Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 195412.
OPINION
Reardon, J.
A jury convicted appellant Francisco Ortiz of second degree murder and arson of an inhabited structure. (See Pen. Code, §§ 187, 189, 451, subd. (b).) Sentenced to 23 years to life in prison, Ortiz appeals. He contends that (1) the trial court erred by admitting his statements made to jailhouse informant Richard French because they were obtained in violation of his right to counsel; (2) discovery violations and evidence concealed by the prosecutor about French’s statements to police in other cases denied him a fair trial; and (3) the trial court erred by allowing a police officer to testify that he believed that Ortiz was lying when he denied involvement in the underlying crimes. We affirm the judgment of conviction.
All statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
A. Smith’s Death
On the morning of Tuesday, February 24, 2004, 25-year-old Felicia Smith was killed at her Bay Street home in San Francisco. As her body lay on her bed, the bed was set on fire. Smoke was first seen coming from the chimney of the house between 7:00 and 7:30 a.m. that morning. Firefighters were summoned between 8:30 and 8:40 a.m. When they arrived at the house, they could see smoke coming out of the ground level of house. The fire had smoldered, producing smoke for several hours after it began. It was contained on the bed in Smith’s ground floor apartment where firefighters found her charred body. The area around the mattress did not sustain significant burn damage. The fire was quickly extinguished and arson investigators were contacted.
All calendar dates refer to the 2004 calendar year unless otherwise indicated.
Nothing appeared to be missing from the house, but smoke detectors had been disconnected or removed. The position of the body on the bed was unusual—arms and legs askew, with the feet at the head of the bed atop the remains of a pillow. An uncapped Jim Beam bottle—partly full of liquid, wrapped in a blanket—was found upright under the bed. The pillow and the bottle were at opposite ends of the bed—another physical arrangement that seemed odd. Arson experts opined that the fire had been intentionally set on the mattress, probably with an open flame.
Ortiz’s fingerprints were not found on the smoke detectors. Later, Smith’s parents discovered that a photograph of Ortiz and a camera were missing from their upstairs dining room.
No fingerprints were found on the bottle.
B. Investigation
About 9:00 a.m., San Francisco police learned that a charred body had been found at the Bay Street address, but Smith’s identity had not then been determined. The name and telephone number of an incoming caller was recorded along with a message left on an answering machine there about 3:10 a.m. The caller implored Smith to let him back into the house, to talk with him. Arson investigators brought the tape-recorded message to the attention of police.
Between 11:00 a.m. and noon, San Francisco Police Inspector Dennis Maffei called the telephone number and spoke with appellant Francisco Ortiz, who agreed to meet with police. Over the next few days, Maffei interviewed Ortiz several times. The first interview took place about 12:30 p.m. on February 24 at a restaurant where Ortiz worked as a cook. Maffei audiotaped that interview. At this point, Ortiz was not a suspect—the police were merely gathering information about a suspicious death.
Maffei told Ortiz that Smith had been found dead—news that elicited an emotional response from Ortiz. He told Maffei that Smith had been his girlfriend since the previous summer. He also talked about being with Smith at her parents’ Bay Street home on Monday, February 23. Her parents were out of the country and he was staying with Smith while they were away. Ortiz cooked dinner. Both of them consumed alcohol with dinner.
Smith and Ortiz had known each other years earlier, when she was much younger. They had broken up briefly in December 2003, but reunited in January 2004.
Ortiz told Maffei that Smith was taking antidepressants and smoking marijuana that night, too. He reported that Smith got angry and violent when she drank alcohol and she took various medications. Ortiz also mentioned a problem that she had with a boyfriend named James who had tried to strangle her and against whom Smith said that she had obtained a restraining order.
Ortiz said that after dinner, he and Smith had sexual intercourse. Later on in the evening of February 23, he and Smith went out to a bar in San Francisco, where they played several games of pool and had more beer. After they returned home, Smith pushed him out of her house. By this time, Ortiz told police, it was about 1:00 a.m. on Tuesday, February 24. Within 10 minutes, he went back to the house and knocked on Smith’s window. Smith was still angry with him—she poured beer on him and told him to go away. Ortiz then walked to his Hyde Street apartment. He told police that he arrived at his apartment—where he said that he lived alone—about 2:00 a.m. He slept until about 7:00 a.m. He called Smith by 7:30 a.m., leaving a message for her but she did not call him back. He went to work about 11:00 a.m. that morning.
Ortiz did not have any prior criminal record, so there was no identifying information about him in criminal justice records. After the initial interview, he agreed to allow police to take his fingerprints and photograph. Maffei gave Ortiz several numbers where he could be reached. Later, Ortiz’s fingerprints were compared with city, state and federal criminal justice databases, without any match.
Ortiz’s wife Emilia Canet later testified that on February 24, Ortiz came into their Hyde Street apartment about 7:15 a.m., looking tired and upset, smelling of alcohol. She sensed that something was wrong—she suspected that Ortiz had lost his job. He had been drinking a lot in recent weeks and she was concerned about him. Ortiz brought a backpack home with him and took out the garbage that morning. That evening, Maffei came to the apartment, where he tape-recorded an interview with Canet. They searched Ortiz’s clothing, found the backpack with his clothes in it, and retrieved a disposable camera from the garbage.
Canet and Ortiz had been married for almost 12 years and had an 11-year-old son. Soon after their son was born, the couple ceased having sexual relations. Ortiz’s drinking and infidelity were issues in the marriage. Ortiz often left for a few days at a time and did not spend the night at the apartment on a regular basis. Canet treated it as if they were separated. She did not know Smith. In November 2003, she saw Smith’s name on Ortiz’s cell phone—he told her that he had met Smith at work and had had a brief affair that was already ended. They did not speak of Smith after that until two days after Smith’s death, when Ortiz told Canet that he and Smith had argued.
Maffei later testified that he recalled Canet saying that Ortiz appeared to have been crying.
On February 25, the medical examiner identified the remains from the Bay Street fire as the body of Felicia Smith. The medical examiner concluded that Smith had died before the fire was started. By this time, arson investigators had also concluded that the fire had been deliberately set. These facts and the inconsistencies between Ortiz’s statement and the information they learned from Canet caused police to focus on him as a suspect. They decided to interview him again.
When Maffei got to work on the morning of February 26, a telephone message was waiting for him from Ortiz. He was upset and crying during the call. Ortiz told Maffei that he felt guilty for leaving Smith alone. He wanted to talk with Maffei about “the accident.”
Ortiz was brought in for questioning by Maffei again that evening. This interview was videotaped. By this time, Maffei regarded Ortiz as a suspect and Ortiz was given his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) before the interrogation began. In this interview, the police learned new details about the night before Smith died. According to Ortiz, about midnight, when they were finished playing pool, Smith wanted to go to a second bar, but Ortiz was too tired. Smith asked Ortiz for some more marijuana, but he refused. As they walked back to the Bay Street house together, he knew that Smith was angry with him. She appeared to be intoxicated—her balance was off and her speech was slurred.
Back at the house, Smith smoked marijuana and drank beer while Ortiz watched television. They argued because she wanted him to get her more marijuana. Smith pushed Ortiz several times in an aggressive manner. He got his clothes and left. Smith told him she did not want him at the house anymore.
Ortiz admitted that he did not live in the Hyde Street apartment alone, as he had earlier told police. He told police that he had slept in the basement on the night that Smith died so he would not disturb his wife, who found the smell of alcohol upsetting. Ortiz said that he did not sleep at all that night, worrying about Smith. He told police that he called Smith’s cell phone at 7:15 or 7:30 a.m. from his cell phone.
Ortiz told Maffei that he felt guilty about Smith’s death—he believed that if he had stayed with her, he could have prevented it. The police told Ortiz that arson investigators believed that Smith’s bed was deliberately set on fire. They had ruled out the possibility that the fire had started because Smith fell asleep with a burning cigarette in her hand. The medical examiner and arson investigators believed that Smith was dead before the fire started.
