Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 03-3567, 02-7320
ROBIE, Acting P.J.
Although he probably did not think so at the time, November 3, 2002, turned out to be a very bad day for defendant Angel Morales, Jr. After stabbing a person he believed to be a rival gang member, defendant raped a 14-year-old girl at his sister’s apartment.
Ultimately, defendant pled no contest to assault with a deadly weapon (with a gang enhancement) for the stabbing and received probation, with execution of an eight-year prison sentence suspended but with two years in jail as a condition of probation. While he was still in jail on the assault case, a jury found him guilty of rape. As a result, the trial court revoked defendant’s probation in the assault case and imposed the upper term of eight years on the rape to run consecutively with the eight-year sentence on the assault, leaving defendant with an aggregate term of 16 years in prison.
On appeal in the rape case, defendant contends the trial court erred in instructing the jury with CALJIC No. 2.28 based on his belated disclosure of his sister as a witness. He also contends the trial court abused its discretion in admitting evidence of the rape victim’s deteriorating academic performance and evidence that his assault conviction was gang related. Finally, he contends the trial court violated his constitutional rights by imposing the upper term for the rape.
On appeal in the assault case, defendant contends he did not receive proper notice of the proposed revocation of his probation nor a proper hearing. He also complains that counsel was not formally appointed for him with respect to the probation revocation and the revocation of his probation was not supported by the evidence.
Finding no prejudicial error in either case, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2002, defendant participated in an unprovoked attack on a person he believed was a rival gang member, during which he stabbed the person several times with a knife or screwdriver. Shortly thereafter, he took a 14-year-old girl to his sister’s apartment and raped her.
As a result of the stabbing, defendant was charged in December 2002 with several offenses, including assault with a deadly weapon (case No. 02-7320). In March 2003, he pled no contest to the assault charge and admitted a gang enhancement in exchange for dismissal of the remaining charges and enhancements and a midterm cap.
The sentencing hearing was held on July 30 and 31, 2003. The trial court sentenced him to an aggregate term of eight years (three for the assault and five for the enhancement), but suspended execution of the sentence and placed him on probation for eight years, with two years in jail as a condition of probation.
Meanwhile, in May 2003, the rape victim finally revealed to authorities that defendant was the culprit. In June 2003, defendant was charged with forcible rape (case No. 03-3567). On July 30, 2003 -- at the same time he was being sentenced in the assault case -- the court appointed counsel for defendant in the rape case. At that time, the court advised defendant that if he was convicted of the rape charge, “it should be understood that alone could be the basis for finding him unsuitable for continuing on his probation grant in [the assault] case and the eight years that is suspended will be . . . executed,” “[e]ven though that rape charge would not necessarily constitute a violation of the probation.”
Ultimately, the rape case came to trial on January 20, 2004. The first day of trial was taken up with in limine matters. On the morning of the second day, defense counsel notified the prosecutor and the court of a new defense witness -- defendant’s sister, Olga Morales -- who would testify that she saw defendant and the victim come out of her apartment holding hands (implying any sex was consensual).
The prosecutor asserted the late disclosure of this witness violated the discovery rules and asked that the court exclude her from testifying. Instead, the court continued the trial for six days, to January 27, and ordered the defense to make the witness available to the prosecution for an interview, which the defense did the next day.
On January 30, Olga Morales testified for the defense that she came home one night in November 2002 and saw her brother and the victim emerge from her bedroom holding hands.
At the request of the prosecution, and over defendant’s objection, the court instructed the jury with CALJIC No. 2.28.
“The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of truth, save court time and avoid any surprise which may arise during the course of this trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party’s evidence.
After the jury found defendant guilty of rape, the trial court revoked his probation in the assault case and imposed the upper term of eight years on the rape to run consecutively with the eight-year sentence on the assault.
DISCUSSION
I
CALJIC No. 2.28
Defendant contends the trial court prejudicially erred in instructing the jury with CALJIC No. 2.28. We disagree.
CALJIC No. 2.28 has been criticized by several courts. (See People v. Bell (2004) 118 Cal.App.4th 249; People v. Cabral (2004) 121 Cal.App.4th 748; People v. Saucedo (2004) 121 Cal.App.4th 937.) Generally, the courts have found CALJIC No. 2.28 problematic because: (1) the instruction informs the jury that the defendant personally was responsible for the untimely disclosure of evidence when, in fact, the defendant may not have had any control over the delay; and (2) the instruction gives the jury no guidance in how to assess the harm (if any) done by the delayed disclosure. (See People v. Bell, supra, 118 Cal.App.4th at pp. 254-257; People v. Cabral, supra, 121 Cal.App.4th at pp. 750-752; People v. Saucedo, supra, 121 Cal.App.4th at pp. 942-944.)
