Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCUK-CRCR-06- 72506
Kline, P.J.
Following a jury trial, defendant Hilary Cecil Young (defendant) was convicted of criminal threats and vandalism. On appeal, defendant contends that he is entitled to a new trial because the prosecution failed to disclose material evidence favorable to the defense in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), and Penal Code section 1054.1. We disagree, and hence affirm.
All further statutory references are to the Penal Code unless otherwise specified.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges Against Defendant
On November 30, 2006, defendant was charged by information with criminal threats (§ 422–count one) and felony vandalism (§ 594, subd. (b)(1)–count two). The charges arose out of threats defendant allegedly made to his then-wife Sherilyn Young (Ms. Young) and damage he allegedly caused to her home.
The trial court granted defendant’s unopposed motion to recuse the Mendocino County District Attorney’s office because Ms. Young was employed there. Deputy Attorney General Michael O’Reilly (the prosecutor) prosecuted the case.
B. Ms. Young’s Trial Testimony
We include here a summary of the underlying events as testified to by Ms. Young. In part II.A.2.c below, we discuss other evidence introduced at trial, including (1) evidence that corroborated Ms. Young’s testimony, and (2) evidence that defendant presented to try to impeach Ms. Young.
Ms. Young met defendant in 1986. While defendant was still in the process of divorcing his former wife, Judith Jones, defendant said he wanted to “pay her back or hurt her.” Ms. Young and defendant married in 1997.
Ms. Young and defendant lived in Redwood Valley in a house that Ms. Young owned as her separate property. In 2004, they began to argue frequently, and defendant called Ms. Young “awful names.” Defendant would grab Ms. Young’s arm and yell at her. On one occasion in 2005, defendant threw a sandstone dog at Ms. Young, but missed. At night, defendant would lie in bed and say, “ ‘You’re a whore, you’re a bitch, you’re killing me.’ ” Defendant owned several guns. Ms. Young feared for her safety and began sleeping in a separate bedroom with the door locked.
Ms. Young also testified about incidents of defendant’s violent behavior prior to 2004. On one occasion, defendant threw a shovel in Ms. Young’s direction. In 2002, defendant assaulted Ms. Young’s son, who was 17 at the time.
In July 2006, Ms. Young told defendant she intended to file for divorce. Defendant and Ms. Young agreed that Ms. Young would stay at her parents’ home for a few days and that defendant would move out of Ms. Young’s house while she was away.
Ms. Young returned to her house at around 1:45 p.m. on July 18, 2006, the date on which defendant was to have finished removing his belongings. Outside the house, she saw smashed clay pots, along with dirt and plants. She attempted to enter the house through two different doors but could not get her keys into the keyholes. There were deep gouges in the front door. Ms. Young entered the house through a pet door.
Ms. Young went to her bedroom. Clothes and other items were strewn all over the floor. On top of some clothes just inside the bedroom door was a dead cat. Ms. Young tried not to panic but felt very afraid. She knew that defendant hated cats, and she had once seen him kill a cat with his bare hands.
Ms. Young went to the bedroom of her 19-year-old daughter, Heather, where the stereo had been smashed and thrown onto the floor. The door to Heather’s room was partially off its hinges and had gouges in it.
Ms. Young quickly got into her car and left. From her car, she called defendant on his cell phone and told him, “ ‘I saw the cat.’ ” Defendant responded, “ ‘It makes a nice point of what can happen to you.’ ” Ms. Young told defendant she was going to change the locks and notify the police. Defendant said, “ ‘I’m going to kick down the door and I don’t give a fuck what the police do. I don’t give a damn what the police do.’ ” Ms. Young hung up. She felt “[f]ear. Lots of fear.” Concerned that she would forget defendant’s exact words, Ms. Young wrote them down in her calendar book while she was stopped at a stop sign right after the call—“ ‘Makes a nice point of what can happen to you.’ ”
Ms. Young reported the incident to the District Attorney’s office and then to the Mendocino County Sheriff’s office.
C. The Verdict And Sentencing
On April 4, 2007, the jury convicted defendant of criminal threats as charged in count one. As to count two, the jury found defendant guilty of vandalism but determined that the prosecution had not proved that the amount of damage was $400 or more. As a result, the conviction on count two was for misdemeanor vandalism (§ 594, subd. (b)(2)).
On June 22, 2007, the trial court denied defendant’s motion for a new trial. The court suspended imposition of sentence and placed defendant on probation for 36 months with a requirement that he serve 120 days in jail. Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Disclosure Under Brady
1. Background: Defendant’s Motion For A New Trial
On May 2, 2007, defendant filed a motion for a new trial. Defendant claimed that the prosecutor had obtained exculpatory information prior to trial but had failed to disclose it to the defense. In a supporting declaration, defendant’s longtime friend and business associate Joseph Skala stated that the prosecutor had contacted him shortly before the trial and asked about Skala’s contacts with Ms. Young. According to his declaration, Skala told the prosecutor that Ms. Young had telephoned Skala in late summer 2006 and said she had found a dead cat on her bed along with a note that said: “ ‘Be careful, this could happen to you.’ ” Skala stated that Ms. Young had not mentioned to Skala that she and defendant had spoken by telephone about the cat.
In opposition to defendant’s motion, the prosecutor filed a declaration stating that he had had a brief telephone conversation with Joseph Skala before trial but that Skala had not mentioned a note. The prosecutor stated: “Had [Skala] mentioned hearing about a note being left at the crime scene, that would have been significant and I would have followed up on it.”
