Filed 8/20/15 P. v. Scott CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C076387
Plaintiff and Respondent, (Super. Ct. No. 11F07788)
v.
PATRICK DEMARCO SCOTT,
Defendant and Appellant.
While in prison, defendant Patrick Demarco Scott was put on contraband
surveillance watch after officers suspected a female visitor passed contraband to him
through a kiss. Defendant later defecated four bindles that contained cocaine and
marijuana. Defendant claimed the officers lied in their reports and filed a Pitchess1
motion to discover exculpatory evidence in their personnel files. An in camera hearing
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
1
resulted in no discoverable documents. At trial, a jury found defendant guilty of
possessing cocaine and marijuana while confined in state prison.
Defendant makes two arguments on appeal. First, defendant contends the
prosecutor committed prejudicial misconduct during closing argument by: (1) making
statements to the jury he knew to be untrue; (2) vouching for key prosecution witnesses;
(3) inserting himself personally into the case; and (4) denigrating the reasonable doubt
standard. Defendant further argues that he did not forfeit this issue by failing to object.
Alternatively, defendant argues his trial counsel was ineffective for failing to object.
Second, defendant requests that this court review the sealed transcript of the in
camera hearing on his Pitchess motion “to determine whether personnel records of . . .
[O]fficers Phillips and Mejia older than five years prior to May 29, 2011” were reviewed
for Brady2 material. We reject the claims of prosecutorial misconduct but conditionally
reverse and remand on the Pitchess/Brady issue.
FACTUAL AND PROCEDURAL BACKGROUND
On May 29, 2011, Officer Russell Snyder was assigned to monitor the video
surveillance of the inmate visitation area at Folsom State Prison. He became suspicious
when he saw defendant’s female visitor leave the restroom then sit back down with
defendant. The female moved an unidentified object within her mouth and kissed
defendant. Defendant then took a drink of his beverage and struggled to swallow. Based
on his training and experience, Officer Snyder believed the actions of defendant and his
female visitor represented a common method for inmates to introduce contraband into a
correctional facility. Defendant was taken into additional custody and placed on
contraband surveillance watch.
2 Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].
2
Defendant remained under surveillance for five days. On June 3, 2011, Officers
Matt Phillips, Scott Epsey, and Enoch Mejia removed defendant from his cell. Defendant
appeared “wobbl[y],” so medical assistance was called. After defendant defecated,
Officer Phillips searched defendant’s bowel movement and found four bindles.
Defendant was then taken to the medical clinic for further medical treatment. The
contents of the bindles were later identified as marijuana with a net weight of 0.75 grams
and cocaine with a net weight of 0.75 grams.
Defendant insisted the officers were lying about the discovery of the bindles and
prior to trial filed a Pitchess motion to obtain discovery of Officer Phillips’s and Officer
Mejia’s personnel files to corroborate his theory. The trial court found sufficient cause
for review and held an in camera hearing but determined no discoverable documents
existed in the officers’ files.
At trial, the jury was shown the surveillance video of the alleged contraband
exchange while Officer Snyder narrated. Moreover, Officers Phillips, Scott, and Mejia
all testified that defendant had defecated the bindles. However, there were
inconsistencies among the officers’ testimony and reports as to the offense date and
details of defendant’s medical condition during the incident. Officer Phillips testified
defendant appeared wobbly and received medical attention but did not include that in his
initial report. After speaking with the prosecutor, he prepared a supplemental report on
June 15, 2012, that included details of defendant’s medical condition. Officer Mejia
testified that medical staff responded and said defendant was faking, but Officer Mejia’s
report noted defendant had no medical issues and was returned to his cell without
incident after defecating. His report stated the incident occurred on June 6, 2011, but the
report was dated June 3, 2011. He initially testified he was unsure which date was
correct. Finally, Officer Epsey testified consistent with his August 20, 2012, report
which stated defendant appeared to lose consciousness on two occasions and required
3
medical attention, but both his report and testimony suggested the incident took place on
May 29, 2011.
