Filed 11/12/13 P. v. Stewart CA1/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

DEANTE STEWART, 

 Defendant and Appellant. 

 A136221 

 (Solano County 

 Super. Ct. No. FCR291353 & 

 FCR290834) 

ORDER MODIFYING OPINION AND 

DENYING PETITION FOR REHEARING

 [NO CHANGE IN JUDGMENT] 

BY THE COURT: 

 It is ordered that the nonpublished opinion filed herein on October 21, 2013, be 

modified to delete in its entirety the last sentence in the first full paragraph on page 19, 

beginning with the words, “Unlike in the present case, . . . .” 

 This modification does not effect a change in the judgment. 

 The petition for rehearing is denied. 

Dated: ____________________________ 

P.J. 
Filed 10/21/13 (unmodified version) 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

DEANTE STEWART, 

 Defendant and Appellant. 

 A136221 

 (Solano County 

 Super. Ct. No. FCR291353 & 

 FCR290834) 

 

 Defendant Deante Stewart appeals after conviction of two counts of second degree 

robbery, one count of assault with a firearm, and one count of possession of a firearm by 

a convicted felon. (Pen. Code, §§ 211, 245, subd. (a)(2), 29800, subd. (a)(1).)1

 Defendant 

personally used a firearm in each of the first three counts and had one prior strike 

conviction and one violent prison prior. (§§ 667, subd. (b)-(i), 667.5, subd. (b), 1170.12, 

subds. (a)-(d), 12022.5, subd. (a)(1), 12022.53, subd. (b).) He was sentenced to more 

than 21 years in prison. He claims his convictions must be reversed because he was 

denied discovery of a police report relating to a similar crime committed while he was in 

custody by an individual with a similar appearance, and because the court did not allow 

him to present a third party culpability defense based on that other crime. We find no 

error and we affirm. 

 

1

 Statutory references without code designation are to the Penal Code. 
BACKGROUND 

The prosecution’s case 

 On February 11, 2012, about 7:00 p.m., Arthur Hernandez and his friend Michael 

Shishido were accosted from behind by an armed man as they were walking through a 

lawn area on their way to Hernandez’s apartment in a gated community in Fairfield 

known as the Parkland apartments. The man demanded money, so Hernandez threw his 

wallet to the ground near the robber. The wallet held no cash, only expired credit cards 

and Hernandez’s driver’s license and social security card. The robber picked up the 

wallet, then pointed his gun at Shishido and demanded money from him. The robber hit 

Shishido on the back of his head with his gun, so Shishido took a $10 bill from his pocket 

and gave it to the robber. Shishido testified the robber also kicked him in the leg. The 

robber took off northbound, toward the entry gates to the apartment complex. 

 Hernandez and Shishido continued walking to Hernandez’s apartment. 

Hernandez’s girlfriend had been walking with them just before the robbery but had 

“slithered away” during the robbery. When Hernandez discovered she was not in the 

apartment, he went to look for her. As he approached the entry to the apartment complex 

he saw the robber standing with a woman, talking to someone in a car. He “couldn’t 

believe” the man was still in the vicinity.

Hernandez returned to his apartment as Shishido was describing the robber to a 

911 operator. Shishido described the robber as a 25-year-old African American with 

dreadlocks and a cap. Hernandez described him as Black, in his 20’s, with long 

dreadlocks and a white baseball cap, wearing a gray or silver pullover hooded sweatshirt 

and jeans. 

 After hearing a description of the robber broadcast, Fairfield Police Officer 

Joshua Kresha spotted defendant walking on a nearby street with a woman. Defendant 

was wearing a baseball cap and a gray sweatshirt, and he had long dreadlocks. Kresha 

pulled his patrol car up behind the two, got out of his car, drew his firearm, and ordered 

defendant to the ground. The woman walked on and Kresha could not identify her. 
Kresha searched defendant but found nothing connecting him to the crime: no gun, no 

wallet, and no $10 bill.

 After police interviewed Hernandez and Shishido, they took the men to the Foster 

Lumberyard, about a block away from the Parkland apartments, for a field show up. The 

show up occurred some five to fifteen minutes after the crime. Both Hernandez and 

Shishido individually and independently identified defendant as the robber. Hernandez 

immediately recognized him and testified at trial he had “no doubt” about the 

identification. Shishido also told the police he was “absolutely” “one hundred percent 

certain” of the identification and testified at trial he had “no doubt.” 

 Kresha told Fairfield Police Officer Patrick High that defendant was accompanied 

by an unidentified female at the time of his arrest. After participating in the field 

show up at the lumberyard, High went to the Travis Lodge in Fairfield (about a block and 

a half from the Foster Lumberyard) because he had had a previous contact with defendant 

and a female at that location. He asked the desk clerk if either defendant or his woman 

friend was registered there. The clerk knew the woman, Dewaynna Gross,2

 as a frequent 

guest at the hotel and told High she had been in the hotel in the vending machine area 

before the police arrived. 

 High found Gross sitting in a stairwell of the hotel. He searched her with her 

consent but found neither the fruits of the robberies nor a gun. However, when High 

checked the area near the vending machines he found a loaded gun under the ice 

machine. The hotel clerk had not seen Gross hide a gun under the ice machine, but he 

had not been watching her the entire time she was in that area. The police also searched 

along the path Gross presumably would have traveled to the hotel from the area where 

defendant was arrested, but they never found Hernandez’s wallet or the $10 bill Shishido 

had given the robber. 

 2

 Defendant and Gross were jointly charged with a robbery on January 1, 2012, in case no. FCR291353, 

and were jointly charged in the current offense in FCR290834. The charges against Gross were resolved prior to 

trial. All charges from both dates were charged against defendant in a consolidated information in no. FCR291353. 

