Filed 5/16/14 P. v. Jester CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
STEVEN A NTHONY JESTER, Defendant and Appellant. H037592 (Monterey County Super. Ct. No. SS102695A)

A jury convicted defendant Steven A nthony Jester of attempt ing by threat or
violence to deter the performance of an officer’s duty (Pen. Code, § 69) , failing to comply with a lawful order (Veh. Code , former § 2800, subd. (a)), 1 driving under the
influence (DUI) (§ 23152, subd. (a)), and possessi ng marijuana while driving (§ 23222, subd. (b) ). An allegation that he willfully refused to submit to a chemical test (§ 23577 , subd. (a) ) was also found true

. The jury acquitted defendant of making criminal threats ( Pen. Code, § 422)

. The trial court suspended imposition of sentence and placed him on probation. On appeal, defendant c ontends that (1) there was insufficient evidence to support
his former section 2800 and Penal Co de section 69 convictions and the section 23577
enhancement because the prosecution failed to prove the officer acted lawfully; (2) the

1 Further statutory references are to the Vehicle Code unless otherwise noted.2

trial court prejudicially erred in failing to instruct the jury on “the element of lawfulness”
and the elements of crimi nal trespass; (3) the trial court prejudicially misinstructed the jury on “the reach of Penal Code section 69;” (4) the trial court prejudicially erred in giving CALCRIM No. 225 instead of CALCRIM No. 224; (5) the trial court abused its
discretion in allow ing the “surprise testimony” of a 911 caller; (6) his defense counsel was prejudicially deficient; and (7) the cumulative effect of the trial court’s errors denied him due process. Defendant also asks us to i ndependently review the transcript of the in

ca mera hearing on his Pitchess 2 motion for discovery of police officer personnel records , which the trial court denied

. We affirm

.

I. Background California Highway Patrol (CHP) O fficer Ben Grasmuck was on patrol in Big Sur
around 4:4 5 p.m. on December 8, 2010 . He was traveling north on Highway 1 when he
came upon defendant and another man standing on the shoulder i n the middle of the Bixby Bridge

. D efendant was lower ing something over the west side of the bridge as the
other man video recorded his action s. Grasmuck believed that defendant was about to bungee jump from the bridge . He radioed for backup, stopped his patrol vehicle , activated its emergency lights , and told defendant over the P.A. system, “ ‘ Don’t even
think about it ’ . . .

. ‘ Pull your crap up. ’ ” As Grasmuck got out of his vehicle , defendant “jumped up on the bridge railing , ” lost his balance and fell back onto the roadway , and

t hen climbed up again. It “looked like he was going to parachute off the bridge.” Grasmuck put up his hand to stop a n approaching pickup truck because he “was worried about [defendant] falling backwards in front of that truck.” “I was concerned about his safety. I was concerned about traffic safety. I didn’t know what the guy with the camera

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ).3

was going to do

. ” Grasmuck told defendant he would arrest him if he jumped

. Defendant told him, “Sorry, but I gotta do it

. ” “And then he jumped.”
Grasmuck drove to the Bixby Bridge parking area . V ideographer Tyler Mitchell was waiting there for defendant

. When d efendant return ed , Grasmuck arrested him for disobeying a lawful order.
Grasmuck had noticed defendant’s “red and watery” eyes before defendant jumped . He also “smelled a strong odor” of alcohol that he thought came from
defendant

. When he put defendant i n to the patrol vehicle , Grasmuck again noticed “the strong odor of an alcohol ic beverage

. . . .” Defendant’s speech was slurred

. H is “ eyes were red and watery

. ” He was also “loud” and “argumentative

. ” Defendant was “yelling” at Mitchell to film the encounter and “yelling” at Grasmuck that he could not
arrest him for jumping off the bridge

. Grasmuck had made over 1,200 DUI arrests and assisted in about 1,000 more in his 23 years with the CHP . He concluded that defendant
was “ver y intoxicated” and told him he was also under arrest for DUI.
Officer John Correa responded to Grasmuck’s call for backup . Correa did an inventory search of defendant’s black Isuzu Trooper

. He found two baggies of a substance that he recognize d as marijuana i n “the main pocket” of a backpack on the rear

seat of the Isuzu

. Grasmuck transported defendant to the CHP office in Salinas. D efendant was “screaming” insults at him during the 90

- minute drive . “And then he would calm down
for a little while” and ask why Grasmuck arrested him . W hen Grasmuck re peated that
defendant was under arrest for disobeying a lawful order, “for jumping off of the bridge, which is a trespassing charge,” and for DUI, “ that would send him up that ramp again.”
D efenda nt repeatedly threatened to “find [ Grasmuck ] later” and “ fuck [him] up” but then apologized . He offer ed several times to give Grasmuck a free skydiving lesson if he let him go. M ood swings and threats are “not uncommon when you arrest somebody for
drunk driving” but Grasmuck became concerned when defendant threaten ed his family.4

Defendant said , “I’m gonna look you up on Facebook and I’m gonna find you . A nd then I’m going to come to your house, I’m gonna fuck you up.” “I’m going to find you on the internet. I’m gonna find your wife. I’m gonna befriend her and I’m going to fuck her up the ass.”
At the CHP office , Grasmuck told defendant that he was required to take a
chemical test . D efendant “screamed back I wasn’t driving, I was jumping off a b ridge.” Grasmuck read the requirement to defen dant and asked again if he would submit to the test. “And he said no, fuck you.”
Grasmuck testified a t trial about what occurred that day. The jury viewed Mitchell’s t wo videos and examined 28 photographs of the Bixby Bridge area

. Grasmuck explained that t here is no designated trail provid ing public access to th e beach below the bridge

. The area below the bridge and most of the land along Highway 1 in th e area is privately owned. Grasmuck testified that “ a t the time, I thought the only way out was across private property up Bixby Creek . . . . B ut there was another way that was
unknown to me at that time

. ” Defendant returned from the beach that way

. Mitchell testified that defendant called him on Decem ber 8, 2010 from somewhere near Mitchell’s house in Marina and asked if he wanted to go to Big Sur. Defendant appeared “normal” when he drove up a bout 20 minutes later

. Mitchell denied telling
Grasmuck that he smell ed alcohol on defendant ’s breath when d efendant picked him up.
Mitchell had not used alcohol or drugs that day . N either he nor defendant consumed alcohol during the drive to the bridge . Mitchell notice d defendant weaving “a little bit”
as he drove and “maybe veer[ing] from the lane a little bit

. ”
When t hey arrived at the bridge, defendant told Mitchell that there was alcohol in
the truck and offered him some

. Mitchell declined

. He testified that d efendant “ was drinking a lot” for 10 or 15 minut es before he jumped . Defendant downed “multiple” glasses of an alcoholic beverage “[i]n gulps

. ” Mitchell did not recall telling police that5

defendant had nothing alcoholic to drink at the b ridge or that t he y had been there just 10
minutes before Grasmuck arrived

. Correa testified that when he saw defendant’s Isuzu in the Bixby Bridge parking

area , he realized t hat the license plate number and vehicle description matched
information he had heard in a “be on the lookout ” broadcast earlier that afternoon. “I t was the same plate

. ” CHP public safety dispatch supervisor Nicole Stewart authenticated the recording of a 911 call made by Edward Arratia at 2:28 p.m. on December 8, 2010 . The recording was played for the jury . Arratia testified that he was drivi ng south on Highway 1 near Moss Landing . He was “right behind” a black SUV that was “ more than swerving. It was actually gonna cause an accident.” T he driver “kind of lost it” on a curve, braked “really hard , ” and “almost rear

- ended” the car in front of him. The SUV “kind of drifted slightly into the other lane” and “hit the yellow

— the center divider .” Arratia was behind
the SUV from a quarter of a mile north of Moss Landing “ [ p ] retty much [ to ] the

. . . Castroville /Salinas exit

. . . .” The driver “was still continuing swerving” and was “weaving a little bit.” “ He kind a [ sic ] got a little bit better when he got on the straighter road” but “he was still swerving.”
D efendant’s former coworker Leandro Tompkins testified for the defense. Tompkins had known defendant for about five years and had “never” seen him violent.
Defendant testified in his own behalf. He told the jury that he had nothing to drink that day until he “first got to the bridge

. ” He “didn’t even know there was booze in the

ca r.” H e did not recall a near

- collision. He had one or “possibly two” glasses of an alcoholic beverage at the bridge . He drank them “ quickly” because “I’m an alcoholic

. ”
H e was feeling the effects of the alcohol by the time Grasmuck arrived. Defendant
admitted “insulting” Grasmuck during the ride to the CHP office but denied threatening
him or his wife . He labeled Grasmuck’s testimony on that point “a complete fabrication.”6

The jury deliberated for about t hree and a half hours before returning an acq uittal
on the Penal Code s ection 422 count , guilty verdicts on the remaining counts , and a true finding on the enhancement allegation

. The trial court suspended imposition of sentence
and placed defendant on probation. Defendant filed a timely notice of appeal.

