Opinion
E064269
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. MARQUISE JAMAAL McCOOK, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1403324) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Marquise Jamaal McCook appeals from his convictions for robbery, conspiracy to commit robbery, and possession of a firearm by a felon, contending: (1) his convictions were based on uncorroborated accomplice testimony; (2) the trial court prejudicially erred by permitting the prosecution to admit belatedly disclosed evidence; and (3) his trial attorney rendered ineffective assistance of counsel by failing to independently discover the undisclosed evidence earlier. We find no reversible error and, therefore, we affirm.
I.
PROCEDURAL BACKGROUND
In an information, the People charged defendant with robbery in an inhabited dwelling (Pen. Code, § 211, count 1), conspiracy to commit robbery (§ 182, subd. (a)(1), count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 3). The People alleged defendant committed the robbery under count 1 in concert with two or more persons (§ 213, subd. (a)(1)(A)), and that counts 1 through 3 were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). Finally, for purposes of counts 1 and 2, the People alleged defendant suffered a prior strike conviction for robbery. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All additional undesignated statutory references are to the Penal Code.
A jury found defendant guilty on all counts and rendered a true finding that defendant committed the robbery alleged in count 1 in concert with two or more persons. The jury found the gang allegations untrue. Defendant waived his right to a jury trial on the alleged strike prior and admitted to suffering the strike conviction.
The trial court sentenced defendant to the upper term of nine years on count 1, doubled pursuant to the one strike law, for a term of 18 years. On count 2, the trial court sentenced defendant to the upper term of three years, doubled pursuant to the one strike law, but stayed execution of the sentence pursuant to section 654. Finally, for count 3 the court sentenced defendant to one-third the middle term of two years, doubled pursuant to the one strike law, for a term of one year four months to be served consecutively to the sentence on count 1, resulting in a total term of 19 years four months in state prison.
Defendant timely appealed.
II.
FACTS
A. Prosecution Evidence.
1. Victim's testimony.
James Tyus testified he met Britteny Williams online in late 2013 and, after speaking a few times on the telephone, they met in person in Victorville. Tyus visited with Williams two or three times during the month before the robbery. While getting to know each other, Tyus and Williams spent time together at Tyus's residence smoking cannabis and watching movies. Tyus had a medical cannabis card and grew his own marijuana plants.
Tyus and Williams had planned on spending time together on the morning of January 22, 2014. Tyus called and spoke to Williams once, but was unable to reach her for the rest of the day. Williams finally called Tyus around 7:00 or 8:00 p.m. and said she was coming over. She arrived at Tyus's house 20 to 25 minutes later and rang the doorbell. Normally, Williams's sister would drop her off, and Tyus would see the sister's car in the cul-de-sac when he answered the door. This time, he saw no car in the cul-de-sac when he looked through the peephole.
When Tyus opened the door, Williams asked what took him so long and said she had to use the bathroom. Williams walked with Tyus to the bedroom, put down her purse, and went to a bathroom. Williams was in the bathroom for 10 to 15 minutes, during which time Tyus watched television in bed. Tyus did not hear the front door to the house being unlocked while Williams was supposedly in the bathroom. When Williams came back from the restroom, she jumped on Tyus and started kissing him aggressively. This was unusual because normally they would talk and work their way up to kissing. As Williams was kissing Tyus, two men with guns came into the room.
One of the men pushed Williams to the left side of the bed, saying something to the effect of, "Bitch, get over there." At that point, Tyus already suspected Williams was in on the robbery because he knew the back sliding door to his house was locked, and he had locked the front door after he let Williams inside. One of the men grabbed Tyus, hit him on the thigh with a gun, and told Tyus not to look at him. The man tried to pull the mattress on top of Tyus, then forced Tyus to the floor and pointed the gun at him. The other man used duct tape to bind Tyus's hands and feet. The men then covered Tyus with the bed skirt, but Tyus could see through it. Tyus heard one of the men tell Williams to be quiet. Williams then grabbed a tablet computer, which was on the bed, and walked out of the bedroom.
