People v. Jimenez

A second patrol vehicle, a marked SUV driven by Deputy P., attempted to assist during the pursuit but was unable to catch up. Deputy A. was a passenger in that second patrol vehicle. Deputy P. was able to see the vehicles driven by Jimenez and Deputy F. for about one-third to one-half of the pursuit, but then lost sight of them. He took an alternate route and tried to rejoin the pursuit based on information received from dispatch regarding Jimenez's location. As Deputy P. was traveling with lights and sirens activated, he saw Jimenez turn a corner and approach the SUV from the opposite direction. Although there was room for two vehicles to travel down the street without colliding, Jimenez drove into the opposing lane of traffic where the patrol SUV was driving. All three testifying deputies opined that Jimenez was driving approximately 40 miles per hour when his vehicle approached the SUV. The SUV had to swerve out of the way at the last moment to avoid a head-on collision. Deputy P. testified that they were three to four feet apart when he made this maneuver, whereas Deputy A. said they were about five to six feet away.

Eventually, Jimenez stopped abruptly in front of an apartment building. With no time to stop completely, the pursuing patrol car driven by Deputy F. collided with Jimenez's vehicle. Jimenez fled his vehicle but then turned after taking about 15 steps and informed deputies that his children were in the car. His daughters, ages four and six, were found in the front seat. There were no boosters or child seats in the vehicle. Deputies P. and A. spoke with the girls, who appeared upset. Both girls said they were scared.

Deputies found an open can of beer in the front center console area, about three-quarters full, and two other unopened cans of beer in the back seats. The prosecution introduced photographs depicting damage to the front of the patrol car and the rear bumper of Jimenez's vehicle sustained in the collision at the end of the pursuit. The photographs depicted dirt and mud on the patrol car that deputies testified was deposited during the pursuit when they followed Jimenez's vehicle through a large mud puddle.

In closing arguments to the jury, Jimenez's counsel emphasized that the only witnesses who testified at trial were the three deputies. Counsel questioned their credibility because they were the only witnesses to the charged offenses and were also victims in the charged evasion and assault. Counsel suggested the deputies' testimony was coordinated because of the similarities

police report been turned over of a prior unrelated investigation done by the detective involved in the case.

"The prior police report is not material or relevant to the current case where the defendant had two children unrestrained in his car when he took police on the high[-]speed chase. The fact that the detective from the uncharged case was a passenger in the second police car in the pursuit does not give rise to any new material evidence.

".... Evidence which simply creates a conflict with the prima facie case made out by the prosecution, rather than contradicting the strongest evidence against the defendant, does not support a new trial motion."

The trial court also denied Jimenez's Romero motion, noting that it was "a tough issue," but that, "based on the totality of the circumstances, it would be inappropriate to strike the prior" for the purposes of sentencing. The court then sentenced Jimenez to a total term of 13 years, four months, which included a consecutive five-year term for the prior serious felony conviction.

DISCUSSION

A. Jimenez Has Not Established a Brady Violation

Jimenez argues that the prosecution's failure to disclose the police report constitutes a Brady violation that resulted in an unfair trial in violation of his constitutional rights. We conclude Jimenez has not established a Brady violation because he has not shown the undisclosed police report was favorable or material to his case.

1. Legal Principles

A criminal defendant has a due process right to pretrial discovery of information favorable to his defense. ( Brady , supra , 373 U.S. at p. 87, 83 S.Ct. 1194 .)

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." ( Strickler , supra , 527 U.S. at pp. 281-282, 119 S.Ct. 1936 .) "Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt and innocence.' [Citations.] Materiality, in turn, 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." ' " ( Salazar , supra , 35 Cal.4th at p. 1043, 29 Cal.Rptr.3d 16 , 112 P.3d 14 .) "The requisite 'reasonable probability' is a probability sufficient to 'undermine[ ] confidence in the outcome' on the part of the reviewing court." ( In re Sassounian (1995) 9 Cal.4th 535 , 544, 37 Cal.Rptr.2d 446 , 887 P.2d 527 ( Sassounian ).)

