Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge, Super.Ct.No. RIF106959.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Robert Foster, Stacy Tyler, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
A jury found defendant guilty of one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and one count of discharging a firearm from a vehicle at another person (§ 12034, subd. (c).) Additionally, the jury found true allegations that defendant personally and intentionally discharged a firearm resulting in great bodily injury. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) The court sentenced defendant to life for the attempted murder conviction, plus a consecutive indeterminate term of 25 years to life for the weapon enhancement. He was sentenced to five years on the second count, which was stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that the court abused its discretion and violated defendant’s constitutional rights by (1) refusing to allow defendant to play an audiotape recording of an interview between the victim and an investigating officer, and (2) denying defendant’s motion for new trial based upon the prosecutor’s alleged failure to disclose material evidence. We reject these contentions and affirm the judgment. We agree with defendant, however, that the abstract of judgment should be amended to correctly reflect the court’s stay of the sentence on count 2.
II. SUMMARY OF FACTS
In the afternoon of November 15, 2002, the victim was walking to a friend’s house in Lake Elsinore. A car with three or four people inside drove toward him. As it passed by, the person in the front passenger seat flashed gang signals and yelled “YPC.” (YPC is an acronym for Yarborough Park Crips, a predominantly Black gang.) According to the victim, he “glanced over” at the car, but did not “want to look at them too hard.” After walking a few blocks, the same car drove toward him from behind. This time, the driver flashed gang signs and said YPC. The victim walked a few more blocks. Near the intersection of Heald Avenue and Kellogg Street, he heard the sound of a car “peeling out” behind him. He turned to look, and saw the same car coming toward him. The driver’s side of the car was closest to him. The front passenger leaned behind the driver and shot the victim in the chest and abdomen with a shotgun. The impact knocked the victim into a fence. He walked around the corner and collapsed in some rose bushes. He suffered approximately 60 wounds from shotgun pellets, and his lung had collapsed.
Tina Woodard, a Riverside County Sheriff’s detective, testified that she responded to a call made at 3:27 p.m. that a juvenile was shot. She arrived at the scene three minutes later. The victim was out of breath, scared, and in pain. He told Woodard that he saw a “dark-colored vehicle” coming towards him with several Black males inside; as they approached him, they yelled YPC and shot him. Woodard broadcasted a description of the car and called for helicopters to assist in the search.
Riverside County Sheriff’s Deputies Justino Flores and Robert Kwan worked in the Lake Elsinore gang unit. Their job duties included identifying and collecting information about gang members and investigating gang crimes. In response to Woodard’s broadcast, Flores and Kwan headed toward the crime scene. Along the way, they assisted in a vehicle stop near the intersection of Poe Street and Graham Avenue, adjacent to a post office and about three blocks away from where the shooting occurred. During the stop, at approximately 3:55 p.m., Flores and Kwan saw D.S. walking past the stopped vehicles. D.S. was heading in the direction of defendant’s house, which was about four blocks away. Kwan talked with D.S., who said that he had just left his house. Flores and Kwan then went to the crime scene.
That evening, Deputy Sheriff Julian Ramirez spoke with the victim in the hospital. The victim told Ramirez that the assailant’s car was blue, possibly a Pontiac, and that the person who shot him was a Black male, approximately 18 years old. The victim did not mention the shooter’s complexion. He told Ramirez that he would be able to identify the shooter.
Sometime within the first few days after the shooting, Kwan obtained a description of the shooter as a light-skinned Black male with a ponytail. This led Kwan to suspect defendant. As Kwan explained at trial, the only person Kwan knew who was both affiliated with YPC and matched the description he had of the shooter was defendant. (Kwan believed that defendant was with YPC because approximately one month before the shooting, defendant told Kwan he was a member of YPC.)
At trial, Kwan was unable to recall how he learned of this description.
