Filed 10/26/17
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                      2d Crim. No. B272132
                                               (Super. Ct. No. BA426149)
     Plaintiff and Respondent,                   (Los Angeles County)

v.

CLIFFORD HARRISON,

     Defendant and Appellant.



              The Brady rule (Brady v. Maryland (1963) 373 U.S.
83 (Brady)) is over 50 years old. It is alive, well, and as we
explain, it is self executing. There need be no motion, request, or
objection to trigger disclosure. The prosecution has a sua sponte
duty to provide Brady information.
              Clifford Harrison appeals his convictions by jury of
possessing a firearm after a felony conviction (count 1; Pen. Code,
                         1
§ 29800, subd. (a)(1)) and making criminal threats (count 4;
§ 422, subd. (a)). Appellant admitted a prior strike conviction
(§§ 667, subds. (b)-(j); 1170.12) and a prior serious felony
conviction (§ 667, subd. (a)) and was sentenced to prison for 11

        1
            All statutory references are to the Penal Code.
years. He contends that the trial court erred in denying his
motion for new trial after the prosecution failed to disclose a
video recording of appellant invoking his right to remain silent
during a Miranda interrogation. (Miranda v. Arizona (1966) 384
U.S. 436, 479.) Notwithstanding the video recording, the
arresting officer testified that appellant waived his Miranda
rights and admitted using a firearm to threaten the victim.
             We reverse the conviction on count 4 for criminal
threats and remand for new trial because of Brady error. We
deny relief as to count 1. We also vacate the original sentence
imposed as well as the purported resentencing conducted on
August 24, 2017. While an appeal pends, the trial court is
without power to “resentence.” (See, e.g., People v. Alanis
(2008)158 Cal.App.4th 1467, 1472-1474.)
                                 Facts
             On June 11, 2014, Donnis Moore gave his cousin,
appellant, a ride home to their grandmother’s house where
Moore, appellant, and three family members lived. Thereafter,
appellant asked if he could borrow Moore’s car. When Moore said
“‘No,’” appellant demanded that Moore pay the rest of the money
that Moore owed him. Moore had sold a car that they inherited
from their grandfather. Moore owed appellant half the sale
proceeds. Moore said he would give appellant $200 or $300 the
next day, at which point appellant pointed a handgun at Moore
and said “‘Go get my $600 right now.’” Appellant allegedly said
he would “blow” Moore’s “brains [out]” if Moore did not pay him.
             Moore left the house and asked his mother to call
911. When Moore returned with a $600 check, the police were
there and had detained appellant. Officers searched the house
and found a loaded .40 caliber semiautomatic handgun hidden in




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a linen closet. According to the police, appellant was advised of,
and waived his Miranda rights. Appellant told the arresting
officer that the handgun was his and that he used it during the
altercation with Moore.
                               First Trial
              After the trial court granted appellant’s Faretta
motion (Faretta v. California (1975) 422 U.S. 806) to represent
himself, appellant stipulated that he was a convicted felon with
respect to the count 1 charge of possession of a firearm by a felon.
Appellant told the trial court: “I’m not denying that I had
firearm . . . . [¶] [T]he real issue here is someone is saying that I
assaulted them with this firearm and [made] these criminal
threats. So as far as having a firearm, I’m not trying -- I don’t
want to deny that.”
              In opening statement, appellant told the jury: “Did I
have a firearm? Yes. Was it used in this confrontation [with the
victim] at all? It was not.” The arresting officer testified that
appellant waived his Miranda rights and admitted that the
handgun was his and that he used it in the altercation with
Moore. In closing argument appellant again admitted possessing
the firearm but denied that he used the firearm during the
altercation with Moore. The jury returned guilty verdicts on
count 1, felon in possession of a firearm, and count 4 making
criminal threats. But, on count 2 (assault with a firearm; § 245,
subd. (a)(2)) and count 3 (assault with a semiautomatic firearm;
§ 245, subd. (b)), the jury did not reach a unanimous verdict.
                              Second Trial
              After the trial court ordered a mistrial on counts 2
and 3, it declared a doubt as to appellant’s competency to stand
trial (§ 1368) and revoked his pro per status. Counsel was




