Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct.No. RIF108604, Douglas E. Weathers, Judge.
Ellen M. Matsumoto, 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, Lilia E. Garcia, Supervising Deputy Attorney General, and Raquel M. Gonzalez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Mathew Cross was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 1), possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) (count 2), and possession of methamphetamine while armed (Health & Saf. Code, § 11370.1) (count 3).
All further statutory references will be to the Penal Code unless otherwise indicated.
A jury acquitted defendant on the first charge but convicted him on the remaining two charges. After acknowledging that the verdicts were inconsistent, the trial court accepted them after trial counsel agreed that the inconsistency would have no impact on sentencing. Two prior conviction allegations were found to be true, making this a third-strike case.
Following the trial, defendant’s motion for new trial was denied. A motion to dismiss prior strike allegations was also denied. Defendant was sentenced to an indeterminate term of 25 years to life on counts 2 and 3 under section 667, subdivision (e)(1), with the sentences to run concurrently. The sentences were to run consecutively to the sentence in another case, case No. RIF108334.
In case No. RIF108334, defendant was convicted of carjacking (Pen. Code, § 215, subd. (a)) and vehicle theft with a prior vehicle-theft conviction. (Pen.Code, § 665, subd. (a) & Veh. Code, § 10851.) Defendant was sentenced to a term of 83 years to life in prison. On July 20, 2007, this court affirmed those convictions in case No. E040378.
On appeal, defendant argues that the trial court abused its discretion in permitting the prosecution to present certain rebuttal evidence. The rebuttal evidence consisted of the results of a blood test which had allegedly not been provided to the defense, despite defense counsel’s discovery requests. The blood test results were positive for amphetamines.
Defendant also contends that the trial court failed to properly exercise its sentencing discretion when it decided to run his current sentences consecutively to the sentence in the other case.
I
FACTS
Officer Smith of the Riverside Police Department testified that he was on routine patrol with Officer Zagorin on January 3, 2003. At 12:20 a.m. the officers stopped a vehicle driven by defendant for having expired registration tags on the rear license plate. Officer Smith went to the passenger side of the vehicle. He noticed that defendant was sweating, nervous, talking rapidly, and moving around inside the vehicle. Defendant told Officer Zagorin that he did not have a driver’s license with him. When Officer Zagorin asked defendant to get out of the car, defendant announced that he had a gun. Defendant was then removed from the vehicle, and a loaded gun was recovered from the area next to the driver’s seat.
Defendant was searched, and a clear plastic bindle containing a white crystallized substance was found in his front pocket. Upon field testing, the bindle was found to contain methamphetamine. Officer Smith placed the drugs in an envelope for testing at the Department of Justice laboratory. He also field tested defendant and formed the opinion that defendant was under the influence of a narcotic. Defendant was taken to the police station, and a nurse took a blood sample. Officer Smith testified that he submitted the sample for testing, but he did not have the results and did not know what the results were.
Defendant testified. He admitted possession of the gun and the methamphetamine and attempted to present the elements of a necessity defense. He claimed that he was not under the influence of methamphetamine when arrested and had not used methamphetamine the day before he was arrested.
Defendant testified that he got the gun and the methamphetamine at the house of Amber Cook, a friend of his wife. His wife told him Cook was upset and so defendant went to Cook’s home to make a man named Art Hernandez leave the house. The gun and the methamphetamine belonged to Hernandez. Cook gave them to defendant to get them out of the house, and defendant then took Hernandez to another home. He was stopped by the officers while returning from that errand.
After defendant testified that he had not used methamphetamine, the defense filed a motion for sanctions alleging that, after defendant’s testimony, defense counsel was given the drug screening report of the analysis of defendant’s blood taken on the day of his arrest. The report was positive for amphetamines. Defense counsel then spoke with the toxicologist and was told that a quantitative analysis of the sample was being prepared.
Defense counsel asserted that the report had not previously been given to the defense, although discovery requests had been made and the case had been pending for over three years. Defense counsel argued that he would not have allowed defendant to take the stand and deny methamphetamine use if he had known there was proof defendant had been under the influence. He concluded: “This is the very definition of unfair surprise and trial by ambush — exactly the evil that was sought to be avoided by the reciprocal discovery act. [Citation.]” Accordingly, defense counsel requested that the evidence be excluded or that a mistrial be declared.
