People v. Stewart

Filed 10/9/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A155499
v.
BRANDON JUSTIN LAMAR (Alameda County
STEWART, Super. Ct. No. 16-CR-017147)
Defendant and Appellant.

Defendant and appellant Brandon Justin Lamar Stewart was convicted
of forcible rape, digital penetration and misdemeanor battery on his cousin,
Doe 1, when she was 15 and he was 19 years old. He was sentenced to 13
years in state prison. He argues he was deprived of his right to a fair trial
under Brady v. Maryland (1963) 373 U.S. 83 (Brady) in violation of the due
process and confrontation clauses of the Fourteenth and Sixth Amendments
because the prosecutor withheld impeachment information pertaining to a
key prosecution witness, the trial court declined to review the document in
camera and the juvenile court did not provide information in its files
pertaining to that witness until after the conclusion of his trial. Further, the
trial court erred, Stewart argues, by denying his motion for new trial based
on the evidence he received from the juvenile court after the trial ended.
We conclude the prosecutor violated Brady and the trial court erred in
denying the defense motion for new trial on that ground.

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 BACKGROUND
I.
Procedural History
In December 2016, the Alameda County District Attorney charged
Stewart with forcible sexual penetration and attempted forcible rape of a
minor 14 years or older, both committed on Jane Doe 1 in November 2016.
The complaint also charged Stewart with two counts regarding Jane Doe 2,
lewd acts against a child under 14, between May 25, 2012, and May 25, 2013,
and lewd acts against a child of 15, between July 1, 2015, and July 31, 2015,
when he was at least 10 years older than her. The complaint also alleged
Stewart committed sexual acts against multiple victims as a predicate for
sentence enhancements.1
As part of initial discovery, the prosecutor provided the defense with an
investigator’s notes indicating that in 2012, Doe 2 had been the victim of
“288A Lewd and Lascivious Acts W/Child in 2012”; that the matter had been
“investigated and Turned over to Juvenile Authority” and “Closed 11/27/12”;
and that there was an Oakland Police Department (OPD) report regarding
that matter. The notes further indicated that Doe 2 had told the investigator
the incident occurred when she was 9 or 10 and was spending the night at
her cousin’s house, where she “woke up in the middle of the night” and found
“a man lying down next to her,” and that “the man was touching her” and
“made her touch him.” The notes indicated this may have been the incident

1 Jane Doe 1 and Jane Doe 2 referred to Stewart’s female cousins P.
Doe and L. Doe, whom we will refer to as Doe 1 and Doe 2, respectively. At
trial, both Doe 1 and Doe 2 were referred to by their first name and the last
name of “Doe” to protect their privacy. To protect their privacy, we will refer
to them as Doe 1 and Doe 2. They did not know each other and apparently
were unrelated.

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described in the 2012 police report. The prosecutor did not provide the
defense with the police report or any information about its contents beyond
what we have stated. Nor did the prosecutor inform defense counsel that the
report contained potential Brady material.
The charges against Stewart involving Doe 2 were eliminated from the
case in January 2017, when the district attorney filed a new complaint that
included counts 1 and 2 as to Doe 1 only and omitted the charges as to Doe 2
and the multiple victim allegation.
The preliminary hearing commenced on February 16, 2018. Only Doe 1
testified. Stewart was held to answer on three counts involving Doe 1,
following which an information was filed containing the three charges on
which he was ultimately tried: forcible sexual penetration on a minor aged
14 or older (Pen. Code, § 289, subd. (a)(1)(C), count 1), forcible rape of a minor
aged 14 or older (id., § 261, subd. (a)(2), count 2), and sodomy of a minor aged
14 or older by use of force (id., § 286, subd. (c)(2)(C)). The information also
alleged that each offense was one of several committed against the same
victim for purposes of a sentence enhancement under Penal Code
section 667.6, subdivision (c). Stewart pled not guilty and asserted his
speedy trial rights, and a no-time-waiver jury trial was set with a due date in
May 2018.
On April 18, 2018, the People notified the defense of their intent to call
Doe 2 as a witness under Evidence Code section 1108 based on the charging
information relating to Doe 2 in the original complaint. On May 3, 2018, the
case was sent out for trial, which was set to begin on May 14, 2018.
On May 8, 2018, defense counsel requested that the prosecutor provide
a copy of the 2012 OPD report about Doe 2 referenced in the investigative
notes produced during initial discovery. The prosecutor responded that the

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suspect, who was not Stewart, and the victim were protected under Welfare
and Institutions Code section 827 (i.e., were minors) and for that reason it
could not turn over the police report. Defense counsel disagreed, and the
matter was raised with the court on May 10, 2018, at the trial readiness
conference. The court informed defense counsel that the People could not
turn over the report and that to obtain it, defense would have to file a
petition with the juvenile court under Welfare and Institutions Code
section 827. Defense counsel filed such a petition on May 11, 2018.
On May 14, 2018, the case was assigned to a trial department, with
trial to begin on May 15, 2018. From May until early June, the trial court
heard motions in limine and a jury was selected. Among the motions were
the People’s motion to allow Doe 2 to testify as a propensity witness under
Evidence Code section 1108 and the defense’s motions to exclude any
evidence offered under section 1108 and to order the prosecutor to produce all
information required by Brady, supra, 373 U.S. 83, including exculpatory
evidence and impeachment evidence for any prosecution witnesses.2 The
defense specifically requested that the court order the prosecutor to provide
OPD Report 12-055315. On May 17, 2018, the court granted the People’s
motion to allow Doe 2 to testify under section 1108 and denied the motion to
compel production of the police report, stating it could not “override” the
juvenile court.

2 Evidence Code section 1108 provides an exception to the general rule
of Evidence Code section 1101 that evidence of a person’s character, including
in the form of specific instances of conduct, is inadmissible to show the person
has a propensity to engage in certain behavior. Under section 1108, in a
criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses
is not made inadmissible by section 1101.

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 Counsel made opening statements to the jury on June 4, 2018. Shortly
before Doe 2 testified on June 6, 2018, defense counsel informed the court she
had not yet received from the juvenile court a copy of the police report
regarding the allegation of abuse by Doe 2 not involving Stewart. She again
requested that the trial court review the police report in the prosecutor’s
possession, and the court indicated it was not sure it was entitled to do that.
While the trial was pending, defense counsel called the juvenile court’s clerk
repeatedly to seek an expedited review of Doe 2’s records.
Four days after the jury issued its verdict and six weeks after Stewart
had requested it from the juvenile court, that court provided defense counsel
with redacted Child Protective Services (CPS) reports regarding Doe 2. One
of the reports described an incident of alleged abuse of Doe 2, which had been
reported in 2012. The report stated that in an interview at a Child Abuse,
Listening, Interviewing, and Coordination (CALICO) center, Doe 2 had
described being sexually abused by a male cousin who was a year older than
her starting when she was eight or nine years old. That abuse, which also
included an incident when she was 11 years old, consisted of multiple
instances of oral copulation occurring about once a week, and vaginal
penetration and anal sex occurring two or three times. Doe 2 told the
investigator she did not resist because the cousin threatened to tell her
mother and she did not want to get into trouble. She said her brother had
caught her having anal sex with the cousin in the closet and had pushed the
cousin off and threatened him. The CPS report indicated that the
investigator concluded the allegations were unfounded because “[t]he
children made conflicting reports regarding the alleged sexual abuse.” Her
brother (who was 10) and the male cousin (who was 12) had each accused the
other of engaging in oral copulation with a seven-year-old cousin. Doe 2 (who

5
was 11) claimed the cousin had forced her to engage in the acts of oral
copulation, vaginal penetration and anal penetration, but her brother
reported that she had engaged in these acts with her cousin voluntarily. The
cousin reported he and Doe 2 only had engaged in oral copulation twice and
that both incidents had been initiated by Doe 2.
Based on the CPS report,3 on August 21, 2018, Stewart’s defense
counsel moved for a new trial on the ground of discovery of new evidence and
the prosecution’s failure to disclose the evidence in violation of Brady.
The People opposed the motion. The prosecutor submitted the OPD
report to the trial court with its opposition, which at its request was filed
under seal. The defense was not provided a copy of that report,4 but the
prosecutor described its contents in the People’s opposition to the motion.
According to the opposition, the report “outlin[ed] sexual conduct by [Doe 2]
and another boy [not defendant] who was one year older than her. According