The charges stemming from the January 1 events were dismissed by the prosecutor at the start of trial because the 

victim could not be served. 
 The gun found under the ice machine was a .380-caliber, semiautomatic, with a 

predominantly black finish. No usable fingerprints were found on the weapon. It was 

registered to a San Leandro man who had no connection to defendant or anyone else 

involved in the case. He believed the gun had been stolen by a house guest in 

September 2011, but there was no evidence to implicate defendant or Gross in the theft. 

 Hernandez and Shishido both testified at trial that the gun found under the ice 

machine could have been the one used in the robbery, but neither man was sure. Neither 

was familiar with firearms. Shishido thought the gun he saw during the robbery was 

silver or shiny and appeared bigger when the robber had it. Hernandez testified it was 

black, and he thought it was a revolver. Hernandez had previously told police the gun the 

robber used was a semiautomatic.

 On March 30, 2012, a correctional officer at the Solano County Jail attempted to 

conduct a live lineup with defendant at the request of defendant’s attorney. Hernandez 

and Shishido showed up to view the lineup, but defendant refused to participate, saying, 

“Are you guys deaf? I’m not going in. Didn’t you hear me?” Consequently, no lineup 

was conducted. 

 The parties stipulated at trial that defendant had previously been convicted of a 

felony for purposes of the felon in possession count. 

The defense case

 Defendant did not testify. On cross-examination, Shishido admitted he had tested 

positive for methamphetamine a month before the robbery, when he was on probation. 

Defense counsel asked several questions obviously intended to elicit that Shishido had 

bought methamphetamine from defendant in the days preceding the alleged robbery. 

Shishido denied all such accusations, however, and denied that the robbery incident was 

related to a methamphetamine transaction. 

 Counsel also called one of the officers who had interviewed the victims at the 

crime scene, eliciting that Hernandez had not provided as much detail during preliminary 

interviews as he had testified to at trial. Hernandez was unable to describe the robber’s 

facial features immediately after the offense. 
 Defense counsel argued in closing that Shishido had been trying to purchase 

methamphetamine from defendant on the evening of the alleged robberies and was not 

satisfied with the amount he received. Inferably, Shishido and Hernandez therefore 

sought revenge by falsely accusing defendant of robbery and assault. 

The judgment 

 Defendant was convicted by jury verdict on all counts on June 4, 2012. The prior 

conviction allegations were bifurcated and tried to the court, which found the allegations 

true. On July 27, 2012, defendant was sentenced to 21 years, four months, in prison 

based in large part on his prior record, multiple offenses, and use of a firearm. 

DISCUSSION

 Before trial, defense counsel moved for permission to put on a defense of third 

party culpability with respect to two incidents she wanted to explore for purposes of 

presenting evidence of such third party culpability. After being permitted to inspect the 

police reports, she withdrew her request with respect to one of the incidents. The trial 

court denied counsel’s request for a copy of the other report, ruling the crime was not 

sufficiently similar to make the incident admissible as third party culpability evidence. 

Defendant argues the court erred. In addition, defendant contends he was entitled to a 

copy of the police reports under Brady v. Maryland (1963) 373 U.S. 83 (Brady). 

Background

 Defense counsel filed a motion to introduce “evidence that a third party, who may 

currently still be at large, is the perpetrator of the offenses charged in the above entitled 

cases.” The motion claimed there were two other crimes so similar to the one with which 

defendant was charged that the jury might reasonably believe the perpetrator of those 

crimes (committed while defendant was in custody) must also be the one who committed 

the Hernandez-Shishido robbery. 

 The first incident was a robbery on April 2, 2012, in Fairfield in which the 

perpetrator was described as a “black male with dreads wearing a gray sweatshirt and 

armed with a handgun.” The second incident was a carjacking in Fairfield on April 11, 

2012. “During that incident, an individual approached and then struggled with the 
occupant of a car and hit him in the head with a handgun, ultimately stealing the vehicle. 

The perpetrator is described as a black man in his mid-20s with long dreadlocks, a black 

hooded sweatshirt and black pants.” 

 The motion claimed the police sketch of the second suspect shows “a black man 

with hair that is virtually identical to Mr. Stewart’s with a broad face and facial features.” 

Defendant argues on appeal the two men were so similar in appearance they could be 

twins. We cannot assess defendant’s characterization due to an inadequate record.3

 At the hearing on the motion, the court allowed defense counsel to inspect the 

police reports, neither of which was lengthy. The court then offered defense counsel a 

chance to look over the reports, and she acknowledged on the record, “I have had a 

chance to briefly review the reports.” While there is no indication in the record as to 

whether counsel had the opportunity to take notes on what she read, she clearly had 

digested the contents. For example, with respect to the carjacking, defense counsel had 

sufficiently absorbed the information in the police report that she was able to recite the 

suspect’s height, weight, hair length and style. The only other similarity she reported was 

that the carjack victim also reported being “hit in the head with a phone,” which she 

evidently considered comparable to Shishido’s being hit in the head with a gun. 

After reading the reports, counsel withdrew her motion with respect to the April 2, 

2012, incident because it was “a different type of incident.” However, defense counsel 

maintained the defense was entitled to a copy of the police report on the April 11 incident 

so she could “investigate” the matter further. 

