Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA049894, Martin L. Herscovitz, Judge.
Franklin Peters, Jr. for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee, Mary Sanchez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Cicero Greenwood, appeals the judgment entered following his conviction, by jury trial, for first degree murder and attempted murder, with firearm, prior prison term and prior serious felony conviction findings (Pen. Code, §§ 187, 664/187, 12022.53, 667.5, 667, subd. (b)-(i).) Greenwood was sentenced to state prison for a term of 79 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
Desiree Hamilton testified she was defendant Greenwood’s former girlfriend. Greenwood’s nickname was Lazy. Sometime in July 2005, Greenwood drove Hamilton’s car to a Ralph’s parking lot. Hamilton was asleep in the passenger seat. Greenwood left the car for a while. When he returned, he was bleeding and upset. He said he had just had a fight with Loops. Hamilton did not know Loops, whose real name was Christopher Patron. Greenwood asked Hamilton for her mace. Then he began driving around, looking for Patron. When Greenwood did not find Patron, they returned to Hamilton’s apartment. Greenwood lived there with Hamilton and her cousin. Greenwood told Hamilton he had been in an altercation with a woman, Patron had intervened, and the fight had ensued.
A couple of days later, Greenwood received a phone call and told Hamilton he had to go out and meet someone on Sepulveda Boulevard. Hamilton drove Greenwood to the appointment and parked behind a convalescent home. Greenwood got out, walked to the side of the building and was soon out of sight. A few minutes later, Hamilton heard gunshots. Greenwood and a man named Youngster came running back to Hamilton’s car. Greenwood told Hamilton to take him to Van Nuys Boulevard. During the drive, Greenwood and Youngster “were saying that Loops was right on the corner; and did they get him; and they were saying, ‘I think we got him.’ ”
But the next morning, when Hamilton asked if Greenwood’s mission had been successful, he said, “The wrong person died.” That person was Roy Fontanelle, whom Hamilton knew as Bobo. Hamilton testified she started “freaking out” and “screaming and yelling and crying and hitting him. And I was just mad. I was mad that I was even involved in something like that... and he was trying to calm me down....” Their relationship deteriorated after that. Greenwood was so worried about getting arrested they no longer ate at local restaurants and he would lie down in the back of the car while Hamilton drove.
After a month of this, Hamilton needed to get away. She invited Greenwood to visit her parents in Utah. She asked him along because she loved him and wanted to help him, but also because she was afraid to leave her cousin alone at home with him. But when they got to Las Vegas, Hamilton told Greenwood she was leaving him. Greenwood got upset. An argument ensued, during which Hamilton hit him and he responded by punching and choking her, and then throwing her against a wall. Hamilton locked herself in the bathroom and called the police, who came and arrested Greenwood.
Hamilton testified Greenwood kept a gun inside a sock in the water heater closet on the balcony of her apartment. On the night of the shooting, Greenwood went out onto the balcony right before they drove to the convalescent home. After Fontanelle was shot, the sock was still on the balcony but the gun was gone. Greenwood told Hamilton he had thrown the gun in the ocean.
Joanie Castrellon testified she was with Fontanelle and Patron on the night of the shooting. They were supposed to meet up later at the El Cortez Motel. Castrellon, who was working as a prostitute, left Fontanelle and Patron, crossed the street and got into a car. As she was doing so, she heard popping sounds behind her like firecrackers. When Fontanelle did not show up at the motel, Castrellon called around and learned he had been shot. She also called Greenwood because she was looking for drugs. Greenwood could not believe Fontanelle had been shot and he asked Castrellon, “Are you sure?” Shortly thereafter, Greenwood and Youngster arrived at the El Cortez Motel. Greenwood was upset and seemed to be in shock.
William Franklin was acquainted with both Greenwood and Patron, and he had been good friends with Fontanelle. Franklin saw the fight between Greenwood and Patron at the Ralph’s parking lot. Franklin told Detective Alarcon that Greenwood was upset about getting “his ass whooped in front of a bunch of people.” About an hour and a half after the fight, Franklin saw Greenwood driving down Sepulveda in Hamilton’s car with a gun in his lap and a sock over his hand. Greenwood asked Franklin, “Where’s that mother fucker at, Will?”, and then said, “I’m going to... get him back.” A few days later, Greenwood again had a gun and he asked Franklin, “Where’s that mother fucker at?” When Franklin said he didn’t know, Greenwood said, “Stay away from him.”
