People v. Jones CA2/3 ( 2022 )

Filed 8/19/22 P. v. Jones CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B307648
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA455301)
v.
WALTER MORRIS JONES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Douglas Sortino, Judge. Affirmed.
Valerie G. Wass for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
During the trial of Walter Jones for murder, multiple
discovery violations committed by either the prosecution or
investigating agencies came to light, resulting in the trial court
instructing the jury with CALCRIM No. 306 regarding late
discovery but denying defense motions for dismissal and mistrial.
The jury convicted Jones of murder with gun and gang
enhancements. On appeal, Jones contends that his conviction
must be reversed because the trial court should have granted his
motions to dismiss and for a mistrial based on the discovery
violations. We disagree that the trial court erred and accordingly
affirm the judgment.
BACKGROUND
I. The murder of Tyrone Golden
Jones and James Williams were jointly tried for the murder
of Tyrone Golden. The prosecution’s theory was that Jones was
the shooter, Williams was the getaway driver, and the murder
was in retaliation for the murder of a fellow gang member.
The fellow gang member was Clayton Ross, known as Red
Bang. On March 12, 2015, Ross was shot and killed at a store on
Hoover and Century. Members of the Underground Crips were
arrested in connection with Ross’s murder.
Just weeks after Ross was killed, Golden was killed on the
morning of March 31, 2015. The morning that Golden was
murdered, gunshots woke Miguel Rosales, who was at his home
in the general area of 10114 South Budlong Avenue in Los
Angeles. Looking out his window, Rosales saw Golden on the
ground. Rosales also saw a man wearing jeans and a grey hoodie
running to a white van with paper license plates. The man left in
2
the van, although Rosales could not tell whether he entered
through the front or rear passenger door.1
Paramedics arrived at 8:40 a.m. and determined that
Golden, who had been shot in the back of the head, was dead.
Four 9-millimeter casings fired from one gun were recovered from
the crime scene.
The same day Golden was murdered, Deputy Sheriff
Nicholas Adragna was investigating an unrelated crime. While
visiting a location related to that crime, Deputy Adragna saw the
van involved in Golden’s murder parked in a spot assigned to an
apartment at 841 West 101st Street. Officers searched the van
and found live ammunition (including nine millimeter), a credit
card bill belonging to Latasha Acrey, a cell phone, and a gun.
The gun found in the van, however, was not the one used to
kill Golden. The van was registered to Kentoya Mitchell, who
was Williams’s girlfriend. Email account ratneckw@gmail.com
was associated with the cell phone found in the van, and a video
of Williams was extracted from the phone. Latasha Acrey was
the girlfriend of Clevon Stringer, who sometimes lived at 841
West 101st Street.
Jones’s palm print was on a piece of paper recovered from
the van. Two other prints from the van were inconclusive as to
Jones and Williams.
1 Rosales drew a map of the area in front of his house but
the interviewing detective failed to attach the drawing to her
report.
3
II. Gang evidence
The parties stipulated that Hoover Criminals is a criminal
street gang. Its territory encompasses an area west of the 110
Freeway and extends north and south. A gang expert testified
that Hoover Criminals has nine sets, including the 107’s and 11
Deuce. Hoover Criminals’ main rivals include 10 Deuce and
Underground Crips. The gang expert believed that the victim,
Golden, was an Underground Crips gang member, and a member
of the 10 Deuce Budlong set of the Rollin’ 100’s. The gang expert
also knew Jones, who had identified himself as a 112 Hoover
gang member with a moniker of Little No Good.
III. Evidence from Clevon Stringer
Several months after Golden’s murder, Detective Erik
Shear arrested Stringer2 on drug charges unrelated to this case.
In the course of talking to Stringer, the detective learned that
Stringer might have information about Golden’s murder and
relayed that information to Detective Michael Rodriguez, the
officer investigating Golden’s murder. Detective Rodriguez
interviewed Stringer, who was in custody on the drug charges.
That recorded interview was played for the jury.
At the interview’s outset, Detective Rodriguez told Stringer
he was not in a position to make promises; rather, what “I do is I
take my information, I verify the information and then I can go to
somebody at the district attorney’s office and say this is what I
have.” “Can I put in a recommendation? Absolutely. But I am
not the person that decides that.”
Stringer was from the 107th set of the Hoover gang with a
2
moniker of Monster.
4
Stringer said he used to stay at 841 West 101st Street, and
his family still lived there. Stringer then told the detective that
one morning, at about 10:00 or 11:00 a.m., “No Good” (Jones)
came to the house at 841 West 101st Street to buy drugs. No
Good said that he “got me one . . . I just got a 10-Deuce Budlong.”
No Good explained that earlier that morning he and Ratneck
(Williams)3 were “driving around trying to” retaliate against the
guy who killed Red Bang. They drove by 102nd and Normandie
and saw an “old guy walking,” so they asked where he was from.
When the man said he was from 10 Deuce Budlong, No Good
“hopped out of the van, pop, pop, pop and hopped back in the car
and drove off, parked the car in a store, came over to my house,”
bragging about having just killed the man. No Good said that
Ratneck was the driver. Stringer clarified that No Good was
from 11 Deuce Hoover and was the “trigger.” No Good stashed
the gun in a tire in the alley at the back of Stringer’s house.4
They put ammunition in the van. When they saw cops pulling up
outside of Stringer’s house, they escaped through the back.
