Opinion
A149685
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN HOWARD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN224039)
A jury convicted defendant Justin Howard of first degree murder (Pen. Code, §187, subd. (a)). An enhancement for having committed the murder by personally and intentionally discharging a firearm (§ 12022.53, subd. (d)) was also found to be true. Defendant was sentenced to an aggregate term of 50 years to life. On appeal, he contends the trial court erred in admitting information derived from his medical records, and in allowing the admission of late-discovered evidence retrieved from his cellular phone. He also raises certain postconviction sentencing and parole hearing issues. We remand for the trial court to exercise its discretion to dismiss gun use enhancement under recently enacted Senate Bill No. 620, as well as to permit defendant to introduce evidence relevant to his future youth parole suitability hearing. We otherwise affirm the judgment.
All further statutory references are to the Penal Code except as otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Prosecution's Case
At trial, Erica Kane testified that on the morning of June 13, 2014, her boyfriend Dominic Anderson drove her to Walden House at the corner of 15th Street and Mission Street in San Francisco. He parked their white convertible across the street from Walden House and waited for her in the car while she went inside. The top of the convertible was down. As she was heading to her caseworker's office inside the building, she heard a few shots. She ran outside to make sure Anderson was okay. She found him on the ground, bleeding and asking for help. He said, "I love you," as she attempted to comfort him. Subsequently, emergency medical personnel arrived and he was taken away in an ambulance. He was pronounced dead shortly before 10:00 a.m. Three spent shell casings were later found directly in front of the car. The casings were from a .40 Smith & Wesson caliber semiautomatic pistol.
Dr. Ellen Moffatt conducted Anderson's postmortem examination. She observed that he had gunshot wounds to his lower neck, his back, his chest, and his arm. His wounds were consistent with his having been seated in a car. The cause of death was multiple gunshot wounds.
At about 9:15 a.m., Glendi Escobedo was on 15th Street driving toward Mission Street when she saw the shiny pink or fuchsia-colored car in front of her suddenly stop and reverse "for about two or three seconds." The pink car had driven past a parked white car with no roof, and then reversed back to be right in line with the white car. She saw a hand holding a gun come out of the pink car. The color of the skin on the hand was black. The gun was pointed at a Black man who was seated in the driver's position in the white car. She heard three or four shots. The man in the white car fell out of the car and onto the sidewalk. Later, she was able to tell the police the last three digits of the pink car's license plate.
Wilson Zheng testified that he was driving northbound on Mission Street at about 9:15 a.m. on June 13, 2014. He was beginning to make a left turn on to 15th Street when he heard four loud bangs to his right. He slammed on his brakes and a purple vehicle zoomed past him on his right, coming across Mission Street westbound on 15th Street. The driver's side window of the purple car was rolled down and Zheng saw it was being driven by an African American male. The man was in his 20s and was wearing a hooded sweatshirt. Some of the man's head was exposed and he had short hair. Zheng followed the car for a moment to get the license plate number before he called 911. The 911 call was played at trial. During the call, Zheng stated that the man driving the car was bald.
At 8:57 a.m., someone drove a purple car westbound over the Bay Bridge, according to video surveillance. Moments earlier, a dark-colored Mitsubishi Galant, later determined to have been owned by Mary Diaz, who is defendant's girlfriend, passed through the toll plaza.
Sergeant Oscar Barcena found and examined videos taken from various surveillance cameras. Footage from buildings near the crime scene showed a purple Lexus traveling on 15th Street and driving past a parked white convertible before stopping briefly, reversing, and then stopping parallel to the convertible. The purple car then sped away headed toward the freeway. A montage of the surveillance videos was played for the jury.
Michael Easter is a special agent with the FBI. He is assigned to a unit that analyzes and maps cell phone data in relation to events involving violent crime. He analyzed cell phone tower records for cell phone numbers associated with defendant and Diaz for the night and morning hours preceding the murder. At 8:31 a.m. on the morning of the murder, there was call activity in the area of 918 Maine Avenue in Richmond, which is where defendant and Diaz resided. At 8:57 a.m., defendant's and Diaz's cell phones connected with towers near the tollbooths on the Bay Bridge. About seven minutes later, their phones connected by a tower near downtown San Francisco near 4th Street and Bryant Street. At 9:04 a.m., the phones connected with a tower "near the intersection of the Central Freeway and [Highway] 101." At 9:20 a.m., the phones connected again in the area of 4th Street and Bryant Street. The phone activity then traveled from San Francisco towards the East Bay.
