P. v. Martinez

Filed 2/28/07 P. v. Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.

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The prosecution charged defendant Edward Leon Martinez with residential burglary. Defendants first trial ended in a mistrial when the jury failed to reach a verdict. After a second trial, the jury found defendant guilty as charged, and the court sentenced him to state prison. Defendant contends the trial court erred by admitting new testimony from one witness at his second trial, its handling of a second witness change in her trial testimony from the first trial, and by its further instruction of the jury during deliberations. We find no prejudicial error and affirm the judgment.

FACTS

Roland Seilinger lived in a guest house located on the rear portion of the lot at 4357 Claytor Circle, Anaheim, California. His cousins, Bianca and Vanessa Kutschat, lived in the main residence on the property. The property is surrounded by a six-foot high block wall with a gate in front that was kept shut except when the residents were leaving or returning home. Seilinger testified that he and his mother cleaned the windows of the guest house approximately two weeks prior to July 30, 2002.

Defendant lived at 4352 East Bainbridge, Anaheim, California along with his parents, brothers, and one of his sons. A portion of their lot was on the opposite side of the block wall running along the rear property line of the Claytor Circle lot. Seilinger and his cousins did not know defendant or the other members of his family.

On July 30, Seilinger left for work between 6:30 and 7:00 a.m., locking all of the doors and windows except the bathroom window, which he left open with the blinds pulled down. Screens were attached to the outside of each of the guest houses windows. Bianca was at work between 9:00 a.m. and 5:00 p.m. Vanessa left home around 10:00 a.m. to work on a college term paper. She returned home around 2:00 p.m. and went out to the pool area. She noticed the screen on the guest houses bathroom window had been removed and a planter had been moved so that it was underneath the window. Later, Vanessa left home to return to school.

When Seilinger returned home from work around 5:45 p.m., he discovered a video game system, along with its controls and cables, plus some digital video discs missing from the guest house. The drawers of his dresser were open and the blinds on the bathroom window had been pulled up. Seilinger and Bianca noticed the screens covering all of the guest houses windows had also been removed and were lying on the ground.

A police forensic specialist examined the bathroom window but did not see any fingerprints and, due to the windows outer surface, did not attempt to lift any prints from it. But he did lift fingerprints from two other guest house windows. Both prints contained smearing, which indicated a sliding movement by the hand. No fingerprints were found inside the guest house. Subsequently, the forensic specialist matched the prints found on the guest house windows to a known sample of defendants fingerprints.

The defense presented testimony from other neighbors that children playing in the backyard of defendants residence would occasionally kick a ball or throw a toy over the wall. The neighbors testified defendant either asked for or received permission from them before entering their yards to retrieve the ball or toy.

Defendants brother, Jose Carlos Martinez, testified that on July 30 he picked up his son, Adrian, and brought him to the house around 1:00 p.m. Adrian joined defendant and his two sons, Isaiah and Nathaniel, who were in the backyard playing with a soccer ball. Martinez went to the garage to lift weights and watch television.

About 2:00 p.m., Martinez went to the kitchen and heard Nathaniel crying in the backyard. Defendant was not present and Martinez did not see the soccer ball. He asked Isaiah where was defendant. Isaiah pointed towards the back wall. Martinez took the children to the garage with him. Around 2:30 or 2:45 p.m., he saw defendant walking along the street towards the Bainbridge residence. Defendant was not carrying anything. He took the children to the backyard with him while Martinez remained in the garage.

Between 3:00 and 3:15 p.m., Martinez went to the kitchen a second time and again heard Nathaniel crying. He noticed defendant was not in the backyard and asked Isaiah where his father was. Isaiah again pointed towards the back wall. Martinez returned to the garage. When he returned to the kitchen a third time, he saw defendant and the children playing with the soccer ball in the backyard.

