Bodhi Tree’s appeal denied, murder convictions upheld – read the court’s opinion

Bodhi Tree

Kevin L. Hoover
Mad River Union

EUREKA – An appeals court has upheld the murder conviction of Bodhi Tree, who killed two people in Arcata on May 18, 2013. Tree was convicted in 2014 of the murder of Alan “Sunshine” Marcet and Christina Schwartz, plus the attempted murder of Rhett August in Eureka. He was sentenced to a total of 105 years to life plus a life sentence.

The appeal, filed by Tree’s attorneys in Fifth District Court of Appeals, challenged the convictions on several grounds. It held that a police criminalist, Deborah Stonebarger, hadn’t completed all required forensic tests, that she’d had a poor performance review, that new evidence was available, that jailhouse informants had identified a new suspect, that DNA samples were improperly disclosed and not preserved, and that using up a DNA sample during testing destroyed exculpatory evidence.

Citing case law, a three-judge panel dismissed all the appelant’s points as trivial, immaterial, irrelevant and unfounded.

“The judgment is affirmed,” states the decision, listed below. It is signed by Justices Henry E. Needham, Barbara J. R. Jones and Terence L. Bruniers.

 Note: Footnotes in the following ruling are italicized. – Ed.

Filed 8/3/17 P. v. Tree CA1/5

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT
DIVISION FIVE

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE PEOPLE,
Plaintiff and Respondent,

v.
BODHI TREE,
Defendant and Appellant.

A143390

(Humboldt County
Super. Ct. No. CR1302250)

Rhett August was shot and injured one evening when he answered the doorbell at his Eureka home. A few nights later, Alan “Sunshine” Marcet and his girlfriend Christina Schwarz were shot and fatally wounded in their makeshift bed in the living room of a home where they were staying in Arcata. A jury determined that appellant Bodhi Tree was the shooter on both occasions and convicted him of two counts of second degree murder and one count of premeditated attempted murder, along with findings that as to each offense, he had personally discharged a firearm causing great bodily injury or death. (Pen. Code, §§ 187, subd. (a), 664, 12022.53.) The court imposed consecutive terms of 15 years to life for the second degree murder counts, a consecutive life term for the attempted premeditated murder count, and consecutive firearm enhancements of 25 years to life for each of those counts, for a total prison term of 105 years to life plus life. 1

1 Appellant was charged with two counts of first degree murder with a multiple murder special circumstance allegation, which applies when a defendant who has been found guilty of first degree murder “has been convicted of more than one offense of murder in the first or second degree.” (Pen. Code, §190.2, subd. (a)(3).) Because appellant was convicted of second degree murder, this special circumstance, and its attendant sentence of life without the possibility of parole, did not apply.

Appellant contends the judgment must be reversed because: (1) the prosecution violated its duty to disclose exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady) by withholding informtation that a criminalist called as a People’s witness had received negative workplace performance reviews; (2) the testimony of three jailhouse informants describing incriminating statements by appellant should have been excluded under Evidence Code section 352; and (3) the court should have excluded certain DNA evidence as a sanction for the prosecution’s late disclosure of that evidence and its failure to preserve a DNA sample for testing by the defense. We affirm.

FACTS

A. Prosecution Evidence

On the evening of May 13, 2013, appellant attended a party at Rhett August’s house on J Street in Eureka. He seemed drunk and made repeated sexual advances toward Taraya Rives, who at one point yelled at him and pushed him away. Tyrel Brannon, who was also at the party, intervened and punched appellant in the face several times. Partygoers Steve Upton and John Boone joined in the fight against appellant. Appellant left but returned a few minutes later to retrieve something, at which point Brannon, Upton and Boone began punching him again. Appellant left with two black eyes.

On May 15, 2013, appellant saw Sean Butler-Smith in Arcata and asked for a ride to Eureka. Butler-Smith agreed to procure a ride for appellant in exchange for drugs, and flagged down his acquaintance, Charles Crow, as Crow drove by in a silver Land Rover. Butler-Smith noticed that appellant had two black eyes.

Crow drove appellant and Butler-Smith to a house in Eureka where appellant got out and disappeared for a few minutes before returning to the car. Appellant then directed Crow to another location in Eureka, and Crow parked his car near August’s J Street house. Appellant got out of the car, went to August’s door, and then crouched down.

August was at home that night along with Upton and Boone. The doorbell rang at 10:00 p.m., but no one was at the door when August answered. August stepped outside, and someone crouching near a neighboring building fired a gun at him several times, hitting him once. According to Butler-Smith, appellant “popped out from around the corner and fired four times.” Boone, who had a black Mercedes, drove August to the hospital, where August remained for 19 days receiving treatment for his injuries. The bullet that struck August had passed through his body and was found on the steps; another damaged bullet was discovered lodged in the siding of a building just south of August’s home. The absence of shell casings at the scene suggested the use of a revolver. 2

2 Curt Branscombe lived across the street from August and testified that after hearing four consecutive gunshots, he looked out his window and saw two people run toward a white GMC Safari van (not a silver Land Rover) parked on the street outside August’s house. A black car that Branscombe had previously seen at August’s home drove away shortly afterwards.

After the shooting, appellant ran back to the Land Rover and said “go” or “drive.” He seemed very excited and said, “I got that motherfucker. I dropped him for sure.” Crow drove the group back to Arcata and dropped off appellant and Butler-Smith at a house on Eye Street where “Zion,” “Emma” and a “bunch of other kids” lived. Appellant later showed Butler-Smith the gun he had used.

