Filed 10/20/20 P. v. Vasquez CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR DAVID VASQUEZ,

Defendant and Appellant.

 B300560

 (Los Angeles County

 Super. Ct. No. BA473165)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Terry A. Bork, Judge. Affirmed. 

Jenny M. Brandt, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Roberta L. Davis and William H. 

Shin, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
2

Hector David Vasquez appeals from a judgment which 

sentences him to county jail for misdemeanor assault and 

vandalism. Vasquez asserts the trial court erred when it 

admitted the responding officer’s body camera video. We affirm.

FACTS

Vasquez and Louis Mora were roommates in a board and 

care facility. On November 25, 2018, Vasquez showed a knife to

Mora while they were in the bedroom and threatened to “get”

him. He did not otherwise approach or harm Mora with the 

knife. Mora froze out of fear, but eventually left the room to sit 

on the couch in the living room. Immediately after Mora left the 

bedroom, Vasquez began to throw things, including the 

television. He tore the smoke alarms from the ceiling. Vasquez 

also hit Mora three times on the cheek. 

Mora went next door and told Derek Sanchez, another 

resident, and Sharon Coye, the manager of the facility, about 

what happened. Sanchez called the police. When Coye arrived 

next door, she observed Vasquez “tearing [the house] apart.” 

She also observed Vasquez “snatching” the smoke detector down 

from the ceiling. Although she did not see Vasquez break any 

windows, she heard glass shattering in the bathroom and 

bedroom while Vasquez was in those rooms. She asked Vasquez, 

“What the hell [are] you doing?” 

Sanchez also observed the front window and bathroom 

window were broken. He noticed two holes in the ceiling but did 

not think they were a result of damaged smoke detectors. 

Sanchez did not see any bruising on Mora’s face. 
3

Vasquez was charged with one felony count of assault with 

a deadly weapon (Pen. Code, § 245, subd. (a)(1);1 count 1) and one 

misdemeanor count of vandalism (§ 594, subd. (a); count 2). 

At trial, the jury heard testimony from Mora, Coye, 

Sanchez, and one of the responding officers, Officer Stephen 

Geiger, regarding the incident as described above. Mora 

admitted his memory was not good. He was unable to recall 

details of the incident or of the trial proceedings from the 

previous day. Officer Geiger testified Mora had a split lip and 

Vasquez had injuries to the back of his head. The prosecution 

played portions of video retrieved from Officer Geiger’s body 

camera to the jury over the defense’s objection. The video showed 

a smoke alarm dangling from the ceiling as well as a hole in the 

ceiling. 

The jury found Vasquez guilty of misdemeanor vandalism 

but could not reach a verdict on the felony assault charge. 

The court declared a mistrial as to that count and Vasquez later 

pleaded no contest to misdemeanor assault. The trial court 

sentenced Vasquez to a total of 728 days in county jail. Vasquez 

appealed both convictions. 

DISCUSSION

Vasquez contends Officer Geiger’s body camera video 

should have been excluded. In the alternative, Vasquez argues 

the trial court should have instructed the jury regarding late-filed 

discovery, such as in CALCRIM No. 306.

2 The parties agree the 

1 All subsequent section references are to the Penal Code.

2 CALCRIM No. 306 provides in pertinent part: “Both the 

People and the defense must disclose their evidence to the other 

side before trial, within the time limits set by law. Failure to 
4

video was turned over to defense counsel late and without good 

cause in violation of section 1054.1. We conclude the trial court 

did not abuse its discretion to admit portions of the video into 

evidence. In any event, any error resulting from its admission

was harmless. 

I. Proceedings Below

Trial began on Monday, June 3, 2019. Four days before 

trial, on Thursday, May 30, 2019, the prosecutor sent defense 

counsel a hyperlink to the video footage from Officer Geiger’s 

body camera. The video was approximately two hours long and 

recorded Officer Geiger’s interview with Mora and displayed his 

walk through of the house. The prosecutor included the 

recording in his exhibit list, which was filed on the first day of 

trial. 

When the prosecutor began to play parts of the video to the 

jury during Mora’s testimony, defense counsel objected. At 

sidebar, the parties discussed the late disclosure and other issues 

associated with the video. The trial court overruled all defense 

objections, except the one based on late discovery, which it took 

up after the jury was excused for the day. In the meantime, the 

prosecutor continued to use portions of the video to question 

Mora.

follow this rule may deny the other side the chance to produce all 

relevant evidence, to counter opposing evidence, or to receive a 

fair trial. An attorney for the (People/defense) failed to disclose: 

<describe evidence that was not disclosed> [within the legal time 

period]. In evaluating the weight and significance of that 

evidence, you may consider the effect, if any, of that late 

disclosure.” 
5

The following day, defense counsel raised the issue of late 

discovery and sought to exclude the video. The prosecutor

conceded the People did not timely fulfill their discovery 

obligation but explained it was because the prosecution believed 

the parties would reach a plea agreement. “[A]s soon as this 

matter was set for trial . . . , all discovery was requested, and [the 

prosecutor] . . . turned [it] over as early as it was available to [the 

prosecution].” The prosecutor argued “everybody acted in good 

faith here to get everything to the defense as soon as possible.” 