When the motion was heard, the prosecutor argued that the evidence was not relevant because defendant was not charged with being under the influence of methamphetamine. The prosecutor did not plan on using the result in her case-in-chief and did not do so. However, the prosecutor felt the evidence became relevant when defendant testified that he did not use methamphetamine. She therefore planned to use the test results as rebuttal evidence.
Defense counsel responded that the test results were relevant evidence because “[y]ou have to possess methamphetamine before you can be under the influence of it.”
However, the court ruled: “This evidence was not relevant, nor necessary to the charges that Defendant is defending here in this court. The People had no intent to use these test results, as evidenced by the fact that no confirmatory testing was done and the fact that this evidence was not presented or offered to be presented to the jury during the course of the People’s case[-]in[-]chief. [¶] This is clearly proper rebuttal evidence. The discovery rules are not designed nor intended to allow a defendant to take the stand and testify untruthfully and then claim foul when evidence that the defendant knows exists is then brought forward for rebuttal purposes.”
Direct examination of defendant resumed. Defendant then attributed his physical symptoms to being dragged out of his car and testified he had used methamphetamine around Christmas, about a week before his arrest.
After defendant finished his testimony, the toxicologist testified that defendant had methamphetamine and amphetamines in his blood sample. He also testified that it was unlikely that the methamphetamine had been ingested four or five days before the test.
The issue was also discussed when defendant filed a motion for a new trial. Defendant argued that he was entitled to rely upon the discovery he had been given, and that discovery did not include the test results. The prosecution emphasized that defendant was not charged with being under the influence of methamphetamine, that the evidence was not exculpatory, and that it was not relevant to the prosecution’s case.
The trial court found that the evidence of guilt was overwhelming, and that the presence or absence of the test results were not a significant factor in the jury’s determination. The trial court concluded that the prosecution had no intention to enter the test results into evidence before the defendant testified. It therefore found that there was no discovery obligation under section 1054.1, subdivision (f). The motion for a new trial was denied.
Section 1054.1, subdivision (f) requires disclosure of test results “which the prosecutor intends to offer in evidence at the trial.”
II
DISCUSSION
A. Admission of the Blood Test Results
Defendant argues that “[t]he trial court abused its discretion in allowing the prosecution to sandbag the defense with rebuttal evidence that should have been part of the prosecution’s case-in-chief . . . .” Secondly, he argues that the trial court abused its discretion in failing to exclude the evidence as a discovery sanction.
Defendant’s first argument relies upon People v. Carter (1957) 48 Cal.2d 737 (Carter). Defendant contends that the evidence of the results of his blood test should have been introduced in the prosecution’s case-in-chief. When they were not, “[defendant] justifiably relied on the prosecution’s implicit representations that there was no blood result . . . .” When evidence of the blood test results was introduced on rebuttal, defendant argues that he was “sandbag[ed]” by the evidence, in violation of his due process rights.
In Carter, our Supreme Court said: “Section 1093, subdivision [(d)], of the Penal Code provides that after the defendant has offered his evidence, the prosecution may then offer ‘rebutting testimony only, unless the court, for good reason, in furtherance of justice . . .’ permits it to offer evidence upon its original case. In a sense all evidence that tends to establish the defendant’s guilt over his protestations of innocence rebuts the defendant’s case, but it is not all rebuttal evidence within the purpose of section 1093, subdivision [(d)]. The purpose of the restriction in that section is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.] A defendant’s reiterated denial of guilt and the principal facts that purportedly establish it does not justify the prosecution’s introduction of new evidence to establish that which defendant would clearly have denied from the start.” (Carter, supra, 48 Cal.2d at pp. 753-754.)
Defendant also relies on two federal cases, Machin v. Wainwright (11th Cir. 1985) 758 F.2d 1431 and Lindsey v. Smith (11th Cir. 1987) 820 F.2d 1137 (Lindsey). In Machin, the court considered a surprise statement made on rebuttal and stated generally that “the admission of prejudicial evidence may support habeas relief if the evidence ‘is material in the sense of a crucial, critical, highly significant factor.’ [Citations.]” (Machin, at p. 1434.) However, the court concluded: “[W]e do not believe that the ‘surprise’ disclosure rendered [the defendant’s] trial fundamentally unfair in terms of the constitutional guarantee of due process.” (Ibid.)
