Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF092828
DUARTE, J.
A jury convicted defendants Kelvin Eduardo Martinez (Martinez) and Valentino Antonio Andrade (Andrade) of residential burglary, and also convicted Martinez of misdemeanor vandalism. (Pen. Code, §§ 459, 594, subds. (a), (b)(2)(A).) The trial court sustained allegations Martinez had a prior serious felony conviction which also qualified as a strike. (§§ 667, subds. (a), (b)-(i), 1170.12.) The trial court sentenced Martinez to 13 years in state prison, and sentenced Andrade to two years in state prison, and each defendant timely appealed.
Further statutory references are to the Penal Code unless otherwise specified.
Martinez raises overlapping claims arising from the midtrial disclosure of a police report about the vandalism. He claims the report’s late disclosure constituted a statutory discovery violation, a due process or Brady violation, and prosecutorial misconduct. Andrade joins in Martinez’s contentions and further claims the trial court erred in denying his motion for severance and refusing to grant him probation at sentencing. We shall affirm.
Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].
FACTS
Angela Huerta testified she lived in a West Sacramento apartment, and extended family members lived in the next building. On the evening of June 14, 2009, she saw defendants carrying a television belonging to her extended family--namely, Maria Garcia. Andrade was carrying something else under his arm as well. She knew Andrade, because he “used to live in front of us[, ]” but she had never seen Martinez before. She could see both of their faces. When she called out, “‘Valentino, that’s Mari’s TV[, ]’” and told him not to get into more trouble, defendants dropped the television, then picked it up and left.
Huerta referred to Andrade as “Valentino.”
Andrade turned, seemed to recognize her, and said, “‘Oh, motherfucker.’” She identified Martinez to the police as “Travieso” because that is the name her 14-year-old nephew, Robert Garcia, told her Martinez used, but she did not know Martinez. She and Robert gave chase in different directions, and about three minutes later or less, she saw defendants, still carrying the television.
As multiple witnesses share the surname “Garcia, ” we refer to them by their first names. Robert is also referred to as “Roberto.” Patricia is also referred to as “Patty.”
Maria Garcia testified her television was taken without her permission while she was at work.
Maria’s daughter, Patricia Garcia, aged 17, testified she saw defendants at the K Street Mall in downtown Sacramento, earlier on the day of the burglary. Patricia had known Andrade for a few years. He had brought Martinez--calling him “Travieso”--to her house a couple of days before the theft, and she had returned home the day before the theft to find them inside, with her sister, Mayra Naranja, braiding their hair. When she bumped into them at the mall, they smoked marijuana by the river, then wanted her to help sneak them into a movie theater. She declined, and after she saw a movie and went to a friend’s house, she received a call about the stolen television. After she spoke with Robert (her brother) and Huerta (her aunt), she went looking for defendants in her car. She spotted them, without the television, and they saw her; by the time she made a U-turn, they were gone. Later, she discovered her laptop and tennis shoes, which had been next to the television, were missing. Before she had left for the movies, she had jokingly told Robert and his girlfriend Vanessa that if her shoes or laptop were missing, she would blame Vanessa. When Robert called her about the burglary, she first thought he was joking.
No last name was provided for Vanessa.
The next day, after Patricia heard Robert scream, “‘He’s back[, ]’” she looked through a window and saw Martinez run away. Downstairs, she saw a rock and broken glass on the kitchen floor. Later that day, she saw Martinez at a market, and when she and Naranja accused Martinez of taking the television, he denied it, and then started pushing and hitting Naranja. When Patricia approached him, “he swung and he hit me in my head.” After a peace officer drove by, Martinez fled.
During cross-examination, Patricia stated the rock-throwing incident (rock incident) had been reported to the police, who came to the house to take a report.
This testimony led to the midtrial revelation of a police report, as detailed in Part I of the Discussion.
Officer Mark Flatley testified he found no signs of forced entry into Maria’s apartment the night of the burglary. He searched Andrade’s aunt’s apartment, in the same complex, but did not find the television.
