Filed 3/17/14 P. v. Ramirez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTEMIO MISAEL OROZCO RAMIREZ,

Defendant and Appellant.

F063817

(Fresno Super. Ct. No. F10905182)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. 

Ellison, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. 

White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

Appellant/defendant Artemio Misael Octavio Ramirez was charged with 

committing four felony sexual offenses against M., a nine-year-old girl who lived in the 

house where he was renting a room from her family: count I, intercourse or sodomy with 
2.

a child 10 years of age or younger (Pen. Code,

1 § 288.7, subd. (a)); count II, oral 

copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. 

(b)); count III, assault with intent to commit rape (§ 261, subd. (a)(2)); and count IV, 

commission of a lewd act on a child (§ 288, subd. (a)).

Defendant was arrested after the victim’s family discovered sexually explicit 

photographs of a naked female on a cell phone which defendant had used. They believed 

the photographs were of the victim, based on the clothing and the body type. After 

defendant was arrested, he agreed to give an interview to a detective. He initially denied 

touching the victim, but then admitted that physical contact occurred with the victim’s 

naked body, and claimed the victim jumped on him and took the photographs.

During the first jury trial, defendant testified and said he never touched the victim, 

and claimed he lied to the detective when he said some physical contact occurred 

between them. Defendant was convicted of counts III and IV. The jury was unable to 

reach verdicts for counts I and II and a mistrial was declared.

At the beginning of his second jury trial for counts I and II, it was determined that 

the prosecution had previously failed to disclose information to the defense that the 

victim had made a prior false sexual assault accusation against another man, which was 

unrelated to any of the charges against defendant. During the second trial, the victim was 

impeached with this evidence. Defendant again testified, but this time he was impeached 

with his two prior convictions from the first trial. Defense counsel did not object to the 

impeachment. Defendant was convicted of counts I and II.

After his convictions in the second trial, defendant moved for a new trial for the 

convictions obtained in the first trial for counts III and IV. Defendant argued the 

convictions were obtained in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), 

based on the prosecution’s failure to disclose the victim’s prior false accusation before 

 

1 All further statutory citations are to the Penal Code unless otherwise indicated.
3.

the first trial. The prosecution did not oppose the motion. The court granted the new trial 

motion as to counts III and IV. The prosecution dismissed those charges and did not 

retry him. However, defendant did not move for a new trial for counts I and II, even 

though the prosecution had used the prior convictions from the first trial to impeach his 

credibility at the second trial, and those convictions had been reversed because of the 

Brady error.

As a result of his convictions from the second trial, defendant was sentenced to 25 

years to life for count I, and a concurrent term of 15 years to life for count II.

The instant appeal is from defendant’s convictions in the second trial for count I, 

intercourse or sodomy with a child 10 years of age or younger, and count II, oral 

copulation or sexual penetration with a child 10 years of age or younger. Defendant 

contends his defense counsel was prejudicially ineffective for failing to object to the 

prosecution’s use of his two prior convictions from the first trial to impeach his 

credibility when he testified at the second trial. Defendant argues the prior convictions 

from the first trial were tainted by the Brady error and should not have been used to 

impeach his credibility. Defendant also contends that defense counsel should have 

moved for a new trial as to all his convictions, including those from the second trial, 

based on the Brady error that occurred prior to the first trial. Finally, defendant contends 

the court abused its discretion during the second trial when it declined to instruct the jury 

about the prosecutor’s delayed discovery of M.’s prior false accusation.

We will find that defense counsel was not ineffective when he failed to object to 

the prosecution's use of the prior convictions from the first trial, to impeach defendant's 

testimony at the second trial, and his failure to object was based on his reasonable tactical 

decisions. We will also find defendant’s instructional argument is meritless. However, 

we will find that once the court granted a new trial for counts III and IV based on the 

Brady error in the first trial, defense counsel was ineffective for failing to move for a new 

trial for defendant’s convictions in the second trial for counts I and II, since those prior 
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convictions had been used to impeach his testimony in the second trial. We will find the 

error was prejudicial because the trial court may have granted a new trial motion for 

counts I and II. We will order a conditional reversal and remand for the court to consider 

such a new trial motion on the merits.

2

PART I

FACTS OF THE CHARGED OFFENSES3

In 2010, Isidro and Celia A. lived in a house in Fresno County with several family 

members. Isidro’s brother, Mo., and his nine-year-old daughter, M. (the victim), lived in 

a separate structure behind the house.

Defendant and his brother were farm laborers. They were not related to the A. 

family, but they lived in the same detached structure with Mo. and M. as tenants. 

Defendant had to walk through the living space of Mo. and M. to reach the room where 

he slept.

Celia A. loans a cell phone to defendant

Celia A. testified she loaned an inactive cell phone to defendant. Defendant told 

Celia that he wanted to use the cell phone’s camera to get evidence on his brother 

because he was beating his wife. At some later point, defendant told Celia that he had 

left the cell phone in the main house’s bathroom when he took a shower, and someone 

had taken it. Defendant said he recorded something on the cell phone. Celia told him 

that she did not know where it was, and she would look into it.

 

2

In part I of the factual statement, we will review the testimony from defendant’s 

second trial regarding the substantive offenses, which is the subject of this appeal and 

resulted in his convictions for counts I and II. In part II, we will review the procedural 

history of the Brady violation in the first trial, and defendant’s testimony in the second 

trial.

3 Unless otherwise indicated, the entirety of the factual statement is from the 

testimony at defendant’s second jury trial, which is the subject of this appeal and resulted 

in his convictions and sentences for counts I and II.
5.

The next day, Isidro told Celia A. that he found the cell phone in their bathroom, 

and he gave it to her. Isidro said defendant had activated telephone service on it without 

telling them.

Discovery of the cell phone’s photographs

On or about October 12, 2010, Celia A. gave the cell phone to her adult daughter, 

Leticia. Leticia had previously used that cell phone to take pictures of her own children. 

She looked through the cell phone and discovered the pictures of her children were gone.

Celia A. and Leticia testified they discovered a series of new photographs. One 

photograph clearly showed defendant’s face. The other photographs were sexually 

explicit images of a man’s body and “a private part of a girl.” The faces of the male and 

female were not visible.

However, one photograph showed a female either getting dressed or disrobing and 

partially showed the lower portion of the female’s mouth and chin. (Exhibit No. 2.) 

Leticia went into M.’s closet and found the clothing depicted in that picture. Based on 

the clothing, Leticia and Celia A. believed M. was the female in all the sexually explicit 

pictures.

Celia A. testified the date stamps on the sexually explicit photographs were for the 

previous day. Celia knew that all of the adults had not been home that day, except for 

Leticia, and that M. had been “on another location on the back side of the house.” Celia 

and Leticia told M.’s father about the photographs, and they called the police.

M.’s initial statement

When M. arrived home from school that day, Leticia asked M. if anything 

happened or anybody tried to touch her inappropriately. Leticia testified M. became “a 

little nervous,” and looked confused, and “then she started crying and said that something 

had happened to her.”

Leticia testified M. told her about an incident which occurred the previous day. 

M. said she arrived home from school, and her father was not home. Defendant offered 
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her candy to go in his room. M. said she went into defendant’s room, and he “took her 

clothes off and started kissing her whole body and then kissed her mouth.” M. said 

defendant put “his private spot on hers and put something nasty, so she had to go take a 

shower because she felt nasty.” M. said he put his private “on her,” and not “in” her. M.

said he gave her a rash on her private spot. Leticia saw a rash on that part of M.’s body.

Defendant’s initial statement

Celia A. testified that when defendant returned home from work that day, she 

asked him “why he had done that to the little girl.” Defendant said he did not do 

anything. Celia insisted that he did something, and defendant repeatedly denied it. Celia 

asked him “who took those pictures, and he said no.” Celia insisted he took the pictures. 

Defendant finally said he took the pictures, but the pictures showed him with “a woman 

of the street,” meaning a prostitute. Celia replied: “That’s not the body of a woman, but 

of a little girl.” Celia testified the police arrived and defendant did not say anything else 

to her.

THE INVESTIGATION

M.’s statement to the police

On October 12, 2010, Fresno Police Officer Chadwick spoke to M. at her house. 

Chadwick asked M. if defendant used the cell phone to take any pictures of her. She said 

yes. M. said she arrived home from school, and defendant asked if she wanted some 

candy. She said yes and went into his room. M. said defendant grabbed her arm and 

pulled her into his room. He had her lay down on the bed and touched her. Chadwick 

asked if defendant put his fingers inside her. M. said yes and pointed to her vaginal and 

pelvic areas.

Officer Chadwick testified M. was “bashful,” “hesitant,” and “reluctant to answer” 

when they talked about the sexual touching. Chadwick asked M. if defendant did “more 

touching.” M. said defendant kissed her and touched the rest of her body. Chadwick 
7.

asked M. if defendant put anything else inside her. M. became “even more closed to the 

answering,” but ultimately said yes. M. said defendant put his “private” part inside her.

Defendant was arrested that day.

The photographs

A forensic examiner recovered several photographs from the cell phone. The 

pictures had been taken on different days. The first picture showed a “head shot” of a 

“shirtless male,” identified as defendant; it was taken on a different day than the other 

three photographs.

