Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA066702 David S. Milton, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Defendant and appellant Victor Garcia appeals from his conviction, after jury trial, of operating a chop shop (Veh. Code, § 10801) and five counts of receiving stolen property (Pen. Code, § 496, subd. (a)). Defendant contends the prosecution committed a Brady violation by failing to disclose, until after the defendant had presented his evidence, an allegedly exculpatory video recording. Defendant also contends the prosecutor committed misconduct in closing argument to the jury. We reject defendant’s contentions and affirm.
Brady v. Maryland (1963) 373 U.S. 83.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Stolen Motorcycles
In September 2006, numerous owners of Harley-Davidson motorcycles met in Las Vegas for a “BikeFest.” At that time, at least four motorcycles (owned by Eric Miller, Armen Hacoobei, Allen Childress, and Brian Smith) were stolen from hotel parking lots. Evidence was also presented that two more motorcycles (owned by Kenneth Rivera and EagleRider) were stolen at the same time, although their locations at the time of the thefts were not established. A seventh motorcycle (owned by Raul Rodriguez) had been stolen approximately one month earlier. We will refer to these seven motorcycles as the “stolen motorcycles.” An eighth motorcycle (owned by Anthony Kurth) had been stolen from Las Vegas in February 2006. Although there is no dispute that Kurth’s motorcycle was stolen, the facts of the case require that we discuss his motorcycle separately.
All motorcycles at issue in this case are Harley-Davidson motorcycles.
Defendant was originally charged with receiving stolen property with respect to each of the stolen motorcycles. However, three of the motorcycles’ owners/possessors did not testify at trial, and defendant’s motion for judgment of acquittal was granted with respect to the counts relating to their motorcycles.
2. The Discovery of the Stolen Motorcycles
The BikeFest thefts occurred between September 14 and 16, 2006. One of those motorcycles, that owned by Smith, was equipped with a Lojack device. After the theft was reported, the Lojack device was activated. On September 20, 2006, Monterey Park Police Officer John Rojas was on patrol. His in-car Lojack tracking system signaled, and directed him to defendant’s house. Officer Rojas called for backup, and was soon joined by Officer Laurie Fishburn, who was the acting field supervisor. Officer Fishburn decided to contact the Task Force for Regional Auto Theft (“TRAP”). While the officers were waiting for a return call from TRAP, defendant left his house, entered a car parked on the street, and drove off. Officers Rojas and Fishburn conducted a traffic stop of defendant. They told him about the Lojack signal coming from his address, and asked if they could look for the source of the signal. Defendant agreed and returned to his house to assist the officers. By this time, one other Monterey Park Police Officer, Officer Peter Yung, had also arrived.
Defendant operated a small motorcycle repair business out of his residence. His house had both an attached garage (the “garage”) and a detached three-car carport, which had been coverted to a closed garage (the “carport”). With defendant’s cooperation, Monterey Park Police Officers searched defendant’s carport, where they discovered not only the source of the Lojack signal, but all seven stolen motorcycles. Defendant told Officer Fishburn that these motorcycles had been dropped off the night before by a man named Juan, with whom he had done business previously.
The TRAP team, lead by El Monte Police Detective Armando Valenzuela, arrived approximately one hour later. At that point, the Monterey Park Police Officers handed the investigation over to the TRAP team, although Monterey Park Police Officers remained at the scene for some time. Not only were the seven stolen motorcycles found in defendant’s carport, but the engine from Kurth’s stolen motorcycle was found there, too.
3. The Information
Defendant was charged by information with one count of operating a chop shop and eight counts of receiving stolen property (pertaining to the stolen motorcycles and Kurth’s engine). He entered a plea of not guilty.
4. The Theories at Trial
At trial, defendant did not dispute that the stolen motorcycles had, in fact, been stolen. Defendant argued instead that he had not known that the motorcycles were stolen; he claimed that he operated a legitimate repair business and that Juan had simply left the motorcycles for defendant to do some (as yet unknown) work on them. The prosecution took the position that the stolen motorcycles were in defendant’s carport so that he could remove their identifying information so that they could be resold. The prosecution allowed that defendant may have been operating a legitimate repair business as a cover for illegal chop shop activities.
