People v. Stewart

• Court: California Court of Appeals
• Writing for the Court: STEWART, J.
• Citation: People v. Stewart, 55 Cal.App.5th 755, 269 Cal.Rptr.3d 687 (Cal. App. 2020)
• Decision Date: 09 October 2020
• Docket Number: A155499
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brandon Justin Lamar STEWART, Defendant and Appellant.

55 Cal.App.5th 755

269 Cal.Rptr.3d 687

The PEOPLE, Plaintiff and Respondent,

v.Brandon Justin Lamar STEWART, Defendant and Appellant.

A155499

Court of Appeal, First District, Division 2, California.

Filed October 9, 2020

Marylou Hillberg, by Court- Appointment under the First District Appellate Project Independent Case System, for Appellant.

Xavier Becerra, Attorney General; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Assistant Attorney General; Eric D. Share, Alisha M. Carlile, Deputy Attorneys General, for Respondent.

STEWART, J.

Defendant and appellant Brandon Justin Lamar Stewart was convicted of forcible rape, digital penetration and misdemeanor battery on his cousin, Doe 1, when she was 15 and he was 19 years old. He was sentenced to 13 years in state prison. He argues he was deprived of his right to a fair trial under Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ( Brady ) in violation of the due process and confrontation clauses of the Fourteenth and Sixth Amendments because the prosecutor withheld impeachment information pertaining to a key prosecution witness, the trial court declined to review the document in camera and the juvenile court did not provide information in its files pertaining to that witness until after the conclusion of his trial. Further, the trial court erred, Stewart argues, by denying his motion for new trial based on the evidence he received from the juvenile court after the trial ended.

We conclude the prosecutor violated Brady and the trial court erred in denying the defense motion for new trial on that ground.

BACKGROUND

I.Procedural History

In December 2016, the Alameda County District Attorney charged Stewart with forcible sexual penetration and attempted forcible rape of a minor 14 years or older, both committed on Jane Doe 1 in November 2016. The complaint also charged Stewart with two counts regarding Jane Doe 2, lewd acts against a child under 14, between May 25, 2012, and May 25, 2013, and lewd acts against a child of 15, between July 1, 2015, and July 31, 2015, when he was at least 10 years older than her. The complaint also alleged Stewart committed sexual acts against multiple victims as a predicate for sentence enhancements.¹

As part of initial discovery, the prosecutor provided the defense with an investigator's notes indicating that in 2012, Doe 2 had been the victim of "288A Lewd and Lascivious Acts W/Child in 2012"; that the matter had been "investigated and Turned over to Juvenile Authority" and "Closed 11/27/12"; and that there was an Oakland Police Department (OPD) report regarding that matter. The notes further indicated that Doe 2 had told the investigator the incident occurred when she was 9 or 10 and was spending the night at her cousin's house, where she "woke up in the middle of the night" and found "a man lying down next to her," and that "the man was touching her" and "made her touch him." The notes indicated this may have been the incident described in the 2012 police report. The prosecutor did not provide the defense with the police report or any information about its contents beyond what we have stated. Nor did the prosecutor inform defense counsel that the report contained potential Brady material.

The charges against Stewart involving Doe 2 were eliminated from the case in January 2017, when the district attorney filed a new complaint that included counts 1 and 2 as to Doe 1 only and omitted the charges as to Doe 2 and the multiple victim allegation.

The preliminary hearing commenced on February 16, 2018. Only Doe 1 testified. Stewart was held to answer on three counts involving Doe 1, following which an information was filed containing the three charges on which he was ultimately tried: forcible sexual penetration on a minor aged 14 or older ( Pen. Code, § 289, subd. (a)(1)(C), count 1), forcible rape of a minor aged 14 or older (id. , § 261, subd. (a)(2), count 2), and sodomy of a minor aged 14 or older by use of force (id. , § 286, subd. (c)(2)(C)). The information also alleged that each offense was one of several committed against the same victim for purposes of a sentence enhancement under Penal Code section 667.6, subdivision (c). Stewart pled not guilty and asserted his speedy trial rights, and a no-time-waiver jury trial was set with a due date in May 2018.

On April 18, 2018, the People notified the defense of their intent to call Doe 2 as a witness under Evidence Code section 1108 based on the charging information relating to Doe 2 in the original complaint. On May 3, 2018, the case was sent out for trial, which was set to begin on May 14, 2018.

