Opinion
D073455
07-30-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER MARCUS BROWN, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1406953) APPEAL from a judgment of the Superior Court of Riverside County, David A. Gunn, Judge. Affirmed with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
The defendant Christopher Marcus Brown was convicted of the second degree murder of Jamie Harmer. (Pen. Code, § 187, subd. (a).) He challenges the selection of the jurors, claiming that the prosecutor excused a Black prospective juror due to the prosecutor's bias against Blacks as a group. The trial court did not find a prima facie case of discrimination, but applied an incorrect standard requiring systematic exclusion of members of a protected class. We thus review the record independently, and find no prima facie showing of an inference of discriminatory purpose.
All further statutory references are to the Penal Code unless otherwise specified.
Brown also claims that the prosecutor violated her statutory discovery obligation by failing to disclose information from a witness in a timely manner. The trial court found no discovery violation, granted Brown a short continuance to prepare for cross-examination, and admitted the witness's earlier signed declaration. The court declined Brown's requests to strike the witness's testimony and to instruct the jury on a discovery violation. We find that the trial court did not abuse its discretion. The trial court's actions remedied Brown's lack of advance notice of the witness's testimony.
We affirm the judgment.
BACKGROUND
On April 27, 2014, Raul Medina found a body, or more accurately a woman's torso, in a black trash bag by railroad tracks near Panorama and Olivewood in the City of Riverside. Medina smelled a foul odor, "something really bad, unusual." Medina looked through a hole in the bag and saw flesh and hair that looked like they were from a woman. Medina contacted the police. A Riverside police officer searched the area around the train tracks and found two more trash bags containing the rest of the woman's body parts. Her head, each arm and leg were wrapped separately and stuffed into the bags. The bags were in different locations along the tracks. The bags contained no clothes, wallet, or identifying information. By her fingerprints, the woman was later identified as Jamie Harmer.
Darryl Smith contacted the police after seeing a flyer seeking information on the victim, Harmer. Smith lived in an apartment next to Brown's, in an apartment complex located on Olivewood Avenue, near Panorama Road in Riverside. The walls of the apartment were "paper thin," so Smith could hear what happened in Brown's apartment. Two or three weeks before Harmer's body was found, Smith heard Brown enter his apartment and chat with a woman. Brown walked to another part of the apartment, and on returning to the woman, he angrily yelled, "I bring you over here, and you take my dope." The woman replied, " 'I'm sorry, I'm sorry. I'll put it back,' " and ran toward the front of the apartment. Smith heard Brown crash heavily into the woman, or "body-slam" her to the floor. Smith heard "tussling" and heard Brown grunt, as if lifting something heavy. It sounded like Brown picked up the woman and forcefully slammed her down to the ground. Smith heard a burst of air, like the wind being knocked out of the woman. Smith heard nothing more from the woman after her breath was knocked out. For the next couple of hours, Brown repeatedly yelled, angrily, "Why did you make me do this?" Smith did not call the police at the time, believing this was personal business between Brown and the woman.
Brown testified and admitted that he knocked Harmer to the ground inside his apartment, causing her death. Brown said that Harmer came into his apartment earlier that day to get some methamphetamine in return for oral sex. They snorted methamphetamine together. Brown said that Harmer stole his cache of methamphetamine while he was taking a shower. They fought. Brown said that Harmer threw a plastic gram scale at him and charged at him. As Harmer knocked into him, Brown said, he grabbed her against his hip and flipped her over. They both fell to the ground, with Brown on top of Harmer. Harmer was on her back and not responsive. Brown could not find a pulse on her. Harmer's heartbeat and breathing were "faint." Brown stayed by her for approximately an hour and a half to two hours. Her condition did not change. When Brown later checked on Harmer, she was dead.
The next day, Brown said, he went to San Bernardino with Harmer's bicycle and stayed about two weeks. The stench in his apartment was very strong when he returned. He decided to cut the body into pieces in order to get it out of his apartment undetected. He bought a hacksaw and cut her up, put the body parts in trash bags, dropped them out of the back window and then climbed out of the back window, so no one would see him leaving his apartment with the trash bags. He left the bags in different locations along the railroad tracks.