 The prosecutor opposed the motion. She argued that evidence of third party 

culpability should be excluded under Evidence Code section 352 because such evidence 

 3

 Defendant has not provided us with a record from which we can validate any such claim. The sketch of 

the carjacker is nothing more than a small rudimentary sketch of an African American with long dreadlocks, with 

indistinct facial features (in part due to poor photocopy quality). The photograph of defendant with which we have 

been provided is a photo array of six different men, with defendant in the number three position, all of whom appear 

to have dreadlocks (even that fact is not certain, the quality of the photocopy is so poor). But the photocopy of 

defendant in the lineup is of such poor quality that we cannot make out any of his facial features, much less could 

we agree with defendant that the drawing was close enough to be his “twin.” It was defendant’s burden to provide 

us with a sufficient record on appeal to review the issues he raised. (Aguilar v. Avis Rent A Car System, Inc. (1999) 

21 Cal.4th 121, 132; People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) We have no basis in the record for 

comparing defendant’s appearance with that of the April 11 carjacker.
would tend to confuse and mislead the jury, particularly because the suspect had not been 

identified in the April 11 incident. The prosecutor said, “If the defense is allowed to bring 

in every male black with dreadlocks in Fairfield who committed crimes similar to this, 

robberies with guns and carjackings, we could just open up the flood gates.” The 

prosecutor argued there were inconsistencies in the two crimes (most significantly that 

one was a carjacking and one an armed robbery), and asserted the official information 

privilege, emphasizing the carjacking case was an “unsolved incident.” 

 The prosecutor’s opposition stated “there is no evidence linking anyone other than 

the defendant to this crime . . . .” She argued the police reports should not be released to 

defense counsel because they involved ongoing investigations and their release would 

“violate privacy interests of the victims and witness in those cases . . .” 

 The court took the motion under submission to “review the report again and some 

additional points and authorities.” Several days later it denied the defense motion, 

reasoning as follows: 

 “THE COURT: [¶] . . . [¶] I’m going to deny the motion to allow third party 

culpability evidence. I just do not see any sufficient showing that the party responsible 

for these unsolved robberies was in any way involved in the matters for which 

Mr. Stewart is charged. And the fact that the suspect in these other matters is of the same 

ethnic background as Mr. Stewart, and wears his hair in the same fashion, and 

approximately the same age, is not in and of itself convincing to the Court in any way. 

So the request does not cause the Court to believe that there is any type of reasonable 

probability it’s the same individual, or it’s the type of evidence that would likely raise a 

reasonable doubt to the jury hearing this matter. The motion for third party culpability is 

going to be denied.” 

 After hearing defense counsel’s argument, the court continued: “Well, I am just 

not prepared to order the police department to release its investigation into ongoing, 

serious criminal matters based on the showing that’s been made. There is nothing in the 

circumstances of that report that the Court reviewed, and allowed counsel to review, that 
is at all similar to the type of robbery that occurred to what Mr. Stewart is being charged 

with, and so the request for the release of that information will be denied.” 

 We are at a disadvantage in reviewing this issue, since we do not have access to 

the police reports in question, nor do we have a clear basis for comparison of defendant’s 

appearance with that of the unidentified carjacker. (See fn. 3, ante.) We note that 

defense counsel could have—but did not—request that a copy of the police reports be 

filed under seal. (Cal. Rules of Court, rules 2.550-2.551.) Neither she nor appellate 

counsel took any action to secure a copy of the police report for our review. All the more 

reason for us to defer to the trial court so long as its ruling was not an abuse of discretion. 

We have no basis for such a finding on this record.

Evidence of Third Party Culpability 

 Defendant contends, “The trial court erred in denying defendant’s trial counsel’s 

request for access to the police reports of the robbery committed in April in order to 

investigate and present the defense of mistaken identity.” He further contends, “The trial 

court erred in excluding evidence that there was an armed robber active in Fairfield at the 

time of the Parkland robbery who looked and dressed very much like appellant and used 

robbery tactics identical to those used in that robbery.” 

 First, we note that defense counsel was not entirely denied access to the report; she 

was denied a copy of it. More fundamentally, we find there was not sufficient similarity 

between the two crimes or criminals to make the report admissible as evidence of third 

party culpability. If defense counsel wanted to pursue this line of defense she could have 

conducted further investigation based on what she saw in the police reports. 

 “It is a defense against criminal charges to show that a third person, not the 

defendant, committed the crime charged. (People v. Hall (1986) 41 Cal.3d 826, 832.) A 

criminal defendant has a right to present evidence of third party culpability where such 

evidence is capable of raising a reasonable doubt as to his guilt of the charged crime. 

However, as the Supreme Court explained in People v. Hall, ‘we do not require that any 

evidence, however remote, must be admitted to show a third party’s possible culpability 

. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, 
without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there 

must be direct or circumstantial evidence linking the third person to the actual 

perpetration of the crime.’ ( Id. at p. 833.) In addition, on appeal, the defendant must 

show prejudice from the erroneous denial of discovery. (People v. Memro (1985) 

38 Cal.3d 658, 684.)” (People v. Jackson (2003) 110 Cal.App.4th 280, 286.) 

 Trial courts should “simply treat third-party culpability evidence like any other 

evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is 

substantially outweighed by the risk of undue delay, prejudice, or confusion 

([Evid. Code,] § 352).” (People v. Hall, supra, 41 Cal.3d at p. 834.) In People v. Elliott

(2012) 53 Cal.4th 535 (Elliott), the Supreme Court further explained the relevancy 

inquiry: “ ‘[T]o be admissible, evidence of the culpability of a third party offered by a 

defendant to demonstrate that a reasonable doubt exists concerning his or her guilt . . . 

must link the third person either directly or circumstantially to the actual perpetration of 

the crime. In assessing an offer of proof relating to such evidence, the court must decide 

whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it 

is substantially more prejudicial than probative under Evidence Code section 352.’ 

