Filed 1/7/14 P. v. Fowler CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056068

v.                                                                       (Super.Ct.No. FWV1002147)

RICKY LEE FOWLER,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Stephan G.

Saleson, Judge. Affirmed.

         Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, James D. Dutton and

Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant Ricky Lee Fowler forcibly sodomized his cellmate at the West Valley

Detention Center (WVDC) on three separate occasions in August 2010.

       Defendant was convicted of three counts of sodomy by force (Pen. Code, § 286,

subd. (c)(2))1 against John Doe 1. After waiving his right to a trial, defendant admitted

that he had suffered two prior serious or violent felony convictions (§§ 667, subds. (b)-(i)

& 1170.12, subds. (a)-(d)). Defendant was sentenced to a total state prison sentence of

75 years to life.

       Defendant now contends on appeal as follows:

       1.      The trial court abused its discretion by denying his motion for new trial

based on a Brady2 violation.

       2.      The trial court denied his due process right to an evidentiary hearing on his

asserted Brady violation.

       3.      The trial court abused its discretion when it refused to consider evidence in

the court records pertaining to the competency proceedings against a prosecution witness.

       We affirm the judgment.




       1       All further statutory references are to the Penal Code unless otherwise
indicated.
       2       Brady v. Maryland (1963) 373 U.S. 83 (Brady).

                                              2
                                             I

                              FACTUAL BACKGROUND

       A.      People’s Case-in-Chief

               1.    Acts against victim – Doe 1

       Doe 1 was serving a 15 year sentence in state prison based on a plea to voluntary

manslaughter, assault with a firearm, discharging a firearm and first degree burglary. He

had several other prior convictions.

       In June 2010, he was housed in the WVDC. Defendant was his only cellmate.

Doe 1 occupied the top bunk and defendant was on the bottom bunk. There was also a

desk in the cell.

       Initially, when they were first cellmates, defendant and Doe 1 got along well.

They played cards together. However, defendant became stressed when the trial for

which he was detained started, which caused tension in their cell. Defendant started

punching and biting Doe 1. Defendant tried to kiss Doe 1. He tried to push his tongue in

Doe 1’s mouth but Doe 1 clenched his teeth so his tongue could not get in his mouth.

Defendant slapped Doe 1’s buttocks and touched his penis over his clothes.

       On Doe 1’s birthday, on August 3, they had some Pruno wine they had made. Doe

1 and defendant got drunk. They got into a physical fight. Defendant put Doe 1 in a

chokehold and choked Doe 1 so hard he thought he was going to die. Defendant kept

telling him “don’t fuck with Rick” and that “Rick will whoop your ass.” Doe 1 was able

to get away. Doe 1 asked one of the sheriff deputies to get him out of the cell because he

thought defendant was going to kill him, but his request was disregarded.

                                            3
       After that day, defendant called Doe 1 his “little buddy,” and told him he loved

him. Doe 1 asked defendant to stop but he refused. Doe 1 had one nipple with a mole on

it. Defendant told him it was his favorite nipple and he would try to lick it and blow on

it.

       On August 21, defendant grabbed Doe 1 by the throat and bent him over the desk

in the cell. Defendant pulled down Doe 1’s pants and put his penis in Doe 1’s rectum.

Defendant moved his penis back and forth. He told Doe 1, “you scream, I’ll fuckin’ beat

you.” He told Doe 1 that he would choke him. Defendant also told Doe 1, “shut up and

take it like a man.”

       Defendant told Doe 1 that he could not “get off this way” and threw him on the

floor. Defendant then ejaculated into the toilet. Doe 1 was bleeding from his rectum.

Defendant forced Doe 1 to sleep on the floor so he could watch him and make sure he did

not hit an emergency button that was in the cell. Doe 1 was scared and trembling.

Defendant just laughed at him. Doe 1 was too scared to tell anyone what had happened.

       On another occasion, defendant told Doe 1 they were going to bet on a football

game and it was his “ass” that was on the line if his team lost. Doe 1 refused the bet but

defendant ignored him. Doe 1’s team lost and defendant told him “a bet is a bet, take it

like a man.” That night, defendant asked Doe 1 if he would rather slit his wrists or suck

defendant’s dick. Doe 1 told him that he would rather slit his wrists. He wanted to cut

his wrists so he could get out of the cell. Defendant then sodomized Doe 1 again. Doe 1

was bleeding from his rectum again.