In an earlier police interview, however, Brown told the police that he had never seen Harmer, other than seeing her picture on a flyer posted near his apartment. He said that she was never in his apartment.
A forensic pathologist, Jennifer Park, M.D., determined that Harmer's death was caused by homicidal violence. She could not identify the specific cause of death due to decomposition, but Harmer's internal organs and body parts showed her to be a healthy person with no apparent cause for dying. The pathologist ruled out fatal head trauma or a drug-related death. She could not rule out suffocation or strangulation, due to decomposition and decapitation. There were discolorations on Harmer's upper lip that could have been bruises from being smothered, but they might have been a result of decomposition.
Harmer's DNA and her fingerprint were found inside Brown's apartment. The apartment smelled strongly of bleach, and there were cleaning supplies around. Her blood was found in the bathroom. Brown's fingerprint was under the knot on one of the trash bags in which he disposed of her body parts, and a part of a latex glove bearing Brown's DNA was under the knot of another bag.
Evidence of one of Brown's prior acts was admitted under Evidence Code section 1101, subdivision (b), because it was relevant to his intent in this case. In 2011, Brown and two other men went to the S. home looking for Mr. and Mrs. S.'s son, Robert S. Brown said Robert owed them money. The men left when Mrs. S. said her son was not home. Brown and another man returned the next night. Brown was angry and aggressive. Brown said that a laptop was missing and he wanted to hurt Robert to teach him a lesson. Mr. S. told Brown that Robert was not home. Brown went back the next day and pounded on the door. Again he was aggressive and angry. Brown demanded that the S.'s open the door because he wanted to hurt Robert, who owed him "more than money." Brown carried a military pouch. Brown eventually left and was stopped by the police. Brown ran away when the police stopped the car. The officer found the pouch that Mr. S. saw Brown holding, under the seat where Brown had been sitting. A loaded handgun was in the pouch.
Brown acknowledged his prior criminal acts when he testified. He was convicted of resisting arrest and possession of a firearm by a felon, as a misdemeanor, as a result of threatening the S.'s. He pleaded guilty to two counts of assault with force likely to cause great bodily injury and felony resisting or deterring an officer with force, all committed while he was running around naked inside a large discount store. He said that when he was younger he had a practice of breaking into cars and stealing the car speakers. Early one morning, while it was still dark, he approached a car in a deserted parking lot, holding an open knife. He said he was startled by a woman who was at the car, and ran off. He denied touching her or robbing her of anything. Brown also admitted that he was discharged from the Marines for beating up a fellow Marine who had pulled a prank on him.
Brown also presented evidence that Harmer had a character for violence that will be discussed post in connection with Brown's claim of a discovery violation.
DISCUSSION
I. BATSON/WHEELER
The prosecutor peremptorily excused a Black prospective juror during voir dire. Brown challenged the action under Batson/Wheeler, solely on the basis of the prospective juror's race and Brown's perception that she could have been a fair juror. (Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler), overruled in part on other grounds in Johnson v. California (2005) 545 U.S. 162, 173.) The trial court did not find a prima facie case of discriminatory intent and denied the motion. The trial court, however, used the wrong standard for determining a prima facie case, finding that Brown had not shown systematic exclusion of a protected class. The correct standard for determining a prima facie case is a showing of an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) After independently reviewing the totality of the circumstances, we find no inference of discriminatory purpose. We affirm the ruling.
The prospective juror in question, P.H., was called to the jury panel relatively late during the juror selection process. Only two jurors and three alternates were selected after P.H. was seated. After voir dire of P.H., the prosecutor used three peremptory challenges against other prospective jurors before excusing P.H.
Defense counsel objected when the prosecutor excused P.H. He alleged that the prosecutor acted with discriminatory intent, challenging P.H. because she was Black. He argued that all he had to do to make a prima facie case was to point out that the excused juror belonged to a protected class. He contended that P.H. seemed to be neutral, from her answers to voir dire. The prosecutor had earlier challenged one prospective juror who was Black and one who was either Black or Hispanic, but the record contained reasons why a prosecutor would challenge them. When counsel made this motion, two Black jurors remained on the jury panel, and one Black prospective juror was seated in the front row, and thus could be added to the panel depending on further peremptory challenges.
