Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC580506
RUSHING, P.J.
I. Statement of the Case
A jury found defendant Thomas Blake Kennedy guilty of two counts of aggravated assault on a peace officer during which he discharged a firearm, unlawful possession of a firearm by a felon, willfully discharging a firearm, shooting at an inhabited dwelling, exhibiting a firearm to a peace officer, and possession of a short-barreled shotgun. (Pen. Code, §§ 245, subd. (d)(1), 12022.53, subds. (b) & (c), 12021.1, subd. (a), 246.3, 246, 417.8, 12020, subd. (a)(1).) Thereafter, the trial court found that defendant had a prior strike conviction and a prior serious felony conviction and sentenced him to 52 years and four months in prison.
All further unspecified statutory references are to the Penal Code.
On appeal from the judgment, defendant claims (1) there is insufficient evidence to support the convictions for assault, shooting at an inhabited dwelling, and exhibiting a firearm at a peace officer; (2) the court erred in denying a continuance, excluding relevant evidence, and admitting prejudicial evidence; (3) the prosecutor improperly withheld discovery and committed acts of misconduct; (4) the record is incomplete and does not permit meaningful appellate review; (5) defense counsel rendered ineffective assistance; and (6) the imposition of middle terms and consecutive terms violated his right to jury trial.
We find no merit to these claims and affirm the judgment.
II. Facts
On January 28, 2005, around 10:30 p.m., undercover California Highway Patrol (CHP) Officer Marc Hinch drove his unmarked vehicle to Highgrove Court, a cul-de-sac in San Jose. He was looking for a black Volkswagon (VW) and a suspected auto thief named Francisco Montez. He spotted a black VW; called backup CHP Officers Antonio Dominguez, Mayolo Banuelos, and Jose Gonzalez, who were in a patrol car nearby; and asked them to be ready. Officer Hinch drove toward the VW, saw a man in dark clothing with short black hair standing near it, and broadcast the plate number to the back-up officers. After passing the VW, Officer Hinch turned around and drove back. The man was gone but a red van in the street was blocking his way. The driver, later identified as Carlos Orozco, and one or two other men got out. From inside his car, Officer Hinch saw a man, later identified as John Sarinana, approach him. He summoned the backup officers, reversed his vehicle, got out, and asked, “What’s up?” The man responded, “Who the fuck are you?” At that point, the other officers arrived. Officer Hinch said, “Look, it’s the police,” and the man responded, “Yeah, you are a cop, too, mother fucker.” Officer Hinch drew his gun and ordered the man to put his hands on his head. Suddenly, a man in dark clothing, who Officer Hinch thought was Montez, fled toward a house, abandoning a backpack and a piece of clothing on the way. Officer Hinch yelled, “Someone’s running left.”
Before the man fled, Officers Dominguez and Banuelos heard the driver of the van say “run.” They chased the runner, who ran down a narrow alley between two houses, and ordered him to stop, but he kept running. He paused at a gate, struggled unsuccessfully to open it, and then turned. Both officers saw a weapon directed toward them. Officer Dominguez, who said he was about 15 feet away, yelled “gun,” and immediately sought cover behind the corner of the house. He then heard a shot and saw a muzzle flash. Officer Banuelos, who said he was about 25 feet away when the man drew his gun, drew his own gun, slipped on the wet grass, heard a shot, saw a muzzle flash, and fired his gun.
Officer Hinch heard the shots and broadcast a description of the suspect, whom he identified as Francisco Montez, a light-skinned Hispanic man, five feet seven inches tall, around 160 pounds, wearing a dark hat and baggy clothing. Officers Dominguez and Banuelos described the runner as a light-skinned person and wearing dark baggy clothing and a dark beanie cap pulled down to his eyebrows.
After the incident, Gabriel Adler, who lived in the neighborhood, saw helicopter search lights illuminating the area. He heard garage cans move and saw a man with a shaved head and white shirt crouching in his garden. He called 911. He noticed muddy handprints and footprints near an outdoor shed. Later, two dark cloth gloves and a white T-shirt were found on his property.
Officer Bryant Washington of the San Jose Police Department Police arrived at Adler’s house with Jago, his police dog. He saw a person with a shaved head, white T-shirt, dark pants, and muddy hands and clothing run by the house. He ordered him to stop and sent Jago after him. Jago tracked and ultimately found defendant hiding inside a shed. Jago forcibly dragged him out with his teeth.
When brought to defendant, Officer Banuelos said that defendant was not the runner; he said defendant’s face looked different. At trial, Officer Banuelos explained that at the showup, he thought Montez, whom he knew, was the runner, and so when he saw defendant he did not identify him. He later learned that Montez was in custody when the incident occurred.
Defendant is Caucasian and six feet tall and weighs 190 pounds.
At the scene after the incident, investigators found a backpack and a dark sweatshirt in the front yard and a sawed-off shotgun in the backyard. They found a shotgun shell and observed a shotgun blast hole in the top of a seven-foot-tall fence approximately 21 feet past the gate. Birdshot had penetrated the fence and hit the neighboring house and window.
Deputy Skipper Stephen Yenchik of the Santa Clara County Sheriff’s Department, who investigated and photographed the scene a few hours after the incident, testified that the blast originated from over 20 feet behind the gate, slightly behind the hole, and less than five feet away from the fence, the shot traveled in an upward direction, from east to west toward the fence and house, slightly south to north toward the street.
Police found the shell casing and slug from Officer Banuelos’s gunshot approximately 42 feet from the gate and 63 feet from the hole in the fence.
Police also found a Motorola cell phone, a dark baseball cap with “Cali F.U. Thug” written under the bill, binoculars, a gray T-shirt, a red bandana with green tape on it, three hand-held Motorola radios, a Motorola car charger, green electrical tape, one black sock closed with green tape and containing shotgun shells similar to the one found in the alley, a similar but empty sock, a flashlight, and a baton.
Deputy Yenchik testified that when he first photographed the backpack, it was closed, and nothing was on top of it. Later, however, it was unzipped, and the Motorola cell phone, T-shirt, binoculars, the cap, and red bandana had been placed on top of it or near it on the lawn. He did not know how those items got there or who unzipped the backpack. He assumed that an officer had gone through the backpack looking for unsecured, dangerous items as a precaution. However, he had no personal knowledge that anyone had done so. After logging the items, Deputy Yenchik looked inside the backpack and found the Motorola car charger, the green tape, and the empty sock.
Subsequent investigation established that Dorothy Kennedy, defendant’s mother, was the subscriber for the Motorola cell phone, which had photographs of defendant stored on it. One photograph, dated the day of the incident, showed defendant wearing a dark baseball cap, a black jacket, and baggy blue jeans. Two photographs showed defendant wearing a dark baseball cap, with “Calif F.U. Thug” written under the bill. And one photograph, dated January 19, 2005, showed defendant and Orozco, the driver of the van.
On the night of the incident, Orozco told Deputy Alfonso Corona of the Santa Clara County Sheriff’s Department that he knew the runner but did not want to identify him for fear of retaliation. The next day, in a recorded interview in jail, Orozco told CHP Sergeant Chris Costigan that a woman, whom he declined to identify, called and asked him to pick up a friend. Orozco and his cousin picked up a light-skinned, Hispanic man at Capital and McKee. The man was wearing a dark, hooded sweater, dark pants, a cap or bandana, and dark gloves and had a backpack. Orozco said he did not know him or his name. They drove to Orozco’s house on Highgrove Court, where he noticed a suspicious vehicle. He blocked the street and had his cousin check out the driver. At that point, CHP officers arrived, and his anonymous passenger fled. Orozco said he had declined to identify a suspect for fear of retaliation.
In a second recorded interview in May, 2005, Orozco indicated to Raymond Hernandez, an investigator for the Santa Clara County District Attorney, that he picked up defendant at Capital and McKee. He said that a girl had called and asked him to do so. Orozco knew defendant, whose nickname was “Hueto,” and opined that defendant was not “just a little white boy” but a “home boy, [who] had heart in it, he wasn’t gonna let anybody fuck with him that’s for sure.” Orozco said defendant had a backpack. He did not see a gun. When they arrived at his street, Orozco saw a suspicious vehicle. He blocked it, and then he and his cousin got out. Orozco explained that he yelled “run” because he knew defendant had some problem with the police. He said he did not later identify defendant because he was not a “snitch.”