On November 19, 2002—four days after the shooting—D.S. approached Deputy Sheriff John Leseberg, a “school resource officer” at the high school D.S. attended. According to Leseberg, D.S. was a “loner” who would get picked on by other kids; Leseberg was “kind of like a big brother” to D.S. who “took [D.S.] under [his] wing.” Leseberg checked D.S. out of school and drove him to the sheriff’s station to meet with Flores.
Flores’s interview of D.S. was videotaped. Kwan joined the interview near the end. D.S. recalled that he had seen the deputies during the vehicle stop on the day of the shooting. He said that he went to defendant’s house that day, arriving there at approximately 4:00 p.m. At the house were defendant, a man referred to as “J,” and a man identified as “Andre.” (“J” is a reference to Jerrico McCall; Andre’s nickname is “Courvoisier,” or “C-Vo.”) D.S. heard a helicopter flying. Defendant asked D.S. if he had heard what happened. D.S. told defendant that he had seen people down by the post office. Defendant then told D.S. that he just “shot a Mexican,” and “I shot an EYC.” (EYC is an acronym for Elsinore Young Classics, a predominately Hispanic gang.) He said he shot the victim in the stomach and watched him fall to the ground. According to D.S., the three were “happy that they did it.” D.S. left defendant’s house at 4:30 p.m.
On weekdays, defendant lived at his mother’s home; on weekends, he lived at his father’s home several blocks away.
Two days later, on November 21, 2002, Kwan interviewed the victim in the hospital. He showed the victim a photo lineup of six people, including defendant. The victim selected the photo of defendant as the shooter.
This interview was audiotaped. The description of the interview presented here is a summary of the victim’s and Kwan’s trial testimony regarding the interview. As discussed below, the court denied defendant’s request to play the audiotape of the interview at trial and introduce it into evidence. Defendant contends that this ruling was erroneous. Relevant excerpts of the audiotape will be discussed in connection with our analysis of that issue.
That afternoon, Kwan and Flores arrested defendant. Defendant initially told the deputies that he was at the home of a friend, “R.J.,” from 8:00 a.m. until 7:00 p.m. on the day of the shooting. Later, he admitted that he was at his house from around 4:00 p.m. to 4:30 p.m., and that several people, including Andre, Jerrico, and D.S., were there. He also said that he went to his father’s house twice—at 4:30 p.m. and at 5:30 p.m. Defendant initially denied any knowledge of an incident at the intersection of Kellogg Street and Heald Avenue, but subsequently said he was aware that someone was shot there. Eventually, he identified J as the shooter. After being placed in a jail cell, he asked to speak with Flores. He told Flores that someone named Kevin was the shooter.
Jerrico McCall was subsequently arrested for tagging YPC on walls. His black Baretta was eventually found in a salvage yard after it was involved in an accident.
At trial, the victim identified defendant as the person who shot him. He testified that he got a good look at the shooter because “we looked right at each other,” and, “he was the one holding the gun aimed at me.” When asked how he could be so confident about his identification, he responded, “[y]ou really don’t forget a person holding a [.]12-gauge shotgun at you about ready to kill you. You don’t forget that.” When asked why he picked out the defendant’s photo in the photo lineup, he said, because “I saw the gun and I saw the shooter,” and “he’s the one who shot me.”
D.S. was called as a prosecution witness. He recanted the statements made in his interview with Flores and Kwan that incriminated defendant. He remembered the interview, but said it was “BS.” He stated that the deputy that drove him to the sheriff’s station told him what to say in the interview under threat of reporting him to his probation officer. The story he told to Flores and Kwan was given to him by that deputy. D.S. said he did not go to defendant’s house at approximately 4:00 on the afternoon of the shooting, and the conversation with defendant that he described in the interview never took place. Indeed, he testified that he was with his high school football team until 9:30 or 10:00 p.m. on the day of the shooting. Although D.S. said he does not know the deputy who told him what to say, he does know Leseberg. He further testified that Flores and Kwan told him to say that defendant was the shooter. Finally, he testified that at some point he told Leseberg at school that what he said in the interview was not true.