Between 10:32 a.m. and 12:30 p.m., defendant's cell phone made connections with towers near Alameda County Medical Center, also known as Highland Hospital (Highland). Medical records showed defendant had an appointment scheduled for 10:30 a.m. at Highland on the day of the murder and that he registered for the appointment at 10:56 a.m. A document also showed defendant's consent-to-treatment form was signed at 11:02 a.m.
At about 5:40 on the afternoon of June 13, 2014, Officer Michael Troupe with the Oakland Police Department was dispatched to investigate a report of a stolen purple Lexus SC400. The vehicle was registered to defendant, who was the complainant. He said he had left his car on 20th Avenue near Foothill Boulevard the night before at around 8:30 p.m. and noticed it was missing on June 13 at about 1:30 p.m. He relayed that he had parked his car after experiencing back pain. He then had transferred to his girlfriend's car to go to San Lorenzo. He told the officer that he thought the key to the car had fallen off his key ring as he got out of the vehicle. When Troupe met with defendant, defendant's left arm was in a sling and his hair was approximately a half inch longer than it appeared at trial.
During a subsequent phone call, defendant told Troupe that he was at the hospital at 9:00 a.m. on the morning of the murder, and that his appointment had been scheduled for 10:00 a.m. Later, Troupe received information that the car had been involved in a homicide. Defendant's car was recovered in Oakland on June 15, 2014. It had been torched. Officers found a "charred set of keys" on "the driver's floorboard under the seat." II. Defense Case
On June 8, 2014, defendant was admitted to the hospital at 10:50 p.m. as a "level one" trauma, due to penetration of his torso. He was discharged at 4:30 a.m. the following day. He was advised to come back for a follow-up appointment on June 13, 2014. He was given a prescription for Vicodin, along with a handout advising patients that they should not drive while on the medication.
Dr. Barnard Palmer treated defendant at Highland. Defendant had injuries to his left chest and armpit, and to his left arm. After a period of observation, it was determined that he did not have life-threatening injuries and he was discharged.
Jordan Pang was a security officer working at Valencia Gardens apartment complex. On April 10, 2014, he took a picture of a purple Lexus that was wrongfully parked in a space belonging to a resident. Pang contacted the owner of the car and told him he needed to move the car or it would be towed. He was aware that the car's owner visited his grandmother on the sixth floor at the senior building. Valencia Gardens is located two blocks away from the intersection of 15th Street and Mission Street.
Anastasia Grandy was a case manager at HealthRIGHT 360, located at 15th Street and Mission. Kane was one of her clients. At 9:05 a.m. the day of the murder, Grandy went out to move her car when she saw Kane's car parked across the street. As she was crossing the street to go to Kane's car, a man who had jumped out of nearby a car bumped into her. He said, "excuse me," and continued on the sidewalk past Kane's car going towards Mission Street. The man's hands were tucked in his pants and she never saw him holding a gun or holding his arm out. She then heard what appeared to be fireworks and gunshots. She saw a purple car located a little offset from Kane's car. After the shots, the purple car continued through the intersection on 15th Street and Mission. She testified at trial that she did not see the person who fired the shots.
Sergeant Thomas Moran of the San Francisco Police Department testified that he knew an individual named Paris Anderson. He conducted a couple of probation searches on Paris in which Paris did not have a cell phone. Moran learned that Paris was struggling for money and sometimes could not afford to have a phone. Moran did not know if Paris had an active cell phone during the month of June 2014. Paris died by homicide committed on November 6, 2014.
Because the victim and Paris share the same surname, we use Paris's first name to identify him in this opinion. No disrespect is intended.
Defendant testified that he was 26 years old at the time of trial and had grown up in the Western Addition/Fillmore area in San Francisco. After he graduated from high school, he worked for three and a half years at the YMCA. He also worked for a recycling and waste management company. In June 2014, he was living at 918 Maine Avenue in Richmond with his girlfriend Diaz, Diaz's mother and stepfather, as well as Diaz's son and defendant's son.
