Filed 8/26/15 P. v. Jones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E060667
v. (Super.Ct.No. FVI1301024)
SAGE GOODMAN JONES, et. al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed as modified.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant, Sage Goodman Jones.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant, Julian Ian Bezada.
1 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Arlene A.
Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants and appellants Julian Ian Bezada and Sage Goodman
Jones of attempted first degree residential robbery (Pen. Code,1 §§ 664, 211, count 1) and
conspiracy to commit robbery (§ 182, subd. (a)(1), count 2).2 For count 1, the jury found
true the allegation that defendants voluntarily acted in concert with two or more other
persons in committing the attempted robbery (§ 213, subd. (a)(1)(A)), and for counts 1
and 2, the jury found true the allegation that a principal was armed (§ 12022, subd.
(a)(1)). Defendant Bezada was also convicted of being a felon in possession of a firearm
(§ 29800, subd. (a), count 4), and he admitted a prison prior (§ 667.5, subd. (b)).3
Following the close of evidence at trial, defendants’ counsel moved for a mistrial
on the ground that the prosecution committed a Brady4 violation by failing to disclose
1 All further statutory references are to the Penal Code.
2 Defendant Bezada is defendant Jones’s stepfather.
3 The amended information also charges defendants with receiving stolen property (§ 496, subd. (a), count 3); however, the prosecutor did not submit this count to the jury.
4 Brady v. Maryland (1963) 373 U.S. 83, 87.
2 potential impeachment evidence regarding a police informant who testified during the
prosecution’s case-in-chief. The court denied the motion.
The court sentenced Bezada to six years for count 2, plus consecutive one-year
terms for the firearm and prior prison enhancements, for a total of eight years in state
prison. The court sentenced defendant Jones to six years for count 2, plus a consecutive
term of one year for the firearm enhancement, for a total of seven years in state prison.
Pursuant to section 654, the court imposed but stayed both defendants’ three-year
sentences for count 1 and Bezada’s two-year enhancement for felon in possession of a
firearm.
On appeal, defendants argue that the trial court erred in denying their motion for
mistrial. They also argue, and the People concede, that their conduct credits should have
been awarded pursuant to section 4019 as opposed to section 2933.1. We affirm the
judgment, but direct the trial court to amend the minute orders and abstracts of judgment
to reflect the correct number of conduct credits awarded pursuant to section 4019.
I.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecution’s case
At trial, the prosecution presented the following evidence in the form of recorded
statements by defendants and testimony of an informant, the informant’s brother, the
victim of the attempted robbery, and several police officers.
3 a. The informant and the plan to commit robbery
Johnny Crummie, who has worked as a paid police informant for over 15 years,
testified that in April 2013, he and defendant Bezada were both attending the same class
in Victorville.5 Crummie told the class during introductions that he was from Compton,
that he had been convicted of felonies, and that he had served time in prison on multiple
occasions.
On April 8, 2013, Bezada approached Crummie during a break in class and told
him that he (Bezada) had a robbery “gig” for them. Crummie had no intention of
participating, but went along with the conversation and tried to get as much information
about the robbery as possible so he could inform law enforcement. Bezada told Crummie
they would rob a house that he had previously worked at in Oak Hills. He said it was
owned by a couple that was “old and helpless, so [they] would kill them, and there would
be nothing left.” When he had worked at the house, he had seen money, guns, hunting
equipment, stuffed deer heads on the walls, and a safe in a back room. The house sat “off
by itself” on a cul-de-sac in a “quiet area [where] [n]o one would ever hear . . . so [they]
could get away with it really quick.”
Crummie asked for the address of the home but Bezada refused because he did not
want Crummie to commit the robbery without him. Bezada asked Crummie if he was
5 Although not disclosed to the jury, the record indicates that the class was a court ordered parenting class.
4 able to obtain guns for the robbery, but Crummie told him that he lived in Los Angeles
and, because he was currently on parole, he could not chance bringing guns all the way to
San Bernardino County.