At the end of the interview, Stringer talked about his
pending charges and what sentence he might get for them.
Detective Rodriguez told him, “we’ll explore the options, okay,
and we’ll see what, what’s um—now just because something
doesn’t get done, you know, before you go back to court does not
mean something is not going to get done. Alright?”
3 Williams has a tattoo of a rat on his neck, with the word
“neck” beneath the rat.
4 No gun was recovered.
5
Stringer thereafter testified at a preliminary hearing, and
that testimony was also read to the jury.5 He testified that in
July 2015, he was in custody for selling drugs. At that time,
Detective Rodriguez asked Stringer about the white van and a
murder. Stringer told him that word on the street was
Scandalous might have been involved. Although Stringer said he
knew Williams and Jones, he denied telling Detective Rodriguez
that Jones had asked the victim where he was from, the victim
said he was 10 Deuce Budlong, and Jones shot the victim. In
short, he denied recalling anything he had said in his July 2015
interview.
However, Stringer did admit he had convictions for theft-
related offenses, possession for sale, felon in possession of a
firearm, assault with a deadly weapon with great bodily injury,
and for sale or transportation of a narcotic.
Stringer also said that he interpreted statements Detective
Rodriguez made about where Stringer would be most comfortable
as meaning the detective could influence where Stringer was
housed in jail. And when Detective Rodriguez asked Stringer if
he was going to court the next day, Stringer understood that his
time would be reduced and he would be paid.
In fact, after Stringer testified at the preliminary hearing,
Detective Rodriguez enrolled Stringer in a witness relocation
program and, over a several-months period, gave Stringer $5,760
in cash for housing and food.
5 The preliminary hearing testimony was read to the jury
after Stringer invoked his Fifth Amendment rights and the trial
court found he was unavailable as a witness.
6
IV. Cell phone and wiretap evidence
Agent Michael Easter, an expert in cell site analysis,
reviewed cell phone records for numbers associated with Williams
and Jones. Around the time Golden was killed, the cell phones
were in the general area of the crime scene.
Law enforcement wiretapped a phone associated with
Jones. In December 2015, Jones6 called Reggie Cole, who told
Jones that “[t]hey just hit lady bone house looking for you and
Ratneck about some homicide on” 101st. Jones asked why they
would do that, and Cole said he did not know why but “maybe
that’s what Ratneck ran from last time” and the police were “just
doubling back.” Jones said that Ratneck was on the run “because
when they got groove with the blower, nigga they came and
hollered at groove about that.”7 They were putting the “squeeze
back on groove” and he was the only person “got caught up.” Cole
asked Jones if “they” knew about him because of fingerprints,
and Jones said, “Nope. Because if they had that, they wouldn’t
need no sketch,” possibly referring to a flier police had
distributed about Golden’s murder. Cole told Jones to “stay low.”
After this call, law enforcement distributed in January
2016 a flier with Jones’s and Williams’s photographs and a
photograph of a white van. The same day the flier was
distributed, Jones called an unidentified male, who told Jones
that his “pad” had been “hit” that day and told Jones about the
flier. The man told Jones that somebody was talking, and Jones
said, “He lied” and “groove, from the gate, like, this nigga done
liked. Like, he the one that like um did all of this.” Jones said,
6 Detective Rodriguez testified that he recognized Jones’s
voice.
7 Groove may be used as a term of endearment or as a verb.
7
“He’s wrong, bro. He’s wrong for the simple fact bro. It’s only me
and him bro. There ain’t anybody else.” “I’m saying on the
situation that they looking for, it’s no else bro, at all.” “Like it
was only me and him bro. I’m talking about this situation.”
V. Verdict and sentence
A jury found Jones guilty of first degree murder (Pen.
Code,8 § 187, subd. (a)) and found true personal gun use
(§ 12022.53, subd. (d)) and gang (§ 186.22, subd. (b)(1(C))
allegations. On September 2, 2020, the trial court sentenced
Jones to 25 years to life doubled to 50 years to life based on a
prior strike plus 25 years to life for the gun enhancement.
The jury acquitted Williams of first and second degree
murder.9
DISCUSSION
Either the prosecution or law enforcement agents
committed at least five discovery violations, which resulted in the
trial court instructing the jury with CALCRIM No. 306. After
describing the events surrounding those discovery violations and
setting forth general principles of discovery in criminal matters,
we find that the trial court did not err by refusing either to
dismiss the charges or to grant a mistrial.
8 All further undesignated statutory references are to the
Penal Code.
9 Mitchell, Williams’s girlfriend, was also tried with
Williams and Jones, but during trial she pleaded guilty to being
an accessory after the fact.
8
I. The discovery violations and dismissal and mistrial
motions
The five discovery violations concern: (1) the untimely
disclosure of a cell phone data analysis report, (2) that Stringer
was given relocation funds, (3) the involvement of a surveillance
team, (4) a deputy’s failure to turn over diagrams of the crime
scene, and (5) a fingerprint ruse. Based on these discovery
violations, defense counsel made various motions to dismiss the
charges and for a mistrial, all of which we detail below.
