1

Filed 10/27/14 In re K.K. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re K.K., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,

v.

K.K.,
Defendant and Appellant. E059765
(Super.Ct.No. J249618)

OPINION

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Alan S. Yockelson, under app ointment by the Court of Appeal, for Defendant and
Appellant.2

Kamala D. Harris, Attorney General, Julie L. Garland
, Assistant Attorney General,
Charles C. Ragland, Scott C. Taylor
, and Laura Baggett, Deputy Attorneys General, for
Plaintiff and Respondent.

I

INTRODUCTIO N
In April 2013, a ppellant K.K. and his co participant, D.S.
, broke into an apa rtment

to steal 43 DVDs

. They were subsequently convicted of burglary and receiving stolen

property. (Pen. Code, §§ 459
, 496.) 1

After the jurisdictional hearing, the defense made a motion to dismiss or for a new

trial (§ 1538.5), based on Brady 2 error , because the prosecution had not disclosed
pertinent information about o ne of the responding police officers, Michael Cardenas . The

information about Officer Carden as relates to his termination in 2004 as an LAPD police

officer . The information was not kept confidential at the trial level where it is generally

described in K.K.’s new trial motion. Therefore, a lthough the parties filed sealed and
redacted appellate briefs, the information is not entitled to protection on appeal

. Nevertheless, we will not re publish the specific information in our opinion because it is
not necessary to our disposition.

1 All further statutory references are to the Penal Code unless stated otherwise.

2 Brady v. Maryland (1963) 373 U.S. 83, 87; People v. Salazar (2005) 35 Cal.4th 1031 , 1042

- 1043.3

On appeal, K.K. contends the juvenile court erred when it denied h is motion base d

on th e prosecution’s discovery violation. However, K.K. does not establish he suffered
any prejudice as a result

. The trial court found the information about Officer Cardenas
was not material and that, even when the testimony of Officer C ardenas was disregarded
,
sufficient evidence prove d the offenses beyond a reasonable doubt. The trial court
declared K.K. a ward of the court and granted him probation.

We affirm.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Evidence
On April 21, 2013, at a pproximately 9:30 p.m., Barstow apartment resident, Lakija

McPheters , heard someone trying to break into the apartment next to her s. McPheters ’ s
daughter, Dyunna Dougal, also heard a noise . O utside her w indow , she saw a person ’ s
leg dangling fr om an awning above their apartment and she heard banging on the wall.
Dougal saw a person

— wearing blue and white basketball shorts and a grey sweatshirt

— sitting on the wall outside her apartment and looking up at another person dangling from
the awning. McPheters also saw the person sitting on the wall and she call ed the police.

Officers Daniel Arthur and Cardenas were dispatched separately to the apartment

c omplex

. The two suspects were described as “ B lack males, ” one wearing blue and

white basketball s horts. Officer Cardenas positioned himself outside the apartment
complex to observe the apartments’ front doors

.4

Two individuals
, matching the suspects’ d escription
, descended the stairs near
apartment 14. K.K. wore blue and white basketball shorts and h eld a stack of DVDs.
One of the boys made eye contact with Officer Carden a s; both immediately turned
around and began quickly walking away. Officer Cardenas alerted Officer Arthur that

the two suspects were headed toward him

.
Officer Arthur ordered the bo ys to the ground

. K.K. possessed 43 DVDs. When

Officer Arthur handcuffed K.K. , he spontaneously stated that he was trying to return

some DVDs to his friend
, Christina, who live d in apartment 14. N either boy could
provide Christina ’ s last name and phone number

.
The officers then observed a bent window screen on the ground. The w indow to
apartment 14 was slightly open and displayed handprints

. A n awning below the second

floor apartments was about nine feet above the ground and difficult for one person to

access alone. T he front door of apartment 14 was slightly open without any signs of
forced entry. I nside the apartment Officer Arthur found a DVD with packaging similar to

the DVDs in K.K.’s possession

. Shayna Bradford , the occupant of apartment 14, was out of town that evening but

she had locked the apartment before departing, except for a screened window which she
left open about two to three inches. Bradford testified that she kept hundreds of bootleg

DVDs

— which she had received f rom her father

— in t he room with the open window.

Bradford identified the 43 DVDs recovered from K.K. as being hers. Finally, Bradford

testified that no one name d Christina live d with her.5

B. Defense Evidence
Two different women testified they were outside the c ourtroom wh en they
overheard a conversation between Bradford and the deputy district attorney , Kit Davis , in

which Bradford told Davis that she did not want to testify and that nothing was missing

from her home. T he second woman admitted she was not certain Bradford actually stated
that nothing was missing but she believed Bradford had said she did not want to testify.

K.K. testified he was walking home from the residence of his friend, Crystal,
when he was stopped by Officer Arthur. The DVDs belonged to Crystal. K .K. denied
taking the movies from apartment 14. On cross

- examination, K.K. admitted he was
wearing blue and white striped basketball shorts and a grey sweatshirt that evening. He

could not remember where he or Crystal lived in the complex. He denied tha t he had
walked down the apartment stairs, as Officer Cardenas had testified.

