Filed 4/5/22 P. v. Smith-Pequeno CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

A jury convicted Marcos Rey Smith-Pequeno of second degree robbery, and the trial court placed him on probation with various conditions. On appeal, Smith-Pequeno contends the court erred by declining to exclude evidence as a sanction for the “prosecutor’s violation of the discovery statutes.” Smith-Pequeno also challenges the validity of one of the probation conditions. We affirm.

BACKGROUND

On a February 2020 afternoon, Alexander S. was seated at an outdoor table at a coffee shop in Oakland.[1] His laptop and iPhone were on the table. Suddenly, Alexander got “hit . . . on the front and back of [his] head” until he “blacked out.” When Alexander regained consciousness, his laptop and iPhone were gone, and blood was dripping from his face.

Tiffany M. was on her way to the coffee shop when she saw two men “loitering” outside. Suddenly, one of the men — later identified as Smith-Pequeno — ran “by right in front” of her. He was carrying a laptop. Tiffany grabbed Smith-Pequeno, but then let go upon realizing that he “could be armed.” As Smith-Pequeno fled, one of his sneakers fell off. Undeterred, he kept running. Tiffany picked up the sneaker. Tiffany saw the other man enter a “get-away car” parked nearby. As that man drove away, Tiffany photographed the car and the license plate. Shortly thereafter, police officers arrived at the coffee shop; Tiffany gave one of the officers the sneaker.

Two days later, a police officer located the car and found Smith-Pequeno in the back seat. Smith-Pequeno was arrested; subsequently, his cheek was swabbed for DNA. A criminalist compared Smith-Pequeno’s DNA profile to the DNA found on the sneaker. They were a match. The robbery was captured on the coffee shop’s surveillance video, and the video was played for the jury.

In August 2020, the jury convicted Smith-Pequeno of second degree robbery. The trial court placed him on probation for five years with various conditions.

DISCUSSION

I.

Smith-Pequeno contends his conviction must be reversed because the prosecution untimely disclosed the surveillance video and the DNA evidence in “violation of the discovery statutes,” and the trial court erred by admitting the evidence at trial.

A.

The Oakland Police Department obtained surveillance video from the coffee shop on February 10, 2020, three days after the robbery. In April, defense counsel requested “all video surveillance” from the prosecution. The following month, the trial court conducted a preliminary hearing and held Smith-Pequeno to answer the robbery charge. Shortly thereafter, the court set a trial date. Approximately two weeks before the July 27 trial date, the prosecutor notified the defense that Smith-Pequeno’s DNA had been found on the sneaker. A few days before trial, the prosecutor disclosed the surveillance video and the criminalist’s DNA report.

Defense counsel moved in limine to exclude the surveillance video and the DNA evidence as a sanction for the prosecution’s “failure to timely disclose” the evidence.[2] Concerning the video, defense counsel asserted the late disclosure prevented him from using the evidence at the preliminary hearing, from exploring whether to resolve the case by plea, and from conducting additional investigation to prepare for trial. The trial court permitted defense counsel to confer with Smith-Pequeno regarding the prosecution’s prior offer of a prison sentence of up to two years. After doing so, defense counsel advised the court that Smith-Pequeno did not want to enter a plea. Counsel did not request a continuance of the trial date.

When the trial court offered the prosecutor an opportunity to respond, she acknowledged the surveillance video was in the police department’s possession, but maintained she had no knowledge of the video until a few days before trial. And the prosecutor asserted she disclosed the video to defense counsel within minutes of receiving it. The prosecutor also argued the timing of the disclosure was not prejudicial because Smith-Pequeno declined to resolve his case by plea after reviewing the video. The court denied the motion to exclude the video. It found there was no discovery violation because the prosecutor disclosed the video as soon as she received it. The court observed that “[t]o the extent” the police department had the video, “there’s arguably a discovery violation if he’s part of the prosecution team.” But the court found there was no prejudice even “if this disclosure was untimely.”

