Filed 12/17/14 P. v. Vargas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
BENJAMIN VARGAS,
Defendant and Appellant. 2d Crim. No. B247659
(Super. Ct. No. 1369387)

(Santa Barbara County)

Benjamin Vargas was charged with the murder of Vincent Velasquez. A jury
convicted him of the lesser included offense of voluntary manslaughter. (Pen. Code, § 192, subd. (a).) 1 He was sentenced to prison for six years. Appellant contends that the prosecutor violated his constitutional rights to compulsory process and to remain silent. In addition, he contends that the prosecutor failed to comply with discovery requirements
and committed various acts of misconduct. Fi nally, appellant maintains that the trial court lacked jurisdiction to correct a sentencing error. We affirm.

1 All statutory references are to the Penal Code.2 Facts
Prosecution Evidence At about 10:30 p.m., Velasquez and some friends drove to Isla Vista in Santa Barbara County. Velasquez was standing next to their parked car when appellant and Karen Medina walked by. Velasquez said, "[ H]ey, what's up?" Appellant replied, "Hey don't what's up me. You don't know me, Ho mie." "You don't know where I'm from. Don't say what's up to me." Velasquez respon ded, "I can say what's up to you, what's up man[?]" "Just keep on moving. Just keep on going. I don' t know you. Keep on walking with your girlfriend." Velasquez's friend, Velez, was sitting in the driver's seat of the car. He saw appellant walk toward Velasquez. In the car 's rearview mirror, Velez saw appellant "just
fall down." Medina started hitti ng Velasquez in the face and chest. Velez got out of the car, grabbed Medina by the arm, and told her to "just let them fight one-on-one." Medina stopped hitting Velasquez. Velez saw appellant hit Vela squez "in the head, . . . the chest, the side, all over his body, just everywhere." Velasquez fought ba ck and hit appellant in the face and body. They bumped up against a pa rked Mercedes and "then th ey started pushing each other towards [a] little Jeep." At th is point, Velasquez was not hitting appellant, but appellant was hitting Velasquez. Velasquez "was just holding onto [appellant ], grabbing him." Velasquez fell to one knee. Appellant "threw him on the ground" and got on top of him. Appellant hit Velasquez "[a]ll over his ch est." Velasquez did not fight back. Velez told appellant, "It's over," and "jus t pushed him off" Velasquez. Although Velez did not see a weapon, Velasquez was sta bbed 16 times and died as a result of his
wounds.3 Defense Evidence We summarize the testimony of Karen Medina . At the time of trial, Medina was 21 and appellant was 20 years old. Medina had been appellant's girlfriend for five years. Appellant is the father of her child. On the night in question, appellant's sist er, Maria, drove Medi na and appellant to Isla Vista and dropped them off there. While walking on the si dewalk, Medina and appellant passed by Velasquez, who was standing next to a parked car. Velasquez said, "What's up, Homie?" Appellant replied, "[ W]hat's up?" Velasquez responded, "Well, what's up then?" The driver's door of the car suddenly swung open, and appellant looked in the direction of the door. Velasquez hit appellant in the head, causing him to fall. He "hit his head on the gravel street." "[A]s [appellant ] was standing up, [Velasquez] just started hitting him." Appellant was " not doing anything. He's ge tting beat up." Medina was scared because Velasquez "was a lot bigger than [appellant] a nd . . . you could tell that he was really strong." Medina grabbed Velasquez' s arm and tried to pull him away from appellant. Velez grabbed Medina's arm and pulled her to th e side. Velez said, "No. Let them fight one-on-one." Velez repeatedly said, "Fuck hi m up, Vince [Velasquez's first name]. Get him, Vince." Appellant and Velasquez "slamm ed" into a "car on the other side of the street." They "rolled off" the car and fell into the street. Velez wa lked to Velasquez and helped him get up. When appellant stood up, Medina "went straight to him and we just ran, like we were scared." Appellant "was freaking out." Maria picked them up and drove them
