Opinion
C077361
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. BRYAN DAVID DENTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F03149)
The prosecutor's failure to disclose a confession to a jail informant until several days into a joint trial for burglary, robbery, murder, and arson resulted in a mistrial for defendant Bryan David Denton and ultimately an acquittal of nearly all charges against his codefendant, Stacey Ann Perryman. Denton contends he is entitled to have a jury determine whether the prosecutor's intentional misconduct barred his second trial. The plain language of Penal Code sections 1041 and 1042 supports his claim. (People v. Bell (2015) 241 Cal.App.4th 315 (Bell).) Denton fails, however, to find authority, and we have found none, for the novel proposition that a Brady violation can also permanently bar a retrial. (Brady v. Maryland (1963) 373 U.S. 83 (Brady).) We must conditionally reverse and remand the case for a jury trial on Denton's once-in-jeopardy plea to determine whether the prosecutor intentionally goaded the defense to request a mistrial, believing that an acquittal was reasonably likely. (People v. Batts (2003) 30 Cal.4th 660, 695-696 (Batts).) We conclude, however, there is sufficient evidence to support the jury's true finding of the felony-murder special circumstance, and therefore, if the prosecution prevails at the jury trial, the trial court must reinstate his convictions. We accept the Attorney General's concession the parole revocation fine must be stricken.
FACTUAL BACKGROUND
Stacey Perryman split her time as a part-time registered nurse and a part-time prostitute. As a contract nurse, she took jobs in Southern and Northern California and stayed in motels paid for by her employer. She advertised her prostitution services on MyRedBook.com, requesting donations of $200 per hour. Bryan Denton has a long history of felony and misdemeanor convictions. The two appeared to be a couple in December 2011. Shortly thereafter, Perryman's behavior changed and her employer suspected substance abuse. Denton was arrested for parole violations in March 2012 and was incarcerated until early May. Denton and Perryman were eventually charged with burglary, robbery, arson, murder, and special circumstance felony murder.
The victim was 61-year-old Stephen Sieck, who contributed large sums of money to strippers and prostitutes. He told a Travelodge employee he would be happy to help a woman who was down on her luck. The employee introduced him to Perryman. She resided with him briefly while Denton was incarcerated. There is evidence to suggest he had become her pimp and they had a falling out. She sent a text message stating, "I'm at a man's house, how [sic] is helping me a little cuz he has a plan to pimp me out," and in a separate text she wrote, "[h]e is still being okay but is changing cuz I still haven't given any pussy. He is changing a little into asshole."
Perryman was also involved with Alfred Jones. Jones paid Lindsey Monroe to drive Perryman. Perryman sent several text messages to Jones, expressing dissatisfaction with Sieck. On April 20, 2012, she wrote to him, "I'm getting away from here tomorrow, I think. I will tell you more later." On April 21, 2012, she wrote again, "I'm going to try to get dropped off. He's getting mad at me cuz I won't put out. I owe him just over $300." Later she wrote, "on route [sic] somwhere away from that pimp."
When Denton was released from jail in May 2012 he attempted to reunite with Perryman immediately. In a number of texts sent from his cell phone he told Perryman he missed her, wanted her, hoped she still loved him, and asked her to come get him. At the end of many of the text messages appeared, "I stabbed Alfred at least 15 times."
The prosecutor's theory at both trials was that Denton and Perryman acted very suspiciously as they cased a U-Haul rental office and shortly thereafter rented an in-town U-Haul truck in Bakersfield, planning to break into Sieck's apartment in Sacramento and steal his furniture and personal belongings. They bought packing materials en route, which the prosecution insinuated must have been to tape up their victim since they did not have any packing boxes with them. Many neighbors saw them load the U-Haul in broad daylight at about 9:30 a.m. on Saturday morning, May 19. One neighbor heard a loud noise, which the prosecutor argued was from a gun fired by the victim in self-defense. One or both of the perpetrators stabbed Sieck in the face, neck, and head two dozen times and then put him in a closet. There was an empty knife sheath found in a kitchen drawer. Together they took their loot to a storage unit. On a surveillance video at a gas station, a man with a limp appeared, and out of view of the camera, a minute later someone tried to use Sieck's ATM card but was declined because the PIN was invalid. The next day they burned the apartment and drove the victim's sports utility vehicle (SUV) to Palmdale. They burned the car in the Mojave Desert. In the prosecutor's view, both defendants were guilty as charged based on the abundance of evidence of felony murder.
Not so, according to defendants, who had turned on each other by the time of their joint trial. Perryman admitted to prostitution, as vividly evidenced by a number of text messages she sent to potential customers, but her lawyer argued she had nothing to do with burglarizing or robbing Sieck. Her lawyer insisted Perryman had no knowledge that Denton would stab and kill Sieck, and she did nothing to aid and abet him. She rented the U-Haul to deliver a water bed and end tables to a friend in exchange for other furniture and to pick up furniture from Sieck. Similarly, Denton distanced himself from commission of the crimes and blamed Perryman. In his opening statement in the first trial, defense counsel previewed what defendant would eventually testify to in his second trial; that is, he never met or saw Sieck, did not go to his apartment, and he had no notice that Perryman planned to rob or kill him. Indeed, he told his second jury that he did not know Sieck had been killed, he was not present when he was killed, he was never in his apartment, and he did not learn about Sieck's death until he was arrested several days later in Bakersfield.
In June an inmate, Michael Ambler, sought a deal on his pending charges in exchange for information about statements Denton made to him in the jail. He volunteered to share a cell with Denton to obtain additional information. The prosecutor concluded the informant was unreliable and he was unwilling to negotiate with him. The detectives directed Ambler not to initiate any conversations with Denton about the crimes. Nevertheless, Ambler continued to try to get information from Denton despite repeated admonitions not to. After Ambler was released from jail and e-mailed Perryman repeatedly, the prosecutor disclosed Ambler's statements to defense counsel. Ambler was not called as a witness for either defendant because his testimony was inherently unbelievable.
In October 2012 Perryman's lawyer wrote the prosecutor a lengthy letter regarding discovery of exculpatory material in response to his disclosure of Ambler's statements. She concluded as follows: "Finally, I request communications by third parties to same, as I believe the third persons relevant to this case have communicated with Ms. Perryman and Mr. Denton regarding their case.
"I have no access to those records. Those records are exculpatory or potentially exculpatory and therefore discoverable.
"I would object to the prosecution parsing out which communications to divulge and which not to divulge as the exculpatory nature of the communication is often not apparent to the prosecution while it is apparent to the defense.
"If I am not given all of those communications, I will not know the nature of the items I am not allowed to review and will be disadvantaged by not receiving exculpatory or potentially exculpatory information."
The letter continued: "If you have the items I have requested in this letter that you refused to discover them [sic], to please notify me so that we could litigate the matter through a discovery issue."
The prosecutor responded by e-mail, assuring counsel he had addressed all of her concerns.
The joint trial began on September 25, 2013. After three days of testimony, the prosecutor made a shocking disclosure. A second jail informant had also provided exculpatory evidence the prosecutor had decided to withhold. Midtrial the prosecutor sent defense counsel an e-mail, which stated in relevant part: "In June-August 2012 an inmate at the Sacrament[o] County Main Jail named Raymond Montez approached law enforcement. He wanted to trade information he had received from Bryan Denton in exchange for leniency on his pending charges. . . . [¶] In view of the antagonistic defenses outlined during opening statements this week, it appears that the information provided by Mr. Montez may fall within the purview of Brady v. Maryland, and I am therefore providing it in discovery. . . . While I frankly view the statements of the two inmates as cumulative to each other, I appreciate that the views of others may differ, and I am erring on the side of caution and disclosure."