                                             4
         The following day, defendant promised Doe 1 that he would not touch him

anymore. However, that night his attitude changed and he told Doe 1 he had to be

disciplined. Defendant told him to get on the floor so he could be disciplined. Defendant

again tried to choke Doe 1. While defendant was sodomizing Doe 1, he asked him if he

liked “long strokes.” Doe 1 was forced to sleep on the floor again. He was bleeding

again.

         After this third event, on August 24, a psychologist happened to come by their

cell. Doe 1 told the psychologist that he was suicidal in order to get out of the cell. Doe

1 asked to talk to one of the sheriff’s deputies and told the psychologist he had been

“raped by my celly.”

         San Bernardino County Sheriff’s Deputy Brett Haynes was assigned to the WVDC

in August 2010. He responded to Doe 1’s request to talk to a deputy. Doe 1 was taken to

a hospital on that day to be examined by a sexual assault nurse. Doe 1 had bruising on

his abdomen and left rib area. There were two tears in his rectal area. There was also an

abrasion where the top layer of skin was taken off. The sexual assault nurse could not

establish if the injuries were the result of consensual or non-consensual-sexual activity.

However, the injuries were consistent with blunt force penetration activity.

         Deputy Haynes spoke with defendant on August 24. Defendant admitted he and

Doe 1 had been in a fight on August 3. He denied he committed sodomy on Doe 1 but

said that he and Doe 1 engaged in “sex play.” Defendant said they slapped each other on

the buttocks.



                                              5
      Deputy Haynes advised defendant that Doe 1 had injuries consistent with being

sodomized. Defendant explained that Doe 1 would sometimes discipline himself.

Defendant told Deputy Haynes that Doe 1 had put a lotion bottle and deodorant bottle in

his own “ass.” Defendant explained this could have caused the injuries. Doe 1 had slept

on the floor because he had injured his ribs while they were playing around wrestling.

      Deputy Haynes spoke with defendant one week later. Defendant recalled at that

time that there were two acts of sodomy but claimed that the acts were consensual.

Defendant said that both of the acts involved bets on football games. They bet that if Doe

1’s team lost, he would allow defendant to sodomize him.

      Deputy Haynes explained that inmates were reluctant to report that they had been

forcibly sodomized because they feared retaliation and that they would become a target

for sodomy by other inmates. Doe 1 insisted he never consented to these acts. Doe 1 was

in protective custody with defendant because Doe 1 had pleaded guilty in his case in

exchange for testifying against his codefendants.




                                            6
              2.     Prior acts involving Doe 2

       John Doe 2 was in custody at the WVDC. He shared a cell with defendant prior to

Doe 1 sharing a cell with defendant. Doe 2 admitted at trial that he and defendant had

gotten into a fight while they were in the cell together. He claimed it was over “politics.”

Prior to the fight, they had gotten along well and read the Bible together. Doe 2 denied

he was afraid of retaliation if he testified against defendant. Doe 2 also denied that

defendant could be a member of Aryan Brotherhood claiming he was too young to be

accepted.

       Doe 2 adamantly denied that defendant sodomized him. Doe 2 was very

aggressive and confrontational with the prosecutor. Doe 2 had tried to kill himself by

slitting his wrists but he denied it had anything to do with defendant.

       Deputy Haynes talked to Doe 2 in September 2010. Doe 2 told Deputy Haynes

that he and defendant had been cell mates. Doe 2 believed that defendant was part of the

Aryan Brotherhood and that put fear in him. Defendant forcibly sodomized Doe 2. Doe

2 was afraid that defendant would enlist the help of the Aryan Brotherhood on the outside

of prison if he filed a complaint about it and his family would be hurt. Doe 2 began to

tear up and was very emotional when he was speaking with Deputy Haynes. Doe 2 beat

up defendant when he found out he was not a member of the Aryan Brotherhood.

       Doe 2 talked to Deputy Haynes off the record and did not want to press charges

against defendant. At the time of trial, Doe 2 was wearing a gold and red jumpsuit.

Deputy Haynes explained the uniform was worn by inmates who have unpredictable

behavior or “mental health issues.”

