P. v. Ortiz

Filed 10/4/07 P. v. Ortiz CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted appellant Francisco Ortiz of second degree murder and arson of an inhabited structure. (See Pen. Code,^[1] 187, 189, 451, subd. (b).) Sentenced to 23 years to life in prison, Ortiz appeals. He contends that (1) the trial court erred by admitting his statements made to jailhouse informant Richard French because they were obtained in violation of his right to counsel; (2) discovery violations and evidence concealed by the prosecutor about Frenchs statements to police in other cases denied him a fair trial; and (3) the trial court erred by allowing a police officer to testify that he believed that Ortiz was lying when he denied involvement in the underlying crimes. We affirm the judgment of conviction.

I. FACTS

A. Smiths Death

On the morning of Tuesday, February 24, 2004,^[2]25-year-old Felicia Smith was killed at her Bay Street home in San Francisco. As her body lay on her bed, the bed was set on fire. Smoke was first seen coming from the chimney of the house between 7:00 and 7:30 a.m. that morning. Firefighters were summoned between 8:30 and 8:40 a.m. When they arrived at the house, they could see smoke coming out of the ground level of house. The fire had smoldered, producing smoke for several hours after it began. It was contained on the bed in Smiths ground floor apartment where firefighters found her charred body. The area around the mattress did not sustain significant burn damage. The fire was quickly extinguished and arson investigators were contacted.

Nothing appeared to be missing from the house, but smoke detectors had been disconnected or removed.^[3] The position of the body on the bed was unusualarms and legs askew, with the feet at the head of the bed atop the remains of a pillow. An uncapped Jim Beam bottlepartly full of liquid, wrapped in a blanketwas found upright under the bed.^[4] The pillow and the bottle were at opposite ends of the bedanother physical arrangement that seemed odd. Arson experts opined that the fire had been intentionally set on the mattress, probably with an open flame.

B. Investigation

About 9:00 a.m., San Francisco police learned that a charred body had been found at the Bay Street address, but Smiths identity had not then been determined. The name and telephone number of an incoming caller was recorded along with a message left on an answering machine there about 3:10 a.m. The caller implored Smith to let him back into the house, to talk with him. Arson investigators brought the tape-recorded message to the attention of police.

Between 11:00 a.m. and noon, San Francisco Police Inspector Dennis Maffei called the telephone number and spoke with appellant Francisco Ortiz, who agreed to meet with police. Over the next few days, Maffei interviewed Ortiz several times. The first interview took place about 12:30 p.m. on February 24 at a restaurant where Ortiz worked as a cook. Maffei audiotaped that interview. At this point, Ortiz was not a suspectthe police were merely gathering information about a suspicious death.

Maffei told Ortiz that Smith had been found deadnews that elicited an emotional response from Ortiz. He told Maffei that Smith had been his girlfriend since the previous summer.^[5] He also talked about being with Smith at her parents Bay Street home on Monday, February 23. Her parents were out of the country and he was staying with Smith while they were away. Ortiz cooked dinner. Both of them consumed alcohol with dinner.

Ortiz told Maffei that Smith was taking antidepressants and smoking marijuana that night, too. He reported that Smith got angry and violent when she drank alcohol and she took various medications. Ortiz also mentioned a problem that she had with a boyfriend named James who had tried to strangle her and against whom Smith said that she had obtained a restraining order.

Ortiz said that after dinner, he and Smith had sexual intercourse. Later on in the evening of February 23, he and Smith went out to a bar in San Francisco, where they played several games of pool and had more beer. After they returned home, Smith pushed him out of her house. By this time, Ortiz told police, it was about 1:00 a.m. on Tuesday, February 24. Within 10 minutes, he went back to the house and knocked on Smiths window. Smith was still angry with himshe poured beer on him and told him to go away. Ortiz then walked to his Hyde Street apartment. He told police that he arrived at his apartmentwhere he said that he lived aloneabout 2:00 a.m. He slept until about 7:00 a.m. He called Smith by 7:30 a.m., leaving a message for her but she did not call him back. He went to work about 11:00 a.m. that morning.

Ortiz did not have any prior criminal record, so there was no identifying information about him in criminal justice records. After the initial interview, he agreed to allow police to take his fingerprints and photograph. Maffei gave Ortiz several numbers where he could be reached. Later, Ortizs fingerprints were compared with city, state and federal criminal justice databases, without any match.

Ortizs wife Emilia Canet^[6]later testified that on February 24, Ortiz came into their Hyde Street apartment about 7:15 a.m., looking tired and upset, smelling of alcohol.^[7] She sensed that something was wrongshe suspected that Ortiz had lost his job. He had been drinking a lot in recent weeks and she was concerned about him. Ortiz brought a backpack home with him and took out the garbage that morning. That evening, Maffei came to the apartment, where he tape-recorded an interview with Canet. They searched Ortizs clothing, found the backpack with his clothes in it, and retrieved a disposable camera from the garbage.

On February 25, the medical examiner identified the remains from the Bay Street fire as the body of Felicia Smith. The medical examiner concluded that Smith had died before the fire was started. By this time, arson investigators had also concluded that the fire had been deliberately set. These facts and the inconsistencies between Ortizs statement and the information they learned from Canet caused police to focus on him as a suspect. They decided to interview him again.

When Maffei got to work on the morning of February 26, a telephone message was waiting for him from Ortiz. He was upset and crying during the call. Ortiz told Maffei that he felt guilty for leaving Smith alone. He wanted to talk with Maffei about the accident.