During closing argument, defense counsel argued the officers “fell far short of
being believable,” citing the “remarkably wrong” dates on their reports, inconsistent
testimony, and evasive behavior on the stand. She argued “something [is] going on
here. . . . [A]nytime an inmate has medical issues, that’s relevant and needs to be
included in a report” because “[reports] may later be needed to help an inmate or to help
defend the prison in a liability suit.” Defense counsel continued, “[the officers’]
incompetence must not end in a lawsuit. It must end in a conviction, only then may it
look like they weren’t actually incompetent on so many fronts.” Counsel further argued
that Officer Phillips was “hoping” defendant would defecate the contraband because after
five days of keeping him under surveillance with no results, “it is going to look really bad
for them, if they don’t end up charging him with wrongdoing.”
During rebuttal closing argument the prosecutor asked the jury, “Is there any
evidence of some imaginary civil suit? Any?” Later he continued, “[defense counsel]
kept talking in closing argument again and again about some kind of liability suit . . . .
[¶] If there was evidence of some kind of liability suit . . . don’t you think she would
march somebody in here to tell you that? She presents [something] to justify . . . these
guys are biased because they are getting sued.”3 The prosecutor also announced that
defendant was taking the position that the officers were “all lying, they [were] all risking
their jobs, they [were] all risking their retirements . . . ,” and defendant called Officer
Phillips “a liar, and . . . a coconspirator, and he has committed crimes in front of you.”
Finally, the prosecutor presented the two conflicting interpretations of the evidence in
this case. “One, [the officers] are telling you the truth about something that happened
3 Italics indicate the specific language defendant argues was prosecutorial
misconduct.
4
between May 29 and June 3rd, 2011. The videotape corroborates that you see it. [¶]
And, two, [the officers] are part of some conspiracy, apparently started by Officer Snyder
. . . I’m part of it too cause I talked to them. I talked to my witnesses before they
testified.”
Throughout rebuttal closing argument, the prosecutor also offered multiple
descriptions of the reasonable doubt standard. First he implored the jury, “Again and
again you were asked, if you had to vote right now during jury selection, how would you
vote? Not guilty. I haven’t heard any evidence. [Defendant] has the presumption. I
[have] the burden. It’s this artificial abstract construct that kind of put[s] you in the mind
frame to start to get you thinking that way, not guilty, not guilty, not guilty.” The
prosecutor then commented, “[defendant] said . . . you don’t make decisions beyond a
reasonable doubt in normal life.” He argued “[w]hy is [defendant] saying that? Because
[defendant] wants to make it an alien concept. . . . [¶] You use it all the time. The
example that I g[a]ve you for circumstantial evidence. Mom and Junior and the cookie
jar. . . . You do it all the time.” Finally, the prosecutor explained that “[t]he presumption
of innocence protects every one of us, including this defendant . . . like . . . [a] kind of a
force field or a bubble . . . .”
After deliberations, the jury found defendant guilty as charged.
DISCUSSION
I
Prosecutorial Misconduct
“ ‘ “ ‘A prosecutor’s conduct violates the Fourteenth Amendment . . . when it
infects the trial with such unfairness as to make the conviction a denial of due process.
Conduct . . . that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.’ [Citation.] When a
claim of misconduct is based on the prosecutor’s comments before the jury . . . ‘ “the
5
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.” ’ ” ’ ” (People v. Adams
(2014) 60 Cal.4th 541, 568.)
“ ‘[A] defendant may not complain on appeal of prosecutorial misconduct unless
in a timely fashion--and on the same ground--the defendant [tendered an objection] and
requested that the jury be admonished.’ ” (People v. Hill (1998) 17 Cal.4th 800, 820.) A
failure to do so will be excused only if such action would be futile or not correct the
harm. (People v. Adams, supra, 60 Cal.4th at p. 569.)
To overcome forfeiture, a defendant must show that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms and,
as a result, the defendant suffered prejudice. (Strickland v. Washington (1984) 466 U.S.
668, 687-688 [80 L.Ed.2d 674, 693].)