II. Discussion
A. S ufficiency of the Evidence
Defendant c laims there was insufficient evidence to support his former
section 2800 and Penal Code section 69 convictions and the section 23577 enhancement
becaus e the prosecution fa iled to prove that Grasmuck acted lawfully

. We disagree. “The law we apply in assessing a claim of sufficiency of the evidence is well
established: ‘ “ ‘ “ [T]he court must review the whole record in the light most favorable to the jud gment below to determine whether it discloses substantial evidence

— that is, evidence which is reasonable, credible, and of solid value

— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ” ’ ” ’ [Citation.] The standard is the same under the state and federal due process clauses. [Citation.] ‘We
presume “ ‘ in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” [Citation.]’ [Citation.]” ( People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) “Reversal .

. . is unwarranted unless it appears ‘that upon no hypothesis whatever is the re sufficient substantial evidence to support [the conviction].’ [Citation.]” ( People v. Bolin (1998) 18 Cal.4th 297, 331 .)
1. Former Section 2800 Conviction
Defendant argues that there was insufficient evidence to support his former
section 2800, subdi vision (a) conviction because there was no evidence that Grasmuck’s
order s to get down from the bridge railing and not to jump w ere lawful. The argument
lacks merit

.7

Former section 2800, subdivision (a) provided in relevant part that “[i]t is
unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer . . . when that peace officer is in uniform and is performing duties pursuant to any of the provisions of this code.” (Former § 2800, subd. (a).) “[T] he expre ss language of section 2800, authorizing traffic officers to make ‘ an order, signal, or
direction ’ the disobedience of which is illegal, is limited to lawful orders, willfully disregarded or disobeyed. ” ( People v. Ritter (1980) 115 Cal.App.3d Supp. 1, 6 ( Ritter ) .)
A “ ‘ l awful order’ [is] a reasonable order made by a traffic officer which is reasonably necessary to aid him in the performance of his duty to enforce ‘the rules of the road. ’ ” ( Id. at p. 4.) CHP officers are peace officers whose primary duty is “the enforcement of any
law relating to the use or operation of vehicles upon the highways, or laws pertaining to the provision of police services for the protection of state officers, state properties, and the occupants of state properties, or both .

. . . ” ( Pen. Code, § 830.2, subd. (a); § 2409.) They “are authorized to direct traffic according to law, and

. . . to expedite traffic or insure safety, may direct traffic as conditions may require notwithstanding the provisions of [the Vehicle] code.” (§ 2410.) “[T] raffic” include s “pedestrians .

. . .” ( § 620.) Here, Grasmuck testified that there is “a road cut [on Highway 1] where you

. . . come down from Hurricane Point and a round the corner and suddenly

. . . you’re just on the southern approach to the bridge.” When he saw defendant and Mitchell on the bridge, Grasmuck’s immediate concerns were “[t]raffic” and “[defendant’s] safety.” He saw defendant “fall back off the bridge rail into the roadway

. ” H e was a lso concerned
about Mitchell . H e “didn’t want [approaching cars] to hit him while they were watching [def endant] and myself.” Grasmuck stop ped his patrol vehicle where it would be most
visible to approaching motorists and activat ed its emergency lights

. He put up his hand to stop oncoming traffic as he walked toward defendant . He instructed defendant to “ g et down” and “ c ome on down.” Grasmuck was expediting traffic and ensuring public safety8

when he ordered defendant to get down from the railing and no t to jump. (§ 2410.)
D efendant was creating a traffic hazard that endangered himself , Mitchell , and passing
motorists. The videos that the jury viewed ma d e this apparent . They show ed a narrow mountain roadway with traffic edging over the yellow line to avoid defendant as he
walk ed on the bridge, not always on the narrow shoulder but sometimes in the roadway

. Defendant’s left arm extended horizontally into the path of traffic at times

. He dropped
his parachute over the railing at the midpoint of the bridge, climb ed onto the rail, f ell back onto the roadway, and then clamber ed back up as Grasmuck approache d with his hand extended to stop oncoming cars. We reject defendant’s assertion that any traffic problems or safety issues were
created by Grasmuck. The video establishe d that defendant created a dangerous
distraction. It show ed him dressed in shorts and a t

- shirt as he balanc ed on the railing with his parachute dangling out of sight below the road way. The parachute harness was not so obvious that it would have been immediately apparent to drivers suddenly confronted with the sight of a man poised precariously on a bridge railing hundreds of
feet above the rocks and beach below. The distraction wo uld have been amplified when defendant suddenly somersault ed off the bridge because motorists would not have seen the parachute that dangled below the roadway and it would not have open ed until
defendant w as out of their sight. Substantial evidence thus supported conclusion s that defendant created a traffic
hazard and that Grasmuck acted within his lawful authority to ensure defendant’s, Mitchell’s, and the public’s safety when he ordered defendant to get down from the railing an d not to jump. (§ 2410 ; Ritter , supra , 115 Cal.App.3d Supp. at p. 4 .) Grasmuck’s orders were lawful. ( Ritter , at p. 4 .) Defendant does not challenge the sufficiency of the evidence to support a conclusion that he willfully failed to comply with
Grasmuc k’s orders . (Former § 2800, subd. (a).) Nor does he deny that Grasmuck was in9

uniform when he issued them. ( Ibid

. ) It follows that sufficient evidence supported defendant’s former section 2800, subdivision (a) conviction. Defendant argues that Grasmuck “unambiguously testified that the sole basis for
his order . . . not to jump was that he thought [defendant] would be trespassing if he landed on the beach.” The record does not support this overbroad assertion. After
Grasmuck testified that his immedia te concerns when he saw defendant and Mitchell on the bridge were “[t]raffic” and “ safety, ” he was asked why he told defendant not to jump

. He re plied that it was “not legal to jump off of that bridge because

. . . at the time, I thought the only way out was across private property

. . . . ” The questioning then
returned to his traffic safety concerns. Grasmuck did not testify that the sole basis for his order was his belief that defendant would have to trespass over private property to get
back to the ro adway, nor can any such conclusion be inferred on this record.