On appeal, the defendant bears the burden to establish the components of a Brady violation. ( Strickler , supra , 527 U.S. at pp. 289, 291, 119 S.Ct. 1936 .) We independently review whether such a violation occurred but give "great weight to any trial court findings of fact that are supported by substantial evidence." ( People v. Letner and Tobin (2010) 50 Cal.4th 99 , 176, 112 Cal.Rptr.3d 746 , 235 P.3d 62 .)

2. Analysis

Jimenez contends the failure to disclose, prior to trial, the police report authored by Deputy A. detailing a shooting incident that occurred weeks before the charged incident constitutes a Brady violation and deprived him of a fair trial. We assess each of the three components of a Brady violation, starting first with the issue of suppression.

It is undisputed that the suppression component of Brady is met. The Attorney

In contrast, here, the police report relates to a different, uncharged and unrelated shooting incident. Although the report documents Jimenez's physical presence during the incident, it draws no conclusions regarding his involvement, if any, other than as a potential witness. The police report was authored by Deputy A., a testifying witness in the instant case, but there is no indication the report constitutes false reporting, nor is there independent evidence indicating Deputy A.'s dishonesty or embellishment of facts. (Cf.

incident was critical evidence corroborating appellant's theory the police were not telling the truth about what had happened, and were coordinating an embellished story in order to charge appellant with assault with a deadly weapon.

"Had the defense known of this prior incident it would have been able to more convincingly make the case for police bias. The police report could have been used during cross examination of [Deputy A.] to show that he was biased against appellant based on appellant's presence at a gang-related shooting."

The Attorney General responds that Jimenez's theory is "farfetched and speculative," and evidence in the case other than Deputy A.'s testimony, including the testimony of Deputies F. and P. and circumstantial evidence including photographs taken shortly after the pursuit ended, so strongly establishes the elements of the charged offenses that it is not reasonably probable the result would have been different had Jimenez used the police report to impeach Deputy A.'s testimony or otherwise bolster his defense. We agree with the Attorney General.

To establish materiality (and therefore prejudice), the defendant " 'must show a "reasonable probability of a different result." ' " ( Salazar , supra , 35 Cal.4th at p. 1043, 29 Cal.Rptr.3d 16 , 112 P.3d 14 .) "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.] Further, it is a probability that is, as it were, 'objective,' based on an 'assumption that the decisionmaker

A new trial should be granted based on newly discovered evidence only if the evidence is "material to the defendant" and the defendant "could not, with reasonable diligence, have discovered and produced [the evidence] at the trial." (§ 1181, subd. (8).) The newly discovered evidence must " ' "be such as to render a different result probable on a retrial of the cause." ' " ( People v. Delgado (1993) 5 Cal.4th 312 , 328, 19 Cal.Rptr.2d 529 , 851 P.2d 811 .) "Critically, '[a] new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence' or to contradict a witness of the opposing party." ( People v. Hall (2010) 187 Cal.App.4th 282 , 299, 113 Cal.Rptr.3d 431 [affirming denial of defendant's new trial motion where it was unlikely the jury, even had it received the new evidence, would have changed its determination of defendant's guilt]; see People v. Shoals (1992) 8 Cal.App.4th 475 , 488, 10 Cal.Rptr.2d 296 [new trial properly denied where new evidence did not contradict the strongest evidence introduced against the defendant and at best created a conflict with the prosecution's prima facie case].) "On appeal, a trial court's ruling on a motion for new trial is reviewed under a deferential abuse of discretion standard. [Citation.] Its ruling will not be disturbed unless defendant establishes 'a "manifest and unmistakable abuse of discretion." ' " ( Hoyos , supra , 41 Cal.4th at p. 917, fn. 27, 63 Cal.Rptr.3d 1 , 162 P.3d 528 .)

