People v. Pilipina CA6 ( 2021 )

Filed 5/14/21 P. v. Pilipina CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045025
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. CC952955)
v.
DAVID RAQUE PILIPINA et al.,
Defendants and Respondents.
The People appeal from the grant of a new trial to defendants David Pilipina and
Eddie Rivera. In August 2009, 19-year-old Pilipina rode the VTA light rail train home
with his family—including his pregnant girlfriend, his sister, and her young children—
after seeing a movie at the Great Mall. A group of Job Corps students rode the same
train. Believing Pilipina had made a negative (possibly threatening and possibly gang-
related) comment to a member of their group, the Job Corps students directed abusive
and threatening comments towards Pilipina during the ride. Rivera, Pilipina’s brother,
was waiting at the VTA station platform when the train arrived. Once off the train, a
female Job Corps student and Pilipina’s sister got into a physical fight. Pilipina’s sister
was losing and tried to get the student to stop beating her up. Pilipina, Rivera, and other
Job Corps students got involved in the fight, portions of which were captured on
surveillance videos. Three Job Corps members were stabbed during the fight; one did not
survive her injuries.
In 2016, jurors convicted Pilipina of one count of first degree murder and two
counts of attempted murder and found true various enhancement allegations, including
that Pilipina had committed the crimes for the benefit of, at the direction of, or
association with a criminal street gang. Jurors convicted Rivera of second degree murder
and two counts of attempted murder. As to Rivera, jurors also found true gang
enhancement allegations and an allegation that Rivera had personally used a deadly
weapon in the commission of one of the attempted murders.
Pilipina and Rivera filed new trial motions. In 2017, the trial court granted those
motions, concluding that defendants’ due process rights had been prejudicially violated
by the prosecution’s presentation of testimony that it should have known was false. The
court further concluded that Rivera also was entitled to a new trial based on an
instructional error regarding the natural and probable consequence theory of aiding and
abetting.
The People, represented by the Santa Clara County District Attorney, appeal.
Finding no manifest and unmistakable abuse of discretion, we shall affirm.
I. BACKGROUND
A. Factual Summary
1. The Job Corps Group
Job Corps is an educational and career training program through which people
between the ages of 16 and 24 can complete their high school education and obtain career
training. Some Job Corps students live at Job Corps facilities, including one located in
East San Jose.
On the evening of August 15, 2009, several San Jose Job Corps students went out.
The group included Kristina P., Jamal G., Shaniqua M., Nevin G., Chante R., Cessaly R.,
Brianna C., and Brittany M. (collectively, the Job Corps group). After spending time at
the Great Mall, the Job Corps group decided to go home.
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2. Pilipina and his Family
Pilipina, then 19 years old, also was at the Great Mall on the evening of
August 15, 2009. He was with his pregnant girlfriend, Alyssa L.; his teenaged sister,
Desiree P.; his cousin, Gregory L.; his sister, Isabel S.; and her three- and six-year-old
children (collectively, the Pilipina family). Rivera is Pilipina and Desiree’s older brother.
Rivera was not with them at the Great Mall.
3. The Light Rail Train Ride
Both the Job Corps group and the Pilipina family boarded the VTA light rail train
at the Great Mall shortly before 10:00 p.m. and rode it to the Alum Rock station, an
approximately 22-minute ride. Surveillance video from the train shows that Pilipina was
wearing black shorts, a white T-shirt, and white gloves with black accents. Alyssa was
wearing a white T-shirt; Gregory was wearing a tank top and a red baseball hat;
Isabel was wearing a dark red T-shirt.
The Pilipina family boarded the train first. The Job Corps group walked down the
aisle past the Pilipina family, who were sitting in the middle of the train car. The Job
Corps group sat at the rear of the train car, behind the Pilipina family.
Nevin, who was wearing a red and black Cincinnati Reds hat with a “C” on it,
testified that Pilipina said “what’s up, cuz” to him as he passed. The comment made
Nevin feel “awkward” because he was wearing red, which he knew to be a gang color,
although he testified that he was not associated with any gang. On cross-examination,
Nevin acknowledged that he told police that he did not think the comment was gang-
related, but rather that Pilipina “was trying to get at [him] the wrong way.”
The surveillance video shows that Pilipina turned his head towards the Job Corps
group after they passed. He continued to look in their direction for about 15 seconds, at
which point a man Pilipina apparently recognized boarded the train through a door
located between Pilipina and the Job Corps group. Pilipina turned his attention to that
man; they spoke briefly and shook hands. Pilipina then looked towards the back of the
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train car a few times before getting up, walking to another train car, and chatting with
other passengers for a couple of minutes before returning to his seat.
The surveillance video shows that, about 14 minutes into the ride, Nevin, who had
been standing somewhat apart from the Job Corps group, moved next to Chante (his
then-girlfriend) and told her something. His words cannot be heard on the surveillance
video audio; he and others testified that he told the Job Corps group that Pilipina had said
“what’s up cuz” to him. Like Nevin, Chante interpreted the comment as “negative” and
somehow related to the fact that Nevin was wearing a red hat. Shaniqua testified that the
Job Corps group members were upset that Pilipina would assume Nevin was in a gang.
She further testified that Pilipina’s comment to Nevin “put us on edge as to, you know,
watch your back, something could happen, or was he being targeted.”