The Eye Street house was leased by Colin Baldridge, known as “Zion,” and served as a communal residence for younger hippies and like-minded travelers. Baldridge had moved out, but subleased the bedrooms in the house to several people, including Emma Lorenc. Allen Marcet and his girlfriend Christina Schwarz (ages 27 and 18, respectively) stayed at the house periodically. Appellant knew Baldridge and was sometimes at the house.

On the night of May 16–17, 2013 (the night after the shooting of Rhett August), appellant entered Lorenc’s bedroom, left his grey sweatshirt inside, and told her not to touch it. Lorenc did not want the sweatshirt in her room, so she picked it up to take it to appellant and noted something heavy was inside. When she handed the sweatshirt to appellant in the kitchen, he responded in a very aggressive manner, and he seemed angry when she interacted with him the next morning.

Appellant remained at the Eye Street house during the day of May 17, 2017. Baldridge came by the house and thought appellant seemed “wound up, shaken up, not exactly stable.” Appellant showed Baldridge a snub-nose revolver that he was keeping in the pocket of his sweatshirt and bragged that “no one should mess with him.” Damion Bradley, a visitor to the house, saw appellant with the gun in the garage in the early afternoon. Appellant was showing the gun to a group of people and bragging about it.

At various points during the day, appellant approached Christina Schwarz and made inappropriate and unwelcome sexual overtures. Marcet was not present, and Swartz was angry and offended. According to Baldridge, appellant accosted Schwarz “multiple” times “around the backyard, back porch and back garage where he would just be . . . very coarse, sexual innuendo—very aggressive, coarse, sexual innuendo with her. And she just kept telling him off.” Baldridge and at least one other person told appellant to leave Schwarz alone and he grudgingly complied. Appellant became intoxicated as the day wore on. Hoyt Cribbs and his girlfriend Chelsea Thompson were staying at the house and saw the offensive interactions between appellant and Schwarz. Cribbs, Thompson and Schwarz left the house at one point to escape the situation.

At 10:00 or 11:00 p.m. on May 17, Cribbs fell asleep on a sofa he was sharing with Thompson in the living room while Schwarz and Marcet (who had returned to the house) settled down in a makeshift bed on the living room floor. Cribbs saw appellant on another couch. Cribbs and Thompson relocated to a bedroom, but were awakened by appellant running around the house demanding money for cigarettes.

Sometime after midnight on May 18, appellant entered a nearby gas station convenience store and bought a 40-ounce bottle of “Mickey’s” malt liquor, a 32-ounce bottle of Coors beer, a pack of Wrigley’s Winter Fresh gum, a pack of Wrigley’s Juicy Fruit gum, and Sour Belts candy. The store clerk was familiar with appellant and thought he seemed “gloomy.” Neighbors of the Eye Street house saw a person standing outside shortly before 2:00 a.m., and one of those neighbors saw that person having a “temper tantrum” and yelling, “I hate it when people steal my shit.”

At 2:00 a.m., residents of the Eye Street house awoke to gunshots and discovered that Schwarz and Marcet had been shot. Schwarz had been shot three times, including once in the head, and was dead by the time paramedics arrived. Marcet was shot four times and died at the hospital; some of his injuries were consistent with the bullet having first passed through Schwarz’s body. Appellant was not in the house.

Police responded shortly after the shooting. They found blood on one wall near the victims located approximately 32 inches from the ground and blood on another wall located between 24 and 70 inches from the ground. A 32-ounce Coors beer bottle was sitting on the bookcase near the victims and a 40-ounce Mickey’s Malt Liquor bottle was found on a breakfast bar in the kitchen/dining room area. DNA matching appellant’s was found on the Mickey’s bottle. The absence of expended shell casings indicated the shots had been fired from a revolver.

On the night of the shooting, Butler-Smith was staying at the home of his cousin Shane Goodrich in Arcata. Appellant, who was friends with Goodrich, arrived at the house at 2:30 a.m., said “I got two more,” and placed a snub-nose .38 revolver on the table. According to Butler-Smith, appellant said he was at the party and “some dude and his girlfriend were talking shit to him,” so he “drank his beer” and shot them before leaving. 3

3 Goodrich, who did not testify at trial but whose preliminary hearing testimony was read to the jury, had acknowledged to investigators that appellant was at his house that night but denied seeing a gun or hearing appellant say anything about a shooting.

Police came to Goodrich’s house the next day and appellant ran out the back door. Appellant was discovered by a canine unit hiding in some bushes and appeared dirty, sweaty and disheveled. He was mildly intoxicated and had two black eyes. An unopened pack of Juicy Fruit chewing gum was found in his pocket. Butler-Smith saw appellant take his gun with him when he fled Goodrich’s house, but the gun was never found. The area where appellant was apprehended was full of extremely dense undergrowth over steeply sloped terrain.

Appellant spoke to the police after his arrest and admitted he had been at the gas station convenience store and the home of Shane Goodrich on the previous night. He said he did not remember being at the Eye Street house, but he had been drunk for three or four days.