The ethnicity of this prospective juror was never ascertained.
The trial court found no systematic exclusion of members of a protected class, and no prima facie case of discrimination. The trial court at first commented that Brown's objection to the dismissal of P.H. was the first objection he made, but later clarified that Brown did not have to object every time. He did have to show evidence of group bias. The court explained, ". . . I'm not saying you have to object every time. What I'm saying is that prior to your first objection, it has to be shown to me that there's some sort of systematic exclusion of jurors on the basis of race." The court invited Brown to explain why there was a systematic exclusion of Black jurors, but Brown had nothing to add. The court found no prima facie case of discriminatory intent. After the Batson/Wheeler motion was heard, the prosecutor accepted the jury as constituted, which included two Black jurors and perhaps the Black prospective juror who had been seated in the first row.
A prosecutor may exercise a peremptory challenge against a prospective juror for any reason, except for bias against a protected class, i.e., "the assumption that [B]lack jurors as a group will be unable impartially to consider the State's case against a [B]lack defendant." (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at p. 276 [group bias is a presumption that "certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds"].) The three steps in a Batson/Wheeler inquiry into discriminatory use of peremptory challenges are well known. "First, the opponent of the strike must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges. Second, if the prima facie case has been made, the burden shifts to the proponent of the strike to explain adequately the basis for excusing the juror by offering permissible, nondiscriminatory justifications. Third, if the party has offered a nondiscriminatory reason, the trial court must decide whether the opponent of the strike has proved the ultimate question of purposeful discrimination." (People v. Scott (2015) 61 Cal.4th 363, 383; Johnson, supra, 545 U.S. at p. 168.) This is a first-step case. The trial court found no prima facie case of group bias.
A prima facie case of discrimination in the use of peremptory challenges is established " ' " 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " ' " (People v. Harris (2013) 57 Cal.4th 804, 833; Johnson, supra, 545 U.S. at p. 168.) " 'There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.' " (People v. Parker (2017) 2 Cal.5th 1184, 1211 (Parker).) The defendant meets this "burden at the first, prima facie, stage '. . . by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.' " (Harris, at p. 833.)
"While it is true that '[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal' [citation], the prima facie showing is not made merely by establishing that an excluded juror was a member of a cognizable group." (People v. Jones (2017) 7 Cal.App.5th 787, 803 (Jones).) Instead, the ultimate inclusion on the jury of members of the group allegedly targeted by discrimination " ' "is an indication of good faith in exercising peremptories . . ." and an appropriate factor to consider in assessing a [Batson/Wheeler] motion.' " (People v. Cunningham (2015) 61 Cal.4th 609, 665 (Cunningham).)
Brown did not establish an inference of discrimination, although the trial court asked him to identify the basis for his claim other than P.H.'s race. All Brown added was that P.H. appeared to be a fair juror. That was not sufficient to show bias. Prospective jurors who appear to be fair are challenged for a multitude of reasons. Jury selection is an art, not a science, and "[a] prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix); Jones, supra, 7 Cal.App.5th at p. 805.)
Brown contends that the trial court used an incorrect legal standard in evaluating his motion. He is correct. The trial court found no prima facie case because Brown could show no systematic exclusion of Black jurors. It is incorrect to base a finding of no prima facie case on the lack of a systematic pattern of exclusion. In Cunningham, the Supreme Court held that a prima facie case is made by showing an inference of discriminatory purpose. Examining the record for a systematic pattern of exclusion was incorrect, as it seems to require multiple excusals of prospective jurors of the protected class. (Cunningham, supra, 61 Cal.4th at p. 664.) When the trial court uses an incorrect standard, we independently review the record to determine whether it supports an inference that the prosecutor excused a prospective juror on the basis of race. (Ibid.) The record is scant as to the composition of the jury venire and panel, but it appears that the final jury panel included two Black jurors, and possibly a third, and that the prosecutor excused, in addition to P.H., one Black juror and one juror who was either Black or Hispanic, both for nondiscriminatory reasons.