The videotape of D.S.’s interview was played in court to the jury. Flores testified that, contrary to D.S.’s testimony, he did not talk with D.S. at the sheriff’s station prior to the interview shown on the videotape. Leseberg testified that D.S. approached him about the shooting, and that he drove D.S. to the sheriff’s station to meet with Flores. Leseberg said he did not tell D.S. what to say during the interview, but merely told him that he had nothing to worry about and to just tell the truth. D.S. never told Leseberg that his interview statements were not true.
D.S. also testified for the defense. This time, he stated that he did meet with defendant, Jerrico, and C-Vo, and that it was C-Vo who was bragging about “doing the shooting.” It was not clear from his testimony when this meeting took place. On cross-examination, D.S. was asked whether he went over to defendant’s house shortly after the shooting. D.S. said he could remember a “little bit” about that, and recalled talking to defendant that day. When asked if he remembered the helicopters flying around at the time, he responded, “Kind of. Sort of.”
The defense presented several witnesses who provided inconsistent alibis for defendant. Defendant’s father, Roosevelt Wooten, Sr., and his father’s fiancée testified that defendant was at the father’s house on the day of the shooting from approximately 3:00 until 4:30 p.m. Two other witnesses testified that defendant was at R.J.’s house the entire day of the shooting until about 8:00 or 8:30 p.m.
Defendant’s older brother and another individual testified that they are original, founding members of YPC. They said that defendant is not a member of that gang.
An expert in the area of eyewitness memory and identification testified for the defense. She testified that under certain circumstances, eyewitnesses are likely to make a misidentification. She identified certain factors she considered relevant to evaluating the reliability of the eyewitness identification. These include the length of time the witness had to see the other person, witness distractions, a tendency to focus on a weapon rather than the person holding the weapon, the difficulty of identifying people of a different race, the passage of time between the initial observation and the identification, bias in the construction of a lineup, the unconscious transfer of a memory of a person in one place to the memory of the perpetrator, and the use of nonverbal cues during the showing of a lineup that can communicate the officer’s expected result. With respect to the photo lineup shown to the victim, the expert testified that it was a “biased lineup.”
Defendant testified. He stated that he has no involvement with YPC, but did hang out with two or three YPC members. He “had problems with [EYC members] at school plenty of times.” He understood that the victim was a member of EYC. He testified that on the day of the shooting, he went to R.J.’s house, where he played video games. (He was not attending school that day because of his “problems with EYC.”) At approximately 3:30 or 4:00 p.m. he was playing basketball in R.J.’s driveway when he heard helicopters overhead. They continued playing for awhile, then went inside the house where defendant called his father. He walked to his father’s house, arriving at approximately 4:30 p.m. He returned to R.J.’s house at 5:30 p.m. and played video games until he went home at approximately 8:00 p.m. Shortly after returning home from R.J.’s house in the evening, C-Vo, Jerrico, and D.S. arrived. He “might have heard” C-Vo bragging about the shooting, but was “not positive.” Defendant stated that he was not at the intersection where the shooting occurred that day.
On cross-examination, defendant was questioned about statements he made in the interview following his arrest. He said that everything he told the deputies during that interview was the truth, and admitted telling the deputies that he was, or probably was, at his house around 4:00 p.m. on the day of the shooting.
In rebuttal, Kwan testified as to his interview with defendant at the time of his arrest.
III. ANALYSIS
A. Exclusion of Audiotape of Victim’s Interview
Defendant contends that the refusal to play the audiotape of the interview between Kwan and the victim deprived him of his constitutional right to present a defense. He further argues that the court abused its discretion under Evidence Code section 352 by excluding the audiotape.
