Opinion
F053246.
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. CHARLES EDWARD PRITCHETT, Defendant and Appellant.
Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Appellant Charles Pritchett and his codefendants, Emmanuel Miller and Ellis Jones, were charged and tried in connection with two attempted robberies in Visalia. The first occurred at a Me-n-Eds Pizza restaurant late at night. The second occurred early the next morning at the home of Mike Thum. During the second incident, appellant shot and paralyzed Thum. A jury convicted appellant of conspiracy to commit robbery of Me-n-Eds (Pen. Code, §§ 182, 211; count 1), second degree commercial burglary of Me-n-Eds (§ 459; count 3), attempted murder of Thum (§§ 664, 187; count 6), attempted home invasion robbery of Thum (§§ 664, 211; count 8), and first degree burglary of Thum and his housemate Stephen Jasso (§ 459; count 9). The jury also found a number of sentence enhancements to be true. Appellant was sentenced to prison for a total term of 36 years to life, consisting of seven years on count 6, plus 25 years to life for one of the associated firearm enhancements (§ 12022.53, subd. (d)), a consecutive three-year term on count 8, and a consecutive one-year term on count 1. The trial court stayed appellants sentences on counts 3 and 9 pursuant to section 654. Appellant was awarded 396 days credit for time spent in custody, consisting of 337 days actual time plus 59 days conduct credits pursuant to section 2933.1.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, appellant contends: (1) the court erred in denying his motion to sever the Me-n-Eds counts from the home invasion counts; (2) the evidence is insufficient to support his conviction of commercial burglary in count 3; (3) the evidence is insufficient to support his conviction of conspiracy to commit robbery in count 1; (4) the court erred in failing to stay his punishment for attempted home invasion robbery in count 8 pursuant to section 654; and (5) the court erred in failing to award him presentence conduct credits against his indeterminate life term for the attempted murder in count 6. Appellant also joins in Argument II of the briefs filed by Emmanuel Miller in his separate appeal (case no. F053247), contending that the prosecution failed to timely disclose material evidence in violation of his due process rights under Brady v. Maryland (1963) 373 U.S. 83.
We agree with appellants fourth contention and will modify the judgment to stay the three-year term imposed on count 8 pursuant to section 654. Although we conclude the court properly awarded appellant conduct credits against the determinate portion of his sentence under section 2933.1, it appears the court made a computational error in its determination of presentence custody credits. We have also found errors in the abstract of judgment related to appellants conviction and sentence for attempted murder in count 6. Accordingly, we will modify the abstract of judgment to correct these errors and remand the case to the trial court for recalculation of appellants presentence custody credits. In all other respects, we will affirm the judgment.
FACTS
Around Thursday, June 29, 2006, appellant was suspended from his job at the subject Me-n-Eds in Visalia.
On Sunday, July 2, 2006, between 10:00 and 10:30 p.m., David Malm was walking to the shopping complex where the Me-n-Eds was located, when he noticed a white Cavalier or Corsica drive by. The driver stopped the car in the middle of the road and looked at Malm. The driver was an African-American male and wore a black "do-rag" over his head. After the car stopped, it backed up and parked in front of two big-rig trucks by the loading docks at the complex.
Malm continued walking, passing in front of the Me-n-Eds and other businesses in the complex, including a Quiznos and Starbucks. Malm soon noticed another African-American male lingering between two pillars. The man was tall and skinny, dressed in dark clothing, and appeared to be wearing a hood or something over his head. After Malm made eye contact with him, the man moved behind one of the pillars. Before Malm entered a mini-market in the complex, he heard some yelling from the area of the Me-n-Eds. When he exited the market a few minutes later, he saw police cars around the Me-n-Eds.
On Sunday nights, the Me-n-Eds closed at 10:00 p.m. Sometime after closing on July 2, 2006, employee Alix Almares went to take some trash out to the bins in the alleyway at the back of the restaurant. Almares saw an African-American male holding what appeared to be a small handgun. The man had a stocking over his face and was wearing baggy clothing. He chased Almares inside the restaurant and ordered him to get down.
When Almares was on the ground, the man patted him down and took Almaress cell phone from one of his pockets. The man spoke in a "mad whisper" and said something like, "stay cool" or "it will be cool." Almares told police he recognized the voice as belonging to Emmanuel Miller, a friend of appellants. Almares also knew Miller by the name "Manny" and the nickname "Manifest" from Millers MySpace page. Miller had come into the Me-n-Eds several times when appellant was working there. Almares further testified that Miller drove an older, white Chevy.
Employee Lisa Jacobo was cleaning up the salad bar when she heard screaming and saw Almares being chased from the back of the restaurant by a man with a gun. Jacobo described Almaress assailant as a tall African-American, wearing black clothing and a black ski mask. At that time, the cash register drawers had already been taken out and placed in the office for the supervisor to count them out. Jacobo ran into the office and slammed the door, which automatically locked behind her and could not be opened from the outside without a key. Jacobo told the supervisor not to open the door and called 911. Jacobo heard a male voice outside the door. Twice he stated: "Open the door before I shoot it open." Jacobo did not open the door but stayed on the phone speaking with the 911 dispatcher.
Employee Holly Wood was sweeping up the floor around 10:30 p.m., when an African-American male came in to the restaurant through the front door. He was wearing sunglasses and what looked like a dark green fishermans hat. He asked to use the restroom. He was only in the restroom about 10 seconds before he came out and left the restaurant through the front door. Wood then saw someone come in through the back door, chasing Almares with a gun. The man with the fishermans hat returned through the front door and Wood started screaming. He told her to be quiet and asked, "Do you want to die?" Wood felt an object being held to the side of her head. While she was on the ground, the two intruders ran out of the store. She was unsure whether they ran out the front or the back door.
On Monday, July 3, 2006, around 5:45 a.m., Mike Thums roommate, Stephen Jasso, woke up to the sound of breaking glass. Jasso saw a tall African-American male, dressed in a hooded sweatshirt and jeans, standing in his doorway. The man pointed a gun at Jasso and told him not to move. In the meantime, Jasso could hear the sound of somebody "wrestling" down the hall. Jasso then heard a gunshot coming from Thums room. The man in Jassos doorway said, "What? What?" Jasso heard a mans voice from Thums room yell, "Go, go, go!" Jasso then saw three men, including the one in his doorway, run down the hallway and through the kitchen.