The examiner recovered three photographs taken within a few minutes of each 

other, around 6:00 p.m. on October 11, 2010. One photograph was a close-up of a 

female’s vaginal area. Another picture showed a female’s buttocks and “a male ... 

penis.”

The third picture showed “a female putting clothes on or taking them off.” There 

were two videos on the cell phone which appeared black and contained no discernible 

audio or video images. There were no other images on the cell phone.

DEFENDANT’S POSTARREST INTERVIEW

Later on October 12, 2010, Detective Rodriguez interviewed defendant after he 

was arrested. Rodriguez advised defendant of the warnings pursuant to Miranda v. 

Arizona (1966) 384 U.S. 436, and he agreed to answer questions. The interview lasted 

for one hour and 16 minutes. It was conducted entirely in Spanish and videotaped.

During the interview, Detective Rodriguez falsely told defendant they had DNA 

and fingerprint evidence which showed he committed the sexual acts.4 Defendant said he 

 

4 Defendant has never argued that his postarrest statement was involuntary, and 

such an argument would not likely be meritorious. “Police trickery that occurs in the 

process of a criminal interrogation does not, by itself, render a confession involuntary and 

violate the state or federal due process clause. [Citation.] Why? Because subterfuge is 

not necessarily coercive in nature. [Citation.] And unless the police engage in conduct 

which coerces a suspect into confessing, no finding of involuntariness can be made. 

[Citations.]” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280; People v. Smith
8.

did not touch or penetrate her. Rodriguez suggested that maybe both of them wanted to 

do it, and that some girls want to experiment and do such things. Defendant said no.

Rodriguez asked defendant whether he should write the report to say defendant 

lied or he regretted it. Rodriguez said that if defendant testified and said it didn’t happen, 

the jury would know he lied and would be mad at him.

Defendant said he had been told that the same little girl in the past had “accused 

another person and again now today.”5 Detective Rodriguez dismissed his comment and 

said defendant’s DNA was inside the victim. Defendant said he did not touch or 

penetrate her.

Detective Rodriguez told defendant he was getting frustrated, and he would leave 

defendant alone in the interview room. Rodriguez said he was the only person there who 

spoke Spanish, and defendant would be placed in jail. Defendant again said it didn’t 

happen. Rodriguez said defendant did it by force, and urged defendant not to take the 

blame if it was something they both wanted to do. Defendant said nothing happened.

Defendant said they were blaming him because he did not get along with the girl’s 

uncle. Detective Rodriguez said it didn’t matter because they had defendant’s DNA. 

Rodriguez again advised defendant that he needed to say what happened because if he 

used force, “they will get you badly, seriously.”

 

(2007) 40 Cal.4th 483, 505; see, e.g., Frazier v. Cupp (1969) 394 U.S. 731, 739 [officer 

falsely told the suspect his accomplice had been captured and confessed]; People v. Jones

(1998) 17 Cal.4th 279, 299 [officer implied he could prove more than he actually could]; 

People v. Thompson (1990) 50 Cal.3d 134, 167 [officers repeatedly lied, insisting they 

had evidence linking the suspect to a homicide]; In re Walker (1974) 10 Cal.3d 764, 777

[wounded suspect told he might die before he reached the hospital, so he should talk 

while he still had the chance]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 

[officer told suspect his fingerprints had been found on the getaway car, although no 

prints had been obtained]; Amaya-Ruiz v. Stewart (9th Cir.1997) 121 F.3d 486, 495 

[suspect falsely told he had been identified by an eyewitness].)

5 Defendant’s comments indicate he might have known about M.’s prior false 

molestation accusation.
9.

Defendant said he came home from work, took a shower, and the cell phone was 

missing. He asked “the Mr.” about the cell phone, and he got mad. Detective Rodriguez 

said he was mad because of what defendant did to the girl. Rodriguez suggested the girl 

was flirtatious and may have hugged or jumped on him. Defendant said the woman in 

the house knew the girl was flirtatious, and the girl was allowed to watch pornographic 

movies with “the Mr.” Defendant again said he did not do anything with the girl.

Detective Rodriguez asked defendant to explain the pictures on the cell phone. 

Defendant said the girl used to walk in and out of his room, and she took the picture 

which showed his face.

Detective Rodriguez told defendant they were going to get him once they 

reviewed the time stamps on the pictures. Defendant said the adults were “coaching” the 

girl on what to say. Rodriguez said it didn’t matter because the DNA was there, and he 

better explain whether or not it was by force. Defendant again said nothing happened.

Rodriguez said he wasn’t there to “mess” him up, but the others were blaming him 

for raping the girl by force. Rodriguez said they would do the test, but defendant would 

have problems when it came back positive.

Detective Rodriguez suggested the girl wanted to do something with defendant, 

and that would be better than if defendant used force against her. Defendant said he let 

the girl borrow the cell phone, she took one picture when he was lying on his bed without 

his shirt on, and the other people in the house allowed her to watch pornographic movies. 

Rodriguez said the jury would not like to hear defendant claim that the girl watched 

pornographic movies, and that she started it. Defendant said the lady in the house told his 

sister-in-law that she saw the girl watching pornographic movies. Defendant also said the 

girl repeatedly walked through his room because the door did not have a lock.

Detective Rodriguez asked defendant to explain how the DNA “from her private 

parts got on your hands.” Defendant said he was lying on the bed when the girl walked 

into his room. She took off her pants and “threw” herself on top of him.
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“[Defendant:] And then my hand was there underneath.

“[Rodriguez:] Underneath her private part?

“[Defendant:] Yes.”

Defendant said when the girl threw herself on his bed, he put his hand over his 

private area so he would not get hurt, and his hand touched her private parts. Defendant 

said the girl took the picture but nothing happened, and his finger did not penetrate her.

Detective Rodriguez told defendant to wait, and he left the interview room. When 

Rodriguez returned, he told defendant he was checking the other test results. Rodriguez 

asked defendant what the girl said. Defendant said she grabbed his face and kissed him. 

Defendant said the girl pulled down the zipper on his pants. Defendant said the girl 

grabbed his penis, put it in her rear private part, and she took a picture. Defendant told 

her no, got up, and took a shower.

Detective Cabrera entered the room, and Detective Rodriguez reported what 

defendant just said. Rodriguez told defendant that Cabrera had the DNA results that

showed his penis went on the girl’s private parts.6

Detective Rodriguez asked defendant if he took the picture after he penetrated the 

girl. Defendant said the girl took the picture, and he never penetrated her. Defendant 

said there was just “the slight touch and then I told her to get out.”

“[Rodriguez:] The contact was skin to skin right, your penis to her 

private parts right, you made contact to the skin?

“[Defendant:] Right.”

Detective Rodriguez told defendant the DNA test showed his penis touched the 

girl’s private parts. Defendant said the test was wrong because he did not penetrate. 

 

6 There were never any DNA tests performed in this case.
11.

Rodriguez said the results did not mean penetration, but that his penis touched her private 

parts. Defendant said that was correct.7

Detective Rodriguez said the DNA tests also showed his hand touched her private 

parts. Defendant said the girl grabbed him. Rodriguez asked why he did not push her 

away. Defendant said he could not do so.

Defendant said the girl turned his body over and she got on top of him “like [a] 

doggy,” and took one of the pictures. Detective Rodriguez said defendant took the 

picture. Defendant said no, and he did not realize she had taken the picture.

Detective Rodriguez said they were going to do a test to tell if defendant was 

lying. Defendant said he would take the test.8 Rodriguez said that if the test showed he 

was not lying, then “I will take away that charge,” but if the test showed he was lying, 

then he would “double your charge.”

Detective Rodriguez asked defendant about another sexually explicit picture on 

the cell phone. Defendant said it showed a girl named “Morena,” who lived near the 

alley.

Detective Rodriguez asked defendant if he regretted touching the victim. 

Defendant said the girl jumped and grabbed him, he did not touch her, and he should 

have told her to leave.

Detective Rodriguez asked defendant what he would tell the girl if she was there. 

Defendant said he would tell her to stop lying about what she did, and he would 

apologize for “not letting the lady know” what the girl did. Defendant said he regretted 

that he let the girl grab his body.

 

7 When defendant testified at trial, he said he lied when he made these inculpatory 

statements because he was afraid of Detective Rodriguez and just said what Rodriguez 

wanted to hear.

8 A polygraph test was never administered in this case.
12.

Rodriguez’s trial testimony about the interview

At trial, Detective Rodriguez testified defendant seemed “pretty intelligent” during 

the interview, but he was not sophisticated. Rodriguez admitted he made false statements 

to defendant during the interview about DNA and fingerprint evidence to see his reaction. 

He falsely told defendant that DNA tests showed that he penetrated her.

M.’S INTERVIEW

On October 20, 2010, M. was interviewed by law enforcement officers about 

whether defendant sexually molested her. The interview was videotaped.

M. said defendant lived with her family and did “something nasty” to her more 

than once. M. said the first incident happened when defendant came into her room. M.

and her father were asleep in separate beds. Defendant went to M.’s bed, opened the 

blankets, got in, and he “sleep [sic] with me.” Defendant kissed her mouth and it was 

“nasty.” M. said defendant “made love” to her. M. was asked to explain what “making 

love” meant. M. said defendant kissed her mouth and “felt my parts.” Defendant pulled 

down M.’s pajama pants and removed her underwear.

