People v. Salgado, E042118 (Cal. App. 7/29/2008), E042118

Decision Date29 July 2008
Docket NumberE042118
PartiesTHE PEOPLE, Plaintiff and Respondent, v. RAUL SANTANA SALGADO, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Appeal from the Superior Court of Riverside County, No. INF50030, John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, Acting P. J.

A jury convicted defendant Raul Salgado of attempted murder (Pen. Code,1 §§ 187, subd. (a), 664), assault with a deadly weapon with force likely to produce great bodily injury (§ 245, subd. (a)(1)), and robbery (§ 211).

The jury found that the attempted murder was willful, deliberate, and premeditated, and that defendant personally used a hatchet in the commission of the attempted murder and robbery. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The jury also found that the victim was over age 65. (§ 667.9, subd. (a).)

In a bifurcated proceeding, the trial court found that defendant had previously been convicted of robbery, which was a strike within the meaning of sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1), and a prior conviction within the meaning of section 12022, subdivision (b). The court also found a prior conviction for possessing marijuana for sale to be true within the meaning of section 667.5, subdivision (b).

Defendant was sentenced to life with the possibility of parole on the attempted murder charge, plus two one-year enhancements. Upper-term sentences were imposed on counts 2 and 3 but were stayed pursuant to section 654.

Defendant appeals, contending that his convictions should be reversed because the prosecution failed to turn over material exculpatory evidence to the defense, and because his counsel was constitutionally ineffective in failing to obtain and use the exculpatory evidence. He also argues that the prior juvenile conviction was not usable as a strike prior, and that the aggravated terms imposed on counts 2 and 3 were improper under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 863-864] (Cunningham).

FACTS

The victim, Taebong Kang, testified that he was the owner and operator of a liquor store in north Palm Springs.2 On February 9, 2005, defendant came into the store and took a can of beer. Kang confronted him and defendant returned the beer. Kang recognized defendant because he had been in the store five or six times previously.

The next morning, Kang was behind the counter in his store when defendant entered carrying a small ax. Defendant jumped over the counter and tried to hit Kang with the ax. Defendant punched Kang and began choking him. Defendant took money and a wallet from Kang before Kang lost consciousness.

A female customer entered the store and saw a man on top of Kang. She screamed and the man jumped over the counter, pushed her, and ran out of the store. She did not see the man's face; however, after he had run some distance, she briefly saw his profile. A few days later, at a field identification, she told officers that defendant was not the person she saw in the market.

Two employees of a tire store adjacent to the liquor store testified that they saw defendant in the parking lot shortly before the attack. One of the employees, Luis Salazar, saw that defendant was drinking from a large cup from a Jack-in-the-Box fast-food restaurant. He also saw defendant running from the liquor store. When Salazar entered the store, he saw a Jack-in-the-Box cup on the floor. Defendant's fingerprints were found on the cup.

Two days later, Salazar saw defendant on the street. Police apprehended defendant, and both tire store employees and Kang identified defendant. A police officer also testified that he saw defendant walking near the liquor store shortly before the attack on Kang.3

As noted above, the jury convicted defendant on all charges.

DISCUSSION
A. The Alleged Brady4 Violation

A forensic technician testified that she responded to the crime scene, took pictures, and collected the fingerprint evidence. On direct examination, she did not mention interviewing Kang or preparing a composite drawing of the suspect.

On cross-examination, defense counsel asked: "Is there any evidence that you didn't bring to court or anything that you didn't put into evidence that you can think of?" Receiving a negative reply, defense counsel asked: "Were you asked to do a composite drawing?" The technician responded affirmatively, and defense counsel asked where it was. The technician responded that she had a copy of it and defense counsel commented: "I have never seen it." He then changed the subject.

After trial, defense counsel asked that the composite drawing be produced, and the prosecution was ordered to produce it. Defense counsel then filed a motion for a new trial. The defense argued that, despite discovery requests, the drawing and an accompanying description of the suspect had not been turned over to the defense, and that they were exculpatory because they did not match defendant's description.

In response, the prosecution stated that it had provided a report by the technician to the defense before trial, and that the technician's report mentioned the composite drawing. The prosecution concluded that defense counsel must have known about the composite drawing because he asked the technician if there was one. The prosecution pointed out that defense counsel could have asked to see the drawing after the technician stated she had a copy of it, could have asked for a side bar, or could have asked to see the drawing after the technician's testimony.

Defense counsel then stated that the technician's report had not been provided to him before trial, and he had asked about a composite drawing only because the technician "is known to have a history of selective evidence retention."5

The trial court denied the motion for a new trial.6 Although the court found that the composite drawing and the accompanying description of the suspect were very different from defendant, the court found little likelihood of misidentification in view of the fingerprint evidence and the witness testimony.

In Brady, the Supreme Court declared that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.)

Our Supreme Court has summarized the governing principles as follows: "The federal due process clause prohibits the prosecution from suppressing evidence materially favorable to the accused. The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials. [Citations.] The obligation is not limited to evidence the prosecutor's office itself actually knows of or possesses, but includes `evidence known to the others acting on the government's behalf in the case, including the police.' [Citation.] [¶] For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133.)

Defendant cites People v. Johnson (2006) 142 Cal.App.4th 776: "Only a few years ago, citing Brady and its progeny with approval for articulating `the special role played by the American prosecutor in the search for truth in criminal trials,' the [U.S. Supreme Court] encapsulated in one sentence the three components of a Brady violation: `The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' [Citation.] Here, where the sole component at issue is prejudice, [defendant] can meet his burden of establishing a Brady violation only if he shows that the withheld discovery was material in the sense `that "there is a reasonable probability" that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.' [Citations.]" (Id. at pp. 782-783.)

The United States Supreme Court expanded on the definition of materiality in Youngblood v. West Virginia (2006) 547 U.S. 867, noting that "a `showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal,' [citation]. The reversal of a conviction is required upon a `showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' [Citation.]" (Id. at 870.)

Despite the People's arguments to the contrary, we agree with defendant that the composite drawing and its accompanying description of the suspect were clearly exculpatory evidence that should have been disclosed to the defense. The composite drawing, based on information furnished by Kang...

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