Jasso went to Thums bedroom and found Thum hunched over his computer desk. Thums handgun was lying by his feet. Jasso asked, "Whats up? Whats up?" Thum replied, "They got me. They got me." Jasso called 911. Jasso was unable to get a good look at the intruders and was never able to identify them.
Mike Thum testified that he woke up when he heard Jassos dog barking. He saw somebody walking down the hallway wearing a "Gilligan, skipper-type hat." He thought it might be Jasso because Jasso liked fishing. When the person reached the entrance of Thums room, Thum realized it was someone he did not know. Thum saw that the intruder was an African-American male and was carrying a gun similar in appearance to Thums own .40-caliber Glock handgun. When Thum started to get up, the man cocked the gun and said, "Dont try no funny shit."
Thum had a couple hundred dollars on his dresser which he offered to the intruder. Thum also had approximately $24,000 in cash, wrapped in a towel and hidden behind his dresser, to which he did not direct the intruders attention. Meanwhile, a second intruder jumped up, grabbed a bottle from one of the dressers, and hit Thum on the head with it.
The first intruder directed Thum to come over to him. Thum slammed the bedroom door and thought he locked the door. He then ran over to his computer monitor, where his handgun was hidden. Thum then felt himself being pulled back and heard a gunshot.
The gunshot severed Thums spinal cord and rendered him paralyzed from the waist down. Thum also suffered a head wound from being hit by the bottle. The wound was stitched or stapled closed.
Following the shooting, Thum was in a coma for about three weeks and on a ventilator for about two months. After he came out of the coma, Visalia Police Detective Randy Lentzer interviewed Thum at the hospital on July 25, 2006. Thum wrote his answers on a magnetic board. When Detective Lentzer asked Thum if he knew the suspects that had shot and robbed him, Thum wrote "Manny" on the magnetic board.
Detective Lentzer showed Thum some photographic lineups. Thum picked appellant out from one of the lineups and Miller from another. According to the Detective Lentzer, Thum could not remember who had shot him and who had hit him with the bottle. At trial, Thum identified appellant as the shooter, and Miller as the assailant with the bottle.
When Detective Lentzer went to Thums house on the morning of July 3, 2006, he found a "brick" of money with rubber bands on it next to Thums bed. It contained around $24,800 in cash. Detective Lentzer also found a .40-caliber Smith and Wesson shell casing on the floor.
On July 5, 2006, Visalia Police Agent Cory Sumpter came to the UPS store where Miller worked and arrested him for the attempted robbery of the Me-n-Eds on July 2, 2006. At the time, Millers white Chevy Cavalier was parked in the parking lot of the UPS store.
Agent Sumpter also testified that he interviewed Miller twice following his arrest. During the first interview, Miller denied any involvement in the Me-n-Eds incident. During the second interview, which was conducted after the search of Millers apartment and Sumpters interview of Millers girlfriend, Miller admitted he was involved in the Me-n-Eds incident and that he took Almaress cell phone. However, he denied any involvement in the incident at Thums residence. In his separate appeal, Miller contends the court erred in denying his motions to exclude his postarrest statements because they were given in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436. The Miranda issue is not before us in the current appeal.
Around 2:30 p.m., Agent Sumpter, assisted by about 15 officers, executed a search warrant at Millers apartment. Millers girlfriend, Karen Lawrence, answered the door and was cooperative. Appellant was found in the living room and arrested. In the living room, the police also found a black "do-rag" on a shelf and an empty DVD case labeled "Strong Arm Robbery" next to the couch. A BB gun was found on a shelf in the master bedroom.
After conducting the search, Agent Sumpter took a tape-recorded statement from Lawrence at the police station. The recording was played to the jury. In the statement, Lawrence told Agent Sumpter that when she had returned home from work around 5:00 p.m. on Sunday, July 2, 2006, appellant, Miller, and another man she did not know were at the apartment. All three men left the apartment a few hours later in Millers white Cavalier. Before they left, Miller said they were going to the studio where he lays down tracks of his rap lyrics. The three men did not return to the apartment until early the next morning, around 5:00 or 6:00 a.m. Lawrence did not know where they had been. The unidentified man left later that day. Lawrence saw appellant at the apartment over the next few days before his arrest.
At trial, Lawrence identified Ellis Jones as the man she did not know at the time of her police statement. Her testimony also differed from her police statement. Lawrence claimed for the first time that, after she returned home from work on July 2, 2006, in addition to seeing Miller and Jones at the apartment, she saw a guy named Rassie Harris and two girls. However, she did not see appellant. The group left the apartment sometime between 8:30 and 10:00 p.m. Miller returned alone about an hour later and told Lawrence that he was going to the studio. He got his notebook and pen and left about ten minutes later.
Lawrence testified she saw Miller again the next morning when he took her to work, which started around 9:00 a.m. Miller did not tell her where he had been all night. Lawrence saw appellant at the apartment on July 3 and July 4, 2006. It was a common occurrence for him to spend the night at their apartment.
On the night of July 6, 2006, officers with the San Jose Police Department went to an apartment complex on the campus of San Jose State University. Jones was seen running out of the complex and was stopped and detained by one of the officers. Officers searched Joness Ford Explorer and found a software box containing a hand-drawn floor plan of the subject Me-n-Eds. The officers also searched an apartment in the complex and found a backpack. Inside the backpack, the officers found a wallet containing two drivers licenses. One was for Miller and the other was for Jones. There was also a notebook inside the backpack. The word "Manifest" was written on the cover.
Charlotte Costello, the manager of the subject Me-n-Eds, testified that the restaurants floor plan was unique and did not resemble the other two Me-n-Eds restaurants in Visalia.