3 The defense did not have the OPD report and thus relied on the CPS
report. It is not clear whether the juvenile court had the OPD report in its
files. However, the OPD report is generally consistent with the CPS report in
its description of the incidents and interviews involving Doe 2 and her cousin
“D.” It also indicated that Doe 2 had been interviewed at CALICO and that
she had said her cousin asked her whether she wanted to engage in the
activities (which she described as “humping” and “sucking” the cousin’s penis)
and that she had said “yes,” except one instance when he had asked if “he
could put his wiener in her butt” and she had said “no” but he had turned her
around, pulled down her pants and did it anyway. It further indicated that
she had said the incidents started when she was eight or nine years old and
continued until just before Halloween 2012.
4 The record does not reflect whether the police report was ever part of
any juvenile court record or reviewed by the juvenile court in connection with
the defense motion for its disclosure under Welfare and Institutions Code
section 827. This court requested that the report be provided if it was part of
the record on appeal. The People provided it and the parties were permitted
to file supplemental briefs under seal to address its significance.

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to the report, the sexual conduct began when [Doe 2] was approximately 8 or
9 and continued until she was 11. All of the incidents were alleged to have
occurred in her home. On one occasion, [Doe 2] stated that the minor’s
‘wiener’ touched her ‘coochie.’ On another, she said she orally copulated the
minor. [Doe 2] noted that on two or three different occasions the minor put
his penis in her butt. The minor male was interviewed and said the acts
were consensual and only consisted of the oral copulation.”
The trial court denied Stewart’s new trial motion on the ground that it
would not likely have admitted the evidence for several reasons, and thus it
would not have “rendered a different result probable on retrial.” Its
reasoning was that “the evidence would not have been presented to the jury
under [Evidence Code sections 782 and] 352 because to resolve the issue as to
whether [the evidence] was consensual or nonconsensual by [Doe 2] . . . it
would simply be too time consuming” and “would involve a trial within a
trial.” Further, “the fact that the child welfare worker ultimately concluded
that the charges were unfounded” would not have been admissible because
“[i]t’s an inadmissible opinion.”5
II.
The Evidence at Trial
The People called eight witnesses in their case in chief, including Doe 1,
Doe 1’s mother and sister, Doe 2, Doe 2’s mother, OPD officers Amanda

5 The trial court also suggested that it could have denied the motion
because counsel arguably had not been diligent in seeking the juvenile court
records, since she had received discovery referring to a police report about
Doe 2’s accusations of sexual misconduct against a person other than Stewart
and did not seek the report “at an earlier time” and did not seek a
continuance during the trial. However, the court did not “hang [its] hat on
that” because it would inevitably lead to a claim of ineffective assistance of
counsel.

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Jimenez and Maritza Rivera, and Kristin Mancuso, a physician’s assistant
who conducted a sexual assault response team (SART) exam on Doe 1. On
rebuttal, they called Brandi Macias, a sheriff’s technician who monitored
phone calls at the jail. For the defense, Stewart testified and called his sister
Aaliyah and registered nurse Claire Nelli, who opined about the evidence of
Doe 1’s SART exam.
Doe 1 testified that on November 25, 2016, the day after Thanksgiving,
she, her cousin, defendant Brandon Stewart, whom she’d known all her life,
and his sister Aaliyah were sitting together on the couch in the living room at
her home in Oakland. She was in the middle, with Stewart on one side and
Aaliyah on the other. Doe 1 was 15 years old at the time. Aaliyah had stayed
overnight at her house for the week of Thanksgiving. Her family and
Stewart’s family had shared a meal the night before, on Thanksgiving. She
and Aaliyah were watching a movie together on her phone sharing ear buds,
while Stewart was on his phone.
Stewart began rubbing Doe 1’s thigh, and she moved his hand and
moved away from him on the couch. At some point, Aaliyah got up to use the
bathroom, saying she’d be “back in 10.” The door to the bathroom was broken
and off the hinges and did not allow complete privacy. While Aaliyah was in
the bathroom, Stewart started rubbing Doe 1’s thigh again, and she scooted
over again. He said, “come on, [Doe 1],” and she said, “stop.” He kept saying
“come on, [Doe 1],” and tried to put his hand on her vagina. He tried to pull
her pajama bottoms down, and she was trying to pull them up. Her
underwear was getting pulled down with her pants. As they struggled over
the pants, he put his fingers inside her vagina. He moved them inside her
while keeping his eye on the bathroom door for what felt like about two
minutes. She grabbed his wrist and tried to pull his hand away from her and

8
whispered to him to stop, but he kept putting his hand back inside her. After
about two minutes, he took his hand out. In the meanwhile, he took his penis
out of his boxers, and she felt his penis behind her, between her anus and her
vagina. She felt his penis go into her vagina. It was in there for what
seemed like “a long time” or “for a minute or two” and he was “trying to force
it all the way in.” She tried to push him off and “scoot up.” She whispered to
him to stop, but he kept on saying “come on, [Doe 1].” Her vagina hurt when
he put his fingers and penis in it. After he pulled his penis out, he attempted
to force it in her butt and its tip went in. He was moving back and forth, and
her butt was “kind of hurting.” She thought he was trying to put his penis in
her vagina. When he stopped trying to put it in her vagina, she pushed away
from him and went to her sister’s bedroom. She was pulling her pants up as
she went. Aaliyah was still in the bathroom.
Stewart got off the couch, followed Doe 1 and stood in the doorway
smacking his lips and saying, “come on, [Doe 1].” Aaliyah could be heard
trying to move the door and come out of the bathroom, and Stewart went
back to the living room.
Doe 1 testified that she did not initially tell her mother or sister about
the incident because she was afraid of how they might react and whether
they would believe her. Stewart’s younger sister had accused him of
molesting her years earlier when she was about four years old, her family
had not believed her, and she had been beaten because of it. Doe 1 was also
concerned that her mother would tell her stepdad and brother, who were
overprotective of her and would probably do something to Stewart.
When Doe 1’s parents came home, her father noticed something was
wrong and asked her about it, but she said she was OK because she didn’t
want him to know about what happened. That night, she took a very long

9
shower because she “felt kind of dirty.” She slept on the floor of her sister’s
room that night. The next day, she went with Stewart, Aaliyah and their
mom to visit Stewart and Aaliyah’s aunt and cousin.
When Doe 1 returned to school the following week, she began acting out
and got in trouble with her teachers.
Doe 1’s mother testified that after the incident Doe 1 began taking long
showers, acted “empty” and never wanted to do anything except lay in her
room all the time. Teachers called her to report Doe 1 was struggling in
class, which was also unusual. On November 30, 2018, when Doe 1 was sent
home early from school, she told her mother about the sexual assault. She
was crying. Doe 1’s mother did not remember the details of what Doe 1 told
her. The next day, Doe 1’s mother took Doe 1 to the hospital.
Doe 1’s sister also testified that in the ensuing months Doe 1’s behavior
changed. She was uncharacteristically quiet and snappy and angry, was
taking long showers and “wasn’t happy anymore.” Doe 1 also testified that
during this period she felt more emotional, suffered from rapid mood swings
and had “a lot of anxiety.” She was uncomfortable leaving home and going to
school.
OPD officer Jimenez met Doe 1 at the Kaiser medical building in
Oakland, interviewed her and took a statement from her. When the
discussion turned to the abuse, Doe 1 became shy and uncomfortable and had
difficulty discussing the incident. Officer Jimenez felt Doe 1 was not being
completely open and didn’t want to discuss certain details. After the
interview, he took Doe 1 to Highland Hospital to undergo a SART exam.
Kristin Mancuso interviewed Doe 1 and performed the SART exam.
She performed the SART exam six days after the assault. She discovered
“significant traumatic injuries” to Doe 1’s genital area that were consistent