1. Background
(a) The Audiotape of the Interview
Kwan interviewed the victim at the hospital six days after the shooting. The interview was audiotaped. During the interview, Kwan asked the victim if he would know the shooter if he saw him again. The victim said, “Probably. He had a ponytail in the back.” Kwan then asked, “what kind of other features did he have? Was he a darker [B]lack guy, . . . a lighter colored skin [B]lack guy?” The victim responded, “Kind of a lighter.”
The clerk’s transcript includes a copy of the envelope of an audiotape of Kwan’s interview with the victim prepared by defense counsel. We have obtained the audiotape itself from the superior court.
Defense counsel submitted a written transcript of the audiotape, which does not appear to have been reviewed by the prosecutor and the accuracy of which was not stipulated to or determined. The transcript of the victim’s response states, “Probably he had ponytail in the back.” The statements set forth in the text are based upon our own review of the audiotape.
At another point in the interview, the victim indicated that he did not get a good look at any of the people in the car. Kwan asked, “But you said you might be able to identify [unintelligible] the one if you saw him?” The victim responded, “Only by the ponytail. ‘Cause they were far across the street when that happened. And I was just focused on the gun, I was like, ‘oh shoot.’ When he pulled out the shotgun I was looking at the gun[.] I didn’t know if it was a BB gun or what. He pulled it out and I wasn’t even paying attention to him. I looked at it and I go ‘oh shoot.’”
Kwan showed the victim the six-person photo lineup, which had a picture of defendant as the No. 5 photo. The photographs of the men in the lineup, other than defendant, appear to have short hair and no ponytail. The photograph of defendant has a dark black background that makes it difficult to tell whether the defendant has long hair or a ponytail, although his hair appears to be pulled back at the top of the forehead. After Kwan said, “I need you to go through these pictures,” the victim responded, “Number five, kind of.” Kwan asked, “That kind of looks like him?” and the victim said, “The reason why I say number five is because of his hair . . . .”
(b) The Victim’s Cross-examination
During defense counsel’s cross-examination of the victim, the victim acknowledged that the interview with Kwan was audiotaped. The following colloquy took place:
“Q. During your conversation with Detective Kwan, what you remembered of the person that shot you was a ponytail; right?
“A. No. I saw something like that, but it wasn’t sure. I wasn’t 100 percent sure about that.
“Q. All right. How about this. You remember Detective Kwan asking you, ‘But you say you might be able to identify the one if you saw him?’ Do you remember that question?
“A. No, I don’t.
“Q. How about this. You remember answering only ‘By the ponytail’?
“A. No.
“Q. Remember going on and saying, ‘Because they were far across the street when that happened’?
“A. No.
“Q. Were they far across the street?
“A. When I got shot.
“Q. When you were shot?
“A. They were on the other lane. So they weren’t that far. They were pretty far, the distance.
“Q. You remember saying, ‘And I was just focused on the gun. I was like, oh, shoot.’
“A. Well, yeah. You see a gun like that, you’re going to be, you know, worried.
“Q. So what happened was, what you were focused on was the gun; right?
“A. The gun and the shooter, yes.
“Q. But you remember telling Detective Kwan that ‘I was just focused on the gun’?
“A. You could see the barrel clearly but you can see the person aiming the barrel as well.
“Q. The question was, do you remember telling Detective Kwan, ‘I was just focused on the gun’?
“A. No, I don’t remember telling him that.
“Q. Do you remember saying, ‘When he pulled out the shotgun, I was looking at the gun’? Do you remember that?
“A. Like I said, I wasn’t—that was a long time ago. I’m not too sure about the conversation. It wasn’t that long.”
Later, counsel questioned the victim about the photo lineup identification:
“Q. And you picked out No. 5; is that correct?
“A. Yes.
“Q. And you remember—and you told Detective Kwan ‘That kind of looks like him’?
“A. I don’t remember saying that. But I remember pointing him out, circling him.
“Q. Remember saying to him, ‘The reason why I say No. 5 is because of his hair.’
“A. I don’t remember saying that.”