Detective James Nuttall testified Franklin told him Greenwood hit a woman in Ralph’s parking lot and Patron intervened. Greenwood got upset because he “got his ass kicked” by Patron. A couple of hours after the fight, and then two days before the shooting, Greenwood approached Franklin and asked if he knew where Patron was. Greenwood was angry and he was armed with a.38-caliber revolver. Greenwood asked Franklin, “Where is that mother fucker at?” Franklin told Nuttall “it was obvious that [Greenwood] was gunning for [Patron].”
On Hamilton’s balcony, police found an empty sock at the bottom of a heating vent. Inside a storage container used by Greenwood, police discovered gun cleaning equipment.
CONTENTIONS
1. The trial court erred by admitting Franklin’s extra-judicial statements.
2. The trial court committed judicial misconduct.
3. The trial court erred by admitting evidence of Greenwood’s fight with Hamilton.
4. The prosecution committed Brady error.
5. There was cumulative error.
DISCUSSION
1. Trial court did not err by admitting Franklin’s extra-judicial statements.
Greenwood contends the trial court erred by admitting Franklin’s extra-judicial statements. He argues this evidence violated the Sixth Amendment confrontation clause and did not qualify as a prior inconsistent statement under Evidence Code section 1235. This claim is meritless.
a. Proceedings below.
When Franklin first took the stand as a prosecution witness, the following colloquy occurred:
“Q. Good afternoon, Mr. Franklin. [¶] Do you know a person by the name of Lazy [i.e., Greenwood]?
“A. I heard of him.
“Q. Do you see anyone here in court that you recognize today?
“A. No, not really.”
This was followed by:
“Q. Mr. Franklin, do you want to be here?
“A. No. I have nothing to say. I don’t know nothing and I don’t know nothing about this case, period.
“Q. Mr. Franklin, do you recall testifying at a preliminary hearing back in April of 2006?
“A. For the record, with all due respect, I’m in prison for drugs and throughout my history, I’ve had a drug problem and drinking problem, so... [¶]... [¶] I might have been drunk or something when I said that.”
When the prosecutor asked Franklin about specific portions of his preliminary hearing testimony, Franklin replied, variously, that he could not recall having given such testimony, he did not want to be testifying now, and the court proceeding had nothing to do with him.
“Q. After the fight in the Ralph’s parking lot, did you see Lazy again that day when he was looking for Loops?
“A. I have nothing to say to you. I don’t know why you guys keep asking questions. I have nothing to say, period.”
Referring to Franklin’s interview with Detective Alarcon, the prosecutor asked:
“Q. Do you recall the event where... Lazy [i.e., Greenwood] warned you to stay away from Loops [i.e., Patron]? [¶] Mr. Franklin, so you recall the event?
“A. I don’t recall that event. I plead the Fifth. I don’t want to talk about it. I don’t know nothing, period.”
And subsequently:
“The Witness: I don’t know what she’s [i.e., the prosecutor] talking about. That’s the truth. Okay?
“The Court: If that’s the truth, you don’t know what she’s talking about, then answer that. All we want is the truth.
“The Witness: The truth is I don’t want to be here. That’s the truth.”
However, Franklin did answer some of the prosecutor’s questions. And on cross-examination, he insisted he was not concerned about any repercussions from testifying: “I’m not worried about being harmed. I’m not concerned with my safety one bit, so that’s irrelevant to anything. I’m not scared for my life or nothing, so don’t even make that an issue, okay? I just don’t want to be here. I don’t want to have nothing to do with this. I’ll make that loud and clear.”
The trial court ruled Franklin’s prior inconsistent statements could be admitted because he was being purposefully evasive.
b. Franklin’s prior inconsistent statements were admissible.
Under Evidence Code section 1235 “prior inconsistent statements are admissible to prove their substance as well as to impeach the declarant.” (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) Section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Evidence Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
Greenwood argues these requirements were not met because, although Franklin got on the witness stand, he did not actually testify. We disagree.
“The ‘fundamental requirement’ of section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony. [Citation.] Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988....) However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’[s] prior statement [citation], and the same principle governs the case of the forgetful witness.’ [Citation.] When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]” (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220, fn. omitted, second italics added.)
