Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD207382, Charles G. Rogers, Judge.
NARES, Acting P. J.
A jury found Christopher Anthony Davis and his codefendant Danny Goodman guilty of unlawfully selling a controlled substance (count 3: Health & Saf. Code, § 11352, subd. (a)) and found true allegations that the sale involved cocaine base within the meaning of Penal Code section 1203.073, subdivision (b)(7), and that the violation took place within 1,000 feet of a public school within the meaning of Health and Safety Code section 11353.6, subdivision (b). In sentencing Davis in this case on May 9, 2008, the court struck the allegation that the sale involved cocaine base (§ 1203.073, subd. (b)(7)) and sentenced him to a determinate prison term of eight years, consisting of the midterm of four years on count 3, plus a consecutive term of four years for the true finding that the violation took place within 1,000 feet of a public school (Health & Saf. Code, § 11353.6, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
As Goodman is not a party to this appeal, we do not further discuss the criminal proceedings against him.
On June 22, 2007, about two weeks after the cocaine sale occurred, Davis's probation was summarily (and later formally) revoked in another case (People v. Davis (Super. Ct. San Diego County, (2006), No. SCD189258) (No. SCD189258)). On May 9, 2008, the same day the court sentenced Davis in the instant case (No. SCD207382), the court also sentenced Davis in the probation revocation case (No. SCD189258) to the middle prison term of two years for his admitted underlying offense of willfully failing to appear in court while released from custody on bail (§ 1320.5), and ordered Davis to serve that two-year term concurrently with the eight-year prison term it imposed in the instant case.
In May 2006 in case No. SCD189258, Davis was granted three years formal probation after he pleaded guilty to (1) possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), (2) driving a vehicle upon a highway in willful or wanton disregard for the safety of persons or property (Veh. Code, § 23103, subd. (a)), and (3) felonious willful failure to appear in court while released from custody on bail (Pen. Code, § 1320.5).
Davis appeals the judgment of conviction in the instant case, contending (1) the prosecution's failure to disclose before trial that Officer Day knew who Davis was before Officer Day bought the cocaine base violated the prosecution's section 1054.1 discovery obligations; and (2) the court prejudicially erred by failing to instruct the jury that it had to determine whether the apartment complex courtyard where the sale occurred was a "public area" for purposes of Health and Safety Code section 11353.6. We affirm.
FACTUAL BACKGROUND
A. The People's Case
In late May and early June 2007, San Diego Police Officer Michael Day was assigned to Central Division Narcotics Team 8 (Team 8), which was conducting undercover "buy-bust" operations. On June 5, as a result of complaints about the sale of narcotics very near an elementary school, Officer Day's team conducted undercover operations in the area of 2800 Oceanview Boulevard. Specifically, those complaints focused on two apartments located at 2874 and 2876 Oceanview Boulevard in the same apartment complex, which is across the street from Logan Elementary School (at 2875 Oceanview Boulevard).
All further dates are to calendar year 2007 unless otherwise specified.
On that day, Officer Day and Detective Tagaban went to the apartment at 2876 Oceanview Boulevard, where they contacted Goodman in the doorway facing the courtyard. Goodman asked what Officer Day was looking for, and Officer Day replied, "[A]nother 20," which is street slang for a $20 rock of cocaine. After Officer Day gave him a prerecorded $20 bill, Goodman walked back inside the apartment, returned 10 to 15 seconds later, and handed Officer Day a piece of rock cocaine. The officers, who did not arrest Goodman, then left the apartment complex. Officer Day impounded the rock cocaine he purchased from Goodman. Officer Day also testified that the apartment complex was about 100 to 150 feet from Logan Elementary School, no part of the complex was beyond 1,000 feet from that school, he made the purchase at about 5:00 or 5:30 p.m., and he saw children at the school at that time.
Officer Day returned as an undercover officer to the apartment complex courtyard on June 7 at around 2:00 or 2:30 p.m. to make another "buy-walk," a term that means another purchase without an immediate arrest. He told Goodman he wanted another $20 worth of cocaine. Officer Day gave a prerecorded $20 bill to Goodman and followed him to the door of apartment No. 2874. When Goodman knocked on the door, Davis came out, told them to sit down in some chairs, and then, after Goodman gave him the prerecorded $20 bill, walked down a pathway that led to an alley. Officer Day conversed with Goodman for 10 to 15 minutes. Goodman referred to Davis as both Danny and "D. Money," which is Davis's street name. Davis then returned to the courtyard and handed Officer Day a rock of cocaine.