The trial court deferred its decision until the end of the day. 

After the jury was excused for the day, defense counsel 

again moved to exclude the video or, alternately, he requested a 

late-discovery instruction. He stated the hyperlink was sent to 

him late in the day on Thursday, May 30, but he did not see it 

until Monday, June 3, because he had taken Friday off. Defense 

counsel also complained the recording of the 911 call was not 

disclosed until that morning, even though the case had been 

ongoing for six months. He asserted untimely disclosure was 

commonplace. Defense counsel urged the trial court to exclude 

the late discovery so the “People will start following their 

obligations of discovery.” Otherwise, there were no consequences

for the People’s failure to provide timely discovery. 

The prosecutor explained the final pretrial conference was 

held on May 29, 2019. At that point, the calendar district 

attorney made a request to the investigating officer “to reissue 

any body worn video to [the prosecutor’s office].” The body 

camera file was created at 9:00 a.m. on May 30, 2019, and an 

email with the link to it was sent to defense counsel by 3:55 p.m. 

Records showed the file was not downloaded from the server until 

noon on June 3, 2019. The prosecutor acknowledged the People 
6

were not absolved of their discovery obligations. However, “in a 

busy calendar court like this one, not every case gets worked up 

in entirely th[e] way that it should.” 

The prosecutor further argued it was not appropriate to 

address systemic discovery delays by the D.A.’s office. The

prosecutor instead suggested defense counsel “take it up with 

[the D.A.’s] office and the police department if they want to have 

a discussion about some kind of systemic problem. . . .” Defense 

counsel disputed the prosecutor’s characterization of their 

negotiations, indicating “clearly we were nowhere 

near . . . coming to a resolution [of the case].” 

The trial court stated it was tempted to “send the word 

down the line, as it were, that the D.A.’s office has to get more 

serious about [late discovery] . . . because it is a problem [seen]

with some regularity.” However, the court believed the way to 

solve the problem was through the “management level” of the 

police and prosecutors’ offices. The trial court stated it found the 

proper remedy for the late discovery was a continuance of the 

trial “for a day or a week or longer if necessary . . . .” 

The court found there was no bad faith on the prosecutor’s 

part or any prejudice to Vasquez from the late discovery. The

court found the evidence was not exculpatory Brady3 material, 

but inculpatory evidence. As a result, it denied the motion to 

exclude. It also declined to give the late-discovery instruction to 

the jury, finding it would not assist it in any productive way to 

decide the merits of the case. 

3 Brady v. Maryland (1963) 373 U.S. 83, 87. 
7

The court, however, ordered the prosecutor to show defense 

counsel the portions of the video he intended to play to the jury. 

The court believed this would ameliorate any disadvantage to 

defense counsel from the late discovery. 

II. Governing Law

Section 1054.1 requires the prosecution disclose to the 

defense “[a]ll relevant real evidence seized or obtained as a part 

of the investigation of the offenses charged” and “[a]ny 

exculpatory evidence.” (§ 1054.1, subds. (c) & (e).) Absent good 

cause, section 1054.1 disclosures must be made at least 30 days 

before trial or immediately if discovered or obtained within 30 

days of trial. (§ 1054.7.) Section 1054.7 limits good cause “to 

threats or possible danger to the safety of a victim or witness, 

possible loss or destruction of evidence, or possible compromise of 

other investigations by law enforcement.” (§ 1054.7.)

A court may make any order necessary to enforce the 

discovery provisions upon a showing the prosecution failed to 

comply with section 1054.1 and the moving party had made an 

informal discovery request. (§ 1054.5, subd. (b).) These orders 

include, but are not limited to, immediate disclosure, contempt 

proceedings, delaying or prohibiting the testimony of a witness or 

the presentation of real evidence, continuance of the matter, or 

any other lawful order. Further, the court may advise the jury of 

any untimely disclosure or of any failure or refusal to disclose. 

(§ 1054.5, subd. (b).) If these sanctions have been exhausted, the 

trial court may also prohibit the testimony of a witness.

(§ 1054.5, subd. (c).)