In an attempt to sidestep the deliberate evasion rule, Greenwood cites two cases, but they are inapposite. In People v. Rojas (1975) 15 Cal.3d 540, a witness, who refused to testify after being granted immunity, was held in contempt and sent to juvenile hall for the duration of the trial. In this situation, Rojas held the inconsistency-in-effect rule was irrelevant because the witness had given no testimony whatsoever: “[W]hether [the witness’s] refusal to testify at all is in effect a ‘statement’ inconsistent with earlier statements is irrelevant in view of the fact that [the witness] did not testify at the hearing at which the question of admissibility of the testimony arose.” (Id. at p. 548.) Similarly, in People v. Rios (1985) 163 Cal.App.3d 852, one witness spent the trial in custody and another refused to answer any questions despite having been granted immunity.
But Franklin did not, like the witnesses in Rojas and Rios, completely refuse to testify. Franklin chose to answer some questions. He also mixed claims he could not remember with assertions he did not want to testify, often in the same breath. For example, asked if he had witnessed the fight between Greenwood and Patron, Franklin testified: “I don’t remember any of that. I don’t want to answer any more of your questions, either.” Asked if the gun Greenwood had been carrying looked like a revolver, Franklin testified: “I don’t know what it looked like. I don’t remember looking at no gun. I don’t remember seeing no gun. I don’t remember what you’re talking about. [¶] Don’t ask me no more questions, okay? I don’t want to be here. You’re making me be here against my own will.”
As noted, ante, Franklin began his testimony by acknowledging he knew Greenwood. Franklin later testified, “I’ve seen [Greenwood] around. I don’t know him personally.” Shown a picture of Patron, Franklin testified, “I’ve seen him around.” Asked about Fontanelle, Franklin testified, “I’ve seen him around. I knew him.” And, as noted ante, Franklin testified quite extensively on the question of his own credibility, denying defense counsel’s suggestions he was afraid he would suffer repercussions in prison if he testified against Greenwood.
“[T]he true rule under [People v. Green, supra, 3 Cal.3d 981] is that a witness’[s] prior statements are admissible so long as there is a reasonable basis in the record for concluding that the witness’[s] ‘I don’t remember’ responses are evasive and untruthful.” (People v. O’Quinn (1980) 109 Cal.App.3d 219, 225.) “Where a trial court’s finding that a witness’[s] I don't remember’ responses are deliberately evasive has a reasonable basis in the record, then the witness’[s] prior statements should be deemed inconsistent in effect with the in-court testimony and should be admissible under section 1235, even where the witness professes no recollection at all of the underlying events or of having made the statements.” (Id. at p. 226; see People v. Burciago (1978) 81 Cal.App.3d 151, 165-166 [where witness’s testimony consisted of claimed memory loss, several express denials and many refusals to answer, it constituted implicit denial allowing admission of prior inconsistent statements].)
Because there is a reasonable basis in the record for finding Franklin was being deliberately evasive, his prior inconsistent statements were properly admitted. (See People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220.)
c. No confrontation clause violation.
“In Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354]..., the United States Supreme Court announced a new standard for determining when the confrontation clause of the Sixth Amendment prohibits the use of hearsay evidence – i.e., an out-of-court statement offered for its truth – against a criminal defendant. Crawford held that this clause protects an accused against hearsay uttered by one who spoke as a ‘ “witness[ ]” ’ ‘ “bear[ing] testimony” ’ [citation] if the declarant neither takes the stand at trial nor was otherwise available for cross-examination by the accused.” (People v. Cage (2007) 40 Cal.4th 965, 969.)
Greenwood argues Crawford was violated because, even though Franklin took the witness stand, he was in effect unavailable for cross-examination. Not so.
United States v. Owens (1988) 484 U.S. 554 [98 L.Ed.2d 951], held a witness’s loss of memory does not make the witness unavailable for Confrontation Clause purposes: “ ‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” ’ [Citations.]... It is sufficient that the defendant has the opportunity to bring out such matters as the witness’[s] bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, [citation]) the very fact that he has a bad memory.... The weapons available to impugn the witness’s statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.” (Id. at pp. 559-560, italics omitted; see People v. Perez (2000) 82 Cal.App.4th 760, 766 [no Confrontation Clause violation where witness answered “ ‘I don’t recall’ ” to virtually all questions: “Even though she professed total inability to recall the crime or her statements to police, and this narrowed the practical scope of cross-examination, her presence at trial as a testifying witness gave the jury the opportunity to assess her demeanor and whether any credibility should be given to her testimony or her prior statements. This was all the constitutional right to confrontation required.”].)