DISCUSSION

1. Bianca Kutschats New Testimony

a. Background

At defendants second trial, the prosecutor asked Bianca, [d]id you ever make any statements that you didnt want them to touch anything on your property? Over objection, Bianca was allowed to testify that approximately two months before the burglary, while riding her dirt bike around the neighborhood, she told a group of men sitting out in front of the Bainbridge residence that if I find my motorcycle missing[,] Ill come to them first . . . . She described the group of men as four or five male Hispanics. She could not identify defendant as one of the men.

During a bench conference, the prosecutor conceded learning about Biancas new testimony that morning and failing to inform defense counsel about it. The court concluded a sufficient foundation had been established to admit the testimony, rejected defense counsels requests to strike the new testimony, and denied his motion for a mistrial.

The court later instructed the jury with CALJIC No. 2.28, advising it of the parties duties to disclose evidence, that the People failed to disclose . . . the statements made by Bianca Kutschat to the . . . male Hispanics outside . . . 4352 Bainbridge a couple of months prior to July 2002, this failure to timely disclose . . . was without lawful justification, and [t]he weight and significance of any delayed disclosures are matters for your consideration. . . . Immediately thereafter, the court also instructed the jury that this evidence may be considered . . . for the limited purpose of determining if it showed or tends to show that the victim did not grant consent to enter upon her property, but may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes.

b. Analysis

Defense counsel objected to Biancas new testimony on grounds of relevance, hearsay, Evidence Code section 352, and violation of Penal Code section 1054, pertaining to pretrial disclosure of evidence. On appeal, defendant contends, in part, this evidence was irrelevant because lack of consent was not a disputed issue. While the new testimony was irrelevant, its admission amounted to harmless error.

Except as otherwise provided by statute, no evidence is admissible except relevant evidence. (Evid. Code,  350.) Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact . . . . (Id.,  210.) The trial court is vested with wide discretion in determining the relevance of evidence. [Citation.] The court, however, has no discretion to admit irrelevant evidence. [Citation.] (People v. Babbitt (1988) 45 Cal.3d 660, 681.)

As defendant argues, lack of consent was not a disputed issue in this case. The defense never claimed defendant entered the Claytor Circle lot with permission or believing he had the permission to do so. In his closing argument, defense counsel reminded the jury I indicated to you in my opening [statement] that if [defendant] is guilty of anything hes guilty of a trespass . . . . Evidence presented on a nondisputed issue is irrelevant and, hence, inadmissible, as only relevant evidence is admissible in a trial. [Citations.] (People v. Coleman (1979) 89 Cal.App.3d 312, 321.)

The new testimony also failed to support the inference the prosecution sought to establish with it. The prosecutor argued Biancas new testimony showed defendant did not have permission to jump over the wall[] and get your ball . . . because she specifically told those family members . . . that he is not to be around her property. But Biancas statement, that if her motorcycle was missing she would come to them first, was, at best, a rather cryptic and imprecise way of advising defendants family they did not have permission to enter her property. Bianca also did not know the occupants of the Bainbridge residence and, except for describing the men outside the residence as a group of four or five male Hispanics, could not identify any of them. There was no showing any of the listeners were a member of defendants family or of their relationship to defendant and his family. Consequently, the trial courts conclusion that it was reasonable the men would pass on the purported lack of permission message to the Martinez family members is entirely speculative. [E]vidence leading only to speculative inferences is irrelevant. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1035; see also People v. Stitely (2005) 35 Cal.4th 514, 549-550 [Speculative inferences are, of course, irrelevant].)

Under these circumstances, we conclude the trial court erred in admitting Biancas testimony concerning her encounter with the group of Hispanic men outside defendants residence. Nonetheless, its admission was harmless.