5. Identifying and Re-Selling a Stolen Harley-Davidson
On a Harley-Davidson motorcycle, the Vehicle Identification Number (“VIN”) is a 17 digit number stamped on the motorcycle’s frame. A secondary VIN, which is a derivative of the first VIN, appears on the motorcycle’s engine. Both the VIN and the engine number will appear on a motorcycle’s registration. A stolen motorcycle is difficult to resell with the original numbers on the frame and engine. Thus, one way of making a stolen motorcycle easier to sell is to replace its frame and engine. This is considered the primary method used in this country, and around the world, to conceal the identity of a stolen motorcycle. Replacement frames and engines will have VINs on them, but the numbers are identifiable as non-original VINs.
Some motorcycle enthusiasts will build a motorcycle from the ground up – in such a case, they may begin with a replacement engine and frame. In other circumstances, accident damage, or a simple desire to upgrade, may prompt a motorcycle owner to replace an engine and/or frame. Thus, the presence of a replacement frame and engine on a motorcycle do not necessarily mean that the motorcycle was stolen. In fact, a motorcycle with a replacement frame and engine can be registered with the DMV, using the numbers on those parts.
A Harley-Davidson is marked with additional VINs in other, unseen, places, not generally made public knowledge. One such number can be seen if the transmission cover is removed.
6. The Motorcycles in Defendant’s Garage
While defendant’s carport contained the seven stolen motorcycles at the time of his arrest; defendant’s garage contained a number of so-called “special construction” motorcycles. Each special construction motorcycle had a replacement engine and frame. It was defendant’s position that these motorcycles were motorcycles he was building (or had built) for individual customers; the prosecution suggested that these motorcycles were stolen motorcycles on which defendant had changed out the frames and engines in order to render them suitable for resale.
7. The Prosecution’s Case
The prosecution’s evidence that defendant had operated a chop shop and knowingly possessed stolen property included the following: (1) defendant had no paperwork for the seven stolen motorcycles or Kurth’s stolen engine; (2) defendant told Detective Valenzuela that Juan had brought the stolen motorcycles over for defendant to replace the frames and engines on them, for $500 each; (3) defendant gave Detective Valenzuela a telephone number for Juan; when Detective Valenzuela called the number, it was disconnected; when Detective Valenzuela researched it, he learned that it had been assigned to someone who was not named Juan; (4) Kurth identified several additional parts of one of defendant’s special construction motorcycles as having come from his stolen motorcycle (Kurth specifically identified the wheels because of certain unusual damage on the inner lip of the front wheel of the motorcycle); and (5) on another of the special construction motorcycles, when Detective Valenzuela looked beneath the transmission cover, some of the confidential numbers had been painted over with black paint, and appeared to have been partially removed by a grinding tool.
7. The Defense
Defendant testified in his own defense. He admitted two prior convictions of “joyriding” as a juvenile (Veh. Code, § 10851), and a petty theft arrest, for which he received diversion. On cross examination, he admitted that, in regard to the joyriding convictions, he had been pulled over for driving a stolen car, which he conceded he had been doing.
Defendant denied telling Detective Valenzuela that Juan was paying him to change out the frames and engines on the stolen motorcycles; he said that Juan had dropped off the motorcycles just as defendant was leaving for the night, and that Juan had promised to return to tell him what work to do at a later date. Defendant testified that the special construction motorcycles were owned by customers of his, and were not stolen. He offered the testimony of two individuals, Rick Fimbres and Raul Guevara, who claimed ownership of two of the special construction motorcycles. Defendant introduced DMV registrations of three of the special construction motorcycles (those of Fimbres, Guevara and Marie Salas) and a certificate of title of the Guevara motorcycle. Defendant also introduced several witnesses who testified to defendant’s good character, and that his motorcycle shop was legitimate.
The police dusted the stolen motorcycles for fingerprints; defendants’ prints were not found on them.
Rick Fimbres did not actually testify to ownership of the motorcycle in question; another defense witness stated that the motorcycle belonged to Fimbres. Fimbres testified that he could not say if the motorcycle was his, as it did not look like his motorcycle in all respects. The motorcycle the defense attributed to Fimbres was the motorcycle on which Kurth had identified some of the parts as coming from his own motorcycle.
