. Stewart's new attorney for the new trial motion learned of the transcripts from Stewart's vandalism defense attorney, Doug Myers. Myers could not recall if he had given the prosecutor the transcripts in discovery, but when the prosecutor learned of Stewart's Brady claim in the new trial motion, the prosecutor ordered the vandalism file from storage and found four of the five transcripts. They included the defense investigator's interviews with: (1) the vandalism victim, Irving Gutierrez; (2) Gutierrez's brother, Larry; (3) Larry's friend, Rachel, who was present when the confrontation outside Gutierrez's home began with Garcia; and (4) Larry's friend, Ulises, who also had been present, though he and Rachel ran inside the home during the confrontation.
The prosecutor did not have a copy of a fifth transcript located in Myers's files, the defense investigator's interview with Garcia, with whom Gutierrez had quarreled. The trial court found that contrary to Stewart's claim in his new trial motion, the prosecutor had provided the police reports related to the vandalism incident to the defense in the attempted murder trial.
Stewart argued that Gutierrez's interview with the defense investigator constituted Brady material because, contrary to his trial testimony, Gutierrez disclosed to the investigator that his brother Larry had been present during Gutierrez's confrontation with Garcia, and that Larry stabbed at Garcia with a screwdriver or pocketknife before Garcia departed, possibly hitting him. Additionally, when Garcia returned with reinforcements, Stewart remained across the street instead of with the main body of AWC members outside Gutierrez's apartment.
Defense counsel at the new trial hearing argued Gutierrez's testimony about the vandalism incident was prejudicial because it tainted the jury with an "explosive" and "scary" violent gang attack on a residence, which was much more prejudicial than the generic gang member field identification contacts that Costanzo described. Although trial counsel had not offered to stipulate to the incident based on the police report or Costanzo's testimony about the incident in the first trial, Stewart argued the transcripts were essential to impeach Gutierrez because Gutierrez gave live testimony in the second trial. Defense counsel conceded Gutierrez's account was not necessary to establish Stewart's gang membership, but argued disclosure of the transcripts would have furnished grounds to exclude the incident under Evidence Code section 352, either because it was cumulative of other gang evidence or to avoid a time-consuming "mini trial" regarding the incident and Gutierrez's credibility, with the introduction of each transcript and further witness testimony and argument. Stewart also argued the transcripts would have impeached the thoroughness of Costanzo's vandalism investigation, and therefore his credibility as the prosecution's gang expert.
The trial court concluded the jury did not give any improper weight to the vandalism incident because the court in the attempted murder trial provided a limiting instruction regarding gang evidence. The court also observed that Gutierrez's testimony had no bearing on the primary issue at trial—the shooter's identity—and therefore, even assuming the prosecution had a duty to turn over defense-generated transcripts because they were in the People's file, the failure to do so was not material under Brady. The court observed that ample other evidence established Stewart's gang membership, including his tattoos and police contacts. But the court viewed the gang evidence as less important than the main issue of identity because the shooting itself constituted an "almost uncontradicted . . . hit up" by a rival gang. Consequently, establishing the shooter's identity would also establish he was an active gang member.
On the identity question, the court found the palm and thumbprint evidence "powerful" and "very compelling." The court also observed that "it was obvious to everyone in this courtroom" that Yniguez refused to identify Stewart as the shooter because of "the code of the street." Accordingly, the court found disclosure of the transcripts would not have meaningfully affected the trial or resulted in a more favorable verdict for Stewart on the contested issues concerning the gang allegations and the shooter's identity. The court therefore denied the new trial motion.
II
DISCUSSION
Stewart contends the trial court erred in denying his new trial motion because he established Brady error in the prosecutor's failure to turn over the defense investigator interviews the People received during the earlier vandalism prosecution. We conclude it is not reasonably probable the omitted interviews would have made a difference here.
Brady, supra, 373 U.S. 83 requires the prosecution to disclose material exculpatory evidence whether or not the defendant makes a request. (In re Brown (1998) 17 Cal.4th 873, 879 (Brown).) Evidence must be disclosed 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.]'" (People v. Verdugo (2010) 50 Cal.4th 263, 279 (Verdugo).) "[T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. [Citation.] Rather, the question is whether 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" (Strickler v. Greene (1999) 527 U.S. 263, 290 (Strickler).) Thus, the issue "is not whether the defendant would more likely than not have received a different verdict with the evidence, but 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 (Kyles).)