The police questioned Ortiz about a message he left on Smith’s answering machine at the Bay Street house—a message that was sent at 3:10 a.m. on the morning of February 24. During the interview, the police suggested that Ortiz was not on Hyde Street when he made that call, but was still near the Bay Street house. Eventually, Ortiz admitted that he was still in front of Smith’s house about 3:00 a.m. This contradicted his earlier statement that he had left Smith’s house almost two hours earlier.
Maffei had gotten a search warrant for Ortiz’s cell phone records, but he had not actually obtained these records by the time of the February 26 interview.
Inspector Maffei tried to obtain a confession from Ortiz, even going so far as to lie to him about some of the evidence that he said that he had. He accused Ortiz of lying. Ortiz repeatedly denied killing Smith or setting the fire. He contacted the public defender’s office, which advised the police that Ortiz would not consent to any further interviews.
C. Arrest and Preliminary Proceedings
On October 18, Ortiz was arrested and charged with first degree murder and arson of an inhabited structure. (See §§ 187, 451, subd. (b).) Bail was set at $1 million. On October 20, a San Francisco newspaper reported that Ortiz had been arrested for killing his girlfriend after a quarrel.
On November 17, San Francisco Police Inspector Tom Cleary told Maffei that a jail inmate named Richard French said that he had information about the Felicia Smith case. French had helped Inspector Cleary on another case. Maffei verified that French and Ortiz were housed in the same part of the county jail. Then, on November 17, Maffei had French brought in for an interview.
This interview was videotaped, but the tape was not audible.
Maffei had never met French before. French related statements that Ortiz made to him, confessing to having killed Smith. He said that Ortiz told him that he had killed his girlfriend because she threatened to tell Ortiz’s wife that she was pregnant, even though she was not. French indicated that he was willing to testify in the Ortiz case. He asked for no consideration. Maffei did not pay French any money or make French any promises, nor did he attempt to influence the prosecutor on French’s case.
After their initial meeting, Maffei returned French to jail and the sheriff returned French to his cell near Ortiz. He did not make any arrangements to place French and Ortiz in the same cell. Maffei did not tell him not to talk to Ortiz, nor did he pose any specific question for French to ask. Maffei did not furnish his case file, photographs or tapes about the Ortiz case to French. French and Ortiz continued to talk in jail, although Ortiz did not say anything as specific as he had said before. Still, French called Maffei and left voicemail messages for him whenever Ortiz said anything that seemed important about his case.
French met with Maffei again on November 18, the day after their initial meeting. This time, he told Maffei that Ortiz’s motive for killing his girlfriend was because she was breaking up with him. At a third interview on November 22, French mimicked a hand gesture—circling something with his hands—that he told Maffei that Ortiz had displayed when telling French that he felt his anger “go up” as Smith died. French had not gestured in this manner at the two earlier meetings.
This interview was not taped.
This interview was not taped.
Shortly after this third meeting with Maffei, French was moved to a different part of the jail from that in which Ortiz was housed. He asked Maffei to arrange for him to be transferred back to Ortiz’s cell, but Maffei refused. French did not call Maffei again about the Ortiz case, but he met with Maffei to pass along information about another case. Shortly before Ortiz’s preliminary hearing, Maffei told French that he would have to testify at that hearing. He later told the trial court that Maffei did not give him the impression that he would be released after the preliminary hearing.
French testified in April 2005 at Ortiz’s preliminary hearing, recounting the incriminating statements that he said that Ortiz told him. On the basis of this and other evidence, a magistrate found that there was sufficient cause to believe that Ortiz was guilty of murder and arson of an inhabited structure to justify binding him over for trial.
D. Pretrial Matters
In May 2005, Ortiz was charged by information with Smith’s murder and arson of an inhabited structure. (See §§ 187, 451, subd. (b).) He pled not guilty to both charges. During discovery, Ortiz sought further information about French, who was alleged to have heard confessions from as many as six persons with whom he had been incarcerated. He submitted questions to ask of each officer to whom French recounted the various confessions. He also sought French’s psychiatric records. In August 2005, French’s October 2003 burglary case was still pending—his trial was not expected to begin until after he testified at Ortiz’s trial.
In September 2005, the prosecution moved for a foundational hearing to exclude and limit some defense evidence. (See Evid. Code, § 402.) Ortiz filed his own pretrial motion to exclude certain prosecution evidence as more prejudicial than probative. He also sought inter alia a foundational hearing about the admissibility of his confession and an order compelling prosecutorial disclosure of all evidence favorable to him. (See Evid. Code, §§ 350, 352, 402; see also CALJIC No. 3.20.) By this time, French—who had been released from jail in May 2005—was jailed again in San Mateo County. He was returned to San Francisco from San Mateo County for a hearing on the motions in limine.
The motion originally sought a ruling on the admissibility of any third party culpability for the murder or arson. Ortiz opposed the motion. By the time the motion in limine was argued, the prosecutor had withdrawn it.
The trial court held a hearing on these in limine motions. (See Evid. Code, § 402, subd. (b).) French had a long criminal history. He explained how he came to be jailed with Ortiz. He had been arrested in October 2003 for first degree burglary and had been placed in San Francisco jail. He was on parole at the time and a parole hold had also been placed on him. By the following June, he had completed his term for his parole violation and his bail had been reduced to $10,000. He was released on bail, but when he failed to appear at a court hearing, a bench warrant issued for his arrest. He was arrested on that warrant on November 5. At the time of the arrest, French was driving a stolen vehicle and was being held for another parole violation. Resolution of the October 2003 residential burglary charge was still unresolved at that time, more than a year later.
No new charges were filed with regard to the stolen vehicle, although this incident formed the basis of the allegation that French violated parole.
French was assigned to one part of the jail, but he asked to be moved to another part where he had been more comfortable before. On November 12, he was moved to the part of the jail where he met Ortiz. French told police that Ortiz learned that French had a prior murder conviction. He asked French about the difference between homicide law at the time that French had been convicted and the law in effect at that time. In one of their conversations, Ortiz made comments that prompted French to call Inspector Cleary.
French told the trial court what Ortiz had said to him in jail—that his case was like that of Scott Peterson, except that his girlfriend was not pregnant; that women needed to understand their place; that his girlfriend had threatened to tell his wife that she was pregnant, even though she was not; and that he feared losing his relationship with his wife and son if his girlfriend did so. French also recounted that Ortiz told him that he did not mean for it to happen, but that matters became “heated.” Ortiz told French that when his girlfriend passed, all the anger and energy left him. As Ortiz said this, he made a hand gesture that mimicked strangulation. He also told French that he was not worried about DNA evidence because he was certain that there would be DNA present that was not his.
French also testified that no one in the police department asked him to speak to Ortiz; no one made a specific offer of consideration, although he hoped for consideration at sentencing; and the Ortiz prosecutor had only told him to tell the truth. The trial court denied Ortiz’s motion to exclude this statement on grounds pursuant to Massiah v. United States (1964) 377 U.S. 201 (Massiah), concluding that French did not act as a government agent when he obtained this statement from Ortiz. Later, Ortiz objected that French’s statement that Ortiz had compared his case to that of Scott Peterson was evidence that should be excluded as more prejudicial than probative. (See Evid. Code, § 352.) The trial court also overruled that objection to this proffered evidence.
E. Trial
1. Ortiz’s Statements and Physical Evidence
At trial, the jury heard and saw audio and videotape recordings of Ortiz’s interviews with Maffei and the telephone messages that he left for Smith and Maffei. It also viewed a videotape of the crime scene taken after the fire was put out but before the medical examiner removed Smith’s body. An expert fire scene analyst opined that the fire was intentionally set and that it smoldered for at least an hour before it was first observed about 7:20 a.m. The fire may have begun five hours before it was extinguished about 8:45 a.m.—perhaps as early as 3:45 a.m.
