Filed 1/7/14 P. v. Fowler CA
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056068
v. (Super.Ct.No. FWV1002147)
RICKY LEE FOWLER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Stephan G.
Saleson, Judge. Affirmed.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, James D. Dutton and
Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant Ricky Lee Fowler forcibly sodomized his cellmate at the West Valley
Detention Center (WVDC) on three separate occasions in August 2010.
Defendant was convicted of three counts of sodomy by force (Pen. Code, § 286,
subd. (c)(2))1 against John Doe 1. After waiving his right to a trial, defendant admitted
that he had suffered two prior serious or violent felony convictions (§§ 667, subds. (b)-(i)
& 1170.12, subds. (a)-(d)). Defendant was sentenced to a total state prison sentence of
75 years to life.
Defendant now contends on appeal as follows:
1. The trial court abused its discretion by denying his motion for new trial
based on a Brady2 violation.
2. The trial court denied his due process right to an evidentiary hearing on his
asserted Brady violation.
3. The trial court abused its discretion when it refused to consider evidence in
the court records pertaining to the competency proceedings against a prosecution witness.
We affirm the judgment.
1 All further statutory references are to the Penal Code unless otherwise indicated. 2 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
2 I
FACTUAL BACKGROUND
A. People’s Case-in-Chief
1. Acts against victim – Doe 1
Doe 1 was serving a 15 year sentence in state prison based on a plea to voluntary
manslaughter, assault with a firearm, discharging a firearm and first degree burglary. He
had several other prior convictions.
In June 2010, he was housed in the WVDC. Defendant was his only cellmate.
Doe 1 occupied the top bunk and defendant was on the bottom bunk. There was also a
desk in the cell.
Initially, when they were first cellmates, defendant and Doe 1 got along well.
They played cards together. However, defendant became stressed when the trial for
which he was detained started, which caused tension in their cell. Defendant started
punching and biting Doe 1. Defendant tried to kiss Doe 1. He tried to push his tongue in
Doe 1’s mouth but Doe 1 clenched his teeth so his tongue could not get in his mouth.
Defendant slapped Doe 1’s buttocks and touched his penis over his clothes.
On Doe 1’s birthday, on August 3, they had some Pruno wine they had made. Doe
1 and defendant got drunk. They got into a physical fight. Defendant put Doe 1 in a
chokehold and choked Doe 1 so hard he thought he was going to die. Defendant kept
telling him “don’t fuck with Rick” and that “Rick will whoop your ass.” Doe 1 was able
to get away. Doe 1 asked one of the sheriff deputies to get him out of the cell because he
thought defendant was going to kill him, but his request was disregarded.
3 After that day, defendant called Doe 1 his “little buddy,” and told him he loved
him. Doe 1 asked defendant to stop but he refused. Doe 1 had one nipple with a mole on
it. Defendant told him it was his favorite nipple and he would try to lick it and blow on
it.
On August 21, defendant grabbed Doe 1 by the throat and bent him over the desk
in the cell. Defendant pulled down Doe 1’s pants and put his penis in Doe 1’s rectum.
Defendant moved his penis back and forth. He told Doe 1, “you scream, I’ll fuckin’ beat
you.” He told Doe 1 that he would choke him. Defendant also told Doe 1, “shut up and
take it like a man.”
Defendant told Doe 1 that he could not “get off this way” and threw him on the
floor. Defendant then ejaculated into the toilet. Doe 1 was bleeding from his rectum.
Defendant forced Doe 1 to sleep on the floor so he could watch him and make sure he did
not hit an emergency button that was in the cell. Doe 1 was scared and trembling.
Defendant just laughed at him. Doe 1 was too scared to tell anyone what had happened.
On another occasion, defendant told Doe 1 they were going to bet on a football
game and it was his “ass” that was on the line if his team lost. Doe 1 refused the bet but
defendant ignored him. Doe 1’s team lost and defendant told him “a bet is a bet, take it
like a man.” That night, defendant asked Doe 1 if he would rather slit his wrists or suck
defendant’s dick. Doe 1 told him that he would rather slit his wrists. He wanted to cut
his wrists so he could get out of the cell. Defendant then sodomized Doe 1 again. Doe 1
was bleeding from his rectum again.