to her house. Prosecutor's Alleged Viola tion of Appellant's Right to Compulsory Process Appellant argues that the prosecutor's misconduct violated his constitutional right to compulsory process, i.e., "the right of one accused of a crime to compel the testimony4 of those who have favorable evidence." ( People v. Jacinto (2010) 49 Cal.4th 263, 268.) The alleged misconduct was obtaining a grand jury indictment of appellant's sister, Maria, for being an accessory after the fact to the murder of Velasquez. According to appellant, the indictment "was predicated upon the prosecutor's position that Maria knowingly drove a 'getaway' ca r when she picked up appe llant after the stabbing of Velasquez . . . ." Appellant continues, "A fter the indictment, the attorney for Maria advised appellant's trial counsel that she wo uld invoke her Fifth Am endment rights rather than testify for her brother in his defense." On March 7, 2012, approximately one month before the jury trial began, the indictment of Maria was set aside fo r insufficiency of the
evidence. Based on the alleged prosecutorial misc onduct and Maria's refusal to testify, appellant made a pretrial motion to dismiss th e case or, in the alte rnative, recuse the Santa Barbara District Attorney's Office. Th e trial court denied the motion. At trial Maria did not testify. After the defense rest ed, appellant made a motion to dismiss on the ground that, because of the indictment of Maria, "he didn't get to assert his right to call
witnesses in his own defense." The court denied the motion. "To prevail on a claim of prosecutorial violation of the right to compulsory process, a defendant must establish three elements. ' "First, he must demonstrate prosecutorial misconduct, i.e., conduct th at was 'entirely unneces sary to the proper performance of the prosecutor's duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.' " [Citation.] Second, he must establish the prosecutor's misconduct was a s ubstantial cause in depriving the defendant of the witness's testimony. [Citation.] . . . [T hird], the defendant must show the testimony he was unable to present was material to his defense.' [Citations.]" ( People v. Jacinto
, supra , 49 Cal.4th at pp. 269-270.) Appellant has failed to satisfy the firs t element. He has not shown that the prosecutor committed misconduct in seeking to indict Maria. That the indictment was set5 aside for insufficiency of the evidence does not establish pr osecutorial misconduct. The trial court explained that it had set aside the indictment because "the evidence did not . . . establish [Maria's] prior know ledge of a crime having been committed when she drove, what [the prosecutor] described as the getawa y car." The court fou nd that, although "the charging decision was erroneous as to Ma ria," the prosecutor had not committed misconduct "in the presentation of th e case to the Grand Jury." Appellant has also failed to satisfy th e third element: that Maria's testimony was material to his defense. Ap pellant was required to make, but did not make, "a plausible showing that the testimony of the [unavailable] witness[] would have been material and favorable to his defense, in ways not mere ly cumulative to the testimony of available witnesses." ( United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 873 [102 S.Ct. 3440, 73 L.Ed.2d 1193].) Appe llant claims that Maria would have testified that "she did not see him with a knife that night and that her brother did not carry a knife." But this testimony would have been cumu lative to Medina's testimony. Medina testified that she had not seen a knife that night and that, during the entire time she had known appellant,
she had never seen him in possession of a knife. Even if Maria's testimony were material, "sanctions [would] be warranted . . . only if there is a reasonable likelihood that [her ] testimony could have affected the judgment of the trier of fact. [Citation.]" ( United States v. Valenzuela-Bernal
, supra , 458 U.S. at pp. 873-874.) No such reasonable likelihoo d exists. Maria was not present during the fight between appellant and Velasquez. As previously discussed, her testimony was cumulative to Medina's testimony. Prosecutor's Alleged Violation of Ap pellant's Right to Remain Silent Appellant contends that "the prosecutor committe d misconduct, violating appellant's right to remain silent, when [he] sought to introduce a ppellant's failure to contact or speak with the poli ce after the killing of Velasquez or at the time of arrest." Appellant argues that the prosecutor impr operly asked Medina whether, after the6 shooting, anyone in Maria's car had said, " 'Hey, let's call the police'?" Appellant did not object to the question, and Medina answered, "No." Because appellant