1

Filed 9/ 9 /15 CERTIFIED FOR PUBLICATION

IN THE COU RT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. BRETT STUA RT LEWIS, Defendant and Appellant. A143106
(Contra Cos ta County Super. Ct. No. 51221183)

Defendant Brett Stuart Le wis challenges two trial court orders in this appeal from
his conviction s for vehicle theft and reckless vehicular evasion of a peace officer

. The
first order denied a Brady 1 m otion in which he sought to compel the discovery of
information about the arresting officer, Matthew Switzer , after the prosecution informed
the defense on the first day of trial that Switzer would not be called as a witness. The
second order denied a motion for a new trial filed by Lewis after he learned that Switzer
had been charged with, and ple a d ed no contest to , charges of burgl ary, elder abuse, and obtaining a controlled substance

. In entering these orders, the trial court found that the

e vidence about Switz er was immaterial and that the jury was not reasonably likely to
have acquitted Lewis if it had been aware of this evidence

. Although we have serious concerns whether the prosecution satisfied its discovery obligations, we agree with the
trial court that there was no Brady violation , and we therefore affirm.

1 Brady v. Maryland (1963) 373 U.S. 83 ( Brady ). Under Brady , the prosecution may not suppress evidence m aterial to the defendant’s guilt or punishment. ( Id. at p. 87.)2 I. BACKGROUND The Contra Costa District Attorney charged Lewis with: (1) the unlawful taking or driving of a vehicle (vehicle theft) ; (2) evading a peace officer while driving with a
willful or wanto n disregard for the safety of others (evasion) ; (3) resisting a peace officer ; and (4) possession of burglar’s tools. 2 The trial court dismissed the last two counts o n the prosecutor’s motion , but the jury convicted Le wis of the first two counts

. He was sentenced t o six years in prison

— one year for vehicle theft, three years for evasion , and two years for the sentencing enhancements

. At the preliminary hearing, Switzer testified he was on patrol with a police dog in
a marked K

- 9 unit in the late evening of November 11, 2012, the day of Lewis’s arrest

. He ran a Department of Motor Vehicles registration check on a four

- door Saturn sedan and discovered the vehicle’s plates had been recently lost or stolen. According to
Sw itzer , he waited for back up to arri ve and then initiate d a traffic stop by turning on his overhead emergency light s

. Lewis was the driver of the Saturn , and after Switzer’s emergency lights came on, he accelerated to well over the posted speed limit and ran several stop signs. Switzer and the other officers pursued him

. Switzer testified that at least twice during the pursuit Lewis opened his door and
stuck out his foot as if he were going to run

. Switzer claimed that on these occasions he
broadcast over his public address system somethi ng like , “[I]f yo u run, I’m going to send my dog

— I’m going to send my dog, and you’re going to get bit. ” Each time, Lewis responded by closing his door and accelerating

. At one point, Lewis crashed the Saturn
into a curb and both of its passenger

- side ti res went flat. Eventually, he came to a n abrupt stop in the middle of an intersection and fled on foot. Switzer again warned Lewis

2 The vehicle

- theft charge was filed under Vehicle Code section 10851, subdivision (a); the evasion charge was filed under Vehicle Code section 2800.2, subdivision (a); the resisting charge was filed under Pena l Code section 148, subdivision (a)(1); and the possession charge was filed under Penal Code section 466. In addition, sentencing enhancements were charged under Penal Code section 667.5, subdivision (b). All further statutory referen ces are to the Penal Code unless otherwise specified.3

to stop or he would “get bit

. ” When Lewis failed to comply, Switzer released the dog,
which caught Lewis and bit him on hi s right a rm , and Lewis was arrested

. The license plates on the Saturn had been issued for a different vehicle and taken without permission

. On the first day of trial, March 17, 2014, t he prosecutor gave the defense the prosecution’s witness list. Switze r ’s name was not o n it

. This was t he first time the
defense learned that Switzer would not be c alled as a prosecution witness.
T he jury hear d testimo ny from other officers who had pursued Lewis immediately
before his arrest, including Officer David Green field. Greenfield testified that he joined the pursuit after learning that Switzer was following a car displaying lost or stolen plates.
Greenfield and another officer pulled behind Switzer, and they attempted to initiate a traffic stop by turning on the ir overh ead lights. Lewis , who had been driving at 25 to 30 miles per hour, accelerated to speeds well above the 45 miles per hour speed limit. Lewis ran several stop signs , hit a curb, blew out the passenger

