Filed 9/4/13 P. v. Ojeda CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RALPH CHARLES OJEDA, Defendant and Appellant. H037819 (Santa Clara County Super. Ct. No. C1076069)

After a jury trial, defendant Ralph Ojed a was convicted of murder (Pen. Code, § 187) for fatally shooting Hayward Brandon. On appeal, he contends that he was deprived
of a fair trial when the trial court refused to declare a mistrial or exclude incriminating fingerprint evidence that was disclosed after tr ial began. We will affirm the judgment.
Defendant has also filed a petition for habeas corpus (H039769) arising from the same charges. We have ruled on that petition by separate order filed this day. Background Hayward Brandon supported himself by se lling small amounts of marijuana, often
from a car in front of a fast-food restaurant. On June 10, 2007, he was selling from a rented Mitsubishi Galant. On that day defend ant asked his close friend, Daniel Lopez, to arrange a marijuana purchase for him. Lop ez was then dating defendant's cousin, Sonia Macias. Lopez let defendant use his ce ll phone to call Brandon to arrange the2 transaction, and an uncle or cousin of either Sonia or defendant gave Lopez and
defendant a ride to a McDonald's restau rant near Alviso a nd Santa Clara. After waiting for Brandon for five minutes , Lopez went into the McDonald's to use the restroom. When he emerged, he cro ssed paths with Brandon, who appeared to be in pain. When Brandon collapsed in front of him, Lopez quick ly left the restaurant. The car he had arrived in was gone, as was Brandon's car. Lope z called Macias, who arranged for another of her c ousins, Corrina Amarillas, to pick him up at a Carl's Jr. nearby. Amarillas drove Lop ez to a bush where he had hidden some methamphetamine paraphernalia, and the two then went to Alvi so to pick up Macias. Lopez saw that she was "hysterical, crying, [in] s hock." Defendant, on the other hand, was "[k]ind of quiet,
mellow." Lopez went on to recount what defendant told him had happened while Lopez was
inside the McDonald's restroom. Defendant to ld Lopez that he had gotten into the back seat of Brandon's car, while Macias got into the front passenger seat. The transaction went "bad," however. Defenda nt believed that Brandon ha d given him counterfeit money in change. Defendant shot Brandon and then took his money back, along with the marijuana, Brandon's cell phone, and several boxes of shoes. Brandon got out of the car; defendant jumped into the driv er's seat and drove away. Defendant later offered shoes to Macias and to Lopez. Lopez had seen defendant with a nine-m illimeter gun a couple of months before, and he was carrying it earlier that day as we ll. Lopez had not seen him bring the gun with him to the McDonald's, however. Defendant told Lopez that he had gotten rid of the gun. Lopez saw defendant smash Brandon's cell phone. Amarillas eventually drove Lopez and Macias to Macias 's house in San Jose. Lopez later learned from the newspape r that Brandon had died. He called defendant to tell him about it, but otherwis e the two did not spea k about the incident again.3 Defendant's truck was pulled over by San Jo se police on June 11, four days after the homicide. Lopez was a passenger, bu t he ran away because he had drug paraphernalia on him. Defendant was arrest ed when a small amount of marijuana was found on him. In July, however, police a rrested Lopez and interviewed him about the Brandon case. Lopez denied being in the photographs taken from the McDonald's security video; he and defendant were fe llow gang members, which meant being loyal and "never snitching" to authority figures. However, a few months later, Lopez broke up with Macias and began a romantic relationshi p with defendant's cousin, Sylvia Lujan. Theirs was an unhappy relati onship which deteriorated into thefts of each other's property. Lujan described Lopez as a "very heartless, lying, conn iving thief" who was "absolutely" not honest. When they br oke up, the friendship between Lopez and defendant fell apart. In April 2010 Lopez learned that while in custody defend ant had written notes requesting that Lopez be atta cked and violently removed fro m the gang. Lopez contacted the Santa Clara police and offe red to exchange informati on about the Brandon homicide for placement in the witness pr otection program. Lopez descri bed the events of June 7, 2011, and testified for the prosecution at trial. Richard Armendariz also appeared at tria l. He had known de fendant for 15 years and was uncomfortable testifyi ng against him. Once or twic e while they were both in county jail, defendant told Ar mendariz about the homicide. He said that he and "some dude" were going to rob someone for his drugs , using a handgun. "Sonia" and a male
cousin were with him. Defendant named th e McDonald's in Santa Clara as the location of the "jacking" and identified Brandon as the victim. The two argued over the drugs and defendant shot Brandon in the upper abdominal area. Then he took the victim's car and they all got away. Defendant said he dropped the gun, which was a .22 or a 9-millimeter handgun, in a creek behind some m ovie theaters in Santa Clara.4 Rick Souza, a detective from the City of Santa Clara police department, investigated the homicide. At trial he desc ribed the trail of blood from the parking lot into the McDonald's and the security vi deo showing Lopez's "s uspicious" behavior, Brandon's path from the car into the restaurant, and the car be ing driven away. Inside the car was a 9-millimeter shell casing. A 9- millimeter bullet was re moved from Brandon's left shoulder at the autopsy. No bloodstains or latent prints were found in the inside of the car. The outside surface did yi eld 40 areas of latent prints. In late July of 2007 the police questioned Macias, Lopez, Amarillas, defendant, and Amarillas's husband, John M acias. Defendant denied that he had ever met Brandon.
