Filed 3/ 23/16 P. v. Castaneda CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

TH E PEOPLE ,
Plaintiff and Respondent ,

v.

JO SE LUIS CASTANEDA ,
Defendant and Appellant

. B 261363
(Los Angeles County Super. Ct. No. T A 133057 )

APPEAL from a judgment of the Superior Court of Los Angeles County, John T. Doyle , Judge. Affirmed

. Paul Kleven , under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy A ttorney General, and Stephanie A. Miyoshi , Deputy Attorney General, for Plaintiff and Respondent

.

——————————2

In an information, the People charged J ose Luis Castaneda ( Castaneda ) with two counts: (1) injuring a spouse, cohabitant, or child’s parent (Pen

. Code , § 273.5, subd. (a) [ domestic violence ] 1 ) and with false imprisonment by violence (§ 236). 2 Castaneda pleaded not guilty and denied the allegations. A jury subsequently found Castaneda not guilty of the domestic violence offense , but convicted him of a lesser included offense

— battery (§ 243, subd

. (e)(1))

. The jury also convicted Castaneda of false imprisonment

. On appeal, Castaneda advances two arguments. First, he contends that the trial court erred by allowing the prosecution to introduc e “pro pensity” evidence

— evidence of uncharged prior acts of domestic violence

— even though such evidence was not provided
to the defense “ at least 30 days prior to the trial , ” (§ 1054.7 ; Evid. Code, § 1109 ) but
disclosed for the first time in the midst of trial. As he was purportedly denied the opportunity to investigate and prepare a defense against the u ncharged domestic violence
claims , Cast a n e da argues that the trial court’s refusal to exclude such evidence was an
abuse of its discretion. Second, Castaneda ar gues that the trial court abused its discretion in denying his
motion to dismiss ( and subsequent motion for a new trial ) based on prosecutorial
misconduct

. The alleged misconduct occurred at the outset of the trial when the People , contrary to a n in limin e order, mentioned in its opening statement that the victim was pregnant at the time of the charged offenses

. We dis agree with both of Castaned a’s arguments . A ccordingly, we affirm the judgment

.

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

2 Pursuant to sections 667 and 1170.12, it was also alleged that Castaneda had a prior conviction for one serious or violent felony (violation of § 422 [criminal threats]). Appellant subsequently admitted the alleged prior conviction.3 BACKGROUND
On the morning of April 25, 2014 , police, responding to a call, went to the home of Castaneda and Maria Ramirez (Ramirez). At that time, Castaneda and Ramirez had been in a relationship for approximately five years and they had one child together. When Ramirez opened the door to the po lice, she appeared to be “visibly upset, tearful, shaking,” with a “puffy face” and “hesitant to talk.” At that time, the police noticed and subsequently photographed red marks on Ramirez’s neck which suggested bruising. The police called a n ambulance; a fter the paramedics treated Ramirez on

- site , they transported her to a hospital. The police found Castaneda in the home’s garage ; after 15
to 20 minutes of the police calling out to him, Castaneda unlocked the door and exited the

garage ; police officers t hen took him into custody. On May 1, 2014, a police detective interviewed Ramirez. During the course of the interview, which was recorded, Ramirez described a n earlier incident of domestic
violence in 2012 i nvolving Castaneda, which caused her to seek tre atment at a hospital in
Gardena and to talk to the police . The recording of the interview and the detective’s written summary of the interview , which references the prior uncharged incident of domestic abuse, were duly provided to the defense prior to the preliminary hearing

. 3
I. The preliminary hearing On May 14, 2014, the superior court conducted a preliminary hearing. Ramirez , the only witness at the hearing, testified that on April 25 a verbal argument between her and Castaneda quickly escalated into a physical altercation with Castaneda slapping her , pulling her hair, shoving her, and hitting her. When the altercation spilled out into the front yard, Ramire z called out to a neighbor and asked her to call the police. When asked
about the bru isi ng on her neck, Ramirez explained that Castaneda not only grabbed her