A. Cell phone data analysis report
Part of the prosecution’s strategy was to show that cell
phones associated with defendants were in the area of the
murder around the time it occurred. Pertinent to that, the
prosecution timely disclosed raw cell phone data 10 and a related
report. Then, after defense counsel had announced ready for trial
and within just weeks of the February 2019 trial, the prosecution
disclosed a report analyzing the data and placing Jones in the
vicinity of the crime scene shortly before the murder. Even
though prosecutors had the report in May or June 2018, it was
not timely disclosed because, in the prosecutor’s words, it “got
lost in the shuffle.” Also, the prosecution forgot to distribute and
file its expert designation, leading the defense to believe that the
evidence would not be used.
In response to the trial court’s query whether the matters
timely disclosed gave the defense notice that the prosecution
would try to place Jones within a mile of the crime scene about
five or six minutes after the murder, defense counsel pointed out
that all he knew is “some detective had a theory,” but he did not
10 Printed, the data was about 100,000 pages.
9
know the details of how it was prepared or who would testify
about it. Further, the newly disclosed report had information
placing Jones near the Imperial Highway and Normandie cell
tower in the vicinity of the crime scene shortly before the murder,
which, in the trial court’s estimation, was “not an insignificant
addition.” The trial court further noted that if Jones did not have
an explanation for being in the area around the time of the
murder, that was “critical evidence against him. It’s good
circumstantial evidence.”
Williams’s counsel said the late disclosure prejudiced him
because when he announced ready for trial, the prosecution had
not included an expert. Thinking the evidence would therefore
not be used, counsel let his expert go to work on other cases.
Jones’s counsel similarly represented that he announced ready
based on the state of the evidence at that time.
The trial court, while “not happy” about the situation, said
it was not a malicious and deliberate choice to withhold the
report, even as it acknowledged that the late disclosure put the
defense at a disadvantage. Williams’s counsel agreed that the
discovery violation wasn’t done purposely, so while he was not
asking for dismissal (which the trial court said it would not
grant), he was asking that the evidence be excluded, or that the
trial court find the prosecutors in contempt and give CALCRIM
No. 306, because he had not talked to his expert about the new
matter, so now he was “scrambling.”
In ruling, the trial court found that there had been a
discovery violation but that it was not willful because the report
had just “fall[en] through the cracks.” That being the case, the
trial court declined to exclude the evidence, because doing so
would hinder the search for truth. However, the trial court was
10
willing to grant a continuance and added that if defense counsel
wanted to proceed, the trial court would consider instructing the
jury on late discovery.11
All counsel said they were ready to proceed with trial.12
Jones’s counsel represented he had considered the offer of a
continuance but was prepared to go forward, that he had
discussed the issue with his client, and that he could adequately
represent his client on the current state of the record. Jones’s
counsel added that his agreement to proceed was based on,
among other things, the trial court’s statement it would
accommodate scheduling the defense experts, that his client
wanted to proceed, and that he did not feel the nature of the case
would change during a continuance.
B. Evidence Stringer was given relocation funds after the
preliminary hearing
During trial, prosecution witness Stringer was arrested on
drug charges, and so the defense indicated it would want to cross-
examine him about that arrest and about any promises made to
him in that case for his testimony against the defendants in this
case. Then, when it became clear Stringer would assert his Fifth
Amendment rights not to testify in this case, the prosecution
asked that Stringer’s preliminary hearing testimony be admitted.
Defense counsel for Williams responded with a concern that
after Stringer had testified at the preliminary hearing, counsel
11 The trial court also pointed out that if it excluded the
evidence, the prosecution could dismiss the case and refile it,
delaying the case further, when at least Williams personally
wanted to proceed with trial.
12 Jones’s counsel initially asked for a continuance but
withdrew that request after considering the matter overnight.
11
discovered that Detective Rodriguez had said things to Stringer
having an “undertone” of suggesting he could help Stringer.
Counsel thus referred to a second interview the detective had
with Stringer in which the detective asked if “Erik” got a hold of
him—referring to Detective Shear, who had arrested Stringer on
his most recent drug charges. Counsel for Jones added that
Stringer had been given relocation funds after he testified at the
preliminary hearing and therefore had not been cross-examined
about that. The prosecutor represented that once defense counsel
told her that Stringer had been relocated, she asked a lieutenant
to look into the matter, as the district attorney’s office had not
been told about the relocation funds.
The trial court had Detectives Rodriguez and Shear testify
at an Evidence Code section 402 hearing. At that hearing,
Detective Rodriguez testified that Detective Shear had told him
that Stringer might have information about Golden’s murder, so
Detective Rodriguez interviewed Stringer, first in July 2015 and
a second time in August 2015.13 During the first interview,
Detective Rodriguez told Stringer, who was in custody, he could
not make any promises regarding Stringer’s pending criminal
matters. The detective denied helping Stringer, including
speaking to anyone else about helping Stringer. However,
Detective Rodriguez confirmed that when he spoke to Stringer,
the detective knew that Stringer was going to court in a few days
on the drug charges, so he told Stringer that he had told
Detective Shear to “call the attorney, whatever, you know, that
you were, you know, to give a consideration on, you know, for
helping out.” Immediately after the preliminary hearing, the
13Both interviews were recorded but only the first was
introduced at the preliminary hearing.
12
detective obtained relocation funds for Stringer, who was
ultimately given $5,760 in assistance over several months.
Detective Shear next testified at the 402 hearing.
Detective Shear testified that Stringer was a defendant in a case
he was investigating, but that case was unrelated to Golden’s
murder. In the course of that investigation, Stringer told him
things about that murder, so Detective Shear passed this
information to Detective Rodriguez. However, Detective Shear
denied doing anything to get Stringer leniency in any of his cases.