                                  3
appointed to represent appellant. Thereafter, the trial court
found that appellant’s competency was restored and reinstated
the criminal proceedings.
             At the second trial, defense counsel asked the
prosecution about a “DICV” reference in the police report and
learned that it stood for “digital in-car video.” The prosecutor
determined that the Miranda interview was recorded in the
police car and provided counsel a copy of the video recording.
Based on the video recording, defense counsel successfully moved
to exclude appellant’s statements. The trial court found that the
officer continued to question appellant in violation of Miranda
after appellant invoked his right to remain silent. The confession
was excluded in the second trial and the jury returned not guilty
verdicts on counts 2 and 3.
                 Motion for New Trial and Sentence
             Appellant moved for new trial on counts 1 and 4 on
the theory that the prosecution committed Brady error by not
providing the defense a copy of the video recording at the first
trial. Denying the motion, the trial court found that appellant
waived the error. Appellant “interposed no objection whatsoever
to the admission of the statement, and it came in. And as the
People correctly cite under 353 of the Evidence Code [failure to
object is a waiver], that should resolve the issue.”
             Appellant admitted the prior strike/prior serious
felony conviction enhancements and was sentenced to 11 years
state prison on count 1. The sentence on count 4 for criminal
threats was stayed pursuant to section 654.
                           The Brady Rule
             Appellant contends that the trial court erred in not
granting a new trial. Pursuant to Brady, supra, 373 U.S. 83, and




                                4
its progeny, the prosecution has a constitutional duty to disclose
to the defense material exculpatory evidence, including potential
impeaching evidence. (People v. Superior Court (Johnson) (2015)
61 Cal.4th 696, 709.) The duty extends to evidence known to
others acting on the prosecution’s behalf, including the police.
(Ibid.) A Brady violation occurs if three conditions are met: “‘The
evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; [the] 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.]” (People v.
Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).)
             Here, the video recording was favorable to the
defense and was not disclosed. As we shall explain, this
prejudiced appellant as to count 4. It does not matter whether
the non-disclosure was negligent or inadvertent. (People v.
Kasim (1997) 56 Cal.App.4th 1360, 1381 (Kasim).) “A showing by
the prisoner of the favorableness and materiality of any evidence
not disclosed by the prosecution necessarily establishes at one
stroke what in other contexts are separately considered under the
rubrics of ‘error’ and ‘prejudice.’” (In re Sassounian (1995) 9
Cal.4th 535, 545, fn. 7, citing United States v. Bagley (1985) 473
U.S. 667, 678 [87 L.Ed.2d 481].)
             The Attorney General contends there was no Brady
violation because appellant was given the police report which
referenced a “DICV.” Defense counsel stated that DICV, which
stands for digital in-car video, is new technology and new
terminology. The acronym was not identified in the arrest report.
Defense counsel said: “I never heard of it before. I simply didn’t




                                  5
know.” It is reasonable to assume that appellant did not know
what DICV meant when he represented himself in the first trial.
The prosecutor conceded that the DICV reference in the police
report “is something we both missed.”
             The police report summarizes the Miranda
interrogation but does not say it was recorded. The DICV
acronym appears in a section of the report entitled
“Photographs, DICV, Audio, Digital Imaging,” but that
section only states the officers took photos inside the house. The
last page of the arrest report states “DICV was activated during
the initial detention of suspect . . . (Placed in back seat of Patrol
Vehicle) and transportation to the station and 77th Jail.” The
report does not say the DICV was activated when appellant was
interrogated.
             The cryptic reference to DICV in the police report did
not relieve the prosecution of the duty to provide appellant a copy
of the video recording before the first trial. (Kasim, supra, 56
Cal.App.4th at p. 1380 [prosecution must disclose evidence that is
in constructive possession or reasonably accessible to the
prosecution].) Brady imposes a duty on prosecutors to volunteer
Brady material to the defendant even if no request is made.
(United States v. Agurs (1976) 427 U.S. 97, 107; People v. Verdugo
(2010) 50 Cal.4th 263, 279 (Verdugo); Salazar, supra, 35 Cal.4th
at p. 1042.) The Attorney General cites no authority, and we
have found none, that Brady error is waived by defendant’s
failure to object. The trial court found that the failure to object
on Miranda grounds waived the Brady error. Failure to object is
not relevant to a Brady analysis. The Brady obligation is self
executing. There need be no motion, request, or objection to