The defense response was swift. Perryman moved to dismiss the information based on the prosecutor's Brady violation. She argued: "[T]he two inmates' statements are not cumulative, and in fact contradict each other on several material points. More importantly, there can be no dispute that Mr. Montez' statement is exculpatory on its face as to Ms. Perryman, and the prosecutor had a duty to discover the Montez information to the defense prior to the preliminary hearing. (People v. Gutierrez (2013) 214 Cal.App.4th 343.) Ms. Perryman was obviously prejudiced by the withholding of this exculpatory evidence in that she waived her right to preliminary hearing when she would have been able to utilize the evidence to challenge the allegations against her. In addition to the prejudice which flowed from Ms. Perryman's being unable to present this evidence at the preliminary hearing, her counsel's trial tactics have been adversely impacted, thus affecting Ms. Perryman's due process right to a fair trial under the Fourteenth Amendment." She insisted on a full evidentiary hearing during which the prosecutor and the inmate could be examined. Denton made a similar motion. A lengthy hearing ensued.
The prosecutor acknowledged that a second jail informant, Ray Montez, called the investigating detective on June 21, 2011. Montez had been cellmates with Denton when he first came into custody. He provided information that had not been disclosed publicly. Montez reported that Denton told him he had been caught because the charge card had been run at an ATM and that he alone had stabbed Sieck in the head 17 to 19 times. After the first interview with Montez, the prosecutor sent his lawyer an offer for what has been euphemistically referred to as a "queen-for-a-day" agreement.
The prosecutor conceded the following: Denton confessed to Montez that he was the only one who stabbed Sieck, and the stabbing was not planned; that he set the fire to the SUV; and that he was worried because only his fingerprints would be found on the three knives in the SUV. The prosecutor admitted the statement was exculpatory or could lead to exculpatory evidence, and yet he did not turn it over to the defense before the preliminary hearing. He opposed Perryman's motion in limine to exclude evidence she was a prostitute, arguing it was relevant to show why she and the victim had parted ways; that is, because she asserted he was trying to "pimp her out." The prosecutor did not, however, mention to the court or counsel that it was actually relevant since Denton had confessed to committing the murder because the victim had pimped Perryman out.
The prosecutor justified withholding Denton's confession because it was cumulative to the other informant's statement, which had been disclosed to the defense, and because he was unsure which defenses would be asserted at trial and if the defense had a viable theory to negate the operation of the felony-murder rule. Opening statements, despite the fact that each defendant clearly attributed the blame to the other, purportedly did not provide him the needed clarity. The court inquired, "Why does it make a difference in terms of your decision as to whether or not something is discoverable, what you believe their defenses are?" Or as defense counsel queried, "Isn't a confession to a murder on its face exculpatory, requiring no further information regarding the defense theories or anything else?"
Perryman's defense counsel urged the court to dismiss the action. "What has happened here was very intentional. It was specifically requested by this counsel on October 24th 2012. There's no mincing words. There's no confusion about what I said. His response was: I completely answered your request, and did not offer that he already had Mr. Montez's statements. That is affirmative action that shows that he knew what he was doing, and he chose not to give it up, or even to disclose that it existed.
"I don't know quite honestly at this point which of the two it is: Whether he was not telling the truth because he's trying to get out of trouble, or he is absolutely telling the truth. And as a very experienced prosecutor he has a complete and total misunderstanding of the discovery rules and Brady and the cases that follow.
"But either way, my client is disadvantaged and should not be so. So I am asking for the sanction of a dismissal for outrageous government conduct. That was the remedy granted in cases cited by the defense . . . ."
Denton's lawyer concurred. He explained how disclosure of the informant's statement would have drastically impacted trial tactical decisions. "I made a critical tactical decision, as you know, at the beginning of this case to not insist on two juries or severance because I thought the benefits of having certain parts of a statement by Ms. Perryman outweighed the, what I anticipated to be the down side of the adverse nature of the defenses.
"The nature of that equation has been changed in the middle of the trial."
He acknowledged that Perryman was likely to introduce Montez's statement as evidence that "this was all Mr. Denton's fault, and that they are not culpable." The court agreed the statement would come in if offered by Perryman. According to Denton's lawyer, "And that -- that changes the rules of the game at halftime, and that is fundamentally unfair."
The court provided an in-depth analysis of its ruling. "After consideration of the evidence presented at the hearing, specifically, the Court's review of both the Ambler and the Montez statements, the Court does not find that the statements are cumulative.
"With respect to Mr. Montez's statement, the statement is potentially exculpatory in that it supports Ms. Perryman's theory that she was not an active participant in the commission of the homicide, did not have the requisite specific intent, was an active participant or had knowledge necessary under a theory of felony murder or premeditated intentional murder or that Mr. Denton was the predominate actor. The statement is also exculpatory in that it could negate the use enhancement as well as the special circumstance.
"As to Mr. Denton, the statement could support the theory that he acted without deliberation and premeditation, acted in the heat of passion, or that the intent to commit theft was formed after the commission of the homicide.
"Although the position of the prosecution is that none of this is relevant because their theory of liability is based upon felony murder, the Court declines to accept the proposition that whether evidence is exculpatory is measure[d] by the prosecution's chosen theory of liability, their belief as to the strength of their case or that the jury must either accept or reject Mr. Montez's statement in whole.
"The failure to disclose this statement could have impacted whether the defense adopted or abandoned a possible defense. However, the Brady inquiry does not end here.
"The analysis as to whether there is a Brady violation also requires a finding that the non disclosed information is material in the constitutional sense. Evidence is material only if there is a reasonable probability that, had it been disclosed to the defense the result would have been different."
The trial court concluded there had not been a Brady violation because the statement was discovered to the defense early enough in the trial that it was not reasonably probable it would have changed the outcome. In Brady terminology, Denton's confession to the informant was not material given the procedural posture of the case. The court, however, distinguished a Brady duty of disclosure from a prosecutor's discovery obligations pursuant to Penal Code section 1054.1, which mandates the disclosure of any statement of the defendant 30 days before trial. Despite the prosecutor's concern for the safety of the informant, the court found "[t]he policy of not disclosing the existence of informant statements unless the prosecutor determines that it falls within Brady as suggested by the People is troubling. This policy has implications well beyond this case." The court concluded the prosecutor violated Penal Code section 1054.1 and "[t]here does not appear to be any valid justification for failing to disclose the existence of the informant who possesses relevant information."
The court denied Perryman's motion for a mistrial, but granted Denton's motion. "Mr. Smith in his opening statement, however, suggested that his client [Denton] may not have been present during the actual homicide.
"Mr. Smith's opening statement might have clearly been different. Mr. Smith suggested that his client wasn't involved in the homicide and was no more than an accessory after the fact.
"I believe that had Mr. Smith been aware of the existence of this statement, he could have committed to a different defense either his client acted under a heat of passion and/or that the intent to commit the theft was formed after the homicide. I'm not sure how we can put that genie back into the bottle. [¶] . . . [¶]
". . . The Court believes that this late disclosure creates an incurable prejudice to Mr. Denton such that the only appropriate remedy is a mistrial."
Montez's statement became the centerpiece of Perryman's defense. The prosecutor tried unsuccessfully to counteract Denton's confession in Perryman's trial by attributing primary responsibility to Perryman. He told the Perryman jury, "Frankly, this looks like an operation that was planned by Stacey Perryman, and she utilized her boyfriend Mr. Denton to assist her with." The prosecutor insisted Perryman "stirred [Denton] up" with allegations Sieck had been her pimp. According to the prosecutor, Perryman's relationship with Denton was "manipulative" not "submissive." "To the extent there's any evidence of an abusive relationship here, frankly, it's Ms. Perryman abusing Mr. Denton." He further argued that if the intent to kill was Denton's, and on "some bizarre side mission Mr. Denton went on all by himself, why is she not running out, calling for help . . . ?" He pointed out to the jury that an hour later Perryman appeared at the U-Haul store relaxed and smiling.
The jurors were not persuaded, thereafter acquitting Perryman of murder, robbery, and burglary. The only charge the jury sustained against Perryman was residential arson. The outcome for Denton following his second trial was not so bright. Before the second trial commenced, however, Denton claimed on three separate occasions that because he had been placed once in jeopardy he could not be retried. In requesting a mistrial, Denton first asked the trial court to dismiss the case with prejudice. The trial court ruled dismissal with prejudice was not an appropriate remedy. Denton then entered a plea of once in jeopardy.