The Black prospective juror who was "in the front row."
We caution trial counsel to make a clear record of the composition of the jury panel and venire when a Batson/Wheeler motion is made, as the claim may be forfeited on appeal if the defendant fails to provide sufficient information on the record about the cognizable class of the prospective juror or fails to clearly articulate a basis for the motion. (Cunningham, supra, 61 Cal.4th at p. 662.)
The prosecutor did not strike all or most of the members of the protected class, and did not use a disproportionate number of strikes against that group. (Cf. Johnson, supra, 545 U.S. at pp. 164-165 [prosecutor struck all three Black prospective jurors, leaving venire all White].) The prosecutor struck two or three Black prospective jurors in total. Brown acknowledged, and the trial court confirmed, that there were nondiscriminatory reasons for striking two of those three. After voir dire of P.H. and others, the prosecutor used three peremptory challenges against other prospective jurors before excusing P.H.; she did not think that P.H. would be the worst juror for her. The final jury panel included at least two, and possibly three Black jurors, depending on whether the Black juror "in the front row" was in the final panel. These factors strongly suggest that the prosecutor had no group bias or preconceived notions of how all Black jurors would vote on the case. (Cunningham, supra, 61 Cal.4th at p. 665; Batson, supra, 476 U.S. at p. 89.)
Viewing the totality of the relevant factors, we cannot find any inference that the prosecutor was biased against Black people as a whole, or that she assumed that Black jurors as a group would be unable to impartially consider the case against a Black defendant. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at p. 276.) Brown's assertion that P.H. could be a fair juror does not rebut the presumption that the prosecutor exercised her challenges in a nondiscriminatory manner. (Parker, supra, 2 Cal.5th at p. 1211.) There was desultory questioning of and a lack of obvious reasons for several of the prospective jurors who were excused. Questioning by the attorneys becomes more brief and desultory in general in the end stages of voir dire. We are mindful that attorneys may excuse prospective jurors based on "facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (Lenix, supra, 44 Cal.4th at p. 613.) Further, the trial court was present to view the prosecutor's demeanor toward prospective jurors who were Black, and presumably was familiar with the practices of the Riverside County District Attorney's Office. (Cf. Miller-El v. Dretke (2005) 545 U.S. 231, 264 [district attorney's office had history of specific policy of excluding Blacks from juries].) Although we do not defer to the trial court's decision when it used an incorrect standard, " 'the judge's knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience' " is still relevant to our independent determination of a prima facie case because these factors are missing from the record on appeal. (See People v. Rushing (2011) 197 Cal.App.4th 801, 809 [substantial deference to trial court's ruling due to these factors when it uses correct standard].)
In sum, based on our independent review of the totality of the relevant factors, we do not find an inference of discriminatory purpose in the prosecutor's peremptory challenge of P.H. (Cunningham, supra, 61 Cal.4th at pp. 664-665; Johnson, supra, 545 U.S. at p. 168.)
II. DISCOVERY VIOLATION
Brown presented evidence of Harmer's character for violence, under Evidence Code section 1103, subdivision (a). In rebuttal, the prosecutor presented K.C., whom Brown had attempted to rob in 2004. K.C. testified to some details of the attempted robbery that were not contained in the police report—notably, that Brown had pressed his penis up against her buttocks when he first approached her, and that K.C. was afraid she would be raped and killed. Brown argued that a discovery violation had occurred because K.C. had talked with the prosecutor by telephone a few months before trial and the prosecutor did not advise Brown of these new statements. The trial court made no credibility determination on whether K.C. had relayed these facts to the prosecutor before trial. The trial court gave Brown some extra time to prepare for cross-examination of K.C., and admitted the 2004 police report with K.C.'s signed statement to the police, so that the jury could see the discrepancies. Defense counsel thoroughly examined and impeached K.C. on the discrepancies between her testimony at trial and her statements to the police. The trial court found these remedies sufficient to prevent any harm. The court refused Brown's request to instruct the jury on a discovery violation by the prosecutor.