As he lay under the bed skirt, Tyus broke the tape that was around his feet and attempted to break the tape that bound his hands. One of the men retaped Tyus and stood over him with a gun. The man who pointed the gun at Tyus had tattoos on the side of his neck and face. Through the bed skirt, Tyus could not make out what the tattoos depicted. The man was wearing "sports attire": a baseball cap or a beanie with a flip-up brim and a pullover sweatshirt. The cap was black and yellow, or blue and yellow, and it had a letter or an animal on it. The sweatshirt was also blue and yellow, or black and yellow, and also had a sports logo on it. Tyus thought the man might have braided hair because the beanie looked "puffed out." The man was the same height or slightly taller than Tyus, and was about the same weight as Tyus, who stood five feet eight inches tall and weighed 180 pounds. Tyus could not describe the other robber who entered his room. The man who retaped Tyus was wearing rubber gloves. When he retaped Tyus, the tape stuck to the glove and ripped one of the fingers off the glove.
The two men then started rifling through Tyus's closet and his nightstand drawers. The robbery lasted a couple of hours, during which time Tyus lay bound in the room. He could hear noises from inside the residence, but because the two men were still in the room, he thought there was a third robber. After what seemed like two or three hours, Tyus heard no more noise and assumed the robbers had left. Tyus broke his legs free and opened the sliding door that led from the bedroom to the backyard. Tyus ran down the side of the house and saw a 2004 or 2005 burnt orange or burgundy Cadillac Escalade parked in the driveway. Tyus ran to his neighbor's home and was able to free his hands as he got to the door. Tyus told the neighbor he had just been robbed and to call the police, so the neighbor gave Tyus her phone. As he called the police, Tyus ran to get the license plate from the Cadillac as it was backing out of the driveway. The occupants of the vehicle saw Tyus and "took off real fast."
On cross-examination, Tyus testified the third person making noise in the house could have been Williams.
Tyus told the 911 operator that he had been robbed at gunpoint in his home by two or three men. Tyus led the officers who responded through the house, showed them some of the duct tape used to bind him, and told them what had been stolen. The robbers took: an Xbox game console, a tablet computer, a camera, a Nintendo DS, a desktop computer, a laptop computer, Tyus's cellular phone, flat screen televisions, a Starbucks coffee drink from the refrigerator, rosary beads, a jar of cannabis and a number of marijuana plants, lights for growing marijuana and an irrigation system for watering marijuana plants, around $70 in cash, and approximately 10 pairs of Tyus's shoes. Tyus told the officers about Williams and where they could find her.
Police showed Tyus a photographic lineup. Tyus saw a man with tattoos on his face who looked familiar, but he could not positively identify the man as one of the robbers.
2. Accomplice testimony.
Williams testified she met Tyus, who she knew as "Javon," in late December 2013. Tyus was Williams's "weed man," and the two developed a brief romantic relationship. Williams went to Tyus's home about five times during January 2014. The two would smoke cannabis, and Williams knew that Tyus grew marijuana and kept a lot of cannabis in jars.
Williams knew defendant only by his street name "Texas." Defendant had tattoos on his face. They met in December 2013 and spoke on the phone about three times over a two-week period before meeting in person in early January 2014. Williams was "talking to" defendant at the same time as Tyus.
Williams planned on meeting Tyus at his house around 9:00 p.m. on January 22, 2013, and had spent the day texting with him. Williams told defendant about her plan to meet with Tyus. Defendant, a man named Nico, and a third man (whose name Williams did not know) picked Williams up at her mother's house around 1:00 p.m. in defendant's red Escalade. The four then drove to another man's house in Hesperia, and they spent a few hours there smoking cannabis and planning the robbery. The plan was for Williams to go inside Tyus's home, unlock the back patio door, go inside Tyus's bedroom and distract Tyus while defendant, Nico, and the third man entered from the back patio and stole Tyus's cannabis and marijuana plants. After the robbery was completed, the plan called for Williams to pretend to call her sister to come get her, then leave the house and meet defendant and the other two men around the corner.
Williams pleaded guilty to being an accessory to the robbery.
Defendant, Nico, the third man, and Williams then left the home in Hesperia and drove around Victorville in defendant's Escalade. While they drove around, the four went over the plan to rob Tyus. Williams was also texting with Tyus throughout the day and exchanged about 50 texts with him. Around 8:00 p.m., they stopped at a supermarket. Defendant said he needed to get some zip ties, and he and Nico entered the store. When defendant and Nico came back out, Williams sent Tyus a text message and Tyus told Williams to come over. Williams and the three men then drove to Tyus's neighborhood, parked around the corner, and sat there for about 20 minutes. While waiting there, they went over the plan again. Williams then got out of the Escalade, walked to Tyus's house, and knocked on the door. Tyus took about five minutes to come to the door.