At trial, Orozco changed his story, disavowed prior statements, and admitted having prior convictions for assault and lying to police. He said that at the request of a women, whose name he could not recall, he and John Sarinana, his cousin, picked up Francisco Montez at Capital and McKee. He did not know Montez, but they had mutual acquaintances. Montez had a backpack and was wearing light gray sweat pants and a sweatshirt. When they got to his street, he saw a suspicious vehicle. He parked and then approached it. At that point, the police arrived and arrested him. Orozco could not recall if anyone else had gotten out of his van, and he denied seeing anyone get out or telling anyone to run. He did not know whether Montez ever left the van.
Orozco initially testified that he did not know defendant. However, when shown the photograph of them together, he said he knew defendant and his moniker “Hueto” and admitted that defendant had been to his house before.
Orozco claimed that he was forced to give a statement to Sergeant Costigan. He denied waiving his rights and said he was tired and under the influence of drugs and alcohol. He claimed that the police put words in his mouth.
Orozco also said that he repeatedly told Investigator Hernandez that he did not want to talk, although the transcript does not reflect this. He disavowed his prior identification of his passenger. He said he did not learn defendant’s name or moniker until the police told him and simply agreed with Investigator Hernandez’s leading questions, which named defendant. He said he did not correct the implication that defendant was his passenger despite many chances to do so because he was not free to leave, he was being threatened with a conspiracy charge, he was scared, and he just wanted to the interview to end.
Orozco also disavowed previous statements that he saw his passenger run and heard him fire a gun. He said he only saw an officer fire his gun. Orozco confirmed that his passenger had a backpack, but he could not recall that the passenger had gloves and disavowed his previous statement about seeing dark gloves. He also confirmed having said that he feared retaliation, but he denied being afraid of defendant.
The Defense
Gilbert Quesada testified that on the night of the incident, he heard gunshots and bushes rustling and then saw someone jump over a fence. The person was close to six feet tall and light-skinned and wore dark, baggy clothing, and perhaps a beanie cap.
Shortly after the incident, Quesada told Deputy Mario Perez of the Santa Clara County Sheriff’s Department that he had seen the face of someone who had jumped over his fence. He said he had seen the person before in the neighborhood and could identify him. He described the person as a light skinned Hispanic man, five feet ten inches tall, 170 pounds, in dark clothing and a dark beanie cap.
Later, Quesada was brought to defendant but could not identify him. Quesada said that defendant resembled the person, but he thought the person had a goatee.
The defense introduced test results showing the presence of gunshot residue on Orozco’s hand but not on the hands of Sarinana or defendant. No residue was found on the articles of clothing found at the scene and in the vicinity.
A lab technician testified that the baseball cap had DNA from five people, the cell phone had DNA from two people, but no DNA was found on the shotgun or a sample of material taken from the gloves. He further testified that DNA on the phone matched the DNA on the cap.
Deputy Alfonso Corona of the Santa Clara County Sheriff’s Office testified that he was the first officer to arrive at the scene and found a black jacket, backpack, and shotgun. At that time, Officer Hinch told him that the suspect was Francisco Montez.
Given where the shotgun blast hit the fence—i.e., over 20 feet past the gate—Deputy Yenchik concluded that the shotgun was not fired from in front of or next to the gate. He also found no evidence that the shotgun was fired back down the alley toward the street.
III. Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his convictions for assault, shooting at an inhabited dwelling, and exhibiting a firearm at a peace officer.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Defendant notes that according to Officers Dominguez and Banuelos, they chased a person down the alley, he struggled unsuccessfully to open the fence gate, turned, pointed his gun at them, and fired. Officer Dominguez said he was 15 feet away; Officer Banuelos said he was 25 to 30 feet away.
Defendant points out, however, that the physical evidence and testimony of Deputy Yenchik refutes their testimony and established instead that (1) the shotgun was not fired at or near the gate but over 20 feet past and south of the gate; (2) the shot was not fired straight back down the alley at the officers but toward the fence and neighboring house; and (3), when the shot was fired, Officer Banuelos was between 49 and 63 feet away and Officer Dominguez was behind the corner of a house. Given these undisputed facts, defendant claims that it was impossible for the single shot to support the four convictions. We disagree.
In People v. Raviart (2001) 93 Cal.App.4th 258, the court explained that to commit an assault with a deadly weapon, it is not necessary to point a gun directly at another person to commit the crime. (Id. at p. 263.) There, when two officers pursued a suspect around a building, one saw a handgun pointed at him and heard the other officer yell that the person had a gun. One officer crouched behind the corner of the building, extended his hand around, and fired. The other officer saw the person fire a gun and immediately joined his partner. (Id. at pp. 264-265.)
In upholding two assault convictions, the court reasoned that by drawing his gun with the intent to shoot the officers, the defendant performed an overt act sufficient to constitute an assault on both officers. The defendant did not have to perform the further act of actually pointing the gun directly at them because it was enough that he brought his gun into a position where he could have used it had the officers not fired first. (People v. Raviart, supra, 93 Cal.App.4th at p. 266.) The court also pointed out that the defendant could have shot the officers before they took cover, and the fact that they were able to get out of harms way did not negate the assault because initially they had been exposed. Moreover, the court opined that successfully avoiding injury does not negate the fact that a person had the present ability to apply force with a firearm to a person. (Id. at p. 267; see People v. Colantuono (1994) 7 Cal.4th 206, 219 [presenting a gun at a person who is within its range is an assault]; People v. Miceli (2002) 104 Cal.App.4th 256, 269 [pointing a loaded gun in a threatening manner at another constitutes an assault].)
Here, we agree that the physical evidence refutes the officers’ testimony concerning where the shotgun was fired, how far away the officers were, and whether the gate was open or closed when the shot was fired. Indeed, Officer Dominguez conceded that his testimony on these issues could not be reconciled with the physical evidence. And, during final argument, the prosecutor similarly conceded that some of the officers’ testimony was inaccurate.
Nevertheless, the jury was not required to reject all of the officers’ testimony simply because the physical evidence refuted parts of it. It is undisputed that the officers pursued a man who had run south down a darkened alley between two houses. They said the man turned north and had a weapon pointed in their direction. Officer Dominguez immediately took cover and Officer Banuelos slipped and fell as the man fired. According to Deputy Yenchik, the shotgun blast originated from slightly behind the hole in the fence, traveled upward and mostly west, but slightly north, hitting the fence and continuing through it to the house on the other side.
The court instructed jurors, “Do not automatically reject testimony just because of inconsistencies or conflicts. Consider [whether] the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.” The court further advised jurors that if they thought a witness was partially truthful, they could accept the parts they believed were true and disbelieve the rest.
Defendant asserts that the shotgun was not fired in a northerly direction. However, Deputy Yenchick repeatedly testified that the shot had a slightly northerly trajectory. Although he later testified that there was no evidence that the shot was fired directly north toward the street, that testimony did not negate or undermine his prior analysis of its trajectory.
Given the evidence, the jury reasonably could find that, in extremely rapid sequence and without stopping his flight, defendant turned at least part of his body holding a gun toward the officers with the intent to deter them, they reacted as he fired, and he successfully escaped. However, because he was continuously moving, his shot was ill aimed and went mostly through the fence next to him, hitting the house and window. This view of evidence and events supports the convictions for assault, the enhancements for discharging a firearm during the assault, and the convictions for exhibiting a firearm at a peace officer. Alternatively, jurors could have accepted the prosecutor’s scenario that as defendant ran down the alley, he did not turn but simply pointed his gun behind him and fired.
The evidence also supports a violation of section 246 for shooting at an occupied dwelling. The statute does not necessarily require that a defendant shoot directly at an occupied building or harbor a specific intent to strike it. (People v. Cruz (1995) 38 Cal.App.4th 427, 433; People v. Chavira (1970) 3 Cal.App.3d 988, 992.) It also prohibits shooting “in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in and around it.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1356.) Conscious disregard may be inferred from the nature and circumstances of the act. (Id. at pp. 1356-1357.)