Absent such prejudice, "'there is never a real "Brady violation."'" (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043 (Salazar).) But if the defendant shows the undisclosed evidence was material, he or she "establishes at one stroke what in other contexts are separately considered under the rubrics of 'error' and 'prejudice.' For, here, there is no 'error' unless there is also 'prejudice.' [Citations.]" (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7 (Sassounian).) As explained in Salazar, "Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt or innocence.'" (Salazar, at p. 1043.)
The defendant bears the burden of showing materiality. (Sassounian, supra, 9 Cal.4th at p. 545.) As a mixed question of law and fact, Brady claims "are subject to independent review" on appeal, with the trial court's findings of fact, if any, "entitled to great weight when supported by substantial evidence." (Salazar, supra, 35 Cal.4th at p. 1042.)
As a preliminary matter, the Attorney General argues the interviews here do not fall under Brady because they were "generated by [Stewart's] previously retained counsel" in the vandalism proceeding, and therefore "available to defense counsel in this case through his own diligent investigation." The Attorney General relies on the following excerpt from Salazar: "Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it '"by the exercise of reasonable diligence."' [Citation.]" (Salazar, supra, 35 Cal.4th at pp. 1048-1049.)
In Salazar, the undisclosed material consisted of a supplemental, "follow-up investigation report" by police detectives in a murder case. (Salazar, supra, 35 Cal.4th at p. 1047; see Kyles, supra, 514 U.S. at p. 437 [prosecutor's Brady obligation extends to evidence "known to others acting on the government's behalf"]; Brown, supra, 17 Cal.4th at p. 879 ["prosecution team" for Brady purposes includes "both investigative and prosecutorial personnel"].) Here, the prosecutor at the outset of the attempted murder prosecution disclosed the criminal complaint concerning the vandalism charge, which Stewart interprets as tantamount to "representing to the defense that no other evidence exist[ed]." The prosecutor apparently was unaware of the interview transcripts Stewart's defense attorney in the vandalism case turned over several years earlier.
Excusing his subsequent attorneys' failure to uncover those transcripts, Stewart relies on precedent observing that, based on a prosecutor's "misleading representation" of full discovery, "the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued." (United States v. Bagley (1985) 473 U.S. 667, 682; see Verdugo, supra, 50 Cal.4th at p. 279 ["'Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies'"].)
The trial court concluded that because the transcripts were "in the People's file" in the vandalism matter, the prosecutor's discovery obligation in the subsequent case required turning them over to Stewart's new counsel, and we will assume the same without deciding the issue. As in Salazar, where the Supreme Court observed that, "[a]s interesting as th[e] debate may be" concerning whether the prosecutor "suppressed" evidence under Brady when "defense counsel, with reasonable diligence, could have obtained" it, the question is moot where the undisclosed evidence was "not material." (Salazar, supra, 35 Cal.4th at p. 1049.)
The alleged Brady evidence here consisted of four interviews a defense investigator conducted with witnesses to the vandalism incident, which cast doubt on Gutierrez's account when he testified in the attempted murder prosecution. Specifically, while Gutierrez testified the incident grew out of an argument he initiated with Garcia concerning Garcia's treatment of Gutierrez's brother (Larry) at a Halloween party a few days earlier, Gutierrez told the defense investigator the argument began when Larry confronted Garcia outside Gutierrez's apartment. Gutierrez intervened to calm his brother down because he was on probation, but Gutierrez acknowledged in the interview that Larry grabbed a sharp object that may have been a knife or screwdriver and swung at Garcia, possibly hitting him in the side. Gutierrez also told the defense investigator that while he saw Stewart among those who returned with Garcia to throw a bottle and rocks through Gutierrez's living room window, Stewart remained behind the others, across the street and "just standing there like, not doing anything."
Larry's interview with the defense investigator also impeached Gutierrez's trial account suggesting Stewart was a direct participant in the vandalism incident, although to a lesser degree. Larry admitted that when he went outside to investigate after the bottle smashed through the window, he could not identify anyone because they had retreated and it was dark. Still his testimony would have been helpful to the defense because, unlike Gutierrez, he did not place Stewart at the scene.