The Defense
Appellant testified. After he graduated from high school in 2002, he joined the Army National Guard. Over the next few years, he was assigned to active duty in Iraq and later became an active duty recruiter for the Army. After being released from active duty in early 2006, appellant returned to Visalia to live with his mother and stepfather. He was supposed to return to Iraq in July 2006.
Appellant went to work for Me-n-Eds in March 2006. After returning to Visalia, appellant ran into Miller, with whom he had been friends in high school. They began to see each other pretty often, at least three times a week. Miller would often come to the Me-n-Eds and eat there. In June 2006, Miller would visit appellant at the Me-n-Eds at least twice a week. Occasionally he would pick up appellant from work when appellant worked the night shift. On those occasions, Miller would sometimes come in about 15 minutes before appellant was to get of work and just hang out and talk to everybody. Miller visited most often when appellant was working the dayshift.
Appellant was suspended from his employment with Me-n-Eds on June 29 or June 30, 2006. A female employee had falsely accused him of hitting her, and after his suspension, appellant was planning to come in to talk to the manager about the accusation. Appellant was not irritated at the manager or mad that he had been suspended before he had a chance to tell his side of the story.
Appellant saw Miller the Friday after his suspension around 5:00 or 6:00 p.m. They drove up to San Jose in Millers car to visit Millers friend, Jones. Jones had a computer program for recording rap songs that Miller was interested in. When they got to San Jose around 9:30 or 10:00 p.m., they met up with Jones and some of his friends and went to a few nightclubs. Around 3:30 a.m., appellant, Miller, and Jones headed back to Visalia. Miller and Jones dropped appellant off at his house early in the morning.
Appellant slept late and did not wake up until sometime between 1:00 and 5:00 p.m. on Saturday, July 1, 2006. He woke up when his girlfriend, Leslie Casillas, called him. Leslie and her younger sister, Jenny Casillas, then came over and hung out at appellants house until they went out around 8:00 p.m. to go to a party. After going to two parties that night, Leslie and appellant returned to his house to sleep around 2:00 a.m.
On Sunday, July 2, 2006, appellant woke up around 10:00 a.m. when Jenny called to speak with Leslie. Leslie went home around 1:00 or 2:00 p.m. After Leslie left, Miller came over and drove appellant to Millers apartment. The only people there were appellant, Miller, and Jones. Appellant stayed until around 6:00 p.m., and then Miller drove appellant home.
About an hour later, Leslie came to pick up appellant. They went to the store and then returned to Leslies house around 8:00 p.m. They went to Leslies room and spent the evening watching DVDs. Jenny joined them later on. Appellant and Leslie went to sleep around 11:30 p.m. The following morning, appellant returned to his own house sometime between 9:30 and 10:30 a.m.
After he returned home on Monday, July 3, 2006, appellant just hung around the house all day. Miller called late Monday night and asked if he could use the Internet at appellants house.
On Tuesday, July 4, 2006, Miller and Jones arrived at appellants house to use the Internet between midnight and 1:00 a.m. The three hung out together all night, using the Internet and talking. Appellant, Miller, and Jones left around 6:00 a.m., when Appellants mother and his stepfather returned home from work.
Appellant had Miller and Jones drop him off at the house of his friend, Desiree, because he wanted to avoid his mother who would likely be angry with him for having his friends over at the house. Appellant stayed at Desirees house from about 6:00 a.m. until 1:00 p.m., and then returned home. Around 4:00 p.m., Miller picked up appellant and took him back to Millers apartment. Jones and Millers girlfriend, Lawrence, were both at the apartment. Appellant kicked back while Miller worked on recording some rap lyrics. Jones was working on the computer and burned a CD for Miller. Jones then started packing because he had classes the next day in San Jose.
Appellant, Miller, and Jones left Millers apartment around 1:00 a.m., on Wednesday, July 5, 2006, and drove downtown to see if any nightclubs were open. Nothing was happening, so they decided to hop on the freeway and take Jones back to San Jose. They arrived in San Jose around 5:30 or 6:00 a.m. After they dropped off Jones, appellant and Miller turned around and came back to Visalia, arriving at Millers apartment around 10:00 a.m. Miller ran to change his clothes because he was late for work. Miller told appellant to go ahead and sleep. Appellant lay down on the couch. The next thing he remembered was the police coming in and taking him down to the police station.
Agent Sumpter interrogated appellant about the Me-n-Eds robbery. Appellant told Agent Sumpter he was home on the night of Sunday, July 2, 2006, and did not mention being at Leslies house. Appellant testified he was not being untruthful and explained he was confused and thought Agent Sumpter was asking him about Monday night. Appellant was being truthful when he denied any involvement in Me-n-Eds robbery and the home invasion at Thums house.
Leslie and Jenny Casillas both testified and corroborated appellants testimony concerning his activities between Saturday, July 1, 2006, and Monday, July 3, 2006.
Thums neighbor, Joseph Kersten, testified that he frequently observed "a lot of traffic in and out" of Thums house. Often cars would pull up and people would go inside the house and then come back out and leave five minutes later.
DISCUSSION
I. Motion to Sever
Appellant contends that by denying his pretrial motion to sever the Me-n-Eds counts from the home invasion counts, the court abused its discretion and violated his fair trial and due process rights. We disagree.
"`The law prefers consolidation of charges. [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 574.) Section 954 states in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts."
Here, appellant does not contest that the charges arising from the Me-n-Eds incident were of the same class of crimes as the charges arising from the incident at Thums residence. When the charged offenses are of the same class, the statutory requirements for joinder are satisfied. (People v. Kraft (2000) 23 Cal.4th 978, 1030.)
A trial court may sever counts that are otherwise joinable. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Section 954 provides that the court, "in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." "Where the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. [Citations.] [¶] In assessing potential prejudice, we examine the record before the trial court at the time of its ruling. The relevant factors are whether (1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case. [Citations.]" (People v. Zambrano, supra, 41 Cal.4th at pp. 1128-1129; see also People v. Koontz (2002) 27 Cal.4th 1041, 1075.)