Evidence that defendant ran down the alley in close proximity to a house and fired a shotgun toward a fence next to a house, and that the birdshot passed through the fence and hit the house supports defendant’s conviction under section 246.
IV. Denial of a Continuance
Defendant contends the court erred in denying a continuance.
Background
On Friday, May 19, 2006, with trial scheduled for the following Monday, May 22, the court held and ruled on in limine motions. For that hearing, however, the defense had filed a motion for discovery sanctions, seeking dismissal or the exclusion of certain evidence, including the cell phone. The court summarized the history of discovery and opined that most of the issues had been worked out informally with the court’s assistance. The remaining issues concerned the witness list and contact information, inspection of the cell phone, evidence of the chain of custody, and an outstanding warrant for defendant’s arrest. The court asserted that the prosecution would soon provide the witness contact information and had arranged for counsel to inspect the cell phone.
Counsel complained that twice he had hired an expert to inspect the phone, and both times he had been denied access. The court gave counsel two options: inspect the phone that day or the following Monday or request a continuance. Defense counsel urged the court to simply exclude the cell phone or at least order reimbursement for the expert expenses. The court declined to consider the motion for sanctions at that time because it was ruling on evidentiary issues related to trial. The court advised counsel to seek sanctions, including monetary sanctions, at some other time.
After dealing with other trial-related matters, defense counsel complained that he still did not have contact information for all of the prosecution witnesses. The court asked if he wanted a continuance. Counsel declined and asked only for the prosecutor’s cooperation and assistance. Counsel then reiterated his request for dismissal as a discovery sanction. The court denied the request and again advised counsel to seek sanctions at another time. After an unreported discussion about scheduling jurors, the court announced that a jury panel would be ready and waiting on the following Monday.
On that day, defense counsel requested a continuance to resolve outstanding discovery matters he generally claimed were necessary to mount an effective defense. The prosecutor said that he had provided much additional discovery, but he had not yet himself obtained custody of the cell phone. He had ordered a copy an arrest warrant for defendant that the defense had sought and had provided documentary evidence of the chain of custody for the phone. The prosecutor opined that a lengthy continuance was not necessary.
The court denied the request “at this time.” However, because there were only a few outstanding discovery issues, the court said it would “leave this door open for a possible short continuance in the middle of the trial to accommodate [the defense], but the schedule was set. It was agreed to. I gave plenty of opportunities for [the defense] to seek a continuance last week before we engaged the jury. The jury is now in the room next door waiting to come over. And so we will move forward with the trial as scheduled.” The court advised counsel to keep it informed, and if, after receiving the additional discovery, he needed a brief continuance in the middle of trial, “we can certainly have the jury disappear for a day if that works.”
Discussion
“Continuances shall be granted upon a showing of good cause.” (§1050, subd. (e).) The moving party must make that showing, and a trial court has broad discretion in determining whether there is good cause. (People v. Roldan (2005) 35 Cal.4th 646, 670, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In exercising its discretion, the court considers “ ‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 972.) Where a criminal defendant seeks a continuance, a court may not exercise its discretion “ ‘so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.] ‘To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p. 670; People v. Maddox (1967) 67 Cal.2d 647, 652.)
On appeal, the moving party must show that denial of a continuance was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) “A decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review.” (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)
We find no abuse of discretion in this case. The court noted that many of the discovery related issues had been resolved, prospective jurors had been assembled, and jury selection was imminent. Moreover, defense counsel did not explain what specific matters he needed more time to prepare for; how much time he needed; and why, if the situation were so dire, he had not accepted the court’s invitation for a continuance before prospective jurors were brought in. Counsel simply asserted that he needed a continuance because it “appeared” he would be unable to mount an effective defense.
Under the circumstances, the court could have found that good cause had not been shown at that time, and we find it to be well within the court’s discretion to deny a continuance without prejudice with an assurance that it would consider a renewed request, if and when counsel demonstrated that it was reasonably necessary.
The record reveals that counsel ultimately received most, if not all, of the discovery he had sought. He used defendant’s outstanding warrant to suggest that defendant had a reason to be hiding when police found him other than that he had just fired a shotgun. Counsel received the only documentation there was concerning the chain of custody for the cell phone and exploited both the lack of more complete documentation and the fact that the prosecution had failed to show who first found the cell phone, where it was found, and how it suddenly ended up on top of the backpack to cast doubt on the connection between the phone and defendant. Moreover, counsel got access to the cell phone. Although after trial, counsel complained that his inspection of the phone was inadequate because he did not have an expert with him and did not know how to use the phone, counsel did not seek a mid-trial continuance, as the court had invited him to do, to have his expert examine and retrieve information stored on the phone. Nor did counsel seek a continuance for any other purpose related to discovery. Although defendant claims on appeal that counsel rendered ineffective assistance for a variety of reasons, the failure to seek a mid-trial continuance to more effectively prepare his defense is not one of them. Lastly, defendant provides neither argument nor authority to show how the denial of a continuance on the day scheduled for jury selection was prejudicial.
In sum, the record does not establish good cause for a continuance as a matter of law or show that the denial deprived defendant of a reasonable opportunity to prepare his defense. (E.g., People v. Snow (2003) 30 Cal.4th 43, 73-75.)
Defendant suggests that he was entitled to a continuance because counsel had acted diligently, and the prosecutor did not object. However, these averments do not establish an abuse of discretion. Indeed, such a view is inconsistent with the moving party’s burden to affirmatively demonstrate good cause—i.e., a valid and substantive reason for a continuance. Such a view is also inconsistent with the Legislature’s determination that continuances can have a variety of adverse effects and therefore should be granted only when necessary to further the interests of justice. Specifically, in section 1050, the Legislature stated, “The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time.” (§ 1050, subd. (a), italics added.) The Legislature further noted that unnecessary continuances add to the congestion in criminal courts and as a result adversely affect the welfare of people and victims, cause longer presentence confinement, overcrowding in jails, and increased expense. Accordingly, “the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice.” (Ibid.)
V. Violation of Brady the Discovery Statute
Defendant contends that he was denied discovery in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady) and the reciprocal discovery statute (§ 1054 et seq.). Specifically, he complains that the prosecution failed to disclose or withheld evidence related to the cell phone—e.g., documentation revealing where it was found, who found it, and the chain of custody; and information, photographs, and videos stored inside the phone. Defendant also complains that the prosecution withheld information about Orozco and other prosecution witnesses, including records of the telephone calls to and from Orozco’s home.
In his brief, defendant asserts that with adequate software, the following were found stored on the phone: 10 videos, forty photographs, and phone logs for dialed and received calls and stored phone numbers, presumably none of which were disclosed or produced.
Background
In January 2006, defense counsel made an informal discovery request for prosecution witnesses and contact information, statements by defendant and percipient witnesses, police reports and notes about the incident, physical evidence, photographs and videos of the scene, police communications, defendant’s criminal record, Orozco’s criminal history, investigative and testing reports, crime lab reports, photographs and criminal history of Francisco Montez, and rebuttal evidence.
In early February, counsel sought to inspect the physical evidence, including the shotgun, pieces of fence, the cell phone, and backpack and also asked for contact information for Orozco. Counsel also asked about police reports, testing results, interviews, and photographs.
By early March, counsel had inspected the physical evidence except for the cell phone, which, at the time, the prosecutor could not locate. Counsel had also received reports about Orozco’s interview. Shortly thereafter, counsel filed a motion to compel discovery of the items he had informally requested but not yet received.
At a hearing on March 10, the prosecutor explained that he had been dealing with an out-of-county case since December 2005, which had prevented him from devoting attention to the rest of his caseload, but he had recently tried to provide discovery. Defense counsel noted that neither the cell phone nor Orozco could be found and without either the prosecution had no case. The prosecutor reported that his investigator had custody of the phone and would make it available. The court issued an order compelling continued discovery.