Absent fundamental unfairness, state law error in admitting evidence will be deemed prejudicial only where it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.] (People v. Partida (2005) 37 Cal.4th 428, 439.) As noted, lack of consent to enter the Seilinger-Kutschat property was a nonissue. Contrary to defendants assertion, the prosecutor did not employ the evidence to establish defendants motive. Rather, the prosecutor argued its relevance is . . . that it . . . negates an innocent motive in this case, a fact conceded by the defense. The court not only instructed the jury on the prosecutions failure to disclose this new testimony in advance, but further told the jury this evidence could only be used to determine the conceded issue. Jurors are presumed to understand and follow the courts
instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Martin (2000)

78 Cal.App.4th 1107, 1111.) Defendant misstates the record in claiming the trial court instructed the jury that counsels argument constituted evidence. The court gave the standard jury instruction that [s]tatements made by an attorney during the trial are not evidence. (See CALJIC No. 1.02.)

Defendant contends the admission of this evidence also violated his constitutional right to due process. He did not assert this ground at trial. Thus, to prevail on it on appeal, he must show the asserted error in overruling the trial objection had the legal consequence of violating due process. (People v. Partida, supra, 37 Cal.4th at

p. 431.) [T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] (Id. at p. 439; see also Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892, 923 [Even if there are no permissible inferences the jury can draw from the evidence in question, due process is violated only if the evidence is of such quality as necessarily prevents a fair trial].) In light of the undisputed nature of the lack of consent issue and the courts instruction on the use of this evidence, defendant has failed to show its admission resulted in a fundamentally unfair trial.

2. Vanessa Kutschats Change in Testimony

a. Background

At defendants first trial, Vanessa testified she returned home from school around 2 p.m. on July 30, 2002, went out by the backyard pool until around 3:15, then reentered the house, and left [home a second time] at 4:00 p.m. During the second trial, Vanessa was called as a witness on a Wednesday afternoon. She changed her testimony, claiming she remained outside by the pool from 2:15 p.m. until 4:30 p.m. She explained the prior misstatement as follows: I [had] said 3:15, because I thought my class was at 4:00. But when I went back home later on that day to check to see if I had any old manuals to see when my class started, it started at 6:00, which means I would have left [home] around 4:45.

Defense counsel objected, claiming the prosecution should have disclosed Vanessas change in her testimony. The prosecutor claimed the change in testimony was an incidental point that did not contradict the defense. Defense counsel sought to reserve cross-examination of her until he could investigate the question of when her class began on the afternoon of July 30. However, he agreed to the courts proposal that he continue cross-examining Vanessa, conduct his investigation of the class starting time and, if necessary, request that she be recalled to the stand the following Monday.

On cross-examination, Vanessa claimed she was taking a postgraduate class in economics that summer. After testifying at the first trial, she went home and looked at a term paper and noticed it indicated her class began at 6:00 p.m. Vanessa claimed she had thrown the paper away several months earlier when I was cleaning out my house. She admitted that, while out by the pool, she went inside the house and returned to the pool several times before leaving home to go to school.

On the following Monday, defense counsel requested the court give CALJIC No. 2.28 concerning the prosecutions nondisclosure of evidence as to both

Bianca and Vanessa. Counsel informed the court that he had telephoned his investigator about verifying Vanessas class schedule, had spoken to him on Friday morning but was told he didnt have any information, and was still waiting for a call from him.

The court declined to give the instruction as to Vanessa testimony. The court noted the defense learned about Vanessas change of testimony on Wednesday and concluded affording the defense two working days to investigate her class schedule was a sufficient remedy for late discovery  . . . .  And that it is a situation where the information, although it changed slightly, was information that if you wanted to verify you could have verified some time ago[.] [Y]ou knew she had gone to a class at Cal State Fullerton, and you have chosen not to do that. [] . . . [] You . . . had two days to do it, put on the record why your investigator has been unable to communicate that information to you, but I have heard nothing to suggest that two days was an insufficient period of time . . . .

b. Analysis

Defendant contends the trial court abused its discretion by refusing to give CALJIC No. 2.28 as to the prosecutions failure to timely disclose the change in Vanessas testimony. He argues this discovery violation essentially destroyed the defense theory of the case, and two additional days of discovery was an insufficient amount of time to verify Vanessas new statement. Alternatively, defendant claims his trial counsels failure to move for a mistrial when Vanessa corrected her original testimony constituted ineffective assistance of counsel. We disagree on all grounds.