M. said defendant kissed her mouth, chest, neck, and her “little thing.” M. also 

said defendant put his penis “inside” her and it felt “nasty.” Defendant also did 

something to her “bottom.” Defendant said, “That’s good.” Defendant also took her 

hand and put it on his private area.

M. said she pushed him away and said she did not love him. M. washed in the 

restroom. Defendant told M. not to tell her dad or anyone else. Defendant went back to 

his own room. M. said she told her cousin about it later on, and her cousin had the 

photographs that defendant took during this incident.

M. said that during another incident, defendant went into her room and took 

pictures of the “nasty” things he did to her bottom. Defendant got in her bed, kissed her 

mouth, chest, and private area, and “made love.” He licked her private part. He put his 

penis “in” her private part. M. pushed him and tried to run away, but the door was 
13.

locked. M. said defendant took pictures of her with the cell phone while she was asleep. 

She woke up and pushed him away.

Medical evidence

M. was examined by a family nurse practitioner, who reported her genital 

examination was normal. The nurse was unable to say whether or not M. had been 

sexually abused. M. told the nurse that defendant penetrated her body with both his penis 

and a finger and fondled her anal and genital areas.

M.’S TRIAL TESTIMONY

M., who was 10 years old at the time of second trial, testified defendant did “bad 

things to me” and “made love to me.” Defendant “touched” her more than one time and 

took pictures of her with the cell phone.

M. testified about one incident when she came home from school and everyone 

was asleep.9 Defendant asked if she wanted candy, and she went into his room. 

Defendant pushed her down on the bed and took off her clothes. He lowered his pants 

but kept on his shorts. He kissed her “[o]n my thing and my mouth.” He “licked his 

finger and put it on me,” inside her body. He put his tongue and penis in the private part 

of her bottom. He also put his penis in her private part. M. testified defendant took 

pictures of their bodies and private parts during this incident.

On cross-examination, M. testified defendant touched her four times. The first 

time it happened on his bed. It was in the daytime after she got home from school, and 

no one was home. They took off their clothes and he touched her.

M. testified that everyone was home during the second incident, which happened 

in the bedroom she shared with her father. The third incident happened at night, when 

 

9 On direct examination, M. said she could not remember what defendant did to 

her. The court permitted the prosecutor to use leading questions, and refresh her 

recollection by reviewing her prior statements about the incident.
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her father was home. She could not remember which room they were in. M. testified the 

fourth time happened in her room, and defendant took pictures during the last incident.

Defense counsel impeached M. with her preliminary hearing testimony and prior 

inconsistent statements as to when, where, and how these incidents happened.

EVIDENCE ABOUT M.’S PRIOR FALSE SEXUAL ACCUSATION10

Celia A., who appeared as a prosecution witness, testified she knew M. previously 

accused another man of sexually molesting her, and the accusation was false. M. told 

Celia she made the sexual molestation against the man because something happened at 

“Elizabeth’s” house. M. claimed the man took her into a room and played pornographic 

movies. Celia testified the police were called about this accusation, and M. went to 

therapy. Celia testified M. later said she lied about “what happened at Elizabeth’s 

house.”11

During M.’s direct examination testimony, the prosecutor asked her about an 

incident in 2009, when she lived with her cousin Elizabeth. M. testified she knew men 

named “Pato” and “Armando” at that time. She was eight or nine years old.

The prosecutor asked M. whether, in August 2009, she told her school principal or 

the police that Pato did something bad to her. M. replied that she did not remember, and 

the man did not do anything to her. The prosecutor showed a police report to M., and M.

said it was something about a movie but “nothing happened.”

“Q So you told [the police] that Pato had done something inappropriate 

to you but he had not, is that what you’re telling us now?

 

10 As we will explain in part II, post, the evidence about M.’s prior false 

accusation against another man was only introduced at defendant’s second trial to 

impeach M.’s credibility. This evidence was not disclosed during defendant’s first trial, 

and it was the subject of the Brady violation.

11 Celia initially testified that M. made the false accusation against a man named 

“Armando,” who may also have been known as “Chile Verde.” On further questioning, 

however, she was not sure if M. made the accusation against this man or another person. 

Defendant testified Armando lived as a tenant in Celia’s extra room before he did.
15.

“A Yes.

“Q Okay. Why did you do that, M.?

“A I don’t know.

“Q Did you have a problem with Pato, M.?

“A Yes.

“Q Okay. Tell us about that. What was the problem?

“A He would yell at me and hit me.

“Q And this happened at Elizabeth’s house?

“A Yes.

“Q So that’s why you told the police that Pato had touched you and 

done bad things to you?

“A Yes.”

The prosecutor asked M. if she was telling the truth about defendant touching her, 

and not making it up because she did not like defendant. M. said she was telling the truth 

about defendant. M. knew it was wrong to lie, and she came forward and admitted that 

nothing happened with Pato.

“[The prosecutor:] ... I’ll ask you one final time, you’re not making any 

of this up, the things that we have talked about here that [defendant] did to 

you; is that correct?

“A Yes.”

On cross-examination, M. testified she got along “bad” with Pato because he hit 

and yelled at her when no one was around. She made up the story because she was mad 

at him. M. testified she told the police that Pato took her into his bedroom, he had her sit 

on the bed, he held her hand, and he put on a movie with naked people.

M. testified she also told the police that Pato touched her private part where she 

urinated; he put tape over her mouth; and he tied her hands and feet while she was on his 
16.

bed. M. said these stories were not true, and she said these things because she was mad 

at Pato. She got the idea to say he tied her up from something on the news.

Also on cross-examination, M. testified she actually watched a movie with Pato 

that showed naked people, and Pato told her not to tell her father about it. M. testified 

she knew what it meant to “make love,” and learned the word in a book.

During rebuttal, defense counsel called Detective Alfred Lopez as a witness. 

Lopez testified he sat through the entirety of defendant’s first trial, and he had been 

present during defendant’s second trial as chief investigating officer. Lopez testified that 

he first heard about M.’s prior false molestation claim when she testified in this second 

case.

EXPERT TESTIMONY

Dr. Randall Robinson testified as the prosecution expert on child sexual abuse 

accommodation syndrome (CSAAS). She testified CSAAS was a “descriptive term that 

explains why children allow themselves to be sexually abused and why they don’t report 

it.” There is a “misconception” that children act rationally, but it was “very uncommon 

that children report having been sexually abused.” When a child actually makes such a

report, the report is “generally inconsistent” and the child would not disclose everything 

that happened because the child would not comprehend what the perpetrator had done. 

Dr. Robinson explained that a child could be so overwhelmed by disclosing the sexual 

molestation and answering questions, that the stress makes the child say the incident was 

imagined or a dream.

On cross-examination, Dr. Robinson testified she would be interested to know if a 

child had previously made a false sexual molestation report because “it’s so unusual for 

children to fabricate allegations of sexual abuse ....” Defense counsel asked Dr. 

Robinson why a child would lie about sexual abuse. Dr. Robinson replied, “[G]enerally 

children do not lie,” and she had seen examples in custody disputes and where “children 
17.

lie about things that make them look good to people,” but “they don’t lie about something 

that is scary to them.”

Defense counsel asked Dr. Robinson about a documented situation where a child 

lied about a sexual event, and then the child later reported being molested by another 

person, and whether “you at least have to be careful when you discuss the matter with 

that child and take the prior known false accusation into account.” Dr. Robinson agreed, 

and said it was unusual because most children underreport molestation incidents, and she 

would have to “know so much information about that child” to know what happened.

DEFENDANT’S TRIAL TESTIMONY12

Defendant testified he never touched M. in any way, he never offered candy to get 

her in his room, and he did not take the sexually explicit photographs found on the cell

phone.

Defendant testified he borrowed the cell phone from Celia A. to photograph fights 

between his brother and sister-in-law. He knew an adult woman named “Morena,” who 

was homeless and “hung out” in an alley near the house. He had a sexual relationship 

with Moreno in his bedroom at Celia’s house. Morena used the cell phone to take a

photograph of him.

Defendant said he last saw Morena on the day before he was arrested, when they 

had sex at Celia’s house. Celia was angry about his relationship with Morena, and told 

him that he had to leave the house because of her.

Defendant testified that one day, he arrived home after work and left the cell

phone on his bed when he took a shower in the main house. The door to his room did not 

lock. The cell phone was gone when he returned. Defendant testified he had a problem 

with M. walking in and out of his room. He denied taking any of the sexually explicit 

photographs on the phone, and he did not know who did it.

 

12 Defendant testified in Spanish through a translator.
18.

Defendant testified he was “exasperated” during the interview with Detective 

Rodriguez because he was arrested for something he did not do. When Rodriguez talked 

about the DNA, defendant thought they had “invented something” and “fabricated some 

evidence” because he knew he did not touch M.

Defendant testified he repeatedly told Detective Rodriguez that he did not touch 

M. because that was the truth. Defendant knew M. had watched pornographic movies. 

Rodriguez accused him of lying and said he forced himself on the girl. When Rodriguez 

said he was going to leave defendant alone in the room, defendant thought “nobody was 

going to come back for me.