During Officer Flatley’s cross-examination, he testified he had never heard of a rock incident or report before hearing Patricia’s trial testimony, although it would be important information for the burglary investigation. He did not know if a detective had been assigned to the case.
Robert testified that when Patricia left, she joked about Vanessa wanting to steal her shoes. When Robert walked Vanessa home, he left the door unlocked. When he returned about 10 minutes later, the door was ajar and the television was gone. He ran out and saw Huerta, who “was coming to tell me that they just took the TV.” When Huerta told him to go in one direction, he glimpsed two men with two braided ponytails, and because of their hair and the way they were dressed, he identified them to the police as the men who had come to the apartment a couple of days before, asking for his sister, Naranja. He could not tell if they had anything in their hands. He identified Martinez as the man who had come to the house on an unknown day. He knew Martinez as “Travieso.” He did not see the faces of the men he chased and could only say Martinez’s appearance was consistent with one of the men, and the other man also had braided hair. A day or two later, he saw Martinez on a bicycle and saw him pick up a rock and throw it through the apartment window. Because he had just come out of the shower, he called to Patricia: “‘He’s back. He’s back.’”
A defense investigator testified that, based on Huerta’s testimony, Huerta was about 57 feet from where she saw the men with the television. Andrade recalled Officer Flatley, who had taken a statement from Robert on the night of the burglary. Robert had said he had not seen the men carrying anything, but had described the perpetrators as two Hispanic men, 18 to 20 years old, with long, braided hair.
DISCUSSION
I
Martinez: Report of Vandalism
During cross-examination, Patricia testified the rock incident had been reported to the police. After Officer Flatley testified on direct examination, and during a break outside the jury’s presence, Martinez’s counsel stated he had not known any officers investigated the rock incident and no police report about it had been disclosed. He conceded the prosecutor was “also unaware of any such report, but it blindsided me in cross-examination[.]” The prosecutor agreed to look into the matter, and Martinez’s counsel said, “I absolutely accept that.” Andrade’s counsel stated the rock incident itself had been disclosed before Patricia testified at the preliminary hearing. Officer Flatley, the investigating officer for the burglary, said he had not even heard about the rock incident, let alone any police report about it, before trial.
Before Robert appeared and testified, Martinez moved for a mistrial, contending that no one, including the prosecutor, had known that a report about the rock incident existed, and that the revelation had “put us in a position to be unable to prepare for impeachment.” Counsel apparently planned to argue the rock incident had not occurred, and to argue that the police had not been called and the incident was first mentioned by the victim’s family at the preliminary hearing--presumably thereby affecting the credibility of the testimony regarding the incident. As an alternative to a mistrial, counsel asked for a late-discovery instruction, although he conceded the prosecutor was not at fault, stating it was “the fault of law enforcement.”
Robert initially failed to appear, but appeared after the mistrial motion was denied and after the People had rested. The People were allowed to reopen to present his testimony. His testimony therefore took place after the police report was disclosed to the defense.
The prosecutor stated she faxed the report to the defense immediately after she received it, and Martinez’s counsel conceded the report was received “right after court Friday, ” “and there’s no question whatsoever” the prosecutor did not know about it before Patricia testified.
The trial court denied the mistrial motion, and the alternative request for a late-discovery instruction.
The trial court’s ruling is reported as follows: “The Court also finds that there is no bad faith here on the part of the prosecution. That the report and the information regarding this incident was known to both sides, and that the prosecution immediately upon receipt of that information disclosed it to the defense.” (Emphasis added.) It is clear the trial court said or intended to say the report was unknown.
On appeal, Martinez raises overlapping claims of a statutory discovery violation warranting a mistrial or late-discovery instruction, a due process violation depriving him of adequate notice and an opportunity to defend the charge, and prosecutorial misconduct. We reject these claims.
A. Statutory Discovery Violation
Martinez contends the trial court abused its discretion by denying his motion for a mistrial, and his alternative request for a late-discovery instruction, because of the “egregious timing and nature of the discovery violation, and its interference with [Martinez’s] right to present his defense[.]” A ruling on a mistrial motion is reviewed for an abuse of discretion(People v. Ayala (2000) 23 Cal.4th 225, 282), as is the determination what, if any, remedy is required for a discovery violation. (People v. Wimberly (1992) 5 Cal.App.4th 773, 792.) Here, we find no abuse of discretion.