In his motion to dismiss on double jeopardy grounds, Denton argued that the double jeopardy clause protects a defendant against prosecutorial actions intended to provoke mistrial requests. He explained the prejudice he suffered as a result of the prosecutor's belated discovery of the informant's statement. "Evidence including the exculpatory elements of Perryman's statements which would have been heard in a joint one-jury trial will be excluded as hearsay in a separate trial. A new jury certainly will not hear the prosecutor argue that Denton was being 'abused' by Perryman. Denton will be at a significant tactical disadvantage compared to his position in the first trial and will thus be deprived of a reasonable chance of acquittal.
" 'Goaded' describes precisely the defense motive for moving for mistrial here. The prosecutor knew exactly that the late disclosure of the critical Montez statement would prompt such a motion, and he also well knew the tactical advantage he would acquire were he able to reset the game and have a new trial without Ms. Perryman.
"Retrial is barred by jeopardy."
At the hearing on the motion, counsel was even more direct. He argued, "This case was started to trial. I made an opening statement that made certain representations. Halfway through the trial, [the prosecutor] disclosed information that made those statements -- made me look like a fool. I therefore had no choice but to move for a mistrial.
"Thereafter, [the prosecutor] made a closing argument that made it clear that he believed that he made a tactical error by allowing the case to proceed with one jury. He made an argument to that jury to the effect that Mr. Denton was just that he -- and was exploited and so on and so forth. He wouldn't have made that argument had Mr. Denton remained in the trial.
"I think this is a classic case in which a prosecutor has forced a mistrial."
A second judge heard the argument, and although he did not feel bound by the prior ruling, he too found that the prosecutor's failure to disclose the Montez statement was not intentional and he did not gain a tactical advantage when the mistrial was granted. The court stated: "I didn't see the -- the fact that a mistrial was granted in this was in any way designed to thwart any reasonable prospect of an acquittal in relation to Mr. Denton. In fact, the evidence appeared to me to be fairly strong against Mr. Denton based upon what I've reviewed." The court denied the motion to dismiss on double jeopardy grounds.
Denton made two additional motions to dismiss on separate double jeopardy grounds and both were denied.
Thus, Denton was tried again. Denton could not introduce his hearsay statements to inmate Montez in his separate trial. The prosecution introduced evidence that Denton accompanied Perryman when she rented the U-Haul in Bakersfield and when she bought packing supplies at Lowe's before going to Sieck's apartment. Residents at Sieck's apartment complex described a male and a female, matching general descriptions of Perryman and Denton, loading furniture from Sieck's apartment into the U-Haul on Saturday morning, May 19. Denton and Perrryman unloaded the furniture into a storage unit, confirmed by fingerprint evidence and the security system. The following morning a neighbor heard a big "boom" and saw a man exit the sliding glass door of Sieck's apartment and jump over the patio fence. The man was about 40 years old and approximately six feet tall with a medium-slim build. The man ran over to Sieck's SUV and got in. The neighbor noticed smoke. Someone attempted to use Sieck's credit cards at ATM machines in establishments en route to Southern California, but the card was rejected because the PIN was inaccurate. Denton traveled with Perryman to Southern California. Sieck's SUV was burned in the Mojave Desert close to the motel Perryman checked into. The two were arrested together in another motel. Gray work gloves found in the room contained DNA on the inside consistent with defendant's and Perryman's.
Denton testified in his own defense. He told the jury he never met Sieck, never went to his apartment, did not take his furniture, and did not know that he had been stabbed to death until he was arrested. He had no idea there was a plan to rob or take property from Sieck against his will. To the contrary, he simply agreed to help his girlfriend move some furniture from Bakersfield to Sacramento and to pick up a "whole bunch of furniture from some man named Steve" who was planning to rent a room from her in Bakersfield. When they arrived in Sacramento, they delivered the water bed and end tables as planned, but the recipient of the water bed was unable to reciprocate with the promised dresser. Denton explained to the jury that Perryman had asked him to stay at a friend's when she went to pick up the furniture from Sieck because she was afraid Sieck would be jealous.
Denton further testified that Perryman returned in an SUV. She reported that friends of Sieck, Gary and Janie, were at Sieck's apartment when she arrived. Gary and Sieck got into a fight. When Perryman threatened to leave, Sieck persuaded her to take his SUV and said they would pack the U-Haul. Later, Janie and Gary arrived in the U-Haul. They all proceeded to the storage unit and stayed together, along with another friend named Troy, in a local motel. Although he conceded he was on a surveillance video in a gas station where someone attempted to use Sieck's bank card, he testified he did not use Sieck's ATM card. He was limping because he had stubbed his toe. He explained to the jury that he was 100 miles away from the site where the burned SUV was discovered. He insisted he had no idea Perryman had any plan to rob or to kill Sieck. Nor did he know Sieck had been killed until he was arrested. He lied to the arresting police officer to avoid another parole violation.
The second jury convicted Denton of first degree murder, burglary, robbery, and arson and found true the felony-murder special-circumstance allegations. The jury found the personal use allegations not true. The court sentenced him to life in prison without the possibility of parole consecutive to a total 16-year determinate term. He appeals.
DISCUSSION
I
Right to a Jury Trial on a Once-in-Jeopardy Plea
Defendant asserts a statutory right to a jury trial on his plea of "once in jeopardy." Penal Code section 1041 plainly states:
"An issue of fact arises:
"1. Upon a plea of not guilty.
"2. Upon a plea of a former conviction or acquittal of the same offense.
"3. Upon a plea of once in jeopardy.
"4. Upon a plea of not guilty by reason of insanity."
Penal Code section 1042 then provides: "Issues of fact shall be tried in the manner provided in Article I, Section 16 of the Constitution of this state." Article I, Section 16 provides for a trial by a jury of 12.
In Bell, supra, 241 Cal.App.4th 315, the Fifth Appellate District held that Penal Code sections 1041 and 1042 confer a right to a jury trial to a criminal defendant who has entered a plea of once in jeopardy even when, as here, the first trial was dismissed at the defendant's request because the prosecutor's misconduct provoked the request for a mistrial. (Id. at pp. 321-322.) Denton insists these statutes, as construed by the Bell court, unambiguously provide him the right to a jury trial on his once-in-jeopardy plea, a right denied him by the trial court.
Penal Code section 1042 expressly incorporates article I, section 16 of the California Constitution, giving the otherwise statutory right a constitutional imprimatur. Denton was not advised of his right to a jury trial and did not knowingly waive that right in open court. (Cal. Const., art. I, § 16 [a jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and defendant's counsel]; People v. Holmes (1960) 54 Cal.2d 442, 444.) We will therefore consider the merits of his asserted right to a jury trial.
A. Right to a Jury Trial
The double jeopardy clauses of the federal and state Constitutions prohibit the government from prosecuting a criminal defendant more than once for the same offense. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. 1, § 15; Batts, supra, 30 Cal.4th at pp. 678-679.) A criminal defendant in the midst of trial has a valued right as a part of the protection provided by the double jeopardy clauses to have his trial completed before the first jury empaneled to try him. (Oregon v. Kennedy (1982) 456 U.S. 667, 671-673 (Kennedy); Wade v. Hunter (1949) 336 U.S. 684, 689 ; Batts, supra, 30 Cal.4th at p. 679.) As a result, thorny issues of constitutional and statutory magnitude arise when the prosecution attempts to prosecute a criminal defendant a second time following a mistrial.
As a general rule a criminal defendant who requests a mistrial is deemed to have waived any double jeopardy claim and therefore the double jeopardy bar to retrial is removed. (Batts, supra, 30 Cal.4th at p. 680.) An unusual exception to this general rule is embodied in Kennedy, Batts, and Bell, an exception that bars retrial when a prosecutor's misconduct is intended to goad the defendant into requesting a mistrial. (Kennedy, supra, 456 U.S. at p. 670; Batts, supra, 30 Cal.4th at p. 665; Bell, supra, 241 Cal.App.4th at pp. 338-339.) In other words, a defendant who is intentionally induced to request a mistrial by the prosecution does not forfeit his double jeopardy protection when he secures the very mistrial the prosecutor masterminded.