C. Rebuttal Evidence

After K.K. was taken into custody , he did not mention a friend named Crystal
, only Christina, and he did not claim to be uncertain about which apartment he was
coming from when he was confronted by the officers. Bradford had admitted some

DVDs were taken but she did not care because she had already watched them.
D. Motion for New Trial
Shortly after the jurisdictional hearing in July 2013
, the prosecutor l earned there

was information about Officer Cardenas that had not been disclosed to K.K. K.K. made a

motion to dismiss
, or for new trial
, based on a Brady violation. The People conceded that6

the information should have been provided to K.K. before the jur isdictional hearing.
However, the People explained tha t

— because different computer systems exist in the
District Attorney ’ s o ffice for the adult and juvenile units

— the information about Officer

Cardenas was unavailable on the juvenile unit ’ s system. T he prose c utor did not learn

about the information until after the jurisdictional hearing, at which point the prosecutor
asked the juvenile court to provide the sealed information to the defense.
The juvenile court found the nondisclosure was inadvertent

. K. K. argued that
, had

he known about Officer Cardenas
, he would have conducted his defense differently,
placing more emphasis on the issue of credibility. The People countered that even

without Officer Cardenas’s testimony, there was sufficient evidence to prove beyond a

reasonable doubt that K.K. and his coparticipant committed the offenses. The court

announced it would orde r Officer Cardenas’ s testimony stricken and review the
remaining evidence to determine whether K.K. was prejudiced by the failure to d isclose

the impeachment evidence.
Ultimately, t he juvenile court denied K.K.’s motion . T he court found the
prosecution’s failure to disclose evidence w as not willful. Ou t of an abundance of

caution, the court struck any reference to Officer Cardenas’s te stimony. The court
acknowledged that Officer Cardenas could have been impeached but the court concluded

that information dating from 2004 would not have strongly impaired Officer Cardenas’s
credibility. However, the court found ther e was enough evidence to support the true
findings as to burglary and receipt of stolen property : “ I will indicate that my findings7

are bas e d on the testimony and, specifically, what the court was most convinced by was
the timing. That the phone calls to 911 were still going on while the second officer was
detaining the minors in the area of the burglary. He detained them. The proceeds from
the burglary [were] on the one minor. The other minor made at least a vague attempt to

run. And I am convinced beyond a reasonable dou bt that there is sufficient evidence to

believe that each of them have committed the crime. ”

III

MOTION FOR NEW TRIAL

K.K. argues the juvenile court erred when it denied his motion for new trial and

that the juvenile court ’ s decision to strike testimony wa s insufficient to remedy the
prejudice he suffered. In People v. Salazar , supra, 35 Cal.4th at pages 1043 and 1050,
the court explained a defendant is required to show that, absent the discovery violation,

he would have received a more favorable outcome: “‘ There are three components of a

true Brady violation: The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadv ertently; and prejudice must have

ensued. ’ [Citation.] Prejudice, in this context, focuses on ‘ the materiality of the evidence
to the issue of guilt and innocence. ’ [Citation s .] Materiality, in turn, requires more than
a showing that the suppressed evi dence would have been admissible [citation] , that the
absence of the suppressed evidence made conviction ‘ more likely ’ [citation] , or that using
the suppressed evidence to discredit a witness ’ s testimony ‘ might have changed the8

outcome of the trial ’ ( ibid. ). A defendant instead ‘ must show a “ reasonable probability of

a different result. ”’ [Citation.]”
Generally, impeachment evidence is considered material if the witness at issue
supplied the only evidence linking the defendant to the crime but not if the testimony of
the witness is corroborated by other testimony. ( People v. Salazar, supra , 35 Cal.4th at
p. 1050.) Reviewing courts also consider how nondisclosure affected the defense
investigation and trial strategy. ( People v. Zambrano (2007) 41 Ca l .4th 1082, 1132,
disapproved of on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421.)

Here, t he prosecutor conceded the impeachment evidence was inadvertently
suppressed. However, the suppression did not cause prejudice to K.K

. Officer Cardenas
was not the only witness who s e testimony implicated K.K. The two neighbors and the
other officer testified they saw K.K. and D.S. at the scene. Officer Arthur testified about
the condition of apartment 14 . Bradford testified about the condition of her apartment

and her ownership of the DVDs. K.K. himself blurted out incriminating admissions
when he was being handcuffed. Even without Officer Cardenas’s testimony, sufficient
corroborating evidence established that K.K. had broken into Bradford ’ s apartme nt and

taken the DVDs

. Furthermore, t he juvenile court employed the three

- prong Brady analysis a nd

assessed the evidence in the same manner as a reviewing court : “ A defendant

. . . ‘ must

show a “ reasonable probability of a different result [had the eviden ce been admitted]. ”’”

( People v. Salazar, supra , 35 Ca l .4th at p. 1043.) Here, by striking the testimony of9

Officer Cardenas, the juvenile court gave K.K. the benefit of the doubt, especially

because the impeachment evidence would have had limited impact on the issue of
credibility.

IV

DISPOSITION

N o reasonable probability exists that the outcome of the jurisdictional hearing

would have been different. T he juvenile court properly denied the motion for a new trial.
We affirm the judgment.

NOT TO BE PUBLIS HED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

RAMIREZ P. J.

McKINSTER J.