The People properly note the contents of the police report are not known. It was described only as a one-page narrative with a cover sheet. Therefore, Martinez has not shown the police report contained information specified in section 1054.1, subject to statutory disclosure rules. (Accord, People v. Ashraf (2007) 151 Cal.App.4th 1205, 1212-1214 (Ashraf) [unable to conclude material was subject to Brady because it was not in the appellate record].)
Even if we were to assume the police report contained “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial” as specified in section 1054.1, subdivision (f), Martinez has not demonstrated any prejudice from the late disclosure.
The statutory duty to disclose extends to specified information “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” (§ 1054.1.) However, a prosecutor also has a duty to inquire.
In In re Littlefield (1993) 5 Cal.4th 122 (Littlefield), the California Supreme Court held an attorney cannot thwart legitimate discovery by deliberately refraining from learning information normally gathered in the course of trial preparation. We emphasized this in People v. Little (1997) 59 Cal.App.4th 426 (Little), where we upheld a new trial order based on a statutory discovery violation. We construed Littlefield to impose a duty on a prosecutor to disclose the felony record of a prospective witness, even if the prosecutor does not know the witness has a record, because prosecutors have reasonable access to such information. (Little, supra, 59 Cal.App.4that pp. 432-433.) The facts known to the prosecutor before trial showed the witness in question “was likely to be critical to the outcome of the trial, ” therefore the prosecutor had a duty to inquire about the witness’s felony record. (Id. at pp. 434-435.) Thus, the prosecutor should have known about the information, generally garnered in the normal course of trial preparation.
When this case was assigned to the trial prosecutor, she had a duty to read the preliminary hearing transcript in preparation for trial, which would have informed her about the rock incident. She was also informed by the charging document, which contained the resulting vandalism charge. In our view, a diligent prosecutor would have asked the witnesses to the vandalism charge prior to trial if the police had been called, and therefore would have discovered the police report before trial. At a minimum, the prosecutor should have asked the assigned investigating officer to check for the presence of a police report from the charged vandalism incident prior to trial. Although here there is no evidence that the prosecutor intentionally avoided learning the information (as did the defense counsel in Littlefield), there is evidence that she neglected to diligently prepare for trial (as did the prosecutor in Little).
The prosecutor in this case admitted that she “didn’t think to ask” about the rock report. She did not even attempt to excuse her lack of preparation.
However, Martinez acknowledges his burden to show prejudice from late discovery. (See People v. Gatlin (1989) 209 Cal.App.3d 31, 38.) He has failed to meet his burden. The police report was disclosed while Patricia was subject to recall, and before Robert testified. Even if we were to assume the report contained material subject to statutory discovery, the defense had the opportunity to use the police report to attack the witnesses’ identifications of Martinez as the person who threw the rock. No prejudice from the late disclosure appears.
B. Federal Due Process
Martinez contends the late disclosure of the police report violated due process by depriving him of notice and an opportunity to defend the charges, and interfered with his right to effective counsel by undermining his trial counsel’s anticipated strategy. We agree with the People this contention largely assumes a Brady violation. Noting the People’s point that no Brady objection was lodged at trial, despite the trial court’s clear pretrial admonition to counsel to specify the grounds of all objections, we continue with our analysis and hold there were no due process or Brady violations.
Martinez acknowledges that he has the burden to show a Brady violation. He argues the police report was defined by Brady and therefore subject to disclosure. The People concede the applicability of Brady in a footnote, but then argue that there was no Brady violation. We reject the footnoted concession, because the report is not in the record and therefore Martinez cannot demonstrate that it was subject to disclosure under Brady.
“‘[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence--that is, to any suppression of so-called “Brady material”--although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”’” (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043 (Salazar).)