3 The detective’s report summar izing his interview of Ramirez contains the following statement regarding the 2012 incident: “‘Ramirez was unable to recall the number of unreported domestic violence incidents between her and Castaneda. Ramirez did report an incident to Gardena police i n 2012 which she did not pursue out of fear of Castaneda

. ’”4

by the neck during the altercation on April 25, but had also “choked [her] two days
before.” At the close of its direct examination, the People established that on April 25, Ramirez was pregnant with Cast a n e da’s child. On cross

- examination, Ramirez testified, among other things, that she had (a) elected to terminate the pregnancy after the
altercati on on April 25 and (b) been forced to go to the hospital twice as a result of Castaneda’s abuse

— once on April 25 and once on a prior occasion

. I I

. The trial
A. Reference to Ramirez’s pregnancy On September 29, 2014, during the third day of voir dire, the P eople sought to exclude any reference to the victim’s pregnancy at the time of the charged offenses and subsequent abortion, a motion which the defense joined. The trial court granted the
motion , noting that any reference to Ramirez’s pregnancy would be “ ‘ prejudicial ’ ” and that as a result, “ ‘ pregnancy stays out

. ’ ” The next day, September 30, 2014, during its opening argument, the People, briefly, and in passing, mentioned the victim’s pregnancy. On October 1, 2014, Castaneda made an oral motion to dismis s based on prosecutorial misconduct , arguing that by violating the court’s p r eliminary order, the prosecutor had put him in a “terrible position” before the jury, making him look like a man “beating on a pregnant woman” and encouraging the jury to improperly speculate about “what happened to this child.” The prosecutor explained that his reference to Ramirez’s pregnanc y was due to confusion over the court’s order, believing that the order merely excluded any reference to the abortion, but not the p regnancy. The court denied the motion but without prejudice to Castaneda raising the issue later. On October 2, Castaneda renewed his oral motion to dismiss for prosecutorial
misconduct. The trial court denied the motion , finding that the prosecutor ’s mi stake was not “so egregious” that a mistrial was merited and finding further that there was “ no willful misconduct ” by the People and “ no prejudice ” to the defense. Castaneda also raised the issue of prosecutorial misconduct arising out of the

pregnancy re ference in two subsequent written motions. On October 6, 2014, Castaneda filed a written motion to dismiss for prosecutorial misconduct based, in part, on the5

People’s reference to Ramirez’s pregnancy in its opening statement. The trial court
denied that motion as well and for the same reasons as the oral motions. Following his conviction, Castaneda raised the issue again in his motion for a new trial , which the trial
court denied.
B

. Admission of propensity evidence On September 29, 2014, after jury sel ection had started, the prosecutor advised the court and Castaneda’s counsel that he expected Ramirez to testify about prior incidents of
domestic abuse

. Defense counsel objected, stating that she had no police reports, 911calls, or medical records to sub stantiate th os e claims. The prosecutor argued that although there had been no formal notice under Evidence Code section 1109, the defense had been give effective and adequate notice , because the topic of prior uncharged incidents had been covered at the preliminary hearing and that the investigation reports
indicated that one incident had been reported to the Gardena Police Department , although
those records had not yet been located. Castane da disagreed that the preliminary hearing testimony provided notice that the prosecution would seek to admit propensity e vidence pursuant to Evidence Code section 1109

. On October 1, 2014, the court held a hearing where Ramirez testified outside the

presen ce of the jury regarding the prior uncharge d incidents of abuse . Among other things, Ramirez stated that there had been “[s]everal” instances of domestic violence before the charged offense, including a choking incident in late April 2014 just a few days before the charged offense and one incident approximately a year and half e arlier, in December 2012 in which she was punched and kicked. The trial court concluded that the evidence regarding the prior uncharged incidents “appears to be admissible,” noting that the prior incidents occurred within a “very cogent time frame” for Evidence Code section
1109 evidence and “pretty close in time” to the charged offenses. Castaneda’s counsel
declined to cross

