Opinion
E066534
01-24-2018
THE PEOPLE, Plaintiff and Respondent, v. GILBERT DAVID MARTINEZ, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1600494) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Gilbert David Martinez, of driving or taking a vehicle without consent (count 1; Veh. Code, § 10851) and receiving stolen property with a value not exceeding $950, specifically toys, video games, and computer equipment (count 3; Pen. Code, § 496). The jury additionally found true an allegation that defendant had suffered a prior strike conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court found true an allegation defendant committed the offense while he was out on bail. (Pen. Code, § 12022.1.) The court sentenced defendant to an aggregate term of six years of incarceration.
The court instructed the jury to return the verdict form for count 2 unsigned if they found defendant guilty in count 1. The jury found defendant not guilty in count 4 which alleged receipt of a stolen UPS package valued at less than $950.
On appeal, defendant contends the court committed structural error in denying defense counsel's request for a continuance after the People turned over fingerprint evidence to the defense after the jury had been sworn. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Maxie Sumanti testified that on February 8, 2016, around 10:00 a.m., he parked his gray Honda Odyssey van on the street in front of his house. He placed his keys inside the side door of his other vehicle. Around 10:00 p.m., Sumanti went outside to retrieve his keys from the other vehicle, but could not find them. He went inside his home to get his spare keys. Sumanti then went outside and noticed his van was no longer there. His wife called the police to report the van stolen.
Azri Mukijan testified he owned a business selling toys and electronics online; he maintained a warehouse in Redlands where he kept his inventory. One morning he went to the warehouse and found it had been broken into. He noticed that a Microsoft Surface Pro tablet, some toys, and video games were missing.
On February 9, 2016, around 3:30 p.m., a Redlands police officer was dispatched to a residential area regarding a suspicious occupied vehicle. As he arrived, he noticed that both the right front and rear tires of the gray Honda Odyssey van were flat. The officer pulled behind the vehicle. Defendant was sitting in the driver's seat. The officer exited the vehicle and gave the license plate number to dispatch.
Defendant exited the vehicle and walked toward the hood, which he propped open. The officer contacted defendant and requested identification. Defendant said his driver's license might be inside the car. They walked over to the driver's side door where defendant entered the front of the vehicle for a moment.
Two other officers responded to the scene. One of the officers noted that the hood of the vehicle was warm to the touch as if it had recently been driven. The key to the vehicle was in the ignition. During a search of the vehicle, the officers found a UPS jacket, several packages addressed to different people, mail, computer equipment, eyeglasses, prescription medications, spy gear, video games, toys, and a Microsoft Surface Pro tablet. None of the packages were in the vehicle owner's name. One officer found a couple of envelopes and an invoice with Mukijan's name.
That day, Sumanti responded to the scene, where he saw his vehicle. The keys in the ignition were the same keys he had left in his other car the day before. Mukijan received a phone call from the police indicating they may have found some of his property. He went to the Redlands Police Department where he told them what he was missing; he identified the items at the department as his; the police then returned to him his tablet, video games, spy gear, and toys.
II. DISCUSSION
Defendant contends the court committed structural error by denying his request for a continuance when the People turned over fingerprint evidence which revealed a fingerprint on the package containing the Microsoft Surface Pro tablet which did not match defendant or Sumanti. Defendant maintains a continuance would have allowed him to conduct further investigation with respect to finding to whom the fingerprint belonged so that he could assert a third party culpability defense. We disagree.
On May 9, 2016, after the jury was sworn, the People informed the court that "over the weekend as I was looking into reports on this case, I did read specifically a section of a one-page supplemental that was done by a technician, wherein the technician states that he located two latent prints in the vehicle on a Surface Pro tablet . . . that I believe was located on the passenger seat of the vehicle when police officers arrived. [¶] . . . So this morning I had my officer . . . call over to see if a comparison was done. [The] [o]fficer . . . was told a comparison was done. It was a negative comparison. It had been compared to the defendant's prints. I asked [the] [o]fficer . . . to have the crime lab send that over to the defendant[] if they could."