Thus, to show material is subject to Brady, it “‘must be favorable to the accused, either because it is exculpatory, or because it is impeaching[.]’” (Salazar, supra, 35 Cal.4th at p. 1043; see Ashraf, supra, 151 Cal.App.4th at p. 1214.) Because neither the police report itself nor any description of its contents appears in the record, we cannot presume it was exculpatory in content. (See Ashraf, supra, at pp. 1212-1214.) Nothing suggests it would have tended to show Martinez did not throw the rock. Patricia was subject to recall when the report was revealed and, contrary to an implication in Martinez’s brief, Robert had not yet testified; hence the defense could have used the report for impeachment, had it contained anything useful. Therefore, it was not subject to Brady, because Martinez has neither shown it was exculpatory, nor useful for impeachment. We note that Martinez’s trial counsel argued the report’s nonexistence would have been useful to impeach Patricia’s and Robert’s testimony.
Martinez cites federal cases and quotes acontextual snippets from them to bolster his claim. These cases, however, are not persuasive because they involve true Brady material (exculpatory or impeachment evidence) or are factually inapposite. (See, e.g., United States v. Devin (1st Cir. 1990) 918 F.2d 280, 290 (Devin) [delayed disclosure of witness’s psychiatric record did not preclude effective cross-examination, because the information was revealed in time to be used]; Bagley v. Lumpkin (9th Cir. 1986) 798 F.2d 1297, 1302 [suppression of contracts reflecting inducements to prosecution witnesses “interfered with Bagley’s right to a fair trial”].)
Two of these cases merit discussion. In United States v. Howell (9th Cir. 2000) 231 F.3d 615 (Howell), the government knew two police reports disclosed to the defense contained material errors, stating certain money was found on a codefendant, instead of on Howell. The government allowed Howell’s defense “to construct its theory” the codefendant was responsible. (Howell, supra, 231 F.3d at pp. 623-624.) The government argued it had not withheld exculpatory information, because the corrected information showed Howell possessed the money. The court rejected this argument, because it overlooked the fact that mistakes themselves could help the defense: “That the information withheld may seem inculpatory on its face in no way eliminates or diminishes the government’s duty to disclose evidence of a flawed police investigation. [Citation.] Furthermore, the mistakes constituted textbook examples of impeachment evidence as to where the officers found the money.” (Id. at p. 625.)
Analogizing to this case, ignorance of the police report’s existence would tend to show flawed investigation, and certainly indicates flawed preparation by the prosecution as well, which we have noted above. But this ignorance was not hidden: Martinez’s counsel pressed the point during cross-examination of Officer Flatley, who admitted he did not know about the report before trial and it would have been important to know about it for hisinvestigation. Further, Martinez has not shown anything about the report’s content or even existence was exculpatory or impeaching, or even marginally helpful to the defense, as was the situation in Howell. Here the only “mistake” that helped the defense was the nonpreparation of the police report; once the “truth” (that a report had, in fact, been taken) was revealed, that truth only enhanced the credibility of the involved witnesses.
Another case relied on by defendant, United States v. Lanoue (1st Cir. 1995) 71 F.3d 966 (Lanoue), involved suppression of defendant’s recorded statements in violation of discovery rules and a discovery order. The statements were used by the prosecutor to eviscerate a defense witness on cross-examination. (Lanoue, supra, 71 F.3d at pp. 971-976.) The court held the late disclosure “unfairly surprised the defense and deprived it of the opportunity to design an intelligent litigation strategy....” (Id. at p. 976.)
In contrast, here, although Martinez’s trial counsel claimed the absence of the report was critical to the defense, counsel did not elaborate as to why, nor does Martinez’s appellate counsel suggest what lines of defense were abandoned or not explored. Instead, vague claims are made that Martinez was deprived of the chance “to design an intelligent litigation strategy[, ]” and “decisions were made” throughout the case, and “Every move made in the pretrial and trial process was based on the non-existence of a police report[.]” No record citations are provided, presumably because none assist the argument--trial counsel did not make an offer of proof or explain why the foreclosure of one particular line of attack undermined the entire defense case.