(c) Cross-examination of Kwan
Kwan testified that he had not listened to the audiotape or read a transcript of his interview with the victim. The following exchange took place during cross-examination of Kwan:
“Q. . . . Remember asking [the victim], ‘Would you know the guy if you saw him again?’ . . .
“A. Or something similar, yes.
“Q. And [the victim] responded, ‘Probably.’ [¶] ‘He had a ponytail in the back.’ [¶] Do you remember that?
“A. Yes.”
Kwan did not recall the discussion about the shooter being “lighter skinned.”
(d) Expert Witness Hypothetical
During direct examination of his eyewitness identification expert, defense counsel attempted to pose a hypothetical that included the statement by the victim that “[a]ll I was looking at was the gun.” The court did not permit the hypothetical on the ground that it was not based on “the state of the evidence.”
(e) Exclusion of Audiotape of Interview
Following the expert’s testimony, defense counsel informed the court that he wanted to play the audiotape of the victim interview. He stated: “I’m fine with just playing the 10 seconds where he picks out the photo and—or when he first says, ‘Well, he was maybe kind of light.’ That’s really all I need. But I know the Code says play the whole thing . . . . There’s extensive talk checkered throughout about the 25 to life. I know that [the prosecutor] wanted to be heard on me playing just the small portion.” The court responded by stating, “Well—since the tape is not edited to comport with—that’s an obvious portion that should be excluded, then we’re just going to impeach with the peace officer. We are not going to play this, then have to stop it real quick, then let them have it back there. It’s too dangerous.”
When defense counsel said that he would be “happy to redact it to that small portion,” the court stated, “We don’t have time, sir. That’s the problem. You can surely mention this is on tape. . . .” The prosecutor indicated that he wanted to use other portions of the audiotape. The court then stated: “That’s the problem here, sir. We’re not going to take this time away from this and then go through this redaction, and then go through another hearing as to whether that is sufficient redaction. We’re just going to have to impeach with the peace officer and make it perfectly clear that this has been memorialized and these are the exact words. Whatever you want to say that—okay?—for the impeachment purposes. That’s my ruling. This will be very, very piecemeal otherwise and time-consuming. You got to think bigger than you, sir.”
Later that day, defense counsel raised the matter again. He informed the court that, rather than being “checkered throughout” the interview, as he had previously stated, there were only “three places where punishment was mentioned.” The court indicated that it would not change its prior ruling. Defense counsel then said, “Would the Court listen to the part I want to play? Because it is tremendously relevant. It really is.” The court responded, “I’m not saying it’s not relevant. But no thank you . . . .”
The next day, defendant filed a written objection “to not being allowed to play” the audiotape of the victim interview. Defendant asserts that the audiotape is “relatively short” and “clearly shows how equivocal [the victim] was in his identification of the defendant. It is critical for the jury to hear the tape in order to understand how the identification occurred.” He requested that the court listen to the audiotape and reconsider its prior ruling to exclude the recording. Alternatively, defendant requested that the transcript be given to the jury during deliberations. An audiotape of the interview and a transcript, both redacted to omit references to punishment, were submitted with the document.
The court initially scolded defense counsel for raising this issue “over and over and over.” The court then continued, “With that said, you wish to get in one sentence, and I thought it to be far too time-consuming, far too time-consuming and too much effort, and I would allow you to get that information in before the jury, and I even said that. Your earlier proffer of that statement was something. That’s my rationale, and I stick with it.”
Although neither the transcript nor the audiotape were admitted into evidence, defense counsel read extensively from the transcript of the interview during his closing argument. The excerpts include the portions of the interview in which the victim said that he would identify the shooter “[o]nly by the ponytail,” and that he was “just focused on the gun.” There was no objection to defense counsel’s use of the transcript during argument.