Deborah Stonebarger, a criminalist with the California Department of Justice (DOJ), examined the clothing appellant was wearing when he was arrested. She did not see any blood on his sweatshirt, and blood found on his pants was determined to be his own. Given the physical dynamics of the shooting, with the victims lying on the floor, Stonebarger would not have expected there to be blood spatter on the shooter’s clothing because blood from the victims would be projected away from the shooter by the force of the bullets. She reviewed photographs of the crime scene at the prosecutor’s request and believed that “four drops of possible blood” on a wall near the victims was not blood back spatter and was more likely “castoff” blood from a person at the scene, such as an emergency medical responder, handling something saturated with blood. Stonebarger had not attempted to collect gunshot residue (GSR) from appellant’s clothing because she was not asked to do so. Stonebarger understood such evidence to be of limited value: “Those particles can be on the presence of a hand of someone who did not fire a gun. Likewise, the particles can be absent on someone who has fired a gun. So in the end, you do a lot of work to say, ‘Maybe he was there and maybe not.’ ‘Maybe he fired the gun and maybe not.’ ”

Dale Cloutier, also a criminalist with the DOJ, testified as the primary forensics expert for the prosecution and explained that back spatter of blood onto a shooter was not inevitable, meaning the lack of blood on a suspect’s clothing would not exonerate the suspect. However, a shooter within a few feet of his victim was within range of back spatter if it is present. Cloutier also examined the bullets recovered from the May 15 shooting of Rhett August and the May 18 shooting of Christina Schwarz and Allen Marcet. He concluded it was possible the same gun was used on both occasions, but was unable to say so definitively. As to the failure to perform GSR testing in this case, Cloutier explained that such testing “is very limited and has very little use.”

In early June 2014, appellant was housed in the Humboldt County jail awaiting trial in this case. While he was out of his own cell on “tier time” (during which inmates could make phone calls, take showers, watch television or socialize), he spoke to fellow inmate Quentin Williams while Williams was inside the cell he shared with inmate Jason Losey. In the course of discussing how his case was going and how he would “beat” the charges against him, appellant told Williams he had shot Rhett August after being beaten up during a fight at August’s house. Tyrel Brannon, who had been involved in the fight and was also in custody, began arguing with appellant from his own cell. Appellant yelled that he should have shot “Rhett” in the head and would not make the same mistake with Brannon. Brannon accused appellant of shooting a 17-year-old girl and appellant called Brannon a “snitch.” Losey heard appellant tell Williams about a confrontation he had with a girl in Arcata and her friend, saying he had “smoked” them both. According to Williams, appellant said he had shot the victims in Arcata, explaining that the “motherfucker” was “up in there trying to play hero and shit and got mad because I’m up in there trying to fuck with that little bitch.”

B. Defense Case

The defense strategy at trial was to discredit the prosecution’s lay witnesses, particularly Sean Butler-Smith and the jailhouse informants, based on their criminal records, drug addiction, and/or their motive to lie. 4 The defense also attempted to show

that the absence of the murder victims’ blood on appellant’s clothing meant he was not the shooter in Arcata, and that Rhett August was shot by one Melvin Matthews, who had attempted to rob Steve Upton (August’s guest on the night of the shooting) several days earlier and had been seen by a detective driving by August’s house after the shooting.5.

4 Some witnesses, including Rhett August, John Boone, Sean Butler-Smith and Charles Crow, testified under a grant of immunity. The jury was given CALCRIM No. 334, allowing it to find that Butler-Smith was an accomplice to the attempted murder of August, with the attendant evidentiary implications. The jury also learned that Butler- Smith had committed numerous crimes of moral turpitude, was addicted to heroin, had used methamphetamine and had facilitated drug sales. After the shootings in this case, Butler-Smith attempted a robbery at a restaurant in Arcata by pointing a gun at the owner and threatening to kill him if he did not hand over the restaurant’s money.
5 Police interviewed Matthews after the Eureka shooting and he denied any involvement. He was eliminated as a suspect after police interviewed individuals who confirmed his general whereabouts on the night of the shooting, though neither Mathews nor the other witnesses were precise about the times at which he was present at those locations.

Daniel Schumaker, an expert in crime scene reconstruction, analyzed the scene of the Arcata shooting and generated a 3-D model based on the relevant reports. He opined that the shooter had been standing at the victims’ feet, and that blood droplets found on the wall behind the shooter were consistent with back spatter from Christina Schwarz moving her head following an injury from a previous shot.

Jacobus Swanepoel, a senior forensic scientist at Forensic Analytical Sciences and an expert in crime scene reconstruction, testified that back spatter may occur when the blood moves in the opposite direction of a bullet that perforates the head. The blood will move in the shape of a cone backwards from the point where the bullet contacts the blood, though back spatter does not always occur. Blood found on the wall of the Eye Street house near the victims was in a pattern that might have been a full cone, or might have been a partial cone where an intervening object, such as the shooter, blocked the wall from the rest of the cone. In Swanepoel’s opinion, based on the trajectory of the victims’ wounds, the shooter had to be standing near their feet in the three to four-and-a- half foot area in front of the wall where the blood droplets were found. Given the crime scene reconstruction evidence in this case, he would expect to find blood on the shooter from back spatter. Swanepoel testified that spatter from a gunshot wound will travel upward against gravity, including onto the shooter, though gravity may be a factor in how the blood moves.

Asked about GSR testing, Swanepoel disagreed that it was obsolete, and explained that some laboratories were not doing it anymore because it was not worth the cost of keeping the necessary equipment based on the number of cases in which GSR was at issue. Although there could be an innocent explanation for GSR being on a subject’s clothing or hands, it was a part “of the larger puzzle.”

