Filed 6/28/16 P. v. Johnson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAYVION TERRELL JOHNSON,

Defendant and Appellant.

 B259608

 (Los Angeles County

 Super. Ct. No. NA096374)

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J. 

Ferrari, Judge. Affirmed.

Stanley Dale Radtke, 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, Assistant Attorney General, Shawn McGahey Webb and 

Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Dayvion Terrell Johnson (defendant) appeals from the 

judgment entered upon his conviction of burglary, attempted robbery, and assault with a 

firearm. Defendant contends: (I) that the trial court erroneously denied his “Faretta

motion” for self-representation;

1

(II) that the trial court abused its discretion by failing to 

conduct an investigation into the impartiality of one of the jurors; (III) that the trial court 

erroneously denied his request for a continuance due to a discovery violation; (IV) that 

the trial court erred by excluding a police detective’s prior inconsistent statement; (V) 

that his second-strike sentence and five-year serious felony enhancement were 

unauthorized because (A) they were not alleged in an information, (B) the trial court did 

not grant express leave to amend the information to allege those enhancements, and (C)

the trial court did not have authority to grant leave to amend the information after 

defendant had waived a jury trial on the prior-conviction allegations and the jury had 

been discharged; (VI) that the burglary sentence in count 1 must be stayed; and (VII) that 

the cumulative effect of all the asserted errors requires reversal. We find no merit to any 

of defendant’s contentions, and affirm the judgment.

BACKGROUND

Defendant was charged in count 1 with second degree commercial burglary, in 

violation of Penal Code section 459,

2

in counts 2 and 3, with attempted second degree 

robbery, in violation of sections 664 and 211, and in counts 6, 7, 8, and 9, with assault 

with a firearm, in violation of section 245, subdivision (a)(2).3 The information further 

alleged the following enhancements: as to counts 2 and 3, that defendant personally used 

a firearm within the meaning of section 12022.53, subdivision (b); as to counts 3 and 7, 

that defendant personally inflicted great bodily injury upon Christopher Morris (Morris), 

 

1 See Faretta v. California (1975) 422 U.S. 806, 820-821 (Faretta).

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

3 On the first day of trial, counts 4, 5, 10, and 11 were dismissed on the prosecutor’s 

motion. A first amended information, omitting the dismissed counts was then filed.
3

within the meaning of section 12022.7, subdivision (a); as to counts 1, 6, 7, 8, and 9, that 

defendant personally used a firearm within the meaning of section 12022.5, subdivision 

(a); and as to counts 1, 2, 3, 6, 7, 8, and 9, that defendant had suffered two prior 

convictions for which he served prison terms within the meaning of section 667.5, 

subdivision (b).

On June 3, 2014, defendant waived a jury trial on the prior convictions. On June 

5, 2014, a jury found defendant guilty of all seven counts as charged, and found true the 

firearm and great bodily injury allegations. A court trial on the prior convictions was 

continued to August 19, 2014.

On August 19, 2014, a second amended information was filed, but does not appear 

in the clerk’s transcript. In discussions with the court, however, the parties agreed that 

the second amended information alleged the two prior convictions in case No. TA081856 

were violations of Health and Safety Code sections 11351.5 and 11359, with an 

additional allegation that the violation of section 11351.5 included a true finding under 

section 186.22, making the offense a “strike” within the meaning of the “Three Strikes” 

law, section 1170.12, subdivision (b), as well as a serious felony within the meaning of 

section 667, subdivision (a).4 On October 10, 2014, the date set for a court trial on the 

prior convictions and sentencing, defendant waived his right to a trial on the prior 

convictions, and admitted that in case No. TA081856, he was convicted on February 3, 

2006, of a violation of Health and Safety Code section 11351.5, with a true finding under 

section 186.22, subdivision (b)(1)(A), as well as a conviction of a violation of Health and 

Safety Code section 11359. Defendant also admitted that in case No. LA063690, he was 

convicted of a violation of section 273.5.

The trial court sentenced defendant to a total of 23 years 4 months in prison. The 

court selected count 7, assault on Morris with a firearm, as the principal term, and 

imposed the high term of four years, doubled as a second strike to eight years, plus four 

years under section 12022.5, subdivision (a), three years under section 12022.7, and five 

 

4 See section 1192.7, subdivision (c)(28).
4

years under section 667, subdivision (a)(1). As to count 6, assault with a firearm upon 

Zane Lopez (Lopez), the court imposed a consecutive one-third of the middle term, 

doubled to two years, plus one-third the middle firearm enhancement of one year four 

months. The court imposed a total term of 32 months plus 10 years as to each of the 

attempted robbery convictions (counts 2 and 3), and stayed execution of both terms 

pursuant to section 654. The terms imposed on the remaining counts were ordered to run 

concurrently to the principal term.

Defendant filed a timely notice of appeal from the judgment.

Prosecution evidence

At approximately 12:23 p.m. on July 13, 2013, three men entered the Long Beach 

arts and crafts store owned by Lopez. Lopez testified to the events that ensued and 

narrated the video taken from the store’s surveillance cameras. Lopez’s children were in 

the back room where one of the men, later identified as defendant, followed Lopez. 

Defendant hit Lopez with a gun and pushed his son to the floor. Defendant then left the 

back room with his gun in his hand. Lopez and his children escaped through the back 

door and asked a neighboring shopkeeper to call the police.

Lopez employed Morris to make the incense sold in the shop. Morris testified that 

he was working outside the shop at his cart when the three men entered the store and 

spent a few minutes inside. Morris narrated the part of the surveillance video which 

showed his interaction with the men, as it was played for the jury. This part of the video

began at 12:28 p.m., a few minutes after defendant had taken Lopez to the back room.

When one of three men came back outside to buy a pack of incense, Morris took his 

money, put it on the counter inside the store, and assisted one of the others with incense. 

As Morris headed back outside, two of the men pulled him back into the store. Morris 

struggled with the two men, who wrestled him backward until he hit a wall. It was then 

the man Morris later identified as defendant came out of the back room with a gun and 

pointed it at Morris. As Morris attempted to pull one of the men in front of him as a 

shield, defendant hit Morris on the head with the gun about five times. Morris suffered 
5

an injury that required staples to close and left him with recurring headaches and memory 

loss.