On June 13, 2014, defendant had a follow-up morning appointment at Highland Hospital for his injuries. He left his home at 8:30 a.m. because he thought his appointment was at 9:30 a.m. His left arm was in a sling due to his injury. He is left-handed, so he had to use his right hand to drive. Defendant continued to take pain medication up to the time of trial.
Before defendant went to his appointment, he met his cousin Paris at 20th and Foothill, near where his cousin Lamar Johnson lives. Paris had asked defendant the night before if he could borrow the car that morning. Paris did not have a cell phone. Paris got in the passenger seat and defendant drove to Highland. He arrived at the hospital around 9:00 a.m. Paris then hopped in the driver's seat and drove the car away.
When defendant arrived at the clinic he told the desk clerk that his appointment was at 9:30 a.m. He then learned that his appointment actually wasn't until 10:30 a.m. He went outside to wait and realized he had left his cell phone in the car. Later, Paris approached defendant in the lobby of the hospital and returned his phone. Paris appeared to be nervous and scared. Defendant said that he lied when he reported his car stolen, explaining that he did so to cover for Paris at his request.
Defendant's grandmother lives at Valencia Gardens. He would visit her often. He drove there the night before the murder to visit her and his father because they had not seen him since his injury. That was where he saw Paris, who asked if he could borrow defendant's car the next morning. Defendant denied being in San Francisco on the date of the murder. He also denied driving his car in San Francisco and denied shooting the victim. He stated that he did not get his phone back from Paris until around 10:30 a.m. and had not checked any voicemail or made any calls before then. III. The People's Rebuttal
Dr. Javid Sadjadi treated defendant on June 13, 2014. Defendant appeared healthy and had normal strength in his left arm. His wounds appeared to be healing properly. In the doctor's opinion, someone with defendant's injuries and presentation at that time would have been able to use a handgun.
Sherman Kwok is a special agent with the FBI. He assisted Lieutenant Burke in unlocking defendant's cell phone because the phone was passcode protected. Kwok's work uncovered that the PIN was 3772. The PIN has to be entered before the phone can be used. The phone was set to go to sleep after 30 seconds. After that, the user must press a button to light up the screen. The PIN would then have to be entered in order to use the phone. Even after receiving an incoming call, one would still have to enter the PIN to do anything else on the phone. IV. The Verdict and Sentencing
On November 2, 2015, a jury found defendant guilty of first degree murder and found true the allegation that he had personally and intentionally discharged a firearm.
On September 30, 2016, the trial court sentenced defendant to a total of 50 years to life in prison. This appeal followed.
DISCUSSION
I. Hearsay Objection to Computer-generated Documents from Highland
A. Background
Defendant argues that the trial court committed prejudicial error in its admission of time entries appearing on computer-generated documents from Highland. He claims the evidence was unexcepted hearsay.
During the preliminary hearing, the prosecutor offered subpoenaed records from Highland. Defense counsel objected on hearsay and foundation grounds. The prosecutor noted that the records "indicate dates and times that the People are interested in having the court focus on. [¶] Number one is the date of June 13, 2014. The defendant's medical appointment was for 10:30 a.m. on that date. [¶] The records also reflect that on that date, June 13, 2014, the defendant appeared for his medical appointment at 10:56 a.m. [¶] And I think the third thing is that the doctor's note of treatment of Mr. Howard on that particular date was dictated at a certain time and it was typed at a certain time, and those are the only three pertinent portions as far as the preliminary hearing is concerned, Your Honor." The trial court overruled defendant's objection, finding that sufficient foundation established the evidence fell within the business record exception to the hearsay rule as to "observations, statements, times, treatment offered."
Defense counsel later moved in limine to exclude as inadmissible hearsay these same subpoenaed records, on the ground that the records did not satisfy the hearsay exception of Evidence Code section 1280 for public records. The motion did not make any argument regarding business records exception under Evidence Code section 1271. Defense counsel was addressing the evidence of the times of defendant's check-in and treatment on June 13, 2014. However, at the hearing on the motion, defense counsel raised only the business records exemption, stating that "for the business records exception, there still needs to be a hearsay exception for the underlying materials contained within that document." His argument was that without a live witness testifying as to the actual entry of the times, the times reflected in the documents were inadmissible hearsay. The motion was summarily denied.