After class ended, Bezada approached Crummie again to discuss the plan for the
robbery and make sure Crummie was committed to going through with it. He told
Crummie that he would obtain a gun. He wanted to do the robbery that day, but
Crummie said he had to meet with his parole officer and that they should do it the
following day.6 Crummie told Bezada that he planned to bring his brother along for
safety. Bezada did not like this idea because it meant another person to split the robbery
proceeds with, but ultimately he decided that Crummie could bring his brother and that
he would bring his “homeboy.”
Crummie again asked Bezada for the address. Bezada said that he would give him
the address later, when they were “ready to do it.” Before leaving, Bezada gave
Crummie his phone number and told him to call him later.
After this conversation, Crummie called one of his handlers, who told him to call
the sheriff’s department.7 Ultimately, Crummie spoke with a detective at the Victorville
6 Crummie testified that he lied to Bezada about having to meet with his parole officer so that he could inform law enforcement of Bezada’s plan.
7Crummie had multiple “handlers,” or contacts, at various agencies and had worked with this particular handler for 10 years.
5 Police Department about the planned robbery and provided him with all the information
he had obtained during his conversations with Bezada.
The following morning (April 9, 2013), Crummie and his brother met with the
detective at the Victorville Police Department.8 They agreed on a plan to bring Bezada to
a prearranged gas station where police would be waiting to arrest him.
b. Bezada’s recorded statements to the informant
Bezada and Crummie spoke to each other on the phone four times that day, and
the police recorded each of these conversations. The prosecution played the four April 9
conversations to the jury during trial.
The first call occurred during Crummie’s meeting with the detective at the
Victorville Police Department. Crummie called Bezada on the number he had given him
after class the day before. When Bezada answered the phone, Crummie told him that he
could do the robbery at 4:00 that afternoon and asked for the address so he could drive by
the house. Bezada responded, “Alright. Well uh I’m trusting you, dog, not to hit it
without me, bro.” Crummie replied, “Come on, bro. I’m not gonna do it without you,
bro. You came to me with it.” Bezada did not deny that he had approached Crummie
about the robbery. Instead, he replied, “Alright. Well, I’ll give [the address] to you,” and
told Crummie where the home was located. Bezada gave Crummie his address so that
8 Crummie testified that he had asked his brother to help him on this case for safety reasons because he believed the situation could become dangerous.
6 Crummie could pick him up at 4:00 p.m. Bezada also told Crummie that he had obtained
a gun.
About an hour later, Crummie called Bezada from the prearranged gas station and
told Bezada to meet him there. Bezada told Crummie that he had no way of getting to the
gas station, and that he had not been able to get the gun as planned because his contact
fell through. He said that he hoped Crummie had brought a gun “[j]ust in case.”
Crummie responded that when Bezada had approached him about the robbery he had said
that he (Bezada) would bring a gun. Again, Bezada did not challenge Crummie’s
statement that he had been the one to approach Crummie about the robbery. He simply
replied, “Yeah, I know.”
At one point in the conversation, expressing frustration at not having access to a
gun, Bezada said, “I don’t know what to do. I’m stuck in like fucking the headlights,
dude, like a reindeer.” Crummie asked Bezada when he thought he would have it “all
together” and told him that he was going to go back to Los Angeles if the robbery was
not going to happen. Bezada responded that he “had everything together . . . the whole
getup and everything,” until his gun contact flaked. Bezada ended the conversation by
saying that he was going to “call [his] other homeboy right now” to see if he would “lend
[him] one.”
Sometime later, Crummie and Bezada spoke on the phone again and Bezada told
Crummie that he had obtained a gun. Bezada told Crummie to come pick him up. He
7 explained to Crummie, “[t]his is how it’s gonna happen [¶] . . . . [¶] we gotta make this
shit quick [¶] . . . [¶] you and your brother [] will take control . . . and uh tape homeboy
up . . . we’ll talk about it.” In the last phone conversation played to the jury, Crummie
told Bezada he was waiting in front of his house for him.
c. Defendants’ arrest
At trial, both Crummie and his brother testified about what happened from the
time they picked defendants up until the time of defendants’ arrest.9 As they neared
Bezada’s house, Bezada and defendant Jones emerged from bushes and approached
Crummie’s car. Bezada was carrying a duffel bag and got into the front passenger seat of
the car. Jones was carrying a backpack and a jacket and got into the rear driver’s side
seat. Bezada told Crummie that he had a gun, and Crummie saw a gun in Jones’s right
waistband.
