Filed 5/15/23 P. v. Trujillo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RENE PRECIADO TRUJILLO,

Defendant and Appellant.

F084084

(Super. Ct. No. 4006912)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. 

McFadden, Judge.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and 

Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant Rene Preciado Trujillo was charged with, and found guilty by a jury of,

five counts related to an attack on a woman in the early hours of March 31, 2018: 

kidnapping during a carjacking (Pen. Code § 209.5, subd. (a); count II);1 kidnapping with 

intent to commit sexual penetration (§ 209, subd. (b)(1); count III); assault with intent to 

commit sexual penetration by force, copulation by force, or rape by force (§ 220, 

subd. (a)(1); count IV); felony assault likely to produce great bodily injury (§ 245, 

subd. (a)(4); count V); and felony criminal threats (§ 422, subd. (a); count VI). The jury 

deadlocked on one count of oral copulation by force (former § 288a, subd. (c)(2)(A); 

count I)2, a mistrial was declared as to that charge, and count I was dismissed after trial.

The trial court sentenced defendant to a determinate term as follows: the upper 

term of six years on count IV, a consecutive one-year term on count V (one-third the 

three-year middle term), and a consecutive term of eight months on count VI (one-third 

the two-year middle term). The trial court also imposed an indeterminate term of life 

with the possibility of parole on count II; followed by life with the possibility of parole 

on count III, but stayed the sentence pursuant to section 654. The aggregate sentence 

imposed was seven years eight months determinate, followed by a term of life with the 

possibility of parole.

Defendant argues the untimely disclosure during trial of missing pages of a nurse’s 

report violated federal and state law, including his due process rights pursuant to Brady v. 

Maryland (1963) 373 U.S. 83 (Brady), and the trial court erred in failing to grant his 

motion for a mistrial based on these errors. Defendant also maintains the upper term 

sentence on count IV was unlawfully imposed under section 1170. The People dispute 

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Former section 288a was amended and renumbered as section 287, effective January 1, 

2019. (Stats. 2018, ch. 423, § 49.)
3.

the trial court erred in refusing to grant a mistrial, but concede error in the imposition of 

the upper term sentence.

For the reasons explained post, the convictions are affirmed, but we remand for 

resentencing. We conclude the trial court did not err in denying defendant’s request for a 

mistrial. The prosecution’s delayed disclosure did not constitute a prejudicial error of 

federal or state law, and it did not cause any incurable prejudice that only a mistrial could 

properly address. As for the upper term sentence imposed, it was not supported by any 

aggravating circumstances proven or established in conformity with section 1170 and 

resentencing is required.

FACTUAL BACKGROUND

I. The Prosecution’s Case

According to her trial testimony, on Friday evening March 30, 2018, Jane made 

plans to meet with two friends in downtown Turlock to “hang out.” Between 9:00 and 

10:00 p.m., she parked in front of a restaurant/bar called the Dust Bowl; her friends, S.C.

and J.E., were already inside the restaurant. Since the restaurant had closed by the time 

Jane arrived, the three walked to a place called Memo’s where Jane had a Moscow Mule 

drink. When that bar closed, they walked to another bar across the street called Grand 

Cru, and Jane ordered another drink—some type of shot. When that bar closed, the three 

friends walked down the block to a place called the Cantina; they secured a table by 

ordering a bucket of beers. Although none of the three could recall how many beers were 

in the bucket, they each estimated it was comprised of somewhere between 12 to 18 or 24 

regular-sized bottles of beer. Jane could not remember how many beers she consumed at 

the Cantina, but S.C. thought she likely had more than four.

The three left the Cantina before it closed at 2:00 a.m., and they all walked back to 

Jane’s car—a white sedan. They talked for a while at the car, and then Jane felt like it 

was time to go home. She did not remember feeling intoxicated, but she believed that she 

vomited at some point while the men were still talking with her at her car, which J.F. and 
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S.C. both confirmed in their testimony. After both men left, Jane decided she wanted to 

stay in her car for a bit before she tried to drive because she was feeling dizzy, and she 

had vomited on her boots, so she changed into shoes and put on gray yoga pants.

She proceeded to sit in the driver’s seat of her car while using her phone. 

Suddenly, she heard something loud like someone opening and immediately closing a car 

door, and she saw defendant sitting in the front passenger seat—a man she did not know 

and had never seen before. She told him to get out, but he began demanding that she take 

him home, threatening to kill her if she did not, and keeping his right hand by his side—

she thought perhaps he had a weapon. She was scared because no one in her family knew 

where she was: she was living with her parents and had lied and told them she was going 

to work.

Jane drove wherever defendant directed; they reached a dark gravel street, like an 

alley, near what appeared to be an abandoned trailer. Defendant demanded that she get 

out of the car and go into the trailer with him, and when she refused, he became angry 

and aggressive. Although Jane could not remember the exact sequence of events, 

defendant pulled out a “bubbly” pipe and began smoking while they were in front of the 

trailer. He asked her if she knew what he was smoking and told her it was 

methamphetamine—he grabbed her face, shoved his tongue in her mouth, and blew 

smoke into her mouth. He then started laughing as though it was a joke and said 

something like “‘you just got hooked.’” Defendant also tried to put his hand up her shirt, 

although she blocked him; he touched her breast over her clothing. He kissed her neck 

and put his hand down her pants toward her genitals, touching skin, which was painful. 

He tried to get his hand underneath her underwear, and while his finger did not “go 

completely in” her, it was around the area of her vagina. He began pulling her hair and 

demanded that she “suck on his penis,” which he had exposed. He grabbed her neck and 

forced her face down to his lap. She kept telling him she did not know what to do, and 

then he pulled on her hair and punched the back of her neck. Her mouth made contact 
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with his penis, and she clarified later in her testimony that her mouth was around his 

penis.

At some point, Jane noticed an oncoming truck and she tried to make a sudden 

movement to attract the attention of the driver. Defendant hit her and smashed her head 

into the steering wheel. He put one leg over the console and into the driver’s side floor 

well. She was elbowed in the nose, and he started pulling her hair with so much force she 

thought her “neck was going to pop” if she did not move toward the passenger seat; they 

effectively switched places in the car—he pulled her hair and forced her to move to the 

passenger seat and he moved into the driver’s seat.

Jane could not remember what happened next and she floated in and out of 

consciousness. The next thing she remembered was waking up to a very loud noise and 

discovering the car was in an orchard and against a tree. Defendant started “freaking out” 

and blaming her. The OnStar automated system in her car activated, although Jane’s 

subscription was not current. Defendant became angry and, fearing they were going to be 

located, he broke off the rearview mirror that had an OnStar button, yanking it down and 

pulling wires with it. Then he started hitting Jane on her neck and face, pulling her hair, 

and calling her names. After that, she lost consciousness again and woke up to find the 

car parked at a dairy, where there were a lot of cows—she had no idea where they were.

While in the driver’s seat, defendant was speaking Spanish to a man who 

apparently worked at the dairy. Defendant asked the man why he was not answering his 

phone and the man told defendant he was working. Jane did not recognize who 

defendant was talking to, and she did not ask him for any help—she was unsure if he and 

defendant were “working together.” Defendant asked the man for some gas or a gas card, 

and the man said to wait until “they” leave and pointed to the nearby mobile home.

Defendant then decided to leave the dairy and drove down the street. They made 

it to the end of the road and the car ran out of gas. Jane saw a woman outside of a 

house—later identified as I.A.—and Jane told defendant she was going to walk across the 
6.

field and ask for gas; he let her get out and Jane ran toward I.A. She told I.A. she had 

been kidnapped and asked her to call 911. I.A. seemed hesitant to help, so Jane hid 

behind a clothesline and called 911 from her own phone, which she had been able to get 

back from defendant during the night after he had grabbed it from her. Another neighbor, 

L.E., confirmed she saw Jane in a car with a man who was in the driver’s seat; the car 

was stopped on the side of the road. When Jane left the car, the man followed her. L.E. 

thought it looked like they were “having words” or that something was going on, and 

L.E. saw the man follow Jane as she ran across the field. When the man approached I.A., 

she told him to let Jane go with her family, gave him a container to put gas in, and told 

him to leave. R.B., who was also a neighbor, saw Jane across the street distraught and 

crying, and he saw a man go to a white car, put a gas can on top of it, and then the man 

got picked up by someone in a truck.

Jane’s 911 call was played for the jury. Jane told the dispatcher she had been 

kidnapped by a man who had beaten her and threatened to kill her. She said the man was 

currently standing by her car, described what he was wearing, and that he was leaving in 

a blue truck with a driver she could not identify. She said she needed an ambulance 

because her assailant had knocked her out and she had a headache. She told the 

dispatcher she had “just got off of work” and had gone into Turlock to see some friends, 

although she admitted at trial that was not true—she told the dispatcher that because she 

had told her parents she was going to work, and she did not want them to find out she had 

lied to them. She did not mention anything about a sexual assault to the dispatcher.