[T]o promote ascertainment of truth . . . liberal discovery rules . . . allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial. [Citation.] (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201.) To enforce these rules, Penal Code section 1054.5 declares, Upon a showing that a party has not complied with Section 1054.1 or 1054.3 [regarding required discovery disclosures by the prosecution and defense] . . ., 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. (Pen. Code,  1054.5, subd. (b).)

Since a trial court may . . . consider a wide range of sanctions in response to the prosecutions violation of a discovery order, an appellate court generally review[s] a trial courts ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] (People v. Ayala (2000) 23 Cal.4th 225, 299; see also People v. Wimberly (1992) 5 Cal.App.4th 773, 792.) [D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] (People v. Giminez (1975) 14 Cal.3d 68, 72.)

The trial court concluded the scope and nature of the change in Vanessas testimony was such that affording the defense additional time to investigate when her class began on July 30, 2002 and, if different than her testimony, to allow further cross-examination on the issue, provided an adequate remedy for the prosecutions failure to timely disclose it. We agree. Defense counsel agreed with the courts proposed remedy, but failed to inform it of his investigators difficulties in verifying Vanessas class schedule until Monday morning. The court could well have concluded the defense failed to make an earnest attempt to obtain verification of when the class began.

Contrary to defendants claim, the change in Vanessas testimony did not destroy his defense. Both parties agreed the burglary occurred sometime before

2:00 p.m., because Vanessa testified she first noticed the removal of the bathroom windows screen and the movement of the nearby planter when she went out to the pool around 2:15 p.m. The defense argued Martinezs testimony supported an inference defendant had climbed over the wall that day, but not until after 3:00 p.m. While Vanessa now claimed she remained out by the pool until 4:30 p.m., she also admitted going back and forth from the pool to the house several times that afternoon. Further, Martinezs testimony was only of limited assistance in resolving the crucial question of defendants whereabouts before 2:00 p.m. Martinez claimed he worked until 10:30 or 11:00 a.m. on July 30, came home and took a nap, then drove to Santa Ana to pickup his son, not returning home until 1:00 or 1:15 p.m.

In fact, Martinezs testimony could also support an inference defendant climbed the wall twice that day. Martinez testified he went into the backyard on two occasions that afternoon, once around 2:00 p.m. and a second time between 3:00 and

3:15 p.m. Each time he asked Isaiah where his father was and each time Isaiah pointed over the wall. The defense argued that, since Martinez later saw defendant walking along the street in front of the Bainbridge residence, it was reasonable to infer he had gone around to the front of the Claytor Circle residence in an unsuccessful effort to seek permission to enter the yard and retrieve the soccer ball. But Isaiahs identical conduct on each occasion also suggests defendant climbed over it on the earlier occasion as well.

Finally, even assuming the trial court should have given CALJIC No. 2.28 as to Vanessas changed testimony, the failure to do so did not prejudice defendant. Ordinarily, to prevail on a contention made on appeal from a judgment of conviction on the grounds of violation of the pretrial discovery right of a defendant, the defendant must establish that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. [Citation.] (People v. Gonzalez (2006) 38 Cal.4th 932, 960; see also People v. Bohannon (2000)

82 Cal.App.4th 798, 806-807.) Regardless of when or how many times defendant climbed over the wall, the defense failed to adequately explain how his fingerprints ended up on two recently washed windows covered by screens that were intact when Seilinger left for work that morning. As will be explained in greater detail below, it was that question, not discrepancies between the testimony of Vanessa and that of Martinez, on which the jury focused during its deliberations.