2. DUI Conviction and Chemical Testing Enhancement
D efendant c laims the re was insufficient evidence to support his DUI conviction because Grasmuck did not see him driving. He reasons that this means there was insufficient evidence to support a true finding on the enhancement allegation since his
arrest for DUI was unlawful

. We disagree.
Penal Code former section 836 provide d that “[ a ] peace officer may arrest a person in obedience to a war rant, or . . . without a warrant, may arrest a person when any of the following circumstances occur: [¶] (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence. [¶] (2) The person arrested has committed a felony, although not in the officer’s presence. [¶] (3) The officer has probable cause to believe that the person to be arrested has committed a felony , whether or not a felony, in fact, has been committed.” (Pen. Code, f ormer § 836, subd. (a).) Penal Code former s ection 836 gener ally precludes
warrantless arrests for misdemeanors and infractions not committed in an officer’s

presence but “[t]he Legislature has provided exceptions to this requirement.” ( People v.10

Schofie ld (2001) 90 Cal.App.4th 968, 969 ( Schofiel d ) , disapproved on another ground in People v. Thompson (200 6 ) 38 Cal.4th 811, 82 8 , fn. 3 ( Thompson ).) “ In 1969, the Legislature enacted Vehicle Code section 40300.5, ” which provides in pertinent part that
“ ‘ [i] n addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage

. . . when the following exists: [¶ ]

. . . [ ¶] (e) The person may destroy or conceal evidence of the crime unless immediately arrested. ’ ” ( Schofield , at p p

. 972

- 973 ; § 40300.5, subd. (e) .) The
statute’s reach is not limited to situations in which the defendant intentionally or willfully destroys or conceals evidence . S ection 40300.5, subdivision (e) also “creates an exception to the presence requirement

. . . because evidence will be destroyed by the simple passage of time unless the person is immediately arrested.” ( Schofield , at p p. 974

- 975 ; see Thompson , at pp. 824

- 825 [ holding that the metabolization of alcohol qualified as imminent destruction of evidence justifying warra ntless entry to arrest DUI suspect] .)
T he issue here is whether Grasmuck had “ reasonable cause to believe [defendant] had been driving while under the influence of an alcoholic beverage . . . .” (§ 40300.5,
subd

. (e) ; Schofield , supra , 90 Cal.App.4th at p. at p. 970.) H e did. He saw defendant climb onto the bridge rail, lose his balance , and fall back into the roadway . He noticed defendant’s “red and watery” eyes and detected a strong odor o f alcohol that he initially thought and later confirmed came from defendant. He observed that d efendant was “argumentative” and “ loud , ” that his speech was slurred, and that he was “somewhat”
incoherent. A mple evidence thus supported a conclusion that defendant was “very intoxicated.” Ample evidence also sup ported a conclusion t hat defendant had driven to the bridge in that condition. Mitchell told Grasmuck that he smelled alcohol on defendant’s breath when defendant picked him up in Marina, that defendant drove them11

to the bridge , that they did not drink al cohol in the car, and that defendant had nothing to drink after they arrived at the bridge. Because Grasmuck had “ reasonable cause to believe that [defendant] had been driving while under the influence of an alcoholic beverage . . . ,” the DUI arrest to preserve evidence that might otherwise have be en destroyed was lawful. ( § 40300.5, subd. (e); Schofield , supra , 90 Cal.App.4th at p. at p. 970.) Because the DUI arrest was lawful, defendant was required to submit to chemical testing . ( § 23612 , subd. (a) (1)(A) [“A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for any offense alleged ly committed in violation of Section . . . 23152 . . . .”] .) Section 23577 provides that “[i] f any person is convicted of [DUI] , and at the time of the arrest leading to that conviction that person willfully refused a peace officer ’ s request to submit to

. . . the chemical test or tests pursuant to Section 23612 , the court shall impose [certain enhancements].” (§ 23577, subd. (a).) “ The willful refusal or failure to complete the chemical test required pursuant to Section 23612 shall be pled and
proven. ” (§ 23577, subd. (b).) Here, Grasmuck testified that he read the chemical testing requirement to
defendant and asked him if he would submit to the test . D efendant “said no, fuck you.” This was plainly a “willful refusal” to complete the test. (§ 23577, s ubd. (b).) Thus,

s ufficient evidence supported the jury’s true finding on the section 23577 enhancement allegation.
3. Penal Code Section 69 Conviction
Defendant argues that there was insufficient evidence to support his conviction for attempting by threat to deter the performance of an officer’s duty (Pen. Code, § 69)
because there was no evidence that he specifically intended to deter Grasmuck’s lawful
conduct. We cannot agree.12

Penal Code s ection 69 prescribes punishment for any attempt “by means o f any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law . . . .” ( Pen. Code, § 69.) “A threat, unaccompanied by any physical force, may support a conviction for the first type of offens e under section 69.” ( In re Manuel G. (1997) 16 Cal.4th 805, 814 ( Manuel G .) .) But the statute requires

m ore than a threat

. ( People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893, 897.) “ Indeed, its central requirement is an attempt to deter th e executive officer .” ( Ibid .) A threat of unlawful violence “is merely the means by which the attempt is made.” ( Manuel G

. , at p. 815.) Penal Code s ection 69 “encompasses attempts to deter either an officer’s immediate performance of a duty imposed by law or the officer’s performance of such a duty at some time in the future. ” ( Manuel G. , at p. 817.) It “does not reach threats made only in

. . . retaliation for an officer’s past performance of his or her duties

. ” ( Id . at p. 817, fn. 6.) “[A] violation of section 69 requires a specific intent to interfere
with the executive officer ’ s performance of his duties

. . . . ” ( People v. Gutierrez (2002) 28 Cal.4th 1083, 1153

- 1154 .)
Defendant insists that specific intent was lacking here because “ [m]entally, he was focused backward in time, responding to or retaliating for [Grasmuck’s] past and illegal conduct in arresting him.” The record does not support this assertion.
Grasmuck testified that defendant’s first threat was delivered as they were “going up Laureles Grade Road.” “He said something like I’m gonna fuck you up. I’m gonna find you later, I’m gonna fuck you up .” D uring the same portion of the drive to the CHP
office in Salinas , defendant offered to give Grasmuck a free skydiving lesso n “ ‘ i f you let
me go

. ’ ” The temporal proximity of the two statements supported a conclusion that
defendant made both with the same intent . That intent was t o get out of the predicament
he found himself in

. The jury could reasonably have concluded from this circumstantial
evidence that when defendant’s effort to bribe Grasmuck failed to effect his release , defendant turned to threats of violence. Substantial evidence thus supported a finding13

that defendant voiced his threats with the requisite specific intent to deter Grasmuck from performing his official duties

. D efendant’s Penal Code section 69 conviction was supported by sufficient evidence

.

B. Claimed Instructional Error s 1. Definition of “ Lawfulness ”
Defendant argues th at his former section 2800 and Penal Code 69 convictions and the true finding on the section 23577 enhancement allegation must be reversed “because the jury received no instruction to guide them in determining the common element of lawfulness.” He maintains that “ [d] ep ending as the trial court did solely on the language of the statutes was inadequate because lawfulness can only be determined by reference to principles of constitutional law governing illegal detentions, unlawful warrantless arrests,
and the use of tainte d evidence derived from them.” We disagree.
Our review is de novo. “ Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe,
is

. . . predominantly legal. As su ch, it should be examined without deference. ” ( People
v. Waidla (2000) 22 Cal.4th 690, 733.)

“ In a criminal case, a trial court has a duty to instruct the jury on ‘ “ ‘ “ the general principles of law relevant to the issues raised by the evidence. ” ’ ” ’ [Citation.] The

‘ general principles of law governing the case ’ are those principles connected with the evidence and which are necessary for the jury ’ s understanding of the case. [Citations.] ” ( People v. Estrada (1995) 11 Cal.4th 568, 574 ( Estrada ).) The trial court has a duty to instruct the jury on the essential elements of the charged offense even without a request by the defendant. ( People v. Cummings (1993) 4 Cal.4th 1233, 1311

. ) Generally, “ ‘ [a] party may not complain on appeal that an instruct ion correct in
law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. ’ ” ( People v. Sully (1991) 5314

Cal.3d 1195, 1218.) “ ‘ [T]he language of a statute defining a crim e or defense is generally an appropriate and desirable basis for an instruction , and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language. ’ ” ( Estrada , supra , 11 Cal.4th at p. 574

. )
D efendant’s assertion that the jury was not instructed on the e lement of lawfulness
is incorrect

. An instruction that tracked the language of CALCRIM No. 2656 told the jury with respect to the former section 2800, subdivision (a) count that “[t]he defendant is charged in Count 4 with failing to comply with a lawful o rder of a uniformed peace officer, in violation of . . . section 2800(a)

