Opinion
F076616
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO FLORES ROJAS, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jamie A. Scheidegger, and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F17904065)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jamie A. Scheidegger, and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Roberto Flores Rojas challenges his convictions for rape and domestic violence. We affirm.
BACKGROUND
Trial Evidence
Rojas was charged with various sex and domestic violence crimes following two related incidents with a woman—his partner, colleague, and roommate. After Rojas and the victim each returned from work one evening, Rojas desired sexual intercourse and the victim did not. Angered by her refusal, Rojas left the bedroom, only to return hours later. The victim again rebuffed his advances. This time he refused to accept no for an answer. After raping her, he left the room.
The following morning, Rojas and the victim verbally argued about driving to work—she wanted to drive alone but Rojas wanted them to drive together. Rojas then took her keys, and when the victim asked him to return the keys, he "grabbed" her "neck" and punched her. He then "threw" the keys at her and, unbeknownst to her, hid inside her vehicle. While she drove to work, Rojas revealed himself and threatened to kill her if she did not stop the vehicle. After he forced the vehicle to stop, the victim escaped.
Verdict and Sentence
The defendant was convicted as charged and received a state prison sentence of 13 years, eight months. This appeal timely followed.
The full convictions follow: Forcible rape (Pen. Code, § 261, subd. (a)(2)/count 1); sexual penetration by force (Pen. Code, § 289, subd. (a)(1)(A)/count 2); false imprisonment by violence or menace (Pen. Code, §§ 236, 237/count 3); felony domestic violence (Pen. Code, § 273.5, subd. (a)/count 4); and criminal threats (Pen. Code, § 422/count 5).
DISCUSSION
Rojas raises two claims on appeal. First, he argues his due process rights were denied because the victim testified to previous incidents of domestic violence and he had no prior notice of that specific testimony. Second, the court erred in denying a jury instruction relating to late discovery.
We find Rojas had proper notice relating to the previous domestic violence incidents. We also find the court did not err in denying the late discovery instruction because there was no discovery violation.
I. Rojas Received Proper Notice Relating to Prior Incidents of Domestic Violence
Rojas contends he lacked prior notice that the victim would testify to prior acts of domestic violence between her and Rojas. Such evidence is admissible pursuant to Evidence Code section 1109. Rojas argues, because he had no prior notice, his due process rights were violated. We reject his claim because we find he received proper notice.
Undesignated statutory references are to the Evidence Code.
A. Additional Background
During trial, the prosecutor asked the victim why she was afraid of Rojas's threats. The victim replied, "[B]ecause many other times he had already tried." She then testified that no one had previously asked her about "these prior times ...." The prosecutor then felt "obligated to move on at [that] point."
Shortly thereafter and outside the jury's presence, counsel discussed the "many other times" testimony with the court. Rojas's counsel explained his concern was that he "had no opportunity to go into these areas, ha[d] no reports, [and] it's taken me completely by surprise ...." The court concluded a section 402 hearing outside the jury's presence would be appropriate to evaluate the victim's "many other times" testimony.
At the section 402 hearing, the victim testified to four prior domestic violence incidents involving Rojas. She denied ever previously disclosing these prior acts. She then said she "told the officer that he would threaten me regularly." And in a recorded interview with the police, a copy of which Rojas possessed, she described at least one other prior incident.
Rojas's attorney objected to the proposed testimony. The court ruled it was admissible.
When her testimony later resumed, the victim clarified her testimony that morning was the first time she ever disclosed the details of those prior domestic violence incidents. She had previously only told the police generally about threats.
The police officer who interviewed the victim recorded the interview and prepared a written report. The entire interview was not recorded. The written report indicated some prior incidents of domestic violence. During a later discussion regarding jury instructions, Rojas's attorney acknowledged the "written report does refer very vaguely to other instances of - well, some of those instances
Rojas does not claim the prosecutor failed to provide the written report in a timely manner.
B. Analysis
Rojas complains "the prosecution was required to provide pretrial notice of [the victim's] allegations of prior acts of domestic violence" to avoid unfair surprise. That much is true. But he also argues "[t]he prosecution erred by failing to comply with this requirement and the trial court erred in ruling the prior acts evidence admissible without pretrial notice." This argument goes too far.
We apply " 'the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.' " (People v. Kopatz (2015) 61 Cal.4th 62, 85.) "The court's ruling will not be disturbed unless made 'in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Powell (2018) 6 Cal.5th 136, 162.) In this regard, " ' "we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm [the ruling]." ' " (People v. Brooks (2017) 3 Cal.5th 1, 39; People v. Geier (2007) 41 Cal.4th 555, 582.)
Here, the police report indicated there had been prior domestic violence incidents between Rojas and the victim. Rojas's trial attorney acknowledged this fact during the trial. Inexplicably, Rojas fails to acknowledge this constitutes notice. Instead, he claims the prosecutor "should have known of those [prior] allegations, and easily could have known, had he simply read the officer's report, ... or questioned [the victim] ...." Yet nothing prevented Rojas from taking similar steps.