The Kennedy/Batts exception is a narrow one. For purposes of the Fifth Amendment, the only circumstance under which a defendant may invoke the bar of double jeopardy is where "the conduct giving rise to the successful motion for a mistrial was intended to provoke [him] into moving for a mistrial." (Kennedy, supra, 456 U.S. at p. 679.) So, too, under the intent-to-provoke-mistrial prong of the state constitutional standard. "When the prosecution acts for the specific purpose of provoking a mistrial, and thereby intentionally and directly subverts the defendant's right not to be subjected to repeated prosecutions for the same offense, we believe that prohibiting retrial is an appropriate and proportional sanction, whether or not acquittal was a realistic prospect." (Batts, supra, 30 Cal.4th at p. 696, fn. 27.) Denton asserted multiple times that he could not be retried because the prosecutor had intentionally provoked the mistrial, and thus his right to be placed in jeopardy only once remained intact. Two judges found, as a matter of fact, that the prosecutor's misconduct in failing to disclose the exculpatory evidence was not for the purpose of goading Denton to request a mistrial. Denton insists he had the right to have the factual question regarding the prosecutor's intent decided by a jury, not the trial judges. His position is supported by the only published California case to resolve the issue on the merits. (Bell, supra, 241 Cal.App.4th 315.) The Attorney General objects to the court's "blind adherence to the plain language" of Penal Code sections 1041 and 1042 and urges us to reject Bell. But each of the arguments raised by the Attorney General to justify denial of a criminal defendant's right to a jury trial on factual issues posed by a claim of prosecutorial goading was soundly rebuffed in Bell.
Article I, section 15 of the California Constitution also bars retrial "when the prosecution, believing in view of events that unfold during an ongoing trial that the defendant is likely to secure an acquittal at that trial in the absence of misconduct, intentionally and knowingly commits misconduct in order to thwart such an acquittal—and a court, reviewing the circumstances as of the time of the misconduct, determines that from an objective perspective, the prosecutor's misconduct in fact deprived the defendant of a reasonable prospect of an acquittal." (Batts, supra, 30 Cal.4th at pp. 695-696.) Under this alternate ground, not applied here, there must be a determination that an acquittal was reasonably and objectively probable.
We begin with an overview of Bell before addressing the Attorney General's objections. We lead our discussion with the two controlling statutes, Penal Code sections 1041 and 1042, because the language of those two short and simple statutes mandates, in the Bell court's view, a jury trial on any contested issues of fact involved in a defendant's once-in-jeopardy plea. (Bell, supra, 241 Cal.App.4th at p. 321.) The court was not enthusiastic about the result it reached; indeed, it lamented the burden jury trials would inflict on the courts. (Bell, at pp. 322, fn. 2, 343, 350, fn. 39, 350-351.) Nor did it herald the policy as wise or desirable. (Ibid.) To the contrary, the court expressed that had it been writing on a blank slate it would have held that courts, not juries, must determine whether a prosecutor, in committing misconduct, intended to goad a criminal defendant into requesting a mistrial to avoid an acquittal. (Id. at p. 322.) Nevertheless, despite its hesitation, the court deferred to the Legislature, as it must, and accepted the imperative set forth in the plain language of the statutes—that a criminal defendant has the right to a jury trial on factual issues arising from its prosecutorial goading claim. (Id. at pp. 321-322.)
The Attorney General rues such blind adherence to the plain meaning of the statutes. But adherence to the plain and unambiguous meaning of the language of a statute is a fundamental and familiar rule of statutory construction. (In re D.B. (2014) 58 Cal.4th 941, 945.) To ignore the plain meaning of the words used by the Legislature is to subvert the separation of powers and to allow courts to superimpose their own sense of wise policy. As a consequence, if the "statutory language is clear and unambiguous our inquiry ends." (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.)
Yet the Attorney General resists ending the inquiry with the plain meaning of the statutes. The Attorney General points out that the right to a jury arose in cases that centered on whether the defendant had been previously tried for the same crimes, not pleas based on prosecutorial goading. In the same vein, the Attorney General insists the Legislature could not have intended to require a jury trial because a Kennedy-type prosecutorial claim of prosecutorial goading did not exist when Penal Code sections 1041 and 1042 were enacted.
The court in Bell responded to these arguments with well-worn principles of statutory construction, remaining mindful of the court's limited role in interpreting statutes. The Legislature's intent is derived first from the plain meaning of the actual words of the law; a court, under the guise of interpretation, cannot rewrite the law or give the words a meaning at odds with their plain import, nor can a court insert what has been omitted or omit was has been inserted. (Bell, supra, 241 Cal.App.4th at p. 342.) The court wrote: "The Attorney General's contention would have us contravene these principles of statutory construction by injecting a distinction into the statutes that contradicts their plain, undifferentiated language. Together, [Penal Code] sections 1041, subdivision 3 and 1042 encompass issues of fact arising from pleas of once in jeopardy without qualification. Nowhere do the statutes indicate that entitlement to a jury trial turns on the particular theory of law underlying the plea of once in jeopardy. In order to achieve the result urged by the Attorney General, we would have to add an exemption to section 1041, subdivision 3 for once in jeopardy pleas based on prosecutorial goading. 'The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result.' [Citation.]" (Bell, at pp. 342-343.)
Similarly, the court applied other long-standing principles of statutory construction to rebut the Attorney General's contention the Legislature could not have intended to provide a right to a jury trial for prosecutorial goading because the concept did not exist at the time the statutes were written. " 'Old laws apply to changed situations. The reach of [an] act is not sustained or opposed by the fact that it is sought to bring new situations under its terms. . . .' [Citations.] Statutes are 'not to be confined to the "particular application[s] . . . contemplated by the legislators." [Citations.]' [Citations.] Instead, they are interpreted as embracing everything that 'subsequently fall within [their] scope . . . .' [Citation.] As a result, if the statute's language fairly brings a given situation within its terms, 'it is unimportant that the particular application may not have been contemplated . . . .' [Citations.]" (Bell, supra, 241 Cal.App.4th at p. 343.)
It is true, as the Attorney General argues, that neither the United States Supreme Court nor the California Supreme Court has declared a right to a jury trial on a plea of once in jeopardy arising from prosecutorial goading, and language from both courts suggests that trial judges, rather than juries, are best equipped to assess a prosecutor's intent and the likelihood he or she was motivated by a looming acquittal. In Kennedy, the United States Supreme Court announced a new, manageable standard that examines the intent of the prosecutor. The new standard "merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system." (Kennedy, supra, 456 U.S. at p. 675.) The California Supreme Court, albeit in dictum tucked into a footnote, was more direct. "We have grave doubts that, under the double jeopardy standard set forth above, factual questions regarding the prosecution's intent in committing misconduct are appropriate for resolution by a jury rather than by the court—as far as we are aware, all courts that have addressed similar double jeopardy issues have assumed that the court, rather than a jury, would make the relevant determination. . . . We have no occasion to decide that issue in the present case, however, because none of the parties raised the issue in the trial court." (Batts, supra, 30 Cal.4th at p. 697, fn. 28.)
The court in Bell points out the most obvious shortcoming in relying on Kennedy or Batts to deny a criminal defendant a right to a jury trial—neither case mentions, let alone analyzes, Penal Code sections 1041 and 1042. While it may be that neither the federal nor state double jeopardy clause requires a jury trial of a prosecutorial goading claim, here a jury trial is compelled by statute. As Bell recognizes, "The Batts opinion is almost entirely concerned with constitutional double jeopardy protections, while sections 1041 and 1042 are not mentioned at all. [Citation.] It would be peculiar for us to resolve a statutory construction issue by relying on precedent that does not analyze or even cite the relevant statutes." (Bell, supra, 241 Cal.App.4th at pp. 349-350.)