                                             7
       B.     Defense

       Deputy Forrest Wayne Pitts, Jr. worked at the WVDC in August 2010. He was

assigned to the area where defendant’s and Doe 1’s cell was located. He did not recall

ever receiving a panic call from the cell. Deputy Albert Ramirez also worked in the area

where the cell occupied by defendant and Doe 1 was located. He did not recall Doe 1

ever requesting being moved from the cell. He did not recall a panic call from the cell

during August 2010.

       Deputy Shaun Wallen was also assigned to the same area. On May 3, 2010, he

broke up the fight between defendant and Doe 2. Defendant had to be taken to the

hospital because of his severe injuries.

                                             II

                                      BRADY VIOLATION

       Defendant contends that the trial court abused its discretion by denying his motion

for new trial based on his claim of a Brady violation for the prosecution’s failure to

disclose that Doe 2 had been declared mentally incompetent in his own trial proceedings

prior to or contemporaneous to his testimony in the instant trial.

       A.     Additional Factual Background

       Prior to trial, defendant filed a motion for discovery. He specifically requested

any mental health history information about Doe 2. Defendant filed a second motion for

discovery. He requested any court filings pertaining to Doe 2.

       On March 23, 2012, defendant filed a motion for new trial. In the motion,

defendant alleged that the prosecution failed to disclose that prior to Doe 2’s testimony in

                                             8
this case, he had been declared mentally incompetent in a case before the San Bernardino

County Superior Court. The evidence came from the court or law enforcement records to

which the defense did not have access. The proceedings that declared him incompetent

were prosecuted by a deputy district attorney from the San Bernardino County District

Attorney’s office. Instead of being transferred to Patton State Hospital, Doe 2 was kept

in local custody and testified in this matter.

       The prosecution filed opposition to the motion for new trial. The prosecution

argued that the RAP sheet for Doe 2 was disclosed to defense counsel prior to trial. The

RAP sheet for Doe 2 did not reference any case or matter where Doe 2 had been declared

mentally incompetent. However, in a footnote, the prosecution stated, “[w]hile John Doe

2’s RAP sheet printed on January 30, 2012 does not reference any case wherein he was

declared mentally incompetent, we have been able to discover through the Superior Court

“‘Open Access”’ system that John Doe 2 does have another case (FVI 801742) where the

court found him mentally incompetent to stand trial on 10/03/2011. This case did not

appear on John Doe 2’s RAP sheet.”

       The prosecution stated that Doe 2 testified competently at trial, and defense

counsel and the trial court never timely challenged his competency. Moreover, there was

no prejudice to defendant because the results of the proceeding would have been the

same. Doe 2 testified at trial that defendant was not violent and denied he ever assaulted

him.

       The prosecutor, Robert C. Bulloch, submitted a declaration that he had prosecuted

defendant’s case. Bulloch personally showed defense counsel an unredacted criminal

                                                 9
history, or RAP sheet, for Doe 2 which was printed on January 30, 2012. There was

nothing on the RAP sheet that referenced he had been adjudged mentally incompetent.

There was no reference to case number FVI 801742. Bulloch had no knowledge of the

competency proceedings against Doe 2. Bulloch first became aware of the case when

defense counsel disclosed it to him. The RAP sheet was attached to Bulloch’s

declaration.

       A hearing was conducted on April 9, 2012. The trial court noted that it had read

the motion for new trial and the opposition. The prosecutor noted that the file had been

transferred from Victorville and the trial court acknowledged it had received the file. The

trial court advised the parties that it had not looked at the file because a request to take

judicial notice had not been made. The trial court noted that at some time either prior to

or contemporaneous to the instant trial Doe 2 had been declared incompetent. The trial

court believed that what was in the file was not important because the information raised

in the motion was that he was declared incompetent and the deputy district attorney did

not have knowledge of the case. Defense counsel argued that the San Bernardino County

District Attorney’s office prosecuted the case and that knowledge was imputed to

Bulloch. Even if Bulloch chose not to make any inquiry, it did not absolve him of

knowing the information. Defense counsel also argued that it was clear that Doe 2 had

issues based on his detention in the competency ward at WVDC.