did not object, he "forfeited any complaint on appeal regardin g the propriety of [this] question[]." ( People v. Hajek (2014) 58 Cal.4th 1144, 1210.) Appellant claims that the prosecutor improperly asked Medina the following question concerning his conduct when the police confronted him: "[D]id [appellant] turn around or did he walk right up to the polic e and say, 'Take me?' " Medina answered, "No," and appellant objected. The trial court sustained the objection. During a subsequent conference in the court's chambers, the prosecut or explained that he had asked the question because he "was simply trying to get into an area that is listed in a police report that says as soon as the police showed up, [appellant] turned and he walked the other way and then he was arrested." The court responded that the prosecutor's question could "be c onstrued as . . . Griffin error." ( Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].) The trial court admonished the jury: "[Y]ou are specifically instructed to co mpletely disregard any implic ations from the question that was asked and the way it was asked . . . . The objection was sustai ned and you should disregard the question in its entir ety and Ms. Medina's answer." The prosecutor's question was not Griffin error. "In Griffin, 'the high court held the prosecution may not comment on a defendan t's failure to testify.' [Citation.]" ( People v. Tully (2012) 54 Cal.4th 952, 1021.) The pr osecutor's question had nothing to do with appellant's fail ure to testify. Appellant maintains that the question was improper because it sought to elicit evidence of appellant's exercise of his Fift h Amendment right to remain silent. In People
v. Tom (2014) 59 Cal.4th 1210, 1236, our Suprem e Court held "that use of a defendant's postarrest, pre- Miranda silence is not barred by the Fift h Amendment in the absence of custodial interrogation or a clear invocation of the privilege ." (Italics added.) Where the defendant is not subjected to custodial inte rrogation, "the circum stances [must make] it7 clear to the officer that the defendant . . . invoked the privilege against selfincrimination." ( Id ., at p. 1237.) The defendant must "make a timely and unambiguous assertion of the privilege in order to benefit from it." ( Id ., at p. 1215.) The same rule applies where the prosecution seeks to use a defendant's prearrest, pre- Miranda silence. (See People v. Free (1982) 131 Cal.App.3d 155, 165 ["Prearrest silence may be commented upon unless the court finds th e silence was an invocation of Fifth Amendment rights"].) No evidence was pr esented that, when th e police confronted appellant, he clearly invoked his privilege ag ainst self-incrimination. The prosecutor's question, therefore, was not improper. Even if the question had been imprope r, the error would have been harmless beyond a reasonable doubt. Medi na testified that appellant ha d not said "take me" to the police. No inference of guilt can be drawn fro m appellant's failure to say these words. On the other hand, an inference of guilt could ha ve been drawn if he had said "take me."
Such a statement could be construed as mean ing, "Take me, I'm guilty." Furthermore, "[w]e presume the jury unders tood and followed the court's admonition" to disregard the prosecutor's question and Medina's answer. ( People v. Tully, supra, 54 Cal.4th at p. 1055.) Finally, appellant argues that the pr osecutor committed mi sconduct during closing argument when he stated that after the shooting no one in Maria's car had said " 'call the police.' " Appellant objected, citing Griffin . The court responded, "The objection's noted
for the record." No evidence was presented that, by not saying "call the police" in Maria's car, appellant was inv oking his Fifth Amendment right to remain silent. The prosecutor's argument, therefore, did not constitute misconduct. ( People v. Tom
, supra , 59 Cal.4th at p. 1236; People v. Free
, supra , 131 Cal.App.3d at p. 165.) Prosecutor's Alleged Violation of Discovery Requirements Vanessa Solis was the People's first w itness. The prosecut or had included her name in the list of prosecution witnesses prov ided to appellant. But the prosecutor had8 not disclosed any statements that Solis may have made to the police or prosecution. Appellant argues that this nondisclosure violat ed California's reciprocal discovery statute (§ 1054 et seq.) and his constitutional rights to a fair trial and to present a defense.