In this case, the parties dispute whether the evidence concerning the Me-n-Eds and home invasion incidents would have been cross-admissible in separate trials. Cross-admissibility concerns whether evidence on each of the joined charges would be admissible in separate trials pursuant to Evidence Code section 1101. (People v. Bradford (1997) 15 Cal.4th 1229, 1315-1316.) After reviewing the parties arguments, we are inclined to agree with appellant that the incidents were not sufficiently similar to conclude that the evidence would be cross-admissible for purposes of proving motive, intent, or identity. However, the absence of cross-admissibility in this case does not by itself demonstrate prejudice. Section 954.1, which was enacted with the passage of Proposition 115 in 1990, expressly permits joinder of offenses even when the evidence is not cross-admissible. (People v. Hill (1995) 34 Cal.App.4th 727, 734-735; see also People v. Bradford, supra, 15 Cal.4th at p. 1314, fn. 13.) "Thus, `cross-admissibility is not the sine qua non of joint trials. [Citation.] Therefore, while `prejudice is usually dispelled if `evidence of one crime would be admissible in a separate trial of the other crime [citation], `lack of cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder. [Citations.] [Citations.]" (People v. Geier (2007) 41 Cal.4th 555, 575.)
Evidence Code section 1101, subdivision (a), generally provides that evidence of specific instances of the defendants conduct is not admissible to prove the defendants conduct on a specified occasion. Subdivision (b) permits evidence of the defendants other crimes "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
In light of section 954.1, the sole question upon review of the denial of a motion for severance is whether the prejudice to the defendant from joinder of the cases outweighed the benefits. (People v. Hill, supra, 34 Cal.App.4th at p. 735.) The determination of prejudice is necessarily dependent upon the particular circumstances of each individual case, but the remaining factors provide guidance to review a severance motion. (Ibid.) Given that the death penalty is irrelevant in this case, we must determine whether some of the charges were likely to unusually inflame the jury against the defendant, and whether a weak case was joined with a strong case or another weak case so that the total evidence may have altered the outcome of some or all of the charges.
In examining the relevant factors, the trial court did not abuse its discretion in denying appellants severance motion. Appellant argues that the circumstances of the home invasion charges were unusually inflammatory because the prosecutions theory was that, during the attempted robbery, appellant shot Thum at close range and paralyzed him, whereas, in the Me-n-Eds case, no one was injured and appellant was not alleged to be one of the two persons that entered the restaurant. We find appellants argument unconvincing. All of the charges were violent and serious crimes, which were similarly repugnant. In the Me-n-Eds incident, intruders, at least one of whom appeared to be armed with a handgun, threatened to use force against the employees. The attempted robbery was thwarted because an employee had the presence of mind to run and lock herself and her supervisor into the office where the cash drawers were located and to call 911, thus leading to a prompt police response. But for this intervention, it is possible that the fates of one or more of the Me-n-Eds employees could have been as bad as Thums. Furthermore, even though appellant was not alleged to be one of the two people who entered the Me-n-Eds, his role in the commission of the offenses was no less serious or instrumental. As the court observed in denying appellants motion to sever, there was strong circumstantial evidence to support the inference that appellant was the driver of the getaway car and that appellant used his knowledge from working at the Me-n-Eds to help plan out the attempted robbery of the restaurant. Thus, contrary to appellants assertion, appellants role in the Me-n-Eds incident was not minor and the home invasion charges were not likely to inflame the jury more than the Me-n-Eds charges.
In denying the severance motion, the court reasoned in relevant part: "[C]learly Mr. Pritchetts involvement in the Me-n-Eds robbery is almost entirely circumstantial. As we all know circumstantial evidence is just as good as direct evidence, and sometimes its it better evidence than saying I saw him do the robbery. [¶] In this case we have the girlfriend having all three defendants leaving at the same time and coming back at the same time, apparently after the home invasion robbery. So we have that circumstantial evidence. [¶] We have the circumstantial evidence that I believe it was Mr. Millers car that was involved in the Me-n-Eds robbery. Mr. Miller apparently wasnt driving his own car. Hes identified inside. Hes circumstantially, if not by eyewitness testimony, hes inside. [¶] So the clear assumption, not just speculation, is somebody other than Mr. Miller is driving his own car. Its Pritchett. Also, hes got the motive. He just got suspended from working there the day before. Tremendous coincidence, and he knows the workings of Me-n-Eds, because he worked there. [¶] You take all those factors into consideration, and someone seen outside apparently looks like his actions is someone who is a lookout or going to be the driver, driver of the getaway car. I think thats enough evidence to convict him if a jury wants to convict. Hes got the motive and opportunity, and hes seen with the other two individuals before and seen again shortly after the other home invasion robbery."
We are also unconvinced by appellants argument that the evidence against him in the Me-n-Eds case was weak compared to the evidence against him in the home invasion case. In support of his argument, appellant points out that he was directly identified by Thum in connection with the attempted robbery and shooting, whereas his involvement in the Me-n-Eds case was based primarily on circumstantial evidence. However, the court stated in denying appellants motion to sever, circumstantial evidence is just as good as direct evidence. "That the evidence against [appellant] on some of the counts consisted of eyewitness statements and on other counts was circumstantial does not establish improper consolidation of charges. Direct evidence is neither inherently stronger nor inherently weaker than circumstantial evidence." (People v. Mendoza (2000) 24 Cal.4th 130, 162.) In our view, both cases were equally strong. Hence, there was no spillover effect of a weak case being joined with a strong case or with another weak case, to alter the outcome of some or all of the charges. For all the forgoing reasons, we conclude the court did not abuse its discretion in denying appellants severance motion.
"Because the issue is raised on appeal following trial, we must also consider whether, `despite the correctness of the trial courts ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law. [Citation.]" (People v. Sandoval (1992) 4 Cal.4th 155, 174; People v. Geier, supra, 41 Cal.4th at p. 575.) Our review of the record convinces us the failure to sever these charges did not result in gross unfairness.
