Filed 1/24/20 P. v. Cato CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN CHARLES CATO,

Defendant and Appellant.

B286145

(Los Angeles County

Super. Ct. No. BA432098)

APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed and remanded for further proceedings.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant Justin Charles Cato of second degree murder (Pen. Code, § 187, subd. (a) ), attempted murder (§§ 664/187, subd. (a)), shooting at an occupied motor vehicle (§ 246), and possession of a firearm by a prohibited person (§ 29800, subd. (a)(1)). It also found true the allegations that in the commission of the murder, attempted murder, and shooting at an occupied motor vehicle, defendant personally and intentionally discharged a firearm proximately causing great bodily injury and death. (§ 12022.53, subd. (d).) The trial court sentenced defendant to state prison for 72 years to life. It also imposed a $300 victim restitution fine (§ 1202.4, subd. (b)), a $120 criminal conviction assessment (Gov. Code, § 70373), and a $160 court operations assessment (§ 1465.8, subd. (a)(1)).

On appeal, defendant contends the trial court abused its discretion when it denied his motion for a new jury panel; defense counsel provided ineffective assistance; the trial court abused its discretion when it denied his new trial motion; remand is warranted to allow the trial court to exercise its discretion whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h); an independent review of the sealed transcript of the in camera hearing on his Pitchess motion is necessary to determine whether all discoverable material was turned over to him; and the restitution fund fine should be stayed until the People prove he has a present ability to pay and the criminal conviction and court operations assessments should be vacated pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). After the cause was submitted, our dissenting colleague, as Presiding Justice, asked the parties to submit supplemental letter briefs addressing whether the prosecutor committed misconduct during a conversation with witnesses concerning perjurious testimony the witnesses might give and whether any such misconduct was prejudicial in itself or in connection with any other error. We affirm the judgment and remand the matter for the trial court to exercise its discretion whether to strike the firearm enhancements.

II. BACKGROUND

A. The Prosecution’s Evidence

On December 9, 2014, Adrian Lara was “hanging out” with his friend Noe Mata at Mata’s house on 50th Street. Mata’s cousin Joshua Gonzalez and defendant were also at the house. Lara, Mata, and Gonzalez smoked marijuana on the porch. Defendant sat on the porch steps, but did not smoke marijuana.

According to Lara, as he and his companions smoked marijuana on the porch, a black Honda pulled up and stopped. Defendant “speed walk[ed]” from where he was sitting on the porch to the front of the house.

According to Francisco Castro, he, Jonte Reed, Luis Escandon, and Victor Gudino were in a car. Escandon was driving, Gudino sat in the front passenger seat, Castro sat behind Escandon, and Reed sat behind Gudino. Castro and his friends had just stopped at a medical marijuana shop where Reed had purchased marijuana. They were driving to an abandoned house on 55th Street near Castro’s father’s house where they intended to smoke the marijuana.

Castro explained that Escandon proceeded slowly on 50th Street between Broadway and Main because of speed bumps. Castro saw defendant in profile, from a side view, in front of a house. Defendant was about 20 to 22 feet away and walking towards the car. He was wearing a black hoodie and dark blue pants. There was no writing or design on the hoodie.

Defendant pulled out a gun and pointed it at the car. Castro yelled, “Drive. He [has] a gun.” A bullet shattered Castro’s window, and Castro ducked down. Escandon “froze” and stopped the car for what seemed to be 30 or 40 seconds. During that time, Castro heard about nine more gunshots. He could not tell from where they came. Castro did not see anyone inside the car with a gun, and no shots came from the car. Reed suffered a fatal gunshot wound to his back. At some point, Escandon drove away fast.

When Lara heard the gunshots, he ducked down. He did not see who was shooting. When he looked up, he saw defendant running towards the house, holding a gun in his right hand.

Lara went inside the house where he examined himself for gunshot wounds in a bathroom. When he exited the bathroom about three minutes later, Mata, Gonzalez, and defendant were in the living room. Shortly thereafter, the police surrounded the house and removed Lara and his companions from the house.

Los Angeles Police Department Homicide Detective Leonardo McKenzie and his partner Detective Richard Arciniega were assigned to investigate the shooting. Eight nine-millimeter shell casings, all from the same manufacturer, were recovered from 50th Street. Detective McKenzie entered the Mata house to search for a weapon that matched those shell casings. He did not find such a weapon, but did find a black hooded sweatshirt on a kitchen or dining room table.

Lara was taken to the police station where Detective McKenzie interviewed him. Lara said that defendant, whom he first met that day, had “shot a car.” Lara identified defendant as the shooter from a six-pack photographic lineup and at trial.

Sometime during the night of the shooting, the police contacted Castro and transported him to the police station. Detectives McKenzie and Arciniega asked Castro whether he would be able to identify the person who did the shooting. Castro stated that he could. Other detectives showed him three people—two who were Hispanic and one who was African-American —one at a time through a one-way mirror. Among the three persons Castro viewed were Mata and Lara. Castro believed neither was the shooter. But he had no doubt the third person was the shooter.

Detective McKenzie later testified that he did not know that Castro had been shown three persons through a one-way mirror before he interviewed him. The detective first learned of that show-up procedure during Castro’s trial testimony. After Castro’s testimony, Detective McKenzie asked Detective Arciniega if he knew that such an identification procedure had been used. Detective Arciniega stated that he knew nothing about it. According to Detective McKenzie, it was uncommon for an investigating officer to be unaware that an identification procedure had taken place, and the failure to notify him about the prior identification was a “breakdown in normal procedure.”

Several hours after Castro was shown the three men through the one-way mirror, Detectives McKenzie and Arciniega interviewed Castro. Castro identified defendant from a six-pack photographic lineup as the shooter. Castro said, “I seen him come out a gate, and clock the gun, and started shooting at us.” Castro also identified defendant as the shooter at trial, testifying that he had no doubt about his identification.

B. Defense Evidence

Dr. Kathy Pezdek, a professor of psychology at Claremont Graduate University, had a doctorate in cognitive science—the study of how people process and remember things. She testified as a defense expert on eyewitness identifications.

Dr. Pezdek testified that “suggestive pre-exposure”—in which a witness has seen a suspect prior to a photographic lineup such as in a field show-up or around the police station—can cause witness misidentification in the photographic lineup. That is, the witness identifies in the photographic lineup the person they just saw in the field show-up or around the police station because that person’s face is familiar.

Based on hypothetical facts tracking the facts in this case, Dr. Pezdek testified about the factors that would have affected the eyewitnesses’ memories and increased the potential for misidentifications: distance, lighting, exposure time, weapon focus, stress, disguise—the black hoodie, the profile view, and cross-race identification.

Defense investigator Peter Hunter interviewed Lara, who told Hunter that when he arrived at Mata’s house Mata asked if Lara would like to smoke a “blunt.” Lara “agreed,” but said he needed to use the bathroom. When Lara went inside Mata’s house, there were two African-American males seated inside. Mata used the bathroom and when he exited, the two African-American males were still seated inside the house. Apparently aware of the shooting, Lara asked Mata if he saw the shooting. Mata said, “No.” Lara told Hunter he—Lara—was inside the bathroom during the shooting.

C. Jury Verdict, Motion for a New Trial, and Sentencing

The jury returned a verdict finding defendant guilty of second degree murder, attempted murder without the premeditated finding, shooting at an occupied motor vehicle, and illegal possession of a firearm by a prohibited person. The jury further found the firearm enhancements to be true.

Following the verdict, defendant moved to represent himself, which motion the trial court granted. Defendant then filed a motion for Pitchess discovery, which we discuss further below.

Defendant, who was by then represented by new counsel, filed nine volumes of exhibits in support of his motion for a new trial. The exhibits included declarations from a defense investigator, Lara, and Castro, as well as numerous other declarants.

On June 16, 2017, the trial court conducted a hearing on the motion for a new trial, at which Lara and Castro, both of whom invoked their right against self-incrimination, did not testify. The court heard argument of counsel, took the matter under submission, and denied the motion on August 11, 2017.

The trial court sentenced defendant to 72 years to life and imposed the fines and fees identified above and discussed below.

III. DISCUSSION

A. Issues Regarding the Validity of Defendant’s Convictions

1. Jury Panel

During voir dire, defendant moved for a new jury panel after a prospective juror made comments defendant believes tainted the jury pool. Defendant contends the trial court abused its discretion when it denied his motion. We disagree.

a. Background

During voir dire, prospective juror No. 2134 stated that he was a supervisory special agent for the United States Drug Enforcement Administration (DEA). His wife also was a supervisory special agent for the DEA. He had prior court experience, but no jury experience. He had worked in law enforcement for 17 years and had family and friends who were in law enforcement. In addition, he was friends with and socialized with prosecutors; he did not socialize with defense attorneys.

Prospective juror No. 2134 stated: “I think just because of the nature of what I do, I work with the D.A.’s office and I know in the cases that we’ve run, the burden of proof and the standard is pretty high for them to even bring a case to court, to trial; so my experience is that they don’t bring something unless that—unless they believe that they have the case to make.”

The trial court asked prospective juror No. 2134, “So [defendant], like every defendant in every case that you’ve brought, is presumed to be innocent. Can you presume him innocent or have you decided he’s already guilty?” The prospective juror answered, “No. I can.” The trial court asked, “And what if the D.A. puts on his case and you hear the case and you think to yourself, you know, I was sure he was going to be able to prove it and he didn’t do it. Could you say not enough evidence, not guilty?” The prospective juror responded, “Yes.” The trial court moved on to the next prospective juror.

The next day, defense counsel moved for a new jury panel. He argued that prospective juror No. 2134 “espoused . . . views which were extremely pro prosecutorial. He mentioned something to the effect of . . . the fact [that defendant] went this far is . . . strong evidence of guilt because of the vigorous procedures that are taken to file charges and go forward.”

The prosecutor responded that prospective juror No. 2134 stated that he would be fair. He argued that the prospective juror’s statement did not vouch for or give credence to the prosecution’s case such that it would prejudice the rest of the panel.

The trial court denied the motion, ruling, in relevant part, “What [prospective juror No. 2134] said is something that’s commonly said by peace officers—people in law enforcement, F.B.I. agents, retired peace officers who served on juries or gone through voir dire, which is, ‘My cases, I filed them. They were good cases. I know what the standard is.’ To get a new panel would have to be such a taint by that that nobody else on the panel could possibly be fair in the case, and I don’t think that’s the situation. [¶] First of all, everyone knew by what he said not only was he a law enforcement supervisor but so was his wife. So he has this inherent bias. That’s the way they took it.”

The trial court added it would address the issue as part of its standard discussion with the jury about the presumption of innocence and the burden of proof. It stated that it would explain to the jury that “it doesn’t matter how the defendant got here or what the strength or weakness of the case was up to this point. The only thing that matters is what happens from this point forward. Either the D.A. proves it, or he doesn’t. [¶] So that would cure any alleged prejudice there was from an obviously biased point of view that the juror expressed.”

Later in voir dire, while addressing the presumption of innocence, the trial court said, “How many of you think, ‘Come on, judge. . . . He doesn’t just fall out of the sky. He’s got to be here for some reason. He must have done something’? Raise your hand. And I have several hands. I think that’s a pretty commonly held belief. It doesn’t matter how he got here or why he got here. The only thing that matters is what happens from this point forward. Either the D.A. can prove it beyond a reasonable doubt, in which case you have to find [defendant] guilty, or he can’t, in which case you have to find him not guilty . . . . You have to figure out if the evidence proves him guilty. It doesn’t matter how he got here. Because he’s presumed to be innocent, as I told you, the burden is on the prosecution to prove him guilty beyond a reasonable doubt.”

After further voir dire, defendant challenged prospective juror No. 2134 for cause. The trial court denied the challenge. Thereafter, defendant used a peremptory challenge to excuse that prospective juror.

b. Analysis

“Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188.)

We review for an abuse of discretion a trial court’s denial of a motion to dismiss a jury panel. (People v. Medina (1990) 51 Cal.3d 870, 889 [“the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required”].) “[D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (Ibid.)

This case does not concern demonstrated bias or prejudice that was so serious it required discharging an entire jury panel. (People v. Medina, supra, 51 Cal.3d at p. 889.) Prospective juror No. 2134 stated that the prosecutors with whom he had worked did not bring cases to court, given the high burden of proof at trial, “unless they believe[d] that they [had] the case to make.” Given prospective juror No. 2134’s statement, however, the trial court asked the prospective juror if he could presume defendant innocent or if he had already decided he was guilty. The prospective juror responded that he could presume defendant innocent. The trial court followed up, asking prospective juror No. 2134 if he would find defendant not guilty if the prosecutor failed to prove his case. The prospective juror said he would. Thus, the other prospective jurors on the panel heard that prospective juror No. 2134, notwithstanding his apparent pro-prosecution bias, would presume that defendant was innocent and would find him not guilty if the prosecutor failed to prove his case.