In November 2007 Souza subm itted the fingerprints to AFIS , the Automated Fingerprint Identification System. He learned that ther e was no "match" to th e suspects, which led Souza to believe that defendant's prints we re not on Brandon's ca r. By the time Souza retired from the police department in Marc h 2010, no one had been charged with Brandon's murder; it had "gone stale." It was not until May of 2010, after Lopez came forward, that police arrested defendant for the crime. After a preliminary examination, defe ndant was accused by information with murder, in violation of Penal Code section 187. 1 Attached to the charge were allegations that he had personally used a firearm (§ 12022.53, subds. (b), (c), and (d)) and that he had suffered a prior strike (assault with a deadly weapon), within the meaning of the Three Strikes Law (§ 667.5, subd. (c); § 1192.7, subd. (c)). The parties delivered their opening statemen ts to the jury on September 26, 2011. The prosecutor told the jury that no DNA or fingerprint evidence co nnected the suspects
in the case. Defense counsel also said ther e was no evidence that defendant was ever in the car: "You won't hear about any fingerprin ts. You won't hear about any DNA." The

1 All further statutory references are to the Penal Code.5 prosecution, counsel added, had only the wo rd of Lopez and Arme ndariz, who were both "drug users, thieves, liars." On October 3, 2011, defendant moved for a mistrial. Counsel said he had received
a "bombshell" in the form of the new evid ence the prosecution had revealed only the previous week, during its case in chief. Counsel felt " 'blinds ided.' Why? Because our
whole defense in this case was that the two prosecution witnesses, two snitches, if you will, both the in-custody informant and th e out-of-custody informant, Lopez and Armendariz, were the sole case for the prosec ution against Mr. Ojeda." Counsel pointed out that defendant's prints we re already known, as he had been arrested for marijuana possession the day after the homicide. There was no accusation of bad faith, no attempt to hide evidence; it was, counsel believed, "jus t overlooked. . . . [B]ut the effect is still the
same." Defense counsel explained why the oversig ht had already prejudiced the defense:
"And so when I come into court and we're voi r diring the jury, the whole purpose of my voir dire, as the Court is aware, was witn ess credibility. I told the . . . [C]ourt [ sic ] that they're going to hear from w itnesses that could be liars, dr ug addicts, thieves, people who have lied to the police before. My whole fo cus and the focus of the defense was to cast doubt upon the credibility of the prosecution witnesses that were going to stand and accuse Mr. Ojeda. [¶] I never talked about p hysical evidence. As far as I knew, there wasn't any." In other words, he not only had told the jurors that th ey would not hear any fingerprint or DNA evidence, but had focused his cross-examination of witnesses on their credibility rather than on defe ndant's prior contacts with the victim. And during voir dire, had he known there was fingerprint evidence he would have inquired of bias, by asking prospective jurors whether they would expect scientific or fingerprint evidence and how they would feel about the defendant's guilt if there were such evidence. Now, however, his credibility was "seriously impaired."6 The court proposed a remedy in the form of an instruction with CALCRIM No. 306. The court suggested that because the pros ecutor had also anticipated no fingerprint evidence, her credibilit y was no better than defense coun sel's, so defendant was at no disadvantage. Counsel requested "at the very least" a "preinstruction" or admonition when the fingerprint testimony was to be introduced. The court agreed. The court next took up an alternative motion of the defense, to exclude the fingerprint evidence under section 1054.5. Defense counsel rejected the remedy of a