DISCUSSION
I. Prosecution’s Failure to Disclose Evidence Impeaching Expert Witness

Appellant contends the prosecution failed to disclose evidence that could have been used to impeach criminalist Deborah Stonebarger, who opined that the Arcata shooter was unlikely to have the victim’s blood on his clothing and testified that GSR testing, which was not performed in this case, had only limited probative value. Appellant argues the nondisclosure violated his right to due process under Brady, supra, 373 U.S. at p. 87, and, alternatively, that the trial court erred in denying his motion for new trial based on newly discovered evidence. We disagree.

a. Trial Evidence

Neither victims’ blood was found on the clothing that appellant was most likely wearing at the time of the Arcata shooting. The defense presented the expert testimony of Jacobus Swanepoel in support of its theory that appellant was not the shooter because the shooter would be expected to have blood on his or her clothing due to back spatter from Christina Schwarz’s head wound. This testimony was contradicted by prosecution witness Deborah Stonebarger, who testified that due to the victims’ prone position at the time of the shooting, she would not have expected to see blood spatter on the shooter’s clothing. The prosecution’s primary forensics expert, Dale Cloutier, also testified on the subject of blood spatter and recognized “there is potential for blood from a victim to get on a suspect . . . in any shooting, but it’s only a potential. There are a million reasons why a subject might not have the victim’s blood on them. So the absence of the blood does not mean that the suspect did not shoot the victim. It’s beneficial if you can find it. You have a positive link. But the negative is not really helpful to answering any questions.” Cloutier acknowledged that back spatter from a shooting can radiate outward from the source in all directions, including upward, and that a shooter within a few feet of his victims is “certainly in the range where it is possible to find back spatter if it is present.”

Another topic on which the experts testified was gunshot residue (GSR) testing, which was not performed in this case and which, consequently, did not link appellant to the Arcata shooting. Stonebarger was not questioned about GSR by the prosecution, but testified on cross-examination that she was “somewhat” familiar with the methodology (though she had never performed GSR testing itself) and understood it to be of limited interpretive value because GSR particles are easily transferred and may be present whether or not a person has fired a gun. Dale Cloutier similarly explained that the problem with GSR analysis was that “even if you find the particles, it doesn’t necessarily answer the question: Did the subject fire the gun? So it is of limited use.” Conversely, Swanepoel testified that GSR was still an important tool as a piece of a larger puzzle during an investigation.

b. Brady Materials and Motion for New Trial

On August 14, 2014, while the jury was deliberating, the prosecution informed the defense that Stonebarger had been removed from performing firearm analysis at the DOJ and had “potential Brady issues.” On September 12, 2014, after the jury had returned its verdict, the defense filed a motion for new trial premised on this newly discovered evidence. (Pen. Code, § 1181, subd. 8.) The exhibits to the motion included a letter from the laboratory director of the DOJ to the Humboldt County District Attorney’s Office, dated August 8, 2014, outlining Stonebarger’s performance issues: (1) her removal from biology casework from 2011-August 2012, based on a determination she had “overstated findings based on the current reporting guidelines” and had failed to identify a visible bloodstain on a proficiency test item; (2) her removal from firearms-related casework in 2011 and 2013 based on concerns on proficiency evaluations; (3) her removal from casework regarding blood alcohol based on her failure to perform routine maintenance on equipment; and (4) her receipt of an “Improvement Needed” rating on her August 2011/August 2012 performance appraisal based on her “poor performance in the biology proficiency, issues related to the quantity and quality of her biology casework, attitude, communication, and work habits.” The motion argued that evidence of these performance issues could have been used to impeach Stonebarger or exclude her damaging opinions in their entirety.

In response, the prosecution argued that a new trial was not warranted because (1) Stonebarger’s testimony was limited in scope and cumulative to that offered by Cloutier; (2) Stonebarger’s performance issues did not pertain to her expertise in blood spatter evidence; and (3) it was not likely the information about Stonebarger’s performance issues would have resulted in a more favorable verdict if the evidence had been available to the defense. The prosecution presented evidence suggesting the performance issues were not as significant as the DOJ letter suggested, including a positive performance evaluation of Stonebarger for the period from August 21, 2012, to February 14, 2013, and Stonebarger’s written rebuttals to some of the areas of concern.

The trial court denied the motion for new trial: “[W]hen I consider the cumulative testimony of the experts presented by the People, . . . not much of which, but some of which agreed with the experts presented by the defense in terms of blood spatter and where one would expect—I think the defense expert talked about the cone and things like that. But it seems to me that the role of Ms. Stonebarger in this matter is—fairly limited given the fact —the testimony of Mr. Cloutier on the broad issues that are being discussed here. So . . . based on the evidence presented, I do not believe that if this new evidence had been available and presented that—if it were presented at retrial, that a different result would be probable.”

c. Brady Violation

“[T]he suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87.) The duty of the prosecution to disclose such evidence exists without a request from the accused (United States v. Agurs (1976) 427 U.S. 97, 107), and includes impeachment as well as exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676). On appeal, we independently review whether a Brady violation occurred, giving great weight to the trial court’s findings of fact if they are supported by substantial evidence. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176 (Letner).)

A Brady violation has three components: (1) the evidence at issue must be favorable to the accused because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) the accused must have been prejudiced by the nondisclosure. (Strickler v. Greene (1999) 527 U.S. 263, 281–282; People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) Even if we assume the first two prongs were met in this case, appellant’s claim founders on the third prong due to the lack of prejudice.

In order for a defendant to have suffered prejudice for purposes of a Brady claim, the undisclosed evidence must be “material” to the defendant’s guilt or innocence. (Letner, supra, 50 Cal.4th at p. 176.) “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.] The requisite ‘reasonable probability’ is a probability sufficient to ‘undermine[] confidence in the outcome’ on the part of the reviewing court.” (In re Sassounian (1995) 9 Cal.4th 535, 544 (Sassounian).) “A showing by the prisoner of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of ‘error’ and ‘prejudice.’ For, here, there is no ‘error’ unless there is also ‘prejudice.’ ” (Id. at p. 545, fn. 7.)