When Tyus let Williams inside, he sat on a couch and said he wanted to "smoke a blunt." Williams told Tyus she wanted to take it into his bedroom. Williams left her purse on the couch on purpose, then she and Tyus went to the bedroom. Once inside the bedroom, Williams told Tyus she forgot her purse in the living room and went to get it. As she did so, Williams unlocked the back patio door. Williams then went back to Tyus's bedroom and texted defendant to let him know she had unlocked the back patio door. Williams and Tyus then smoked some cannabis. She then got on top of Tyus and started kissing him as a distraction.
While she was kissing Tyus, Williams saw defendant, Nico, and the third man enter the bedroom. Defendant was holding a gun. Defendant told Williams to get off of Tyus and pointed his gun at Tyus. Nico and the third man did not have guns. Defendant asked Tyus, "Where the money at, where the dope at, where the jewelry at?" Tyus responded that he "didn't have none of that." Defendant then told Williams to get up. She stood up, walked to the living room, and sat on the couch. After sitting there for a few minutes, Williams walked down the hallway to the bedroom, peaked inside, and saw Nico "tossing" Tyus's bedroom "looking for stuff." Tyus was sitting on the floor with his hands tied with zip ties. Tyus was crying. He told Nico that he did not have anything and then said, "All I have is plants." At that time, defendant was walking around the house looking for loot, and the third man was in the room where Tyus kept his marijuana plants. Williams walked back to the living room and sat back down on the couch.
Defendant walked over and asked Williams, "Where's all the stuff at?" Williams responded she did not know and said she had not been to Tyus's house for a couple days. Defendant then took flat screen televisions, game consoles, tablet computers, and other electronics and placed them in a sheet. At defendant's instruction, Williams tied up the sheet. Williams testified the robbery lasted a good two hours. The robbers then started loading the loot into the Escalade that was parked in the driveway. Williams stayed in the vehicle for about 20 minutes while defendant, Nico, and the third man went back and forth from the house carrying out the rest of the loot. The only items Williams took during the robbery were a rosary necklace and a Starbucks drink she had left in the refrigerator during her last visit to Tyus's home.
When they started to pull out of the driveway, Williams saw Tyus run outside to a neighbor's house. Williams and the three men then drove to a home in Hesperia. The men unloaded the loot and placed it in the garage to the house. Another man drove up in a white vehicle. He drove Williams, defendant, Nico, and the third man to the residence in Hesperia where they had earlier planned the robbery. They rested there for about two hours, then drove to Mojave and spent the night. The next morning, Williams spoke to her mother and learned the police had come by. Defendant's brother picked Williams up and took her home. About two hours later, defendant picked Williams up and drove her to her brother's house.
Williams testified on cross-examination that, on the night of the robbery, defendant wore a black hooded sweatshirt or "hoodie" with a red "Texas bull-like symbol on the front." The hoodie had no markings around the wristbands or waistband. Defendant wore the hood over his head during the robbery. When they went to the second home in Hesperia, after the robbery, defendant gave Williams the sweatshirt to wear because she was cold. After returning to her home the next morning, Williams threw the sweatshirt into a closet. She did not return it to defendant and, when questioned by the police, she gave them the sweatshirt.
3. Additional prosecution evidence.
Around 12:56 a.m. on January 23, 2014, Deputy Kunzman of the San Bernardino County Sheriff's Department was dispatched to an address on Hidden Pines Court in Victorville in response to a report of a residential robbery. The front door to the residence was open, so Kunzman entered. Tyus was standing in the living room. Tyus walked Kunzman through the house. Kunzman saw potting soil on the floor of the home leading to the master bedroom. There were several small marijuana plants in a guest bedroom, most of which appeared to be dead. The master bedroom had been ransacked. The mattress was flipped over and dresser drawers were on the floor. After observing the home, Kunzman spoke to Tyus and then collected evidence. Kunzman recovered two pieces of duct tape from the living room. The ripped portion of a rubber glove was stuck to the tape. In a guest bathroom, Kunzman found a cellular telephone inside the toilet. Tyus told Kunzman that a gun had been used during the robbery. After completing his investigation at Tyus's home, he drove with Tyus to Williams's residence. Williams was not home. Tyus identified Williams from a photographic array.