He also denied that Detective Rodriguez told him to talk to an
attorney to get Stringer consideration for helping out.
Also at the 402 hearing, the trial court reviewed an
informant package and reported that a Detective Derek White
had signed up Stringer as an informant after catching Stringer
with ammunition.
After reviewing all relevant matters, the trial court found
that the defense had ample opportunity to cross-examine
Stringer at the preliminary hearing about any interactions with
Detective Shear. It was also then clear that Stringer was in
trouble with other cases, so the defense at the preliminary
hearing cross-examined him about making things up to get out of
his cases.
Counsel for Williams, however, maintained that his
opportunity and motive to cross-examine Stringer at the
preliminary hearing was not the same as at trial. Counsel for
Jones expressed concern about the relocation funds Stringer
received after the preliminary hearing, although the trial court
pointed out that it would not have affected Stringer’s preliminary
hearing testimony.
13
Williams’s counsel moved for a mistrial on the ground he
did not have an opportunity to cross-examine Stringer. The trial
court indicated it would deny the motion but directed the
prosecutor to have Detective Shear review any file he had
regarding Stringer. Detective Shear returned to court with the
file and testified again that he had never asked Stringer to be an
informant and, as far as he knew, Stringer was not an informant
for anyone else. The detective also denied asking that Stringer
receive any consideration, and he had verified that no payments
had been made to Stringer from an account used to pay
informants.
C. Evidence about a surveillance team
On the same morning Golden was killed, law enforcement
happened to be surveilling Stringer’s house at 841 West 101st
Street because they believed that a suspect in another crime,
Edward Rachal, was at the house. At about 10:00 a.m. (several
hours after Golden had been killed), they arrested Rachal when
he ran out of the house with four other Black men. Deputy
Adragna, who was investigating Rachal, went to the house later
that morning or early afternoon, and, while there, saw a van
resembling the one reportedly involved in Golden’s murder.
Deputy Adragna alerted the officers investigating Golden’s
murder about the van.
This evidence came out before the jury, but it was not until
cross-examination that the defense learned Deputy Adragna was
not part of the team surveilling the house but had instead arrived
at the house at about noon or 2:00 p.m., hours after Rachal was
arrested. Therefore, the deputy did not see the four men who had
run out of the house and who were not arrested, and he could not
speak to any timeline about when the surveillance occurred and
14
when the van might have arrived at the house. Moreover, the
deputy did not know who was on the surveillance team.
At this point, Williams’s counsel moved for a mistrial and
for discovery sanctions. He explained that Deputy Adragna and
Detective Valerie Franco had signed search warrants for the
house at 841 West 101st Street relating to the Rachal
investigation, and reports suggested that Deputy Adragna had
done the surveillance. Therefore, counsel had relied on being
able to establish through the deputy’s testimony a timeline about
when the van arrived or if it was there when the surveillance
team arrived. Counsel argued that he was entitled to discover
who was on that team and the radio communications regarding
the surveillance, but those communications had been destroyed
per law enforcement policy.
The trial court agreed that the evidence was potentially
relevant to the extent the surveillance team was watching the
house around the time of Golden’s murder and was there until
Rachal and the other men exited the house. Specifically, if the
surveillance team did not see anyone come to the house after the
murder, this could impeach Stringer, who had claimed Jones
showed up at some point. Alternatively, if members of the
surveillance team were in a position to see where the van was
parked, they might be able to say if it was already there when
they arrived.
After additional argument, Williams’s counsel withdrew his
mistrial motion, stating he did not believe Deputy Adragna acted
in bad faith, but Jones’s counsel did not withdraw his mistrial
motion. In response, the prosecutor agreed that the evidence was
potentially relevant but argued it was speculative as to when the
surveillance team arrived and what they saw. So “it could be a
15
whole lot of nothing.” The prosecutor maintained that there was
no discovery violation as there was nothing they could have
turned over, other than the search warrant that was produced
along with Deputy Adragna’s report relating to the surveillance
operation and Rachal’s arrest. Further, there was a two-to-four
hour gap where the house was potentially unwatched, from about
10:00 a.m. when Rachal was arrested and the surveillance team
presumably left, to about noon or 2:00 p.m., when Deputy
Adragna arrived to review the scene. Jones and Stringer could
have gone to the house during this gap.
The trial court denied Jones’s motion for a mistrial, stating
it was not obvious anybody would have understood the evidence
to be potentially exculpatory under Brady14 at the time. Indeed,
the trial court noted that the evidence could be incriminatory.
Therefore, the trial court found that defendants’ right to a fair
trial had not been compromised.
Nonetheless, the trial court asked the prosecution to try to
obtain additional information about the surveillance team. After
further investigation, the prosecutor reported that the
surveillance team was autonomous and did not generate reports.
It instead reported to the investigating officer, who could put
something into a written report. Based on this information, the
trial court reaffirmed its ruling, stating there was nothing
obviously exculpatory about the evidence “in the sense it either
places or doesn’t place” Jones at Stringer’s house as Stringer
claimed.
14 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
16
D. Crime scene diagrams
As part of processing the crime scene, Deputy Sheriff John
Chun sketched diagrams of the area. He did not disclose the
diagrams until just before he testified at trial, when he gave
them to the prosecution, which then gave them to the defense.