Ortiz was brought in for questioning by Maffei again that evening. This interview was videotaped. By this time, Maffei regarded Ortiz as a suspect and Ortiz was given his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) before the interrogation began. In this interview, the police learned new details about the night before Smith died. According to Ortiz, about midnight, when they were finished playing pool, Smith wanted to go to a second bar, but Ortiz was too tired. Smith asked Ortiz for some more marijuana, but he refused. As they walked back to the Bay Street house together, he knew that Smith was angry with him. She appeared to be intoxicatedher balance was off and her speech was slurred.

Back at the house, Smith smoked marijuana and drank beer while Ortiz watched television. They argued because she wanted him to get her more marijuana. Smith pushed Ortiz several times in an aggressive manner. He got his clothes and left. Smith told him she did not want him at the house anymore.

Ortiz admitted that he did not live in the Hyde Street apartment alone, as he had earlier told police. He told police that he had slept in the basement on the night that Smith died so he would not disturb his wife, who found the smell of alcohol upsetting. Ortiz said that he did not sleep at all that night, worrying about Smith. He told police that he called Smiths cell phone at 7:15 or 7:30 a.m. from his cell phone.

Ortiz told Maffei that he felt guilty about Smiths deathhe believed that if he had stayed with her, he could have prevented it. The police told Ortiz that arson investigators believed that Smiths bed was deliberately set on fire. They had ruled out the possibility that the fire had started because Smith fell asleep with a burning cigarette in her hand. The medical examiner and arson investigators believed that Smith was dead before the fire started.

The police questioned Ortiz about a message he left on Smiths answering machine at the Bay Street housea message that was sent at 3:10 a.m. on the morning of February 24. During the interview, the police suggested that Ortiz was not on Hyde Street when he made that call, but was still near the Bay Street house.^[8] Eventually, Ortiz admitted that he was still in front of Smiths house about 3:00 a.m. This contradicted his earlier statement that he had left Smiths house almost two hours earlier.

Inspector Maffei tried to obtain a confession from Ortiz, even going so far as to lie to him about some of the evidence that he said that he had. He accused Ortiz of lying. Ortiz repeatedly denied killing Smith or setting the fire. He contacted the public defenders office, which advised the police that Ortiz would not consent to any further interviews.

C. Arrest and Preliminary Proceedings

On October 18, Ortiz was arrested and charged with first degree murder and arson of an inhabited structure. (See  187, 451, subd. (b).) Bail was set at $1 million. On October 20, a San Francisco newspaper reported that Ortiz had been arrested for killing his girlfriend after a quarrel.

On November 17, San Francisco Police Inspector Tom Cleary told Maffei that a jail inmate named Richard French said that he had information about the Felicia Smith case. French had helped Inspector Cleary on another case. Maffei verified that French and Ortiz were housed in the same part of the county jail. Then, on November 17, Maffei had French brought in for an interview.^[9]

Maffei had never met French before. French related statements that Ortiz made to him, confessing to having killed Smith. He said that Ortiz told him that he had killed his girlfriend because she threatened to tell Ortizs wife that she was pregnant, even though she was not. French indicated that he was willing to testify in the Ortiz case. He asked for no consideration. Maffei did not pay French any money or make French any promises, nor did he attempt to influence the prosecutor on Frenchs case.

After their initial meeting, Maffei returned French to jail and the sheriff returned French to his cell near Ortiz. He did not make any arrangements to place French and Ortiz in the same cell. Maffei did not tell him not to talk to Ortiz, nor did he pose any specific question for French to ask. Maffei did not furnish his case file, photographs or tapes about the Ortiz case to French. French and Ortiz continued to talk in jail, although Ortiz did not say anything as specific as he had said before. Still, French called Maffei and left voicemail messages for him whenever Ortiz said anything that seemed important about his case.

French met with Maffei again on November 18, the day after their initial meeting.^[10] This time, he told Maffei that Ortizs motive for killing his girlfriend was because she was breaking up with him. At a third interview on November 22, French mimicked a hand gesturecircling something with his handsthat he told Maffei that Ortiz had displayed when telling French that he felt his anger go up as Smith died.^[11] French had not gestured in this manner at the two earlier meetings.

Shortly after this third meeting with Maffei, French was moved to a different part of the jail from that in which Ortiz was housed. He asked Maffei to arrange for him to be transferred back to Ortizs cell, but Maffei refused. French did not call Maffei again about the Ortiz case, but he met with Maffei to pass along information about another case. Shortly before Ortizs preliminary hearing, Maffei told French that he would have to testify at that hearing. He later told the trial court that Maffei did not give him the impression that he would be released after the preliminary hearing.

French testified in April 2005 at Ortizs preliminary hearing, recounting the incriminating statements that he said that Ortiz told him. On the basis of this and other evidence, a magistrate found that there was sufficient cause to believe that Ortiz was guilty of murder and arson of an inhabited structure to justify binding him over for trial.

D. Pretrial Matters

In May 2005, Ortiz was charged by information with Smiths murder and arson of an inhabited structure. (See  187, 451, subd. (b).) He pled not guilty to both charges. During discovery, Ortiz sought further information about French, who was alleged to have heard confessions from as many as six persons with whom he had been incarcerated. He submitted questions to ask of each officer to whom French recounted the various confessions. He also sought Frenchs psychiatric records. In August 2005, Frenchs October 2003 burglary case was still pendinghis trial was not expected to begin until after he testified at Ortizs trial.