In Lindsay, the court cited its general holding in Machin and then stated: “For example, a trial could be rendered fundamentally unfair if a defendant justifiably relies on a prosecutor’s assurances that certain inculpatory evidence does not exist and, as a consequence, is unable to effectively counter that evidence upon its subsequent introduction at trial. [Citations.]” (Lindsey, supra, 829 F.2d at p. 1151, fn. omitted.) However, the court held that the defendant had “failed to allege facts which, if true, would warrant habeas relief, and thus is not entitled to an evidentiary hearing on this claim.” (Id. at p. 1152.)
Section 1054.1 defines the scope of the prosecution’s duty to provide pretrial disclosure of information to the defense. The issues here involve the prosecutor’s duty to disclose relevant evidence (§ 1054.1, subd. (c)), exculpatory evidence (§ 1054.1, subd. (e)), and evidence the prosecutor intends to use at trial (§ 1054.1, subd. (f)).
We agree with the trial court that disclosure was not required under any of these subdivisions.
The prosecution must disclose, under Penal Code section 1054.1, subdivision (c), “[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” “‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
The blood test results which showed that defendant was under the influence of methamphetamine at the time of his arrest were not a disputed fact because defendant was not charged with being under the influence of drugs. Instead, he was charged with possession of methamphetamine, possession while armed, and possession of a firearm by a convicted felon. Although Officer Smith was thoroughly questioned about defendant’s physical condition at the time of arrest, the blood test results were not introduced in support of the officer’s conclusion that defendant was under the influence of drugs. The prosecutor apparently did not introduce the blood test results because she was not attempting to prove that defendant was under the influence of drugs.
We reject defendant’s assertion that the prosecutor’s failure to introduce such evidence was an “implicit representation” by the prosecution that no such evidence existed. The prosecutor was under no obligation to introduce all the evidence in her file. (Moore v. Illinois (1972) 408 U.S. 786, 795 [92 S.Ct. 2562, 33 L.Ed.2d 706].)
Defendant relies on People v. Morales (2001) 25 Cal.4th 34, in which our Supreme Court found, “[E]vidence of having introduced a controlled substance into one’s body may be evidence of having possessed it — in many cases, ‘one who ingests a drug must have possessed it at least temporarily.’ [Citation.]” (Id. at p. 44.) The court also said, “Certainly, evidence of being identifiably under the influence of a specific drug or other evidence of having introduced it into one’s body tends to prove having knowingly, and hence unlawfully, possessed it.” (Ibid.) But the court also noted that “intoxication does not always prove possession, past or present.” (Id. at p. 45.)
The trial court cited People v. Palaschak (1995) 9 Cal.4th 1236. In that case, the court considered “whether a person who possesses illegal drugs prior to ingesting them may be convicted of the offense of possessing those drugs.” (Id. at p. 1237.) The court held that a conviction was proper because the statutes did not require that defendant be in possession of the drugs when arrested. (Ibid.)
Thus, even though evidence of drug intoxication is relevant to a possession charge under some circumstances, it was not relevant here because defendant admitted possessing the methamphetamine and asserted a necessity defense.
Section 1054.1, subdivision (e) is not applicable because the blood test results were not exculpatory evidence. Since the test results showed that defendant was guilty of a crime, they were inculpatory evidence. Although, as Lindsay states, a trial could become constitutionally unfair if defendant justifiably relied on a prosecutor’s assurances that certain inculpatory evidence does not exist, there were no such assurances here, and no showing of justifiable reliance. (Lindsey, supra, 829 F.2d at p. 1151.)
Section 1054.1, subdivision (f) provides that the prosecution must disclose “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” This subdivision is not applicable because the prosecutor stated that she did not intend to use the blood test result as evidence at trial. Her assertion is supported by the fact that she rested her case without attempting to introduce the evidence.
The evidence regarding the blood test results became relevant when the defendant took the stand and denied using methamphetamine at the time of his arrest. It was therefore proper rebuttal evidence. In the terms used by Carter, proper rebuttal evidence is evidence which is “made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.]” (Carter, supra, 48 Cal.2d at pp. 753-754.) We therefore agree with the trial court that the blood test results were proper rebuttal evidence and there was no statutory discovery violation.
In response to defendant’s due process arguments, the People analyze the issue under Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] and its progeny. Brady holds that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Id. at p. 87.)
