Filed 12/16/14 P. v. De Los Santos CA2/6




                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,                                                                    2d Crim. No. B247036
                                                                             (Super. Ct. No. GA079201)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.                                                                      ORDER MODIFYING OPINION
                                                                        [NO CHANGE IN JUDGMENT]
STEVEN DE LOS SANTOS,

     Defendant and Appellant.




                   THE COURT on its own motion, orders that the opinion filed herein on
December 10, 2014, be modified as follows:
                   1. On page 1, the "Super. Ct. No. GA 0795201" is modified to read
Super. Ct. No. GA079201.
                   There is no change in the judgment.
Filed 12/10/14 P. v. De Los Santos CA2/6 (unmodified version)

                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,                                                                    2d Crim. No. B247036
                                                                            (Super. Ct. No. GA 0795201)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

STEVEN DE LOS SANTOS,

     Defendant and Appellant.




                   Steven De Los Santos was charged in an information with mayhem (Pen.
Code § 203 – count 1); battery with serious bodily injury (id. § 243, subd. (d) – count
2); possession of cocaine for sale (Health & Saf. Code § 11351 – count 3); possession
of more than one kilogram of methamphetamine for sale (id. §§ 11370.4, subd. (a)(1),
11378 – count 4); and possession of a controlled substance while armed with a
handgun (id. § 11370.1, subd. (a) – count 5). The mayhem charge was dismissed
before trial and the battery charge was severed from the other counts for trial
separately. When the jury found De Los Santos guilty verdict on count 2, he entered a
plea of no contest to counts 3 through 5. De Los Santos was sentenced to seven years
in state prison and was ordered to pay certain fines and assessments and to make
restitution.
              On appeal De Los Santos contends his conviction must be reversed and
the charge dismissed because of Brady violations and "outrageous" conduct by a
police detective. (Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) While the
court's minutes and judgment must be corrected to reflect that De Los Santos was
convicted by a jury and not based upon a plea of guilty or no contest, in all other
respects we affirm.
                   FACTS AND PROCEDURAL BACKGROUND
                                   The People's Case
              Phillip Amaro worked as a "D.J." at Maikobe, a restaurant/bar in
Pasadena. On the night he was attacked, Amaro met Ian Chandler, a coworker, and his
girlfriend Vickie Chevalier at Maikobe. After having drinks there, they went to
Wokcano, a nearby restaurant/bar where Alexander Andre worked as a D.J. and
Edward Damas and Eric Ruiz were security guards. De Los Santos, a former
Wokcano security guard, was a patron.
              When Amaro and his companions arrived at Wokcano, Andre
approached Amaro and challenged him to a "D.J. battle" – a competition between the
D.J.s to show off their skills. When Amaro took his turn, he shouted insults at Andre
which led to an "exchange of words" and a fistfight.
              Chandler jumped into the fray and restrained Andre. De Los Santos
grabbed Amaro from behind, placed him in a headlock/chokehold and lifted him off
the ground. As Amaro struggled to free himself, De Los Santos struck him hard on the
right side of his face and Amaro felt blood spilling into his mouth. Amaro "saw stars"
and then passed out.
              Chevalier was close to the fight and saw De Los Santos hit Amaro very
hard three times on his face. She said she saw Damas and other persons also punch
him. De Los Santos, Damas and Ruiz then carried Amaro out of the bar and left him
face down, seriously injured and unconscious in an alley behind the bar.




                                            2
                                   The Defense Case
              Ryan Telles, a bartender at Wokcano, said Amaro was intoxicated. He
confirmed Andre's "D.J. challenge," Amaro's taunting insults and the fight that
followed. Telles recalled that the security guards intervened and said De Los Santos
held Amaro in a chokehold and Damas restrained his hands. Telles said he did not see
anyone strike Amaro before he was taken out of the bar.
              Damas elected to testify at his trial. He said De Los Santos put Amaro in
a headlock and lifted him off the ground. Amaro struggled against De Los Santos'
chokehold and wildly swung his fists and kicked his feet. Damas testified that he
grabbed Amaro's wrists and the struggling stopped. Damas said he and Ruiz and
De Los Santos escorted Amaro to the back door of the bar and De Los Santos and Ruiz
took him into the alley and left him there. Damas denied striking Amaro and said he
did not see De Los Santos or anyone else attack Amaro before he was taken out of the
bar.
                 Disclosure of Eight Recorded Interviews by Okamoto
              Kevin Okamoto was the detective assigned to investigate the case. Six
days into the presentation of the prosecution's case, Okamoto disclosed that in 2010 he
recorded the statements of several persons about the incident at Wokcano. One of the
persons was Megan Cannon, an eyewitness to the fight and its aftermath.
              De Los Santos and his codefendant Damas moved to dismiss the battery
charges, asserting Okomoto's failure to disclose the interviews and turn over the tapes
was "egregious" Brady error. The prosecutor agreed the recorded statements should
have been disclosed and produced but contended Okamoto's failure to do so was not a
Brady violation that prejudiced the defense or warranted dismissal.
              The court refused to rule on the defendants' motion to dismiss the
proceedings until all the evidence was received and the question of the prejudice, if
any, resulting from the late disclosure could be fully developed. The court said, "I'll
only rule on a motion for a mistrial. Dismissal is not the only remedy for any kind of
discovery violation. The court has numerous other remedies." The court said the