. ” (Italics added.) The same instruction told the jury that “[t]o prove that the defendant is guilty of this crime, the People must prove that, one, Officer Grasmuck was a peace offi cer lawfully performing or attempting to perform his duties pursuant to the Vehicle Code ; two, the officer was in uniform; and three, the defendant willfully failed or refused to comply with a lawful order or direction of the peace officer. ” (Italics adde d.) The relevant portion of the instruction on the Penal Code 69 count told the jury that “[t]o prove that the defendant is guilty of this crime, the People must prove that, one, the defendant willfully and unlawfully used violence or a
threat of violence to try to prevent or deter an executive officer from performing the officer’s lawful duty , and two, when the defendant acted he intended to prevent or deter the executive officer from performing the officer’s lawful duty . . . .” (CALCRIM
No. 2651, itali cs added.) The instruction on the section 23577 enhancement allegation
told the jury that the prosecution had to establish that “the peace officer lawfully arrested the defendant . . . .” (Italics added.)
D efendant does not contend that any of the se instructions incorrectly stated the
law. He did not challenge the m below. N or did he request the amplifying or clarifying
instruction that he now urges should have been given

. H is failure to do so forfeited the argument . ( People v. Jenkins (2000) 2 2 Ca l.4th 900, 102 0

- 102 1 ( Jenkins ) [ c ontentions15

that trial court “failed to define adequately what constituted an officer’s lawful performance of his or her duties” and “should have expanded upon the definition of ‘performance of official duties’ ” held “ waive d , because defendant did not request such a clarification below.”].)
Defendant urges that the trial court had a sua sponte obligation to instruct the jury
with CALCRIM No. 2670 . He argues t hat the court’s failure to do so “unconstitutionally
relieved the prosecution of its obligation to prove the essential element of lawfulness beyond a reasonable doubt.” We disagree

. CALCRIM No. 2670 instructs the jury that the People have the burden of proving beyond a reasonable doubt that an officer was lawfully performing his duty and that an
officer is not lawfully performing his duty “ if he . . . is unlawfully arresting or detaining someone” or “using unreasonable or ex cessive force when making or attempting to make an otherwise lawful arrest or detention.” ( CALCRIM No. 2670 .) The b ench n otes state that “[t] he court has a sua sponte duty to give this instruction if there is sufficient
evidence that the officer was not lawfully performing his or her duties and lawful performance is an element of the offense.” ( Bench Notes to CALCRIM No. 2 67 0 (2012 ed.) pp. 597

- 598.) This instruction is in accord with California Supreme Court precedent holding that “[d] isputed facts rel ating to the question whether the officer was acting lawfully are for the jury to determine . . . .” ( Jenkins , supra , 2 2 Cal.4th at p. 1020 ; see also People v. Gonzalez (1990) 51 Cal.3d 1179 , 1217 [ “ disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged

- in

- duty element” ] .) Here, there were no disputed facts relating to the lawfulness of Grasmuck’s actions for the jury to resolve. D efendant did not challenge the lawfulness of Grasmuck’s
order s at trial. Nor did h e challenge the legality of his detention and arrest for r efusing to comply with th ose orders

. He did not challenge the lawfulness of his other arrests or r e ly on a fruit of the poisonous tree theory at trial

. There is no substantial evidence in th e16

record to support any of those theories. “ ‘ [A] trial judge must only give those instructions which are supported by substantial evidence. [Citations.] ’ ” ( People v.
Roldan (2005) 35 Cal.4th 646, 715 ( Roldan ), disapproved on another ground in People v

. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 .) “A party is not entitled to an instruction on a theory for which there is no supporting evidence.” ( People v. Memro (1995) 11 Cal.4th 786, 868 ( Memro ) , overruled on another point in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 .) On this record, the trial court’s obligation to instruct the jury wi th CALCRIM
No. 2 670 , which explains when an arrest or detention is unlawful, was never triggered.
D efendant urges that the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 2670 because “[i]t is undeniably ‘error not to submit all elements of a charged offense to the jury, regardless of the state of the evidence.’ [Citation.]” The argument lacks merit. T he jury was instructed on the elemen ts of each offense. We have determined that absent a request by defendant to augment those instructions and without
sufficient evidence that Grasmuck was not lawfully performing his duties , the trial court had no obligation to instruct the jury with CALCR IM No. 2670. ( Roldan , supra , 35
Cal.4th at p. 715. ) Defendant’s reliance on dictum in People v. Wilkins (1993) 14 Cal.App.4th 761 ( Wilkins ) is misplaced. In Wilkins , t he prosecution relied at trial on exigent
circumstances and consent to justif y a warrantless entry

. ( Id . at pp. 767, 771, 777, fn. 8, 780.) B oth theories were supported by substantial evidence. ( I bid .) T he state of the
evidence in Wilkins thus required sua sponte instruction on exigent circumstances and valid consent as “material constituent[s] of an element necessary for conviction.” ( Id . at p. 777 & fn. 8.) Not so here

. U nlike in Wilkins , there was no substantial evidence to support the sua sponte instruction that defendant claims was required. Wilkins is inapposite.17 2. Pena l Code Section 69 Instructions
Defendant a rgues that “if it had not been obvious to the trial court before,” a jury question during deliberations “should certainly have alerted it to the need to provide more complete instruction” on the Penal Code section 69 count. We cannot agree. The note

s aid , “We need more information about the actions leading to Mr. Jester being charged
with count #1 Penal Code Section 69. When did this off ense take place?” We do not
read the note as a plea for “more complete instruction.” It seek s clarification of the facts , not the law

. Because the jury’s task is to determine the facts, the trial court appropriately responded , “Y ou have heard and receiv ed all the evidence. You can use any and all evidence received during the trial to determine if any conduct or actions by the Defendant

. . . constitute a violation of P.C. 69. ” In his reply brief, defendant asserts that he “argued below ” that the trial court’s failure to instruct the jury sua sponte on “the technical legal terms of ‘trespass,’ ‘lawful,’ and ‘lawfulness,’ all in the context of the officer detaining and arresting [defendant] , and
of [defendant’s] verbal threats related to that conduct, co nstituted prejudicial instructional error in violation of the Fifth, Sixth, and Fourteenth Amendments to the Constitution, subject to Chapman harmless error analysis.” Defendant’s assertion is incorrect. He made no such argument in the trial court, as he expressly concede s in his opening brief on appeal. Even if we assume that he preserved the argument, it is simply another iteration
of his claim that his initial encounter with Grasmuck was an illegal detention that set in
motion a chain reaction that obligated the trial court to instruct the jury sua sponte with CALCRIM No. 2670. We have already rejected that argument.
Defendant claims the trial court prejudicially misinstructed the jury on “the reach
of Penal Code section 69

. . . . ” He quot es snippets of CALCRIM No. 2651 out of context to support his argument that the instruction “made no reference to the essential requirement of lawfulness in the exercise of discretion and the performance of official18

duties.” He contends that t he misinstru ction “allowed the jury to convict [him] even if the officer was ‘performing h is duties ’ unlawfully , or in the past. ” We disagree

. “ ‘ [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular
instruction. ’ [Citation.] ” ( People v . Harrison (2005) 3 5 Cal.4th 208, 252.) “ We presume that jurors are intelligent and capable of understanding and applying the court ’ s instructions. [Citation.]” ( People v. Butler (2009) 4 6 Cal.4th 847, 873.) “ A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the def

enda nt. [Citations.] ” ( People v. Cross (2008) 4 5 Cal.4th 58, 67

- 68 ( Cross ) .) Here, t he court gave the standard instruction. The jury was instructed that “[t] he defendant is charged in Count 1 with trying to prevent or deter an executive officer from
per forming the officer’s duty, in violation of Penal Code [s]ection 69. [¶] To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer’s lawful duty, and two, when the defendant acted he intended to prevent or deter the executive officer from performing the officer’s lawful duty

. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] An executive officer is a government official who may use his or her own discretion in performing his or her job duties. A sworn peace officer is an executive
of ficer. [¶] The executive officer does not need to be performing his or her duties at the time the threat is communicated. [¶] A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct. [¶] S omeone who intends that a statement be understood as a threat, does not have to actually intend to carry out the threatened fact. [¶] A sworn member of the [CHP] is a peace officer.” (CALCRIM No. 2651