A few minutes after Jane called 911, Merced County Sheriff’s deputy Ibarra-Perez 

stopped a blue truck in which defendant was a passenger. The stop was recorded and 

played for the jury. Defendant had scratches on his head, neck, ear, chest and arms. 

When Ibarra-Perez asked defendant why he was “all cut up,” defendant related a story 

about a drunk woman he met at a bar the day before. Defendant said he told the woman 

not to drive, but she insisted on going home, started arguing with him, and she had 
7.

“wrecked her car.” He said all his scratches were from “just tryin’ to fend her off you 

know.” A search of defendant revealed several items including a condom, hand lotion, a 

pocketknife, and a glass pipe.

After defendant was detained, Ibarra-Perez interviewed Jane. She told the deputy 

that defendant had entered her car while it was parked in front of the old Dust Bowl; she 

said she had gotten off work early and was headed home. She explained how defendant 

threatened to kill her and had beaten her several times during the night while in the car, 

and that he had grabbed her face and hair, stuck his tongue in her mouth, and blew smoke 

into her mouth. She also said defendant kept telling her she was beautiful and that he 

tried to touch her, including putting his hands into her pants.

Ibarra-Perez then went to interview defendant again, which was also recorded and 

played for the jury. Defendant repeated that he had noticed Jane was intoxicated and 

vomiting, and then saw her get into her car around 2:00 a.m. He thought she should not 

drive, so he took the keys from her after she refused not to drive drunk; however, he also 

asked her for a ride. They got into a physical altercation, and she scratched him, but 

defendant denied that he punched her, and he did not know how she got the injuries to her 

face. Defendant admitted smoking methamphetamine in Jane’s car.

Jane was transported to Emanuel Medical Center, and the lead investigator, 

Sergeant Watson, interviewed her there. Jane told Watson she had gone to Turlock to 

meet with some friends after she decided not to go to work; while she waited for them, 

she had one drink. When the friends did not show, she started to head home and saw 

some people she knew and talked to them for a bit in front of her parked car. When those 

friends left, defendant got into her car. She described that defendant tried to sexually 

assault her in details that were generally consistent with her trial testimony, but she did 

not say that his penis touched her lips or went into her mouth—she said he pushed her 

head toward his exposed penis, which she squeezed defensively and hit him in the side. 
8.

She also told Watson that when defendant put his hand down her pants, his fingers 

penetrated her vagina, but not “fully.”

Jane was then taken to a separate medical center for a forensic medical 

examination. She was examined by a SART (sexual assault response team) nurse, Kiran 

Gill, who documented multiple bruises, abrasions and redness on Jane’s arms, legs, face 

and upper back; there was redness, bruising, nail marks and scratches on her buttocks and 

the top of her tailbone; and there was dried blood in her hair, which was tangled. 

Although Jane noted genital pain, there were no visible injuries to that area, which the 

nurse explained was not unusual for assault victims. Jane could not recall whether she 

had vomited that night, but she reported episodes of choking and loss of consciousness 

while she was with her assailant. She had been punched in the face, elbowed in the nose, 

her head had been “‘slammed’” and her hair “‘yanked.’” Jane reported that, when her 

assailant tried to force her to orally copulate him, Jane had “scratched the assailant[’s] 

face, squeezed [the] assailant’s penis, and tried to hit him.” He had tried to force her 

mouth open, but she kept it closed; while her upper lip touched his penis, Jane told the 

nurse the assailant’s penis was never in her mouth. As such, the nurse marked 

“‘attempted’” oral copulation on the examination form. Jane testified she could not 

remember if she told the SART nurse about the oral copulation, but Jane maintained at 

trial that defendant’s penis was definitely inside her mouth when he forced her head 

down.

Meanwhile, defendant was interviewed again by Watson at the police station; he 

did not know Jane’s name and he denied assaulting, threatening or kidnapping her. When 

asked whether he had any sexual contact with Jane, he said there was “some kissing and 

fooling around.” Watson noticed defendant had scratches on his face, neck and chest, 

and a cut on his finger. A recording of the interview was played for the jury.

Police also searched and photographed Jane’s car. Watson testified the vehicle 

was in a state of disarray. A gas container was found on the front passenger floorboard, 
9.

the rearview mirror was removed, and parts were sitting on one of the seats. Parts of the 

console had been removed and were thrown in the back of the car; floor mats were also 

thrown in the backseat. There was a noticeable smell of vomit, and Watson noticed 

vomit near the doors on the passenger and driver sides of the car.

Watson also obtained video footage from the location where Jane’s car was 

originally parked just before the incident, which was played for the jury. It showed a 

person with the same clothing and of the same stature as defendant getting into the seat of 

what appeared to be Jane’s car parked in front of the Dust Bowl. Watson testified the 

video showed defendant opening the passenger door, looking in, and walking out of the 

camera view; then, a few minutes later, defendant reappeared, opened the passenger door 

and got into the vehicle.

Extracted data from Jane’s phone showed text messages with J.F. and S.C. on the 

evening of March 30, 2018, indicating they were planning to meet in Turlock. Jane’s 

phone showed a call at 10:12 p.m. to S.C. The next data showed a zero-second call to 

S.C. at 6:24 a.m., and a zero-second call received from an unidentified number at 

7:03 a.m. There was an outgoing message sent at 7:58 a.m.; a zero-second call to 911 at 

7:58 a.m.; and another instant message was sent at 8:08 a.m. that said to “call 911.” The 

phone made a nine-second call to S.C. at 8:09 a.m.; and an 11.5-minute call to 911 at 

8:27 a.m.

Watson also examined J.F.’s phone, which showed a message from Jane’s phone 

at 8:27 a.m. that said “‘[c]urrent location’” to which J.F. responded at 8:35 a.m., “‘What 

you send me?’” J.F. sent another text to Jane at 8:49 a.m. asking whether Jane made it 

home. Jane texted back at 9:41 a.m., “‘Don’t want you involved. You weren’t with me 

last night.’” J.F. texted at 9:42 a.m., “‘What happened?’” Jane did not respond. There 

was no similar text conversation on Jane’s phone, indicating it had been deleted between 

the time Jane sent that text message to J.F. and when her phone was turned over to police 

at the hospital.
10.

After reviewing Jane’s phone data, Watson interviewed Jane again on April 4, 

2018, because her original statement about meeting up with friends who had not shown 

up was inconsistent with her phone data, which showed she had planned to meet J.F. and 

S.C. Further, Jane’s statement about only having one drink also seemed incorrect 

because of the vomit found in her car. In the follow-up interview, Jane told Watson she 

did not tell him about planning to meet J.F. and S.C. because of her traditional family—

she knew her parents would not approve. Jane conceded she had more alcohol than she 

originally indicated: she had an additional shot at Memo’s, then another shot at the 

Grand Cru; and then possibly two beers at the Cantina. She had not been forthcoming 

about how much she drank because of her parents. She told Watson that defendant had 

put his hand down her pants, and had gotten his hand inside of her underwear, although 

“his finger didn’t completely go inside,” and it felt like a fist. She confirmed that 

defendant had exposed his penis around the same time he got angry when she tried to 

wave her arm at the oncoming driver in the alley by the trailer, but Jane never said her 

mouth ever touched his penis. Watson testified the first time he heard Jane allege that 

defendant’s penis had been fully in her mouth was at the preliminary hearing, and a copy 

of her preliminary hearing testimony was admitted by the defense. As he did not have 

information from Jane during the investigation that she had ever had oral contact with 

defendant’s penis, Watson elected not to obtain any DNA samples from defendant’s 

penis. He also never had custody of Jane’s full SART exam report completed by Gill. 

The report was two-sided, and only one side was copied.

DNA matching defendant was found on Jane’s face and neck, but no male DNA 

was detected in Jane’s vaginal swabs. Jane’s urine and blood samples were collected on 

March 31, 2018, at 3:52 p.m. and 7:10 p.m., respectively. Urinalysis results showed the 

presence of alprazolam, alpha-hydroxy alprazolam and methamphetamine in 

undetermined amounts. Alprazolam and alpha-hydroxy alprazolam are both central 

nervous system depressants that tend to cause drowsiness. Alprazolam is typically 
11.

ingested as prescription medication taken in pill form, and it can cause memory loss. 

There was no way to determine exactly when or in what amount the methamphetamine 

was ingested. According to the criminologist, it is possible that one inhalation of 

methamphetamine could lead to a positive urine result.

