Filed 3/12/15 P. v. Nahinu CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)


THE PEOPLE,                                                                                  C076424

                   Plaintiff and Respondent,                                          (Super. Ct. Nos.
                                                                                     12F4102, 12F8833,
         v.                                                                         13F3999, & 13F4259)

STEVEN KALAKAUA NAHINU,

                   Defendant and Appellant.




         Defendant Steven Kalakaua Nahinu appeals from the trial court’s order denying
his motion to withdraw his no contest pleas pursuant to Penal Code section 1018.1
Defendant entered no contest pleas in four separate cases. On appeal, defendant contends
the trial court abused its discretion in denying his motion to withdraw his pleas based on
newly discovered evidence concerning the identity of a possible witness in one of the
four cases. Defendant also contends the prosecution failed to disclose a sheriff’s report
prepared in connection with an unrelated case against the witness, thereby violating his




1   Undesignated statutory references are to the Penal Code.

                                                             1
due process rights under Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215]
(Brady). We shall affirm.
                                     BACKGROUND
       Four criminal cases were commenced against defendant during the period from
June 2012 to July 2013.
       On June 26, 2012, a complaint was filed in Shasta County Superior Court case No.
12F4102, charging defendant with second degree commercial burglary (§ 459) and
receiving stolen property (§ 496, subd. (a)). The complaint further alleged that defendant
had suffered a prior strike conviction (§ 1170.12) and had served a prior prison term
(§ 667.5, subd. (b)).
       On December 21, 2012, a complaint was filed in Shasta County Superior Court
case No. 12F8833, charging defendant with possession of marijuana for sale (Health &
Saf. Code, § 11359) and possession of ammunition by a felon (§ 30305, subd. (a)(1)).
The complaint further alleged that defendant had suffered a prior strike conviction
(§ 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)).
       On June 28, 2013, a complaint was filed in Shasta County Superior Court case No.
13F3999, charging defendant with receiving stolen property (§ 496, subd. (a)), identity
theft (§ 530.5, subd. (a)), and theft by invalid access card (§ 484g, subd. (a)). The
complaint further alleged that defendant had suffered a prior strike conviction
(§ 1170.12) and had served a prior prison term (§ 667.5, subd. (b)).
       On July 5, 2013, a complaint was filed in Shasta County Superior Court case No.
13F4259, charging defendant with second degree robbery (§ 211) and carjacking (§ 215,
subd. (a)). The complaint further alleged that defendant had suffered a prior strike
conviction (§ 1170.12), had suffered a prior serious felony conviction (§ 667, subd.
(a)(1)), and had served a prior prison term (§ 667.5, subd. (b)). The complaint alleged
that defendant committed the offenses while on bail in case Nos. 12F4102, 12F8833, and
13F3999. The complaint alleged that defendant was armed with a firearm in the

                                              2
commission of the offenses (§ 12022, subd. (a)(1)) and personally used a firearm in the
commission of the offenses (§ 12022.53, subd. (b)).
       The First Plea Agreement
       On August 19, 2013, defendant entered into a plea agreement resolving all four
cases. In case No. 13F4259, defendant pleaded guilty to robbery and admitted a prior
strike conviction. In case No. 13F3999, defendant pleaded guilty to receiving stolen
property. In case No. 12F8833, defendant pleaded guilty to possession of marijuana for
sale. In case No. 12F4102, defendant pleaded guilty to receiving stolen property. As part
of the plea agreement, the parties stipulated that defendant would receive a 12-year prison
sentence and the remaining charges against him would be dismissed.
       Defendant’s First Motion to Withdraw His Plea
       On December 6, 2013, defendant filed a motion to withdraw his plea based, in
part, on the trial court’s failure to sentence him immediately, which had been a condition
of the parties’ plea agreement. The trial court granted the motion and reinstated all
charges.
       The Second Plea Agreement
       On January 9, 2014, defendant entered into a second plea agreement resolving all
four cases with the understanding that he would be sentenced to 10 years in state prison.
In case No. 12F4102, defendant pleaded no contest to receiving stolen property and
admitted a prior strike conviction. In case No. 12F8833, defendant pleaded no contest to
possession of marijuana for sale and admitted the prior strike conviction. In case No.
13F3999, defendant pleaded no contest to receiving stolen property and admitted the
prior strike conviction. In case No. 13F4259, defendant pleaded no contest to an
amended charge of driving a stolen vehicle (Veh. Code, § 10851) and admitted the prior
strike conviction. The remaining charges were then dismissed.