10
with “some type of penetration that stretched the hymen and tore it.” These
included erythema, or redness, on Doe 1’s peri-hymenal tissue, which can
indicate trauma. It also included two tears in Doe 1’s hymen that had not yet
healed, which meant they had happened recently.
The following day, Doe 1 went for an interview at the CALICO center,
where staff trained in forensic interviews of sex assault and child abuse
victims interviewed her. The interview was more detailed than the interview
conducted by police.
Doe 2 testified that Stewart sexually assaulted her on two occasions.
Doe 2, who did not know Doe 1, was a cousin of Stewart on her father’s side.
When she was younger, she had occasionally spent time at Stewart’s house,
and recalled being assaulted by him in a basement room of the house when
she was 11 years old. After other people left the room, Stewart asked her for
a “favor,” specifically, to put his penis in her mouth. She said no, but he kept
asking her three or four times until she agreed. He told her to sit on her
knees, then unzipped his pants and put his penis in her mouth. He moved
her head back and forth. At one point he reached down and touched her
underneath, in her vaginal area. He touched her on top of her vagina
underneath her underwear and was moving his finger.
When she tried to move away, Stewart took his penis out of her mouth,
bent her over, pulled down her pants, and put his penis inside her butt hole.
He was trying but she wasn’t sure it went in. He then put his penis back in
her mouth. She didn’t want his penis in her mouth. Afterward, he zipped up
his pants and left. Doe 2 felt confused, afraid and guilty, like it was half her
fault. She did not tell her mom about it at the time.
About three years later, when Doe 2 was 14, Stewart assaulted her
again. He was at her family’s home and was on the couch while she was

11
lying down on it watching television. Everyone else in the house was asleep.
Stewart went to Doe 2’s bedroom and called for her. She went to her
bedroom. No one else was in the bedroom besides him. He sat on her bed
and asked her to sit in a chair in front of him. He asked if she remembered
what she “did to him back at his house,” and when she said she did, asked
her to do it again. She refused and, as she then looked out the window, he
reached under her shirt, inside her bra, grabbed her breast and began
sucking on it. She started to cry and he stopped, asked if she was okay, said
he was sorry and left the room. Again, she felt guilty.
Doe 2 didn’t tell her mother about either incident until a few months
after her sister died in 2016, when Doe 2 was 15. She didn’t tell her mom
everything that happened. She only told her family about what happened
when she was 14. Weeks later, when her brother told her mom about Doe 1’s
allegations, her mom asked her if Stewart had done “anything else to you”
and if he had asked her to suck his penis. She told her mother that he did.
Her brother said Stewart had “rape[d] that girl.” Her mother asked him if it
was “positive” and he said it was, which Doe 2 took to mean that test results
showed Stewart did it. Although she knew they were talking about Stewart,
she didn’t know the girl they were talking about, Doe 1.
Doe 2’s mother reported what Doe 2 had told her to the police. When
police interviewed Doe 2, she told them about Stewart putting his penis in
her mouth but not about his putting his penis in her butt or the second time
he put his penis in her mouth because the memories were still coming back to
her. The first time she ever told anyone about Stewart putting his penis in
her butt was when she told the deputy district attorney. She didn’t tell the
police or the deputy district attorney about him touching and rubbing her
vagina.

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 Doe 2’s mother testified. She said her son, who is older than Doe 2,
spent time with Stewart when the two were growing up. Her son and
Stewart were about the same age. One of her daughters died in front of
Stewart’s home in August 2016. It was the fall of 2016 when she first learned
that something sexual had happened between Doe 2 and Stewart when Doe 2
was 14. Sometime after that conversation, police called her about another
girl who was victimized and said they had heard about Doe 2. She then
asked Doe 2 if Doe 2 had told her everything that happened. In the second
conversation, Doe 2 told her about what Stewart had done to her when she
was 11. Doe 2’s mother never called the police about what Stewart did to
Doe 2. The police called her in December. She discussed trying to arrange a
time for Doe 2 to talk to them but was not able to arrange a time. Later, she
learned police had talked with Doe 2 at school.
Doe 2’s mother further testified that around the time police called her,
Doe 1’s father also called her. She also talked with Doe 1’s mother. She
never spoke with Doe 1.
Officer Rivera testified about her investigation of the case, including
her contacts with Doe 2’s mother and her interview of Doe 2.
Stewart testified in his own defense, denying he had sexually assaulted
Doe 1. He remembered being at Doe 1’s house and playing with his phone
while she and Aaliyah watched a movie. He did not recall Aaliyah leaving to
go to the bathroom. He slept there that night, and the next morning “was
just a regular morning.” The next day, Doe 1 went with him, his two sisters,
and his mom to Latasha H.’s house. He went home that night, but Aaliyah
stayed with Doe 1’s family and went to Reno with them the following day. On
the way back, Doe 1’s family dropped Aaliyah off at his house in Sacramento,

13
and they described snow, which he had never seen. He first learned of
Doe 1’s allegations about a week later.
Stewart also denied he ever assaulted Doe 2. He had been in juvenile
hall and then a group home for much of 2015, the year in which the second
incident with Doe 2 allegedly occurred.
Stewart’s sister, Aaliyah, testified about the night of her brother’s
alleged assault on Doe 1. She remembered getting up to use the bathroom at
some point that evening but told police she was only gone for about two
minutes. She did not recall Doe 1 being upset or taking a long shower that
evening. Doe 1 said she wanted to go with Aaliyah, Stewart and the others to
their Aunt Latasha’s house the next day. Aaliyah did not remember
anything different about Doe 1 the day after that, when they went to Reno.
Claire Nelli testified that she was a registered nurse certified to
conduct SART examinations and consult on sexual assault cases. She had
conducted SART exams for more than 20 years. She did not examine Doe 1
but reviewed the notes and photographs prepared by the SART examiner.
She did not see any hymenal tears on the photographs, which in her opinion
showed only normal irregularities. It could be difficult to capture images of
such tears. She saw areas of erythema in the photographs but opined that it
did not have clinical significance and could have been caused by anything or
nothing at all. The blue dye in the some of the photographs should not be
used on the hymen area because it gets diffused, does not uptake correctly
and can produce false positives. The dark blue lines in two areas of the
hymen on the photos were not significant and could have been just dye in the
folds of the hymen. She could not see tears in the hymen on the other photos.
On rebuttal, Brandi Macias testified that he was a sheriff’s technician
who monitored jail calls at one of the Alameda County jails. He identified

14
compact discs (CDs) containing calls placed by Stewart while he was at the
jail, which were further identified by Officer Rivera and played for the jury.
The CD containing the calls is not included in the record on appeal, but
closing arguments reflect that the People interpreted Stewart’s comments in
those calls as an attempt to create an alibi, specifically, to persuade his
mother and others to say he was not at Doe 1’s house on the date of the
incident.
III.
The Verdict
After deliberating over the course of two days and making several
requests for readbacks and other information, the jury returned a split
verdict. It found Stewart guilty of forcible sexual penetration of a minor 14
or older, guilty of forcible rape of a minor 14 or older, not guilty of sodomy by
use of force but guilty of the lesser included offense of battery.
DISCUSSION
I.
Brady Obligations
As interpreted in Brady, “[t]he prosecution has a duty under the
Fourteenth Amendment’s due process clause to disclose evidence to a
criminal defendant when the evidence is both favorable to the defendant and
material on either guilt or punishment.” (In re Miranda (2008) 43 Cal.4th
541, 575.) “ ‘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.’ ” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696,
710 (Johnson).)