Appellant primarily relies on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 (Bean). In Bean, the defendant was convicted in one trial of the separate murders, robberies, and burglaries of two women. The Ninth Circuit reversed the conviction on the charges as to one of the women, concluding that the joinder of the charges deprived the defendant of a fair trial. In reaching its conclusion, the Ninth Circuit found that there was a "substantial disparity" in the strength of the evidence in the two cases. (Bean, supra, 163 F.3d at p. 1085.) Given the disparity between the evidence, as well as the lack of cross-admissibility of the evidence, the prosecutions encouragement to the jury "to consider the two sets of charges in concert, as reflecting the modus operandi characteristic of [the defendants] criminal activities" (id. at p. 1084), and the lack of ameliorative instructions to guide the jury, the Ninth Circuit reasoned that the jury could not have compartmentalized the evidence and assessed the evidence on the two sets of crimes separately. (Id. at pp. 1084-1086.)
We find Bean distinguishable. First, for reasons discussed above, we disagree with appellant that the Me-n-Eds evidence was relatively weaker than the home invasion evidence. Rather, there was strong circumstantial evidence that appellant played an integral role in the Me-n-Eds incident and there is no indication his conviction on the counts arising from that incident was affected by a spillover effect of his conviction of the home invasion counts.
Second, unlike Bean, the prosecutor did not "repeatedly urge[] the jury to consider evidence of [appellants] `modus operandi to determine whether he was guilty of both the [Me-n-Eds and home invasion] crimes." (Bean, supra, 163 F.3d at p. 1083, first italics added.) Throughout her closing argument, the prosecutor made clear that the case involved separate crimes on separate occasions, and she carefully described each incident without any suggestion that evidence from one incident could or should be used to bolster the jurys conclusion regarding the other incident. In suggesting that the prosecutors argument was analogous to the prosecutors argument in Bean, appellant cites two brief comments taken out of context from the prosecutors rebuttal argument. When viewed in context, it becomes clear the prosecutor was not urging the jury to consider the two sets of charges in concert but was responding to specific arguments raised by trial counsel for Miller and appellant in their closing statements.
Thus, in one instance during her rebuttal, the prosecutor argued: "One of the last things that I believe [appellants trial counsel] said was that he doesnt think its the same three guys, different MO. To the contrary, its the same MO. Robberies, three men, two guns. It is the same MO." (Italics added.) In the other instance, the prosecutor argued: "Millers statement. The argument is, well, basically it boils down to if he admitted to one, he would have admitted to another. Not so. Why? Because these are completely two different crimes of gravity. [¶] You have your Me-n-Eds case. Well, it was just supposed to be a prank, pee their pants. No gun was discharged; nobody was even injured. But you compare that to what happened when they botched up the Me-n-Eds heist. They had their nerve up to do this one. What happens in the home invasion one? Things really changed, didnt they? Now its attempted murder. Somebody was hurt seriously. [¶] A gun was discharged, and theres no way that that can be described as a prank. So how unreasonable is it for a person to deny one and admit the other? Considering the circumstances and the two crimes, it is very reasonable." (Italics added.) When viewed in their proper context, the italicized comments relied on by appellant do not support his contention that the prosecutors argument amounted to the same improper argument which was found prejudicial in Bean.
Third, different witnesses testified regarding the Me-n-Eds and home invasion incidents, and the prosecutor presented the evidence concerning the Me-n-Eds incident, followed by the evidence concerning the home invasion incident. The jury was also instructed with Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 3515 that each count charged in the case was a separate crime, it must consider each count separately, and it must return a separate verdict for each one. (See People v. Koontz, supra, 27 Cal.4th at p. 1075 [finding no error in joinder and explaining, among other things, that the jury was instructed "in the language of CALJIC No. 17.02 to decide each count separately"].)
We thus conclude the court properly denied appellants motion for severance. The home invasion case was not substantially stronger than the Me-n-Eds case, the consolidated charges were not inflammatory, and appellants due process rights were not violated by the prosecutors references to the two cases in closing argument.
II. Sufficiency of the Evidence to Support the Commercial Burglary Conviction
Appellant challenges the sufficiency of the evidence to support his conviction of commercial burglary under an aiding and abetting theory. Appellant contends that "the evidence was insufficient to support a reasonable conclusion that appellant knew that the codefendants intended to enter the Me-n-Eds, that they intended to commit a theft there, or that appellant intended to commit, encourage or facilitate the commission of the burglary of Me-n-Eds." We reject appellants contention.
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, 26 Cal.3d at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.) If the circumstances reasonably justify the trier of facts findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Here, the evidence sufficiently supports the jurys conclusion that appellant was guilty of commercial burglary under an aiding and abetting theory. Burglary is committed when a person enters a dwelling or building with the intent to commit theft or any felony. (§ 459.) A defendant is liable as an aider and abettor when he or she (1) has knowledge of the perpetrators unlawful purpose, (2) intends to commit or encourage the offense, and (c) by act or advice aids or encourages commission of the offense. (People v. Hill (1998) 17 Cal.4th 800, 851.) The intent required for burglary is usually inferred from all the facts and circumstances surrounding the crime. (People v. Lewis (2001) 25 Cal.4th 610, 613.)
The evidence at trial showed that appellant worked for the subject Me-n-Eds for four months before being suspended, and that the burglary took place approximately three days after his suspension. The night of the burglary, appellant and his codefendants, Miller and Jones, were seen leaving Millers apartment together in Millers white Cavalier. David Malm observed a similar car parked by the loading docks of the Me-n-Eds shopping complex around the time of the burglary. Before parking, the car stopped in the middle of the road and the driver looked at Malm. Malm observed the driver was wearing a black do-rag. The morning following the offenses, appellant and the codefendants were seen returning together to Millers apartment. Appellant was arrested a few days later in Millers living room, where police located a black do-rag and a DVD case labeled "Strong Arm Robbery." A hand-drawn floor plan of the subject Me-n-Eds was subsequently found in Joness vehicle in San Jose. According to appellants own testimony, he made two trips with Miller to San Jose, once a few days before the Me-n-Eds incident to pick up Jones and bring him back to Visalia, and once a few days afterwards, to drop off Jones again. Based on the forgoing circumstances, the jury could reasonably infer that appellant intended to, and did, assist his codefendants by using his knowledge of the layout of the Me-n-Eds to help create a drawing of the restaurants floor plan, accompanying them to the shopping complex, and driving the getaway car and serving as a lookout while they entered the Me-n-Eds around closing time. (See e.g., People v. Silva (1956) 143 Cal.App.2d 162, 169 [person serving as lookout and getaway driver liable as an aider and abettor].)