The trial court also told the jury panel it did not matter “how [defendant] got here or why he got here”—i.e., whether the prosecutor believed he had a strong case—defendant was presumed innocent and the only thing that mattered was whether the prosecutor presented evidence that proved defendant’s guilt beyond a reasonable doubt. Finally, prospective juror No. 2134 did not serve on the jury, having been excused by defendant through a peremptory challenge.

Given the nature of the prospective juror’s statements and the trial court’s detailed responses, we conclude the court did not abuse its discretion in denying the motion for a new jury panel.

2. Ineffective Assistance of Counsel

Defendant next contends that defense counsel provided ineffective assistance by failing to move for a mistrial based on the prosecution’s failure to disclose that Castro had been shown defendant and two other suspects at the police station before he identified defendant in the six-pack photographic lineup in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), failing to move to suppress Castro’s identification as the product of a tainted identification procedure, failing to impeach Castro with evidence about the hoodie, and failing to call Gudino as a witness at trial. Defendant has not demonstrated that defense counsel provided ineffective assistance.

a. Standard of Review

“A criminal defendant’s federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

Further, “‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ (Strickland v. Washington (1984) 466 U.S. 668, 697 . . . .)” (People v. Carrasco (2014) 59 Cal.4th 924, 982.)

b. Failure to Move for a Mistrial Based on a

Brady Violation

Defendant contends competent defense counsel would have moved for a mistrial based on the prosecution’s Brady violation in failing to disclose the police station show-up. Because defendant has failed to show a Brady violation, he cannot show that defense counsel’s performance was deficient.

The prosecution’s suppression of evidence that is favorable to an accused, including impeachment evidence, violates the Fourteenth Amendment Due Process Clause if it is material either to issues of guilt or punishment, regardless of the prosecution’s good or bad faith. (Brady, supra, 373 U.S. at p. 87; United States v. Bagley (1985) 473 U.S. 667, 675–676; see also People v. Ochoa (1998) 19 Cal.4th 353, 473.) Evidence is favorable to a defendant if the defense could use it either to impeach the prosecution’s witnesses or to exculpate the defendant. (United States v. Bagley, supra, 473 U.S. at p. 676; People v. Ochoa, supra, 19 Cal.4th at p. 473.) Evidence is material “‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ [Citation.]” (Kyles v. Whitley (1995) 514 U.S. 419, 433–434.) “A ‘reasonable probability’ is one sufficient to ‘undermine[ ] confidence in the outcome.’ (United States v. Bagley, supra, 473 U.S. at p. 678.)” (People v. Ochoa, supra, 19 Cal.4th at p. 473.) It is the defendant’s burden on appeal to show a reasonable probability—not merely a reasonable possibility—of a different result. (Strickler v. Greene (1999) 527 U.S. 263, 291; People v. Hoyos (2007) 41 Cal.4th 872, 922 [“‘The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’ [Citation.]”], overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919–920 and People v. McKinnon (2011) 52 Cal.4th 610, 637–643.)

Brady “is a disclosure rule, not a discovery rule.” (United States v. Higgins (7th Cir.1996) 75 F.3d 332, 335.) Brady material must be disclosed in time for its effective use at trial (In re United States v. Coppa (2d Cir. 2001) 267 F.3d 132, 142), but such disclosure need not precede trial (United States v. Higgins, supra, 75 F.3d at p. 335). “If a defendant receives exculpatory evidence ‘in time to make effective use of it,’ a new trial is, in most cases, not warranted.” (United States v. Dean (D.C. Cir. 1995) 55 F.3d 640, 663.)

Defense counsel was not ineffective in failing to move for a mistrial based on an asserted Brady violation. (People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile”].) First, defendant received evidence that Castro had identified defendant in a show-up at the police station before he identified defendant in the six-pack photographic lineup in time for its effective use at trial. (In re United States v. Coppa, supra, 267 F.3d at p. 142; United States v. Dean, supra, 55 F.3d at p. 663.) That is, defendant learned of the evidence while Castro was testifying and thus was able to cross-examine him about it; he learned of it before Detective McKenzie testified and thus was able to cross-examine him about it; and he learned of it before Dr. Pezdek testified and thus was able to examine her about the effect of the show-up on Castro’s six-pack photographic lineup identification.

Second, there was no Brady violation because there is no reasonable probability that, had defendant earlier received information of the police station show-up, the result would have been different. (Kyles v. Whitley, supra, 514 U.S. at pp. 433–434.) Defendant never articulates what he would have done differently if he had earlier disclosure of the stationhouse show-up, much less how this unarticulated different course of action is reasonably likely to have generated a better result. Moreover, even though the prosecution did not disclose that Castro had observed defendant and others at a show-up at the police station before trial, Dr. Pezdek still had sufficient time to consider its impact on Castro’s subsequent six-pack photographic lineup identification and undermine that identification through her testimony about “suggestive pre-exposure.” Apart from Castro’s identification of defendant as the shooter, the prosecution had Lara’s much stronger identification—Lara having spent time with defendant on the porch prior to the shooting whereas Castro saw the shooter only briefly and in profile under the stressful circumstances of the shooting.

Third, “the appellate record does not eliminate the possibility that counsel’s omission was tactical.” (People v. Montiel (1993) 5 Cal.4th 877, 914, disapproved on another ground by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) The record does not include a declaration from defendant’s trial attorney (who was not the attorney that filed the new trial motion), so we have little insight into trial counsel’s strategy. Defense counsel may have decided not to move for a mistrial having concluded it was a better tactic to keep the late disclosure issue to argue to the jury—as counsel did in closing argument—that the police had conducted a flawed investigation which resulted in surprise to the defense and raised a reasonable doubt as to the accuracy of Castro’s identification. “Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, it would be a rare case in which the merits of a mistrial motion were so clear that counsel’s failure to make the motion would amount to ineffective assistance.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) Thus, defendant’s ineffective assistance of counsel contention fails.

c. Failure to Move to Suppress Castro’s Identification

Defendant contends that competent counsel would have moved to suppress Castro’s pretrial identification of defendant because “the impermissibly suggestive pretrial identification was the primary evidence linking [defendant] to the crime.” “‘“In deciding whether an extrajudicial identification is so unreliable as to violate a defendant’s right to due process, the court must ascertain (1) ‘whether the identification procedure was unduly suggestive and unnecessary,’ and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances.”’ [Citation.] ‘The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.’” (People v. Gonzalez (2006) 38 Cal.4th 932, 942.) “[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa, supra, 19 Cal.4th at p. 413.)

As discussed above, Castro identified defendant twice before trial: first, at a live show-up and second, in a six-pack photographic lineup. Defendant has not articulated which of these two identifications counsel should have moved to suppress as impermissibly suggestive or why either was impermissibly suggestive. Assuming that defendant’s argument is that counsel should have moved to suppress both, we cannot say on this record, which does not include a statement from defense counsel explaining why he did not make this motion, that counsel’s performance fell below the standard of reasonableness. That, of course, is fatal to an ineffective assistance of counsel claim raised on direct appeal. (People v. Mai, supra, 57 Cal.4th at p. 1009.)

As for the show-up, after Castro stated that he would be able to identify the shooter, he was asked to view three people, each of whom had been at the house moments after the shooting. At least on this record, we cannot conclude that the procedure was unduly suggestive. (See e.g., People v. Johnson (1989) 210 Cal.App.3d 316, 323 [concluding a single person show-up at police station not unduly suggestive].)

As for the photographic lineup, there is no indication that the nature of the photo array was suggestive in identifying defendant as the shooter. For instance, defendant does not complain that his photograph was so distinctive that it “stood out” from the other photographs. (People v. Carlos (2006) 138 Cal.App.4th 907, 912.) To the extent that defendant argues the timing of the identification procedures was unduly suggestive, that is, showing Castro a photographic line-up that included a photograph of defendant shortly after Castro identified defendant in a show-up, counsel may have reasonably concluded that the likelihood of success on such a motion was outweighed by the minimal benefit from the motion. Castro’s six-pack identification of defendant as the shooter was no more probative of defendant’s identity as the shooter than Castro’s show-up identification.

d. Failure to Impeach Castro With Hoodie Evidence

Castro testified that the shooter was wearing a black hooded sweatshirt with no writing or design on it. The black hooded sweatshirt Detective McKenzie found in Mata’s house had large lettering on the front stating, “Venice Beach California.” Defendant argues, “The hoodie found by the police could not have been the hoodie worn by [the] shooter. Counsel failed to introduce the hoodie so as to impeach Castro with the fact of the writing or to bring up the discrepancy to the jury. A reasonably competent attorney would have done at least one if not both. Had counsel developed the fact that the hoodie had writing it would not only have impeached Castro’s powers of observation but more importantly would have negated the inference that the shooter was one of the four suspects who entered the house.”

Assuming competent counsel would have introduced the black hooded sweatshirt to show the jury the sweatshirt did not match Castro’s description of the shooter’s black hoodie, any failure to do so was not prejudicial. Castro testified he saw the shooter in profile—from a side view—under stressful conditions which might account for a less than accurate description of the sweatshirt. More importantly, the exculpatory value of the sweatshirt was slight compared to the incriminating value of Lara’s eyewitness identification. Accordingly, defendant’s ineffective assistance of counsel argument fails. (People v. Carrasco, supra, 59 Cal.4th at p. 982.)

e. Failure to Call Gudino as a Witness

In an interview prior to trial, Gudino apparently told the police that when Escandon’s car slowed on 50th Street he—Gudino—saw four Hispanic people on the porch and two Hispanic people on the sidewalk. Defendant claims defense counsel was incompetent for failing to call Gudino as a witness at trial because if Gudino testified consistent with his police statement, his testimony would have “instantly expanded the universe of suspects” and prevented the prosecutor from arguing there were only four suspects on the porch.

The standard for demonstrating prejudice necessary to prevail on an ineffective assistance of counsel claim is whether there is “a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai, supra, 57 Cal.4th at p. 1009.) It is not reasonably probable that the outcome of defendant’s trial would have been different if defense counsel had introduced Gudino’s testimony that he saw four Hispanic people on the porch and two on the sidewalk. First, such testimony was consistent with Lara’s testimony that four people (Lara, Mata, Gonzalez, and defendant) were on the porch immediately before the shooting. Second, to the extent Gudino identified all six people as Hispanic, such testimony would have been impeached by the undisputed evidence that defendant, who is African-American, was present during the shooting. Thus, defendant’s ineffective assistance claim fails. (People v. Carrasco, supra, 59 Cal.4th at p. 982.)

3. New Trial Motion

After defendant’s trial, a defense investigator interviewed Lara and Castro. Based on those interviews, the defense prepared declarations that Lara and Castro signed. Lara signed a declaration recanting his trial testimony identifying defendant as the shooter. Castro signed a declaration explaining that he identified defendant because defendant was the only suspect in the police station show-up wearing blue jeans.

Defendant contends the trial court abused its discretion when it denied his new trial motion. He argues the trial court erred when it disbelieved Lara’s declaration recanting his testimony and when it believed Castro’s explanation that he identified defendant because he was the only suspect in the police station show-up wearing blue jeans, but found that his clarified testimony would not have rendered a different result probable on a retrial; and that other miscellaneous evidence supported the motion. The trial court acted within its discretion in denying defendant’s new trial motion.

a. Standard of Review

“‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)

b. Analysis

Pursuant to section 1181, subdivision (8), a trial court may grant a new trial “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” “In ruling on a motion for a new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]” (Delgado, supra, 5 Cal.4th at p. 328.)

“[A] different result is probable on retrial of the case if [defendant] has established that it is probable that at least one juror would have voted to find him not guilty had the new evidence been presented.” (People v. Soojian (2010) 190 Cal.App.4th 491, 521.) “‘[T]he trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.’ [Citation.]” (Delgado, supra, 5 Cal.4th at p. 329.)

“The role of the trial court in deciding a motion for [a] new trial based upon a witness’s recantation is to determine whether the new evidence is credible, i.e., worthy of belief by the jury. That determination is made after a consideration of all the facts pertinent to the particular issue. The trial court is not the final arbiter of the truth or falsity of the new evidence. [¶] Once the trial court has found the recantation to be believable, it must then decide whether consideration of the recantation would render a different result on retrial reasonably probable. [Citation.]” (People v. Minnick (1989) 214 Cal.App.3d 1478, 1482.)

“It has long been recognized that ‘the offer of a witness, after trial, to retract his sworn testimony is to be viewed with suspicion.’ (In re Weber (1974) 11 Cal.3d 703, 722 . . . ; see also People v. Minnick[, supra,] 214 Cal.App.3d [at p.] 1481 . . . ; People v. McGaughran (1961) 197 Cal.App.2d 6, 17 . . . [‘It has been repeatedly held that where a witness who has testified at a trial makes an affidavit that such testimony is false, little credence ordinarily can be placed in the affidavit . . .’].)” (In re Roberts (2003) 29 Cal.4th 726, 742.) Our Supreme Court “routinely view[s] recantations with suspicion.” (In re Hall (1981) 30 Cal.3d 408, 418.)

i. Lara’s recanted identification

In his declaration in support of defendant’s new trial motion, Lara stated, “I knowingly committed perjury (meaning that I testified falsely) when I testified . . . that I witnessed [defendant] with a firearm and shoot at a car that was passing in front of Noe Mata’s home the evening of December 9, 2014.” According to Lara, he and others had been smoking a marijuana cigarette when a black car drove past and he heard several gunshots. He, Mata, Gonzalez, and defendant got down on the ground, then got up and entered Mata’s house. Lara went into the bathroom to check whether he had been shot. A Hispanic male in his mid-20’s who had joined them outside did not enter Mata’s house.