                                             3
       Defendant’s Second Motion to Withdraw His Plea
       On March 27, 2014, defendant filed a motion to withdraw his plea based on new
evidence in case No. 12F8833. The motion includes a brief summary of the sheriff’s
report in case No. 12F8833. The sheriff’s report is not part of the record.
       According to defendant’s summary, sheriff’s deputies responded to a report of
“indiscriminate shooting” on Intermountain Road in the early morning hours of
November 29, 2012. They contacted Joshua and Jedessa Sanders in a travel trailer on the
property. The Sanders claimed to have no knowledge of any gunfire, but directed
deputies to a nearby recreational vehicle (RV) occupied by a person known to them as
“Mike” or “Gunslinger.”
       Deputies entered the RV and found defendant and another person, codefendant
Robert McRorie, on the beds. They also found a duffel bag containing plastic bags full of
marijuana, a large jar full of marijuana, scales, and packaging material for marijuana.
Deputies also noticed a handwritten sign reading “Gunslinger” over one of the beds.
       Defendant and McRorie denied knowledge or possession of the marijuana.
       Defendant’s motion was accompanied by a declaration stating that at the time
defendant entered his plea, he believed he was likely to be convicted at trial based on the
information then known to him. The declaration goes on to say: “Shortly after I entered
that plea, I learned the identity of an alternate suspect in [case No. 12F8833], Michael
Wagy who goes by the nickname ‘Gunslinger;’ [¶] . . . I also learned through Shasta
County Sheriff Office Report number 13-626 that Michael Wagy was arrested on
January 7, 2013, at the same address where I was arrested and was charged with crimes
related to the possession of items that were located inside of his residence there.” The
declaration does not specify which “items” Wagy was alleged to have possessed.
       Defendant’s declaration concludes by saying that defendant could not have
discovered the foregoing information prior to entering his plea, and would not have



                                             4
entered the plea had he known Wagy’s true name and the circumstances surrounding his
arrest.
          On April 16, 2014, defendant filed an addendum to the still-pending motion by his
counsel, attorney Robert L. Hammonds, Jr. In his declaration, Hammonds avers:
“During my investigation of [case No.] 12F8833 I came to believe that the true identity of
an alternate suspect known as “Gunslinger” was Mike Wiggy. [¶] I and my investigator
Jason Moore attempted to locate any records, files or persons with knowledge of Mike
Wiggy; [¶] . . . We were unsuccessful in locating any information on this alternate
suspect; [¶] . . . At this point in our investigation [defendant] entered his no contest plea
that is the subject of this motion.”
          Attorney Hammonds’s declaration goes on to say: “Shortly after the plea was
entered, I was informed by Rhonda Hixon, attorney for the co-defendant McRorie in
[case No.] 12F8833, that the true identity of Gunslinger was Michael Dean Wagy; [¶] . . .
Attorney Hixon provided me with a copy of Shasta County Sheriff’s Office report
number 13-626 that indicates that Michael Dean Wagy was arrested on January 7, 2013,
at the exact same location and address that [defendant] was arrested in [case No.]
12F833; [¶] . . . As a result of Wagy’s arrest on January 7, 2013, the Shasta County
District Attorney’s Office filed and prosecuted case number 13F1006.”
          Attorney Hammonds’s declaration concludes: “I believe that this information is
exculpatory information that was in under [sic] the custody and control of the Shasta
County District Attorney’s Office and should have been provided to the defense even
without request; [¶] . . . I do not believe that Deputy District Attorney Hanna who has
prosecuted this matter against [defendant] had any personal knowledge of Mr. Wagy’s
matter and have reviewed the court records and have found no instance where Mr. Hanna
appeared on that matter.”
          The trial court heard argument on the motion on April 18, 2014. At the beginning
of the hearing, the trial court observed that defendant may not have known Wagy’s