2. Analysis

Jimenez argues that he met his burden to establish a different result is probable on retrial because it is reasonably likely that at least one juror would have found the police testimony unreliable because of bias. Although the trial court is required to independently weigh the evidence in ruling on a motion for new trial, "an appellate court will not modify or set aside the verdict if there is any substantial evidence to support it." ( People v. Serrato (1973) 9 Cal.3d 753 , 761, 109 Cal.Rptr. 65 , 512 P.2d 289 , disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572 , 583, fn. 1, 189 Cal.Rptr. 855 , 659 P.2d 1144 .) Here, the testimony of Deputies F. and P. constitutes substantial evidence to support the verdict independent of the testimony offered by Deputy A. For the reasons discussed in our Brady analysis, we conclude it is not reasonably probable Jimenez would obtain a more favorable result if the case were retried and he could use the report for impeachment.

C. Section 654 Does Not Preclude Separate Punishment for Counts 1 and 4

Jimenez contends his sentence for evading a peace officer with reckless driving (count 4) should be stayed under section 654 because it occurred

1. Legal Principles

Section 654, subdivision (a), provides that "[a]n act or omission that is

2. Analysis

Jimenez contends he harbored the same intent and objective during both the evading and the assault. He explains that "the objective of the assault was to evade the officers and prevent apprehension," and that the assault merely took the form of a "driving maneuver" during the same course of reckless driving. The Attorney General argues Jimenez "harbored multiple criminal objectives when he nearly crashed his vehicle into Deputy [P.'s] patrol car," noting the assault "occurred after an intense police chase, during which appellant reasonably could have developed animosity and anger toward the police." The Attorney General further contends it is reasonable to conclude Jimenez "harbored a separate criminal objective (assaulting the deputy) that was not merely incidental to his objective of fleeing from police."

Although both arguments are reasonable, we review the record to determine if there is substantial evidence to support the trial court's implied finding that Jimenez harbored multiple criminal objectives when

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

prejudice ... or a personal interest in how the case is decided.' [Citation.]

"Officer [A.'s] February 14, 2017 report indicates that he knows who Mr. Jimenez is but has no probable cause to arrest [him] for the incident. The reasonable inference that any juror could have easily made is that if the officer could not arrest Mr. Jimenez for the February incident[,] he would want to make sure that Mr. Jimenez is convicted for the March charges."

Jimenez further argued the new evidence would render a different result probable on retrial: "If the jurors had known that the officers were unable to 'get' Mr. Jimenez for the February incident, it is probable that at least one juror would have voted not guilty." Finally, he argued a new trial was warranted because the evidence constituted exculpatory Brady evidence and the prosecution's failure to disclose it earlier violated his constitutional right to a fair trial.

The prosecution opposed Jimenez's motion for new trial, arguing the police report was not Brady material because it was neither material nor exculpatory and further arguing Jimenez did not meet his burden warranting a new trial because he did not establish it was probable that at least one juror would have voted to find him not guilty had the new evidence been presented. The police report involved an unrelated, uncharged incident and did not reasonably give rise to an inference of bias on the part of the investigating officer.

The court denied Jimenez's motion for a new trial, concluding that the new evidence was immaterial and irrelevant:

"The defendant in this case ... has not met [his] burden ... that it's probable that at least one juror would have voted to find him not guilty had a

b. Favorable Evidence

Jimenez argues the report is favorable to him because it could have been used to impeach Deputy A., to "show prior police bias against" Jimenez, and to attack the "good faith" of the police investigation in the charged incident. Jimenez claims the report constitutes "affirmative evidence of a police motive to coordinate and distort their testimony to gain a conviction" and constitutes evidence of bias of a complaining witness under People v. Uribe (2008) 162 Cal.App.4th 1457 , 76 Cal.Rptr.3d 829 ( Uribe ); Sassounian , supra , 9 Cal.4th 535 , 37 Cal.Rptr.2d 446 , 887 P.2d 527 ; and U.S. v. Bagley (1985) 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 ( Bagley ).

The Attorney General disagrees, arguing that the report is not impeachment evidence because it did not cast doubt on Deputy A.'s general veracity and could not have been used to attack the good faith of the investigation because the mere fact that the deputy was aware of Jimenez due to his presence at a different offense is not enough to show that Deputy A. lied or had motive or opportunity to fabricate his testimony against Jimenez in the current trial.