Concerning the DNA evidence, defense counsel argued the late disclosure of the criminalist’s DNA report precluded the defense from evaluating “the legitimacy” of the criminalist’s methodology. The trial court deferred ruling on the motion to exclude the DNA evidence until after lunch so that it could review the report. After lunch, defense counsel did not request a ruling on the motion, nor did counsel object when the criminalist testified regarding the DNA evidence.

B.

Penal Code section 1054.1 requires the prosecution to disclose to the defense “relevant real evidence seized or obtained as a part of the investigation of the offenses charged” and “reports or statements of experts made in conjunction with the case, including the results of . . . scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” (Id., subds. (c), (f); undesignated statutory references are to the Penal Code.) The information listed in the statute “must be disclosed only ‘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.’ [Citation.] Case law has interpreted this requirement to encompass not only information actually possessed but that is ‘ “within the possession or control” of the prosecution’ or put another way, ‘ “reasonably accessible” to it.’ [Citations.] In other words, the statutory phrase ‘in the possession’ is not read literally so as to very narrowly cabin the materials that can be sought.” (People v. Superior Court (Dominguez) (2018) 28 Cal.App.5th 223, 234.) Thus, “section 1054.1 creates a prosecution duty to inquire and disclose” items listed in the statute that are “ ‘in the possession of all agencies (to which the prosecution has access) that are part of the criminal justice system, and not solely information “in the hands of the prosecutor.” ’ ” (People v. Little (1997) 59 Cal.App.4th 426, 430, 431, quoting In re Littlefield (1993) 5 Cal.4th 122, 135 [“California courts long have interpreted the prosecutorial obligation to disclose relevant materials in the possession of the prosecution to include information ‘within the possession or control’ of the prosecution.”].)

“ ‘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.’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 280; § 1054.7.) Upon a showing that a discovery violation has occurred, section 1054.5, subdivision (b) authorizes the trial court to “make any order necessary to enforce the provisions of this chapter, including . . . immediate disclosure, . . . 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.”

Excluding evidence for a violation of the discovery statutes is a severe sanction, one a trial court may employ “only if all other sanctions have been exhausted.” (§ 1054.5, subd. (c).) Exclusion of evidence for a discovery violation “is not an appropriate remedy absent 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.) We “review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard.” (People v. Ayala (2000) 23 Cal.4th 225, 299.)

As an initial matter, we decline to consider Smith-Pequeno’s complaint regarding the timing of the prosecutor’s disclosure of the DNA evidence. Failure “ ‘to press for a ruling on a motion to exclude evidence forfeits appellate review of the claim because such failure deprives the trial court of the opportunity to correct potential error in the first instance.’ ” (People v. Valdez (2012) 55 Cal.4th 82, 143.) Here, defense counsel failed to press for

a ruling on his motion to exclude the DNA evidence, and he did not object to the evidence when it was admitted at trial. On this record, Smith-Pequeno “may not raise the issue on appeal.” (Ibid.)

Next, we consider Smith-Pequeno’s argument that the trial court abused its discretion by declining to exclude the surveillance video. In light of the Attorney General’s failure to argue otherwise in its briefing, we agree with Smith-Pequeno that the prosecutor’s disclosure of the video on the eve of trial was untimely under the discovery statutes. (People v. Superior Court (Dominguez), supra, 28 Cal.App.5th at p. 239 [“cases make clear that the statutory phrase ‘ “in the possession” ’ of the prosecution encompasses information ‘ “reasonably accessible” to it’ ”]; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1311–1313, 1317 [defining investigative agency under the discovery statutes]; People v. Little, supra, 59 Cal.App.4th at pp. 430–431.)