The blood results showed hydrocodone and acetaminophen in undetermined 

concentrations. According to the criminologist, hydrocodone is an opiate, and it slows 

the body down, including a person’s thinking. Acetaminophen is the generic name for 

Tylenol, and it is not uncommon for hydrocodone to be prescribed in a mixture of both 

hydrocodone and acetaminophen. The hydrocodone detected in Jane’s blood was 

minimal and there was no way to determine when or how much she had ingested. Jane 

testified she took over-the-counter medication for headaches, and she used an inhaler for 

respiratory issues; she had been prescribed hydrocodone when she broke her leg in 2016, 

but she did not think she had had any on the date of the incident. She denied any other 

medication or drug use.

The parties stipulated that Jane’s blood-alcohol percentage (BAC) was zero at the 

time of testing. A criminologist testified it was impossible to perform a retrograde 

analysis on levels of BAC unless it is known when exactly the subject “hit zero” percent 

BAC. Assuming someone of Jane’s weight had six standard drinks between 10:00 p.m. 

and 2:00 a.m., that person’s BAC would be expected to be around 0.08 percent at 

2:00 a.m. If this hypothetical person had an additional standard drink between midnight 

and 2:00 a.m., her BAC would be expected to be about 0.10 or 0.108 percent at 2:00 a.m., 

and about zero percent at 8:00 a.m.

II. The Defense Case

A nurse, Lauren Marson, who attended Jane at Emanuel Medical Center around 

11:20 a.m. on March 31, 2018, testified Jane told her she had been sexually assaulted 

after the assailant had entered her car; Jane told Marson she felt perhaps drugs had been 

involved. She said the assailant punched her in the face, her hair was pulled, and her 
12.

head was slammed into parts of the vehicle. She also reported the assailant asked her to 

do drugs out of a pipe, forced his mouth onto hers, and threatened her multiple times. 

Jane did not mention any oral copulation or digital penetration. Jane was then sent to 

Memorial Medical Center, where a SART team would take over for evidence collection.

Jose, I.A.’s son, testified that he worked on a dairy near his parents’ house where 

he saw defendant around 7:00 or 8:00 a.m. on March 31, 2018. He had started work 

when defendant came to the dairy driving Jane’s car. He wanted money for gas, but Jose 

did not have any. The woman with defendant got out of the car and started taking 

pictures or videos of the cows. Then she got in the driver’s seat, defendant got in the 

passenger seat, and they left together.

Dr. Howsepian, an expert in forensic psychiatry and psychopharmacology, 

testified about how alcohol, alprazolam, and hydrocodone each can cause memory 

impairment. Together, these substances can have a synergistic effect. He testified that 

people with memory impairments are more prone to confabulation—filling in memory 

gaps with information from other sources that may or may not be true. Leading questions 

during interviews could be a source of information from which a person may confabulate 

memories that they may sincerely believe to be true. Given hypothetical circumstances 

similar to this case, Dr. Howsepian opined a person in Jane’s position would be at risk of 

confabulating.

III. Verdict and Sentencing

The jury deadlocked on count I, forcible oral copulation, and a mistrial was 

declared as to that count. The jury returned a guilty verdict on all other counts. 

Defendant was sentenced to a determinate term of seven years eight months, followed by 

an indeterminate term of life with the possibility of parole.
13.

DISCUSSION

I. Late Discovery of Gill’s Complete SART Report

Gill’s examination report was not copied correctly by the prosecution team and, as 

a result, only the even-numbered pages of Gill’s report were disclosed to the defense 

prior to trial. The mistake was discovered during Gill’s cross-examination, and a full 

copy of the report was obtained and disclosed to the defense before Gill’s crossexamination resumed. The trial court declined, based on this untimely disclosure, to 

grant defendant’s request for a mistrial. Defendant argues that because the untimely 

disclosure constituted a prejudicial violation of federal and state law and rendered his

trial fundamentally unfair, the trial court’s refusal to grant a mistrial was an abuse of 

discretion.

A. Additional Background

During her direct examination, Gill testified Jane had reported that while she had 

been in the car with her assailant, she had fought him off by scratching his face, 

squeezing his penis and trying to hit him. On cross-examination, defense counsel asked 

Gill what, if anything, Jane had told her about her assailant digitally penetrating her. Gill 

indicated she did not have that page of her report with her, but she could answer the 

question if she had it. It was then that defense counsel discovered this page of the report, 

including all odd-numbered pages, had not been disclosed during discovery—and neither 

the prosecutor, Gill, nor Watson had a complete copy with them in the courtroom. The 

cross-examination was postponed while a complete copy of the report was obtained.

When the full report was obtained over the lunch hour, it was marked “Court’s 

Exhibit No. 1” in proceedings occurring outside the presence of the jury. There were two 

statements on page 3 of Gill’s report of particular relevance to the charges of forcible oral 

copulation, kidnapping and assault. The nurse had recorded that the “[v]ictim felt like a 

fist penetrating her vagina and says she felt and [saw] his finger insert [into] her vagina”; 
14.

and that the “[a]ssailant grabbed victim’s face close to his genitals and forced her to open 

[her] mouth but she kept mouth closed. She felt her upper lip touching his penis.”

Defense counsel requested that reference to the previously undisclosed statements, 

particularly on page 3 of the report, be excluded. Defense counsel also requested a 

mistrial, asserting defendant’s right to effective assistance of counsel was violated and his 

ability to effectively cross-examine witnesses was thwarted. Further, defense counsel 

argued that if the information had been disclosed timely, counsel would have been able to 

craft a better trial strategy, including anticipating questions and testimony—counsel 

asserted the late disclosure “effectively changed [the] defense mid trial.” Counsel noted 

that in opening statements he had not mentioned anything about what Jane told Gill, 

which he argued the jury would notice.

The trial court concluded the statements in the report were “pretty much” the same 

as testimony already given. The trial court pointed out Jane was still subject to recall, 

and defense counsel could question her about the statements she made to Gill: “Basically 

it’s the same statements that were given pretty much before. I don’t see that there’s much 

of anything different. The last course of action that the Court is supposed to resort to is 

to exclude evidence. I’m not going to do that here. [¶] I see you—certainly this wasn’t 

done on purpose. It’s quite obvious that when the discovery was copied it was copied 

just every other page. And both sides could have noticed that. But I don’t see that 

there’s really anything new or different here.” The trial court then offered to give an 

admonition to the jury about the late discovery, but did not exclude the evidence and 

denied the request for a mistrial.

Defense counsel then objected on due process grounds and contended defendant 

was entitled to question the investigators on the quality of the investigation. The court 

pointed out that Watson was still available. The court observed again that if the defense 

wished to recall Jane, she was still subject to recall and could be cross-examined further; 

the trial court reiterated it was denying counsel’s requests.
15.

The trial resumed, and defense counsel then elicited testimony from Gill about 

what Jane told her regarding the oral copulation, including that defendant had forced 

Jane’s mouth open, her lip touched his penis, but his penis never got past her lips. 

Neither defense counsel nor the prosecutor elicited any testimony from Gill about Jane’s 

statement, recorded in Gill’s report, that it felt like a fist penetrating her vagina and that 

Jane saw and felt her assailant insert his fingers into her vagina. Further, the report itself 

was not admitted as evidence.

The following day, after the parties discussed a late-discovery jury instruction off 

the record, the prosecutor objected to the defense’s proposed instruction. The prosecutor 

indicated that if the court was inclined to give the instruction, then the People would seek 

to admit the report through Watson so the jury could consider exactly what was not 

timely disclosed so it had a context for the instruction. Defense argued that admitting the 

full report was more prejudicial than probative under Evidence Code section 352. The 

trial court agreed with the defense, correctly noting Gill had not testified to every single 

detail in the report and, thus, the report itself was not to be admitted. The court ruled the 

prosecutor could question Watson about how the report copies were made and how the 

late disclosure occurred. The court reiterated that it found the untimely disclosure to be 

negligent rather than purposeful, and the jury was intelligent and could “figure it out 

whether they think there was anything there that was that important that wasn’t 

disclosed.”

Watson subsequently testified about the late disclosure of the complete report and 

how copies of it were obtained. After the close of evidence, the trial court instructed the 

jury 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] 
16.

full SART report 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 deliberations, the jury requested the body diagram from Gill’s report 

showing injury areas on Jane’s body (which had been timely disclosed and was used 

during Gill’s cross-examination); and a readback of the trial testimony of Jane, nurse 

Marson, and nurse Gill. The jury was unable to reach any verdict on the forcible oral 

copulation charge, and a mistrial was declared as to that count; the charge was later 

dismissed by the prosecution. 