Although appellant posits that Miller would have been equally familiar with the layout of the Me-n-Eds and closing time procedures based on appellants testimony that Miller frequently visited him at closing time, appellants argument is based on inferences favorable to his own position rather than to the jurys verdict. The drawing of the Me-n-Eds floor plan, though crudely rendered, included details with which an employee would more likely be familiar than a visitor, such as the walk-in refrigerator, which was labeled "w/in" in the drawing. Appellant also complains about the lack of eyewitness identification or physical evidence, such as fingerprints or hair follicles, directly tying him either to the white car observed at the Me-n-Eds shopping complex, the black do-rag found in Millers living room, or the floor plan found in Joness vehicle. However, as discussed above, the law does not recognize direct evidence as being inherently stronger or weaker than circumstantial evidence. (People v. Mendoza, supra, 24 Cal.4th at p.162.) When viewed in their entirety, the circumstances surrounding the burglary provide substantial evidence to support appellants conviction under an aiding and abetting theory.
III. Sufficiency of the Evidence to Support the Conspiracy Conviction
Appellant next challenges the sufficiency of the evidence to support his conviction of conspiring to rob the Me-n-Eds. Reprising essentially the same arguments he made in his challenge to the sufficiency of the evidence supporting his commercial burglary conviction, appellant contends "[t]here was no evidence that he participated in the planning of the robbery or in any way assisted in the commission of the robbery." We disagree with appellants contention.
A conspiracy is an agreement by two or more persons to commit any crime. (§ 182, subd. (a)(1); People v. Morante (1999) 20 Cal.4th 403, 416.) A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. (§§ 182, subd. (b), 184; People v. Morante, supra, 20 Cal.4th at p. 416.)
The elements of conspiracy may be proven with circumstantial evidence, "particularly when those circumstances are the defendants carrying out the agreed-upon crime." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464; see also People v. Osslo (1958) 50 Cal.2d 75, 94-95.) The overt acts charged as part of the conspiracy can be circumstantial evidence of the conspiracys existence and may establish the conspiracys purpose and intent. (People v. Herrera, supra, 70 Cal.App.4th at p. 1464.) The existence of a conspiracy may also be "`inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, quoting People v. Cooks (1983) 141 Cal.App.3d 224, 311.)
The circumstantial evidence detailed above supports the jurys verdict that appellant was part of the conspiracy to rob the Me-n-Eds. As appellant points out, the first amended information alleged three overt acts that were arguably applicable to appellant; i.e., "obtained a diagram of Me-n-Eds Pizza," "drove to location, parking in rear," and "left in waiting older white car." (Unnecessary capitalization omitted.)For the reasons discussed above, we find there was substantial evidence linking appellant to these overt acts and supporting his conviction of conspiracy to commit robbery.
IV. Section 654
Appellant contends the court erred in imposing a sentence on count 8 (attempted robbery) consecutive to his sentence on count 6 (attempted murder). Appellant argues his sentence on count 8 should be stayed pursuant to section 654 because the crimes constituted a continuous course of conduct pursuant to a single intent to rob the victim. We agree.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendants intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Where the trial court erroneously fails to stay a term subject to section 654, we must stay the sentence on the lesser offense while permitting execution of sentence on the greater offense consistent with the intent of the sentencing court. (People v. Pena (1992) 7 Cal.App.4th 1294, 1312.)
Although a separate violent act against an unresisting victim of a robbery or attempted robbery may be found to be according to an independent objective (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300; People v. Nguyen (1988) 204 Cal.App.3d 181, 190), Thum was not an unresisting victim and the violent act was not separate from the robbery attempt. The prosecutor argued, and the record supports the conclusion, that Thum was shot while resisting the attempted robbery. The record reveals that during the course of the attempted robbery, appellant stood at the threshold of Thums bedroom, pointed his gun at Thum, and warned Thum not to try any "funny shit." Thum tried to offer appellant some cash that was on his dresser to distract him from the larger amount of cash he had hidden in his room. However, when appellant commanded Thum to come over to him, Thum responded by slamming the door shut and running to retrieve his own gun, which was later found lying next to him. Appellant shot Thum once before fleeing, thereby foiling Thums attempt to resist the attempted robbery. Accordingly, it appears appellants act of firing the gun was simply a means of accomplishing or facilitating one objective: to rob Thum. Therefore, the three-year consecutive sentence on count 8 for appellants conviction of attempted home invasion robbery must be stayed pursuant to section 654.
The prosecutor thus argued: "Mike Thum resisted. He resisted this robbery. Went to go get his own — he had been burglarized . . . two times before, and because of the two times before, went to get his own gun, that he never shot . . . . As a reasonable homeowner, he goes to get his gun. And what happened? Pritchett shoots him. Pritchetts the one standing there with the gun. And as Mike Thum turns to grab his, Pritchett shoots him in the back."
V. Presentence Conduct Credits
Appellants next contention is somewhat confusing. The title of his argument is that "the trial court erred in refusing to award presentence conduct credits for the indeterminate term." (Unnecessary capitalization & underscore omitted.) However, in view of some of the cases he cites, appellant could also be arguing that the court should have awarded him presentence conduct credits under section 4019, rather than section 2933.1. In either case, it is clear from the record that the court properly awarded appellant presentence conduct credits under section 2933.1.
Section 2933.1 provides, in pertinent part: "(a) [A]ny person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit . . . . [¶] . . . [¶] (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in . . . a county jail . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."
In People v. Thomas (1999) 21 Cal.4th 1122, 1125-1127, our Supreme Court held that defendants sentenced both to determinate terms and indeterminate life terms are entitled to presentence custody credit. The amount of credit is determined by whether a defendant is convicted of a violent felony as listed in section 667.5, subdivision (c). Defendants convicted of such violent felonies are limited to an award of 15 percent of actual presentence credit pursuant to section 2933.1.
