People v. Gutierrez

214 Cal.App.4th 343

153 Cal.Rptr.3d 832

The PEOPLE, Plaintiff and Appellant,

v.Baldomero Gonzalez GUTIERREZ, Defendant and Respondent.

A134695

Court of Appeal, First District, Division 3, California.

Filed March 12, 2013

As Modified on Denial of Rehearing April 9, 2013

Review Denied June 19, 2013

Affirmed.

See 1 Witkin, Cal. Evidence (5th ed. 2012) Introduction, § 21 et seq.

Limited on Constitutional Grounds

Cal. Const., art. 1, § 30(c); Cal. Penal Code §§ 866(b), 1054.7.

Trial Court: Contra Costa County Superior Court, Trial Judge: Honorable John Laettner (Contra Costa County Super. Ct. No. 05-111195-4)

Counsel for Appellant: Mark Peterson, District Attorney, Ryan Wagner, Deputy District Attorney.

Counsel for Respondent: Stephanie Clarke, under appointment by the Court of Appeal.

Siggins, J.

The People appeal from an order dismissing charges brought against defendant Baldomero Gonzalez Gutierrez. The appeal asks us to depart from longstanding precedents— Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 239 Cal.Rptr. 328 ( Stanton ), Currie v. Superior Court (1991) 230 Cal.App.3d 83, 281 Cal.Rptr. 250 ( Currie ), and Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 33 Cal.Rptr.2d 515 ( Merrill )—that hold the prosecution's duty to disclose exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ( Brady ) applies to preliminary hearings. The principal contention is that over 20 years ago the passage of Proposition 115 “legislatively overruled” these precedents. However, neither Proposition 115 nor the cases and commentaries that have construed it support the People's position. Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304 ( Izazaga ) held that Proposition 115 could not limit a defendant's due process rights under Brady, and People v. Jenkins (2000) 22 Cal.4th 900, 95 Cal.Rptr.2d 377, 997 P.2d 1044 ( Jenkins ) suggests that Brady applies in connection with preliminary hearings. The People's other arguments against Brady 's application at a preliminary hearing also lack merit. We therefore affirm.

At the preliminary hearing in July 2011, a Concord police detective testified that he was dispatched to an elementary school on November 5, 2001, to investigate a report of child abuse. At the time, JD1 and JD2 were 11–year old foster children who lived with Gutierrez, his wife and stepdaughter.

JD1 told the officer that she and Gutierrez were alone in the home the previous day when he asked her to come into his bedroom. He pulled her onto the bed and tried to kiss her on the lips but she turned away. He then put his hand on her vaginal area over her pants. She got up quickly and went outside the house. Gutierrez followed and warned her not to say anything or they would both get in trouble. That night JD1 asked JD2 if something similar had happened to her.

After speaking with JD1, the officer went to the home and spoke with JD2 who said that, about a year earlier, Gutierrez put his arm over her shoulder in a friendly way and then rubbed her buttocks over her clothes. She stepped away because she was uncomfortable and frightened. Gutierrez told her not to say anything, and she had been too embarrassed and afraid to report the incident.

The other witness at the hearing was a senior inspector with the district attorney's office who obtained a statement from Gutierrez's stepdaughter that JD1 and JD2 lived with her and Gutierrez in November 2001.

Gutierrez argued unsuccessfully that he should not be held to answer on the charges, stating, among other things, that investigators for the parties had not been able to locate JD1 or JD2.

After the preliminary hearing, the defense obtained from juvenile court police reports showing that JD1 had made accusations of molestations in 1996 and 1999 that were determined to have been unfounded.

In 1996, JD1 told a Pleasant Hill police sergeant that her mother's boyfriend had touched her vagina, put a screwdriver in her vagina, and kissed her buttocks. But a sexual assault examination revealed no trauma. When the sergeant discussed the examination with JD1's mother, she accused him of conspiring with the doctor to protect her boyfriend. JD1's six-year-old sister, who was in foster care, told her therapist that the boyfriend had also molested her. The sister made the report shortly after talking with her mother, and the sister's therapist and foster parent were shocked by the charges because the sister exhibited no signs of abuse. JD1's 10–year–old sister admitted falsely accusing the boyfriend of molesting her because “she was afraid her mother would beat her if she said [the boyfriend] did not touch her. She said her mother was always saying [the boyfriend] touched them.” During the investigation, the mother kept calling the sergeant, yelling at him, and hanging up. The sergeant recommended that JD1 be taken into protective custody because of the mother's “irrational behavior,” and closed the case against the boyfriend.