During trial, before testimony from the custodian of records for Highland, defense counsel renewed his objection: "This particular witness can only say this is a [Highland] medical record document. She was not the one that actually entered—manually entered the information. That was Robert Mays. This is an individual who is taking information and putting it into the computer. Based on this, it's hearsay." After arguments were heard, the court stated: "So I will allow Mr. Rowland for the People to bring in the following: The time of the appointment, the registration time of the appointment on June 13, and when he signed in that day, okay?"
Thereafter, Leeann Schierburg, the custodian of records for Highland, identified defendant's subpoenaed medical records as "true and correct copies" of the original hospital records. Schierburg said that the records were made in the regular course of business and that the information contained therein was recorded "at or near the time of the event reflected by the information in the records." She explained that the records showed defendant registered at 10:56 a.m. for his 10:30 a.m. appointment on June 13, 2014, and that he signed a consent for treatment at 11:02 a.m. When asked on cross-examination, "How did that time, 10:56, get entered into the . . . records system?" Schierburg said, "It is put in by the computer when you complete the document. The document is given in real time by the computer. It's an electronic medical record. So when you document an electronic medical record, it pulls the right time." The records were then marked, but were later withdrawn and never admitted.
B. The Computer-generated Time Stamp Is Not Hearsay
Defendant asserts no custodian or other qualified witness testified as to the identity and the mode of the hospital record's preparation with respect to the time entries. He states that it is "obvious" that "someone inputted it." However, as the People note, the evidence of the time stamp on the documents is not hearsay in the first place because time stamps were generated by the computer when the documents were created. Data that is automatically generated by a computer is not hearsay because the data is not a statement of a person. (People v. Goldsmith (2014) 59 Cal.4th 258, 273-274 [digital photographs automatically taken by a machine and data, such as date and time, which a computer automatically generates and imprints, are not hearsay]; People v. Nazary (2010) 191 Cal.App.4th 727, 754 [computer-generated receipts, which show the date, time, and totals, are not statements input by a person], overruled on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 648, fn. 16; see People v. Hawkins (2002) 98 Cal.App.4th 1428, 1449 (Hawkins) ["The Evidence Code does not contemplate that a machine can make a statement."].)
We are concerned only with the date and time information as that information appears on the computer-generated documents. During the hearing on the motion in limine, defense counsel stated that "we have a specific objection as to that [time of admission] because, without Robert Mays [the clerk who entered the appointment information] or a live witness, that's hearsay, that's inadmissible hearsay." Defendant's opening brief also indicates that the motion to exclude was confined to the time entries only. While the 10:30 a.m. time of defendant's scheduled appointment was also admitted into evidence, defendant himself testified that while he thought his appointment was at 9:30 a.m., he was informed when he arrived at the hospital that it was scheduled for 10:30 a.m. Because the actual scheduled time for his appointment time was not contested, any error in admitting the time of his appointment would be harmless under any standard.
Hearsay evidence "is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Statement" means "(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225, italics added.) "Person" includes "a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity." (Evid. Code, § 175.)
In Hawkins, the computer-generated information admitted into evidence concerned the dates certain files on a computer were accessed. (Hawkins, supra, 98 Cal.App.4th at pp. 1433, 1437.) When the files were last accessed was information generated and recorded by the computer; it was not information placed into the computer by a person. In that case, the defendant was accused of improperly accessing his employer's computer. The prosecution moved to introduce computer-generated printouts that showed the time that the defendant accessed certain computer files. A computer expert testified about the accuracy of the computer clock when the records were made. The defendant argued the computer records were inadmissible hearsay. (Id. at pp. 1446-1447.)
The appellate court in Hawkins reviewed various cases that held computer printouts were admissible if they fell within the hearsay exceptions for business or official records. However, the court noted that "these cases have not discriminated among the different types of information that computers can print out. A computer can be used to store documents and information entered by human operators. A computer can also be programmed to generate information on its own, such as a record of its internal operations." (Hawkins, supra, 98 Cal.App.4th at p. 1449.) The court found that a computer-generated image—that is to say, a record created by an electronic device—is not a "statement" because it was not made by a person: " 'The printout of the results of [a] computer's internal operations is not hearsay evidence. It does not represent the output of statements placed into the computer by out of court declarants. Nor can we say that this printout itself is a "statement" constituting hearsay evidence. The underlying rationale of the hearsay rule is that such statements are made without an oath and their truth cannot be tested by cross-examination. [Citations.] Of concern is the possibility that a witness may consciously or unconsciously misrepresent what the declarant told him or that the declarant may consciously or unconsciously misrepresent a fact or occurrence. [Citation.] With a machine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly.' " (Hawkins, at p. 1449.)