During the drive, Bezada instructed everyone that the robbery should only take
seven minutes and that he did not care what happened to the people inside the house. He
said that they would knock on the door, push their way in, kill the people inside, and take
the money, jewelry, guns, and hunting equipment. Bezada opened his duffel bag and
showed Crummie the tape and rope inside. Jones remained quiet during the car ride.
9 Crummie’s brother is not a police informant. He testified that he accompanied his brother to provide “moral support” and he received no compensation for taking part in the plan.
8 Crummie drove back to the prearranged gas station and he and his brother went
inside on the pretext of needing to use the restroom. While they were inside, Bezada
stepped out of the car. When the officers waiting at the station saw what appeared to be a
black gun in Bezada’s waistband,10 they arrested him. The officers found in his
possession two bandanas and a piece of paper with the address of the target house written
on it. The officers also arrested Jones. In the backseat of the car, near where Jones had
been sitting, they found a backpack containing a pair of gloves and a jacket with a loaded
Springfield nine-millimeter gun inside. In the front passenger seat, they found a bag
containing duct tape and a roll of welding wire.11
d. The recorded conversation between defendants
The police escorted Bezada and Jones into the backseat of one of the patrol cars
where, unbeknownst to defendants, the police had concealed a recorder. The
conversation between defendants that ensued was played for the jury.
At the beginning of the conversation, Bezada asked Jones what the police talked to
him about and Jones said, “[I] [t]old ‘em that I just asked you for a ride. . . . I don’t even
really know you.” Jones then told Bezada, “You ruined my life.” He asked Bezada if
10 The gun was actually a replica Beretta nine-millimeter BB gun, but it did not have any red markings to indicate it was not a real gun and the officers that testified said they believed it was real when they first saw it.
11 We know that these items were not previously in Crummie’s car because the police searched his car before he drove to pick up Bezada and they did not find anything.
9 Crummie was a cop or a “snitch,” and asked, “Why the fuck would you fucking trust
him?”
Bezada told Jones to “just say that they threatened us . . . if we didn’t give ‘em the
guns, because they were gonna go do a robbery . . . and . . . they threatened to fucking
come to our house and rob us if we didn’t comply with them.” Jones later asked Bezada
how much time he would do for possession of the gun, and said “[if] Kristen finds out
that gun got caught on me, dude. My life’s over . . . I’m gonna murder you in jail.”
e. Defendants’ statements to the police
The same detective (sergeant, at the time of trial) who met with Crummie and his
brother at the Victorville Police Department interviewed both defendants at the station
after their arrest. He testified that Jones denied any knowledge of the gun in the jacket or
of the robbery.12 Jones claimed the jacket was already in the car when he got in and that
the only reason he was in the car was to get cigarettes from the gas station.
Bezada told the sergeant that he “fucked up” because he had “trusted two black
guys.” He claimed that he had met one of them (Crummie) in a class. He said that
Crummie had approached him about doing a robbery and had asked him if he could get a
gun. Bezada claimed that at first he said he could obtain a gun, and that when he later
12The sergeant informed both defendants of their Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) The admissibility of defendants’ statements is not at issue on appeal.
10 said that he could not, Crummie threatened to rob his house. Initially, Bezada said that
Crummie had provided the address to the target house, but he eventually admitted that he
provided the address because he had worked there before.
f. Testimony of the victim of the attempted robbery
The victim of the attempted robbery testified at trial. He is 61 years old and lives
at the address of the target house in Oak Hills with his wife. He testified that he hunts
recreationally and that there are stuffed deer heads in the entryway of his home. He owns
several guns, which he keeps in a safe located in his garage. In April 2013, there were
up to 20 people coming in and out of his home because he was having work performed
on his property.