- side tires , and on two or three
occasions , sl owed the car and opened the driver

- side door. Greenfield heard Switzer say something over his public address system when Lewis slowed, but he could not make out
what was said. Eventually, Lewis stopped in the middle of an intersection and fled on
foot. Greenfield stayed behind to apprehend a woman who remained in the Saturn

. The Saturn belonged to Gerald Devenuta , who also testified at the trial. He
testified that the Saturn was stolen from the parking lot of a mall on the evening of October 30, 2012. He stated that when he recover ed the car from the impound yard
several weeks later , he discovered that its body was damaged, the tires were flat, a new stereo system had been installed, and there were cigarette burns all over the interior. He
also notice d someone had tampered with the car’s igniti on and interior wiring.
Lewis testified in his own defense. He maintained he did not know the Saturn was
stolen

. He claimed that a friend, Steve Anderson, had brought him the car to repair
because its check

- en gine light was illuminated. Lewis did not have Anderson’s permission to drive the Saturn, but he d rove it anyway because he lacked a car of his own4

and wanted to spend time with another friend, Kelly Jones. 3 Lewis testified that as he

was driving Jones t o her daughter’s house, a police car made a U

- turn and pulled up
behind them

. According to Lewis , the police officer an nounced, presumably over his public address system , “Pull over; I’m going to release the dog and he is going to bite you.” The police c ar’s overhead lights and sirens had not been activated. Lewis claimed
he sped up because he was afraid of being bitten

. He also maintained that du ring the ensuing chase, the police officer repeated his warning about releasing the dog. Although Lewis agr eed with Greenfield’s t estimony about the course of the chase, he denied ever slowing down and opening the driver

- side door.
On the third day of trial, March 19, 2014, Lewis filed a Brady motion seeking from the prosecution “ impeachment information regard ing

. . . Switzer ” and “[a]ny
evidence that wou ld tend to exonerate

. . . Lewis, minimize his probable sentence, or that constitutes information that the defense might use to impeach or contradict prosecution witnesses.” Lewis argued that the evidence wou ld be relevant to his claim he had fled
because he was threatened by Switzer and would go to the reasonableness of the officer ’ s actions

. At a hearing held that day, Lewis ’ s trial counsel stated he had attempted to subpoena Switzer that morning and receiv ed a response from the Concord Police Department reporting t hat Switzer was on administrative leave and unavailable. The prosecutor opposed the Brady motion , and the trial court denied it , finding the requested
information to be immaterial because Switzer w ould not be testifying at trial, Switzer’s

statements were not relied upon by the officers who were testifying, and Lewis had failed

to file a Pitchess 4 motion before trial. 5

3 Lewis also admitted he had been twice convicted of car theft.

4 Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ). Pi t chess allows a defendant to obtain discovery of law enforcement person nel records upon a sufficient showing of good cause. ( Id . at pp. 537

- 540.)

5 There is no indication in the record that Lewis either filed a motion to compel discovery or requested a continuance to secure Switzer’s trial presence.5

On April 3, 2014 , n ine days after the jury returned its verdict , the Contra Co sta District Attorney filed an information against Switzer, charging him with two counts of
residential burglary , one count of commercial burglary, one count of elder abuse, and one
count of obtaining a controlled substance by fraud

. The se offenses allege dly occurred about a year after Lewis was arrested, during the period of October 1, 2013 , to February 2, 2014. Within a month of the information’s filing, Switzer pleaded no contest
to each count.
A few weeks after Switzer’s plea, Lewis moved for a new t rial on his conviction
for eva sion

. He argued that if his Brady motion had been granted he would have been able to present evidence at trial that “ Switzer had committed several moral turpitude
felonies ” and “had a serious drug addiction.” He also pointed to a news article in a local
paper reporting that Switzer had a seri ous drug addiction. According to Lewis , this evidence would have supported his claim that he fled the police not with a wanton disregard for safety but rather out of fear of Switzer ’s th reat to release the dog

. The trial court denied the motion. I t concluded there was no Brady violation
because the evidence of Switzer ’s criminal wrongdoing was immaterial. The court ruled
it was not reasonably probable that th is evidence would have chan ged the outcome of the
trial because Switzer’s credibility was not at issue ( since Switzer did not testif y ) , Greenfield ’s trial testimony was consistent with Switzer’s preliminary hearing testimony,
and Lewis’s claim he fled out of fear of the dog lacked c redibility. 6 Nonetheless, the
court found t hat the evidence about Switzer “constitute [d] prior misconduct involving moral turpitude that may have been ‘favorable’ to the defense as impeachment evidence.”
It also found that Lewis “acted with reasonable di ligence in locating the new evidence,” reasonably “expected the prosecution to have called