When Officer Day returned to the police station later that day (June 7), he used a computer system and the information he had about Goodman and Davis to obtain their identities and photographs.
On June 20 Officer Day and a number of other officers returned to the area of 2800 Oceanview Boulevard for the purpose of arresting four people, including Davis, from whom Officer Day had purchased rock cocaine. Officer Day distributed photographs of those four people to the other officers. As he was sitting in an undercover car in front of the school, Officer Day gave the "bust" signal when he saw Davis come out of the courtyard and get into a vehicle. He had no problem recognizing Davis. Uniformed officers detained Davis.
Leona Gulck, a criminalist at the San Diego Police Department Forensic Science Laboratory, examined the impounded cocaine base that Officer Day purchased from Davis on June 7. The cocaine base weighed 0.27 grams.
B. The Defense
Davis presented no evidence.
DISCUSSION
I. PROSECUTOR'S DISCOVERY OBLIGATIONS
Davis contends his conviction must be reversed because the prosecutor violated his discovery obligations under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and section 1054.1 by failing to disclose before trial that Officer Day knew who Davis was, based on photographs Officer Day had seen, before he bought the cocaine from Davis on June 7. Specifically, Davis claims that (1) the prosecutor's failure to disclose this information "eviscerated" his misidentification defense at trial and "sandbagged [him] into proceeding to trial based upon his belief that the People's proof was weak"; and (2) but for the prosecutor's violation of his discovery obligations, "there is more than a reasonable probability that the outcome would have been different" because Davis "would in all likelihood have accepted the People's [three]-year offer." These contentions are unavailing.
A. Background
During the trial on April 7, 2008, the prosecutor, Patrick Ojeil, asked Officer Day whether he had "any idea who [Davis] was" on June 7 when Officer Day returned to the apartment complex to make another purchase of rock cocaine. Officer Day answered, "I knew who he was, yes." The prosecutor then asked Officer Day how he knew Davis, and defense counsel Liesbeth VandenBosch requested a sidebar conference.
Following the unreported sidebar, and out of the presence of the jury, VandenBosch told the court that she had asked the prosecutor how Officer Day identified Davis as the man who sold him the cocaine on June 7, and the prosecutor had told her that Officer Day informed him that he went back to the police station after the drug purchase that day, looked at a series of photographs of people who had some connection to the apartment complex, and identified Davis from one of the photographs. VandenBosch also told the court the prosecutor knew that identity was going to be an issue at trial and that is why she specifically asked him how he had identified Davis as the one who sold the cocaine on June 7.
The prosecutor responded by telling the court that earlier in the trial, VandenBosch asked him how Officer Day identified Davis, and he told her, "I think that he identified him by looking at photographs after [the drug purchase]." The prosecutor told the court, "[T]hat was all that I knew at the time." The prosecutor further explained that during the break in the trial earlier in the morning (April 7, 2008), as he walked outside the courtroom with Officer Day, Officer Day indicated he thought he looked at the photographs before June 7.
The court's April 7, 2008 minutes indicate the court excused the jury for a brief mid-morning recess at 10:30 a.m., the trial resumed at 10:46 a.m., and the court conducted the sidebar conference at 11:00 a.m.
The court asked Officer Day to give a narrative of the events from June 5 to June 7 regarding any photographs of Davis and Goodman at which he had looked. Officer Day told the court, still outside the presence of the jury, that he knew who Davis was before the undercover operation that resulted in the drug purchase on June 7 because the drug abatement team had previously dealt with Davis and his family. He indicated that after he spoke on June 7 with Goodman, who referred to Davis as Danny and D. Money, Officer Day went back to the police station and identified Goodman by using that information to conduct a records check. Officer Day indicated that he and the other officers conducted the buy-walk operations because he knew Davis was the dealer in the apartment complex, and they were targeting him. Officer Day also told the court he had never personally contacted Davis prior to the buy-bust operation, but he was able to identify Davis from his photograph.
The court asked VandenBosch what remedy she was seeking on behalf of the defense. VandenBosch protested that she had asked the prosecutor in a discovery letter for all information detailing any contact that members of San Diego Police Department Team 8 had with Davis before June 20. The court responded that Officer Day had just stated there had not been any such contact between Team 8 and Davis. VandenBosch replied that she thought this information would have been discoverable and would have been useful "in terms of assessing the case and determining whether it's a case that should be tried or settled." (Italics added.) She argued the evidence was inadmissible hearsay and should be excluded under Evidence Code section 352. She asked that the evidence be excluded based on the fact that "it is coming up at such a late date and while we're already in trial."