                                               5
proper name, but he knew that Wagy existed, albeit under a different name. Thus, the
trial court observed, defendant was likely to have considered the possibility that
“Gunslinger” or “Mike Wiggy” could be identified and located before trial in deciding
whether or not to accept the plea.
       The trial court then asked Attorney Hammonds how he could be sure that Wagy’s
testimony would be helpful to the defense. Hammonds responded: “I think there is some
likelihood that [Wagy] may come in and say it [(the marijuana and/or ammunition)] was
his. But I don’t know . . . that for sure. And I’m not making that representation. But it
does provide a concrete person that the defendant can point to, and say, this was his
house. . . . [¶] There [were] indications within that residence, like a travel trailer, that it
belonged to or a person named [Gunslinger] lived there. And the fact that that same
person was arrested at that location, and charged with possessing everything that was in
there, creates doubt in the mind of a fact finder.”
       In response, the prosecutor emphasized that defendant had been aware of the
existence of a third party named “Gunslinger” or “Mike Wiggy” from the time the case
was first filed. According to the prosecutor, “the defendant and the codefendant were
found hiding on two beds within an RV trailer. There is never any accusation within that
case that it’s their trailer, that they lived there. The statements from the defendant relate
to this other person, Mike gun slinger. They at that time don’t know his last name,
apparently, who had just left the residence. [¶] So the evidence at the time that this case
was first filed, was that there was some third party there and present. The defendant was
aware of that information.”
       The prosecutor also argued that Wagy’s connection to the RV was irrelevant to the
People’s case against defendant. According to the prosecutor, “this location appears to
be a place where a lot of RV’s and trailers and a lot of--sounds like down on their luck
folks who are there. It’s not an address with a house, where someone owns the house and
it’s readily identifiable who the person is. [¶] And according to the subsequent case

                                                6
which relates to this now identified person, that is not even [Wagy’s] address. It is not
his probation address at the time that it’s determined. The witnesses in that case, and I
think he makes a statement that he is at that location, three to four days a week.”
       Furthermore, the prosecutor argued, “it’s a little bit surprising that the person was
unknown to the defendant, in that the defendant was located in supposedly his RV. He
was located with a--there was marijuana throughout the RV, but there was also a duffle
bag with repackaged marijuana in it, which would seem to signify that he and the other
defendant had brought the marijuana to that location and that it was ready for travel. [¶]
But there has never been an accusation that he lived there, or that it was his house. And
so the facts that were known to the defendant the second time he entered the plea,
because this would be the second motion to withdraw a plea--the last one was granted--
were known to the defendant a year ago. And just because this person has been identified
more specifically, and is now in state prison, and so maybe he would testify since he
really doesn’t have anything to lose, it doesn’t change the circumstances here in this case,
that this information was known to the defendant, very well could have been known to
the defendant.”
       The prosecutor also denied the alleged Brady violation, stating: “I think an
assertion that we somehow were supposed to track this completely unrelated report, not
handled by any of the same parties, not involved the same police officers, and somehow
connect the two based on a street address where numerous trailers are, is obviously not
reasonable.”
       The trial court denied the motion, stating: “Another problem with this kind of
scenario, because it leaves open the possibility that two people who may be responsible
for the same offense, if one of them isn’t arrested at the time. And generally, people
aren’t too eager to identify co-participants especially if they haven’t been arrested. Later
gets arrested and convicted, that would automatically provide a basis to withdraw the plea
when the person said, gee, by the way, now I know who that person was. [¶] So it’s a