[Citations.] Evidence of a third party’s prior crimes is inadmissible to establish the third 

party’s criminal propensity. [Citations.] For evidence of an uncharged offense to be 

admissible to establish the third party’s identity as the perpetrator of the charged 

crimes,‘ “[t]he pattern and characteristics of the crimes must be so unusual and distinctive 

as to be like a signature.” ’ [Citations.] A large number of common marks may, when 

viewed in combination, establish the required distinctive pattern. [Citation.] A trial 

court’s ruling excluding third party culpability evidence is reviewed for abuse of 

discretion. [Citation.]” (Id. at pp. 580-581; see also, People v. Hall, supra, 41 Cal.3d at 

pp. 833-834.) 

 The link between the robber in the case before us and the carjacker in the April 11 

crime was simply too tenuous. The court did not abuse its discretion in finding it 

inadmissible―and not subject to further discovery―when balanced against the People’s 

interest in confidentiality and third party privacy interests. 
 The Supreme Court rejected a similar argument in People v. Brady (2010) 

50 Cal.4th 547, where a defendant accused of murdering a police officer sought to 

introduce hotline tips from the public concerning the murder, including a recorded 

confession (later recanted) and an unsigned letter claiming responsibility for the murder. 

The court also excluded evidence that another individual resembled the composite 

drawing of the killer and evidence intended to link an Asian man with the killing because 

he had killed two other police officers.4

 The trial court excluded evidence of all those 

tips on relevance grounds. (Id. at p. 557.) 

 The Supreme Court concluded “the trial court did not abuse its discretion in 

excluding the four clues, as the proffered evidence suggested no link between the third 

parties and the actual perpetration of [the officer’s] murder.” (People v. Brady, supra, 

50 Cal.4th at p. 558.) With respect to the unsigned letter claiming responsibility, the 

court observed: “Third party culpability evidence that does not identify a possible 

suspect is properly excluded. (See People v. Sandoval (1992) 4 Cal.4th 155, 176-177.)” 

(Id. at p. 559.) And even assuming the trial court erred in excluding evidence of the 

hotline tips, the error was not prejudicial under either the state or federal standard of 

review. (Id. at p. 559.) 

 In People v. Page (2008) 44 Cal.4th 1, the defendant claimed two other men were 

potential suspects in the offense of which he was convicted, but they had not been 

thoroughly investigated. (Id. at pp. 35-36.) The Supreme Court found no abuse of 

discretion in excluding evidence of their possible culpability “because it did not link any 

third person to the actual perpetration of the crime.” (Id. at p. 37.) “[T]here must be 

direct or circumstantial evidence linking the third person to the actual perpetration of the 

crime,” as opposed to simply showing that the person had the motive or opportunity to 

 4

 As to that clue, several eyewitnesses to the police officer’s murder “described the assailant as an Asian 

male and the clue referred to an Asian male who had killed two members of a nearby police department and was 

suspected of committing an armed robbery.” (People v. Brady, supra, 50 Cal.4th at p. 558.) “[N]o evidence 

implicated this person” in the murder for which defendant was on trial. (Ibid.) “Although the man’s ethnicity and 

his possible involvement in an unrelated robbery and killing of other police officers initially might have suggested 

some involvement” in the murder of which defendant was accused, “defendant presented no evidence actually 

linking this person” to the murder in question. (Ibid.) 
commit the offense. (Id. at p. 38.) (See Holmes v. South Carolina (2006) 547 U.S. 319, 

327 [noting “widely accepted” rule that third party culpability evidence that does not 

sufficiently connect the third party to the crime may be excluded].) 

 In the case before us the argument in favor of admissibility is even weaker. The 

argument was similar to that in Page―that the police nabbed the wrong man and failed 

to investigate another potential suspect―but the unidentified “other suspect” was deemed 

a suspect by defendant alone. And defendant claimed he was a suspect based on nothing 

more substantial than superficial resemblance and his use of a gun in another crime.

 The trial court did not abuse its discretion in denying defense counsel’s request to 

copy police reports and introduce evidence of third party culpability. First, the suspect in 

the April 11 Fairfield carjacking had not been identified. The investigation into that crime 

was ongoing. As noted above, “[t]hird party culpability evidence that does not identify a 

possible suspect is properly excluded.” (People v. Brady, supra, 50 Cal.4th at p. 559; see 

also, Jackson, supra, 110 Cal.App.4th at p. 288 [“the defense value of . . . other similar 

crime files was tenuous unless the crimes were solved”].) 

 Second, there was no evidence to “link the third person either directly or 

circumstantially to the actual perpetration of the crime.” (Elliott, supra, 53 Cal.4th at 

p. 580.) Defense counsel argued the police sketch of the suspect in the carjacking 

resembled defendant. Counsel also argued the crimes were similar because the carjacker 

used a handgun and struck the victim on the head. However, there was no evidence 

linking the suspect to the robberies committed against Hernandez and Shishido. 

 Third, there was nothing remotely approaching a “pattern” in the two crimes “so 

unusual and distinctive as to be like a signature.” (Elliott, supra, 53 Cal.4th at p. 581.) 

One crime was a run-of-the-mill street robbery and the other a seemingly ordinary 

carjacking. The February incident involved a demand for money and the April incident 

involved the demand for a cell phone and the taking of a vehicle. The fact that guns were 

used in both incidents is not unusual or distinctive, nor is the fact that the perpetrator in 

both instances struck the victim with his gun. Such details are depressingly familiar and 

common. 
 Moreover, there were distinct differences between the two crimes. The robbery of 

Hernandez and Shishido was committed at approximately 7:00 p.m., while the carjacking 

was committed at 1:40 a.m. The robbery occurred in the common area of a private 

residential complex. The carjacking apparently occurred at an intersection of two public 

streets. The robber in February took off on foot, while the carjacker drove off in the 

victim’s car. 