We affirm the trial court's ruling that there is insufficient evidence of any discovery violation, and in any event Brown was not harmed by the lack of notice of K.C.'s new statements. The court did not abuse its discretion in refusing more drastic sanctions such as excluding K.C.'s testimony.
A. Background
Brown presented evidence that Harmer had a history of aggression and violent acts. She stole money from a close friend at knife point. On two occasions, she aggressively resisted arrest, once in connection with threatening people randomly. Harmer's grandmother had told an officer that Harmer had a reputation for being aggressive. Another witness said that Harmer was intimidating and belligerent.
The People presented evidence of Brown's violent character in rebuttal, under Evidence Code section 1103, subdivision (b). K.C. testified that in 2004, she was in the parking lot of her apartment building in the early morning hours before sunrise, packing her car for a trip. The parking lot was empty except for her. Brown drove into the lot, parked his car near the entrance, and walked quickly up to K.C. as she was leaning over the trunk of her car, organizing her packing. Brown pressed the front of his body against K.C.'s buttocks. K.C. managed to turn around and face him. Brown was holding a knife. K.C. testified that she did not know what Brown was doing, but she was afraid that he would rape and kill her. K.C. said something religious like, "In the name of Jesus," and Brown ran away, screaming.
Evidence Code 1103, subdivision (a), permits evidence of a victim's character to prove conduct of the victim in conformity with the character.
Subdivision (b) permits admission of a defendant's character for violence in rebuttal to a defendant's presentation of evidence that the victim had a character for violence.
In response to defense counsel's questioning on cross-examination, K.C. said that she had told the prosecutor the information to which she had testified during a telephone conversation a few months before trial. Brown claimed that there was a discovery violation, because there were discrepancies between K.C.'s testimony and what she told the police in 2004. Most significantly, K.C. told the police that Brown was about a foot away from her, not that he pressed his penis against her buttocks. Nor did K.C. tell the police that she feared Brown would rape and kill her.
In a hearing outside the presence of the jury, K.C. said that when she talked with the prosecutor by telephone, she told the prosecutor that the defendant had pressed his body against her buttocks, and that she believed she was going to be raped. She also said that her conversation with the prosecutor was short, and she might be blending what she talked about with the prosecutor with her current testimony. The prosecutor said she had talked on the telephone with K.C. only about what was in the police report. She later specified that, "If [K.C.] told me that [pressing penis against buttocks and her fear of rape and murder], honestly, . . . I don't remember." It was the prosecutor's habit and practice to send immediately to the defense any information she received. The trial court continued the trial until the next afternoon to permit Brown to conduct additional investigation.
The next day, defense counsel said that after talking with Brown, he decided not to move for a mistrial for tactical reasons. Brown affirmed that he did not want a mistrial. Counsel asked for sanctions for a discovery violation: striking all of K.C.'s testimony, or striking all character evidence, or instructing the jury on the discovery violation. He said that in considering whether to present evidence of Harmer's prior violent acts, he reviewed the evidence of prior acts of violence by his client. He weighed the evidence of Harmer's prior acts against Brown's prior acts. Believing Brown's prior crime against K.C. was only an attempted robbery, he decided to present evidence of Harmer's prior robbery. But if he had known there was an allegation of sexual assault and possible intent to rape, he would have refrained from introducing evidence of Harmer's character because Brown's prior attempted robbery, as described by K.C., was much worse than Harmer's prior violent acts. Thus he claimed he was prejudiced, and would not have presented evidence of Harmer's character if he had known the full extent of Brown's prior crime.
The trial court determined that impeachment of K.C. with her prior declaration to the police was sufficient. Her signed 2004 declaration was admitted into evidence and impeached her current testimony. That was an adequate and sufficient remedy for any violation that may have occurred, along with the extra time given to Brown to prepare for cross-examination. The court noted that approaching a woman at 5:00 a.m. in a deserted parking lot, coming up close, with a knife, ordinarily implied a rape or other assault. Thus, K.C.'s testimony about her fear of being raped was not significantly different from what she told the police in 2004. He did not find that a discovery violation had occurred.