Solis testified as follows: She met Vela squez in late 2004. From that time until his death, she was his girlfriend. "[I]f he were alive today, we'd be together for seven years." In January 2010 Velasquez moved to Santa Barbara to be with his ill grandmother. Velasquez had "a lot" of tattoos on his body, but he was not a member of a gang. Before he died, Velasquez "was work ing as a barber and he was also going to school to be a firefighter." ( He weighed 180 pounds and was five feet, ten inches tall. On the other hand, the prosecutor had provided discovery as to Solis's sister, Valerie. Counsel stated that when the prosecution calle d Solis as a witness, he "didn't even know who she was." Counsel declared: "I don't obj ect at that time because I'm not sure [that there was no discovery as to Solis] and I don't want to make a big deal out of something
unless I'm sure . . . . And there's no doubt th at [the prosecutor's] intent was to deceive and he did so." The prosecutor protested that Solis "was on [his] wi tness list" and "there is no written report from [her] to give to [defense counsel]." Because of the alleged discovery violati on, the trial court stated that it was "inclined to strike [Solis's] testimony." Defe nse counsel asked the c ourt not to strike her testimony: "[S]triking the testim ony I think does more harm th an good. I'd rather just impeach it." The trial court permitted appellant to call Solis as a witness and "impeach" her "with things that would question her statemen t, 'if he were still a live, we'd have been together seven years," and that kind of stuff." Appellant called Solis as a witness and impeached portions of her prior testimony. The People argue that the prosecutor complied with his di scovery obligations: "The prosecutor . . . stated th at he had no written reports on [S olis] to disclose . . . , and there was nothing establishing that the prosecu tor had any oral statements to divulge."
We need not resolve th is issue because appellant has fail ed to show that, if a discovery9 violation occurred, "it is reasonably probable th at a result more favorable to [appellant]
would have been reached in the absence of the [violation]." ( People v. Watson (1956) 46 Cal.2d 818, 836.) "No reason appears why any violation of the California reciprocal discovery statute . . . is not subject on appe al to the harmless-error standard set forth
in People v. Watson (1956) 46 Cal.2d 818, 836, . . . a nd thus is a basis for reversal only where it is reasonably probable, by state-law standards, that the omission affected the trial result." ( People v. Zambrano (2007) 41 Cal.4th 1082, 11 35, fn. 13, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It is not reasonably probable that Solis's testimony affected the trial result. She
was not a witness to the commission or aftermath of the crime. In any event, appellant is precluded from complaining about the alleged discovery violation because he declined
the trial court's offer to strike Solis's testim ony in its entirety. We presume that the jury
would have followed the court's instructi on to disregard her testimony. (See People v. Thompson (2010) 49 Cal.4th 79, 138 ["we presume a jury follows its instructions"]. We therefore also presume that the striking of Solis's testimony would have cured any prejudice resulting from the discovery violation. Other Acts of Alleged Prosecutorial Misconduct
I Appellant asserts that the prosecutor committed misconduct in his opening statement when he declared "that it was appella nt who brought the knife to Isla Vista that night." Appellant argues that "[t]he prosec utor had no reasonable expectation he could prove who brought the knife." Appellant con cedes that his counsel "made no objection at the time of the prosecutor's statement." Beca use defense counsel did not object, appellant has forfeited this issue. " 'In order to pres erve a claim of misconduct, a defendant must make a timely objection and request an admonition . . . ." ( People v. Williams (2013) 56 Cal.4th 630, 671.)10 In any event, the prosecutor did no t commit misconduct. "The purpose of the opening statement is to info rm the jury of th e evidence the prosecution intends to present, and the manner in which the eviden ce and reasonable inferences relate to the prosecution's theory of th e case. [Citation.]" ( People v. Millwee (1998) 18 Cal.4th 96, 137.) Based on the evidence, it is reasonable to infer that appellant brought the knife to
Isla Vista.