                                             7
little bit--at least from the participants themselves--I have no problem with counsel’s
declaration. But I don’t afford [defendant’s] declaration a total credibility. So I don’t see
it as a basis. I don’t see an establishment by a clear and convincing evidence for the basis
to withdraw the plea. So the motion is denied.”
       The trial court then sentenced defendant to the stipulated term of 10 years in state
prison based on a six-year term (a three-year upper term doubled for the strike) in case
No. 12F4102 and consecutive 16-month terms (one-third the middle term doubled for the
strike) in the remaining cases.
       Defendant filed a timely notice of appeal. The trial court granted defendant’s
request for a certificate of probable cause.
                                          DISCUSSION
                                              I
        The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Motion to
                        Withdraw His Plea Under Section 1018
       Defendant contends the trial court abused its discretion by denying his motion to
withdraw his plea. We disagree.
       Section 1018 permits a defendant to move to withdraw his plea for good cause at
any time before judgment is entered.2 A no contest plea is treated the same as a guilty
plea for purposes of section 1018. (People v. Rivera (1987) 196 Cal.App.3d 924, 926-
927.) To establish good cause, a defendant must show by clear and convincing evidence
that his plea was the result of mistake, ignorance, or any other factor overcoming the
exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) However, a




2 Section 1018 provides in pertinent part, “On application of the defendant at any time
before judgment . . . the court may, . . . for a good cause shown, permit the plea of guilty
to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally
construed to effect these objects and to promote justice.”

                                               8
defendant must establish that his free will was overcome, not merely that he had a change
of heart. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
       A trial court’s decision to grant or deny a defendant’s motion to withdraw his plea
is reviewed for abuse of discretion. (People v. Mickens (1995) 38 Cal.App.4th 1557,
1561 (Mickens).) Discretion is abused when a court acts in an arbitrary, capricious, or
patently absurd manner, which results in manifest miscarriage of justice. (People v.
Jordan (1986) 42 Cal.3d 308, 316.) In determining whether a defendant has shown good
cause for granting a motion to withdraw his plea, the reviewing court must adopt the trial
court’s factual findings if they are supported by substantial evidence. (People v.
Fairbank (1997) 16 Cal.4th 1223, 1254.)
       Relying on People v. Ramirez (2006) 141 Cal.App.4th 1501 (Ramirez), defendant
argues that the prosecution “suppressed” favorable information, thereby overcoming his
ability to exercise free judgment in deciding to plead no contest. (See Ramirez, supra,
141 Cal.App.4th at p. 1506 [“The state’s suppression of favorable evidence is an extrinsic
cause which may overcome the exercise of free judgment.”].) Defendant’s reliance on
Ramirez is misplaced.
       In Ramirez, defense counsel discovered a previously undisclosed supplemental
police report after the defendant pleaded no contest to armed robbery and evading arrest
in exchange for the dismissal of carjacking and unlawful driving charges. (Ramirez,
supra, 141 Cal.App.4th at pp. 1503-1504.) The supplemental police report contained
witness statements indicating that the defendant was not present during the carjacking,
and had been an unwilling passenger during the later police chase. (Id. at pp. 1504-
1505.) The prosecution had ample opportunity to produce the supplemental report to the
defendant prior to the admission of his plea, but failed to do so. (Id. at p. 1506.)
       The trial court denied the defendant’s motion to withdraw his plea and the court of
appeal reversed, stating: “Here, appellant has established by clear and convincing
evidence that the prosecution’s withholding of favorable evidence affected his judgment

                                              9
in entering his plea, rendering the waiver of rights involuntary. The fact that the new
information did not uncontrovertibly exonerate appellant is beside the point. The
supplemental report identified new defense witnesses, potentially reduced appellant’s
custody exposure, and provided possible defenses to several charges, thereby casting the
case against him in an entirely different light. Appellant suffered prejudice by his
ignorance because earlier discovery of the report would have affected his decision to
enter a plea before the preliminary hearing.” (Ramirez, supra, 141 Cal.App.4th at pp.
1507-1508.) The facts in this case are different.
       Preliminarily, we observe that Ramirez involved a supplemental police report
prepared in connection with the same case as the one that resulted in charges against the
defendant. (Ramirez, supra, 141 Cal.App.4th at p. 1506.) Here, by contrast, the sheriff’s
report describing Wagy’s arrest was prepared in connection with an entirely different
case. There is nothing in the record to suggest that the Wagy report was “supplemental”
to any report prepared in defendant’s case. Furthermore, as we shall discuss, there is
nothing in the record to suggest that the Wagy report was “suppressed.”3 Consequently,
we reject defendant’s attempt to analogize to Ramirez by characterizing the Wagy report
as a supplemental report that was suppressed.
       Having concluded that defendant’s ability to exercise free judgment was not
overcome by the suppression of favorable information, we next consider whether the
record suggests any other basis for defendant’s motion to withdraw his plea. For
purposes of analysis, we assume that the information contained in the Wagy report
constitutes newly discovered evidence. (But see In re Hall (1981) 30 Cal.3d 408, 420
[information that was known or could have been discovered by diligent investigation