Larry's friend Ulises affirmatively told the defense investigator he knew who Stewart was and did not see him during the incident, but at the Brady hearing, the prosecutor attempted to minimize this evidence by noting Ulises took refuge during the confrontation in a bathroom inside Gutierrez's home. Another witness interviewed by the defense investigator, Rachel, also withdrew inside Gutierrez's home and did not say whether she saw Stewart. But her interview still provided fodder to impeach Gutierrez's trial account as untrustworthy because he was protecting his brother. In particular, Rachel told the investigator Larry admitted before he saw Garcia that he was angry with Garcia, and when Garcia walked past the apartment, Larry grabbed a knife and went out to confront him.
Evidence that Larry was the initial aggressor or that Stewart was not present or only minimally involved could have led a reasonable jury to discount Gutierrez's trial testimony in part or as a whole. The trial court found the undisclosed defense interviews "would have clearly impeached a prosecution witness," but concluded the evidence was not material under Brady. We agree.
As noted, "strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." (Strickler, supra, 527 U.S. at p. 281.) That standard "necessarily entails the conclusion that the suppression must have had '"substantial and injurious effect or influence in determining the jury's verdict,"' [citations] . . . ." (Kyles, supra, 514 U.S. at p. 435.) We are confident that was not the case for the simple reason that, as the trial court observed, Gutierrez's testimony about an alleged prior incident involving Stewart's gang had virtually nothing to do with the chief issue of the shooter's identity.
That question was resolved by the thumb and palm print evidence, which the trial court noted was "powerful" and "very compelling," including "that the fingerprint was placed . . . very, very close in time to when the police examined it," "[t]hat the window was, in fact down, and that there was no contesting that it was the defendant's fingerprint." In establishing Stewart's identity as the shooter, the print evidence also marked him as the person issuing the quintessential gang hit up challenge, "Where are you from," and therefore in one stroke provided strong evidence on the two primary issues at trial.
Moreover, the gang evidence was overwhelming, including not just the hit up and vandalism incident, but also Stewart's AWC gang tattoos across his abdomen, left arm, and down his leg; Stewart's admissions in multiple field contacts that he belonged to AWC; and his recent social media postings rife with AWC references. We see no reason to lose confidence in the jury's verdict on the gang allegations and the shooter's identity based on omission of the defense investigator's interview transcripts concerning the vandalism incident. (See Salazar, supra, 35 Cal.4th at p. 1050 ["'In general, impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant[] to the crime"'"].)
Stewart contends the "vandalism" label is misleading, minimizing what most jurors would regard as a serious and intimidating gang attack. It was therefore crucial to impeach Gutierrez and, according to Stewart, access to the interview transcripts could have changed the whole tenor of the case. Counsel argued below that if not for Gutierrez's "description of that incident [as] really a group of people storming a house" and instead, given the transcripts, "we [could] exclude or dilute or rebut this prior criminal [incident] with the gang, suddenly Mr. Stewart has an entirely different trial." Counsel acknowledged the other gang evidence, but argued "it doesn't have the same taint as putting on an alleged prior victim of Mr. Stewart's to testify to this extraordinarily scary incident."
Stewart repeats these claims on appeal, noting the interview transcripts could have helped him establish he was not present during the incident or supported Stewart's claim he was "targeted by La Habra Police." Alternately, Stewart argues the very volume of other gang evidence (albeit less damaging) and the potential for a "mini trial" on the dismissed vandalism charge could have led the trial court to exclude the incident altogether under Evidence Code section 352, if the prosecutor had turned over the interviews.
The premise underlying Stewart's claim Gutierrez's testimony caused a sea change in the trial is that the bottle-throwing gang attack was so inflammatory and uniquely prejudicial that the jury could not restrict the evidence to its proper purpose. As counsel phrased it below, the "problem with this gang evidence is it results in really horrific bad evidence about a prior criminal act alleged," "impact[ing the jury's] ability to adequately and fairly evaluate the key issue in the case, which is . . . identity on the actual charge." On that issue, "had th[e] jury not been exposed to an uncontradicted unimpeached statement that he had previously been involved in this violent gang activity, . . . the jur[y] might not have bought into the idea that one print on a car that moves" met the prosecutor's burden.
We are not persuaded. Before ruling on the motion, the trial court verified it had given the jury CALCRIM No. 1403, which "limits the jury's use of gang evidence and specifically tells them how they can use it, how they can't use it." In particular, the instruction directed the jury, "You may consider evidence of gang activity only for . . . limited purpose[s]" that included "whether: [¶] "[t]he defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements" or "had a motive to commit the crimes charged." We must presume the jury "'meticulously followed the instructions given.'" (People v. Cruz (2001) 93 Cal.App.4th 69, 73.)