Sheriff's Detective Vasquez testified he wrote out a warrant requesting phone records from Sprint for Williams's phone calls and text messages. Vasquez received a digital printout of the phone calls and text messages made from Williams's phone and a certificate attesting to the accuracy of the list. Between the afternoon of January 22 and the morning of January 23, Williams and defendant had approximately 18 phone contacts.
Sheriff's detectives recovered defendant's hooded sweatshirt from Williams. The sweatshirt was size double extra-large, black, with an orange Texas Longhorns logo on the front and an orange Nike "swoosh" logo on the collar. The sweatshirt had no gold trim or piping around the wrists or waistband.
Defendant was born in the State of Texas, and he had "Texas" and "2-1-4"—a Dallas, Texas, area code—tattooed on his arms. He also had tattoos on his neck and the left side of his face.
The parties stipulated that defendant had suffered a prior conviction for being a felon in possession of a firearm in violation of section 29800, subdivision (a).
B. Defense Evidence.
A sheriff's department criminalist who examined the duct tape recovered by Kunzman was unable to obtain latent fingerprints. Another detective requested that the crime lab compare defendant's DNA to any DNA that might be recovered from the duct tape. Although the duct tape was swabbed for DNA, the detective never obtained any results because the tests had not yet been performed.
III.
DISCUSSION
A. Williams's Accomplice Testimony Was Sufficiently Corroborated.
Defendant argues his convictions must be reversed because they were based on the uncorroborated testimony of an accomplice. We conclude Williams's accomplice testimony was sufficiently corroborated.
"Section 1111 provides in part: 'A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.' The requirement that accomplice testimony be corroborated is an '"exception[]" to the substantial evidence' rule. [Citation.] It is based on the Legislature's determination that '"because of the reliability questions posed by"' accomplice testimony, such testimony '"by itself is insufficient as a matter of law to support a conviction."' [Citations.] Section 1111 does not affect the admissibility of accomplice testimony but rather 'reflects a legislative determination of how accomplice testimony must be treated.' [Citations.]" (People v. Romero and Self (2015) 62 Cal.4th 1, 32.)
"[F]or the jury to rely on an accomplice's testimony about the circumstances of an offense, it must find evidence that '"without aid from the accomplice's testimony, tend[s] to connect the defendant with the crime."' [Citations.] 'The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration.' [Citations.]" (People v. Romero and Self, supra, 62 Cal.4th at pp. 32-33.) "'"Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense." [Citation.] The evidence is "sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth."' [Citation.]" (People v. Chism (2014) 58 Cal.4th 1266, 1301.)
Defendant argues that, other than Williams's accomplice testimony, "there was no evidence connecting [him] to the robbery." As defendant correctly points out, Tyus was unable to positively identify defendant as the robber who pointed the gun in his face, and Tyus's description of the robber did not completely match defendant's physical characteristics. It is also true that no fingerprint or DNA evidence conclusively placed defendant in Tyus's home. But, as the People argue in their brief, the record does contain evidence that sufficiently corroborated Williams's testimony about defendant's involvement in the robbery.
First, Tyus testified that the robber who pointed a gun at him had tattoos on his neck and on the side of his face. Williams and a police officer testified that defendant had tattoos on his neck and face.
Second, Tyus testified that, through the bed skirt placed over his head, he saw that the robber who pointed the gun at him was dressed in "sports attire" and wore a black or blue sweatshirt, with yellow lettering and a sports team logo on it. Williams testified she only knew defendant by his nickname "Texas." She further stated that during the robbery, defendant wore a black, hooded sweatshirt with a red, "Texas bull-like" logo on the front, and he wore the hood over his head. Defendant later gave Williams the sweatshirt to wear and, when interviewed by the police, Williams gave them the sweatshirt. The sweatshirt recovered from Williams was size double extra-large, black, with an orange Texas Longhorns logo on the front. The People introduced evidence that defendant was born in Texas, and he had "Texas" and a Dallas area code tattooed on his arms.