2. Defendants’ motion for mistrial
During the course of trial, the jury heard extensive evidence about Crummie’s
criminal record and his long history as a paid informant. Specifically, Crummie testified
that he had been to prison multiple times and had been convicted of the following
offenses: transporting cocaine (in 1992), felony forgery (in 1995), sex with a minor who
was more than three years younger than him (in 2003), felony spousal abuse (in 2010),
felony spousal abuse (in 2011), and evading the police (in 2011). In response to
questions during direct and cross-examination, Crummie testified that he has been a paid
informant for over 15 years and that he has relationships with approximately 20 different
handlers. He admitted during cross-examination that he has testified over 50 times in
11 both state and federal court, that he makes his living by being an informant, and that he
had been involved in “perhaps thousands of cases.” He testified that he was paid $400 to
bring this case to law enforcement’s attention, but that this compensation was not
contingent on his testimony.
On cross-examination, the sergeant testified that he and another officer had set
Crummie’s compensation at $400 for assisting the police on defendants’ case. He also
testified that before working with Crummie on this case, he was aware of Crummie’s
reputation in the San Bernardino County Sheriff’s Department as being a “credible”
informant.
At the close of evidence, defendants moved for a mistrial on the ground that the
prosecution failed to provide possible impeachment material regarding Crummie’s status
as a confidential informant. Defense counsel pointed out two types of Brady material
that they believed had been suppressed. The first type was “evidence within the deals
that Mr. Crummie had done with the San Bernardino Sheriffs.” Counsel stated that the
defense was entitled to have the “information” that the sergeant had reviewed to be able
to testify that Crummie had worked as an informant for the San Bernardino County
Sheriff’s Department before and was “credible.” Counsel conceded that the prosecution
had likely been unaware that Crummie had previously worked with the sheriff’s
department until the sergeant mentioned it during cross-examination; however, he argued
12 that the defense was “ambush[ed]” when the sergeant testified that Crummie was
“credible.”
The second type of Brady material related to Crummie’s criminal history.
Defense counsel informed the court that, the day before, they had discovered an appellate
opinion from 2008 that described Crummie’s prior convictions in a way that led them to
believe Crummie had “basically lied or perjured his testimony” about his criminal history
during defendants’ trial.13 Counsel explained that the appellate opinion described
Crummie’s prior offenses as “ ‘Gangs, drug cases, and sexual assaults,’ plural.” Because
the appellate opinion mentioned more than one sexual assault, defense counsel argued
that they were “standing here with a question mark as to what [Crummie’s] real priors
contain, and were they more than the five that we were provided with by the People?”
Counsel argued that because of this late discovery (i.e., on the day before the last day of
testimony), they were unable to adequately prepare their defense or cross-examine
Crummie about his “checkered past and history as a [paid informant].”
The prosecutor responded that he had provided defense counsel with all of the
information that he had regarding Crummie, which consisted of his name, criminal
13 Counsel was referring to People v. Ford, 2008 Cal.App.Unpub. LEXIS 4876 [Fourth Dist., Div. Two] (Ford). Crummie had worked as an informant in Ford and had testified as a witness for the prosecution. The relevant portion of the opinion states that when Crummie had testified he had a lengthy history of drug crimes, gang involvement, credit card fraud, domestic violence, and sexual offenses, and that at the time of his testimony he was in jail on charges of spousal abuse and grand theft.
13 history, and the fact that he was a paid informant.14 He was not aware of any issues with
the criminal record he had given the defense, and offered to provide Crummie’s “rap
sheet” to the court for review. He stated that this was the first time defense counsel had
asked for information about Crummie, even though the court had previously asked them
during a pretrial conference why they had not made any discovery motions to obtain
information about Crummie’s past informant deals.
The court denied defendants’ mistrial motion, stating that while the better practice
is “to have all the information out here,” there was nevertheless no “Brady material that
was out there that . . . would have made a difference.” The court concluded that any
additional information about Crummie’s history as a paid informant for the San
Bernardino County Sheriff’s Department would not have affected his credibility because
Crummie had admitted to making a living as an informant for the past 15 years and
“made it clear that he testified and made money in a whole bunch of different cases.” It
also concluded that any potential evidence of additional convictions was immaterial
under the Brady standard for two reasons. First, additional convictions likely would not
have made a difference to Crummie’s credibility because he had already admitted to
being “involved in every degree of crime.” Second, even if additional convictions would
have harmed Crummie’s credibility, this difference would not have changed the outcome
14 This statement from the prosecutor is the only information in the record regarding the information about Crummie that was disclosed during discovery.