The People were willing to stipulate that the fingerprint did not match defendant. Defense counsel noted that the fingerprint comparisons had been completed on February 25, 2016, four days prior to the preliminary hearing and that the People had become aware of the report over the weekend, prior to the swearing in of the jury.
Defense counsel contended the People's failure to turn over the evidence at an earlier time constituted Brady error. Defense counsel maintained the People's proffered stipulation "falls short of giving us a full and fair opportunity to investigate this, to take it to its nth degree, to go down this investigative path to talk to the individual who did this particular evaluation to see if there is another way to go through AFIS and determine if there is any other contact or hits, or to subpoena anything regarding this particular tablet, where it came from, to get closer to a possible third party culpability or anything else." Defense counsel noted that he had been unable to conduct voir dire on the issue because he had not known about it.
Brady v. Maryland (1963) 373 U.S. 83.
Defense counsel moved for dismissal with prejudice or a mistrial. In the alternative, defense counsel requested a continuance to give him an opportunity to fully evaluate the new evidence. The People argued that their theory of the offense was not that defendant was the thief of the property, but that he received the property knowing that it was stolen; they argued that property other than the Microsoft Surface Pro tablet also formed the basis of the offense. Thus, any third party fingerprint found would not exculpate defendant.
The court found the fingerprint evidence should have been turned over to defense counsel at an earlier date. Nevertheless, the court found "it has very little evidentiary value from my perspective that a fingerprint report that doesn't have the defendant's fingerprints on it, I don't see that it gives much weight to either side's burden . . . ." The court further noted: "There are different—there are discovery violations. Some have great effect, some have little or no effect. I see this falling closer to little or no effect. I don't think that it changes the position of either party on proving or negating any of the elements of the charged offenses." The court denied defendant's request for a dismissal, mistrial, or continuance. The court agreed to give the jury a late evidence instruction and to allow a stipulation regarding the fingerprint evidence.
After the People rested their case-in-chief, the court read the proposed stipulation to the parties. Defense counsel requested the court reconsider its ruling on his former motions for dismissal or mistrial. The court denied the request.
Defense counsel then objected to language in the proposed stipulation reading that the prosecution did not request the results of the fingerprint analysis until May 9, 2016. He further observed: "I can't examine the fingerprint examiner about how reliable fingerprints are. I can't do anything with the fingerprint examiner regarding how likely it is that this could be a mistake, or how certain they are that this isn't the scenario. I can't do any of that."
The People noted that the stipulation was factually accurate. They noted: "As to the defense statements that they could have or would have called someone had they known, this is the language in the stipulation, and it's not supported by any of the actions by the defense. . . . As far as I know, there's been no attempts by the defense to call [the fingerprint analysts], or the people from Cal-ID that actually did the comparisons. And as far as I know in speaking to the office yesterday, both are working today and yesterday and are accessible by phone. [¶] The defense has made no attempts to try and contact them, as far as I know. They knew that we were going to do a stipulation, they didn't ask to clarify that yesterday. It's just now that they want to object and say they would have, should have, could have. But that's not backed up by their actions."
The court observed: "I think the language is accurate, that the prosecution did not request the results until May 9th, 2016. My understanding is that there was paperwork that showed that the car had been processed for prints. That was provided in discovery initially. No one, the defense or prosecution, decided to check to see what the results were or ask they be compared until, I guess, May, or something to that effect."
The court noted that if defense counsel objected to the language of the stipulation, it would not provide it to the jury. Defense counsel agreed to the reading of the stipulation if the court read it with the late evidence instruction. The court stated it would either read the stipulation or not. Defense counsel acquiesced, but urged the court to read it along with the late evidence instruction. (CALCRIM No. 306.) The court disagreed. Defense counsel agreed to the reading of the proposed stipulation.