2. Analysis
Defendant contends that the exclusion of the audiotape violated his due process right to present a defense, and constituted an abuse of discretion under Evidence Code section 352.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion.” (People v. Lewis (2001) 26 Cal.4th 334, 374.) Such discretion, however, “‘is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
The discretion to exclude evidence under Evidence Code section 352 is subject to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) This does not mean, however, that “‘a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.’ [Citations.]” (Id. at pp. 684-685.) Indeed, “the ordinary rules of evidence do not generally infringe on a defendant’s right to present a defense.” (People v. Frye (1998) 18 Cal.4th 894, 945.)
Here, the court’s initial rejection of defense counsel’s offer of proof regarding the audiotape does not constitute an abuse of discretion or a deprivation of defendant’s constitutional right to present a defense. During the defense case, defense counsel indicated that he wanted to play the portion of the audiotaped interview in which Kwan and the victim discuss the complexion of the shooter and the discussion surrounding the photo lineup identification. However, according to defense counsel, the audiotape included “extensive talk checkered throughout” about punishment of the shooter, and would need to be redacted. The court was reasonably concerned that the effort to redact would be time consuming in itself as well as result in delays in the trial to address the adequacy of the redaction and the accuracy of a written transcript. Because defense counsel did not indicate at this time how material he believed the evidence would be to his case and the apparent difficulty of redacting the tape, as suggested in counsel’s offer of proof, the court could reasonably conclude that the probative value of the evidence would be outweighed by the consumption of time it would take to prepare and present the evidence.
The question of error becomes more problematic in light of defense counsel’s subsequent efforts to seek reconsideration of the court’s ruling. Once defense counsel informed the court that he had prepared and submitted an audiotape and a written transcript that omitted the references to punishment and explained that the tape is both “relatively short” and “clearly shows how equivocal [the victim] was in his identification of the defendant,” the court’s “time-consuming” rationale for excluding the evidence becomes questionable. “A trial court must be careful not to permit its proper concern with the expeditious conduct of the trial to lead to an improper acceleration of the proceedings.” (People v. Cunningham (2001) 25 Cal.4th 926, 998.)
The Attorney General argues on appeal that the statements made during the audiotape are inadmissible hearsay. However, the prosecutor did not assert this ground for exclusion below and the trial court did not mention the hearsay rule or rely upon it in excluding the evidence. We agree with defendant that the Attorney General cannot assert this ground on appeal.
Nevertheless, we find no deprivation of defendant’s constitutional right to present a defense. Defendant sought to prove that the victim’s photo lineup identification was suggestive and the result of bias, and to impeach his unequivocal in-court identification of defendant. The audiotaped interview has minimal probative value as to the suggestiveness or bias of the photo lineup. Material evidence on these issues are the photo lineup itself and the testimony of the defense identification expert. Our review of the audiotape and transcript reveal that little, if anything, was to be gained with respect to these issues.
The audiotape has some impeachment value with respect to the defendant’s in-court identification of defendant. The victim’s statements during the interview that he could identify defendant “only by the ponytail,” and that he was “just focused on the gun” at the time of the shooting, is evidence that tends to undermine his unequivocal in-court identification. The defendant, however, was not deprived of the effect of this evidence. The trial court expressly permitted defense counsel to use the transcript of the interview in questioning Kwan regarding the victim’s statements. Counsel was informed that he could “impeach with the peace officer and make it perfectly clear that this [interview] has been memorialized and these are the exact words.” Although the audiotape of the interview may have been more revealing than Kwan’s testimony regarding the interview, limiting the impeachment evidence to the latter method did not deprive defendant of his right to present his defense. (See People v. Lucas (1995) 12 Cal.4th 415, 464 [exclusion of testimony that defendant was mentally impaired by drug use at the time of the murder did not deprive the defendant of a defense because “other evidence was available to defendant to show that he was under the influence of drugs on the day of the murder”].) Moreover, the right to present a defense is, of course, the right to a meaningful opportunity to present a defense. (See Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636]; People v. Lucas, supra, at p. 456.) Although defense counsel was expressly permitted to introduce the victim’s interview statements through Kwan’s testimony, defense counsel did not thereafter call Kwan to question him on this subject. Although defense counsel declined the opportunity to question Kwan further, defendant was nevertheless provided with the opportunity.