“ ‘In general, impeachment evidence has been found to be material where the witness at issue “supplied the only evidence linking the defendant(s) to the crime” [citations] or where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case, [citation]. . . “In contrast, a new trial is generally not required when the testimony of the witness ‘is corroborated by other testimony.’ ” ’ [citations].” (Salazar, supra, 35 Cal.4th at p. 1050.) Materiality “requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation].” (Id. at p. 1043.)

Applying these principles, the impeachment evidence was not material. This was not a case in which Stonebarger supplied the only evidence linking appellant to the Arcata murders, as several lay witnesses placed him inside the home armed with a revolver. (See Salazar, supra, 35 Cal.4th at p. 1050.) Although her testimony regarding the unlikelihood of blood spatter supported the conclusion that appellant could have been the shooter notwithstanding the lack of blood on his clothing, the prosecution’s primary forensic expert, Dale Cloutier, made the similar point that the absence of blood did not mean appellant had been absent from the scene. (See Salazar, supra, 35 Cal.4th at p. 1050 [evidence impeaching doctor who testified as to timeline leading to victim’s death and its nonaccidental nature was not material when other experts gave similar testimony].) Similarly, Stonebarger’s testimony that GSR testing is of limited value was echoed by Cloutier in greater detail.

It was also made clear to the jury that Stonebarger’s involvement in the investigation was confined to examining appellant’s clothing in an attempt to locate any blood stains; she had not gathered any evidence, visited the scene, or been tasked with an analysis of any blood spatter that may have been present. It was only after she had completed her report that she was asked by the prosecutor to review crime scene photographs, from which she identified “four drops of possible blood” and opined that the drops did not appear to be back spatter given their location. Given the extensive and detailed testimony of Cloutier and Swanepoel on the subject of blood spatter, it is unlikely the jury would have reached a different result if Stonebarger, a less important witness on the subject, had been impeached with her poor performance reviews.

Finally, while the performance reviews would have shown that Stonebarger’s work had been found deficient in certain areas, none of the concerns directly implicated blood spatter evidence or were likely to “have been viewed as significant impeachment” on that subject. (See Salazar, supra, 35 Cal.4th at p. 1051.) And, while aspects of the reports could have been used to impeach her competence in general, Stonebarger wrote a detailed rebuttal to the criticisms and was given a positive performance review in early 2013, circumstances that would potentially lessen the impact of the impeachment evidence.6

Because it is not reasonably probable appellant would have obtained a more favorable result if the defense had been able to impeach Stonebarger with her poor performance reviews, appellant has not established the materiality of the evidence under Brady. (Salazar, supra, 35 Cal.4th at p. 1052.) And in light of expert Cloutier’s testimony on the subjects of blood spatter and GSR, it is not reasonably probable appellant would have obtained a more favorable result if Stonebarger’s more limited opinions on blood spatter and GSR had been excluded in their entirety.

d. Newly-Discovered Evidence

Appellant argues that even absent a Brady violation, the information about Stonebarger’s poor performance reviews was newly discovered evidence warranting a new trial under Evidence Code section 1181, subdivision 8. We disagree.

To obtain a new trial based on newly discovered evidence, the moving defendant must show (1) the evidence, and not simply its materiality, is newly discovered; (2) the evidence is not merely cumulative; (3) the defendant in the exercise of reasonable diligence could not have discovered and produced the evidence at trial; (4) the newly discovered evidence is of such strength that a result more favorable to the defendant is probable if the new evidence is admitted on retrial; and (5) these facts are shown by the best evidence of which the case admits. (People v. Howard (2010) 51 Cal.4th 15, 42– 43.) A trial court’s ruling denying a motion for new trial on this ground will not be disturbed on appeal unless a manifest and unmistakable abuse of discretion is clearly shown. (People v. Delgado (1993) 5 Cal.4th 312, 328.)

6 In its opposition to the motion for new trial, the prosecution presented a copy of Stonebarger’s performance appraisal from August 21, 2012, to February 13, 2013, showing her performance had improved and stating: “[Y]our assigned duties include casework in biological evidence examinations, blood alcohol analysis, firearms analysis, hair comparison, crime scene response, and EPAS program duties (including record management, instrument support, and agency contact). You have demonstrated that you fully understand the duties and responsibilities of these assignments.” Under “Quality and Quantity of Work,” the appraisal states, “[T]he quality of your work product has been satisfactory during this review period. The quantity of your work product has improved significantly since your last evaluation. Please keep up the good work.”

As with appellant’s Brady claim, lack of prejudice is fatal to appellant’s argument. For the reasons discussed above, it is not reasonably probable appellant would obtain a more favorable result if the case were retried and the trial court either admitted the impeachment evidence or excluded Stonebarger’s opinions on blood spatter and GSR. The trial court did not err in denying the motion for new trial.

II. Jailhouse Informants
Appellant argues the trial court committed prejudicial error in allowing three

jailhouse informants to testify about a conversation in which he essentially admitted both the Eureka and Arcata shootings. We reject the claim.

a. Background

Tyrel Bannon, Quentin Williams, and Jason Losey were incarcerated with appellant in the Humboldt County jail while he was awaiting trial. Bannon had previously fought with appellant during the altercation that precipitated the Eureka shooting; Williams was housed in another cell but was apparently friendly with appellant; and Losey was Williams’s cellmate. All three contacted the District Attorney’s office while appellant’s trial was pending, and, after interviewing them, the prosecution notified the defense it intended to call them as witnesses. The defense objected to their testimony under Evidence Code section 352, arguing such evidence would be inherently unreliable and unduly time-consuming. The trial court held a hearing outside the jury’s presence under Evidence Code section 402, at which the court heard the testimony of all three inmates, as well as jail personnel who could corroborate the plausibility of their accounts.