Nor does People v. Betts (2005) 34 Cal.4th 1039 (Betts) dictate a different result. Again, Betts does not involve Penal Code sections 1041 or 1042. But the case utilizes a dichotomy between procedural issues and issues involving the determination of guilt and innocence the Attorney General suggests is applicable in deciding whether a criminal defendant has a right to a jury trial. The question presented in Betts was whether a court or jury must decide whether the court had territorial jurisdiction to prosecute the case. (Betts, at p. 1047.) Analogizing the question of territorial jurisdiction to venue, the court explained: "This court has held that the analogous issue of venue—whether a criminal action has been brought to trial in a proper county—is to be decided by the court prior to trial, not by a jury. (People v. Posey [(2004)] 32 Cal.4th 193.) Venue, like territorial jurisdiction, often involves factual issues related to the circumstances of the crime. In Posey, we rejected the argument that venue must be decided by a jury merely because it involves questions of fact. We observed that 'although questions of fact relating to the substantive issue of guilt or innocence are within the province of the jury, questions of law concerning procedural issues that do not themselves determine guilt or innocence—including any underlying questions of fact—are within the province of the court.' [Citation.] We further explained that '[f]undamentally, the distinction between questions of fact for the jury and questions of law for the court [citations] turns on whether the issue presented relates to the substantive matter of guilt or innocence to be determined at trial or, instead, concerns a procedural matter that does not itself determine guilt or innocence . . . ." (Betts, supra, 34 Cal.4th at p. 1048.) The court concluded: "Like venue, territorial jurisdiction frequently involves questions of fact, but it is a procedural issue that does not determine the guilt or innocence of the accused. Therefore, the reasoning we applied in Posey suggests that the trial court, rather than a jury, should decide the issue of territorial jurisdiction." (Betts, at p. 1049.)
The court in Bell distinguished Penal Code sections 1041 and 1042 from Penal Code section 1126, the controlling statute in Betts. "But, unlike section 1126 as interpreted in Betts, section 1041 makes it abundantly clear that the issues assigned to the jury under section 1042 are not limited to those impacting the determination of guilt or innocence. Indeed, of the four pleas identified in section 1041, only one always involves the guilt or innocence of the defendant. (§ 1041, subd. 1 [plea of not guilty].) At least two of the other pleas—former acquittal/conviction and once in jeopardy—plainly do not involve the guilt or innocence of the accused. [Fn. omitted.] [Citation.] In determining whether an issue must be resolved by a judge or jury, section 1041 clearly sets up a different dividing line than section 1126 as interpreted in Betts." (Bell, supra, 241 Cal.App.4th at pp. 347-348.)
Thus, the court rejected the Attorney General's reasoning relying on Betts. "This distinction between the statutes at issue in Betts and the present case highlights the core flaw in the trial court's reasoning in this case. The trial court concluded that the issue of prosecutorial intent did not need to be submitted to the jury because it involved 'a procedural matter . . . and not one of guilt or innocence.' But that is true of all pleas of once in jeopardy. The trial court's reasoning would mean that no once in jeopardy plea (even those based on a 'classic' double jeopardy theory) would ever be tried to a jury. Such a result would be impossible to square with [Penal Code] sections 1041, subdivision 3 and 1042." (Bell, supra, 241 Cal.App.4th at p. 348, fn. omitted.)
The Attorney General offers a different canon of statutory interpretation—the plain meaning of a statute may be disregarded to avoid absurd results. (Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698.) The absurd consequences doctrine or the absurdity doctrine is applicable only in extreme cases. (People v. Schoop (2012) 212 Cal.App.4th 457, 470.) The Attorney General argues a jury trial for prosecutorial goading is absurd because the factual issues underlying a prosecutorial goading claim are best determined by the judge that presided over the mistrial, the scope of the trial evidence would be unwieldy, the proceeding and the jury instructions would be novel and require an unprecedented use of scant judicial resources, a prosecutor's intent and the likelihood of an acquittal is unlike the other jeopardy trials contemplated by Penal Code section 1041, and every prosecutorial goading case would evade a motion to strike the once in jeopardy plea.
There are several fallacies with the Attorney General's argument that a jury would not be as well positioned as the trial judge who presided over the mistrial to resolve the factual issues underlying a prosecutorial goading claim. First, it is not always the trial judge who presided over the mistrial who also hears the double jeopardy claim. The United States Supreme Court expressly pointed out in Kennedy, supra, 456 U.S. 667 that the double jeopardy proceedings "were not conducted by the same trial judge who presided over respondent's initial trial." (Id. at p. 669, fn. 2.) In the case before us, the judge who presided over the mistrial denied Denton's request for a dismissal with prejudice, but a different judge also considered his motion to dismiss after entering a once-in-jeopardy plea. The second judge, like the judge in Kennedy, could not have "witnessed the prosecutor's actions, style, tone, and demeanor before and during the trial" or known "the totality of circumstances surrounding the case," attributes the Attorney General maintains make the trial court the appropriate fact finder. Jeopardy jurors would be equally capable of inferring a prosecutor's intent from all the facts and circumstances presented to them at the hearing on the once-in-jeopardy claim as would a new judge who had not had the opportunity to observe the prosecutor during the first trial.
Second, jeopardy trials to resolve the factual issues arising from prosecutorial goading are similar to other double jeopardy issues customarily resolved by juries. While the court in Bell would have embraced the Attorney General's position that the task was better left to judges, not juries, in the absence of the statutes, it acknowledged there is no meaningful difference between types of jeopardy trials to justify a right to a jury trial in some, but not all, cases. (See, e.g., People v. Greer (1947) 30 Cal.2d 589 (Greer), overruled on other grounds in People v. Pearson (1986) 42 Cal.3d 351, 357-358; People v. Hamberg (1890) 84 Cal. 468, 472-473.) In Greer, for example, the defendant could be convicted of three crimes, even though one offense was necessarily included in the two others "if separate acts served as the basis of each count." (Greer, supra, 30 Cal.2d at p. 600.) The determination whether the counts were based on separate acts was "a question for the jury." (Ibid.) As the court in Bell further explained: "Many of the arguments the Attorney General asserts against jury trials on Kennedy-type claims apply with similar force to Greer's requirement that the issue of separate acts underlying a jeopardy claim must be submitted to a jury.
"Under the specific facts of Greer, the new jury on remand would have needed to determine whether the first jury's conviction for contributing to the delinquency of a minor was based on the same act as the current charges of statutory rape and lewd and lascivious conduct. This would necessarily require introducing most or all of the evidence from the first trial.
"And, requiring submission of the 'separate acts' issue to a jury would put a greater strain on judicial resources than the pretrial ruling procedure used by the Greer trial judge." (Bell, supra, 241 Cal.App.4th at p. 356.)
The Bell court found nothing absurd, or even uncommon, about jeopardy jurors hearing evidence admitted at the first trial up until the mistrial was granted. (Bell, supra, 241 Cal.App.4th at p. 354.) "Evidence from prior trials relevant to a jeopardy determination is often admitted at a subsequent jury trial. (See, e.g., People v. Warren (1940) 16 Cal.2d 103, 108; People v. James (1893) 97 Cal. 400, 400-402; People v. Majors [(1884)] 65 Cal. [138], 139-140; People v. McDougal (2003) 109 Cal.App.4th 571, 576; People v. Finch (1963) 213 Cal.App.2d 752, 760; People v. Demes (1963) 220 Cal.App.2d 423, 433-434, disapproved on other grounds in People v. Collie (1981) 30 Cal.3d 43, 64, fn. 19; People v. Dukes (1934) 2 Cal.App.2d 698, 699-700; People v. Kelly (1933) 132 Cal.App. 118, 119-122; People v. Clinton (1926) 78 Cal.App. 451, 453; People v. Castilla (1915) 28 Cal.App. 190-191.)
"The Attorney General argues that a Kennedy/Batts jury trial is more onerous than other types of double jeopardy trials. But 'more onerous' is not synonymous with 'absurd.' And while we are sensitive to any additional burdens on our trial courts, we do not see the contrast with other jeopardy trials being as stark as the Attorney General suggests." (Bell, supra, 241 Cal.App.4th at p. 354.)
The Attorney General reasserts the same argument raised in Bell that the evidence presented at a trial on prosecutorial goading would be "unwieldy." To some extent, presentation of evidence at any jury trial can be said to be unwieldy. But to sustain the Attorney General's argument we must conclude the evidence will be so unwieldy as to be absurd. This we cannot do, particularly in light of the Bell court's suggestion that the trial court has authority to limit the evidence and argument to relevant and material matters (Pen. Code, § 1044) and to exclude relevant evidence if it will consume an undue consumption of time or confuse the issues (Evid. Code, § 352). (Bell, supra, 241 Cal.App.4th at p. 352.)