Defendant’s evidence of the ownership of the special construction motorcycles was subject to doubt. The registrations and certificate of title were all issued on October 19 and 20, 2006 – one month after defendant’s arrest. Indeed, the registration numbers on Fimbres’s and Salas’s supposedly independent registrations were consecutive.
The motorcycles were impounded at the time of defendant’s arrest. A special construction motorcycle has to be inspected by the CHP in order to be titled and registered. The evidence was unclear as to how defendant’s customers obtained these documents when their motorcycles could not have been inspected.
8. The Dispute Regarding Paperwork for the Special Construction Motorcycles
While defendant conceded at trial that he had no paperwork regarding the stolen motorcycles, he argued that he had possessed substantial paperwork for the special construction motorcycles. Defendant testified that he gave Detective Valenzuela all of the receipts he had for the engines, frames and parts on the special construction motorcycles in his garage, and that Detective Valenzuela never returned that paperwork to him. Detective Valenzuela’s testimony on this point was somewhat contradictory. Detective Valenzuela originally testified that while he found no paperwork pertaining to the stolen motorcycles, he found other paperwork. He found no work orders, but found receipts, including receipts for replacement Harley-Davidson engines. He testified that there was, in fact, “quite a bit of paperwork.” Detective Valenzuela specifically testified to finding a receipt for a replacement frame and engine which matched one of the special construction motorcycles in defendant’s garage; he kept that receipt. Detective Valenzuela clearly testified that, other than the stolen motorcycles and the parts from Kurth’s stolen motorcycle, there were no other parts in defendant’s garage or carport that he believed were stolen. Subsequently, however, Detective Valenzuela testified that he gave defendant the opportunity to provide him with documentation regarding both the stolen motorcycles and the special construction motorcycles, and that defendant gave him nothing. Immediately thereafter, however, he again conceded that he saw a receipt for a frame and engine for one of the special construction motorcycles. In contrast, defendant testified that he gave receipts to Detective Valenzuela for all of the special construction motorcycles. He also introduced into evidence 221 pages of paperwork that were in his toolbox when the police seized the toolbox, although his receipts for the special construction motorcycles were not among those pages.
Detective Valenzuela explained that, without testimony such as Kurth’s specifically identifying parts as stolen, he would never be able to establish that other parts on the special construction motorcycles were stolen.
9. The Late Disclosure of the Video Recording
After the defense had rested and prior to the prosecution’s rebuttal evidence, the prosecution disclosed to the defense a recently-discovered video recording. Monterey Park Police Officers possess in-car recording technology and wear microphones which record their conversations. The prosecution had initially told the defense that the only recording in existence covered defendant’s consent to search his garage and carport. Ultimately, however, it was discovered that a recording existed covering one hour and fifteen minutes, including part of the search of defendant’s premises. The recording is actually two and a half hours long – it is comprised of the same hour-and-fifteen-minute time period as recorded by two different officers’ microphones. The prosecution conceded that the recording should have been turned over earlier; the defense conceded that the prosecutor had not intentionally withheld the recording. The prosecution disclosed the tape to the defense on a Friday afternoon; the parties agreed that the prosecution would go forward with its rebuttal evidence; the effect of the recording would be discussed on Monday morning, after defense counsel had a chance to review it.
On Monday morning, defendant filed a motion to dismiss the prosecution in the interests of justice and as a sanction for discovery abuse. In his motion, defendant argued that the recording was exculpatory and constituted impeachment evidence of Detective Valenzuela. In particular, defendant argued that the recording showed that, in conformity with defendant’s testimony and contrary to that of Detective Valenzuela, defendant gave the police paperwork on all of the special construction motorcycles. From the recording, it appears that, while the Monterey Park Police Officers were awaiting the TRAP team’s arrival, defendant gave the officers paperwork for the special construction motorcycles in his garage. On the recording, Officer Fishburn is heard saying, apparently to Detective Valenzuela, that defendant “opened up the primary garage for us, and we checked all the numbers in there against the paperwork, it looked okay to us.”
Defendant also asserted police misconduct unrelated to the discovery issue; the court disagreed.