The logic of Owens has not been undermined by Crawford. The witness in Crawford did not testify at all “because of the state marital privilege, which generally bars a spouse from testifying without the other spouse’s consent.” (Crawford v. Washington, supra, 541 U.S. at p. 40.)That situation is fundamentally different from a witness who takes the stand, testifies he or she cannot recall having made the alleged extra-judicial statement, and is subject to cross-examination. (See Mercer v. U.S. (D.C. 2004) 864 A.2d 110, 114, fn. 4 [Crawford “affirmed the principle that ‘when a declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements,’ ” and “[n]othing in that opinion suggests that the Court intended to limit its holding in Owens.”]; People v. Argomaniz-Ramirez (Colo. 2004) 102 P.3d 1015, 1018 [“Crawford does not affect the analysis for admission of out-of-court statements where the declarant testifies at trial”].)
Franklin appeared at trial and testified. He was cross-examined and then released subject to recall for further examination. The jury had the opportunity to assess Franklin’s demeanor as a witness and to evaluate the credibility of his extra-judicial statements. The confrontation clause was not violated.
In a footnote, Greenwood argues: “If the judge felt that the witness was being evasive...then the witness should have been held in contempt of court. It is submitted the court was under a duty to try that tactic to protect Appellant’s right to secure the attendance and cooperation of the witness.” However, Greenwood cites no authority to support this assertion. The failure to properly develop an argument is fatal on appeal. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].)
2. There was no judicial misconduct.
Greenwood contends the trial court committed judicial misconduct by exhibiting bias toward him. This claim is meritless.
Greenwood argues the trial court exhibited bias when it failed to acknowledge Franklin’s invocation of his Fifth Amendment right against self-incrimination. He also complains the trial court made a “thinly veiled accusation that defense counsel was in a criminal conspiracy with witness [Franklin] not to testify.”
“ ‘ “The misconduct of a trial judge which will warrant a reversal of the judgment should be so definite and apparent as to leave little doubt that it has resulted in depriving the accused of a fair and impartial trial.” ’ ” (People v. Walker (1957) 150 Cal.App.2d 594, 605; see, e.g., People v. Chong (1999) 76 Cal.App.4th 232, 244 [trial court’s strong response to defense counsel’s egregious misconduct did not constitute judicial misconduct “because the comments did not discredit the defense theory or create an impression that the court was allying itself with the prosecution”]; People v. Kozel (1982) 133 Cal.App.3d 507, 521 [although trial court should not have spoken off the record about an ongoing case, there was “no intemperate or inflammatory judicial statement” nor “any indication to the jury that the court had prejudged guilt”].)
The alleged criminal conspiracy accusation is based on the following sidebar colloquy:
“[Defense counsel]: I anticipate that [Franklin] will not answer my questions on cross-examination, at which time I will then make a motion to strike....
“The Court: He’s answering questions, counsel, and I’m going to order him [to answer] all questions that are mentioned to him. [¶] If you’re anticipating, because you have some sort of side agreement with him not to answer your questions,... we’ll get to that at a given point, but he’s answering questions. He may not be answering them the way both attorneys expect him to answer, but he’s answering questions. Both sides will continue to ask questions, and I’m going to leave him on the stand until he answers everybody’s questions.
“[Defense counsel]: Your Honor, respectfully, I have no side agreement with him.
“The Court: Then how do you know he’s not going to answer your questions, when he’s answering her [i.e., the prosecutor’s] questions?
“[Defense counsel]: He’s not really answering those questions. That’s why the testimony’s being read into the record.
“The Court: If he’s not answering the questions, if he’s being purposely evasive about what he remembers and I find he’s being purposely evasive, then his prior statements are inconsistent; therefore, they’re admissible. [¶] So that’s the ruling, and we’ll proceed with the witness.”
