Clifford Harrison appeals his convictions by jury of possessing a firearm after a felony conviction (count 1; Pen. Code, § 29800, subd. (a)(1) )
We reverse the conviction on count 4 for criminal threats and remand for new trial because of Brady error. We deny relief as to count 1. We also vacate the original sentence imposed as well as the purported resentencing conducted on August 24, 2017. While an appeal pends, the trial court is without power to "resentence." (See, e.g., People v. Alanis (2008)
Facts
On June 11, 2014, Donnis Moore gave his cousin, appellant, a ride home to their grandmother's house where Moore, appellant, and three family members lived. Thereafter, appellant asked if he could borrow Moore's car. When Moore said " 'No,' " appellant demanded that Moore pay the rest of the money that Moore owed him. Moore had sold a car that they inherited from their grandfather. Moore owed appellant half the sale proceeds. Moore said he would give appellant $200 or $300 the next day, at which point appellant pointed a handgun at Moore and said " 'Go get my $600 right now.' " Appellant allegedly said he would "blow" Moore's "brains [out]" if Moore did not pay him.
Moore left the house and asked his mother to call 911. When Moore returned with a $600 check, the police were there and had detained appellant. Officers searched the house and found a loaded .40 caliber semiautomatic handgun hidden in a linen closet. According to the police, appellant
First Trial
After the trial court granted appellant's Faretta motion ( Faretta v. California (1975)
In opening statement, appellant told the jury: "Did I have a firearm? Yes. Was it used in this confrontation [with the victim] at all? It was not." The arresting officer testified that appellant waived his Miranda rights and admitted that the handgun was his and that he used it in the altercation with Moore. In closing argument appellant again admitted possessing the firearm but denied that he used the firearm during the altercation with Moore. The jury returned guilty verdicts on count 1, felon in possession of a firearm, and count 4 making criminal threats. But, on count 2 (assault with a firearm; § 245, subd. (a)(2)) and count 3 (assault with a semiautomatic firearm; § 245, subd. (b)), the jury did not reach a unanimous verdict.
Second Trial
After the trial court ordered a mistrial on counts 2 and 3, it declared a doubt as to appellant's competency to stand trial (§ 1368) and revoked his pro per status. Counsel was appointed to represent appellant. Thereafter, the trial court found that appellant's competency was restored and reinstated the criminal proceedings.
At the second trial, defense counsel asked the prosecution about a "DICV" reference in the police report and learned that it stood for "digital in-car video." The prosecutor determined that the Miranda interview was recorded in the police car and provided counsel a copy of the video recording. Based on the video recording, defense counsel successfully moved to exclude appellant's statements. The trial court found that the officer continued to question appellant in violation of Miranda after appellant invoked his right to remain silent. The confession was excluded in the second trial and the jury returned not guilty verdicts on counts 2 and 3.
Motion for New Trial and Sentence
Appellant moved for new trial on counts 1 and 4 on the theory that the prosecution committed Brady error by not providing the defense a copy of the video recording at the first trial. Denying the motion, the trial court found that appellant waived the error. Appellant "interposed no objection whatsoever to the admission of the statement, and it came in. And as the People correctly cite under 353 of the Evidence Code [failure to object is a waiver], that should resolve the issue."
Appellant admitted the prior strike/prior serious felony conviction enhancements and was sentenced to 11 years state prison on count 1. The sentence on count 4 for criminal threats was stayed pursuant to section 654.
Appellant contends that the trial court erred in not granting a new trial. Pursuant to Brady , supra ,
Here, the video recording was favorable to the defense and was not disclosed. As we shall explain, this prejudiced appellant as to count 4. It does not matter whether the non-disclosure was negligent or inadvertent. ( People v. Kasim (1997)
The Attorney General contends there was no Brady violation because appellant was given the police report which referenced a "DICV." Defense counsel stated that DICV, which stands for digital in-car video, is new technology and new terminology. The acronym was not identified in the arrest report. Defense counsel said: "I never heard of it before. I simply didn't know." It is reasonable to assume that appellant did not know what DICV meant when he represented himself in the first trial. The prosecutor conceded that the DICV reference in the police report "is something we both missed."
The police report summarizes the Miranda interrogation but does not say it was recorded. The DICV acronym appears in a section of the report entitled "Photographs, DICV, Audio, Digital Imaging ," but that section only states the officers took photos inside the house. The last page of the arrest report states "DICV was activated during the initial detention of suspect ... (Placed
The cryptic reference to DICV in the police report did not relieve the prosecution of the duty to provide appellant a copy of the video recording before the first trial. ( Kasim , supra ,
Count 4
Without appellant's confession, the prosecution was unable to secure convictions on counts 2 and 3 which were intertwined with the criminal threats charge in count 4. It takes no leap in logic to conclude that appellant suffered prejudice because of the non-disclosure as to count 4. "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. ... [¶] ... [I ]t is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." ( Kyles v. Whitley (1995)
On count 4 the jury had problems with Moore's credibility. It asked for a reread of Moore's testimony and the officer's testimony. The video recording, had it been produced prior to trial and excluded, would have undermined the prosecution's case on count 4. "One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by 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." ( Kyles , supra ,
When appellant's confession was excluded in the second trial, the jury discredited Moore's testimony in its entirety and acquitted on counts 2 and 3. We conclude that the Brady error materially affected the outcome as to count 4 of the first trial. We must reverse on count 4.
Count 1
As to count 1, felon in possession of a firearm, we reach a different conclusion. Appellant twice factually admitted to the jury that he was a felon in possession of a firearm. There was, and is, no reason to discredit these factual admissions even though they were made in opening statement and closing argument. In this court appellant claims that he would not have made these admissions if the Brady information had been disclosed prior to the first trial. This is speculation and not supported by the record. At no time below did appellant declare or testify that he would not have made these admissions had the prosecution provided the Brady evidence. Moreover, these admissions may have been a legitimate trial tactic that worked to his advantage. Appellant is not permitted to redesign trial tactics on appeal with benefit of hindsight. "Our courts are not gambling halls but forums for the ... truth." ( People v. St. Martin (1970)
We are mindful and aware "of the difficulty of reconstructing ... the course that the defense and the trial would have taken" ( United States v. Bagley , supra ,
Appellant argues, and the Attorney General concedes, that the trial court did not advise appellant of his constitutional rights when appellant admitted the prior strike/prior serious felony conviction enhancements. ( In re Yurko (1974)
Presentence Custody Credits
Appellant finally contends that the trial court miscalculated his presentence custody credits and conduct credits. We do not reach the issue because we are vacating the sentence and remanding for new trial on count 4 and a new trial on the count 1 prior-strike enhancement. On remand, the trial court will have the opportunity to recalculate the presentence custody credits.
Disposition
The judgment of conviction on count 4 is reversed and remanded for new trial. The judgment of conviction on count 1 is affirmed but the sentence is vacated and a new sentencing hearing is ordered.
We concur:
GILBERT, P. J.
TANGEMAN, J.
Notes
All statutory references are to the Penal Code.