THE PEOPLE v. PATRICIA GLOECKNER (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O NFACTS

It was alleged in an information filed July 1, 2009, that appellant, Patricia Gloeckner, and her codefendant, Joe Nombrano, possessed methamphetamine for purposes of sale, in violation of Health and Safety Code section 11378, and that appellant possessed 57 grams or more of a substance containing methamphetamine, within the meaning of Health and Safety Code section 1203.073, subdivision (b)(2).   A jury trial began on July 6, 2010.   On the morning of July 8, 2010, after all parties rested, the People moved to dismiss the charge against Nombrano, and the court granted the motion.   Later that afternoon, the jury convicted appellant of the charged offense and found the special allegation true.   Thereafter, appellant moved for a new trial and, following a hearing on November 4, 2010, the court denied the motion.   On November 15, 2010, the court imposed a sentence of two years, but suspended criminal proceedings pursuant to Welfare and Institutions Code section 3051 and ordered appellant committed to the California Rehabilitation Center for drug addiction treatment.

On appeal, appellant contends (1) the prosecution failed to disclose evidence both favorable and material to the defense, in violation of appellant's rights under the due process clause of the Fourteenth Amendment to the United States Constitution;  (2) appellant was denied her constitutional right to testify;  and (3) the court erred in denying appellant's motion for a new trial.   We will affirm.

Prosecution Case

On December 18, 2008, City of Bakersfield Police Officer Eric Schimon and other officers assigned to the Kern County Narcotics enforcement team went to a hotel in Bakersfield for the purpose conducting an investigation of appellant's activities.   Upon arriving the officers learned that appellant had rented room 235 (the room).   The officers thereupon conducted a surveillance of the hotel, during which they observed the following:  Nombrano left the room.   Shortly thereafter, he unlocked a Ford Mustang automobile (the car) that was parked in the parking lot.   The officers were aware from a check of police records that on several occasions police had made contact with appellant when she was driving the car.   Nombrano entered the car on the driver's side, placed some items in the passenger compartment of the car, and then placed other items in the trunk.   He then returned to the room.   Some time later, appellant and Nombrano left the room together.

At that point, Officer Schimon identified himself as a police officer, and told appellant he wanted to talk to her about narcotics transactions at the hotel.   Appellant walked over to the officer, and he told her he suspected her of being involved in narcotics transactions at the hotel.   He asked appellant for proof of identity and, while appellant was looking in her purse, asked her if he could search the purse.   Appellant handed it to him.

Inside the purse, Officer Schimon saw a small black velvet bag with a cinched top.   He removed the velvet bag from the purse, at which point appellant stated, “that's my medicine.”   The officer asked “what kind of medicine.”   Appellant responded that it was “just my medicine.”   Inside the velvet bag, Officer Schimon found three plastic baggies containing what the officer recognized as methamphetamine.   Later, he found $733.00 in currency in the purse, and in a search of the trunk of the car he found another purse containing $9,300.00 in currency.

Officer Schimon testified that at the point he began handling the velvet bag, Nombrano, who was standing with an another officer, approximately 15 feet away, stated “that stuff[']s mine.”   Officer Schimon testified further that later that same day, he questioned Nombrano, and Nombrano stated that the drugs found in the velvet bag were not his and he “didn't know where they came from.”

Nombrano, testifying on his own behalf, on direct examination testified to the following:  He saw Officer Schimon open appellant's purse and remove from the purse “a little velvet Baggie.”   When he saw the “Baggie,” he said, “that belongs to me.”   This was not true.   He only said so because he had had a “relationship” with appellant, he did not want appellant to “get in trouble,” and he wanted to “protect her.”   He did not know what was in the velvet bag until Officer Schimon “took it out.”   He did not put anything in appellant's purse.

Nombrano was asked on cross-examination by appellant's counsel:  “You were told that if you testified and your testimony was the same as what was in the police report that they were going to dismiss your case.   Correct?”  Nombrano answered, “Yes.”

Appellant did not testify.