3 We consider defendant’s Brady claim momentarily. For present purposes, suffice to
say that the record does not support defendant’s characterization of the Wagy report as
having been “suppressed.”

                                            10
before trial does not qualify as newly discovered evidence].) We also assume without
deciding that newly discovered evidence constitutes good cause within the meaning of
section 1018. (Ramirez, supra, 141 Cal.App.4th at p. 1507 [“ ‘ “the withdrawal of a plea
of guilty should not be denied in any case where it is in the least evident that the ends of
justice would be subserved by permitting the defendant to plead not guilty instead; and it
has been held that the least surprise or influence causing a defendant to plead guilty when
he has any defense at all should be sufficient cause to permit a change of plea from guilty
to not guilty” ’ ”].)
       Even assuming that section 1018 applies, we conclude that Ramirez is inapposite.
In Ramirez, the defendant had no knowledge of any exculpatory witnesses until after he
entered his guilty plea. (Ramirez, supra, 141 Cal.App.4th at p. 1506.) In this case, by
contrast, defendant knew of Wagy’s existence prior to entering his plea. Although
defendant may not have known Wagy’s true name, he knew Wagy’s first name (“Mike”),
a close approximation of his last name (“Wiggy”), his nickname (“Gunslinger”), and
frequent location (the property on Intermountain Road). Thus, unlike the defendant in
Ramirez, defendant was not only aware of the existence of the witness at the time of his
plea, he was also in possession of information that could have helped him to identify and
locate the witness before trial.
       The differences between defendant’s case and Ramirez do not end there. In
Ramirez, the defendant demonstrated by clear and convincing evidence that his decision
to plead no contest was based on his mistaken belief that no favorable evidence on his
behalf existed, there were no available defenses, and he would lose his case and receive a
20-year prison term. (Ramirez, supra, 141 Cal.App.4th at p. 1507.) Thus, the defendant
was able to show that his ignorance of the supplemental report “materially affected his
decision to accept the plea agreement.” (Ibid.) In this case, by contrast, defendant failed
to demonstrate by clear and convincing evidence that he would not have accepted the
plea agreement had he known about the Wagy report.

                                             11
       Although defendant claimed he “would not have entered the plea of no contest”
had he known about the Wagy report, the trial court found defendant lacked credibility.
We defer to the trial court’s credibility determinations if reasonably justified by the
record. (See People v. Quesada (1991) 230 Cal.App.3d 525, 533, superseded by statute
on another point as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207,
fn. 5.) Here, the record amply supports the trial court’s determination that defendant
lacked credibility. As noted, defendant was not only aware of Wagy’s existence at the
time he entered his plea, he also possessed sufficient information to conduct a meaningful
search, including Wagy’s first name, nickname, and connection to the RV.
Consequently, as the trial court observed, much of the information in the Wagy report
“was known and went into the calculations as to whether or not a plea should be entered.”
Furthermore, as the People observe, the information contained in the Wagy report would
have only been relevant to one of the four cases pending against defendant, giving rise to
an inference that defendant based his plea, in part, on the calculation that Wagy could
only serve a limited exculpatory purpose, assuming he could be identified and found.
Under the circumstances, the trial court’s determination that defendant was not entitled to
“total credibility” was reasonably justified by the record.4
       Attorney Hammonds’s declaration reveals yet another difference between this case
and Ramirez. In Ramirez, the defendant’s trial counsel specifically stated that the
supplemental police report would have affected his evaluation of the case and altered his
advice to the defendant in accepting the plea agreement. (Ramirez, supra,




4 Defendant contends the trial court “simply felt that it was bad policy under the
circumstances to grant [the motion to withdraw defendant’s plea], and therefore applied a
presumption that [defendant’s] declaration was disingenuous.” There is nothing in the
record to suggest that the trial court based its decision solely on policy considerations or
failed to give adequate consideration to defendant’s declaration.