Defendant testified he finally made certain admissions to Detective Rodriguez 

because he was afraid and thought Rodriguez was “getting angry.” Rodriguez changed 

the way he talked to defendant because he was not “getting anything” from him. 

Rodriguez said he wasn’t there to mess him up, but defendant thought just the opposite 

because Rodriguez used a Spanish word which meant “tough,” or to be beaten. 

Rodriguez accused defendant of showing disrespect, and defendant was afraid because 

the police were “bad” in Mexico.

Defendant testified he was frightened when Detective Rodriguez said he would 

“double” the charge if he was “lying.” He believed Rodriguez was going to “screw” him. 

Defendant felt he had to say something besides denying the charges so Rodriguez would 

“chang[e] his mood.”

Defendant testified he lied to Detective Rodriguez when he said the girl jumped on 

him, grabbed his private parts, his finger and private parts touched her private parts, and 

she took the pictures. Defendant was “frightened” and “terrified,” and he made the false 

statements because Rodriguez “had already gotten very angry with me” and defendant 

thought he could “get out of there” if he admitted something. He told Rodriguez that 

Morena took one of the photographs, but Rodriguez confused him when he asked about 

the other pictures.
19.

Defendant’s testimony about his prior convictions

As explained in the introduction, defendant’s first trial resulted in his convictions 

for count III, assault with intent to commit rape, and count IV, commission of a lewd act 

on a child. The jury was unable to reach verdicts for count I, intercourse or sodomy with 

a child 10 years of age or younger; and count II, oral copulation or sexual penetration 

with a child 10 years of age or younger, and the court declared a mistrial. Defendant 

testified at his first trial, and he was not impeached with any prior convictions. The 

record implies he did not have any prior convictions when he was arrested in this case.

In defendant’s second trial, which is the subject of this appeal, he was retried for 

counts I and II. When defendant testified at his second trial, a major portion of his 

testimony concerned his inconsistent statements about whether he had previously testified 

before a jury, and whether he had any prior convictions. The following sequence is the 

basis for defendant’s ineffective assistance arguments in this appeal.

During direct examination at his second trial, defense counsel asked defendant if 

he was nervous and why. Defendant testified he was nervous because he had never 

appeared “before people like this,” apparently referring to the jury. Defense counsel 

asked him if he had ever been convicted of a crime. The prosecutor objected, and the 

court overruled it. Defense counsel again asked defendant if he had ever been convicted 

of a crime in Mexico, the United States, or anywhere else. Defendant said no. Defense 

counsel asked if he had ever been accused of committing a sexual crime. Defendant said 

no.

The prosecutor objected, and the court excused the jury. The prosecutor 

complained defendant had just been convicted of two felonies committed against M. in 

the first trial, but he was falsely testifying he had never been convicted of anything. The 

court replied the prosecutor could impeach him on cross-examination. Defense counsel 

interjected: “Sure can, we can talk about the other trial.” The court said if defendant 

wanted to put his character in evidence then he could do so, and defense counsel agreed.
20.

The court recalled the jury, and defendant’s testimony continued. Defense counsel 

again asked defendant if he had been convicted of anything. Defendant said he had been 

convicted six months ago in California. Defendant explained that when he was first 

asked about prior convictions, he said he did not have any because he thought he was 

being asked about Mexico. He also thought “that maybe the jury should not know about 

it.” Defense counsel again asked if he had previously testified, and defendant said he had 

testified in this case.

Cross-examination

On cross-examination, the prosecutor asked defendant why he initially claimed he 

had never testified in a courtroom. Defendant admitted that was not true, and said he had 

testified before. Defendant said he “didn’t know if I was to say about the other time.” 

The prosecutor asked defendant if he understood he was under oath to tell the truth, but 

he did not tell the truth about testifying before. Defendant again said it was “because I 

didn’t know if I was to say if I had been in a trial before.”

The prosecutor asked defendant why he said he did not have a prior conviction, 

even though he had been convicted of a crime. Defendant said he had been convicted 

“[f]rom the last time,” but “not for what is being done now.” The prosecutor again asked 

defendant if he had just testified he had not been convicted of a crime. Defendant said 

yes, but “I was confused” and “I didn’t know about the law.” Defendant testified that 

from what he knew, “they did not reach a decision.” Defendant also did not know 

whether “I should say it or not.”

After further cross-examination, the prosecutor returned to this topic and asked 

defendant if he said that he was convicted six months ago, but he also said the jury did 

not reach a decision and he was not convicted. Defendant replied that he said that.

Redirect examination

On redirect examination, defense counsel brought up the conviction issue.
21.

“Q Tell the jury, please, why you said you had never been convicted by 

a jury in America or in Mexico?

“A The other day or last week I heard like the judge said that that 

should not be revealed about the past trial. That’s why I said no.

“Q Okay. Were you, in fact, convicted by a previous jury of some 

counts related to what you’re here now for?

“A No.

“Q Were you – were you convicted of anything in the last trial?

“A Yes.

“Q Okay. In the last trial were you convicted by a jury of the counts 

which you are now facing with this jury?

“A No.

“Q Okay. Is that why you said you did not have a conviction?

“A Yes.” (Italics added.)

Defendant also thought he was not supposed to reveal that he testified before the 

jury during the previous trial. Defendant testified he was not trying to mislead the jury 

but he was “just following what I had heard” from the judge.

After the parties rested, the court read the following stipulation to the jury: “[Y]ou 

now all know that there was a previous trial in this case. [Y]ou are not to speculate as to 

why the charges that are before you are being tried again. And in addition, you’re not to 

speculate as to the nature of any crime that the defendant may have been convicted of in 

that previous trial.” (Italics added.)

Closing arguments

The prosecutor did not address defendant’s prior convictions in her initial closing 

argument.

In his closing argument, defense counsel reminded the jury that he asked 

defendant if he had ever testified or been convicted of a crime. Defense counsel declared 

defendant thought the judge told him not to talk “ ‘about that prior jury’ ” and “ ‘the other 
22.

one.’ ” Defense counsel argued the prosecutor unfairly “jumped on” defendant’s 

confusion and made the jury think defendant was deliberately lying, when he thought he 

was following the court’s orders. Counsel continued:

“So now you know it. I mean, it’s out there. He was tried by another jury 

and they hung. That’s – we have talked about it. That’s evidence. He 

thought he didn’t have a conviction. He thought he was told not to talk 

about it.” (Italics added.)

In her rebuttal, the prosecutor relied on the prior convictions to attack defendant’s 

credibility, and asserted defendant repeatedly lied to the jury about everything:

“... I’m going to say to you that he lied to you. I’m just going to straight 

out say it. He lied to you again and again and again.”

The prosecutor cited defendant’s claim that he thought he was following the 

court’s orders not to mention his prior convictions, and added:

“... [Defendant] was not following orders to tell you that he had never been 

convicted or testified before. There was no order from this court that you 

not be told that.”

Defense counsel objected. The court overruled the objection and instructed the 

jury that it heard the evidence; it could decide what it heard; and counsel could argue 

what they believed the evidence showed. The prosecutor continued and again asserted 

there was never a specific order not to talk about it.

The prosecutor moved on to other matters, particularly M.’s credibility and the 

impact of her prior false molestation accusation against another man. The prosecutor 

argued M.’s allegations against defendant were still credible because of the cell phone 

pictures and defendant’s statements to the police. The prosecutor then returned to 

defense counsel’s statements about the first trial.

“[W]hen I was talking about defendant’s testimony of whether or not he 

had been convicted and counsel said he was tried and they hung. There is a 

little more to that. They did hang, but there was also a conviction. And 

you heard me get that from defendant, although he backtracked on that, but 

there was a conviction as well.” (Italics added.)
23.

Defense counsel did not object to the prosecutor's final argument.

Verdict and sentence

After the second trial, defendant was convicted of count I, intercourse or sodomy 

with a child 10 years of age or younger; and count II, oral copulation or sexual 

penetration with a child 10 years of age or younger.

PART II

PROCEDURAL HISTORY OF BRADY ERROR

As explained above, defendant repeatedly sought discovery as to whether M. made 

a prior false molestation accusation against another man. During the first jury trial, the 

prosecutor advised the court there was no evidence of such an accusation. At the 

beginning of the second jury trial, however, the prosecutor advised the court that such 

evidence existed, and conceded Brady error had occurred during the first trial because of

the failure to disclose this evidence.

The procedural history of the Brady error begins before defendant’s first trial and 

continues after his convictions in the second trial. The instant appeal concerns 

defendant’s convictions from the second trial, and there was no Brady error in that 

proceeding since the evidence about M.’s prior false accusation was admitted. The 

However, the procedural history of the Brady error is critical because it is the basis for 

defendant’s appellate claim that his defense attorney was prejudicially ineffective during 

the second trial, when he allowed defendant’s credibility to be impeached with the 

convictions from the first trial which had been obtained in violation of Brady.