After Nevin spoke to Chante, she can be heard on the surveillance video saying,
“Was he being rude?” and then, loudly, “Don’t be talking to my boyfriend. I’ll beat your
ass.” Someone from the Job Corps group, possibly Chante, can also be heard saying
“He know. He ain’t gonna be [unintelligible] with some little gloves on.” Pilipina turned
around towards the Job Corps group when that was said, but then looked forward again.
Nevin characterized Chante’s reaction as an “angry” “outburst.” Brittany testified that
Chante was talking very loudly and saying disrespectful things to the Pilipina family.
Over the next couple of minutes, women in the Job Corps group can be heard
saying loudly “you fucked up, now”; “I’ll beat somebody’s ass”; and “I feel like fighting
somebody.” No reaction from the Pilipina family is apparent on the video. Shaniqua
testified that Chante was trying to protect Nevin with her words.
About a minute after the comments stopped, at 10:16 p.m., Desiree used her cell
phone to call Rivera, her brother; that call lasted 29 seconds. While Desiree was on that
call, Pilipina got up and stood near the train door facing his family and, behind them, the
Job Corps group. At 10:18 p.m., Desiree received a call from Rivera which lasted
32 seconds.
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At 10:19 p.m., Shaniqua can be heard saying “I forgot I had scissors in my purse.”
She testified, and the video shows, that she then gave the scissors to Jamal. He can be
seen on the video pulling his arm into his T-shirt through his sleeve; his arm reemerges
seconds later. Shaniqua testified that she gave Jamal the scissors because she thought a
fight might break out and she wanted him to be able to protect the group. She felt that
Pilipina was watching their group.
Shortly before getting off the train, Isabel put her hair up in a bun and took items
out of her pockets and placed them in Alyssa’s purse.
The train arrived at Alum Rock and passengers began exiting the train at
10:22 p.m. Rivera arrived at the Alum Rock station around the same time on a bike.
4. The Fight
A fight broke out between the Job Corps group and the Pilipina family shortly
after both groups exited the train. The fight lasted approximately one minute. Portions
of the fight were captured on surveillance videos.
Brittany testified that when they got off the train “the guy with the glove on . . .
[p]ut his arms out and said, ‘What’s up?’ ” He was angry, and her interpretation was that
he wanted to fight. Nevin testified that, when they got off the train, Pilipina yelled
“Are you man enough to say what you were saying earlier?” Shaniqua heard a man say
something along the lines of “ ‘come on. Let’s go.’ ” Shaniqua further testified that the
man “was jumping up and down and . . . accusing us of messing with them on the train,
and now we’re off, he wanted to see what was up.”
Chante testified that Isabel began angrily yelling at Cessaly that the Job Corps
group had cussed and been disrespectful on the train in front of her kids. Chante
intervened. She and Isabel exchanged insults until Chante said something along the lines
of, “we’re either going to fight or we’re not,” at which point Isabel swung at her. Isabel
missed; Chante retaliated, punching Isabel in the face several times while Isabel was
backed up against the train. Isabel was bleeding from her nose and lip. Isabel told
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Chante to stop multiple times. Chante stopped, but told Cessaly to “beat this bitch ass,”
at which point Cessaly started hitting Isabel. The fight involving Isabel is not visible on
the surveillance videos.
Jamal stepped back onto the train at 10:22:20 p.m. Surveillance video shows that,
once inside, he lifted his shirt slightly. He exited the train again after four seconds.
He sat down on a bench outside the train at 10:22:36 p.m.; the handle of a pair of scissors
can be seen in his right hand. Jamal testified that he did not remember why he got back
on the train or why he was holding the scissors. On cross-examination, Jamal
acknowledged that he told police that he never removed the scissors from his pocket.
Surveillance video shows that Pilipina, Alyssa, Desiree, and the children were
walking away from the train at 10:22:23 pm. Seconds later, they turned towards the train
(and, presumably, the fight). Pilipina walked back towards the train and out of view of
the surveillance cameras. Nevin testified that while the girls fought, Pilipina “pulled out
[a] knife and told everybody to, you know, to get the fuck back.”
Approximately ten seconds after Pilipina walked back towards the train and out of
sight of the surveillance video cameras, Rivera got off his bike and moved quickly in the
direction of the train; at the same time, Alyssa ran toward the train.
About five seconds later, at 10:22:48 p.m., Alyssa and Kristina were tangled up in
an apparent fight. A second after that, Pilipina lunged toward Kristina, who fell to the
ground. A pointy object is visible in Pilipina’s hand at 10:22:49 p.m. Alyssa ran away
and out of the picture. Pilipina also turned away and exited the frame. At 10:22:51 p.m.,
Kristina got up, walked in the same direction as Pilipina and out of sight of the
surveillance video camera.
Surveillance video shows that Jamal and Rivera were fighting at 10:22:51 p.m.
Rivera struck Jamal twice in the left side. After they exit the frame, the scissors can be
seen on the ground where they tussled. Jamal testified that he saw Rivera approach the
fight, which made him suspicious, so he hit Rivera.
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A different surveillance camera shows that Pilipina and Kristina fought briefly at
10:22:55 p.m. The same camera then shows that Pilipina leaned over Jamal, who was on
the ground, at 10:22:58 pm. Nevin testified that he saw Pilipina stab Jamal. Jamal stood
up at 10:23:03 p.m. and walked away from the fight and down the train platform.