Lara stated that the police arrived and surrounded the house. They handcuffed Lara and took him to the police station and placed him in a holding cell. Later, he was taken to another room with a large window and ordered to put a sweater over his head, simulating a hoodie. Lara was afraid someone was going to identify him as being involved in the shooting.

Lara further explained that Detectives McKenzie and Arciniega led him from the room with the large window back to the holding cell. On the way to the holding cell, both detectives told Lara that if he did not identify defendant as the shooter, he would spend the rest of his life in jail.

Lara stated that when Detectives McKenzie and Arciniega later showed him a six-pack photographic lineup, Lara identified defendant as the shooter. He circled defendant’s photograph because the detectives told him to and he did not want to spend the rest of his life in jail for a crime he did not commit. Lara lied when he told the detectives that he saw defendant holding a gun and shooting at the car. He lied on the witness stand because he was “scared and wanted to save [him]self.”

The trial court found Lara’s recantation not credible, stating: “As I will explain in detail, I do not believe Mr. Lara’s recantation . . . . [¶] The theory of the defense at trial was that Adrian Lara is a liar. In closing argument [defense counsel] outlined the six different statements that Mr. Lara made. The theory of the current motion is, believe him now. I don’t.

“First of all I give the greatest weight to the testimony that the jury could see and hear and evaluate Adrian Lara’s credibility for themselves. It is impossible to judge credibility from written declarations. Mr. Lara’s declaration is merely [Gary] Cooper’s[ ] summary of Lara’s recorded statements. I listened to the recorded statements that Lara made to Cooper and read the transcript. The declaration in many instances does not accurately reflect what the witness said. The declaration, in one sentence, says that the detectives were walking Mr. Lara to the holding cell and told him that if he did not identify [defendant] as the shooter he would spend the rest of his life in jail. In the recording/transcript, the subject takes 3 and a half minutes and about 5 pages of transcript.

“It is easy to tell this statement is not true. First of all the subject is raised by Cooper, not Lara. Cooper, page 38, ‘Did any—any of the—the D.A.—I mean I hate to even ask this. But did the D.A. or the detective or anybody try to get you to say something that you didn’t want to say?’ Then Lara tells several different versions of what happened. First it was the detectives and D.A. [Luke] Sisak in the courthouse. Then just the detectives in the courthouse. Then the detectives at the station in one place and finally the detectives on the way to the holding cell. As with many of Lara’s other statements, this is his attempt to get out from under this case.”

After identifying “many places” in his statement where Lara contradicted himself, the trial court stated, “Lara’s voice changes when he is lying. When he is describing the events he observed on the night of the shooting he seems very calm and matter of fact. Then there are times when he stammers and stutters and is clearly making it up as he goes along.” The trial court then gave examples of perceived lies in Lara’s statement to Cooper.

Next, the trial court rejected defendant’s argument that Lara’s testimony on cross examination corroborated his declaration. The trial court identified the proffered corroborating testimony: “Question: And they start talking to you about what they’re going to talk to you about. They ask you a few questions about what happened and what’s going to happen at this point; correct? Answer: They’re just telling me what happened. This is the basis for the oral argument that the police ‘shoved it down his throat’ and the written argument that counsel was ineffective for failing to follow up on this allegedly amazing statement and failing to emphasize it in argument.”

The trial court found, “The fact is that Lara is just using the word ‘told’ to mean ‘asked’. . . . Lara’s testimony itself makes clear that ‘told’ means asked. On page 1251, ‘[Defense counsel]: And they asked you about a gun. And you tell them that you couldn’t really see it because it was too dark. Do you remember that? Lara: No. The [sic] never told me that. [Defense counsel]: You never said that? Lara: They never told me. They never told me if (emphasis mine) I ever seen a gun. They never told me.’ Lara uses the phrase ‘They never told me if . . .’ several times in his testimony and in his taped conversation with defense investigator Cooper. It is clear from the words themselves and their context that he is saying they never ‘asked’ me, if he had a gun.”

The trial court continued, “In the same part of his testimony Lara uses ‘told’ when referring to the defense investigator. At page 1257, line 25 Question: You didn’t remember telling him (the defense investigator) there were two other men, and you didn’t know these people by name or by sight? Do you remember that? Answer: No. He never told me about 2 other men.’ This clearly means he never ‘asked’ me about 2 other men.” The trial court then identified additional instances where it believed Lara had used “told” instead of “asked.”

Next, the trial court stated that Lara had a motive to lie as he was “afraid of being a snitch and being retaliated against. Alternate Public Defender investigator Hunter told him that the case was gang related. The deputies in the jail told him not to tell any of the inmates he was in jail as a witness because he would be killed. The lawyer that he went to told him he was a snitch. He thought he was done when the case was over. Now that someone is asking questions again. During interview, investigator Cooper asks him if he is saying now that he never saw the defendant with a gun and never saw him shooting. Lara’s answer, ‘No, never saw him with nothing. Just like I told you, I just wanted to—wanted to get my name clear of this, that I never been through it.’ He . . . desperately wanted to get out from under this case then, and he still does. He makes similar statements four other times during the interview. Saying he lied at trial is his way of doing it.”

The trial court did not manifestly and unmistakably abuse its discretion when it denied defendant’s new trial motion based on Lara’s recantation. (Delgado, supra, 5 Cal.4th at p. 328.) The court reviewed Lara’s declaration, the transcript of Lara’s interview with Cooper, and the audio recording of that interview. It then analyzed, in detail, the credibility of Lara’s recantation. The court found several instances where Lara contradicted himself. It also compared the manner in which Lara testified in court and how he stammered and stuttered when he appeared to make things up when speaking with Cooper. It found that Lara had a motive to lie. The court’s finding that Lara’s recantation was not credible was well supported and the court thus did not abuse its discretion when it denied defendant’s new trial motion.

ii. Castro’s clarified testimony

In a declaration in support of defendant’s new trial motion, Castro stated that as he and his companions drove on 50th Street, he saw a man wearing blue Levis and a black hooded sweatshirt with the hood up exit the front gate of a large white house. The man walked with a normal gait and did not display a limp. The man drew and cocked a pistol. The window next to Castro shattered, and he ducked down. Escandon sped away. Castro did not recall hearing any additional shots.

Castro stated that the police came to his house that night. He described the shooter as a male wearing blue Levis and a black hooded sweatshirt with the hood up. He was unable to determine the shooter’s race, height, or weight.

According to Castro, he was taken to the police station where he was shown four suspects in custody for the shooting. He looked at the suspects one at a time and identified one as the shooter. A short time later, Castro was shown a six-pack photographic lineup. He circled the man he believed was the shooter. He later told the police he identified the suspect because he was wearing blue Levis.

In a subsequent declaration, Castro sought to clarify his prior declaration. He explained, “My selection of the photograph from the photographic six pack array was not based [on] my recognizing the man’s face from the scene of the shooting. I selected the photograph not because I recognized him to be the shooter but because of a prior event that occurred at the Newton police station.

“At the police station, prior to my selecting the photograph, I was asked to look at three or four individuals who detectives Arciniega and McKinzie [sic] said were in custody related to the shooting. Only one of the men was wearing blue Levi[s] pants, which reminded me of the pants that I saw the shooter wearing.

“When looking at the six pack photographs I selected the same man who I recognized as one of the three or four men detective Arciniega had me look at shortly before. The man whose photograph I selected was the same man I had just seen wearing blue Levis. I selected this photograph not because he was the shooter, but because he was the only person of the three or four men Arciniega had me look at that was wearing blue Levis.”

Castro also sought to clarify his preliminary hearing testimony. At the preliminary hearing, the prosecutor asked why Castro had circled defendant’s photograph. Castro responded, “‘Because I recognized that individual.’” The prosecutor asked, “‘And was that in fact the person who did the shooting?’” Castro responded, “‘Yes, sir, because they brought him in the station.’”

Castro was not asked to clarify his answers. He explained, “I circled the photograph because I recognized the individual as one of the men who police told me they had brought into the station for questioning for the shooting. I was asked to look at the three men police brought to the station and the man whose photograph I circled was one of those men. I did not mean to imply that the man’s [sic] whose photograph I circled was the shooter.”

In denying the new trial motion, the trial court observed that Castro’s statement that his identification was based on clothing “is probably true.” It concluded, however, that this “newly discovered evidence” did not render a different result probable on a retrial. The court explained: “Both the photo and in court identifications might have been suppressed if Mr. Castro testified consistently with his declaration. However this would leave the case in substantially the same posture as when it went to the jury. His identification was clearly the weakest part of the People’s case.”

The trial court did not manifestly and unmistakably abuse its discretion when it denied defendant’s new trial motion based on Castro’s clarified testimony. (Delgado, supra, 5 Cal.4th at p. 328.) In light of Lara’s strong identification, the exclusion of Castro’s identifications would not render a different result on retrial probable.

iii. Miscellaneous other evidence

Defendant next lists various items of evidence, which, according to defendant, “when viewed together is sufficient to undermine confidence in the outcome of the trial and to indicate that a miscarriage of justice may well have occurred.” For instance, defendant argues that defense counsel should have introduced testimony from Gudino and another witness, Edgar Mendoza, that there were other Hispanic males on the porch in addition to Lara, Mata, Gonzalez and defendant; evidence that the black hooded sweatshirt found in Mata’s house had large writing on it; evidence that defendant has a limp; and evidence that the shooting was gang-related and shots were fired from Escandon’s car.

In support of his new trial motion, defendant presented numerous declarations and medical records supporting his claim that he has a limp. Defendant contends that evidence would have shown that he could not have “demonstrated the physical prowess attributed to him by Lara.”

The trial court rejected defendant’s contention. It stated, “In his motion [for Pitchess discovery], [defendant] declares under penalty of perjury: ‘Defendant was playing football with friends when suddenly defendant heard gunshots defendant in fear of life ran into a house with several of his friends to escape being shot.’ (emphasis added) [¶] I am sure the defendant has something wrong with his leg. He can walk fast and run when he wants or needs to. Saying he cannot is a lie.”

The introduction of evidence that defendant has a limp would not render a different result on retrial probable, particularly in light of defendant’s sworn statement that he “ran into the house” when he heard the gunshots. Accordingly, the trial court did not manifestly and unmistakably abuse its discretion when it denied defendant’s new trial motion based on evidence that defendant has a limp. (Delgado, supra, 5 Cal.4th at p. 328.)

Finally, defendant contends “[n]ot only was there admitted evidence of gang activity on the part of the victims, but on the part of Lara, a logical suspect who had initially been arrested for murder.” Defendant reasons, “The gang related nature of the incident was, therefore, exculpatory as to [him] and potentially incriminating to Lara, who was also a [suspect,] and also to others at the location. [¶] Furthermore, if counsel had developed that the gunfire was gang related and initiated by people in the car [defendant] would have been entitled to a voluntary manslaughter instruction based on the theory of heat of passion or sudden quarrel.”

The trial court disagreed. It ruled, “[Defense counsel] worked very hard to keep gang evidence out of the case. This was clearly the right thing to do. Anyone who has ever tried a criminal case knows how prejudicial gang evidence is. The idea that [defense counsel] should have put it on to prove that the defendant could not be guilty because he is not in a gang is nonsense.”

There was no evidence of a gang motive for this shooting. Accordingly, the trial court did not manifestly and unmistakably abuse its discretion when it denied defendant’s new trial motion based on gang-related evidence. (Delgado, supra, 5 Cal.4th at p. 328.)

4. Prosecutorial Misconduct

Defendant’s principal briefs in this appeal did not contend the prosecutor threatened Lara and Castro with prosecution for perjury and thereby engaged in misconduct. At the invitation of our dissenting colleague, however, defendant filed a supplemental brief asserting just that theory of misconduct, which defendant argued was prejudicial. Not as to Castro, of course, because defendant concedes that “[s]ince the [trial] court believed what Castro said in his declaration, there is no obvious prejudice from the fact that he [Castro] was dissuaded from testifying.” But as to Lara, defendant asserts he suffered prejudice “because, if Lara had not been dissuaded, the court may have believed Lara’s in court recantation and granted the motion for new trial.”

We do not hold the prosecutor committed misconduct. (See e.g. United States v. Vavages (9th Cir. 1998) 151 F.3d 1185, 1189 [“perjury warnings are not improper per se and . . . ‘the Sixth Amendment is not implicated every time a prosecutor or trial court offers advice regarding the penalties of perjury’”].) But assuming for the sake of argument that there was misconduct, defendant was not prejudiced.

a. Background

In his declaration in support of defendant’s new trial motion, Lara declared that he committed perjury when he identified defendant as the shooter. According to Lara, he acceded to threats by police detectives that he would spend the rest of his life in jail if he did not identify defendant.