At a subsequent sidebar there was this further exchange:
“[Defense counsel]: Your Honor, the court has made a suggestion... that I have conspired with a witness in some
“The Court: No, I didn’t. It’s you anticipated something happening that I don’t see how, in light of his answers to the other questions, that you anticipated. I anticipate he’ll answer your questions about as well as he’ll answer the prosecutor’s questions.”
Although the trial court may have been intemperate in suggesting defense counsel had a “side deal” with Franklin concerning his testimony, it appears the court was reacting to defense counsel’s unwarranted characterization of Franklin’s testimony. In any event, because the trial court’s remark was made during a sidebar conference, it could not have prejudiced the jury. (See People v. Burnett (1993) 12 Cal.App.4th 469, 475 [alleged instances of “judicial misconduct or intemperance” which occurred “outside the presence of the jury... could not have prejudiced appellants”]; People v. Kagan (1968) 264 Cal.App.2d 648, 662 [even if trial court improperly stated theory of prosecution’s case, “the remark was out of the jury’s presence and so could not constitute misconduct, nor could it have been prejudicial”]; see also People v. Williams (2009) 170 Cal.App.4th 587, 630 [“even if it were misconduct, defendant has not shown how the prosecutor’s statement, made outside the presence of the jury, could have affected the outcome”].)
As for the trial court’s alleged failure to acknowledge Franklin’s invocation of his right against self-incrimination, we conclude there was no such invocation. Greenwood is referring to Franklin’s response when asked if he remembered Greenwood’s warning him to stay away from Patron: “I don’t recall that event. I plead the Fifth. I don’t want to talk about it. I don’t know nothing, period.” But this was not a clear invocation of Franklin’s right against self-incrimination. In the same breath in which he mentioned the Fifth Amendment, Franklin also said he did not recall Greenwood’s warning him about Patron. Franklin never mentioned the Fifth Amendment again. The trial court did not err by declining to treat this fleeting reference to the Fifth Amendment as an intended invocation. (Cf. People v. Rundle (2008) 43 Cal.4th 76, 115, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [Fifth Amendment has not been invoked “when the defendant’s statements were merely expressions of passing frustration or animosity toward the officers”].)
There was no judicial misconduct in this case.
3. Evidence of fight with Hamilton was properly admitted.
Greenwood contends the trial court erred by admitting evidence he assaulted Hamilton while they were in Las Vegas. This claim is meritless.
“Evidence of prior criminal acts is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge...),’ but not to prove the defendant carried out the charged crimes in conformity with a character trait. (Evid. Code, § 1101.)” (People v. Lewis (2001) 25 Cal.4th 610, 636.) “A trial court’s ruling admitting evidence of other crimes is reviewable for abuse of discretion.” (People v. Hayes (1990) 52 Cal.3d 577, 617.)
Greenwood argues the trial court should have excluded Hamilton’s testimony describing the fight they had in Las Vegas, during which he punched her, choked her and threw her against a wall. He argues this evidence was not only irrelevant to any probative issue, but it was highly prejudicial because “[t]he fight [with Patron had been] over a woman. Allowing the prosecution to put on evidence that the defendant had struck [Hamilton] while arguing with her, and then that he had beat, kicked and choked her, cast him as a brutal and aggressive individual when it came to arguments with or about women.”
The trial court ruled the evidence was admissible to prove Greenwood was afraid that Hamilton, having announced she was leaving him, would go to the police about the shooting. The trial court reasoned there would not be “any undue prejudicial effect from a battery... when you’re trying a murder case.” The trial court also instructed the jury on the limited purpose for which the evidence was being admitted.
Other crimes evidence is admissible to show a defendant’s consciousness of guilt. (See People v. Daly (1992) 8 Cal.App.4th 47, 56-57 [evidence defendant attempted to murder police officers admissible to show consciousness of guilt for having committed earlier robberies]; People v. Perry (1972) 7 Cal.3d 756, 780, disapproved on another ground in People v. Green (1980) 27 Cal.3d 1, 34 [“Evidence that a suspect who knows he is sought by the police tells a friend ‘I can’t be taken,’ tries to obtain a gun and attempts to flee indicates that he is motivated by fear of apprehension for a serious crime, one of more consequence than the nonsupport charge Perry claims motivated his flight.”] Greenwood’s prejudice argument is unpersuasive. The prosecution theory was not that Greenwood’s motive for trying to kill Patron was anger over a woman, but rather his humiliation at having lost the fight to Patron.