Smith’s body was so badly burned that the medical examiner was unable to determine an official cause of death or to set the time of death. As Smith was dead before the fire began, death by strangulation was a logical, reasonable explanation for her death. She had a blood-alcohol level of 0.13. Her body was not tested for marijuana, but she had no other prescription or illegal drugs in her system.
One key fact tending to establish the range of time within which Smith was killed did come before the jury, which learned that Smith left a message on a friend’s answering machine at 1:36 a.m. on the morning of February 24.
Smith’s vagina and anus contained semen. That found in her vagina was consistent with Ortiz’s DNA. The semen could not have come from several other men with whom Smith was linked.
The prosecution also offered evidence that Smith had become pregnant with Ortiz’s child and that Smith had an abortion in late January 2004. Ortiz had seemed angry about her decision to have the abortion. Their stormy relationship had been punctuated by loud arguments but no physical violence. On Monday nights, Smith and Ortiz would often drink and sometimes quarrel.
Shortly before she died, Smith told her ex-husband that she feared that an ex-boyfriend—someone other than Ortiz—was stalking her. During the investigation into her death, several men connected to Smith were interviewed and DNA samples were taken from them. DNA belonging to an unidentified human male was found under Smith’s fingernails at the time of her death.
On February 26, Ortiz gave a DNA sample and he was later excluded as a possible contributor of this DNA evidence.
2. Cell Phone Records
On the night that Smith died, cell phone records showed that calls were made from Ortiz’s cell phone to Smith’s Bay Street home at 3:11 and 3:13 a.m. The 3:11 a.m. call was relayed from a cell tower—or cell site—located atop the roof at 2620 Jones Street in San Francisco. Calls were also made from Ortiz’s cell phone to Smith’s cell phone at 3:13 and 3:27 a.m. The first of Ortiz’s calls to Smith’s cell phone was relayed from a cell site at 2000 Van Ness Avenue, while the second was relayed by the cell site on Jones Street.
The Jones Street cell site was near the intersection of Jones and Bay Streets. The fire occurred at Smith’s Bay Street home between Polk and Larkin Streets. We take judicial notice of a San Francisco map showing that this site was within a few blocks of Smith’s Bay Street home. (See Evid. Code, §§ 452, subd. (h), 459, subd. (a).)
The Van Ness Avenue cell site was located near Jackson Street and Van Ness Avenue. Ortiz lived on Hyde Street between Geary and O’Farrell Streets. We take judicial notice of a San Francisco map showing that this site was about halfway between the Bay Street house and Ortiz’s Hyde Street apartment. (See Evid. Code, §§ 452, subd. (h), 459, subd. (a).)
After 3:27 a.m., no more calls were made from Ortiz’s cell phone until 7:12 a.m., when calls were placed first to the Bay Street home and then to Smith’s cell phone. Both of these calls were relayed by a cell site at 965 Sutter Street in San Francisco. A city the size of San Francisco has many cell sites. A cell phone call is usually relayed through a cell site that is closest to the calling cell phone. If the cell phone’s line of sight to the nearest cell site is obstructed, the call will be relayed through another cell site that is not obstructed. Based on this evidence, Maffei opined that Ortiz’s 3:00 a.m. calls to Smith came from the area near the Smith home on Bay Street, while his 7:00 a.m. calls to her originated in the Hyde Street area near Ortiz’s apartment.
The Sutter Street cell cite was between Hyde and Leavenworth Streets. We take judicial notice of a San Francisco map showing that this site was within a few blocks of the Hyde Street apartment. (See Evid. Code, §§ 452, subd. (h), 459, subd. (a).)
3. Evidence of Jailhouse Confession
Before Richard French testified, the jury was admonished to view his testimony with caution. He told the jury that he and Ortiz were in jail together. While in jail, Ortiz told him that he had killed his girlfriend, with whom he had quarreled. She was angry that he would not leave his wife. Ortiz feared that his wife might prevent him from visiting his son. His girlfriend threatened to tell his wife that she was pregnant with his child, even though she was not. He also likened his situation to the Laci Peterson case, saying “[M]y case is like that, except mine wasn’t pregnant.” A verdict had been announced in the Peterson murder case shortly after the two men were housed together in the same part of the jail.
French told the jury that Ortiz knew that French had been convicted of murder. Ortiz asked whether French felt or saw the person leave the body at the time of the murder. French did not understand what he meant. Ortiz said that when his girlfriend died, he watched “it” leave the body—he felt the life go out of her—and he felt all his anger going with it. As he said this, Ortiz used a gesture that mimicked strangulation.
French contacted Inspector Cleary with this information and Maffei spoke with him about it. At their first meeting, he told Maffei that Ortiz had likened his own case to the Peterson case. At a second meeting, French told Maffei that Ortiz’s motive for killing his girlfriend was because she was breaking up with him. At their third meeting, French showed Maffei the hand gesture that Ortiz used. By this time, French had been moved out of Ortiz’s part of the jail. He asked Maffei to arrange to have him moved back, but Maffei would not do so.
On cross-examination, Ortiz brought out evidence that French had cited three different motives for killing Smith—to keep her from telling his wife about their relationship, to prevent his wife from keeping him from seeing his son, and because Smith was breaking up with him—at the preliminary hearing, the pretrial evidentiary hearing, and at trial, respectively.
French admitted that he had testified for the prosecution before—in a drug case, in two child molestation cases, and in a murder case. He had been providing information to the police for almost 30 years. He had been convicted of so many offenses that he did not know how many there were. He was 49 years old and had been in trouble since he was a teenager. He had been addicted to methamphetamine and heroin for more than 30 years. He stole to support his drug habit. He had been convicted of first degree murder, auto theft, burglary, and drug possession offenses. He had been sent to prison for various offenses and had been returned to prison for violations of parole.
More recently, French had been convicted of impersonating another person, of failing to appear in court, and of petty theft. He had pled guilty to receiving stolen property and possession of false identification, but had not yet been sentenced for those offenses. He might be sentenced to as much as two years in prison for those offenses. His October 2003 burglary case was also unresolved at the time of Ortiz’s trial. He expected to serve a year in jail for that offense.
French also testified about his history of providing information to police. At the time of his October 2003 arrest, French had contacted San Francisco Homicide Inspector Tom Cleary. French passed on a cellmate’s confession and Cleary added $40 to his jail account. In May 2004, French told Inspector Kervin Silas that another cellmate had confessed a murder to him. Inspector Silas spoke to French’s parole officer on his behalf. During this period of incarceration, French also told Inspector Walsh about a third cellmate who had confessed a homicide to him.
The jury learned that once, when he had been arrested, he offered to provide information about a woman who would be transporting methamphetamine if the arresting officer would agree not to send him to jail. He had also offered authorities information about a plot to kill a police officer that he learned about while in a San Francisco jail cell. Three other inmates asked him to hire a hit man to kill the officer. They intended to give him money to hire the hit man. Police took him out of jail, placed a wire on him and sent him to the location where the plot was to be discussed. French was not able to provide evidence of a plot. This incident led to a charge of providing false information to the police and a finding that he had violated the terms of his probation.
In September 2005, French was returned to San Francisco County jail so he could testify at a pretrial hearing in the Ortiz case. During the month between that hearing and his October 2005 trial testimony, French remained jailed in San Francisco. In that month, he had already contacted Inspectors Maffei and Cleary about yet another cellmate who provided information on another murder.
French admitted that he sometimes had auditory and visual hallucinations as the result of a mental disorder. He took psychotropic medication for this disorder. If he did not get his medication, he would hear voices. Sometimes, he had seizures. Shortly before Ortiz’s preliminary hearing, he told someone in the jail psychiatric services that he might be leaving jail later that week. In fact, French testified at the preliminary hearing on April 27, 2005, and was released on his own recognizance on May 12, 2005. Before he was released, French told Inspector Brian Danker that another inmate had confessed to committing a home invasion robbery.