Acupuncturist Deok Sang Yu (Yu), whose clinic was next door to Lopez’s shop, 

testified to hearing unusual loud noises, which caused him to look next door where he 

saw the glass door closed, being held shut by a man. When Yu tried to open the door, he 

saw a man on top of and holding another man. When Yu saw a gun, he ran away, but 

was able to see three men rushing to a truck parked in front of the clinic. Yu wrote down 

the license plate number before the truck sped away.

Investigating officer, Detective Fermin Gonzalez, testified that the police later 

found the truck parked on a street, set up surveillance, and waited until several men, 

including defendant, got into the truck. Defendant and another suspect identified in the 

crime were arrested. The third suspect was not found.

Defense evidence

Marianne Shea, Los Angeles County Sheriff’s Department Senior Criminalist and 

expert in DNA analysis, testified that she conducted DNA analyses of the items of 

evidence found at the crime scene. She compared the DNA recovered from the items to 

defendant’s DNA profile, and did not find a match.

Dr. Robert Shomer testified as an expert witness on factors involving perception, 

memory, and eyewitness identification. He explained that eyewitnesses typically had 

greater difficulty in identifying strangers, especially in stressful situations such as when a 

weapon is involved.

DISCUSSION

I. Faretta motion

Defendant contends that the trial court erroneously denied his request to represent 

himself, resulting in a violation of his Sixth Amendment right to self-representation.

Defendant also contends that the trial court erred in finding that the motion was untimely 

and thus treating the ruling as a matter of discretion. He argues that his request for selfrepresentation was unequivocal and timely under the circumstances.
6

The Sixth Amendment to the United States Constitution grants criminal 

defendants the right to counsel in all proceedings that may substantially affect their 

rights. (Mempa v. Rhay (1967) 389 U.S. 128, 133-134.) The right to counsel may be 

waived if the waiver is knowing and intelligent. (Faretta, supra, 422 U.S. at p. 807; 

People v. Bradford (1997) 15 Cal.4th 1229, 1363.) When a defendant in a criminal trial 

makes an unequivocal assertion of the right to self-representation within a reasonable 

time prior to trial, the right of self-representation is absolute. (People v. Windham (1977)

19 Cal.3d 121, 127-129 (Windham).) When the motion is untimely, even if unequivocal, 

it is within the trial court’s discretion to grant or deny it. (People v. Lynch (2010) 50 

Cal.4th 693, 721 (Lynch), overruled on other grounds in People v. McKinnon (2011) 52 

Cal.4th 610, 636-643.) “[A] trial court may consider the totality of the circumstances in 

determining whether a defendant's pretrial motion for self-representation is timely.” 

(Lynch, supra, at p. 726.)

“Unlike the right to representation by counsel, the ‘“right of self-representation is 

waived unless defendants articulately and unmistakably demand to proceed pro se.”’ 

[Citations.]” (People v. Danks (2004) 32 Cal.4th 269, 295 (Danks).) Thus, courts must 

draw every reasonable inference and indulge in every reasonable presumption against

waiver of the right to counsel. (Ibid.) “‘In determining on appeal whether the defendant 

invoked the right to self-representation, we examine the entire record de novo.’

[Citation.]” (Ibid.) We are not bound by the trial court’s determination that the 

defendant unequivocally invoked his right to self-representation. (People v. Boyce

(2014) 59 Cal.4th 672, 703.) The applicable standard of review for a trial court’s 

determination of the timeliness of a Faretta motion is unclear, but as to both 

determinations, we review all the surrounding circumstances. (See People v. Marshall

(1997) 15 Cal.4th 1, 25-26 (Marshall).)

Defendant was represented by the same deputy public defender from the 

preliminary hearing and arraignment in August 2013 until February 2014. On February 

13, 2014, the date first set for defendant’s jury trial, the public defender declared a 

conflict, and deputy alternative public defender (APD) F. Lacey informed the court that 
7

defendant had expressed a desire to represent himself. Defendant confirmed to the court 

that he wished to represent himself and he was prepared to start trial that day. Defendant 

told the court that he intended to use the prosecution evidence in his defense, and to call 

just one witness. The trial court explained defendant’s rights and obligations, as well as 

the perils of self-representation, and determined that defendant had not previously 

represented himself in court. The prosecutor pointed out that defendant had expressed 

concerns about DNA evidence, including the hope that it would exonerate him, but the 

results of DNA tests would not be available for three weeks. Defendant claimed his prior 

counsel had requested the DNA results and the prosecution had unreasonably delayed in 

submitting samples. After considering the advantages and disadvantages of a 

continuance or going to trial without the DNA results or the assistance of counsel, 

defendant conferred with APD Lacey. Thereafter APD Lacey informed the court that 

despite his explanations concerning the complexities of trial and the fact that the court 

would not help him, defendant remained “fairly certain of his desire to represent 

himself.” Defendant agreed with APD Lacey’s suggestion to set a pretrial conference in 

30 days to permit his office (which was appointed) the chance to become familiar with 

the case and to obtain the DNA analysis. At the continued pretrial conference, defendant 

appeared with APD Steve Kwon, who had been assigned to defendant’s case.

APD Kwon represented defendant at four more court hearings between March 13 

and May 27, 2014. On May 27, the day set for trial, defendant sought appointment of a 

new counsel because defendant was dissatisfied and thought the results of four DNA 

analyses had been withheld from him. Defendant was also unhappy because his counsel 

refused to call defendant’s alibi witness. (See People v. Marsden (1970) 2 Cal.3d 118

(Marsden).) After an in camera hearing in which defendant explained his reasons for the 

request, and defense counsel responded, the court denied the motion and trailed the trial 

for two days.

On May 29, defendant brought another Marsden motion on the same grounds. 

Another in camera hearing was held during which defendant repeated his belief that DNA 

test results had been withheld, as well as his complaint that counsel would not call his 
8

alibi witness. Defendant also explained that his cell phone had been taken from him at 

the time of arrest and defense counsel had not obtained telephone records to verify he 

was not near the crime scene at the time of the crime. After defense counsel explained 

his strategy and defendant’s disagreement with it, the court again denied the motion.