On further cross-examination, K.C. said that she told the police, honestly, all that happened when they took a report in 2004. The officer wrote a statement for her. She signed the declaration, affirming that it was true, and testified at trial that she had been honest with the police. Defense counsel fully impeached K.C. on the discrepancies between her description of Brown's actions in 2004 and her description at trial. The court admitted the report as a recorded recollection.
Brown asked again, when discussing instructions, that the jury be instructed on the prosecutor's failure to provide K.C.'s new statements, with the standard instruction on discovery violations, CALCRIM No. 306. The trial court denied the request. It did not find a discovery violation. If there were a violation, it was inadvertent and Brown received an adequate remedy—a short continuance, admission of K.C.'s statement to the police, and full cross-examination on the discrepancies between her trial testimony and her statements to the police in 2004. Further, the court found insignificant the differences between K.C.'s 2004 statement to the police and her trial testimony. The court suggested a modified instruction that if K.C. made statements to the prosecutor different from her statements in the police report, the prosecutor had a duty to provide those statements to Brown. Brown did not ask for such a modified instruction, and the jury received no instruction on discovery.
CALCRIM No. 306 provides in part: "An attorney for the (People/defense) failed to disclose: __________ <describe evidence that was not disclosed> [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." --------
DISCUSSION
The Supreme Court described the requirements of the reciprocal-discovery statute in People v. Verdugo (2010) 50 Cal.4th 263, 279-280 (Verdugo). Under the reciprocal discovery statute, the prosecution must disclose to defense counsel all written or recorded statements of witnesses who are expected to be called at trial. (Ibid.; § 1054.1, subd. (f).) Prosecutors must disclose written or recorded statements of witnesses 30 days before trial, or as soon as discovered if within 30 days of trial. (Verdugo, at p. 280; § 1054.7.) If K.C. had told the prosecutor information different from what was contained in the police report before trial, the prosecutor should have provided those different statements to Brown. But there was no finding whether K.C. provided that information to the prosecutor before trial.
When the prosecutor has not complied with the discovery rules, trial courts have a range of remedies they may apply. These include a requirement of immediate disclosure, continuance of the matter, and an instruction to the jury on an untimely or lacking disclosure. (§ 1054.5, subd. (b).) A court can exclude testimony, but only if alternative sanctions have been exhausted. (People v. Bowles (2011) 198 Cal.App.4th 318, 326; People v. Ayala (2000) 23 Cal.4th 225, 299 (Ayala); § 1054.5, subd. (c).) A court can also exclude testimony without exhausting other remedies when a discovery violation caused significant prejudice and was willful, in the hope of obtaining a tactical advantage. (People v. Jordan (2003) 108 Cal.App.4th 349, 358; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.) We find that the lack of advance notice did not cause significant prejudice, and both the court and defense counsel agreed that any violation was inadvertent, not willful. In Jackson, in contrast, the defense counsel intentionally withheld an exculpatory statement he had known about for three months. (Jackson, at pp. 1200-1201, 1203.) In addition, lesser sanctions would have been inadequate. The prosecutor had no opportunity to cross-examine the declarant because she could not be found. (Id. at p. 1203.)
We review the trial court's determination of sanctions for an abuse of discretion. (Ayala, supra, 23 Cal.4th at p. 299.) The defendant has the burden of proving that the trial court abused its discretion. (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366.) We find no abuse of discretion here. The actions taken by the trial court provided sufficient remedies to Brown's lack of information about physical contact with K.C. and her reaction.
The trial court gave Brown additional time to further investigate K.C. and to prepare cross-examination. Brown contends that he did not receive enough time to fully investigate K.C., such as discovering the reasons she had left her job as a correctional officer. The trial court said it would not admit such evidence, in any event, because it was collateral to a collateral matter. Defense counsel cross-examined K.C. on all the discrepancies between her 2004 statement and her testimony at trial. The court admitted the 2004 police report, with K.C.'s signed declaration, so the jury could examine for itself the differences between her description of the crime in 2004 and at trial. These remedies compensated for Brown's lack of prior knowledge about K.C.'s statement.