Shaniqua testified that she saw Pilipina approaching the fight between Chante and
Isabel. She stepped between him and the fight because she “didn’t feel comfortable with
him trying to interfere with the fight.” She and Pilipina fought until he hit her in her
“abdominal area.” She “felt like all [her] breath” was taken out of her, and she walked
away. She later saw that she had been stabbed. The fight between Pilipina and Shaniqua
was not captured by the surveillance videos. Nevin testified that he saw Pilipina and
Shaniqua fighting and saw Pilipina stab Shaniqua after Pilipina stabbed Jamal.
Kristina and Gregory fought from 10:22:57 p.m. until 10:23:02 p.m. At
10:23:20 p.m., Kristina sat down on a bench; in the surveillance video, a dark stain is
visible on the front of her white tank top. At 10:23:31 p.m., she collapsed to the ground.
The Pilipina family left the scene. The Job Corps group called for help and were
interviewed by police.
Kristina was stabbed three times and did not survive her wounds. She was stabbed
in the front of the right shoulder, the right abdomen (a wound that involved the liver), and
the chest (a wound that involved the heart).
Jamal was stabbed three times in the left side. He did not feel the stabbing occur
and was unaware of his wounds until after he walked away and saw blood. His injuries
included a punctured lung and required surgery and a week-long stay in the hospital.
Shaniqua was stabbed once on her right side. She had surgery and spent several
days in the hospital.
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5. The Investigation
Police found a pair of scissors and a three-inch knife tip that had broken off from
the blade on the train platform. Police recovered a knife handle across the street from the
light rail station. The broken blade and handle appeared to be parts of the same knife.
No blood was found on the scissors. Nor was blood found on the broken knife
blade. However, Jamal’s DNA was found on the broken knife blade. A DNA mixture
from at least two people was found on the knife handle. The prosecution’s DNA expert
concluded that it was 5,500 times more likely that the DNA mixture on the knife handle
originated from Rivera and another unknown person than from two unknown people.
Jamal, Gregory, and Pilipina were excluded as contributors to the DNA mixture on the
knife handle.
6. Gang Evidence
Michael Whittington, a criminal investigator with the Santa Clara County District
Attorney’s Office, testified for the prosecution as a gang expert. He opined that the
phrases “Do you bang?”, “What hood you from?”, and “What’s up cuzz?” are “checks”
or “challenge[s]” gang members use to determine whether the recipient is a rival gang
member. Such challenges typically precede an assault. He further testified that, in gang
culture, respect is paramount and disrespect is met with violence.
According to Whittington, the Crips were originally formed in 1969 in East Los
Angeles. Crips associate with the color blue. The word “cuz” is a term of endearment
when used between Crips and a challenge when said to a non-Crip. The Bloods are the
Crips’ primary rival.
When writing, Crips commonly will avoid writing “b,” because it represents the
Bloods, or will write “bk” (meaning Blood killer) in place of “b.” Also, “Crips typically
will not use [words] where there’s a ck [because t]hat means Crip killer.” They might
substitute “cc” for “ck”; for example, a Crip might spell “block” with two c’s—“blocc.”
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The Crip gang is informal in that the various subsets do not take orders from or
pay dues to any higher organization. No permission is needed to form a new Crip subset.
Today, there are many Crip subsets in San Jose, which tend to be multiracial and
multicultural. Crips in San Jose are allied with Norteños, largely because the gangs share
a common enemy—Sureños.
Whittington testified that the San Jose Boyz are a Crip subset. He opined that
Pilipina was a member of that gang, based in part on the fact that he has a tattoo that
reads “Q Blocc” and based on pictures of him throwing Crip gang signs. Whittington
opined that Rivera also was a member of the San Jose Boyz based in part on his tattoos
(“certified boyz,” “SJB,” and “BK”); his text message signature line at the time of the
incident (“SJB.loyalty.cuz”); and a 2007 police encounter during which Rivera
self-identified as “SJB.” Whittington opined that the stabbings were committed in
association with and for the benefit of a criminal street gang, the San Jose Boyz. On
cross-examination, Whittington testified that he had never encountered a Blood wearing
an article of clothing with a “C” on it.1
Ross Lacuin testified that he belonged to the San Jose Boyz gang in 2007 along
with Pilipina and Gregory. He testified that they were Crips, that “cuz” is lingo for
“Crip,” and that “what’s up cuz” is a gang challenge. Lacuin identified a picture of
himself, Pilipina, and Gregory and testified that in the picture he and Pilipina were
throwing San Jose Boyz and Crips gang signs. Lacuin testified that Gregory was
throwing a “14” sign because he was a Norteño. (The apparent inconsistency in Lacuin’s
testimony about Gregory’s gang membership—that is, whether he was a member of the
San Jose Boyz, a Norteño, or both—was not explored.) Lacuin testified that Norteños
and San Jose Boyz were allied.
1
Nevin testified that he knew members of the Bloods in Los Angeles who wear
Cincinnati Reds hats like the one he was wearing on the night of the stabbings. His hat
bore the letter “C.”