E. The fingerprint ruse
Early in the murder investigation, law enforcement
thought a person named Davon White might be involved in
Golden’s murder. White came to law enforcement’s attention
through a woman referred to as Sarah Williams, who had told
law enforcement that her boyfriend—White—may have shot
Golden. In preparation to interview White, detectives concocted
a ruse to stimulate him, i.e., get him to talk. They prepared a
fake fingerprint report authored by “Deputy Rusenit” stating that
White’s fingerprint was found in the van. However, detectives
never used the fake fingerprint report because they determined
that White was not involved in the murder. The fake fingerprint
report was in the murder book with no notation that it was fake.
Defense counsel—and the prosecutors—were unaware, until
during trial, that the report was fake. Indeed, Williams’s
counsel, believing the Deputy Rusenit fingerprint report to be
real, had told the jury in his opening statement that White’s
fingerprints had been found in the van, thereby raising the
possibility someone else, and not his client, was involved in the
murder.
On discovering that the White fingerprint report was fake,
defense counsel alerted the trial court. Defense counsel said he
had spent hours trying to track down “Deputy Rusenit” and
following leads, and that this was unacceptable. The prosecutor
17
explained that he had just learned that the fingerprint report
was fake when defense counsel told him, and the prosecutor
confirmed with Detective Rodriguez that the report was fake.
When Williams’s defense counsel reminded the trial court
that he had mentioned the fingerprint in his opening statement,
the trial court said the jury would not remember that. Counsel,
however, pointed out that the errors cumulatively—from late
discovery to this ruse—were continuous, causing the defense to
scramble and to lose credibility with the jury. Jones’s counsel
added that while some of the omitted discovery, like Deputy
Chun’s crime scene diagrams, was not significant, other omitted
discovery—the surveillance team and the false fingerprint
report—was having a cumulative effect of misleading the defense.
Had counsel known about these things earlier, he would not have
announced ready for trial. Both defense counsel therefore asked
for a mistrial or, alternatively, that the prosecution be
admonished and CALCRIM No. 306 be given.
The trial court expressed its frustration, commenting that
discovery was “coming in fits and starts throughout trial” and it
was odd that fake evidence would be in the murder book. The
trial court was “frustrated” that trial was not moving along, and
that “stuff just keeps coming and coming, and it’s every single
day.” So while the trial court did not think a mistrial was
warranted, “there’s an awful lot of stuff coming out in drips and
drabs.” From the trial court’s perspective, the Sheriff’s
Department had not effectively or efficiently investigated the
case.
F. Dismissal and mistrial motions
After Detective Shear produced his entire file about
Stringer and testified about it outside the jury’s presence, both
18
defense counsel, over their clients’ objections, renewed their
mistrial motions. Williams’s counsel gave a caveat, saying he
was asking for a dismissal based on discovery violations under
section 1054.5 and, alternatively, that the trial court instruct the
jury with CALCRIM No. 306.
The trial court stated its view of the various discovery
violations. First, there had been an issue as to Sarah Williams,
whose real name was Rasheeda Williams. Sarah/Rasheeda
Williams told law enforcement that her boyfriend, White, was
involved in the murder, although it was unclear how she knew
that. The defense had been hampered in learning her real name,
so it had not been able to subpoena her in a timely manner.
However, the trial court found that it was not the prosecution’s
fault she gave a fake name, and she was now under defense
subpoena, so the trial court did not believe this to be a significant
issue.
Second, as to Deputy Adragna, the trial court said that had
the defense known a surveillance team was at the location, it
might have, but not necessarily, led to exculpatory material.
Third, Deputy Chun showed up at trial with a folder of
crime scene diagrams, which the trial court said was not a “huge
issue,” even though the trial court was incredulous that a deputy
who processes crime scenes would not think to turn over all of his
notes.
Fourth, there had been a late disclosure of Detective
Shear’s file about Stringer, although the trial court did not think
there was anything earthshattering or exculpatory in it, except
that Stringer was facing drug charges and had provided
information on an unrelated murder, which issues could go to his
credibility. The trial court’s concerns about whether the defense
19
had notice about Detective Shear were allayed when the
prosecutor pointed out that the defense had been timely given an
email from Detective Shear to Detective Rodriguez stating that
Detective Shear had arrested Stringer in 2015 and “he provided
the information I gave to Mike on the LASD homicide.” The
email also said that Stringer had provided information about
other shootings but, as far as Detective Shear knew, Stringer had
not been signed up as an informant.
The fake fingerprint report was the final “frosting on the
cake” and was of the greatest concern to the trial court because it
had misled defense counsel, who had referred to it in his opening
statement.
Notwithstanding these issues, the trial court said it did not
believe that the prosecution was involved in any of this, so it
would not dismiss the case, even while expressing
disappointment in how the Sheriff’s Department had handled
and documented the investigation. The trial court said that if the
defense really wanted to continue trial, “and if the defense is
willing to state on the record that it has considered all the
discovery in the case, the evidence presented thus far in trial, and
the way the trial has gone, and that it is making a tactical
decision based upon all of that, and after consultation with their
client[s] that they are withdrawing the motion for mistrial in
exchange for instruction, I will consider continuing” trial and
giving an instruction about the Rusenit report, Deputy Adragna,
and Deputy Chun.