After a discussion on the record regarding the DNA evidence, the cell phone 

evidence, and defense counsel’s request for a continuance, defendant asked to speak 

again to the court in camera. When the trial court denied the request, defendant said, 

“You all denying my right to a writ?” Then, after defense counsel conferred with him, 

defendant said to the court, “You all can have this trial without me. I’m out of here.” 

Defense counsel advised defendant to sit down, and the bailiff said, “Hold on a second,” 

but defendant said, “Fuck this trial. And I love you baby,” and “Be fair, be fair with me,” 

as he left the courtroom. When defendant later reentered the courtroom, the court 

informed him he had the right to waive his presence at trial if that was his desire. 

Defendant explained he did not want to waive his presence, but he felt uncomfortable 

going to trial with present counsel. When the court refused to revisit its Marsden ruling, 

defendant asked, “Why I can’t get new counsel? I already told you he called me a piece 

of shit and, ah, a coward. He disrespected my wife. He simply told me something about 

a statement she made.” The court reiterated defendant’s right to waive his presence, and 

defendant replied, “I’m not wavering [as spoken] my rights. I’m just not going to trial 

with this counsel.” As the court was explaining that defense counsel would be 

representing him, defendant interjected, “You see him? You see him?” Defense counsel 

and defendant conferred quietly for a moment, then defendant said, “I’ll go pro per, that’s 

what I’ll do, as a matter of fact”; and after another word with counsel, defendant said, 

“Continue my case so I can get all my discovery, all my copies, every transcript, 

including today. I go pro per.” The court noted that the jury was on its way to the 

courtroom, and denied the motion.

The issue is whether defendant unequivocally asserted his right to selfrepresentation. We apply “a ‘stringent standard’ for judging the adequacy of the 

defendant’ s invocation because of the strong presumption against waiver of the right to 
9

counsel”; thus, “an insincere request or one made under the cloud of emotion . . . [¶] . . . 

out of a temporary whim, or out of annoyance or frustration, is not unequivocal . . . .

[Citation.]” (Marshall, supra, 15 Cal.4th at pp. 21, 23; see also Danks, supra, 32 Cal.4th 

at pp. 295-296.) Even when a request is expressed affirmatively and with certainty, it is 

not unequivocal where the record demonstrates, for example, that it was an impulsive 

response to the trial court’s refusal to consider a Marsden request or an ‘“emotional 

reaction to the trial court’s denial of a motion for substitute counsel . . . .’” (People v. 

Valdez (2004) 32 Cal.4th 73, 99 (Valdez); Danks, at p. 296.)

Here, the record demonstrates that after the trial court denied two Marsden

motions and refused to hear another, defendant reacted emotionally. He expressed his

frustration with profanity and walked out of the courtroom, ignoring the advice of his 

counsel and the bailiff’s direction to remain. When defendant returned to the courtroom, 

he made it clear he wanted to have substitute counsel by asking, “Why I can’t get new 

counsel?” and by stating, “I’m just not going to trial with this counsel.” When the court 

responded that there would be no substitute counsel, defendant said, “I’ll go pro per, 

that’s what I’ll do, as a matter of fact.” Defendant’s statement was not a request. It more 

closely resembled the “blackmail” attempted after the denial of a Marsden motion in 

People v. Lopez (1981) 116 Cal.App.3d 882, 889. Indeed, defendant warned, “Continue 

my case so I can get all my discovery, all my copies, every transcript, including today. I 

go pro per.” Like the defendant in Lopez, defendant’s words were “at best equivocal and 

hardly an unqualified waiver since he only wanted to represent himself if the court would 

not give him another attorney.” (Lopez, at pp. 889-890.)

Moreover, we agree with respondent and the trial court that defendant’s request 

was untimely. Although there is no “single point in time at which a self-representation 

motion filed before trial is untimely,” many cases have held that Faretta motions made 

on the “eve of trial” are untimely. (Lynch, supra, 50 Cal.4th at pp. 722-723, citing 

Valdez, supra, 32 Cal.4th at p. 102 [motion made “‘moments before jury selection was 

set to begin’”]; People v. Horton (1995) 11 Cal.4th 1068, 1110 [motion made on the date 

scheduled for trial]; People v. Clark (1992) 3 Cal.4th 41, 99-100 [case continued day-to-
10

day with “jury selection set to begin at any time”]; People v. Frierson (1991) 53 Cal.3d 

730, 742, [motion made on “the eve of trial”].) However, “pertinent considerations may 

extend beyond a mere counting of the days between the motion and the scheduled trial 

date.” (Lynch, supra, at p. 723.)

Although defendant’s Faretta motion was made just before jury selection, he

contends that under the circumstances, it was timely because he first requested selfrepresentation over three months before trial commenced, and was then dissuaded by 

APD Lacey, who was then replaced by APD Kwon in an apparent “bait and switch 

maneuver.” To the extent that defendant is suggesting that the delay in making the 

second Faretta motion on the day of trial was the result of his reliance on the expectation 

that APD Lacey would represent him, the record shows otherwise. Defendant was 

concerned with the absence of a DNA analysis, so he agreed to the appointment of the 

APD and to a 30-day delay to obtain the DNA analysis and to allow the APD to become 

familiar with the case. When defendant appeared in court the following month with APD 

Kwon assigned to his case, defendant made no objection or any mention of an 

expectation that APD Lacey would be his lawyer. APD Kwon then represented 

defendant for the next two and one half months and through four more court hearings, 

during which defendant neither renewed his Faretta motion nor requested substitute 

counsel. On the day set for trial, defendant brought a Marsden motion for new counsel, 

and renewed the motion twice on the day trial began. Only then did defendant renew his 

Faretta motion. Under these circumstances we find the motion was untimely.