We note that at least two of the federal cases cited by Martinez emphasize the defense burden under circumstances similar to this case: “[I]n cases of delayed disclosure, a court’s principal concern must be whether learning the information altered the subsequent defense strategy, and whether, given [timely] disclosure, a more effective strategy would likely have resulted.” (Devin, supra, 918 F.2d at p. 290; see United States v. Smith (1st Cir. 2002) 292 F.3d 90, 102-103 [Smith failed to show “‘a plausible strategic option which the delay foreclosed’”].) Martinez has not plausibly explained what, if anything, he would have done differently had he been aware of the report earlier.
Martinez also suggests the midtrial disclosure of the report deprived him of adequate notice of the charge. The information alleged Martinez committed misdemeanor vandalism on or about June 15, 2009, and the preliminary hearing testimony described the rock incident. This constituted adequate notice. (See People v. Holt (1997) 15 Cal.4th 619, 672 [preliminary hearing gives notice of offense].)
We agree with Martinez that had the police not been called after the rock incident, that fact would have bolstered the defense attack on Patricia’s and Robert’s testimony. But the very existence of the police report then becomes, by definition, inculpatory evidence that supports the People’s witnesses rather than impeaches them, an observation that further bolsters our conclusion that Brady does not apply.
C. Prosecutorial Misconduct
Martinez contends the prosecutor committed prejudicial misconduct. This claim is forfeited; further, it lacks merit.
As the People note, trial counsel did not claim the prosecutor committed any misconduct. Therefore, the contention of prosecutorial misconduct raised for the first time on appeal is forfeited. (See People v. Prince (2007) 40 Cal.4th 1179, 1294; People v. Arias (1996) 13 Cal.4th 92, 151 (Arias).)
In any event, Martinez’s claims of prejudicial misconduct are largely based on the premise that a prejudicial discovery or Brady violation occurred, a premise that we have already rejected. As we have stated above, although we observe that the People failed to diligently prepare for trial, and were therefore negligent in failing to discover the rock report and provide it to the defense, no prejudice has been shown on this record. (See Arias, supra, 13 Cal.4th at p. 161; People v. Adanandus (2007) 157 Cal.App.4th 496, 512-513.) Further, nothing in the record supports Martinez’s speculation regarding the allegedly “suspect” timing of the revelation of the police report. It is undisputed that the prosecutor immediately sent the report to the defense upon receipt, satisfying “the statutory requirement of immediate disclosure of materials that become known during trial.” (People v. Verdugo (2010) 50 Cal.4th 263, 287.)
Martinez also asserts cumulative error, but we find no prejudicial error to accumulate. Although we caution the People that its trial preparation, or lack of preparation, potentially impacts not only its own case but also any defense case, and such preparation must be diligently pursued, here Martinez cannot show prejudice.
II
Andrade: Denial of Severance Motion
Andrade contends the trial court abused its discretion by denying his motion to sever his case from Martinez’s case. We disagree.
The information alleged both defendants committed a residential burglary on or about June 14, 2009, and Martinez committed misdemeanor vandalism the next day.
Andrade moved in limine to preclude the use of Martinez’s statements and sought severance. The motion claimed Martinez called Naranja a “snitch” at the market. The motion also argued that Martinez’s “non-verbal communication, ” i.e., Martinez’s throwing of a rock at Patricia’s house, was also grounds for severance, and alternatively should be excluded pursuant to Evidence Code section 352. Martinez initially joined in the motion.
We find no testimony Martinez said “snitch, ” although Andrade asserts, without citation, that there was.
At the hearing on the motion, the People contended Martinez’s conduct did not reference Andrade, therefore no severance was required. Andrade’s counsel argued the evidence was irrelevant against Andrade, but there would be “a roll over effect” prejudicial towards Andrade, and suggested a severance of counts as an alternative to severance of defendants. Martinez’s counsel, who had withdrawn the joinder in Andrade’s severance motion, argued the alleged conduct of Martinez did not clearly show an admission of guilt and the evidence should be excluded.