It added that if defense counsel were willing to formally
withdraw the mistrial motions and state it was a tactical decision
to do so based on the state of the case, review of the evidence, and
after talking with their clients, then the trial court thought that
20
would protect any verdict and the People against double jeopardy
if the jury hung. The trial court said it was guarding against
being “whip sawed,” where if it did not grant a mistrial and
defendants were convicted and “it’s reversed because I should
have. Or, you know, I do grant a mistrial, then there’s a double
jeopardy argument because the defendants didn’t want it.” So,
the defense “has to decide what they want in this case. If you
want the instruction, you have to withdraw[ ] the mistrial
[motion]. If what you want is the mistrial, make the motion.
And I want you to talk to your clients about it.”
After talking to his client, Williams’s counsel elected to
have a “strong admonition” and to waive any ineffective
assistance of counsel claim regarding investigation, preparation,
and “towards my specific joining in him.” However, when the
trial court refused to give CALCRIM No. 306 immediately,
counsel declined to join with his client, and moved for dismissal,
which motion the trial court promptly denied. After further
discussion, Williams’s counsel withdrew his mistrial motion and
asked for the instruction, with Williams personally waiving his
right to appeal on the ground the fairness of his trial was
hindered by the late discovery in specific areas (the fake
fingerprint report, the Adragna report, and the Chun diagrams).15
Jones’s counsel, after consulting with his client, also made
a tactical decision to withdraw the mistrial motion, with the
caveat that the instruction on late discovery might need to be
expanded beyond the indicated areas depending on the state of
the evidence. Jones personally agreed, with the understanding
the jury would be instructed with CALCRIM No. 306. The trial
Later, the trial court added the cell phone analysis report
15
to CALCRIM No. 306.
21
court asked Jones if he understood he was giving up his right to
claim ineffective assistance of trial counsel on this issue and to
complain on appeal about issues of fairness related to the three
areas of discovery. Jones agreed, and counsel concurred.
Later, after the defense rested, both defense counsel
withdrew any motion for a mistrial based on the untimely
disclosure of discovery, stating that they were making a tactical
decision to rely on CALCRIM No. 306.
The trial court accordingly instructed the jury that the
People had failed to disclose five categories of evidence within the
time limits set by law, and that the failure “may deny the other
side the chance to produce all relevant evidence to counter
opposing evidence, or to receive a fair trial.” The five categories
of evidence the People had failed to disclose before trial were: (1)
that the fingerprint report identifying a finger or palm print from
the white van as belonging to Davon White was a ruse; (2) that
surveillance of Stringer’s home on March 31, 2015 was not
conducted by Deputy Adragna or deputies working with him, but
by a special fugitive apprehension team, whose members and
activity on that day can no longer be ascertained; (3) Deputy
Chun’s crime scene notes and diagram; (4) Agent Easter’s cell
phone tower report; and (5) that the district attorney’s office and
Sheriff’s Department gave Stringer relocation funds after
Stringer testified at the preliminary hearing. The jury was
further told that in evaluating the weight and significance of the
evidence, “you may consider the effect, if any, of this late
disclosure.”
II. General discovery principles
Timely pretrial discovery promotes ascertainment of truth
and prevents trial by ambush. (§ 1054, subd. (a); People v. Bell
22
(2004) 118 Cal.App.4th 249, 256.) Discovery in criminal cases is
per California’s statutory scheme, unless otherwise mandated by
the federal Constitution or other statutory provisions. (§ 1054,
subd. (e).) The statutory scheme requires the prosecution to
disclose information in its possession or information it knows to
be in the possession of investigating agencies. (§ 1054.1.)
Information that must be disclosed includes names and addresses
of witnesses the prosecutor intends to call at trial, the
defendants’ statements, a material witness’s felony conviction,
exculpatory evidence, and relevant written or recorded
statements or reports of witnesses the prosecutor intends to call
at the trial. (§ 1054.1, subds. (a)–(f).) Disclosures must be made
at least 30 days prior to trial or, if the prosecution obtains
discovery within 30 days of trial, immediately. (§ 1054.7.)
If a party fails to comply with its discovery obligations, a
trial court may issue any order necessary to enforce the discovery
statutes, including immediate disclosure, contempt proceedings,
or a continuance. (§ 1054.5, subd. (b).) Alternatively, section
1054.5, subdivision (c), preserves judicial power to dismiss the
action for a Brady violation. (People v. Gutierrez (2013) 214
Cal.App.4th 343, 352.) Under Brady, and notwithstanding any
statutory discovery duties a prosecutor has, the prosecution has a
constitutional duty to disclose evidence favorable to the
defendant and material on either guilt or punishment. (In re
Sassounian (1995) 9 Cal.4th 535, 543–544; see also In re Brown
(1998) 17 Cal.4th 873, 879 [prosecutor’s duty to disclose material,
exculpatory evidence extends to the prosecution team, including
investigative agencies].) Evidence may be favorable if it helps
the defendant or hurts the prosecution by, for example,
impeaching a witness. (Sassounian, at pp. 543–544.) Evidence is
23
material if there is a reasonable probability that had the evidence
been disclosed the outcome would have been different. (Ibid.; see
also People v. Zambrano (2007) 41 Cal.4th 1082, 1132–1133
[materiality includes whether nondisclosure impacted defense
investigation and trial strategy].) If confidence in the outcome
has been undermined, then a reasonable probability exists.
(People v. Dickey (2005) 35 Cal.4th 884, 907.)