                                             12
141 Cal.App.4th at p. 1507.) In this case, by contrast, defense counsel made no such
representation.
       Finally, we observe that the circumstances surrounding Wagy’s arrest, to the
extent they can be gleaned from the record, do not appear to provide the sort of powerful
exculpatory evidence found in the supplemental police report in Ramirez. The record
indicates that Wagy was arrested approximately five weeks after defendant. Defendant
makes much of the fact that Wagy was arrested in the same RV; however, the record does
not establish that Wagy owned the RV or even lived there full-time. If anything, the
prosecutor’s remarks during the argument on defendant’s motion to withdraw his plea
suggest that the RV might have been used by a number of people. Similarly, defendant
emphasizes the fact that Wagy was charged with possession of “items” found in the RV.
However, the record does not disclose which “items” Wagy is alleged to have possessed.
Moreover, and more importantly, Attorney Hammonds could not represent that Wagy
would testify the marijuana was his. Thus, unlike the supplemental report in Ramirez, the
newly discovered evidence in this case does not cast defendant “in an entirely different
light.” (Ramirez, 141 Cal.App.4th at p. 1508.)
       Defendant has not met his evidentiary burden to show that his ignorance of
Wagy’s true name was sufficient to overcome the exercise of his free judgment, or that
the ends of justice would be subserved by permitting a change of plea. (People v. Weaver
(2004) 118 Cal.App.4th 131, 145-146.) Defendant merely asserts the discovery of
information that could conceivably improve his chances at trial, which is insufficient.
(People v. Caruso (1959) 174 Cal.App.2d 624, 642.) Accordingly, we conclude that the
trial court did not act arbitrarily or capriciously in denying defendant’s motion to
withdraw his plea, and defendant has shown no abuse of discretion.




                                             13
                                             II
         The Trial Court Did Not Err in Denying Defendant’s Motion to Withdraw His
                      Plea Based on the Alleged Brady Violation
       Next, defendant contends the prosecution failed to disclose exculpatory evidence
under Brady, thereby violating his right to due process. Although defendant’s argument
on appeal is not entirely clear, he apparently contends the alleged Brady violation
constituted an independent basis for granting his motion to withdraw his plea. As we
explain, the trial court was within its discretion to deny defendant’s motion because
defendant failed to establish a Brady violation. (See Mickens, supra, 38 Cal.App.4th at p.
1561 [abuse of discretion review for trial court’s ruling on motion to withdraw plea];
People v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar) [de novo standard of review for
the issue of whether the defendant has established the elements of a Brady claim].)
       “ ‘[T]he term “Brady violation” is sometimes used to refer to any breach of the
broad obligation to disclose exculpatory evidence--that is, to any suppression of so-called
“Brady material”--although, strictly speaking, there is never a real “Brady violation”
unless the nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict. 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.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the
evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, 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