True, evidence in some instances can have an "electric effect" nullifying a court's instructions, but here there was nothing improper about the gang evidence the prosecutor introduced. (Compare People v. Brophy (1954) 122 Cal.App.2d 638, 652 [prosecutor produced in closing argument a missing bullet never admitted in evidence; instruction inadequate to cure prosecutorial misconduct]; see People v. Allen (1978) 77 Cal.App.3d 924, 935 ["It is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions'"].)
Moreover, we know here that the vandalism incident was not so inflammatory to cause the jury to disregard the trial court's instructions. We know this because Officer Costanzo rather than Gutierrez testified about the incident in the first trial, relaying far more damaging details about Stewart's role and his belligerent gang participation, yet the jury could not reach a verdict. Based on police reports concerning the incident, Costanzo told the jury Gutierrez identified Stewart as "the leader of All West Coast," knew Stewart was a gang member "since high school," and that Stewart "frequently" engaged in a confrontational gang activity known as "posting up," which Costanzo described as "getting several gang members together, hanging out in your gang area, challenging people to fight, hitting up potential rivals, . . . it is a way to instill fear in residents that live in the area." Costanzo specifically identified Stewart as the person "shouting out 'All West Coast'" outside Gutierrez's home, "trying to get [Gutierrez] to come out of his residence to fight."
In contrast, the trial court for the second trial knew People v. Sanchez (2016) 63 Cal.4th 665 was pending in the Supreme Court and, correctly anticipating its holding, prohibited Costanzo from relaying the contents of the police reports to the jury as foundation for his opinions as a gang expert. Consequently, the prosecutor called Gutierrez to testify concerning the incident, and his account was briefer and far less damaging than Costanzo's. Gutierrez did not directly identify Stewart as instigating the vandalism, instead only identifying him as one AWC member among the others, nor did Gutierrez say anything about Stewart's AWC leadership role, his "routine" habit of posting up as Costanzo described it, or Stewart's long history in the AWC gang.
Stewart suggests the fact Gutierrez testified as a "live" victim made a difference, but we do not see his more muted testimony as a distinguishing feature leading to the different outcome in the second trial. The result in the first trial demonstrated that the incident was not so inflammatory that the jury could not set it aside, even with the details Costanzo relayed.
Nor is there any merit in Stewart's Brady claim that the omitted interview transcripts reasonably could have changed the outcome of the trial by impeaching Costanzo's investigation of the vandalism incident and, in turn, impeaching his credibility concerning his field contacts with Stewart and as the prosecution's gang expert. Costanzo was not the lead officer on the incident, instead assigned only to interview Larry and, as noted, the defense investigator did not draw much information out of Larry. There is no reason to think Costanzo could have elicited anything more from Larry than the defense, or that Costanzo somehow perverted the course of the vandalism investigation.
The trial court concluded the prosecutor gave the defense the police reports concerning the vandalism incident, and the Bates-stamped copies of the reports corresponding to the page numbers the prosecutor referenced in a discovery e-mail to the defense support the trial court's conclusion.
The court did not expressly rule on whether the prosecutor failed to turn over a defensegenerated interview with Garcia, but the fact the People's files did not include the interview supports the court's implicit conclusion there was no discovery violation. If omitted, there was no prejudice because the interview only iterated from an interested witness (Garcia) that Larry stabbed him and Stewart was not present. Similarly, Stewart fails to identify any prejudice from the prosecutor's failure to discover and disclose a detective's interview with Gutierrez. Stewart claims Gutierrez admitted in the interview that he did not see Stewart during the vandalism incident. To the contrary, however, Gutierrez expressly stated that while his "friend's the one that saw them all," Stewart was among those Gutierrez personally observed ("Yeah, he was right there").
In sum, the vandalism incident formed only a small part of the gang evidence and did not bear at all on the central issue of the shooter's identity. And as the trial court observed, sometimes it is not so much a "difference in the evidence presented to the [second] jury that [leads] to that result," but instead the prosecutor may have "just picked a better jury." But we need not resolve why the jury reached its conclusion; to resolve the Brady claim, it is enough that we are confident that the omission of defense interview transcripts did not contribute to the result.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.