. . . Switzer as a witness,” reasonably believed “he did not need to subpoena” Switzer for trial, and only learned two days after

6 The trial court ackno wledged it erred at trial when it ruled that Lewis had waived his right to discovery under Brady by failing to file a Pitchess motion before trial. But it found that the error did not entitle Lewis to a new trial because the evidence at issue was immateri al.6

the trial started that Switzer was “unavailable because he was on administrative leave

. ”
The court made a point of “reiterating that [it did ] not in any way countenance the prosecutor’s failure to voluntarily disclose the informat ion to the defense.”
II. DISCUSSION Lewis contends that his convictions for vehicle theft and evasion must be reversed
because his Brady motion and motion for new trial were improperly denied

. He claims the prosecution withheld evid ence favorable to his defense and material to his innocence
because it showed that Switzer was addicted to a heavy opiate and supported his habit through burglaries, using his status as a police officer to gain access. Although w e have serious concerns whether the prosecution satisfied its discovery obligations, we conclude
there was n o Brady violation because it is not reasonably probable that the jury would have acquitted Lewis had it been permitted to consider this evidence.
Under Brady , the prosecution violates a defendant’s federal due process rights when it suppresses evidence ma terial to the defendant’s guilt or punishment, regardless of the good faith belief of the prosecution. ( Brady , supra , 373 U.S. at p. 87.) P rosecutors have a duty to disclose “material exculpatory evidence whether the defendant makes a specific request [c itation], a general request, or none at all [citation].” ( In re Brown (1998) 17 Cal.4th 873, 879.) There are three elements to a Brady violation : (1) the state withholds evidence , either willfully or inadvertently, (2) the evidence at issue is favorable to the defendant, either because it is exculpatory or impeaching, and (3) the evidence is material. ( Strickler v. Greene (1999) 527 U.S. 263, 281

- 2 82.) As to the last element ,

“ [e] vidence is material if there is a reasonable probability its disclosure w ould have altered the trial result.” ( People v. Zambrano (2007) 41 Cal.4th 1082, 1132.) Put another way, the defendant must show “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” ( Kyles v. Whitley (1995) 514 U.S. 419, 435.) “ Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citation s. ] Because a constitutional violation occurs only if the supp ressed evidence was material by7

these standards, a finding that Brady was not satisfied is reversible without need for
further harmless

- error review.” ( Zambrano , at pp. 1132

- 11 33.) After independently reviewing the sealed documents concerning Switzer, we cannot conclude that there was a Brady violation because the evidence of Switzer ’s
misconduct , although egregious, is im material to Lewis’s guilt and does not undermine
our confidence in the verdict

. It is simply not reasonably probable that the jur y wou ld have acquitted Lewis of either charge had it been presented with this evidence

. As for Lewis ’ s conviction for vehicle theft , it was supported by overwhelming
evidence that was unrelated to Switzer

. It was undisputed that the Saturn was taken from
Deve nuta without permission and the car’s plates were stolen from another vehicle

. Lewis’s defense , which the jury apparently did not believe , was that Lewis repaired the
Saturn for a friend and was unaware it had been stolen. Switzer’s misconduct had no
bea ring on th is defense , and it therefore strains credulity to argue that the jury ’s verdict finding Lewis guilty of vehicle theft would have changed if it had been presented with
evidence of th is misconduct

. A s for Lewis’s conviction for evasion, the eviden ce of Switzer’s misconduct is
immaterial for several reasons. Lewis argues that evidence of Switzer’s crimes and drug
addiction would have corroborated his claim that he fled not with a wanton disregard for safety but out of a fear of Switzer’s threat to release the dog. At the outset, and although
we need not decide the question, we are dubious that Lewis’s alleged fear of the dog
could constitute a viable defense under the established facts. There is nothing necessarily inconsistent about being afraid and at the same time disregarding the safety of others

. The trial court recognized as much when it stated that any fear Lewis had when he fled arose “simultaneously to his own awareness of the risks he was taking while operating
the vehicle in a manner th at was in wanton disregard for safety.” (Boldface omitted.) There was ample evidence for the jury to conclude that, fearful or not, Lewis still d rove with “ willful or wanton disregard for the safety of persons or property.” (Veh. Code § 2800.2, subd. (a ).)8