Of the four claims of prosecutorial misconduct, defendant objected at trial only to
the prosecutor’s alleged false statements about a liability suit and thus the other claims
are forfeited. However, because defendant also asserts ineffective assistance of counsel
for failure to object, to determine whether counsel was ineffective we must first
determine if the prosecutor’s actions constituted misconduct, warranting an objection.
Thus, despite the forfeiture, we address each of defendant’s claims to determine if
misconduct occurred.
A
Untrue Statements
Defendant contends the prosecutor’s statements about the lack of evidence of an
“imaginary” liability suit were misconduct because the prosecutor knew the statements
were untrue.
Defendant argues the prosecutor knew of a lawuit based on the following
testimony given by Officer Philips during the preliminary examination:
“[Q.] And you are aware that Mr. Scott is filing a lawsuit related to this incident?
6
“[A.] Correct.
“[Q.] And you’ve actually reviewed the paperwork from that incident -- I mean
that he has filed?
“[A.] I have not.”
We agree that it is improper for the prosecutor to lead the jury to believe a fact the
prosecutor knew to be untrue (People v. Bittaker (1989) 48 Cal.3d 1046, 1105), but we
disagree the prosecutor did so here. To the extent the prosecutor’s argument was that no
evidence was presented at trial of a civil suit, that argument is true. Despite defense
counsel’s intimations during closing that the officers could be lying to protect themselves
from a civil suit, no evidence of a civil suit was introduced at trial. Alternatively, to the
extent the prosecutor’s argument could be understood to mean the suit was nonexistent or
“imaginary,” Officer Phillips’ testimony does not disprove this. The testimony is at best
equivocal as to whether a suit had been filed. Therefore, we find no misconduct.
B
Vouching For Key Prosecution Witnesses And Introducing Facts Not In Evidence
Defendant next contends the prosecutor vouched for key witnesses by
characterizing defendant’s theory as the officers were “all lying . . . risking their jobs . . .
their retirement[s]” and Officer Phillips was “a liar, and . . . a coconspirator, and has
committed crimes in front of you.”
“It is misconduct . . . to suggest to the jury in arguing the veracity of a witness that
the prosecutor has information undisclosed to the trier of fact bearing on the issue of
credibility, veracity, or guilt.” (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled
on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) In Padilla, defense
counsel suggested that the prosecutor’s ballistics expert had “ ‘made up’ ” his
conclusions about the murder weapon during testimony. The prosecutor then argued to
the jury that if his ballistics expert had lied, he “would have ‘risked his whole career of
17 years.’ ” (Padilla, at p. 946.) The Supreme Court expressed “doubt that the argument
7
was proper” but found “no reasonable probability that defendant was prejudiced by the
prosecutor’s argument . . . .” (Ibid.) Similarly here, the defense argued that the officers
“fell far short of being believable.” In response, the prosecutor argued that if defendant
was correct and the officers were lying, then they were “risking their jobs” and “risking
their retirement[s].” While it may be common knowledge that lying under oath carries its
own legal consequences, the prosecutor implied facts not in evidence regarding the
consequences the officers would face in their employment if they lied. However, we, like
the court in Padilla, find no “ ‘ “ ‘ “reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.” ’ ” ’ ” (People v.
Adams, supra, 60 Cal.4th at p. 568; see Padilla, at p. 946.)
C
Appealing To The Passions Of
The Jury And Personally Inserting Himself Into The Case
Defendant contends the prosecutor appealed to the passions of the jury and
personally inserted himself by saying, “I’m part of [the conspiracy] too cause I talked to
them. I talked to my witnesses before they tesified.”
Defendant argues first that the prosecutor, by his statement, “improperly engaged
in inflammatory conduct that appealed to the passions of the jury.” (People v. Fuiava
(2012) 53 Cal.4th 622, 693; see People v. Redd (2010) 48 Cal.4th 691, 742.) In Fuiava,
“the prosecutor improperly engaged in inflammatory conduct that appealed to the
passions of the jury” “[b]y presenting th[e] witness to the jury in his bloodstained
uniform and eliciting the deputy’s emotional testimony . . . .” (Fuiava, at p. 693.) In
Redd, comments such as “you people will not get it” and “if you cannot reach a decision
on this, we are in sad shape” directed at the jury during closing argument “did not invite
an irrational or emotional response” but rather focused the jury on its role, criticized
theories of the defense, and emphasized the overwhelming strength of prosecution’s case.