In September 2005, the prosecution moved for a foundational hearing to exclude and limit some defense evidence.^[12] (See Evid. Code,  402.) Ortiz filed his own pretrial motion to exclude certain prosecution evidence as more prejudicial than probative. He also sought inter alia a foundational hearing about the admissibility of his confession and an order compelling prosecutorial disclosure of all evidence favorable to him. (See Evid. Code,  350, 352, 402; see also CALJIC No. 3.20.) By this time, Frenchwho had been released from jail in May 2005was jailed again in San Mateo County. He was returned to San Francisco from San Mateo County for a hearing on the motions in limine.

The trial court held a hearing on these in limine motions. (See Evid. Code,  402, subd. (b).) French had a long criminal history. He explained how he came to be jailed with Ortiz. He had been arrested in October 2003 for first degree burglary and had been placed in San Francisco jail. He was on parole at the time and a parole hold had also been placed on him. By the following June, he had completed his term for his parole violation and his bail had been reduced to $10,000. He was released on bail, but when he failed to appear at a court hearing, a bench warrant issued for his arrest. He was arrested on that warrant on November 5. At the time of the arrest, French was driving a stolen vehicle and was being held for another parole violation.^[13] Resolution of the October 2003 residential burglary charge was still unresolved at that time, more than a year later.

French was assigned to one part of the jail, but he asked to be moved to another part where he had been more comfortable before. On November 12, he was moved to the part of the jail where he met Ortiz. French told police that Ortiz learned that French had a prior murder conviction. He asked French about the difference between homicide law at the time that French had been convicted and the law in effect at that time. In one of their conversations, Ortiz made comments that prompted French to call Inspector Cleary.

French told the trial court what Ortiz had said to him in jailthat his case was like that of Scott Peterson, except that his girlfriend was not pregnant; that women needed to understand their place; that his girlfriend had threatened to tell his wife that she was pregnant, even though she was not; and that he feared losing his relationship with his wife and son if his girlfriend did so. French also recounted that Ortiz told him that he did not mean for it to happen, but that matters became heated. Ortiz told French that when his girlfriend passed, all the anger and energy left him. As Ortiz said this, he made a hand gesture that mimicked strangulation. He also told French that he was not worried about DNA evidence because he was certain that there would be DNA present that was not his.

French also testified that no one in the police department asked him to speak to Ortiz; no one made a specific offer of consideration, although he hoped for consideration at sentencing; and the Ortiz prosecutor had only told him to tell the truth. The trial court denied Ortizs motion to exclude this statement on grounds pursuant to Massiah v. United States (1964) 377 U.S. 201 (Massiah), concluding that French did not act as a government agent when he obtained this statement from Ortiz. Later, Ortiz objected that Frenchs statement that Ortiz had compared his case to that of Scott Peterson was evidence that should be excluded as more prejudicial than probative. (See Evid. Code,  352.) The trial court also overruled that objection to this proffered evidence.

E. Trial

1. Ortizs Statements and Physical Evidence

At trial, the jury heard and saw audio and videotape recordings of Ortizs interviews with Maffei and the telephone messages that he left for Smith and Maffei. It also viewed a videotape of the crime scene taken after the fire was put out but before the medical examiner removed Smiths body. An expert fire scene analyst opined that the fire was intentionally set and that it smoldered for at least an hour before it was first observed about 7:20 a.m. The fire may have begun five hours before it was extinguished about 8:45 a.m.perhaps as early as 3:45 a.m.

Smiths body was so badly burned that the medical examiner was unable to determine an official cause of death or to set the time of death.^[14] As Smith was dead before the fire began, death by strangulation was a logical, reasonable explanation for her death. She had a blood-alcohol level of 0.13. Her body was not tested for marijuana, but she had no other prescription or illegal drugs in her system.

Smiths vagina and anus contained semen. That found in her vagina was consistent with Ortizs DNA. The semen could not have come from several other men with whom Smith was linked.

The prosecution also offered evidence that Smith had become pregnant with Ortizs child and that Smith had an abortion in late January 2004. Ortiz had seemed angry about her decision to have the abortion. Their stormy relationship had been punctuated by loud arguments but no physical violence. On Monday nights, Smith and Ortiz would often drink and sometimes quarrel.

Shortly before she died, Smith told her ex-husband that she feared that an ex-boyfriendsomeone other than Ortizwas stalking her. During the investigation into her death, several men connected to Smith were interviewed and DNA samples were taken from them. DNA belonging to an unidentified human male^[15]was found under Smiths fingernails at the time of her death.

2. Cell Phone Records

On the night that Smith died, cell phone records showed that calls were made from Ortizs cell phone to Smiths Bay Street home at 3:11 and 3:13 a.m. The 3:11 a.m. call was relayed from a cell toweror cell sitelocated atop the roof at 2620 Jones Street in San Francisco.^[16] Calls were also made from Ortizs cell phone to Smiths cell phone at 3:13 and 3:27 a.m. The first of Ortizs calls to Smiths cell phone was relayed from a cell site at 2000 Van Ness Avenue,^[17]while the second was relayed by the cell site on Jones Street.