Motion for New Trial

In support of her motion for new trial, appellant submitted the declaration of her trial counsel, Joe W. Whittington, in which Whittington averred, in relevant part, as follows:  “After the conclusion of the trial, it came to my attention that Mr. Nombrano was a defendant in a misdemeanor action (BM749107A) in which he entered nolo pleas to forgery (Penal Code section 470 [,] [subd.] (d), possession of controlled substance paraphernalia (Health & Safety Code section 11364 and destroying or concealing evidence”; ¹  court records showed that the complaint in the case was filed April 1, 2009, and Nombrano entered his pleas on July 28, 2010;  and “[h]ad I known of these charges ․, I would have impeached Mr. Nombrano as two of these misdemeanors are crimes of moral turpitude.”

At the hearing on the motion, the court took judicial notice that “at the time of the trial in this case there were pending charges against Mr. Nombrano in BM749107A, which accused him of crimes of moral turpitude.” ²

DISCUSSION

Claim of Prosecution's Failure to Disclose Impeachment Evidence

Appellant contends the prosecution violated its duty under the due process clause of the United States Constitution to disclose evidence that would have enabled appellant to impeach Nombrano.   Specifically, appellant faults the prosecution for not disclosing (1) the fact that pending against Nombrano at the time of trial were misdemeanor charges of forgery and concealing and/or destroying evidence, and (2) “materials” relating to, and constituting evidence of, the conduct underlying those pending charges, such as police reports and the names and addresses of witnesses.³  Appellant argues that Nombrano's testimony was crucial to the prosecution, and that “[i]f the jury had known that Nombrano was facing crimes of moral turpitude, exhibiting dishonesty and lack of veracity, they quite easily could have determined that he was lying․”

Appellant bases her claim on Brady v. Maryland (1963) 373 U.S. 83 (Brady ).   In that case, the United States Supreme Court held that under the due process clause of the Fourteenth Amendment to the United States Constitution, the prosecution must disclose to the defense any evidence that is “favorable to the accused” and is “material” as to either guilt or punishment.  (Brady, at p. 87.)   Thus, there are three components to a successful claim under Brady:  “[T]he defendant[ ] must establish (1) that the prosecutor suppressed evidence;  (2) that such evidence was favorable to the defense;  and (3) that the suppressed evidence was material.”  (United States v. Jackson (7th Cir.1986) 780 F.2d 1305, 1308.)   We address these components in that order.

Did the Prosecution Suppress Evidence?

In order for this component of a Brady violation to be established, the evidence at issue must have been suppressed by the state, either willfully or inadvertently.  (Strickler v. Greene (1999) 527 U.S. 263, 282 (Strickler ).)   The scope of a prosecutor's duty to disclose “extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge ‘any favorable evidence known to the others acting on the government's behalf․’ ”  (In re Brown (1998) 17 Cal.4th 873, 879.)   We assume without deciding that, as appellant argues but the People dispute, the prosecution suppressed both the fact of the pending misdemeanor charges and the underlying conduct evidence.

Was the Suppressed Evidence Favorable?

“The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence․”  (Napue v. Illinois (1959) 360 U.S. 264, 269.)   Thus, evidence favorable to the accused “encompasses impeachment evidence as well as exculpatory evidence [ ] [citation].”  (Strickler, supra, 527 U.S. at p. 280;  accord, In re Sassounian (1995) 9 Cal.4th 535, 544[“[e]vidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses”];  People v. Ashraf (2007) 151 Cal.App.4th 1205, 1214 (Ashraf ) [“evidence tending to impeach the credibility of a prosecution witness may be deemed favorable to the defense under Brady ”].)

As indicated above, appellant refers to two categories of undisclosed evidence:  (1) the fact of the pending misdemeanor charges;  and (2) the underlying conduct evidence.   We analyze each category separately.

As to the first category, trial counsel averred, and the court took judicial notice, that at the time of trial there were pending against appellant misdemeanor charges of forgery and concealing or destroying evidence.   Thus, the record supports the claim of these pending charges.   And, there is no dispute that the fact of these charges was relevant for impeachment purposes and therefore constituted evidence favorable to appellant under Brady.   It is well established that a prosecution witness can be impeached by the mere fact of pending charges.  (People v. Coyer (1983) 142 Cal.App.3d 839, 842.)   Such a situation is a “circumstance to show that [the witness] may, by testifying, be seeking favor or leniency.  [Citations.]”  (3 Witkin, Cal. Evidence (4th ed.   2000) Presentation, § 271, p. 343.)   Therefore, the evidence of the fact of the pending charges constituted favorable evidence under Brady.