(Redd, at pp. 743-744, italics omitted.) Here, defendant gives no explanation as to why
8
the prosecutor’s statements amounted to inflammatory conduct or invited an irrational
response from the jurors (other than citing the rules pulled from Fuiava and Redd), nor do
we find that they did.
Next, defendant contends the prosecutor improperly injected himself personally
into the case. Defendant argues that these circumstances are equivalent to those
disapproved in Fuiava. (People v. Fuiava, supra, 53 Cal.4th at p. 693.) In Fuiava, the
defendant shot and killed a deputy. (Id. at p. 634.) The defense offered evidence that the
Vikings, a group of deputies within the sheriff’s department, acted illegally and were
considered to be a rival gang in the Lynwood area. (Id. at p. 643.) During closing
arguments, the prosecutor stated “ ‘if I am worthy enough . . . I am going to become a
Viking.’ ” (Id. at 693.) The prosecutor then affixed a triangle Viking pin to his jacket.
(Ibid.) Our Supreme Court found this act of “literally ‘becom[ing] a Viking’ ” to be
improper vouching because “the prosecutor placed his own prestige and the prestige of
his office behind the Vikings.” (Id. at p. 694.)
The prosecutor should not have inserted himself into the argument by asserting
that under one interpretation of the evidence (implicitly defendant’s) he was part of the
officers’ conspiracy because he talked to them before they testified. Nonetheless, we do
not find the statement made by the prosecutor in this case equivalent to the ceremonial
act of solidarity and backing performed by the prosecutor in Fuiava. The act in Fuiava
elevated the status of the Vikings above that of the prosecutor and implied that because
other members of the Vikings, which included the prosecutor, would act honorably, the
victim would have acted honorably too. (People v. Fuiava, supra, 53 Cal.4th at p. 694.)
Here, the prosecutor’s brief statement, although improper because he injected himself
into the case, was not meant to elevate or vouch for the credibility of officers in the same
way the prosecutor did in Fuiava, and we conclude there is no reasonable likelihood that
the jury construed the statements in that manner.
9
D
Denigration Of The Reasonable Doubt Standard
Defendant contends the prosecutor misstated the reasonable doubt standard during
rebuttal closing argument. Defendant first argues the prosecutor “softened” the
presumption of innocence by describing it as an “artificial abstract construct” and
likening it to a “bubble.” He contends “artificial” is synonymous with “false” and “a
bubble is both fragile and easily disappears.” We disagree.
“ ‘[I]n the context of the whole argument and the instructions’ ” we do not find
there was a reasonable likelihood the jury understood the prosecutor’s remarks to mean
the presumption of innocence is artificial. (See People v. Centeno (2014) 60 Cal.4th 659,
667.) “ ‘[W]e “do not lightly infer” that the jury drew the most damaging rather than the
least damaging meaning from the prosecutor's statements.’ ” (Ibid.) Instead, we find the
prosecutor’s statement merely commented on how the jury had been exposed to the
presumption of innocence standard from the outset. Also, we do not lightly infer that the
jury understood the prosecutor to be characterizing the presumption of innocence as
fragile and easily disappearing because he chose to use the word “bubble.” In the same
sentence, the prosecutor also referred to the presumption as a “force field” and in the
preceding sentence he described it as “protect[ing] every one of us.”
Defendant also argues the prosecutor improperly likened the reasonable doubt
standard to one used in everyday life and further trivialized it by comparing it to the
circumstantial evidence instruction involving Junior and a cookie jar.