When Kwan was cross-examined during the prosecution’s case, defense counsel elicited from Kwan that when Kwan asked the victim if he would “know the guy if [he] saw him again,” the victim said, “Probably. [¶] He had a ponytail in the back.” Defense counsel did not, however, ask the more pointed questions to elicit that the victim would be able to identify the shooter “only by the ponytail” and that he was “just focused on the gun.”
Because there was no deprivation of defendant’s constitutional right to present a defense, any error in excluding the evidence under Evidence Code section 352 is subject to the Watson harmless error standard. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791; People v. Mullens (2004) 119 Cal.App.4th 648, 659.) Through defense counsel’s cross-examination of the victim, he succeeded in introducing the victim’s interview statements that what he remembered about the shooter is that he had long hair and a ponytail, and that the victim was focused on the gun at the time of the shooting. (At trial, the victim clarified that he was focused on both the gun and the shooter.) Kwan agreed with defense counsel that when the victim was asked if he would know the shooter if he saw him again, the victim answered with a less-than-definite, “Probably. [¶] He had a ponytail in the back.” To the extent that additional statements were made on the audiotape that were not introduced through cross-examination, we find that it is unlikely that the strength of the victim’s in-court identification would have been substantially undermined by such statements. And despite D.S.’s dubious in-court recantation, his videotaped statements to Flores of defendant’s admissions provide strong evidence of defendant’s guilt. The testimony of defendant and the defense alibi witnesses were inconsistent and unpersuasive. Based upon our examination of the “‘entire cause, including the evidence,’” we conclude that it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the claimed error. (See Watson, supra (1956) 46 Cal.2d at p. 836.) Any error was therefore harmless.
People v. Watson (1956) 46 Cal.2d 818.
B. Failure to Disclose Evidence of Investigation of Leseberg
Defendant contends that the court erred in denying his motion for new trial based on the ground that the People failed to disclose evidence that Leseberg was the subject of a criminal investigation at the time of his testimony. Defendant’s claim is based upon Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady), and its progeny.
Our state Supreme Court recently summarized the applicable law in People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043 (Salazar): “In Brady, 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.’ [Citation.] The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused [citation], that the duty encompasses impeachment evidence as well as exculpatory evidence [citation], and that the duty extends even to evidence known only to police investigators and not to the prosecutor [citation]. Such evidence is material ‘“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”’ [Citation.] In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.] [¶] ‘[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called “Brady material”—although, 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. 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.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”’ [Citation.]”
According to defendant’s motion, shortly after Leseberg’s testimony in this case, he was arrested and charged with the following crimes: sexual penetration with a foreign object by force (§ 289, subd. (a)(1)), sexual penetration by threat of a public official (§ 289, subd. (g)), sexual battery with restraint (§ 243.4, subd. (c)), assault by a police officer (§ 149), inflicting great bodily injury or death upon an elder (§ 368, subd. (b)(1)), assault with intent to commit rape (§ 220), two counts of burglary (§ 459), two counts of intimidating a witness (§ 136.1, subd. (b)(1)), and a special allegation that the crimes were committed while free on bail (§ 12022.1). Defendant asserted that, based upon “what is in the public record and has appeared in the press[,] . . . it appears that the incidents occurred in the fall of 2005 and may have been under investigation when Deputy Leseberg testified against the defendant. The defense was not notified of an investigation. The defense certainly would have moved [to] impeach Deputy Leseberg with the pending allegations.” The failure to disclose such investigation, defendant concluded, violated his constitutional rights to due process, representation of counsel, freedom from cruel and unusual punishment, and confrontation. The motion was not supported by evidence. Following a hearing, the court denied the motion. We review the court’s ruling de novo. (Salazar, supra, 35 Cal.4th at p. 1042.)
