People v. Harrison

Filed 10/26/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B272132 (Super. Ct. No. BA426149) Plaintiff and Respondent, (Los Angeles County)

v.

CLIFFORD HARRISON,

Defendant and Appellant.

The Brady rule (Brady v. Maryland (1963) 373 U.S. 83 (Brady)) is over 50 years old. It is alive, well, and as we explain, it is self executing. There need be no motion, request, or objection to trigger disclosure. The prosecution has a sua sponte duty to provide Brady information. Clifford Harrison appeals his convictions by jury of possessing a firearm after a felony conviction (count 1; Pen. Code, 1 § 29800, subd. (a)(1)) and making criminal threats (count 4; § 422, subd. (a)). Appellant admitted a prior strike conviction (§§ 667, subds. (b)-(j); 1170.12) and a prior serious felony conviction (§ 667, subd. (a)) and was sentenced to prison for 11

1 All statutory references are to the Penal Code.

years. He contends that the trial court erred in denying his motion for new trial after the prosecution failed to disclose a video recording of appellant invoking his right to remain silent during a Miranda interrogation. (Miranda v. Arizona (1966) 384 U.S. 436, 479.) Notwithstanding the video recording, the arresting officer testified that appellant waived his Miranda rights and admitted using a firearm to threaten the victim. We reverse the conviction on count 4 for criminal threats and remand for new trial because of Brady error. We deny relief as to count 1. We also vacate the original sentence imposed as well as the purported resentencing conducted on August 24, 2017. While an appeal pends, the trial court is without power to “resentence.” (See, e.g., People v. Alanis (2008)158 Cal.App.4th 1467, 1472-1474.) Facts On June 11, 2014, Donnis Moore gave his cousin, appellant, a ride home to their grandmother’s house where Moore, appellant, and three family members lived. Thereafter, appellant asked if he could borrow Moore’s car. When Moore said “‘No,’” appellant demanded that Moore pay the rest of the money that Moore owed him. Moore had sold a car that they inherited from their grandfather. Moore owed appellant half the sale proceeds. Moore said he would give appellant $200 or $300 the next day, at which point appellant pointed a handgun at Moore and said “‘Go get my $600 right now.’” Appellant allegedly said he would “blow” Moore’s “brains [out]” if Moore did not pay him. Moore left the house and asked his mother to call 911. When Moore returned with a $600 check, the police were there and had detained appellant. Officers searched the house and found a loaded .40 caliber semiautomatic handgun hidden in