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7. Defense Expert Testimony
Kris Mohandie, Ph.D., a clinical police and forensic psychologist, testified for the
defense as an expert in the psychophysiology of the human fear response (i.e., the fight or
flight response). He testified that fight or flight refers to the way humans react to threats
and danger and that it involves a series of physiological changes that are perceptual,
cognitive, and behavioral. When a person is experiencing a fight or flight response, their
decision-making becomes more reactive and less logic-based. He opined that a fight or
flight reaction could have been triggered in someone in Pilipina’s position by the
combination of the threats on the train, the aggression against his sister, being
outnumbered, and the presence of a pregnant girlfriend and young children whom he felt
a responsibility to protect.
B. Procedural History
The Santa Clara County District Attorney charged Pilipina and Rivera with one
count of murder (Pen. Code, § 187; count 1)2 and two counts of attempted murder
(§§ 664, subd. (a), 187; counts 2-3). As to each count, the information included gang and
personal use of a deadly weapon enhancement allegations against Pilipina and Rivera.
(§§ 186.22, subd. (b)(1)(C); 12022, subd. (b)(1).) The information also alleged that
Pilipina personally inflicted great bodily injury on Jamal (count 2) and Shaniqua
(count 3). (§ 12022.7, subd. (a)).
The case proceeded to trial in November 2015. Pilipina’s counsel argued that, if
he stabbed the victims, he did so to defend himself and his family members.
Alternatively, Pilipina’s counsel argued that Pilipina acted in imperfect self-defense or in
heat of passion. Rivera also asserted self-defense and defense of others. His counsel also
argued that he lacked the mental state—namely, the knowledge and intent—to aid and
abet the crimes.
2
All further statutory references are to the Penal Code unless otherwise indicated.
10
The jury deliberated for approximately three days before returning its verdicts on
January 11, 2016. Jurors found Pilipina guilty of first degree murder and of both counts
of attempted murder and found true all the enhancement allegations. Jurors convicted
Rivera of second degree murder and of both counts of attempted murder. As to Rivera,
jurors found the gang enhancement allegations and the personal use of a deadly weapon
allegation as to count 2 true, but they found false the personal use of a deadly weapon
allegation as to count 3.
Pilipina and Rivera each moved for a new trial. The trial court granted those
motions on May 10, 2017. The People timely appealed.
II. DISCUSSION
A. Legal Principles—New Trial Motions and Standard of Review
Statutory grounds for ordering a new trial are set forth in section 1181. They
include instructional error and prosecutorial misconduct. (§ 1181, subd. (5).)
Nonstatutory grounds exist as well. Specifically, “the trial court’s constitutional duty to
ensure that defendants are accorded due process of law provides the court with the
authority to grant a new trial when the defendant did not receive a fair trial even though
the cause of that unfairness is not expressly recognized as a ground for granting a new
trial under section 1181.” (People v. Alaniz (2017) 16 Cal.App.5th 1, 9, fn. 5 [citing
cases].) Under Brady v. Maryland (1963) 373 U.S. 83, “ ‘[t]he prosecution has a duty
under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal
defendant when the evidence is both favorable to the defendant and material on either
guilt or punishment.’ ” (People v. Stewart (2020) 55 Cal.App.5th 755, 769.) Thus, a
Brady violation can support the grant of a new trial. (See id. at p. 784; People v. Uribe
(2008) 162 Cal.App.4th 1457, 1482.)
“ ‘A trial court has broad discretion in ruling on a motion for a new trial, and there
is a strong presumption that it properly exercised that discretion. “ ‘The determination of
a motion for a new trial rests so completely within the court’s discretion that its action
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will not be disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.’ ” [Citation.]’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 730.)
Where the trial court grants a new trial, its order “will not be disturbed if fairly debatable,
even if the reviewing court itself, addressing the issues de novo, would not have found a
basis for reversal. [Citations.] In particular, the traditional rule is that the reviewing
court will not substitute its judgment for the trial court’s determination that error was
prejudicial, and thus warrants a new trial.” (People v. Ault (2004) 33 Cal.4th 1250, 1263
(Ault).) The rationale underlying that traditional rule is that “[a] trial court’s finding of
prejudice is based, to a significant extent, on ‘ “first-hand observations made in open
court,” ’ which that court itself is best positioned to interpret. [Citations.]” (Id. at
p. 1267.)
An abuse of discretion occurs when a ruling “rests on an error of law” (People v.
Cannedy (2009) 176 Cal.App.4th 1474, 1483), exceeds the bounds of reason, or is
arbitrary. (People v. Andrade (2000) 79 Cal.App.4th 651, 659.) A trial court also abuses
its discretion “when the factual findings critical to its decision find no support in the
evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) “The trial court’s
factual findings, express or implied, made on a motion for new trial will be upheld if
supported by substantial evidence.” (People v. Drake (1992) 6 Cal.App.4th 92, 97.)
“[W]e review the correctness of the court’s ruling, not its reasoning.” (People v.
Dickens (2005) 130 Cal.App.4th 1245, 1254 [appeal from grant of new trial].) An order
granting a new trial motion may be affirmed on any ground raised in the motion “without
regard to the particular reason given” by the trial court. (People v. Montgomery (1976)
61 Cal.App.3d 718, 728.)
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B. The Trial Court Did Not Err in Granting a New Trial on Due Process
Grounds
1. Factual Background
Defendants moved in limine to exclude Nevin’s description of Pilipina’s gloves as
“ ‘Murder Ones.’ ” The trial court granted that motion and excluded the evidence under
Evidence Code section 352. During the discussion of that in limine motion, the
prosecutor represented that “officers will testify as to their training and experience that
people who are involved in knife fights wear gloves for several reasons . . . .” Pilipina’s
counsel responded: “We have not received any discovery regarding any expert opinion
from any police officer that people involved in knife fights wear gloves, so if that
discovery exists, I would like that discovery.” Apparently no such discovery was
provided.