 Finally, the prosecutor urged the court to exclude the evidence under Evidence 

Code section 352. “ ‘Under Evidence Code section 352, the trial court enjoys broad 

discretion in assessing whether the probative value of particular evidence is outweighed 

by concerns of undue prejudice, confusion or consumption of time. [Citation.]’ 

[Citation.] A trial court’s discretionary ruling under Evidence Code section 352 will not 

be disturbed on appeal absent an abuse of discretion.” (People v. Lewis (2001) 26 Cal.4th 

334, 374.) Allowing the defense to introduce evidence of the unsolved April carjacking 

would have sidetracked the jury with evidence of an unsolved crime involving an 

unknown suspect with no proven connection to the crimes in this case. The result would 

have been jury confusion and undue consumption of time. 

Failure to provide defense counsel with a copy of the April 11 police report 

 The trial court also was well within its discretion in refusing to provide a copy of 

the police reports to defense counsel, having based its decision in part on the fact that the 

carjacking had not been solved and involved an ongoing investigation. The prosecution 

asserted the official government privilege under Evidence Code section 1040 in response 

to defendant’s request for copies of the police reports. “Ongoing investigations fall 

under the privilege for official information. (Evid. Code, § 1040.) Moreover, the victims 

have a constitutional right of privacy. (Cal. Const., art. I, § 1.) Both of these factors 

weigh heavily against a criminal defendant’s right to potentially exculpatory material.” 

(Jackson, supra, 110 Cal.App.4th at p. 287.) Evidence Code section 1040 expressly 

requires the “necessity for preserving the confidentiality of the information” to be 

weighed against “the necessity for disclosure in the interest of justice.” (Evid. Code, 

§ 1040, subd. (b)(2).) 
 Two cases cited to the court below dealt specifically with “whether a defendant’s 

entitlement to potentially exculpatory material outweighs the official information 

privilege and a victim’s privacy rights”: Jackson, supra, 110 Cal.App.4th at page 288 

and People v. Littleton (1992) 7 Cal.App.4th 906. 

 A “ ‘trial court has discretion “ ‘to protect against the disclosure of information 

which might unduly hamper the prosecution or violate some other legitimate 

governmental interest,’ ” or when there is an “ ‘absence of a showing which specifies the 

material sought and furnishes a “plausible justification” for inspection . . . .’ ” [Citation.] 

Although policy may favor granting liberal discovery to criminal defendants, courts may 

nevertheless refuse to grant discovery if the burdens placed on government and on third 

parties substantially outweigh the demonstrated need for discovery. [Citations.]’ 

[Citation.]” (Littleton , supra, 7 Cal.App.4th at p. 910.) Littleton held the privacy 

interests of victims and citizen witnesses in those cases outweighed the “tenuous and 

speculative” benefit to defendant in discovering those police reports. (Id. at p. 911.) 

 In Littleton the defendant had requested copies of police reports in 12 other 

burglary-rape cases in the same geographic area where defendant’s crime had occurred, 

in which no suspect had been identified and the defendant had not been eliminated as a 

suspect. (Littleton, supra, 7 Cal.App.4th at pp. 909-911.) “Because no one had been 

arrested or charged with those other crimes in this case, the information in the reports 

would have been of no value to the defendant unless he was able to solve the other crimes 

and identify the perpetrator. . . . Weighed against this speculative benefit was the 

government’s legitimate need for confidentiality of ongoing police investigations and the 

privacy interests of the victims and witnesses identified in those other reports.” (Id. at 

p. 911.) A similar result was reached in Jackson, supra, 110 Cal.App.4th at pp. 288-289, 

which involved a challenge based on both state statutory and federal constitutional 

grounds. 

The courts in Jackson and Littleton distinguished a case in which a defendant was 

granted discovery of police investigation files of similar crimes on grounds that the other 

crimes in that case had been solved and other individuals had been charged with their 
commission. “[T]his distinction is critical: the government’s interest in maintaining 

confidentiality in a case of ongoing investigation is far greater than in a case where a 

suspect has been charged and the matter has entered the public view through the court 

system.” (Jackson, supra, 110 Cal.App.4th at p. 288; see also Littleton, supra, 

7 Cal.App.4th at pp. 910-911.) 

 The court here fully reviewed the police report in question. Following that review, 

the trial court saw no striking similarities between offenses or offenders such as to render 

admissible evidence of the carjacking. Indeed, defense counsel, having reviewed the 

whole report, came up with no explanation about why she needed a copy of it except to 

locate the victim and possibly other witnesses and to “investigate” the matters contained 

in the police report. She did not point out any additional details contained in the reports 

that needed follow-up. On appeal defendant proposes only that the victim of the 

carjacking could have testified that defendant looked a lot like the carjacker. It seems to 

us that, having reviewed the police report, defense counsel probably gleaned enough 

information to follow up with the victim if she deemed it necessary. 

 Moreover, defendant himself could have testified he was not involved in the 

robbery and told the jury, as he did the arresting officer , that another man in the 

immediate vicinity resembling him in appearance and hairstyle and wearing identical 

clothing was the actual culprit.5

 He elected instead to have his attorney present the 

drug-deal-gone-bad defense.

