Filed 5/24/17 P. v. Villalobos CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDY BRIAN VILLALOBOS,

Defendant and Appellant.

F072179

(Super. Ct. No. BF157500A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 
On December 4, 2014, an information was filed alleging that, around September 30, 2014, appellant Andy Villalobos committed the offense of carjacking (Pen. Code, § 215, subd. (a)) by taking a motor vehicle from the possession of Marc Valdez against his will, by means of force or fear, and with the intent to permanently or temporarily deprive him of possession of the vehicle. At the conclusion of a jury trial on June 30, 2015, appellant was convicted of the charged carjacking offense. On August 7, 2015, the trial court sentenced appellant to the upper term of nine years. On appeal, appellant contends the prosecutor violated the criminal discovery statutes and his due process right to a fair trial by failing to timely name Bakersfield Police Officer Chad Gross as a witness for the prosecution. Finding no discovery or constitutional violation occurred, we conclude the trial court properly allowed the officer’s testimony and affirm the judgment.
FACTS
A. The Prosecution
Around 10:30 p.m. on September 30, 2014, Marc Valdez left the Verizon store where he worked at Valley Plaza Mall (the mall) in Kern County and walked out to his car (2011 Subaru Impreza) in the mall parking lot. When Valdez reached his car, he unlocked it and put his backpack on the backseat.
As Valdez was getting into the driver’s side of the car, a man he had never seen before approached him and said, “Don’t move. I have a gun.” The man said he needed the car and threatened to shoot Valdez if he did not give it to him. Valdez asked the man why he needed the car. The man “started crying a little” and said he needed the car “to save his kids” and that it was either Valdez’s life or his kids’ lives, but, either way, he was going to have the car.
The man, whose right hand was in his pocket, started lifting his hand as if he was about to pull out something. Valdez saw something silver-colored. Though unable to discern whether the object was actually a firearm, he believed it was one at the time. Fearing for his life, Valdez took his car keys off his lanyard and gave them to the man. After telling Valdez to walk to the bus stop, the man drove away in Valdez’s car. At first, Valdez started walking to the bus stop. Then he walked to the front of the mall and called 911.
Valdez testified he could no longer remember what the man who took his car looked like. However, he recalled the man was wearing a “Steelers jersey” and brown pants, and had a scooter with him. When a police officer showed Valdez a “six-pack” photo lineup of suspects that night, Valdez was able to identify the person who took his car. Valdez was positive at the time that the person whose picture he selected was the person who took his car.
Officer Chad Gross testified that he made contact with appellant around 8:30 p.m. on September 30, 2014. At the time, appellant was wearing a “Pittsburgh Steelers jersey” with the number “43” on it and “riding a foot-pedaled child’s scooter.” After viewing security video footage taken around 9:30 p.m. on September 30, 2014, of a man riding a scooter outside the main entrance of the mall, Officer Gross testified that the scooter was similar to the scooter he had seen in appellant’s possession earlier that night. Towards the end of the video, the number “43” was visible on the man’s jersey, which was consistent with the jersey Officer Gross had seen appellant wearing.
When Officer Gross heard police radio traffic about a possible carjacking and a description of the suspect, he talked to Officer Tipton and provided Officer Tipton with information regarding his earlier contact with appellant.
Bakersfield Police Officer Andrew Tipton testified that he was on duty September 30, 2014, when around 10:30 p.m., he received a call for service relating to a possible car theft or carjacking at the mall. Officer Tipton went to the mall to meet Valdez and take a statement from him. Valdez provided Officer Tipton with a general description of the carjacking suspect as “[a] Hispanic male, approximately 30 to 35, approximately five foot nine, 170 pounds, brown eyes, wearing a black Steelers football-style jersey and brown or khaki cargo pants.” Valdez also said the man who approached him had a scooter.