Herman Leon, a detective with the Santa Clara County Sheriff’s Office, was the
lead investigator in the case. At an Evidence Code section 402 hearing, he testified that
“it would not surprise” him that a person who is going to commit a stabbing “would put
on a pair of gloves.” On cross-examination, Leon testified that he had investigated
between 50 and 100 stabbings and he could think of only a single other case in which the
perpetrator wore gloves. The court asked Leon what percentage of witnesses to stabbings
state that the perpetrator wore gloves. Leon “estimate[d] maybe 30 to 40 percent.” On
recross, Leon agreed that his estimate was “pretty much speculation.” The court again
followed up, asking Leon whether he was speculating or making an educated guess.
Leon responded that it was an educated guess. The court allowed the testimony.
Leon testified in front of the jury that “[o]n the conservative side, . . . 30 percent to
40 percent” of suspects used gloves in the stabbings he had investigated. On cross-
examination, Leon testified that he had investigated “easily 100” stabbing cases and that
he could recall just two other specific cases in which the perpetrator wore gloves.
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The following day, Pilipina’s counsel requested that the court strike the testimony
on grounds that it was “unreasonable, prejudicial, irrelevant, and, most of all, unfair” or
“permit some investigation into San Jose Police officer records at least for a year period
because it’s Brady.” The court denied those requests and advised counsel to have his
own witnesses controvert Leon’s opinion. The issue apparently was not raised with other
witnesses.
In his rebuttal closing argument, the prosecutor referred to Pilipina’s gloves as
“murder gloves,” which defendants interpret as a reference to Leon’s testimony.
Specifically, the prosecutor argued that—as required to establish aiding and abetting
liability—Rivera knew that Pilipina intended to kill because “Pilipina pulled out the
knife, brandished it, and ha[d] threatened people and yelled ‘Get the F back.’ That is the
evidence that [Rivera] knew this guy who is wearing his murder gloves is going to
commit another gang crime. Plus, [Rivera]’s been called there and shows up with his
knife.”
Two-and-a-half weeks after the jury rendered its verdicts, Pilipina served a
subpoena on the Santa Clara County Sheriff’s Department seeking all sheriff reports from
January 1, 2007 to December 9, 2015 involving non-custodial stabbings. Deputy County
Counsel Donald Larkin testified at a May 2016 hearing that it was not possible “to review
every single police report generated by the Sheriff’s Office” as would be required “in
order to comply fully with the subpoena . . . .” Instead, the County obtained a list of
stabbings handled by the Sheriff’s Office from the District Attorney’s Office, which
generated the list from an internal database. The Sheriff’s Office then produced the
reports associated with the listed cases that were responsive to the subpoena. Larkin
represented that he could not “certify that we’ve provided all noncustodial stabbings, but
we have made a good-faith effort to locate what we can.” Larkin produced 31 sheriff
reports in May 2016; another 73 sheriff reports were produced in August 2016. Based on
its review of the documents, the trial court found “[t]wo incidents, including the instant
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case, involv[ing] suspects who wore gloves.” That is, the perpetrator was wearing gloves
in fewer than two percent of the reported cases.
2. Defendants’ New Trial Motions and the Trial Court’s Order
Defendants’ new trial motions were based in part on the prosecutor’s presentation
of Leon’s statistical testimony (which defendants argued was false) and the prosecutor’s
failure to produce the sheriff reports undermining that testimony in discovery. In
arguments joined by Rivera, Pilipina argued that the prosecutor committed misconduct by
presenting the false testimony, such that a new trial was warranted under section 1181(5),
and that the prosecutor violated Brady by failing to produce the sheriff reports. Pilipina
also argued that the prosecutor “knew or should have known” that Leon’s statistical
testimony was false and that he was entitled to a new trial under the federal due process
clause. In an argument joined by Pilipina, Rivera argued that the admission of the false
testimony deprived him of a fair trial and violated his right to due process.
With respect to prejudice, Pilipina argued that the “false testimony provided the
jury with a basis to find that [he] acted with premeditation, the intent to kill, and without
the intent to defend himself or his family, or in the heat of passion . . . .” For his part,
Rivera argued that Leon’s glove testimony allowed the prosecutor to argue and the jury to
infer that Rivera had the requisite knowledge required for aiding and abetting—namely,
that Pilipina intended to commit murder and attempted murder because he was wearing
gloves.
The trial court granted the new trial motions based in part on the foregoing
arguments. From the subpoenaed sheriff reports, the court concluded that “Detective
Leon’s 30-40% statistic is not factually supported and may actually be false.” The court
went on to twice refer to the statistical testimony as “false” and to consider its impact “on
the defendants’ right to a fair trial.” After considering the evidence pertaining to
defendants’ mental states, the court was “not convinced that the jury would have reached
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the verdict it did had they not heard Detective Leon’s testimony that 30-40% of stabbing
defendants wear gloves.”