                                            3
question was "whether the defense can present a defense without . . . this information.
So far, the defense has [presented] a very effective defense. I want to get this case to a
jury or I will grant a mistrial. . . . So, counsel, let me know what your choice is, if
there is a choice."
              The trial court repeatedly agreed to grant a motion for a mistrial if
counsel for De Los Santos and Damas would simply make the motion. De Los Santos
and Damas repeatedly rejected the remedy suggested by the court. The court said,
"Make a motion for a mistrial, and I will happily grant it"; "I'm willing to [be fair to
the defendants]. If you want a mistrial to be granted, I will do that. You will then
have enough time to prepare your case." "If you feel you cannot continue on with late
information, you may request a mistrial, and I will grant it." Defense counsel made
the strategic decision to refuse the remedy of a mistrial.
              The trial court permitted Okamoto to testify about his investigation and
to relate what was said in Cannon's interviews. Okamoto said Cannon told him she
was at the bar, close to the commotion when it started. She said she was acquainted
with De Los Santos and his family and saw him put Amaro in a headlock to control
him and get him out of the back door of the bar with Damas' help. Okamoto testified
that Cannon told him she did not see anyone strike Amaro and said De Los Santos and
Damas came back into the bar immediately after taking Amaro outside.
              Okamoto said he did not disclose the interviews and the recordings
because he thought they were not "relevant." Cannon's interview was not disclosed
because she "didn't see a lot" and because she was "friends with [De Los Santos']
family" and for that reason was "somewhat deceptive."
              Okamoto was vigorously cross-examined by counsel for De Los Santos
and Damas. The trial court instructed the jury that it could consider Okamoto's failure
to timely disclose Cannon's statements and its effect on the ability of De Los Santos
and Damas' ability to present a defense or receive a fair trial. The final arguments of
counsel included withering criticism of Okamoto's investigative techniques and his
decision not to disclose the interviews.

                                             4
              De Los Santos' motion for a new trial was denied based upon all the
evidence and the court's conclusion that it could not be said the outcome would
probably have been different if Okamoto's interviews of Cannon had been timely
provided.
              De Los Santos contends that it was an abuse of discretion for the trial
court to deny his motion to dismiss the proceedings and to deny his motion for a new
trial because Okamoto's deliberate withholding of the recorded statement of Cannon,
an eyewitness, was a Brady violation that demanded one of these remedies. We
disagree.
                                      DISCUSSION
                                              I.
                                 Claimed Brady Violation
              Brady imposes on the prosecution an affirmative duty to disclose
material, exculpatory information to the defense, "irrespective of the good faith or bad
faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) 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." (U.S. v. Bagley (1985) 473
U.S. 667, 682.) A reasonable probability is one sufficient to undermine confidence in
the outcome of the trial. (Id., at p. 674.)
              The remedy for a Brady violation is a mistrial, which is precisely what
the trial court offered De Los Santos and Damas. (See Levenson, Cal. Criminal
Procedure (Rutter 2013) ¶ 16:6, p. 126-9; Merrill v. Superior Court (1994) 27
Cal.App.4th 1586, 1594.) As a matter of trial tactics, the defendants' counsel rejected
the remedy and therefore waived the claimed error. They believed, perhaps
reasonably, that the defendants' strongest defense would be had by vigorously cross-
examining Okamoto, securing a jury instruction that calls attention to the untimely
disclosure of evidence by the People (CALCRIM No. 306) and by aggressively
arguing the impact of Okamoto's bad choices on the defendants' right to a fair trial.
Having made that election, De Los Santos is bound by it. (See, e.g., People v.