In a declaration accompanying the prosecutor’s opposition papers, Ms. Young stated that there was no note and that she had never told anyone that there was. Ms. Young also stated that she had spoken by telephone with Joseph Skala’s wife, Kathleen Skala, in late July 2006, and had told Kathleen about the dead cat and about defendant’s threat over the telephone.
In response to the prosecutor’s and Ms. Young’s declarations, defendant filed a supplemental declaration from Joseph Skala and a declaration from Kathleen Skala. In his supplemental declaration, Joseph Skala stated that his “recollection of what was told to [him] about the cat and the note is crystal clear.” Skala also stated that he had “been searching [his] memory for additional details” of his conversation with Ms. Young and that he now recalled saying to Ms. Young “that she should be able to identify the handwriting if it was [defendant’s]. She did not respond.” Kathleen Skala stated in her declaration that she did not recall speaking with Ms. Young about the dead cat and that she was sure she would recall such a conversation if it had occurred. Kathleen stated that she heard about the cat from her husband.
On June 13, 2007, a few days before the hearing on the new trial motion, defendant filed declarations from Barbara and Ron Valente, who were friends of defendant and Ms. Young. Barbara Valente stated that, shortly after defendant and Ms. Young separated, Ms. Young told Barbara that she had found a dead cat in the laundry room on top of a pile of clothes. Barbara told her husband, Ron Valente, what Ms. Young had told her. In his declaration, Ron stated that he had received a call from the prosecutor and had told him about Ms. Young’s statements to Barbara. Ron stated: “I explained to [the prosecutor] that [defendant] is non-violent and good-natured. I told [the prosecutor] that I do not see [defendant] killing a cat and leaving it on a pile of clothes in the laundry room, like [Ms. Young] told [Barbara].”
Also on June 13, 2007, the parties filed additional declarations relating to the alleged note. Defendant filed a declaration stating that he had first heard about the possible existence of a note in a conversation with Joseph Skala after the trial.
For her part, Ms. Young filed a supplemental declaration on June 13, 2007, in which she reiterated that she had discussed the dead cat with Kathleen Skala. Ms. Young stated that when she told Kathleen about the dead cat and about defendant’s threat over the telephone, she also mentioned that she had “made a note in my calendar book about what [defendant] had said to me over the telephone because I wanted to stress to Kathy that I was not imagining what [defendant] had said to me.” Ms. Young suggested that her reference to having “made a note” in her calendar book might have led to Joseph Skala’s “confusion” as to whether there was a threatening “note” with the cat. Neither of the Skalas filed a further declaration responding to this specific point.
After hearing oral argument on June 15, 2007, the trial court took defendant’s motion under submission.
At a continued hearing one week later, as the trial court was about to announce its ruling on the motion, defendant’s counsel presented a transcript of a tape recording of a portion of the pretrial telephone conversation between Joseph Skala and the prosecutor. Defendant’s counsel stated in a declaration that Joseph Skala’s wife, Kathleen Skala, had made the recording without Joseph Skala’s or the prosecutor’s knowledge. Defendant submitted the transcript to establish that Joseph Skala had mentioned a note to the prosecutor.
Although the prosecutor did not object to the trial court’s consideration of the transcript, we note that it may have been inadmissible for two reasons. First, section 632 prohibits the “intentional” recording of telephone conversations without the consent of all participants; recordings made in violation of the statute are inadmissible. (§ 632, subds. (a), (d); see also 18 U.S.C. § 2511, subds. (1)(a), (2)(d).) On appeal, both defendant and the Attorney General state that the recording here was made “accidentally” or “inadvertently,” rather than intentionally. (§ 632, subd. (a).) However, the declaration that defendant’s trial counsel submitted to the trial court (the only record evidence on this point) states only that Kathleen Skala recorded the conversation without her husband’s knowledge; the declaration does not state whether she did so accidentally or intentionally. Accordingly, it is not clear whether the conversation was recorded in violation of section 632.
As noted above, prior to defendant’s production of the transcript, the prosecutor had filed a declaration stating that Skala had not mentioned a note. When defendant produced the transcript at the hearing, the prosecutor stated: “Your Honor, sounds like there was some mention of a note. I have no memory of that whatsoever. I’ll take [defendant’s trial counsel’s] word that this is an accurate transcription.”
In relevant part, the transcript reads as follows:
[J. Skala]: No, I didn’t know anything about the damage or her clothes or uh, I did hear about the cat and a phone call a letter and all this, but, uh, that’s all hearsay.
. . .
[Prosecutor]: And then you said a letter?
[J. Skala]: Uh, no, that there was a note or something on the, with the cat.
[Prosecutor]: As far as I know there was no note with the cat.
[J. Skala]: Oh.
[Prosecutor]: Um, what she told me was that when she left the house she called him and said, “I, I saw the cat,” and then he responded on the telephone “That makes a point of what can happen to you.” But I’m not aware of any notes, um, you know, concerning the cat.
[J. Skala]: Yeah he says he didn’t write any notes. And I, I forgot who said that there was a note, I thought maybe SHE said that uh, then later I heard there was a phone call said there was two things.
[Prosecutor]: Yes, right.
[J. Skala]: He, he says neither one. He didn’t do neither one.