3. The District Attorney Fails to Show an Abuse of Discretion
The parties dispute the basis for the trial court’s ruling. The District Attorney
argues that the trial court erroneously granted the motions pursuant to section 1181(5)
without finding that the statistical testimony was false or that the prosecutor knew of any
falsity. Defendants maintain that the court did find the statistical testimony to be false
and granted the motions on due process grounds because the admission of that testimony
deprived them of a fair trial.
The statement of decision is not without ambiguity. However, like defendants, we
read it as finding the statistical testimony to be false. While it is true that the court
initially stated that the police reports showed that the testimony “may actually be false,”
the court went on refer to the testimony as unqualifiedly “false” on two occasions. The
order as a whole makes clear that the court found the testimony to be false. We likewise
agree with defendants that the trial court granted their new trial motions based on their
more general due process argument (as opposed to the more specific Brady-based due
process claim). We ground that conclusion on the court’s statement that it was
“consider[ing] the impact the false statistical evidence had on the defendants’ right to a
fair trial.” “ ‘It is axiomatic that when an accused is denied that fair and impartial trial
guaranteed by law, such procedure amounts to a denial of due process of law . . . .’ ”
(People v. Davis (1973) 31 Cal.App.3d 106, 110.)
a. Legal Framework – False Evidence and the Denial of Due
Process
“ ‘Under well-established principles of due process, the prosecution cannot present
evidence it knows is false and must correct any falsity of which it is aware in the
evidence it presents, even if the false evidence was not intentionally submitted.’
[Citation.]” (People v. Morrison (2004) 34 Cal.4th 698, 716 (Morrison); Napue v.
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Illinois (1959) 360 U.S. 264, 269 [“a conviction obtained through use of false evidence,
known to be such by representatives of the State, must fall under the Fourteenth
Amendment”]; Giglio v. United States (1972) 405 U.S. 150, 153 [“the presentation of
known false evidence is incompatible with ‘rudimentary demands of justice’ ”].) The
prosecution’s duty not to present (or, if presented, to correct) false evidence applies both
where the prosecutor knows of the falsity and where he or she should know of the falsity.
(Morrison, supra, 34 Cal.4th at p. 716.) Because “the prosecutor has a duty
to investigate and disclose favorable evidence known only to the police, he
‘should know’ when a witness testifies falsely about such evidence.” (Jackson v. Brown
(9th Cir. 2008) 513 F.3d 1057, 1075 (Jackson); see Morrison, supra, at p. 717[“obligation [to correct false testimony] applies to testimony whose false or misleading
character would be evident in light of information known to the police involved in the
criminal prosecution”].) It is also the case that, “when the government learns that part of
its case may be inaccurate, it must investigate.” (United States v. Freeman (7th Cir.
2011) 650 F.3d 673, 680 (Freeman).) “[A] Napue violation requires that the conviction
be set aside whenever there is ‘any reasonable likelihood that the false testimony
could have affected the judgment of the jury.’ ” (Jackson, supra, at p. 1076.)
b. Substantial Evidence Supports the Court’s Finding of Falsity
The court’s finding that Leon’s statistical testimony was false—in the sense that it
was inaccurate—is supported by the evidence. Leon testified that “30 percent to
40 percent” of stabbing suspects wore gloves in the 100-plus stabbings he had
investigated. Sheriff reports from his time as an investigator showed the actual statistic
to be under two percent.
The trial court did not address whether Leon intentionally lied, thereby committing
perjury, or simply made a good faith error. For our purposes, “it matters not whether the
witness giving false testimony was mistaken or intentionally lying.” (See 6 Wayne R.
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LeFave, et al., Criminal Procedure (4th ed. 2020) § 24.3(d); Freeman, supra, 650 F.3d at
p. 680 [rejecting argument “that a claim under Napue can only be made when it can be
established that the witness is lying”]; Hayes v. Brown (9th Cir. 2005) 399 F.3d 972, 980
[“Napue, by its terms, addresses the presentation of false evidence, not just subornation of
perjury”]; United States v. Harris (3d Cir. 1974) 498 F.2d 1164, 1169 [Napue applies
regardless of whether the witness who provided the false testimony intended to lie]; but
see Henry v. Ryan (9th Cir. 2013) 720 F.3d 1073, 1084 [Napue claim requires showing
that witness knowingly lied and cannot be based on mistaken or inaccurate recollection].)
c. Substantial Evidence Supports the Court’s Implicit Finding of
Knowledge
The record also supports an implicit finding that the prosecutor should have
known of the falsity of the statistical testimony. Leon’s testimony at the Evidence Code
section 402 hearing should have put the prosecutor on notice that Leon’s statistical
testimony might be inaccurate. In particular, Leon testified that he had not conducted any
research on the frequency with which stabbing suspects wear gloves, nor had he reviewed
the stabbing cases he had investigated. He acknowledged that the 30 to 40 percent
statistic was the product of speculation or, at best, was an “educated guess” and that he
could not “testify with specificity.” Having been put on notice, the prosecutor had an
obligation to investigate to determine the accuracy of Leon’s statistical testimony.
(Freeman, supra, 650 F.3d at p. 680 [government has obligation to investigate where it
learns witness testimony may be false].)