. )19

In our view, the structure of the instruction def eats defendant’s argument that it “allowed the jury to convict [him] even if the officer was ‘performing his duties’ unlawfully , or in the past

. . . . ” The instruction first described the elements of the
offense

. It correctly inform ed the jurors that th e prosecution had to prove that defendant willfully and unlawfully threatened an officer in an attempt to deter him “from performing the officer’s lawful dut y” and that he acted with the intent to deter the officer “from performing the officer’s lawful dut y.” In separate and subordinate paragraphs, the
instruction then d efine d “willfully” and “executive officer” and explain ed that the officer
d id n ot have to be performing his duties when the threat was communicated. No rational juror would have interprete d the definition of “executive officer” to suggest that Grasmuck had discretion to perform his duties unlawfully. Nor can the instruction be read to suggest that defendant could be convicted for attempting to deter Grasmuck’s past performance of his duties. It is impossible to deter conduct that has already occurred. Thus, i t is not reasonably likely that the jury would have interpreted the instruction in the way defendant suggests . H is argument fails . ( Cross , supra , 4 5 Cal.4th at pp. 67

- 68.) Defendant complains that the court gave a “truncated” version of CALCRIM
No. 2651. We assume he is referring to the trial court’s omission of optional language
that explain s that “[a] peace officer is not lawfully performing his or her dut ies if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excess ive force in his or her duties)

. . . . ” (CALCRIM No. 2651.) The optional language is appropriate ly included when lawful performance is an issue. (Bench Note s to CALCRIM No. 2651 (2012 ed.) p. 569.) Here, lawful performance was not an issue . Thus, the trial court properly omitted the optional language

.

3

. Circumstantial Evidence Instructions Although b oth sides agreed below that CALCRIM No. 225 (circumstantial evidence: intent or mental state) was the appropriate instruction , defendant now c ontends20

that t he trial court should have given CALCRIM No. 224 (circumstantial evidence: sufficiency of evidence) instead . We disagree. “An instruction on the principles contained in [CALCRIM No. 224] ‘must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt. [Citations.]” ( People v. Rogers (2006 ) 39 Cal.4th 826, 885 ( Rogers ).) “[ B ] u t it should not be gi ven where the evidence relied on is either direct or, if circumstantial, is not equally consistent with a reasonable conclusion of innocence.” ( People v. Heishman (1988) 45 Cal.3d 147, 167 ( Heishman ) ; People v. Wiley (1976) 18 Cal.3d 162, 174

- 176 ( Wiley )

. ) Nor is it required “where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence.” ( People v. Malbrough (1961) 55 Cal.2d 249, 250

- 251 ( Malbrough ) .) “ CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive.” ( People v. Samaniego (2009) 172 Cal.App.4th 1148, 1172 ( Samaniego ) ; 3 see People v. Cole (2004) 33 Cal.4th 1158 , 1222 ( Cole )

. ) “ CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the defendant’s specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.’ [Citation s .]” ( Samaniego , at
p p

. 1171

- 1172 ; see Cole , at p. 1222 .)

a. DUI and Circumstantial Evidence Defendant argues that the trial court should have instructed the jury with CALCRIM No. 224 because “the prosecution relied exclusively on circumstantial

3 “ CALCRIM Nos. 224 and 225 are substantially the same as their predecessors, CALJIC Nos. 2.01 and 2.02. In each pair, the lower numbered instruction informs the jury as to how to consider circumstantial evidence to find the defendant guilty, and the higher numbered instruction informs the jury on how to consider circumstantial ev idence when only the element of mental state or intent has been proven by such evidence. Authorities discussing these CALJIC instructions are therefore instructive with regard to the analogous CALCRIM instructions .” ( Samaniego , supra , 172 Cal.App.4th at p. 1171, fn. 12.)21

evidence ” to prove the DUI charge. The Attorney General disagrees. S he maintains that the prosecution relied primarily on direct evidence

. We agree with the Attorney General.
T o prove the DUI charge, the prosecution had to establish that defendant drove a
vehicle while under the influence of an alcohol ic beverage

. (CALCRIM No. 2110; People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 5.) The prosecution relied primarily

on direct evidence to establish both elements. Arratia’s testimony , the recording of his 911 call, and the computer printout of that call establis hed that the driver of the car Arratia observed on Highway 1 near Moss Landing was impaired in some way , although it did not establish the nature of the impairment . Correa’s testimony established that the
black Isuzu he saw at the bridge was the same car Arratia reported to police

. Defendant
admitted that he was the driver of th at car. Ample direct evidence, including the video s , Grasmuck’s testimony, and defendant’s own admissions , established that defendant was intoxicated at the bridge

. M itchell’s o bservations provided a direct evidence link between defendant’s intoxication at the bridge and his prior driving. Mitchell told Grasmuck that he smelled alcohol on defendant’s breath when defendant picked him up, that he noticed him weaving “a little bit” and “maybe veer[ing] from the lane a little bit” on the drive to the bridge, that t he y did not drink alcohol during the drive , and that defendant had nothing to drink at the bridge

. Thus, t here was sufficient direct evidence to est ablish the elements of the DUI
offense.
C ircumstantial evidence corroborated the conclusion that defendant drove while
under the influence of alcohol . It did so by supporting a reasonable inference that
defendant was under the influence when Arratia encou ntered him. Mitchell’s statement to Grasmuck that he smelled alcohol on defendant’s breath when defendant picked him

up in Marina permitted an inference that the impaired driving Arratia observed near Moss Landing before defendant picked Mitchell up was c aused by intoxication rather than by
some other factor

. The inference was bolstered by Mitchell’s testimony that he did not22

see alcoholic beverages in the car when defendant picked him up and that he noticed defendant weaving “a little bit” and “maybe vee r[ing] from the lane a little bit” on the
remainder of the drive although neither of them drank alcohol in the car

. Defendant’s testimony that he was an alcoholic further support ed an inference that intoxication caused the impaired driving that Arratia reported. Instruction with CALCRIM N o. 224 is not required w here circumstantial evidence is “incidental to, and corroborative of, direct evidence,” as was the case here. ( Malbrough , supra , 55 Cal.2d at pp. 250

- 251.)
Instruction with CALCRIM N o. 224 is al so not required where the evidence relied on, “if circumstantial , is not equally consistent with a reasonable conclusion of innocence.” ( Heishman , supra , 45 Cal.3d at p. 167 ; Wiley , supra , 18 Cal.3d at pp. 174

- 176 .) There was no such consistency here. T he evidence pointing to defendant’s guilt was strong . H e did not suggest an alternate inference to be drawn from any of the circumstantial evidence presented at trial. Instead, he denied having anythi ng alcoholic
to drink before he set out that day. H e testified that he did not recall having difficulty keeping his car from swerving on Highway 1 in the area of Moss Landing . He did not
recall having to brake suddenly or almost colliding with another car. “Defendant’s testimony that he could not remember was not inconsistent with the evidence of guilt.” ( Rogers , supra , 39 Cal.4th at p. 886.) On this record, the circumstantial evidence that the prosecution relied on to prove the DUI charge was not equally susceptible of a reasonable interpretation pointin g to defendant’s innocence

. Instruction with CALCRIM No. 224 was not required. ( Heishman , at p. 167; Wiley , at pp. 174

- 176.) Although he made no such argument at trial, d efendant now arg ues that his impaired driving “was as reasonably attributable to [his] use of his cell phone to call Mitchell, which the other evidence showed occurred at the same time. ” T he record cites
that he relies on refer to the post

- arrest call that he made to Mitchell from the CHP office much later that day. The record does n ot reveal the time of defendant ’s earlier call to Mitchell or where he placed that call from

. The call was brief

. Mitchell testified that23

defendant asked him if he wanted to go to Big Sur and “[t]hat was it.” Mitchell estimated
that defendant arrived at his house in Marina about 20 minutes later. Defendant cites no
other evidence to support his argument.
Th e evidence that defendant relies on does not support a reasonable inference that
his impaired driving was attributable to his cell phone call to Mitc hell. Without more
d etail s , defendant’s assertion is entirely speculative. On these facts, t he trial court had no sua sponte duty to instruct the jury with CALCRIM No. 224. ( Heishman , supra , 45
Cal.3d at p. 167 ; Wiley , supra , 18 Cal.3d at pp. 174

