Berardi v. Superior Court

57 Cal.Rptr.3d 170

149 Cal.App.4th 476

George H. BERARDI, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent The People, Real Party in Interest.

No. D049444.

Court of Appeal, Fourth District, Division 1.

April 6, 2007.

The Law Offices of Jose C. Rojo and Jose C. Rojo, San Diego, for Petitioner.

No appearance for Respondent.

Bonnie M. Dumanis, District Attorney, Jesus Rodriguez, Assistant District Attorney, Craig E. Fisher and Cathy Stephenson, Deputy District Attorneys, for Real Party in Interest.

HALLER, J.

George Berardi filed a pretrial motion to dismiss a grand jury indictment charging him with murder and conspiracy to commit murder. The trial court denied the motion, and Berardi petitioned for writ of mandate requesting that the trial court be ordered to grant his dismissal motion. He contends dismissal is required under Penal Code¹ section 939.71 because the prosecution failed to properly and fully notify the grand jury of the existence of exculpatory evidence. He also asserts dismissal is required on due process grounds, contending the prosecution engaged in continuous misconduct throughout the course of the proceedings against him.

In ruling on Berardi's dismissal motion, the trial court found the prosecution had riot fully complied with its duty to disclose exculpatory evidence. However, the court declined to dismiss the indictment because it concluded there was no substantial prejudice to Berardi's rights. Berardi challenges this ruling, arguing he was not required to show prejudice. Alternatively, he contends prejudice should be evaluated under the harmless beyond a reasonable doubt standard, and the record shows prejudice.

We reject Berardi's argument he was not required to show prejudice. Section 939.71 expressly requires a showing of "substantial prejudice" to support a dismissal, and Berardi has presented no legal basis for deviating from this requirement. Further, we conclude "substantial prejudice" under section 939.71 should be evaluated based on the traditional test for state law error; i.e., whether it is reasonably probable the outcome would have been more favorable to the defendant absent the failure to disclose. When applying this test, the court should evaluate the record as a whole, taking into consideration such factors as the extent to which the lack of disclosure interfered with the grand jury's independence, and the strength and nature of the undisclosed exculpatory evidence as compared to the evidence supporting the grand jury's finding of probable cause to indict. If the accused shows it is reasonably probable that the grand jury would not have found probable cause to indict absent the disclosure error, the accused is entitled to dismissal of the indictment at the pretrial stage.

Berardi has shown the prosecution's disclosure to the grand jury was inadequate and inaccurate, and the disclosure deficiencies seriously interfered with the grand jury's investigatory function, undermining its independence. Examining the record as a whole, we conclude it is reasonably probable the grand jury would not have found probable cause to indict had it been properly informed of the exculpatory evidence. Accordingly, we grant Berardi's writ petition and order the trial court to dismiss the indictment under section 939.71. Given our holding, we need not address Berardi's request for dismissal on due process grounds.

FACTUAL AND PROCEDURAL BACKGROUND

I. Denial, of Motion to Dismiss the Indictment

At about 6:00 p.m. on July 8, 2005, the authorities were summoned to a neighborhood to investigate a man lying on the ground. Marcus Keglar was found in a path between two apartment buildings on a cul-de-sac leading to a canyon area. He had been shot in the head. He was taken to the hospital, and thereafter died.

In August 2005, the police identified Daniel May as the person who shot Keglar. In a series of interviews, May admitted that he shot Keglar and stated that Berardi was not involved. Several months later, in March 2006, Anna Tong, a friend of May and Berardi, told the police that Berardi was involved in the planning of May's murder. Based on the information received from Tong, the district attorney's office filed a complaint charging Berardi with murder and conspiracy to commit murder. At a May 15, 2006 preliminary hearing, the court found probable cause to bind Berardi over for trial and an information was filed. On May 24, 2006, the cases against May and Berardi were consolidated for trial.

On June 13, 2006, Berardi filed a motion to dismiss the information based on prosecutorial misconduct. In support of this motion, Berardi claimed the prosecution had failed to disclose that it had discussed immunity with Tong, and it had failed to correct Tong's preliminary hearing testimony denying any immunity discussions.