1. Court's ruling and Officer Day's subsequent testimony
Noting that the prosecution's discovery obligations were controlled by Brady, supra, 373 U.S. 83 and section 1054 et seq., the court stated, "I'm not hearing anything, from what [Officer] Day has told us, that the nondisclosure... is a violation of either of those." The court also stated:
BradyThe court found that "the fact that an expert police witness knows a whole lot about a family or about a background or about a suspect, I don't think it's something that is going to be a discovery violation if he didn't write it all in his report." The court found there was a miscommunication between the prosecutor and VandenBosch, and there was nothing that "even approaches fault or willfulness or any intent to hide the ball" on the part of the prosecutor.
Following the noon recess, again outside the presence of the jury, the court ruled it would be appropriate for the prosecution to offer into evidence testimony from Officer Day that he had seen a photograph of Davis and that he knew who Davis was when he went over to the apartment complex on June 7. The court indicated it would entertain a request by VandenBosch if she wished to tender a limiting instruction as to the use of that evidence.
The prosecutor subsequently elicited testimony from Officer Day that was consistent with the court's ruling. Officer Day testified he recognized Davis when Davis answered the door on June 7. Officer Day explained that he recognized Davis from a photograph he had seen before his team conducted its operation in that area.
B. Applicable Legal Principles
1. Brady
In Abatti v. Superior Court (2003) 112 Cal.App.4th 39, this court explained that "[a]lthough a criminal defendant does not have a general constitutional right to discovery [citation], under Brady, supra, 373 U.S. 83, 87, 'the prosecution must disclose to the defense any evidence that is "favorable to the accused" and is "material" on the issue of either guilt or punishment. Failure to do so[, regardless of the good faith of the prosecution,] violates the accused's constitutional right to due process. [Citation.]' [Citation.]" (Abatti, supra, at p. 52, italics added.)
We also explained in Abatti that evidence is generally "'"favorable" if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses.' [Citations.] 'Evidence is material under the Brady standard "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.]' [Citation.] 'A "reasonable probability" [is] a "probability sufficient to undermine confidence in the outcome." [Citation.]' [Citations.] Impeachment of a witness can make the difference between acquittal and conviction, especially where credibility is the major issue in a case and evidence at trial will consist of opposing stories presented by the defense and the prosecution witnesses. [Citations.]" (Abatti, supra, 112 Cal.App.4th at p. 52.)
In People v. Zambrano (2007) 41 Cal.4th 1082 (Zambrano) (disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), our Supreme Court noted that this disclosure obligation "is not limited to evidence the prosecutor's office itself actually knows of or possesses, but includes 'evidence known to the others acting on the government's behalf in the case, including the police.' [Citation.]" (Id. at p. 1132.) The Zambrano court also commented that "[m]ateriality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.]" (Id. at pp. 1132-1133.) The court reiterated the conclusion drawn from Kyles v. Whitley (1995) 514 U.S. 419, 435, that "[b]ecause a constitutional violation occurs only if the suppressed evidence was material..., a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]" (Zambrano, supra, 41 Cal.4th at p. 1133; see also In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7 [a defendant's showing "of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of 'error' and 'prejudice'"].)
2. Section 1054.1
The Supreme Court in Zambrano recognized, as this court did in Abatti, that a prosecutor's constitutional duty under Brady to disclose exculpatory evidence is independent of the prosecution's disclosure duties under the reciprocal discovery statute (§ 1054.1), which apply even without a request by the defendant. (Zambrano, supra, 41 Cal.4th at p. 1133; Abatti, supra, 112 Cal.App.4th at p. 53.) Also, where it is determined that the matter not disclosed was not material for purposes of Brady, it may nevertheless constitute a failure to disclose under the reciprocal discovery statute, in which case any violation is reviewed under the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)
Section 1054.1 requires the prosecution to disclose the following materials and information to the defense "if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies":
Section 1054.7, which governs the timing of the discovery disclosures required by section 1054.1, provides in part:
However, a prosecutor usually does not have a duty to disclose exculpatory evidence or information unless the prosecution team actually or constructively possesses that evidence or information. (Abatti, supra, 112 Cal.App.4th at p. 53.)