B. The Parties’ Arguments

In the untimely disclosed portion of Gill’s report, defendant focuses on two 

statements Jane made to Gill relevant to her allegations of digital penetration and oral 

copulation. These statements were inconsistent with Jane’s trial testimony and other 

prior statements and, thus, they were helpful to the defense theory that Jane was not a 

reliable and credible witness. However, defendant claims the defense was unable to 

make effective strategic use of these impeaching statements given their untimely 

disclosure. The statements were not disclosed until after Jane had testified, and 

defendant claims he was unable to cross-examine her effectively; Gill’s report was not 

acknowledged by defense counsel in opening statements, and this undercut the defense 

team’s credibility with the jury; and the late disclosure forced defense counsel to change 

strategy mid-trial—had the report been timely disclosed, defense counsel would have 

been better prepared to ask different questions of Jane and Gill, make different 

objections, and/or anticipate prosecution questions more effectively.

According to defendant, the effects of the delayed disclosure rendered defendant’s 

trial fundamentally unfair in violation of his federal constitutional right to due process

and constituted an incurable Brady error, a prejudicial discovery violation under 

section 1054.1, and it amounted to prejudicially ineffective assistance of counsel under 

the federal Constitution’s Sixth Amendment. Moreover, due to the prejudice caused by 
17.

the delayed disclosure of Gill’s complete report, defendant contends the only adequate 

remedy was to grant his request for a mistrial, which the trial court failed to do.

The People concede the untimely disclosure was a discovery violation under 

section 1054.1, but dispute that it was prejudicial. They also maintain the delayed 

disclosure did not constitute a Brady violation because the report was disclosed at trial 

and was not technically suppressed. The People also maintain the untimely disclosed 

pages of Gill’s report were not material within the meaning of Brady. Specifically, the 

delayed disclosure made no difference in the defense theory of the case—what the 

defense asserted at closing argument was not different from the theory of the case defense 

presented in opening statements. Moreover, the People argue, defendant was able to 

cross-examine both Jane and Gill because the complete report was disclosed before Gill’s 

cross-examination was completed and while Jane was still subject to recall. The People 

point out the trial court gave a curative jury instruction, which effectively informed the 

jury that defense counsel’s failure in opening arguments to mention what Jane told Gill 

was unintentional. According to the People, nothing about the delayed disclosure caused 

incurable prejudice to defendant, and the trial court’s refusal to grant a mistrial was not 

an abuse of discretion.

C. Standard of Review

The denial of a motion for mistrial is generally reviewed for abuse of discretion. 

(People v. Avila (2006) 38 Cal.4th 491, 573.) “‘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. 

[Citation.]’ [Citation.] A motion for a mistrial should be granted when ‘“‘a [defendant’s] 

chances of receiving a fair trial have been irreparably damaged.’”’” (People v. Collins 

(2010) 49 Cal.4th 175, 198.)
18.

“A motion for mistrial presupposes error plus incurable prejudice. ‘“The burden is 

on the accused to establish prejudice where there has been a lack of timely discovery, and 

in the absence of prejudice the judgment must be affirmed.” [Citation.]’” (People v. 

Gatlin (1989) 209 Cal.App.3d 31, 38.) “It is axiomatic that the prejudicial effect of 

errors may be overcome by subsequent corrective action such as the admonishment of the 

jury and that in such event the error may be deemed cured.” (People v. Ryan (1981) 116 

Cal.App.3d 168, 184, abrogated on another ground in Missouri v. McNeely (2013) 569 

U.S. 141, 156.)

D. Analysis

1. No Brady Error

Defendant argues the untimely disclosure constituted a Brady violation that 

necessitated a new trial.

In Brady, the United States Supreme Court held “that the suppression by the 

prosecution of evidence favorable to an accused upon request violates due process where 

the evidence is material either to guilt or to punishment, irrespective of the good faith or 

bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87) “‘Pursuant to Brady,

supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether 

the defendant makes a specific request (id. at p. 87 ...), a general request, or none at 

all ....’ (In re Brown (1998) 17 Cal.4th 873, 879.) ‘For Brady purposes, evidence is 

favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution 

witness. [Citations.] Evidence is material if there is a reasonable probability its 

disclosure would have altered the trial result. [Citation.] Materiality includes 

consideration of the effect of the nondisclosure on defense investigations and trial 

strategies.’” (People v. Verdugo (2010) 50 Cal.4th 263, 279.) “The requisite ‘reasonable 

probability’ is a probability sufficient to ‘undermine[] confidence in the outcome’ on the 

part of the reviewing court.” (In re Sassounian (1995) 9 Cal.4th 535, 544; accord, People 

v. Salazar (2005) 35 Cal.4th 1031, 1050 (Salazar); Kyles v. Whitley (1995) 514 U.S. 419, 
19.

435.) “‘Because a constitutional violation occurs only if the suppressed evidence was 

material by these standards, a finding that Brady was not satisfied is reversible without 

need for further harmless-error review.’” (People v. Verdugo, supra, at p. 279.)

Thus, stated succinctly, there are three components of a true Brady violation: 

(1) the evidence at issue must be favorable to the accused, either because it is 

exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by 

the State, either willfully or inadvertently; and (3) prejudice must have ensued. (Salazar, 

supra, 35 Cal.4th at p. 1043.) In this context, the prejudice inquiry focuses on the 

materiality of the evidence to the issues of guilt and innocence. (Ibid.) Materiality 

requires more than a showing the suppressed evidence would have been admissible, that 

its absence made conviction more likely, or that using it to discredit a witness’s testimony 

might have changed the outcome of the trial. (Ibid.) Rather, the defendant must show a 

reasonable probability of a different result. (Ibid.) On appeal, the defendant bears the 

burden to establish the components of a Brady violation. (Strickler v. Greene (1999) 527 

U.S. 263, 280–282.)

a) Report Contained Favorable Evidence to Defense

There is no dispute the missing pages of Gill’s report had impeachment value with 

respect to Jane: it contained statements by Jane that were inconsistent with other 

statements she made about whether and how the oral copulation occurred and whether

she saw defendant’s digital penetration of her vagina. Thus, this was favorable evidence 

within the meaning of Brady. (People v. Williams (2013) 58 Cal.4th 197, 256 [evidence 

is favorable under Brady if it helps the defense such as by impeaching a witness].)

b) Whether Report Was Suppressed

As for the second Brady element, the People argue the report was not actually 

suppressed within the meaning of Brady because it was disclosed at trial. Defendant cites 

People v. Mora and Rangel (2018) 5 Cal.5th 442 (Mora and Rangel) and argues that in 

cases of delayed disclosure rather than total nondisclosure, the applicable test under 
20.

Brady is whether defense counsel was prevented by the delay from using the disclosed 

material effectively in preparing and presenting the defendant’s case.

In Mora and Rangel, the prosecution failed to disclose a number of documents 

until trial. The high court unambiguously held that “[e]vidence actually presented at trial 

is not considered suppressed for Brady purposes, even if that evidence had not been 

previously disclosed during discovery.” (Mora and Rangel, supra, 5 Cal.5th at p. 467, 

citing People v. Verdugo, supra, 50 Cal.4th at p. 281 & People v. Morrison (2004) 34 

Cal.4th 698, 715.) The high court then cited two federal appellate decisions that analyzed 

Brady claims involving delayed disclosure rather than total nondisclosure. (Mora and 

Rangel, supra, at p. 467.) Those courts considered whether the delay prevented defense 

counsel from using the disclosed evidence effectively in preparing and presenting the 

defendant’s case and concluded no Brady violation had occurred. (Mora and Rangel, 

supra, at p. 467, citing United States v. Devin (1st Cir. 1990) 918 F.2d 280, 289 (Devin) 

& United States v. Scarborough (10th Cir. 1997) 128 F.3d 1373, 1376 (Scarborough).) 

The court then concluded, like Devin and Scarborough, that no prejudice arose from the 

late disclosure. (Mora and Rangel, supra, at p. 467.)