continuance "because of the wa y the discovery came out in the middle of trial." The prosecutor explained ho w the fingerprint match had been discovered. In June of 2007 the police had latent prints, which were submitted to the central identification facility ("Central ID") in San Jose to determin e whether the victim's prints were detected. Of the 40 latent prints, three were of the victim. In November, Sergeant Souza asked Central ID to "run the prints" through AFIS against those of defendant and the other suspects. Sergeant Souza believed that if AFIS reported no matches, "that was an
exclusion. That was a mistaken belief." The prosecutor had learned the prev ious week that it was a "very common misconception" that if a person's known prints are in AFIS, a latent print will "come up with a hit." Thus, when Se rgeant Souza misinterpreted the November 2007 results, he erroneously reported the results as an exclusio n of all the defendants. The prosecutor had
likewise understood this lack of identification to be an exclusion. Apparently, she noted,
so had defense counsel and others who had received th e same information. It was not until the evening of the first day of trial (September 26, 2011), while preparing for the fingerprint experts' testim ony, that the prosecutor realized that the
defendants' names were not identified as ex cluded in the reports in front of her. Believing that she was missing the exclusion re port, the next day she asked Central ID to provide it. There were no such reports. The prosecutor asked for confirmation that7 Central ID had actually excluded the defendan ts, but the employee on duty informed her that no comparison had been requested, a nd therefore no exclusions existed. The prosecutor immediately had the po lice department submit the prints of defendant, Macias, and Lopez to Central ID. The following day, the third day of trial,
she informed defense co unsel what had been happening. Midday on the fourth day of trial (September 29), the pros ecutor learned that one fingerprint matched defendant, and she immediately informed defens e counsel of this fact. Coun sel for both parties received copies of all the prints and repo rts, as did the defense expert. The prosecutor acknowledged that "this is something . . . [she ] should have caught earlier," but, she noted, she disclosed the new in formation within hours of receiving it. She agreed with the court that there was no issue of credib ility because she too had told the jury that there was no finge rprint evidence. In the pr osecutor's view, "We don't stop investigations in cases just because a jury is sworn. If something comes up or if something is missed . . . , it's not uncommon for investigati on to proceed during a trial
and for evidence to come forth in the middle of trial." The prosecutor disagreed with the court's suggestion that "discovery doesn't mean just known evidence but should have
known." Before the introduction of the fingerprin t evidence on October 5, 2011, the court read to the jury the fo llowing stipulation by the parties: "The defense a nd the prosecution stipulate that at opening stat ement on September 26, 2011, both parties told the jury that there would be no fingerprint evidence presented at this trial because that is what they believed to be true. [¶] On the evenin g of Tuesday, Septem ber 27th, 2011, the prosecution discovered that a comparison of the latent prints from the victim's car and the known prints of Ralph Ojeda ha d not actually been performe d. The prosecution notified the defense of this fact on the morning of Wednesday, September 28th, 2011. [¶] In the days following this disclosure, fingerprint experts of both sides have engaged in this8 omitted analysis. The results of this examinat ion which has just now come to light will now be put into evidence."
The court then instructed the jurors with language from CALJIC No. 2.28, which advised them that the prosecution's untimely di sclosure had been unju stified, but that the
new evidence would nevertheless be admitted, and that the we ight and significance of the
evidence was for th em to determine. 2 John Bourke and Sergeant Souza were then recalled to testify about latent print number 18, a partial print lifted from the surface of the car in front of the rear passenger's door. Bourke explained that it could not be determined when the print was left there.