Moreover, evidence of the testimony’s falsity—the sheriff reports—were in the
possession of the investigating agency, the Sheriff’s Office. And the database used to
identify those reports was in the possession of the District Attorney’s Office. Thus, had
the prosecutor fulfilled his duty to investigate, he would have learned of the testimony’s
falsity. (See Morrison, supra, 34 Cal.4th at pp. 717 [“obligation [to correct false
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testimony] applies to testimony whose false or misleading character would be evident in
light of information known to the police involved in the criminal prosecution”].)
d. The Trial Court did not Abuse its Discretion in Finding
Prejudice
As previously noted, in reviewing an order granting a new trial motion, we “will
not substitute [our own] judgment for the trial court’s determination that error was
prejudicial, and thus warrants a new trial.” (Ault, supra, 33 Cal.4th at p. 1263.) The
government’s introduction of false testimony is prejudicial “whenever there is
‘any reasonable likelihood that the false testimony could have affected the judgment of
the jury.’ ” (Jackson, supra, 513 F.3d at p. 1076.)
Here, the trial court stated that it was “not convinced that the jury would have
reached the verdict it did had they not heard Detective Leon’s testimony that 30-40% of
stabbing defendants wear gloves.” We read the foregoing as a conclusion that it was
reasonably likely that the false testimony could have affected the jury’s judgment. For
the reasons discussed below, the District Attorney has failed to show that the trial court
abused its discretion in drawing that conclusion.
In finding that Pilipina suffered prejudice, the trial court noted that his mental
state, including whether he intended to kill and whether he acted with premeditation, was
a critical issue at trial. The court considered the other evidence of Pilipina’s intent and
premeditation and concluded that evidence “could just as easily have been viewed by the
jury as evidence that Pilipina intended to fight and not that he was planning a murder.”
The court also noted that “the defense provided strong expert testimony regarding self-
defense and defense of others, especially of Isabel . . . , who suffered a beating at the
hands of the Job Corps group.” Turning to the impact of the false evidence, the court
reasoned that jurors may have given the testimony “relatively great weight” because Leon
was the lead detective and an expert. The court also found significant the prosecutor’s
reference to “murder gloves” in his rebuttal closing, which the court viewed as evoking
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the false statistical evidence. The court reasoned that “closing and rebuttal arguments
leave a significant impression on the jury, especially in the context of this three-month-
long trial.” Given the absence of clear evidence of intent to kill and premeditation and
the strong evidence of self-defense and defense of others, the court concluded that the
false statistical testimony prejudiced Pilipina. As to Rivera, the trial court noted the
dearth of evidence that he knew of Pilipina’s intent to stab the victims and the
prosecutor’s reliance on the “murder gloves” to establish that knowledge in finding
prejudice.
The court did not abuse its discretion in concluding that the false testimony
prejudiced defendants. The evidence that Pilipina intended to kill and acted with
premeditation was hardly overwhelming. The prosecutor relied on the phone calls
between Desiree and Rivera, which the prosecutor characterized as a call for backup. But
the content of those calls is unknown, making that evidence minimally probative. The
prosecutor also pointed to the fact that Kristina was stabbed three times, which certainly
can support inferences of intent to kill and premeditation. But the infliction of multiple
wounds is not necessarily inconsistent with an individual acting in the heat of passion,
self-defense, or defense of another (whether reasonably or unreasonably). Finally, the
prosecutor relied on Pilipina’s gang membership and gang expert testimony that gang
members respond to disrespect with violence. However, violence could mean an assault
short of killing. Meanwhile, the evidence that Pilipina acted in the heat of passion,
self-defense, or defense of another was relatively strong. It included evidence that he
initially walked away from the train and the Job Corps group, returning only after his
sister started getting beat up by multiple women; the presence of his pregnant girlfriend
who also was pulled into the fight; the fact that his family was outnumbered by the Job
Corps group, which had made threatening and aggressive comments to his family on the
train; and the fact that members of the Job Corps group—namely, Jamal and Shaniqua—
admittedly initiated their physical encounters with the Pilipina family. The false
20
testimony was prejudicial to Pilipina because it allowed jurors to infer premeditation and
an intent to kill, and to reject Pilipina’s defenses, based on his decision to wear gloves.
Turning to Rivera, the evidence the prosecutor relied on to establish Rivera’s
knowledge of Pilipina’s unlawful purpose consisted of the phone calls between Rivera
and Desiree (the content of which is unknown), the fact that Rivera met the train while
armed, and the fact that Pilipina brandished his weapon and told others to “get the F
back,” which the prosecutor urged jurors to infer Rivera saw. Even assuming the
foregoing evidence supports an inference that Rivera arrived to back up his family in a
planned attack on the Job Corps group, that is not the only reasonable inference. Jurors
also could have concluded that Rivera met the family to walk them home, or because he
had plans with one or more of them, or because the family felt threatened by the Job
Corps group. Jurors could have concluded that Rivera was armed because of his gang
membership or because it was a rough neighborhood. There also was evidence that
Rivera acted in the heat of passion, self-defense, or defense of another, including that his
sister was getting beat up and that Jamal started a fight with him while holding scissors.
The false testimony was prejudicial to Rivera because it allowed jurors to infer that
Pilipina’s gloves sent Rivera a message that Pilipina intended to kill.