In short, we agree with the court in Bell that the Attorney General vastly overstates the strain on judicial resources prosecutorial goading trials would generate, including the burden of drafting new jury instructions. We cannot rewrite a statute in the name of cost cutting, particularly when it involves the sacrosanct right of a jury to resolve factual issues and the language of the statutes guaranteeing that right is straightforward and clear. We cannot, as the court in Bell clearly understood, overrule a statute because we divine a wiser policy. It may be, as the Attorney General forcefully argues, that judges are better equipped to decide whether a prosecutor intended to provoke a mistrial and whether an acquittal was objectively and reasonably likely at that juncture in the trial. But we will have to leave that determination to the Legislature. We acknowledge that neither the United States Supreme Court nor the California Supreme Court has recognized a right to a jury trial of a prosecutorial goading case, but neither has either court addressed California's statutory scheme that plainly confers that right. In the absence of any authority to the contrary, we adhere to the plain language of the statute as thoroughly analyzed by the Fifth Appellate District in Bell.
It is important to note that, contrary to the Attorney General's nightmare scenario, not all prosecutorial goading claims must be tried before a jury. A court must make the initial assessment whether there is a factual issue presented. If there is only one reasonable inference that can be drawn from the evidence, the court may decide the issue as a matter of law. In this case, however, the prosecutor's intent was hotly contested and there is substantial evidence to support a factual finding either way. As a result, Denton was entitled to a jury trial pursuant to Penal Code sections 1041, subdivision (3) and 1042. We must remand the case for a jury trial on whether the prosecutor intentionally goaded the defense to request a mistrial. B. No Waiver of the Right to a Jury Trial
Despite the fact that Denton was tried before Bell was decided, the Attorney General contends he waived his right to a jury trial by failing to request it at the time he entered his plea of once in jeopardy. The Attorney General argues that Denton should not be allowed to "trifle with the courts" and have "multiple bites at the apple." We reject the Attorney General's position, given the absence of judicial precedent at the time the case was tried confirming the right Denton now seeks to assert, the importance of that right, and the inapplicability of the authority upon which the Attorney General relies.
Article I, section 16 of the California Constitution declares "[t]rial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel." Penal Code section 1042 expressly incorporates article I, section 16 as follows: "Issues of fact shall be tried in the manner provided in Article I, Section 16 of the Constitution of this state." Thus, the Legislature has determined that a criminal defendant who enters a plea of once in jeopardy is guaranteed the inviolate right to a jury trial as set forth in the state Constitution.
Relying on People v. Vera (1997) 15 Cal.4th 269 (Vera), the Attorney General contends the prosecution was not required to obtain an express and knowing waiver from Denton as article I, section 16 demands because his right to a jury trial was derived from a statute, not from the Constitution. It is true that in Vera the Supreme Court held that "the deprivation of the statutory right to jury trial on the prior prison term allegations does not implicate the state or federal constitutional right to a jury trial." (Id. at p. 278.) Because the defendant did not object to the discharge of the jury or the court trial on the prior prison term allegation, he was precluded from asserting on appeal a claim of ineffectual waiver. (Ibid.)
Vera, however, did not involve Penal Code sections 1041 or 1042. Neither statute at play in Vera, Penal Code sections 1025 and 1158, incorporated article I, section 16. Neither instructed that a prior prison term allegation "must be tried in the manner provided in article I, section 16." As a result, we conclude Vera is distinguishable and does not compel us to find a forfeiture based on the unknowing, implied waiver urged by the Attorney General.
Indeed, a later opinion by the Supreme Court is more analogous, although not precisely on point. In People v. French (2008) 43 Cal.4th 36 (French), the Attorney General argued the defendant forfeited his right to a jury trial on the imposition of an upper term (Blakely v. Washington (2004) 542 U.S. 296, 303-304 ; People v. Black (2007) 41 Cal.4th 799, 805) because he failed to assert it at the time of sentencing. The Supreme Court was unwilling to be as dismissive of the inviolate right to a jury trial as the Attorney General would have us be here. "When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial." (French, at p. 47.) The court pointed out that Vera had been decided before the United States Supreme Court issued its decision in Apprendi v. New Jersey (2000) 530 U.S. 466 and, therefore, it had erroneously concluded that there was " 'no Sixth Amendment right to jury trial on sentence enhancement allegations.' [Citation.]" (French, supra, 43 Cal.4th at p. 47, fn. 3.) Thus, in French, when the defendant entered a plea of no contest, Blakely had not been decided and it was widely assumed that the court, and not the jury, could decide the upper term. (Id. at p. 48.) The law was in a state of flux. The court did not find the defendant had waived a right to a jury trial even the courts had not recognized and did not hold he had forfeited the right by failing to raise it at the time of sentencing.
Similarly, Bell was the first published case to hold that a criminal defendant who entered a once in jeopardy plea based on prosecutorial goading was entitled to a jury trial on any factual issues. As in French, the law was in a state of flux and yet the Attorney General would have us refuse to entertain the defendant's claim to a right to a jury trial the courts had not recognized at the time he too entered his pleas. We find the admonition offered by the California Supreme Court apt: "Under circumstances, like those in the present case, in which the law is in a state of flux and the scope of the defendant's Sixth Amendment rights is unclear, the People are not without means to avoid the risk of error even if the defendant does not object to imposition of the upper term in the trial court. Any potential constitutional error arising out of the application of Blakely to the California sentencing scheme could have been eliminated had the People sought and obtained an explicit waiver of defendant's right to jury trial on aggravating circumstances or an admission of aggravating facts." (French, supra, 43 Cal.4th at p.48, fn. 6.)
While the scope of Denton's Sixth Amendment rights is not at issue, the scope of his right to a jury trial "in the manner provided in article I, section 16" clearly is. The Legislature has expressly assured a criminal defendant that in exercising his or her right to a jury trial pursuant to Penal Code sections 1041 and 1042 they were entitled to the full force and protection of article 1, section 16 of the California Constitution. We, like the Supreme Court in French, have entertained the defendant's assertion of the invalidity of a waiver, when he had not been advised of his right, nor did he knowingly waive that right. Whether characterized as a forfeiture or waiver, we reject the Attorney General's objection to our consideration of Denton's claim to the rights provided by Penal Code sections 1041 and 1042.
II
Brady Violation
Denton asserts that the prosecutor's suppression of the informant's statement until midtrial not only violated the prosecutor's statutory duty to provide discovery, as the trial court found, but also deprived him of due process (Brady, supra, 373 U.S. 83) and the effective assistance of counsel. Contrary to the trial court's finding, he contends the hidden evidence was material because he was forced to forfeit his ability to be tried with Perryman before a jury that would hear the exculpatory portions of the informant's statement and thus he was denied likely favorable verdicts by his first jury. He reminds us that same jury acquitted Perryman of burglary, robbery, and murder, thereby rejecting the prosecution's theory of felony murder. While the jury may have convicted him of first or second degree murder or voluntary manslaughter based on his statement to the informant he had stabbed the victim 17 or 19 times, he too could have been acquitted of special-circumstance felony murder. Denton insists the trial court misunderstood materiality for Brady purposes and abused its discretion by refusing to grant the mistrial "with prejudice."
Denton makes a compelling argument that the prosecution's discovery violation also constitutes a Brady violation. The federal constitutional duty prosecutors have to disclose exculpatory evidence to a criminal defendant under Brady is independent from their statutory duty to provide discovery under Penal Code section 1054.1. But we need not explore the nuances of materiality in the unique circumstances of an exculpatory statement that can only be used in a defendant's joint trial because, even if we find a flagrant Brady violation, Denton fails to provide any authority for the novel proposition he is entitled to dismissal with prejudice of all charges against him.
For this reason, the Attorney General argues the issue is moot. Once the trial court granted him a mistrial and he was tried again, he obtained the only remedy he could have achieved, a new trial with the benefit of the suppressed evidence, if the trial court had found a Brady violation. Denton's response in reply is curious. He contends the point of finding a Brady violation is to establish a constitutional violation, which triggers a reversal unless the denial was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 .) He concludes, "And so under a properly-formulated Chapman standard, once a defendant (such as [Denton]) makes a Brady showing of substantial materiality, reversal is required if the prosecution cannot establish the failure to disclose was harmless beyond a reasonable doubt."