14 of trial because defendants’ guilt was corroborated by other sources, including
defendants’ own recorded statements. In other words, Crummie’s testimony was not the
only evidence of defendants’ guilt.
II.
ANALYSIS
1. Defendants’ Brady violation claim
Defendants argue that the trial court’s denial of their motion for mistrial was error.
As noted ante, defendants identified two types of allegedly suppressed Brady material to
support their motion for mistrial: (1) the information that the sergeant reviewed to be
able to testify that the San Bernardino County Sheriff’s Department had used Crummie as
an informant before and that he was credible (the “informant history” evidence); and
(2) the 2008 appellate opinion indicating that Crummie had more than one sexual assault
conviction (the “additional conviction” evidence). Because we conclude that this
evidence was not suppressed or material to defendants’ case, we hold that there was no
Brady violation and, thus, the trial court did not err in denying the motion for mistrial.
a. Standard of review
“[A] motion for mistrial should be granted only when ‘ “a party’s chances of
receiving a fair trial have been irreparably damaged.” ’ ” (People v. Ayala (2000) 23
Cal.4th 225, 282.) An order denying a motion for mistrial is generally reviewed under
the abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved
15 of on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We
independently review the question of whether a Brady violation has occurred, while
giving 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; People v. Salazar
(2005) 35 Cal.4th 1031, 1042 (Salazar).)
b. No Brady violation occurred at defendants’ trial
In Brady, the United States Supreme Court established that due process requires
the prosecution to disclose evidence that is both favorable to the defendant and material
on either guilt or punishment. (Brady v. Maryland, supra, 373 U.S. 83, 87; Salazar,
supra, 35 Cal.4th at p. 1042.) A Brady violation occurs when three conditions are met:
(1) the evidence was “ ‘favorable’ ” to the defendant, (2) the evidence was “ ‘suppressed
by the State, either willfully or inadvertently,’ ” and (3) the evidence was “material” (i.e.,
its suppression was prejudicial). (People v. Lucas (2014) 60 Cal.4th 153, 274 (Lucas).)
Evidence is favorable if it “either helps the defendant or hurts the prosecution.”
(In re Sassounian (1995) 9 Cal.4th 535, 544.) This includes evidence that reflects upon
the credibility of material witnesses. (Strickler v. Greene (1999) 527 U.S. 263, 281-282;
Salazar, supra, 35 Cal.4th at p. 1042.) Here, the evidence was favorable because
defendants argue that the informant history and additional conviction evidence would
have impeached Crummie’s credibility. The issue is whether it was suppressed and
material.
16 i. Suppression
Evidence is suppressed only if the defendant was not aware of it and could not
have become aware of it “through the exercise of due diligence.” (See Salazar, supra, 35
Cal.4th at p. 1049 [where the evidence “is in a defendant’s possession or is available to a
defendant through the exercise of due diligence, then . . . the defendant has all that is
necessary to ensure a fair trial, even if the prosecution is not the source of the evidence”];
see also Lucas, supra, 60 Cal.4th at p. 274, citing People v. Morrison (2004) 34 Cal.4th
698, 715 [“ ‘[E]vidence that is presented at trial is not considered suppressed, regardless
of whether or not it had previously been disclosed during discovery’ ”].) Moreover, even
a discovery of evidence late in trial does not constitute suppression if the defense
discovered the evidence while it had opportunity to cross-examine the witness about it.
In Lucas, two days after a witness had testified for the prosecution, the prosecution
discovered and gave to the defense a police report containing information directly
contradicting part of the witness’ testimony. (Lucas, at p. 273.) The court held that the
police report was not suppressed because defense counsel “retained the ability to recall or
subpoena [the witness] and impeach him directly with the report.” (Id. at pp. 273-275.)
Here, defense counsel discovered the potential for the informant history and
additional conviction evidence before the close of evidence at trial. Specifically, defense
counsel discovered during cross-examination of the sergeant that Crummie previously
worked with as an informant for the San Bernardino County Sheriff’s Department. And
17 the day before that (i.e. the day before the close of evidence), defense counsel discovered
the Ford opinion. At that time, both Crummie and the sergeant had been dismissed
subject to recall. Thus, like in Lucas, there was no suppression because defense counsel
could have recalled the witnesses and cross-examined them on those areas. Defense
counsel failed to do so.
ii. Materiality
Even if we assume that the alleged impeachment evidence was suppressed, it was
nevertheless immaterial to the outcome of the case. Evidence is material if there is “ ‘a
reasonable probability its disclosure would have altered the trial result.’ ” (People v.