But e ven if Lewis’s fear could be considered a valid defense , it is not reasonably probable that Lewis would have been acquitted of the evasion charge if the jury had
heard evidence related to Switzer’s misconduct. At trial, the only person to testif y about the content of Switzer’s allegedly threatening announcements over the public address system was Lewis. If Lewis could have somehow introduced at trial Switzer’s testimony from the preliminary hearing, the jury would have heard that Switzer warned Lewis after
the chase commenced that the dog would be released if Lewis tried to run

. This testimony would have given the jury more , not less, reason to convict. Although it is true
that evidence related to Switzer’s misconduct may have badly damaged Swi tzer’s credibility, it is also true that Switzer’s testimony at the preliminary hearing was consistent with Greenfield’s testimony at trial that Lewis fled because the officers turned on their overhead lights, not because of a public address system announc ement by
S witzer. Furthermore, Lewis’s testimony was not credible. Lewis claimed he fled in the
Saturn because Switzer threatened to release the dog

. But Lewis’s safety from the dog would have been secured by simply remaining in the Saturn or, as the tr ial court put it, “behind heavy metal doors.” Instead, he eventually exposed himself to the dog by leaving the car and fleeing on foot. Given the jury’s conclusion that Lewis was driving a
stolen car on the night of the arrest , it is far more plausible t hat Lewis fled to evade the police because he feared prosecution, not the dog

. Moreover, it is unlikely the jury would have doubted Switzer’s account even if
Switzer had testified and had been impeached because , as we have mentioned, his story was corrobo rated by Greenfield. Greenfield testified that he pulled up behind Switzer and Lewis before the high

- speed pursuit began , when Lewis was driving below the speed limit. According to Greenfield, Lewis fled because the pursuing officers turned on their

over head lights, not because of a public address system announcement by Switzer

. Although Greenfield testi fied he heard Switzer ma k e a couple of announcements over his public address system , he maintained that the se announcements were made after the chase beg an. R egardless of Switzer ’ s testimony and potential impeachment, Greenfield’s9

testimony contradicts Lewis’s claim that he fled because Switzer threatened him with the dog. Thus, we conclude that there was no Brady violation , and the authority cited by
Le wis does not compel a different result. In People v. Uribe (2008) 162 Cal.App.4th 1457, the court found the prosecution’s suppression of a video of a sexual assault response team exam ination constituted a Brady violation. ( Uribe, at p. 182.) The court
h eld that the suppressed video was material “based upon the relative weakness ( sans medical evidence) of the prosecution’s case, coupled with the unfairness to defendant in his being required to respond to medical testimony with limited and inferior photos [of the victim] when far superior and numerous photographic evidence in the form of the [sexual assault response team] video should have been made available to him.” ( Ibid. ) In contrast, the prosecution’s case here was strong
, and the suppressed evidence was not central to Lewis’s defense. The other cases cited by Lewis, including In re Steele (2004)
32 Cal.4th 682 , are also inapposite. In Steele , the court held that the prosecution is obligated to disclose potentially exculpatory material upon the defe ndant’s request, even “if [the evidence’s] exculpatory nature would not otherwise be apparent to the prosecution.” ( Id. at p. 700.) The court, however, did not hold that the denial of such a request amount s to a Brady violation where, as here, the eviden ce is determined to be
immaterial. In concluding there was no Brady violation, we do not hold that such a violation

c an never be established when a prosecutor withholds evidence of misconduct by an arresting officer who does not testify at trial. We mere ly conclude that under the facts of
this case the evidence of Switzer’s misconduct was im material to Lewis ’ s guilt or
innocence , and it is not reasonably probable that the jury would have acquitted Lewis if it
had known about the misconduct

. Nor do we con done the prosecution’s conduct

. Although we conclude there was

no Brady violation, we are concerned that the prosecution failed to satisfy other discovery obligations. To begin with, the parties and the record do not explain why the prosecution’s final w itness list was not provided to the defense until the first day of trial.10

(See §§ 1054.1, subd. (a), 1054.7 [disclosure of witness list must be made 30 days before trial absent prosecution’s showing of good cause or “immediately” if “information
becomes k nown” less than 30 days beforehand].) The record does not reveal any legitimate reason for the prosecution to have waited until then to inform the defense that Switzer, the arresting officer and a main prosecution witness at the preliminary hearing,
would not be called at trial when it had known since early March 2014 that he was on
administrative leave for misconduct . To us, the delay smacks of gamesmanship. By waiting until the last minute to convey the information, the prosecution denied Lewis an

oppo rtun ity to respond to it effectively

. E ven if we accept that the prosecution believed it had no duty to reveal evidence of Switzer’s misconduct, we can find no justification in the record for the prosecution’s tardy disclosure that Switzer would not be ca lled as a
witness