15
 “ ‘Evidence is “favorable” if it . . . helps the defense or hurts the
prosecution, as by impeaching one of the prosecution’s witnesses.’ [Citation.]
‘Evidence is “material” “only if there is a reasonable probability that, had [it]
been disclosed to the defense, the result . . . would have been different.” ’
[Citations.] Such a probability exists when the undisclosed evidence
reasonably could be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” (In re Miranda, supra, 43 Cal.4th at
p. 575.) “In determining whether there is a reasonable probability that
disclosure of such evidence would have yielded a different outcome
under Brady, ‘ “the court must consider the nondisclosure dynamically,
taking into account the range of predictable impacts on trial strategy.” ’ ”
(People v. Gaines (2009) 46 Cal.4th 172, 184 (Gaines).)
“The prosecution’s constitutional duty to disclose all substantial
material evidence favorable to an accused ‘extends to evidence which may
reflect on the credibility of a material witness. [Citation.] . . . “[S]uppression
of substantial material evidence bearing on the credibility of a key
prosecution witness is a denial of due process . . . .” [Citation.]’ [Citation.]
Thus, ‘[w]hen the “reliability of a given witness may well be determinative of
guilt or innocence,” nondisclosure of evidence affecting credibility’ may
require a new trial. (Giglio v. United States (1972) 405 U.S. 150, 154.)”
(People v. Hayes (1992) 3 Cal.App.4th 1238, 1244-1245, fns. omitted.)
“The prosecution need not affirmatively suppress evidence favorable to
the defense in order for there to be ‘suppression’ under Brady. A good faith
failure to disclose, irrespective of the presence of a defense request for the
materials, may constitute the ‘suppression’ necessary to establish a Brady
violation. [Citation.] Nor does the evidence necessarily have to be in the
direct possession of the prosecution. As the Supreme Court has explained,

16
‘[T]he 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. But whether the prosecutor succeeds or fails in meeting this
obligation (whether, that is, a failure to disclose is in good faith or bad faith,
[citation]), the prosecution’s responsibility for failing to disclose known,
favorable evidence rising to the level of importance is inescapable.’ ” (People
v. Uribe (2008) 162 Cal.App.4th 1457, 1475, fn. omitted.)
In reviewing a claim that the prosecutor violated due process under
Brady, we apply independent review to conclusions of law or of mixed
questions of law and fact, such as the elements of a Brady claim. “Because
the referee [hearing the matter] can observe the demeanor of the witnesses
and their manner of testifying, findings of fact, though not binding, are
entitled to great weight when supported by substantial evidence.” (People v.
Salazar (2005) 35 Cal.4th 1031, 1042.)
A. The Government Suppressed Evidence.
Stewart contends the prosecution violated its obligations under Brady
by withholding a police report containing impeachment evidence concerning a
key prosecution witness, namely Doe 2. He acknowledges that he received
the impeachment evidence, albeit in the form of a CPS report rather than the
police report, from the juvenile court in response to a petition he filed under
Welfare and Institutions Code section 827 (section 827). However, he did not
receive the information until after the trial ended, and argues the prosecutor
was required by Brady either to turn the report over to the defense or to
provide it to the trial court for in camera review to determine whether it
contained Brady material.
The People argue that because the prosecutor notified defense counsel
of the existence of the report in initial discovery, thus allowing Stewart the

17
opportunity to petition that court under section 827 for access to any
potential exculpatory or impeachment evidence concerning Doe 2, the
requirements of Brady were satisfied. The People argue further that the trial
court lacked the authority to conduct an in camera review of the juvenile
records because section 827 confers exclusive authority on the juvenile court
to decide whether to grant access to such records.
We do not agree entirely with either party. We do not agree with
Stewart that the prosecutor was required to turn the police report over to him
or that the trial court was required to review the report (or other juvenile
records) in camera. Moreover, we do not agree with the People that the
prosecutor’s disclosure of notes reflecting the existence of a police report
documenting Doe 2’s allegation of sexual abuse by a party other than Stewart
satisfied its Brady obligation simply because Stewart could have sought the
report from the juvenile court. Rather, we conclude that while the prosecutor
could have satisfied its obligation by informing the defense that the police
report contained Brady material, its disclosure neither expressly nor
implicitly indicated that was the case.
The parties discuss three cases that bear on a prosecutor’s Brady
obligation in the context of confidential records.
In Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), the high court
considered “whether and to what extent a State’s interest in the
confidentiality of its investigative files concerning child abuse must yield to a
criminal defendant’s Sixth and Fourteenth Amendment right to discover
favorable evidence.” (Id. at pp. 42-43.) The defendant had been charged with
committing rape and other crimes of a sexual nature on his 13-year-old
daughter. (Id. at p. 43.) Before trial, he sought to subpoena records relating
to his daughter maintained by a social services agency charged with

18
protecting minors. The agency refused to comply, contending the records
were privileged under state law. (Ibid.) The defendant made a motion in the
trial court to require production of the records, contending they might contain
names of favorable witnesses and other exculpatory evidence and specifically
requested a medical report he believed was prepared during the
investigation. (Id. at p. 44.) The trial court did not examine the entire file,
relied on the agency’s representation that there was no medical report and
denied the defendant’s motion. (Ibid.)
The defendant was convicted at a trial in which his daughter was the
main prosecution witness and appealed, claiming the failure to provide the
records violated his rights under the confrontation and due process clauses.
(Ritchie, supra, 480 U.S. at pp. 44-45.) After addressing its jurisdiction and
rejecting the defendant’s confrontation clause argument, the court turned to
the due process challenge under Brady. (Ritchie, at pp. 57-61.) It rejected
the state’s argument that the defendant’s Brady rights were trumped by the
state’s confidentiality requirement. Observing that the state statute did not
prohibit disclosure in all circumstances, the court declined to interpret it to
preclude disclosure of information that a court determined was “ ‘material’ to
the defense of the accused.” (Ritchie, at p. 58.) It affirmed the state high
court’s remand of the case but rejected that court’s determination that the
defense had a right to review all the files. (Id. at pp. 58-59.) The defendant’s
interest in a fair trial could be protected by requiring an in camera review by
the trial court. (Id. at p. 60.)
Johnson, supra, 61 Cal.4th 696, which the parties also discuss, is
similar to Ritchie but involved confidential personnel records. The issue in
Johnson was whether the prosecutor satisfied Brady by informing the
defendant there was potential Brady material in police department personnel

19
files regarding officers who were witnesses in the case. (Johnson, at pp. 706,
716.) Our high court held there was no Brady violation because, once having
been made aware of the existence of potentially relevant officer personnel
records, the defendant could have sought their disclosure by making a
Pitchess motion.6
The prosecution did not have the records in its possession and would
have had to file its own Pitchess motion to obtain them. (Johnson, supra,
61 Cal.4th at p. 705.) In holding the prosecutor’s Brady obligation was
satisfied when it disclosed the existence of the records, the court observed
that “criminal defendants and the prosecution have equal ability to seek
information in confidential personnel records, and . . . such defendants, who
can represent their own interests at least as well as the prosecution and
probably better, have the right to make a Pitchess motion whether or not the
prosecution does so . . . .” (Johnson, at p. 705.)
The court held that “ ‘[t]he prosecutor had no constitutional duty to
conduct defendant’s investigation for him. Because Brady and its progeny
serve “to restrict the prosecution’s ability to suppress evidence rather than to
provide the accused a right to criminal discovery,” the Brady rule does not
displace the adversary system as the primary means by which truth is
uncovered. [Citation.] Consequently, “when information is fully available to
a defendant at the time of trial and his only reason for not obtaining and
presenting the evidence to the Court is his lack of reasonable diligence, the
defendant has no Brady claim.” ’ ” (Johnson, supra, 61 Cal.4th at p. 715.)
Rather, the court concluded, “permitting defendants to seek Pitchess

6 Under Pitchess v. Superior Court (1974) 11 Cal.3d 531, a criminal
defendant may request a trial court to review law enforcement officers’
confidential personnel records in camera and provide any exculpatory records
that would otherwise be confidential. (Johnson, supra, 61 Cal.4th at p. 705.)