- examine Ramirez outside the jury’s presence.
On October 2, 2014, the prosecutor informed the court that after the previous day’s hearing, he asked the police to check “department resources” to ascertain if6

anything had been missed and, as a result, of this review documents relating to the
December 2012 incident had been discovered and produced to Castaneda

. 4 Castaneda moved to exclude the newly discovered evidence , arguing that the evidence was inadmissible because it had not been produced in conformance with the notice requirements of Evidence Code section 1109

— that is, at least 30 days before
trial

— and that the prior references to the incident (the detective’s interview of Ramirez
and his report summarizing the interview and Ramirez’s testimony at the preliminary hearing) were insufficient to constitute the not ice required by Evidence Code section
1109. Although Castan e da’s counsel argued that the belatedly discovered evidence regarding the uncharged Decem ber 2012 incident put her in a “ state of unpreparedness” and that it would be “difficult” under such circumstances to cross

- examine a witness or conduct a “proper investigation ,” she did not ask for a continuance. She did not ask for a continuance, even though the court indicated that it woul d consider a continuance. In fact, Castaneda’s counsel repeate dly indicated that she would not consider a continuance
because it woul d interfere with h er client’ s right to a speedy trial

. The trial court denied the motion to sup press, explaining that while the People’s investigation into the prior uncharged incidents was “sloppy” and “inadequate,” there was no evidence of “ willfulness or bad faith.” The trial court also noted that Castaneda would have a total of five days to prepare for Ramirez’s testimony about the prior uncharged
incidents. On October 6, 2014, Cast aneda filed a written motion to dismiss for prosecutorial misconduct based, in part, on the belated production of evidence regard ing prior uncharged incidents. Finding nothing in the written motion that would be “additionally

4 In addition to the documents regarding the 2012 incident, the People also produced on October 3, 2014, 10 recently discovered photographs of Ramirez in a hospital with possible bruises on her ch in and arms.7

persuasive,” t he trial court denied that motion as well and for the same reasons as the oral
motions

. The trial court did, however, instructed the jury with CALCRIM No. 306 that “[t]he prosecutor failed to turn over the investigative report from December 15, 2012,
30 days prior to tri al, as required by law” and that “[t]he prosecutor failed to turn over the photos from the December 15 th , 2012, incident 30 days prior to trial, as required by law.” The jury was told that “[i]n evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure” and that “[i]n evaluating the weight and significance of nondisclosure, you should assume it to be favorable to the defense.” Following his conviction, Castaneda raised the admission of the prior u ncharged
incidents in his motion for a new trial, which the trial court denied.
DISCUSSION
I. There was no abuse of discretion regarding the propensity evidence
A. Standard of review On appeal, we review a trial court’s ruling regarding evidence of a criminal defendant’s uncharged crimes for abuse of discretion. ( People v. Abilez (2007) 41
Cal.4th 472, 500; People v. Jennings (2000) 81 Cal.App.4th 1301 , 1313

– 1314 .) Similarly, w e “ generally review a trial court’ s ruling on matters regarding discovery
under an abuse of discretion standard. [Citation.] In particular, ‘a trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecution’ s violation of a discovery order.’” ( People v. Ayala (2000) 23 C al. 4th 225, 299.)
B

. Propensity evidence It has long been the rule that evidence of a person’s char a c ter, inc l uding “evidence of specific instances of his or her conduct,” is “ inadmis s ible when offered to prove his or
her conduct on a specified occasion.” (Evid. Code, § 1101 , subd. (a); see People v.
Ewoldt (1994) 7 Cal .4th 380, 392 [noting exclusion of propensity evidence “‘was a part of “the early law of England”’”], superseded by statute on another ground as stated in8