After 3:27 a.m., no more calls were made from Ortizs cell phone until 7:12 a.m., when calls were placed first to the Bay Street home and then to Smiths cell phone. Both of these calls were relayed by a cell site at 965 Sutter Street in San Francisco.^[18] A city the size of San Francisco has many cell sites. A cell phone call is usually relayed through a cell site that is closest to the calling cell phone. If the cell phones line of sight to the nearest cell site is obstructed, the call will be relayed through another cell site that is not obstructed. Based on this evidence, Maffei opined that Ortizs 3:00 a.m. calls to Smith came from the area near the Smith home on Bay Street, while his 7:00 a.m. calls to her originated in the Hyde Street area near Ortizs apartment.

3. Evidence of Jailhouse Confession

Before Richard French testified, the jury was admonished to view his testimony with caution. He told the jury that he and Ortiz were in jail together. While in jail, Ortiz told him that he had killed his girlfriend, with whom he had quarreled. She was angry that he would not leave his wife. Ortiz feared that his wife might prevent him from visiting his son. His girlfriend threatened to tell his wife that she was pregnant with his child, even though she was not. He also likened his situation to the Laci Peterson case, saying [M]y case is like that, except mine wasnt pregnant. A verdict had been announced in the Peterson murder case shortly after the two men were housed together in the same part of the jail.

French told the jury that Ortiz knew that French had been convicted of murder. Ortiz asked whether French felt or saw the person leave the body at the time of the murder. French did not understand what he meant. Ortiz said that when his girlfriend died, he watched it leave the bodyhe felt the life go out of herand he felt all his anger going with it. As he said this, Ortiz used a gesture that mimicked strangulation.

French contacted Inspector Cleary with this information and Maffei spoke with him about it. At their first meeting, he told Maffei that Ortiz had likened his own case to the Peterson case. At a second meeting, French told Maffei that Ortizs motive for killing his girlfriend was because she was breaking up with him.^[19] At their third meeting, French showed Maffei the hand gesture that Ortiz used. By this time, French had been moved out of Ortizs part of the jail. He asked Maffei to arrange to have him moved back, but Maffei would not do so.

French admitted that he had testified for the prosecution beforein a drug case, in two child molestation cases, and in a murder case. He had been providing information to the police for almost 30 years. He had been convicted of so many offenses that he did not know how many there were. He was 49 years old and had been in trouble since he was a teenager. He had been addicted to methamphetamine and heroin for more than 30 years. He stole to support his drug habit. He had been convicted of first degree murder, auto theft, burglary, and drug possession offenses. He had been sent to prison for various offenses and had been returned to prison for violations of parole.

More recently, French had been convicted of impersonating another person, of failing to appear in court, and of petty theft. He had pled guilty to receiving stolen property and possession of false identification, but had not yet been sentenced for those offenses. He might be sentenced to as much as two years in prison for those offenses. His October 2003 burglary case was also unresolved at the time of Ortizs trial. He expected to serve a year in jail for that offense.

French also testified about his history of providing information to police. At the time of his October 2003 arrest, French had contacted San Francisco Homicide Inspector Tom Cleary. French passed on a cellmates confession and Cleary added $40 to his jail account. In May 2004, French told Inspector Kervin Silas that another cellmate had confessed a murder to him. Inspector Silas spoke to Frenchs parole officer on his behalf. During this period of incarceration, French also told Inspector Walsh about a third cellmate who had confessed a homicide to him.

The jury learned that once, when he had been arrested, he offered to provide information about a woman who would be transporting methamphetamine if the arresting officer would agree not to send him to jail. He had also offered authorities information about a plot to kill a police officer that he learned about while in a San Francisco jail cell. Three other inmates asked him to hire a hit man to kill the officer. They intended to give him money to hire the hit man. Police took him out of jail, placed a wire on him and sent him to the location where the plot was to be discussed. French was not able to provide evidence of a plot. This incident led to a charge of providing false information to the police and a finding that he had violated the terms of his probation.

In September 2005, French was returned to San Francisco County jail so he could testify at a pretrial hearing in the Ortiz case. During the month between that hearing and his October 2005 trial testimony, French remained jailed in San Francisco. In that month, he had already contacted Inspectors Maffei and Cleary about yet another cellmate who provided information on another murder.

French admitted that he sometimes had auditory and visual hallucinations as the result of a mental disorder. He took psychotropic medication for this disorder. If he did not get his medication, he would hear voices. Sometimes, he had seizures. Shortly before Ortizs preliminary hearing, he told someone in the jail psychiatric services that he might be leaving jail later that week. In fact, French testified at the preliminary hearing on April 27, 2005, and was released on his own recognizance on May 12, 2005. Before he was released, French told Inspector Brian Danker that another inmate had confessed to committing a home invasion robbery.

French also admitted that he had been interviewed by a Bay Guardian reporter after he told Maffei what Ortiz had said to him. In the article, he was quoted as having told the reporter that a police officer once left him alone with someone elses case file before French offered a jailhouse confession citing some of the details from that file. He testified that Maffei had told him to tell the truth. He had never offered French money or shown him information about the Ortiz case. Maffei confirmed many points of Frenchs testimony when he offered his own testimony about his dealings with French.

At the close of the Peoples case-in-chief, Ortiz moved for acquittal on the charge of first degree murder, contending that the prosecution presented insufficient evidence to support a conviction of first degree murder. That motion was denied. (See  1118.1.)