As noted above, Schierburg testified that the time stamps are generated by the computer at the time the medical record is completed. She stated the time "is put in by the computer when you complete the document. The document is given in real time by the computer. It's an electronic medical record. So when you document an electronic medical record, it pulls the right time." The business records exception therefore has no application here because the time stamps are not "statements" within the meaning of the relevant Evidence Code provisions.
The accuracy of the computer's time stamp was not challenged below. Regardless, "courts have refused to require, as a prerequisite to admission of computer records, testimony on the 'acceptability, accuracy, maintenance, and reliability of . . . computer hardware and software.' " (People v. Martinez (2000) 22 Cal.4th 106, 132.) When errors and mistakes occur, they may be developed on cross-examination and should not affect the admissibility of the computer record itself. (Ibid.)
In his reply brief, defendant contends that while the 10:56 a.m. time "is nonhearsay if taken for the truth of the time the computer generated the document, it is hearsay insofar as the People are claiming it for the truth of what time [defendant] went through the registration process." However, the evidence is what it is. The People's argument was based on the evidence of the time stamp itself, which is not a "statement" for purposes of a hearsay analysis. The essential character of the evidence did not transmute into a "statement" just because the People argued that it showed when defendant arrived for his appointment.
C. No Abuse of Discretion
Even if the challenged records are deemed to be hearsay, the trial court's evidentiary ruling was not an abuse of discretion. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1095 ["[w]e review for an abuse of discretion the trial court's rulings on the admissibility of evidence"].) First, the medical records had a proper foundation to qualify as business records. "Evidence Code section 1271 provides that '[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule . . .' if it meets all of the following requirements: '(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.' [¶] ' "Whether a particular business record is admissible as an exception to the hearsay rule . . . depends upon the 'trustworthiness' of such evidence, a determination that must be made, case by case, from the circumstances surrounding the making of the record. [Citations.]" ' [Citation.] 'The foundation for admitting the record is properly laid if in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission.' " (People v. Zavala (2013) 216 Cal.App.4th 242, 246.)
Hospital records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception. (In re R.R. (2010) 187 Cal.App.4th 1264, 1280; People v. Landau (2016) 246 Cal.App.4th 850, 872, fn. 7.) Compliance with a subpoena duces tecum may dispense with the need for a live witness to establish the business records exception if the records are produced by the custodian or other qualified witness, together with the affidavit described in Evidence Code section 1561. (Evid. Code, § 1560, subd. (b); In re R.R., at p. 1280; In re Troy D. (1989) 215 Cal.App.3d 889, 903.) As relevant here, the affidavit must include "[a] description of the mode of preparation of the records" (Evid. Code, § 1561, subd. (a)(5)) and a statement to the effect that "[t]he affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records" (id., subd. (a)(1), and "[t]he records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event" (id., subd. (a)(3)).
Defendant presumes the record reflects compliance with Evidence Code section 1561, instead arguing that "merely because something is a 'business record' does not necessarily make its hearsay contents admissible." He asserts the foundational requirements of subdivisions (c) and (d) of Evidence Code section 1271 were not satisfied. His reliance on Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697 (Taggart) to support his argument is unavailing because in that case there was not even an attempt to identify the records or their mode of preparation.
Evidence Code section 1271, subdivision (c) requires that "the custodian or other qualified witness testifies to its identity and the mode of its preparation." Subdivision (d) of this statute requires that "[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness."
Defendant's reliance on Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187 is also unavailing. That case did not involve hearsay or Evidence Code section 1271.
Taggart was a personal injury case against a helmet maker. The plaintiff wanted to introduce reports of tests on a slightly earlier version of the helmet at issue from an independent research institute. (Taggart, supra, 33 Cal.App.4th at p. 1702.) The institute's custodian of records responded to a subpoena for the records, but the custodian's accompanying declaration failed to identify the records or their mode of preparation. In upholding a defense judgment against the plaintiff's claim that the trial judge should have admitted the reports, the appellate court noted that the subpoena requiring the production of the records (Evid. Code, § 1561) does not require the custodian to state the identity or mode of preparation of subpoenaed records, so the reports could not qualify as business records. (Taggart, at p. 1706.)