- 176 .)

b. Marijuana Possession and Circumstantial Evidence
Defendant argues that the trial court should have given CALCRIM No. 224
because “the prosecution relied exclusively on circumstantial evidence” to prove the marijuana possession charge

. The Attorney Gen eral counters that while circumstantial evidence was used to prove the charge, “the only issue was whether defendant in fact possessed the marijuana, which was directly dependent on his own assertions that he did not know [it] was in his backpack. Thus, t he question was one of knowledge, properly invoking the mental state instruction under CALCRIM No. 225.” We agree with the Attorney General. To establish defendant’s violation of section 23222, subdivision (b), the prosecution had to prove (1) that he pos sessed a controlled substance, (2) that he knew of its presence, (3) that he knew of its nature or character as a controlled substance, (4) that he knew the controlled substance was marijuana, (5) that the controlled substance was in a usable amount, and ( 6) that he possessed it while driving a motor vehicle. (CALCRIM No. 2304.) Direct evidence establishe d all but the knowledge element. Correa testi fied that he found two baggies containing what he recognized as marijuana in a backpack on
the back seat of defendant’s Isuzu

. Department of Justice criminalist Rachel Frase
testified that the substance tested positive for marijuana and constituted a usable quantity

. Mitchell testified that the backpack in which the marijuana was found was in the back24

seat of the Isuzu when defendant picked him up in Marina and that he “believe[d]” the backpack belonged to defendant. Defendant and Mitchell testified that defendant drove
alone in the Isuzu to Mitchell’s house in Marina and then dro ve them both to the Bi xby Bridge

. Neither defendant nor Mitchell was asked about the marijuana at trial. The prosecution relied on circumstantial evidence to establish defendant’s knowledge of its
existence and nature . In closing argument, the prosecutor urg ed the jury to “ look at the circumstances and draw a reasonable inference. [¶] One such to be drawn here is that the person who owns the backpack knows what’s in it. This is a backpack that’s in the
backseat [ sic ] of a car he’s driving, has control over. It’s full of his equipment, his jump equipment. That’s his backpack. He has reason to know what’s in it.”
But t hat was not the only reasonable inference to be drawn from the evidence

. Defendant testified that he “assumed” the backpack in the back of the Isuzu belo nged to
his roommate . He said that he “didn’t even know there was booze in the car until we got there and in this backpack, like I said, there was a half gallon of vodka

. . . . ” If the jury
believed defendant’s testimony, it would have supported an infe rence that defendant did not discover the marijuana in the backpack u ntil he arrived at the bridge.
Since t he knowledge elements of the marijuana possession charge rested substantially or entirely on circumstantial evidence that was equally consistent with a reasonable conclusion of guilt or innocence , the trial court properly instructed the jury with CALCRIM No. 225. ( Samaniego , supra , 172 Cal.App.4th at p. 1171; People v

. Yrigoyen (1955) 45 Cal.2d 46, 49.) Because the other elements of the charge rested substantially or entirely on direct evidence, the court did not err in failing to instruct the jury with CALCRIM No. 224

. ( Heishman , supra , 45 Cal.3d at p. 167 ; Wiley , supra , 18
Cal.3d at pp. 174

- 176 .)
We reject defendant’s argument that the failure to give CALCRIM No. 2 24 “could not but violate [his] substantial and fundamental constitutional right to due process.” As25

the California Supreme Court explained in Rogers , “Insofar as the federal Constitution
i tself does not require courts to instruct on the evaluation of circumstantial evidence where, as here, the jury properly was instructed on reasonable doubt [citations],
defendant ’ s claim necessarily rests on the asserted arbitrary denial of a state

- created liberty interest. [Citation.] We doubt the common law right to a circumstantial evidence instruction rises to the level of a liberty interest protected by the due process clause. [Citation.]” ( Rogers , supra , 39 Cal.4th at pp. 886

- 887 .) Here, the jury was properly instructed with CALCRIM Nos. 103 and 220 on the presumption of innocence, the prosecution ’s burden of proof, and reasonable doubt

. Defendant’s due process rights were not violated. ( People v. McKinnon (2011) 54
Cal.4th 610, 677 ; Rogers , sup ra , 39 Cal.4th at pp. 886

- 887.)

C. Admission of 911 Caller’s Testimony Defendant argues that the trial court abused its discretion and violated his right to due process when it denied his motion to exclude Arratia’s “surprise” testimony or, alternatively, to continue the trial. We disagree.
1 . Background Early on the second day of trial and before opening statements were given , the prosecutor informed the trial court that after court the previous evening he learned for the
first time about the “ be on the lookout ” broadcast that Correa heard several hours before
d efendant ’s arrest

. The prosecutor promptly asked Grasmuck to locate the witness whose 911 call triggered the broadcast

. Grasmuck interviewed Arratia later that evening

. The prosecutor represented that “ [t] hat was my first knowledge about the existence of th at witness

. ” He told the court that he had already given t he defense copies of the CAD [computer assisted dispatch] printout and Grasmuck’s supplemental report . H e asked that
Arratia be permitted to testify

. The d efen se moved to exclude the evidence as “late26

discovery,” arguing that the CHP had the information all along and should have included
it in its original report. The trial court responded that “ t hings come up” i n jury trials despite the parties’
best efforts to prepare their cases

. The court remarked that it saw little difference between “the character witness [the defense] provided Friday and this type of witness.”
The court told the defense that i nformation a bout Tomkins was in defendant’s possession ,

“ [s] o you can’t say, well, I didn’t have it but my client had it. Well, [the prosecutor ] didn’t have this information but his investigating officer had it or had access to it.

. . . [¶] I believe both of you i n good faith do your best to prepare your cases and in particular this case, and unfortunately, things come up.” “In a perfect world, I guess we could say, well, we should [have done] all this six months ago

. . . . I just don’t think that’s a very pract ical position for a court to take. [¶]

. . . I don’t think there’s any personal game playing going on. I don’t think either of you intentionally failed to disclose any of this information. [¶] . . . [¶] So the question then becomes how do we remedy is sues of late discovery so neither side is prejudiced and each side has an ability to prepare?”
T he court directed the prosecutor to run a rap sheet on Arratia and provide it to the
defense. The prosecutor also agreed to provide the audio portion of the CAD. The court suggested having Arratia testify subject to recall so that if the defense uncovered anything, “then we can recall him and I’d give you great leeway with your cross

examination.” Defense counsel re jected that suggestion . Defense counsel also rejected a suggestion that Arratia testify last

. The prosecutor offered to make Arratia available for
an intervi ew after lunch but defense counsel said his investigator was not available until “later” that aft ernoon. The prosecutor offered to make Arratia available before trial the following morning

. The court a greed that was an option “but the [d]efense is indicating they are not going to present their case out of order and I’m not going to have three or
fou r hours where w e ’re not doing anything on the second day of trial.”27

The trial court learned during a mid

- afternoon break that defense counsel had not yet spoken to his investigator or interviewed Arratia . It stated that “[a] s I told both attorneys in ch ambers, this witness has come down from San Jose and is going to testify today. So I don’t know how to convince you, [defense counsel], that you are going to lose your opportunity to speak with this witness if you don’t avail yourself of the opportunity. I don’t know if I can be anymore [ sic ] clear on this topic.” The court reminded the defense that the prosecutor had agreed to stipulate to any impeachable offenses or crimes of moral turpitude “so as not to put you in a position of not being able to obtain any certified copies of convictions.” The court a sked if the defense would be
interested in a n Evidence Code section 402 hearing . C ounsel replied, “I’d rather have five minutes to call my i nvestigator

. ”
After Tompkins testif

ied, the court told the jury to take another break. Upon learning that d efense counsel and his investigator had interviewed Arratia but had not yet
listened to the one

- minute recording of the 911 call, the court stated

. “We’ve spent more time in this trial off the record than on the record. I am at my wit’s end, quite frankly. I
think it ’ s disrespectful to the jury . . . . [¶]

. . . I have tried to make accommodations. This gentleman from San Jose has been here. No one’s talked to him because we wanted to wait for an investigator who was out of town. We offered to do a 402 hearing [and] to do it on the record if you didn’t feel comfortable talking to him for making yourself a
witness issue

. [¶] It’s my feeling that the recording of what he said will speak for itself. If you feel after you hear it you need time to call rebuttal witnesses, feel free to do so. But I have no idea why this couldn’t have been done in the last 20 minutes . . . .” When
Arratia finall y took the stand , d efense counsel declined to cross

- examine him.
2 . Analysis California’s reciprocal discovery statute “ requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence

‘ in the possession of the prosecuting attorney or [known by] the prosecuting attorney .