After hearing further argument, the trial court denied the new trial motion. In explaining its decision, the trial court stated that the telephone transcript created further ambiguity about “what information [Skala] actually had and whether that information was actually acquired from [Ms.] Young.” The court stated that the transcript appeared to “negate” the statements Skala made in his declarations about the alleged note. The court also noted that, although Ms. Young’s credibility was a significant factor in the case, the prosecution had sought to corroborate her testimony with other evidence, and the defense had already sought unsuccessfully to attack her credibility with character evidence and prior inconsistent statements. The court stated that, although defendant and Skala had known each other for 35 years, were hunting partners and owned property together, “the information regarding the cat and the note apparently wasn’t communicated to the defense until approximately eight months after the fact.” Finally, the court noted that Ms. Young denied telling Skala about a note. The court concluded:
In addition to this ambiguity as to what information Joseph Skala received from Ms. Young, the transcript creates an ambiguity as to what information Skala conveyed to the prosecutor prior to trial. In his second posttrial declaration, Skala stated that he had told the prosecutor “everything I knew” and had “specifically repeated to [the prosecutor] what [Ms. Young] had told me about the dead cat and the note.” Skala emphasized that he was “absolutely certain” that he had told the prosecutor “about [Ms. Young’s] version of the dead cat and the note.” However, according to the transcript, Skala told the prosecutor he was not even certain as to who had told him about a note, and he did not repeat to the prosecutor any details of what he had allegedly heard from Ms. Young about the cat and the note.
Given the circumstances in this case, the lapse of time in presenting the information, the ambiguity that the court has just mentioned, the witness’[s] relationship to the defendant, and the denial of the complaining witness, the court finds as follows:
1) The court believes that if the defense would have used reasonable diligence, this information should have been disclosed in a timely fashion;
2) The Skala information is ambiguous and appears collateral and, in the court’s opinion, does not constitute a Brady violation;
3) The information provided by Mr. Skala, given the totality of the circumstances, in the court’s opinion, would probably not result in a different verdict if presented to a new jury.
2. Analysis
Defendant contends that he is entitled to a new trial under Brady because of the prosecutor’s failure to disclose the information he learned in his pretrial telephone conversations with Joseph Skala and Ron Valente. We disagree.
Under Brady, the prosecution must disclose material evidence that is favorable to the defendant; failure to do so violates due process. (United States v. Bagley (1985) 473 U.S. 667, 674 (Bagley); Brady, supra, 373 U.S. at p. 87.) “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 (Strickler); accord, People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) Prejudice results if undisclosed evidence is material to the issue of guilt and innocence. (Salazar, at p. 1043.)
We conduct an independent review of the trial court’s conclusions as to whether defendant has established the elements of a Brady claim. (Salazar, supra, 35 Cal.4th at p. 1042.) Findings of fact, though not binding, are entitled to great weight when supported by substantial evidence. (Salazar, at p. 1042; In re Pratt (1999) 69 Cal.App.4th 1294, 1314.)
a. Whether The Evidence Was Favorable To The Defense
The first element of a Brady claim is that the evidence in question was favorable to the defense. (Strickler, supra, 527 U.S. at pp. 281-282.) Ms. Young’s alleged statement to Joseph Skala about a note and her alleged statement to Barbara Valente about finding the dead cat in the laundry room differed from her trial testimony, in which she did not mention a note and testified that she found the cat in her bedroom. Defendant could have used these alleged prior inconsistent statements to try to impeach Ms. Young. Under Brady, evidence “favorable” to the defense includes impeachment evidence. (Strickler, at pp. 281-282; People v. Zambrano (2007) 41 Cal.4th 1082, 1132 (Zambrano), disapproved, in part, on other grounds by People v. Doolin (Jan. 5, 2009, No. S054489) 45 Cal.4th 390, ____ & fn. 22 [2009 WL 18142, *16 & fn. 22].) Accordingly, defendant has established the first element of a Brady claim.
Defendant also suggests that the evidence was “exculpatory” as well as impeaching. However, defendant does not argue that evidence suggesting that he threatened Ms. Young in a written note rather than over the telephone (or that he left a dead cat in her laundry room rather than in her bedroom) would be exculpatory. Instead, defendant’s apparent contention is that, if the jurors had decided that Ms. Young had made inconsistent statements about the incident to Joseph Skala and/or Barbara Valente, they might have disbelieved her testimony and might have believed instead the “exculpatory hypothesis” that Ms. Young had destroyed or tampered with evidence (such as by destroying the alleged note because the handwriting did not match defendant’s, or by moving the cat to a different room). Putting aside the question of how plausible this hypothesis is, defendant’s argument that Ms. Young’s alleged inconsistent statements support this possible “exculpatory” theory appears to be part of his argument that the alleged statements are impeaching. Only if the jurors disbelieved Ms. Young’s testimony about what she found at her house would they consider the possibility that she had destroyed a note or moved the cat. Because, as we conclude in part II.A.2.c below, the evidence at issue was not materially impeaching, we also conclude that it was not materially “exculpatory” on the theory advanced by defendant.
As the prosecutor noted in opposing defendant’s new trial motion, if Ms. Young had returned home to find a dead cat and a threatening note that appeared to have been written by an unknown intruder rather than by her husband, those circumstances would have been, if possible, even more frightening than receiving a threat from her husband. The prosecutor noted that the most logical action for Ms. Young to take in that situation would have been to turn over the note to law enforcement. Also, if Ms. Young had decided to conceal the note, it is not clear why she would later tell Joseph Skala about the note. Similarly, it would seem to be somewhat unusual for a person who found a dead cat in her laundry room to pick up the cat and move it to a different room based on some belief that doing so would make the evidence more incriminating.
b. Whether The Evidence Was “Suppressed”
“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. (People v. Morrison (2004) 34 Cal.4th 698, 715.)” (Salazar, supra, 35 Cal.4th at pp. 1048-1049; accord, Zambrano, supra, 41 Cal.4th at p. 1134.) Accordingly, if the evidence in question was in the defendant’s possession or was available to the defendant through the exercise of reasonable diligence, then the evidence was not “suppressed” within the meaning of Brady. (Salazar, at p. 1049.)