                                              10
       The trial court then asked defense counsel if he thought that Doe 2 appeared

incompetent during his testimony. Defense counsel responded that he did not know that

Doe 2 had been found incompetent. The trial court stated that it did not “wonder” about

Doe 2’s competence. The trial court noted that he was hostile but did not appear

incompetent.

       Defense counsel was concerned that Doe 2 was used to prove that defendant was a

sexual predator. The trial court responded, “You would agree, would you not, that’s not

what John Doe Number 2 said?” Defense counsel agreed, “not exactly.” The trial court

noted that Doe 2’s testimony actually was supportive of defendant’s position. The trial

court made clear there was no question of Doe 2’s competency during the proceeding.

       The prosecutor responded that defense counsel was provided Doe 2’s RAP sheet.

Defense counsel argued that Doe 2’s testimony should not have been admitted at trial if

he was in the process of a competency determination.

       The trial court first noted that there was no “willful or intentional misleading or

omission” by the prosecutor. Moreover, there was no prejudice. “The evidence was

overwhelming.” The trial court further stated, “[e]ven if John Doe Number 2 hadn’t been

here as provided by the victim in this case for the jury to make such a finding, you

haven’t asked me to overturn the verdicts or grant a new trial based on a lack of evidence

if I excluded everything John Doe Number 2 said. But even if you had, I would deny that

motion, because I think there was ample evidence for the jury to base its verdicts as it did

with or without the testimony of John Doe Number 2.” The motion for new trial was

denied.

                                             11
       B.     Analysis

       “The prosecution has a duty under the Fourteenth Amendment’s due process

clause to disclose evidence to a criminal defendant when the evidence is both favorable to

the defendant and material on either guilt or punishment. [Citations.]” (In re Miranda

(2008) 43 Cal.4th 541, 575.)

       “In Brady, the United States Supreme Court held ‘that the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.’ [Citation.] The high court has extended the prosecutor’s

duty to encompass the disclosure of material evidence. . . .” (People v. Hoyos (2007) 41

Cal.4th 872, 917-918, overruled on another ground in People v. McKinnon (2011) 52

Cal.4th 610.) It is well established that “[t]here 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.” (Strickler v.

Greene (1999) 527 U.S. 263, 281-282.)

       “Favorable evidence is material when it “‘could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.”’

[Citations.] Put another way, the question is whether, deprived of the information

withheld by the prosecution, the defendant received ‘a trial resulting in a verdict worthy

of confidence.’ [Citation.]” (In re Bacigalupo (2012) 55 Cal.4th 312, 333.)



                                             12
       “On appeal, a trial court’s ruling on a motion for new trial is reviewed under a

deferential abuse of discretion standard. [Citation.] Its ruling will not be disturbed unless

defendant establishes “a ‘manifest and unmistakable abuse of discretion.’” [Citation.]

Here, the asserted abuse of discretion is the asserted failure of the trial court to recognize

violations of defendant’s constitutional rights. Our constitutional analysis below

therefore also addresses the abuse of discretion issue.” (People v. Hoyos, supra, 41

Cal.4th at p. 917, fn. 27.) “A determination that the prosecution violated its disclosure

obligations under Brady [], requires reversal without any need for additional harmless

error analysis. [Citation.].” (In re Bacigalupo, supra, 55 Cal.4th at p. 334.)

       Respondent concedes that the first two elements of a Brady claim have been

established. We agree. The evidence was favorable to defendant in that it could be used

to impeach Doe 2’s testimony. Moreover, “[t]he circumstance that a prosecution witness

faced pending criminal matters, some of which were being prosecuted by the same

district attorney’s office prosecuting the defendant, constitutes evidence ‘favorable’ to the

defense, in that a jury could view this circumstance as negatively impacting the

credibility of testimony by the witness that was helpful to the prosecution.” (People v.

Letner (2010) 50 Cal.4th 99, 176.)

       We also agree with defendant that the People had an obligation to discover the

information. The obligation under Brady is not limited to evidence the prosecutor’s

office itself actually knows or possesses but also includes “evidence known to the others

acting on the government’s behalf in the case, including the police.” (Kyles v. Whitley

(1995) 514 U.S. 419, 437.)