Just as in Mora and Rangel, this case involves an untimely disclosure at trial, 

which is not considered suppression for Brady purposes. Nevertheless, to satisfy due 

process, an untimely disclosure must not be too late for the defendant to make use of any 

of its benefits. (United States v. Warhop (10th Cir. 1984) 732 F.2d 775, 777; United 

States v. Davenport (9th Cir. 1985) 753 F.2d 1460, 1462 [“Disclosure, to escape the 

Brady sanction, must be made at a time when the disclosure would be of value to the 

accused.”].) Thus, untimely disclosure at trial might be considered suppressed within the 

meaning of Brady if the delay caused prejudice. (United States v. Burke (10th Cir. 2009) 

571 F.3d 1048, 1055–1056 [observing majority of federal Courts of Appeals have held 

that while untimely disclosure of Brady material does not constitute a constitutional 

violation in itself, it may violate due process if the defendant can show he was prejudiced 
21.

by the delay].) Ultimately, this second element regarding suppression turns on the 

prejudicial effect of a delayed disclosure, which is encompassed under Brady’s third 

element. For the reasons explained post, the report was neither suppressed nor material 

because the untimely disclosure did not prejudice defendant’s ability to effectively use 

the evidence or prepare his case.

c) Materiality and Prejudice

As noted, the third element under Brady considers the materiality of the 

nondisclosed evidence, which incorporates an analysis of prejudice. (See Salazar, supra,

35 Cal.4th at p. 1050; see also People v. Verdugo, supra, 50 Cal.4th at p. 279 [evidence is 

material under Brady if there is a reasonable probability its disclosure would have altered 

the trial result].) In delayed disclosure cases, to demonstrate materiality and, thus, 

prejudice necessary to establish a Brady violation, a defendant must show what he would 

have done differently had he been given more time to address the Brady evidence, and

specifically how, had the evidence been disclosed earlier, a reasonable probability exists 

that the result of the defendant’s trial would have been different. (McNeill v. Bagley (6th 

Cir. 2021) 10 F.4th 588, 600–601; United States v. Blackwell (6th Cir. 2006) 459 F.3d 

739, 759.)

Similar to Mora and Rangel, Devin and Scarborough, defendant is unable to 

demonstrate to a reasonable probability that earlier disclosure would have created more 

doubt about his guilt or affected the result of the trial. (Scarborough, supra, 128 F.3d at 

p. 1376 [the appellant did not show earlier disclosure would have created any greater 

doubt about the appellant’s guilt or affected the result of the trial]; Devin, supra, 918 F.2d 

at pp. 290–291 [the defendant unable to show that a more effective strategy would likely 

have resulted upon timely disclosure]; Mora and Rangel, supra, 5 Cal.5th at p. 467 

[delayed disclosure of fingerprints report did not result in prejudice to the defendants].)

Defendant argues the delayed disclosure forced his trial counsel to alter the 

defense strategy mid-trial. We are unable to detect any change in strategy after Gill’s 
22.

complete report was disclosed to the defense, nor does defendant articulate an alternative 

theory he was unable to pursue. The defense theory presented to the jury in opening

statements was that Jane was not a reliable or credible witness, in part because she made 

inconsistent statements about what occurred, and this was also the central feature of the 

defense closing arguments. Jane’s statement to Gill that defendant’s penis touched her 

lips, although inculpatory in the sense it supported the forcible oral copulation charge, 

dovetailed perfectly into defense’s opening remarks that Jane had made so many different 

statements and omissions about the oral copulation, counsel had no idea what Jane was 

going to say at trial. Jane’s statement to Gill introduced yet another statement that, while 

consistent with Jane’s statements to Watson that defendant forced her head down toward 

his penis, was inconsistent with Jane’s trial and preliminary hearing testimony that 

defendant’s penis was in her mouth. Indeed, in closing argument, defense counsel made 

effective use of this inconsistency, which complimented counsel’s initial presentation to 

the jury in opening statements.

The other statement Jane made to Gill, which defendant highlights in his 

arguments—i.e., she felt and saw her assailant’s fingers penetrating her vagina—never 

reached the jury: neither the prosecution nor the defense asked Gill any questions about 

this statement. Beyond the fact that this statement never got to the jury, there is no 

indication the discovery of this statement changed anything about the strategy that the 

defense was pursuing before the disclosure, or that it opened the door to a different 

strategy that the defense had no adequate time to pursue. (Devin, supra, 918 F.2d at 

p. 290 [analyzing the effect of delayed disclosure includes whether it altered subsequent 

defense strategy and whether a more effective strategy would have likely resulted with 

timely disclosure].)

Defendant asserts the untimely disclosure precluded him from effectively crossexamining prosecution witnesses, but his assertions lack any specificity about what 

would have been different or how it would have affected the result. (Devin, supra, 918 
23.

F.2d at p. 290 [“A defendant who claims that his hand was prematurely forced by delayed 

disclosure cannot rely on wholly conclusory allegations but must bear the burden of 

producing, at the very least, a prima facie showing of a plausible strategic option which 

the delay foreclosed.”].) Defendant notes Jane had already testified when the completed 

report was disclosed, but Jane was subject to recall and defendant elected not to recall 

her. Defendant maintains recalling Jane would have only further emphasized the 

inculpatory aspects of her statements to Gill, but this argument underscores that the 

defense had little to gain by cross-examining Jane on these inconsistencies. Jane had 

already made other inconsistent statements about whether oral copulation had occurred, 

and she could not remember what she had told Gill about the oral copulation or the digital 

penetration when defense counsel asked her. Once Gill testified about Jane’s statement 

regarding the oral copulation, defendant was able to make full use of the impeaching 

aspects of it in closing argument without confronting Jane about it and emphasizing its 

inculpatory aspect. Defendant generally claims the opportunity to recall Jane was 

insufficient because he would have elected to cross-examine her differently with earlier 

disclosure of Gill’s report. However, he points to nothing specific about Jane’s original 

cross-examination that would have changed with timely disclosure of Gill’s report or how 

there was a reasonable probability any such change in approach would have affected the 

outcome.

As for Gill, she was still undergoing cross-examination when defense counsel 

obtained the complete report, and the defense had a full opportunity to question her about 

what Jane told her. Defendant argues generally that if trial counsel had had the complete 

report timely, he would have been able to shape different questions and better anticipate 

the prosecution’s questions. This assertion is far too conclusory to demonstrate any 

effect on the cross-examination: defendant does not identify any particular objection that 

he could have made but did not, or any question he would have asked but lacked the 

opportunity to do so.
24.

Defendant contends the delayed disclosure undercut the defense team’s credibility 

with the jury because counsel did not inform the jury what Jane told Gill in opening 

statements. Yet, defendant does not demonstrate how the jury instruction regarding the

late disclosure was insufficient to cure this issue as it effectively told the jury that defense 

counsel had not deliberately failed to mention Jane’s statements to Gill.

There is simply no reasonable probability that, had Gill’s complete report been 

disclosed timely, the outcome would have been different. Defendant makes no showing 

what questions would have been asked or objected to had there been more time to 

prepare. While Jane’s credibility was one of the key elements of the prosecutor’s case, 

Jane’s inconsistent statement to Gill about the oral copulation was presented to the jury, 

and defendant was able to make full use of its impeachment value in closing arguments. 

Nor has defendant shown how the untimely disclosure caused a mid-trial strategy shift or 

what alternative strategy he would have pursued with timely disclosure. While defendant 

generally argues he would have done things differently, particularly in regard to 

questions and objections, he does not indicate with any specificity what changes would 

have been made or demonstrate how it would have made a difference to any degree of 

reasonable probability. (See Giglio v. United States (1972) 405 U.S. 150, 766 [new trial 

not required under Brady where newly discovered evidence possibly useful to the defense 

but not likely to have changed the verdict].)

While Jane’s statements to Gill were favorable evidence for the defense based on 

their impeachment value, neither the suppression nor the materiality elements of Brady

are satisfied here. The trial court did not abuse its discretion in failing to grant a mistrial 

due to a Brady error.3

3 Although defendant presents a more general fundamental fairness due process argument 

in addition to his claim of Brady error, the “whole foundation for Brady ... is due process and its 

requirement that an accused be afforded a fair trial.” (People v. Superior Court (Meraz) (2008) 

163 Cal.App.4th 28, 50, fn. 11.) The two analyses overlap in all meaningful respects. For all the 

same reasons the untimely disclosed report was not material evidence for purposes of Brady, the 
25.

2. Other Errors Arising From Late Disclosure Were Not 

Prejudicial

State law also contains independent discovery obligations, which defendant argues 

were prejudicially violated by the late disclosure. Section 1054.1 requires the 

prosecution to disclose to the defense “[a]ll relevant real evidence seized or obtained as 

part of the investigation of the offenses charged” and “[a]ny exculpatory evidence.” (Id.,

subds. (c), (e).) It also obligates the prosecutor to disclose written reports of the 

statements of witnesses the prosecutor intends to call at trial, including expert reports. 

(Id., subd. (f).) Under section 1054.7, “‘[a]bsent 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, supra, 50 Cal.4th at p. 280.) “To prevail on a 

claim alleging violation of discovery statutes, an appellant must show there is a 

reasonable probability that, had the evidence been disclosed, the result of the proceedings

would have been different.” (Mora and Rangel, supra, 5 Cal.5th at p. 467; see People v. 

Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13 [violation of § 1054.1 is prejudicial only 

when reasonably probable, by state law standards, that omission affected trial result], 

disapproved on a different ground in People v. Doolin (2009) 45 Cal.4th 390, 421 &

fn. 22.)