The trial court ruled the conduct was admissible against Martinez and did not inculpate Andrade, and denied the motion to sever. The trial court agreed to consider a limiting instruction to be prepared by Andrade’s counsel, and neither Martinez nor the People objected to the instruction as later submitted.
The limiting instruction, a modification to CALCRIM No. 304, stated: “I instructed you during the trial that certain evidence was admitted only against a certain defendant. You must not consider that evidence against any other defendant. Specifically, the evidence and testimony concerning vandalism or battery is to be attributed to defendant Kelvin Martinez only. It cannot be used against defendant Valentino Andrade.” The trial court also instructed with a version of CALCRIM No. 203, which told the jury the vandalism count pertained only to Martinez.
In accordance with the instructions, the prosecutor argued the rock incident and the market incident were evidence the jury could “use specifically [as] to Mr. Martinez.”
On appeal, Andrade contends the trial court’s denial of severance represents an abuse of discretion and resulted in a fundamentally unfair trial. We disagree.
There is a legislative preference for joint trials. (§ 1098;see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).) Because there was no claim of conflicting defenses and no inculpatory statements naming Andrade, severance was warranted if and only if there was “‘likely confusion, ’” (Coffman, supra, 34 Cal.4th at p. 40) or “‘“a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’” (People v. Lewis (2008) 43 Cal.4th 415, 452 (Lewis), quoting Zafiro v. United States (1993) 506 U.S. 534, 539 [122 L.Ed.2d 317, 325] (Zafiro).)
“A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling. [Citation.] Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial.” (Coffman, supra, 34 Cal.4th at p. 41.)
Andrade contends there would be a “spillover effect” of evidence about the rock incident and the market altercation, which he characterizes as more inflammatory than the residential burglary charged against him. He repeatedly argues or assumes the evidence would be used against him. Andrade all but ignores the limiting instructions, arguing only that it “did not cure the harm.”
Generally, a proper jury instruction obviates any need for severance. (See, e.g., Lewis, supra, 43 Cal.4th at p. 461 [joint penalty trial; instructions told jury not to use evidence admitted against one defendant in assessing the case against the other defendant]; Zafiro, supra, 506 U.S. at p. 539 [122 L.Ed.2d at p. 325] [instructions “often will suffice to cure any risk of prejudice”].) A reviewing court presumes the jury will obey a limiting instruction. (Coffman, supra, 34 Cal.4th at pp. 43-44 [a joint trial case].) The trial court’s limiting instruction in this case--drafted by Andrade’s trial counsel--was clear and emphatic. Nothing about this case suggests the jury did not understand and follow it. “The California Supreme Court has consistently stated that on appeal, ‘[w]e must, of course, presume that the jury followed [the trial court’s] instructions....’ [Citations.] There is no evidence that the jury ignored the court’s instructions and committed misconduct by using limited evidence for an improper purpose. ‘In the absence of evidence to the contrary, the presumption [that the jury adhered to the limiting instructions] will control.’” (People v. Zack (1986) 184 Cal.App.3d 409, 416; see Lewis, supra, 43 Cal.4th at p. 461; People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Because there is no reason to think the jury would not obey the entirety of its instructions, we reject the contention the trial court abused its discretion by denying severance. For the same reason, we reject Andrade’s contention the joint trial actually resulted in a due process violation. (See People v. Mendoza (2000) 24 Cal.4th 130, 162.)
III
Andrade: Denial of Probation
Andrade contends the trial court abused its discretion in denying him probation. Andrade argues various sentencing factors, but fails to show an abuse of discretion.
The probation report stated Andrade was 18 years old, finished 11th grade in “Yolo Adult Education” in 2009, and had been working at a car wash, but was fired after six months for missing work. He was made a juvenile ward in 2009, based on two sustained counts of second degree burglary committed in 2008, and he had also been found in possession of Ecstasy in 2008. The probation report describes the juvenile offenses as follows: “The defendant, with three co-defendants, committed two burglaries. Among the items taken from the residences was a portable safe containing $3000, credit cards and bank information, a wedding ring, and miscellaneous other items.” There is a handwritten notation stating Andrade “pled to 459 2d (2 Cts.).” Andrade was on probation at the time of the current offense. Despite Andrade’s youth, because he “has a significant record of prior criminal offenses” the report recommended the low term of two years in state prison.