                                             14
“reasonable probability of a different result.” ’ ” (Salazar, supra, 35 Cal.4th at pp. 1042-
1043.)
         Federal courts are divided on the question whether prosecutors are required to
disclose material exculpatory evidence before entering into plea agreements. (Compare
Matthew v. Johnson (5th Cir. 2000) 201 F.3d 353, 361-362 [Brady inapplicable to guilty
pleas] with McCann v. Mangialardi (7th Cir. 2003) 337 F.3d 782, 787 [opining in dicta
that allowing defendant to enter guilty plea without disclosing exculpatory evidence
would violate due process].) Our Supreme Court has declined to “decide the broad
question whether or to what extent the prosecution has a duty to disclose evidence
favorable to a criminal defendant before the defendant pleads guilty.” (In re Miranda
(2008) 43 Cal.4th 541, 582, fn. omitted.) Defendant urges us to adopt the reasoning of
the federal courts that have concluded that Brady requires prosecutors to disclose
exculpatory evidence at the plea stage. We conclude that it is unnecessary for us to reach
the issue, as defendant has failed to establish the elements of a Brady violation in any
case.
         To show material is subject to Brady, it “ ‘must be favorable to the accused, either
because it is exculpatory, or because it is impeaching.’ ” (Salazar, supra, 35 Cal.4th at p.
1043; People v. Ashraf (2007) 151 Cal.App.4th 1205, 1214.) “Evidence is ‘favorable’ if
it either helps the defendant or hurts the prosecution, as by impeaching one of its
witnesses.” (In re Sassounian (1995) 9 Cal.4th 535, 544 (Sassounian).) Defendant
appears to assume that the information contained in the Wagy report was “favorable.”
However, “to determine whether evidence that was not disclosed to the defense was
favorable and material under Brady, we must have some idea of what that evidence was.”
(Ashraf, at p. 1212.) Here, the Wagy report does not appear in the record and we have




                                              15
been provided only a bare outline of its contents.5 We have found nothing in the record
to suggest that the information contained in the Wagy report would have tended to show
that defendant did not possess marijuana for sale in November 2012. Furthermore, we
cannot presume that the Wagy report was exculpatory in content. (Id. at pp. 1212-1214.)
Accordingly, we conclude that defendant has failed to establish that the information
contained in the Wagy report was “favorable.”
       Defendant has also failed to show that the Wagy report was “suppressed.” Under
Brady, the prosecutor has the duty to learn of any favorable evidence known to others
acting on the government’s behalf in the case. (Salazar, supra, 35 Cal.4th at p. 1042.)
The prosecution’s duty to search for exculpatory evidence is generally limited to
materials possessed by the “prosecution team” that is connected to the investigation or
prosecution of the charges against the defendant. (Barnett v. Superior Court (2010)
50 Cal.4th 890, 904.) “However, in limited circumstances the prosecution’s Brady duty
may require disclosure of exculpatory and impeachment information contained in
materials that are not directly connected to the case. For example, particularly upon the
request of the defense, the prosecution has the duty to seek out critical impeachment
evidence in records that are ‘ “reasonably accessible” ’ to the prosecution but not to the
defense. (People v. Little (1997) 59 Cal.App.4th 426, 433-434 [prosecution must
investigate key prosecution witness’s criminal history and disclose felony convictions];
People v. Santos (1994) 30 Cal.App.4th 169, 178-179 [upon defense request, prosecution
must disclose prosecution witnesses’ misdemeanor convictions]; People v. Hayes (1992)



5  As noted, defendant’s declaration describes the contents of the Wagy report as follows:
“. . . Michael Wagy was arrested on January 7, 2013, at the same address where
[defendant] was arrested and was charged with crimes related to the possession of items
that were located inside of his residence there.” According to Attorney Hammonds’s
declaration, the Wagy report “indicates that Michael Dean Wagy was arrested on
January 7, 2013, at the exact same location and address that [defendant] was arrested in
[case No.] 12F8833.”