People v . Robertson (2012) 208 Cal.App.4th 965, 991 .) The reason for such a rule of exclusion is not because such evidence “ ‘ has no appreciable probative value, but because
it has too much. ’ ” ( People v. Alcala (1984) 36 Cal.3d 604, 631 , italics omitted , supersed ed by statute on another ground as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911 .) “ ‘“‘ Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. ’”’ ” ( People v. Abilez , supra , 41
Cal.4t h at p. 500.) In recent years, however, the rule against propensity evidence has been relaxed in certain circumstances. Specifically, propensity evidence (assuming it is not inadmissible ) is currently admissible in cases involving sexual offenses, domesti c violence, elder abuse,

or child abuse , provided that it is also admissible under Evidence Code section 352. 5 (See Evid. Code , §§ 1108, subd. (a), 1109, su bds. (a)(1), (a)(2) & (a)(3).) “ These statutes are remarkable not because they allow testimony about prior misconduct, but because they allow the jury to draw propensity inferences from the prior acts. ” ( People v.
Johnson (2010) 185 Cal.App.4th 520, 52 9 .) 6 Moreover, a ju ry is allowed to draw such propensity inferences based on a reduced burden of proof

— the “ standard for proving past conduct is by a preponderance of the evidence, not beyond a reasonable doubt

. ” ( People
v. Hoover (2000) 77 Cal.App.4th 1020 , 1030. )

5 Under section 352, a trial court may in its discretion exclude evidence “ if its probative value is substantially outweighed by the probability that its admission will

. . . necessitate undue consumption of time, or

. . . create a substantial danger of undue prejudice, ” confusion of the issues, or misleading the jury. “‘The [trial] court’ s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the preju dicial effect of the evidence clearly outweighed its probative value. ’ ” ( People v. Jennings , supra , 81 Cal. App.4th 13 14

– 1315. )

6 For example, the jury in the instant case was instructed as follows: “If you decide that the defendant committed the uncharge d domestic violence, you may

. . . conclude from that evidence that the defendant was dispose d or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes alleged in C ount 1

. . . or the lesser offen s es

. . . .”9

The r ationale for greater permissiveness on the use of propensity evide nce in
domestic abuse cases is set forth in Evidence Code section 1109’s legislative history:

“‘ The propensity inference is particularly appropriate in the area of domestic violence
because on

- going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked, if we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Sinc e criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all. ’ ” ( People v. Johnson (2000) 77 Cal.App.4th 410, 419 , quoting Assem. Com. Rep. on Public Safety Report (Jun. 25, 1996) pp. 3

– 4.)
C

. Reciprocal discovery The greater liberality with respect to propensity evidence has been balanced by the
addition of certain e nhanced procedural safeguards. If the prosecut ion wishes to introduce propensity evidence, it must comply with the terms of the so

- called reciprocal discovery statute (§ 1054 et seq.), which was adopted pursuant to Proposition 115. Proposition 115 “was d esigned to ‘ restore balance to our criminal justice system [and] create a system in which justice is swift and fair. ’ ” ( Woods v. Superior Court (1994) 25 Cal.App.4th 178, 184.) “The purpose of section 1054 et seq. is to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial. [Citation.] Reciprocal discovery is intended to protect the public interest in a full and truthful disclosure of
critic al facts, to promote the People’ s interest in preventing a last minute defense, and to reduce the risk of judgments based on incomplete testimony.” ( People v. Jackson (1993) 15 Cal.App.4th 1197, 1201.)10

Section 1109 of the Evidence Code accordingly provides that in a n action involving domestic violence “ the people shall disclose the [propensity] evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with Section 1054.7 of the Penal
Code. ” (Evid Code, § 1109 , subd. (b).) Section 1054.7 requires that the prosecution’s disclosure of propensity evidence “shall be made at least 30 days prior to trial.” (Italics added.) Use of the phrase ‘ at least ’ conn otes a bare minimum of 30 days and implies disclosure may be ordered more than 30 days before trial .” ( Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672 , 677. ) If the propensity evidence “becomes known to, or comes into the possession of, a party wit hin 30 days of trial, disclosure s hall be made immediately