 Finally, any error in excluding evidence of third party culpability was harmless 

under either the state or federal standard of review. (Chapman v. California (1967) 

386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) The 

evidence against defendant was compelling. Both Hernandez and Shishido identified him 

near the crime scene moments after they were robbed. They were absolutely positive 

about their identification both at the crime scene and at trial. A gun similar to the one 

 5

 The court ruled before trial that if defendant testified, the jury could be told that he suffered felony 

convictions in 2006 and 2008. Defendant had prior felony convictions for two robberies and a prior conviction for 

grand theft from the person, which was originally charged as a robbery. 
used in the robbery was found in a location where defendant’s female companion had 

gone shortly after the robbery. And finally, defendant refused to participate in a live 

lineup at the jail, which tended to show consciousness of guilt. Even if evidence of the 

April 11 carjacking had been admitted, there is no reasonable possibility or probability 

defendant would have received a more favorable outcome. (Chapman, supra, 386 U.S. at 

p. 24; Watson, supra, 46 Cal.2d at p. 836.) 

Brady v. Maryland 

 Defendant contends, “Evidence that a very similar crime has been committed by 

someone other than the defendant is potentially exculpatory evidence which must be 

disclosed under Brady v. Maryland.” Under Brady, the prosecution violates a 

defendant’s right to due process if it withholds exculpatory evidence―that is, evidence 

“favorable to the accused”―material to the defendant’s guilt or punishment. (Brady, 

supra, 373 U.S. at p. 87.) Evidence is “material” within the meaning of Brady when 

there is a reasonable probability that, had the evidence been disclosed, the result of the 

proceeding would have been different. (Cone v. Bell (2009) 556 U.S. 449, 469-470.) A 

“reasonable probability does not mean that the defendant ‘would more likely than not 

have received a different verdict with the evidence,’ only that the likelihood of a different 

result is great enough to ‘undermine[] confidence in the outcome of the trial.’ ” (Smith v. 

Cain (2012) __ U.S. __, 132 S.Ct. 627, 630, quoting Kyles v. Whitley (1995) 514 U.S. 

419, 434.) On a claim of Brady violation, we review the record independently. 

(People v. Salazar (2005) 35 Cal.4th 1031, 1042.) 

 As the Attorney General points out, “[t]here is no Brady violation ‘where a 

defendant “knew or should have known the essential facts permitting him to take 

advantage of any exculpatory information,” or where the evidence is available . . . from 

another source,’ because in such cases there is really nothing for the government to 

disclose. [Citations.]” (Coe v. Bell (6th Cir. 1998) 161 F.3d 320, 344.) “When, as here, 

a defendant has enough information to be able to ascertain the supposed Brady material 

on his own, there is no suppression by the government.” (United States v. Aichele

(9th Cir. 1991) 941 F.2d 761, 764.)
 In this case defendant’s Brady claim fails because the defense had access to the 

key information concerning the carjacking on April 11, 2012. Indeed, defense counsel 

attached a copy of the police sketch of the carjacking suspect to her motion to admit 

evidence of third party culpability. During the hearing on the motion, the court permitted 

defense counsel to personally review the police reports. Though the court refused to give 

her a copy of the report relating to the carjacking, there is no reason to think she could 

not have made a mental note of the victim’s name and pursued further investigation as 

warranted.

 Even after reviewing the report she was not able to list any truly significant 

similarities between the robbery of Hernandez and Shishido and the April 11 carjacking. 

The only additional information she provided was that the carjacker was five feet, eight 

inches tall and weighed 150 pounds, whereas defendant was five feet, six inches tall and 

weighed 140 pounds. Defense counsel acknowledged the height and weight of the two 

suspects were “inconsistent.”6

 

 Other than that, she continued to argue the same factors she had in her written 

motion based on the police sketch and accompanying press release alone: the robber and 

carjacker were of the same race, both had shoulder-length dreadlocks, both wore hoodies, 

both used guns, and both pistol-whipped their victims. These are the same factors 

defendant now argues on appeal. This strongly suggests the police report itself offered 

no additional details about the carjacking or the carjacking suspect to support a finding of 

similarity between the two crimes. For instance, we think it is fair to infer that the police 

report said nothing about the carjacker having acne, or defense counsel would have 

pointed that out to the court. In the absence of some more distinctive trait of appearance, 

and in the absence of a distinctive modus operandi, it is doubtful such evidence can be 

considered truly “exculpatory” within the meaning of Brady. But even assuming for 

purposes of argument the evidence was “exculpatory,” we cannot find it material.

 6

 Defendant asks us to construe the record as a mistranscription, insisting defense counsel must have said 

the two men’s heights and weights were “consistent.” We decline to do so. Given the two-inch and ten-pound 

discrepancy between the two descriptions, it is entirely possible defense counsel understood the descriptions to be 

“inconsistent.” 
 In determining the materiality of evidence allegedly suppressed by the 

prosecution, we consider both the probative force of the evidence that was withheld from 

the defense and the strength of the evidence actually presented. The more uncommon the 

physical characteristics of the defendant which are shared by the criminal at large, the 

stronger the probative value of the unsolved crime. Similarly, the more the manner in 

which the two crimes share uncommon and “signature-like” features, the more likely it is 

the evidence of the unsolved crime may be considered material. The tenuous connection 

between the two criminal episodes in this case makes the probative value of the evidence 

weak at best.

 It is questionable whether evidence that a perpetrator of a similar height, weight, 

and ethnic background also committed a robbery on a date when the defendant was in 

custody―without more―can rightly be considered “favorable” to the defense. Yet, in 

this case the physical features that suggested the robber and the carjacker were the same 

person were nothing more than generic characteristics, such as age, race, and hairstyle. 

The heights and weights were not identical. The clothing styles were similar but not 

identical, and were common among young men in defendant’s age group. The police 

report on the present crime notes that defendant has acne, whereas, so far as we can 

discern, no such observation was made about the carjacker.7

 Nor was the mere use of a handgun―either as a means of intimidation or in the 

pistol-whipping that occurred in each case―an unusual factor in today’s crimes. There 

was no “signature” modus operandi. The crimes were not even the same, one being a 

garden-variety armed robbery and the other being a seemingly ordinary carjacking. 