Whalen (2013) 56 Cal.4th 1, 64.) “[T]he question is whether ‘the favorable evidence
could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.’ ” (Strickler v. Greene, supra, 527 U.S. at p. 290.) “ ‘Because
a constitutional violation occurs only if the suppressed evidence was material by these
standards, a finding that Brady was not satisfied is reversible without need for further
harmless-error review.’ ” (Whalen, at p. 64.) In other words, “there is no ‘error’ unless
there is also ‘prejudice.’ ” (In re Sassounian, supra, 9 Cal.4th at p. 545, fn. 7; see ibid.
[“It follows that harmless-error analysis under Chapman v. California (1967) 386 U.S.
18, 24, with its standard of ‘harmless beyond a reasonable doubt,’ is not implicated.”].)
In Salazar, the California Supreme Court held that impeachment evidence
concerning one of the prosecution’s key witnesses was immaterial because, “even if [the
18 defendant] could have succeeded in impeaching [the witness], equivalent testimony was
supplied by other witnesses.” (Salazar, supra, 35 Cal.4th at p. 1052.) In concluding that
it was unlikely that the evidence would have affected the outcome of trial, the court noted
that defendant’s own statements and actions during the criminal investigation established
his guilt. (Id. at p. 1051.)
Here, Crummie’s testimony regarding his conversation with Bezada outside of
class about the robbery was not the only evidence establishing that defendants were
guilty of attempted robbery. Most of the evidence of defendants’ guilt was “supplied by
other [sources],” such as their own statements. (Salazar, supra, 35 Cal.4th at p. 1052.)
During the recorded phone conversations between Crummie and Bezada, the jury
heard Crummie twice reference the fact that Bezada had approached him about the
robbery. At no point in the conversations did Bezada challenge Crummie’s statements or
deny that the robbery had been his idea. These conversations established that Bezada:
had approached Crummie about the robbery, had the address of the target home, had
given Crummie instructions on how the robbery would play out, and had been trying to
obtain a gun. Additionally, the jury heard the recorded conversation in which both
defendants made incriminating statements about trying to minimize their involvement in
the attempted robbery. While sitting in the back of the patrol car, Jones admitted to
possessing a gun, and he and Bezada discussed how they could convince the police that
the robbery was Crummie’s idea.
19 Aside from defendants’ own statements, other evidence independent from
Crummie’s testimony established defendants’ guilt. The prosecution established, through
photographs and the testimony of police officers, that when defendants were arrested,
they were in possession of a gun and equipment that could be used in a home invasion
robbery.
And finally, the likelihood was extremely low that evidence of additional
convictions or of his history as an informant would materially affect Crummie’s
credibility. (See Salazar, supra, 35 Cal.4th at p. 1051 [“it is unlikely the [evidence] . . .
would even have been viewed as significant impeachment evidence”].) Defense
counsel’s cross-examination had already established that Crummie was a career
informant with a significant criminal history. This testimony alone was enough to
prompt the jury to question Crummie’s credibility. Any credibility Crummie did have
was based, not on his character, but on the fact that his testimony was corroborated by so
much other evidence presented at trial. Thus, because there was significant evidence of
defendants’ guilt independent of Crummie’s testimony, and because his credibility was
already damaged, we conclude that the alleged impeachment evidence is not material to
defendants’ case and that no Brady violation has occurred.