Here, after noting that Skala and defendant had known each other for 35 years, the trial court concluded that, if defendant had exercised reasonable diligence, he could have discovered “in a timely fashion” the information Skala provided to the prosecutor. On appeal, the Attorney General presents two arguments on this issue, contending that: (1) because both Skala and the Valentes were defendant’s friends, the defense could have obtained the evidence directly from them before trial through the exercise of reasonable diligence; and (2) in any event, the transcript of Skala’s telephone call with the prosecutor shows that defendant was actually aware before trial that there was a question as to whether he had written a note.
According to the transcript, Skala told the prosecutor, before trial, about statements defendant had previously made about a note: “Yeah he says he didn’t write any notes. And I, I forgot who said that there was a note, I thought maybe SHE said that uh, then later I heard there was a phone call said there was two things. [¶] . . . [¶] He, he says neither one. He didn’t do neither one.” (Italics added.) This evidence of a pretrial conversation between Skala and defendant about a note contradicts the statement defendant made in his June 13, 2007 declaration (which he filed before the transcript was disclosed) that he first heard about the possible existence of a note in a conversation with Skala after the trial.
Defendant responds to the Attorney General’s first argument by contending that he had no reason to believe that Skala or the Valentes had relevant evidence and that therefore his failure to contact them prior to trial does not show a lack of reasonable diligence. As to the Attorney General’s argument that defendant was actually aware of the alleged note, defendant contends that the Attorney General may not pursue, and this court may not address, that question because it is a new theory that the prosecution did not present to the trial court.
We need not address the parties’ arguments on these issues or determine whether the evidence was “suppressed” within the meaning of Brady, because we conclude that the evidence was not material.
c. Materiality
Evidence is material under Brady if there is a “reasonable probability” that its disclosure to the defense would have altered the trial result. (Zambrano, supra, 41 Cal.4th at p. 1132; In re Sassounian (1995) 9 Cal.4th 535, 543 & fn. 5 (Sassounian).) A “reasonable probability” is “ ‘a probability sufficient to “undermine[] confidence in the outcome” on the part of the reviewing court.’ ” (Sassounian, at p. 544, quoting Bagley, supra, 473 U.S. at p. 678.) Under this standard, it is insufficient for the defendant to show “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].” (Salazar, supra, 35 Cal.4th at p. 1043.) Instead, the defendant must demonstrate “ ‘that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” (Kyles v. Whitley (1995) 514 U.S. 419, 435 (Kyles); In re Brown (1998) 17 Cal.4th 873, 887 (Brown).) Finally, when there are multiple items of undisclosed evidence, “the tendency and force” of the evidence “is evaluated item by item, [but] its cumulative effect for purposes of materiality must be considered collectively.” (Brown, at p. 887; see also United States v. Agurs (1976) 427 U.S. 97, 112 (Agurs) [omission “must be evaluated in the context of the entire record”], abrogated, in part, on other grounds by Bagley, supra, 473 U.S. at pp. 681-682.)
In addressing materiality, defendant argues that he could have used Ms. Young’s alleged inconsistent statements to Joseph Skala and Barbara Valente to impeach Ms. Young. Defendant contends that this impeachment evidence was material because it might have led the jury to discount Ms. Young’s testimony and/or to conclude that she had tampered with evidence. Defendant contends that this would have significantly weakened the prosecution’s case because most of Ms. Young’s testimony was, according to defendant, uncorroborated. For the reasons set forth below, we conclude that defendant has not shown a reasonable probability that disclosure of the evidence would have altered the result of the trial.
i. Joseph Skala’s Statements
As the trial court recognized and as the Attorney General argues on appeal, Joseph Skala’s statements about a note were uncertain and contradictory and thus would not likely have had as much impeachment value as defendant claims. The transcript of Skala’s pretrial call with the prosecutor shows that Skala was very uncertain both as to whether there was a note and as to who had told him about an alleged note. Skala stated: “And I, I forget who said that there was a note, I thought maybe SHE said that uh, then later I heard there was a phone call said there was two things.”
As the trial court noted, Skala’s uncertainty in this pretrial telephone call contradicted or “negate[d]” some of the statements in Skala’s posttrial declarations. In those declarations, which were filed before Skala discovered the recording of his pretrial call with the prosecutor, Skala stated that he had a “crystal clear” recollection that Ms. Young had told him that there was a note. In his first declaration, Skala also recounted the text of the note. Finally, in his second declaration, Skala stated that, after “searching [his] memory for additional details,” he recalled saying to Ms. Young that “she should be able to identify the handwriting [on the note] if it was [defendant’s]. She did not respond.” However, Skala did not mention any of this information to the prosecutor prior to trial.
As discussed above, Ms. Young submitted declarations in the trial court suggesting that Skala’s recollection of a discussion of a “note” might have resulted from a miscommunication based on Ms. Young’s reference to having “made a note” in her calendar book.
Applying the materiality standards outlined above, we find that Skala’s equivocal pretrial statements to the prosecutor, taken alone, do not rise to the level of Brady materiality. (See Agurs, supra, 427 U.S. at p. 109, fn. 16 [Brady rule does not extend to “ ‘preliminary, challenged, or speculative information’ ”], quoting Giles v. Maryland (1967) 386 U.S. 66, 98 (Fortas, J., concurring); accord, U.S. v. Diaz (2nd Cir. 1990) 922 F.2d 998, 1006 (Diaz).) Defendant does not appear to contend otherwise.