The People concede the untimely disclosure was a violation of state discovery 

laws—Gill’s complete report should have been disclosed at least 30 days before trial. 

(§§ 1054.1, subd. (f) [prosecutor shall disclose relevant witnesses’ written statements or 

reports of witnesses’ statements who the prosecutor intends to call, including reports and 

statements of experts], 1054.7 [required disclosures shall be made at least 30 days prior to 

the trial except for good cause shown].) However, for all the reasons already considered 

regarding defendant’s Brady claim, defendant has not demonstrated there is a reasonable 

late disclosure did not preclude defendant from receiving a fundamentally fair trial, including the 

opportunity to present a complete defense.
26.

probability that, had the evidence been disclosed timely, the result of the proceedings 

would have been different. (Mora and Rangel, supra, 5 Cal.5th at p. 467 [to show 

prejudice arising from violation of discovery statute, the defendant must show there is a 

reasonable probability that, but for the state law discovery violation, the defendant would 

have achieved a more favorable result].)

As already discussed, there is no indication the untimely disclosure forced 

defendant to pursue a different defense strategy mid-trial. The inconsistencies in Jane’s 

statements to Gill fully supported defendant’s existing defense that Jane was an 

unreliable and untrustworthy witnesses, and nothing in defendant’s closing argument 

evidenced the adoption of a new defense theory, nor does defendant articulate a different 

theory he could have pursued had the report been timely disclosed. Defendant was able 

to cross-examine Gill regarding the complete report, and the defense had the ability to 

recall Jane. Defendant points to no questions or objections defense counsel could have 

asked or interposed had Gill’s complete report been disclosed timely.

Defendant cites and relies on People v. Hughes (2020) 50 Cal.App.5th 257, where 

the Court of Appeal concluded that only a mistrial could cure the prejudicial admission of 

an expert opinion and diagrams disclosed for the first time during trial. (Id. at pp. 260–

261.) The untimely disclosure in Hughes involved highly technical expert testimony 

based on mathematical calculations formulated in advance of trial that was very favorable 

to the prosecution. (Id. at pp. 270–271, 278.) The defendant had no adequate 

opportunity to review or rebut the newly disclosed evidence. (Id. at p. 280.) Moreover, 

the testimony related to the critical and disputed issue in the case without which it was 

“unlikely in the extreme” the prosecution would have been able to prove its case. (Id. at 

p. 284). Here, unlike Hughes, the untimely disclosed statements in Gill’s report were 

minimal and revealed two things Jane told Gill during the exam. These recorded 

statements did not constitute an expert’s analysis of complex scientific or mathematical 

data that would require extensive consideration by counsel or another expert to 
27.

effectively rebut. Nor were the undisclosed statements in the report the most compelling 

piece of evidence supporting the heart of the prosecution’s case, as was the situation in 

Hughes. Defendant maintains Jane’s credibility was key to the prosecution’s case, but 

Jane had already made other inconsistent statements about the oral copulation such that 

the impeachment value of the statement she made to Gill was fairly minimal. Most 

importantly, defendant does not explain beyond general assertions how he could have 

more effectively used her statements to Gill to discredit Jane in a way that would have 

likely affected the outcome, or how specifically he could have better ameliorated the 

inculpatory aspects of those statements, had the disclosure of Gill’s report been made 

timely.

Defendant also claims his counsel was ineffective for failing to discover the 

incomplete report before trial, but this claim fails for all the reasons already discussed. 

To be constitutionally ineffective, counsel’s performance must fall below prevailing 

professional norms and there must be a reasonable probability shown that, but for 

counsel’s failings, the result would have been more favorable to defendant. (Strickland v. 

Washington (1984) 466 U.S. 668, 687; accord, People v. Mitcham (1992) 1 Cal.4th 1027, 

1057–1058.) Assuming defense counsel’s performance was deficient, defendant has not 

demonstrated a reasonable probability the result would have been more favorable had the 

disclosure error been discovered by defense counsel earlier.

The trial court did not abuse its discretion in refusing to grant a mistrial based on 

state law discovery errors or based on ineffective assistance of counsel as defendant has 

failed to establish either had a prejudicial effect on the outcome.

3. No Confrontation Clause Violation

Defendant also summarily claims the untimely disclosure of Gill’s complete report 

precluded him from cross-examining witnesses in violation of defendant’s federal 

constitutional right under the Sixth Amendment. Jane, however, was still subject to recall 

when the disclosure of Gill’s report was made, and defendant was free to recall and cross-
28.

examine her about the statements she made to Gill. Moreover, defendant cross-examined 

Gill after the disclosure was made. In such a circumstance, there is no Sixth Amendment 

confrontation clause violation. (People v. Cowan (2010) 50 Cal.4th 401, 463.)

4. Denial of Mistrial Was Not An Abuse of Discretion

Defendant has failed to show any prejudicial federal or state law error arising out 

of the untimely disclosure of Gill’s complete report. While defendant maintains the 

overall fairness of the trial was fundamentally affected by the untimely disclosure and 

caused incurable prejudice, we see no indication of that. The impeachment value of 

Jane’s inconsistent statements to Gill was not profound, nor does defendant explain how 

those statements would have fundamentally changed his cross-examination of Jane or 

altered his trial strategy or preparation in a way that could have affected the outcome had 

he known about them sooner.

Jane’s credibility was a key aspect of the prosecution’s case as no one else 

witnessed exactly what happened while defendant was in Jane’s car, but the two 

additional inconsistencies revealed in Gill’s report—one of which was not even presented 

to the jury after disclosure—did little to diminish Jane’s overall credibility in claiming 

defendant threatened, kidnapped and assaulted her. This was not an identity case. There 

was ample evidence defendant, a total stranger to Jane, got into Jane’s car around

2:00 a.m. after he saw her vomiting and sitting in her car alone: he admitted it to police;

his entry into Jane’s vehicle was captured on a video recording; and moments after Jane’s 

911 call around 8:30 a.m., law enforcement stopped defendant while traveling in a blue 

truck that multiple witnesses had seen him get into after Jane’s car ran out of gas. 

Moreover, Jane always consistently maintained defendant threatened her and 

forced her to drive to a dark alleyway, where he forcibly touched her sexually and beat 

her, fought with her to pull her into the passenger seat, and then drove the car until it ran 

out of gas. Jane did not tell the 911 dispatcher that she was sexually attacked, but the 

dispatcher never asked. Jane told Ibarra-Perez that her assailant placed his hands 
29.

underneath her pants, although she did not mention anything about forced oral 

copulation. Nevertheless, Jane told everyone else she talked to that day that she was 

sexually assaulted—i.e., nurse Marson, nurse Gill and Watson—even if the exact details 

were not entirely consistent. Indeed, that is why Jane was sent to Gill for a sexual assault 

examination.

There was also considerable circumstantial evidence that none of what occurred

after defendant got into Jane’s car was consensual: when law enforcement found Jane, 

she had redness on her face; on medical examination that day, she had bruises, abrasions, 

and redness on her head, ears, back, arms and legs; there were indentation marks like that 

from fingernails on her legs; there was dried blood in her tangled hair. Jane’s car was 

found in a state of disarray—the rearview mirror was ripped down, the console was 

damaged, clothing and items were strewn all over the interior. When Jane got away from 

defendant, she immediately sought help, called 911 and reported that she had been 

kidnapped and beaten. Witnesses and law enforcement noted her demeanor was 

frightened and upset when she reported to them that defendant had kidnapped and beaten 

her.

Moreover, defendant made several damaging statements during police 

questioning. Defendant admitted to law enforcement that he got into Jane’s car, but he 

did not know Jane at all, and that when she refused his entreaty that she not drive drunk, 

he nonetheless asked her for a ride; he admitted he got “high” in Jane’s car, but somehow 

ended up driving the car himself—indeed, he was seen in the driver’s seat by multiple 

witnesses, including at the dairy and where the car ran out of gas; he acknowledged to 

Watson that, despite Jane being a complete stranger, there was a sexual component to 

their encounter—he said they had kissed and “fooled around,” although he denied he put 

his hands down her pants. Defendant’s version of events that he had just been acting as a 

Good Samaritan when he got into Jane’s car was implausible and illogical. While the 

jury deadlocked on the forcible oral copulation count, which required the prosecution to 
30.

prove that Jane’s mouth actually came into contact with defendant’s penis, there is no 

reasonable probability that, with timely disclosure of Jane’s two inconsistent statements 

to Gill, the case could have been presented so differently as to result in a more favorable 

outcome for defendant. (§ 287, subd. (a); CALCRIM No. 1015 [“Oral copulation is any 

contact, no matter how slight, between the mouth of one person and the sexual organ or 

anus of another person. Penetration is not required.”].)