CALJIC No. 2.28 has been superseded by CALCRIM No. 306.
Here, the first problem generally associated with CALJIC No. 2.28 is of little concern since defendant was himself responsible for the delayed disclosure of his sister as a witness. In his own testimony, defendant echoed his sister’s testimony that she saw him and the victim holding hands on the night of the alleged rape. He also admitted, however, that in the seven months between the time he was charged with rape and the time of trial he never told his sister “to come forward and say what she knew.” Instead, he waited until the day the trial was supposed to start, then told his mother to tell his sister to call defense counsel and tell him what she knew. Thus, defendant could have disclosed his sister as a potential witness in a timely manner but chose not to do so.
Defendant asserted he “was expecting [the victim] to come forward and say the truth that [he] didn’t rape her.”
Notwithstanding this fact, CALJIC No. 2.28 was still problematic here because it offered the jurors insufficient direction on how to factor the delayed disclosure into their deliberations. (See, e.g., People v. Saucedo, supra, 121 Cal.App.4th at pp. 942-943.) Even assuming it was error to give the instruction, however, we find any such error harmless.
“The test for harmless error in instructing with CALJIC No. 2.28 is People v. Watson (1956) 46 Cal.2d 818, 836 . . ., which asks whether it is reasonably probable [the defendant] would have achieved a more favorable result if the court had not given the instruction.” (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7.)
Defendant contends the error in giving CALJIC No. 2.28 was prejudicial here because “the evidence [i.e., his sister’s testimony] was crucial and . . . was not implausible.” In making this argument, he contends his case is comparable to Bell and Cabral, where the giving of CALJIC No. 2.28 was found to be prejudicial error.
In Bell, the delayed disclosure related to the testimony of three alibi witnesses. (People v. Bell, supra, 118 Cal.App.4th at pp. 253-254.) The appellate court found the giving of CALJIC No. 2.28 prejudicial because: (1) the prosecution’s case (for murder) was based on “essentially two eyewitnesses,” one of whom “had a fairly brief opportunity to see the assailant,” and the other of whom “was impeached by the admission of evidence that she was a frequent liar and had suffered misdemeanor convictions”; (2) “[t]he presentation of [the defendant’s] alibi was a critical part of [his] case”; and (3) “[t]he prosecutor capitalized on the jury instruction at closing argument to discredit [the defendant]’s alibi defense.” (Bell, at p. 257.)
In Cabral, the delayed disclosure related to testimony by the defendant’s wife corroborating his statement to police that he had authority from his employer to cash a check he was accused of forging. (People v. Cabral, supra, 121 Cal.App.4th at pp. 750, 753.) With little analysis, the appellate court concluded the giving of CALJIC No. 2.28 was prejudicial. (Cabral, at p. 753.)
Here, unlike in Bell, the prosecutor did not argue the discovery violation or CALJIC No. 2.28 to the jury; instead, she argued the last-minute nature of the testimony of defendant’s sister. Thus, this case is more like Saucedo, where the appellate court found any error in the use of CALJIC No. 2.28 “harmless . . . because it was merely a vehicle for credibility challenges that would have been made even in the absence of the instruction.” (People v. Saucedo, supra, 121 Cal.App.4th at p. 943.) There, as here, “[t]he prosecutor focused on the last-minute nature of the alibi rather than the discovery violation.” (Id. at p. 943.)
Furthermore, unlike in Bell and Cabral, here the jury was aware of defendant’s role in the delayed disclosure of his sister as a witness. Thus, this is not a case where CALJIC No. 2.28 “inappropriately ascrib[ed] to [the defendant] his lawyer’s withholding of evidence.” (People v. Lawson, supra, 131 Cal.App.4th at p. 1249.)
In light of these circumstances, we conclude it is not reasonably probable defendant would have achieved a more favorable result if the trial court had not given CALJIC No. 2.28. Accordingly, any error in giving that instruction was harmless.