At the Evidence Code section 402 hearing, Williams testified that he had a conversation with appellant in the presence of Losey, during which appellant started arguing with Brannon, who was housed in another cell. Appellant yelled at Brannon that he should have shot him in the head when he shot his “homeboy,” and if he had killed

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that “boy” he wouldn’t be in jail. Appellant also mentioned shooting “Rhett” and explained that he had been jumped for hitting on a girl and that the same thing had happened in Arcata—“I was trying to fuck with that little bitch and mother fucker tr[ied] to play hero, jumped in, so I shot both of their asses too.” Losey testified he had overheard a conversation in which appellant admitted to Williams that he had shot “Rhett,” explained that he had been beaten up because he had “grabbed some girl on the ass,” and said that the same thing had happened in Arcata when “[h]e was trying to get with some girl or get at this girl; and, um, she wasn’t feeling him or wasn’t going along with it, so the dude that was with her got up and got in his face. And I don’t know if his exact—I am pretty sure his exact words—he didn’t say, ‘I shot them both.’ I think he said, ‘I smoked them both.’ ” Brannon testified about a shouting match he had with appellant during which appellant implicitly admitted shooting Rhett August. A nurse from the jail testified that he had heard an argument between appellant and Brannon while appellant was out of his cell. An officer at the jail similarly testified about an incident in which appellant was yelling at another inmate. In exchange for their testimony, Williams was to receive a jail sentence instead of a prison term in another case and Losey was to receive a release date accelerated by two months.

The trial court denied the motion to exclude the informants’ testimony, noting that jail personnel had corroborated that the event described by the inmates “could have occurred” and the probative value of the statements attributable to appellant would be high if they were believed by the jury. The evidence would not result in undue prejudice because given the nature of the charges, the jurors would assume appellant was in pretrial custody, and it would be up to the jury to assess the veracity of the witnesses.

Over the next six court dates, Brannon, Williams and Losey testified at trial in a manner consistent with their testimony at the Evidence Code section 402 hearing.

The court instructed the jurors with CALCRIM No. 358, which advised them to “[c]onsider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded.” The court also gave CALCRIM No. 336, which advised the jurors to view the testimony of an in-custody informant with “caution and close scrutiny” and informed them they could not convict appellant of the charges based solely on the testimony of such informants; rather, independent corroborating evidence was required. (See Pen. Code, § 1127a.) Supplemental jury instruction number four stated: “You have received testimony that the defendant is held in the Humboldt County Correctional Facility and the type of unit in which he is housed. You may not consider the fact that the defendant is in custody or the type of unit in which he is housed in any way.”

b. Analysis

“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) Evidence is probative if it has a tendency in reason to prove or disprove any disputed fact. (People v. Prince (2007) 40 Cal.4th 1179, 1237.) “Undue prejudice” refers to “evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial.” (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) “Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ‘ “substantially outweigh” ’ the probative value of relevant evidence, a section 352 objection should fail.” (People v. Scott (2011) 52 Cal.4th 452, 490–491.)

We review a ruling under Evidence Code section 352 for abuse of discretion (People v. Merriman (2014) 60 Cal.4th 1, 74), which will be found only when the trial court “exceeds the bounds of reason, all of the circumstances being considered” (People v. Giminez (1975) 14 Cal.3d 68, 72). A trial court’s exercise of discretion under section 352 is broad and will be upheld under most circumstances. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)

Under this deferential standard of review, the trial court did not err in admitting the testimony of the jailhouse informants. The statements described by the informants, if credited by the jury, were extremely probative because appellant essentially admitted that he was the person who committed the shootings. And given the significance of the statements, the testimony was not unduly time consuming; indeed, one of the reasons it took the prosecution “six court dates” to present the evidence, as appellant notes, is that the defense spent a considerable amount of time cross-examining the witnesses in an effort to impeach their credibility. As required by Penal Code section 1127a, the jury was instructed to view the informants’ testimony with caution and was further advised that such testimony must be independently corroborated. The jury learned about the criminal history of the witnesses along with the accommodations provided to Williams and Losey in exchange for their testimony. Under the circumstances, admission of the evidence was not unduly prejudicial or misleading and does not require a reversal of the judgment.

Appellant argues that the informants’ testimony lacked probative value and were unduly prejudicial because the informants were inherently unreliable witnesses. He points out that each of them had a lengthy criminal history calling their credibility into question and had something to gain by testifying in favor of the prosecution. We are not persuaded.

“The trial court’s ability to exclude hearsay testimony based upon an evaluation of the testifying witness’s credibility is limited to circumstances in which ‘the testimony is physically impossible or its falsity is apparent “without resorting to inferences or deductions.” [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jury’s resolution[.]’ ” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1011 (Vorse), citing People v. Cudjo (1993) 6 Cal.4th 585, 608–609.) The court may not exclude evidence simply because it does not believe the witness; that a witness is subject to impeachment “does not render the evidence irrelevant or unduly prejudicial.” (People v. Alcala (1992) 4 Cal.4th 742, 790.) In this case, the fact that three jail inmates came forward with the same basic story, which was corroborated to some degree by jail personnel, places this case outside the narrow category of situations in which the testimony to which an objection is made is demonstrably false.

Woven into appellant’s challenge to the informants’ testimony under Evidence Code section 352 is an argument that the court should have made a preliminary fact determination of their unreliability under Evidence Code sections 400, 402, 403 and 405, and excluded the evidence on that basis. Again we disagree.