But we also conclude the trial court did not err by declining to exclude the evidence as a sanction for the discovery violation. Smith-Pequeno points to no evidence in the record that the prosecutor, for strategic purposes, deliberately delayed disclosing the surveillance video to gain a tactical advantage. (See People v. Gonzales (1994) 22 Cal.App.4th 1744, 1759.) Nor is there any indication that a lesser sanction — such as a brief continuance — would not have cured the alleged harm. (People v. McKinnon (2011) 52 Cal.4th 610, 668–669.) On this record, the extreme sanction of exclusion was unwarranted. (Id. at p. 669 [no abuse of discretion in declining to exclude evidence for prosecutor’s statutory discovery violation]; People v. Ayala, supra, 23 Cal.4th at pp. 299–300 [no abuse of discretion in trial court’s refusal to impose sanction for discovery violation]; People v. Edwards (1993) 17 Cal.App.4th 1248, 1261 [exclusion is a drastic remedy, and must be used sparingly].)

To prevail on a claim alleging a violation of discovery statutes, Smith-Pequeno must show there is a reasonable probability that, had the evidence been timely disclosed, the result of the proceeding would have been different. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 467, 468.) He cannot satisfy his burden. Smith-Pequeno declined to resolve his case by plea after reviewing the surveillance video. At trial, defense counsel extensively cross-examined the investigating officer about the officer’s receipt of the video from the coffee shop, and the date upon which the officer turned the video over to the prosecutor, but defense counsel did not accept the court’s invitation to argue in closing that the delayed disclosure of the evidence prejudiced Smith-Pequeno. And on appeal, Smith-Pequeno has not explained what defense counsel would have done differently had the video been disclosed earlier. A generalized statement that “ ‘[t]imely disclosure of the information would have enabled counsel to adjust his theory of the case’ ” is “insufficient to demonstrate prejudice.” (People v. Verdugo, supra, 50 Cal.4th at p. 282, brackets in original; People v. Mora and Rangel, at p. 470 [any error from delayed disclosure was harmless].)

Moreover, even without the surveillance video, the evidence supporting the conviction was strong. Alexander described being hit in the head until he blacked out; when he regained consciousness, his laptop and iPhone were gone. Tiffany testified she saw two men loitering near the coffee shop, then watched Smith-Pequeno run from the coffee shop carrying a laptop. Tiffany saw Smith-Pequeno’s sneaker fall off, and she retrieved the shoe and gave it to a law enforcement officer. Tiffany further testified that Smith-Pequeno’s cohort left the crime scene in a “get-away car” parked nearby, and she took a photograph of the car. Two days later, Smith-Pequeno was found in that car.

For the foregoing reasons, Smith-Pequeno has not satisfied his burden to establish the delayed disclosure of the surveillance video was prejudicial.

II.

Smith-Pequeno also challenges the probation condition requiring him to submit to education, counseling, treatment, or testing as directed by his probation officer, including Alcoholics Anonymous (AA) or an equivalent program.[3] This contention has no merit.

The probation department reported that Smith-Pequeno, then 24 years old, began drinking at age 19 and using marijuana and Xanax thereafter. He drank — and used those drugs — “on occasion.” The department urged the trial court to order Smith-Pequeno to “[s]ubmit to such education, counseling, treatments or tests as directed by the Probation Officer including, but not limited to, urinalysis.” In his sentencing memorandum, Smith-Pequeno informed the trial court that he planned to attend AA meetings upon his release from custody.

At sentencing, the trial court asked defense counsel whether AA attendance should be a condition of probation. In response, defense counsel noted Smith-Pequeno wanted to attend AA, and that counsel would not oppose “that specific condition of probation.” Counsel did not object when the court ordered Smith-Pequeno to “submit to such education, counseling, treatment or test as directed by the probation officer, including, but not limited to, urinalysis, including if recommended by the probation officer, AA or the . . . equivalent of AA.”