On May 8, 2018, defense counsel requested that the prosecutor provide a copy of the 2012 OPD report about Doe 2 referenced in the investigative notes produced during initial discovery. The prosecutor responded that the suspect, who was not Stewart, and the victim were protected under Welfare and Institutions Code section 827 (i.e., were minors) and for that reason it could not turn over the police report. Defense counsel disagreed, and the matter was raised with the court on May 10, 2018, at the trial readiness conference. The court informed defense counsel that the People could not turn over the report and that to obtain it, defense would have to file a petition with the juvenile court under Welfare and Institutions Code section 827. Defense counsel filed such a petition on May 11, 2018.

On May 14, 2018, the case was assigned to a trial department, with trial to begin on May 15, 2018. From May until early June, the trial court heard motions in limine and a jury was selected. Among the motions were the People's motion to allow Doe 2 to testify as a propensity witness under Evidence Code section 1108 and the defense's motions to exclude any evidence offered under section 1108 and to order the prosecutor to produce all information required by Brady, supra, 373 U.S. 83, 83 S.Ct. 1194, including exculpatory evidence and impeachment evidence for any prosecution witnesses.² The defense specifically requested that the court order the prosecutor to provide OPD Report 12-055315. On May 17, 2018, the court granted the People's motion to allow Doe 2 to testify under section 1108 and denied the motion to compel production of the police report, stating it could not "override" the juvenile court.

Counsel made opening statements to the jury on June 4, 2018. Shortly before Doe 2 testified on June 6, 2018, defense counsel informed the court she had not yet received from the juvenile court a copy of the police report regarding the allegation of abuse by Doe 2 not involving Stewart. She again requested that the trial court review the police report in the prosecutor's possession, and the court indicated it was not sure it was entitled to do that. While the trial was pending, defense counsel called the juvenile court's clerk repeatedly to seek an expedited review of Doe 2's records.

Four days after the jury issued its verdict and six weeks after Stewart had requested it from the juvenile court, that court provided defense counsel with redacted Child Protective Services (CPS) reports regarding Doe 2. One of the reports described an incident of alleged abuse of Doe 2, which had been reported in 2012. The report stated that in an interview at a Child Abuse, Listening, Interviewing, and Coordination (CALICO) center, Doe 2 had described being sexually abused by a male cousin who was a year older than her starting when she was eight or nine years old. That abuse, which also included an incident when she was 11 years old, consisted of multiple instances of oral copulation occurring about once a week, and vaginal penetration and anal sex occurring two or three times. Doe 2 told the investigator she did not resist because the cousin threatened to tell her mother and she did not want to get into trouble. She said her brother had caught her having anal sex with the cousin in the closet and had pushed the cousin off and threatened him. The CPS report indicated that the investigator concluded the allegations were unfounded because "[t]he children made conflicting reports regarding the alleged sexual abuse." Her brother (who was 10) and the male cousin (who was 12) had each accused the other of engaging in oral copulation with a seven-year-old cousin. Doe 2 (who was 11) claimed the cousin had forced her to engage in the acts of oral copulation, vaginal penetration and anal penetration, but her brother reported that she had engaged in these acts with her cousin voluntarily. The cousin reported he and Doe 2 only had engaged in oral copulation twice and that both incidents had been initiated by Doe 2.

Based on the CPS report,³ on August 21, 2018, Stewart's defense counsel moved for a new trial on the ground of discovery of new evidence and the prosecution's failure to disclose the evidence in violation of Brady .

The People opposed the motion. The prosecutor submitted the OPD report to the trial court with its opposition, which at its request was filed under seal. The defense was not provided a copy of that report,⁴ but the prosecutor described its contents in the People's opposition to the motion. According to the opposition, the report "outlin[ed] sexual conduct by [Doe 2] and another boy [not defendant] who was one year older than her. According to the report, the sexual conduct began when [Doe 2] was approximately 8 or 9 and continued until she was 11. All of the incidents were alleged to have occurred in her home. On one occasion, [Doe 2] stated that the minor's ‘wiener’ touched her ‘coochie.’ On another, she said she orally copulated the minor. [Doe 2] noted that on two or three different occasions the minor put his penis in her butt. The minor male was interviewed and said the acts were consensual and only consisted of the oral copulation."

The trial court denied Stewart's new trial motion on the ground that it would not likely have admitted the evidence for several reasons, and thus...