Andrade’s sentencing brief in part argued for probation, based on 1) the lack of sophistication evident in the instant offense; 2) the fact this was Andrade’s first adult offense; 3) the fact he showed remorse and “turned himself in to address this matter;” 4) the fact he would have admitted guilt but for Martinez’s unwillingness to accept a plea agreement; 5) the fact Martinez led Andrade “astray;” and 6) the impact of a state prison sentence on his future employability. Andrade submitted letters from friends and family attesting to his good character and prospects.
Andrade wrote a letter stating he was forced to go to trial because “it was a package deal. I wanted to take my deal and be accountable for my actions.” He added he was sorry and had learned from his mistakes, and wanted “one more chance to prove” he could be a productive member of society.
At sentencing, Andrade’s mother testified she took her son to turn himself in to the police. If granted probation, Andrade could live with her in the Natomas area, away from West Sacramento, and he would be able to work in her janitorial business, or in a cousin’s furniture and moving business. Prison would be bad for Andrade because of the pressure to join a gang: “For a Mexican boy like him, he is not a man, he is a boy, to go into the penitentiary, he could go in there as level two and end up as level four not by his choice, just because of the pressure.” The two juvenile burglaries occurred when Andrade was living with his father or brother, not with her, and she did not believe his father “had it under control.”
Andrade’s counsel argued Martinez was “the driving force” behind the burglary. Andrade had been willing to admit the offense, but was “bound because of it being a codefendant and a package deal.” Andrade’s family could provide a better living environment and employment. Andrade was willing to waive his substantial time credits if granted probation, and, given his youth, a state prison sentence would be devastating to his future.
The prosecutor disputed the claim the lack of a package deal had prevented an early disposition. Instead, an offer had been made before the People learned of Andrade’s two juvenile burglaries. In contrast to the claim Martinez was the leader, the defense had planned for Andrade to take responsibility for the burglary, claiming he tricked Martinez into helping him move a television. The prosecutor stated: “We went to trial because I didn’t believe it.” The prosecutor also emphasized Andrade’s two separate juvenile burglaries.
The prosecutor emphasized Andrade had burglarized the home of “a neighbor and a friend or supposed friend” and “he was the one who contacted and brought Mr. Martinez into the home.” Andrade could have pled guilty regardless of what Martinez did. Andrade was on juvenile probation for burglary at the time of this burglary.
The trial court found defendant “is youthful, just eighteen.” Although the juvenile cases were resolved as second degree burglaries, highly personal items were taken, including passports and driver’s licenses, and the trial court noted that, short of violent crimes, residential burglaries are “upsetting to the people in the community... particularly when things that are specially owned, things that are important to a family are just taken from them.”
Although Andrade’s juvenile court files are not in the record, his trial counsel did not object to the trial court’s characterization of the facts of those cases, but argued their resolution as second degree burglaries showed Andrade’s involvement was “minimal[.]” Because no objections to their content were lodged, we presume the juvenile files support the trial court’s interpretation of Andrade’s juvenile record. (See People v. Evans (1983) 141 Cal.App.3d 1019, 1021.)
The trial court also stated the juvenile burglaries were “within a year or so” of the current case, and Andrade was “the person who most knew” the current victims. The trial court also stated: “The Court has in this case a larger responsibility to protect the community than to respect the defendant’s age and perhaps his immaturity, and for that reason, I am going to follow the recommendation made by the probation officer.” The trial court sentenced Andrade to state prison for the low term of two years. The trial court later stated it gave little weight to the fact Andrade turned himself in, because he had been seen during the crime by someone who knew him.
Probation was limited in this case pursuant to statute: “Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house[.]” (§ 462, subd. (a); see People v. Serrato (1988) 201 Cal.App.3d 761, 763.) California Rules of Court, rule 4.413 (rule 4.413), provides factors for trial courts to consider in determining whether a case should be deemed unusual. Andrade contends the trial court should have found this was an unusual case and granted him probation.