4 The following day, defendant promised Doe 1 that he would not touch him
anymore. However, that night his attitude changed and he told Doe 1 he had to be
disciplined. Defendant told him to get on the floor so he could be disciplined. Defendant
again tried to choke Doe 1. While defendant was sodomizing Doe 1, he asked him if he
liked “long strokes.” Doe 1 was forced to sleep on the floor again. He was bleeding
again.
After this third event, on August 24, a psychologist happened to come by their
cell. Doe 1 told the psychologist that he was suicidal in order to get out of the cell. Doe
1 asked to talk to one of the sheriff’s deputies and told the psychologist he had been
“raped by my celly.”
San Bernardino County Sheriff’s Deputy Brett Haynes was assigned to the WVDC
in August 2010. He responded to Doe 1’s request to talk to a deputy. Doe 1 was taken to
a hospital on that day to be examined by a sexual assault nurse. Doe 1 had bruising on
his abdomen and left rib area. There were two tears in his rectal area. There was also an
abrasion where the top layer of skin was taken off. The sexual assault nurse could not
establish if the injuries were the result of consensual or non-consensual-sexual activity.
However, the injuries were consistent with blunt force penetration activity.
Deputy Haynes spoke with defendant on August 24. Defendant admitted he and
Doe 1 had been in a fight on August 3. He denied he committed sodomy on Doe 1 but
said that he and Doe 1 engaged in “sex play.” Defendant said they slapped each other on
the buttocks.
5 Deputy Haynes advised defendant that Doe 1 had injuries consistent with being
sodomized. Defendant explained that Doe 1 would sometimes discipline himself.
Defendant told Deputy Haynes that Doe 1 had put a lotion bottle and deodorant bottle in
his own “ass.” Defendant explained this could have caused the injuries. Doe 1 had slept
on the floor because he had injured his ribs while they were playing around wrestling.
Deputy Haynes spoke with defendant one week later. Defendant recalled at that
time that there were two acts of sodomy but claimed that the acts were consensual.
Defendant said that both of the acts involved bets on football games. They bet that if Doe
1’s team lost, he would allow defendant to sodomize him.
Deputy Haynes explained that inmates were reluctant to report that they had been
forcibly sodomized because they feared retaliation and that they would become a target
for sodomy by other inmates. Doe 1 insisted he never consented to these acts. Doe 1 was
in protective custody with defendant because Doe 1 had pleaded guilty in his case in
exchange for testifying against his codefendants.
6 2. Prior acts involving Doe 2
John Doe 2 was in custody at the WVDC. He shared a cell with defendant prior to
Doe 1 sharing a cell with defendant. Doe 2 admitted at trial that he and defendant had
gotten into a fight while they were in the cell together. He claimed it was over “politics.”
Prior to the fight, they had gotten along well and read the Bible together. Doe 2 denied
he was afraid of retaliation if he testified against defendant. Doe 2 also denied that
defendant could be a member of Aryan Brotherhood claiming he was too young to be
accepted.
Doe 2 adamantly denied that defendant sodomized him. Doe 2 was very
aggressive and confrontational with the prosecutor. Doe 2 had tried to kill himself by
slitting his wrists but he denied it had anything to do with defendant.
Deputy Haynes talked to Doe 2 in September 2010. Doe 2 told Deputy Haynes
that he and defendant had been cell mates. Doe 2 believed that defendant was part of the
Aryan Brotherhood and that put fear in him. Defendant forcibly sodomized Doe 2. Doe
2 was afraid that defendant would enlist the help of the Aryan Brotherhood on the outside
of prison if he filed a complaint about it and his family would be hurt. Doe 2 began to
tear up and was very emotional when he was speaking with Deputy Haynes. Doe 2 beat
up defendant when he found out he was not a member of the Aryan Brotherhood.
Doe 2 talked to Deputy Haynes off the record and did not want to press charges
against defendant. At the time of trial, Doe 2 was wearing a gold and red jumpsuit.