The prosecutor also was not obligated to follow up on Skala’s uncertain statements by trying to discover additional information about the alleged note so that he could convey it to the defense. (See Zambrano, supra, 41 Cal.4th at p. 1163 [prosecutor was not obligated to obtain additional information from prosecution witness in order to disclose it to defense]; see also Diaz, supra, 922 F.2d at p. 1006 [no disclosure obligation where government “may have had suspicions, [but] did not have knowledge,” about prior criminal activity by government informant].)
However, the materiality inquiry includes consideration not only of the information the prosecution actually possessed but also of “the effect of nondisclosure on defense investigations and trial strategies.” (Zambrano, supra, 41 Cal.4th at pp. 1132-1133; accord, Bagley, supra, 473 U.S. at pp. 682-683; Brown, supra, 17 Cal.4th at p. 887.) Accordingly, in assessing materiality, we consider the possibility that disclosure of Skala’s initial vague statements about a note might have enabled defense counsel to investigate the issue and to present more detailed testimony from Skala. (See U.S. v. Kennedy (9th Cir. 1989) 890 F.2d 1056, 1059 (Kennedy) [where prosecutor received letter from expert, court considered materiality of both the letter itself and the trial testimony the expert might have provided if the prosecutor had disclosed the letter to the defense].) In this regard, defendant contends that Skala’s statements in his posttrial declarations, which he signed “when his recollection was refreshed,” were more clear than his pretrial statements to the prosecutor, and that his trial testimony also would have been clear.
However, in light of Skala’s varying recollections, it is difficult to determine exactly what his trial testimony would have been. (See Kennedy, supra, 890 F.2d at pp. 1060-1061 [where expert had stated divergent opinions, it was difficult to determine what his trial testimony would have been if he had been called as a witness; trial court did not err by finding that expert’s “expected testimony” did not support Brady claim].) Moreover, as noted above, Skala’s differing statements about a note might have undercut the force of his testimony and defendant’s ability to use it to try to impeach Ms. Young. (See id. at p. 1061, fn. 8 [expert’s varying statements likely would have confused jury].) Finally, for the reasons discussed in part II.A.2.c.iii below, we conclude that Skala’s statements, when considered in the context of the other evidence introduced at trial, would not likely have altered the verdict.
Defendant contends that the prosecutor “conceded” that Skala’s statements about a note were material. Defendant notes that the prosecutor, in his declaration in opposition to defendant’s new trial motion, stated that if Skala had mentioned a note, “that would have been significant and I would have followed up on it.” However, contrary to defendant’s argument, the prosecutor’s belief that the possible existence of a note would have been significant enough to follow up on does not establish that the information was material under Brady. As defendant recognizes, the materiality determination requires an assessment of the undisclosed evidence under the totality of the circumstances and in light of the other evidence introduced at trial. (Sassounian, supra, 9 Cal.4th at p. 544; Agurs, supra, 427 U.S. at p. 112.) Moreover, even if the prosecutor had stated that he believed a reference by Skala to a note was material under Brady (rather than simply saying that it would have been significant enough to follow up on), a reviewing court need not defer to a prosecutor’s opinion that information is or is not material under Brady. (See Salazar, supra, 35 Cal.4th at p. 1052, fn. 8.)
ii. Barbara Valente’s Statements
Defendant argues that if Ms. Valente had testified that Ms. Young had said she found the dead cat in the laundry room (rather than in the bedroom), it would have bolstered the conclusion that Ms. Young had fabricated portions of her testimony. We conclude that Ms. Valente’s potential testimony on this point would not likely have been substantially impeaching. As the Attorney General notes, and as we discuss presently, Ms. Young’s testimony that she found the cat in the bedroom was corroborated by the testimony of District Attorney’s office investigators Tim Kiely and Kevin DeVries, who came to Ms. Young’s house to remove the cat on July 19, 2006, the day after Ms. Young found it. Kiely and DeVries (who were called as defense witnesses) testified that they found the cat in the bedroom and photographed it there.
Defendant argues that, because the investigators did not go to Ms. Young’s house until the day after she found the cat, Ms. Young had the opportunity to “rearrange” the scene by moving the cat from the laundry room to the bedroom. However, the mere possibility that Ms. Young could have moved the cat does not negate the corroborative evidence provided by the investigators’ testimony and photographs, and we consider this corroborative evidence in assessing the likelihood that Ms. Valente’s testimony would have altered the verdict.
Defendant also argues that Barbara Valente’s statement about the laundry room was material because it would have undermined a portion of the prosecutor’s closing argument, in which the prosecutor suggested that it was significant that defendant left the cat in the bedroom. In his closing argument, the prosecutor discussed the evidence establishing each element of a criminal threat under section 422, including the requirement that defendant willfully threatened to kill or cause great bodily injury to Ms. Young. As to that element, the prosecutor stressed that defendant’s leaving a dead cat conveyed a clear threat to Ms. Young, particularly since she had previously seen him kill a cat with his bare hands. The prosecutor also argued that the jury should consider the “circumstances” of the crime and suggested that defendant had left the cat in the bedroom to make Ms. Young feel especially vulnerable. Finally, the prosecutor noted that defendant’s statements to Ms. Young over the telephone confirmed that he had left the cat to threaten her.
The prosecutor stated: “You also take into consideration the circumstances. Where did he leave [the cat]? Not in the driveway, not on the street, not in the living room, not in the backyard, but in her bedroom. Remember, her bedroom was her sanctuary. She went in there, she locked the door. That’s where she stayed because she was so frightened of him. He wanted her to see it in her sanctuary where she was most vulnerable, demonstrating he had access to her, that she would not be safe anywhere.”