4. Defense Case

In his defense, Ortiz offered the testimony of various police witnesses tending to undermine Frenchs credibility by offering detailed descriptions of his past criminal conduct and false acts. These law enforcement officials painted a picture of French as a longtime heroin addict who regularly committed property crimes in order to support his habit. He was often found in a stolen vehicle, bearing false identification, and in possession of stolen property. He regularly gave police a false name, making it difficult to determine whether warrants were pending against him, as there often were. More than once after being detained for shoplifting, French faked a seizure in an apparent bid to gain sympathy from store officials. In another instance, French offered to provide police with information about an upcoming drug sale in exchange for his release or a lesser charge.

The jury heard extensive evidence about an incident in which French offered false information to police in order to escape from jail. San Francisco Police Sergeant Stephen Gudelj testified that in October 1996, he investigated a case after French reported that three of his fellow cellmates were conspiring to kill another San Francisco police officer. An undercover police officer posed as the potential hit man during a telephone call from one of the supposed conspirators that French appears to have arranged for police. Then, French was released from jail in order to obtain the funds that one of the supposed conspirators trusted him to obtain to pay the supposed killer. Gudelj obtained court approval for Frenchs release and sent him alone to two different locations to collect the money while wearing a hidden transmitter and recording device during each visit. Eventually, one of the other alleged conspirators told police that there was no conspiracy to kill the officerthat the whole plan was Frenchs idea to get the two of them out of jail. In all, the investigation turned up no evidence of any real plot to kill a police officer.

A motion to revoke Frenchs felony probation was filed based on his report of the alleged plot to kill a police officer. The primary basis of the motion to revoke probation was Frenchs alleged conspiracy to escape from county jail by concocting a phony plot. Gudelj testified against French at the hearing on the probation revocation motion, as did two of the alleged co-conspirators. The trial court revoked Frenchs probation and he was sentenced to state prison for two years as a result of this incident.^[20]

Ortiz also offered the testimony of several of Smiths other former companions. Her former boyfriend, James Wing, told the jury that the two were romantically involved from January 2002 through May 2003. He believed that Smith had been faithful to him during this time. He was a recovering alcoholic. During most of the time that he saw Smith, he did not drink, which created a conflict in their relationship. Increasingly, she was using marijuana and taking prescription drugs, prompting arguments. In May 2003, Wing was arrested on domestic violence charges after a verbal dispute with Smith escalated and she became physically violent toward him. He denied inflicting any violence against her, but the court placed a three-month restraining order against him. After the restraining order lapsed in August 2003, Smith called Wing once, but he was no longer interested in seeing her again. Wing also testified that Smith showered and washed her hair daily and got a manicure every two weeks. He denied having anything to do with her death.

Jose Cornejo testified that he met Smith in 1997. When each of them were getting divorced in 2001, they became lovers. They met every few months until the fall of 2003 for an intimate encounter, but were not in a serious relationship.

Tanith Nichols was Smiths former husband. He told the jury that he and Smith were married in June 1999. Their relationship was sometimes fiery. Although they separated in 2001, they kept in contact. Once, before they separated, Smith scratched his arm with her nails during an argument. Four years later, the scars were still visible. Smith practiced good hygiene, taking regular showers and getting her nails manicured.

Nichols spoke with Smith by telephone on February 22, two days before she died. She seemed anxious and distracted. She told Nichols that an ex-boyfriend that she did not want to talk with had been calling her. She felt threatened, like someone was following her. Alexis Rabourne, Smiths therapist from May 2003 to February 2004, testified that in December 2003, Smith complained that she had been getting weird phone calls, including some from a caller breathing into the telephone. Smith did not believe that the caller was James Wing. Rabourne saw Smith six times after that session, but Smith did not mention her concern again.

F. Verdict and Sentence

The jury acquitted Ortiz of first degree murder, but found him guilty of the lesser included offense of second degree murder. He was also convicted of arson of an inhabited structure. (See  187, 451, subd. (b).) He was sentenced to a total term of 23 years to life in prisonan upper determinate term of eight years for arson and a consecutive, indeterminate term of 15 years to life for second degree murder.

II. MASSIAH

A. Trial Court Ruling

First, Ortiz contends the trial court erred by admitting Frenchs testimony about his jailhouse statements. He argues that the statements he made to French were obtained in violation of his Sixth Amendment right to counsel. (See Massiah, supra, 377 U.S. 201, 205-207.) He reasons that French acted as a government agent deliberately eliciting incriminating statements from him. Ortiz asserts that this violation of Massiah was prejudicial.

In the trial court, Ortiz moved to exclude Frenchs testimony as taken in violation of Massiah, alleging that French was a government agent who deliberately elicited incriminating statements from him. After hearing, the trial court ruled that French was not a government agent because the police did not create a situation likely to provide it with incriminating information from Ortiz. It noted that the police did not find out about French until he volunteered information to them. It deemed French to have acted on his own initiative rather than at the behest of the government. It found that no promises or representations of leniency were made in this matter. Thus, the trial court ruled that Frenchs testimony about what Ortiz told him was admissible and it denied Ortizs motion to exclude that testimony on Massiah grounds.^[21]

B. Legal Background

Once an adversarial criminal proceeding has been initiated against an accused, the constitutional right to counsel attaches. From that time on, any incriminating statement that the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against that defendant. (Massiah, supra, 377 U.S. at pp. 205-207; In re Neely (1993) 6 Cal.4th 901, 915; In re Wilson (1992) 3 Cal.4th 945, 950, cert. den. sub nom. California v. Wilson (1993) 507 U.S. 1006; see Maine v. Moulton (1985) 474 U.S. 159, 170; see also U.S. Const., 6th & 14th Amends.) The government actor need not be a regular government employee. If an accuseds cellmate acts as a government agent, an incriminating statement deliberately elicited from the accused by that jailhouse informant is likewise inadmissible. (United States v. Henry (1980) 447 U.S. 264, 269-274; see Kuhlmann v. Wilson (1986) 477 U.S. 436, 458; Maine v. Moulton, supra, 474 U.S. at pp. 173-174 [informant surreptitiously recorded accuseds statements]; see also  4001.1, subd. (b).)