20 c. Defendants’ arguments do not affect our conclusion
i. Standard for materiality
Defendants contend that the court must not focus on the “evidence that allegedly
corroborated [Crummie’s] testimony” when making its materiality determination, but
rather must consider “any adverse effect” that the impeachment evidence could have had
on their case. However, the standard for materiality is not whether the suppressed
evidence had “any adverse effect” on a defendant’s case, but whether there is a
“reasonable probability” that the outcome would have been different had the evidence not
been suppressed. (See Strickler v. Greene, supra, 527 U.S. 263, 280, 289.) Even where
counsel’s ignorance of suppressed impeachment evidence “made [the] conviction more
likely,” the evidence is not material if the record “provides strong support for the
conclusion that [the defendant] would have been convicted . . . even if [the witness] had
been severely impeached.” (Id. at pp. 289, 294.) Here, defendants’ recorded statements
alone provide strong support for conviction, regardless of Crummie’s credibility.
Moreover, defendants have pointed to no specific impeachment evidence
regarding Crummie. Instead, they point to a potential additional sexual assault conviction
and “agreements and facts involving other cases in which Crummie had testified.”
Presumably, defendants hope to find impeachment material in those “agreements and
facts”; however, such a vague description is not enough to demonstrate the “reasonable
probability” of a different outcome necessary for a finding of materiality. (Strickler v.
21 Greene, supra, 527 U.S. at pp. 280, 289 [in order to find evidence material, a reviewing
court must find that there is a “reasonable probability” that the outcome would have been
different had the evidence not been suppressed].) Because defendants have failed to
demonstrate that there is any impeachment evidence that was material to the outcome of
their case, we must reject their Brady claim.
ii. Inapplicable materiality cases
Defendants argue that the holdings in People v. Kasim (1997) 56 Cal.App.4th
1360 (Kasim) and In re Pratt (1999) 69 Cal.App.4th 1294 dictate a different materiality
result. Because these cases are distinguishable, we disagree.
In Kasim, the prosecution failed to disclose evidence that its two main witnesses
had previously received leniency in exchange for their cooperation with law enforcement,
and that they were receiving leniency in the present case. (Kasim, supra, 56 Cal.App.4th
at p. 1382.) The court held that this evidence was material because: (1) as accomplices
receiving leniency, the witnesses had a motivation to testify favorably for the
prosecution, and (2) one of the witnesses was “essential” to the prosecution because he
was the only person who witnessed the crime. (Ibid.) Here, unlike Kasim, Crummie was
not an accomplice and his testimony was not essential to the prosecution’s case. The
prosecution had extensive evidence of defendants’ guilt, independent of Crummie’s
testimony.
22 In In re Pratt, the jury was not informed that the prosecution’s key witness—the
man to whom the defendant had allegedly confessed—was an informant and had a
“[close] cooperative relationship” with law enforcement. (In re Pratt, supra, 69
Cal.App.4th at pp. 1316, 1322.) Here, the jury knew of Crummie’s long history as an
informant and, more importantly, his testimony was not the strongest evidence of
defendants’ guilt.
iii. Materiality with respect to defendant Jones
In his reply brief, Jones argues that there is not enough evidence independent of
Crummie’s testimony to link him to the robbery. Jones denies any knowledge of the
weapon or the robbery, and claims that his role was “passive” and “based solely on his
relationship with Bezada.”
Jones mischaracterizes the evidence against him. His own statements to Bezada
during their conversation in the patrol car establish that he possessed the gun, as does the
fact that the police found it in a jacket on the backseat of Crummie’s car where Jones had
been sitting. The testimony of Crummie’s brother and the officers who arrested Jones
establish that Jones had also been carrying a backpack containing gloves. After hearing
evidence that Jones was carrying gloves and a loaded gun, the jury could readily
disbelieve his explanation that he was just going to the gas station to get cigarettes. We
therefore reject Jones’s argument that the incriminating evidence in this case relates only
to Bezada.
23 iv. Misinterpretation of the trial record
Lastly, we address an argument defendants raise for the first time on appeal.
Defendants claim that the prosecution suppressed evidence that “Crummie had previously
provided false information—i.e. perjured testimony—in a 2008 Riverside County case.”
This argument appears to stem from a misreading of the transcripts of defendants’ motion
for mistrial. We see no evidence in the record that defense counsel argued Crummie had
lied in the 2008 case.