Evidence Code section 400 defines a “preliminary fact” as a “fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.” Evidence Code section 402 requires a judge to follow certain procedures for determining preliminary facts. Evidence Code section 403 governs those cases in which a judge must admit the proffered evidence when the evidence offered under section 402 is sufficient to sustain a finding by the jury of the preliminary fact. (Simons, California Evidence Manual (2017) Preliminary Fact Determinations—Evidence Code section 402 Hearings, § 1:37, pp. 58–59.) Evidence Code section 405 governs those cases in which the judge alone determines the preliminary fact and admits or excludes the evidence on this basis. (Ibid.)

At issue here was the admissibility of incriminating out-of-court/hearsay statements that had been made by appellant and were offered under the party-admission exception to the hearsay rule. (Evid. Code, § 1220.) Appellant argues that because the witnesses who claimed to have heard the statements were so unreliable, the prosecution could not establish as a foundational matter that the statements had been made. This question was governed by Evidence Code section 403, which applies when, among other things, “[t]he proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.” (Evid. Code, § 403, subd. (a)(4).)

Preliminary facts falling under Evidence Code section 403 “ ‘are not finally decided by the judge because they have been traditionally regarded as jury questions. The questions involve the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues. It is the jury’s function to determine the effect and value of the evidence addressed to it. . . . [T]he judge’s function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question. The “question of admissibility . . . merges imperceptibly into the weight of the evidence, if admitted [citation].” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 466–467; see Evid. Code, § 312, subd. (b) [“Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it, including the credibility of witnesses and hearsay declarants”].) During the Evidence Code section 402 hearing on the informants’ testimony, the prosecution presented evidence sufficient to support a finding by the jury that appellant made the incriminating statements at issue; no more was required for their admissibility.

We are not persuaded by appellant’s citation to People v. Chapman (1975) 50 Cal.App.3d 872, 879, in which the court upheld a trial court ruling excluding evidence of a third party’s confession to the crime that was offered as a declaration against penal interest under Evidence Code section 1230. The ruling in that case was based on a determination that the statement was untrustworthy, an issue properly reserved for the trial court. Here, by contrast, the hearsay statements were offered as party admissions under Evidence Code section 1220, which does not require a separate finding of trustworthiness as a preliminary fact under Evidence Code section 405.7 (See Vorse, supra, 53 Cal.App.4th at p. 1012.) The trial court properly allowed the informants’ testimony to be heard by the jury.

7 The Law Revision Commission Comments to Evidence Code section 403 provide that as to party admissions under section 1220, “The only preliminary fact that is subject to dispute is the identity of the declarant. Under Section 403(a)(4), an admission is admissible upon the introduction of evidence sufficient to sustain a finding that the party made the statement.” (Law Rev. Comm. Comments, Evid. Code, § 403 (1965) Deering’s Ann. Evid. Code (2004 ed.) p. 177.) The Comments to Evidence Code section 405 are in accord: “When hearsay evidence is offered, two preliminary fact determinations may be raised. The first question relates to the authenticity of the proffered declaration—was the statement actually made by the person alleged to have made it? The second question relates to the existence of those circumstances that make the hearsay sufficiently trustworthy to be received in evidence—e.g., was the declaration spontaneous, the confession voluntary, the business record trustworthy? Under this code, questions relating to the authenticity of the proffered declaration are decided under [Evidence Code] section 403. [Citation.] But other preliminary fact questions are decided under [Evidence Code] section 405.” (Law Rev. Comm. Comments, Evid. Code, § 405 Deering’s Ann. Evid. Code (2004 ed.) p. 186.)

 III. Failure to Timely Disclose DNA Evidence and Failure

to Preserve Sample
Appellant argues the prosecution violated the discovery statutes (Pen. Code,

§ 1054 et seq.), as well as his federal constitutional right to due process, when it did not timely disclose DNA test results linking him to the crime and did not preserve the DNA sample for independent testing by the defense. We conclude any violation was harmless.

a. Background

An empty 40-ounce bottle of Mickey’s Malt Liquor was found on a breakfast bar in the kitchen/dining room area of the Eye Street house in Arcata when evidence was gathered after the shooting on May 18, 2013. During pretrial discovery, the defense requested the disclosure of any DNA test results. On December 20, 2013, the trial court ordered the prosecution to provide the defense with “results or updated status” of DNA testing within three weeks. On February 19, 2014, the prosecution reported to the defense that the DOJ was currently conducting DNA testing on the Mickey’s bottle, but the results had not yet been reported. On April 9, 2014, the DOJ provided the prosecution with a report on the results of this test, which concluded that DNA on the bottle had a mixture of at least two contributors, with appellant being the major contributor. The prosecution provided a copy of the report to the defense on the same day.

Two days after receiving the report, while jury selection in the case was under way, the defense filed a motion seeking to exclude the DNA test results based on the prosecution’s willful violation of the court’s earlier discovery order as well as appellant’s due process rights under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) . The defense argued the discovery violation had caused irremediable prejudice to the defense because the laboratory had consumed the entire DNA sample during testing, so the defense could not retest the sample and analyze the DNA of the second contributor. The prosecution responded that the Mickey’s bottle had not been tested at an earlier date because the DOJ laboratory had a policy of initially analyzing only three items per case for DNA evidence, though more items could be tested on a case-by-case basis. The testing of the Mickey’s bottle had been expedited after it was requested by the prosecutor.

The trial court denied the motion to exclude the evidence. While it was not persuaded that the DOJ’s “three item” policy justified the delay in testing the bottle, it found the delay was not willful and was not intended to gain an advantage over the defense. The court indicated that exclusion of the evidence would not be an appropriate sanction because there had not been irreparable prejudice to the defense, and stated it would give instructions regarding the facts of late disclosure and the consumption of the sample during testing and would also appoint a defense expert to review the testing procedures and consult with counsel.