In the trial court, Andrade had to overcome the presumption against probation, but in this court he must “clearly show that the sentencing decision was irrational or arbitrary.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) “A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.” (People v. Edwards (1976) 18 Cal.3d 796, 807; see People v. Stuart (2007) 156 Cal.App.4th 165, 179 (Stuart).)
Contrary to Andrade’s view, the relevant sentencing factors do not clearly weigh in his favor.
The argument that defendants had no weapons and the apartment was unlocked might have been mitigating had this burglary been “substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence[.]” (Rule 4.413(c)(1)(A), emphasis added.) But here Andrade had a recent record of burglaries, which he concedes are “similar crimes, ” albeit resolved as second degree burglaries.
Here there is also no evidence of another potential factor in mitigation, that “[t]he defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense [.]” (Rule 4.413(c)(2)(A).) There was no claim of coercion, and leadership remained disputed. The trial court observed that it was Andrade who knew the victim’s family, and therefore by inference precipitated the burglary.
Nor is defendant “youthful or aged, and has no significant record of prior criminal offenses.” (Rule 4.413(c)(2)(C), emphasis added.) It is true Andrade was just 18, but, as the trial court observed, he had two recent juvenile burglary cases, which were residential, although resolved as second degree burglaries. Further, he was on juvenile probation for those two burglaries when he committed the instant residential burglary. Thus, at age 18, he had already committed three residential burglaries, which are among the most serious crimes under our laws.
Therefore, application of the factors set out in rule 4.413 does not compel an unusual case finding.
Moreover, even had Andrade met one or more of the criteria favoring an unusual case finding, the trial court would not have been compelled to find this was an unusual case.
“[I]f the statutory limitations on probation are to have any substantial scope and effect, “unusual cases” and “interests of justice” must be narrowly construed, ’ and rule 4.413 ‘limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced.’ [Citation.]
“Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely ‘may indicate the existence of an unusual case.’ (Rule 4.413(c), italics added.) This language indicates the provision ‘is permissive, not mandatory.’ [Citation.] ‘[T]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.’” (Stuart, supra, 156 Cal.App.4th at p. 178.)
Andrade claims the current and juvenile burglaries “stem from the same period of aberrant behavior” resulting from “his inability to resist the negative influences of the group with which he was associating.” Because he could live with his mother in nearby Natomas, rather than West Sacramento, and he has a job offer, he contends he will not be exposed to those influences. The trial court was not compelled to find Andrade was led astray by others, nor that moving to Natomas would dissuade him from further criminality.
Andrade contends that because of his youth, state prison will have a devastating effect on him, given “the gang culture inside prison which would force him to behave in a specific manner.” He also contends a state prison term would make his future employment prospects dim. The trial court was aware of these possibilities, but was not compelled to find that they made his case so unusual as to overcome the statutory presumption of a state prison sentence for a residential burglary.
Andrade claims he was remorseful and turned himself in the day after the burglary. But, as the trial court noted, he had already been identified as involved. We add only that perhaps his surrender shows acceptance of inevitable apprehension, rather than acceptance of responsibility.
Andrade also contends he was prevented from a plea offer because the prosecutor wanted a package deal, but the prosecutor denied this was accurate, and in any event, nothing prevented Andrade from pleading open--without a plea agreement in place. Andrade further contends he was willing to waive substantial custody credits if granted probation. (See People v. Johnson (1978) 82 Cal.App.3d 183.) But the trial court was not required to bargain with Andrade over his sentence.
Although Andrade has identified legitimate sentencing arguments, the trial court did not abuse its discretion by disagreeing with them and declining to find this was an unusual case.
Finally, to the extent Andrade challenges the trial court’s reliance on a desire to protect the community; the motive to protect the community inheres in the statute limiting probation for residential burglary. (§ 462.) Therefore the trial court’s mention of the need to protect the community does not reflect an abuse of discretion.
DISPOSITION
The judgments are affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.