Defendant argued that the recording also demonstrated Detective Valenzuela lied in two other respects. First, Detective Valenzuela had testified that no recording existed; the very existence of the recording proved Detective Valenzuela wrong on this point. Second, Detective Valenzuela had testified that, in order to get a better look at the hidden number behind the transmission cover on one of the special construction motorcycles, Detective Valenzuela and another TRAP officer had put the motorcycle on a lift. He further testified that he did not have to remove anything to see the number. Defendant testified that he had put the motorcycle on the lift and removed the transmission cover at Detective Valenzuela’s request. The recording may have supported defendant in this respect, as it showed defendant pushing the motorcycle toward the lift. As to the first issue, as the jury was subsequently told of the recording and viewed parts of it; the conflict with Detective Valenzuela’s testimony was solidly placed before the jury. As to the second, defendant was permitted to play the part of the recording which purportedly supported his position. In any event, the identity of the person who put the motorcycle on the lift is not material; the evidence is impeachment on a collateral matter at best.
The tape supports the premise that defendant gave the paperwork to Monterey Park Police Officers, not to Detective Valenzuela.
At another point on the recording, one of the officers says that the numbers “look funny” on one motorcycle; another officer responds, “No, I saw some things, he showed me the paperwork on those, but [Detective Valenzuela] will know.”
While the prosecutor conceded that the recording should have been disclosed earlier, the prosecutor argued that the bulk of the recording was either inculpatory or lacked evidentiary value. As to the evidence regarding the paperwork, the prosecution argued that, on the recording, a reference is made to “MSOs, ” or Manufacturer’s Statements of Origin, which are simply receipts for replacement engines. As the prosecution was proceeding on the theory that the frames and engines on the special construction motorcycles were, in fact, replacement parts, the evidence had little exculpatory value.
The most incriminating element on the recording is that defendant is heard stating, in conformity with the prosecution’s evidence and in stark contrast to defendant’s trial testimony, that the plan was for Juan to bring him frames and engines to replace on the motorcycles now known to be stolen.
Ultimately, the trial court reviewed the entire tape and concluded that the recording was “mostly consistent with the testimony given by the parties here in court.” The court concluded that the prejudice to defendant from the late disclosure was not sufficient to warrant a mistrial. As to the issue of whether defendant had provided the police with paperwork for the special construction motorcycles, the court determined that it is a jury issue. Moreover, as the dispute regarded paperwork for the motorcycles which were not alleged to be stolen, the relevance was minimal.
The trial court instructed the jury as to the late disclosure of the recording. The court also permitted the defendant to reopen his case, to introduce parts of the recording into evidence. Defense counsel did so, recalling Officer Rojas, and playing the portions of the recording believed to be helpful to the defense. At this time, Officer Rojas testified to receiving up to 30 pieces of paperwork regarding the motorcycles in the garage, checking them over with Officer Fishburn, and concluding that the paperwork looked acceptable to them. Defendant sought to recall Officer Fishburn, but she was on vacation through the rest of the week; defendant did not seek a continuance of the trial. The prosecution recalled Detective Valenzuela in rebuttal, and defendant further cross-examined him regarding the paperwork. Defendant elicited testimony that Detective Valenzuela would expect to find MSOs for replacement engines and frames in a chop shop. The prosecution sought to play the portion of the recording wherein defendant stated that he was to change the frames and engines on the motorcycles found in the carport; after defendant’s strong objection, the trial court denied the prosecution’s request.
The jury was instructed in the language of CALCRIM No. 306 as follows: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] Until last Friday, March 28, 2008, an attorney for the People failed to disclose: The existence and content of a video and audio recording of the events that took place at Mr. Garcia’s residence on September 20, 2006 within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
The prosecution also supplied Officer Peter Yung, the other Monterey Park Police Officer who was present at the search. After an Evidence Code section 402 hearing outside the presence of the jury, where it was apparent that Officer Yung had nothing to add on the issue of the paperwork, defendant chose not to call him as a witness.