Last, Williams testified that she, defendant, Nico, and the other man spent most of the day of the robbery at a residence in Hesperia and driving around Victorville planning the robbery. The People introduced phone records showing Williams and defendant had approximately 18 phone contacts in the hours leading up to the robbery.
While not overwhelming, this slight evidence certainly tended to connect defendant to the crime and was sufficient to corroborate Williams's accomplice testimony that defendant was involved in the robbery and possessed a gun in the process. Nothing more was required. (§ 1111; People v. Chism, supra, 58 Cal.4th at p. 1301.) Defendant counters that the corroborating evidence was weak, and points to inconsistencies that undermine the corroborating evidence. For example, defendant did not exactly match the physical description of the robber given by Tyus, and the sweatshirt recovered from Williams did not exactly match the one Tyus described.
The trial court properly instructed the jury with CALCRIM No. 335 on how to evaluate accomplice testimony, and the jury was entitled to conclude the corroborating evidence was sufficient notwithstanding the inconsistencies pointed out by defendant. "The trier of fact's determination on the issue of corroboration is binding on review unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 218.) The corroborating evidence was properly admitted (see, post, regarding the phone records), and it reasonably tended to connect defendant to the robbery.
B. The Trial Court Correctly Admitted Late-Disclosed Time Zone Evidence.
Defendant also argues the trial court erred prejudicially by admitting into evidence the belatedly disclosed fact that Williams's phone records were in Central Standard Time and not Pacific Standard Time. The trial court, according to defendant, should have excluded the evidence as a discovery sanction or declared a mistrial because introduction of that evidence undermined his defense theory. As a fallback position, defendant argues his appointed trial attorney rendered constitutionally ineffective assistance of counsel by not independently investigating Williams's phone records to determine their time zone. We find no prejudicial error.
1. Applicable Law.
The prosecuting attorney is obligated to disclose to the defense certain categories of evidence in its possession and evidence the prosecuting attorney knows to be in the possession of investigating agencies. (§ 1054.1.) "Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)" (People v. Zambrano (2007) 41 Cal.4th 1082, 1133, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
"Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).) A court may prohibit a witness from testifying as a discovery sanction only if all other sanctions have been exhausted (§ 1054.5, subd. (c)), and only upon "a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan (2003) 108 Cal.App.4th 349, 358, citing People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.) Dismissal of charges—the most severe discovery sanction—is only available if mandated by the United States Constitution. (§ 1054.5, subd. (c).)
"'[I]f the truth is to be served, the failure to disclose, at least where not wilful, should not be punished by the suppression of evidence, but by giving the offended party a proper opportunity to meet the new evidence. . . .' [Citation.]" (People v. Reyes (1974) 12 Cal.3d 486, 502, quoting People v. McRae (1967) 256 Cal.App.2d 95, 104; accord, People v. McGowan (1980) 105 Cal.App.3d 997, 1002.) "[T]he usual remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance. [Citation.]" (People v. Robbins (1988) 45 Cal.3d 867, 884; accord, People v. Barrett (1998) 17 Cal.4th 1044, 1131.) "'It is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.' [Citations.]" (People v. Thompson (2016) 1 Cal.5th 1043, 1103.) Failure to request a continuance to meet prosecution evidence that was not timely disclosed is "fatal" to an appellate challenge to admission of that evidence. (Ibid.)
"The trial court has broad discretion to fashion a remedy in the event of a discovery abuse to ensure that the defendant receives a fair trial." (People v. Bowles (2011) 198 Cal.App.4th 318, 325, citing People v. Jenkins (2000) 22 Cal.4th 900, 951.) The remedy imposed for a discovery violation, if any, is reviewed for abuse of discretion. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) In considering whether the trial court abused its discretion in selecting a sanction to address the People's discovery violation, we examine whether the trial court's response "was inadequate to dispel any prejudice resulting from the prosecution's conduct." (People v. Robbins, supra, 45 Cal.3d at p. 884.)
2. Additional Background.
Defendant moved in limine to exclude from evidence Williams's phone records that were not produced at least 30 days before trial. Defendant's appointed attorney informed the court that the People had produced an unauthenticated electronic spreadsheet of phone calls, but did not produce a verification from the phone carrier. The prosecutor responded that Vasquez obtained the phone records and forwarded them to the prosecutor and defense counsel with no authentication. When the prosecutor asked Vasquez to follow-up in response to the motion in limine, Vasquez forwarded to her a certification from the phone carrier.