On April 20, defense counsel complained to the prosecutor about his failure to comply with the discovery order. Counsel noted that the day before, the investigator who had the phone had failed to appear at a scheduled inspection by counsel and his expert because he had not been told what defense counsel intended to do with the phone, and he had been instructed not to let counsel touch it. Counsel said he had not as yet received a list of witnesses, most of whom were peace officers, or any of their contact information. Nor had he been able to subpoena Officers Hinch, Dominguez, and Banuelos or the gun-residue-test analyst or call them on the phone, despite the prosecutor’s assurance of help in obtaining access.
On May 1, counsel received a witness list, but it did not contain any contact information. As noted, at the in limine hearing on May 19, 2006, defense requested dismissal or the exclusion of evidence as a discovery sanction. The court declined to entertain a sanction motion at that time and directed the parties to continue discovery. Defense counsel ultimately inspected the phone but without his expert and obtained other discovery, including defendant’s outstanding arrest warrant. Thereafter, counsel did not seek a mid-trial continuance to have his expert test and retrieve data from the phone or for any other purpose related to trial preparation.
However, after the verdict, defendant sought a new trial on various grounds, including the prosecutor’s failure to provide timely discovery concerning the cell phone and its chain of custody. In the motion, however, counsel conceded, that it was impossible to establish prejudice. (See § 1181, subd. (5) [“prejudicial misconduct” grounds for new trial].) The court denied the motion.
Brady Violation
Under Brady, supra, 373 U.S. 83, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Id. at p. 87.) Accordingly, the state has a duty to disclose any favorable and material evidence even without a request. (Ibid.; United States v. Bagley (1985) 473 U.S. 667, 678; United States v. Agurs (1976) 427 U.S. 97, 107; In re Sassounian (1995) 9 Cal.4th 535, 543.)
“Evidence is ‘favorable’ if it hurts the prosecution or helps the defense” (People v. Earp (1999) 20 Cal.4th 826, 866; In re Sassounian, supra, 9 Cal.4th at p. 544), that is, if it is exculpatory or has impeachment value. (Strickler v. Greene (1999) 527 U.S. 263, 282.) Evidence is material, where there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley, supra, 473 U.S. at p. 682.) Stated differently, a Brady violation occurs where the nondisclosed favorable evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Kyles v. Whitley (1995) 514 U.S. 419, 435, fn. omitted.) Onappeal, the defendant has the burden to establish the elements of a Brady violation. (Strickler v. Greene, supra, 527 U.S. at pp. 289, 291.)
As our summary reveals, the process of discovery was a difficult, if not frustrating, experience for defense counsel. Some discovery was delayed—e.g., the phone, the chain of custody, some information stored on the phone—and other discovery never came—e.g., other photographs and videos stored on the phone, Orozco’s whereabouts just prior to trial, and telephone records of Orozco’s residence. Defendant claims that if the prosecutor had not delayed and withheld discovery, he might have been able to show that he was not at the scene of the incident; or, if he was there, that he was not the person who ran and fired the shotgun.
In our view, however, none of the items of discovery enumerated by defendant appears to have had any exculpatory value or tendency to support such defenses. Indeed, defendant does not point to any evidence that was exculpatory, would have bolstered a defense, weakened the prosecution, impeached a prosecution witness, or otherwise been favorable. Nor does he explain how the items he lists would have done so. Saying they “might have” been helpful is not enough to show that they were favorable under Brady. In our view, the probative value of the items, as described by defendant, was neutral, and they could just as easily have been favorable to the prosecution.
Defendant also fails to establish that the items individually or collectively were material, that is, he fails to show that, had he obtained them, it is reasonably probable the outcome at trial would have been more favorable. Absent evidence that any of the items was favorable or exculpatory, the delayed or denied discovery does not undermine our confidence in the outcome.
For example, without knowing the content of the undisclosed videos, photographs, and call logs stored on the cell phone that defendant ultimately discovered, it would be pure speculation to find that they would have helped defendant show that the cell phone was not his, he did not have the phone that day, someone else may left the phone at the scene, or defendant was not at the scene or in the area at the time of the incident. Similarly, it would be pure speculation to find that if Orozco’s custodial status had been disclosed prior to trial, the defense would have obtained a statement that bolstered the defense, corroborated Orozco’s exculpatory statements and testimony, or undermined his incriminatory statements about defendant to Investigator Hernandez. Finally, without any information concerning the contents of Orozco’s residential phone records, it is impossible to say that they would have confirmed or rebutted anything that Orozco said about the incident.
We further observe that if, for example, the videos, other photographs, and various logs stored on the phone that defendant later learned about (see fn. 5, ante) were, in fact, favorable and material, one would have expected defendant to point this out in his motion for new trial. However, at that time, counsel conceded that he could not show prejudice based on the denial of discovery. Similarly, if defendant did not discover that the phone contained favorable and material evidence until after judgment was entered, one would have expected him to file a petition for a writ of habeas corpus in connection with this appeal based on trial counsel’s failure to discover this crucial evidence sooner. However, there is no petition.
In short, defendant fails to establish, and we do not find, a Brady violation.
Statutory Violations
In People v. Zambrano (2007) 41 Cal.4th 1082 (Zambrano), the California Supreme Court recognized that the duty of disclosure under Brady is independent from the prosecution’s duty under the state’s reciprocal discovery statute, which enumerates several types of information that the prosecution must produced even without a request. (Id. at p. 1133; § 1054.1.) Thus, even if that information is not favorable or material for purposes of Brady, the failure to disclose it nevertheless constitutes a violation of the discovery statute. Such a violation is reviewed under People v. Watson (1956) 46 Cal.2d 818, which requires reversal only if there is reasonable probability that the defendant would have obtained a more favorable outcome had the information been produced. (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13, disapproved on other grounds in People v. Doolin, supra, 45Cal.4th at p. 421, fn.22.) On appeal, the defendant bears burden to establish both a violation and prejudice. (People v. Crayton (2002) 28 Cal.4th 346, 364.)
For the same reasons that defendant cannot establish a Brady violation, he cannot establish that the alleged statutory violations compel reversal. Simply put, he does not show that had he received prompt and complete disclosure, it is reasonably probable he would have obtained a more favorable result. (People v. Watson, supra, 46 Cal.2d at p. 836.) This is especially so because there was strong circumstantial evidence against defendant, and the lack of discovery did not prevent defense counsel from fully apprising the jury of discrepancies in the descriptions of the runner, weaknesses in the testimony of Officers Dominguez and Banuelos about the shooting, the limitations on Orozco’s credibility, and lab tests concerning gun residue and DNA. Counsel also exposed the prosecution’s failure to explain where critical evidence was found, who found it, how it appeared on or near the backpack.
Apart from his Brady and statutory claims, defendant generally argues that the lack of timely discovery concerning the phone combined with the fact that the prosecution was able to use it and the photographs at trial before defense counsel could inspect it rendered the trial so fundamentally unfair as to constitute a violation of due process. We disagree.
As noted, the trial court was aware of defendant’s concern about the phone, directed an inspection, and invited counsel to seek a continuance during trial if and when he considered it necessary. Counsel had access to photographs on the phone and inspected the phone during trial but did not request a continuance for further testing by an expert. Counsel also had access to the prosecution’s PowerPoint presentation, which apparently included enlarged photographs from the phone. Defense counsel had the opportunity to cross-examine all prosecution witnesses concerning the phone and the retrieval of photographs from it and never sought to recall any witness for further examination in light of newly disclosed information about the phone or other evidence. Finally, defendant does not show that there was any undisclosed information related to the phone that was exculpatory or favorable, could have significantly changed the way the defense was presented, or might have altered the way the jury viewed the prosecution’s case.
Under the circumstances, defendant fails to show, and we do not find, that the delayed discovery and the imbalance between the prosecution and defense access to the phone so prevented adequate preparation or denied him of a fair trial as to violate his constitutional right to due process.
VI. Prosecutorial Misconduct
Defendant contends that the prosecutor was guilty of misconduct in appealing to the jurors’ sympathy, suggesting that defendant posed a threat to Orozco, questioning Orozco about Norteños, making unsupported factual assertions, misstating the evidence, urging jurors to disregard instructions, commenting on defendant’s failure to testify, and faulting defendant for not providing a DNA sample.