Deputy Haynes explained the uniform was worn by inmates who have unpredictable
behavior or “mental health issues.”
7 B. Defense
Deputy Forrest Wayne Pitts, Jr. worked at the WVDC in August 2010. He was
assigned to the area where defendant’s and Doe 1’s cell was located. He did not recall
ever receiving a panic call from the cell. Deputy Albert Ramirez also worked in the area
where the cell occupied by defendant and Doe 1 was located. He did not recall Doe 1
ever requesting being moved from the cell. He did not recall a panic call from the cell
during August 2010.
Deputy Shaun Wallen was also assigned to the same area. On May 3, 2010, he
broke up the fight between defendant and Doe 2. Defendant had to be taken to the
hospital because of his severe injuries.
II
BRADY VIOLATION
Defendant contends that the trial court abused its discretion by denying his motion
for new trial based on his claim of a Brady violation for the prosecution’s failure to
disclose that Doe 2 had been declared mentally incompetent in his own trial proceedings
prior to or contemporaneous to his testimony in the instant trial.
A. Additional Factual Background
Prior to trial, defendant filed a motion for discovery. He specifically requested
any mental health history information about Doe 2. Defendant filed a second motion for
discovery. He requested any court filings pertaining to Doe 2.
On March 23, 2012, defendant filed a motion for new trial. In the motion,
defendant alleged that the prosecution failed to disclose that prior to Doe 2’s testimony in
8 this case, he had been declared mentally incompetent in a case before the San Bernardino
County Superior Court. The evidence came from the court or law enforcement records to
which the defense did not have access. The proceedings that declared him incompetent
were prosecuted by a deputy district attorney from the San Bernardino County District
Attorney’s office. Instead of being transferred to Patton State Hospital, Doe 2 was kept
in local custody and testified in this matter.
The prosecution filed opposition to the motion for new trial. The prosecution
argued that the RAP sheet for Doe 2 was disclosed to defense counsel prior to trial. The
RAP sheet for Doe 2 did not reference any case or matter where Doe 2 had been declared
mentally incompetent. However, in a footnote, the prosecution stated, “[w]hile John Doe
2’s RAP sheet printed on January 30, 2012 does not reference any case wherein he was
declared mentally incompetent, we have been able to discover through the Superior Court
“‘Open Access”’ system that John Doe 2 does have another case (FVI 801742) where the
court found him mentally incompetent to stand trial on 10/03/2011. This case did not
appear on John Doe 2’s RAP sheet.”
The prosecution stated that Doe 2 testified competently at trial, and defense
counsel and the trial court never timely challenged his competency. Moreover, there was
no prejudice to defendant because the results of the proceeding would have been the
same. Doe 2 testified at trial that defendant was not violent and denied he ever assaulted
him.
The prosecutor, Robert C. Bulloch, submitted a declaration that he had prosecuted
defendant’s case. Bulloch personally showed defense counsel an unredacted criminal
9 history, or RAP sheet, for Doe 2 which was printed on January 30, 2012. There was
nothing on the RAP sheet that referenced he had been adjudged mentally incompetent.
There was no reference to case number FVI 801742. Bulloch had no knowledge of the
competency proceedings against Doe 2. Bulloch first became aware of the case when
defense counsel disclosed it to him. The RAP sheet was attached to Bulloch’s
declaration.
A hearing was conducted on April 9, 2012. The trial court noted that it had read
the motion for new trial and the opposition. The prosecutor noted that the file had been
transferred from Victorville and the trial court acknowledged it had received the file. The
trial court advised the parties that it had not looked at the file because a request to take
judicial notice had not been made. The trial court noted that at some time either prior to
or contemporaneous to the instant trial Doe 2 had been declared incompetent. The trial
court believed that what was in the file was not important because the information raised
in the motion was that he was declared incompetent and the deputy district attorney did
not have knowledge of the case. Defense counsel argued that the San Bernardino County
District Attorney’s office prosecuted the case and that knowledge was imputed to
Bulloch. Even if Bulloch chose not to make any inquiry, it did not absolve him of
knowing the information. Defense counsel also argued that it was clear that Doe 2 had
issues based on his detention in the competency ward at WVDC.