. . . . ” (§ 1054.7.) One well

- regarded treatise on California rules of evidence, states in its “practice commentary” that “prosecutors should be sure to follow the necessary discovery procedures [for propensity evidence] to the dot .” ( Imwinkelried & Hallahan, California Evidence Code Annotated (2015 ed.) § 1109, Prac. Com. p. 323, italics added.)
D

. Sanctions for untimely disclosure of propensity evidence If the prosecut ion does not comply with i ts disclosure obligation s , section 1054.5 authorizes the court to “make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a wit ness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).) Critically, the e xclusi on of testimony should be ordered “ only if all other
sanctions have been exhausted. ” (§ 1054.5, subd. (c) , italics added .) We read t his limit on a trial court’s ability to exclude propensity evidence as an indicat ion of the Legislature’s s trong judgment that evidence of prior domestic abuse should ordinarily be
admissible

. Although there are no published decision s dea l ing directly with the People’s failure to comply with the 30

- day discovery obligation under Evidence Code section11

1109 , the issue of what i s the appropriate remedy for a belated disclosure by the People has been addressed in other circumstances. For example, in In re Jessie L . (1982) 131 Cal.App.3d 202, two juveniles were convicted of second degree murder. On appeal, one of the defendants a rgued that the testimony supporting probable cause for his arrest should have been suppressed because the prosecution failed to disclose in a timely

manner a corrected supplemental police report about an accomplice’s statement; the supplemental report was not provided to the defense until “ the day before the first day of pretrial hearings .” ( Id

. at p. 210.) The Court of Appeal affirmed, holding that “t he normal remedy ” for a failure of discovery “is not dismissal or the suppression of evidence, but a continuance to enable the defense to meet the new evidence. ” ( Ibid .) The court found particular significance in the fact the defendant not only received the supplemental report, but was offered both a continuance and ample opportunity to cross

examine th e police officer about the supplemental report. ( Id . at pp. 210

– 211.) In addition, there was no evidence of willful suppression or bad faith

— the officer’s original report excluded certain information because “ he ‘ just screwed up, that’s all. ’ At the tim e he wrote his original report he erroneously thought such information was not necessary. ” ( Id . at p. 210.) Finally, the defendant’s argument about how he co u ld have prepared a better defense if only he had received the omitted information earlier was fo und to be “highly speculative.” ( Id . at p. 211.) Similarly, in People v. Valdez ( 2012 ) 55 Cal.4th 82, our Supreme Court affirmed a trial court’s order delaying and limiting disclosure of the identities of certain prosecution
witnesses , in part, because th e defendant declined to accept the court’s offer of a
continuance: “ the court stated several times that it would grant defense counsel continuances during trial upon a showing that the delayed disclosure of the witnesses’ identities had hampered counsel’s ability to prepare for cross

- examination

. . . . [D] espite the court’s offers, defendant’s counsel made no attempt to demonstrate that further disclosure was necessary to his trial preparation and, during trial, never requested a continuance before beginn ing cross

- examination .” ( Id. at pp. 110

– 111 , fn

. omitted .) In reaching its decision, the Valdez Court noted that “‘[t]here is no general constitutional12

right to discovery in a criminal case’” and that “‘“the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded.”’” ( Id . at pp. 109

– 110, quoting Weatherford v. Bursey (1977) 429 U.S. 545, 559

– 561 [no constitutional
violation for “surprise” witness where no request for a continuance].) A continuance is not only the normal remedy in California for a belated disclosure by the prosecution, but in many other jurisdictions a s well