Although prosecutors are allowed wide latitude in trying cases, they are nevertheless held to an elevated standard of conduct because of their unique function in representing the interests of the state and exercising its sovereign power. (People v. Hill (1998) 17 Cal.4th 800, 819-820.) Under federal constitutional standards, a prosecutor is guilty of misconduct if his or her behavior is so egregious as to render the trial fundamentally unfair and a violation of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Under state law standards, a prosecutor commits misconduct by engaging in deceptive or reprehensible methods of persuasion. (Ibid.) Where a prosecutor has engaged in misconduct, the reviewing court considers the record as a whole to determine if the alleged harm resulted in a miscarriage of justice. (People v. Duncan (1991) 53 Cal.3d 955, 976-977.) In considering prejudice “when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ ” (People v. Hill, supra, 17 Cal.4th at p. 820.) However, this rule of forfeiture is not absolute. “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘ “an admonition would not have cured the harm caused by the misconduct.” ’ ” (Ibid.)
Appeal to Sympathy
In his final argument, defense counsel argued that there was no assault because whoever fired the shotgun, aimed it at the fence, not the officers. In response, the prosecutor argued, “Now, [defendant] might be a bad shot. He may have intended to kill them and failed to so do so, but this is why we are here, because this is the remedy for the police officers to come to court and put on the evidence before you, ladies and gentlemen of the jury, the fabric of our society, the conscience of our community and basically say this is what happened to me. I didn’t have street justice, I am coming to court, I am telling what happened. The evidence is presented and now we’re asking you, as members of the community, to do the right thing.”
The prosecutor continued, “Now, I don’t know about you, but I don’t chase people into back alleys in the middle of the night. The police do that. That is what they are trained to do, that is what their job is. And on this particular occasion they did it and the defendant decided that he wanted to take [them] out, so he pointed the gun backwards and pulled that trigger. [¶] Well, I am not going to judge the police officers. I am not going to say anything about them other than I am happy to have them and when I call when someone is harming me or if something happens I am happy for them to come to my aid, but this is the time that they need to be vindicated for the crimes committed by the defendant.”
Defendant forfeited his claim that this argument constituted an improper appeal to sympathy because there was no objection and any harm could have been cured by a timely admonition.
Moreover, when we view the excerpt in context, we do not find a reasonable possibility that jurors would have understood it as an appeal to base their verdict on sympathy for the officers. Throughout his final argument, the prosecutor urged the jury to consider all of the evidence. He painstakingly reviewed the evidence that defendant was the runner and assaulted the officers, and he argued that if the jury followed the court’s instructions and evaluated all of the evidence, it would find defendant guilty of all charges. Indeed, even in the passage quoted above, the prosecutor urged the jury to do the “right thing” based on the evidence.
Finally, any potential harm was cured by the court’s instructions, which required the jurors to base the verdict only on the law and evidence and specifically warned them not to “be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” We presume the jurors understood and followed this instruction (People v. Doolin, supra, 45Cal.4th at p. 442), and the record does not suggest otherwise.
Suggestion that Defendant was a Threat to Orozco
Orozco told Deputy Corona and Sergeant Costigan that he feared retaliation if he identified his passenger. When the prosecutor questioned Orozco about those statements, Orozco testified that he declined to identify the person only because he did not know who he was. The prosecutor asked if he was afraid to testify, and he said no. Defendant complains that the prosecutor then asked Orozco whether he feared defendant. Orozco said he had no reason to be afraid of defendant.
Again, defendant forfeited this complaint by failing to object and seek an admonition. Moreover, the prosecutor’s question was reasonable and proper because Orozco admitted telling the officers that he feared retaliation.
Questions about Nortenos
During an interview, Orozco indicated to Investigator Hernandez that he was a Norteño. At trial, Orozco testified that when he picked up his passenger, he did not see anyone he usually associated with. The prosecutor asked who those people were, and Orozco said, “Just Mexican people. It’s not a gang or anything like that. It’s just people in general.” The prosecutor asked whether he was familiar with Norteños, and Orozco said he was. The prosecutor then asked whether he hung out with Norteños. Before Orozco could answer, defense counsel objected, and, after a sidebar, the court directed the prosecutor to pursue a different subject, citing Evidence Code section 352.
The basis for counsel’s objection is not clear. The court’s citation suggests that the objection was not based on prosecutorial misconduct. However, assuming that counsel preserved this complaint, we find no misconduct. Orozco raised the gang issue, and it was reasonable for the prosecutor to pursue it.
Defendant argues that the prosecutor’s unanswered question was prejudicial because the prosecutor introduced a photograph of defendant showing the word “Norteño” tattooed on his back. We disagree. The photograph was not referred to or admitted into evidence until long after the Orozco testified. And if jurors drew a prejudicial inference about Norteños, it would have been from the photograph and not the prosecutor’s unanswered question.
Unsupported Factual Assertions
“Argument is improper when it is neither based on the evidence nor related to a matter of common knowledge.” (People v. Pitts (1990) 223 Cal.App.3d 606, 702.) A prosecutor’s reference to facts not in evidence constitutes misconduct “because such statements ‘tend[ ] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’ [Citations.]” (People v. Hill, supra, 17 Cal.4th at p. 828; accord, People v. Huggins (2006) 38 Cal.4th 175, 206.)
Defendant claims that during his opening statement, the prosecutor improperly asserted that the cell phone and baseball cap came from the backpack; and during final argument, he improperly said they were found on the front lawn. Defendant argues that there was no evidence to support any of these statements.
Again, defendant forfeited his claim by failing to object. In any event, we find no misconduct. Witnesses saw the runner drop clothing and a backpack in the front yard as he fled. The runner also dropped the shotgun in the back yard. Although there was no direct evidence that the phone and cap were found inside the backpack, there was no direct evidence that the runner dropped them somewhere as he fled. Nor was there any evidence that the police obtained them from some entirely different location and planted them at the scene. Moreover, Deputy Yenchik saw those items and numerous other items, including a red bandana with green tape on it and a sock containing shotgun shells with green tape on it, on or near the backpack in the front yard some hours after the incident. Inside the backpack, he found an empty sock that matched the sock containing the shotgun shells, a Motorola charger, and green tape similar to that on the red bandana and the other sock. The Motorola charger and green tape connect items found inside the backpack to items outside it. In our view, therefore, the prosecutor’s statements about where the phone and cap came from constituted reasonable and fair comment on the evidence.
Moreover, the prosecutor’s statements were harmless. The jury heard Deputy Yenchik testify that he did not know how the phone and cap ended up on the backpack. The prosecutor presented no evidence concerning how they got there or where they were originally found. In his final argument, defense counsel made this point to contradict the prosecutor’s statements. Furthermore, the court instructed the jury that it must base its verdict on the evidence, and the prosecutor’s statements are not evidence. Finally, the cell phone and cap would have had probative and incriminating value even if they had been found elsewhere at the scene.
Defendant next claims that the prosecutor improperly argued and attempted to demonstrate that the shooter fired the shotgun behind his back toward the officers despite the lack of evidence to support that theory and the circumstantial evidence indicating that the shot was fired toward the fence.
Defendant forfeited this complaint by failing to object. Moreover, as discussed, the jury could have found that in rapid succession, defendant pointed the shotgun at the officers, and because he did so while fleeing, his shot was ill-aimed and hit the fence. The prosecutor’s argument is a variation of this scenario and constituted fair comment on the evidence. Again, any alleged harm from the prosecutor’s argument was cured by the court’s instruction that the prosecutor’s statements are not evidence.
Misstating Facts and Encouraging Disregard for Instructions
The court instructed jurors to determine whether Orozco was an accomplice before they considered his testimony, and it defined an accomplice as a person who is subject to prosecution for the same crimes as defendant. The court also said that Orozco may or may not be an accomplice, but if they found that he was, his testimony needed corroboration before it could be used to convict.