We disapprove of the prosecutor’s statement “[y]ou use it all the time” to suggest
that people make decisions “all the time” in normal life using the beyond-a-reasonable-
doubt standard. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 36 [disapproving of,
but ultimately finding no prejudice in, “arguments suggesting the reasonable doubt
standard is used in daily life to decide such questions as whether to change lanes or marry
. . . even when the prosecutor . . . also states the standard for reasonable doubt is ‘very
10
high’ and tells the jury to read the instructions”].) “The judgment of a reasonable man in
the ordinary affairs of life, however important, is influenced and controlled by the
preponderance of evidence[,]” but something more is required in a criminal trial
involving life and liberty. (People v. Brannon (1873) 47 Cal. 96, 97.)
As to the defendant’s claim of ineffective assistance of counsel, however, we find
no prejudice. Prior to closing arguments, the court properly instructed the jurors on the
reasonable doubt standard and reminded them that they would have a complete copy of
the jury instructions for reference. “When argument runs counter to instructions given a
jury, we will ordinarily conclude that the jury followed the latter and disregarded the
former, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the
law by a judge, and the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.’ ” (People v. Osband (1996) 13 Cal.4th 622, 717.) Therefore, we
find no prejudice from the prosecutor’s argument.
II
Pitchess/Brady
On appeal defendant argues that “the trial court needed to conduct a review
[beyond] the statutory five-year period [for Pitchess motions] to determine if Brady
material existed in the [officers’] personnel records,” and he requests we review the
sealed transcript of the in camera hearing to determine if that review occurred. The
People concede that defendant’s motion sought review of the personnel records under
both Pitchess and Brady and that the trial court found sufficient cause for an in camera
review, and they do not object to defendant’s request for us to review the sealed records.
As we will explain, the required review did not occur.
A
Additional Factual Background
This case presents yet another example of the interplay of Pitchess and Brady
continuing to create confusion for litigants, third parties, and the courts. Here, the entire
11
incident took place at a California Department of Corrections and Rehabilitation (CDCR)
facility under the supervision of CDCR correctional officers. Because the incident
occurred exclusively at a CDCR facility, the district attorney sent a letter informing
defendant that “Penal Code Section 832.7 restricts the access of all parties, including
prosecutors, to peace officer records. If circumstances exist that lead the defense to
believe that peace officer files may contain discoverable or exculpatory information, the
defense may obtain access thereto by complying with the provisions of Evidence Code
Sections 1043 through 1046.”4
Defendant contends he was not present in the contraband watch area at the time of
the alleged events and he did not defecate any illegal substances. He alleged Officer
Philips and Officer Mejia were untruthful in their reports and framed him to cover up
their mistakes.
As directed by the prosecutor, defendant filed a motion pursuant to Evidence Code
section 1043, et seq., and Pitchess. Within his motion, defendant embedded a section
titled “Motion for Brady Material,” which requested discovery of all documents
containing evidence that was favorable to him and material on the issue of either guilt or
punishment within the meaning of Brady, regardless whether such documents related to
4 In People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, the California
Supreme Court recently held that “the prosecution does not have unfettered access to
confidential personnel records of police officers who are potential witnesses in criminal
cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e.,
make a Pitchess motion, in order to seek information in those records.” (Id. at p. 705.)
The court further held that “[b]ecause a defendant may seek potential exculpatory
information in those personnel records just as well as the prosecution, the prosecution
fulfills its Brady obligation if it shares with the defendant any information it has
regarding whether the personnel records contain Brady material, and then lets the defense
decide for itself whether to file a Pitchess motion.” (Id. at p. 716.) “[P]ermitting
defendants to seek Pitchess discovery fully protects their due process right under Brady,
supra, 373 U.S. 83, to obtain discovery of potentially exculpatory information located in
confidential personnel records.” (Id. at p. 721.)
12
matters within the five-year period described in Evidence Code section 1045, subdivision
(b)(1).5 Defendant also sought documents alleging acts by Officers Philips and Mejia
involving “falsification of evidence or testimony” or “other alleged acts involving moral
turpitude” that occurred within five years of his alleged offense.
In response, CDCR filed an opposition, arguing that a Pitchess motion is not the
proper procedure to obtain Brady material and any disclosures must be limited to five
years prior to the incident. The trial court found sufficient cause for defendant’s Pitchess
motion and conducted an in camera review. The trial court determined there was nothing
responsive to the request in the personnel records and ordered the transcript of the in
camera hearing sealed.