French also admitted that he had been interviewed by a Bay Guardian reporter after he told Maffei what Ortiz had said to him. In the article, he was quoted as having told the reporter that a police officer once left him alone with someone else’s case file before French offered a jailhouse confession citing some of the details from that file. He testified that Maffei had told him to tell the truth. He had never offered French money or shown him information about the Ortiz case. Maffei confirmed many points of French’s testimony when he offered his own testimony about his dealings with French.
At the close of the People’s case-in-chief, Ortiz moved for acquittal on the charge of first degree murder, contending that the prosecution presented insufficient evidence to support a conviction of first degree murder. That motion was denied. (See § 1118.1.)
4. Defense Case
In his defense, Ortiz offered the testimony of various police witnesses tending to undermine French’s credibility by offering detailed descriptions of his past criminal conduct and false acts. These law enforcement officials painted a picture of French as a longtime heroin addict who regularly committed property crimes in order to support his habit. He was often found in a stolen vehicle, bearing false identification, and in possession of stolen property. He regularly gave police a false name, making it difficult to determine whether warrants were pending against him, as there often were. More than once after being detained for shoplifting, French faked a seizure in an apparent bid to gain sympathy from store officials. In another instance, French offered to provide police with information about an upcoming drug sale in exchange for his release or a lesser charge.
The jury heard extensive evidence about an incident in which French offered false information to police in order to escape from jail. San Francisco Police Sergeant Stephen Gudelj testified that in October 1996, he investigated a case after French reported that three of his fellow cellmates were conspiring to kill another San Francisco police officer. An undercover police officer posed as the potential hit man during a telephone call from one of the supposed conspirators that French appears to have arranged for police. Then, French was released from jail in order to obtain the funds that one of the supposed conspirators trusted him to obtain to pay the supposed killer. Gudelj obtained court approval for French’s release and sent him alone to two different locations to collect the money while wearing a hidden transmitter and recording device during each visit. Eventually, one of the other alleged conspirators told police that there was no conspiracy to kill the officer—that the whole plan was French’s idea to get the two of them out of jail. In all, the investigation turned up no evidence of any real plot to kill a police officer.
A motion to revoke French’s felony probation was filed based on his report of the alleged plot to kill a police officer. The primary basis of the motion to revoke probation was French’s alleged conspiracy to escape from county jail by concocting a phony plot. Gudelj testified against French at the hearing on the probation revocation motion, as did two of the alleged co-conspirators. The trial court revoked French’s probation and he was sentenced to state prison for two years as a result of this incident.
French’s conviction after revocation of probation was affirmed by this District in 1998. (People v. French (Aug. 20, 1998, A077615) [nonpub. opn.].)
Ortiz also offered the testimony of several of Smith’s other former companions. Her former boyfriend, James Wing, told the jury that the two were romantically involved from January 2002 through May 2003. He believed that Smith had been faithful to him during this time. He was a recovering alcoholic. During most of the time that he saw Smith, he did not drink, which created a conflict in their relationship. Increasingly, she was using marijuana and taking prescription drugs, prompting arguments. In May 2003, Wing was arrested on domestic violence charges after a verbal dispute with Smith escalated and she became physically violent toward him. He denied inflicting any violence against her, but the court placed a three-month restraining order against him. After the restraining order lapsed in August 2003, Smith called Wing once, but he was no longer interested in seeing her again. Wing also testified that Smith showered and washed her hair daily and got a manicure every two weeks. He denied having anything to do with her death.
Jose Cornejo testified that he met Smith in 1997. When each of them were getting divorced in 2001, they became lovers. They met every few months until the fall of 2003 for an intimate encounter, but were not in a serious relationship.
Tanith Nichols was Smith’s former husband. He told the jury that he and Smith were married in June 1999. Their relationship was sometimes fiery. Although they separated in 2001, they kept in contact. Once, before they separated, Smith scratched his arm with her nails during an argument. Four years later, the scars were still visible. Smith practiced good hygiene, taking regular showers and getting her nails manicured.
Nichols spoke with Smith by telephone on February 22, two days before she died. She seemed anxious and distracted. She told Nichols that an ex-boyfriend that she did not want to talk with had been calling her. She felt threatened, like someone was following her. Alexis Rabourne, Smith’s therapist from May 2003 to February 2004, testified that in December 2003, Smith complained that she had been getting “weird” phone calls, including some from a caller breathing into the telephone. Smith did not believe that the caller was James Wing. Rabourne saw Smith six times after that session, but Smith did not mention her concern again.
F. Verdict and Sentence
The jury acquitted Ortiz of first degree murder, but found him guilty of the lesser included offense of second degree murder. He was also convicted of arson of an inhabited structure. (See §§ 187, 451, subd. (b).) He was sentenced to a total term of 23 years to life in prison—an upper determinate term of eight years for arson and a consecutive, indeterminate term of 15 years to life for second degree murder.
II. MASSIAH
A. Trial Court Ruling
First, Ortiz contends the trial court erred by admitting French’s testimony about his jailhouse statements. He argues that the statements he made to French were obtained in violation of his Sixth Amendment right to counsel. (See Massiah, supra, 377 U.S. 201, 205-207.) He reasons that French acted as a government agent deliberately eliciting incriminating statements from him. Ortiz asserts that this violation of Massiah was prejudicial.
In the trial court, Ortiz moved to exclude French’s testimony as taken in violation of Massiah, alleging that French was a government agent who deliberately elicited incriminating statements from him. After hearing, the trial court ruled that French was not a government agent because the police did not create a situation likely to provide it with incriminating information from Ortiz. It noted that the police did not find out about French until he volunteered information to them. It deemed French to have acted on his own initiative rather than at the behest of the government. It found that no promises or representations of leniency were made in this matter. Thus, the trial court ruled that French’s testimony about what Ortiz told him was admissible and it denied Ortiz’s motion to exclude that testimony on Massiah grounds.
In October 2006, we granted Ortiz’s request for us to take judicial notice of two documents reflecting French’s November 2005 guilty plea and December 2005 grant of probation for the October 2003 burglary. As the events reflected in these exhibits occurred after the Ortiz court issued its Massiah ruling in September 2005 and after Ortiz was convicted in early November of that year, we find these exhibits to be irrelevant to the determination of whether the trial court properly concluded that French was not a government agent within the meaning of Massiah. (See Evid. Code, §§ 210, 350.)
B. Legal Background
Once an adversarial criminal proceeding has been initiated against an accused, the constitutional right to counsel attaches. From that time on, any incriminating statement that the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against that defendant. (Massiah, supra, 377 U.S. at pp. 205-207; In re Neely (1993) 6 Cal.4th 901, 915; In re Wilson (1992) 3 Cal.4th 945, 950, cert. den. sub nom. California v. Wilson (1993) 507 U.S. 1006; see Maine v. Moulton (1985) 474 U.S. 159, 170; see also U.S. Const., 6th & 14th Amends.) The government actor need not be a regular government employee. If an accused’s cellmate acts as a government agent, an incriminating statement deliberately elicited from the accused by that jailhouse informant is likewise inadmissible. (United States v. Henry (1980) 447 U.S. 264, 269-274; see Kuhlmann v. Wilson (1986) 477 U.S. 436, 458; Maine v. Moulton, supra, 474 U.S. at pp. 173-174 [informant surreptitiously recorded accused’s statements]; see also § 4001.1, subd. (b).)