In his discussion with Lara, the prosecutor asked him if he knew what the word “perjury” means. Lara said he did. The prosecutor told him it was a crime to lie under oath.

In his declaration in support of defendant’s new trial motion, Castro stated that he identified defendant as the shooter based on defendant’s clothes and not his face.

In his discussion with the prosecutor, Castro said that Cooper had “twist[ed]” his words. Castro told the prosecutor that defendant was the shooter. The prosecutor said to Castro: “[W]e’ll put you back on the stand and both lawyers will ask you what happened; right? And you just testify the truth. Because what’s in there, if—if—if you basically testified to what’s on this piece of paper, you could theoretically end up in trouble because it’s con—not the same as what you said the first time.”

On June 16, 2017, Castro and Lara appeared at the hearing on the motion for new trial. Both were represented by counsel. Defendant’s counsel represented that he believed both witnesses would assert their Fifth Amendment privilege against self-incrimination and further stated that “we have an area of agreement here between the prosecution and the defense that the matters that have been submitted to the court thus far: our written motion, the recordings of the various witnesses that the prosecution has submitted are the basis of what we would like the court to decide on. [¶] And that—and that—really there’s—there’s the witnesses that the court wants to hear from, we anticipate they’re going to make a Fifth Amendment claim, and so there would be no testimony. Doesn’t look like there’s going to be testimony. [¶] So we’re content to submit on our voluminous hard-worked and we believe exceptionally thorough filing.”

b. Analysis

A defendant “has a constitutional right to present a defense, which includes calling witnesses in his favor and testifying on his own behalf. (U.S. Const., [amend. VI]; Rock v. Arkansas (1987) 483 U.S. 44, 51 . . . ; People v. Lucas (1995) 12 Cal.4th 415, 444, . . . .) Prosecutors must be sensitive to this right; they are not allowed to engage in conduct that undermines the willingness of a defense witness to take the stand. (People v. Warren (1984) 161 Cal.App.3d 961, 972 . . . .) Such conduct includes making statements to the effect that the witness would be prosecuted for any crime he or she committed in the course of testifying, such as perjury. (In re Martin (1987) 44 Cal.3d 1, 30 . . . .)” (People v. Force (2019) 39 Cal.App.5th 506, 514.) We review such misconduct for prejudice under the harmless beyond a reasonable doubt standard which requires the prosecution “‘“to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” [Citation.]” (Id. at p. 517 & fn. 4.) We review the denial of a motion for new trial for abuse of discretion. (Delgado, supra, 5 Cal.4th at p. 328.)

Assuming the prosecutor dissuaded Castro and Lara from testifying at the new trial motion, there was no prejudice. As defendant concedes, because the court accepted as true Castro’s declaration testimony, there was no prejudice from Castro not testifying at the new trial hearing.

As for Lara, the trial court stated that it gave “the greatest weight to the testimony that the jury could see and hear and evaluate Adrian Lara’s credibility for themselves. It is impossible to judge credibility from written declarations.” It then stated that in addition to reading Lara’s declaration, it listened to the recorded statements Lara made to Cooper and read the transcript of those statements. Thus, it had the opportunity to judge the credibility of Lara’s statements to Cooper.

Finally, while defendant now argues on appeal that “[t]he instant case was clearly such a case that cried out for a grant of immunity[,]” at the time of the hearing, far from discussing any granting of immunity to Castro and Lara, defendant agreed to proceed with the hearing based on the pleadings, which included Castro’s and Lara’s statements. On this record, we conclude that the prosecutor’s misconduct, if any, was harmless, and the court did not abuse its discretion by refusing to grant a new trial on the ground of prosecutorial misconduct.

5. Pitchess Motion

Defendant requests that we independently review the sealed transcript of the in camera Pitchess hearing concerning Detectives McKenzie and Arciniega to determine whether there was discoverable material that was not disclosed. The Attorney General does not object.

After trial, defendant filed a Pitchess motion for discovery of personnel information for Detectives McKenzie and Arciniega concerning the denial of medical attention, excessive force, fabrication of charges and/or evidence, and coercion (dishonesty). The trial court found good cause to review the officers’ personnel files for acts of dishonesty. In camera with the Los Angeles Police Department’s custodian of records, the court reviewed records relevant to its good cause determination and found there was discoverable information.

In response to defendant’s request, we independently reviewed the sealed transcript of the trial court’s in camera hearing on defendant’s Pitchess motion. Based on that review, we conclude that the court did not abuse its discretion in ruling on the Pitchess motion following the in camera hearing.

6. A Brief Response to the Dissent

Citing, among other things, general nationwide exoneration studies and Voltaire’s observation that “‘[i]t is better to risk saving a guilty man than to condemn an innocent one,’” our dissenting colleague would reverse defendant’s convictions on grounds of claimed Brady error (the disclosure of the stationhouse show-ups that the defense learned of during trial) and prosecutorial misconduct (the interviews of Castro and Lara by the prosecutor after trial). The dissent characterizes these as a “‘perfect storm’” of errors.

The dissent’s framing may illuminate why our view of the record and our understanding of applicable law diverges in many respects. For example, the dissent states “both Lara and Castro testified that it was McKenzie himself who escorted them to the [stationhouse] show-ups.” (Dissent, pp. 5–6) But as the dissent notes, when Castro was asked whether it was Detective McKenzie or “other detectives who actually brought the people past you in the room[,]” Castro stated, “It was other detectives.” Further, when asked whether Detective McKenzie was with him during the show-up, Castro answered, “No. It’s another detective.” As for Lara, he testified unnamed “officers” took him from his cell to the show-up room, then back to his cell, and then into a small interview room where he was interviewed by Detective McKenzie. Lara did not suggest on direct examination that McKenzie participated in the show-up. On cross-examination, the questioning was muddled and can indeed be read to suggest Lara believed Detective McKenzie was among the “officers” who took him to the show-up room. But the record can also be read, and seems best read, to indicate Lara was referring to McKenzie as the person who escorted him to the interview room, which was over an hour after he had been escorted to the show-up.

As another example, the dissent concludes that if Castro had been shown two people wearing blue jeans, the circumstances of his identification would have been “dramatically different.” (Dissent, p. 25, fn. 12.) But at the preliminary hearing, Castro described the shooter’s jeans as “[b]lue, black, dark jeans” and in his post-trial interview with the defense investigator, Castro reiterated that the shooter’s jeans were “dark.” Gonzalez’s jeans are visible in the recording of his stationhouse interview on the night of the shooting, which was disclosed to the defense in discovery, and his jeans are light in color, not dark.

As a third example, the dissent applies what it describes as a test for Brady error in the case of “‘total nondisclosure’” of potentially exculpatory information. But the defense here learned of the information—the existence of the stationhouse show-ups—during trial and at a time when the defense could still make use of the information revealed, which the defense did. The dissent’s claim that a “‘total nondisclosure” test applies in these circumstances is belied by applicable authority. (See, e.g., People v. Verdugo (2010) 50 Cal.4th 263, 281; People v. Wright (1985) 39 Cal.3d 576, 591.)

Without cataloging all of our differences of opinion, we note that there is no adequate basis to overturn the jury’s finding of guilt when applying settled law to the record we have. The stationhouse show-ups should have been disclosed earlier than they were. But timely disclosure is not the sole touchstone of Brady analysis and there is no good answer from defendant or the dissent as to how the defense could have presented a meaningfully better case if there had been earlier disclosure. In addition, the prosecution should have taken greater care to speak to witnesses in a more formal setting and to avoid an accusation that a warning was actually a coercive threat. But that does not mean a threat was made or a new trial would have been ordered had there been post-trial direct and cross-examination of Castro or Lara instead of the court simply accepting their defense-investigator-prepared declarations.

B. Issues Related to Sentencing

1. Senate Bill No. 620

Defendant contends we must remand so that the trial court may exercise its discretion whether to strike the section 12022.53, subdivision (d) firearm enhancements pursuant to section 12022.53, subdivision (h). Subdivision (h) of section 12022.53 became effective January 1, 2018, pursuant to Senate Bill No. 620. (Stats. 2017, ch. 682, § 2.) Prior to Senate Bill No. 620, a trial court lacked discretion to strike or dismiss a firearm enhancement pursuant to section 12022.53. (People v. Chavez (2018) 22 Cal.App.5th 663, 708; People v. Arredondo (2018) 21 Cal.App.5th 493, 506.) The Attorney General concedes that Senate Bill No. 620 applies retroactively to defendant and that a remand is appropriate so that the trial court can consider whether to strike the firearm enhancements. We agree.

2. Ability to Pay Fine and Assessments

At defendant’s sentencing hearing, the trial court imposed a $300 victim restitution fine (§ 1202.4, subd. (b)), a $120 criminal conviction assessment (Gov. Code, § 70373), and a $160 court operations assessment (§ 1465.8, subd. (a)(1)). Defendant did not request a hearing to determine whether he was able to pay that fine and those assessments.

Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the trial court erred in ordering him to pay a restitution fund fine and criminal conviction and court operations assessments without conducting a hearing on his ability to pay. He contends that we should stay the restitution fund fine until the People prove he has a present ability to pay and vacate the assessments. The Attorney General argues, among other things, that defendant has forfeited this issue by failing to object to the imposition of the fine and assessments without an ability to pay hearing.

“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) This forfeiture doctrine applies where a defendant fails to object to the imposition of fines and fees at sentencing. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.)

According to the probation report, defendant’s employment status and financial status were unknown. However, at the time of sentencing, defendant was 29 years old, and the trial court sentenced him to 72 years to life in prison, a term that should allow him to earn sufficient wages to satisfy his fine and assessments. Based on these particular facts, any error in failing to hold an ability to pay hearing was harmless beyond a reasonable doubt. (People v. Johnson (2019) 35 Cal.App.5th 134, 139–140.)

IV. DISPOSITION

The judgment is affirmed and matter is remanded to the trial court to allow it to exercise its discretion whether to strike the section 12022.53, subdivision (d) firearm enhancements pursuant to section 12022.53, subdivision (h).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

I concur:

BAKER, J.
People v. Justin Charles Cato – B286145

RUBIN, P. J. – Dissenting:

This case presents in stark reality the dilemma of harmless error: Does application of the rule mask a fundamentally unfair trial, or does it fulfill the constitutional mandate that a judgment may not be reversed unless there has been a miscarriage of justice? (Cal. Const., art. VI, § 13.) The majority concludes errors even of the magnitude of withholding of Brady evidence and prosecutorial misconduct—one acknowledged by the trial court and the other assumed by the majority—are harmless. I see a far different picture: a trial so flawed by the wrongful conduct of police and prosecutor that a defendant was deprived of his right to a fair trial. To me, considering seriously tainted eyewitness identifications (some of which the trial court doubted), the related prosecutorial misconduct, the lack of any other evidence tying appellant to the crimes, and the absence of any apparent motive for appellant to have killed the victim or shot at the vehicle— the prejudice caused by the improprieties at trial are apparent.

I begin my dissent with a detailed discussion of the facts of this case which, in my mind, has complexities not fully touched upon in the court’s majority opinion.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Shooting of Jonte Reed
2.
Noe Mata lived with family on 50th Street. Mata told detectives that in late November 2014, a black car drove by his house and shot his uncle who was standing in the front yard.

Two weeks later, on the evening of December 9, 2014, the same car drove past Mata’s house when he was on the porch with his friend Adrian Lara, his cousin Joshua Gonzalez, and an acquaintance—appellant. Mata told police that appellant fired shots at the car to retaliate for the prior shooting.

Mata did not explain why appellant would retaliate for the shooting of Mata’s uncle. According to both appellant and Mata, the two men hardly knew each other. Appellant lived several miles away and was in the neighborhood visiting one of Mata’s neighbors that day when he walked over to Mata’s house to smoke marijuana with the other men out front. According to police records, appellant had no gang affiliation. Yet the investigating detective reported the shooting was “gang-related.” By that, the detective presumably meant a payback killing from two weeks earlier—a drive-by shooting from the same car involved in the present case. This would become significant when the police spoke to the passengers in the car.

The night of the shooting, Luis Escandon, the driver of the car, was accompanied by Victor Gudino, Francisco Castro, and murder victim Reed. Two of the bullets hit Reed, who died shortly after Escandon and the other passengers left him on the porch of an abandoned house. Escandon told the police he and Castro were gang members, and were driving in rival territory when Reed was shot.

Within minutes of the shooting, the police arrived at the crime scene. On the street in front of a residence they found eight bullet casings, all from the same gun. The police transported the three surviving men to the station. Although Escandon and Gudino had reported seeing five or six people in front of the house during the shooting, and one officer’s report reflected that five people were present, only the four men who were in the house when the police arrived (Lara, Mata, Gonzalez and appellant) were taken into custody.