In ruling on an untimely Faretta motion, the trial court should consider such 

factors as “the quality of counsel’s representation of the defendant, the defendant’s prior 

proclivity to substitute counsel, the reasons for the request, the length and stage of the 

proceedings, and the disruption or delay which might reasonably be expected to follow 

the granting of such a motion.” (Windham, supra, 19 Cal.3d at p. 128.) “[A] trial court’s 

exercise of discretion in denying an untimely Faretta motion is properly affirmed if 

substantial evidence in the record supports the inference that the court had those factors 

in mind when it ruled. [Citation.]” (People v. Bradford (2010) 187 Cal.App.4th 1345, 
11

1354.) We are satisfied that the trial court here had those factors in mind: defendant’s

apparent reason for the request was frustration over the denial of his Marsden motions; in 

denying defendant’s request for substitute counsel the trial court found that APD Kwon 

was providing effective and competent counsel; jury selection was about to begin; and 

granting the motion would require a continuance to obtain, in defendant’s words, “all my 

discovery, all my copies, every transcript, including today.” Upon reviewing all the 

circumstances, we find no abuse of discretion.

II. Investigation of juror misconduct

Defendant contends that the trial court abused its discretion by failing to conduct

an investigation into whether Juror No. 10 had made up his mind prior to deliberations,

and whether he was in fact an impartial juror. Defendant argues, in effect, that a sua 

sponte obligation to exercise this discretion was triggered by a comment made by Juror 

No. 10 after the verdicts were recorded.

Before excusing the jury, the trial court asked Juror No. 10, “[Do] you mind if I 

make an observation, you’re not going to get your feelings hurt?” Juror No. 10 replied, 

“I know what it’s going to be.” The court commented that Juror No. 10 planned to 

become a doctor and said, “I want you to tell me.” Juror No. 10 replied, “Would it be 

that you know, like, I could tell like my mind was made up?” The court replied, “No, no 

- - Oh, man,” and asked, “What do doctors make you do all the time?” Juror No. 5 

interjected, “Wait.” Juror No. 10 understood the court had been referring to his tardiness

and agreed, but noted that he had arrived on time that morning. The court replied, 

“That’s good,” and then thanked the jury and excused them.

Defendant has cited no authority which would require or permit the trial court to 

conduct, on its own motion, a postverdict investigation into possible juror misconduct. 

Citing People v. Hedgecock (1990) 51 Cal.3d 395 (Hedgecock) and People v. Hayes

(1999) 21 Cal.4th 1211, defendant suggests that that the California Supreme Court

enunciated such a rule. It did not; instead, the court explained that “if during a trial the 

court becomes aware of possible juror misconduct, it must ‘make whatever inquiry is 

reasonably necessary to determine if the juror should be discharged . . . .’ [Citation.]” 
12

(Hedgecock, supra, at p. 417, italics added.) After trial, on the other hand, “when a 

criminal defendant moves for a new trial based on allegations of jury misconduct, the 

trial court has discretion to conduct an evidentiary hearing to determine the truth of the 

allegations. . . . [T]he defendant is not entitled to such a hearing as a matter of right.” 

(Id. at p. 415, italics added.)

Here, it was unnecessary to resolve material, disputed issues of fact, as Juror No. 

10’s comment was not made during trial and defendant did not move for a new trial on

the ground of juror misconduct. When juror misconduct comes to light postverdict, the 

trial court’s obligation to make a reasonable inquiry arises only after the defendant has 

requested an evidentiary hearing to obtain support for a motion for new trial. (See, e.g.,

People v. Leonard (2007) 40 Cal.4th 1370, 1410; People v. Carter (2003) 30 Cal.4th 

1166, 1216-1217.) Moreover, “[t]he hearing should not be used as a ‘fishing expedition’

to search for possible misconduct, but should be held only when the defense has come 

forward with evidence demonstrating a strong possibility that prejudicial misconduct has 

occurred. Even upon such a showing, an evidentiary hearing will generally be 

unnecessary unless the parties’ evidence presents a material conflict that can only be 

resolved at such a hearing.” (Hedgecock, supra, 51 Cal.3d at p. 419; see also People v. 

Hayes, supra, 21 Cal.4th at p. 1255.)

Juror No. 10’s comment did not demonstrate a strong possibility of juror bias, as 

defendant contends. Defendant assumes that Juror No. 10 made up his mind about guilt 

prior to deliberations. However, the juror did not say what he made his mind up about or 

when he did so. “[I]t is not prejudging for a juror to form an opinion about the proper 

verdict before deliberations begin, provided that the juror’s opinion is based on the 

evidence presented at trial and not on extrinsic matters. [Citations.]” (In re Bolden

(2009) 46 Cal.4th 216, 226; see People v. Leonard, supra, 40 Cal.4th at p. 1412.) Inquiry 

into Juror No. 10’s mental processes would not have produced admissible evidence, and 

questioning each other juror to determine whether Juror No. 10 expressed this thoughts in 

more detail would probably not have been admissible. (Evid. Code, § 1150; Hedgecock, 
13

supra, 51 Cal.3d at pp. 418-419.) It would in either event have been a prohibited “fishing 

expedition” to search for possible misconduct. (Id. at p. 419.)

Moreover, the inquiry would have been a purely academic fishing expedition. 

Defendant has not suggested a remedy if the trial court had conducted an investigation 

and found prejudicial juror misconduct. A trial court has no authority to grant a new trial 

on its own motion. (People v. Masotti (2008) 163 Cal.App.4th 504, 508; see People v. 

Clark (2011) 52 Cal.4th 856, 979, fn. 36.) Furthermore a trial court may not grant a 

motion for new trial on a ground not raised in the defendant’s motion. (Masotti, supra, at 

p. 508.) It follows that as the trial court had no reason to inquire into possible juror 

misconduct sua sponte, it did not err in failing to do so.

III. Denial of continuance

Defendant contends that the trial court erroneously denied his request for a

continuance in order to investigate data related to defendant’s cell phone. Defendant 

brought the motion after his counsel and the prosecutor learned on the first day of trial 

that the police had taken a cell phone from defendant at the time of arrest, but failed to 

book it into evidence or inform counsel.5 Defendant also complains that the prosecution

failed to turn over a six-pack photo array shown to victim Morris, as well as supplemental 

police reports prepared by Detective Gonzalez; and that both omissions amounted to a 

violation of the prosecution’s constitutional duty of disclosure as stated in Brady v. 