Brady error

We begin with a brief review of Brady, supra, 373 U.S. 83. “In Brady, the United 

States Supreme Court held ‘that the suppression by the prosecution of evidence favorable 

to an accused upon request violates due process where the evidence is material either to 

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ 

[Citation.] The high court has since held that the duty to disclose such evidence exists 
24.

even though there has been no request by the accused [citation], that the duty 

encompasses impeachment evidence as well as exculpatory evidence [citation], and that 

the duty extends even to evidence known only to police investigators and not to the 

prosecutor [citation]. Such evidence is material ‘ “if there is a reasonable probability 

that, had the evidence been disclosed to the defense, the result of the proceeding would 

have been different.” ’ [Citation.] In order to comply with Brady, therefore, ‘the 

individual prosecutor has a duty to learn of any favorable evidence known to the others 

acting on the government’s behalf in the case, including the police.’ [Citations.]” 

(People v. Salazar (2005) 35 Cal.4th 1031, 1042; see also Youngblood v. West Virginia

(2006) 547 U.S. 867, 869-870; Strickler, supra, 527 U.S. 263, 280-281.)

As we will further discuss in issue I, post, the suppression of evidence in violation 

of Brady violates a defendant’s constitutional right to due process. (Brady, supra, 373 

U.S. at p. 87; Strickler, supra, 527 U.S. at p. 280.) The use of a constitutionally invalid 

prior conviction for impeachment purposes is error of constitutional dimension. (United 

States v. Brito-Hernandez (5th Cir. 1993) 996 F.2d 80, 81-82.)

With this background in mind, we turn to the procedural history of the Brady

error, which begins prior to the first trial and continues through the second trial.

Defendant’s discovery request

On October 12, 2010, defendant was arrested. On February 7, 2011, defense 

counsel wrote to the prosecution and requested information about “the prior case(s) in 

which the alleged victim was the complaining witness,” based on counsel’s information 

that M. had previously claimed she was molested by another man.

The defense did not receive a written response to this discovery request. 

According to defendant, the prosecutor made certain off-the-record representations to 

defense counsel before the first trial, that the lead investigator reported the requested 

information did not exist and a prior incident did not occur.
25.

Defendant’s first trial and the evidentiary hearing

On February 22, 2011, defendant’s first trial began before Judge Vogt on the four 

charged felonies. The court conducted an evidentiary hearing on defendant’s motion to 

introduce evidence that M. had made prior false sexual molestation accusations against 

another man. Defendant’s brother and sister-in-law testified that Celia A., M.’s aunt, told 

them the girl made a prior false accusation of being molested by another man who rented 

a room in the house. They did not have personal knowledge of this incident.

The court held the proposed testimony was inadmissible hearsay and could not be 

used to impeach M.’s credibility. However, the court acknowledged the potential 

admissibility of a prior false molestation claim, and that it might permit testimony from a 

witness with personal knowledge of such an accusation. The court reminded the 

prosecutor of her obligations under Brady, supra, 373 U.S. 83 and asked if she conducted 

“a due diligence search to determine if anybody has been accused of sexual assault by 

this victim.” The prosecutor stated she checked “our system” and did not find any 

evidence about M.

During the first trial, neither M. nor any other witness testified about whether she 

made any prior sexual molestation allegations, and M.’s credibility was not impeached on 

this point. Defendant testified and he was not impeached with any prior convictions. 

Defendant was convicted of count III, assault with intent to commit rape; and count IV, 

commission of a lewd act on a child. The jury was unable to reach verdicts on counts I 

and II, and the court declared mistrials as to those counts.

Defendant’s second trial and the evidentiary hearing

On September 27, 2011, defendant’s second trial began before Judge Ellison for 

count I, intercourse or sodomy with a child 10 years of age or younger; and count II, oral 

copulation or sexual penetration on a child 10 years of age or younger. Defendant again 

moved to introduce evidence about M.’s alleged prior false molestation accusation, but 
26.

conceded he had not discovered any witnesses with personal knowledge of these issues 

since the first trial.

On September 29 and 30, 2011, the court conducted an evidentiary hearing on 

defendant’s motion. The court heard testimony from defendant’s brother and sister-inlaw during a closed hearing. The court also heard testimony from Celia A. about her 

personal knowledge regarding M.’s prior false report. The court submitted the matter 

until Monday, October 3, 2011.

Disclosure of Brady evidence

On or about Friday, October 1, 2011, the prosecutor advised defense counsel that 

she discovered evidence that M. made a false sexual molestation allegation against 

another man in 2009. The prosecutor turned over police investigative reports about the 

false accusations.

On Monday, October 3, 2011, the court conducted a hearing outside the jury’s 

presence. The prosecutor advised the court that she conducted further research and 

determined M. made a report to the police in 2009, that she was sexually molested by 

another man, and the report turned out to be false. The court held the evidence was 

admissible and went “right to the heart” of whether M. made up the pending charges 

against defendant. The court held the defense could ask Celia A. and M. about the prior 

false report.

As set forth in the factual statement, both Celia A. and M. testified for the 

prosecution at the second trial, and the prosecutor asked both witnesses about M.’s prior 

false report. Defense counsel extensively cross-examined M. about the nature and 

circumstances of the false accusation.

Also as discussed, ante, defendant testified at the second trial and his credibility

was impeached with his prior convictions from the first trial.
27.

Motion for new trial for counts III and IV from the first trial

After defendant was convicted of counts I and II in his second trial, he filed a 

motion for new trial only as to his convictions in the first trial for counts III and IV. 

Defendant argued his convictions in the first trial were obtained in violation of his 

constitutional right to due process based on the Brady violation. Defendant argued the 

evidence about M.’s prior false accusation was material because it would have 

undermined M.’s credibility in the first trial, the prosecution was responsible for law 

enforcement’s failure to comply with discovery, and an alleged negligent failure to 

disclose still violated Brady. Defendant further argued the disclosure of this evidence 

would have changed the defense strategy in the first trial about how to impeach M.’s 

credibility.

On November 9, 2011, Judge Vogt, who presided over defendant’s first trial, 

heard defendant’s motion for new trial. The prosecutor did not file opposition and did 

not offer argument against it “based on the subsequent verdict and our in-chambers

discussion.”

The court granted a new trial for defendant’s two convictions from the first trial: 

count III, assault with intent to commit rape; and count IV, commission of a lewd act on a 

child.

Defendant did not file a motion for new trial as to his convictions for counts I and 

II from his second trial, or argue that the prosecution’s use of his convictions from his 

first trial were improperly used to impeach his testimony in the second trial.

Sentencing hearing for second trial

On November 16, 2011, Judge Ellison conducted the sentencing hearing for 

defendant’s convictions for counts I and II from the second trial. Defendant was 

sentenced to 25 years to life for count I, with a concurrent term of 15 years to life for 

count II.
28.

The court granted the People’s motion to dismiss counts III and IV, which had 

been the subject of the new trial motion, and he was not retried for those charges.

Defense counsel did not ask the court to consider a motion for new trial for counts 

I and II from the second trial, even though the convictions from the first trial, which had 

been used to impeach him, had been reversed for Brady error.

DISCUSSION

I. Ineffective assistance; impeachment of defendant’s trial testimony

Defendant contends defense counsel was prejudicially ineffective for not objecting 

when the prosecutor impeached his testimony at his second trial with his two prior 

convictions from the first trial. Defendant argues that by the time he took the stand at his 

second trial, defense counsel was aware the prosecutor violated Brady during the first 

trial by failing to discover and disclose the police reports about M.’s prior false 

molestation allegation. Defendant asserts defense counsel should have objected to the 

prosecutor’s use of the convictions from the first trial to impeach his credibility since 

those convictions were obtained in violation of his constitutional rights based on the 

Brady error. The People argue defense counsel made a reasonable tactical decision not to 

object to the impeachment based on the unique procedural circumstances of the two

trials.

A. Ineffective assistance

“In order to demonstrate ineffective assistance, a defendant must first show 

counsel’s performance was deficient because the representation fell below an objective 

standard of reasonableness under prevailing professional norms. [Citation.] Second, he 

must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is 

shown when there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. 

Williams (1997) 16 Cal.4th 153, 214-215.)
29.

Defendant’s ineffective assistance contentions are based on defense counsel’s 

failure to object. “Failure to object rarely constitutes constitutionally ineffective legal 

representation [citation]....” (People v. Boyette (2002) 29 Cal.4th 381, 424.) “If the 

record on appeal fails to show why counsel acted or failed to act in the instance asserted 

to be ineffective, unless counsel was asked for an explanation and failed to provide one, 

or unless there simply could be no satisfactory explanation, the claim must be rejected on 

appeal. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

B. The jury verdicts from the first trial were “prior convictions”

We begin briefly with an issue not specifically addressed by the parties but raised 

by the unique procedural history of this case: whether the jury’s guilty verdicts in the 

first trial constituted “prior convictions” that could be used to impeach defendant’s 

credibility when he testified in the second trial, even though the case was not final.

“Evidence Code section 788 provides that the credibility of a witness may be 

attacked by showing a witness has been convicted of a felony. [T]he term ‘convicted’ 

includes otherwise qualifying felony convictions suffered even though sentence has not 

yet been imposed on the charge.” (People v. Martinez (1998) 62 Cal.App.4th 1454, 

1457; see also People v. Rogers (2013) 57 Cal.4th 296, 344.) A defendant may be 

impeached by prior convictions resulting from a guilty verdict or a jury’s adjudication of 

guilt even if the defendant has not been sentenced, and in the absence of an appealable 

final judgment. (People v. Martinez, supra, 62 Cal.App.4th at pp. 1460-1464.)