To prove a Sixth Amendment Massiah violation in a case involving a jailhouse informant, the defendant must establish that the informant acted as a government agentacted under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage. (People v. Fairbank (1997) 16 Cal.4th 1223, 1247, cert. den. sub nom. Fairbank v. California (1998) 525 U.S. 861 (Fairbank); In re Neely, supra, 6 Cal.4th at p. 915; see People v. Frye (1998) 18 Cal.4th 894, 993, cert. den. sub nom. Frye v. California (1999) 526 U.S. 1023; People v. Martin (2002)98 Cal.App.4th 408, 420.) The critical inquiry in informant cases is whether the government made a knowing exploitation of an opportunity to coax information from a formally charged suspect in the absence of counsel. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1240, cert. den. sub nom. Gonzalez v. California (1991) 502 U.S. 835.) If the informant acts on his or her own initiative to interrogate an accused, the government may not be said to have deliberately elicited a statement from the accused, even if the government had a general policy of encouraging inmates to listen and report. (Fairbank, supra, 16 Cal.4th at p. 1247; see In re Neely, supra, 6 Cal.4th at p. 915; People v. Gonzalez, supra, 51 Cal.3d at p. 1240; People v. Williams (1988) 44 Cal.3d 1127, 1141, cert. den. sub nom.Williams v. California (1988) 488 U.S. 975.)

A preexisting arrangement between an informant and government agents need not be explicit or formal, but may be inferred from evidence that the parties behaved as if they had an agreement, based on a course of conduct occurring over a period of time. (Fairbank, supra, 16 Cal.4th at p. 1247; In re Neely, supra, 6 Cal.4th at p. 915.) Specific direction from government agents or a prior working relationship with such agents can establish an implicit agreement. (Fairbank, supra, 16 Cal.4th at p. 1247; see United States v. Henry, supra, 447 U.S. at pp. 270-273 & fn. 8 [by prearrangement, government paid informant if he produced useful information about accused whom the government had singled out for inquiry]; People v. Gonzalez, supra, 51 Cal.3d at p. 1241.) The agency relationship may be established by evidence of government officials directing the informant to focus on a particular person or on a specific type of information sought by the government. (In re Neely, supra, 6 Cal.4th at p. 915; People v. Martin, supra, 98 Cal.App.4th at p. 420.)

C. Standard of Review

1. Generally Applied Standard

Initially, the parties disagree about the standard of review on appeal. Ortiz contends that the underlying Massiah issueswhether French was a government agent and whether he deliberately elicited informationare mixed questions of law and fact. Thus, he reasons that our review of the trial courts rulings on these issues should be made de novo. For its part, the People argue that the trial courts rulings were essentially factual determinations that should be reviewed under a standard that is more deferential to the trial court.

The California Supreme Court has settled this issue to our satisfaction. In two Massiah cases in which the trial court found that the informant acted on his or her own initiative, the Supreme Court stated that the issue of whether the informants testimony may be admitted into evidenceis an essentially factual question, and we review it on a deferential standard. (Fairbank, supra, 16 Cal.4th at pp. 1247-1248, quoting People v. Memro (1995) 11 Cal.4th 786, 828, cert. den. sub nom.Memro v.California (1996) 519 U.S. 834; see People v. Martin, supra, 98 Cal.App.4th at p. 421.) Thus, when the trial court made a permissible interpretation of the evidence before it and necessarily concluded that no agency relationship existed, the appellate court will defer to the trial courts finding in this regard. (People v. Martin, supra, 98 Cal.App.4th at pp. 420-421.) As these cases are factually indistinguishable from the case before us, we must apply the law as set out by our Supreme Court.^[22] (See Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.)

2. Exceptional Standard

Alternatively, Ortiz argues that even if a deferential review standard is usually proper, deference is unwarranted in this case because the trial court applied an erroneous legal standard. Specifically, he contends that the trial court made various incorrect assumptionsthat the government agent had to be directed to focus on a particular defendant, that it was necessary for a specific officer to direct the informant to focus on a particular suspect, and that it was necessary for promises or representations about leniency to be explicitly made in the specific case for the informant to constitute a government agent.

We see several flaws in this argument. The first hurdle for Ortiz is a procedural one, as he did not raise this issue in his opening brief on appeal. Typically, we do not consider issues that are raised for the first time in the appellants reply brief. To consider such issues may be unfair, as it does not allow the People an opportunity to respond to the argument. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295 fn. 11; Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 329 fn. 5; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  616, pp. 647-648.)