The appellate court bulwarked its ruling by noting the different dynamics applying to business records obtained by subpoena and those authenticated in open court: "The Legislature's wisdom is demonstrated by what occurred in this case: not only did plaintiffs fail to show that the records were trustworthy, but Super Seer had no opportunity to show that the records were untrustworthy, or unreliable. Normally, where the proponent of evidence invokes the business records exception, the opponent can test the applicability of the exception by cross-examining the custodian of the records. Here, however, Super Seer had no opportunity to depose and cross-examine either the custodian or the Southwest employees who actually prepared the reports." (Taggart, supra, 33 Cal.App.4th at p. 1708.) By contrast, in the present case, the custodian for Highland was available for cross-examination and if there were any grounds to doubt the authenticity of the records they could readily have been exposed to the jury.
We also note that after the Taggart opinion was issued, Evidence Code section 1561 was amended (Stats. 1996, ch. 146, § 1) " 'to ensure that such [nonparty business] records may continue to be admissible without requiring their authenticity to be proved through live testimony from the custodian of records or other qualified witness.' " (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1045.) As a result, an affidavit that has been prepared in accordance with Evidence Code section 1561 establishes the admissibility of the proffered business records under Evidence Code section 1271. (Cooley, at pp. 1044-1045.) "If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true. . . . The presumption established by this section is a presumption affecting the burden of producing evidence." (Evid. Code, § 1562, italics added.)
D. Any Error Was Not Prejudicial
Even if the trial court erred, the error was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [reversal required under the federal Constitution unless the error was harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [state law error requires reversal only if it is reasonably probable that the error had an effect on the verdict].)
The challenged evidence undermined defendant's alibi that he was not at the scene when the shooting occurred because he was in the East Bay heading to his medical appointment. But the alibi was also contradicted by evidence of the location of defendant's and Diaz's cell phone calls on the morning of the murder, as well as evidence showing their cars crossing the Bay Bridge shortly before 9:00 a.m. The evidence concerning defendant's vehicle was further reinforced by eyewitness testimony and surveillance video from the scene of the crime showing that the shooter was driving his car when the crime occurred. We conclude the introduction of the time stamps on defendant's medical records, even if that evidence was inadmissible hearsay, was harmless beyond a reasonable doubt. II. Admission of Evidence Extracted from Defendant's Cell Phone
Defendant asserts the trial court erred in admitting evidence extracted from his cell phone because the prosecutor violated the discovery statutes by not timely disclosing this evidence. We are not persuaded.
On July 9, 2014, defendant's cell phone was seized during a search of his home. Before the preliminary hearing, a certified copy of his cell phone records from T-Mobile were discovered to the defense. Those records consisted of "subscriber information, and also call detail records for a particular time frame."
On October 13, 2015, before the prosecution rested, defense counsel filed a "Motion to Exclude Late Discovery: Cell Phone Dump." According to defense counsel, on October 10, 2015, the prosecutor had delivered to defendant's counsel a "2,252-page report" on a thumb drive about a cellular phone extraction from defendant's cell phone. Defense counsel noted that the court "had previously ruled upon a reciprocal late-discovery in limine excluding [any] and all discovery not provided prior to the beginning of jury trial." In opposition, the prosecutor argued there was no discovery violation because the newly discovered evidence was produced to the defense as soon as it was received. The prosecutor provided a timeline showing that after defendant's phone was seized, law enforcement officers had a difficult time bypassing the phone's password protection. Eventually, Agent Kwok was able to bypass the password and the data was made available to the defense two days after the police received it from Kwok. After hearing argument, the trial court deferred ruling for a week to give defense counsel time to review the records. Defense counsel did not request a continuance. The motion was denied on October 20.
"[T]he reciprocal discovery statute independently requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence 'in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies.' (§ 1054.1.) Evidence subject to disclosure includes '[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged' (id., subd. (c)) and '[a]ny exculpatory evidence' (id., subd. (e)). Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)" (People v. Zambrano (2007) 41 Cal.4th 1082, 1133 (Zambrano), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
"A trial court may enforce the discovery provisions by ordering immediate disclosure, contempt proceedings, continuance of the matter, and delaying or prohibiting a witness's testimony or the presentation of real evidence. (§ 1054.5, subds. (b) & (c); [citation]. However, the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) Appellate courts generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) Reversal is not warranted for any violation of California's reciprocal discovery statute unless it is reasonably probable that the omission affected the result at trial. (Zambrano, supra, 41 Cal.4th at p. 1135.)