At the time of defendant’s second trial, defendant had been convicted by a jury of 

counts III and IV in the first trial, but he had not been sentenced for those convictions. 

Nevertheless, the jury’s guilty verdicts on the two counts from the first trial were “prior 

convictions” and could be used to impeach defendant’s credibility when he testified in 

the second trial, even though he had not been sentenced, the court had not heard any 

postverdict motions, and the judgment was not final.
30.

C. The Brady violation

While the two prior convictions from the first trial were available to impeach 

defendant’s credibility when he testified, the next question is whether those convictions 

were obtained as a result of the Brady error, and defense counsel should have objected to 

impeachment based on that issue.

“There are three components of a true Brady violation: The evidence at issue must 

be favorable to the accused, either because it is exculpatory, or because it is impeaching; 

that evidence must have been suppressed by the State, either willfully or inadvertently; 

and prejudice must have ensued.” (Strickler, supra, 527 U.S. at pp. 281-282; People v. 

Salazar, supra, 35 Cal.4th 1031, 1043.)

“A prosecutor has a duty to search for and disclose exculpatory evidence if the 

evidence is possessed by a person or agency that has been used by the prosecutor or the 

investigating agency to assist the prosecution or the investigating agency in its work. The 

important determinant is whether the person or agency has been ‘acting on the 

government’s behalf’ [citation] or ‘assisting the government’s case.’ [Citation.]” 

(People v. Superior Court (2000) 80 Cal.App.4th 1305, 1315; Strickler, supra, 527 U.S. 

at p. 281; In re Brown (1998) 17 Cal.4th 873, 879.) “[I]nformation possessed by an 

agency that has no connection to the investigation or prosecution of the criminal charge 

against the defendant is not possessed by the prosecution team, and the prosecutor does 

not have the duty to search for or to disclose such material. (People v. Superior Court, 

supra, 80 Cal.App.4th at p. 1315.)

Suppression of such evidence violates due process “irrespective of the good faith 

or bad faith of the prosecution” (Brady, supra, 373 U.S. at p. 87), and “regardless of 

whether it was intentional, negligent, or inadvertent. [Citations.]” (In re Sodersten

(2007) 146 Cal.App.4th 1163, 1225.)

“[E]vidence tending to impeach the credibility of a prosecution witness may be 

deemed favorable to the defense under Brady.” (People v. Ashraf (2007) 151 
31.

Cal.App.4th 1205, 1214; see also United States v. Bagley (1985) 473 U.S. 667, 676; 

People v. Kasim (1997) 56 Cal.App.4th 1360, 1380.) In contrast, undisclosed 

impeachment evidence is not material under Brady if it would not have added 

significantly to the cumulative aspect of other impeachment evidence already presented. 

(People v. Dickey (2005) 35 Cal.4th 884, 907-909.)

“[F]avorable evidence is material, and constitutional error results from its 

suppression by the government, ‘if there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been different.’ 

[Citations.]” (Kyles v. Whitley (1995) 514 U.S. 419, 433-434.) The “touchstone of 

materiality is a ‘reasonable probability’ of a different result .... The question is not 

whether the defendant would more likely than not have received a different verdict with 

the evidence, but whether in its absence he received a fair trial, understood as a trial 

resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different 

result is accordingly shown when the government’s evidentiary suppression ‘undermines 

confidence in the outcome of the trial.’ [Citation.]” (Id. at p. 434.)

1. Analysis

Defendant’s constitutional right to due process under Brady was violated in the 

first trial. The evidence of M.’s prior false molestation accusation was favorable and 

material to the defense because it impeached the credibility of the alleged victim of the 

charged offenses. The evidence was in the possession of the investigating agency. It 

would not have been cumulative since M.’s testimony at the first trial was not impeached 

with any evidence about a prior false report, and the court properly excluded defendant’s 

offer of proof as hearsay. The evidence was “suppressed,” apparently inadvertently,

because of the detective’s alleged reliance on an erroneous birthday and last name for M.

when he researched the matter, despite defense counsel’s repeated insistence that such a 

prior false report existed. Thus, defendant’s due process rights were violated under 
32.

Brady even if the failure to disclose was inadvertent and not in bad faith. (Brady, supra, 

373 U.S. at p. 87; In re Sodersten, supra, 146 Cal.App.4th at p. 1225.)

Defendant suffered prejudice as a result of the Brady error in the first trial because 

he did not receive a fair trial, i.e., “a trial resulting in a verdict worthy of confidence.” 

(Kyles v. Whitley, supra, 514 U.S. at p. 434.) M. testified about her allegations against 

defendant without the jury learning that she had made a false sexual molestation 

allegation against another man who had lived with her, and that her prior false allegations 

featured rather lurid details.

“[T]he term ‘Brady violation’ is sometimes used to refer to any breach of the 

broad obligation to disclose exculpatory evidence – that is, to any suppression of socalled ‘Brady material’ – although, strictly speaking, there is never a real ‘Brady

violation’ unless the nondisclosure was so serious that there is a reasonable probability 

that the suppressed evidence would have produced a different verdict.” (Strickler, supra,

527 U.S. at p. 281.)

Defendant’s first trial was obviously the exception to this rule because a “real 

‘Brady violation’ ” occurred, material evidence was suppressed, and his convictions in 

counts III and IV were obtained in violation of his constitutional right to due process of 

law. (Strickler, supra, 527 U.S. at p. 281.) Indeed, the prosecution conceded as much 

since it did not file any opposition to defendant's motion for new trial, and the court 

granted the motion because of the impact of the Brady error on the convictions from the 

first trial. (Ibid.)

D. Impact of Brady error on the second trial

While the first trial may have been tainted by the Brady error, there was no Brady

violation in the second trial (which is the subject of this appeal) since the evidence of 

M.’s prior false accusation was disclosed and introduced to impeach her credibility at the 

second trial. Evidence ultimately presented at trial is not considered suppressed for 
33.

Brady purposes, even if the evidence was not disclosed during discovery. (People v. 

Verdugo (2010) 50 Cal.4th 263, 282; People v. Morrison (2004) 34 Cal.4th 698, 715.)

Instead, defendant’s ineffective assistance claim is based on defense counsel’s 

failure to object to the prosecutor’s use of his prior convictions from the first trial to 

impeach his testimony at the second trial. “[D]eciding whether to object is inherently 

tactical, and the failure to object will rarely establish ineffective assistance.” (People v.

Hillhouse (2002) 27 Cal.4th 469, 502.)

In this case, however, an objection in the second trial to the use of the prior 

convictions for impeachment, based on the impact of the Brady violation in the first trial, 

might well have been meritorious. The suppression of evidence in violation of Brady

violates a defendant’s constitutional right to due process. (Brady, supra, 373 U.S. at 

p. 87; Strickler, supra, 527 U.S. at p. 280; People v. Salazar, supra, 35 Cal.4th 1031, 

1042.) “It is well established that ‘the use of constitutionally invalid prior convictions for 

impeachment purposes is error of constitutional dimension.’ [Citation.]” (United States 

v. Brito-Hernandez, supra, 996 F.2d at pp. 81–82; see also Loper v. Beto (1972) 405 U.S. 

473, 483–484; Bates v. Nelson (9th Cir. 1973) 485 F.2d 90, 95; In re Rogers (1980) 28 

Cal.3d 429, 434; People v. Coffey (1967) 67 Cal.2d 204, 218–219, reversed on other 

grounds in Curl v. Superior Court (1990) 51 Cal.3d 1292, 1304, fn. 7; In re Dabney

(1969) 71 Cal.2d 1, 3, 6.)

By the time defendant testified at the second trial, defense counsel was aware that 

defendant’s prior convictions from the first trial were likely tainted by the Brady

violation. An objection based on the Brady violation would not have been meritless, and

would have required the court to address the issue and perhaps limit the use of those 

convictions to impeach defendant's trial testimony.

E. Defense counsel’s tactical decisions

Defendant asserts defense counsel was prejudicially ineffective for failing to rely 

on the Brady violation and object to the prosecutor’s use of the prior convictions from the 
34.

first trial to impeach his testimony at the second trial. There was more to this case, 

however, than defense counsel’s failure to object to the impeachment evidence. The 

entirety of the record suggests defense counsel believed it somehow would have been 

beneficial for the jury to learn some details about what happened at the first trial – in

order to undermine the credibility of M.’s testimony about the specific counts which were 

before the jury.

When defendant began his testimony at the second trial, defense counsel asked 

him whether (1) he had ever testified before a jury; (2) he had any prior convictions; and 

(3) whether he had ever been charged with any type of sexual charges. Defendant replied 

no to each question. The prosecutor immediately objected and advised the court that 

defendant testified at the first trial and had two prior convictions for sexual assault. The 

court replied that the prosecutor could use the prior convictions from the first trial to 

impeach defendant since defendant had opened the door to impeachment. Defense 

counsel did not raise any objections to the prosecutor’s stated intent to impeach defendant 

with the prior convictions from the first trial. Instead, defense counsel replied: “Sure 

can, we can talk about the other trial.” (RT 4040-4041)

Defense counsel’s examination of defendant sheds some light on his possible 

tactical reasons for allowing the jury to learn that defendant had prior convictions which 

were likely based on similar charges involving the same victim. The following sequence 

is particularly illuminating:

“[DEFENSE COUNSEL]: Okay. Were you, in fact, convicted by a 

previous jury of some counts related to what you’re here now for?