 In similar circumstances Jackson, supra, 110 Cal.App.4th 280, cited by the People 

below, applied the rationale of Littleton, supra, 7 Cal.App.4th 906, in the context of a 

Brady claim. The court held it was proper under both statutory discovery rules and Brady

to deny a burglary-rape defendant discovery into police investigative files of other 

burglary-rapes in the area. (Jackson, supra, at pp. 284-285, 288-289, 291.) This was true 

 7

 The police report itself has not been made available for our review. 
even though one of three crimes on which discovery was sought “shared many 

similarities with the crimes charged against appellant, including the time and location of 

the attack, mode of entry, nature of the touchings, flight of the suspect and his initial 

description.” (Id. at supra, at p. 287.) 

 Defendant distinguishes Littleton and Jackson on grounds that he can be 

eliminated as a suspect in the April 11 carjacking because he was in custody when that 

offense was committed, whereas the defendants in Littleton and Jackson could not be 

eliminated as suspects in the other cases. However, defendant’s argument essentially 

boils down to this: a criminal defendant is entitled to discover police investigative files 

related to all similar (not even identical) unsolved crimes in the same city where the 

charged offense occurred, at least insofar as the perpetrator in those cases resembled the 

defendant in height, weight, race, hairstyle and clothing style, the crimes bore some 

generic similarities such as gun use, and the defendant may be eliminated as the 

perpetrator of the second offense. We cannot carry either Brady or the defendant’s right 

to discovery that far. There must be something more distinctively similar about the 

crimes or the criminals to warrant the burdens inherent in requiring such disclosure. 

Commonplace similarities in appearance, such as age, height, weight and race, are 

insufficient.

 Defendant relies almost exclusively on United States v. Jernigan (9th Cir. 2007) 

492 F.3d 1050 (Jernigan), in which a diminutive Hispanic woman with acne or pock 

marks on her face was convicted of bank robbery after allegedly robbing three banks. 

While she was in custody and awaiting trial, three more bank robberies were committed 

in the area by a woman “whose description bore an uncanny physical resemblance” to 

Jernigan’s. (Id. at p. 1051.) “Although the prosecution knew that other nearby banks had 

been robbed by a diminutive, Hispanic female with poor skin after Jernigan’s arrest, the 

prosecution failed to relay this information to defense counsel.” (Ibid.) The government 

did not dispute “that the evidence of an additional bank robber matching Jernigan’s 

description was favorable to Jernigan and that the government failed to provide it to 

defense counsel . . . .” (Id. at p. 1053.) The only issue in dispute was whether the 
evidence was material. (Ibid.) Unlike in the present case, a specific individual had been 

arrested and charged with the later bank robberies. (Id. at p. 1052.) 

 After reviewing the evidence as well as national statistics showing “only six 

percent of all bank robbery perpetrators were female” in the year the robberies took 

place, and “[o]nly six percent of bank robbers overall (male and female) were Hispanic,” 

the Ninth Circuit concluded the evidence was material and Jernigan was prejudiced by its 

suppression. (Jernigan, supra, 492 F.3d at p. 1056.) The holding of Jernigan applies to 

an accused and another known or believed to have committed a similar crime who both 

have “phenotypically similar” traits. (Id. at p. 1053.) 

 Of particular significance in our view was that both Jernigan and the other accused 

robber had acne or pock marks on their faces. This unusual coincidence of largely 

inalterable physical features, together with the low crime statistics for the defendant’s sex 

and ethnic group, appears to have had a major impact on the court’s decision. 

 There are several important distinctions between our case and Jernigan. First, the 

crime committed by the bank robber in Jernigan was identical to the defendant’s crime 

(i.e., bank robbery), and in fact she robbed the same bank branch that defendant was 

convicted of robbing. (Jernigan, supra, 492 F.3d at p. 1052.) Common experience tells 

us bank robberies are less common than street robberies such as that involved in our case. 

Indeed, in our case defendant sought to introduce evidence of a suspect in an entirely 

different crime, namely a carjacking. Although both the robber and the carjacker carried 

guns and used their weapons to strike their victims on the head, these are not distinctive 

or unusual features of such unfortunately common crimes. None of the behavior of the 

April 11 carjacker makes his conduct or existence material in the present case. 

 As for his appearance, the defendant in Jernigan, had an “uncanny physical 

resemblance” to a still active bank robber. (Jernigan, supra, 492 F.3d at p. 1051.) 

“[B]oth women were roughly five feet tall, Hispanic, and had acne or pock-marked 

complexions.” (Id. at p. 1051, fn. omitted.) This combination of unusual physical 

features was “noteworthy” to the court’s decision. (Id. at p. 1051.) 
 In this case, there was no evidence of a “noteworthy” or “uncanny” resemblance. 

The carjacker was reported to be two inches taller than defendant (5 feet 8 inches versus 

5 feet 6 in ches) and ten pounds heavier. Neither the individual similarities pointed out 

by defendant (race, age, weight, hairstyle, style of dress) nor their combination in a single 

individual are unusual in the population, as were the pock marks of the short Hispanic 

woman. Many young African Americans wear their hair in dreadlocks and wear hoodies. 

Interestingly, the arrest report for defendant shows that he, too, had acne, but there was 

no similar notation for the carjacker. 

 The court in Jernigan also had before it statistics to show a Hispanic female was 

“a most unlikely bank robber.” (Jernigan, supra, 492 F.3d at p. 1055.) In our case we 

have been presented with no statistics to suggest that young African American men, with 

or without dreadlocks, are underrepresented in committing the types of crime involved 

here. Therefore, Jernigan is not persuasive. 