Even if we could overcome this procedural obstacle, we would not find for Ortiz on the merits of this argument, because it is neither legally sound nor supported by the record on appeal. None of the cases that Ortiz cites support the application of an extraordinary standard of review in a Massiah case. (See Townsend v. Sain (1963) 372 U.S. 293, 315 fn. 10, overruled on another point in Keeney v. Tamayo-Reyes (1992) 504 U.S. 1, 5-6 [voluntariness of confession]; People v. Bell (2007) 40 Cal.4th 582, 596-597 [jury selection], cert. den. sub nom.Bell v. California (Oct. 1, 2007, No. 06-1714) ___ U.S. ___.) One of the cases that he cites is a civil case, which seems completely inapplicable. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [civil class action case].) For us to apply a standard of review contrary to that mandated by our Supreme Court requires a stronger legal showing that that provided by Ortiz in this matter.

Most importantly, our review of the record on appeal does not support Ortizs claim that the trial court in fact applied an erroneous legal standard when it made its Massiah ruling. Ortiz argues that the trial court assumed that if French was to be found to be a government agent, then he had to be directed to focus on a particular defendant, a specific officer such as Maffei had to direct him to focus on Ortiz as a specific defendant, and some explicit promises or representations about leniency had to be explicitly made. We disagree with this construction of the trial courts ruling. It is true that when the trial court made its ruling, it considered the facts that Maffei did not have a prior arrangement with French, that Maffei did not tell French to focus on Ortiz and that no explicit arrangement for information was made between Maffei and French. For the trial court to consider this evidence tending to show that French was not a government agent is not the equivalent of finding that the opposite facts were required in order to conclude that French was a government agent. Ortiz points to nothing suggesting to us that the trial court misunderstood the legal standard to be applied. Having reviewed the trial courts ruling carefully, we find no basis to conclude that it misapplied the law when it made its government agent finding.

For all these reasons, we need not apply Ortizs proposed standard of review. Having determined that the Fairbank standard applies to this matter, we now turn to the merits of the Massiah issue before us on appeal with that standard of review in mind.

D. Government Agent

1. Generally

In essence, Ortiz challenges the reasonableness of the trial courts finding that French did not act as a government agent. He asserts that French was a government agent who deliberately elicited incriminating statements from him, in violation of Massiah and its progeny. In the trial court, it was conceded that Ortiz was in custody at all crucial times and that French did not appear to Ortiz to be anything other than a fellow inmate. Thus, a key issue before the trial court was whether French acted as a government agent at the time that he spoke with Ortiz. (See United States v. Henry, supra, 447 U.S. at pp. 269-274; Massiah, supra, 377 U.S. at pp. 205-207.)

Ortiz reasons that the facts known about Frenchespecially his history of offering evidence about other offenders to law enforcement officials in exchange for money or favorable consideration at sentencingcompel the conclusion that he acted as a government agent in this matter. He treats the issue as if it were one of law for us to determine anew on appeal, when it is essentially a question of fact for the trial court to determine. (See Fairbank, supra, 16 Cal.4th at p. 1247.) In this matter, the trial court did not construe the evidence before it in the manner that Ortiz proposed, but instead found that French did not act as a government agent. On appeal, we must defer to its view of the evidence, rather than the contrary one that Ortiz would have us adopt. (See id. at pp. 1247-1248; see also pt. II.C., ante.)

When we eliminate Ortizs speculation about Frenchs involvement with police and the inferences that he would have us draw from the facts about French that were before the trial court, the only direct evidence is that tending to prove, as the trial court found, that French was not a government agent. Maffei did not pay French or make him any promises. He did not try to influence the prosecutor on Frenchs case. Maffei did not ask French to talk with Ortiz either generally or about a specific topic. He did not furnish French with any Ortiz case file, photographs or tapes. He did not place the two inmates together in the same jail cell. When French was transferred away from Ortiz and he asked Maffei to arrange for him to be transferred back, the officer refused. This evidence satisfies us that the trial court reasonably found that French was not a government agent. (See, e.g., Fairbank, supra, 16 Cal.4th at pp. 1248-1249.)

2. After Initial Meeting

Ortiz also contends that even if French was not a government agent at the time that he initially met with Maffei and offered evidence against Ortiz, he necessarily became a government agent when Maffei returned French to the jail unit in which Ortiz was housed after their initial meeting on November 17. At their November 17 meeting, French told Maffei that Ortiz had confessed to killing Smith. French met with Maffei twice more in the next few days. French offered more evidence tending to prove that Ortiz strangled Smith to death, including use of a gesture attributed to Ortiz that French had not demonstrated at his first meeting with Maffei.^[23]

On appeal, Ortiz reasons that once an informant approaches law enforcement officials with information and tries to make a deal on the basis of it, any subsequent contacts between the informant and the accused is necessarily made with the backing of the government, transforming that informant into a government agent for purposes of Massiah. He cites a federal appellate case in support of this argument. (See U.S. v. Stevens (2d Cir. [N.Y.] 1996) 83 F.3d 60, 64, cert. den. sub nom. Stevens v. United States (1996) 519 U.S. 902.) He neglects to note two key facts that undermine this claim. First, the Stevens court rejected the defendants claim of Massiah error. (See id. at pp. 64-65.) Second, it found that to treat every inmate who hopes to cut some future deal as a government agent would be an unwarranted extension of Massiah. (Id. at p. 64.) For the same reason, we reject Ortizs attempt to extend Massiah far beyond its natural reach. (Ibid.)

To establish a Massiah violation, the defendant must show more than that the police allowed the accused and the informant to meet. (See People v. Martin, supra, 98 Cal.App.4th at p. 420.) Having rejected this challenge, we find that the trial court reasonably concluded that Ortiz did not meet his burden of proving that the police used French as a government agent to deliberately elicit statements from him. (See, e.g., Fairbank, supra, 16 Cal.4th at pp. 1248-1249.)