Souza testified that in November 2007 he submitted the latent prints to the central identification facility for reex amination. He inferred from the results that no match to defendant had been found. It was only the pr ior week, during trial, that he learned that defendant's prints had not actually been excluded. Just before both parties rested, Lopez was recalled to the stand. He acknowledged having introduced defendant to Brandon before the day of the crime. On that occasion Brandon was driving an older Jeep, not the Galant. Defendant was there with Brandon

2 The instruction as given stated: "The prosecution and the defense are required to disclose to each other before tr ial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save the Court time, and avoid any surprise which may arise during the course of the trial. De lay in disclosure of evidence may deny a party sufficient opportunity to subpoena necessary witnesses or to pr oduce evidence which may exist to rebut the [non-complying] party's evidence. [¶] Disclo sure of evidence are [ sic ] required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of tria l must be disclosed immediatel y. [¶] In this case, the People failed to timely anal yze the following ev idence: latent fingerprint evidence from the victim's car. Although the People's failu re to timely disclose evidence was without lawful justification, the Court has, under the law, permitted th e production of this evidence during trial. [¶] The weight and significance of any delayed analysis are matters for your consideration. However, yo u should consider whether . . . the untimely disclosure of the latent print analysis pertains to a fact of importance, something trivial, or subject matter already establis hed by other credible evidence."9 and Lopez, and possibly with Macias, on another occasion, bu t Lopez did not recall what kind of car Brandon was driving at that time. The court again read a modified versi on of CALJIC No. 2.28 during its final instructions before the jury be gan its deliberations. The pros ecutor called attention to the fingerprint during opening and closing arguments to the jury. Defense counsel primarily focused his argument on the lack of credib ility and bad character of both Lopez and Armendariz. He acknowledged the fingerprint evidence but directed the jurors' attention to the absence of prints on any surface inside the car. Counsel also observed that there
were two reasonable inferences from the circ umstantial evidence of the fingerprint, one of which was "that he put his fingerprint on the rear passenger door at some other time
when he was at Mr. Brandon's car." He em phasized to the jurors that because this reasonable inference pointed to innocence, it must be accepted. The jury found defendant guilty of murde r, and it found true the allegation that he had personally used a firearm within the mean ing of section 12022.53, subdivisions (b), (c), and (d). The court sentenced defendant to 75 years to life, and defendant brought this timely appeal.
Discussion The sole issue on appeal is whether the court's admission of the fingerprint evidence was an abuse of discretion and depriv ed defendant of due process and effective
assistance of counsel. We conclude that in the circumstances presented, no error
occurred. Both parties point to section 1054 et seq ., which sets forth the exclusive rules of discovery in criminal cases and prescribes th e possible remedies for discovery violations. Section 1054.1, su bdivision (f), requires the prosecutor to disclose to the defense reports of experts, "including any reports or statem ents of experts made in conjunction with the case, including the results of . . . scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence." Such disclosure mu st be made at least 30 days10 before trial, but "[i]f the material and info rmation becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is sh own." (§ 1054.7.) Section 1054.5, subdivision (b), permits a trial court to "make any order necessary to enforce the provisions of this chapter, including, bu t not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuanc e of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." Here the prosecutor disclosed the new fing erprint evidence as s oon as she received it. Based on this fact, the People assert that no violation of section 1054.7 occurred. As defendant points out, however, the trial cour t found otherwise, by ruling that the People should have properly an alyzed the evidence ear lier, and it instructed the jury accordingly. We need not decide whether we agree with the trial judge that a discovery violation actually occurred, because the only question pr esented to us is whether the instruction
with CALJIC No. 2.28 was an adequate remedy. Defendant acknowledges that the trial c ourt had broad discre tion in selecting a remedy for the prosecution' s discovery delay. ( People v. Jenkins (2000) 22 Cal.4th 900, 951 [courts have broad discretion in dete rmining appropriate sanction for discovery abuse]; see also People v. Ayala (2000) 23 Cal.4th 225, 299 [rulings on discovery matters
reviewed under an abuse of discretion standard ].) He contends, however, that instead of merely giving an instruction, which could not have cured the harm, the court instead should have either granted a mi strial or excluded the evidence. Under section 1054.5, subd ivision (c), the court was not authorized to prohibit evidence regarding the new fing erprint analysis unless "all other sanctions [had] been exhausted." "Even where the prosecution acts willfully and in bad faith -- which is contrary to the trial court's finding in this case -- 'the extreme sanction of dismissal is11 rarely appropriate unless a defendant has es tablished prejudice by the failure of the People to comply with the discovery or der [citation] and the prejudice cannot be otherwise cured [citation]; lesse r sanctions must be utilized by the trial court, unless the effect of the prosecution's conduct is such that it deprives defendant of the right to a fair trial.' " ( People v. Wimberly (1992) 5 Cal.App. 4th 773, 792-793 (fn . omitted), quoting Mendibles v. Superior Court (1984) 162 Cal.App.3d 1191, 11 98.) This provision reflects a legislative concern for " 'potential prejudice to the truth-determining function of the trial process.' " ( People v. Gonzales (1994) 22 Cal.App.4t h 1744, 1757, quoting Taylor v.
Illinois (1988) 484 U.S. 400, 415.) Defendant's argument as to the mistrial ruling is that the c ourt did not understand that it had this option, believing instead that mistrial is not a proper remedy for untimely discovery unless exclusion would be insufficien t. Our reading of the trial transcript, however, reveals no misunderstanding of the law. The court only decided that in the circumstances presented, a mistrial would be improper because other viable remedies
were available. That conclusion was entir ely consistent with section 1054.5.