 As the prosecutor told the trial court, “If the defense is allowed to bring in every 

male black with dreadlocks in Fairfield who committed crimes similar to this, robberies 

with guns and carjackings, we could just open up the flood gates.” The trial court did not 

abuse its discretion in refusing to open those flood gates. 

Strength of the evidence as affecting admissibility of third party culpability evidence 

 Defendant contends the prosecution’s case was weak and that factor should have 

influenced the court’s ruling on admissibility of evidence of third party culpability. He 

argues the prosecution’s evidence was so weak that additional evidence of the April 11 

carjacking would have been sufficient to raise a reasonable doubt as to defendant’s guilt. 

In particular, defendant argues “[t]he evidence linking defendant to the crime was 

unreliable cross-racial identification of him made under highly suggestive conditions,” 

and “[t]here was none of the corroborating evidence one would expect to find if 

defendant was actually the robber.” Defendant also argues the gun found under the ice 

machine did not match the victims’ descriptions of the gun used in the robbery, there was 

no evidence defendant’s female companion was Gross, there was no evidence defendant 
handed anything to his female companion, there was no evidence Gross put a gun under 

the ice machine, and there was no evidence linking the gun to either defendant or Gross.8

 But the evidence pointing to defendant’s guilt was much stronger than he 

acknowledges. Defendant wore the same clothes as the robber. Both Hernandez and 

Shishido firmly identified defendant near the scene within minutes of the robbery and 

were equally certain at trial. 

 Defendant asks us to discount the identification evidence because the 

identifications were cross-racial.9 The jury was instructed under CALCRIM No. 315 

that, in evaluating identification testimony, it should take into account whether the 

witness and the defendant are of different races. Given the victims’ certainty of the 

identification, the close proximity in time between the show up and the crime, and the 

court’s admonition to the jury, defendant’s complaint about cross-racial identification 

carries little weight. Cross-racial or not, these two independent identifications of 

defendant were strong evidence of his guilt.

 The rest of the evidentiary gaps cited by defendant could be filled by inference 

from the evidence presented. Officer Kresha told Officer High defendant had been in the 

company of a woman just prior to his arrest. Officer High went to Travis Lodge, not far 

from the crime scene, specifically because he recognized defendant from a previous 

encounter there. He evidently went there on the hunch he might find the woman who had 

accompanied defendant on the prior occasion. He learned from the front desk clerk that 

Gross had come in earlier and passed through the vending machine area. He personally 

contacted Gross in the hotel’s stairwell and would have known whether she was the same 

woman who had been with defendant on the prior occasion. That she was the same 

woman may be inferred from all the testimony. 

 8

 Gross initially told the police the gun was hers. She later told them it was defendant’s gun and he had 

used it in both the Hernandez-Shishiido robbery and the New Year’s Day robbery. 

9

 Defendant’s unopposed motion for judicial notice of the ethnic backgrounds of the victims was granted on 

March 28, 2013.
 Similarly, when Officer High found the gun under the ice machine, it was 

reasonable to infer Gross had abandoned it there. It was also fair to infer she had 

obtained it from defendant after the robberies. The jury was instructed in accordance 

with CALCRIM No. 223 that both direct and circumstantial evidence are acceptable 

forms of proof.

 Defendant also exaggerates the supposed contradictions in identifying the gun as 

the one used in the robberies. Hernandez testified the gun resembled the one used in the 

robbery. Shishido also testified it could have been the same gun, although he was not 

sure. Neither Hernandez nor Shishido was familiar with guns, and their testimony about 

the gun was not altogether consistent. While Shishido thought the gun was silver or 

shiny, Hernandez testified it was black. The gun, in fact, is predominantly black with 

some silver showing, which may explain the discrepancies in the two descriptions.

 That Hernandez’s wallet and Shishido’s ten dollar bill were never recovered did 

not significantly undercut the prosecution’s case. Defendant could have secreted the 

items somewhere, given them to Gross, or handed them to the man he and Gross were 

seen talking to in a car. 

 Finally, defendant points out he was “behaving in a very unusual manner for a 

person who has just robbed two men at gunpoint . . . .” Defendant claims if he “had 

actually been the man who robbed Mr. Hernandez a few minutes earlier,” he would have 

run away rather than lingering near the apartment complex. 

 But an armed assailant who successfully robbed two unarmed individuals would 

not necessarily expect the victims to follow him. It would not be unbelievable for 

defendant to rendezvous with his girlfriend before leaving the area, which is precisely 

what occurred. Although defendant lingered several minutes, he was in the process of 

leaving when Hernandez arrived and spotted him. And even if defendant’s behavior was 

unusual, it could as easily be a testament to his brazen lawlessness as to his innocence. 

While flight is often evidence of a guilty conscience, failure to flee is not necessarily 

indicative of innocence. (People v. Williams (1997) 55 Cal.App.4th 648, 651-653.) The 

jury was aware of the facts and could draw or refuse to draw available inferences. 
 Add to that defendant’s refusal to participate in a lineup, and the evidence of guilt 

was strong. Truly, the most “unusual” behavior by defendant, as compared with that of 

an innocent man, was his refusal to participate in a lineup that was scheduled at the 

request of his attorney. Obviously, the lineup could have exonerated him if he were truly 

innocent of the offense. His refusal to participate suggests a guilty conscience and leads 

us to conclude the evidence of a carjacker with dreadlocks was not likely to have raised a 

reasonable doubt about his guilt. 

DISPOSITION

 The judgment is affirmed. 

 _________________________ 

 Richman, J. 

We concur: 

_________________________ 

Kline, P.J. 

_________________________ 

Haerle, J.