Here, appellant was convicted of a crime listed in section 667.5, subdivision (c), and therefore is bound by the 15 percent limit in section 2933.1. (See § 667.5, subd. (c)(12) [attempted murder].) Accordingly, the court properly awarded him presentence conduct credits under section 2933.1, rather than section 4019. The cases appellant cites are simply inapposite to the present situation. (See e.g., People v. Philpot (2004) 122 Cal.App.4th 893 [§ 4019 credits available to defendant sentenced to indeterminate life term under three strikes law because current felonies were not violent felonies listed in section 667.5, and therefore 15 percent limit in section 2933.1 was inapplicable].)
Moreover, notwithstanding appellants suggestion to the contrary, the court properly applied the conduct credits against one of his determinate terms, and not his consecutive indeterminate life term. (§ 2900.5, subd. (b) ["Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed"]; People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9 ["when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody"].) Specifically, at sentencing, the court stated it was awarding the 396 days of presentence custody credits against appellants three-year term for the attempted home invasion robbery (count 8), and properly did not award any credits against the other terms imposed. This was in accordance with the law and there is no authority for appellants suggestion that he was entitled to an additional award of presentence custody credits against his indeterminate life term.
Although we conclude the court properly awarded appellant conduct credits under section 2933.1, rather than section 4019, it appears the court made a computational error in its determination of appellants presentence custody credits. The parties do not dispute that appellant served 337 days in jail prior to sentencing. Under section 2933.1, he was entitled to presentence conduct credit for 15 percent of that time, i.e., 50 days. However, the court awarded appellant 59 days of conduct credit. Thus, the minute order reflects the trial court awarded appellant "credit for 337 days actual time plus 59 days conduct credit for a total of 396 days served awaiting sentence." It appears that the court relied on the probation officers report, which also contains the computational error just described. Out of an abundance of caution, we will not modify the award but will remand the matter to the trial court for the purpose of recalculating appellants presentence custody credits. (See People v. Fares (1993) 16 Cal.App.4th 954, 957 [redetermination of custody credits is best done by trial courts who are in better position to ascertain custody dates, etc.].)
VI. Errors in Abstract of Judgment
As indicated above, we have independently found two errors in the abstract of judgment concerning appellants conviction of attempted murder in count 6. First, the abstract of judgment incorrectly states that appellant was convicted of "Attempted Willful Deliberate Premeditated Murder." However, the jury returned a not true finding on the special allegation that the offense was committed willfully, deliberately, and with premeditation. The jurys verdict thus constituted a conviction of second degree attempted murder, a lesser offense included within the offense of attempted premeditated murder. Second, the abstract of judgment only reflects that appellant received an indeterminate term of 25 years to life for the section 12022.53, subdivision (d) enhancement, and omits any reference to the determinate term of seven years the court imposed for the substantive offense of attempted murder. We therefore modify the judgment and direct the court to issue an amended abstract of judgment, correctly reflecting that appellant was convicted of second degree attempted murder in count 6, and was sentenced to the middle term of seven years (§ 664, subd. (a)) for the substantive offense in addition to the 25 years to life imposed for the firearm enhancement which correctly appears in the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court has inherent power to correct clerical errors in abstract of judgment on its own motion].)
VII. Brady Error
Lastly, appellant joins codefendant Millers argument, raised in his separate appeal, that the prosecution failed to timely disclose material evidence in violation of his due process rights under Brady v. Maryland, supra, 373 U.S. 83, and his dismissal, mistrial, and new trial motions should have been granted on that basis. We conclude no Brady violation occurred because the undisclosed evidence was not material.
A. Background
On March 28, 2007, towards the end of appellants two-week jury trial, Millers trial counsel moved "to dismiss the entire case on a basis of a Brady violation." The evidence at issue was a statement made by Katrell Collier, a friend of codefendant Jones, to San Jose Police investigators. It appears Collier was questioned in connection with unrelated robberies that took place in San Jose near the end of June 2006 (the so-called "Craigslist robberies"), for which Jones was also under investigation. Agent Sumpter explained to the court that sometime around August 2006, he received a phone call from a San Jose Police detective that was working on the Craigslist robberies. Agent Sumpter then described what he learned from the detective:
"[The detective] was contacted by [Collier], who told him that he felt bad; he lied to the investigators about his knowledge of the Craigslist robberies. He also advised him at that time, and its my understanding that was a telephone contact with [Collier]— it may have been in person, but I believe it was a telephone contact, that [Collier]also advised him that defendant [Jones] had confessed to him that he was involved in a home-invasion robbery in the city of Visalia and a guy was shot. That detective wanted to know if I wanted him to obtain a statement from him regarding this. The obvious answer was, `Yes.
"It was shortly thereafter that [Collier]killed himself. I dont know whether or not a detailed statement was ever taken from him in person. Ive never received anything. The whole thing became a big nothing with a dead person, who is gonna report that one of the defendants had confessed to him, and it turned out to be absolutely nothing. Thats the whole thing."
Millers attorney advised the court that he had learned from the prosecutor about Colliers statement for the first time on the afternoon of March 27, 2007. Counsel argued that the evidence was "Brady material" that should have been disclosed earlier. The court, however, was unconvinced that the evidence was material and denied Millers Brady motions, as is reflected in the following colloquy:
"THE COURT: But . . . what did [Collier] allegedly say?
"OFFICER SUMPTER: That Ellis Jones had told him that he was involved in a home-invasion robbery in the city of Visalia in which a gentleman got shot.
"THE COURT: Thats it?
"OFFICER SUMPTER: Thats the extent.
"THE COURT: [Collier] did not implicate himself?
"OFFICER SUMPTER: No.
"[DEFENSE COUNSEL]: I dont know what the extent of the statement was. I dont know what the circumstances. He already admitted he lied to the police about his involvement in the Craigslist over there. Then after he gives this information . . . there was the added charges towards the end of — July 25th from just the Me-n-Eds case, when the bail was raised on Mr. Miller with the added charges. That was all the time period when all of this was going on over in San Jose.