As already noted, while potential prejudice stemmed from defense counsel’s

inability to address in opening statements what Jane told Gill, this was fully mitigated by 

the trial court’s curative jury instruction regarding the untimely disclosure. Based on the 

instruction, the jury knew defense counsel’s omission was unintentional.

Defendant also argues the trial court’s refusal to grant a mistrial was based on an 

incorrect understanding of the facts because the court noted Jane’s statements to Gill 

were “pretty much” the same as testimony already given, although with “[a] little bit 

different detail.” Defendant contends the trial court misunderstood that Jane’s statements 

to Gill contained critical inconsistencies with other statements Jane had made, including 

her trial testimony.

“‘“To exercise the power of judicial discretion all the material facts in evidence 

must be both known and considered, together also with the legal principles essential to an 

informed, intelligent and just decision.” [Citation.]’” (In re Marriage of Martin (1991) 

229 Cal.App.3d 1196, 1200.) We disagree the trial court had a fundamental 

misunderstanding of the facts underlying the motion for a mistrial. The trial court’s 

observation about the similarity of Jane’s statements was made in response to defense 

counsel’s argument that Jane’s statements to Gill were “totally new” and “more detailed 

than anything else that we have” such that defense counsel argued he was being forced to 

change, mid-trial, the entire defense. In context, the trial court was pointing out that 

Jane’s statements to Gill, while inconsistent as to some of the details regarding the oral 

copulation and what she saw with regard to the digital penetration, were consistent with 
31.

Jane’s trial testimony that defendant had forced Jane to orally copulate him and that he 

had digitally penetrated her vagina to some degree. The trial court’s statements do not 

reflect a fundamental misunderstanding of the facts underlying defendant’s motion for a 

mistrial.

In sum, defendant has not demonstrated an incurable error stemming from the 

delayed disclosure of Gill’s report that only a mistrial could cure, and the trial court did 

not err in refusing to grant a mistrial. (People v. Collins, supra, 49 Cal.4th at pp. 198–

199.)

II. Sentencing the Upper Term Under Section 1170

Defendant argues the trial court erred by imposing an upper term sentence on 

count IV under section 1170, subdivision (b) (section 1170(b) or § 1170(b)).

A. Background

Effective January 1, 2022, section 1170(b)(1) provides that “the court, shall, in its 

sound discretion, order imposition of a sentence not to exceed the middle term, except as 

otherwise provided in paragraph (2).” Under section 1170(b)(2), the statute permits a 

court to “impose a sentence exceeding the middle term only when there are 

circumstances in aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and the facts underlying those circumstances 

have been stipulated to by the defendant, or have been found true beyond a reasonable 

doubt at trial by the jury or by the judge in a court trial....” Notwithstanding 

section 1170(b)(1) or (b)(2), “the court may consider the defendant’s prior convictions in 

determining sentencing based on a certified record of conviction without submitting the 

prior convictions to a jury....” (§ 1170(b)(3).)

Defendant was sentenced on March 7, 2022, after this version of section 1170(b) 

went into effect. The trial court specifically asked the parties to be prepared to discuss 
32.

the changes to section 1170(b) at the sentencing hearing.4 The trial court imposed the 

upper term on count IV, assault with the intent to commit sexual penetration based on the 

following aggravating circumstances: (1) numerous felony and misdemeanor convictions 

increasing in seriousness (Cal. Rules of Court, rule 4.421(b)(2)); (2) defendant has served 

a prior term in prison or county jail under section 1170, subdivision (h) (Cal. Rules of 

Court, rule 4.421(b)(3)); and (3) defendant’s prior performance on supervision was 

unsatisfactory (id., rule 4.421(b)(5)).

Defendant argues that none of the aggravating circumstances relied on by the trial 

court to impose the upper term were admitted by him, found true beyond a reasonable 

doubt by a jury, or proven by a certified record of conviction under section 1170(b)(2) or 

(b)(3). Instead, the trial court relied solely on the probation report, which is not a 

certified record. Defendant maintains that without any certified records of conviction as 

required under section 1170(b)(3), the prerequisites necessary for the trial court to impose 

an upper term were missing and the sentence is unauthorized. Alternatively, defendant 

argues, the record is insufficient to support any findings or conclusions about defendant’s 

prior conviction history, and the lack of this necessary evidence cannot be deemed 

nonprejudicial under any formulation of the harmless error test. (People v. Zabelle 

(2022) 80 Cal.App.5th 1098, 1115, fn. 6 (Zabelle).)

The People concede imposition of the upper term was erroneous under state law 

because none of the facts underlying the aggravating circumstances were proven or 

established according to section 1170(b)(2) or (b)(3). Further, the People agree with 

defendant’s alternative assertion that this error cannot be deemed harmless because such 

4 This case does not involve retroactive application of amended section 1170(b), because 

the amended statute was in effect at the time of sentencing. Thus, unlike cases involving 

retroactive application of amended section 1170(b), there is no question whether the discretion 

exercised was informed.
33.

an assessment would require making speculative assumptions about the existence of 

extra-record materials related to defendant’s criminal history.

B. Analysis

“[A]n unauthorized sentence or one in excess of jurisdiction is a sentence that 

‘could not lawfully be imposed under any circumstance in the particular case.’” (In re 

G.C. (2020) 8 Cal.5th 1119, 1130, quoting People v. Scott (1994) 9 Cal.4th 331, 354 

(Scott).) “An unauthorized sentence is just that. It is not subject to a harmless error

analysis. Nor does it ripen into a sentence authorized by law with the passage of time.” 

(In re Birdwell (1996) 50 Cal.App.4th 926, 930.) “This is not merely a matter of 

labeling. Determining whether an error is harmless requires analysis of the facts and 

circumstances of the case, and presumes that there are circumstances under which the 

erroneous sentence can be imposed. Such qualities are antithetical with an unauthorized 

sentence.” (People v. Cabrera (2018) 21 Cal.App.5th 470, 478; see People v. Soto 

(2016) 245 Cal.App.4th 1219, 1235 [restitution fine imposed in violation of § 654 

deemed an unauthorized sentence not subject to harmless error analysis].)

However, not all sentencing errors constitute unauthorized sentences. (In re G.C., 

supra, 8 Cal.5th at pp. 1130–1131.) Sentences that are otherwise permitted by law but 

are imposed in a procedurally or factually flawed manner are not unauthorized. (Scott, 

supra, 9 Cal.4th at p. 354.) In other words, there is a “distinction between a sentencing 

decision that the trial court had the discretion to make, although flawed in some way, and 

one for which it had no legal authority.” (People v. Roth (2017) 17 Cal.App.5th 694, 

704–705.) Thus, a court’s failure to properly articulate its discretionary sentencing 

choices, for example, does not constitute an unauthorized sentence; rather, it is a 

forfeitable legal error. (Scott, supra, at p. 353; In re G.C., supra, at p. 1130 [failure to 

properly designate offense a felony or misdemeanor under § 702 is not an omission that 

causes the sentence to be unauthorized]; People v. Neal (1993) 19 Cal.App.4th 1114, 

1117, 1121 [failure to articulate required reasons for imposing a consecutive sentence 
34.

does not create an unauthorized sentence]; People v. Tillman (2000) 22 Cal.4th 300, 303 

[failure to give reasons for not imposing restitution fine did not amount to unauthorized 

sentence].)

Under former subdivision (b) of section 1170, when a judgment of imprisonment 

was to be imposed and the statute specified three possible terms, the choice of the 

appropriate term rested within the sound discretion of the sentencing court to select the 

term that “best serves the interests of justice.” (§ 1170, former subd. (b).) As the court 

had the authority to select any term of imprisonment in the exercise of its discretion, 

purported error in doing so did not amount to an unauthorized sentence—it was treated as 

a forfeitable legal error based on a flawed or erroneous exercise of the trial court’s lawful 

discretionary choice and a harmless error analysis was applied. (See, e.g., People v. 

Price (1991) 1 Cal.4th 324, 492 [“When a trial court has given both proper and improper 

reasons for a sentence choice, a reviewing court will set aside the sentence only if it is 

reasonably probable that the trial court would have chosen a lesser sentence had it known 

that some of its reasons were improper.”].)

Under newly amended section 1170(b)(1), however, the sentencing court is now 

expressly precluded from imposing an upper term sentence unless specific prerequisites 

are met: (1) the existence of aggravating circumstances the trial court concludes justify 

imposition of a sentence exceeding the middle term; and (2) the facts underlying each of 

these circumstances are admitted by defendant, or have been found true beyond a 

reasonable doubt by a jury or a judge in a court trial. (Id., subd. (b)(2).) Notwithstanding 

section 1170(b)(1) and (b)(2), the trial court may also consider defendant’s prior 

convictions based on certified records. (Id., subd. (b)(3).) If there are no aggravating 

circumstances proven or established under one of these three methods, section 1170(b)(1) 

mandates the “imposition of a sentence not to exceed the middle term ....”