20
discovery fully protects their due process right under Brady, . . . to obtain
discovery of potentially exculpatory information located in confidential
personnel records. The prosecution need not do anything in these
circumstances beyond providing to the defense any information it has
regarding what the records might contain—in this case informing the defense
of what the police department had informed it.” (Id. at pp. 721-722.)
Stewart argues that under Johnson, the trial court here should have
reviewed in camera the police report held by the prosecution, and then
disclosed to the defense any Brady material the court uncovered. If the
records here were confidential law enforcement personnel records governed
by Pitchess and the Evidence Code provisions adopted to implement it, we
would agree. (See Evid. Code, §§ 1043, 1045; Johnson, supra, 61 Cal.4th at
pp. 705-706.) At issue here, however, are confidential juvenile records
governed by the Welfare and Institutions Code. Such records are subject to a
statutory procedure that is different from Pitchess procedures that govern the
police personnel records addressed in Johnson.
Under section 827, responsibility for confidential juvenile files is placed
on the juvenile court, not the trial court. Unlike Pitchess motions, section 827
permits prosecutors to inspect juvenile files without a court order (see § 827,
subd. (a)(1)(B)), but neither a prosecutor nor any other person authorized to
inspect without a court order is permitted to disseminate confidential
information in juvenile files to a person not so authorized. (Id., subd. (a)(4).)
Instead, a person not listed among the categories of people who may inspect
such records without a court order must petition the juvenile court to obtain
access to them. (Id., subd. (a)(3)(A); see also id., subd. (a)(1)(Q).)
Applying Johnson’s reasoning, section 827 procedures should apply to a
Brady request involving information contained in juvenile records. That

21
conclusion is further supported by J.E. v. Superior Court (2014)
223 Cal.App.4th 1329 (J.E.), the third case the parties discuss, which was
cited with approval in Johnson. (Johnson, supra, 61 Cal.4th at pp. 717-718.)
The Court of Appeal in J.E. addressed Brady obligations with regard to
confidential juvenile records and held it is the juvenile court’s responsibility
to conduct a Brady review of juvenile files.
In J.E., the court addressed whether a juvenile in a delinquency case
was entitled to have the juvenile court inspect in camera a prosecution
witness’s juvenile dependency file for Brady material. (J.E., supra,
223 Cal.App.4th at p. 1332.) The juvenile court had rejected the ward’s
petition for in camera review, ruling the prosecutor rather than the court
should review the records. (Ibid.) The Court of Appeal reversed, holding that
“when a petitioner files a section 827 petition requesting that the court
review a confidential juvenile file and provides a reasonable basis to support
its claim that the file contains Brady exculpatory or impeachment material,
the juvenile court is required to conduct an in camera review.” (Id. at
p. 1333.)
Citing cases holding Brady may require disclosure “even when the
evidence is subject to a state privacy privilege,” the appellate court observed,
“[a]lthough the government’s Brady obligations are typically placed upon the
prosecutor, the courts have recognized that the Brady requirements can also
be satisfied when a trial court conducts an in camera review of documents
containing possible exculpatory or impeachment evidence.” (J.E., supra,
223 Cal.App.4th at pp. 1135-1336.) It next turned to section 827. “Entirely
distinct from prosecutorial disclosure obligations, the Legislature has enacted
a statutory scheme specifically governing access to juvenile records. There is
a strong public policy of confidentiality of juvenile records [citation], and

22
section 827 et seq. set forth detailed provisions to protect this
confidentiality. . . . [¶] Section 827 also contains provisions that permit
unauthorized persons to directly petition the juvenile court for access to the
confidential records. [Citations.] Under section 827, the juvenile court has
‘exclusive authority to determine whether and to what extent to grant access
to confidential juvenile records’ to unauthorized persons. [Citation.] This
statutory scheme reflects a legislative determination that the juvenile court
has ‘both the “ ‘sensitivity and expertise’ to make decisions about access to
juvenile records.” ’ ” (J.E., at p. 1337.) Ultimately, the court concluded, “the
Legislature’s placement of trust in the juvenile court to serve as the
doorkeeper to these confidential files supports that the court should conduct a
Brady review upon request by a petitioner.” (Id. at p. 1338.)
J.E., like Johnson, held that the combination of prosecutors’ disclosure
of the existence of Brady material in confidential records and the availability
of statutory in camera review procedures was sufficient to satisfy the
government’s Brady obligations. Whereas the statutory Pitchess procedure
discussed in Johnson entails review by the trial court, the section 827
procedure involved in J.E. requires review by the juvenile court. Based on
these cases, we conclude the government’s Brady obligations with respect to
juvenile records are satisfied if the prosecutor informs the defendant that
there is Brady material in the relevant files and the defense can then avail
itself of juvenile court review of the relevant files under section 827 to
identify and turn over to the defense any exculpatory or impeachment
material.
Based on section 827, J.E. and other cases, we do not agree with
Stewart that the trial court was required to conduct the Brady review of the
OPD report regarding Doe 2. The courts have consistently interpreted

23
section 827 as conferring “exclusive authority” on juvenile courts to decide
who, other than persons expressly authorized in that statute, may have
access to juvenile case files. (J.E., supra, 223 Cal.App.4th at p. 1337; T.N.G.
v. Superior Court (1971) 4 Cal.3d 767, 778 [“the Juvenile Court Law and
particularly Welfare and Institutions Code sections 625, 676, 781, and 827
establish the confidentiality of juvenile proceedings and vest the juvenile
court with exclusive authority to determine the extent to which juvenile
records may be released to third parties”]; In re Elijah S. (2005)
125 Cal.App.4th 1532, 1542; In re Keisha T. (2016) 38 Cal.App.4th 220, 231.)
Stewart had the right to petition for in camera review and access to any
exculpatory and impeachment material contained in Doe 2’s juvenile files.
But the statutory mechanism the Legislature provided for such review,
section 827, placed responsibility on Stewart to file a petition and on the
juvenile court to conduct the review.
However, while we agree with the People that they could have satisfied
their Brady obligation by informing the defense of the existence of potential
impeachment material in the police report, making a copy of the OPD
available for the juvenile court’s review, and referring Stewart to the
section 827 procedure to obtain it, that is not what they did in this case. In
Johnson, the prosecutor did not have possession of the police officer personnel
records at issue and did not know the contents of those documents. In that
case, the People satisfied their Brady obligation by informing the defense
there might be Brady material in the testifying officers’ police personnel
records. Here, by contrast, as Stewart points out, “the prosecution held the
report in her file that contained the impeachment material on Doe 2.” The
People thus knew what the police report contained, and as they admitted in

24
their opposition to the new trial motion, it contained potential impeachment
material pertaining to Doe 2.
The People disclosed certain investigative notes and the existence of a
police report (but not the actual report) about a prior alleged molestation of
Doe 2 by someone other than Stewart, and the notes reflected that those
allegations had been investigated and turned over to the Juvenile Authority,
and the matter had been closed. But the People did not disclose, either
directly or indirectly, that the police report (and possibly other juvenile
records) contained information that could be used to impeach Doe 2 regarding
her testimony about Stewart’s molestation. The notes the prosecutor
produced suggested the prior molestation incident was far less relevant than
the police report (and the CPS reports eventually provided to Stewart)
revealed, namely, that Doe 2 had made prior and possibly conflicting
allegations of sexual abuse by another cousin; that she admitted having
engaged in sexual acts with the cousin, who was close in age to her; that she
engaged in these acts over a period of three or four years, beginning when she
was eight or nine and continuing until she was 11; that these included the
same acts she later accused Stewart of perpetrating; that both her brother
and cousin told police she had participated willingly; and that her allegations
about the earlier abuse were determined to be “unfounded.”
While the People were not required to turn the police report over to the
defense, and indeed may have been legally barred by section 827 from doing
so without a court order (see T.N.G. v. Superior Court, supra, 4 Cal.3d at
pp. 780-781 [“The police department . . . may clearly retain the information
that it obtains from the youths’ detention, but it must receive the permission
of the juvenile court pursuant to section 827 in order to release that
information to any third party, including state agencies”]; Wescott v. County