"The case was getting more serious, the new attempt robbery and the home invasion charges. Now all of a sudden he comes forward and doesnt want to be — this is speculation, doesnt want to be named by these people as being part of it, doesnt want to be brought in. I better tell him that Jones confessed. I dont know. He obviously had some knowledge of it, and that knowledge was not given to us to investigate fully, which was the crux of our — my discovery requests, of my attempts.
"I was about ready to give up that whole thing because I couldnt make the connection until
"THE COURT: But Im still not hearing any connection. All that [Collier] allegedly said is Jones was involved in — told me he was involved in a home-invasion robbery, not that — my antennas went up because I thought it was going to be that [Collier] said, `I was involved in it. I havent heard that.
"[DEFENSE COUNSEL]: Well, but if he says `my friend and it turns out theyre best friends, rap group partners, the whole works, `my friend confessed to me about doing this home-invasion robbery and somebody got shot, and gave some details. And, the `robberies over here you thought I was involved with, that I denied, I was kind of involved.
"I dont know. Sure, it wasnt a smoking gun confession, `I did it all. But its a connection that somebody that turned in a stolen gun, confessed to other crimes with the codefendant, and then committed suicide that, arguably, is a questionable suicide. . . . [¶] . . . [¶]
". . .They gave us all the Craigslist stuff. Why not give us the information that he had some knowledge of the case? At least we could talk to people. Its crucial.
"THE COURT: Well, certainly if he had confessed to something, but the other problem is, apparently, the officer certainly wanted to follow up on this, and they werent able to because he committed suicide.
"[DEFENSE COUNSEL]: They had no interest in it because it was out of their jurisdiction. Sure, Tulare County could have went over there and started interviewing because they had information from that.
"THE COURT: But it wasnt able to happen anyway because he died.
"[DEFENSE COUNSEL]: Followed up with his roommates, with other acquaintances, co-suspects on the Craigslist. Other things could have been done. San Jose probably had no need to do that because it was out of their jurisdiction. My gosh, my office couldve done it had we known the connection. Were not gonna go start interviewing everybody in San Jose for no reason.
"THE COURT: Sure. I understand that. But at this point it doesnt rise to the level of a Brady that would necessitate a dismissal. We dont even have the person saying, `I committed anything. Certainly I understand at least you want to go talk to this guy, because hes now saying that a codefendant has admitted to him of being in a home-invasion robbery.
"[DEFENSE COUNSEL]: So the Courts finding is that for Brady material to be deemed Brady material, it has to be absolutely confession-of-the-crime-by-somebody-else type material?
"THE COURT: No, but it has to be exculpatory. What Im being told right now, theres nothing exculpatory for any of the three defendants. If anything, its inculpatory of Mr. Jones, who Ive already dismissed those charges.
"[DEFENSE COUNSEL]: My theory is Katrell Collier came over to Tulare County that weekend and committed this offense, and the identifications were done through improper suggestions to Mr. Thum after he woke up from his ordeal."
After the court rejected counsels argument and denied the motion to dismiss the case, counsel immediately moved for a mistrial on the same ground and the court denied that motion as well. Later, the court denied Millers motion for a new trial based on the alleged Brady violation.
B. Analysis
Under Brady v. Maryland, supra, 373 U.S. 83, 87, the prosecution must not suppress "evidence favorable to an accused." A failure to disclose evidence, whether willful or inadvertent, violates due process if the evidence "is material either to guilt or to punishment." (Ibid.) Evidence is material only if there is "`a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (In re Williams (1994) 7 Cal.4th 572, 611.) Evidence favorable to the accused includes both exculpatory evidence and impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
The "touchstone of materiality is a `reasonable probability of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A `reasonable probability of a different result is accordingly shown when the governments evidentiary suppression `undermines confidence in the outcome of the trial. [Citation.]" (Kyles v. Whitley (1995) 514 U.S. 419, 434.) In determining materiality, "[t]he reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutors incomplete response." (United States v. Bagley (1985) 473 U.S. 667, 683.)
In this case, there is no dispute the prosecution failed to timely disclose Colliers statement to the defense. However, appellant has not demonstrated any prejudice as a result of the late disclosure. As the court aptly noted in denying Millers Brady motions, there was "nothing exculpatory for any of the three defendants" in Colliers statement. Jones purportedly admitted to Collier simply that he was involved in a home-invasion robbery in Visalia where someone was shot. Jones did not claim to be solely responsible for the crimes and the evidence at trial showed that there were three intruders in Thums house on the night of the shooting. In the argument raised in his briefs, codefendant Miller does not appear to directly contest the courts finding that nothing in Colliers statement was favorable to him or his codefendants. Rather, Miller relies on the same theory, advanced by his trial counsel below, that the prosecutions failure to timely disclose the evidence denied him "the opportunity to investigate and explore a viable third party culpability defense." Thus, he asserts "[i]t was not inconceivable an immediate investigation would have led to the discovery of other impeachable evidence that could have reasonably linked Collier to [the Me-n-Eds and Thum] incidents." However, Miller can point to no specific facts revealed by the statement or the circumstances surrounding it that would reasonably suggest Collier was in any way involved in the instant crimes or that further investigation would have likely yielded evidence of such involvement. Millers theory is entirely speculative and he has failed to show that the absence of the undisclosed evidence prevented him from receiving a fair trial. Accordingly, the court did not err in denying his dismissal, mistrial, and new trial motions on the ground his due process rights were violated under Brady v. Maryland, supra, 373 U.S. 87.
DISPOSITION
The abstract of judgment is ordered modified to reflect that appellants sentence on count 8 was stayed pursuant to section 654. The abstract of judgment is also modified to reflect that appellant was convicted of second degree attempted murder in count 6, and that appellant was sentenced to the middle term of seven years for that offense. The judgment is affirmed as modified. The matter is remanded to the trial court for the limited purpose of recalculation of presentence custody credits. The court is directed to prepare an amended abstract of judgment setting forth the custody credits awarded and reflecting the above modifications and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR:
CORNELL, Acting P.J.
GOMES, J.