3. The Investigation
4.
At the police station that night, detectives interviewed the three passengers and the four suspects. The driver, Escandon, was a gang member and told the police a rival gang member had shouted at him while he was driving, and so he decided to drive to the rival gang’s “block” on 50th Street. Gudino (a passenger) recalled seeing four people on the porch and two people on the sidewalk. Escandon saw four people on the porch, and a fifth person in the yard. According to Escandon, it was the fifth man—the one standing in the yard—who shot at their car. The third surviving passenger, Castro, did not tell the police in any recorded statement how many people he saw at the crime scene; he recalled seeing a man load a gun and shoot multiple rounds in their direction.

While at the station, Castro was escorted by a detective to a room with a one-way window. He was then shown three of the four suspects one at a time through the window: Lara, Mata, and appellant. The record does not contain an explanation for why Gonzalez was excluded from these live show-ups, but he and appellant were the only suspects wearing blue jeans. After the show-ups, the police showed Castro one 6-pack photo array—the photos were of African-American men, and appellant’s photo was number 5. Castro told police he was “pretty positive” appellant was the shooter, because he “remember[ed] the blue jeans.” The six-pack only showed photographs of individuals’ heads and shoulders; their pants were not visible. As the trial court would later find, Castro appeared to have made a connection between the live show-ups that included appellant in blue jeans and the six-pack identification of appellant.

The detectives also interviewed the four suspects: Lara, Mata, appellant, and Gonzalez. The four men all reported being in front of Mata’s house at the time of the shooting. Lara and Mata had been friends for five years; Gonzalez was Mata’s cousin. Lara and Gonzalez had met appellant for the first time that day. Lara, Gonzalez and Mata all said that appellant was the shooter. They would all claim after trial that police had pressured them into identifying appellant.

Mata also told detectives that appellant handed him the gun to hide after the shooting. Mata could not explain why officers did not find the gun where he hid it. An illegal handgun unrelated to the shooting was found in Mata’s house under a mattress; the murder weapon, however, was never recovered. Mata claimed that the shooting was in retaliation for a recent incident in which someone in the same car had driven by his house and had shot his uncle who had been standing in the yard.

Appellant told detectives that he was outside smoking marijuana with the three other suspects when he heard shots being fired. He ran into the house and dove behind a couch. He did not see who the shooter was.

Appellant was charged with Reed’s murder and the other crimes and enhancements enumerated in the majority’s opinion. He had a single prior conviction: possession of marijuana for sale, and no gang affiliation.

5. The Trial
6.
At trial, the prosecution’s case was based on the eyewitness identifications made by Castro (the passenger) and Lara (an early suspect). None of the other witnesses took the stand.

No gang evidence was introduced at trial even though there was significant gang information the police had uncovered during their investigation. Instead, the prosecution’s theory of the case was that appellant killed Reed “without any reason.” In his opening statement, the prosecutor said Castro “got a good look” at the shooter and identified appellant out of a six-pack of photographs that was prepared according to “the description of the person he [Castro] said did the shooting.” The prosecutor did not mention the live show-ups that immediately preceded the six-pack identification.

The prosecution would proceed on the theory that the evidence established only four people had been present in front of Mata’s house at the time of the shooting—appellant, Lara, Mata and Gonzalez. The prosecution argued in closing that because Castro testified the shooter was African-American, and appellant was the only African-American suspect, appellant had to be the shooter.

The majority opinion has summarized Lara’s, Castro’s, and Detective McKenzie’s testimony. That summary accurately states that, even though not previously disclosed to the defense, McKenzie testified “he first learned some other detective had shown Castro three men during Castro’s trial testimony.” What the court’s opinion does not mention is that both Lara and Castro testified that it was McKenzie himself who escorted them to the show-ups.

Lara testified that he was arrested on the night of the shooting. At the police station, Detective McKenzie and another detective “arrived to talk to [him].” According to Lara, “They take me to, like, a photo room or with big dark glass, like, some stripes in the back of me.” In this room, Lara stood “next to these stripes.” He was there for “less than a minute,” and then the detectives took him to another room.”

Castro also testified that he was taken to the police station on the night of the shooting. When he arrived, Detective McKenzie and another detective talked to him. The prosecutor asked Castro how these detectives asked him to identify the shooter. Castro responded, “They’re bringing in, persons in. I was looking at them through a glass.” Castro later testified that Detective McKenzie took him “to view” three people, walking him “down the hallway past another room” with “a one-way glass mirror.” “Another detective” was with Castro in the room, and “[o]ther detectives [] actually brought the people past” him.

Detective McKenzie, who was present throughout the trial as the investigating officer, testified inconsistently as to whether he knew about the show-ups—first confirming the live show-ups and then denying they had taken place:

“[PROSECUTOR]: You heard [Castro] testify this morning that he had been shown some individuals in person on that night; is that correct? . . .

“[MCKENZIE]: He did.

“[PROSECUTOR]: At the time that you conducted the interview with Mr. Castro, Mr. Castro, were you aware that had been done?

“[MCKENZIE]: Yes.”

The prosecutor then repeated the question. Detective McKenzie changed his answer:

“[MCKENZIE]: No. Oh, no. He had been shown a six-pack. . . .

“[PROSECUTOR]: At the time that you showed him the six-pack, did you know that procedure had been done?

“[MCKENZIE]: No.

“[PROSECUTOR]: In fact, when you heard about it this morning, had you known at any point prior to this morning that that procedure was done?

“[MCKENZIE]: No.”

The latter testimony, if credited, showed that both Lara and Castro were mistaken when they testified that Detective McKenzie escorted them to the show-ups, and Detective McKenzie had, in fact, been kept in the dark about this procedure that involved several police officers. In the alternative, this testimony might have suggested Detective McKenzie was not accurate about not knowing about the show-ups. The trial court in its order denying the new trial motion found the police had conducted live show-ups and the police had failed to disclose this evidence, but the court made no finding on whether Detective McKenzie did or did not participate in the show-ups.

Detective McKenzie also testified that he always records his interviews with suspects at the station, and that he had recorded his interviews with Escandon (the driver) and Gudino (a passenger). Posttrial, it was discovered that no recordings of Detective McKenzie and his partner Richard Arciniega’s interviews with Escandon and Gudino had been turned over to the defense. The prosecutor later explained “we’ve never been able to find” the recording of the interview with Gudino. The prosecutor never addressed the missing recording of Escandon’s interview.

Although the prosecutor had told the jury in his opening statement that the evidence would show the police had assembled a six-pack based on Castro’s “description of the person he said did the shooting,” no evidence of Castro’s description was ever introduced. To the contrary, an excerpt from the detectives’ interview with Castro on the night of shooting showed that the police had already prepared the six-pack when they interviewed Castro. This discrepancy was not pointed out to the jury; rather, the prosecutor continued to claim that Castro had first described the shooter to the police.

In closing, the prosecutor argued, “There is no evidence pointing to anyone else doing the shooting . . . . That is evidence the defense could have brought in if it existed. The fact that it wasn’t presented is because it was the defendant who did the shooting.” (Italics added.) The prosecutor also argued Castro’s identification was reliable based on unspecified “physical evidence” that showed there were only four men on the porch at the time of the shooting: “This isn’t a situation where Mr. Castro picks one person out of the entire universe of people and says, ‘That’s him,’ and we are going with that. The number of possible shooters in this case is four, the four people who were there that day on the porch. We know that because of the physical evidence . . . . If Mr. Castro had said to the police, ‘You know what? The guy had a hoodie on. It was dark. I got only the vaguest impression. I know he was African American, stocky build, and, you know, in his 20s,’ we would still know who the shooter was from that because there are only four possible people.” The prosecutor argued that “nothing untoward happened” to get Lara’s and Castro’s “identifications to happen.”

Trial lasted three full days and two partial days. The jury deliberated over three days. The jury made two substantive requests during its deliberations, each concerning Castro. The jurors first requested Castro’s interview with the police as well as Lara’s interview and testimony. The jury’s last request prior to rendering its verdict was for Castro’s testimony.

The jury found appellant guilty, and the trial court sentenced appellant to 65 years to life, plus a seven-year determinate term.

7. Motion for New Trial
8.
After trial, appellant dismissed his counsel and exercised his right to represent himself. He then obtained pro bono counsel. With new counsel, appellant filed a 150-page motion for new trial with over 1,000 pages of exhibits. He argued the prosecution had withheld favorable evidence in violation of Brady, including the live show-ups at the police station.

The evidence presented in support of the motion painted a different picture of the shooting than the one presented to the jury. Although the prosecution had argued that no evidence “existed” “pointing to anyone else doing the shooting,” and “physical evidence” showed there were only “four possible” suspects, defense counsel now presented the evidence of the fifth suspect who a witness had identified as the shooter.

a. Police Reports
b.
As already observed, there were no recordings of the detectives’ interviews with Gudino and Escandon. However, there was other evidence of these witnesses’ statements about the shooting, including notes the detectives wrote during the interviews contained in the prosecution’s “murder book.”

According to the murder book, on the evening of the shooting, Escandon decided to drive to a rival gang’s “block” on 50th Street with his passengers Gudino, Castro and Reed. When they arrived, both Gudino and Escandon said they saw four people on the porch of Mata’s house, and one or two people near the sidewalk. The guy “outside of the house” saw Gudino and Escandon in the front seat. Castro told Escandon that the person in the yard near the sidewalk shot at them.

A second interview with two other detectives on the night of the shooting had been recorded. In support of the motion for new trial, both parties filed a transcript of that interview. Defense counsel’s version omitted page 5, which recounted Escandon’s statements identifying the fifth man as the shooter. The record does not reveal why page 5 was missing from defense counsel’s copy of the transcript.

c. Posttrial Interviews and Declarations
d.
Both the defense and the prosecution spoke to several witnesses at various times after the trial. The defense submitted posttrial declarations by the key witnesses—including two of the suspects (Mata and Lara) and the passenger Castro—in support of the motion for a new trial. The three suspects who had initially identified appellant as the shooter—Mata, Lara and Gonzalez—all now said the police had pressured them to do so.

Noe Mata. On the night of the shooting, Mata told the detectives that he saw appellant shoot at the car, and appellant had then handed him the gun and “asked him to ‘stash it.’ ” In Mata’s posttrial interview, on the other hand, he told a defense investigator he did not see appellant shoot anyone. He explained that he was scared because the detectives had threatened to “book” him and his cousin (suspect Gonzalez) for murder. When the defense investigator asked whether Mata hid the murder weapon, Mata, who had been crying through part of the interview, refused to answer and terminated the interview.

Adrian Lara. Lara also told the defense investigator that he never saw appellant with a gun, and that the detectives told him he would “spend [his] life in jail” if he failed to identify appellant as the shooter. Lara said a fifth man was present—a tall Hispanic man—during the shooting. The prosecutor also interviewed Lara posttrial. When the prosecutor asked Lara about the night of the shooting, Lara volunteered that it was Mata who had the gun: “I just know Noe Mata from school. . . . He just invited [me] to smoke weed, and then he got a gun, and.” The prosecutor cut Lara off at this point, and did not return to the subject of Mata’s possession of the weapon.

Joshua Gonzalez. In Gonzalez’s declaration, he said he did not see appellant shoot and this was what he initially told the detectives. Gonzalez told the defense investigator detectives interviewed him multiple times. Gonzalez listened to the recording of his interview with the detectives, and then said there had been a prior interview where the detectives told him the shooter “was black” and “they knew [appellant] was the person, that he was the shooter, that people had already said it was him.” The detectives “pointed [appellant] out” and said “they already knew he was the shooter.”

Francisco Castro. In his declaration, Castro stated that, on the night of the shooting, the only description of the suspect he gave to the police was that of “a male wearing blue Levis and a black hooded sweatshirt with the hoodie pulled up over his head.” Castro was unable to determine the “suspect’s race, height or weight.” He later told the police detectives that he identified appellant in the show-up “because he was wearing blue Levis.” This statement was supported by the transcript of Castro’s interview on the night of the shooting: when a detective asked him whether he was “pretty positive that’s him,” Castro responded, “Yes sir. I remember the blue jeans.”

Victor Gudino. One of the passengers, Gudino, also told the investigator that the detectives had pressured him to identify appellant as the shooter. Gudino said he participated in a field show-up near the scene of the shooting but could not identify the shooter. At the station, Detectives McKenzie and Arciniega showed him a six-pack and told him the shooter was a black man from “Compton Crips or Front Hood.” The detectives then pointed to number 5 in the six-pack, said that was the shooter, and asked Gudino to identify him. Gudino refused, and said the men he had seen were Hispanic. Later on, when Gudino was in probation camp, the two detectives came to the camp and repeatedly asked Gudino to come testify against appellant. When
Gudino repeatedly refused, Arciniega “became angry” and the detective left. Gudino had not been contacted by the defense before this posttrial interview.

e. The Prosecutor’s Interviews with Lara and Castro
f.
On August 5, 2016, in support of the motion for new trial, defense counsel filed declarations by Castro, Lara, Gudino and Gonzalez attesting to the facts they had told the defense investigator. Castro and Lara recanted their identification of appellant as the shooter. Three months later, on November 3, 2016, at a status hearing, the trial court told defense counsel and the prosecutor that Castro and Lara needed attorneys and ordered the defense to subpoena the two witnesses to appear at the next hearing on December 16, 2016.