Here, the prosecutor advised the court and defense counsel of the cell phone data extraction immediately upon its acquisition. Defendant does not point to evidence or any other indication in the record that the prosecutor willfully suppressed or intentionally delayed disclosing the report. Further, we note defendant did not request a continuance, yet the court effectively granted defense counsel a week's continuance by delaying its ruling until October 20, 2015. The delay appears to have been adequate to remedy any presumed violation of the discovery statutes, and defendant does not attempt to demonstrate otherwise. Under these circumstances, defendant has not shown the trial court abused its discretion in allowing the prosecutor to admit the report into evidence.
Even assuming the People somehow violated reciprocal discovery obligations, we would not disturb the judgment in view of defendant's inability to demonstrate prejudice. "It is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm." (People v. Pinholster (1992) 1 Cal.4th 865, 941, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; see People v. Carpenter (1997) 15 Cal.4th 312, 386-387, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) Beyond stating that the prosecution "relied heavily" on the information from the cell phone dump during defendant's cross-examination, defendant does not distinguish the impact of this evidence from the cellular tower evidence that showed the travel path of his phone on the day of the murder. Moreover, the trial court effectively permitted defense counsel a seven-day continuance to review and prepare to respond to the report, and defendant does not explain how the continuance was insufficient to cure any prejudice. He does not meet his burden to show resulting prejudice.
And, given the strength of the circumstantial evidence against defendant as summarized above, we cannot say any omission by the prosecutor affected the trial result; in other words, there is no reasonable probability a result more favorable to defendant would have been reached had the court excluded the cell phone report from evidence. (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13 [violation of reciprocal discovery statute is subject to appeal under Watson harmless error standard].) III. The Matter Must Be Remanded to Allow the Trial Court the Opportunity to Exercise its Discretion Pursuant to Amended Section 12022 .53
When the trial court sentenced defendant in September of 2016, imposition of a section 12022.53 firearm enhancement was mandatory and the trial court lacked discretion to strike it. (See People v. Franklin (2016) 63 Cal.4th 261, 273; People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.) Thus, the trial court sentenced defendant to a consecutive term of 25 years for his use of a firearm. (§ 12022.53, subd. (d).)
Effective January 1, 2018, the Legislature amended section 12022.53, subdivision (h) to give trial courts authority to strike section 12022.53 firearm enhancements in the interest of justice. (Sen. Bill No. 620 (2017-2018 Reg. Sess.), Stats. 2017, ch. 682, § 2.) Defendant contends his case must be remanded to allow the trial court to exercise its discretion to strike the firearm enhancement, and the People agree.
The parties are correct. The amendment to section 12022.53 applies to cases, such as this one, that were not final when the amendment became operative. (People v. Watts (2018) 22 Cal.App.5th 102, 119; People v. Arredondo (2018) 21 Cal.App.5th 493, 507; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Brown (2012) 54 Cal.4th 314, 323.) Remand is necessary to allow the trial court an opportunity to exercise its sentencing discretion under the amended statute. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) We express no opinion about how the court's discretion should be exercised. IV. Limited Franklin Remand
In October 2017, the Governor signed Assembly Bill No. 1308 (Reg. Sess. 2017-2018), which amended section 3051 to extend the right to youth offender parole hearings to individuals who were age 25 or younger at the time they committed the controlling offense. (Stats. 2017, ch. 675, § 1.) Defendant was 24 years old at the time of the murder. He argues he is entitled to a limited remand to place additional evidence on the record for a future youth parole suitability hearing pursuant to section 3051 and People v. Franklin (2016) 63 Cal.4th 261, 284. The People concede a limited remand is appropriate. We accept the concession and remand for this limited purpose. (See People v. Perez (2016) 3 Cal.App.5th 612, 619.)
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for the limited purposes of: (1) allowing the trial court to exercise its discretion under section 12022.53, subdivision (h); and (2) permitting the parties to present evidence relevant to defendant's future parole hearing. (Franklin, supra, 63 Cal.4th 261.)
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.