. Indeed, the failure of the defense to seek such a remedy, or to take advantage of it if offered by the trial court, has often been cited by courts as justifying the rejection of motions for an exclusionary
sanction . For example, in People v. Bobo (Ill. App. Ct. 2007) 874 N.E.2d 297, the trial court did not abuse its discretion in refusing to exclude one of the defendant’s postarrest
statements as a sanction for the prosecution’s disclosure of the statement on the morning
of trial , because defendan t rejected trial court’s offer of a continuance and because the

statement was immediately disclosed by the prosecution upon its discovery . ( Id . at
p. 308.)
In State v. Royal (Mo. 1981) 610 S.W.2d 946, the prosecution failed to timely provide the defense w ith statements that he had made to police. The defense was unaware of these statements until the prosecution’s opening argument, even though the prosecutor had first learned of these statements four days before trial. The Missouri Supreme Court found tha t the trial court properly exercised its discretion in not excluding the belatedly disclosed statements because defense counsel acted in a contradictory
manner. On the one hand she claimed that if she had received the statements prior to trial, “ she would have prepared different questions and defense strategy .” ( Id . at p. 953.)
On the other hand, she failed to “seek[] a continuance

. . . so that such [a] ‘strategy’ could have been developed. ” ( Ibid .)
In State v. Hale (Ohio 2008) 892 N.E.2d 864, the Supreme Court of Ohio held that the trial court properly admitted pretrial oral statements by the defendant to law enforcement officers even though written summaries of those statements were not prepared by the prosecution, as required by the discovery statutes, and even though the prosecution did not timely disclose those statements in accordance with the trial court’s13

orders. ( Id . at p. 891.) The Suprem e Court affirmed the conviction because “ the record does not show pre

judice. The defense was not surprised by these statements, because defense counsel had actual foreknowledge of their content. Nor did the defense request a continuance to prepare to cross

- examine [the officers], ‘ the trial court may have properly
determi ned that appellant was prepared to proce ed despite any claim of unfair

“ surprise. ” ’” ( Id . at p. 892.) Similarly, in Thomas v. State (Md. Ct. App. 2007) 919 A.2d 49, the trial court was found to have acted within its discretion by refusing to exclude a sta tement that the defendant made to a federal agent but which was not disclosed in accordance with the discovery rule, because the prosecution notified the defense immediately upon learning of
the statement (which was a week before trial)

. ( Id . at p. 58.) In reaching its decision , the
court in Thomas declared that “[e] xclusion of evidence for a discovery violation is not a favored sanction and is one of the most drastic measures that can be imposed. ” ( I bid .)
The Maryland Court of Appeal fou n d it significant that the defendant requested “ only
that the trial court exclude the evidence. He was not interested in a continuance .” ( I bid .) While the court found defendant’s disdain of a continuance significant, it did not find it surprising. The co urt noted that defendants, when confronted with a failure by the prosecution to meet a discovery deadline “‘ frequently forego requesting the limited remedy [ of a continuance] that would serve th [e] purposes [of the discovery statutes] because those purpose s are not really what the defense hopes to achieve. The defense, opportunistically, would rather exploit the State’ s error and gamble for a greater
windfall. ’” ( Id. at p. 60. ) The Thomas court further noted that the defendant’s bid for a
windfall exclus ion was based on a misreading of the discovery statute s : “‘ “ The discovery law is not an obstacle course that will yield a defendant the windfall of exclusion every time the State fails to negotiate one of the hurdles. Its salutary purpose is14

to prevent a defendant from being surprised. Its intention is to give a defendant the necessary time to prepare a full and adequate defense. ” ’ ” ( Ibid .) 7

E

. The trial court did not abuse its discretion in admitting the propensity
evidence
Here , we agree with the trial court and Castaneda that “there was a less than stellar investigation” into the charged offenses and the possibility of other related but uncharged
offenses . However, we part ways with Castaneda on several important points. First, when relevant evid ence regarding uncharged offenses was ultimately unearthed, it was produced to Castan e da and his counsel “immediately”

— that is, in
accordance with Evidence Code section 1109 ( & § 1054.7 )

