People v. Salgado, E042118 (Cal. App. 7/29/2008), E042118
Decision Date | 29 July 2008 |
Docket Number | E042118 |
Parties | THE PEOPLE, Plaintiff and Respondent, v. RAUL SANTANA SALGADO, Defendant and Appellant. |
Court | California Court of Appeals Court of Appeals |
Appeal from the Superior Court of Riverside County, No. INF50030, John J. Ryan, Judge. 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.
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).
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.
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: (People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133.)
Defendant cites People v. Johnson (2006) 142 Cal.App.4th 776: (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 (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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