Generally, we review a trial court’s discovery rulings for
abuse of discretion. (People v. Ashraf (2007) 151 Cal.App.4th
1205, 1212.) But where the issue is whether dismissal was
proper under section 1054.5, subdivision (c), our review is de
novo. (Ibid. [§ 1054.5, subd. (c), forbids dismissal as discovery
sanction unless federal Constitution requires dismissal].)
III. No Brady error occurred.
Primarily citing section 1054.5, subdivision (c), Jones
contends that the trial court erred by failing to dismiss charges
under that section. As we have said, dismissal under section
1054.5, subdivision (c), amounts to a claim dismissal is required
because of a Brady violation. (People v. Gutierrez, supra, 214
Cal.App.4th at p. 352.) Jones thus focuses on the prosecution’s
failure to provide discovery about the surveillance team, claiming
this was Brady error.
To establish that the failure to provide discovery about the
surveillance team violated Brady, Jones had to show three
things: first, the evidence was favorable to him because it was
exculpatory or impeaching; second, the State suppressed it, either
willfully or inadvertently; and third, prejudice. (Strickler v.
Greene (1999) 527 U.S. 263, 281–282; People v. Salazar (2005) 35
Cal.4th 1031, 1043.)
24
Jones did not make the first showing, because a mere
possibility that evidence might have helped the defense or
affected the trial’s outcome does not establish materiality.
(United States v. Agurs (1976) 427 U.S. 97, 109–110; People v.
Fauber (1992) 2 Cal.4th 792, 829.) Here, Jones theorized that
members of the surveillance team would have been able to
impeach Stringer’s testimony that Jones arrived at his house
around 10:00 or 11:00 a.m., sometime after Golden was killed at
about 8:30 a.m. That is, the surveillance team could have
testified either that they did not see Jones arrive at the house
that morning or that the van was already there when they
arrived.
However, Jones’s theory depends on several things. It
depends on when the surveillance team arrived at Stringer’s
home. If the team arrived later in the morning, it may not
necessarily have seen anyone arriving at the house. The
surveillance team may have seen nothing because Jones and
Stringer could have been at the house sometime after the
surveillance team left around 10:00 a.m. Jones’s theory further
depends on whether the surveillance team had a vantage point
such that it could see all entry points to the house. Moreover, the
evidence could have been incriminatory: the surveillance team
could have established that the van arrived soon after Golden
was shot and that Jones went into the house. Indeed, there was
evidence that four Black men ran out of the house with Rachal,
one of whom could have been Jones. Thus, the evidence could
have corroborated rather than impeached Stringer’s statements.
That the evidence was exculpatory was therefore speculative.
Although we need not proceed to the next element, because
a defendant claiming Brady error must establish all three
25
elements, Jones also cannot establish that the State suppressed
the evidence. First, the surveillance team was watching
Stringer’s house in connection with an unrelated matter. It was
happenstance that things occurred at that house possibly
relevant to Golden’s murder. It was not readily apparent that
what the surveillance team did was relevant to this case. Second,
the prosecution did disclose Deputy Adragna’s search warrant for
the house and his report. While those documents did not refer to
the surveillance team’s existence, it is unclear what other
discovery the prosecution could have disclosed on this matter,
because the surveillance team itself wrote no reports and any
radio communications were destroyed per departmental policy.
And while the detective investigating Golden’s murder perhaps
should have included in his report information about the
surveillance team, the relevance of that team understandably
may not have been readily apparent. Rather, from the detective’s
perspective, what was relevant was that Deputy Adragna saw the
van involved in Golden’s murder. We therefore do not agree that
any failure to disclose evidence about the surveillance team
violated Brady.
IV. The discovery violations did not violate Jones’s
constitutional rights.
Jones urges us to consider the cumulative effect of the
discovery violations in combination with the alleged Brady error
and find that his due process rights, constitutional right to a fair
trial, right to effective assistance of counsel, and right to present
a meaningful defense were denied.16 He therefore argues that
16 The cell phone analysis report, Deputy Chun’s diagrams,
the fingerprint ruse, and Stringer’s receipt of relocation funds
26
dismissal or mistrial was required in the furtherance of justice
under section 1385. We do not agree.
To the extent the denial of discovery implicates a
defendant’s federal due process rights, the applicable test is
whether the error is harmless beyond a reasonable doubt, under
Chapman v. California (1967) 386 U.S. 18. (People v. Gonzalez
(2006) 38 Cal.4th 932, 961.) Otherwise, a prosecutor’s violation of
discovery statutes is subject to reversal when it is reasonably
probable the outcome was affected, under People v. Watson (1956)
46 Cal.2d 818, 836. (People v. Zambrano, supra, 41 Cal.4th at
p. 1135, fn. 13.)
Under either standard, reversal is not required. While
Deputy Chun’s failure to produce the diagrams until trial leaves
us as incredulous as the trial court, there was nothing remotely
earthshattering about them, because they corresponded to what
the crime scene photographs already depicted. Nothing that the
diagrams showed impacted the ability to put on a defense, and
neither below nor on appeal does Jones argue they did. Indeed,
trial counsel for Jones agreed they were not “significant” by
themselves but only became so when considered cumulatively
with the other untimely discovery.