10. Verdict, Judgment and Appeal
After defendant’s motion for acquittal was granted with respect to three counts of receiving stolen property, the case was presented to the jury. The jury found defendant guilty of running a chop shop and of the remaining five counts of receiving stolen property. A special allegation that the losses associated with the chop shop exceeded $50,000 was also found to be true. (Pen. Code, § 12022.6, subd. (a)(1).) Defendant’s motion for new trial was denied. He was sentenced to the low term of two years for operating a chop shop, plus an additional one-year for the enhancement. Sentences on the receiving stolen property counts ran concurrently. Defendant filed a timely notice of appeal.
ISSUES ON APPEAL
Defendant’s main argument on appeal is that the prosecution committed a prejudicial Brady violation by failing to timely disclose the recording. Defendant also assigns as prejudicial attorney misconduct a statement made by the prosecutor during argument to the jury. We reject both contentions.
DISCUSSION
1. There was no Brady Error
“ ‘A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. [Citation.]’ [Citations.] ‘The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.’ [Citations.] The Brady duty extends to evidence that is both favorable to the accused and material either to guilt or to punishment [citations], and to impeachment evidence as well as to exculpatory evidence [citations]. Because ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police’ [citation], ‘Brady suppression occurs when the government fails to turn over even evidence that is “known only to police investigators and not to the prosecutor” ’ [citations]. Moreover, the duty to disclose exists regardless of whether there has been a request by the accused, and the suppression of evidence that is materially favorable to the accused violates due process regardless of whether it was intentional, negligent, or inadvertent. [Citations.]” (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.)
“ ‘There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ ” (In re Sodersten, supra, 146 Cal.App.4th at p. 1226.)
In this case, there is no dispute regarding the first two elements. The recording was, at least in part, favorable to defendant. Moreover, the evidence was inadvertently suppressed. Thus, whether a Brady violation occurred in this case turns on the third element: prejudice. The prejudice inquiry is focused on whether the suppressed evidence was material. (In re Sodersten, supra, 146 Cal.App.4th at pp. 1226, 1228.) “In this respect, ‘[m]ateriality... requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction “more likely” [citation], or that using the suppressed evidence to discredit a witness’s testimony “might have changed the outcome of the trial” [citation]. A defendant instead “must show a ‘reasonable probability of a different result.’ ” [Citation.]’ [Citation.] Thus, ‘[e]vidence is “material” “only if there is a reasonable probability that, had [it] been disclosed to the defense, the result... would have been different.” [Citations.] The requisite “reasonable probability” is a probability sufficient to “undermine[] confidence in the outcome” on the part of the reviewing court. [Citations.] It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.] Further, it is a probability that is, as it were, “objective, ” based on an “assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision, ” and not dependent on the “idiosyncrasies of the particular decisionmaker, ” including the “possibility of arbitrariness, whimsy, caprice, ‘nullification, ’ and the like.” [Citation.]’ [Citations.]” (In re Sodersten, supra, 146 Cal.App.4th at pp. 1226-1227.) “ ‘The question is not whether the defendant 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.]’ ” (Id. at p. 1227.)
In considering the issue of materiality or prejudice, the fact that the disclosure was made prior to jury deliberations is relevant. “The situation is distinguishable from most cases of suppression by the prosecution in which the existence of the suppressed evidence is not discovered by the defendant until after the trial is over and a verdict reached. [Citations.] In the case at bar, defendant discovered the additional evidence before a verdict had been reached, indeed before the jury’s deliberations had begun. The court was therefore able to allow defendant to present the additional evidence to the jury in a timely manner, so that it could be considered in their deliberations. [¶] Although we agree with defendant that the prosecution improperly failed to disclose the evidence, he has not demonstrated that the procedure used by the court to remedy the misconduct resulted in prejudice. Indeed, it appears to have been appropriate under the circumstances.” (People v. Wright (1985) 39 Cal.3d 576, 591.)
We turn to the facts of this case. Defendant has wholly failed to establish a reasonable probability of a different result had the recording been timely disclosed. The recording was disclosed prior to the case being submitted to the jury. Defendant was permitted to play all portions of the tape that he believed were exculpatory before the jury. He was also permitted to recall Officer Rojas to examine him on the recording. Defendant further cross-examined Detective Valenzuela on the motorcycle documentation.