As to the second category, we recognize that although a misdemeanor conviction constitutes inadmissible hearsay, at the trial court's discretion, “evidence of the underlying conduct may be admissible” to impeach the witness (People v. Chatman (2006) 38 Cal.4th 344, 373) since “[m]isconduct involving moral turpitude may suggest a willingness to lie” (People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler ), superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459).   And, there is no dispute, and we conclude, that forgery and concealing or destroying evidence are crimes of moral turpitude.  (People v. Parrish (1985) 170 Cal.App.3d 336, 349 [forgery is a crime of moral turpitude].)

However, “to determine whether evidence that was not disclosed to the defense was favorable and material under Brady, we must have some idea of what that evidence was.”  (Ashraf, supra, 151 Cal.App.4th at p. 1212.)   Here, the record contains no information on the conduct underlying the charges in question.   The situation presented is similar to that in People v. Letner and Tobin (2010) 50 Cal.4th 99 (Letner and Tobin ).   In that case, the prosecution failed to disclose one of its witnesses had an outstanding warrant for petty theft and, in a second case, had pleaded guilty to misdemeanor theft and writing a bad check, but “the record fail[ed] to provide [the reviewing court] with any information concerning the facts underlying [the government witness's] offenses.”  (Id. at p. 178.)   In rejecting the defendants' Brady claim, the court stated “[the] defendants' bare allegation that the offenses themselves would have had value in impeaching [witness's] testimony [was] unsupported.”  (Letner and Tobin, at p. 178.)   In a similar vein, the court in Ashraf stated that the defendants “cannot point to anything in the undisclosed reports they could have used to impeach [prosecution witnesses], and mere speculation that there might have been something useful for impeachment purposes in those reports is not sufficient to demonstrate a Brady violation.”  (Ashraf, at p. 1214.)   On this record, appellant has not established that the facts underlying the charges pending against Nombrano had any impeachment value.   Therefore, appellant has not established that the underlying conduct evidence was favorable under Brady.

Was the Suppressed Evidence Material?

We turn now to the question of whether the fact of the pending charges was material.  “[F]avorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”  (Kyles v. Whitley (1995) 514 U.S. 419, 433.)  “ ‘The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’  [Citation.]”  (People v. Fauber (1992) 2 Cal.4th 792, 829.)   As this court has described it, “ ‘[m]ateriality ․ requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction “more likely” [citation], or that using the suppressed evidence to discredit a witness's testimony “might have changed the outcome of the trial” [citation].   A defendant instead “must show a ‘reasonable probability of a different result.’ ”  [Citation.]'  [Citation.]  ․ The requisite “reasonable probability” is a probability sufficient to “undermine [ ] confidence in the outcome” on the part of the reviewing court.   [Citations.]  It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract.  [Citation.].” (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.)  “[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.”  (United States v. Agurs (1976) 427 U.S. 97, 108.)

Under some circumstances, of course, impeachment evidence may be material under the principles summarized above.   However, undisclosed impeachment evidence is not material under Brady if it would not have added significantly to the cumulative impact of other impeachment evidence already presented.  (People v. Dickey (2005) 35 Cal.4th 884, 907–909 (Dickey ).)   For example, in Dickey, the defendant claimed that an effort by one of two key prosecution witnesses to obtain leniency in a separate prosecution was material impeachment evidence under Brady.  (Dickey, at pp. 907–908.)   The Supreme Court ruled that, although the evidence was impeaching, it was not material because “it would have added little to the cumulative impact of the other impeachment evidence.”  (Id. at p. 908.)   The jury already knew that the witness disliked the defendant, wanted a reward associated with turning defendant in to the authorities, had made inconsistent statements about whether he was motivated by the reward, and was a drug user.  (Ibid.) In light of this other impeaching evidence, the court concluded that it was not reasonably probable that the new impeachment evidence would have “fatally undermined” the jury's confidence in the witness's testimony.  (Id. at pp. 908–909.)

Here too, the undisclosed evidence in question was favorable because pending-charges evidence can be used to support the claim that the witness's motivation in testifying is to obtain favoritism and/or leniency.   However, the jury heard evidence going to the same point.