“[DEFENDANT]: No.

“Q Were you – were you convicted of anything in the last trial?

“A Yes.

“Q Okay. In the last trial were you convicted by a jury of the counts 

which you are now facing with this jury?
35.

“A No.

“Q Okay. Is that why you said you did not have a conviction?

“A Yes.” (Italics added.)

After the parties rested, the court read the following stipulation to the jury: “[Y]ou 

now all know that there was a previous trial in this case. [Y]ou are not to speculate as to 

why the charges that are before you are being tried again. And in addition, you’re not to 

speculate as to the nature of any crime that the defendant may have been convicted of in 

that previous trial.” (Italics added.) Defense counsel did not object to this instruction.

Defense counsel’s closing argument sheds further light on his possible tactical 

decisions in this case. Counsel reminded the jury that he asked defendant if he had ever 

testified or been convicted of a crime. Defense counsel declared defendant thought the 

judge told him not to talk “ ‘about that prior jury’ ” and “ ‘the other one.’ ” Defense 

counsel argued the prosecutor unfairly “jumped on” defendant’s confusion and made the 

jury think defendant was deliberately lying, when he thought he was following the court’s 

orders. Counsel continued:

“So now you know it. I mean, it’s out there. He was tried by another jury 

and they hung. That’s – we have talked about it. That’s evidence. He 

thought he didn’t have a conviction. He thought he was told not to talk 

about it.” (Italics added.)

In her rebuttal, the prosecutor relied on the prior convictions to attack defendant’s 

credibility: “... I’m going to say to you that he lied to you. I’m just going to straight out 

say it. He lied to you again and again and again.” The prosecutor cited defendant’s 

claim that he thought he was following the court’s orders not to mention his prior 

convictions, and added:

“... [Defendant] was not following orders to tell you that he had never been 

convicted or testified before. There was no order from this court that you 

not be told that.” (Italics added.)

Defense counsel objected. The court overruled the objection and instructed the 

jury that it heard the evidence; it could decide what it heard; and counsel could argue 
36.

what they believed the evidence showed. The prosecutor continued and again asserted 

there was never a specific order not to talk about it.

The prosecutor moved on to other matters, particularly that M.’s allegations 

against defendant were still credible, despite her prior false accusations, because of the 

cell phone pictures and defendant’s statements to the police. The prosecutor then 

returned to defense counsel’s statements about the first trial.

“[W]hen I was talking about defendant’s testimony of whether or not he 

had been convicted and counsel said he was tried and they hung. There is a 

little more to that. They did hang, but there was also a conviction. And 

you heard me get that from defendant, although he backtracked on that, but 

there was a conviction as well.” (Italics added.)

F. Analysis

In evaluating defendant’s claim of ineffective assistance, we defer “ ‘to counsel’s 

reasonable tactical decisions in examining a claim of ineffective assistance of counsel 

[citation], and there is a “strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” ’ [Citations.] ‘[W]e accord great deference 

to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not 

second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’

[citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s 

decisionmaking must be evaluated in the context of the available facts.’ [Citation.]” 

(People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

The decision whether to object to the admission of evidence is “inherently 

tactical,” and a failure to object will rarely reflect deficient performance by counsel. 

(People v. Hillhouse (2002) 27 Cal.4th 469, 502; People v. Castaneda (2011) 51 Cal.4th 

1292, 1335.) “[Defendant] must affirmatively show counsel’s deficiency involved a 

crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. 

[Citations.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
37.

“There are countless ways to provide effective assistance in any given case. Even 

the best criminal defense attorneys would not defend a particular client in the same way. 

[Citation.]” (Strickland v. Washington (1984) 466 U.S. 668, 689-690.) “ ‘[E]ven 

“debatable trial tactics” do not “constitute a deprivation of the effective assistance of 

counsel.” [Citations.]’ [Citation.]” (People v. Weaver, supra, 26 Cal.4th 876, 928.) 

As the People suggest, there is a tactical explanation for defense counsel’s 

decisions in this case. As we have already explained, the jury’s verdicts in the first trial 

constituted prior convictions which could be used to impeach defendant’s credibility 

when he testified at the second trial. Based on defense counsel’s statements to the court, 

he believed the entire case hinged on the jury’s evaluation of M.’s credibility. Counsel 

also knew the prior convictions were potentially admissible, and he sought to preempt the 

prosecutor’s anticipated impeachment by disclosing the prior convictions to the jury 

during defendant’s direct examination. Counsel’s comments to the court reflect his belief 

that it would help defendant if this jury also learned that another jury had been unable to 

convict defendant of similar charges which were now before it. The crucial point would 

have been that another jury had not believed M.’s testimony about the specific sexual acts 

which defendant was accused of committing. Such an inference would have been further 

bolstered by the impeachment evidence against M. about her prior false molestation 

accusation. This reasonable tactical decision serves to explain defense counsel’s 

willingness to allow the jury to hear about the first trial, his decision not to object to the 

prosecutor’s use of the prior convictions to impeach defendant’s testimony at the second 

trial, and the nature of his closing argument.

We conclude defense counsel was not ineffective during the evidentiary portion of 

the second trial. He made a reasonable tactical decision not to object to the impeachment 

of defendant’s testimony with the two prior convictions from the first trial, given the 

unique procedural circumstances of this case.
38.

II. Defense counsel’s failure to move for a new trial as to counts I and II

Defendant asserts that aside from defense counsel’s actions at trial, counsel was 

separately ineffective for failing to make a motion for new trial as to counts I and II. 

Defendant is correct.

As we have explained, defense counsel made the reasonable tactical decision 

during the evidentiary portion of the second trial, to allow the jury to learn about the prior 

convictions from the first trial, and not to object when defendant was impeached with 

counts III and IV. More importantly, defense counsel was determined for the jury to 

learn that another jury had been unable to convict defendant of similar charges. Defense 

counsel’s tactical decisions were reasonable even though the prior convictions may have 

been tainted by the Brady violation in the first trial.

After defendant was convicted in the second trial of counts I and II, however, the 

reason for defense counsel’s tactical decision ceased to exist. It was at that point when 

defense counsel properly moved for a new trial before Judge Vogt as to counts III and IV 

from the first trial, based on the Brady violation. The prosecution did not oppose the 

motion, the court granted the new trial, and the prosecution later decided not to retry 

defendant for counts III and IV.

Once Judge Vogt granted defendant’s new trial motion for counts III and IV based 

on the Brady violation, there was no tactical reason defense counsel should not have 

moved for a new trial for counts I and II from the second trial. The suppression of 

evidence in violation of Brady violates a defendant’s constitutional right to due process. 

(Brady, supra, 373 U.S. at p. 87; Strickler, supra, 527 U.S. at p. 280.) The use of a 

constitutionally invalid prior conviction for impeachment purposes is error of 

constitutional dimension. (United States v. Brito-Hernandez, supra, 996 F.2d 80, 81-82; 

Bates v. Nelson (9th Cir. 1973) 485 F.2d 90, 95; People v. Coffey (1967) 67 Cal.2d 204, 

218-219.) Based on Judge Vogt’s decision to grant a new trial as to counts III and IV 

because of the Brady violation in the first trial, defense counsel should have filed a 
39.

motion for new trial before Judge Ellison, and argued defendant’s convictions in counts I 

and II in the second case were tainted because his trial testimony was impeached with 

prior convictions which were constitutionally invalid.

“No judgment shall be set aside, or new trial granted, in any cause, on the ground 

of misdirection of the jury, or of the improper admission or rejection of evidence, or for 

any error as to any matter of pleading, or for any error as to any matter of procedure,

unless, after an examination of the entire cause, including the evidence, the court shall be 

of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. 

Const., art. VI, § 13; People v. Braxton (2004) 34 Cal.4th 798, 815.)

Based on the record before this court, we believe that a motion for new trial as to 

counts I and II might have been meritorious, and defense counsel was prejudicially 

ineffective for failing to make such a motion. However, we cannot say that the trial court 

should have granted a new trial motion on the merits. We believe it would be more 

appropriate to conditionally reverse and remand the matter for defendant to make the 

appropriate new trial motion as to counts I and II, based on the impact of using the 

constitutionally invalid prior convictions to impeach his testimony at the second trial.

A motion for new trial may be based on federal constitutional error. (See People 

v. Homick (2012) 55 Cal.4th 816, 894; People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 

27, reversed on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 636-643.) 

Upon such a motion, the superior court must determine whether the use of the 

defendant’s constitutionally invalid prior convictions was harmless beyond a reasonable 

doubt, pursuant to Chapman v. California (1967) 386 U.S. 18, 24. (United States v. 

Brito-Hernandez, supra, 996 F.2d 80, 81–82; People v. Alvarez (1996) 14 Cal.4th 155, 

216, fn. 21.)

We believe this remedy is appropriate so the new trial motion may be brought and 

heard before the same court which presided over defendant’s second trial, in order for 

that court to consider defendant’s legal and factual contentions. (See, e.g., People v. 
40.