In defendant’s reply brief on appeal, he states that, had the recording been timely disclosed, his cross-examination of Officers Rojas and Fishburn would have different; defendant overlooks the fact that he was permitted to recall and re-examine Officer Rojas. Similarly, defendant states that the recording undermined the credibility of Detective Valenzuela, whom he describes as “the prosecution’s principal witness.” Yet here, too, he was permitted to use the recording to challenge Detective Valenzuela’s credibility.
It is true that Officer Fishburn was no longer available for further examination. Yet defendant introduced into evidence the recording on which Officer Fishburn indicated that Monterey Park Police Officers “checked all the numbers in [the garage] against the paperwork, it looked okay to [them].” Moreover, the fact that Officer Fishburn was aware that defendant had given paperwork to the Monterey Park Police Officers was not unknown to defendant prior to the discovery of the recording. Officer Fishburn’s police report, which had been timely disclosed to defendant, states that defendant “gave [Officer] Rojas paperwork for the [motorcycles].” Thus, defendant could have pursued this issue on cross-examination of Officer Fishburn when she first testified, based on her report.
Defendant also argues that the recording strongly undermines the opinion testimony of the prosecution’s expert, Connecticut State Police Sergeant Robert Kinney, who also was unavailable to retake the stand after the recording had been discovered. Defendant argues that Sergeant Kinney’s opinion that defendant operated a chop shop was “based in large part on the absence of paperwork or documentation in respect to special construction motorcycles.” Defendant overstates the relevance of the documentation in question. While Sergeant Kinney did testify that in a legitimate repair shop, he would expect to find every motorcycle or major component in the shop to have a receipt, invoice, or work order, he did not testify that the lack of such documentation for special construction motorcycles established that a shop was necessarily a chop shop. Instead, he testified that if such documentation was “completely absent, ” it would raise his suspicions and make him look further. When discussing this case in particular, Sergeant Kinney focused on the lack of documentation for all of the motorcycles in the defendant’s shop, not simply the special construction motorcycles. Moreover, when the issue was raised regarding title and registration for the special construction motorcycles, Sergeant Kinney explained that if each one was properly registered, it would not alter his opinion at all; Sergeant Kinney recognized that replacement engines and frames come with their own documentation, which enables subsequent registration.
Defendant also suggests that the main purpose of his own testimony was to establish that he gave the police documentation for the special construction motorcycles, and that, had the recording been timely disclosed, he might not have chosen to testify, thus preventing the jury from learning of his prior criminal history. We disagree. Defendant’s testimony covered many topics beyond receipts for the parts on the special construction motorcycles. Specifically, he explained the circumstances in which Juan had delivered the motorcycles; testified that he did not tell the police that Juan would pay him $500 per motorcycle to change the engines and frames; denied altering the hidden number behind the transmission cover on one of the special construction motorcycles; explained why he does not use work orders and invoices; and testified to the ownership of the special construction motorcycles. Moreover, defendant’s prior criminal activity, consisting of two juvenile joyriding convictions and a petty theft arrest, was not so prejudicial that it is reasonably probable the jury would have reached a different result had it not been aware of the conduct.
The main problem with defendant’s attempt to establish prejudice, however, is that the issue of whether defendant possessed receipts for the special construction motorcycles was fully litigated before the jury, and the relevance of any such possession was for the jury to decide. Prior to the discovery of the recording, both Officer Valenzuela and defendant testified as to the receipts; once the recording was discovered, it confirmed defendant’s testimony. Defendant then used the recording to obtain additional favorable testimony from Officer Rojas. The real issue was simply whether the existence of documentation for the special construction motorcycles established anything other than that officers on the scene may have misremembered whether defendant had presented them with such documentation. Detective Valenzuela explained that MSOs for replacement frames and engines would be expected in a chop shop; indeed he testified that he did not take the position that any parts in defendant’s shop, beyond those identified by Kurth, were stolen. Thus, while it is reasonable to assume that defendant’s trial would have been somewhat different had the recording been disclosed earlier, defendant has failed to establish a reasonable probability that the result would have been. Indeed, if anything, it is likely that the untimely disclosure of the recording worked to defendant’s advantage. The late disclosure resulted in: (1) defendant using the recording to impeach the officers; (2) defendant playing all exculpatory portions of the recording for the jury; (3) the jury being instructed as to the prosecution’s discovery failure; and (4) the inculpatory portions of the recording – including defendant’s devastating admission that he was to change the engines and frames on the motorcycles for Juan – were excluded from trial. Thus, defendant has failed to establish materiality, and there was therefore no Brady error.
