Opinion
NOT TO BE PUBLISHED
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.)
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, §§ 187, subd. (a), 664), assault with a deadly weapon with force likely to produce great bodily injury (§ 245, subd. (a)(1)), and robbery (§ 211).
All further statutory references will be to the Penal Code unless otherwise indicated.
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. 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.
Kang was age 69 in February 2006. He was five feet seven inches tall and weighed about 154 pounds. Defendant was six feet three inches tall and weighed 240 pounds.
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.
Defendant told police that he was in Chula Vista at the time of the attack.
As noted above, the jury convicted defendant on all charges.
DISCUSSION
A. The Alleged Brady Violation
Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).
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.”
Defense counsel acknowledged at the hearing that he had been given a police report which mentioned a composite drawing. But he denied knowing that a description of the suspect accompanied the drawing.
The trial court denied the motion for a new trial. 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.
The trial court also granted a motion for reconsideration of its denial and then denied the motion again.
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 immediately after the attack, shows a suspect whose appearance is very different from defendant’s appearance. More importantly the composite drawing is accompanied by a description of a suspect that differs greatly from the description of defendant. Even if the existence of the composite drawing was known to defense counsel, the description accompanying the drawing was not known to defense counsel, and it was clearly exculpatory evidence which was not given to the defense.
The issue here is whether the evidence was material under the tests stated above. Defendant cites Kyles v. Whitley (1995) 514 U.S. 419: “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 government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ [Citation.]” (Id. at p. 434.)
Our Supreme Court has defined “materiality” as follows: “Such evidence is material ‘“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”’ [Citation.] In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
The trial court focused on materiality by discussing the strength of the case against defendant. The court found that, although the possibility of eyewitnesses identifying the wrong person was always a concern in identification cases, any doubts were alleviated here because Kang knew defendant as a prior customer of the store, independent witnesses positively confirmed the identification of defendant, and defendant’s fingerprints on the Jack-in-the-Box cup confirmed that defendant had been in the store at the time of the attack. The trial court found the identification evidence “overwhelming” and apparently concluded that use of the composite drawing and the description on it would not have put the case in a different light.
We agree with the trial court that the identification evidence here was very strong, and that evidence provides confidence in the verdict. There is simply no probability of a different outcome if the exculpatory evidence had been disclosed to the defense in a timely manner. Defendant received a fair trial.
The trial court found the issue relatively close because of the great disparity between what the composite drawing showed and what defendant looked like. It thus granted defendant’s motion for reconsideration and carefully considered the strength of the identification evidence. The thorough consideration of the issue by the trial court reinforces our own confidence in the verdict.
B. Alleged Ineffective Assistance of Counsel
In a closely related argument, defendant contends that his trial counsel was constitutionally ineffective for (1) failing to carefully review the police reports to discover the existence of the composite drawing; (2) failing to compel production of the composite drawing before trial; and (3) failing to request and review the composite drawing after the evidence technician testified that she had a copy of the drawing.
The People do not dispute that trial defense counsel should have obtained a copy of the composite drawing but rather contend that the error was not prejudicial.
We agree with the People. The United States Supreme Court established the standard in Strickland v. Washington (1984) 466 U.S. 668 (Strickland): “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (Id. at p. 687.)
The Supreme Court also said: “Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” (Strickland, supra, 466 U.S. at p. 697.)
To show prejudice under Strickland, defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
Defendant cannot overcome the prejudice test here. As discussed in the preceding section, the evidence against defendant was very strong and there is no reasonable probability the result of the trial would have been different if defense counsel had obtained the composite drawing and accompanying description in a timely manner. Accordingly, counsel was not constitutionally ineffective.
C. Can a Juvenile Conviction be Counted as a Strike?
Defendant’s prior robbery conviction, which occurred while he was a juvenile was counted as a strike at sentencing. Defendant contends that the trial court erred in using defendant’s juvenile adjudication for robbery as a strike.
The parties note that our Supreme Court is considering the question of whether a juvenile adjudication can qualify as a strike under the “Three Strikes” law even though a juvenile is not entitled to a jury trial. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.)
Defendant properly notes that most of the California cases that have decided this issue have found that juvenile adjudications have sufficient procedural safeguards so that they may be used to enhance a sentence without violating defendant’s constitutional rights. In this regard, defendant cites People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1078-1079; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; and People v. Fowler (1999) 72 Cal.App.4th 581, 585-587.
Faced with this unfavorable authority, defendant cites United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1193-1194 (Tighe); State v. Brown (La 2004) 879 So.2d 1276, 1290; and Pinkston v. State (Ind.Ct.App. 2005) 836 N.E.2d 453.
Tighe has been rejected in well-reasoned California cases, including People v. Buchanan, supra, 143 Cal.App.4th at page 149; People v. Superior Court (Andrades), supra, 113 Cal.App.4th at pages 831-834; People v. Lee, supra, 111 Cal.App.4th at pages 1314-1316; People v. Smith, supra,110 Cal.App.4th at pages 1075-1077; and People v. Bowden, supra, 102 Cal.App.4th at pages 389-394. We join these other California courts in rejecting the Tighe reasoning, and we follow those courts in holding that a prior juvenile adjudication counts as a strike under the Three Strikes law.
D. The Trial Court’s Imposition of Aggravated Terms on Counts 2 and 3
Defendant argues that the imposition of aggravated terms on counts 2 and 3, violates the principles stated in Blakely v. Washington (2004) 542 U.S. 296 and Cunningham, supra, even though the terms were stayed pursuant to section 654.
When imposing sentence on counts 2 and 3, the trial court cited the vulnerability of the victim, including his age and size. It also mentioned that the crime was callous and planned, and that defendant had other uncharged prior convictions.
Defendant concedes that we are bound by the recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In Sandoval, our Supreme Court examined the constitutionality of our determinate sentencing law following Cunningham. It summarized the case as follows: “In Cunningham, the United States Supreme Court disagreed with this court’s decision in People v. Black (2005) 35 Cal.4th 1238 . . . (Black I) and held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence. We conclude that defendant’s Sixth Amendment right to a jury trial was violated and, although harmless error analysis applies to such violations, the error in the present case was not harmless beyond a reasonable doubt and the case must be remanded for resentencing.” (Sandoval, at p. 832.) The court noted that the United States Supreme Court’s seminal decision stated: “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490.]” (Sandoval, at p. 835.)
In Black II, our Supreme Court, in a passage relevant here, said: “Moreover, a second aggravating circumstance—defendant’s criminal history—also rendered defendant eligible for the upper term sentence. [Citation.] The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Black II, supra,41 Cal.4th at p. 818.)
Thus, Black II held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.)
The trial court here referred to defendant’s recidivist behavior as a reason for imposing the aggravated term on counts 2 and 3. Although it mentioned other factors not found by the jury, the fact of other convictions was a sufficient basis for imposition of upper-term sentences.
The Cunningham court explained: “As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] ‘[T]he relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 860.)
Defendant’s right to a jury trial on aggravating factors does not include the fact of a prior conviction, and defendant’s rights under Cunningham were not violated when the trial court based sentencing on counts 2 and 3 on a proper aggravating factor, defendant’s prior convictions, as well as other aggravating factors, such as vulnerability of the victim, not found to be true by a jury.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., MILLER J.