Lara and Castro were subpoenaed. But on December 16 before the hearing began—and before attorneys were appointed to represent the two men—the prosecutor, with district attorney investigators present, interviewed Castro and Lara individually in the courthouse hallway. These interviews occurred outside the presence of the court and defense counsel. The prosecutor recorded these conversations but did not turn the transcripts over to defense counsel until several months later.

In these interviews, the prosecutor questioned the witnesses about their decision to recant their trial testimony, and told them they would be “in trouble” if they testified in accordance with their declarations. The following is an excerpt from the prosecutor’s interview with Lara:

“[PROSECUTOR]: But, essentially, based on what is in that statement [the declaration Lara had provided defense counsel], we’re gonna end up having to ask you some more questions. Right? And you know what the – you know what the word ‘perjury’ means? Right?

“[ADRIAN LARA]: Yeah.

“[PROSECUTOR]: It’s a crime.

“[ADRIAN LARA]: Right.

“[PROSECUTOR]: Like, to lie under oath.

“[ADRIAN LARA]: Yeah, I know.

“[PROSECUTOR]: And in that form, you basically said actually, you did say that you lied under oath at trial.

“[ADRIAN LARA]: Yes, I did my – I got my own self a lawyer. I told – went to the lawyer and tell him why did –[ ]

“[PROSECUTOR]: So you got a –

“[ADRIAN LARA]: And that’s when he told me.

“[PROSECUTOR]: Do you have a lawyer coming today?

“[ADRIAN LARA]: No. I don’t have a lawyer.

“[PROSECUTOR]: Well –

“[ADRIAN LARA]: He said – that guy said he was gonna give me a lawyer.

“[PROSECUTOR]: The judge is gonna appoint you a lawyer. Because we don’t want to see you get yourself in trouble.

“[ADRIAN LARA]: Yeah.”

* * *

“[PROSECUTOR]: All right. Well, let me – I’m gonna ask you point blank right now. Um, because they’re gonna want to – they want to put you up on the stand and have you testify. Now, when you testified the first time, you gave it up.

“[ADRIAN LARA]: Uh-huh.

“[PROSECUTOR]: You told us the truth. You told us, ‘Look, this is the guy who did this.’ Was that true?

“[ADRIAN LARA]: That was not true.

“[PROSECUTOR]: And what you’re saying now is what?

“[ADRIAN LARA]: I did it –

“[PROSECUTOR]: Why did you do that?

“[ADRIAN LARA]: I did it because the cops intimidated me.

“[PROSECUTOR]: I mean, there was times when it was just you and me hanging out.

“[ADRIAN LARA]: Yeah.

“[PROSECUTOR]: Right?

“[ADRIAN LARA]: The cops intimidated me. They put me on the — put me on a big wall, a white wall with straps [sic] in the back.

“[PROSECUTOR]: All right. You said that at trial. All right. But I’m talking about at trial time. I’m not talking about the police station. I’m talking about at trial time.

“[ADRIAN LARA]: I just lied. Cops interrogated me. That guy, whatever is that guy, now he’s a sergeant there.

“[PROSECUTOR]: All right. Well, we’re gonna get you a lawyer to talk to, Adrian. Because, frankly, I don’t believe you. . . . I get the pressure you got. But this – this is not a good way to do this. I’m telling you right now, it’s – it’s, uh, treading a very dangerous road about getting yourself in trouble. But if that’s how you want to play it.”

The prosecutor also spoke to Castro in the courthouse hallway and told him that “if you basically testified [sic] to what’s on this piece of paper, you could theoretically end up in trouble because it’s con – not the same as what you said the first time.” Castro immediately disavowed the declaration he had signed recanting his trial testimony.

After the prosecutor finished interviewing Castro and Lara in the hallway, the court appointed them lawyers. Neither Castro nor Lara would testify at the hearing on the new trial motion. Both invoked their Fifth Amendment rights and were not called to the stand. The trial court, who had asked to hear from both witnesses and who stated that “it is impossible to judge” a witness’s credibility in a declaration without hearing the actual testimony, was then left to assess the new trial motion with only the witnesses’ trial testimony and written declarations recanting that testimony.

Two months later, in February 2017, when the defense first received a transcript of the prosecutor’s hallway interviews, appellant immediately filed a supplemental brief to the new trial motion. (The motion had not been decided.) Appellant argued that the prosecutor had committed misconduct by threatening Lara and Castro with perjury for recanting their testimony at trial. (See People v. Force (2019) 39 Cal.App.5th 506 (Force).)

g. The Denial of Motion for New Trial
h.
The hearing on the new trial motion was held four months later in June 2017. Prior to the hearing, the prosecutor again spoke with Castro in the hallway outside the presence of Castro’s counsel. During the hearing, defense counsel objected, and the prosecutor acknowledged he had talked to Castro but denied discussing anything substantive about the case. The court cautioned the prosecutor not to “do it again,” but did not otherwise address the prosecutor’s prior hallway conversations with the witnesses.

The court told counsel, “I’d like to hear from at least the two main witnesses whose declarations and foundation of this motion—that’s Mr. Lara and Mr. Castro—and then, apparently, there are other witnesses.” Lara’s and Castro’s counsel stated that these witnesses intended to invoke the Fifth Amendment privilege. The trial court informed Lara’s and Castro’s counsel they could leave. No witnesses took the stand, and after argument, the court took the matter under submission.

In August 2017, the trial court denied appellant’s motion for new trial. The trial court’s ruling focused on the Brady violation primarily, and on Lara’s and Castro’s recantations and inconsistencies in Lara’s testimony. As to the prosecutorial misconduct, by implication the trial court denied the motion on that ground.

The trial court found that detectives had substantively violated Brady: “The failure of the police to include in any of the reports, or to tell the prosecution and defense about the in person show up of three people at the station is a Brady violation.”

The court further found that Castro’s “statement that his identification was based on clothing is probably true.” However, the court found the failure to disclose caused no prejudice by concluding there was no reasonable probability the result would have been different because even if Castro’s identification had not come in, “Castro still would have testified about seeing a man with blue jeans approach the car, pull out a gun, pull back the slide and fire it at the car. The officers still would have testified that [appellant] was the only person who came out of the house wearing blue jeans. [] Castro would still have testified that the jeans the appellant was wearing at the station were the same as the ones he saw.”

The court misremembered the testimony—there was no testimony by officers that appellant was the only person who came out of the house wearing blue jeans on the night of the shooting. In fact, police records show that two of the four identified suspects were wearing blue jeans: appellant and Gonzalez. Castro was never shown Gonzalez in the show-ups at the police station; rather, the show-ups were conducted with only appellant, Mata and Lara. Castro also did not testify that the jeans appellant was wearing were “the same as the ones he saw”; he said that appellant was the only suspect in the show-up wearing blue jeans at all. There was no evidence on whether the other persons witnesses Gudino and Escandon identified in the yard wore blue jeans.

In denying the motion for new trial, the trial court also found that Lara’s accusations of police misconduct in pretrial interviews were not credible. The court did not address the credibility of Gudino’s, Mata’s and Gonzalez’s claims that the detectives pressured them to identify appellant.

Appellant timely appealed.

DISCUSSION

Although appellant raises several points on appeal, I focus on two of them—the Brady violation and the prosecutorial misconduct arising out of the courthouse discussions with recanting witnesses Lara and Castro. Appellant raised these issues in his motion for new trial.

An appellate court reviews a trial court’s ruling on a new trial motion for abuse of discretion, and conducts an independent examination of the proceedings to determine whether a miscarriage of justice occurred and the errors denied a fair trial to the party against whom judgment was entered. (People v. Ault (2004) 33 Cal.4th 1250, 1261–1262.) In this review, the appellate court defers to the trial court’s express or implied findings of fact if they are supported by substantial evidence. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) The elements of a Brady claim are also subject to independent review. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)

1. The Brady Violation
2.
Under Brady, the prosecution is prohibited from not disclosing evidence favorable to the accused where the evidence is material either to guilt or punishment. (People v. Salazar, supra, 35 Cal.4th at p. 1042.) “Brady is one of the central bulwarks against injustice in our criminal justice system.” (Gonzalez v. Wong (9th Cir. 2011) 667 F.3d 965, 981.) The Brady rule’s overriding concern is with the justice of the finding of guilt and that the government’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done. (United States v. Bagley (1985) 473 U.S. 667, 678, fn. 6.) “[E]ven though an individual prosecutor may win a conviction, society as a whole loses when that conviction is wrong. Our system, therefore, places a ‘duty [on prosecutors] to refrain from improper methods calculated to produce a wrongful conviction.’ [Citation.] Principal among a prosecutor’s duties is to provide a defendant with all material exculpatory and impeachment evidence prior to trial. This obligation recognizes the significant advantage the state has over an individual defendant in regards to gathering information and seeks to level the playing field. We expect our government to fight fair and not deny a defendant evidence that could exculpate him or ameliorate the penalty he faces. Only by giving a defendant this evidence can the government ensure that ‘justice is done its citizens in the courts.’ (Brady, [supra], 373 U.S. at 87.)” (Gonzalez, at p. 981.)

In that sense, Brady’s rationale supports the command that the justice system must do all it can to avoid convicting a defendant by an unfair trial. Of course, a fair trial is “the most fundamental of all freedoms.” (Estes v. Texas (1965) 381 U.S. 532, 540.) Whether one embraces Voltaire’s famous cry—“It is better to risk saving a guilty man than to condemn an innocent one”—the “justice system must not only strive to convict the guilty but also to acquit the innocent. If it mistakenly convicts the wrong person, it inflicts a grave injustice while leaving the guilty party free to commit more crimes.” (Stephanos Bibas, The Story of Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence?, in Crim. Proc. Stories 129, 138 (Carol Steiker ed. 2006).)

a. The Trial Court Proceedings
b.
I recount some of the relevant events: At trial, the prosecutor argued in opening statement that Castro had described the shooter to the police, and the police had used that description to prepare a six-pack of photos from which Castro identified appellant. Despite these opening assurances, the prosecutor did not present evidence that Castro ever described the shooter to the police.

Instead, Castro testified that Detective McKenzie had escorted him to a room where he was shown three suspects one at a time through a one-way glass, and then Detective McKenzie showed Castro one six-pack of African-American men including appellant’s photo. Lara’s testimony corroborated Castro’s account of the show-ups: Lara testified that Detective McKenzie took him to a room where Lara had to stand in front of a one-way mirror.

The prosecution had not pretrial disclosed these show-ups to the defense, nor did the prosecutor affirmatively disclose this evidence during trial. It was Lara who first mentioned it on direct examination, testifying that Detective McKenzie escorted him to a room where Lara had to stand in front of a one-way mirror. Castro then took the stand and testified Detective McKenzie had taken him to a room with a one-way glass where Castro had been shown three suspects, one at a time. When it was Detective McKenzie’s turn to testify, he eventually denied even knowing about the show-ups. Detective McKenzie initially testified that he was “aware” of the show-ups, but then changed his answer and testified he had not known about the show-ups prior to Castro’s testimony. According to Detective McKenzie it was “uncommon” and a “breakdown in normal procedure” for him—the investigating officer—not to be informed of show-ups.

In closing, the prosecutor reiterated his theory that Castro had described the shooter to the police, and argued that appellant had to be the shooter. According to the prosecutor, no evidence “existed” showing there were more than four people in front of Mata’s house at the time of the shooting. Since appellant was the only African-American, and Castro had described an African-American shooter, “we . . . know who the shooter was from that . . . .”

After trial, appellant, now represented by pro bono attorneys, moved for a new trial arguing that the prosecution’s failure to disclose the show-ups violated Brady. Although the trial court credited Castro’s and Lara’s testimony that the show-ups occurred, the court found the suppression was not prejudicial. The motion was denied.

c. The Three Prongs of a Brady Violation
d.
There are three elements to a Brady violation: “[1.] The evidence at issue must be favorable to the accused, either . . . exculpatory, or . . . impeaching; [2.] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3.] prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281–282.)

Though the majority essentially acknowledges appellant has satisfied Brady’s first two prongs, (Maj. opn., at pp. 20–21) I state the points here for context. First, the evidence of the undisclosed live show-ups that influenced Castro’s identification was favorable to appellant. Second, substantial evidence showed that the live-show-ups were suppressed by the State—the trial court made this finding based on credibility assessments of the witnesses’ testimony at trial.

I part with the majority as to the third prong: whether the suppression was so material it prejudiced appellant. The United States Supreme Court has stated the test of prejudice as follows: “The question is not whether the [appellant] would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ [Citation.]” (Kyles, supra, 514 U.S. at p. 434.)