The People argue that the blood test evidence was not material under Brady and was therefore nonprejudicial. “‘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,”’ [citations], although a ‘showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal,’ [citation]. The reversal of a conviction is required upon a ‘showing 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.’ [Citation.]” (Youngblood v. West Virginia (2006) 547 U.S. 867 [126 S.Ct. 2188, 165 L.Ed.2d 269].)
Here, it is relatively clear that if defense counsel had the blood test results before defendant began testifying, defendant would not have testified or would have admitted he was under the influence of methamphetamine at the time of his arrest. Under these circumstances, the blood test results would probably not have been used to attack defendant’s credibility.
Even though the blood test results attacked defendant’s credibility, defendant had the opportunity to explain those results in his subsequent testimony, and he did so.
Nevertheless, we agree with the trial court that the results of the trial would not have been different. Defendant admitted possession of the methamphetamine and the gun and relied on a weak necessity defense. Even in the absence of the evidence of blood test results, it is likely that the jury would have found him guilty of possession of drugs, while armed, and possession of a gun by an ex-felon. Defendant has not relied on Brady, has not shown a Brady violation, and has not responded to the People’s Brady argument. We thus agree with the People that defendant’s constitutional right to a fair trial was not violated.
“The decision to admit rebuttal evidence over an objection of untimeliness rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion. [Citation.]” (People v. Desantis (1992) 2 Cal.4th 1198, 1232.)
We agree with the trial court: “This is clearly proper rebuttal evidence. The discovery rules are not designed nor intended to allow a defendant to take the stand and testify untruthfully and then claim foul when evidence that the defendant knows exists is then brought forward for rebuttal purposes. [¶] Obviously, the defendant knew . . . that samples were drawn and taken; and . . . defendant knew what the test results would likely be.” Defendant has not shown that the trial court abused its discretion in admitting the blood test evidence to rebut defendant’s claim that he was not using methamphetamine at the time of his arrest.
B. Sentencing.
Defendant contends that the case should be remanded for re sentencing because the trial court failed to exercise its discretion to decide whether the sentence it was imposing should run consecutively or concurrently with the sentence imposed in the earlier case, case No. RIF108334. At sentencing, the prosecutor asked the trial court if the sentence would run consecutively to the sentence in case No. RIF108334. The court replied: “I believe it’s required by law to be consecutive to that sentence, and it will be.”
See footnote 2, ante, at p. 2.
However, a consecutive sentence is not required by law. Section 669 states: “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction.” (Italics added.)
The trial court therefore believed, erroneously, that it lacked discretion in the matter. “Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
The People argue that a remand for re sentencing is not necessary because “[t]he instant record clearly shows the trial court’s strong interest in punishing [defendant] with the most severe sentence in order to protect society, and to show [defendant] mercy only to the extent it ordered concurrent sentences as to instant counts 2 and 3.”
Thus, although the People subsequently argue that the record shows the trial court’s intent to punish defendant to the maximum allowed by law, the People acknowledge that the trial court did not do so.
In this regard, the court said: “Although the defendant probably does not perceive it as such, the Court attempts to show some mercy to the defendant by running the sentences concurrent, and the reason for doing that is so that he will — I don’t know what’s going to happen in the first case, but he will have the opportunity to achieve parole, albeit it will be some time down the road, and that’s the reason for running the sentences [on counts 2 and 3] concurrent rather than consecutive.”
However, the court stated earlier that the reason for running the sentences on counts 2 and 3 concurrently was that “both offenses clearly arose from the same operative set of facts and circumstances.”
The trial court therefore did not evidence an intent to impose the maximum sentence possible. Instead, it indicated that it was showing the defendant some mercy, and it noted that the eventual result in case No. RIF108334 might have some affect on its sentencing decision. We simply do not know, and cannot infer, whether the trial court would have imposed the sentences in this case consecutively with the sentences in the other case if it had been aware of its discretion under section 669. Under such circumstances, remand for re sentencing is appropriate.
Upon re sentencing, this information will be before the court, and it may affect the trial court’s exercise of its discretion.
III
DISPOSITION
The case is remanded for the limited purpose of allowing the court to exercise its discretion under section 669. In exercising its discretion, the trial court shall determine whether the concurrent sentences on counts 2 and 3 in this case shall run consecutively or concurrently with the sentences in case No. RIF108334 (affirmed on appeal in case No. E040378). In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P.J., KING J.