Maryland (1963) 373 U.S. 83 (Brady). Defendant further contends that the failure to 

turn over the cell phone was not only Brady error, but also a statutory discovery violation 

and a violation of his federal due process rights, in that it denied him a fair opportunity to 

prepare his defense.

 

5 Defendant contends that the disclosure was first made during the afternoon session 

as the morning was taken up with motions in limine and jury selection. In fact, the 

disclosure was made in the morning during motions in limine.
14

As respondent notes, it is unclear whether defendant seeks reversal due the denial 

of a continuance or due to Brady error.6 Regardless, we agree with respondent that 

whether defendant is challenging the denial of a continuance or the nondisclosure of 

evidence, his contentions have no merit.

Though defendant contends that reversal of his conviction would be the 

appropriate remedy for a Brady violation, he was aware of the existence of his cell phone 

prior to trial. Defense counsel and the prosecutor represented to the court that 

defendant’s wife had tried to retrieve the phone from defendant’s personal effects after 

his arrest but it had been taken by the police. It is not Brady error to fail to disclose 

evidence that was known, or should have been known to the defendant prior to trial, as 

“evidence is not suppressed unless the defendant was actually unaware of it and could not 

have discovered it ‘“by the exercise of reasonable diligence.”’ [Citations.]” (People. v. 

Salazar (2005) 35 Cal.4th 1031, 1049.)

Moreover, the trial court found that the cell phone records would not be relevant 

without some evidence that defendant carried the phone at the time of the crime, which 

was not the same day as his arrest. Defense counsel merely argued that defendant’s cell 

phone records might show that his cell phone was not near the crime scene during the 

relevant time, but made no offer to prove that he had his cell phone with him at the

relevant time. “Brady . . . does not require the disclosure of information that is of mere 

 

6

Indeed, defendant’s arguments contain comingled points. The heading for this 

section of the opening brief states that reversal is required “because the trial court 

erroneously denied appellant’s motion for a continuance, after the prosecution’s Brady 

violation, in derogation of his right to due process and a fair trial.” However, defendant 

concludes his argument as follows: “The government’s failure to produce the evidence 

of the very existence of the cell phone in a timely manner was Brady error requiring 

reversal per se.” The heading for defendant’s argument in reply states, “Prosecution’s 

failure to turn over potential exculpatory evidence violated appellant’s right to a 

fundamentally fair trial.” However, defendant concludes his argument on this point as 

follows: “For the reasons given above, this court should find that the trial court’s failure 

to grant a continuance in order to investigate the data contents of appellant’s cell phone, 

was reversible error, and should reverse the judgment of conviction and order a new 

trial.”
15

speculative value.” (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1472.) Rather, 

the Constitution requires disclosure only of material evidence; thus, “a violation occurs 

‘“only if there is a reasonable probability that, had [it] been disclosed to the defense, the 

result . . . would have been different.” [Citations.] The requisite “reasonable probability”

is a probability sufficient to “undermine[] confidence in the outcome” on the part of the 

reviewing court.’ [Citation.]” (People v. Salazar, supra, 35 Cal.4th at pp. 1049-1050; 

Kyles v. Whitley (1995) 514 U.S. 419, 434-437.)

Defendant also suggests that a continuance would have been an appropriate 

remedy for a statutory discovery violation. A continuance may be granted in the trial 

court’s discretion upon a showing of good cause and diligence, or as a sanction for a 

discovery violation. (See People v. Riggs (2008) 44 Cal.4th 248, 296; § 1050, subd. (e); 

§ 1054.5, subd. (b).) The court’s discretion is broad and will not be disturbed absent a 

clear showing of abuse. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Defendant did 

not request a continuance due to the missing photo array or police report, and he cannot 

demonstrate an abuse of a discretion he did not ask the court to exercise. (See People v. 

Burns (1987) 196 Cal.App.3d 1440, 1455.) Further, defendant did not demonstrate that 

he ever requested that the cell phone be turned over either prior to trial or once he learned 

of its location in Detective Gonzalez’s case file, as required in order to obtain discovery 

sanctions. (See § 1054.5, subd. (b).) Nor has he suggested that he sought discovery of 

the cell phone at any time prior to the verdict.7

Materiality of the evidence must be shown to recover sanctions for state law 

discovery violations. (People v. Zamora (1980) 28 Cal.3d 88, 100.) It is also a 

component of good cause for a continuance under section 1050, subdivision (e). (See 

Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 270.) An erroneous denial of a 

discovery sanction does not require reversal unless defendant shows prejudice under the 

 

7 Defendant mentioned the nondisclosure of the cell phone whereabouts as one of 

the grounds for his motion for new trial, but did not claim that discovery of the phone 

was requested prior to verdict and did not lodge a discovery motion until the date the new 

trial motion was heard, four months after the verdict.
16

standard of People v. Watson (1956) 46 Cal.2d 818, 836, by demonstrating a reasonable 

probability that the omission affected the trial’s result. (People v. Zambrano (2007) 41 

Cal.4th 1082, 1135 & fn. 13, overruled on other grounds by People v. Doolin (2009) 45 

Cal.4th 390, 421, fn. 22.) The Watson standard applies as well to the denial of a motion 

for continuance. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549.)

Defendant has made no showing of prejudice or materiality. He merely argues 

that the cell phone records might have contained text messages or other evidence that was 

potentially exculpatory if corroborated by the testimony of an expert witness or an alibi 

witness.8 Speculation does not demonstrate materiality for purposes of Brady. (People v. 

Jenkins, supra, 22 Cal.4th at pp. 954-955.) Nor is speculation sufficient to establish a 

reasonable probability under the Watson standard. (See People v. Gonzales (2012) 54 

Cal.4th 1234, 1254.) In sum, defendant has not demonstrated error, abuse of discretion, 

or prejudice.