Denton finds it significant that in federal jurisprudence "prejudice" and "materiality" are used interchangeably, and materiality does not require a determination that the defendant would more likely than not have received a different verdict with the evidence, "but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (Kyles v. Whitley (1995) 514 U.S. 419, 434 .) He offers the unrelated observation that the prosecutor here urged the court to merely grant a continuance, rather than a dismissal, once the belated discovery finally occurred. Pointing out how a mere continuance advantages the prosecution at the defense's expense, he insists, "There simply has to be more accountability than that." Because a mistrial in a case such as his "is no answer," Denton maintains, "[a]ccordingly, the trial court erred in concluding no Brady violation occurred, resulting in an abuse of its discretion to grant [Denton's] requested mistrial but with permission to refile the case against [Denton]."
Denton's circular reasoning, emphasizing a more rigid standard of prejudice and a more relaxed understanding of materiality to substantiate his Brady claim, misses the fundamental problem cited by the Attorney General that Brady violations implicate a criminal defendant's constitutional right to due process, that is, a fair trial, and due process violations entitle the defendant to a new trial. (Giglio v. United States (1972) 405 U.S. 150, 153 .) It is true that Denton's circumstances were particularly troubling because he hoped to enjoy a joint trial with his codefendant and he was unable to reap the exculpatory benefits of Montez's statements in his second trial. But a Brady violation is analytically different from prosecutorial goading, and where the latter raises double jeopardy issues, the former does not. Whereas the intent of the prosecutor is irrelevant to a Brady claim, it is the essence of prosecutorial goading. Thus, it makes sense Denton presents no authority for a dismissal with prejudice following a finding a prosecutor violated his or her Brady duty to disclose exculpatory evidence to the defense. It is only when a prosecutor, subjectively believing an acquittal may be imminent, intentionally commits misconduct to provoke a mistrial that the double jeopardy bar prohibits retrial. Denton has failed to rebut the Attorney General's compelling argument that he achieved all that a finding of a Brady violation would have provided him—a new trial.
III
Sufficiency of the Evidence to Sustain a Felony-Murder Special Circumstance
Not every premeditated or felony murder merits life in prison without the possibility of parole or a death sentence. Before imposing sentences of this magnitude, the defendant's individual culpability must be considered. (People v. Banks (2015) 61 Cal.4th 788, 801 (Banks).) In this case, Denton was charged with two special circumstances that, when found true by the jury, justified a life-without-parole term. Denton insists, however, there is insufficient evidence to support the jury's findings that he either acted with the intent to kill or that he was a major participant in the murder, robbery, or burglary and acted with reckless indifference to human life. After all, by finding not true the allegation that he personally used the knife, Denton asserts the jury found he was not the actual killer, an argument the Attorney General vehemently opposes. (People v. Thompson (2010) 49 Cal.4th 79, 124-126.) We need not address the Attorney General's opposition because we find sufficient evidence to support the special-circumstance finding that Denton was equally culpable as an aider and abettor.
The constitutional imperative to assess individual culpability is well established in capital cases. The Supreme Court in Banks applies the same analysis to a term of life imprisonment without the possibility of parole. The Supreme Court concluded, "Finally, we note the standards we articulate, although developed in death penalty cases, apply equally to cases like this one involving statutory eligibility under [Penal Code] section 190.2[, subdivision] (d) for life imprisonment without parole." (Banks, supra, 61 Cal.4th at p. 804.)
It is easy to recap the limited scope of appellate review of an insufficiency challenge; the more difficult task is to determine whether the evidence in this case lies at a constitutionally minimum point on the continuum between a getaway driver who is not present when an unintended killing occurs (Enmund v. Florida (1982) 458 U.S. 782 (Enmund); Banks, supra, 61 Cal.4th at p. 794) and aiders and abettors who plan a daring and violent prison escape, take a family hostage, and are present at their execution (Tison v. Arizona (1987) 481 U.S. 137, 139-141 (Tison)). We will begin with the familiar rules governing our review.
We must draw all reasonable inferences in favor of the jury's findings. After independently reviewing the entire record and viewing the evidence in the light most favorable to the prosecution, we must ask whether there is evidence that is credible, reasonable, and of solid value that would support a finding beyond a reasonable doubt. Ultimately, the question of sufficiency is a question of law. These same standards apply to a true finding on a special circumstance. (Banks, supra, 61 Cal.4th at p. 804.)
As a result of this stringent curtailment of our role, it is the jury's prerogative, not ours, to assess the prosecution's theory that Denton and Perryman rented a large U-Haul in Bakersfield for the sole purpose of stealing all of Sieck's furniture, including personal mementos, in broad daylight on a spring morning in front of his neighbors. The pair realized they would have to kill Sieck, since he was home when they entered to clean out the contents of his apartment and he knew, and could identify, Perryman. Throughout what turned out to be the separate trials of both defendants, the prosecution pursued a felony-murder scenario, informing Denton's jury that felony murder was the simplest methodology to hold Denton accountable for Sieck's death, whether he personally stabbed him or not. As a major participant in the burglary, robbery, murder, and arson who entertained a reckless indifference to human life from the time he rented the U-Haul in Bakersfield, while he accompanied Perryman to Sieck's apartment and Sieck was stabbed 24 times, when he stored the furnishings, and when he returned to burn Sieck's corpse and his apartment, the prosecutor concluded Denton committed the requisite actus reus with the requisite mens rea to find true the felony-murder special circumstance.
Our obligation to view the evidence in the light most favorable to the prosecution means, of course, that Denton's testimony's significance on appeal is diluted. Because we must independently review the entire record, we have taken into account Denton's testimony. But because the jurors were charged with assessing Denton's credibility, we cannot supplant our own assessment for theirs, and we must remind Denton that, for the most part, the jurors rejected his version of the facts.
We turn then to the law applicable to an aider and abettor who was not the actual killer and who did not necessarily intend to kill. That is not to say that Denton did not stab Sieck or that he did not intend to kill. Those are questions we cannot, and need not, answer. Rather, we must examine the relevant factors to determine whether Denton was sufficiently culpable to spend the rest of his life in prison. Our Supreme Court has identified a continuum to help us assess whether Denton's participation and mental state meet the constitutional minimum level of culpability to constitute special-circumstance felony murder. "A sentencing body must examine the defendant's personal role in the crimes leading to the victim's death and weigh the defendant's individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime." (Banks, supra, 61 Cal.4th at p. 801.) To further determine sufficient culpability, "[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create." (Ibid.) We begin with the polar end points on that continuum.
In Banks, the Supreme Court utilized two exemplars from cases decided by the United States Supreme Court. On one end of the spectrum is Enmund, supra, 458 U.S. 782, wherein the high court held that a mere getaway driver who did not commit the homicide, was not present when the killing occurred, and did not participate in a scheme or plan to kill cannot constitutionally be sentenced to death as an accomplice to a felony murder. (Banks, supra, 61 Cal.4th at p. 805.) The intent to commit an armed robbery alone is insufficient. (Id. at pp. 799, 803.) At the other pole are actual killers who intend to kill. (Id. at p. 801.) But close to the same end of the spectrum are the type of egregious facts the Supreme Court encountered in Tison, supra, 481 U.S. 137. The Tison brothers conducted an armed breakout to help their father escape from prison. They planned the escape in advance, they were present when a family was waved down and held at gunpoint, and they drove the family into the desert before their father and his cellmate killed all four family members. (Banks, at pp. 799-800.) The court concluded that the Tison brothers' " 'major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.' " (Banks, at p. 800, quoting Tison, supra, 481 U.S. 137 at p. 158.)