. Following Ram ire z’s testimony outside the presence of the jury on O ctober 1, 2014, the prosecutor asked the detective to do another search to ensure there was no police report from the 2012
incident. The detective did a search on “a system called DCTS” and provided the search results to the prosecutor. Upon reviewing th e search results, the prosecutor noticed there was a listing of a December 15, 2012 incident that could have been the one described by Ramirez. The prosecutor receive d the report regarding the December 2012 incident on the morning of O ctober 2, 2014, and produced a copy to Castaneda’s counsel that same
mornin g before trial resumed. Similarly, the prosecutor received the photographs from the December 2012 incident on October 3, 2014 and produced them to counsel later that same day.

7 These cases are joined by a long list of others holding that a defendant’s failure to request a continuance (or avail oneself of one if offered by the trial court) is a strong indication that the belatedly dis closed evidence is not unfairly prejudicial to the defendant’s case. (See, e.g., Tester v. State (Ark. 2000) 30 S.W.3d 99, 104; Commonwealth v. Janard (Mass. App. 1983) 450 N.E.2d 660, 662; Commonwealth v. Rodgers (Pa. 1983) 456 A.2d 1352, 1355

– 1356; Peop le v. Brown (Ill. 1982) 436 N.E.2d 696, 702; State v. Thacker (N.C. App. 1980) 262 S.E.2d 305, 306; State v. Festo (Conn 1980) 435 A.2d 38, 44; State v. Starks (A riz. 1979) 596 P.2d 366, 369; Taylor v. State (Fla. App. 1974) 292 So.2d 375, 376.)15

Second, suppression of b elatedly produced evidence regarding uncharged incidents is a last resort, available “ only if all other sanctions have been exhausted.” (§ 1054.5, subd. (c), italics added.) The statute requires exhaustion of other remedies, in part, because the Legislat ure has made the determination that in domestic abuse cases , as in sexual abuse and elder abuse cases, propensity evidence should ordinarily be
admissible. (See People v. Soto (1998) 64 Cal.App.4th 966, 983

– 990 [discussing Evid

. Code , § 1108 and parallel provisions in Fed

. Rules Evid

. ].) Here, not all other sanctions

were exhausted. In particular, Castaneda refused to even request a continuance, even though that is one of the other remedies listed in section 1054.7 and even though the trial
court indicat ed that it would seriously consider such a request

. Third, while it is plain that People’s investigation was not a model of efficiency and diligence , there was, as the trial court found, no evidence of bad faith conduct by the police or the prosecutor. A trial court’ s inquiry into whether the People’s handling of
evidence was done in good faith or bad faith is essentially a factual inquiry and, as such, the proper standard of review is substantial evidence. (See People v. Me mro (1995) 11 Cal.4th 786, 831 , overruled on a different point in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 .) Substantial evidence is evidence that is “ reasonable, credible, and of
solid value

. ” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11 .) “‘“‘“ If the circumstances

reasona bly justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. ”’”’” ( Ibid .)
He re, there is no evidence that the p olice or the prosecutor deliberately delayed discovery of the evidence concerning the December 2012 incident until trial was underway so as to gain a tactical advantage over Castaneda and his counsel . In fact, the evidence sug g ests the exact opposite, tha t the delay was due solely to inadvertence and
mistake. The uncon t roverted evidence is that the investigating detective initially missed
the police report regarding the December 2012 incident because the names “Maria
Ramirez” and “J ose Castaneda” are common names that appear in large numbers in the detective case tracking system , making a search for them “akin to searching [for] John1 6

Smith , ” a search that can be difficult due to slight variations in the spelling of names

. Thus, a t w orst, the evidence shows negligence on the part of the police in not locating the documents and pictures from th e December 2012 incident earlier. However, under both
criminal and civil law, negligence does not constitute bad faith. (See People v. Ochoa ( 1998) 19 C al.4th 353, 417

– 418 [ negligent failure to preserve evidence does not violate due process ] ; Chateau Chamberay Homeowners Assn