The trial court also reasoned the evidence went to Hamilton’s “state of mind in testifying,” presumably referring to the implication that in testifying against Greenwood she had to overcome her legitimate fear of him. Although evidence of uncharged conduct is not generally admissible “solely to... bolster the credibility of a witness” (People v. Brown (1993) 17 Cal.App.4th 1389, 1397), that was not the sole purpose here because the evidence also went to Greenwood’s consciousness of guilt.
The trial court did not abuse its discretion by admitting this evidence.
4. There was no Brady violation.
Greenwood contends he was denied a fair trial because the prosecution did not properly turn over discovery as mandated by Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194]. This claim is meritless.
a. Legal principles.
A new trial for failure to disclose evidence favorable to the defense is required only if there is a reasonable probability its disclosure would have affected the verdict. (See United States v. Bagley (1985) 473 U.S. 667, 682 [87 L.Ed.2d 481] [“A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”].) A defendant must show the undisclosed information was material, in the sense that its nondisclosure undermines confidence in the trial outcome, because “not every nondisclosure of favorable evidence denies due process.” (In re Brown (1998) 17 Cal.4th 873, 884.)
“There are three components of a true Brady violation: The evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286].) “Materiality... requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.” ’ [Citation.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1043.)
b. Discussion.
Greenwood asserts the prosecutor committed Brady violations by not disclosing the following information: (1) in a related accessory prosecution (§ 32), Hamilton entered a plea agreement under which she was to receive a reduced sentence in return for testifying against Greenwood; (2) Hamilton received relocation fees for her testimony; and, (3) Castrellon gave a recorded statement to the police. However, the record makes clear there were no Brady violations.
Section 32 provides: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”
The information about Hamilton’s plea agreement was not disclosed until trial had already started. As the trial court acknowledged, “[O]bviously, if there is a promise of leniency or some sort of agreement with Ms. Hamilton, that should have been revealed.” However, Hamilton was still on the witness stand when this information was disclosed and the trial court told defense counsel, “So if you want to cross-examine on it, be my guest. If you want to call witnesses on the issue, be my guest. And we’ll consider any jury instructions at the appropriate time if there is a discovery violation.” Defense counsel proceeded to cross-examine Hamilton about the plea agreement. In these circumstances, we cannot see how delayed disclosure of the plea agreement could have affected the verdict.
Although it is not entirely clear from the record, the information about relocation arrangements was apparently disclosed by the trial court after it was presented with a request for payment of relocation expenses. The trial court announced, “I thought that that might be something that [defense counsel] should have been made aware of if he wanted to bring it up to the jury, so I told him today.” Based on this disclosure, defense counsel moved for a mistrial. The court acknowledged any information about relocation arrangements should have been turned over to the defense, but pointed out defense counsel had been planning to recall Detective Nuttall as a witness anyway, and that Nuttall could be asked about the arrangements then: “So your motion for mistrial is denied, but your motion to reopen evidence is granted.” Nuttall then testified there had been routine discussions about paying Hamilton relocation expenses when the trial was over, but no formal agreement had yet been signed, and any such agreement would be expressly contingent on Hamilton’s having testified truthfully. In these circumstances, we cannot see how delayed disclosure of the potential relocation arrangement could have affected the verdict.
Regarding the Castrellon information, it appears from the record her alleged tape-recorded police statement never existed. Defense counsel believed there was a tape because of a notation on a police report but, according to the prosecutor and Detective Nuttall, that notation was erroneous and no such tape-recorded statement existed. When defense counsel indicated he wanted to have someone from the police department testify about the non-existent tape, the trial court ruled: “Well, we don’t need testimony. Discovery is an obligation, an obligation to turn over. The People are representing to the court that no tape exists. He’s [i.e., Detective Nuttall] double-checking that. [¶] I don’t see what’s to be resolved by putting someone on the stand to say whether or not something exists or not. If he says it doesn’t exist, it was written in the report in error, if that’s ever found out not to be the truth, there would be a discovery violation and we would deal with it.” Hence, with regard to this claim, there does not appear to have been any failure to disclose evidence.
There were no Brady errors here.
5. Cumulative error.
Greenwood contends that, even if harmless individually, the cumulative effect of these claimed trial errors mandates reversal of his convictions. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.