In his reply brief on appeal, defendant states that the recording “established that the police officers used the papers and documents provided by [defendant] to inspect the motorcycles in the garage after which they concluded that the frames and engines had not been stolen.” (Emphasis added.) Yet the prosecution never contended that the replacement frames and engines on the special construction motorcycles were stolen.
2. There was no Prosecutorial Misconduct
Defendant next contends the prosecution committed misconduct in argument to the jury. In his opening argument, the prosecutor argued as follows: “One thing I want to talk about real briefly is the guys who actually stole motorcycles, and we’re not suggesting the defendant is the actual motorcycle thief. There’s no evidence of that, period. But what do we know about the guy who actually stole the motorcycles?” Arguing that the thieves were professionals, the prosecutor then stated, “This group of motorcycle thieves trusts the defendant with their work. Do you think that they picked the defendant out of the phone book? We know the profession[al] motorcycle thieves trust him.” Defendant did not object.
In defendant’s argument, counsel responded by suggesting that defendant was simply the innocent dupe of professional motorcycle thieves. Defense counsel stated, “Counsel is quite right. The people who stole these motorcycles are probably very sophisticated. Who better to pick on than an innocent person and suck them in? [¶] They know that the average guy like [defendant] hasn’t got a clue as to where those motorcycles came from, but they have done some business with him in the past, say fine. Drop them off. He will fix them. Nobody will know. That doesn’t mean he knows, and that is what they have to prove, and that’s what they can’t prove.”
In closing, the prosecution stated, “We know that the Juan transaction is unrealistic. We know that the defendant is the kind of individual who cannot make a credible claim of ignorance, because he has too much experience – well, experience in motorcycles and experience with stolen vehicles in general. [¶] We know that he has [a] fully developed shop. We know that he has associations with this professional motorcycle ring – motorcycle theft ring, I should say, and when I said yesterday, do you think they picked him out of [a] phone book? I think that’s a legitimate point. Of course not.” Defense counsel objected; the objection was overruled. The prosecutor continued, “So, you know, when I said that there’s that connection, we know that they trust him to do their work.”
This is an apparent reference to defendant’s prior juvenile joyriding convictions, with respect to which he conceded he had been driving stolen vehicles.
On appeal, defendant argues that “the prosecutor used his closing argument – after defense counsel had already spoken for the last time – to tell the jury that appellant was a member of or participant in a professional theft ring, suggesting thereby that appellant not only participated in stealing the motorcycles found at his residence but also that he was necessarily guilty of other uncharged crimes. In both cases, there was no evidence for these improper and unfounded assertions by the prosecutor.” Defendant similarly states in his reply brief that, “[d]uring closing argument, the prosecutor accused appellant of participating in the theft of the motorcycles.”
Defendant’s contention is belied by the record. At no point did the prosecutor state that defendant participated in the theft of the motorcycles; in fact, the prosecutor expressly stated that he was not suggesting such participation. Instead, the prosecutor simply stated that defendant had “associations with this professional motorcycle [theft] ring.” Having associations with a theft ring is not the same as being a member of it. In this context – particularly with the prosecutor’s explanation (“do you think they picked him out of a phone book?.... Of course not”) – it is apparent that the prosecutor was simply arguing that professional motorcycle thieves know and trust defendant with the necessary work to alter their stolen motorcycles. “Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial.” (People v. Lucas (1995) 12 Cal.4th 415, 473.) The prosecutor’s statement here was a reasonable inference. Defendant possessed seven recently-stolen motorcycles and an engine from a motorcycle stolen seven months previously, and parts from that latter stolen motorcycle were used in one of defendant’s special construction motorcycles. The inference that defendant does regular business with a professional motorcycle ring (and therefore has “associations” with them) is well-supported. The prosecutor never suggested defendant participated in the thefts, and no reasonable juror could infer such a suggestion from the prosecutor’s argument. There was no misconduct.
DISPOSITION
The judgment is affirmed.
We Concur: KITCHING, J., ALDRICH, J.