As for defendants ineffective assistance of counsel claim, his attorney had previously made an unsuccessful motion for mistrial after Bianca testified to her conversation with the male Hispanics outside defendants residence. In light of that ruling and the courts comments about the prosecutions failure to previously disclose Vanessas changed testimony, it was very unlikely the court would have granted a second mistrial request. An ineffective assistance of counsel claim cannot be based on a defense attorneys failure to make a futile motion or objection. (People v. McDermott (2002)

28 Cal.4th 946, 992; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5 [counsel not incompetent because he failed to make a motion for mistrial].)

3. The Trial Courts Modified Instruction on the Element of Entry

a. Background

During deliberations, the jury requested the court provide explanation on the concepts of circumstantial evidence, intent, and inferences. The trial court referred the jury to the previously given standard instructions on these subjects. (CALJIC Nos. 2.00, 2.01, 3.31 & 14.50.)

The next day, the jury simultaneously sent a request for [a] readback of CSIs testimony, especially the area regarding which windows had fingerprints and which sections of the windows had fingerprints, and asked the court to answer the following question: Do we have to have proof that the defendant was inside the residence? (in order to find the defendant guilty.) The court provided the requested readback, and after discussion with counsel, gave the following additional instruction: Any kind of entry, partial or complete, will satisfy the element of entry as referred to in CALJIC 14.50 element #1. In order for there to have been an entry, a part of the defendants body or some instrument, tool or other object under his control must have penetrated the area inside where the screen was normally affixed in the window frame in question, if you were to find that the defendant was the person who removed the screen. Subsequently, the jury returned its guilty verdict.

b. Analysis

Defendant contends the trial court erred in giving the foregoing supplemental instruction on the element of entry for the crime of burglary. He concedes the instruction is an accurate statement of the law, but claims it was not responsive to the jurys question and effectively provided them with a new theory upon which to convict him. Again, we disagree.

The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Penal Code section 1138 declares, After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, . . . the information required must be given . . . . While the trial court has broad discretion to determine in what manner it should respond to a jury request for further instruction (People v. Beardslee, supra,

53 Cal.3d at p. 97), when [t]he question[] asked by the jury [is a] proper legal inquir[y] based upon the facts of the case and the jurors seek guidance in using those facts to reach a proper verdict using applicable law[,] [t]heir question[] c[an] and should [be] answered. [Citation.] (People v. Thoi (1989) 213 Cal.App.3d 689, 697-698.)

The courts original instruction of the jury on the elements of the crime of

burglary merely identified the elements as [a] person entered a building, and at the time of entry, that person had the specific intent to steal . . . someone elses

property . . . . From the jurys questions it was clear they were struggling with the circumstantial nature of the case in general and the type of entry that would support a conviction of burglary in particular. The trial court employed a definition derived from the Supreme Courts decision in People v. Valencia (2002) 28 Cal.4th 1 that, as noted, defendant concedes correctly explained the element of entry. (Id. at pp. 13, 16 [it has long been settled that [a]ny kind of entry, complete or partial, . . . will suffice and there is little doubt that even the minimal entry effected by penetration into the area behind a window screenwithout penetration of the window itselfis the type of entry the burglary statute was intended to prevent].)

In addition, the court took care to limit its response to that element alone. Finally, because there was no direct proof that defendant removed the screens and the prosecution had not presented or argued defendant could be convicted on an aiding and abetting theory, the court modified the instruction to further limit its application to only if [the jury] were to find that the defendant was the person who removed the screen.

Defendant agrees the trial court could have answered the jurys question by either saying No, or just giving the first sentence of the response it did provide to the jury. But in light of the jurys concerns, he does not explain how such a response would have led to a different result. The jury wanted to know if the prosecution needed to prove defendant was inside the guest house to support a conviction. As defendant concedes, a partial entry would suffice. Although defendant claims he might have presented a different defense, he does not identify what theory he could advance. We conclude the trial court properly exercised its discretion under Penal Code section 1138 by providing a modified instruction on the element of entry for the crime of burglary.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.

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