On appeal, Smith-Pequeno takes a different tack: he asserts the probation condition impermissibly delegates judicial authority to the probation officer, in effect giving the officer “unfettered discretion” to order him to attend “completely inappropriate” and “worthless” programs such as AA. This contention — raised for the first time on appeal — is forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234–235.) The theory behind the forfeiture rule is that a “timely objection allows the [trial] court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.” (Id. at p. 235.) The forfeiture rule undoubtedly applies here, as Smith-Pequeno did not object to the probation condition and, indeed, welcomed the opportunity to attend AA.

The argument also fails on the merits. A trial court has broad discretion to determine whether to grant an eligible defendant probation and to decide what terms of probation will promote the defendant’s rehabilitation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) To be sure, the court may not delegate the exercise of its discretion to the probation officer. (In re

Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.) But a “ ‘court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation.’ ” (In re

David C. (2020) 47 Cal.App.5th 657, 668–669 [upholding probation condition requiring the “minor to ‘submit to a psychological/psychiatric evaluation as directed by the probation officer’ ”]; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.)

People v. Penoli (1996) 46 Cal.App.4th 298 (Penoli) is instructive. There, the defendant insisted that a probation condition requiring her to enter a residential drug treatment program “ ‘as approved by the Probation Officer,’ ” and to remain there until she successfully completed it, unlawfully delegated judicial authority to the probation department to select the program. (Id. at p. 301.) The appellate court disagreed. It reasoned that “any attempt to specify a particular program at or prior to sentencing would pose serious practical difficulties. The trial court is poorly equipped to micromanage selection of a program, both because it lacks the ability to remain apprised of currently available programs and, more fundamentally, because entry into a particular program may depend on mercurial questions of timing and availability.” (Id. at p. 308.)

As in Penoli, it was appropriate for the trial court to authorize the probation officer to determine whether to order Smith-Pequeno to participate in AA or an equivalent program. Smith-Pequeno’s bid to distinguish Penoli is unpersuasive, and his reliance on distinguishable cases such as People v. Cervantes (1984) 154 Cal.App.3d 353 — which concerned a trial court’s improper “delegation to the probation officer of the power to determine the amount and manner of” victim restitution — is unavailing. (Id. at p. 356.) On this record, the court did not unlawfully delegate authority to the probation officer. (In re David C., supra, 47 Cal.App.5th at p. 668.)

Smith-Pequeno also contends the probation condition is unconstitutionally vague. We address this argument notwithstanding Smith-Pequeno’s failure to object to the condition in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 885.) A probation condition is unconstitutionally vague if it is not “ ‘sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.’ ” (Id. at p. 890.) “A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382.)

Applying a de novo standard of review, we conclude the probation condition is not unconstitutionally vague. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) A reasonable common sense interpretation

of the condition is that Smith-Pequeno’s probation officer may require him

to participate in AA — a program Smith-Pequeno himself identified and expressed an interest in attending — or an equivalent program, should the probation officer deem such participation necessary for Smith-Pequeno’s rehabilitation. (In re David C., supra, 47 Cal.App.5th at pp. 668–669; Penoli, supra, 46 Cal.App.4th at p. 309; see also People v. Olguin, supra, 45 Cal.4th at p. 383.) Smith-Pequeno will not be left to guess what is expected of him. His probation officer will identify appropriate “education, counseling, treatment or test” and will direct Smith-Pequeno to participate.

DISPOSITION

The judgment is affirmed.

_________________________

Rodríguez, J.

WE CONCUR:

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Tucher, P. J.

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Petrou, J.

A160963

[1] We provide an overview of the prosecution evidence here and additional detail in the discussion of Smith-Pequeno’s claims.

[2] In the alternative, defense counsel requested the trial court instruct the jury with CALCRIM No. 306 regarding untimely disclosure of evidence. The court declined to give the instruction, a ruling Smith-Pequeno does not challenge on appeal.

[3] The probation condition in the clerk’s minute order varies slightly from the court’s oral pronouncement. We analyze the condition orally imposed at sentencing. (See People v. Farell (2002) 28 Cal.4th 381, 384 & fn. 2.)