We see no abuse of discreti on or due process violation in selecting admonitions to the jury as a remedy for the pr osecution's missteps. As in People v. Jenkins, supra, 22 Cal.4th at page 952, here defendant has faile d to establish that a prosecutor's delay in obtaining and disclosing inculpatory evidence "requires a particular sanction as a matter of due process." Nor can the admission of the fingerprint evidence, te mpered by the jury admonitions, be said to have offended due process by rende ring the trial fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 439; People v. Covarrubias (2011) 202 Cal.App.4th 1, 20.) The trial court follo wed the statutory procedures for remedying discovery violations and selected one that accommodated both fairness to the defendant and the "truth-determining functio n of the trial process." ( People v. Gonzales, supra , 22 Cal.App.4th at pp. 1757–1758.) The cour t ameliorated any potential unfavorable impression of the defense and thus acco mmodated defense couns el's concern by12 repeatedly advising the jury that it was the prosecution' s failure to obtain a timely analysis of the fingerprints that led to the ne w evidence contradicti ng both parties' initial positions at trial. Defense counsel coul d have asked for a c ontinuance, but he affirmatively rejected that o pportunity—on the theory that hi s credibility with the jurors had been irreversibly compro mised because he had already told them in his opening
statement that there would be no fingerprint evidence. 3 He did not suggest to the trial
court that a continuance wo uld have been useless in challenging the accuracy and reliability of the new evidence or otherwise explaining it.
Defendant now contends th at "[s]ince the premise of the entire defense case proved to be false, there was no longer a de fense case." While arguing that a timely
disclosure would have eliminated his defense of innocence base d on the lack of physical evidence, he nonetheless does not suggest what alternative defense could or would have
been substituted to achieve a more favorable outcome. (Cf. People v. Verdugo (2010) 50 Cal.4th 263, 282 [without elab oration, "generalized statem ents" that timely disclosure "would have enabled [defense] counsel to adjust his theory of the case" are insufficient to demonstrate prejudice].) Clearly defendant was surprised by the new disclosure. But absent ambush by the prosecution (which clearly was not present here), "surprises may still sometimes happen at trial." ( People v. Bell (1998) 61 Cal.App.4t h 282, 291.) The prosecutor complied with her statutory duty by informing defense coun sel of her efforts to obtain a re-examination of the fingerprints and then immediately informing him of the result. Defendant elected
not to secure a continuance in order to examine the new evid ence and refute its reliability through additional experts and cross-examinati on of prosecution witnesses relating to the test procedure and results. Instead, he chos e to focus primarily on the same strategy he

3 As noted, the trial court pointed out that the prosecutor had also stated that there would be no fingerprint evidence.13 adverted to in his openi ng statement, by attacking th e credibility of Lopez and Armendariz. He nonetheless did emphasize to the jury that the fingerprint could have been left on the car on a prior occasion, and there was no way to know how long it had
been there. Defendant fails to convince us th at the trial was infected by such "substantial and irremediable" prejudice that the only appr opriate remedy was to exclude the evidence or declare a mistrial. ( People v. Gonzales, supra, 22 Cal.App.4th at p. 1757.) Accordingly, we see no abuse of discretion or unfairness in the circumstances presented.
Nor did the disclosure dela y result in ineffective assist ance of counsel. Defendant did not complain to the trial court that th e new evidence had irreparably damaged his ability to present a defense; he only clai med that it damaged co unsel's credibility by contradicting his position in opening statements. This argument was vitiated by the admonitions given to the jury. There is no indication on the record before us that the defense strategy counsel chose was impaired beyond what he could have achieved through the additional preparation a continua nce would have afforded him. He was
nonetheless able to examine the evidence, cross-examine pr osecution witnesses who had been involved in the processing of the fingerpri nts, and argue to the jury that the evidence was unreliable. The chief problem for the de fense was not that the prosecutor's conduct or the court's remedy was prejudicial, but th at the new evidence wa s inculpatory. But that fact alone could not have justified its exclusion or compelled a declaration of mistrial. "The integrity of the adversary pr ocess, which depends both on the presentation of reliable evidence and the rejection of unrelia ble evidence, the intere st in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance." ( Taylor v. Illinois, supra , 484 U.S. at pp. 414–415.)14 Disposition The judgment is affirmed.

_______ _______________ ___________ ELIA, J.

WE CONCUR:

____________ ________________ RUSHING, P. J.

____________ ________________ PREMO, J.