II
Evidence Of The Victim’s Deteriorating Academic Performance
Woodland Police Officer Anthony Cucchi, who was the school resource officer for the Woodland Joint Unified School District, testified that the victim reported the rape to him on November 5, 2002. When asked to describe the conversations he had with the victim between November and the following May, Officer Cucchi responded, “Prior to November [the victim] had very good grades, very good attendance, and was a very good student. And I seen a major drop-off in her grades and schooling and so --.” Defense counsel did not object; instead, at that point the prosecutor interrupted and elicited general testimony about Officer Cucchi’s involvement in students’ academics. Again, defense counsel did not object. Nor did counsel object when the prosecutor elicited Officer Cucchi’s reiteration that he had noticed a change in the victim’s academic performance. It was only after the prosecutor asked, “How long did it take you to notice this drop off” that defense counsel objected on the grounds of relevance and Evidence Code section 352. The trial court overruled that objection. Officer Cucchi then testified that before November, the victim was “striving for the honor roll” and “was invited to the Gate program, which was a program for students [who] excel,” but “after that [her grades] went down to F’s.” Officer Cucchi later testified over a similar objection that in March or April he told the victim that he thought her declining grades “stemmed from the incident that happened in November.”
On appeal defendant contends the trial court abused its discretion in admitting this “highly prejudicial testimony” because it implied that defendant “ruined a budding academic career” and it was “entirely cumulative to the testimony of [the victim]’s three family members, a good friend, and a teacher that she was very upset the night this happened and continued to be very upset the following day.” We disagree.
Evidence Code section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “Rulings under Evidence Code section 352 come within the trial court’s discretion and will not be overturned absent an abuse of that discretion.” (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) “Where, as here, a discretionary power is . . . by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
There was nothing arbitrary, capricious, or patently absurd in the trial court’s overruling of defendant’s belated objections to Officer Cucchi’s testimony about the decline in the victim’s academic performance following the rape. The trial court could have reasonably determined that the evidence tended to corroborate the victim’s assertion that she had been raped because the decline in her academic performance suggested that the trauma of the sexual assault led to an inability to focus on schoolwork. Moreover, the decline in the victim’s academic performance over a period of months was not cumulative of the testimony of various witnesses that the victim was “upset” immediately following the incident. Indeed, the objective evidence that defendant’s grades declined over a period of months following the incident had a greater tendency in reason to show that the incident was not consensual than the subjective assessment of “three family members, a good friend, and a teacher” about how the victim appeared on the day of the incident and the day after.
Because Officer Cucchi’s testimony about the victim’s falling grades was highly probative and not cumulative, the trial court did not abuse its discretion in admitting that evidence over an Evidence Code section 352 objection.
III
Gang Evidence
Defendant contends the trial court abused its discretion in overruling another objection under Evidence Code section 352 to a question the prosecutor posed to him on cross-examination that related to his membership in a gang. This argument need not detain us long. Suffice it to say that the heart of defendant’s contention is that he was severely prejudiced by “the prosecutor’s injection into this trial of gang-related evidence.” But the record shows that evidence of defendant’s gang affiliation came in much earlier in the trial without objection; indeed, defense counsel himself elicited that evidence.
Specifically, in attempting to elicit an admission from defendant that he had attacked another individual simply for being in a rival gang, the prosecutor asked, “Is it a provocation to be a Norteno?” After the trial court overruled defense counsel’s objection, defendant admitted that it was “a provocation to [him] to have a Norteno walking in [his] area.”
On direct examination, the prosecutor elicited testimony from the victim that she would not tell anyone the name of the person who raped her because she was afraid of defendant. The victim then testified that she was afraid of defendant because “he’s violent.” She further explained that she thought he was violent because of what he did to her and because she had “heard stories” “about him involved in fights and everything.”
On cross-examination, defense counsel elicited testimony from the victim that she had been friends with defendant’s brother, Ricardo, for a couple of years. He then elicited her testimony that Ricardo had talked to her about defendant, including about “how he would be in fights and things like that.” Defense counsel then asked if Ricardo had told her defendant was in a gang, and she responded, “Yes.”
Having put evidence relating to his gang membership before the jury in cross-examining the victim, defendant cannot now be heard to complain that he was prejudiced by “the prosecutor’s injection into this trial of gang-related evidence.” The jury was already aware from defendant’s own questions to the victim that he was affiliated with a gang, and under no reasonable analysis can it be said that defendant probably would have achieved a better result in the case if the prosecutor had been barred from eliciting additional evidence on that subject. Thus, any error in allowing the prosecutor to elicit “gang-related evidence” was harmless.
IV
Upper Term
Defendant contends the trial court violated his right to a jury trial by imposing the upper term for the rape. He is mistaken.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, at p. 1244.)
In Cunningham, however, the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 864].)
On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)
Here, in testifying in his own defense, defendant admitted he had been convicted of assault with a deadly weapon for stabbing a person. In doing so, defendant effectively admitted that he had “engaged in violent conduct that indicates a serious danger to society.” (Cal. Rules of Court, rule 4.421(b)(1).) Because defendant admitted a legally sufficient aggravating circumstance, the imposition of the upper term did not infringe upon his constitutional right to a jury trial under Black II.