                                              13
        Hence, at issue here is whether the verdict is “worthy of confidence.” (In re

Bacigalupo, supra, 55 Cal.4th at p. 334.) We are convinced that even had Doe 2 been

impeached, or not testified at all, the verdict would have been the same.

        Initially, Doe 2’s credibility was already questionable. “‘“In general,

impeachment evidence has been found to be material where the witness at issue ‘supplied

the only evidence linking the defendant(s) to the crime’ [citations], or where the likely

impact on the witness’s credibility would have undermined a critical element of the

prosecution’s case [citation].”’ [Citation.]” (People v. Letner, supra, 50 Cal.4th at p.

177.)

        Doe 2 was in a red and gold jumpsuit at the time he testified which signified he

had some mental health issues. In fact, defense counsel argued to the jury as follows:

“And I guess the last thing with respect to John Doe Number Two is, you know, being

viewed as an unbalanced or a UB inmate, being either extremely violent or mentally

imbalanced. And that’s also a factor you should consider at some point in determining

what credibility, what weight do you assign to John Doe Number Two. I’m not so sure

where it fits, but he’s a troubled man who’s in jail who apparently can be extremely

violent as proof by pounding on [defendant].” In addition, the prosecutor advised the

jurors they could reject Doe 2’s testimony and still convict defendant based on Doe 1’s

testimony, the sexual assault nurse and the testimony of Deputy Haynes. Doe 2 recanted

his testimony at trial which certainly reflected on his credibility. If the jury had been

informed that he had been found incompetent by another court it would not have cast the

evidence in a different light as to impact the jury’s finding of guilt.

                                              14
       Moreover, even if Doe 2 had not been allowed to testify, Doe 1 provided

compelling testimony that defendant had sodomized him on three separate occasions.

Doe 1 described each instance in detail. Deputy Haynes testified that inmates were

reluctant to disclose that they had been sodomized for fear of retaliation or being

victimized by other inmates. Doe 1 had no incentive to lie. Moreover, although the

medical testimony did not prove that the sodomy was consensual or nonconsensual, it did

corroborate Doe 1’s testimony that the sodomy had occurred. Further, Doe 1 had other

injuries — the bruises on his abdomen and rib area — that also corroborated Doe 1’s

testimony that defendant had thrown him on the ground.

       Finally, defendant’s explanation of Doe 1’s injuries was clearly incredulous.

Defendant first claimed that he had not sodomized Doe 1. Second, he claimed that Doe 1

placed items in his rectum on his own to discipline himself. On a third occasion, he

admitted he had sodomized Doe 1, but claimed that it was consensual.

       Based on the foregoing, defendant has failed to establish that the evidence that

Doe 2 had been found incompetent by another court was material and therefore he cannot

show a due process violation. As such, the trial court did not abuse its discretion by

denying defendant’s motion for new trial based on a Brady violation.




                                             15
                                                   III

                                      ADDITIONAL CLAIMS

         Defendant contends in his second and third claims that he was entitled to an

evidentiary hearing in the trial court regarding his Brady claim and that the trial court

abused its discretion when it refused to consider relevant evidence in the court file

pertaining to the incompetency proceeding against Doe 2.

         We need not decide if he was entitled to an evidentiary hearing and find that there

was no abuse of discretion in refusing to examine the court file because there was nothing

more for the trial court to consider as to Doe 2’s competency. The trial court essentially

accepted that Doe 2 was found incompetent. Although the trial court did not agree with

the assessment, it clearly accepted that another superior court had found Doe 2

incompetent. No further inquiry was necessary as the trial court accepted that Doe 2 had

been found incompetent and defendant had failed to explain how any further evidence

from the court file would have been admissible at trial.

         Moreover, even had the trial court considered all of the evidence of Doe 2’s

competency, as set forth extensively ante, we do not believe the undisclosed evidence

“reasonably could be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” (See In re Miranda, supra, 43 Cal.4th at p. 575.) Doe 1’s

testimony was compelling, the medical testimony corroborated his testimony, and

defendant’s explanation was incredulous. As such, defendant’s remaining claims lack

merit.



                                              16
                                            IV

                                     DISPOSITION

       We affirm the judgment in its entirety.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                   RICHLI
                                                            Acting P. J.

We concur:


KING
                          J.


MILLER
                          J.




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