Nor can we agree the untimely disclosure that Stringer was
given relocation funds harmed the defense. Through its
examination of Detective Rodriguez, the defense ably impeached
the prosecution’s case by establishing that he gave Stringer those
relocation funds. Also, the detective gave those funds to Stringer
were not suppressed and therefore could not form the basis for
Brady error. (People v. Mora and Rangel (2018) 5 Cal.5th 442,
467 [matters presented at trial cannot form basis for Brady
error].)
27
after Stringer testified at the preliminary hearing, and therefore,
as the trial court noted, those funds could have had no impact on
Stringer’s preliminary hearing testimony. The defense was also
able to impeach Stringer’s credibility in other ways. Although
Detectives Rodriguez and Shear testified that Stringer was not
an informant, defense witness Sergeant White testified that
Stringer was an informant from 2013 to about April 2014.
Sergeant White did not financially compensate Stringer, but he
did not present ammunition and drug possession charges to the
district attorney’s office. Therefore, the defense did show that
Stringer had connections to law enforcement and might want to
trade information—true or manufactured—for help on pending
charges or for other assistance.
As for the cell phone analysis report, we agree with the
trial court’s observation that things fall through the cracks and
that the prosecution’s late disclosure was not intentional or
malicious. However, that report and designating a witness to
testify about it were key to the prosecution case. Yet, the two
prosecutors assigned to this case failed to produce the report and
to distribute the expert designation, although they had it
prepared. Defense counsel announced ready for trial and based
strategy in part on their understandable belief that the
prosecution was not going to use the cell phone evidence to place
defendants in the vicinity of the crime scene before and around
the time of the murder. We therefore are not so sanguine about
the omission.
While we cannot condone such prosecutorial sloppiness, it
nonetheless did not fatally harm the defense, in part due to the
competence of Williams’s defense counsel, who had already
retained and consulted a cell phone expert, and of Jones’s
28
counsel, who was able to use the same defense expert. Moreover,
the trial court did offer a continuance, but Jones’s counsel
declined the offer, stating he was prepared to go forward and that
a continuance would not make a difference in his ability to
counter the new evidence. Given this representation that the late
disclosure did not impact defense counsel’s strategy, we cannot
find that the untimely disclosure impeded Jones’s ability to get a
fair trial or that the outcome would have been different.
Next, the prosecution similarly had the defense to thank for
the Deputy Rusenit debacle coming to light during trial. It was
only due to defense counsel’s thorough attempts to track down
Deputy Rusenit that the ruse was unveiled. Until it was, the
fake fingerprint report led the defense, as well as the prosecution,
to believe that third-party White’s fingerprint was in the van,
when in fact it was not. Notwithstanding the error, we cannot
agree that the defense was ultimately harmed. To the contrary,
Detective Rodriguez had to fall on his sword before the jury,
admitting his failure to note that the White fingerprint report
was a fake and was a “big mistake.” This must have led the jury
to wonder what other mistakes had been made (which CALCRIM
No. 306 answered), even if those mistakes were not enough to
convince it to acquit Jones.
We therefore reject Jones’s argument that reversal is
required, even though we acknowledge this was not, in his words,
a slam dunk case. There were no witnesses to the murder;
Jones’s prints were in the van, but it could not be ascertained
when they were placed there; and although Jones made
seemingly incriminating statements in the wiretapped calls,
those statements were cryptic and fell short of an admission he
was the shooter. Also, Jones offered a reason why his cell phone
29
was in the area at the time of the crime: his girlfriend lived in
that area, and he used to babysit her daughter.
Even so, and as we have said, to the extent this case hinged
on Stringer, the defense was able to attack his credibility. The
defense brought out that Stringer was a repeat felon facing yet
more criminal charges when he gave his statement incriminating
Jones. Stringer was clearly hoping for consideration in exchange
for helping law enforcement, and Detective Rodriguez said things
to Stringer suggesting he could help him. Indeed, the detective
did give Stringer over $5,000 in relocation funds. And at the
preliminary hearing, Stringer admitted that he could have “put a
little extra on some things” in this case, implying he could have
exaggerated.
Aside from the fact the defense was not critically impaired
in its ability to attack Stringer’s credibility, Stringer’s statement
was also corroborated in part. He said that No Good came to his
house and that when the police arrived, they escaped out the
back. Stringer therefore knew that police were at his house that
day. Also, he said that No Good referred to the victim as “the old
guy.” Although not elderly, Golden was 47 years old when he was
murdered.
We therefore conclude that the discovery violations were
harmless.
V. The waiver of rights
Jones’s final contention is the trial court improperly
required him to waive his right to raise on appeal claims of
ineffective assistance of counsel and violation of his right to a fair
trial as a prerequisite for having the jury instructed with
CALCRIM No. 306. Despite our doubts regarding the propriety
of conditioning the giving of a proper instruction on the waiver of
30
such rights, we need not consider the issue. Our reading of this
record shows that even if the trial court did improperly impose
such a condition, both defense counsel, after resting, were crystal
clear that they were withdrawing any motion for a mistrial based
on the untimely disclosure of discovery and making a tactical
decision to rely on CALCRIM No. 306. Stated otherwise, given
the state of the record, defense counsel made the strategic and
wholly reasonable decision that their best chance for a good
outcome was before a jury that had seen firsthand the law
enforcement and prosecutorial missteps and getting a strong
instruction about them. Therefore, the record is clear that Jones
was not forced to give up rights to obtain the instruction; rather,
the instruction is exactly what he wanted.
31
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
ADAMS, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
32