B
Pitchess Procedure
If there is impeachment information in the personnel files of the officers whose
testimony makes up the entirety of the People’s case, that information is Brady material
and discoverable even if it is not necessarily subject to disclosure under the Pitchess
scheme. (See Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 59; City of Los
Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-10; Giglio v. United States (1972) 405
U.S. 150, 154 [31 L.Ed.2d 104, 108].) Here, the People do not dispute that defendant
was entitled to Brady information potentially in the officers’ personnel files, and they do
not oppose defendant’s request that we review the sealed transcript of the in camera
hearing to determine whether review for Brady material occurred. Accordingly, we
examine the transcript to determine whether Brady review occurred during the in camera
5 Under Evidence Code section 1045, subdivision (b)(1), complaints in an officer’s
personnel file concerning conduct occurring more than five years before the offense that
is subject to the litigation are be excluded from disclosure.
13
Pitchess hearing -- specifically, whether the trial court conducted a review that went back
further than the statutory five-year period. We conclude that no such review occurred.
Under People v. Mooc (2001) 26 Cal.4th 1216, on a finding of good cause for
discovery, “the custodian of the records is obligated to bring to the trial court all
‘potentially relevant’ documents to permit the trial court to examine them for itself.” (Id.
at pp. 1228-1229.) The custodian must also be prepared to state for the record what other
documents or category of documents not presented to the court were included in the
complete personnel file and explain his or her decision to withhold them. (Id. at 1229.)
Here, it appears the custodian did not review the officers’ files for Brady material
beyond the five-year period as there was no mention of Brady during the in camera
hearing. With respect to the review for Pitchess material, the court did not proceed as
required. During the hearing, the custodian was put under oath and examined by the
court regarding her responsibilities as the litigation coordinator and how a Pitchess
review is generally conducted. The custodian brought the personnel files of Officers
Phillips and Mejia to court. She did not submit them for review but instead said they
contained no relevant material or complaints. The trial court asked the custodian to
“briefly describe, without going into the specifics” what was in the personnel files. The
custodian explained that the contents of a correctional officer’s file “depends on their
employment and how long they have been employed, but it looks something this; and it is
broken down into their benefits, their pay history, and then employee performance,
employment history, and miscellaneous.” The custodian did not address the contents of
either Officer Phillips’s or Mejia’s file individually, which she had on the table in front of
her. Satisfied with the custodian’s representations, the court did not examine the files and
ordered the transcript of the in camera hearing sealed.
Although only potentially relevant documents must be submitted for court review,
the custodian is required to explain why she determined the documents not produced
were irrelevant to the defendant’s request. (People v. Mooc, supra, 26 Cal.4th at
14
p. 1230.) Here, we conclude the court’s general inquiry into what types of documents
were contained in an officer’s personnel file and whether Officer Phillips’s and Officer
Mejia’s files contained complaints, fell short of requiring the custodian to explain why
she opted to withhold certain documents. The trial court must inspect Officer Mejia’s
and Officer Phillips’s files in court individually and access anything even potentially
relevant. “Absent this information, the court cannot adequately assess the completeness
of the custodian’s review of the personnel files,” nor can the court determine whether the
custodian reviewed the files for Brady material beyond the five-year time limit for
Pitchess review. (People v. Guevara (2007) 148 Cal.App.4th 62, 69.) Accordingly,
remand is required.
DISPOSITION
The judgment is reversed and the case is remanded to the trial court with
instructions to hold a new in camera hearing. If after review on remand, the trial court
determines there are no discoverable records, the judgment is to be reinstated as of that
date. If the trial court determines on remand that relevant information exists, “the trial
court ‘must order disclosure, allow [defendant] an opportunity to demonstrate prejudice,
and order a new trial if there is a reasonable probability the outcome would have been
different had the information been disclosed.’ ” (People v. Gaines (2009) 46 Cal.4th 172,
178.)
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
15