Filed 9/8/16 P. v. Luevano CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F071400
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF155905A)
                   v.

RICHARD THOMAS LUEVANO,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
         Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Poochigian, J. and Franson, J.
       A jury convicted appellant Richard Thomas Luevano of unlawful possession of a
firearm (count 1/Pen. Code, § 29800, subd. (a)(1)),1 carrying a loaded firearm (count 2/
§ 25850, subd. (c)(6)), and misdemeanor resisting arrest (count 3/§ 148, subd. (a)). In a
separate proceeding, the court found true four prior prison term enhancements (§ 667.5,
subd. (b)), and allegations that Luevano had a prior conviction within the meaning of the
three strikes law (§ 667, subds. (b)-(i)).
       On April 8, 2015, the court sentenced Luevano to an aggregate term of eight years;
a doubled, aggravated term of six years; and two one-year prior prison term
enhancements.
       On appeal, Luevano contends the court committed Brady2 error. We affirm.
                                             FACTS
The Trial
       On July 6, 2014, at approximately 10:06 p.m., Bakersfield Police Officers Keegan
Gavin and Chad Garrett were on patrol traveling eastbound on Water Street. As they
approached a house located at 700 Water Street3 (the 700 house), Officer Garrett used a
spotlight to illuminate Luevano, Leonardo Fernandez, and Dayana Estrada, who were
standing in front of the house. When Luevano turned to face the officers, Officer Garrett
recognized him as someone who had numerous outstanding felony warrants. Luevano
ran into the house through the front door and Officer Gavin ran north along Baker Street
and stopped by a chain-link fence bordering the house to set up a perimeter. Officer
Gavin saw Luevano run out of the house through a door that faced west with his right
hand under his shirt at his waistband. Gavin yelled out several times identifying himself

1      All further statutory references are to the Penal Code.
2      Brady v. Maryland (1963) 373 U.S. 83.
3     The house faced south and was located on the northeast corner of Water Street and
North Baker Street.


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as a police officer and ordering Luevano to stop but Luevano ran north and then east
along the back (north side) of the house with his hand at his waistband. Luevano then
jumped over a chain link fence into the backyard of the house located at 706 Water Street
(the 706 house).
       Meanwhile, Officer Garrett ran to the east side of the front yard of the 700 house
to set up a perimeter and heard noises coming from the backyard that sounded like
someone was climbing a chain-link fence. A short time later, Garrett saw Luevano
running south in the side yard of the 706 house, along the fence that separated the two
houses, toward the front yard. Luevano climbed over a small fence that separated the
front yard of the 706 house from its backyard and then began climbing over the fence that
separated the two houses. Officer Garrett ran toward the 706 house and as he entered its
front yard, Luevano got off that fence and ran toward the small fence he had just climbed
over. During the time Officer Garrett observed him, Luevano had his right hand tucked
in his waistband. As he ran north toward the small fence, Garrett saw Luevano use his
right hand to manipulate an item in his waistband. When Luevano was close to the small
fence, Garrett saw Luevano’s hand drop down and he heard a thud that sounded like
Luevano dropped something. Luevano then climbed over the small fence and ran to the
backyard of the 706 house.
       Officer Garrett ran to the east side of the front yard of the 706 house in order to
extend the perimeter. He soon saw Luevano climb over the fence from the sideyard of
the 706 house into the front yard of the 700 house. Officer Garrett ran over to Luevano
and detained him. Afterwards, Officer Gavin found a .45‑caliber semiautomatic handgun
in the front yard of the 706 house where Officer Garrett had seen Luevano appear to drop
something. Gavin checked the handgun and found it was loaded.




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The Alleged Brady Violation
       On March 10, 2015, defense counsel filed a motion for a new trial challenging
only the sufficiency of evidence to support Luevano’s two convictions involving
firearms.
       On the morning of April 8, 2015, at Luevano’s sentencing hearing, the court
denied the motion. Afterwards, defense counsel advised the court that something had
recently come to his attention. Defense counsel then explained that members of
Luevano’s family had done some research and discovered a civil case in which Officer
Garrett was being sued in his capacity as an officer. The case, however, had not been
filed correctly and the plaintiff had been granted leave to amend the pleadings. Defense
counsel conceded he did not know the underlying facts of that case.
       Defense counsel also told the court that he subsequently learned Officer Garrett
was involved in a second matter that defense counsel had very limited information on
except that he had been told it involved a woman. Defense counsel acknowledged having
told the court he would be ready for sentencing that day and stated that he came across
the information late.
       When the court asked defense counsel when he learned of this information,
defense counsel replied that he found out about one matter the day before and the other
one seven to 10 days earlier. The court responded that it had asked its clerk to find out if
defense counsel was ready to proceed in the instant matter and the previous day the court
had been told that he was. However, after the court spent two and a half hours preparing
for the hearing and had ruled on the motion for a new trial, defense counsel was bringing
up another matter.
       Defense counsel replied that he received information about 10 days ago that did
not lead to much, that required more investigation, and that he did not think would be
fruitful. However, the previous day after telling the court he would be ready the next day