Two tests have developed for prejudice under Brady depending on whether the prosecution failed to disclose the evidence or just delayed in disclosing the evidence. When there is “total nondisclosure,” the test is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Kyles, supra, 514 U.S. at pp. 433–434.) By contrast, “when considering whether delayed disclosure rather than ‘total nondisclosure’ constitutes a Brady violation, ‘the applicable test is whether defense counsel was “prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant’s case.” ’ [Citations.]” (People v. Mora and Rangel (2018) 5 Cal.5th 442, 467.)

Here, the majority and respondent apply a version of the second test. Relying on three federal cases, the majority and respondent take the position that the applicable test is whether the “defendant receives exculpatory evidence ‘in time to make effective use of it. . . .’ ” (United States v. Dean (D.C. Cir. 1995) 55 F.3d 640, 663; United States v. Higgins (7th Cir. 1996) 75 F.3d 332, 335; In re United States v. Coppa (2d Cir. 2001) 267 F.3d 132, 142.) However, the “delayed disclosure” test applies only when the prosecution actually discloses the evidence, albeit belatedly. (Ibid.) Here, the prosecution never disclosed the show-ups. The information came out instead through two witnesses’ unexpected revelations in the middle of trial. Not only did the prosecution fail to disclose the show-ups, but the prosecutor presented testimony by the investigating officer that suggested no show-ups had taken place.

Because there was no “delayed disclosure,” we must review the prosecution’s failure to disclose under the “total nondisclosure” test. In other words, the question is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. In evaluating this question, we must consider both “the collective significance of the undisclosed evidence” as well as “ ‘the effect of the nondisclosure on defense investigations and trial strategies.’ [Citation.]” (Association of Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40.)

I conclude that there is a reasonable probability that, if the prosecution had disclosed the show-ups, the result at trial would have been different.

e. There Is a Reasonable Probability Appellant Would Not Have Been Convicted If the Show-Ups Had Been Disclosed
f.
Based on the crucial nature of the eyewitness testimony—the only testimony connecting appellant to the murder—and the manner in which the exculpatory evidence was partially revealed midtrial, I conclude there is a reasonable probability the result would have been different if the prosecution had disclosed the show-ups.

Here is what was presented to the jury at trial: The prosecutor told the jury in opening that Castro had described the shooter to the police, the police had prepared a six-pack based on that description, and Castro identified appellant based on his photograph in that six-pack. When Castro took the stand, he testified that prior to being shown the six-pack, Detective McKenzie had escorted him to show-ups with three suspects, including appellant. Castro did not testify that he described the killer to the police. Detective McKenzie then took the stand and tried to impeach Castro: neither he nor his partner knew about any show-up, and not being informed of such procedure would be a total breakdown of police protocol. The prosecutor, in closing, reiterated his initial theory, unsupported by the evidence, that Castro had given a physical description of the shooter to the police that matched appellant.

Here is what the jury never heard: The jury never heard from the police about the circumstances of the live show-ups. What did police officers apparently tell Castro about the show-ups? What did Castro say during the show-ups? What were the circumstances that justified their use? Under one version of events, why did police officers not inform either of the investigating detectives about the show-ups when those detectives were running the interviews at the same time? Why wasn’t Gonzalez (the fourth suspect) shown to Castro at the same time Mata, Lara and appellant were? And, the jury never heard that (1) Castro had told the police that he knew appellant was the shooter because appellant was wearing blue jeans, and (2) Gonzalez was also wearing blue jeans that night but was not part of the live show-ups.

If the prosecution had disclosed the show-ups to the defense prior to trial, the defense could have challenged the prosecution’s opening statement to the jury that the evidence showed Castro had described appellant to the police and then identified a shooter “fitting” that description. Rather, the defense could have told the jury before witnesses were called that Castro was able to identify appellant, a total stranger, in a six-pack because he had been shown appellant moments before at the police station. And that of the three people he saw at the station only one was wearing blue jeans, a fact critical to his identification.

The defense could have also interviewed Castro—he was willing to talk to a defense investigator posttrial—about the show-ups, and it is reasonably probable that he would have told the defense what he told the police the night of the shooting—that he had identified appellant based on the blue jeans (a fact the trial court found true in its new trial ruling). Castro, of course, was called as a prosecution witness, but this information would have been crucial for preparation for cross-examination. The prosecution’s case hinged on Lara’s and Castro’s identifications. With the information revealed only at trial in Castro’s testimony, the defense was placed in the unenviable position of either treading into unknown waters on further cross-examination or recalling a prosecution witness to explain the newly revealed information. The risk of such strategy is apparent.

If Castro’s identification had been weakened by effective cross-examination when Castro was called as a prosecution witness, the case would depend solely on Lara. The majority argues that Lara was a stronger identification because he “spent time with [appellant] on the porch prior to the shooting whereas Castro saw the shooter only briefly . . . .” (Maj. opn., at p. 21.) But this ignores the unquestionable point that Castro’s identification of appellant at trial was presumptively unbiased and unequivocal, while Lara was a suspect for the murder and had an incentive to shift scrutiny away from himself, his friend and his cousin. Castro, on the other hand, did not know any of the four suspects and had no comparable motive to exonerate them.

If the prosecution had disclosed the show-ups in a timely fashion, the defense could have also moved to suppress Castro’s identification pretrial. A motion to suppress made during trial after Lara and Castro would raise the proverbial inquiry, “Can the bell be unrung?” A motion to suppress pretrial would have given the defense the chance to exclude one of only two witnesses in the case. The majority dismisses the possibility that the defense could have successfully moved to suppress Castro’s identification. The majority concludes the record is insufficient to show “the procedure was unduly suggestive such that we could conclude it would have been suppressed.” I disagree.

The Supreme Court has long recognized that eyewitness identifications have a unique confluence of features that can undermine the fairness of a criminal trial. Accordingly, the due process clause requires the exclusion of identification testimony if the state uses “unnecessarily suggestive” identification procedures and “the resulting identification was also unreliable.” (People v. Yeoman (2003) 31 Cal.4th 93, 123.) An identification procedure is suggestive if it “ ‘caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ ” (People v. Cook (2007) 40 Cal.4th 1334, 1355.) As such, single-person show-ups are inherently suggestive. (Stovall v. Denno (1967) 388 U.S. 293, 299–302 (Stovall). “ ‘The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.’ ” (Id. at p. 302.) Here, the suspects were paraded in front of Castro one by one.

I conclude that, under Stovall, the show-ups here were inherently suggestive. The majority does not address Stovall, but rather cites to People v. Johnson (1989) 210 Cal.App.3d 316 (Johnson) in support of its conclusion that the show-ups were not “unduly” suggestive. Johnson is factually quite different.

In Johnson, a victim of a robbery “just happened to be at the police station” and saw the defendant “when he was brought, in handcuffs, into the [] station by police officers.” (Johnson, supra, 210 Cal.App.3d at pp. 321, 323.) The witness identified the defendant as the perpetrator. (Ibid.) On appeal, the defendant argued the trial court erred in denying his motion to exclude the witness’s identification. (Id. at p. 322.) The Court of Appeal found no error: “The procedure of [the witness’s] pretrial station identification was not impermissibly suggestive in this case. . . . [P]rior to his identification, the police officers did not indicate that they had apprehended the suspect or that they would be showing [the witness] the suspect.” (Id. at p. 323.) The witness testified that he was waiting in the police station when the defendant was brought in through the doors; “[h]e instantly identified him as the robber.” (Ibid.)

Unlike the apparent coincidental encounter in Johnson, here there was a deliberate effort to show appellant to the witness. The police took Castro to a room with a one-way mirror and showed him appellant and two other suspects one at a time through the glass. These circumstances establish the police deliberately introduced appellant to Castro as a key suspect.

Further, the facts of our case are quite different from Johnson where the court found the “likelihood of misidentification” to be “extremely remote.” (Johnson, supra, 210 Cal.App.3d at p. 323.) Castro was in a moving car at night when, from about 20 feet away, a man with a hoodie pulled over his head and walking toward the street shot at his car. Castro saw the man raise his arm to shoot, and then ducked when the bullet struck the car. Far from a clear and detailed facial identification on the night of the shooting, Castro appears to have recognized the shooter only because he was wearing blue jeans, and he was shown only one suspect in blue jeans. Castro confirmed the significance of the blue jeans in his posttrial declaration, and the trial court essentially agreed, when it found “probably true” that Castro’s identification was based on appellant’s blue jeans.

While the Johnson identification was unorchestrated and unplanned, the live show-up procedure here was formally conducted by the police. While the Johnson eyewitness gave a description of the perpetrator that “matched” appellant precisely, here Castro was only able to describe the shooter’s clothes. Under these circumstances, it is reasonably probable that if defense counsel had known the true facts he would have moved pretrial to suppress the identification, and that motion would have been granted.

My conclusion that the prejudice requirement of Brady was satisfied is also informed by the lack of physical evidence linking appellant to the murder. There was no evidence that suggested appellant had a motive to shoot Reed or at the car. The prosecutor did not suggest a motive: on the contrary, the prosecution’s case rested almost entirely on the testimony of suspect Lara and witness Castro, neither of whom suggested appellant had a motive for the shooting.

Lastly, the majority and respondent place great weight on the fact that the defense expert on eyewitness identifications addressed the weakness of Castro’s identification—namely the unreliability of identifications made cross-racially, in the dark, when a suspect’s face is partially obscured, from a moving vehicle, and at an angle. However, the materiality of the undisclosed show-ups lies in the opportunity it presented to the defense to establish not that Castro’s identification was not merely weak but that it was substantially and constitutionally flawed. It was based on appellant’s blue jeans, the same type of pants at least one other person at the scene was also wearing. If defense counsel had been given the chance to investigate the circumstances of the show-ups and come prepared to cross-examine Castro about the impact of being shown appellant and another person both wearing blue jeans, the jury would have been presented with a different picture of Castro’s identification. This constitutes a reasonable probability that the jury would not have found appellant guilty of murder.

Appellant is not entitled to a perfect trial. He is entitled to a fair one in which the prosecution does not suppress material exculpatory evidence. The circumstances of the live show-ups and the prosecution’s failure to disclose them was extremely prejudicial, and did not produce a trial “worthy of confidence.” (Kyles, supra, 514 U.S. at p. 434.)

3. Prosecutorial Interference with Potential Defense Witnesses
4.
The prejudicial error under Brady was compounded by the prosecutor’s posttrial threats of perjury to the two defense witnesses, Lara and Castro, who were prepared to change their inculpatory trial testimony at the hearing on the motion for new trial. Both the Brady error and the prosecutorial misconduct had a direct and powerful impact on how the jury and the court considered Lara’s and Castro’s identification.

a. The Law
b.
A criminal appellant has “a constitutional right to present a defense, which includes calling witnesses in his favor and testifying on his own behalf. [Citations.] Prosecutors must be sensitive to this right; they are not allowed to engage in conduct that undermines the willingness of a defense witness to take the stand. [Citation.] Such conduct includes making statements to the effect that the witness would be prosecuted for any crime he or she committed in the course of testifying, such as perjury. [Citation.]” (Force, supra, 39 Cal.App.5th at p. 514.) Force relies significantly on In re Martin (1987) 44 Cal.3d 1 (Martin), where murder and other convictions were reversed for prosecutorial misconduct. The misconduct occurred when, immediately after testifying, a defense witness was arrested in the courthouse hallway in view of two other scheduled defense witnesses. (Martin, at p. 34.)

Force continued, “That the prosecutor may have acted without culpable intent does not bear on the issue. In Martin, our Supreme Court made clear the prosecutor’s intentions are irrelevant in determining whether a prosecutor has stepped over the line in this regard. To establish misconduct in the form of improper intimidation the defendant ‘need show only that [the prosecutor] engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as “to transform [a defense witness] from a willing witness to one who would refuse to testify . . . .” [Citations.]’ [Citations.] Bad faith is not part of the required showing.” (Force, supra, 39 Cal.App.5th at pp. 514–515, citing Martin, supra, 44 Cal.3d at p. 31.)

In order to establish a violation of his constitutional compulsory process right, a defendant must establish (1) misconduct by the governmental agent, (2) a causal link between the misconduct and his inability to present witnesses on his own behalf, and (3) a reasonable possibility the witness could have given testimony that would have been both material and favorable. (Martin, supra, 44 Cal.3d at pp. 31–32.)