Officer Tipton confirmed that he heard about a possible suspect from Officer Gross and used the information to create a six-pack photo lineup he showed to Valdez at the mall. Officer Tipton displayed the lineup on a computer screen and Valdez selected appellant’s picture. In selecting appellant’s picture, Valdez told the officer, “That’s the closest. That one.” Valdez did not point to any of the other five individuals depicted in the six-pack photo lineup.
After taking Valdez’s statement, Officer Tipton went to appellant’s residence of record but did not find appellant there. The officer viewed surveillance video taken at the house the same night around 7:00 p.m. Appellant appeared on the video, walking towards the house. He was wearing a Steeler’s jersey and dark pants.
The following day, around 10:15 a.m., Bakersfield Police Officers Andrew Ferguson and Adam Clayton responded to the same house and made contact with appellant. The contact was unrelated to the subject carjacking. Officer Ferguson lawfully searched appellant and found Valdez’s car keys in his right front pocket. Unaware at the time that appellant was a suspect in the subject carjacking, Officer Ferguson placed the car keys on the kitchen floor in front of appellant.
Appellant also pointed out Valdez’s car to Officer Clayton. The car was parked on the street near the house. The car did not have regular license plates but had paper plates. Officer Clayton testified that, in his investigative experience, a person who steals a car “will often put paper plates on it and take off the actual car plate in order to keep it from being detected as stolen.”
B. The Defense
Testifying on his own behalf, appellant did not deny taking possession of Valdez’s car on the night of September 30, 2014, but claimed that Valdez loaned him the car and gave him the keys willingly. Appellant did not force Valdez to give him the car or take it without his consent.
According to appellant’s testimony, he was at his house earlier that night and did not have access to a car when an emergency developed, where some people were threatening his kids’ lives. Appellant panicked and started trying to find somebody to help him. Eventually, appellant rode his scooter to the mall to meet Valdez. Appellant explained he had seen Valdez several times before at the Verizon store where appellant’s mother was a client.
Appellant waited for Valdez in the parking lot and asked Valdez to borrow his car. Appellant testified, “I told him that my kids were in danger and I … please needed to use his car” and “promised him I was going to give the car back as soon as I was done with the problem I had.” Appellant confirmed that he had his hand in his pocket the whole time but denied that he had a gun, or made any threats, including that he would shoot Valdez, if he did not loan appellant his car.
After appellant told Valdez about fearing for his children’s lives, Valdez took the lanyard off his neck, separated his car keys from his other keys, and gave the car keys to appellant. Valdez then said something about how appellant could pay him back with “sexual favors.” Appellant ignored Valdez’s comment.
When appellant returned home from checking on his children, he parked the car on the street around the corner from his house. Appellant was the one who pointed out the car to the police when they came to the house the next morning. The police officer asked how he got the car. Appellant said that Valdez loaned it to him when he explained he had a family emergency and his kids were in danger.
C. The Rebuttal
When Valdez got his car back, the license plates were missing and he had to purchase new plates from the Department of Motor Vehicles. His backpack, which contained his laptop and tablet, was also missing. Valdez would never leave his backpack in the car if he loaned the car to someone.
When Officer Clayton spoke to appellant on the morning of October 1, 2014, appellant told the officer the police were looking for him and then pointed at Valdez’s car as the reason the police were looking for him. Appellant never told Officer Clayton he borrowed the car to handle a family emergency or that his kids were in danger. Nor did appellant ever mention anything about the owner of the car making statements that appellant could repay him with sexual favors.
Later, after Officer Clayton learned that appellant was a suspect in the subject carjacking, appellant told the officer that the car was his and that it had been a gift. When officers tried to take possession of the car to return it to its owner, appellant accused Officer Clayton of stealing it.
DISCUSSION
Appellant claims the prosecutor’s late disclosure of his intention to call Officer Gross as a witness violated the prosecution’s statutory discovery obligations and resulted in a prejudicial deprivation of appellant’s due process right to a fair trial. For reasons discussed below, we reject these claims.