The court then read the stipulation to the jury as proposed: "'On February 9th, 2016, Forensic Specialist Robert Woods processed the interior and exterior of the 2008 Honda Odyssey for latent fingerprints. A fingerprint was located and lifted from the Surface Pro tablet located on the passenger's seat of the van. The print was compared to the fingerprints of Gilbert Martinez and Maxie Sumanti. The fingerprint does not match either Gilbert Martinez or Maxie Sumanti. The analysis was verified by Fingerprint Examiner Amanda Haleman. The examination was conducted on February 25th, 2016. The prosecution did not request the results until May 9th, 2016. The defense did not receive the report until the same day, May 9th, 2016.'" The court informed the jury that it must accept those facts as true.
After closing arguments, the court also instructed the jury with CALCRIM No. 306: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose: the report of [the] fingerprint examination within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."
"'[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.] Moreover, the denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.]' [Citation.] '[T]he trial court may not exercise its discretion "so as to deprive the defendant or his attorney of a reasonable opportunity to prepare." [Citation.]' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 650.)
"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."' [Citation.] The trial court's denial of a motion for continuance is reviewed for abuse of discretion. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
Here, the court acted within its discretion in denying defense counsel's request for a continuance. During discovery, the People provided defense counsel documentation that the vehicle had been processed for fingerprints. Although the People failed to inquire about any processing of the fingerprints prior to voir dire, the defense could just as easily have inquired as well. Once defense counsel was informed about the fingerprint analysis, he failed yet again to inquire of the analysts whether any database comparison had been or could have been conducted.
As the court noted, any evidence that could have potentially been discovered, such as the identity of the individual who left the fingerprint on the tablet, had little evidentiary value and would have had little or no effect on the outcome of the trial. This is because the identity of the third party who left the fingerprint on the tablet would in no way have reasonably exculpated defendant from the logical inference that, whether defendant himself stole the merchandise, defendant certainly was in possession of stolen property.
Indeed, as the People argued during its closing statement, defendant was not charged with stealing either the van or the personal property: "The defendant is not charged in any count with stealing the property. You are not looking at whether or not I've proved beyond a reasonable doubt he was the actual thief who took the van, who took the boxes, who took any of that property. That issue is not in front of you. What the defendant is guilty of beyond a reasonable doubt is knowingly receiving it, knowingly being in possession of it." As the People noted: "We don't know who the thief was." "Who the fingerprint belongs to, we'll never know. We're not going to know. It doesn't change the case. I am telling you that several people may have handled that Surface Pro." "It was handled by the customer who originally bought it. It would have been handled by Mr. Mukijan. It could have been handled by a different person if they're the thief who took it. We don't know. But that's not the issue in front of you. . . . All that means is whoever grabbed it . . . was not the defendant." "What the law tells you . . . is . . . I [just] have to prove to you that . . . defendant was in possession of this stolen property . . . ."
Mujikian testified the Microsoft Surface Pro tablet was merchandise which had been returned to him by the original purchaser. --------
Moreover, the court remedied any prejudice both by reading the stipulation to the jury that the fingerprints on the tablet did not match defendant and the late discovery instruction. Defendant specifically referenced the late discovery instruction in his closing.
Finally, the lack of an identity for the individual who left the fingerprint did not preclude defendant from presenting a third party culpability defense. In point of fact, defense counsel argued that the lack of defendant's fingerprints found on any of the stolen objects undermined any determination that he either stole the property or knew that the property was stolen. Thus, when the unlikelihood that a continuance would have provided anything of substantive value to defendant is weighed against the burden which such a continuance would have placed upon the jurors and the witnesses, the court acted within its discretion in denying defendant's request.
In any event, even if the court erred in declining to grant the continuance, we find any error harmless under any standard for the reasons stated above. (People v. Thompson (2016) 1 Cal.5th 1043, 1103 [any pretrial discovery error harmless under any standard where the defendant failed to assert how earlier disclosure or continuance would have made any difference to the defense strategy]; People v. Jenkins, supra, 22 Cal.4th at pp. 955-956 [any error in declining discovery harmless where the defendant already had sufficient discovery to conduct his own investigation with respect to the evidence adduced by prosecution at trial].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.