Brown contends that he would not have presented evidence of Harmer's violent character if he had known that this suggestion of sexual assault would have come in. But because he testified in his own defense, he admitted approaching a car with an open knife, in a dark and deserted parking lot. A woman stood by the car. He denied touching her or robbing her of anything. The prosecutor could have impeached his statement that he did not touch the woman, if she had known about the touching at that time.
A discovery violation that does not involve the withholding of exculpatory information is a violation only of the state statute, reviewed for the likelihood of a more favorable result for the defendant in the absence of the violation. (Verdugo, supra 50 Cal.4th at p. 280, citing People v. Watson (1956) 46 Cal.2d 818, 836.) The new evidence was not exculpatory. Under the state standard of harmless error, Brown has not shown any likelihood that he would have received a more favorable result even if K.C.'s testimony had been stricken, or if the jury had been given the standard jury instruction. Brown has forfeited the latter argument, because he did not ask for the modified instruction that the trial court offered. The court could not have given the standard instruction because it did not find a discovery violation by the prosecutor.
The trial court did not abuse its discretion in refusing an instruction on a discovery violation or in providing the remedies of a short continuance and admission of K.C.'s signed declaration from 2004. The differences between K.C.'s statement to the police and her testimony were not significant and were fully explored on cross-examination. We agree with the trial court that a jury would speculate that rape or robbery is the intent of any person who approaches a woman alone in a deserted area in the dark of night, particularly when the person was armed with a knife. Brown's pressing of his body into K.C.'s buttocks was worse than standing a foot away from her, but the potential crimes and resulting fear would be largely the same for a woman alone in a deserted area whether a perpetrator stood a mere foot away with a knife at his waist pointed at her, or pressed himself into the woman's buttocks and held the knife at shoulder height. And in both statements, Brown ran away from K.C. without further criminal actions. His failure to harm K.C. showed a reluctance, at that time, to violently attack the woman.
In any event, there was no reasonable likelihood that Brown would have achieved a more favorable result if K.C.'s testimony had been excluded. (Verdugo, supra 50 Cal.4th at p. 280.) Pressing his body against K.C., then running away, was far less prejudicial than other evidence that was admitted, including his two assaults with force likely to cause great bodily injury and resisting an officer with force, and his violent threats toward Robert S. Brown claims he would not have presented the evidence of Harmer's violent past if he had known what K.C. would say, but then he would have had no basis for his claim that Harmer was the aggressor.
Brown argues that it was a close question whether he committed second degree murder, due to the inability of determining the mechanism of death. But he caused the inability by letting Harmer's body rot, cutting it into pieces, and discarding it like trash along the railroad. His actions after slamming her to the ground reflect his consciousness of guilt.
We cannot find a discovery violation on this record and, in any event, we find no reasonable likelihood that Brown would have received a more favorable result at trial if K.C.'s testimony had been excluded.
A. Fees
The trial court erred in failing to require fees that are mandatory after a conviction. The trial court imposed the mandatory court facilities assessment of $30 (Gov. Code, § 70373, subd. (a)(1)) and the $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), but suspended them due to Brown's inability to pay. Both of those fees are mandatory without regard for the defendant's ability to pay. (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2; People v. Woods (2010) 191 Cal.App.4th 269, 272-273 [court facility assessment, restitution fine, and court security fees may not be stayed because they are mandatory].) "A sentencing court has no discretion to decline to impose" these fees. (Woods, at p. 273.) These fees may be added on appellate review. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
The trial court also suspended the booking fee (Gov. Code, § 29550) due to Brown's lack of ability to pay. The ability to pay may be considered in imposing the booking fee (Gov. Code, § 29550.2, subd. (a)), unlike the facilities assessment and court security fees, which are not subject to the defendant's ability to pay. But instead of imposing and suspending the booking fee, the trial court should not have imposed it. Imposition of the fee should be stricken. The abstract of judgment incorrectly states that Brown must pay the booking fee of $425.82, and must be corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to remove the booking fee and to add the court security fee of $40 and the court facilities assessment of $30. The court is also directed to send a certified copy of the abstract of judgment to the Department of Corrections and Rehabilitation.
BENKE, Acting P. J. WE CONCUR: HALLER, J. DATO, J.