. .28

to be in the possession of the investigating agencies. ’ ” ( People v. Zambrano (2007) 41 Cal.4th 1082, 1133, disapproved on another ground in People v. Doolin , supra , 45
Cal.4th at p. 421, fn. 22 ; Pen. Code, § 1054.1.) Evidence subject to disclosure includes “[t] he names and addresses of persons the prosecutor intends to call as witnesses at trial ” and “[r] elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . .” (Pen. Code, § 1054.1, subds. (a), (f).) The disclosures must generally be made “ at least 30 days prior to the
trial ,” but “[i]f the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately

. . . . ” (Pen. Code, § 1054.7.) On a showing that a party has not complied with its obligations under the statute and that the moving party h as complied with its own obligations , a court may make any order necessary to enforce its provisions, “ 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. ” (Pen. Code, § 1054.5, subd. (b).) T he court may prohibit the testimony of a witness “ only if all other sanctions have been exhausted. ” (Pen. Code, § 1054.5,
subd. (c).) “[P]rohibiting the testimony of a witness is not an appropriate discovery sanction in a criminal case absent a showing of significant prejudice and of willful conduct.” ( People v. Gonzales (1994) 22 Cal.App.4th 1744, 1747 , 1758 ( Gonzales ) .)
The trial co urt did not abuse its discretion in denying defendant’s motion to exclude Arratia’s testimony

. The prosecutor sent Grasmuck to locate and interview Arratia almost immediately after he learned about the 911 call . H e disclosed the CAD printout and Grasmuck ’s supplemental report soon after. (Pen. Code, § 1054.7.) T he trial court expressly found that t he re was “no personal game playing” and no intentional failure to disclose evidence. ( Gonzales , supra , 22 Cal.App.4th at p. 1758 .) It follows
that there was no violation of the reciprocal discovery statute . ( People v. Hammond (1994) 22 Cal.App.4th 1611, 1624 ( Hammond ) [ where there was “absolutely nothing in29

the record that would support a conclusion of willfulness,” trial court properly found no discovery vi olation and properly permitted prosecution to call previously undisclosed rebuttal witness whose testimony did not became relevant until defense witness
testified. ].) Thus, n o sanction w as warranted. Defendant argues that the trial court abused its discre tion in failing to grant a continuance. We disagree. “Continuances shall be granted only upon a showing of good cause. ” (Pen. Code, § 1050, subd. (e).) When a continuance is sought in the midst of trial, the trial judge

“ ‘ “ must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting
of the motion. ” ’ [Citations.]” ( People v. Samayoa (1997) 15 Cal.4th 795, 840 ( Samayoa ) .) “ ‘ The burden is on [the defendant] to establish an abuse of judicial discretion . . . .’ [Citation.] ‘[A]n order of denial is seldom successfully attacked.’ [Citation.]” ( Pe ople v. Beeler (1995) 9 Cal.4th 953, 1003 , abrogated on another ground
as noted in People v. Pearson (2013 ) 56 Cal.4th 393, 461

- 462 .) Here, the trial court carefully considered the Samayoa factors

. The court gave defendant ample opportunity to prepare to meet the evidence . I t did so without unduly burdening the jury, other witnesses, or the trial process

. Defendant and his investigator had the opportunity to review Arratia’s rap sheet , to listen to the recording of his 911 call,
and to interview him befo re he testified. Defense counsel did not explain wh y he needed
additional time or how that extra time would benefit the defense. No abuse of discretion
appears. ( Samayoa , supra , 15 Cal.4th 795, 840.) Defendant complains that the trial court unfairly ap plied the “identical” standard in allowing the defense to present Tompkins’s testimony and in allowing the prosecution to present Arratia’s testimony. He argues that the court should have taken i nto account that Tomkins was discovered and disclosed “3 or 4 days before jury selection began, and30

almost a week before the witness would be testifying , ” whereas “ [t]he sudden disclosure of Arratia presented a very different and strikingly unfair circumstance . . . .”
We see no a buse of discretion. We are not p ersuaded by defendant’s argument
that “the lapse of time alone

— a whole year

— made the admission of [Arratia’s] testimony unfairly prejudicial” because defendant could have “scant hope” of remembering the cause of his erratic driving. We doubt that defendan t’s memory would
have been sharper had the disclosure been made 30 days ear lier, as the discovery statutes contemplate. (Pen. Code, § 1054.7.) E ven if defendant’s memory had fa ded , t h e defense
could have cross

- examined Arratia about the “e ntirely innocent ” explanation s defendant now suggests caused his erratic driving

. The defense could have asked Arratia about traffic conditions generally. It could have asked him if there was a driver in front of defendant who “might have created a hazard” that required defendant to brake suddenly.
Given Arratia ’s testimony that he was “right behind” defendant from about a quarter of a mile north of Moss Landing “ [ p ] retty much [ to ] the . . . Castroville/Salinas exit,” the
defense could have asked him whether he saw defendant using a cell phone

. The defense chose instead to forego cross

- examination. Defendant argues that a brief continuance “would have revealed the strong exculpatory inferences to be drawn from [Arratia’s] testimony, inferences that might very well have led to [defendant’s] acquittal.” He asserts that he called Mitchell from his cell phone “at about th[e] same time” Arratia saw him driving erratically in the area of Moss Landing . He argues that this evidence supported an “entirely reasonable” inference that he and Mitchell arrived at the bridge at least an hour before Grasmuck did , which gave
them “plenty of time to become intoxicated” at the bridge

. There are a number of problems with this argument. T he record does not reveal
when defendan t called Mitchell or where he called him from . D efendant’s assertion about the timing of his call and the conclusions he draws from that timing are entirely speculative. The record also does not re veal how long defendant and Mitchell remained31

at Mitchell’s house before they left for the bridge. The fact that defendant may have had “plenty of time” to drink at the bridge does not establish that he was not already
intoxicated when he arrived there. We reject defendant’s assertion that a brief

c ontinuance would have allowed his counsel to prepare cross

- examination that would have revealed “strong exculpatory inferences” to be drawn from Arratia’s testimony. To the extent defendant suggests that Brady v. Maryland (1963) 373 U.S. 83 required ear lier disclosure of the 911 call evidence, we reject the contention. “ The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable
to the accused and ‘ material either to guilt or to punishment. ’ [Citations.] ” ( United
State s v. Bagley (1985) 473 U.S. 667, 674.) “ Favorable evidence includes both evidence that is exculpatory to the defendant as well as evidence that is damaging to the prosecution, such as evidence that impeaches a government witness.” ( People v. Uribe (2008) 162 Cal.App.4th 1457, 1471

- 1472 .) Arratia’s testimony was not favorable to the
defense , so the belated disclosure of his identity information was not a Brady violation.
Defendant argues that the trial court’s denial of his motion for a continuance violated his constitutional right to due process and a fair trial. We disagree. The motion was properly denied . T he re is no predicate on which to base a claim of constitutional

error. ( People v. Gurule (2002) 28 Cal.4th 557, 656.)