10 The trial court then asked defense counsel if he thought that Doe 2 appeared
incompetent during his testimony. Defense counsel responded that he did not know that
Doe 2 had been found incompetent. The trial court stated that it did not “wonder” about
Doe 2’s competence. The trial court noted that he was hostile but did not appear
incompetent.
Defense counsel was concerned that Doe 2 was used to prove that defendant was a
sexual predator. The trial court responded, “You would agree, would you not, that’s not
what John Doe Number 2 said?” Defense counsel agreed, “not exactly.” The trial court
noted that Doe 2’s testimony actually was supportive of defendant’s position. The trial
court made clear there was no question of Doe 2’s competency during the proceeding.
The prosecutor responded that defense counsel was provided Doe 2’s RAP sheet.
Defense counsel argued that Doe 2’s testimony should not have been admitted at trial if
he was in the process of a competency determination.
The trial court first noted that there was no “willful or intentional misleading or
omission” by the prosecutor. Moreover, there was no prejudice. “The evidence was
overwhelming.” The trial court further stated, “[e]ven if John Doe Number 2 hadn’t been
here as provided by the victim in this case for the jury to make such a finding, you
haven’t asked me to overturn the verdicts or grant a new trial based on a lack of evidence
if I excluded everything John Doe Number 2 said. But even if you had, I would deny that
motion, because I think there was ample evidence for the jury to base its verdicts as it did
with or without the testimony of John Doe Number 2.” The motion for new trial was
denied.
11 B. Analysis
“The prosecution has a duty under the Fourteenth Amendment’s due process
clause to disclose evidence to a criminal defendant when the evidence is both favorable to
the defendant and material on either guilt or punishment. [Citations.]” (In re Miranda
(2008) 43 Cal.4th 541, 575.)
“In Brady, the United States Supreme Court held ‘that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.’ [Citation.] The high court has extended the prosecutor’s
duty to encompass the disclosure of material evidence. . . .” (People v. Hoyos (2007) 41
Cal.4th 872, 917-918, overruled on another ground in People v. McKinnon (2011) 52
Cal.4th 610.) It is well established that “[t]here 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 v.
Greene (1999) 527 U.S. 263, 281-282.)
“Favorable evidence is material when it “‘could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.”’
[Citations.] Put another way, the question is whether, deprived of the information
withheld by the prosecution, the defendant received ‘a trial resulting in a verdict worthy
of confidence.’ [Citation.]” (In re Bacigalupo (2012) 55 Cal.4th 312, 333.)
12 “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.’” [Citation.]
Here, the asserted abuse of discretion is the asserted failure of the trial court to recognize
violations of defendant’s constitutional rights. Our constitutional analysis below
therefore also addresses the abuse of discretion issue.” (People v. Hoyos, supra, 41
Cal.4th at p. 917, fn. 27.) “A determination that the prosecution violated its disclosure
obligations under Brady [], requires reversal without any need for additional harmless
error analysis. [Citation.].” (In re Bacigalupo, supra, 55 Cal.4th at p. 334.)
Respondent concedes that the first two elements of a Brady claim have been
established. We agree. The evidence was favorable to defendant in that it could be used
to impeach Doe 2’s testimony. Moreover, “[t]he circumstance that a prosecution witness
faced pending criminal matters, some of which were being prosecuted by the same
district attorney’s office prosecuting the defendant, constitutes evidence ‘favorable’ to the
defense, in that a jury could view this circumstance as negatively impacting the
credibility of testimony by the witness that was helpful to the prosecution.” (People v.
Letner (2010) 50 Cal.4th 99, 176.)
We also agree with defendant that the People had an obligation to discover the
information. The obligation under Brady is not limited to evidence the prosecutor’s
office itself actually knows or possesses but also includes “evidence known to the others
acting on the government’s behalf in the case, including the police.” (Kyles v. Whitley
(1995) 514 U.S. 419, 437.)