To prove a Sixth Amendment Massiah violation in a case involving a jailhouse informant, the defendant must establish that the informant acted as a government agent—acted under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage. (People v. Fairbank (1997) 16 Cal.4th 1223, 1247, cert. den. sub nom. Fairbank v. California (1998) 525 U.S. 861 (Fairbank); In re Neely, supra, 6 Cal.4th at p. 915; see People v. Frye (1998) 18 Cal.4th 894, 993, cert. den. sub nom. Frye v. California (1999) 526 U.S. 1023; People v. Martin (2002)98 Cal.App.4th 408, 420.) The critical inquiry in informant cases is whether the government made a knowing exploitation of an opportunity to coax information from a formally charged suspect in the absence of counsel. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1240, cert. den. sub nom. Gonzalez v. California (1991) 502 U.S. 835.) If the informant acts on his or her own initiative to interrogate an accused, the government may not be said to have deliberately elicited a statement from the accused, even if the government had a general policy of encouraging inmates to listen and report. (Fairbank, supra, 16 Cal.4th at p. 1247; see In re Neely, supra, 6 Cal.4th at p. 915; People v. Gonzalez, supra, 51 Cal.3d at p. 1240; People v. Williams (1988) 44 Cal.3d 1127, 1141, cert. den. sub nom. Williams v. California (1988) 488 U.S. 975.)
A preexisting arrangement between an informant and government agents need not be explicit or formal, but may be inferred from evidence that the parties behaved as if they had an agreement, based on a course of conduct occurring over a period of time. (Fairbank, supra, 16 Cal.4th at p. 1247; In re Neely, supra, 6 Cal.4th at p. 915.) Specific direction from government agents or a prior working relationship with such agents can establish an implicit agreement. (Fairbank, supra, 16 Cal.4th at p. 1247; see United States v. Henry, supra, 447 U.S. at pp. 270-273 & fn. 8 [by prearrangement, government paid informant if he produced useful information about accused whom the government had singled out for inquiry]; People v. Gonzalez, supra, 51 Cal.3d at p. 1241.) The agency relationship may be established by evidence of government officials directing the informant to focus on a particular person or on a specific type of information sought by the government. (In re Neely, supra, 6 Cal.4th at p. 915; People v. Martin, supra, 98 Cal.App.4th at p. 420.)
C. Standard of Review
1. Generally Applied Standard
Initially, the parties disagree about the standard of review on appeal. Ortiz contends that the underlying Massiah issues—whether French was a government agent and whether he deliberately elicited information—are mixed questions of law and fact. Thus, he reasons that our review of the trial court’s rulings on these issues should be made de novo. For its part, the People argue that the trial court’s rulings were essentially factual determinations that should be reviewed under a standard that is more deferential to the trial court.
The California Supreme Court has settled this issue to our satisfaction. In two Massiah cases in which the trial court found that the informant acted on his or her own initiative, the Supreme Court stated that the issue of whether the informant’s testimony may be admitted into evidence is “ ‘an essentially factual question, and we review it on a deferential standard.’ ” (Fairbank, supra, 16 Cal.4th at pp. 1247-1248, quoting People v. Memro (1995) 11 Cal.4th 786, 828, cert. den. sub nom. Memro v. California (1996) 519 U.S. 834; see People v. Martin, supra, 98 Cal.App.4th at p. 421.) Thus, when the trial court made a permissible interpretation of the evidence before it and necessarily concluded that no agency relationship existed, the appellate court will defer to the trial court’s finding in this regard. (People v. Martin, supra, 98 Cal.App.4th at pp. 420-421.) As these cases are factually indistinguishable from the case before us, we must apply the law as set out by our Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In essence, Ortiz argues that the California Supreme Court is wrong in its application of a deferential standard of review on appeal. We note that neither of the United States Supreme Court cases that he cites applying the independent judgment standard of review to mixed questions of law and fact is a Massiah case and that both of them predate the California Supreme Court that guides us. (See Thompson v. Keohane (1995) 516 U.S. 99, 111-113 [Miranda issue]; Miller v. Fenton (1985) 474 U.S. 104, 114-115 [voluntariness of confession]; Fairbank, supra, 16 Cal.4th at pp. 1246-1249 [1997 decision].) In such circumstances, the clear pronouncements of the deferential standard of review that our Supreme Court has applied to the precise Massiah issue before us compel us to follow the lead of our high court, until instructed otherwise.
2. Exceptional Standard
Alternatively, Ortiz argues that even if a deferential review standard is usually proper, deference is unwarranted in this case because the trial court applied an erroneous legal standard. Specifically, he contends that the trial court made various incorrect assumptions—that the government agent had to be directed to focus on a particular defendant, that it was necessary for a specific officer to direct the informant to focus on a particular suspect, and that it was necessary for promises or representations about leniency to be explicitly made in the specific case for the informant to constitute a government agent.
We see several flaws in this argument. The first hurdle for Ortiz is a procedural one, as he did not raise this issue in his opening brief on appeal. Typically, we do not consider issues that are raised for the first time in the appellant’s reply brief. To consider such issues may be unfair, as it does not allow the People an opportunity to respond to the argument. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295 fn. 11; Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 329 fn. 5; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, pp. 647-648.)
Even if we could overcome this procedural obstacle, we would not find for Ortiz on the merits of this argument, because it is neither legally sound nor supported by the record on appeal. None of the cases that Ortiz cites support the application of an extraordinary standard of review in a Massiah case. (See Townsend v. Sain (1963) 372 U.S. 293, 315 fn. 10, overruled on another point in Keeney v. Tamayo-Reyes (1992) 504 U.S. 1, 5-6 [voluntariness of confession]; People v. Bell (2007) 40 Cal.4th 582, 596-597 [jury selection], cert. den. sub nom. Bell v. California (Oct. 1, 2007, No. 06-1714) ___ U.S. ___.) One of the cases that he cites is a civil case, which seems completely inapplicable. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [civil class action case].) For us to apply a standard of review contrary to that mandated by our Supreme Court requires a stronger legal showing that that provided by Ortiz in this matter.
Most importantly, our review of the record on appeal does not support Ortiz’s claim that the trial court in fact applied an erroneous legal standard when it made its Massiah ruling. Ortiz argues that the trial court assumed that if French was to be found to be a government agent, then he had to be directed to focus on a particular defendant, a specific officer such as Maffei had to direct him to focus on Ortiz as a specific defendant, and some explicit promises or representations about leniency had to be explicitly made. We disagree with this construction of the trial court’s ruling. It is true that when the trial court made its ruling, it considered the facts that Maffei did not have a prior arrangement with French, that Maffei did not tell French to focus on Ortiz and that no explicit arrangement for information was made between Maffei and French. For the trial court to consider this evidence tending to show that French was not a government agent is not the equivalent of finding that the opposite facts were required in order to conclude that French was a government agent. Ortiz points to nothing suggesting to us that the trial court misunderstood the legal standard to be applied. Having reviewed the trial court’s ruling carefully, we find no basis to conclude that it misapplied the law when it made its government agent finding.
For all these reasons, we need not apply Ortiz’s proposed standard of review. Having determined that the Fairbank standard applies to this matter, we now turn to the merits of the Massiah issue before us on appeal with that standard of review in mind.
D. Government Agent
1. Generally
In essence, Ortiz challenges the reasonableness of the trial court’s finding that French did not act as a government agent. He asserts that French was a government agent who deliberately elicited incriminating statements from him, in violation of Massiah and its progeny. In the trial court, it was conceded that Ortiz was in custody at all crucial times and that French did not appear to Ortiz to be anything other than a fellow inmate. Thus, a key issue before the trial court was whether French acted as a government agent at the time that he spoke with Ortiz. (See United States v. Henry, supra, 447 U.S. at pp. 269-274; Massiah, supra, 377 U.S. at pp. 205-207.)