Of course, the question on appeal is not whether we would have reached the same
conclusions as to prejudice, but whether the District Attorney has shown a manifest and
unmistakable abuse of discretion by the trial court. He has not. He argues that
defendants suffered no prejudice because Leon’s statistical testimony was of little
importance and, in any event, “no reasonable juror would have credited” it. The trial
court judge—based on her first-hand observation of the trial—disagreed. She concluded
that the testimony may have been credited by jurors (indeed, she believed jurors may
have given it “relatively great weight”) and impactful enough to influence the verdict.
We may not substitute our judgment, let alone the District Attorney’s judgment, for the
trial court’s in these circumstances. (Ault, supra, 33 Cal.4th at p. 1263.)
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The District Attorney also takes the position that the false testimony could not
have been prejudicial because the trial court explicitly concluded that the sheriff reports
undermining it were not material for purposes of Brady. That argument is based on a
misreading of the statement of decision. After an extensive discussion of the prejudice
defendants suffered, the court stated “[w]hile this material”—referring to the sheriff
reports—“may not be exculpatory under Brady, it is surely impeachment evidence
reflecting on Detective Leon’s credibility.” The court then cited two cases with
parenthetical descriptions. First, it cited People v. Elder (2017) 11 Cal.App.5th 123, 132
(Elder) with the parenthetical: “exculpatory evidence that must be disclosed under Penal
Code section 1054.1 is broader than exculpatory evidence under Brady.” As Elder
explains, the Penal Code requires “the prosecution [to] provide to a defendant all
exculpatory evidence, not limited to the ‘material’ exculpatory evidence required under
federal constitutional standards established by Brady . . . .” (Elder, supra, at p. 132.)
The court also cited People v. Garcia (1993) 17 Cal.App.4th 1169, 1179 with the
parenthetical: “ ‘[t]he duty to disclose evidence favorable to the accused extends to
evidence which may reflect on the credibility of a material witness.’ ” That citation from
Garcia refers to the fact that, under Brady, favorable evidence includes impeachment
evidence.
The District Attorney reads the foregoing portion of the statement of decision as
concluding that the sheriff reports were not material. He appears to base that reading on
the citation to Elder, which, as noted, addresses Brady’s materiality requirement. In
isolation, the citation to Elder supports the District Attorney’s interpretation. However,
the citation to Garcia for the proposition that impeachment evidence is Brady material
undermines that reading. Moreover, the District Attorney’s reading simply cannot be
squared with the court’s statement of decision as a whole, which plainly found prejudice.
We read the portion of the decision on which the District Attorney relies as distinguishing
between exculpatory and impeachment evidence—both of which are deemed favorable
22
under Brady (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [“The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching”])—and concluding that the sheriff reports were impeachment as opposed to
exculpatory evidence.
e. Defendants Moved for a New Trial on the Basis of a False
Evidence-Based Due Process Claim
The District Attorney argues that defendants’ reliance on Napue on appeal is
misplaced, noting that neither the trial court’s statement of decision nor defendants’ new
trial motions cited it. The District Attorney is correct, but we disagree to the extent the
District Attorney is implying that defendants failed to raise a due process claim based on
the prosecutor’s presentation of false evidence. As discussed above, in the trial court,
defendants squarely relied on the due process clause, characterized the statistical
evidence as false, and faulted the prosecutor for presenting it. Pilipina’s motion, which
Rivera joined, argued that the prosecutor “knew or should have known” that Leon’s
statistical testimony was false. Defendants’ joint notice of motion cited Giglio, a leading
case (along with Napue) in the governing jurisprudence. The well-established rule
regarding due process and the presentation of false evidence is that the prosecution’s
knowing presentation of false evidence violates due process. Defendants’ reliance on
these principles was clear.
The absence of case citations in the statement of decision also is not dispositive.
We presume the trial court knew and followed the governing law. (People v. Braxton
(2004) 34 Cal.4th 798, 814.) And the court’s analysis aligns with Napue and its progeny.
4. Remedy
The District Attorney argues that, assuming there was prejudicial error, the proper
remedy as to Pilipina is to reduce his conviction for first degree murder to a second
degree murder conviction on the theory that the false testimony was relevant only to
premeditation. We disagree. While the trial court noted the relevance of the false
23
testimony to the issue of premeditation, it also referenced Pilipina’s defenses of
self-defense and defense of others, suggesting that the false testimony may have led
jurors to reject those otherwise strong defenses. Read as a whole, the statement of
decision makes clear that the trial court viewed the false evidence as influencing the
jury’s assessment of Pilipina’s mental state generally. In this case, that assessment
required jurors to consider not only whether Pilipina premeditated Kristina’s killing, but
also—for purposes of all the charges—whether he acted in the heat of passion, whether
he believed that he or someone else was in imminent danger of being killed or suffering
great bodily injury, whether he believed that the immediate use of deadly force was
necessary to defend against that danger, and the reasonableness of any such beliefs.
(CALCRIM Nos. 505, 571 [perfect and imperfect self-defense and defense of another.)
Accordingly, a new trial on all counts is the proper remedy.
The trial court also granted Rivera a new trial based on its failure to give
“sufficient instructions regarding the contours of the natural and probable consequences
theory of liability.” The District Attorney contends that was error. We need not reach
that argument, having concluded that the trial court properly granted Rivera a new trial
on due process grounds.
III. DISPOSITION
The order granting a new trial is affirmed.
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_________________________________
ELIA, ACTING P.J.
WE CONCUR:
_______________________________
GROVER, J.
_______________________________
DANNER, J.
People v. Pilipina et al.
H045025