From these cases, the California Supreme Court derived five relevant factors we should consider: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' (Tison v. Arizona, supra, 481 U.S. at p. 157) was sufficiently significant to be considered 'major' (id. at p. 152; see Kennedy v. Louisiana, supra, 554 U.S. at p. 421.)" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
The California electorate embraced the Tison formulation when it passed Proposition 115. "Proposition 115 revised the scope of capital liability for aiding and abetting felony murders by looking to federal constitutional law. The text of new [Penal Code] section 190.2[, subdivision] (d) mirrored the holding of, and was intended to bring 'state law into conformity with[,] Tison v. Arizona[, supra,] 481 U.S. 137,' the United States Supreme Court's most recent word on capital punishment for involvement in felony murders. [Citations.] The term 'major participant' is borrowed directly from Tison." (Banks, supra, 61 Cal.4th at p. 798.) The trial court instructed the jury accordingly as follows, pursuant to CALCRIM No. 703:
"If you decide that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of murder in the commission of burglary and murder in the commission of robbery, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.
"In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove either that the defendant intended to kill, or the People must prove all of the following:
"1. The defendant's participation in the crime began before or during the killing;
"2. The defendant was a major participant in the crime;
"AND
"3. When the defendant participated in the crime, he acted with reckless indifference to human life.
"A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death."
With getaway drivers who are not present during the commission of the felony and have no involvement either in the planning or the execution of the felony that leads to a homicide on one end of the spectrum, and aiders and abettors who are intimately involved in masterminding a violent escape of prisoners and assist in the apprehension of the victims and are present when they are murdered at the other, we must examine the evidence to determine whether Denton occupies a point on this continuum of culpability that passes constitutional muster for imposing a sentence of life in prison without parole. The factors identified in Banks provide guidance.
Denton contends he was not involved in planning the criminal enterprise that led to Sieck's death. His defense, in essence, was that he tagged along with Perryman to help her move furniture, without any knowledge that she planned to rob Sieck of all his belongings. The jury, however, could have inferred that he was intimately involved in the scheme from the outset. Anxious to resume his romantic relationship with her just as soon as he was released from prison, he called her repeatedly, met up with her, and the very next day accompanied her to the U-Haul store to rent a truck far too large for just a water bed and some end tables. The prosecutor urged the jury to conclude that Denton was in on the plan to rob Sieck before he and Perryman ever left Bakersfield, and the jury certainly could have rejected Denton's claims to the contrary and, based on his relationship with her and his involvement from the time they left Bakersfield, could have made the inference he knew about Perryman's plan to rob her pimp just as the prosecutor contended.
Sieck was stabbed with possibly two knives 24 times. There is no direct evidence whether Denton or Perryman or both of them stabbed him. Denton's jury did not hear the statement he made to his cellmate Montez that he personally stabbed him or the statement he purportedly made to another inmate that he watched Perryman stab him. There is no evidence, however, that he supplied Perryman with the lethal weapon.
Nor is there any evidence that Denton was aware Perryman had robbed anyone before. The Attorney General argues that Denton must have been aware they could not simply walk into Sieck's apartment and rob him of all his furnishings. Denton knew that Sieck could identify Perryman, and therefore, according to the Attorney General, he would have to be permanently hushed. The Attorney General's argument is bolstered by Perryman's purchase of duct tape at a Lowe's right before they arrived at Sieck's apartment. The evidence may not be as overwhelming as it was in Tison, but nevertheless it is sufficient to support a jury finding that Denton would have been alerted to the inevitable risk of burglarizing and robbing Sieck in his own apartment.
Two of the Banks factors tip the scale of culpability. Unlike the getaway drivers in Enmund and Banks, there is sufficient evidence that Denton was present during the burglary and robbery that led to Sieck's death. The court in Banks explained the significance of this factor in measuring culpability. "In cases where lethal force is not part of the agreed-upon plan, absence from the scene may significantly diminish culpability for death. [Citation.] Those not present have no opportunity to dissuade the actual killer, nor to aid the victims, and thus no opportunity to prevent the loss of life. Nor, conversely, are they in a position to take steps that directly and immediately lead to death, as with the Tisons' capturing and standing guard over the victims." (Banks, supra, 61 Cal.4th at p. 803, fn. 5.)
Witnesses identified a man matching Denton's general description removing furniture from Sieck's apartment and loading it into a U-Haul on the morning of the burglary/robbery. Moreover, Denton's fingerprints were found on the furniture inside the storage unit. This constitutes sufficient evidence to support a jury finding that he was present during the break-in despite his testimony to the contrary. If he was not the perpetrator of the murder, he certainly had the opportunity to dissuade Perryman from stabbing Sieck or to intervene and stop the assault and aid the victim to prevent loss of life. He apparently did not seize that opportunity. Rather, he returned the following day to destroy all evidence of the robbery, including the corpse.
Indeed, his actions following the murder enhanced his culpability. There is evidence he not only set the apartment on fire, but he fled with Perryman, attempting to use Sieck's ATM card as they drove back to Bakersfield from Sacramento. By his own admission, he never contacted the authorities even after he learned Sieck had died.
In sum, there is substantial evidence that Denton, unlike his less culpable counterparts in Banks and Enmund, was involved in the crimes before, during, and after their commission. There is evidence he was present when the U-Haul was rented, when the apartment was burgled and Sieck was robbed, when the furnishings were stored, when the apartment was torched, and when attempts were made to use Sieck's bank card at ATM machines. He was arrested with Perryman in Southern California in close proximity to where Sieck's car was also torched. On this evidence, we conclude the evidence was sufficient to sustain the jury's finding that Denton was a major participant in the commission of the crimes.
Although perhaps less compelling, there is also sufficient circumstantial evidence Denton exhibited a reckless indifference to human life. "Reckless indifference to human life 'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death." ' [Citation.]" (Banks, supra, 61 Cal.4th at p. 807.) It is true there is no direct evidence of Denton's mental state other than his self-serving testimony that he had no knowledge of Perryman's plan. There is, however, sufficient circumstantial evidence from which the jury could infer that Denton was aware his participation in the burglary and robbery involved a grave risk of death. Denton learned that while he was incarcerated, Perryman was moonlighting as a prostitute. And there is substantial evidence she became acquainted with Sieck, a character who spent lavish amounts of money on prostitutes, but they had a falling out. Perryman sent a text message to a friend complaining about how Sieck was treating her. "I'm at a man's house, how [sic] is helping me a little cuz he has a plan to pimp me out," and in a separate text she wrote, "[h]e is still being okay but is changing cuz I still haven't given any pussy. He is changing a little into asshole." The jury could infer that he was her pimp. Apparently Denton was also aware of Perryman's relationship with Alfred Jones, and tellingly, "I stabbed Alfred 15 times" appeared at the end of many of his text messages. From these volatile circumstances, the jury could also infer that Denton was aware of the grave risk of death if they executed their plan to burglarize Perryman's pimp while he was at the apartment and rob him of all his furnishings and family mementos. He knew that Sieck would recognize Perryman. As a result, they could not rob him and leave him alive with the likelihood he would turn them in.
This is a quintessential example of the significance of the standard of review, reflecting as it does a reverence for the wisdom of juries to discern truth and the duty of the courts to defer to that wisdom. The jury was properly instructed on the prosecution's burden of proof regarding an aider and abettor who was not the actual killer and who did not necessarily intend to kill. Having reviewed the entire record, we conclude there is sufficient evidence from which the jury could have inferred Denton, acting with reckless indifference to human life, was a major participant involved in the crimes before, during, and after their commission. As a result, the jury could have properly found him guilty as an accomplice to felony murder, and we must reject Denton's challenge to the adequacy of the evidence.
Denton lodges a pro forma challenge to the constitutionality of the felony-murder special circumstance but acknowledges we must reject the challenge because it has been repeatedly rejected by the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
IV
Parole Revocation Fine
At Denton's sentencing hearing, the trial court did not impose a parole revocation fine, presumably because such a fine is inapplicable if the sentence is for life without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1186.) The abstract of judgment, however, erroneously imposes a $10,000 parole revocation fine. The Attorney General concedes the inclusion of the fine on the abstract of judgment was error. We therefore strike the parole revocation fine from the abstract of judgment.
DISPOSITION
The judgment is conditionally reversed and remanded for a jury trial on the factual issues raised by Denton's once-in-jeopardy plea. If the prosecution prevails, the judgment shall be reinstated and is otherwise affirmed. In that event, the trial court is directed to amend the abstract of judgment by deleting the parole revocation fine, and to send a certified copy thereof to the Department of Corrections and Rehabilitation.
RAYE, P. J. We concur: MAURO, J. HOCH, J.