The Martin court expressly avoided determining whether prosecutorial misconduct was prejudicial per se. Instead, it found the misconduct there was prejudicial “not only under the federal Chapman [v. California (1967) 386 U.S. 18] standard but also under the state law standard of People v. Watson (1956) 46 Cal.2d 818.” (Martin, supra, 44 Cal.3d at p. 51.) In Force, the court applied the Chapman standard, finding prejudice because it was not confident beyond a reasonable doubt that the defendant’s testimony would have had no effect upon the decision the trial court made in a bench trial. (Force, supra, 39 Cal.App.5th at p. 519.) As in Force, I apply the Chapman standard to conclude appellant was prejudiced by the prosecutorial misconduct. Even if I were to apply Watson, in light of the trial court comments about the importance of live witnesses, there is a reasonable probability of a different result.

b. The Prosecutor’s Statements to Lara and Castro
c.
Appellant filed declarations by Lara and Castro in support of a motion for new trial in which those witnesses recanted their testimony identifying appellant as the killer. The trial court then ordered the defense to subpoena Lara and Castro so they could be appointed attorneys. Right before the scheduled hearing began, the prosecutor separately took Lara and Castro aside in the hallway and told them they would be “in trouble” if they recanted their trial testimony. Specifically, the prosecutor told Lara that he was going to be asked questions about his declaration recanting his testimony, that perjury meant “to lie under oath,” that perjury was “a crime,” that Lara “did say that [he] lied under oath at trial,” and that the prosecutor did not “want to see [Lara] get [him]self in trouble.” When Lara stood by his declaration recanting his testimony and said he had lied at trial because “the cops intimidated him,” the prosecutor replied that Lara was “treading a very dangerous road about getting yourself in trouble, [b]ut if that’s how you want to play it.”

The prosecutor also had words for Castro: “if you basically testified to what’s on this piece of paper [Castro’s new trial declaration], you could theoretically end up in trouble because it’s con – not the same as what you said the first time.” Castro immediately disavowed his declaration.

d. The Prosecutor Committed Misconduct
e.
Appellant contends that the prosecutor impermissibly infringed his constitutional right to call witnesses in his defense by threatening Lara and Castro with perjury charges for recanting their trial testimony. Respondent takes the position that “asking Lara whether he knew perjury was a crime served the legitimate purpose, under state and federal law, of warning him about the dangers of perjury.” In other words, even though the trial court had ordered Lara and Castro to be present at the hearing that day for the purpose of appointing them lawyers to advise them on this very issue, it was, as respondent puts it, necessary “to the proper performance” of the prosecutor’s duties to first, in a private conversation, advise these witnesses of the exact same consequences before the witnesses’ own lawyers could have that conversation. To state this proposition is to refute it.

Informing Lara and Castro they would be guilty of perjury if they recanted their trial testimony was plainly unnecessary to the prosecutor’s performance of his duties. As Martin teaches, we need not address whether the prosecutor acted with culpable intent. No matter the intent, his threats to Lara and Castro could do nothing but intimidate them. Their subsequent choice not to testify at the new trial hearing confirms that the prosecution’s comments had their desired effect.

My conclusion is consistent with the Court of Appeal’s holding in Force. Force concerned a sexually violent predator who petitioned to be placed on a conditional release program. (Force, supra, 39 Cal.App.5th at p. 509.) At the defendant’s previous trial, he had denied committing certain charged sexually violent acts. (Id. at p. 511.) He subsequently admitted these acts as he progressed through treatment. (Ibid.) On the eve of the trial, defense counsel informed the court that the defendant intended to testify about his admissions of those instances of sexual misconduct. (Id. at pp. 511–512.) The prosecutor then told defense counsel that the defendant “ ‘could be charged with perjury because he admittedly lied’ in his prior testimony.” (Id. at p. 512.)

The Court of Appeal held “there is no question the prosecutor’s statements to defense counsel about the prospect of perjury were wholly unrelated to his duties. Coaching the defense is so outside a prosecutor’s job description that we need spend little time on that analysis. Defense counsel was presumably aware of the perjury issue and well equipped to discuss it with appellant. There was no need for the prosecutor to raise the issue with her even if he thought the timing of her petition questionable from a tactical perspective.” (Force, supra, 39 Cal.App.5th at p. 515.)

Respondent acknowledges that, when the prosecutor spoke to Lara about perjury, Lara was already aware he had “committed” perjury “when he testified at trial” and that Lara already “knew he ‘could be sentenced to jail’ for perjury.” There was no “need” for the prosecutor to raise this issue: the trial court intended to appoint attorneys for Lara and Castro that very day. At least in Force, the prosecutor did not talk to the witness/ defendant directly but only spoke with defense counsel. Even with a filter between the prosecutor and the defendant, misconduct was found.

Lara and Castro were threatened directly with perjury by the prosecutor just shortly before their own attorneys could have advised them about the risks of changing their testimony. Further, in the context of Lara’s declaration—in which he said the investigating detectives had before trial threatened him that “if [he] did not identify [appellant] as the shooter then [he] would spend the rest of [his] life in jail”—the prosecutor’s perjury comments and the warning that Lara was “treading a very dangerous road about getting yourself in trouble” could only suggest to Lara that the prosecutor was prepared to criminally charge him with perjury if he testified at the motion for new trial.

Respondent attempts to distinguish Force, by arguing that “at most” the prosecutor’s comments here “merely ‘raised the issue of perjury as an abstract possibility.’ ” This line of argument was explicitly rejected in Force: “According to the prosecutor, he did nothing more than raise the perjury issue as a ‘theoretical possibility’ in an attempt to understand why defense counsel filed the petition when she did. However, . . . he didn’t just raise the issue of perjury as an abstract possibility, he specifically asked defense counsel if she was worried about appellant being charged with perjury.” (Force, supra, 39 Cal.App.5th at p. 515.) Much like Force, the prosecutor did not engage in a general conversation with Lara about perjury. Instead, the prosecutor specifically told Lara that if Lara’s trial testimony was a lie Lara would be guilty of perjury. There was nothing “abstract” about the prosecutor’s warning.

Respondent also points out that the prosecutor here did not “yell at or berate” Lara, and did not explicitly tell him he would be charged with perjury. Respondent’s argument suggests that, to constitute misconduct, a prosecutor’s threat must be explicit and at the same time the prosecutor must act aggressively. This is not the law.

The prosecutor “ ‘has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.’ [Citation.] To that end, the American Bar Association standards governing prosecutorial conduct provide, . . . ‘The prosecutor should not act to intimidate or unduly influence any witness. And, he should not discuss the potential criminal liability of a witness in a manner that is likely to “intimidate the witness, to influence the truthfulness or completeness of the witness’s testimony, or to change the witness’s decision about whether to provide information.” ’ [Citation.]” (Force, supra, 39 Cal.App.5th at p. 516.) Here, the prosecutor’s comments informing Lara that the recantation of his trial testimony constituted perjury crossed that line. The prosecutor’s further warnings that Lara would be “in trouble” and that Lara was “treading a very dangerous road” were completely at odds with the prosecutor’s duty to assure a fair trial.

Respondent argues that under Chapman v. California (1967) 386 U.S. 18, any misconduct arising out of the prosecutor’s discussion with Lara and Castro was harmless. I disagree. Appellant’s conviction depended entirely on Lara’s and Castro’s identification. Had they both recanted the testimony they gave on the stand, the new trial motion would have taken a different turn in favor of the defense. We know this because the trial court found the detectives had committed a Brady violation by failing to disclose the show-ups, and that Castro’s “statement that his identification was based on clothing is probably true.” However, ultimately the court rejected the recantation of both Lara and Castro because they did not testify in open court at the new trial motion. The court explained, “First of all I give the greatest weight to the testimony that the jury could see and hear and evaluate Adrian Lara’s credibility for themselves. It is impossible to judge credibility from written declarations.” Implicit is that, if the trial court, who had heard the witnesses’ trial testimony, had heard them testify at the new trial motion he would have been better able to make an informed decision. I cannot say that the error was harmless under either the Chapman or Watson test.

Prosecutorial misconduct, even though rare, can take a variety of shapes. Our Supreme Court has recognized that interfering with a defendant’s ability to call witnesses is among the most serious. “The forms that such prosecutorial misconduct may take are many and varied. They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. (People v. Warren [(1984]) 161 Cal.App.3d [961,] 973–974 [warning concerning crime expected to be revealed]; People v. Bryant [(1984)] 157 Cal.App.3d [582,] 589–593 [warning concerning expected perjury]; People v. Robinson (1983) 144 Cal.App.3d 962, 967–970 [warning concerning crime expected to be revealed]; United States v. Blackwell [(D.C. Cir. 1982)] 694 F.2d [1325,] 1336-1337 [warning concerning crime expected to be revealed]; United States v. MacCloskey [(4th Cir. 1982)] 682 F.2d [468,] 476, fn. 16, 479 [same]; United States v. Morrison [(3d Cir. 1976)] 535 F.2d [223,] 226–228 [warning concerning both crime expected to be revealed and expected perjury]; United States v. Thomas [(6th Cir. 1973)] 488 F.2d [334,] 335–336 [warning concerning crime expected to be revealed]; United States v. Smith [(D.C.Cir. 1973)] 478 F.2d [976] 977–979 [warning concerning crime expected to be revealed].) They also include statements to defense witnesses warning they would suffer untoward consequences in other cases if they were to testify on behalf of the defense. (United States v. Hammond [(5th Cir. 1979)] 598 F.2d [1008] 1012–1013; United States v. Henrickson [(5th Cir. 1977)] 564 F.2d [197,] 197–198.) Finally, they include arresting a defense witness before he or other defense witnesses have given their testimony. (Bray v. Peyton (4th Cir. 1970) 429 F.2d 500, 501.)” (Martin, supra, 44 Cal.3d at pp. 30–31.)

The significance of a prosecutor’s threats of prosecution for perjury was summed up eloquently by Justice Bedsworth in Force: “When you get right down to it, [] the whole job of the trial prosecutor [is to] [p]rovide a fair trial. [¶] Enforcing the law, protecting the public, supporting crime victims, any phraseology you choose for other aspects of criminal prosecution are subsets of that one job. It’s not about convictions, it’s not about courtroom mastery, it’s not about prison sentences. And it’s certainly not about won/lost records. It’s about fair trials. Fairness is the sine qua non of the criminal justice system . . . . [W]e cannot guarantee the criminal defendant justice, although we seek it in every case. But we can—and have—promised fairness. And the prosecutor’s job is to fulfill that promise.” (Force, supra, 39 Cal.App.5th at p. 508.)

I conclude that did not happen here.

CONCLUSION

“Actual innocence” is not part of the appellate standard of review in this case. But it has drawn nationwide attention of late because posttrial DNA evidence has demonstrated that a significant number of convicted defendants were actually innocent. The National Registry of Exoneration reports 2,542 exonerations through 2019 (, archived at ). Commentators have found two components in many of these wrongful convictions—mistaken identification and finding of harmless error by appellate courts. That is this case. As to the former, one study found, “Mistaken eyewitness identifications contributed to approximately 71% of the more than 360 wrongful convictions in the United States overturned by postconviction DNA evidence.” ( as of Jan. 17, 2020], archived at .)

Another study of 133 DNA-based cases of actual innocence found that in 32 percent of those cases “courts found error, but affirmed nonetheless because the error was deemed ‘harmless’ . . . .” (Findley, Innocence Protection in the Appellate Process (2009) 93 Marq. L. Rev. 591, 595.) The same author concluded, “Repeatedly, studies of the DNA exonerations have shown that the most common types of evidence that have produced wrongful convictions fall generally into four categories: eyewitness identification errors, false confessions, false or misleading forensic science evidence, and perjured testimony from jailhouse informants. . . . Studies have also repeatedly identified particular types of procedural error—most prominently ineffective assistance of counsel and prosecutorial misconduct, such as [Brady violations]—that have frequently led to wrongful convictions.” (Id. at p. 596.)

The present appeal presents, colloquially, a “perfect storm” that undermines any confidence I might otherwise have that this was a fair trial. There was a Brady failure to disclose as found by the trial court, there were serious questions about the reliability of the eyewitness identifications, there was prosecutorial misconduct, and harmless error was a major part of the rationale for affirmance. The errors were not merely technical or ancillary. Alone, but certainly together, they cast doubt on the testimony of the only two witnesses who identified appellant as the shooter. Castro’s identification was seriously compromised by the manner in which he was shown appellant in a live show-up in blue jeans. The defense was disadvantaged prejudicially by not being advised of that live show-up. This was compounded by the doubts the detective expressed at trial that any show-up had occurred. Against this backdrop, appellant filed a motion for new trial after both Castro and Lara submitted declarations recanting their testimony and describing police tactics that affected their identifications. Then, the day the court had announced it would appoint counsel for Castro and Lara, but before the actual appointment, the prosecutor interviewed both witnesses and threatened them with perjury. Later, Castro and Lara refused to testify at the new trial motion. The court understandably found that it was “impossible to judge credibility from written declarations,” and denied the motion for new trial. The majority assumes but does not decide that prosecutorial misconduct occurred but finds the error harmless. (Maj. opn., at p. 46.) It also finds no Brady violation because of no prejudice.

The convergence of these errors and improprieties is particularly significant when measured by the absence of any other evidence that appellant was the shooter. The prosecutor told the jury appellant had no motive for killing the victim. He appears to have had none. Appellant seemingly found himself caught in the middle of a gang inspired shooting, but appellant not only was not a gang member, he did not really know any of the suspects or the victims. There was testimony that more people than the police found at the scene had been present. Presumably they scattered; yet the prosecution theory of the case was that the convicted shooter stayed at the scene supposedly waiting for the police to arrive and arrest him. Under these circumstances, I cannot find that these errors were harmless and I would reverse.

RUBIN, P. J.