                                 6
trigger disclosure. The prosecution has a sua sponte duty to
provide Brady information.
                               Count 4
              Without appellant’s confession, the prosecution was
unable to secure convictions on counts 2 and 3 which were
intertwined with the criminal threats charge in count 4. It takes
no leap in logic to conclude that appellant suffered prejudice
because of the non-disclosure as to count 4. “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. . . . [¶] . . . [I]t is not a sufficiency of
evidence test. A defendant need not demonstrate that after
discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict.”
(Kyles v. Whitley (1995) 514 U.S. 419, 434, (Kyles) italics added.)
              On count 4 the jury had problems with Moore’s
credibility. It asked for a reread of Moore’s testimony and the
officer’s testimony. The video recording, had it been produced
prior to trial and excluded, would have undermined the
prosecution’s case on count 4. “One does not show a Brady
violation by demonstrating that some of the inculpatory evidence
should have been excluded, but by showing that the favorable
evidence could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.”
(Kyles, supra, 524 U.S. at p. 435.)
              The Attorney General argues that appellant was not
prejudiced by the Brady error. We disagree. The video recording
went to the heart of the case on count 4. Confessions are the
most damaging type of evidence in a criminal trial and “‘often




                                  7
operate “as a kind of evidentiary bombshell which shatters the
defense.”’ [Citation.]” (People v. Gonzalez (2012) 210 Cal.App.4th
875, 884.) The prosecution relied on appellant’s confession and
the victim’s testimony to prove count 4. Even with appellant’s
confession, the prosecution did not convict on counts 2 and 3.
             When appellant’s confession was excluded in the
second trial, the jury discredited Moore’s testimony in its entirety
and acquitted on counts 2 and 3. We conclude that the Brady
error materially affected the outcome as to count 4 of the first
trial. We must reverse on count 4.
                                Count 1
             As to count 1, felon in possession of a firearm, we
reach a different conclusion. Appellant twice factually admitted
to the jury that he was a felon in possession of a firearm. There
was, and is, no reason to discredit these factual admissions even
though they were made in opening statement and closing
argument. In this court appellant claims that he would not have
made these admissions if the Brady information had been
disclosed prior to the first trial. This is speculation and not
supported by the record. At no time below did appellant declare
or testify that he would not have made these admissions had the
prosecution provided the Brady evidence. Moreover, these
admissions may have been a legitimate trial tactic that worked to
his advantage. Appellant is not permitted to redesign trial
tactics on appeal with benefit of hindsight. “Our courts are not
gambling halls but forums for the . . . truth.” (People v. St.
Martin (1970) 1 Cal.3d 524, 533.) Were we to credit appellant’s
claim, we would, in essence, have to say that Brady error is
“structural” requiring automatic reversal. No published opinion
has so held.




                                 8
              We are mindful and aware “of the difficulty of
reconstructing . . . the course that the defense and the trial would
have taken” (United States v. Bagley, supra, 473 U.S. at p. 683)
had the Brady material been timely provided. It is true that a
Brady violation can impact “‘defense investigations and trial
strategies . . . .’” (Verdugo, supra, 50 Cal.4th at p. 279.) As
indicated, it remains speculative that he would not have made
his admissions had he been timely given the Brady material. He
candidly told the trial court and the jury that this firearm was
his and it worked to his advantage.
           Waiver of Rights on Prior Strike Enhancement
              Appellant argues, and the Attorney General
concedes, that the trial court did not advise appellant of his
constitutional rights when appellant admitted the prior
strike/prior serious felony conviction enhancements. (In re Yurko
(1974) 10 Cal.3d 857, 863-864; Boykin v. Alabama (1969) 395 U.S.
238, 242.) We reverse and remand for retrial on the prior strike
enhancement on count 1. (People v. Barragan (2004) 32 Cal.4th
236, 241; People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421.)
We opine no further on other alleged sentencing deficiencies
because we vacate the entire sentence on remand. The trial court
will revisit these issues.
                       Presentence Custody Credits
              Appellant finally contends that the trial court
miscalculated his presentence custody credits and conduct
credits. We do not reach the issue because we are vacating the
sentence and remanding for new trial on count 4 and a new trial
on the count 1 prior-strike enhancement. On remand, the trial
court will have the opportunity to recalculate the presentence
custody credits.




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                           Disposition
            The judgment of conviction on count 4 is reversed and
remanded for new trial. The judgment of conviction on count 1 is
affirmed but the sentence is vacated and a new sentencing
hearing is ordered.
            CERTIFIED FOR PUBLICATION.



                                               YEGAN, J.

We concur:

             GILBERT, P. J.



             TANGEMAN, J.




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                     Craig E. Veals, Judge

             Superior Court County of Los Angeles

                ______________________________

            Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
             Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.