C. Analysis
The delay in disclosure about which Davis complains did not implicate his due process right to be informed of favorable, material evidence under Brady, supra, 373 U.S. 83. First, the evidence in question—Officer Day's testimony that he recognized Davis and knew who he was on June 7 because Officer Day had previously seen Davis's photograph—was not favorable to Davis as the accused. As already discussed, evidence is generally "favorable" if it either helps the defendant, or hurts the prosecution (as by impeaching one of its witnesses). (Abatti, supra, 112 Cal.App.4th at p. 52.) Here, the testimony neither helped Davis, nor hurt the prosecution. On the contrary, the testimony lent credibility to Officer Day's identification of Davis as the person who sold him the cocaine on June 7, and thus strengthened the prosecution's case against him by showing the jury that Officer Day knew who Davis was and what he looked like before that date.
Second, Officer Day's testimony was not material for Brady purposes. As already discussed, evidence is material under Brady if there is a reasonable probability the result of the proceeding would have been different had the material been disclosed to the defense. (Abatti, supra, 112 Cal.App.4th at p. 52.) Here, Davis has not shown, and cannot demonstrate, a reasonable probability that pretrial disclosure of the testimony in question would have led to a different result at trial. Davis complains that Officer Day's testimony "eviscerated" his misidentification defense at trial. In so doing, however, he implicitly acknowledges that pretrial disclosure of the information would not have resulted in a different outcome at trial.
Davis asserts that the prosecution "sandbagged [him] into proceeding to trial based upon his belief that the People's proof was weak," and that it is reasonably probable "the outcome would have been different" if the information had been disclosed prior to trial because he would "in all likelihood" have accepted the People's "[three]-year offer." These assertions are unavailing. The record does not support his sandbagging theory. As Davis acknowledges, the prosecutor tried to avoid a trial by making a "[three]-year offer." By rejecting that pretrial offer, Davis arguably assumed that he could convince the jury that Officer Day was mistaken when he identified him as the person who sold the rock cocaine on June 7. Davis is responsible for the consequences of his own decision to reject the prosecution's lenient offer and to insist instead on a jury trial. We conclude the court did not abuse its discretion in finding that the portion of Officer Day's testimony at issue in this appeal was "not Brady material."
We also conclude the court did not abuse its discretion in finding no violation of section 1054.1. Subdivisions (a) through (d) of that section are not implicated in this appeal because the testimony in question did not involve "[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial" within the meaning of subdivision (a); or "[s]tatements of... defendants" within the meaning of subdivision (b); or "relevant real evidence seized or obtained as a part of the investigation of the offenses charged" within the meaning of subdivision (c); or "[t]he existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial" within the meaning of subdivision (d). Subdivision (e) of section 1054.1 is not implicated because Officer Day's awareness of Davis's identity before June 7 did not constitute "exculpatory evidence" within the meaning of that subdivision. Last, subdivision (e), which requires disclosure of "[r]elevant written or recorded statements of witnesses or reports of statements of witnesses whom the prosecutor intends to call at the trial," is not implicated because Davis does not claim, and the record does not show, that the prosecution failed to disclose any "written or recorded statements" by Officer Day. Furthermore, the record shows the prosecutor was unaware before the trial of Officer Day's knowledge of Davis's identity prior to June 7, and Officer Day did not orally report that knowledge to the prosecutor until a few minutes prior to the sidebar conference that defense counsel requested at trial. In light of our conclusions, we need not address the People's contention that even if the court had abused its discretion, any error was harmless under the standard announced in People v. Watson, supra, 46 Cal.2d 818.
II. INSTRUCTIONAL ERROR CLAIM
Davis also contends the court prejudicially erred by failing to instruct the jury that it had to determine whether the courtyard of the apartment complex was a "public area" for purposes of the Health and Safety Code section 11353.6 enhancement allegation. This contention is unavailing.
A. Background
The court instructed the jury as follows with respect to the enhancement allegation that Davis's June 7 sale of cocaine base took place within 1,000 feet of a public or private elementary school within the meaning of Health and Safety Code section 11353.6, subdivision (b):
within feet of a public elementary schoolThis special jury instruction was prepared and submitted by the prosecutor. Davis's trial counsel, VandenBosch, reviewed and approved it, stating: "Your Honor, I have reviewed it and I would agree. It appears to contain all of the required elements as they are indicated in [Health and Safety Code] section 11353.6, subdivision (b)." (Italics added.)
B. Applicable Legal Principles
"[A]n instructional error that improperly... omits an element of an offense... generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution." (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Such an error is reviewed under the harmless error standard announced in Chapman v. California (1967) 386 U.S. 18, 24. (Flood, supra, 18 Cal.4th at p. 503.) Under the Chapman standard, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.)