25
of Yuba (1980) 104 Cal.App.3d 103, 105-110 [party seeking such records must
file a petition under section 827]), that did not absolve them of their
disclosure duties. Because the People were aware of the contents of the police
report and its potential value to impeach a key prosecution witness, they
should have disclosed that the report in fact contained potential
impeachment material. Without that information, the defense could not
assess the usefulness of the police report. Unaware that the People’s key
witness had been sexually active from a young age, was accused of having
been a willing participant in those acts, and had engaged with another child
in the same acts she accused Stewart of perpetrating without her consent, the
defense could only have speculated as to whether the records would yield
exculpatory or impeaching evidence. Had defense counsel been told that the
records contained potential impeachment material pertaining to Doe 2, she
would have had strong motivation to obtain the records, at least once the
prosecutor informed her of the intent to call Doe 2 as a witness under
section 1108.
In short, as Johnson directs, “[t]he prosecution need not do anything in
these circumstances beyond providing to the defense any information it has
regarding what the records might contain . . . .” There, it was enough for the
prosecutor to “inform[] the defense of what the police department had
informed it.” (Johnson, supra, 61 Cal.App.4th at pp. 721-722.) Here, the
People should have apprised the defense, at minimum, of the fact that the
OPD report contained potential impeachment material pertaining to Doe 2.
Had it done so, defense counsel would have been able to make an informed
decision, once it became clear that the prosecutor intended to call Doe 2 as a
propensity witness and the court granted its motion to do so, whether to seek
a continuance to waive Stewart’s speedy trial right so as to ensure the

26
defense received the impeachment material from the juvenile court in time to
use it at trial.
B. The Suppressed Evidence Was Material.
“ ‘ “The suppression of substantial material evidence bearing on the
credibility of a key prosecution witness is a denial of due process within the
meaning of the Fourteenth Amendment.” ’ ” (People v. Gutierrez (2013)
214 Cal.App.4th 343, 348.) Here, the prosecution suppressed evidence
bearing on the credibility of a key witness, namely, Doe 2. To prevail on his
Brady claim, Stewart must also show the information in the police report was
“material” within the meaning of Brady.
Our Supreme Court discussed the standard for Brady materiality in In
re Brown (1998) 17 Cal.4th 873 (Brown). “[I]n Kyles [v. Whitley (1995)
514 U.S. 419], the court reemphasized four aspects articulated in [United
States v.] Bagley [1985] 473 U.S. 667, critical to proper analysis of Brady
error. First, ‘[a]lthough the constitutional duty is triggered by the potential
impact of favorable but undisclosed evidence, a showing of materiality does
not require demonstration by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in the defendant’s
acquittal (whether based on the presence of reasonable doubt or acceptance of
an explanation for the crime that does not inculpate the defendant).
[Citations.] Bagley’s touchstone of materiality is a “reasonable probability” of
a different result, and the adjective is important. 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. [Citation.][7]

7In the context of harmless error review, the courts have held that the
reasonable probability standard does not mean “more likely than not, but

27
 “Second, ‘it is not a sufficiency of evidence test. A defendant need not
demonstrate that after discounting the inculpatory evidence in light of the
undisclosed evidence, there would not have been enough left to convict. The
possibility of an acquittal on a criminal charge does not imply an insufficient
evidentiary basis to convict. One does not show a Brady violation by
demonstrating that some of the inculpatory evidence should have been
excluded, but by showing that the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine
confidence in the verdict.’ [Citation.]
“Third, ‘once a reviewing court applying Bagley has found
constitutional error there is no need for further harmless-error review.’
[Citation.] The one subsumes the other. [Citation.]
“Fourth, while the tendency and force of undisclosed evidence is
evaluated item by item, its cumulative effect for purposes of materiality must
be considered collectively.” (Brown, supra, 17 Cal.4th at pp. 886-887.)
Doe 2, regarding whom the evidence was suppressed, was the victim
not of the charged offenses but of other offenses by Stewart that the People
used to show his propensity to commit sexual offenses. To assess the
materiality of the suppressed information, we will begin by assessing the
importance of Doe 2’s testimony at trial. We will then consider the
impeachment value of the information concerning Doe 2’s prior allegations of
sexual abuse. Finally, we will evaluate the degree to which the denial of

merely a reasonable chance, more than an abstract possibility.” (People v.
Sanchez (2014) 228 Cal.App.4th 1517, 1534-1535.) This standard has also
been applied to motions for new trial. (People v. Soojian (2010)
190 Cal.App.4th 491, 519-520; People v. Uribe, supra, 162 Cal.App.4th at
pp. 1472-1473 [new trial motion based on Brady violation].)

28
access to the impeachment information to the defense undermines our
confidence in the fairness of Stewart’s trial.
There is no question that the most important witness at the trial was
Doe 1, the victim of the sexual molestation for which Stewart was on trial.
As we have discussed, she testified about Stewart’s sexual acts at length.
Besides her testimony, there was corroborating evidence, including her
mother’s and sister’s testimony about the changes in her affect and behavior
after the incident, a nurse’s testimony that a SART exam showed tears and
redness in her hymen that were consistent with the assault Doe 1 described
and, as we will further discuss, Doe 2’s testimony about Stewart’s sexual
abuse perpetrated on her.
Doe 1’s credibility was challenged to some degree by the defense
because of discrepancies between Doe 1’s statements at various times (her
statements to her mother, a police officer, the SART examiner and the
forensic interviewer, and her testimony at the preliminary hearing and at
trial). The cross-examination also focused on her failure to yell or run away
or kick Stewart during the alleged assault, her return to the living room to sit
next to him later that evening, her choice to spend the following day with
Stewart and his family, and her failure to tell anyone about the assault
promptly after it occurred. The defense also drew attention to Doe 1’s
testimony during the preliminary hearing and statements to others that she
had “blacked out” during the incident.
After cross-examination, a juror asked the court how the jury should
handle inconsistencies between the preliminary hearing transcript and
Doe 1’s trial testimony and sought clarification about “the nature of

29
[Stewart’s] penis inside [Doe 1’s] vagina.”8 Another asked for clarification of
Doe 1’s testimony that the written statement the police officer prepared was
not read to Doe 1 before she signed it. Another asked if Doe 1 had had sex
before or after the incident. During deliberations, the jury requested to see a
stipulation concerning Doe 1’s mother’s statement about Doe 1 having
blacked out. It also requested a read-back of Doe 1’s “statement/testimony
about sodomy.”
Doe 2 was probably the second most important witness.9 Her
testimony provided powerful corroboration of Doe 1’s testimony by
demonstrating Stewart had a propensity to sexually assault younger girls.
We have already summarized Doe 2’s testimony that Stewart pressured
her to orally copulate him, sodomized her, and digitally penetrated her
vagina when she was 11 years old, and asked her to orally copulate him,
grabbed her breasts and put his mouth on them when she was 14. Not only
did the People call Doe 2, they called two additional witnesses to buttress her
testimony and to address Doe 2’s failure to report the incidents until years
after they occurred and her failure to report some of Stewart’s alleged acts
until shortly before trial. Doe 2’s mother testified about why she did not
report Stewart’s alleged abuse of Doe 2 to the police. The investigating
officer, Rivera, testified about Doe 2’s fearful and embarrassed demeanor
during Rivera’s interview of her, apparently to explain her admitted failure
to report to police that on the first occasion Stewart had touched her vagina,

8The trial court apparently permitted jurors to submit questions for
witnesses as they were testifying.
9 The SART examiner’s testimony was also important.

30
attempted to sodomize her and put his penis into her mouth a second time.10
The investigator also explained why there was no forensic interview of Doe 2
regarding Stewart’s alleged assaults.
Doe 2 was prominently featured in both the People’s opening statement
and their closing arguments. In her opening statement, the prosecutor
described in some detail Doe 2’s anticipated trial testimony that Stewart
sexually abused her. The prosecutor’s closing began with both Doe 1 and
Doe 2 and ended with both of them and contained many references to Doe 2.
The prosecutor began her closing this way:
“Two girls who harbored a shameful secret, sexual assault. Two girls
whose words of no meant nothing to the defendant. Two girls who were
younger and smaller than him. And, ladies and gentlemen, that is why we
have been here for the past few weeks, because of these two young girls.”
(Italics added.) The prosecutor ended her rebuttal by reminding the jurors
that a defendant can be convicted of a sexual assault crime “based on only
one witness,” but “we don’t have that in this case. We have all of these other
individuals and all of this other evidence to show you beyond a reasonable
doubt that not only was [Doe 1] victimized by the defendant, but so was
[Doe 2] and that the defendant has propensity to commit these sex crimes. . . .
[¶] And when you’re [Doe 2], the horror of all that is coming up in here and
telling strangers the first time, two different sexual assaults on two different
days that this defendant committed for the first time in front of a room full of
strangers. . . . [¶] . . . [¶] Ladies and gentlemen, the end of all of this, this
evidence, all of the testimony that you have heard from [Doe 1] and [Doe 2] is
clear, and when you go back in that deliberation room, I am asking you to use

10Rivera also testified that she was the investigating officer for Doe 1’s
case and briefly testified about the forensic interview of Doe 1.