In 1999, JD1 reported to the Contra Costa Sheriff's Department that her mother's boyfriend put his finger in her vagina, and had her touch his penis, while she was in his car. A detective obtained the 1996 police report, and information from child protective services (CPS) that the mother “was mentally ill and projected her own molest onto the children. All of the CPS investigations were determined to be unfounded.” Given this history, and proof of the boyfriend's whereabouts on the day of the alleged molestation, the detective and a deputy district attorney decided that no charges would be filed. JD1 later admitted that she had “lied because [the boyfriend] had done things to her in the past and he did not go to jail.” The detective wrote: “I asked if she was referring to the incident that occurred in Pleasant Hill. She said she was. I explained that I knew her older sister ... had said that [the boyfriend] had done things to her because she thought she would get into trouble if she did not say ... what [the mother] wanted her to say. I told her I thought that might be happening here. [JD1] did not respond, but nodded her head.”

After receiving these reports, Gutierrez moved to dismiss the charges. He argued that the prosecution breached its duties under Brady by failing to disclose the 1996 and 1999 police reports before the preliminary hearing. He supported his motion with an informal discovery request he propounded prior to the preliminary hearing, that sought “any ... potential impeachment information of any witness or alleged victim and the related police report.” The prosecution filed no written opposition to the motion, but opposed it orally at the hearing. The court found a “ Brady violation,” and that it was reasonably probable the outcome of the preliminary hearing would have been different if the exculpatory evidence had been produced. The motion to dismiss was granted and this appeal ensued.

DISCUSSION

I. The Brady Obligation and Stanton, Currie, and Merrill

“The prosecution has a duty under the Fourteenth Amendment's due process clause to disclose evidence to a criminal defendant ... [¶] ... [that is] both favorable to the defendant and material on either guilt or punishment.... [¶] Evidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [Citation.] [¶] Evidence is ‘material’ ‘... if there is a reasonable probability that, had [it] been disclosed to the defense, the result ... would have been different.’ ” ( In re Sassounian (1995) 9 Cal.4th 535, 543–544, 37 Cal.Rptr.2d 446, 887 P.2d 527, fn. omitted; see Brady, supra, 373 U.S. at p. 87, 83 S.Ct. 1194; People v. Ruthford (1975) 14 Cal.3d 399, 406, 121 Cal.Rptr. 261, 534 P.2d 1341 ( Ruthford ), disapproved on another point in In re Sassounian, supra, at p. 545, fn. 7, 37 Cal.Rptr.2d 446, 887 P.2d 527.) “ ‘The suppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process within the meaning of the Fourteenth Amendment.’ ” ( Stanton, supra, 193 Cal.App.3d at p. 269, 239 Cal.Rptr. 328, quoting Ruthford, supra, at p. 408, 121 Cal.Rptr. 261, 534 P.2d 1341.)

Stanton held that the prosecution's duty to disclose material evidence that is favorable to the defense (hereafter the Brady obligation) applies to preliminary hearings. ( Stanton, supra, 193 Cal.App.3d at p. 267, 239 Cal.Rptr. 328 [striking an element of the charged offense because of “the prosecution's failure to disclose evidence material to defense cross-examination of eyewitnesses at a preliminary hearing”]; id. at p. 269, 239 Cal.Rptr. 328, quoting Ruthford.) Breach of the prosecution's Brady obligation in connection with a preliminary hearing can be raised by the defendant in a nonstatutory motion to dismiss. ( Id. at pp. 269–270, 239 Cal.Rptr. 328 [distinguishing § 995 motions, which are confined solely to the record at the preliminary hearing].) “ ‘Although no clear California statutory authority provides for such a pretrial motion to dismiss, we have no doubt in light of the constitutional nature of the issue as to the trial court's authority to entertain such a claim.’ ” ( Stanton, supra, at p. 271, 239 Cal.Rptr. 328, italics added.) “ ‘It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion.’ ” ( Id. at p. 270, 239 Cal.Rptr. 328.)

Stanton stated: “Nondisclosure of evidence impeaching eyewitnesses on material issues is the deprivation of a substantial right” ( Stanton, supra, 193 Cal.App.3d at p. 272, 239 Cal.Rptr. 328), but Currie disagreed “[t]o the extent Stanton implie[d] that any cross-examination infringement ... constitutes deprivation of a substantial right” ( Currie, supra, 230 Cal.App.3d at p. 91, fn. 6, 281 Cal.Rptr. 250). The motion to dismiss was properly denied in Cu...