The trial court directed that a copy of the certification be provided to defense counsel and offered to grant a continuance if defense counsel needed additional time to investigate the phone records. Defense counsel did not ask for a continuance, but expressed his concern that the records received by Vasquez from Sprint might not be the same as the prosecutor had produced in discovery. The prosecutor responded that the spreadsheet she received was the same one Vasquez received from Sprint. The court told defense counsel he could have subpoenaed the records himself and, in any event, the way to test the veracity of the phone records was to cross-examine Vasquez about them. The court denied the motion in limine, and it left open the possibility of instructing the jury that the prosecution was late in producing the certification.
Defendant does not challenge on appeal the denial of his motion in limine.
As noted, ante, Vasquez testified he received a digital printout of the phone calls and text messages made from Williams's phone and a certificate from Sprint attesting to the accuracy of the list. Between the afternoon of January 22 and the morning of January 23, Williams and defendant had approximately 18 phone contacts. On cross-examination, defense counsel asked Vasquez whether it was likely that two people who were in the same room at the same time would communicate with each other via text message. Vasquez testified anything is possible.
During Vasquez's testimony, the trial court read a question from a juror: "Many records from large corporations report in Eastern Standard Time. Do you know if the call times recorded on the phone records are Eastern Standard Time or Pacific Standard Time?" Vasquez responded he did not know the answer to the question. The next morning, the prosecutor informed the court that the previous evening he received from Vasquez instructions from Sprint on how to read the call spreadsheet. The instructions indicated that the call times were in Central Standard Time. The prosecutor forwarded the instructions to defense counsel. Defense counsel informed the court that the parties had proceeded to trial on the understanding that the call times were Pacific Standard Time, and that the untimely produced instructions undermined his defense. Counsel suggested there were only two ways to address the belated discovery: "This record [i.e., the instructions from Sprint] cannot come in now, or there has to be a mistrial." Defense counsel also suggested he might need to retain an expert to reexamine Williams's phone records. Counsel did not, however, request a continuance.
Vasquez testified under Evidence Code section 402 that he received the instructions from Sprint electronically at the same time he received the call logs and the certification, and he had no idea why the instructions had not previously been provided to the prosecutor and defense counsel. The court then offered to instruct the jury regarding untimely disclosed discovery, but declined to exclude the newly disclosed time zone evidence. In response to defense counsel's assertion that the newly discovered time zone evidence undermined his defense theory, the court indicated defense counsel had not yet argued the case and was not committed to any particular defense.
Defendant did not renew his suggestion that a mistrial would be an appropriate remedy, and he did not obtain an explicit ruling.
Vasquez testified before the jury that the records from Sprint regarding Williams's calls and text messages to defendant were in Central Standard Time. On cross-examination, Vasquez testified he did not realize until the previous night that the text and call times he had testified about were in the Central Standard Time zone, despite having received that information months earlier.
Defense counsel requested the trial court instruct the jury regarding the prosecution's delayed disclosure of discovery. The jury was instructed with a modified CALCRIM No. 306 as follows: "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] time zone of phone records 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."
During closing argument, the prosecutor argued the phone records corroborated Williams's testimony. Defense counsel argued that the phone records showed Williams and defendant were texting each other on the day of the robbery, at the same time they were supposedly in the same room, and this inconsistency with Williams's testimony raised a reasonable doubt as to whether defendant was involved in the robbery.
Finally, before sentencing, defendant moved for a new trial arguing, inter alia, that his defense was undermined by the late disclosure of the time zone evidence. Defendant's theory—that he was not with Williams when she said he was because the phone records showed they were texting each other—was based on the assumption that the phone records were in Pacific Standard Time. Because the time zone evidence was not disclosed until the middle of trial, defense counsel was unable to "recalibrate" the defense. The trial court denied the motion for a new trial.
Defendant does not challenge this ruling on appeal.