Defendant notes that despite evidence that Orozco told his passenger to run, the prosecutor argued that Orozco was not an accomplice. Defendant claims this argument misstated the evidence and encouraged jurors to disregard the court’s instructions.
Defendant forfeited this claim as well. In any event, we note that Orozco testified that he did not see a gun or know that the runner had one. If true, this testimony would preclude a prosecution for the crimes charged against defendant. Thus, it was reasonable for the prosecutor to argue that Orozco was not an accomplice. Moreover, we disagree that the prosecutor expressly or implicitly encouraged jurors to disregard the court’s instructions. The prosecutor not only reiterated them but also argued that if jurors found that Orozco was an accomplice, there was sufficient other evidence to corroborate his testimony. Thus, we find no misconduct.
Comment on Defendant’s Failure to Testify
Under the rule established in Griffin v. California (1965) 380 U.S. 609 (Griffin), neither the prosecutor nor the court may comment directly or indirectly on a defendant’s failure to testify. (Id. at p. 613.)
Here, the prosecutor argued that although there was an outstanding warrant for defendant, there was no testimony that he knew about it and fled because he feared being arrested. Defendant claims this argument improperly suggested that defendant should have testified concerning whether he knew about the warrant.
The Griffin rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Medina (1995) 11 Cal.4th 694, 755.) For example, in People v. Lancaster (2007) 41 Cal.4th 50 (Lancaster), the prosecutor pointed out that a bottle of liquor with the defendant’s fingerprints was found at the scene, but “ ‘[t]here’s been no explanation offered as to how they possibly could have been there.’ ” (Id. at p. 84.) In rejecting a claim of Griffin error, the California Supreme Court found that the prosecutor’s statement was fair comment on the state of the evidence and not an improper comment on the defendant’s failure to personally provide an explanation. (Ibid.)
Here, as in Lancaster, the prosecutor’s comment was a fair comment on the lack of evidence to support defense counsel’s suggestion that the warrant was the reason defendant was found hiding in the shed. Moreover, even if the prosecutor’s statement could have been understood as an improper comment, any harm was quickly cured when the trial court immediately told jurors that what the prosecutor meant was that there was no testimony by a third party that defendant knew about the warrant or feared he might have one; the prosecutor “is not commenting on the defendant because the defendant has an absolute right not to testify in this trial and if he chooses not to testify you cannot hold that against him in any way.” The court then elicited the jurors’ understanding and agreement. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1060 [admonition cured any harm].)
The court’s interjection obviated the need for an objection, and, therefore, we do not find that defendant forfeited this claim.
Failure to Produce Evidence
During cross-examination, the prosecutor elicited testimony from the lab technician that he could not determine whether or not the DNA on the phone and cap was defendant’s because he did not have a sample from defendant. He agreed that the defense could have provided one.
Defendant claims the prosecutor improperly suggested that defendant “had some burden to come forward and provide evidence to the police . . . .” Defense counsel did not object, and therefore, this claim is forfeited. In any event, we find no misconduct. Given the technician’s testimony on direct that he found DNA from multiple sources on the phone and cap and the lack of testimony about whose DNA it was, jurors might have speculated that the DNA did not come from defendant. Thus, it was reasonable for the prosecutor clarify the reason the DNA had not been identified as defendant’s.
VII. Exclusion of Evidence
Defendant contends that the court abused its discretion in excluding evidence that Officer Hinch identified Francisco Montez as the suspect at the time of the incident, testimony from Dorothy Kennedy about the cell phone, and evidence of a felony complaint against Orozco.
Identification of Montez
On cross-examination and re-direct, Officer Hinch testified that he thought he saw Montez and later reported what was happening on Highgrove Court to Officers Banuelos and Dominguez. In cross-examining Officer Banuelos, defense counsel asked whether Officer Hinch had identified the person he saw. Officer Banuelos said “yes.” Counsel then asked if the person was Montez. Officer Banuelos said “yes,” but the court sustained the prosecutor’s objection and struck the answer.
Later, Deputy Corona testified that after the incident, he spoke with some detainees who appeared to meet the description of the runner, whom Officer Hinch had identified as Francisco Montez. Deputy Corona testified that he knew Montez and had broadcast a description of him. When defense counsel asked him what Officer Hinch had said about why he was on Highgrove Court, the prosecutor objected, but the court allowed an answer to explain Deputy Corona’s subsequent conduct. Counsel then asked whether Officer Hinch had reported seeing a person. This time the court sustained the prosecutor’s objection, saying it would not allow testimony about what Officer Hinch had said because Officer Hinch was available to testify about it. Counsel then asked, “Now, with respect to your conduct after you arrived at the scene, you indicated to us that or correct me if I’m wrong, that you distributed a profile, if you will, of this Francisco Montez to other officers?” Deputy Corona said “[c]orrect.”
Defendant claims that in sustaining objections, the court erroneously foreclosed testimony by Officer Banuelos and Deputy Corona that Officer Hinch had identified the runner as Montez. He argues that such testimony would have been relevant to show that the runner was someone other than defendant.
Insofar as the counsel wanted Officer Banuelos and Deputy Corona to repeat what Officer Hinch had said about seeing Montez to prove that Montez was the runner, the court properly excluded the evidence as inadmissible hearsay.
And insofar as additional testimony that Officer Hinch had identified the runner as Montez was offered for some nonhearsay purpose, its exclusion was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.) The jury knew that Officer Hinch had identified Montez as the suspect and that a description of Montez had been broadcast. This testimony plus the various descriptions of the runner fully allowed the defense to argue that defendant was not the runner.
Defendant fails to support his one-sentence claim that the court’s rulings deprived him of his constitutional right of confrontation with reasoned argument or citation to authority, and therefore, we deem it forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Testimony of Dorothy Kennedy
Dorothy Kennedy testified that she bought several cell phones for defendant because he tended to lose or break them. She bought one around January 2005, but she could not identify the cell phone found at the scene because they all looked alike to her. When asked what kind of phone she had bought, she said she had no memory of it but opined that it would have been whatever phone Cingular was offering free at the time. She said that she asked Cingular about the type of phone and thought Cigular had identified it as a Motorola 229. The prosecutor objected to this statement, and the court sustained the objection and struck that response. Defense counsel asked if she knew the model number of the phone. She testified that she did not but had Cingular’s e-mail response to her inquiry. At that point, the court warned her that it had excluded testimony about what Cingular had told to her. Defense counsel then asked whether she had any independent, personal knowledge of the model number. She did not, saying she knew only what Cingular had told her.
Defendant claims it was error to strike Kennedy’s answer and prevent further inquiry that might have shown that the cell phone was not the one Kennedy had bought him.
We find no error. Kennedy admitted that she had no independent recollection of the model number and knew only what Cingular said in the e-mail. Thus, her statement about the model number was inadmissible hearsay and properly excluded.
Although the prosecutor did not explicitly state the ground for his objection, counsel’s question concerned an extra-judicial statement, and the court’s ruling indicates that it struck Kennedy’s response because it was hearsay.
Defendant claims that the e-mail from Cingular was admissible because it was self-authenticating. He further argues that if the e-mail was a bill or receipt for the phone or could otherwise meet the requirements for admission as a business record, it would have been admissible against a hearsay objection. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1268 [recognizing exception to hearsay rule for bills and receipts].)
There is no evidence that the e-mail was a bill or receipt, and Kennedy’s testimony suggests that it was simply a reply to her inquiry about the phone. Moreover, defense counsel did not argue that the e-mail was admissible under an exception to the hearsay rule or for a relevant, nonhearsay purpose and did not attempt to introduce it into evidence. He used it only to refresh Kennedy’s recollection, which it did not do. Finally, although the court barred Kennedy from testifying about the contents of the e-mail, defense counsel was otherwise free to establish that the phone was not the one Kennedy had bought.
Orozco’s Felony Complaint
Outside the presence of the jury, defense counsel sought the admission of a pending felony complaint against Orozco to show his motive in testifying for the prosecution. (Exh. E) The prosecutor objected, and the court sustained the objection, noting also that the exhibit was not a certified.
Defendant argues that the felony complaint was relevant and suggests that certification was unnecessary because “[a] certified copy is not required to take judicial notice of court records of the same court.”