A. Additional Background
On Monday, June 29, 2015, which was the first morning of testimony in appellant’s jury trial, the prosecutor advised the trial court that he wished to add Officer Gross to the prosecution’s witness list. The prosecutor explained that one of the police reports mentioned Officer Gross, but, when the prosecutor first read the report, he mistakenly thought Officer Gross was among the officers who made contact with appellant “on an unrelated event 12 hours after the offense occurred.”
The prosecutor had since spoken with Officer Gross and learned that the officer “actually made contact with the defendant about two hours prior to this offense.” The prosecutor further stated: “[W]hen the call-out went originally describing a carjacking by a person on a scooter wearing a Steelers jersey, Officer Chad Gross said, ‘Oh, I made contact with someone matching that description. Here’s his name,’ and that’s how they actually created a six-pack lineup.”
The prosecutor noted that Officer Gross never wrote a report about his contact with appellant on the night of September 30, 2014, and, therefore, neither the prosecution nor the defense had received specific details regarding the date, time, or place of Officer Gross’s contact with appellant. Consequently, the prosecutor asked Officer Gross to write a one-paragraph report including those details, which the prosecutor just received that morning and provided to defense counsel as soon as the prosecutor arrived in court.
In response to the prosecutor’s request to add Officer Gross to the witness list, defense counsel objected “on the basis of late discovery” complaining: “I just received this about—around 9:00 [a.m.], maybe five minutes before. The reports—the written report is actually dated on the 28th, just on the weekend. I think it’s too late for another witness and report.”
The trial court overruled defense counsel’s objection. In ruling, the court stated:
“Over the defense objection, the Court’s going to allow Officer Chad Gross to testify to contact previously made with the defendant. And the record should reflect that that previous contact was an approximately 2032 hours on September 30, 2014, roughly an hour and a half to two hours before the alleged carjacking occurred and it was within a few blocks of the Valley Plaza Mall. The Court finds that that information is relevant evidence for this jury to consider.
“Also finds that there is no late discovery issue that would preclude or prevent this information from being introduced to the jury. The Court accepts the representation by the prosecutor that this information, while not the date and time exactly, was initially included in the report that was discovered previously on page 11 of 22. Additionally, the Court does find that handing over the supplemental information, including the specific date, time, and location, this morning is likewise not late discovery. As defense counsel pointed out, the date written on the actual report received was June 28, 2015. The time currently is 9:15 on June 29, 2015. It does appear to the Court that [the prosecutor], when he obtained this information, did make it discoverable as quickly as possible. For those reasons, it does not appear that the People were sitting on this information or otherwise delaying its discovery process so as to gain an advantage during these proceedings. For those reasons, the Court will allow Officer Chad Gross to testify finding that his testimony will be relevant and that there has been no discovery violation.”
B. Analysis
A prosecutor must disclose to the defendant or defense counsel the “names and addresses of persons the prosecutor intends to call as witnesses at trial” as well as “[r]elevant … reports of the statements of witnesses whom the prosecutor intends to call at the trial.” (§ 1054.1, subds. (a), (f).) There are two statutory time limitations for section 1045.1 disclosures. (§ 1054.7.) One applies to “material and information [that] becomes known to, or comes into the possession of, a party within 30 days of trial.” (Ibid.) For this type of material and information, disclosure must generally occur “immediately.” (Ibid.) Other disclosures must be made at least 30 days prior to trial unless good cause is shown. (Ibid.)
Here, the record indicates the prosecutor did not intend to call Officer Gross as a witness until he learned that Officer Gross’s reported prior contact with appellant occurred within only a couple of hours of the September 30, 2014, carjacking and the prosecutor consequently asked Officer Gross to prepare a report describing the details of that contact. Officer Gross’s information concerning appellant was material information and became known to the prosecutor within 30 days of trial. Therefore, section 1054.7 required the prosecutor to disclose the information “immediately” to defense counsel, which the prosecutor did at the earliest opportunity in court the morning after the prosecutor received Officer Gross’s report and at which time the prosecutor additionally disclosed his intention to call the officer as a witness. Because the prosecutor complied with section 1054.7, these disclosures were not late, and the trial court properly allowed Officer Gross’s testimony the same day. (§ 1054.7; People v. Rutter (2006) 143 Cal.App.4th 1349, 1353–1554.)