Ortiz reasons that the facts known about French—especially his history of offering evidence about other offenders to law enforcement officials in exchange for money or favorable consideration at sentencing—compel the conclusion that he acted as a government agent in this matter. He treats the issue as if it were one of law for us to determine anew on appeal, when it is essentially a question of fact for the trial court to determine. (See Fairbank, supra, 16 Cal.4th at p. 1247.) In this matter, the trial court did not construe the evidence before it in the manner that Ortiz proposed, but instead found that French did not act as a government agent. On appeal, we must defer to its view of the evidence, rather than the contrary one that Ortiz would have us adopt. (See id. at pp. 1247-1248; see also pt. II.C., ante.)
When we eliminate Ortiz’s speculation about French’s involvement with police and the inferences that he would have us draw from the facts about French that were before the trial court, the only direct evidence is that tending to prove, as the trial court found, that French was not a government agent. Maffei did not pay French or make him any promises. He did not try to influence the prosecutor on French’s case. Maffei did not ask French to talk with Ortiz either generally or about a specific topic. He did not furnish French with any Ortiz case file, photographs or tapes. He did not place the two inmates together in the same jail cell. When French was transferred away from Ortiz and he asked Maffei to arrange for him to be transferred back, the officer refused. This evidence satisfies us that the trial court reasonably found that French was not a government agent. (See, e.g., Fairbank, supra, 16 Cal.4th at pp. 1248-1249.)
2. After Initial Meeting
Ortiz also contends that even if French was not a government agent at the time that he initially met with Maffei and offered evidence against Ortiz, he necessarily became a government agent when Maffei returned French to the jail unit in which Ortiz was housed after their initial meeting on November 17. At their November 17 meeting, French told Maffei that Ortiz had confessed to killing Smith. French met with Maffei twice more in the next few days. French offered more evidence tending to prove that Ortiz strangled Smith to death, including use of a gesture attributed to Ortiz that French had not demonstrated at his first meeting with Maffei.
Ortiz seems to believe that the use of this gesture mimicking strangulation—evidence that French did not provide to Maffei until their third meeting on November 22—was stronger evidence than French’s November 17 report that Ortiz had confessed to killing Smith. In a case such as the one before us in which the cause of death was never established at trial, French’s evidence about the manner of the killing could not be corroborated by medical testimony. Thus, French’s evidence that Ortiz confessed to killing Smith seems to us to be stronger evidence against him than any evidence of the manner of her death.
On appeal, Ortiz reasons that once an informant approaches law enforcement officials with information and tries to make a deal on the basis of it, any subsequent contacts between the informant and the accused is necessarily made with the backing of the government, transforming that informant into a government agent for purposes of Massiah. He cites a federal appellate case in support of this argument. (See U.S. v. Stevens (2d Cir. [N.Y.] 1996) 83 F.3d 60, 64, cert. den. sub nom. Stevens v. United States (1996) 519 U.S. 902.) He neglects to note two key facts that undermine this claim. First, the Stevens court rejected the defendant’s claim of Massiah error. (See id. at pp. 64-65.) Second, it found that “to treat every inmate who hopes to cut some future deal” as a government agent would be an unwarranted extension of Massiah. (Id. at p. 64.) For the same reason, we reject Ortiz’s attempt to extend Massiah “far beyond its natural reach.” (Ibid.)
To establish a Massiah violation, the defendant must show more than that the police allowed the accused and the informant to meet. (See People v. Martin, supra, 98 Cal.App.4th at p. 420.) Having rejected this challenge, we find that the trial court reasonably concluded that Ortiz did not meet his burden of proving that the police used French as a government agent to deliberately elicit statements from him. (See, e.g., Fairbank, supra, 16 Cal.4th at pp. 1248-1249.)
III. BRADY V. MARYLAND
A. Contentions on Appeal
Ortiz contends that the prosecutor’s failure to disclose French’s statements made in four San Francisco investigations constituted both a discovery violation and Brady error resulting in a denial of his right to a fair trial. (See Brady v. Maryland, supra, 373 U.S. 83, 87.) Ortiz reasons that this failure to provide him with this evidence resulted in the denial of his right to a fair trial, constituting prejudicial error.
In his opening brief, Ortiz raised another issue about whether the prosecutor concealed evidence about the informant in violation of Brady v. Maryland (1963) 373 U.S. 83. As he has since withdrawn this argument, we need not address it.
On appeal, Ortiz argues that he was entitled to discover the content of French’s statements offered to four San Francisco police officers in pending cases in which French claimed to have reported jailhouse confessions. He planned to use these statements to impeach French at trial. He challenges the failure to disclose two specific items of evidence relating to this hearing. First, he seeks a complete report of French’s statements to those officers, not just the summary of them that was provided to him by the trial court after an in camera hearing. He contends that he was entitled to a full transcript of the testimony offered by San Francisco police inspectors about statements that French made to them. Second, Ortiz also urges us to find that he should have been allowed to review audiotapes of the content of three of French’s interviews that were referenced during the in camera hearing.
We conclude that the two-page summary prepared by the trial court—evidence which was added in to the record on appeal when we granted Ortiz’s motion for augmentation without a finding of relevance—is, in fact, relevant. (See Evid. Code, §§ 210, 350.)
B. Trial Court Ruling
At Ortiz’s preliminary hearing, French testified that in as many as six cases, he had reported to four different San Francisco law enforcement officials investigating four different cases about information he overheard while in jail. The implication was that French might obtain favorable consideration in his own criminal matters by offering this information. In an informal June 2005 request, Ortiz sought specific information about these cases—the time frame, the officer involved, and the crime charged. The prosecution did not provide this information to Ortiz.
In July 2005, Ortiz moved to compel discovery of the evidence that French gave in four pending cases to the four San Francisco police inspectors. A hearing was held on the discovery motion in August 2005. Ortiz and the prosecution disagreed about whether Ortiz should subpena the four officers or whether the prosecutor was obligated to obtain the information from them for his benefit. Ortiz argued that the prosecution was presumed to be in possession of the information that the four officers had in these four cases and was required to provide it to him. (See Brady v. Maryland, supra, 373 U.S. at p. 87.) He reasoned that this information was required to be disclosed to him as exonerating evidence showing that French had a pattern and practice of providing confessions to police in order to obtain consideration on his own pending criminal matters.
The trial court stated that the specific information that Ortiz sought was not exculpatory within the meaning of Brady because it did not provide any impeachment evidence beyond the general evidence that French had already offered when admitting that he had given information to several police officers in several cases, hoping to receive consideration in his own cases. Ortiz argued that the information he sought was relevant, particularly because French had told a reporter that an inspector once left him alone with a police file and then returned to ask what the suspect had confessed to French about that matter. He reasoned that it was important for him to learn the manner in which the confessions in these other cases were obtained to provide evidence of a pattern and practice that French obtained confessions and used them for his own benefit. He reasoned that evidence that French could have learned details of each case by examining a police file on the case or his cellmate’s own papers would be useful to help establish this pattern and practice.
One of the four cases involved a defendant who was being represented by a member of the public defender’s office, as was Ortiz. At the time that it sought to resolve the discovery dispute, the trial court was also considering a prosecution motion to disqualify Ortiz’s defense counsel for a conflict of interest related to that office’s prior representation of French. While the conflict of interest issue was then still pending, the trial court offered to question the officers in camera about the information that Ortiz sought to discover, in order to avoid jeopardizing any ongoing investigations. Defense counsel agreed, submitting written questions it proposed that the trial court should ask of the officers. She stated her understanding that she was not required to subpena the officers, but that the prosecution would make them available for the in camera hearing. No one objected to the proposal.
Ultimately, the trial court found that defense counsel had no conflict of interest in Ortiz’s case and permitted defense counsel to continue representing him.
At the in camera hearing, the prosecution also stated that he did not want to reveal his intent to argue at the upcoming trial that strangulation was the cause of Smith’s death.
The trial court conducted the in camera hearing with the prosecutor and several police witnesses, outside the presence of Ortiz and defense counsel. After the hearing was concluded, the trial court provided Ortiz with a written summary of the evidence that it deemed relevant. The summary set out the trial court’s notes about the testimony of four police officers whom French contacted with offers of information.