. v. Associated Intern at . Ins. Co

. (2001) 90 Cal.App.4th 335, 351 [“[s] loppy or negligent claims handling does not rise to the level of bad faith”] .) In sum, the trial court did not abuse its decision in admitting evidence of the prior uncharged offenses which were not disclosed at least 30 days before trial. Under the circumstances of this case, the court’s decision was bot h reasoned and reasonable.
II. There was no abuse of discretion regarding the People’s opening sta te ment “‘Prosecutors play a dual role in the criminal justice system; they are advocates, but they are also administrators of justice. [Citation.] “‘[I]t is their sworn duty to see that the defendant has a fair and impartial trial, and that he be not convicted except by competent and legitimate evidence

. . . . ’ ” [Citation.] ’ [Citation.] A prosecutor’ s intemperate behavior violates the federal Con stitution when that behavior comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. ” ( People v. Williams (2009) 170 Cal.App.4th 587, 628.) “A prosecutor commits misconduct by elici ting evidence in violation of a ruling by the trial court or by referring during opening statements or closing arguments to evidence that the trial court has determined to be inadmissible.” ( Id. at p. 629.) “‘A defendant’ s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’” ( Id. at p p

. 628

– 629.)

“‘“ A mistrial should be granted if the court is apprised of prej udice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motion s.”’” ( People v. Lucero (2000) 2317

Cal.4th 692, 713

– 714.) “Accordingly, ‘ [w]e review a trial court ’ s denial of a motion for
mistrial for abuse of discretion. ’ ” ( People v. Lightsey (2012) 54 Cal.4th 668, 718 .) Here, there was prosecutorial misconduct . Th e prosecutor, contrary to an express and unambiguous ruling by the trial court the day before

— a ruling granting the People’s own motion to exclude any reference to Ramirez’s pregnancy

— mentioned in his opening statement that Ramirez was pregnant at the time of the charged offenses. However, th e prosecutorial miscondu ct was not so egregious that it infected the
whole trial with unfairness. First, there was only one reference to Ramirez’s pregnancy
in the prosecutor’s opening statement and it was a fleeting o ne. Second, and more critically, the prosecutor did not refer to the pregnancy ever again or attempt to elicit testimony about the pregnancy. Third, and most important, the trial court instructed the jury

— both before and after opening statements

— that the statements and argument by
counsel were not evidence. “[W] e presume that the jury relied on the instructions, not the arguments, in convicting defendant. ” ( People v. Morales (2001) 25 Cal.4th 34, 47.) Finally, the fact that Castaneda was convicted of o nly the lesser included offense of battery on the domestic violence count

— a result that the trial court considered to be a “great verdict” for the defense given the evidence

— indicates that the l one reference to Ramirez’s pregnancy did not inflame the jury against him. In other words, when the single, brief reference to Ramirez’s pregnancy is weighed against the evidence regarding the charged offenses and the prior uncharged offenses, it is not reasonably probable that a
result more favorable to the defenda nt would have been reached without the misconduct

. Accordingly, we hold that the prosecutor’s fleeting and isolated reference to Ramirez’s

pregnancy was harmless. ( People v. Boyette (2002) 29 Cal.4th 381, 434

– 435.) In sum, the trial court did not abuse its considerable discretion with respect to
either the admission of the belated ly discovered propensity evidence or t he prosecutor’s misstep with respect to his opening statement. “[G]iven the myriad safeguards provided to assure a fair trial, and t aking into account the reality of the human fallibility of the participants, there can be no such thing as an error free, perfect trial, and

. . . the Constitution does not guarantee such a trial.” ( United States v. Hasting (1983) 461 U.S.18

499, 508

– 509.) In other words, Castaneda was “ entitled to a fair trial not a perfect one. ” ( People v. McNally (2015) 236 Cal.App.4th 1419, 1433.) And that is what he received, a
fair trial.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED

.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

LUI, J.