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for sentencing, defense counsel learned there was a second matter that he did not yet
know anything about because he had not been provided information he had been
promised. Defense counsel then stated that he just wanted to make certain there was a
record of the second matter he spoke about in case there was an appeal and that he left it
up to the court whether it would allow him more time to investigate it.
         The prosecutor objected to a continuance noting that the sentencing had been
continued three times for the defense and they did not even know what the civil case
against the officer was about. After further discussion, defense counsel asked the court to
continue the sentencing three weeks.
         The court continued the matter to that afternoon in order to allow it to do some
research. When the matter resumed, the court asked defense counsel if he had any papers
to file or any other specific information other than what he mentioned that morning.
Defense counsel replied he did not have any papers to file. He also stated that the only
other information he was aware of was that a lawsuit had been filed against Officer
Garrett in Kern County Superior Court, that according to a docket entry, the first motion
in that case was filed on February 11, 2013, the motion was for a “continuance” to allow
the plaintiff to clean up the petition, and that the plaintiff was in pro per. When asked if
there was a second claim against the officer, defense counsel stated he believed there was
a second accusation against him but he did not have any documentation to confirm that
claim.
         After hearing from the prosecutor, the court found defense counsel had not
established good cause and denied his motion for a continuance. The court then
considered and denied Luevano’s motion to dismiss his prior strike conviction before it
sentenced him to an aggregate eight-year term, the aggravated term of three years on
Luevano’s felon in possession of a firearm conviction, doubled to six years because of
Luevano’s strike conviction, two 1-year prior prison term enhancements, a stayed term on



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his carrying a loaded firearm conviction, and a concurrent six-month term on his resisting
arrest conviction.
       At no time during either hearing that day did defense counsel object to the
proceedings on Brady grounds or in any manner raise a Brady issue.
                                       DISCUSSION
       Luevano contends the evidence of the alleged civil lawsuit filed against Officer
Garrett was favorable to him because it tended to impeach the officer’s credibility. He
further contends that because the officer must have been aware of the lawsuit his
knowledge can be imputed to the prosecutor. Thus, according to Luevano, the
prosecution’s failure to provide the defense information on the lawsuit implicated
Luevano’s due process rights under Brady and requires reversal of the judgment or,
alternatively, remand for an evidentiary hearing on the claim. We disagree.
       Luevano was aware of the civil suit seven to 10 days prior to April 8, 2015, when
the court denied his motion for a new trial. However, he never attempted to add a Brady
claim to his pending motion for a new trial or otherwise bring the alleged error to the
court’s attention. Nor did he raise a Brady claim when he argued for a continuance in
order to investigate the basis of the civil suit. Thus, Luevano forfeited his claim of Brady
error by failing to raise it in the trial court. (Cf. People v. Carpenter (1997) 15 Cal.4th
312, 411 [a Brady claim based on evidence that was known or available to counsel at trial
is waived where counsel does not object below].)
       In any case, even if this issue were properly before us we would reject it.

               “Under Brady, supra, 373 U.S. 83, and its progeny, the prosecution
       has a constitutional duty to disclose to the defense material exculpatory
       evidence, including potential impeaching evidence. The duty extends to
       evidence known to others acting on the prosecution’s behalf, including the
       police. [Citations.] The duty to disclose ‘exists even though there has been
       no request by the accused.’ [Citations.] For Brady purposes, evidence is
       material if it is reasonably probable its disclosure would alter the outcome
       of trial.


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              “ ‘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.’ ” (People v. Superior Court (Johnson) (2015) 61
       Cal.4th 696, 709-710 (Johnson).)

               “ ‘[A] prosecutor had no constitutional duty to conduct [a]
       defendant’s investigation for him. Because Brady and its progeny serve “to
       restrict the prosecution’s ability to suppress evidence rather than to provide
       the accused a right to criminal discovery,” the Brady rule does not displace
       the adversary system as the primary means by which truth is uncovered.
       [Citation.] Consequently, “when 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.” ” (Johnson, supra, 61 Cal.4th at pp. 715-
       716.)
       The civil suit against Officer Garrett was filed in 2013 and information about it
was fully available to the defense at the time of trial and could easily have been
discovered earlier by defense counsel if he had researched the Kern County Superior
Court’s public records. Further, since the only reason for not obtaining information about
this suit was the defense’s lack of diligence in checking the superior court’s records, there
was no Brady violation.
       Moreover, as noted above, to establish Brady error the evidence at issue must be
favorable to the accused, either because it is exculpatory or impeaching. Defense
counsel’s comments to the court established only that a civil suit had been filed against
Officer Garrett and that because of technical irregularities it was dismissed with leave to
amend. Since this information was neither exculpatory nor impeaching, the comments
did not establish Brady error. (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1472
[“Brady[] … does not require the disclosure of information that is of mere speculative
value”].) Nor do the comments establish that the defense was prejudiced by the
information the prosecutor allegedly withheld. Accordingly, we reject Luevano’s claim
of Brady error.


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                            DISPOSITION
The judgment is affirmed.




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