13 Hence, at issue here is whether the verdict is “worthy of confidence.” (In re
Bacigalupo, supra, 55 Cal.4th at p. 334.) We are convinced that even had Doe 2 been
impeached, or not testified at all, the verdict would have been the same.
Initially, Doe 2’s credibility was already questionable. “‘“In general,
impeachment evidence has been found to be material where the witness at issue ‘supplied
the only evidence linking the defendant(s) to the crime’ [citations], or where the likely
impact on the witness’s credibility would have undermined a critical element of the
prosecution’s case [citation].”’ [Citation.]” (People v. Letner, supra, 50 Cal.4th at p.
177.)
Doe 2 was in a red and gold jumpsuit at the time he testified which signified he
had some mental health issues. In fact, defense counsel argued to the jury as follows:
“And I guess the last thing with respect to John Doe Number Two is, you know, being
viewed as an unbalanced or a UB inmate, being either extremely violent or mentally
imbalanced. And that’s also a factor you should consider at some point in determining
what credibility, what weight do you assign to John Doe Number Two. I’m not so sure
where it fits, but he’s a troubled man who’s in jail who apparently can be extremely
violent as proof by pounding on [defendant].” In addition, the prosecutor advised the
jurors they could reject Doe 2’s testimony and still convict defendant based on Doe 1’s
testimony, the sexual assault nurse and the testimony of Deputy Haynes. Doe 2 recanted
his testimony at trial which certainly reflected on his credibility. If the jury had been
informed that he had been found incompetent by another court it would not have cast the
evidence in a different light as to impact the jury’s finding of guilt.
14 Moreover, even if Doe 2 had not been allowed to testify, Doe 1 provided
compelling testimony that defendant had sodomized him on three separate occasions.
Doe 1 described each instance in detail. Deputy Haynes testified that inmates were
reluctant to disclose that they had been sodomized for fear of retaliation or being
victimized by other inmates. Doe 1 had no incentive to lie. Moreover, although the
medical testimony did not prove that the sodomy was consensual or nonconsensual, it did
corroborate Doe 1’s testimony that the sodomy had occurred. Further, Doe 1 had other
injuries — the bruises on his abdomen and rib area — that also corroborated Doe 1’s
testimony that defendant had thrown him on the ground.
Finally, defendant’s explanation of Doe 1’s injuries was clearly incredulous.
Defendant first claimed that he had not sodomized Doe 1. Second, he claimed that Doe 1
placed items in his rectum on his own to discipline himself. On a third occasion, he
admitted he had sodomized Doe 1, but claimed that it was consensual.
Based on the foregoing, defendant has failed to establish that the evidence that
Doe 2 had been found incompetent by another court was material and therefore he cannot
show a due process violation. As such, the trial court did not abuse its discretion by
denying defendant’s motion for new trial based on a Brady violation.
15 III
ADDITIONAL CLAIMS
Defendant contends in his second and third claims that he was entitled to an
evidentiary hearing in the trial court regarding his Brady claim and that the trial court
abused its discretion when it refused to consider relevant evidence in the court file
pertaining to the incompetency proceeding against Doe 2.
We need not decide if he was entitled to an evidentiary hearing and find that there
was no abuse of discretion in refusing to examine the court file because there was nothing
more for the trial court to consider as to Doe 2’s competency. The trial court essentially
accepted that Doe 2 was found incompetent. Although the trial court did not agree with
the assessment, it clearly accepted that another superior court had found Doe 2
incompetent. No further inquiry was necessary as the trial court accepted that Doe 2 had
been found incompetent and defendant had failed to explain how any further evidence
from the court file would have been admissible at trial.
Moreover, even had the trial court considered all of the evidence of Doe 2’s
competency, as set forth extensively ante, we do not believe the undisclosed evidence
“reasonably could be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” (See In re Miranda, supra, 43 Cal.4th at p. 575.) Doe 1’s
testimony was compelling, the medical testimony corroborated his testimony, and
defendant’s explanation was incredulous. As such, defendant’s remaining claims lack
merit.
16 IV
DISPOSITION
We affirm the judgment in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J.
We concur:
KING J.
MILLER J.