In People v. Mays (2007) 148 Cal.App.4th 13, 36, this court explained that "[a] trial court must sua sponte instruct 'on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case.' [Citation.] The trial court must instruct the jury on all elements of the charged offenses. [Citation.]"
"'"It is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal."'" (People v. Mays, supra, 148 Cal.App.4th at p. 37.) It is also settled that "the doctrine of invited error precludes the defendant from complaining about an instruction given at his own request." (People v. Ojeda-Parra (1992) 7 Cal.App.4th 46, 51.)
C. Analysis
Davis's sentence for his conviction of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) in the courtyard of the apartment complex across the street from Logan Elementary School was enhanced under Health and Safety Code section 11353.6, subdivision (b), which applies to the sale of a controlled substance "within 1,000 feet of a public or private [school]...."
Health and Safety Code section 11353.6, known as the Juvenile Drug Trafficking and Schoolyard Act of 1988, provides in subdivision (b) that "[a]ny person 18 years of age or over who is convicted of a violation of... Section 11352... where the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, shall receive an additional punishment of 3, 4, or 5 years at the court's discretion." (See People v. Davis (2006) 141 Cal.App.4th 519, 523 (Davis).)
Subdivision (g) of that section provides that the phrase "[w]ithin 1,000 feet of, a public or private [school]" means "any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private [school]." (Italics added.) Courts construing that subdivision have concluded that the term "public area" includes both publicly-owned locations (such as streets, sidewalks and bus stops), and those portions of private property that are "readily accessible to the public" (such as public driveways). (Davis, supra, 141 Cal.App.4th 519, 523, citing (among other case authorities) People v. Jimenez (1995) 33 Cal.App.4th 54, 60 & People v. Townsend (1998) 62 Cal.App.4th 1390, 1395-1397.)
Here, citing People v. Jimenez, supra, 33 Cal.App.4th 54, Davis challenges the four-year prison term enhancement the court imposed under Health and Safety Code section 11353.6, subdivision (b), contending the court prejudicially erred by failing to instruct the jury under subdivision (g) of that section that it was required to determine whether the courtyard was a "public area" within the meaning of that subdivision. Noting that Officer Day's testimony described a courtyard at the center of the apartment complex and that access to that courtyard was obtained by leaving either the public sidewalk near the complex or entering through a narrow passageway off a public alley on the other side, Davis claims the court's failure to give such an instruction erroneously "removed determination of an element of the... enhancement from the province of the jury." These contentions are unavailing.
Davis did not request, and the court did not give, an instruction on the limitation contained in subdivision (g) of Health and Safety Code section 11353.6. As already discussed, he agreed that the court's instruction on the enhancement allegation contained "all of the required elements."
By approving the court's instruction and agreeing it contained all of the required elements of the enhancement authorized by Health and Safety Code section 11353.6, subdivision (b), under the invited error doctrine he may not claim on appeal that the instruction did not contain all of the required elements. (People v. Mays, supra, 148 Cal.App.4th at p. 37, citing California Coastal Com. v. Tahmassebi (1998) 69 Cal.App.4th 255, 260 ["'It is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal'"] & People v. Catlin (2001) 26 Cal.4th 81, 150.)
Moreover, even if we deemed the claim of instructional error not waived, we would not reverse. As already discussed, the term "public area" for purposes of subdivision (g) of Health and Safety Code section 11353.6 includes those portions of private property that are "readily accessible to the public." (Davis, supra, 141 Cal.App.4th at p. 523; People v. Jimenez, supra, 33 Cal.App.4th at p. 60.) The key consideration in determining whether an area is "readily accessible" is "whether a member of the public can access the place 'without challenge.'" (People v. Krohn (2007) 149 Cal.App.4th 1294, 1298.)
Here, when Officer Day testified about entering the courtyard on June 5 and 7, he never mentioned needing to pass through any fences or gates, or needing a key or access code to enter, nor did he mention needing to wait for someone to let him in. Officer Day testified he observed "a lot of movement... [and] a lot of activity" in the courtyard as people were entering and leaving. He also stated that the courtyard "had so much activity--the many times I have been there, there have been 15, 20, 30 people [in the courtyard]." Even if the "public area" issue had been submitted to the jury, from the evidence in the record the jury could not have come to any conclusion other than that the courtyard was a public area. We conclude that any instructional error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
I CONCUR: McINTYRE, J.
I CONCUR IN THE RESULT: McDONALD, J.