Defendant compares this case to Singh v. Prunty (9th Cir. 1998) 142 F.3d 1157, 1162-1163 (Singh), in which the Ninth Circuit Court of Appeals found that undisclosed evidence was material under Brady because, among other reasons, it undermined a portion of the prosecutor’s closing argument. The facts of this case differ significantly from those in Singh. In Singh, the prosecution failed to disclose uncontradicted evidence that a key prosecution witness had received substantial benefits, including favorable treatment in other criminal cases, in exchange for testifying against the defendant. (Singh, supra, 142 F.3d at p. 1162.) In concluding that the undisclosed evidence was material under Brady, the Ninth Circuit focused primarily on the fact that the evidence called into question the witness’s motive for testifying and substantially impeached his testimony. (Id. at pp. 1162-1163.) The court also noted that evidence of the benefits given to the witness would have undermined the prosecutor’s closing argument, in which the prosecutor had asserted categorically that no witness in the case other than the defendant had any motive to lie. (Id. at p. 1163.)
Here, in contrast, Barbara Valente’s statement about the laundry room would not likely have had a significant impact on the force of the prosecutor’s closing argument or on the case as a whole. The prosecutor’s argument about the location of the cat was only one portion of his larger point that there was ample evidence supporting a finding that defendant threatened Ms. Young with death or great bodily injury. In light of the other evidence the prosecutor outlined in support of that finding, including the dead cat itself, defendant’s prior killing of a cat, and defendant’s threatening statements to Ms. Young, we conclude that it is not reasonably probable that the discrepancy between Ms. Young’s testimony and Ms. Valente’s potential testimony as to the location of the cat would have altered the jury’s verdict.
iii. The Cumulative Impact of the Statements
As defendant notes, in determining materiality, we must consider the cumulative impact of Joseph Skala’s and Barbara Valente’s statements (Brown, supra, 17 Cal.4th at p. 887), and we must consider them “under the totality of the relevant circumstances and not in isolation or in the abstract.” (Sassounian, supra, 9 Cal.4th at p. 544; accord, Agurs, supra, 427 U.S. at p. 112.) Defendant argues that because both Joseph Skala and Barbara Valente would have testified about inconsistent statements allegedly made by Ms. Young, the cumulative impact of these two statements would have left the jury with significant doubts about Ms. Young’s credibility. However, for the reasons discussed earlier, we conclude that neither of the statements would likely have had substantial impeachment value. Accordingly, we conclude that it is not reasonably probable that the potential testimony of Joseph Skala and Barbara Valente, taken together, would have altered the verdict.
We find further support for this conclusion when we consider the two statements in the context of the other evidence introduced at trial (see Sassounian, supra, 9 Cal.4th at p. 544; Agurs, supra, 427 U.S. at p. 112), including (1) the evidence the prosecution presented at trial to corroborate Ms. Young’s testimony, and (2) the evidence defendant presented to try to impeach Ms. Young’s testimony. First, impeachment evidence generally is not material under Brady when the testimony of the witness is “corroborated by other testimony.” (E.g., U.S. v. Petrillo (2nd Cir. 1987) 821 F.2d 85, 89 (Petrillo).) Contrary to defendant’s argument, many aspects of Ms. Young’s testimony are corroborated by other evidence in the record. For example, other testimony and evidence corroborated Ms. Young’s testimony as to what she found at her house. On the day after Ms. Young found the dead cat, District Attorney’s office investigators Kiely and DeVries went to Ms. Young’s home. When they arrived, Ms. Young pointed out a broken clay pot outside the house. DeVries also testified that Ms. Young tried to open one of the doors with a key but that it did not work because “the door locks were jammed or something.” Ms. Young then took Kiely and DeVries to the bedroom, which “looked like it was ransacked.” Both Kiely and DeVries saw the dead cat in the bedroom. DeVries took photographs of the dead cat, the ransacked bedroom, and the broken clay pot. The photographs were admitted into evidence at trial.
The record also includes evidence that corroborates other portions of Ms. Young’s testimony. Deputy Sheriff Mark Potts interviewed Ms. Young at around 4:00 p.m. on July 18, 2006, a few hours after she found the dead cat. Potts testified that Ms. Young “seemed visibly shaken and—really visibly shaken to the point that she—I totally believe that she was in fear for her life.” Potts helped Ms. Young obtain an emergency protective order against defendant. Potts’s testimony corroborated Ms. Young’s testimony that she was frightened by defendant’s threats.
Telephone records also established that, consistent with her testimony, Ms. Young placed a call to defendant on the afternoon of July 18, 2006.
While acknowledging some of this evidence, defendant contends that there was no corroborating evidence that linked him to the charged crimes. However, Jose Rico, a defense witness and an employee of defendant’s business, testified that he and defendant drove to Ms. Young’s house on July 18, 2006, to move some furniture and an exercise machine. According to Rico, defendant tried unsuccessfully to open the back door with his keys and then walked around the house. Defendant tripped over a planter, became angry and broke the planter. Accordingly, even under the version of events presented by the defense at trial, defendant was present at the Redwood Valley house on July 18, and committed at least a portion of the vandalism later observed by DeVries.
Rico also provided testimony that defendant apparently believed would be helpful to him, such as offering explanations for defendant’s whereabouts on July 18, and for the cell phone call from Ms. Young to defendant on that day. Rico testified that defendant received a call on his cell phone while defendant and Rico were driving to the Redwood Valley house, but was only on the phone briefly due to bad reception. According to Rico, defendant said “I cannot hear you, what are you saying?”, hung up, and told Rico the call was from Ms. Young. The jury evidently credited Ms. Young’s testimony about her call with defendant.