V
Probation Revocation
Defendant claims various errors in regard to the revocation of his probation in the assault case. First, he complains that “[t]he record does not reflect that [he] was given written notice of the government’s intent to revoke his probation, nor of the alleged grounds for such revocation.” He is incorrect.
The jury found defendant guilty of the rape on February 6, 2004, and sentencing was set for March 9. On March 3, the People filed a “Statement In Aggravation.” In that document, in addition to arguing about what defendant’s sentence should be in the rape case, the People also argued that “the eight years previously suspended in [the assault case] should be imposed” because he had been convicted of the rape, and the court had told him when it granted him probation in the assault case that that could be the result. Thus, contrary to defendant’s argument, he did receive written notice of the People’s request that his probation be revoked and the basis for that request.
Defendant next complains, summarily, that he was not provided with a hearing on the revocation of his probation. Again, he is incorrect. At the sentencing hearing in the rape case, which was eventually held on March 16, 2004, the issue of whether defendant’s probation should be revoked in the assault case because he was convicted in the rape case was discussed at length before the court acted. Thus, defendant did receive a hearing on the revocation of his probation.
Defendant next complains that “[t]he record does not reflect the formal appointment of counsel in the probation revocation proceedings.” He acknowledges his “counsel in the rape case sought to address the probation revocation issues at the sentencing hearing,” but contends “the fact [counsel] had not been previously appointed of course meant he had not prepared prior to the hearing to address those issues.” This argument is somewhat disingenuous in view of what counsel said at the hearing.
As we have noted, the People filed a “Statement In Aggravation” in advance of the sentencing hearing in the rape case which included a request that the court revoke defendant’s probation in the assault case based on his rape conviction. It is quite clear from the record that defendant’s attorney in the rape case had read that document and was prepared to address it, as he began his argument at the sentencing hearing by noting that “the drums now beat for imposition of the suspended eight-year term that [defendant] has.” He then proceeded to argue why the court should not revoke defendant’s probation and should instead allow him to finish his jail time in the assault case before sending him to prison in the rape case. Under these circumstances, defendant has failed to show any error.
Finally, defendant contends the evidence did not support revocation of his probation because he was not on probation when he committed the rape, therefore he could not have violated his probation by that act. Essentially he argues that probation cannot be revoked based on “antecedent conduct,” that is, conduct preceding the grant of probation.
This very argument was rejected more than 30 years ago in People v. Pinon (1973) 35 Cal.App.3d 120. There, the appellate court noted that “[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court” and that “[p]robation may be revoked whenever the probationer has demonstrated to the trial court that he is unfit to be at large.” (Id. at p. 123.) By pleading guilty to assault with intent to commit murder -- a crime he committed before he was placed on probation for rape -- the defendant in Pinon “clearly demonstrated that he was a danger to the public and was unfit to be at large.” (Id. at pp. 122, 124.) The appellate court observed that “[t]his [wa]s unaffected by the fact that the crime from which the guilty plea arose occurred before [the defendant] was placed on probation. Public policy demands that a court have the power to terminate probation when, in the exercise of sound judgment, it becomes apparent that a defendant’s probation jeopardizes the safety of other citizens.” (Id. at p. 124.) The court further observed that “the fact that the [trial] court knew that another charge was pending when it placed [the defendant] on probation [did not] foreclose the exercise of its discretion. Unless the court agrees to leave a defendant on probation regardless of the ultimate disposition of the other charge, thus including the other charge within the bargain, it would be against public policy to hold that it may not exercise its discretion to revoke probation upon his conviction of the other charge.” (Ibid.)
Here, as in Pinon, it does not matter that the rape occurred before defendant was placed on probation for the assault, or that both of the crimes occurred on the very same day. Because the trial court told defendant his probation could be revoked if he was convicted of the rape, defendant had no right to continue on probation in the assault case following his rape conviction. Like the defendant in Pinon, defendant “clearly demonstrated that he was a danger to the public and was unfit to be at large” by being convicted of rape. (People v. Pinon, supra, 35 Cal.App.3d at p. 124.) Under these circumstances, the revocation of defendant’s probation was proper, even though the rape preceded the grant of probation.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.
“Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the defendant failed to timely disclose the following evidence: The statement of defendant’s sister, Olga Morales. Although the defendant’s failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial.
“The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance or something trivial or subject matters already established by other credible evidence.”