Ultimately, evidence regarding the DNA testing of the Mickey’s bottle was admitted at trial. The jury was instructed with CALCRIM No. 306 regarding untimely disclosure of that evidence: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] The People failed to disclose the DNA results from the Mickey’s bottle within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.” The jury was also given a special instruction regarding the consumption of the DNA sample during testing: “In this case, the Department of Justice consumed the entire swab of the Mickey’s bottle without giving the defense an opportunity to conduct an independent test. You may consider this during your deliberations.”

b. Discovery Violation and Remedy

Under Penal Code section 1054.1, subdivision (f), the prosecutor is required to disclose expert reports that are in the prosecutor’s possession or that the prosecutor knows to be in the possession of the investigating agencies, including reports regarding scientific test results the prosecutor intends to offer as evidence at trial. If the prosecutor does not deliver the materials after request by the defense, Penal Code section 1054.5, subdivision (b), allows the court to enforce the discovery provisions by ordering immediate disclosure, initiating contempt proceedings, continuing of the matter, or delaying or prohibiting a witness’s testimony or the presentation of real evidence. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1312–1313.)

“The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted.” (Pen. Code, § 1054.5, subd. (c).) If the prosecutor’s omission is willful to obtain a tactical advantage, the court may exclude the witness’s testimony. (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.) However, absent a showing of significant prejudice and willful conduct, exclusion of testimony is not an appropriate sanction. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.) A trial court has broad discretion to fashion a sanction when there has been a discovery violation. (People v. Jenkins (2000) 22 Cal.4th 900, 951 (Jenkins).

The evidence presented at the hearing on appellant’s motion to exclude the DNA evidence supported the trial court’s determination that the late disclosure was not willful or undertaken for any tactical advantage. Rather, it was the product of a (perhaps misguided) DOJ policy to limit the number of DNA tests performed in the typical criminal case to ease the laboratory’s backlog. The defense was not prejudiced by the delay because it was made aware of the DNA evidence during jury selection and the trial did not commence until more than a month later. The remedy for a discovery violation should be no broader than necessary to guarantee a fair trial, and the trial court did not abuse its discretion in addressing the delay in discovery by instructing the jury with CALCRIM No. 306, rather than by excluding the DNA evidence in its entirety. (People v. Wimberly (1992) 5 Cal.App.4th 773, 792–793.) And, absent a showing of prejudice, we reject appellant’s claim that exclusion of the DNA evidence was required as a matter of due process. (Jenkins, supra, 22 Cal.4th at pp. 951–952.)

c. Trombetta

Appellant argues the DOJ’s consumption of the entire DNA sample during testing violated his due process rights because it was tantamount to the destruction of exculpatory evidence. We disagree.

At the hearing on the motion to exclude the DNA evidence, DOJ criminalist Rebecca Gaxiola testified that she had performed the testing on the bottle. From the first half of the sample, she found only a low level of DNA, and she determined it would be necessary to consume the entire sample to obtain better results. Gaxiola contacted the prosecutor, who signed a letter authorizing consumption of the sample, and she was thereafter able to determine the DNA had a mixture of at least two contributors, one of whom was appellant.

Under Trombetta, supra, 467 U.S. at p. 488, “ ‘[l]aw enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” ’ ” (People v. Carter (2005) 36 Cal.4th 1215, 1246 (Carter), quoting Trombetta, at p. 488.) California has adopted this standard. (People v. Beeler (1995) 9 Cal.4th 953, 956 (Beeler), abrogated on other grounds as stated in People v. Pearson (2013) 56 Cal.4th 393, 462.) “ ‘To fall within the scope of this duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” [Citation.] In such case, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” ’ ” (Carter, at p. 1246.)

Appellant did not establish a Trombetta violation. For one thing, the DNA sample was not apparently exculpatory. The most that can be said is that if the sample had been preserved for testing by the defense, that test might have eliminated appellant as a contributor or identified another possible contributor. But while appellant’s presence in the house was (further) confirmed by the presence of his DNA on the bottle, the converse would not have been true: if the bottle did not contain appellant’s DNA, or if tested positive for another individual’s, that would not establish appellant was not present. The Mickey’s bottle was not a “smoking gun” that tied whoever had been drinking from it to the murder of Schwarz and Marcet.

Turning to the trial court’s finding that the prosecution’s actions were not willful or undertaken for any tactical advantage (i.e., were not done with bad faith), “ ‘we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling.’ ” (Carter, supra, 36 Cal.4th at p. 1246; see Beeler, supra, 9 Cal.4th at p. 976.) This standard is easily satisfied, because Gaxiola’s testimony that she consumed the sample during testing in order to get a more accurate test result rebuts any suggestion of bad faith.

Finally, any error in admitting evidence of the DNA test results was harmless beyond a reasonable doubt. (See People v. Mulcrevy (2014) 233 Cal.App.4th 127, 131 [applying the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 to Trombetta violation].) Considerable evidence placed appellant at the Eye Street house on the day and evening before the shooting. Security cameras from a nearby convenience store showed that appellant bought a 40-ounce can of Mickey’s before the shooting, and Sean Butler-Smith testified that appellant referenced the 40- ounce beer when he told him about the shooting. Even without evidence that appellant’s DNA was found on the Mickey’s bottle, the jury would almost certainly have concluded that he was the one who had been drinking that beverage. And even if they did not draw that particular conclusion, appellant’s possession of a revolver and his earlier harassment of one of the murder victims was a far stronger link to the shooting than the bottle of Mickey’s.

DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.

(A143390)

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