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3 Cal.App.4th 1238, 1243, 1245 [upon defense request, prosecution must disclose
prosecution witnesses’ criminal convictions, pending charges, probation status, acts of
dishonesty, and prior false reports]; People v. Martinez (2002) 103 Cal.App.4th 1071,
1078; In re Pratt (1999) 69 Cal.App.4th 1294, 1317.)” (J.E. v. Superior Court (2014)
223 Cal.App.4th 1329, 1335-1336, fn. omitted.)
       “When deciding the scope of the prosecution’s duty to search files unrelated to the
case, the courts consider such factors as whether a request has been made by the defense;
the prosecution’s ease of access to the information; and the likelihood of evidence
favorable to the defense. ([United States v.] Brooks [(D.C. Cir. 1992) 966 F.2d 1500,]
1504 [prosecution should inspect files when ‘there is an explicit request for an apparently
very easy examination, and a non-trivial prospect that the examination might yield
material exculpatory information . . .’]; [United States v.] Joseph [(3d Cir. 1999) 996 F.2d
36,] 41 [absent request by defense, prosecution need not search ‘unrelated files to exclude
the possibility, however remote, that they contain exculpatory information’].)” (J.E. v.
Superior Court, supra, 223 Cal.App.4th at p. 1336, fn. 6.) “[W]here a prosecutor has no
actual knowledge or cause to know of the existence of Brady material in a file unrelated
to the case under prosecution, a defendant, in order to trigger an examination of such
unrelated files, must make a specific request for that information--specific in the sense
that it explicitly identifies the desired material and is objectively limited in scope.”
(United States v. Joseph, supra, 996 F.3d at p. 41, fn. omitted.)
       As we have discussed, the Wagy report was prepared in connection with an
entirely different case. There is nothing in the record to suggest that defendant made any
specific request for information that might have encompassed the Wagy report.
Furthermore, there is nothing to suggest that anyone on the prosecution team knew or
should have known that the Wagy report contained information that might be relevant to
defendant’s case. To the contrary, Attorney Hammonds’s declaration states: “I do not
believe that [the prosecutor] . . . had any personal knowledge of Mr. Wagy’s matter and

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have reviewed the court records and found no instance where [the prosecutor] appeared
on that matter.” On this record, we conclude that defendant has failed to establish that
the prosecution breached a duty to disclose the Wagy report.
       Assuming arguendo that the prosecution breached a duty to disclose the Wagy
report, defendant fails to establish prejudice. Whether the suppression of evidence is
prejudicial turns on the materiality of the information that has been withheld. (Salazar,
supra, 35 Cal.4th at p. 1043; see also Runningeagle v. Ryan (9th Cir. 2012) 686 F.3d 758,
769 [“ ‘The terms “material” and “prejudicial” are used interchangeably in Brady
cases’ ”].) The defendant has the burden of showing materiality. (Sassounian, supra,
9 Cal.4th at p. 545.)
       Evidence is material under Brady “only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different. A ‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” (United States v. Bagley (1985) 473 U.S. 667, 682
[87 L.Ed.2d 481, 494]; see Sassounian, supra, 9 Cal.4th at p. 544.) “ ‘[T]he issue in a
case involving a guilty plea is whether there is a reasonable probability that but for the
failure to disclose the Brady material, the defendant would have refused to plead and
would have gone to trial.’ [Citations.]” (United States v. Nelson (D.D.C. 2013)
979 F.Supp.2d 123, 134.)
       Defendant contends the information in the Wagy report was material because
“. . . Wagy’s testimony could have provided a defense.” However, there is nothing in the
record to suggest that Wagy’s testimony would have been helpful to the defense. To the
contrary, Attorney Hammonds could not say what Wagy’s testimony would have been.
Mere speculation about what Wagy’s testimony might have been does not establish
materiality under Brady. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28,
52.)



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       Defendant also contends the Wagy report was material because the circumstances
surrounding Wagy’s arrest “could have created a reasonable doubt in the minds of jurors
that the marijuana and ammunition belonged to [defendant].” However, “ ‘[t]he 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.’ ” (People v. Lucas (2014) 60 Cal.4th 153, 234.) In the absence of
any information concerning the contents of the report or substance of Wagy’s likely
testimony, we have no way of knowing whether there was a reasonable probability that
defendant would have refused to plead and gone to trial. Thus, defendant has failed to
establish materiality under Brady.
       For all of the foregoing reasons, we conclude that defendant has failed to establish
the elements of a Brady violation. We further conclude that the trial court did not abuse
its discretion by denying defendant’s motion to withdraw his plea based on the alleged
Brady violation.
                                        DISPOSITION
       The judgment is affirmed.


                                             BLEASE                    , Acting P. J.


We concur:


         HULL                        , J.


         BUTZ                        , J.




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