IV. Impeachment

Defendant contends that the trial court erred in refusing to allow him to impeach 

Detective Gonzalez’s credibility with a prior inconsistent statement made to Williams 

during a postarrest interview. Defendant’s offer of proof was the following during a 

postarrest interview: “I told Williams about the evidence found and the DNA on the hat 

which fell off his head. Williams continued saying that was not him.” Defendant reasons

that this statement would have eroded Detective Gonzalez’s credibility because the only 

hat found at the scene, a Blue Jays baseball cap, did not contain a DNA match to 

Williams, and there were inconsistencies in the police reports relating to the identification 

of the suspects. The prosecutor represented to the court that Detective Gonzalez would 

testify that he never intended the interview statement to be truthful, but intended it as a 

ruse to provoke a response from Williams.

 

8 Defendant contends that his wife would have testified that he was not involved in

the incident. However, defense counsel stated that he did not call her because she was 

only able to say that defendant was usually home on the weekends.
17

Defendant suggests that the trial court was required to admit the impeachment 

evidence because it was admissible under an exception to the hearsay rule and it bore on 

the issue of credibility. Relying on Delaware v. Van Arsdall (1986) 475 U.S. 673, 680, 

defendant contends that the exclusion of the evidence amounted to an infringement of his

Sixth Amendment right of confrontation. “[A] criminal defendant states a violation of 

the Confrontation Clause by showing that he was prohibited from engaging in otherwise 

appropriate cross-examination designed to show a prototypical form of bias on the part of 

the witness, and [that a] reasonable jury might have received a significantly different 

impression of [the witness’s] credibility had [defense] counsel been permitted to pursue 

his proposed line of cross-examination.” (Ibid.)

A prior inconsistent statement is admissible under the hearsay exception of 

Evidence Code section 1235 to impeach the credibility of a witness who has given 

contrary trial testimony. (People v. McKinnon (2011) 52 Cal.4th 610, 672.) However, 

“‘not every restriction on a defendant’s desired method of cross-examination is a 

constitutional violation. Within the confines of the confrontation clause, the trial court 

retains wide latitude in restricting cross-examination that is repetitive, prejudicial, 

confusing of the issues, or of marginal relevance.’ [Citation.]” (People v. Ayala (2000)

23 Cal.4th 225, 301.) “‘[T]he latitude [Evidence Code] section 352 allows for exclusion 

of impeachment evidence in individual cases is broad. The statute empowers courts to 

prevent criminal trials from degenerating into nitpicking wars of attrition over collateral 

credibility issues.’ [Citation.]” (Ibid.) “‘Although . . . a criminal defendant has a 

constitutional right to present all relevant evidence of significant probative value in his 

favor [citations], “[t]his does not mean that an unlimited inquiry may be made into 

collateral matters; the proffered evidence must have more than ‘slight-relevancy’ to the 

issues presented.” [Citation.]’ [Citation.]” (People v. Homick (2012) 55 Cal.4th 816, 

865.)

Here, the trial court excluded the proffered evidence upon finding that it was not 

material, relevant, or probative. As respondent observes, defendant attempts to 

demonstrate the relevance of the Williams interview to the issues presented at trial by 
18

making a confusing and tenuous connection to Detective Gonzalez’s testimony that he 

and another officer had used different numerical shorthand for the suspects in their 

separate police reports. Detective Gonzalez designated defendant as suspect No. 1, 

Williams as suspect No. 2, and the suspect who was still at large as suspect No. 3, while 

another officer numbered the suspects 1, 2, and 3, but not in the same order. In his trial 

testimony, Detective Gonzalez pointed out the suspects in the surveillance video, 

indicating that suspect No. 3 was the suspect wearing a Toronto Blue Jays baseball cap.

However, defense counsel did not make clear how the two officers’ different labeling 

methods bore any relationship to the false hat claim made by Detective Gonzalez in the 

Williams interview, and defendant fails to clarify the relationship here. Moreover, the 

detective’s numbering of the suspects was not inconsistent with his own testimony, but 

with another officer’s numbering of the suspects, and defense counsel was not precluded 

from cross-examining Detective Gonzalez about that inconsistency. We agree with 

respondent that defendant has demonstrated no relevant connection between the officers’ 

numerical shorthand, Detective Gonzalez’s belief about who did or did not wear the Blue 

Jays cap, and the detective’s interrogation tactic in the Williams interview.

Defendant suggests that if the jury did not believe that the statement to Williams 

was a ruse, it would then show that Detective Gonzalez had falsely accused Williams, 

which would then permit the jury to infer that he was not believable. Such speculative 

inferences can have little, if any, probative value or relevance to the issues presented. 

(See People v. Babbitt (1988) 45 Cal.3d 660, 681-682.) Moreover, as defendant did not 

lodge the interview, it is not part of the record, and in argument to the court, defense 

counsel did not indicate the date of the interview. We thus presume that the date of the 

Williams interview and the context of the statement would support the trial court’s ruling. 

(See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) Whether the 

statement was a lie or Detective Gonzalez’s actual belief, the accusation of a suspect in

the course of the early stages of an investigation could give rise only to irrelevant

speculation regarding the detective’s credibility.
19

We conclude that defendant has failed to establish constitutional error or 

demonstrate that the trial court abused its discretion in excluding the evidence.

V. Second amended information

Defendant contends that his second-strike sentence and five-year enhancement 

were unauthorized because they were alleged in a nonexistent second amended 

information that the trial court did not expressly grant leave to file. Defendant also 

contends that the trial court did not have authority to grant leave to amend the 

information after defendant had waived a jury trial on the prior conviction allegations and 

the jury had been discharged.

A. The second amended information existed and was filed with leave of court

First, we reject defendant’s premise that the two challenged enhancements “were 

never a part of the accusatory pleading lodged against [him],” and that because the 

second amended information is missing from the superior court file, it must be presumed 

not to have been filed and to be nonexistent. We begin with the principle that error is not 

presumed from a silent record. (Denham, supra, 2 Cal.3d at p. 564.) “The defendant has 

the burden of showing the record is inadequate to permit meaningful appellate review. 

[Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 858.) This burden is not met

“simply citing an administrative dereliction,” but defendant must demonstrate that the 

record could not have been reconstructed. (People v. Coley (1997) 52 Cal.App.4th 964,

970.) Defendant has not met his burden.