The testimony of two of these officers relates to the issues Ortiz raises on appeal. The summary offered no specific information about Inspector Marta McDowell’s testimony, as French apparently offered evidence relating to an uncharged homicide. It did include a detailed summary of French’s January 2005 report to Inspector Danker of a cellmate’s supposed confession to a residential robbery. Inspector Danker concluded that French’s information was uncorroborated and differed from that given by the robbery victim. Inspector Danker told the trial court that he gave French snacks, cigarettes and sodas while they talked. Later, Inspector Danker told French’s parole officer that French had spoken with him about the robbery case, but he did not believe that French received a more favorable release date because of his call.
The summary stated that French’s interviews were audiotaped in three of the four cases, including the January 2005 interview about Inspector Danker’s robbery case. The trial court—apparently concerned with the conflict of interest issue that had only recently been resolved—noted that the suspect in Inspector Danker’s case was being represented by another member of the public defender’s office. The prosecutor objected to Ortiz’s request to discover the audiotapes, arguing that the tapes involved pending cases. He cited his understanding that the purpose of the sealed transcript of the in camera hearing and the trial court’s provision of its summary of evidence of any inducements that French might have received in exchange for information was to prevent disclosure of the contents of the discussions.
Defense counsel insisted that she should be entitled to explore whether the information French gave inspectors contradicted the police department’s evidence. If French was not credible and it was decided that he should not be used as a witness in a particular case for that reason, defense counsel reasoned that this evidence was relevant to the issue of whether French’s information in Ortiz’s case also lacked credibility.
The trial court found that this request went beyond the proper scope of discovery. If the inspectors testified that the information they received from French was inconsistent with the facts they knew about the case, the trial court concluded that knowing the specifics of the statements would not assist the defense. The prosecutor also noted that French would be testifying at a pretrial hearing, apparently suggesting that at that time the inspectors could also be available to testify. The trial court denied defense counsel’s request without prejudice, agreeing that she could renew her motion at trial, particularly after French offered his pretrial testimony. Ortiz did not renew this request later in the trial.
The transcript of the hearing that the trial court summarized was sealed during trial, but was unsealed while this appeal was pending. On appeal, Ortiz cites four specific facts that he gleaned from this transcript that he reasons should have been supplied during discovery or included in the summary of the in camera hearing, but were not: (1) that Inspector McDowell once put $40 on French’s jail books, suggesting to Ortiz that she paid him for his work as an informant; (2) details of Inspector Danker’s testimony offering insight into which aspect of French’s statement about his robbery case did not match the victim’s statement about the crime; (3) the fact that Inspector Danker could not corroborate details of French’s assertion that the robbery suspect might harm the elderly robbery victim in order to eliminate this potential witness; and (4) Inspector Danker’s colloquy with the trial court about his sense that French might not be truthful in his statement about the robbery.
C. Summary of Ex Parte Hearing
First, Ortiz contends that the trial court erred in failing to make available to him at trial the full transcript of the testimony of the San Francisco police inspectors at the ex parte hearing about French’s statements to them. He asserts that he was denied a fair trial because the prosecution failed to disclose this information, citing both state statutory and federal due process bases of authority. (See Brady v. Maryland, supra, 373 U.S. at p. 87; § 1054.) The Attorney General counters that Ortiz waived the right to raise this issue on appeal because defense counsel did not ask the trial court for a transcript.
The record on appeal supports the conclusion that Ortiz’s trial counsel agreed to the ex parte procedure before it was conducted. As defense counsel acquiesced in the conduct of a proceeding outside of her presence and the trial court’s summary of the information gleaned from it, Ortiz forfeited his right to complain that this procedure—designed to exclude him from knowing the full content of the testimony offered—deprived him of more complete information. (See Cowan v. Superior Court (1996) 14 Cal.4th 367, 371; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 388, p. 439.)
Defense counsel raised other issues before the trial court, but did not object to her inability to consult a full transcript of that hearing either before or after the ex parte hearing. By failing to claim that he was entitled to a transcript, Ortiz has not preserved this issue for appeal. (See People v. Jenkins (2000) 22 Cal.4th 900, 1000, cert. den. sub nom. Jenkins v. California (2001) 531 U.S. 1155; People v. Carpenter (1997) 15 Cal.4th 312, 411, cert. den. sub nom. Carpenter v. California (1998) 522 U.S. 1078 [Brady error not cognizable on appeal if no objection raised on this basis in trial court]; see also Evid. Code, § 353, subd. (a); 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 36, pp. 495-497.)
D. Audiotapes
Ortiz also contends that he was entitled to review audiotapes of the content of three of French’s interviews that were referenced during the in camera hearing. Before trial, defense counsel sought to discover these audiotapes after reviewing the summary of the ex parte hearing, in order to learn the contents of the statements that French offered the various officers. The trial court treated this as a discovery request and rejected it, finding that the specifics of French’s statements would not assist the defense any more than would the general information Ortiz had already received. It did so without prejudice, allowing defense counsel an opportunity to renew his request after French testified at the foundational hearing or at trial, particularly after French offered his pretrial testimony. The record on appeal does not show any renewed defense request for this evidence.
This claim of error fails for several reasons. Although the discovery request was denied before trial, it was denied without prejudice and Ortiz failed to take the opportunity to renew it before the trial court. This suggests that the issue was not of great significance to trial counsel. Even if we were to overcome this procedural hurdle, another hurdle prevents our consideration of the merits of this issue. Although Ortiz appears to assert this claim of error as both a Brady error and a statutory discovery violation, the request for the audiotapes that was made in the trial court was not asserted on Brady grounds. To the extent that Ortiz claims that a Brady violation arose because of the denial of his request for the audiotapes, we find that this issue was not preserved in the trial court for our review on appeal.
Even if we found that Ortiz’s Brady due process issue is properly before us on appeal, we would not find any reversible error had occurred in the trial court. Under the federal due process clause, the state has the duty to disclose to the defendant evidence in its possession that is favorable to the accused and material to the issue of guilt. (Strickler v. Greene (1999) 527 U.S. 263, 280; Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57; People v. Jenkins, supra, 22 Cal.4th at p. 954.) Evidence is material only if there is a reasonable probability that the result would have been different if it had been disclosed to the defense. A reasonable probability exists if we, as a reviewing court, determine that there is a probability sufficient to undermine confidence in the outcome. (In re Sassounian (1995) 9 Cal.4th 535, 544; see Kyles v. Whitley (1995) 514 U.S. 419, 433-434; United States v. Bagley (1985) 473 U.S. 667, 675-676 [impeachment evidence]; People v. Jenkins, supra, 22 Cal.4th at p. 954.) In the context of this case, we have no basis for finding that the specific content of the audiotaped statements that French made to the police would undermine confidence in the outcome of the jury’s verdict.
Thus, the only issue before us is whether the trial court deprived Ortiz of his statutory right to discovery by refusing his request for access to the audiotapes of French’s statements to police in four unrelated criminal matters. (See § 1054.) The prosecutor has a statutory duty to disclose any exculpatory evidence to the defendant. (§ 1054.1, subd. (e).) On appeal, we review the trial court’s ruling on a discovery request for an abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at p. 953.) Given the totality of the circumstances—the other evidence directly pertaining to French’s credibility that was disclosed to Ortiz and that was presented to the jury on his criminal record, his poor reputation for truthfulness, and his practice of reporting jailhouse confessions of varying degrees of accuracy; as well as the summary that Ortiz received about French’s reports to San Francisco law enforcement officials that were at issue in this discovery request—we are satisfied that the trial court did not abuse its discretion by denying the defense request to release the audiotapes containing the specific content of these French statements. (See, e.g., ibid.)