This corroborative evidence confirms our conclusion above that it is not reasonably probable that Skala’s and Valente’s statements would have altered the result of the trial.
Defendant is correct that no other witnesses corroborated Ms. Young’s testimony about the threats defendant made in their telephone call. Accordingly, this is not a case in which we can conclude that defendant would have been convicted of making a criminal threat even if the jury had decided to disregard all of Ms. Young’s testimony. (See, e.g., Sassounian, supra, 9 Cal.4th at pp. 548-549 [finding impeachment evidence immaterial where overwhelming evidence would have led to conviction even “in the absence of” the impeached witness’s testimony].) However, as outlined above, other testimony and evidence do corroborate many portions of Ms. Young’s testimony and link defendant to the vandalism at Ms. Young’s house. This corroboration, in combination with the other factors we discuss in the text, persuades us that Skala’s and Valente’s statements were not material.
Second, undisclosed impeachment evidence is not material under Brady if it would not have added significantly to the cumulative impact of other impeachment evidence already presented. (People v. Dickey (2005) 35 Cal.4th 884, 907-909 (Dickey); Petrillo, supra, 821 F.2d at pp. 89-90.) For example, in Dickey, the defendant claimed that an effort by one of two key prosecution witnesses to obtain leniency in a separate prosecution was material impeachment evidence under Brady. (Dickey, at pp. 907-908.) The Supreme Court ruled that, although the evidence was impeaching, it was not material because “it would have added little to the cumulative impact of the other impeachment evidence.” (Id. at p. 908.) The jury already knew that the witness disliked the defendant, wanted a reward associated with turning defendant in to the authorities, had made inconsistent statements about whether he was motivated by the reward, and was a drug user. (Ibid.) In light of this other impeaching evidence, the court concluded that it was not reasonably probable that the new impeachment evidence would have “fatally undermined” the jury’s confidence in the witness’s testimony. (Id. at pp. 908-909.) Similarly, in Petrillo, where undisclosed evidence showed that the principal prosecution witness had made false statements about his involvement in the criminal enterprise at issue, the Second Circuit Court of Appeals held that the evidence was not material because ample evidence had already been introduced at trial showing the witness’s “propensity and motive to lie” about his involvement. (Petrillo, supra, 821 F.2d at pp. 86, 89-90.)
Here, Skala’s and Valente’s statements would not have added significantly to the evidence and arguments that defendant already offered to try to impeach Ms. Young. In ruling on defendant’s new trial motion, the trial court noted that the defense had attempted to impeach Ms. Young at trial with inconsistent statements and character evidence. For example, defendant pointed out that, when Ms. Young spoke to Deputy Potts on the day of the incident and told him about the dead cat and defendant’s threats, she apparently did not report all of the property damage she testified about at trial, such as the gouges in her front door and the damage to her daughter’s stereo. Defendant also noted that Ms. Young apparently did not show all of the property damage to District Attorney’s office investigators Kiely and DeVries when they came to her home the following day. Defendant noted that Ms. Young had testified to finding approximately seven broken pots while DeVries’s best recollection was that he had seen one broken pot. In closing argument, defendant’s counsel argued that these omissions showed that Ms. Young had lied about the extent of the damage.
In addition to these omissions, defendant argued that Ms. Young had told Deputy Potts “outright lies.” Potts testified that Ms. Young had told him that defendant had killed the cat, and he included that information in his application for an emergency protective order. Potts also testified that Ms. Young had told him that she had already filed for divorce, which Potts believed to be important information. Ms. Young testified on cross-examination that she could not recall making either of those statements to Potts, but stated that she did not know who had killed the cat and that she had not yet filed for divorce when she spoke to Potts in July 2006.
Defense counsel also highlighted conflicts between Ms. Young’s testimony and the testimony of other witnesses. For example, Joan Andregg, a bookkeeper at defendant’s business, testified that Ms. Young telephoned defendant’s business on the morning of July 18. Andregg testified that, in that call, Ms. Young said that she and defendant were getting divorced, that she was removing defendant from her medical insurance plan with Mendocino County, and that Ms. Andregg should add defendant to the medical plan offered by his business. Ms. Young, however, denied calling defendant’s business on the morning of July 18. Defendant also noted the conflict between Ms. Young’s testimony about her telephone call with defendant and Rico’s testimony that defendant received a call from Ms. Young but could not hear due to bad reception.
Ms. Young testified that she did call defendant’s business on the afternoon of July 18, after finding the dead cat, and spoke to someone who told her defendant was not in; Ms. Young then called defendant’s cell phone and spoke to him. Ms. Andregg testified that she did not receive a call from Ms. Young in the afternoon.
In closing argument, defendant’s trial counsel emphasized these alleged inconsistencies in Ms. Young’s testimony and argued that they provided a basis for the jury to disregard all of her testimony. Defense counsel argued: “[I]f she lied about the pots, if she lied about the phone call to the office, if she lied about the damage to the doors, then what else did she lie about? I mean, how do you know at that point, you know, when that lady told the truth and when she didn’t? And you don’t.”