To fill the evidentiary gap left open in his trial court motion, defendant requests that we take judicial notice of two “Case Reports” printed from the Riverside County Superior Court’s web site. These reports concern two criminal cases against Leseberg (Nos. SWF016322 & SWF016397) involving the charges described in defendant’s motion for new trial. The report regarding case No. SWF016322 indicates an “arrest date” of November 14, 2004—more than one year before the trial in this case. The “arrest date” for case No. SWF016397 is May 3, 2006—approximately three and one-half months after the verdicts in this case.
The People did not oppose the request for judicial notice. We grant the request.
Assuming for purposes of analysis that defendant can satisfy the first two elements of a Brady claim (that evidence of the charges against Leseberg is favorable to the defense and was suppressed by the state), we will conclude that defendant has failed to establish the third element, prejudice.
Leseberg testified, in essence, as follows: he was a school resource officer at a high school; he knew D.S. and was like a “big brother” to him; D.S. approached him and told him that he had some information about the shooting; he checked D.S. out of school and took him to the police station to meet with Flores and Kwan; along the way, the two made “small talk,” and he told D.S. to tell the truth and to “[j]ust be honest with them.”
In his appeal brief, defendant asserts that D.S. testified that Leseberg had picked D.S. up for being truant, handcuffed him, placed him in the back of a patrol car, threatened to report D.S. to his probation officer, and told D.S. to tell the investigating officers that defendant was the shooter. He argues that the evidence of the charges against Leseberg was material “because it indicated that [D.S.] was being truthful about being threaten[ed] by Leseberg and scared into implicating [defendant] in the shooting with a fabricated story, and would also have impeached Leseberg’s credibility.”
A significant flaw in defendant’s argument is that while D.S. did testify at trial that a police officer did these things, he did not identify Leseberg as that officer. Indeed, although he acknowledged knowing Leseberg, he expressly stated that he did not know the officer that allegedly coerced him into identifying defendant as the shooter. Thus, if D.S.’s trial testimony was truthful, someone threatened and coerced D.S. into implicating defendant in the shooting, but it was not Leseberg.
At most, therefore, the evidence of the charges or of any investigation against Leseberg (assuming it is admissible), would bear upon Leseberg’s credibility. Because he was not the officer that allegedly coerced D.S.’s statements to Flores, Leseberg’s involvement in the case was minimal. His testimony was both brief and relatively insignificant; he was the person who drove D.S. to the police station. Based upon the entire record, it is not reasonably probable that, if the undisclosed matter had been turned over to the defense and introduced at trial, the impact on Leseberg’s credibility might have changed the outcome of the trial. In the absence of prejudice, we find that there was no Brady violation.
C. Abstract of Judgment
Defendant contends that the court minutes and the abstract of judgment erroneously fail to reflect the court’s stay of defendant’s sentence on count 2. The People agree.
Defendant was sentenced to a life term on the attempted murder conviction (count 1), plus an enhancement of 25 years to life for intentionally discharging a firearm causing great bodily injury. On count 2—discharging a firearm from a motor vehicle—defendant was sentenced to five years. According to the transcript of the oral proceedings at sentencing, the trial court agreed with the prosecutor that the sentence on count 2 must be stayed pursuant to section 654. The court minutes and the abstract of judgment, however, do not reflect the stay of the sentence on count 2.
“Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. ‘The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms [citation] it cannot add to or modify the judgment which it purports to digest or summarize.’ [Citation.]” (People v. Mesa (1975) 14 Cal.3d 466, 471.) We will direct the court to prepare a corrected abstract of judgment.
IV. DISPOSITION
The judgment is affirmed. The trial court shall direct that an amended abstract of judgment be prepared to reflect that the conviction on count 2 is stayed pursuant to section 654. The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: Ramirez P.J., Gaut J.