Here, it is undisputed that none of the aggravating circumstances identified by the 

trial court were proven by an admission of defendant, found true by a jury beyond a 
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reasonable doubt, or were based on prior convictions properly established by certified 

records. Instead, the aggravating circumstances all related to defendant’s criminal history 

and were based on facts gleaned solely from reference to a probation report. Even 

assuming each of the aggravating circumstances identified comes within the exception 

for prior convictions under section 1170(b)(3), the probation report does not constitute a 

certified record of conviction.5 (People v. Dunn (2022) 81 Cal.App.5th 394, 401 (Dunn), 

review granted Oct. 12, 2022, S275655.) Absent meeting any of the criteria under 

section 1170(b)(2) or (b)(3), the trial court was without any legal authority to depart from 

section 1170(b)(1)’s preclusion on imposing a sentence exceeding the middle term. 

Where a sentence cannot lawfully be imposed under any circumstance in the particular 

case, it is unauthorized. (Scott, supra, 9 Cal.4th at p. 354.)

The circumstances here are analogous to fully consecutive sentences improperly 

imposed under section 667.6, subdivision (c). Under that statute, the sentencing court 

may, in its discretion, impose a full, separate and consecutive term sentence in lieu of the 

sentence provided under section 1170.1 for each violation of an offense specified in 

section 667.6, subdivision (e), if the crimes involve the same victim on the same 

occasion. (§ 667.6, subd. (c).) In that context, the trial court exceeds its legal authority 

to impose a full, separate consecutive sentence under section 667.6, subdivision (c), if all 

the necessary prerequisites for such a discretionary choice are not met. (See People v. 

Goodliffe (2009) 177 Cal.App.4th 723, 726, 732 [vacating as unlawful trial court’s 

discretionary election to impose fully consecutive sentence under § 667.6, subd. (c), 

because the requirements for that sentencing choice were not satisfied]; see also People v. 

Maharaj (2012) 204 Cal.App.4th 641, 649–650 [finding fully consecutive sentences were 

not unauthorized because although § 667.6, subd. (c), requirements were not met, the 

5 To the extent defendant’s performance on probation supervision is not a circumstance 

that comes within section 1170(b)(3)’s exception for prior convictions, it was neither admitted 

nor found true by a jury beyond a reasonable doubt.
36.

requirements of § 667.6, subd. (d), were and that statute mandated fully consecutive 

sentences].) Since section 1170(b)(1) now precludes the imposition of a term exceeding 

the middle term unless specific prerequisites are met, an upper term sentence imposed in 

the absence of any necessary prerequisites is arguably an unauthorized sentence to which 

a harmless error analysis does not apply.

On the other hand, at least one court has applied a harmless error analysis to 

evaluate an upper term sentence imposed under very similar circumstances. In Zabelle, 

none of the aggravating circumstances the trial court relied on to impose an upper term 

were proper under newly amended section 1170. (Zabelle, supra, 80 Cal.App.5th at 

p. 1114.) The defendant had not stipulated to any of the facts underlying the aggravating 

circumstances, a jury had not found any of them true beyond a reasonable doubt, and 

although the court was permitted to rely on the defendant’s prior convictions, the court 

relied solely on the probation report and not any certified records of conviction. (Ibid.) 

The court concluded this violated state law and reasoned a harmless error analysis under 

Watson applied to assess the prejudice stemming from the violation. (Zabelle, supra, at

p. 1115, citing People v. Avalos (1984) 37 Cal.3d 216, 233 [applying Watson harmless 

error analysis to consider prejudice stemming from improperly considered sentencing 

factor].) The court concluded the state law errors could not be deemed harmless. 

(Zabelle, supra, at p. 1115.) In doing so, the court noted that where the record is 

insufficient to support a trial court’s finding about a defendant’s criminal history—i.e., 

because that finding was based solely on a probation report—it would not presume the

existence of extra-record materials to address the insufficiency. (Ibid., fn. 6.)6

6 Other courts, including this court, have applied a harmless error analysis to assess the 

prejudicial effect of improperly considered aggravating circumstances under amended 

section 1170(b). (See Dunn, supra, 81 Cal.App.5th at p. 411, review granted [applying a 

Watson-style harmless error analysis to assess prejudice from one improperly considered 

aggravating circumstance]; People v. Lopez (2022) 78 Cal.App.5th 459, 465–466 (Lopez)

[applying harmless error analysis adapted under Chapman v. California (1967) 386 U.S. 18 to 

assess prejudice stemming from several improperly considered aggravating circumstances].) 
37.

In the circumstances of this case, we need not decide whether the trial court’s error 

resulted in an unauthorized sentence or whether it is amenable to a harmless error 

analysis as Zabelle concluded. No matter how the error is analyzed, resentencing is 

required. In the case of an unauthorized sentence, the harmless error analysis does not 

apply (People v. Cabrera, supra, 21 Cal.App.5th at p. 478), and remand for resentencing 

is necessary to address the error (People v. Buycks (2018) 5 Cal.5th 857, 893). Upon full 

resentencing, the People will be able to present additional evidence relevant to 

sentencing, such as certified records, for the trial court’s renewed consideration.

Alternatively, if the upper term sentence imposed here is viewed as one otherwise 

permitted by law but imposed in a procedurally or factually flawed manner, then it is a 

forfeitable legal claim subject to a harmless error analysis. (Scott, supra, 9 Cal.4th at 

p. 354.) Here, all three of the aggravating circumstances articulated by the trial court 

related to defendant’s criminal history, but none were properly proven or established 

pursuant to the statute. There is no certainty what the extra-record evidence may 

establish, and any reliance on the probation report to make assumptions about extrarecord evidence is wholly speculative, as the People concede. (Zabelle, supra, 80 

Cal.App.5th at p. 1115, fn. 6.) Moreover, any notion that a trial court’s sole reliance on a 

probation report to make findings under section 1170(b)(3) can be deemed harmless 

subverts the statute and effectively eliminates its certified records requirement. Any 

iteration of the harmless error test applied in this situation indicates prejudice—i.e., a 

However, neither Dunn nor Lopez involved a situation where none of the aggravating 

circumstances were properly considered under state law. When there is at least one aggravating 

circumstance proven or established properly, the trial court has discretion to find an upper term 

sentence is justified. (See Lopez, supra, at p. 467 [“unquestionably the trial court may still rely 

on any single permissible aggravating factor to select an upper term sentence under the newly 

revised triad system”].) However, if there are no aggravating circumstances that are proven or 

established according to sections 1170(b)(2) or (b)(3), section 1170(b)(1) prohibits the trial court 

from imposing an upper term sentence. In this latter circumstance, defendant has posed the 

question whether the sentence is unauthorized because the trial court was wholly without legal 

authority to impose an upper term sentence.
38.

reasonable probability defendant would have obtained a more favorable result absent the 

errors. (See People v. Avalos, supra, 37 Cal.3d at p. 233; compare Zabelle, supra, 80 

Cal.App.5th at pp. 1112, 1115 & Dunn, supra, 81 Cal.App.5th at pp. 409–410, review 

granted, with Lopez, supra, 78 Cal.App.5th at pp. 465–466.) Under these circumstances, 

the imposition of an upper term based on aggravating circumstances considered in 

noncompliance with section 1170(b)(2) and (b)(3) cannot be deemed harmless.

As the sentence prejudicially violates state law and resentencing is required, we do 

not reach the question whether imposition of the upper term also violates defendant’s 

Sixth Amendment right to a jury trial. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 

[“Other than the fact of a prior conviction, any fact that increases the penalty for a crime 

beyond the prescribed statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt.”].)7

DISPOSITION

The convictions are affirmed, but the sentence is vacated. The matter is remanded 

to the trial court for a full resentencing hearing where further evidence and argument may 

be received regarding the sentence to be imposed. (People v. Buycks, supra, 5 Cal.5th at 

7 Defendant argues the upper term sentence is unauthorized, which is an issue not subject 

to forfeiture, and the People do not make a claim of forfeiture. As we have addressed 

defendant’s claim on the merits, we do not reach defendant’s alternative argument that his 

counsel was ineffective in failing to object to the trial court’s reliance on improperly proven or 

established aggravating circumstances.
39.

p. 893 [when part of a sentence is stricken, full resentencing as to all counts is appropriate 

so the court can exercise its discretion in light of changed circumstances].)

MEEHAN, J.

WE CONCUR:

FRANSON, Acting P. J.

PEÑA, J.