II Appellant argues that the prosecutor committed misconduct during closing argument when he stated that Velasquez "had been disabled by the time he had gotten to the Mercedes, that he had b een stabbed numerous times before he even got to the Mercedes as Dr. Anthony told you." Defense counsel objected: "Misst ates the evidence. Dr. Anthony testified nothing about being disabled at the Mercedes." The court said that counsel's "objection that [the prosecutor] ha s misstated the evidence is noted and I will neither sustain the objection [n]or overrule it. " The court told th e jury: "[Y]ou decide what the facts are and yo u decide what the evidence is a nd nothing that I say or do should influence your determination of what is evidence. . . . [¶] . . . [I]f you have any questions in your mind with regard to what the attorneys say and what the evidence was, [the court reporter] can clarify and re spond to your questions." The prosecutor misstated the evidence . Dr. Anthony perfo rmed an autopsy on appellant's body. He opined that Velasquez ha d died as a result of multiple stab wounds. Dr. Anthony mentioned nothing about a Merced es and did not say at what point during the fight the stab wounds had b een inflicted. But appellant fa ils to explain how, in view
of the trial court's comments , the prosecutor's mi sstatement of the ev idence deprived him of a fair trial or resulted in a miscarriage of justice. "[T]he fede ral Constitution does not require (and the state Constitution does not pe rmit) the reversal of a criminal conviction unless the misconduct deprived defendant of a fa ir trial or resulted in a miscarriage of justice. [Citation.]" ( People v. Hinton (2006) 37 Cal.4th 839, 865.)11 III Appellant maintains that , during rebuttal argument, the prosecutor committed misconduct by misstating a jury instruction. De fense counsel objected that the prosecutor had misquoted the instruction "when he said 'a ny other witness.' It's 'any other person.' " The court told the jury that "what [the pr osecutor] read to you was a mistake, but a mistake that the Court accepts as being underst andable" and "honest." In view of the court's correction of the prosecutor's mistake, his misstatement of the instruction could not have deprived appellant of a fair trial or resulted in a miscarriage of justice. Sentencing "Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years." (§ 193, su bd. (a).) During sentencing, the trial court mistakenly stated:
"The Court selects the midterm and sentences the defendant to serve five years in the Department of Corrections and Rehabilitation . . . ." (Italics added.) Three days later, the court issued an "ex parte orde r" correcting the sentence by "s ubstituting the word 'six' for
the word 'five.' " Appellant claims that "[t]he trial court' s order increasing [his] sentence from five years to six years was issued without jurisd ictional authority under Penal Code section 1170, subdivision (d)." This i ssue is moot. If the trial cour t had not corrected its mistake,
we would have corrected it on our own initiative. "[I]t is well established that the appellate court can correct a legal e rror resulting in an unauthorized sentence . . . at any time. [Citation.]" ( People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.) The court's original sentence was cl early unauthorized: "When a sentence of imprisonment is imposed, . . . the sentencing judge must select the upper, middle or lower
term on each count for which the defendant has been convicted . . . ." (Cal. Rules of Court, rule 4.420(a).)12 Review of Velasquez's Seal ed Naval Personnel File Velasquez's naval personnel file was s ubmitted under seal to the trial court. Appellant sought the production of the file to "establish that Mr. Velasquez has a history of violent and aggressive behavior." The tria l court reviewed the file in camera and ruled
that the information it contai ned was not discoverable. Appellant requests that we "review the naval personnel file in camera in a procedure similar . . . to a Pitchess review." ( Pitchess v. Superior Court (1974) 11 Cal.3d 531.) In Pitchess our Supreme Court "held . . . that a defendant charged with battery on four Los Angeles County Sheriff's deputies coul d, in support of his claim of self-defense, discover any complaints of excessive force co ntained in the deputies' personnel files." ( City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8-9.)
"A trial court's decision on the discoverab ility of material in police personnel files
is reviewable under an abuse of di scretion standard. [Citation.]" ( People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) We have reviewed Velasquez's naval personnel file
and conclude that the trial court did not ab use its discretion in denying discovery of the
information contained in that file. Disposition The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.13 George C. Eskin, Judge
Superior Court County of Santa Barbara

________________ ______________

Susan Pochter, under appointment by th e Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Seni or Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, St ephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.