In addition to pointing out Ms. Young’s alleged inconsistent statements, defense counsel argued that the pending divorce gave Ms. Young a motive to lie to implicate defendant. Defense counsel argued that Ms. Young’s alleged call to defendant’s business on the morning of July 18 showed that Ms. Young was already “on the war path” early in the day. Defense counsel asserted that, between the time Ms. Young made the alleged call in the morning and the time she reported the crime in the afternoon, she had the “opportunity to do things and . . . may have done things” at the house. In connection with this point, defense counsel noted Rico’s testimony that, when he and defendant arrived at the house in the afternoon, the locks did not work. Finally, defendant argued that, because of her employment at the District Attorney’s office, Ms. Young had the ability to manipulate the investigation and prosecution of the case.
During cross-examination, defense counsel also questioned Ms. Young about whether she had taken money from defendant without his consent and about whether she had been unfaithful to him.
In light of the evidence and arguments defendant presented about Ms. Young’s alleged inconsistent statements, motive to lie, and opportunity to fabricate evidence, we conclude that it is not reasonably probable that the addition of Joseph Skala’s and Barbara Valente’s testimony about Ms. Young’s alleged inconsistent statements to them would have “fatally undermined” the jury’s confidence in Ms. Young’s testimony. (See Dickey, supra, 35 Cal.4th at pp. 908-909.)
iv. Defendant’s Other Arguments
Defendant’s remaining arguments are not persuasive. He faults the trial court for considering Ms. Young’s denial of the existence of a note as one factor in ruling on the new trial motion. Defendant argues that any conflict between Ms. Young’s testimony and the potential testimony of Joseph Skala and/or Barbara Valente raises a credibility question that must be resolved by the jury, not the trial court. In accordance with the applicable standard of review, we have conducted our own independent review of the trial court’s conclusions as to materiality and the other elements of defendant’s Brady claim (Salazar, supra, 35 Cal.4th at p. 1042), and we need not determine whether all of the reasons the trial court stated for its ruling were correct. In any event, as noted previously, the trial court cited numerous other factors in support of its decision.
Defendant also suggests that “negative character evidence” that the prosecution “was able to shoe horn into the record” may have led the jury to believe Ms. Young rather than the witnesses called by the defense. Defendant argues that introduction of Joseph Skala’s and Barbara Valente’s statements would have changed this situation by “setting up a direct contest of credibility between the complainant and two independent witnesses.”
This argument is not persuasive. As an initial matter, defendant does not challenge on appeal the trial court’s evidentiary rulings, and we will not assume that any evidence was improperly admitted. Moreover, defendant does not explain why evidence of his own prior acts might have caused the jury to disbelieve the testimony of the witnesses he called, nor does he articulate why the jury would have viewed Joseph Skala and Barbara Valente, both of whom were defendant’s friends, as more “independent” than the defense witnesses who did testify. Finally, we note that, contrary to defendant’s suggestion, the “negative character evidence” admitted against him did not cause the jury to accept blindly all of Ms. Young’s testimony. For example, Ms. Young testified as to her efforts to compute the amount of the property damage at her house, and her estimates totaled well over $400. However, the jury found that the allegation that the damage was more than $400 had not been proven.
For the foregoing reasons, we conclude that defendant has not shown that Joseph Skala’s and Barbara Valente’s statements “ ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” (Kyles, supra, 514 U.S. at pp. 434-435; Brown, supra, 17 Cal.4th at p. 887.) Accordingly, we find that the statements were not material under Brady.
B. Disclosure Under Section 1054.1
Defendant contends that the prosecutor violated section 1054.1 by failing to disclose the information he received from Joseph Skala and Ron Valente. We disagree.
Section 1054.1, a provision of California’s reciprocal discovery statute, requires the prosecution to disclose to the defense “[a]ny exculpatory evidence” in his possession. (§ 1054.1, subd. (e).) Exculpatory evidence for purposes of the statute includes significant impeachment evidence. (See Zambrano, supra, 41 Cal.4th at p. 1164.) Absent good cause, evidence covered by section 1054.1 must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.) As in the case of a Brady claim, a prosecutor’s failure to disclose evidence does not violate the discovery statutes if the defendant possessed the evidence in question or could have obtained it through the exercise of reasonable diligence. (Zambrano, at pp. 1134-1135 [noting there is no Brady violation if defendant could have obtained the evidence through the exercise of reasonable diligence, and stating that “we see no reason to assume the reciprocal discovery statute imposed greater burdens on the prosecutor”].)
Although the Brady materiality standard does not apply to violations of the reciprocal discovery statute, such violations are subject on appeal to the harmless error standard specified in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.) Accordingly, a violation of the statute only provides a basis for reversal if “it is reasonably probable that a result more favorable to the [defendant] would have been reached” if the evidence had been disclosed prior to trial. (Watson, at p. 836; Zambrano, at p. 1135, fn. 13.)
Here, defendant is not entitled to a new trial on the basis of an alleged violation of the discovery statute. For the reasons discussed above, we conclude that it is not reasonably probable that disclosure to defendant of the Skala and Valente statements would have changed the result of the trial. Accordingly, even if we assume that defendant was not aware of the Skala and Valente information and could not have discovered it through the exercise of reasonable diligence, the prosecutor’s failure to disclose the information was harmless error. (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)
III. DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
Second, apart from the section 632 issue, it does not appear that the transcript was properly authenticated. Defendant’s trial counsel stated in his declaration that, in his opinion, the transcript was accurate and fairly recited the content of the conversation. However, defendant did not provide any authentication of the underlying tape recording. A transcript of an unauthenticated tape recording is irrelevant and inadmissible. (Evid. Code, § 1401, subd. (b); O’Laskey v. Sortino (1990) 224 Cal.App.3d 241, 249-250, disapproved on other grounds in Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768, 774-776 & fn. 4.) However, because the prosecutor did not object to admission of the transcript on either of these grounds, we will consider it on this appeal.