31
each piece of evidence from the 923 form to [Doe 2’s] uncharged acts showing
the defendant’s propensity to commit sex crimes to the other witnesses who
corroborate the circumstantial evidence, to [Doe 1’s] own words, and put all of
that together in a respectful way so that you can look at each of these verdict
forms as to Count One, Count Two and Count Three and you deliver verdicts
of guilty based on all the evidence.” (Italics added.)11
In short, Doe 2 was a key witness for the prosecution. Not surprisingly,
jurors asked a number of questions about her during the trial, such as, “Is
any investigation being carried on [Doe 2’s] case independent of [Doe 1’s]
case?” and, “When did [Doe 2] first report her sexual encounter with the
defendant[?]” During deliberations, the jury requested a copy of a stipulation
about Doe 2’s recount of events and asked, “When was the first mention of
sodomy by [Doe 2] (to her mom/police/DA etc.)?”
Turning to the suppressed information about Doe 2, its potential
impeachment value to the defense, or lack thereof, is a critical aspect of
materiality. As we have already explained, the CPS report and the police
report outlined sexual conduct between Doe 2 and a cousin other than
Stewart who was a year older than her (referred to as “Cousin D”). The
sexual acts began when she was eight or nine years old and continued at
least until she was 11. It included acts that were the same or similar to those
she accused Stewart of having committed when she was 11, namely oral
copulation, vaginal penetration and sodomy. Similar to her allegations
regarding Stewart, she told the investigator she had not resisted Cousin D’s

11 The jury was given a propensity evidence instruction that if it found
by a preponderance of the evidence that Stewart forcibly orally copulated and
sexually battered Doe 2, it could conclude that he was disposed to commit
sexual offenses and was likely to commit and did commit the charged
offenses.

32
sexual abuse (in his case because he had threatened to tell her mother). She
also said her brother had caught her engaging in sexual acts with Cousin D
twice. Her brother and Cousin D told the investigator that Doe 2 was a
willing participant, and Cousin D admitted only to oral copulation. Doe 2’s
allegations about Cousin D were reported and investigated in 2012, and the
matter was then closed. The description she provided the investigator
referred to in the OPD and CPS reports was entirely different from a report
contained in the investigator notes the prosecution had produced to the
defense, involving an adult stranger who she woke up to find in her bed while
staying at another cousin’s house.
Stewart argues this suppressed information would have provided
“fertile areas” for impeachment of Doe 2. In particular, he contends, defense
counsel could have used the timing and content of the reporting about
Cousin D to suggest Doe 2 had “confabulated the incidents with [Stewart]
after hearing the allegations made by [Doe 1] because it triggered her own
unresolved trauma.” “She stated she did not tell the police the entire story
because ‘memories were still coming back to me’ at the time of her interview
in December of 2016. What memories were coming back to her? Were they
those with cousin ‘D’ or [Stewart]?” The acts Doe 2 accused Stewart of
committing were very similar to those she had reported regarding Cousin D,
namely, oral copulation, vaginal penetration and sodomy.
This evidence could have been particularly powerful because Doe 2 or
her mother reported the incidents with Cousin D in 2012, when Doe 2 was 11
years old, which was her age at the time appellant allegedly induced her to
orally copulate him, rubbed her vagina with his fingers and put his penis in
her “butt.” Yet neither she nor her mother reported Stewart’s alleged abuse
in 2012 or at all, until four years later, and only after they heard about

33
Doe 1’s allegations. Further, even when she did report it in 2016, she
reported oral copulation, but not vaginal touching or sodomy. She testified
she did not report the entire story to police “[b]ecause the memories were still
coming back to [her].” The defense could have argued, with some force, that
Doe 2 and her mother did not report the alleged abuse by Stewart—even
though, near in time to when she said he first abused her, they reported
similar abuse by Cousin D—because the alleged abuse by Stewart never
happened. The defense could have suggested she was either confusing one
cousin with the other or not being truthful. Jurors might have been inclined
to question Doe 2’s memory or credibility, given the degree of similarity
between her claims of abuse by Stewart and those she had made earlier
about her other cousin.12 The same is true of the fact that Doe 2’s reports of
abuse by Stewart were made belatedly and had evolved and expanded over
time.
At oral argument, defense counsel suggested an additional way
Stewart’s trial counsel could have used for impeachment purposes the conflict
between Doe 2’s 2012 claims of ongoing abuse by Cousin D and her 2016
report to police. In 2016, the only sexual abuse Doe 2 initially reported to

12The similarities extended beyond the acts Doe 2 accused Cousin D
and Stewart of committing (oral copulation, vaginal penetration and sodomy)
to details about the incidents. For example, Doe 2 testified that Stewart told
her to sit on her knees and then put his penis in her mouth. Notes attached
to the police report state that in her forensic interview Doe 2 stated, as to one
of the incidents with Cousin D, that Cousin D told her to “get on your knees”
before putting his penis in her mouth. At trial she also testified that when
she was 11, after she orally copulated him, Stewart “bent me over and pulled
[her] pants down” and “put his penis inside of [her] butt hole.” The notes of
her forensic interview indicate she said that after she refused Cousin D’s
demand that she “let me put my wiener in your butt,” Cousin D “turned [her]
around, pulled [her] pants down, [and] put [his] penis in her butt.”

34
police by anyone other than Stewart involved a stranger at her cousin
Jeremy’s house,13 and this account “differed significantly” from her 2012
report of molestation by Cousin D, who she alleged committed acts
“remarkably similar” to those she alleged against Stewart. These two
previous claims made by Doe 2 could have affected her credibility if defense
counsel had elicited from her that the stranger incident was something she
fabricated rather than revealing the incidents with Cousin D. Alternatively,
if she omitted to tell police in 2016 about the latter incidents, the defense
could have suggested she was dishonest. Or finally, if she had testified that
all three allegations of abuse, against the stranger, cousin D and Stewart,
had in fact occurred, the defense could have argued she had a pattern of
making such allegations and that none of them were credible.
Yet another way in which the defense could have used the suppressed
evidence to challenge Doe 2’s credibility concerns her testimony implying she
had not previously experienced sexual activity. For example, when asked
“how did the area of your vagina feel as that was happening?” she responded,
“I was new to it, so it felt weird.” Yet the suppressed CPS report indicates
she accused Cousin D of vaginal penetration on multiple occasions. She
testified that when Stewart’s penis was in her mouth during the first
incident, she felt “kind of confused and afraid.” She “didn’t know what was
going on” “[be]cause at that age I didn’t know anything about stuff like that.”
She testified that when defendant asked her to orally copulate him again
when she was 14 and she told him “no,” she felt “scared,” and when he sucked

13 This description of the prior event is the one the People gave to the
defense prior to trial. In their motion to admit Doe 2’s testimony under
Evidence Code section 1108, the People described Doe 2’s alleged prior abuse
as involving an unknown man who asked her to touch his penis while she
was spending the night at her cousin’s house.