As detailed in section I.2, during oral argument on their motion for mistrial
defense counsel informed the court that Ford, an appellate opinion from 2008, lead them
to suspect Crummie had been convicted of more sexual offenses than he had admitted
during his testimony. In explaining their discovery of Ford, Bezada’s counsel stated,
“[Jones’s counsel] called me I believe at 8:30 last night because he had brought up a case
from 2008 in Riverside County where Mr. Crummie was the CI informant.” Bezada’s
counsel told the court that after reading Ford, “it was agreed that [Crummie] had
basically lied or perjured his testimony.” This statement is likely the source of the
confusion about the perjury issue on appeal. Appellate counsel appears to read the
statement as: “it was agreed [in Ford] that [Crummie] had basically lied or perjured his
testimony [in Ford]”; whereas, context establishes that the statement should read: “it was
agreed [among defense counsel after reading Ford] that [Crummie] had basically lied or
perjured his testimony [in this case].”
24 When asked to elaborate on Ford, Bezada’s counsel explained that because “[t]he
appellate opinion clearly says, ‘Gangs, drug cases, and sexual assaults,’ plural. . . . We
are still standing here with a question mark as to what [Crummie’s] real priors contain,
and were they more than the five that we were provided with by the People?” From this
response, the court determined that counsel was arguing that “there might have been
another offense that [Crummie] was convicted of that [defense counsel] didn’t know
about”—not that Crummie had perjured his testimony in Ford. Moreover, defense
counsel never corrected the court on this point or stated that they had instead meant that
they believed Crummie had perjured his testimony in Ford. Thus, we conclude that
defendants’ claim on appeal that Crummie had previously committed perjury is a
misreading of the record below.
2. Conduct credits
Defendants contend that they should have been awarded 158 days of conduct
credit for presentence custody under section 4019 instead of 48 days under section
2933.1. The People correctly concede this issue.
Defendants were sentenced to six years for conspiracy to commit robbery, and
their sentences for attempted robbery were stayed pursuant to section 654. The minute
orders dated February 24, 2014, and the abstracts of judgment for both defendants reflect
that their 48 days of conduct credit were awarded pursuant to section 2933.1, which
imposes a 15 percent limit on conduct credits “ ‘where the . . . current conviction is a
25 violent felony listed in section 667.5.’ ” (In re Mitchell (2000) 81 Cal.App.4th 653, 656.)
However, defendants’ conduct credits should not have been calculated pursuant to section
2933.1 because that section does not apply to conspiracy or attempt, as neither crime is a
violent felony listed in section 667.5. (See In re Mitchell, at p. 656 [§ 2933.1 does not
apply to conspiracies]; People v. Reed (2005) 129 Cal.App.4th 1281, 1284-1285 & fn. 1
[except for attempted murder, an attempt to commit a crime listed in § 667.5, subd. (c), is
not a violent felony].)
Instead, their conduct credits should have been awarded pursuant to section 4019,
which permits defendants to earn two days credit for each four-day period of confinement
in local custody. (Pen. Code, § 4019, subds. (b), (c); see also § 4019, subd. (f) [“if all
days are earned under this section, a term of four days will be deemed to have been
served for every two days spent in actual custody”].) Section 4019 has been amended
multiple times. The most recent version of this section applies only to defendants whose
crimes were “committed on or after October 1, 2011,” and thus applies to defendants,
whose crimes were committed in April 2013. (§ 4019, subd. (h).) Awarding conduct
credits under section 4019 results in a total of 158 days.15
15 We reach this number by dividing the days of actual confinement (319) by four, rounding the quotient down to the nearest whole number (79), then multiplying by two (158). (See People v. Chilelli (2014) 225 Cal.App.4th 581, 588, citing People v. Dieck (2009) 46 Cal.4th 934, 943 [“conduct credits are given in two-day increments and no rounding up is permitted”].)
26 We have the inherent power to correct clerical errors in abstracts of judgment.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct preparation
of amended abstracts of judgment for each defendant reflecting an award of 158 days of
conduct credit under section 4019.
III.
DISPOSITION
The judgment is modified to set presentence credit for 477 days, consisting of 319
actual days and 158 days of section 4019 conduct credit. The superior court clerk is
directed to prepare new minute orders and amended abstracts of judgment for both
defendants reflecting the custody credit modifications. The superior court clerk is then
directed to forward certified copies of the new minute orders and amended abstracts to
the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
KING J.