The second amended information is not in the appellate record and was not found 

in the superior court’s file despite defendant’s several requests to the superior court clerk. 

However, in discussions with the trial court on August 19, 2014, both counsel and the 

court agreed that a second amended information had been filed.9It is apparent from the 

record that defense counsel received a copy of the second amended information, as he 

described it to the court and pointed out a typographical error in the title. “Second” had 

 

9 On October 10, 2014, the court noted that the minutes of August 19, 2014, were 

missing from the superior court file. Minutes were then prepared and filed on October 

28, 2014, but failed to mention the amended information.
20

been typed in but crossed out, and “First” had been rewritten on it. As there was already 

a first amended information in the record, the court and the prosecutor agreed with 

defense counsel that the newly filed amended information was in fact a second amended 

information.

Although the record reflects that defense counsel and the prosecutor each had a 

copy of the second amended information, defendant does not claim to have tried to obtain 

one of those copies or to prepare an agreed statement. We thus cannot presume that the 

second amended information was nonexistent, or that it was not filed on August 19, 2014.

Moreover, despite the confusing state of the record, it is discernible from the 

transcript of the oral proceedings that the amendment did not add any additional prior 

conviction. Instead it made a minor correction to one of the prior convictions already 

alleged in the original information and first amended information, by changing the 

violated code section from 11351 to 11351.5. Thus, this was not truly a previously 

unalleged prior conviction. The only additional allegation in the second amended 

information was that the prior conviction included a true finding under section 186.22, 

and was thus a serious or violent felony as defined in section 1192.7, subdivision (c), for 

purposes of sections 1170.12, subdivision (b)(1), and 667, subdivision (a). Further

explanation of the allegations were made on October 10, 2014. First, the prosecutor read 

the strike allegation: “[A]s to the charge under the strike law the [section] 1170.12(b), it 

is alleged in the first [sic] amended information that in case number TA081856 that you 

suffered a conviction of Health and Safety Code section 11351.5 and also the 

enhancement allegation of Penal Code section 186.22(b)(1)(A) on February 3, 2006.”10

After defendant entered his admissions, the trial court informed the prosecutor that he had 

neglected to read the allegation regarding the five-year enhancement. The court pointed 

out that on page 5 of the second amended information the strike prior was also alleged to 

be within the purview of section 667, subdivision (a).

 

10 Later in the hearing, the prosecutor clarified that it was the second amended 

information, the copy with the typographical error and a file date of August 19, 2014.
21

Given such circumstances, not only do we disagree with defendant’s contention 

that the two challenged enhancements “were never a part of the accusatory pleading 

lodged against [him],” we consider it disingenuous.

B. No express order was required

We next reject defendant’s contentions that the prosecution merely attempted to 

amend the information on August 19, 2014, and that the court was not authorized to grant 

leave to file a second amended information except by express order.

Defendant relies upon the following language of section 969a: “Whenever it shall 

be discovered that a pending . . . information does not charge all prior felonies of which 

the defendant has been convicted either in this State or elsewhere, said . . . information 

may be forthwith amended to charge such prior conviction or convictions, and if such 

amendment is made it shall be made upon order of the court.” Placing emphasis on “it 

shall be made upon order of the court,” defendant suggests that this language requires an 

express order.

On the contrary, the form of the order is not specified in the statute. In general, as 

well as in the case of an amendment authorized by section 969a, the trial court may hear 

an oral motion to amend and may amend an information on its own motion; and where an 

amended information was filed in open court, it is presumed to have been filed pursuant 

to leave of court, even where the minutes of the court do not so state and no order 

explicitly approves its filing. (People v. Leonard (2014) 228 Cal.App.4th 465, 477.)

Referring to the trial court’s statement at the August 19, 2014 hearing, that it 

would defer ruling on leave to file the second amended information, defendant appears to 

suggest that the absence of an express ruling must be deemed a denial. However, the 

court deferred the ruling in order to give the defense an opportunity to research whether 

the amendment was appropriate. The court added: “I think it is. But if it is appropriate, I 

will proceed on that amended information that it is a strike.” The parties then agreed to 

return on October 10, 2014, for a court trial on the prior convictions and for sentencing.

It is the defendant’s burden to object or otherwise call to the court’s attention that 

an amendment would prejudice his rights. (People v. Lewis (1983) 147 Cal.App.3d 1135, 
22

1140.) Further, to preserve a claim that the court erred in granting leave to file the 

amended information, defendant must object to the filing on the same ground to be urged 

on appeal. (People v. Spencer (1972) 22 Cal.App.3d 786, 799-800.) Defendant did not 

object to the amendment on August 19, 2014, and he appeared with counsel on October 

10, 2014, without having filed a demurrer or other objection to the second amended 

information. Even where no express order is entered allowing an amended information, a

failure to object amounts to consent to its filing. (People v. Beck (1945) 71 Cal.App.2d 

637, 641.)

Not only did defendant fail to object to the filing of the amended information 

during the nearly two months which the court gave him to do so, he did not object on 

October 10, 2014, until after he waived a trial and admitted the alleged prior convictions. 

Even then, defendant did not object on the grounds urged here. In the October 10 

hearing, after the prosecutor read the amended allegation that defendant had been 

convicted in case No. TA081856 of a violation of Health and Safety Code section 

11351.5, with a true finding under section 186.22, subdivision (b)(1)(A), defendant stated 

that he “partially” admitted the conviction. Defense counsel explained that defendant 

was admitting the prior conviction, but was disputing whether the true finding under 

186.22, subdivision (b)(1)(A), qualified the conviction as a strike. Defendant then 

admitted that prior conviction as well as the two alleged prior convictions which had not 

been amended. When the trial court reminded the prosecutor that he had not read the 

amended language alleging that the Health and Safety Code section 11351.5 conviction 

also subjected defendant to a five-year enhancement under section 667, subdivision (a),

defense counsel objected that defendant had not been arraigned on that amendment. 

Thus, the court then said to defense “I’m assuming you client is going to deny the

[section] 667(a) prior.” Counsel replied that he did.