As already indicated, the People presented police testimony that Nombrano made contradictory statements to the police regarding ownership and knowledge of the methamphetamine found in the black velvet bag in appellant's purse:  First, upon observing the police removing methamphetamine from appellant's purse, he volunteered that the contraband was his, but when questioned by police later, after presumably having had the opportunity to reflect on the matter, he reversed his field and incriminated appellant by denying ownership, as well as any knowledge, of the contraband.   On direct examination, Nombrano testified in a manner consistent with the second account he gave police.   However, on cross-examination, he testified that the prosecution told him that if he testified consistent with his second statement to police, the felony charge against him of possession of methamphetamine for purposes of sale would be dismissed.   This arrangement, as appellant's trial counsel argued to the jury, constituted compelling impeachment evidence because it showed that Nombrano had an extremely strong incentive to testify as he did:  the prospectindeed, the certaintyof the dismissal of a felony charge.   Because the jury heard this evidence, other evidence which supported the inference that he might testify in a way calculated to obtain leniency or other favorable treatment with respect to the pending misdemeanor charges would have been merely cumulative.   Therefore, the evidence of the fact of the pending charges was not material.

Appellant suggests that if the prosecution's offer to dismiss the felony charge if Nombrano testified he knew nothing of the contraband renders the undisclosed evidence immaterial, there has been a denial of appellant's due process rights amounting to a “travesty of justice” because, appellant asserts, the prosecution “essentially bought Nombrano's testimony[,]” thereby “corrupti [ng] the truth-finding process․”  We disagree.

The record reveals nothing more than a common plea agreement in which the prosecution agreed to dismiss charges in exchange for testimony.   Such an arrangement would raise due process concerns if the prosecutor conditioned such a benefit, or any benefit, on untruthful testimony, but there is absolutely no indication of that here.   Indeed, the prosecutor, in his cross-examination of Nombrano regarding the effect of the plea agreement, pointedly asked Nombrano if he understood he was under oath and that it was “a crime to tell a lie under oath[.]”

As best we can determine, appellant suggests Nombrano's plea agreement violated her due process rights because Nombrano had an extremely strong incentive to testify in a way that incriminated appellant.   However, any time the opportunity is presented to obtain a benefit in exchange for testimony, there is put forth an inducement for that testimony.   That the inducement in Nombrano's case was substantial does not establish that appellant's due process rights were violated.

Finally, although, as demonstrated above, appellant has not established the underlying conduct evidence was favorable, we note, in addition, that it follows from the fact that the record tells us nothing about the conduct underlying the pending charges that appellant has also failed to demonstrate that the underlying conduct evidence was material.   Moreover, it is not obvious that the trial court would have allowed evidence of the conduct on which the misdemeanor charges were based.   As the court in Letner and Tobin stated, “we ․ take note ․, with reference to the underlying facts of misdemeanor offenses, that trial courts retain the authority to exclude such evidence under section 352 of the Evidence Code if presentation of those facts would create undue prejudice, delay, or confusion, substantially outweighing their probative value.  (Wheeler at pp. 296–300.)  ․ In addition, ․, ‘a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony.’ ”  (Letner and Tobin, supra, 50 Cal.4th at p. 178.)

As indicated above, in Letner and Tobin the record contained no information regarding the facts underlying the government witness's offenses.   In rejecting the defendants' Brady claim, the court held the defendants had failed to meet the materiality requirement:  “In sum, defendants have failed to demonstrate that there is a reasonable probability that had the prosecutor disclosed to defendants the then-pending criminal matters facing [the government witness] before the prosecution called her as a witness, the jury would have reached a result more favorable to defendants.   Accordingly, defendants have not established that their constitutional rights were violated.”  (Letner and Tobin, supra, 50 Cal.4th at p. 178.)   Here too, where the record tells us nothing about the conduct underlying the misdemeanor charges pending against Nombrano at the time of trial, appellant has not established that such conduct was material under Brady.

On this record, then, we conclude appellant has failed to demonstrate that the evidence of the fact of the pending misdemeanor charges was material or that the underlying conduct evidence was either favorable or material.   Therefore, appellant's claim of Brady error fails.

Right to Testify

Appellant contends her constitutional right to testify was violated.   There is no merit to this contention.