3. Analysis.
There is no dispute that the untimely disclosure of the time zone evidence constituted a discovery violation, but defendant does not argue, let alone establish, that the violation was intentional. Therefore, the normal remedy for the violation was a continuance for defendant to conduct any further investigation and analysis he needed to adequately address the phone records. (People v. Robbins, supra, 45 Cal.3d at p. 884; People v. Reyes, supra, 12 Cal.3d at p. 502.) When the prosecution belatedly disclosed the certification from Sprint attesting to the authenticity of the phone records, the trial court offered to grant defendant a continuance to further investigate the phone records. Defense counsel did not accept the offer. Later, when the prosecutor disclosed the time zone evidence during Vasquez's testimony, defense counsel again failed to request a continuance. Instead, counsel suggested the trial court had only two options available to address the late discovery—exclude the time zone evidence or declare a mistrial. Although counsel mentioned in passing that he might need to retain an expert to analyze the time zone evidence, he did not request a continuance to do so.
Defendant has not shown that a brief continuance to investigate the time zone evidence would not have cured any prejudice from the discovery violation. In his motion for new trial, defendant argued his defense theory was that he and Williams were not together during the day of the robbery, as Williams claimed, and that the text messages supported that theory. According to defendant, that defense was premised on the phone records being in Pacific Standard Time, and he was unable to "recalibrate" his defense when the time zone evidence was disclosed midtrial. But as the trial court mentioned, when the time zone evidence was disclosed defendant was not yet tied to any particular defense, and defendant could have requested a continuance to reanalyze the phone records in light of the time zone evidence and, if needed, reformulate a defense theory.
In any event, defendant did argue to the jury that the phone records supported his theory that Williams was not a believable witness, and that defendant was not involved in the robbery. In conjunction with the many inconsistencies between Tyus's and Williams's testimony about the robbery and the robbers, defense counsel was able to present a coherent and compelling argument that defendant was not involved in the robbery. In addition, the trial court instructed the jury that it could take into consideration the discovery violation when evaluating the weight to be given to the time zone evidence. That the jury ultimately rejected defendant's argument does not mean he was prejudiced by the time zone evidence being admitted. Therefore, we must conclude defendant's failure to request a continuance is fatal to his argument. (People v. Thompson, supra, 1 Cal.5th at p. 1103.)
We also reject the assertion that the trial court erred by denying a mistrial. To begin with, it is not entirely clear that defendant preserved this argument for appeal. Defendant did not formally move for a mistrial. He suggested that the only two remedies available for the discovery violation were exclusion of the time zone evidence or a mistrial, but he did not actually move for a mistrial. And, when the trial court declined to exclude the time zone evidence and instead offered to instruct the jury regarding the discovery violation, defendant did not request a ruling denying a mistrial.
To the extent defendant did actually move for a mistrial, and to the extent the trial court impliedly denied the motion, we find no error. "'Generally [a] trial judge has discretion to grant or deny [a motion for a mistrial], and will grant it on determining that a party's chances of receiving a fair trial have been irreparably damaged.' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 749.) "'In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. [Citation.] "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citations.]"'" (People v. Gonzales (2011) 51 Cal.4th 894, 921, quoting People v. Wallace (2008) 44 Cal.4th 1032, 1068.) As noted, defendant has not shown that admission of the time zone evidence incurably damaged his ability to present a defense. To the contrary, defense counsel argued to the jury that the phone records proved he and Williams could not have been together during the day of the robbery. The jury was not persuaded, but defendant was not denied the ability to present the defense.
Finally, as a somewhat halfhearted fallback argument, defendant contends his retained attorney rendered ineffective assistance of counsel by not discovering the time zone evidence himself before trial. We are not persuaded. "In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692 . . . .) To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance '"'"fell below an objective standard of reasonableness . . . under prevailing professional norms."'"' (People v. Lopez (2008) 42 Cal.4th 960, 966 . . . .) To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Ibid.; In re Harris (1993) 5 Cal.4th 813, 833 . . . .)" (People v. Mickel (2016) 2 Cal.5th 181, 198.)
Like the prosecutor, defense counsel relied on the completeness of the phone records as originally provided by Vasquez. It is not entirely clear on this record that a reasonably competent defense attorney in the same position would have conducted further investigation into the phone records and independently discovered that the phone records were reported in Central Standard Time instead of Pacific Standard Time. In any event, we need not decide whether defense counsel was incompetent because we find defendant was not prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed."].) For the reasons already discussed, even if defense counsel had discovered the time zone evidence before trial, it is not reasonably probable he would have been able to mount a more effective defense.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.