While Berardi's motion to dismiss the information was pending, the prosecution sought a grand jury indictment against Berardi and May.² After the prosecution presented its evidence, the grand jury found probable cause to indict Berardi and May. The indictment was filed on July 12, 2006. Because of the indictment, the earlier-filed information was apparently dismissed and the motion to dismiss the information became moot.

On August 14, 2006, Berardi filed a motion to dismiss the indictment under section 939.71. Berardi contended the prosecution failed to inform the grand jury of several items of exculpatory evidence and misrepresented exculpatory evidence. The judge ruling on this dismissal motion was the same judge who had sat as the magistrate for Berardi's preliminary hearing. The court ruled that the prosecution had failed to comply with its duty to notify the grand jury of exculpatory evidence, but that the deficiency did not create substantial prejudice. The court found that the record was "replete with evidence to suggest that [ ] Berardi and [ ] May committed the crimes ...," and concluded there would not have been a different outcome even if there had been full disclosure of the exculpatory evidence.³

Berardi also moved to dismiss the indictment on due process grounds, contending the prosecution had engaged in continuing misconduct during the course of the case. The trial court rejected this argument. Accordingly, the trial court denied Berardi's motion to dismiss the indictment.⁴

Berardi filed a petition for writ of mandate with this court contending the indictment should be dismissed. We issued an order to show cause and stayed the proceedings before the trial court pending resolution of these writ proceedings.

II. Evidence Presented at the Grand Jury Proceedings

At the inception of the grand jury proceedings, and before any evidence was presented, a deputy district attorney informed the grand jury how the proceedings would be conducted. The grand jury was advised that the prosecution would present evidence for the jury to consider in determining whether an indictment should issue and that the defense would not participate in the proceedings. The grand jury was also told that because neither the defendants, nor their attorneys, were present, the prosecution was required to tell the jury about the existence of exculpatory evidence, and that it was the jury's obligation to decide whether it wanted this exculpatory evidence to be presented for its consideration.

Thereafter, the prosecution called six witnesses to present its case to the grand jury, and summarized several items of exculpatory evidence. The prosecution's witnesses were a paramedic who responded to the scene, a deputy medical examiner, an investigating detective (John Young), Tong, Tong's boyfriend (Nathanial Green), and a friend of the victim (Rochelle Wiggins). To review the writ petition before us, we shall set forth the testimony of the latter four witnesses and the prosecution's summation of exculpatory evidence.

A. Probable Cause Evidence

Detective Young's Grand Jury Testimony

Detective Young briefly described the circumstances surrounding May's arrest and interviews by the police. Detective Young explained that May was identified as the shooter; that May had been recorded on a video camera at the Greyhound station the night of the shooting; and that in August 2005 the police spoke with May in Las Vegas and later extradited him to San Diego.

Tong's Grand Jury Testimony

Tong testified at length before the grand jury. She explained that May and Berardi were close friends and that during the week prior to the shooting they had been staying at her apartment. On the day of the shooting, Tong, Berardi, May, Tong's boyfriend (Green), and another friend (Bart Cameron) were at Tong's apartment. At Berardi's invitation, Tong left the apartment and went to a 7-Eleven store and Round Table Pizza with Berardi. During the course of their time together that day, Tong observed that Berardi received several calls on his cell phone from victim Keglar asking for marijuana, and she heard Berardi state he would deliver the drugs at a cul-de-sac location. While Tong and Berardi were at Round Table Pizza, Berardi told Tong that May was meeting with Keglar, and that May was going to shoot Keglar. According to Tong, Berardi indicated he wanted Keglar killed because Keglar was dating Berardi's exgirlfriend (Desiree Winchell) and Winchell "wanted [Berardi and Keglar] to have a duel; and that one of them had to die in order to have her." Berardi told Tong that he was keeping his receipts from their visits to the 7-Eleven store and Round Table Pizza, and that Tong and a friend of his who worked at Round Table Pizza were his alibi.

Describing her reaction to Berardi's statements at Round Table Pizza about the anticipated shooting, Tong testified: "I was in a state of disbelief, like shock. I didn't really know how to react. I felt very ... cut off from it, like it wasn't really happening. I kind of joked about it." Before leaving Round Table Pizza, Berardi received a cell phone call from May,...