Assuming the complaint was relevant, we note that the court’s comment about certification indicates that the defense exhibit lacked proper authentication, a requirement of admissibility. (Evid. Code §§ 1401 [writings require authentication]; 1530 [certification of public documents]; 1 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence §§ Hearsay, §§ 3, 41, 43.) Defendant cites, and we are aware of, no authority for the proposition that an uncertified copy of a felony complaint is admissible and need not be authenticated. Moreover, it does not appear that counsel made any effort to authenticate the document when it was first offered.
In any event, the alleged error was harmless because, as the prosecutor argued, the evidence was cumulative. (People v. Watson, supra, 46 Cal.2d at p. 836.) At trial, Orozco admitted that he was currently incarcerated and that he had prior convictions for assault and lying to police, testimony that allowed counsel to argue that Orozco had a motive to lie for the prosecution.
VIII. Admission of Evidence
Defendant contends the court erred in admitting the photograph of defendant’s “Norteño” tattoo, the cell phone, and the cell phone photographs.
The Tattoo
As noted, Jago tracked defendant to a shed and forcibly dragged him out. There were a number of photographs of the injuries that Jago inflicted, and one, Exhibit 131, showed severe scratches and a deep puncture wound on defendant’s back where the word “Norteño” was tattooed. Defendant objected to this photograph as irrelevant, cumulative, and prejudicial. The court found that Exhibit 131 showed the most serious injuries and agreed with the prosecutor that the exhibit was relevant, in that defendant’s willing to suffer such severe injury and pain to avoid being arrested that night reflected a consciousness of guilt. The court noted that the prosecutor had agreed not to mention the tattoo or argue that defendant was a gang member.
Where, as here, a case does not involve a gang enhancement, “evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) However, “[t]he exercise of discretion [under Evidence Code section 352] is not grounds for reversal unless ‘ “the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ [Citations.]” (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.)
The potential for prejudice from the photograph was that jurors might infer from defendant’s tattoo that he was a gang member with a criminal disposition. We note, however, that prosecutor neither argued nor suggested that the alleged crimes were gang-related, defendant was a member of a gang, or his tattoo indicated gang membership. There was no evidence about criminal street gangs and no testimony that Norteños are a criminal street gang or Norteños are dangerous gang members. Nor was there evidence of any gang related activity or the meaning of gang tattoos. The only references to Norteños were Orozco’s admission during an interview that he was a Norteño and the prosecutor’s question concerning whether he was familiar with Norteños and hung out with them.
Under the circumstances, we do not find that the potential prejudice outweighed the probative value of the exhibit as a matter of law or that the trial court clearly exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438.)
In any event, any potential for prejudice was harmless. The tattoo was potentially no more inflammatory than the inscription “Cali F.U. Thug” on the baseball cap that defendant was wearing in one of the photographs and the cap found at the scene. Similarly, the potential negative inference from the tattoo that defendant had a criminal disposition was no stronger than the inference from Orozco’s description of defendant to Investigator Hernandez—i.e., that the defendant was not “just a little white boy off the streets, he was a homeboy, he had heart in it, he wasn’t gonna let anybody fuck with him that’s for sure.”
Moreover, as noted, there was no gang evidence or testimony that defendant was a gang member. The prosecutor did not refer to the exhibit during closing argument and argued only that defendant was found in a shed and “the only way he’s coming out is by the dogs. So what does that say to you? Who here is willing to get bit by a dog unless you have committed some sort of act that you have a conscious knowledge of committing?”
In short, we do not find it reasonably probable that defendant would have obtained a more favorable result had Exhibit 131 been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.)
The Cell Phone
Defendant contends that the court erred in admitting the cell phone (Exhibit 36) because the prosecutor failed to establish who found it and where it was found.
“Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
Prior to trial, the court considered the relevance and admissibility of the phone. The prosecutor represented that it was found inside the backpack, but defense counsel noted that there was no proof of that—i.e., no documentary evidence showing an inventory of the backpack or who found it, where it was found, or how it came to be on top of the backpack when Deputy Yenchik photographed it. Nevertheless, the court found a sufficient factual nexus between defendant and the phone to render it relevant. Specifically, defendant’s mother would testify that the number was the number of defendant’s phone. The phone was photographed at the scene the night of the incident. And the phone contained recent photographs of defendant and Orozco together and of defendant wearing a cap with distinctive writing similar to that on a cap found at the scene. Concerning the fact that the prosecution could not establish who first found the phone and where, the court previously had found that those circumstances affected only the weight to be given the evidence and not its relevance or admissibility. Indeed, the court opined that no matter where the phone was found that night, it would be relevant and admissible if there was a sufficient factual basis to connect it to defendant.
We agree that the court had a sufficient factual basis to find relevance and admissibility—i.e., that the phone had some tendency to prove identity. (Evid. Code, § 210.) Accordingly, the court’s ruling was not arbitrary, capricious, or absurd.
It follows that we reject defendant’s claim that because the cell phone was irrelevant, its contents were too.
Defendant’s reliance on Nesje v. Metropolitan Coach Lines (1956) 140 Cal.App.2d 807(Nesje) is misplaced. There, the court erroneously admitted test results of a blood sample, presumably that of the decedent, because there was no evidence linking the sample to the decedent. The label on the bottle identified the embalmer who had taken the sample and the person who had brought the sample to the technician. There was no evidence about where the information on the label came from or who wrote it and no evidence that the sample had been taken from the decedent. (Id. at p. 810.) Nesje is distinguishable because here, Kennedy’s testimony, the pictures of defendant on the phone, and the fact that it was found at the scene provide a factual and rational link between the phone and defendant.
Citing People v. Riser (1956) 47 Cal.2d 566 (Riser) (disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649, fn. 2 & People v. Chapman (1959) 52 Cal.2d 95, 98) and People v. Williams (1989) 48 Cal.3d 1112 (Williams), defendant claims that the prosecutor’s failure to establish a continuous chain of custody from the moment the phone was found rendered it inadmissible. We disagree.
In Riser, supra, 47 Cal.2d 566, the court explained that “the party relying on an expert analysis of demonstrative evidence must show that it is in fact the evidence found at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering [citations], but it has never been suggested by the cases, what the practicalities of proof could not tolerate, that this burden is an absolute one requiring the party to negative all possibility of tampering. [Citations.] [¶] The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight. [Citations.]” (Id. at pp. 580-581; accord, Williams, supra, 48 Cal.3d at p. 1134.)
Here, Deputy Yenchik testified that the scene had been secured by the time he arrived, he did a walk-through, and he took photographs. When he first photographed the backpack, it was closed, and nothing was on top of it. Later, however, it had been unzipped, certain items had been placed on or near it, and he photographed them. He explained that after each item was photographed, it was put into a numbered bag that described its contents. Thereafter, the bags were taken to the sheriff’s office and booked into a secure property room. He explained that chain of custody records are kept to show who has had contact with a piece of evidence and establish that it is the evidence obtained from the scene.
Investigator Hernandez testified that he took custody of the bag with the phone from the evidence locker at Santa Clara County Sheriff’s Department on May 10, 2005. He used the phone to track down its owner. Upon observing photographs stored on it, he took the phone to the San Jose Police Department’s forensic unit to have the photographs retrieved. After the photographs were retrieved, he took the phone to the district attorney’s office, where it was booked into the property room. He identified Exhibit 36 as the cell phone. He also identified his initials and dates on the chain of custody on the envelope.
Although there is no documentary evidence of the chain of custody from when the cell phone was first found to the time Investigator Hernandez took custody of it, we do not find that the gap in documentary evidence rendered the cell phone inadmissible as a matter of law. Deputy Yenchik testified generally that the items were delivered to the property room at the sheriff’s department, where Investigator Hernandez took custody of it. It is undisputed that the phone is registered to defendant’s mother and that it contained photographs of defendant. Finally, there is no evidence that the phone had been planted at the scene after the incident, the phone had been tampered with, someone had stored photographs of defendant on the phone after it was found, or it was possible to do so without revealing the date on which that was done.