III. BRADY V. MARYLAND

A. Contentions on Appeal

Ortiz contends that the prosecutors failure to disclose Frenchs statements made in four San Francisco investigations constituted both a discovery violation and Brady error resulting in a denial of his right to a fair trial.^[24] (See Brady v. Maryland, supra, 373 U.S. 83, 87.) Ortiz reasons that this failure to provide him with this evidence resulted in the denial of his right to a fair trial, constituting prejudicial error.

On appeal, Ortiz argues that he was entitled to discover the content of Frenchs statements offered to four San Francisco police officers in pending cases in which French claimed to have reported jailhouse confessions. He planned to use these statements to impeach French at trial. He challenges the failure to disclose two specific items of evidence relating to this hearing. First, he seeks a complete report of Frenchs statements to those officers, not just the summary^[25]of them that was provided to him by the trial court after an in camera hearing. He contends that he was entitled to a full transcript of the testimony offered by San Francisco police inspectors about statements that French made to them. Second, Ortiz also urges us to find that he should have been allowed to review audiotapes of the content of three of Frenchs interviews that were referenced during the in camera hearing.

B. Trial Court Ruling

At Ortizs preliminary hearing, French testified that in as many as six cases, he had reported to four different San Francisco law enforcement officials investigating four different cases about information he overheard while in jail. The implication was that French might obtain favorable consideration in his own criminal matters by offering this information. In an informal June 2005 request, Ortiz sought specific information about these casesthe time frame, the officer involved, and the crime charged. The prosecution did not provide this information to Ortiz.

In July 2005, Ortiz moved to compel discovery of the evidence that French gave in four pending cases to the four San Francisco police inspectors. A hearing was held on the discovery motion in August 2005. Ortiz and the prosecution disagreed about whether Ortiz should subpena the four officers or whether the prosecutor was obligated to obtain the information from them for his benefit. Ortiz argued that the prosecution was presumed to be in possession of the information that the four officers had in these four cases and was required to provide it to him. (See Brady v. Maryland, supra, 373 U.S. at p. 87.) He reasoned that this information was required to be disclosed to him as exonerating evidence showing that French had a pattern and practice of providing confessions to police in order to obtain consideration on his own pending criminal matters.

The trial court stated that the specific information that Ortiz sought was not exculpatory within the meaning of Brady because it did not provide any impeachment evidence beyond the general evidence that French had already offered when admitting that he had given information to several police officers in several cases, hoping to receive consideration in his own cases. Ortiz argued that the information he sought was relevant, particularly because French had told a reporter that an inspector once left him alone with a police file and then returned to ask what the suspect had confessed to French about that matter. He reasoned that it was important for him to learn the manner in which the confessions in these other cases were obtained to provide evidence of a pattern and practice that French obtained confessions and used them for his own benefit. He reasoned that evidence that French could have learned details of each case by examining a police file on the case or his cellmates own papers would be useful to help establish this pattern and practice.

One of the four cases involved a defendant who was being represented by a member of the public defenders office, as was Ortiz. At the time that it sought to resolve the discovery dispute, the trial court was also considering a prosecution motion to disqualify Ortizs defense counsel for a conflict of interest related to that offices prior representation of French.^[26] While the conflict of interest issue was then still pending, the trial court offered to question the officers in camera about the information that Ortiz sought to discover, in order to avoid jeopardizing any ongoing investigations.^[27] Defense counsel agreed, submitting written questions it proposed that the trial court should ask of the officers. She stated her understanding that she was not required to subpena the officers, but that the prosecution would make them available for the in camera hearing. No one objected to the proposal.

The trial court conducted the in camera hearing with the prosecutor and several police witnesses, outside the presence of Ortiz and defense counsel. After the hearing was concluded, the trial court provided Ortiz with a written summary of the evidence that it deemed relevant. The summary set out the trial courts notes about the testimony of four police officers whom French contacted with offers of information.

The testimony of two of these officers relates to the issues Ortiz raises on appeal. The summary offered no specific information about Inspector Marta McDowells testimony, as French apparently offered evidence relating to an uncharged homicide. It did include a detailed summary of Frenchs January 2005 report to Inspector Danker of a cellmates supposed confession to a residential robbery. InspectorDanker concluded that Frenchs information was uncorroborated and differed from that given by the robbery victim. Inspector Danker told the trial court that he gave French snacks, cigarettes and sodas while they talked. Later, Inspector Danker told Frenchs parole officer that French had spoken with him about the robbery case, but he did not believe that French received a more favorable release date because of his call.

The summary stated that Frenchs interviews were audiotaped in three of the four cases, including the January 2005 interview about Inspector Dankers robbery case. The trial courtapparently concerned with the conflict of interest issue that had only recently been resolvednoted that the suspect in Inspector Dankers case was being represented by another member of the public defenders office. The prosecutor objected to Ortizs request to discover the audiotapes, arguing that the tapes involved pending cases. He cited his understanding that the purpose of the sealed transcript of the in camera hearing and the trial courts provision of its summary of evidence of any inducements that French might have received in exchange for information was to prevent disclosure of the contents of the discussions.

Defense counsel insisted that she should be entitled to explore whether the information French gave inspectors contradicted the police departments evidence. If