. More importantly, we are unconvinced by the prosecution’s insistence that it had no obligation to reveal any information related to Switzer’s misconduct. 7 California’s criminal discovery statutes require the prosecution to disclose “[a ]ny exculpatory evidence” to the defense (§ 1054.1, subd. (e)), which our Supreme Court has explained is

not limited to evidence that is ultimately determined to be material: “The showing that defendants must make to establish a violation of the prosecuti on’s duty to disclose exculpatory evidence differs from the showing necessary merely to receive the
evidence.

. . . To prevail on a claim the prosecution violated this duty, defe ndants challenging a conviction

. . . have to show materiality, but they do n ot have to make that showing just to be entitled to receive the evidence before trial .” ( Barnett v. Superior
Court (2010) 50 Cal.4th 890, 901, italics added.) In other words, materiality is relevant

7 In “early March 2014” the Deputy District Attorney acting as trial counsel notified the Chief Assistant District Attorney that Switzer had been placed on administrative leave, and it was the Chief Assistant’s decision to remove Switzer from the witn ess list. The Chief Assistant did so apparently based on his conclusions, first, that all the information available to the District Attorney’s Office pertaining to Switzer’s misconduct was confidential investigatory material and, second, that no evidence needed to be revealed under any authority, including “the Criminal Discovery Statute.” We question both of these conclusions but recognize that they were not made by trial counsel.11

in considering a claimed discovery violation after the trial has occurred, but it does not govern the scope of the duty to disclose in the first place, which encompasses all exculpatory evidence. We understand that whether exculpatory evidence includes impeachm ent evidence may be unsettled (s ee Kennedy v. Sup erior Court (2006)
145 Cal.App.4th 359, 378), but evidence related to Switzer’s misconduct was relevant not only to impeach Switzer’s testimony but also to support Lewis’s story that he ran from a police officer who threatened him for il legitimate reason s

. 8 We cannot accept that Lewis
was not entitled to any evidence related to this misconduct. Alt hough there might have been some pertinent information that could not be revealed because of the confidential criminal investigation of Switzer (see § 1054.7), the prosecution’s failure to disclose even the mere fact that Switzer was on administrative leave denied Lewis a full opportunity to develop potential arguments and case strategy, including consideration of whether to call
Switzer as a witness himself.
We recognize it is not always easy for prosecutors to know before trial whether evidence may be exculpatory, and evidence can fall within a continuum ranging from
cle arly exculpatory to clearly non exculpatory. But based on the record before us, at least

som e evidence related to Switzer’s misconduct falls on the side of needing to be
disclosed . Thus, although we conclude there was no Brady violation, we join the trial court in not condoning the prosecution’s conduct. We think it worth reminding prosecutors that their criminal

- discovery obligations are broader than their Brady obligations and that the People’s interest is not to win convictions but instead to ensure that justice is done. In our view, this interest is served through a faithful adherence to
di scovery obligations and, in case of doubt, erring on the side of disclosure and

8 As the Attorney General acknowledges, if Lewis had known about the evid ence he might have argued that Switzer’s actions in pursuing and arresting Lewis were “caused by or related to his drug addiction, or by his commission of commercial burglaries.” She points to the “high barriers” that Lewis would have faced to “unpack tha t theory for the jury,” but by not revealing any information about Switzer and by excluding Switzer from the witness list on the first day of trial, the prosecution denied Lewis any meaningful opportunity to develop such a theory, high barriers or not.12

preserving the appearance of fairness. (See Kyles v. Whitley , supra , 514 U.S. at pp. 439

- 440; People v. Superior Court ( Greer ) 19 Cal.3d 255, 266.)
III. DISPOSITION The judgm ent is affirmed.

_________________________ Humes, P.J.

We concur:

_________________________ Margulies, J.

_________________________ Banke, J.13

Trial Court: Contra Costa County Superior C ourt
Trial Judge: Honorable Clare M. Maier
Counsel for Appellant: Rodger Paul Curnow , under appointment by the First District Appellate Project
Counsel for Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney Gen eral, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Eric D. Share, Laurence K. Sullivan, Supervising Deputy Attorneys General