Taking all the circumstances into account, including the ease or difficulty with which the particular evidence could have been altered, the trial court could conclude with reasonable certainty that the phone had not been tampered with and that the circumstances under which the phone was found and the deficiencies in the chain of its custody affected its weight and not its admissibility.
Defendant’s reliance on Riser, supra, 47 Cal.2d 566 and Williams, supra, 48 Cal.3d 1112 is misplaced.
In Riser, there was a period of time during which objects with the defendant’s fingerprints on them were kept in an accessible, unsecured place. (Riser, supra, 47 Cal.2d at pp. 579-580.) Nevertheless, the court held that the evidence was properly admitted because there was no indication of tampering, no explanation for how the fingerprints could have been forged, and no evidence that anyone who might have wanted to do so knew that the evidence was accessible. (Id. at p. 581.) In Williams, fingerprint evidence was badly mishandled during the investigation, photographic evidence contradicted testimony about where the fingerprints evidence had been found, investigators changed their testimony on that issue, and the passage of time made it impossible to retest the evidence to confirm the match with the defendant’s prints. (People v. Williams, supra, 48 Cal.3d at pp. 1132-1134.) Nevertheless, the California Supreme Court concluded that the circumstances surrounding the evidence affected only its weight, and the evidence was admissible because there was no evidence of tampering. (Id. at p. 1135.) Neither Riser nor Williams suggests that the court here abused its discretion in admitting the cell phone.
Cell Phone Photographs
Defendant claims that evidence of the photographs and data about when they were taken was inadmissible because none of it was authenticated. However, defense counsel did not object on this ground and forfeited this claim. (See Evid. Code, § 353.)
IX. The PowerPoint Presentation
Defendant notes that the record on appeal does not include the prosecutor’s PowerPoint presentation. He claims its absence precludes meaningful appellate review.
A defendant in a criminal case is entitled to an appellate record adequate to permit meaningful appellate review. (People v. Seaton (2001) 26 Cal.4th 598, 699.) However, it is defendant’s burden to show that deficiencies in the record are prejudicial. (People v. Young (2005) 34 Cal.4th 1149, 1170.)
Before trial, defense counsel objected to the use of a PowerPoint presentation unless he had a chance to preview it. The prosecutor agreed to provide access. The record does not suggest that defense counsel did not get to see it.
The record further indicates that although the prosecutor used a PowerPoint presentation during his opening statement and final argument, defense counsel did not object to its use or accuracy or that it included inadmissible evidence. Nor did counsel mention it in the motion for new trial except to say that it included photographs that he had been unable to independently retrieve before or during trial. Moreover, the presentation was not admitted into evidence, and it does not appear that appellate counsel tried to settle the record concerning its content under applicable California Rules of Court, rule 8.346. (See People v. Anderson (2006) 141 Cal.App.4th 430, 440 [settled statement designed to fill gaps in appellate record].)
We observe that the loss, destruction, or absence of a portion of the reporter’s notes does not necessarily preclude meaningful appellate review or compel reversal; nor does the failure to report sidebar or chambers conferences. (People v. Pinholster (1992) 1 Cal.4th 865, 920; People v. Bills (1995) 38 Cal.App.4th 953, 959.) In our view, such material is potentially far more crucial to appellate review than a PowerPoint presentation used only to facilitate the prosecutor’s opening statement and final argument, both of which were fully transcribed. Under the circumstances, defendant has not shown that the record before us prevents meaningful review of his conviction.
X. Ineffective Assistance of Counsel
Defendant contends that appointed counsel and later retained counsel failed to provide effective assistance. He complains that the public defender “apparently failed to provide any material assistance,” failed to investigate, and failed to properly prepare any defense. He complains that retained counsel failed to object to the admission of the cloth gloves found in the vicinity, maintain a continuous objection to the cell phone and photographs, and introduce a log of all the officers who came to the scene.
To obtain reversal due to ineffective assistance, a defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Second, a defendant’s must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Lack of Investigation and Preparation
Defendant provides no record citations to support his general complaint that the public defender failed to investigate and prepare. Thus, we need not address this aspect of his claim. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [failure to cite to the record waives the claim of error].)
In any event, the record contains no explanation by the public defender for the status of the case when retained counsel took over; and even if we accept defendant’s assertion that the file was thin, the record does not demonstrate that there could have been no reasonable explanation for the status of the investigation and preparation. Accordingly, defendant cannot show that the public defender’s conduct fell below an objective standard of reasonable competence.
The Gloves
Orozco told Sergeant Costigan that the person he picked up was wearing dark gloves. After the incident, a resident in the vicinity heard someone in his backyard, and later, a pair of dark gloves was found on his property.
Defendant argues that there was no possible strategic advantage not to object to admission of the gloves. The record does not reveal why retained counsel failed to object; and defendant does suggest the basis for an objection or show reasonable probability that it would have been sustained. “It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court. [Citations.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 924.) Thus, defendant does not show that counsel’s omission was unreasonable or prejudicial.
The Phone and Photographs
The record does not reveal why counsel failed to renew his objection to the phone. Moreover, in light of our conclusion that the phone and its contents were relevant and admissible, defendant cannot show that counsel’s omission was unreasonable.
Police Log
The record does not reveal why defense counsel did not introduce the log of officers who entered the scene (Exhibit G). We note, however, that counsel used the exhibit to refresh Deputy Yenchik’s recollection, and Deputy Yenchik testified that several officers had secured the scene before he arrived, he had no personal knowledge concerning what took place at the scene before he arrived, and over the course of the evening, more than 30 different officers visited the site.
Given the testimony elicited from Deputy Yenchik, counsel could have considered it unnecessary to introduce Exhibit G. Indeed, defendant does not suggest what additional purpose its admission would have served. Accordingly, defendant cannot establish that counsel’s omission was unreasonable.
XI. Sentencing
Citing Cunningham v. California (2007) 549 U.S. 270 (Cunningham), defendant contends that the imposition of middle terms for his offenses and court’s decision to make some of them consecutive violated his right to a jury trial.
Middle Terms
Defendant notes that in Cunningham, the court held that California’s Determinate Sentencing Law (DSL) violated a defendant’s right to a jury trial because it allowed the court to impose an upper term based on aggravated facts found by the court by a preponderance of the evidence rather than by a jury beyond a reasonable doubt. He notes that at that time, the DSL required the court to impose the middle term unless it found circumstances in “aggravation or mitigation.” (Former § 1170, subd. (b), stats. 2004, c. 747, § 1, italics added.) Given the statute’s use of the disjunctive “or,” defendant argues that the right to a jury trial is denied when the court imposes an upper term or a lower term based on factors found by the court rather than a jury.
Defendant’s novel claim ignores the analysis in Cunningham. The court applied the reasoning in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296 to the DSL and held that the DSL infringed on the right to a jury because, under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the penalty for a crime above the norm must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. 275.) Nothing in Cunningham, Blakely, or Apprendi suggests that under the constitution, a mitigating fact used to decrease a defendant’s sentence from the norm must also be charged, submitted to the jury, and proven beyond a reasonable doubt. Nor does defendant suggest why such facts should be or how the imposition of a mitigated term based on facts found by the court, rather than a jury, implicates the right to a jury trial or is otherwise prejudicial. Indeed, it seems anomalous for defendant to suggest that a court may not show leniency based on facts that it finds by a preponderance of the evidence but may do so only if the jury finds mitigating circumstances beyond a reasonable doubt.
Consecutive Terms
Concerning the imposition of consecutive sentences based on facts found by the court, both the United States Supreme Court and the California Supreme Court have rejected defendant’s claim. (Oregon v. Ice (2009) ___U.S. ___ [2009 WL 77896, 09 Cal. Daily Op. Serv. 540]; People v. Black (2007) 41 Cal.4th 799, 823.)
XI. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J. ELIA, J.
We note that during final arguments, the prosecutor reiterated that analysis, arguing that the shot was fired in an east to west and slightly northerly direction. There was no objection that the argument misstated the evidence. On the contrary, in his argument, defense counsel confirmed that the shot did not solely travel east to west.