Background

Appellant's trial counsel testified to the following at the hearing on appellant's motion for new trial:  Prior to trial, attorney Whittington advised appellant of “the pitfalls of testifying on her own behalf,” and he made a “tactical decision” not to call her to testify.   After the defense rested, and “as the Court was admonishing the jury,” appellant told Whittington she wanted to testify.   Whittington “said no.”   He did not ask “if [he] could reopen [the] case and have [appellant] testify” because he “thought it was tactically the best thing not for her to testify and that is the reason [he] didn't say anything to the judge about re-opening the case.”

Analysis

“[A] defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.”  (Rock v. Arkansas (1987) 483 U.S. 44, 49.)   It “is one of the rights that ‘are essential to due process of law in a fair adversary process' ” (id. at p. 51) that is protected by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution (id. at pp. 51–53).

However, “ ‘[a] trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy;  otherwise, the judge would have to conduct a law seminar prior to every criminal trial.’ ”  (People v. Cox (1991) 53 Cal.3d 618, 671;  disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)  “When the record fails to disclose a timely and adequate demand to testify, ‘a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.’ ”  (People v. Alcala (1992) 4 Cal.4th 742, 805–806, italics added.)

Here, although it is undisputed that appellant expressed to counsel her desire to testify, it is also undisputed that appellant did not express that desire to the court until well after the verdict.   Therefore, her claim fails.   (People v. Alcala, supra, 4 Cal.4th at pp. 805–806.)

Motion for New Trial

Penal Code section 1181 (section 1181) contains a list of grounds upon which a motion for new trial may be granted.   In her opening brief, appellant argues that “Nombrano's pending criminal cases” constituted “new evidence” under section 1181, subdivision 8, which provides, in relevant part, that a motion for new trial may be granted “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.”

First, we note appellant waived her right to challenge the court's ruling on statutory newly-discovered-evidence grounds.   In her notice of motion for new trial, she cited only one statutory groundsection 1181, subdivision 5, which includes prosecutorial misconductand two claims of constitutional error, viz., that defense counsel (1) refused to allow appellant to testify and (2) was constitutionally ineffective in failing to call Nombrano as a witness after the case against him had been dismissed, and at the hearing on the motion, she asserted a claim of Brady error.   However, “A motion for new trial may be granted only upon a ground raised in the motion.  [Citations.]  ‘[A] defendant waives [her] right to a new trial upon all grounds included within the provisions of [section 1181] unless [she] specifies the grounds upon which [she] relies in [her] application therefor.’  [Citation.]”  (People v. Masotti (2008) 163 Cal.App.4th 504, 508.)

In any event, appellant's challenge to the denial of her motion for new trial fails on the merits.   The evidence of the fact of the charges pending against Nombrano is not material under section 1181 for the same reasons it is not material under Brady.  (People v. Delgado (1993) 5 Cal.4th 312, 328 [in ruling on motion for new trial, trial court considers, inter alia, “ ‘ “[t]hat the evidence be not cumulative merely” ’ ” and “ ‘ “[t]hat it be such as to render a different result probable on a retrial of the cause” ’ ”].)   Similarly, because the record does not establish that the underlying conduct evidence was either favorable or material under Brady, such evidence cannot be considered material under section 1181, subdivision 8.

Appellant argues for the first time in her reply brief, in what she characterizes as contentions “independent” of her claims of Brady error and violation of her right to testify, that the court erred on both those grounds in denying her motion.   As demonstrated above, both contentions are without merit.   The court did not abuse its discretion in denying appellant's motion for new trial.  (See People v. Hoyos (2007) 41 Cal.4th 872, 917 [a trial court's ruling on a new trial motion is reviewed for abuse of discretion].)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Counsel's reference to “destroying or concealing evidence” is an apparent reference to Penal Code section 135, which provides:  “Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.”.  FN1. Counsel's reference to “destroying or concealing evidence” is an apparent reference to Penal Code section 135, which provides:  “Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.”

FN2. The court also took judicial notice of what is apparently a single document related to the pending charges.   This document has not been made part of the record on appeal..  FN2. The court also took judicial notice of what is apparently a single document related to the pending charges.   This document has not been made part of the record on appeal.

FN3. We refer to this second category of evidence as the underlying conduct evidence..  FN3. We refer to this second category of evidence as the underlying conduct evidence.

THE COURT 1 FN1. Before Cornell, Acting P.J., Gomes, J., and Franson, J.