                                              5
Morrison (2004) 34 Cal.4th 698, 714-715 [failure to "request appropriate sanctions, or
seek a continuance on the matter is fatal to his contentions on appeal"].)
              "Although the right to request a mistrial or proceed to a conclusion with
the same jury is a fundamental right, the law does not require that it be personally
waived by an accused, nor does the law require that an accused be admonished
concerning the nature of the right. [Citations.] Accordingly, trial counsel had the right
to make that decision as a matter of trial tactics [citation] even over appellant's
objection. [Citation.]" (People v. Brandon (1995) 40 Cal.App.4th 1172, 1175.)
              In any event, De Los Santos' claims lack merit. The court's offer to grant
a mistrial if either De Los Santos or Damas made the motion means the witness and
what she said were disclosed in time for its effective use at trial. (People v. Wright
(1985) 39 Cal.3d 576, 589 [Brady is not violated if disclosed in time for presentation
to the jury].) Counsel for the defendants knew Cannon was a witness well before the
trial commenced. De Los Santos and Damas listed her as a potential witness. Damas'
counsel interviewed Cannon before trial and shared his notes about the interview with
the prosecutor and counsel for De Los Santos. When De Los Santos' counsel spoke to
Cannon during the trial, she considered calling Cannon to testify but concluded she
would not be of help to De Los Santos. "'[W]hen information is fully available to a
defendant at the time of trial and his . . . only reason for not obtaining and presenting
the evidence to the Court is his . . . lack of reasonable diligence, the defendant has no
Brady claim.' [Citation.]" (See also U.S. v. Stuart (1980) (8th Cir. 1998) 150 F.3d
935, 937 ["Evidence is not suppressed if the defendant has access to the evidence prior
to trial by the exercise of reasonable diligence"].)
              Cannon's statement to Okamoto that she did not see anyone hit Amaro
while he was inside the bar was presented to the jury. Based upon her conversations
with counsel for the defendants, it does not appear she had anything else to offer. The
trial court properly tempered Okamoto's failure to provide the evidence earlier by
allowing the "sum and substance" of Cannon's recollections to be presented to the jury
through the hearsay testimony of Okamoto. The manner of presenting Cannon's

                                             6
"testimony" advantaged the defense because she could not be cross-examined or
impeached about the substance of her recollections or her "friend of the family"
connection to De Los Santos.
              We agree with the trial court that the defendants were not prejudiced by
the omission. Moreover, even assuming there was a Brady violation, the remedy is a
mistrial which the court offered and the defendants refused.
                                           II.
                         Claimed Outrageous Government Conduct
              De Los Santos contends the trial court should have dismissed the case
because Okamoto's conduct during his investigation was outrageous. Nine instances
of misconduct were asserted. We conclude these claims have been forfeited except as
to Okamoto's late production of evidence because they were not litigated below. The
claimed outrageous conduct was not asserted as a basis for either the motion to dismiss
that was made during the trial or the motion for a new trial after De Los Santos was
convicted by the jury.
              The defendants' motion to dismiss was made on March 9, 2012, when
Okamoto for the first time disclosed the February 2010 interviews and provided the
defendants' counsel with a copy of the recorded statements. This motion to dismiss
was based exclusively on the claimed Brady violation. Neither De Los Santos nor
Damas presented evidence of the alleged misconduct and the trial court was never
asked to make any findings. Issues not raised and decided in the trial court are
forfeited on appeal. (People v. Maury (2003) 30 Cal.4th 342, 418, fn. 17.) Similarly,
De Los Santos' motion for a new trial was based entirely on Okomoto's failure to
disclose the recorded statement of Megan Cannon.
                                          III.
                                The Abstract of Judgment
              The abstract of judgment shows De Los Santos' conviction was based
upon his plea of guilty or no contest. The People concede the abstract should be
amended to show he was convicted by a jury.

                                           7
                                   DISPOSITION
             The superior court is directed to amend the abstract of judgment
accordingly and forward a copy of the amended abstract to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed in all other
respects.
             NOT TO BE PUBLISHED.




                                         BURKE, J.*



We concur:


             YEGAN, Acting P. J.



             PERREN, J.




*
 (Judge of the Superior Court of San Luis Obispo County, assigned by the Chief
Justice pursuant to art. 6, § 6 of the Cal. Const.)

                                          8
                                  Teri Schwartz, Judge

                         Superior Court County of Los Angeles
                         ______________________________


             Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney
General, for Plaintiff and Respondent.