The police report Jimenez claims is impeachment evidence is not like the evidence that was found to be discoverable as evidence of witness bias in the cases cited by Jimenez. Uribe involved the videotape of a medical examination performed on a child sexual assault victim. Defendant's expert declared the video undermined the photographic evidence from the same examination and the prosecution expert's conclusions regarding injury drawn therefrom. ( Uribe , supra , 162 Cal.App.4th at p. 1470, 76 Cal.Rptr.3d 829 ; see id . at p. 1482, 76 Cal.Rptr.3d 829 [concluding reversal and a new trial were warranted due to Brady violation].) Sassounian involved a witness who had testified against the defendant but later recanted his testimony. ( Sassounian , supra , 9 Cal.4th at p. 542, 37 Cal.Rptr.2d 446 , 887 P.2d 527 ; see id . at p. 550, 37 Cal.Rptr.2d 446 , 887 P.2d 527 [concluding defendant did not establish he could have obtained a different result even in the absence of the recanted testimony].) Bagley involved the government's failure to disclose contracts signed by principal witnesses involved in an undercover investigation of defendant, which contracts stated the government would pay money to the witnesses commensurate with the

Even if we were to assume Jimenez established the undisclosed report was favorable to his defense because of its impeachment value, we would reject his claim of error because, as we next discuss, the evidence was not material within the meaning of Brady .

c. Materiality/Prejudice

Jimenez argues that, had the police report been disclosed prior to trial, he would have been able to convince at least one juror the police testimony was biased and not sufficiently credible to support conviction:

"Appellant's only defense was to undermine confidence [in] the highly coordinated testimony of the police witnesses. The assault charges were entirely based on police testimony. There was no video footage of the incident because Fallbrook Sheriff's department did not have dash-board cameras or body cameras for its officers. [Citation.] The police were the only victims of appellant's assault-appellant did not collide with anyone, or hit any property during the high speed chase. [Citation.] There were no other witnesses and no calls to 911 associated with the incident. [Citation.]

[¶] ... [¶]

"In the context of this coordinated police testimony, the evidence of prior police investigation and bias against appellant because of a prior shooting

Under this standard, we conclude Jimenez has not met his burden to establish a reasonable probability of a different result. Jimenez claims he could have used the report to attack the thoroughness or good faith of the police investigation, to demonstrate police bias, and to undermine the credibility of Deputy A.'s testimony or to show he influenced the testimony of the other deputies. None of these arguments is convincing. Jimenez was not a suspect in a crime who had to be located or identified as part of any police investigation. His identity was never in question, particularly because he was never out of the lead officers' view and his two young daughters were sitting in his vehicle after he finally pulled over. Jimenez's theory of police bias is purely speculative. (See

Jimenez contends that the trial court's refusal to grant his motion for a new trial under section 1181 based on the newly disclosed police report constitutes an abuse of discretion. This claim fails for the same reason as his claim of Brady error-the evidence is immaterial to Jimenez's case.

But even if a course of conduct is "directed to one objective," it may "give rise to multiple violations and punishment" if it is "divisible in time." ( People v. Beamon (1973) 8 Cal.3d 625 , 639, fn. 11, 105 Cal.Rptr. 681 , 504 P.2d 905 .) "[A] course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " ( People v. Lopez (2011) 198 Cal.App.4th 698 , 717-718, 129 Cal.Rptr.3d 583 ( Lopez ).) Section 654's purpose is to ensure " ' "that a defendant's punishment will be commensurate with his culpability." ' " ( Capistrano , supra , 59 Cal.4th at p. 886, 176 Cal.Rptr.3d 27 , 331 P.3d 201 .)

Whether a defendant had multiple intents or objectives in committing multiple crimes is generally a question of fact for the sentencing court. ( People v. Coleman (1989) 48 Cal.3d 112 , 162, 255 Cal.Rptr. 813 , 768 P.2d 32 .) "When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a

DISPOSITION

Jimenez's sentence is vacated, and the matter is remanded to allow the trial court to determine whether to strike Jimenez's five-year enhancement under