D. Claimed Ineffective Assistance of Counsel
Defendant c laims his counsel rendered ineffective assistance because he failed to move to suppress “the evidence obtained by the officer through violation of [h is] Fourth Amendment right to be free from unreasonable search and seizure” and also failed “to conduct minimal legal research into the elements of criminal trespass and the element of lawful performance of duties

. ” We disagree. A defendant seeking revers al for ineffective assistance of counsel must prove both deficient performance and prejudice. ( People v. Ledesma (1987) 43 Cal.3d 171, 218;32

Strickland v. Washington (1984) 466 U.S. 668, 687 ( Strickland ).) The first element “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” ( Strickland , at p. 687.) “Second, the defendant must show that the deficient performance prejudiced the defense.” ( Ibid .) A court deciding an ineffective assistance claim does not need to address the elements in order, or even to address both elements if the defendant makes an insufficient showing on one. ( Id . at p. 697.) Defendant cannot show deficient performance here. We have d etermined that Grasmuck’s actions were lawful . D efendant was n ot detained . T here was no basis for a suppression motion. The failure to make a meritless claim is not deficient performance. ( Strickland , supra , 466 U.S. at p. 676.)

E. Denial of Pitchess Motion
Defendant asks us to review the sealed transcript of the hearing on his Pitchess
motion for discovery of police officer personnel records, which the trial court denied. 1. Background
D efendant moved for broad discovery of records from Grasmuck’s perso nnel file , including records relating to “falsifying police reports , tampering with evidence, or
otherwise over

- reaching to make a case

. . . . ” The accompanying declaration of his trial
counsel a sserted t hat defendant disputed Grasmuck’s report of threats made during the
ride to the CHP office and that defendant planned to use any evidence discovered to “to

cross

- examine and impeach Officer Grasmuck at trial.” In lieu of a statement of facts,
defendant referred the court to his counsel’s declaratio n and to Grasmuck’s police report.
The police report’s two

- page summary of the facts described the ride to the CHP
office in Salinas as follows

. “As I was transporting Mr. Jester to the Monterey Area Office, he continually shouted insults at me. After each insult (you’re a cocksucker, you’re a mother fucker, you son of a bitch you didn’t have to arrest me . . . ), he would33

apologize. He would t ry and appeal to my sense of fairness for a few minutes, and he routinely offered to give me a free skydiving lesson. After a few minutes he would become enraged again. Mr. Jester’s mood swings continued throughout the encounter. About halfway to the of

fice, Mr. Jester began to threaten me and my family. He said he would find me on Facebook and find out everything about me. He said he would look me up on the internet and find my wife. He said he would befriend my wife, and then fuck
her in the ass. M r. Jester repeated variations on his threats over and over on our way to the Area Office.” Grasmuck’s report also described what occurred after they arrived at the CHP office . “W h ile completing my paperwork Mr. Jester made a very specific threat.
He sai d he was going to find me, find my family and fuck me up. He was going to use the internet and find out everything about me including where I lived and all of my family members. He said he was going to ‘Fuck up you and your shallow life.’ Because

. . . the tone and intensity of the threat had changed, I charged him with 69PC

— Threats against a peace officer and 422PC

— Terrorist threats.

“ Officer J. Geer, ID 19640, responded to the area office and took possession of Mr. Jester and the marijuana found in his car. Officer Geer transported Mr. Jester to the Monterey County Jail for booking. While en

- route, Mr. Jester related that he didn’t really threaten me, he only said he was going to look me up on Facebook. ” The declaration of defendant’s trial counsel s tated that Grasmuck’s “account of Mr. Jester’s statements is false in material respects. Specifically, Mr. Jester asserts that he never told Officer Grasmuck that he would look him up on Facebook, that he would befriend his wife, or have any type of sexua l contact with her. Mr. Jester never told Officer Grasmuck that he was going to ‘fuck up you and your shallow life. ’ ” “Mr. Jester asserts that those statements were not made and are not true.” At the hearing on the motion, the trial court commented th at defendant’s showing of good cause was insufficient “based on what’s been presented to the Court so far

. ”
D efendant’s trial counsel argued in response that good cause was shown because34

Grasmuck was “the only person” who could provide competent evidence about the
threats , since no one else heard them. “And because of that, we believe that it is important to obtain materials that would reflect on his character and any previous false statements and police report[s] of false testimony that he made.”
The t rial court denied the motion . The court explained that “simply saying I didn’t say exactly that would not be sufficient to even give the Court a basis to start nosing into the personnel file. ” 2. Analysis A criminal defendant has a limited right to dis covery of peace officer personnel
records. ( Pitchess , supra , 11 Cal.3d at pp. 537

- 538; Evid. Code, §§ 1043

- 104 7 ; Pen. Code, §§ 832.5, 832.7

- 832.8. ) “The procedure requires a showing of good cause for the discovery, an in camera review of the records if good cause is shown, and disclosure of information ‘relevant to the subject matter involved in the pending litigation.’ [Citation.]” ( People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) “Good cause for discovery exists when the defendant shows both ‘ “ materiality” to the subject matter of the pending litigation and a “reasonable belief ” that the agency has the type of information sought.’ [Citation.]” ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 ( Warrick ) .) “To show the requested informa tion is material, a defendant is required to ‘establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's ve rsion of events.’ [Citation.]” ( Garcia v. Superior
Court (2007) 42 Cal.4th 63, 71 ( Garcia ) .) “C ounsel ’ s affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. [Citation.] ” ( Ibid .) The good cause thre shold is “relatively low.” ( City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74, 83.) “What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” ( Warrick , at p. 1025.) “Depending on the circumstances of the case, the35

scenario may be a simple denial of accusations in the police report or an alternative version of what might have occurred.” ( Garcia , at p. 72.) “A motion for discovery of peace officer per sonnel records is addressed to the sound discretion of the trial court, reviewable for abuse. ” ( Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Here, defendant posited a specific factual scenario . He asserted that Grasmuck
fa bricated the threats , fa lsified his police report with them, and testified falsely about
them at the preliminary examination “to improperly bolster his case

. ” That scenario was not plausible “when read in the light of the pertinent documents , ” which included defendant’s state ment to Geer that he “didn’t really threaten [Grasmuck but] only said he was going to look him up on Facebook.” ( Warrick , supra , 35 Cal.4th at p. 1025.) Defendant’s statement that he “didn’t really threaten” Grasmuck does not support an
inference that G rasmuck fabricated the threats. It suggests instead that defendant belatedly recognized that his statements to Grasmuck could have been interpreted as
threat s

. Defendant’s statements to Geer undermine d defendant’s assertion through his counsel that Grasmuck falsified his police report. Nowhere in defendant’s counsel’s declaration are defendant’s statements to Geer explained or acknowledged. Defendant does not deny that he made those statements. He
doe s not claim that Geer or Grasmuck fabricated them. He asserts no misconduct at all on Geer’s part . H e did not seek to discover documents from Geer’s personnel file. Defendant’s factual scenario is internally inconsistent because his counsel’s declaratio n contradicts defendant’s own statements to Geer. ( Compare People v. Thompson , supra , 141 Cal.App.4th at pp. 1317

- 1318 [ factual scenario “not internally consistent or complete” where the defendant failed to provide an alternate version of the facts and “d [id] not explain his own actions in a manner that adequately support[ed] his defense”]
with Warrick , supra , 35 Cal.4th at p. 1027 [good cause established by plausible if not entirely convincing alternative v ersion of the facts ; scenario that defense counse l’s36

declaration described was internally consistent where any conflicts with the police report supported the defendant’s allegations that police fabricated facts in the report

. ) Because
defendant failed to describe a specific factual scenario of officer misconduct that was plausible when read in light of the pertinent documents, he failed to establish good cause for the requested discovery. His Pitchess motion was properly denied.

F. Cumulative Error
Defendant contends that the cumulative eff ect of the trial court’s errors deprived
h im of a fundamentally fair trial. As we have found no error, h is claim fails. ( People v. Cooper (1991) 53 Cal.3d 771, 839.)

III. Disposition The judgment is affirmed

.

___________________________ Mihara, J.

WE CONCUR:

_____________________________ Premo , Acting P. J.

_____________________________ Márquez, J

.