IV. OPINION ABOUT CREDIBILITY
A. Background
Finally, Ortiz contends that the trial court erred by allowing Maffei to testify that he believed that Ortiz was lying when he denied involvement in the arson and homicide. At trial, Maffei told the jury that when he first interviewed Ortiz on February 24, Ortiz was merely a potential witness in the Smith case. After Maffei questioned Ortiz again two days later on February 26, he was “fairly convinced” that Ortiz had killed Smith. From that point on, he regarded Ortiz as a suspect. However, Ortiz was not arrested until October. Maffei explained that he believed that he could have arrested Ortiz in February, but he wanted to continue investigating other potential suspects and wait for the results of scientific evidence testing before making an arrest.
Defense counsel questioned Maffei about his decision not to arrest Ortiz immediately after he became convinced on February 26 that his witness was actually a suspect. Ortiz’s attorney asked if, at the end of that interview, he thought that Ortiz was a suspect “because of his inconsistencies.” Maffei agreed that he thought Ortiz was a suspect at that time. Defense counsel asked Maffei if “at the end of the interview you had inconsistencies, you had a suspicious death, and you had an arson, but you let [Ortiz] go, correct?” Maffei said yes. Defense counsel probed at length about whether Maffei actually had probable cause to arrest Ortiz on February 26, while Maffei offered evidence of what motivated him to wait until October to make an arrest.
On redirect examination, the prosecutor picked up defense counsel’s thread about whether Maffei had probable cause to arrest Ortiz after the February 26 interview. Noting that defense counsel had asked Maffei about “inconsistencies” in Ortiz’s statements, the prosecutor asked Maffei what he thought the term “inconsistencies” meant. Maffei replied: “Lies.” When the prosecutor asked what specific lies in the February 26 interview Maffei referred to, defense counsel objected. She argued that the question called for a legal conclusion, urging the court to find that it was inappropriate for Maffei to opine that these inconsistencies were lies. That was an issue for the jury—not Maffei—to determine, she reasoned. Her objection was overruled. Maffei was allowed to explain that he thought that Ortiz lied when he said that he last telephoned Smith at 1:00 a.m. and was home at 2:00 a.m. Once Ortiz was told that his cell phone records might not support those assertions, he admitted that he was in front of the Bay Street house at 3:00 a.m.
Although Ortiz asserts in his opening brief that he also made a motion to strike this evidence, the record on appeal shows only an objection.
B. Lay Opinion Testimony
Ortiz argues that the trial court erred by permitting Maffei to provide lay opinion testimony about Ortiz’s veracity without some prior knowledge of his character. Generally, a lay witness may only testify to facts, leaving it to the trier of fact to draw inferences and conclusions from those facts. (People v. Williams (1992) 3 Cal.App.4th 1326, 1332.) A trial court may allow a lay person to offer opinion testimony only if it helps clarify the witness’s testimony—when the witness cannot adequately describe his or her concrete observations without using opinion wording. (People v. Melton (1988) 44 Cal.3d 713, 744, cert. den. sub nom. Melton v. California (1988) 488 U.S. 934; People v. Sergill (1982) 138 Cal.App.3d 34, 40; see Evid. Code, § 800, subd. (b).) A police officer’s opinion about the truthfulness of an interviewee is not admissible lay opinion evidence. (People v. Sergill, supra, 138 Cal.App.3d at pp. 39-40.)
The People do not claim that Maffei offered this testimony as an expert or as one with prior knowledge of Ortiz’s character.
We review a trial court’s decision overruling an objection to admitting opinion testimony from a witness under the abuse of discretion standard. (City of Ripon v. Sweet in (2002) 100 Cal.App.4th 887, 900.) The key question is whether the evidence has any tendency to prove a disputed material fact. (Id. at pp. 900-901; see Evid. Code, §§ 210, 350.) A lay opinion of an individual’s veracity is not relevant because it has no tendency to disprove the veracity of the individual’s statements. (People v. Melton, supra, 44 Cal.3d at p. 744.) Thus, the evidence that Maffei offered was not relevant as lay opinion testimony.
C. Redirect Examination
Despite this, the People counter that the prosecutor was clarifying on redirect examination issues arising from defense counsel’s questioning of Maffei during cross-examination. They argue that the cross-examination undermined Maffei’s credibility by suggesting to the jury that the officer did not have probable cause to arrest Ortiz at the end of the February 26 interview. In essence, they contend that defense counsel “opened the door” to questioning about Ortiz’s inconsistent answers in his statements to police, entitling the prosecution to explore that theme, as well. The People reason that the prosecution’s redirect examination of Maffei was appropriate because it was directed to rebut any adverse inference arising during cross-examination and to rehabilitate Maffei’s credibility after Ortiz attacked it.
When a witness is questioned on cross-examination about matters relevant to the subject of direct examination but not elicited during direct examination, the witness may be examined on redirect examination on any new matter. (People v. Steele (2002) 27 Cal.4th 1230, 1247-1248, cert. den. sub nom. Steele v. California (2003) 537 U.S. 1115; People v. Kynette (1940) 15 Cal.2d 731, 752, cert. den. sub nom. Kynette v. California (1941) 312 U.S. 703, disapproved on another point in People v. Horn (1974) 12 Cal.3d 290, 301 fn. 8 and People v. Snyder (1958) 50 Cal.2d 190, 197.) A trial court should strive to prevent unfairness to either side when one side presents evidence on a point and then tries to prevent the other side from responding to it. (People v. Steele, supra, 27 Cal.4th at p. 1248.) Redirect examination serves two main purposes—to explain or rebut adverse testimony or inferences developed on cross-examination, and to rehabilitate a witness whose credibility has been impeached. (People v. Cleveland (2004) 32 Cal.4th 704, 746, cert. den. sub nom. Veasley v. California (2005) 543 U.S. 1058.) The extent of redirect examination of a witness is largely a matter for the trial court’s discretion. (People v. Cleveland, supra, 32 Cal.4th at p. 745; People v. Steele, supra, 27 Cal.4th at p. 1247; People v. Kynette, supra, 15 Cal.2d at p. 752.)
We are satisfied that the trial court did not abuse its discretion when it allowed Maffei to testify during redirect examination about Ortiz’s credibility. Maffei’s state of mind was at issue after defense counsel questioned him on cross-examination about why he did not immediately arrest Ortiz at the end of his February 26 interview. Defense counsel’s questioning about this subject rendered Maffei’s state of mind at that time relevant such that the trial court properly allowed the challenged redirect examination. (See, e.g., People v. Cleveland, supra, 32 Cal.4th at pp. 745-746 [when defense counsel questioning on cross-examination makes contrary evidence admissible on redirect examination].)
D. Prejudice
Even if we were to assume arguendo that the trial court erred in allowing Maffei to give this testimony, we would not find that its admission constituted prejudicial error. Ortiz contends that this error was prejudicial, because it undercut his defense that he did not kill Smith in a case in which his credibility was vital. If the trial court erred by admitting this evidence, the error would be prejudicial only if it is reasonably probable that a result more favorable to Ortiz would be reached absent this error. (See People v. Sergill, supra, 138 Cal.App.3d at p. 41.)
Under the circumstances of this case, we conclude that it is not reasonably probable that the exclusion of Maffei’s testimony would have produced a result more favorable to Ortiz. The jury heard and saw the videotaped interview of February 26, in which Maffei repeatedly challenged Ortiz’s version of the circumstances surrounding Smith’s death. Several times during that interview, Maffei accused Ortiz of not telling the truth or of lying. Anyone who saw this interview or read the transcript of it understood that Maffei believed that Ortiz was lying. Maffei had testified that he believed that he could have arrested Ortiz after the February 26 interview because of his inconsistent statements to police. Given the repetitive nature of the challenged testimony, we find that any testimony improperly admitted during redirect examination was cumulative of other evidence that was already clearly before the jury. As such, we are satisfied that even if the trial court should have excluded the evidence, any error resulting from its admission was harmless.
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.