35
on her breast, she “started to cry.” Yet, according to the CPS report and OPD
report, she had previously reported orally copulating Cousin D on several
occasions and being caught by her brother doing so. The defense could have
used the evidence of her prior sexual activity, coupled with the evidence that
she engaged in it with Cousin D voluntarily,14 to suggest she was being less
than truthful in portraying herself as “new to” sexual activity and “confused
and afraid.”
We do not mean to suggest by the foregoing discussion that Doe 2 was
untruthful at trial. It is not within the scope of our role as an appellate court
to assess witness credibility, and we do not do so here. Our point is simply
that the juvenile records pertaining to Doe 2 that the prosecutor suppressed
and that the defense received only after the trial concluded could have been
used by the defense to raise questions about her credibility.
The People characterize Doe 2 as a “collateral witness” and argue that
even if the jury had found her not credible, Stewart’s “guilt was . . . firmly
established by other evidence.” We cannot agree. Certainly, the evidence,
even without Doe 2, would have been sufficient to sustain the verdict. But
that is not the test. “The possibility of an acquittal on a criminal charge does
not imply an insufficient evidentiary basis to convict.” (In re Brown, supra,
17 Cal.4th at p. 887.) Doe 1’s testimony along with other evidence at trial
was not so strong that rational jurors could not have found reasonable doubt.
Further, the People argued in their motion to admit Doe 2’s testimony that
her testimony was “powerful evidence of [Stewart’s] propensity to commit
sexual crimes against the victim[] in this case” and “highly relevant in

14 The police report included a statement from Doe 2’s younger female
cousin stating that she saw Doe 2 kissing Cousin D’s stomach and penis and
threatened to “tell” but that Doe 2 “said not to because he was her boyfriend.”

36
showing that he sexually assaulted [Doe 1].” (Italics added.) And indeed it
was.
If the jury had found Doe 2 not credible and rejected her testimony
altogether, it would have had to rely on Doe 1’s testimony and the other,
weaker, corroborating evidence alone. To be sure, that evidence was
sufficient to support the conviction, but that is not the relevant question.
Rather, the question is whether in the absence of the suppressed
impeachment evidence, Stewart received a fair trial, that is, a trial resulting
in a verdict worthy of confidence.
We cannot say that he did. Propensity evidence was excluded for three
centuries under the common law “not because it has no appreciable probative
value, but because it has too much.” (People v. Alcala (1984) 36 Cal.3d 604,
631.) In 1995, the Legislature adopted Evidence Code section 1108,
abrogating the common law rule with respect to sex offenses, because such
offenses are “usually committed in seclusion without third party witnesses or
substantial corroborating evidence.” (People v. Falsetta (1999) 21 Cal.4th
903, 911, 915.) While defendant moved in limine to exclude Doe 2’s testimony
in the trial court, defendant does not here challenge the trial court’s decision
to admit that testimony. He does challenge the suppression of impeachment
evidence that could have undermined the credibility of Doe 2’s otherwise
powerful propensity testimony. In our view, the suppression of that evidence
compromised the fairness of defendant’s trial to a degree that undermines
confidence in the result.
II.
The Trial Court Erred in Denying Stewart’s
Motion for New Trial.
Stewart’s motion for new trial was made on two grounds, the statutory
ground of newly discovered evidence and the non-statutory ground that the

37
prosecution violated his rights under Brady.15 For reasons we shall discuss,
we conclude that the trial court erred in denying the motion for new trial
based on the People’s improper suppression of Brady material and therefore
need not reach the newly discovered evidence ground.
The trial court denied the motion for new trial that Stewart filed after
he received the CPS reports on the ground that the evidence was not
material. It would not have “rendered a different result probable on retrial,”
the court reasoned, because the limited exceptions for admission of past
sexual acts evidence set forth in Evidence Code sections 1103,
subdivision (c)(1) (evidence of past sexual conduct by complainant offered to
prove consent in juvenile sex crime prosecution) and 782 (evidence of past
sexual conduct by complainant or section 1108 witness offered to challenge
credibility) were subject to the balancing test of Evidence Code section 352.
The court’s assessment under section 352 was that “to resolve the issue as to
whether [Stewart’s sexual acts] [were] consensual or nonconsensual by
[Doe 2] . . . would simply be too time consuming. It would involve a trial
within a trial.” With respect to section 782, it reasoned that while the
defense might argue “that the evidence showed . . . a character trait on the
part of [Doe 2]—to falsely claim unconsensual sexual conduct,” the
“credibility exception to [Evidence Code section] 782 must be narrowly
exercised” and the presentation of such evidence would have been “too time
consuming.”

15 We have considered the merits of Stewart’s claim that the trial court
erred in denying his new trial motion based on his Brady argument even
though it was a nonstatutory ground for his motion. (See People v. Fosselman
(1983) 33 Cal.3d 572, 582 [declining to read Penal Code section 1181 “to limit
the constitutional duty of trial courts to ensure that defendants be accorded
due process of law” and entertaining motion on nonstatutory ground].)

38
 We do not agree that the defense could have been barred from using the
suppressed information to impeach Doe 2 on these grounds. As to the time-
consuming rationale, the court allowed the prosecution to conduct what
amounted to a mini-trial when it admitted Doe 2’s testimony under Evidence
Code section 1108, calling Doe 2 herself, her mother and a police officer, the
latter two to bolster Doe 2’s credibility; the jury was instructed on the use of
that propensity evidence; and the prosecutor spent a significant part of her
opening statement and closing argument discussing Doe 2. In this
circumstance, it would have been an abuse of discretion to prevent Stewart
from using the excluded evidence to cross-examine Doe 2. While a trial court
has discretion to balance between the probative value of evidence and the
danger of prejudice, confusion and undue consumption of time, “ ‘[t]his
balance is particularly delicate and critical where what is at stake is a
criminal defendant’s liberty.’ [Citation.] Evidence Code section 352 must
bow to the due process right of a defendant to a fair trial and his right to
present all relevant evidence of significant probative value to his defense.”
(People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)
As to the trial court’s second rationale concerning any attempt to prove
Stewart’s conduct as to Doe 2 was consensual, the defense did not claim it
would have used the evidence to show Doe 2’s acts were consensual. Rather,
it claimed it would have used the information to challenge her credibility.
And again, while the trial court stated it would have barred use of the
evidence to challenge Doe 2’s credibility because it would have been “too time
consuming,” to have done so would have been an abuse of discretion. Where
prior claims of sexual abuse are directly relevant to the credibility of the
complaining witness, or in this instance, a propensity witness whose
testimony was central to the trial, a defendant’s right to a fair trial requires

39
that he be allowed to use evidence relevant to that witness’s credibility to
impeach him or her. Any undue consumption of time could have been
avoided by limiting the time devoted to such cross-examination to a degree
commensurate with the witness’s direct examination and the relevance of the
impeachment testimony. This can be accomplished under the procedure set
forth in Evidence Code section 782 under which a defendant makes an offer
of proof and shows the relevancy of the sexual conduct and the court holds a
hearing outside the presence of the jury at which the complaining witness
may be questioned. (Evid. Code, § 782, subd. (a); see People v. Daggett (1990)
225 Cal.App.3d 751, 757 [trial court erred in failing to hold hearing to
determine whether prior molestations were sufficiently similar to acts of
which defendant was accused to be relevant to the credibility of complaining
witness].)
The prosecutor made this case about “two girls,” Doe 1 and Doe 2, and a
trial focused on Doe 1 alone would have been a very different trial. For this
and all the other reasons we have discussed in evaluating Stewart’s Brady
claim, we have concluded that if the OPD report and CPS reports had been
available to the defense, there was a reasonable chance the jury would have
reached a different result; that is to say, the suppressed evidence would have
“put the whole case in such a different light as to undermine confidence in
the verdict.” (In re Miranda, supra, 43 Cal.4th at p. 575.) The same is true
with respect to a new trial—a more favorable result would be reasonably
probable on a retrial if this evidence had been available. The trial court thus
erred by denying defendant’s motion for new trial made on the basis of the
Brady violation.

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 DISPOSITION
The judgment is reversed, and the case is remanded for further
proceedings.

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 _________________________
STEWART, J.

WE CONCUR:

_________________________
KLINE, P. J.

_________________________
RICHMAN, J.

People v. Stewart (A155499)

42
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Allan D. Hymer

Counsel for Appellant: Marylou Hillberg, by Court-Appointment
under the First District Appellate Project
Independent Case System

Counsel for Respondent: Xavier Becerra, Attorney General; Lance
E. Winters, Chief Assistant Attorney
General; Jeffrey M. Laurence, Assistant
Attorney General; Eric D. Share, Alisha
M. Carlile, Deputy Attorneys General

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