" 'Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then ... the defendant has all that is necessary to ensure a fair trial ....' " (People v. Zambrano (2007) 41 Cal.4th 1082, 1134 (Zambrano).)
Rojas had clear notice about prior domestic violence incidents, albeit in a general manner. Because the details were available " 'through the exercise of due diligence' " on his part, we reject his due process claim. (Zambrano, supra, 41 Cal.4th at p. 1134.)
Rojas also assigns blame to his trial counsel for failing to inform the court, during the section 402 hearing, that the police report indicated prior domestic violence incidents. This, he claims, is ineffective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 687.) His argument incorrectly assumes the court would fault the prosecutor for failing to further investigate the prior incident allegations. We believe it is more reasonable the court would appropriately find Rojas had sufficient notice. Our conclusion does not "undermine confidence in the outcome." (People v. Woodruff (2018) 5 Cal.5th 697, 761-762 [ineffective assistance of counsel claim must " 'undermine confidence in the outcome' " to establish a basis for relief].)
To the extent Rojas's trial counsel was ineffective for failing to adequately conduct investigation, that issue is not raised on appeal. In any event, "[i]neffective assistance of counsel is particularly difficult to demonstrate on direct appeal, where we are limited to the record from the trial court. 'The appellate record ... rarely shows ... counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored.' " (People v. Acosta (2018) 28 Cal.App.5th 701, 706.)
II. There Was No Discovery Violation
Rojas also claims the trial erred by failing to instruct the jury that he was unable to properly defend against the prior acts of domestic violence testimony because of its untimely disclosure. We find no error.
A. Additional Background
During a conference discussing proposed jury instructions, Rojas's trial attorney explained, in relation to the prior domestic violence incidents, he was "trying to deal with evidence that was brought out in the middle [of] the trial ...." Accordingly, he requested the court to instruct the jury with CALCRIM No. 306. The instruction provides in part, "Failure to follow [the discovery statutes] may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial." (CALCRIM No. 306.) The court declined to give the instruction, finding there was no "prejudicial violation of a discovery rule."
B. Analysis
"Discovery in criminal cases is governed primarily by statutory law. [Citation.] [Penal Code] section 1054.1 provides that the prosecuting attorney 'shall disclose' to the defendant certain materials and information prior to trial. That information includes, among other things, the names and addresses of intended trial witnesses, statements of all defendants, all relevant real evidence seized or obtained while investigating the charged offenses, any exculpatory evidence, and relevant witness statements or reports of the statements of witnesses whom the prosecutor intends to call at trial. ([Pen. Code,] § 1054.1, subds. (a)-(f).)" (People v. Washington (2019) 34 Cal.App.5th 311, 317.) These statutes "promote the ascertainment of truth in trials ...." (In re Littlefield (1993) 5 Cal.4th 122, 130-131; Pen. Code, § 1054, subd. (a).)
Section 1109, subdivision (b), requires "the people [to] disclose [prior domestic violence acts] evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected ...." Such evidence "expected to be offered" shall be disclosed "in compliance with" Penal Code section 1054.7. (§ 1109, subd. (b).)
Penal Code section 1054.7 dictates the timing with which these disclosures are required. Subject to exceptions not relevant here, these evidentiary "disclosures ... shall be made at least 30 days prior to the trial .... If the material and information becomes known to, or comes into possession of, a party within 30 days of trial, disclosure shall be made immediately ...." (Pen. Code, § 1054.7.)
"Upon a showing both that the defense complied with the informal discovery procedures provided by the statute, and that the prosecutor has not complied with [Penal Code] section 1054.1, a trial court 'may make any order necessary to enforce the provisions' of the statute, 'including, but not limited to, immediate disclosure, ... continuance of the matter, or any other lawful order.' ([Pen. Code,] § 1054.5, subd. (b).) The court may also 'advise the jury of any failure or refusal to disclose and of any untimely disclosure.' " (People v. Verdugo (2010) 50 Cal.4th 263, 280 (Verdugo).) CALCRIM No. 306 embodies this jury advisory.
The trial court here properly found no discovery statute violation. It is undisputed that the victim had never previously disclosed the details regarding prior domestic violence acts. The parties simultaneously learned the details, "which satisfie[d] the statutory requirement of immediate disclosure of materials that become known during trial. [Citations.] Although [Rojas] claims he was 'taken by surprise and ... unable to effectively counter this new evidence,' the prosecution had no duty to obtain the evidence sooner than it did." (Verdugo, supra, 50 Cal.4th at p. 287.)
We do not suggest the prosecution may intentionally thwart discovery obligations by failing to fully investigate allegations. That claim is neither made on appeal nor supported by the record. --------
"Because 'the material and information [became] known to, or [came] into the possession of, a party within 30 days of trial, [and] disclosure [was] made immediately,' no violation of the discovery statutes occurred." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 468.) The court correctly declined to instruct the jury with CALCRIM No. 306. Rojas's contrary contention is rejected.
DISPOSITION
The judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.