The trial court then heard argument on whether the prior conviction under Health 

and Safety Code section 11351.5 qualified as a strike, and whether it also qualified for a 

five-year enhancement under section 667, subdivision (a). Defense counsel stated, “I 

agree that’s the law”; and he added, “We’re objecting to the amendment primarily.” No 
23

other ground was stated, and the trial court replied that it had already allowed the 

amendment. The court then found that defendant had admitted the prior conviction with 

the section 186.22 allegation, and that the conviction was a strike and came within the 

purview of section 667, subdivision (a).

In sum, the second amended information was filed and defendant was given nearly 

two months to object to its filing; defendant did not object, but instead waived trial on the 

prior convictions and admitted them, as well as the amended allegation that there had 

been a true finding under section 186.22 as to the Health and Safety Code section 

11351.5 conviction. Defendant’s only objection was to the amended legal effect of the 

prior conviction, and on appeal, he does not contend that the trial court erred in resolving 

that issue against him. We conclude that the second amended information was in fact 

filed with leave of the trial court, and that defendant has not preserved for appeal any 

objection to the filing of the second amended information.

C. No right to jury trial 

Defendant contends that because the jury was discharged, the information could

not be legally amended to add allegations that were not contemplated at the time of his

jury trial waiver, and thus the imposition of the strike and five-year enhancements 

resulted in an illegal sentence.

He relies on People v. Gutierrez (2001) 93 Cal.App.4th 15, which held that

defendant was denied his statutory right under section 1025, subdivision (b),11 to have 

the same jury decide the truth of his prior convictions. In that case, after the jury had 

been discharged, the trial court allowed the prosecution to file an amended information

adding a newly alleged prior conviction. (Id. at pp. 22-24.) The appellate court relied on 

People v. Tindall (2000) 24 Cal.4th 767 (Tindall), which held that section 1025, 

subdivision (b), prohibits amendments to allege prior convictions after the jury that 

 

11 Section 1025, subdivision (b) provides that “the question of whether or not the 

defendant has suffered the prior conviction shall be tried by the jury that tries the issue 

upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury 

impaneled for that purpose, or by the court if a jury is waived.”
24

decided the guilt issue has been discharged. (Id. at p. 782; People v. Gutierrez, supra, at 

pp. 22-23.)

Such cases have no application here as the second amended information did not 

add an additional prior conviction. It added the allegation that one of the already alleged 

prior convictions involved a true finding under section 186.22, with the legal effect of the 

conviction being whether it was a serious or violent felony as defined in section 1192.7, 

subdivision (c), for purposes of sections 1170.12, subdivision (b)(1), and 667, subdivision 

(a). While defendant may have a jury trial on the question of whether defendant suffered 

a particular prior conviction, it remains a question for the court whether that conviction 

met the statutory definition of a serious or violent felony. (People v. Kelii (1999) 21 

Cal.4th 452, 454, 457.) “Accordingly, the statutory right to have a jury decide whether 

the defendant ‘has suffered’ (§§ 1025, 1158) the prior conviction does not include the 

inquiry whether the conviction qualifies as a strike.” (Kelii, at p. 457.) Similarly, the 

serious felony finding required by section 667, subdivision (a), for the imposition of a 

five-year enhancement, is a legal question to be decided by the trial court. (People v. 

Williams (2002) 99 Cal.App.4th 696, 701.)12

When a prior conviction determination includes factual content, such as whether a 

burglary was a residential burglary, or whether prior convictions had been charged and 

tried separately, the question of whether the prior conviction was a serious or violent 

felony remains a court question so long as the fact is readily ascertainable upon 

examination of court documents. (Kelii, supra, 21 Cal.4th at p. 456.) Thus, if defendant 

had not admitted the section 186.22 finding, it would have been a legal issue for the court 

to determine from the record of conviction in case No. TA081856.

 

12 In Tindall, the California Supreme Court declined to consider whether a trial court 

could properly allow a postdischarge amendment to add prior convictions, when the only 

contested issue in the trial on the newly alleged prior convictions would be a legal issue 

for the court, and not the jury. (Tindall, supra, 24 Cal.4th at p. 773, fn. 4.) As no new 

prior convictions were alleged here, we need not consider the issue either.
25

It follows that even if defendant had not waived his right to have the same jury 

that found guilt also determine whether he had suffered the prior conviction in case No. 

TA081856, it would remain for the court, not the jury, to determine whether the

conviction qualified as a serious or violent felony as defined in section 1192.7, 

subdivision (c), for purposes of sections 1170.12, subdivision (b)(1), and 667, subdivision 

(a). Under such circumstances, the trial court did not err in permitting the postverdict, 

postdischarge filing of the second amended information. Defendant’s sentence was 

proper.

VI. Section 654 stay

Defendant contends that the trial court erred in imposing punishment for both the 

burglary (count 1), as well as the two attempted robberies (counts 2 & 3), and that the 

burglary sentence must therefore be stayed pursuant to section 654.

“Section 654 prohibits multiple punishment for a single physical act that violates 

different provisions of law.” (People v. Jones (2012) 54 Cal.4th 350, 358.) The accepted 

“‘procedure is to sentence defendant for each count and stay execution of sentence on 

certain of the convictions to which section 654 is applicable.’ [Citations.]” (Jones, at p. 

353.) As respondent observes, the trial court did not order the imposition and execution 

of all three sentences. The trial court imposed and stayed sentences on the two attempted 

robbery counts, and ran the burglary sentence concurrently with the principal term.

Defendant expressly acknowledges that the sentences imposed for the attempted 

robberies charged in counts 2 and 3, were stayed pursuant to section 654, and that the 

sentence for the burglary in count 1 was ordered to run concurrently. Defendant also 

expressly asserts that “section 654 requires that all but one count be stayed at sentencing” 

(italics added), and he does not contend that the burglary count should have been stayed 

instead of the attempted robbery counts. Under defendant’s own reasoning, there was no 

error.
26

VII. No cumulative error

Defendant’s final contention is that the cumulative effect of all the asserted errors 

requires reversal. “As we have found no substantial error in any respect, this claim must 

be rejected.” (People v. Butler (2009) 46 Cal.4th 847, 885.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

HOFFSTADT