However, even assuming the disclosure violated the prosecution’s statutory discovery obligations, before the remedy of exclusion is used, there must be a showing of significant prejudice and willful misconduct. (See People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758–1759.) Appellant has demonstrated neither. There is no evidence in this record that the prosecuting attorney intentionally withheld or tried to conceal the information concerning Officer Gross from the defense to place appellant at a strategic disadvantage. Nor is there any indication that the late disclosure of the prosecution’s intention to call Officer Gross resulted in significant prejudice, let alone a prejudicial violation of appellant’s due process right to a fair trial because, according to appellant, he “prepared a defense and rejected a plea bargain based on the State’s implicit representation it did not intend to call Officer Gross.”
While defense counsel cited the arguably equivocal language Valdez used in identifying appellant as the carjacker when viewing the photo lineup to suggest the identification was insufficient, the defense primarily focused, not on the issue of appellant’s identity as the person who took Valdez’s car, but on the issue of whether appellant took Valdez’s car against his will. Thus, in closing argument, defense counsel referred to Valdez’s personal characteristics (“We have this big young Marine versus slightly built person here”) and the length of his encounter with appellant (“He ha[d] seven minutes to do something”) to challenge the credibility of Valdez’s testimony that he gave appellant his car against his will because he feared for his life. The record simply provides no basis to conclude that appellant relied on a belief that the prosecution would not call Officer Gross as a witness to prepare the defense he presented at trial. If the defense theory was, in fact, focused on the lack of evidence establishing that appellant was the person who took Valdez’s car, as he now asserts, it is unclear why appellant would choose to testify and essentially admit that he took possession of the car but claim to have done so with Valdez’s permission.
Nor does the record support appellant’s assertion that his belief that the prosecution would not call Officer Gross to testify factored in any way into appellant’s rejection of the plea offer made to him several days before trial. Appellant’s own comments to the trial court in rejecting the offer contradict his appellate claim that “[h]e considered, and rejected, the plea based on an assessment of the strengths and weaknesses of the prosecution’s case, as well as his own.” Instead, his comments indicate he rejected the plea offer based on his insistence that he was innocent (“I never did what I am being accused of”) and his willingness to risk going to trial because he did not want a conviction on his record, which he perceived could interfere with some of his personal goals. Moreover, the clerk’s transcript indicates appellant rejected another plea offer in May 2015, before disclosure of the prosecution’s original witness list, casting further doubt on the conclusion that the prosecution’s choice of witnesses played a key role in appellant’s decision whether to reject any pretrial plea offers.
However, even assuming the late disclosure of Officer Gross as a prosecution witness rose to the level of a constitution violation, we conclude any error in permitting the officer to testify was harmless beyond a reasonable doubt under the Chapman standard appellant claims is applicable. Even without consideration of Officer Gross’s testimony, the evidence that appellant was the person who took possession of Valdez’s car on the night of September 30, 2014, was overwhelming. The evidence included, among other things, appellant’s own conduct and statements the morning after Valdez reported his car stolen, when, during an unrelated police encounter, appellant revealed himself to be in possession of both Valdez’s car and car keys. In addition, the original license plates were missing and the car bore paper plates, a suspicious circumstance inconsistent with appellant’s claim to have merely borrowed the car, and indicative of his attempt to hide the fact the car belonged to someone else. Moreover, the clothing appellant was wearing in the surveillance video footage taken at his residence a few hours before the carjacking matched Valdez’s description of the person who took his car.
On the record before us, we find unpersuasive appellant’s claim that “[t]he admission of Officer Gross’[s] testimony dramatically changed the quality and quantity of evidence against the appellant.” Finding no statutory violation or prejudicial constitutional violation occurred in this case, we reject appellant’s challenge to the late inclusion of Officer Gross as a prosecution witness.
DISPOSITION
The judgment is affirmed.