Drake (1992) 6 Cal.App.4th 92, 97-98; People v. Braxton, supra, 34 Cal.4th 798, 818–

819.) If the court denies the new trial motion, the court shall reinstate defendant’s 

convictions for counts I and II. If the court grants the motion, defendant may be retried.

III. The court’s denial of defendant’s motion for CALCRIM No. 306

Defendant’s final issue is based on the court’s alleged instructional error at the 

second trial. However, his assignment of error is partially based on the Brady violation 

which occurred during the first trial.

Defendant contends that when the court instructed the jury in the second trial, it 

should have granted his request to give CALCRIM No. 306 as a sanction for the 

prosecution’s belated disclosure of M.’s prior false molestation accusation. We will find 

the court did not abuse its discretion when it declined to give the instruction.

A. Instructional request during the second trial

As explained, ante, the evidence about M.’s prior false accusation was not 

disclosed during the first trial, and M. was not impeached with this information.

At the beginning of the second trial, the prosecution belatedly disclosed this 

evidence to the defense. During the second trial, M. was impeached with this evidence, 

and Celia A. was questioned about M.’s prior false statements. As we have explained, 

there was no Brady violation during the second trial because the evidence about M.’s 

prior false molestation claim was introduced before the jury.

After the parties rested at the second trial, defense counsel requested the court to

give CALCRIM No. 306, as a sanction for the prosecution’s belated discovery of the 

evidence regarding M.’s prior false molestation allegation. The pattern instruction states 

in relevant part:

“Both the People and the defense must disclose their evidence to the 

other side before trial, within the time limits set by law. Failure to follow 

this rule may deny the other side the chance to produce all relevant 

evidence, to counter opposing evidence, or to receive a fair trial.
41.

“An attorney for the [People] failed to disclose: <describe evidence 

that was not disclosed> [within the legal time period].

“In evaluating the weight and significance of that evidence, you may 

consider the effect, if any, of that late disclosure....”

The prosecutor conceded the evidence about the prior false report was Brady

material, but there was no evidence of a willful discovery violation. The prosecutor 

explained the investigative reports about M.’s prior false accusation was entered into the 

police department’s computer system using an incorrect last name and birth date for her, 

and the detectives finally connected M. to the prior case after the second trial’s 

evidentiary hearing.

The court denied defendant’s request for CALCRIM No. 306 as a sanction for the 

discovery violation. The court stated a continuance would have been the appropriate 

remedy for the delayed discovery but defendant never asked for a continuance. The court 

asked defense counsel to explain why he was prejudiced by the delayed discovery, 

particularly since M. testified and admitted she made the prior false allegation.

Defense counsel said he did not want a continuance in the middle of trial, and the 

delayed discovery did not give him time to investigate why M. made the false allegation, 

or to have a defense psychologist investigate and explain why a child would make a false 

allegation. Counsel argued CALCRIM No. 306 could be given without showing 

prejudice from the delayed discovery.

The prosecutor clarified that when she turned over the Brady evidence to defense 

counsel at the beginning of the second trial, they discussed a possible continuance, and 

she would not have objected to his request. However, defense counsel never asked for a 

continuance. In addition, defense counsel always appeared to know about M.’s prior 

false allegation based on his efforts to introduce evidence about it before both trials, so 

the subsequent disclosure of the Brady evidence was not a complete surprise.
42.

The court again denied defendant’s request for the instruction. The court agreed 

the evidence about M.’s prior false report was “Brady information,” but found there was 

no prejudice, or “willful” or “technical suppression” of the evidence.

“And the need to sanction the People, there really isn’t any need for that. 

The purpose of a sanction, it seems to me, is to punish behavior so that it’s 

not repeated. And this is a circumstance in which the parties simply, while 

they should have produced it, had it been known that [M.] had another 

[last] name and had made a report using another name, it wasn’t. And there 

is no point in a punishment in those circumstances, in this Court’s view.”

B. Section 1054.1

Defendant’s motion for the court to give CALCRIM No. 306 was based on the 

prosecutor’s belated disclosure of evidence at the beginning of the second trial and 

alleged violation of the reciprocal-discovery statute. The constitutional duty that requires 

prosecutors to disclose exculpatory evidence to criminal defendants under Brady is 

independent from the statutory duty to provide discovery under section 1054.1. (Izazaga 

v. Superior Court (1991) 54 Cal.3d 356, 378; People v. Jordan (2003) 108 Cal.App.4th 

349, 359.)

“Section 1054.1 (the reciprocal-discovery statute) ‘independently requires the 

prosecution to disclose to the defense, ... certain categories of evidence “in the possession 

of the prosecuting attorney or [known by] the prosecuting attorney ... to be in the 

possession of the investigating agencies.” ’ [Citation.] Evidence subject to disclosure 

includes ‘[s]tatements of all defendants’ [citation], ‘[a]ll relevant real evidence seized or 

obtained as a part of the investigation of the offenses charged’ [citation], any ‘[r]elevant 

written or recorded statements of witnesses or reports of the statements of witnesses 

whom the prosecutor intends to call at the trial, including any reports or statements of 

experts’ [citation], and ‘[a]ny exculpatory evidence’ [citation]. ‘Absent good cause, such 

evidence must be disclosed at least 30 days before trial, or immediately if discovered or 

obtained within 30 days of trial. [Citation.]’ [Citation.]” (People v. Verdugo, supra, 50 

Cal.4th at pp. 279-280, italics added.)
43.

“Upon a showing both that the defense complied with the informal discovery 

procedures provided by the statute, and that the prosecutor has not complied with section 

1054.1, a trial court ‘may make any order necessary to enforce the provisions’ of the 

statute, ‘including, but not limited to, immediate disclosure, ... continuance of the matter, 

or any other lawful order.’ [Citation.] The court may also ‘advise the jury of any failure 

or refusal to disclose and of any untimely disclosure.’ [Citation.] A violation of section 

1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 

Cal.2d 818, 836 .... [Citation.]” (People v. Verdugo, supra, 50 Cal.4th at p. 280.)

The court has discretion to consider a wide range of sanctions for a violation of 

section 1054.1, including giving CALCRIM No. 306. (See, e.g., People v. Riggs (2008) 

44 Cal.4th 248, 306-310; People v. Thomas (2011) 51 Cal.4th 449, 484, fn. 6.) The 

court’s ruling on discovery sanctions is reviewed under an abuse of discretion standard. 

(People v. Ayala (2000) 23 Cal.4th 225, 299.)

C. Analysis

The court did not abuse its discretion when it denied defendant’s motion to give 

CALCRIM No. 306 at the second trial. First, section 1054.1 requires disclosure of 

information the prosecutor possesses or knows to be in the possession of the investigating 

agency. In this case, the prosecutor represented during the first trial that she had checked 

the system and could not find any prior reports about M. The Brady error was 

subsequently disclosed at the beginning of the second trial, and the prosecutor explained 

the detective used an incorrect birth date and last name for M. when he initially 

researched the issue. The court found the Brady error was inadvertent and unintentional, 

there is no evidence to the contrary, and defendant did not challenge the court’s findings 

on that point. The prosecutor did not violate the criminal discovery statute, and the court 

did not have the duty to instruct the jury on the untimely discovery.

Second, we have already explained a negligent or inadvertent failure to disclose 

still constitutes a Brady violation, and the failure to disclose M.’s prior false allegation 
44.

was Brady error as to the first trial. However, it is important to note the Brady error was 

discovered at the beginning of the second trial, and the evidence was fully disclosed to 

the defense. Both the court and the prosecutor were agreeable to a continuance, but 

defense counsel did not request or desire a continuance. The evidence about M.’s prior 

false accusation was introduced at the second trial, and M. was extensively crossexamined about that accusation. Evidence ultimately presented at trial is not considered 

suppressed for Brady purposes, even if the evidence was not disclosed during discovery. 

(People v. Verdugo, supra, 50 Cal.4th at p. 282; People v. Morrison (2004) 34 Cal.4th

698, 715.)

Finally, defense counsel had been aware of rumors about M.’s prior false 

accusation from the beginning of this case, demanded disclosure of the evidence, and 

moved to introduce hearsay testimony about the incident. Prior to both trials, the court 

conducted evidentiary hearings on the admissibility of the defense hearsay evidence, 

leading to the inference that defendant was prepared to address the issue if the court 

admitted the evidence. The prior false report was ultimately disclosed during the course 

of the evidentiary hearing at the second trial. It is reasonable to conclude that defendant 

was prepared to address this incident at trial since he was waiting for the court’s ruling on 

the admissibility of the hearsay evidence about the prior false claim. Defendant never 

made an offer of proof as to whether he would have introduced additional evidence 

regarding the prior false claim at the second trial.

The court did not abuse its discretion when it declined to give CALCRIM No. 306 

about the belated disclosure of M.’s false claim at the second trial.

DISPOSITION

For the reasons stated, the judgment is reversed and the matter remanded to the 

trial court for consideration of a motion for a new trial, based on the introduction of the 

convictions from the first trial in the second trial. At the conclusion of the hearing, if the 

trial court denies the motion for a new trial, the trial court is directed to reinstate the 
45.

judgment, which shall stand affirmed. If the trial court grants a new trial, the judgment 

shall stand reversed and defendant may be retried.

_____________________

 Poochigian, J.

WE CONCUR:

______________________

Cornell, Acting P.J.

______________________

Franson, J.