“[T]he usual remedy for noncompliance with a discovery 

order is not suppression of evidence, but a continuance.” (People 

v. Robbins (1988) 45 Cal.3d 867, 884, superseded by statute on 
8

another ground as stated in People v. Jennings (1991) 53 Cal.3d 

334, 387, fn. 13.) It is the defendant’s burden to establish that 

the prosecution’s failure to comply with discovery requirements 

in a timely manner was prejudicial and that a continuance would 

not have cured the harm. (People v. McKinnon (2011) 52 Cal.4th

610, 688 (McKinnon).)

We reverse the trial court’s choice of a discovery sanction 

only if we find an abuse of discretion. (People v. Ayala (2000) 23 

Cal.4th 225, 299; People v. Jackson (1993) 15 Cal.App.4th 1197, 

1203.) 

III. The Trial Court Did Not Abuse Its Discretion 

Vasquez contends the only appropriate remedies for the 

late disclosure are exclusion of the video or a late-discovery jury 

instruction. We disagree. 

First, we are persuaded by McKinnon, supra, 52 Cal.4th at 

page 668, there was no abuse of discretion arising from the trial 

court’s decision not to suppress the video. In McKinnon, the 

prosecutor failed to provide timely discovery. The defendant did 

not seek a continuance and made no showing of how his defense 

would have been different if timely discovery had been provided.

The Supreme Court held the trial court did not abuse its 

discretion by failing to exclude the evidence because the 

defendant failed to meet his burden of showing that a 

continuance would not have cured the harm and that the 

prosecutor’s discovery violation was prejudicial. (McKinnon, 

supra, 52 Cal.4th at p. 668.)

As in McKinnon, Vasquez did not request a continuance, 

despite the trial court’s indication that it was the proper remedy 

for late disclosure. A continuance of even one day would have 

provided trial counsel with the time to thoroughly assess the two-
9

hour video. We are not convinced by Vasquez’s argument that

such a short continuance would have been “entirely 

inappropriate” because Vasquez was in custody. By the time of 

trial, Vasquez had been in custody more than six months.

Moreover, Vasquez made no showing to the trial court that 

his defense would have been different had he been provided 

timely discovery of Officer Geiger’s body camera evidence.

On appeal, Vasquez argues his trial counsel’s ability to present a 

full defense was hampered by the late disclosure. According to 

Vasquez, his trial counsel was unable to assess whether the video 

contained objectionable content, exculpatory evidence, or 

impeachment evidence and simultaneously prepare for trial. 

However, Vasquez fails to identify any actual objectionable, 

exculpatory, or impeachment footage contained in the video. 

Given these facts, we follow McKinnon and conclude the trial 

court did not abuse its discretion by failing to exclude the body 

camera video.

Neither has Vasquez shown the trial court abused its

discretion by declining to give the late-discovery instruction. 

Inexplicably, Vasquez supports his assertion that the latediscovery instruction should have been given by citing to cases 

not applicable here. The authorities he relies upon address 

eyewitness identification and witness credibility in general. 

(See People v. Glaude (1983) 141 Cal.App.3d 633, 642 [eyewitness 

identification]; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 

883 [general witness credibility].) Perhaps he relies on misplaced 

case law because there is a well-established line of authority 

which indicates that while the trial court has discretion to give 

an instruction on untimely disclosure of evidence, the court 

should not give the instruction unless there is evidence of a 
10

prejudicial violation of the discovery statute. (See People v. Bell

(2004) 118 Cal.App.4th 249, 254–257; People v. Cabral (2004) 121 

Cal.App.4th 748, 752–753.) There was no such prejudice here. 

As discussed above, Vasquez failed to demonstrate how his 

defense would have been different had he timely received the 

evidence. As a result, the delayed discovery instruction was 

properly denied. 

In sum, we find no abuse of discretion.4 Here, the trial 

court ordered the prosecutor to disclose to defense counsel the 

portions of the video he intended to display to the jury. We find

the trial court properly exercised its discretion to craft an 

appropriate remedy to ameliorate the effects of the late 

disclosure. (People v. Jenkins (2000) 22 Cal.4th 900, 952 [courts 

have broad discretion to craft a remedy for a discovery violation 

to address any potential prejudice suffered by a party].) 

IV. Any Error Was Harmless

Given the facts of this case, any error in failing to exclude 

the body-worn camera footage or failing to instruct the jury with 

a late-discovery instruction was harmless under any standard. 

4 Having determined no prejudicial error resulted from the 

trial court’s evidentiary ruling, we need not reach Vasquez’s 

constitutional claims, or his claims of ineffective assistance of 

counsel. (People v. Prince (2007) 40 Cal.4th 1179, 1243 [“ ‘ “As a 

general matter, the ordinary rules of evidence do not 

impermissibly infringe on the accused’s [state or federal 

constitutional] right to present a defense.” ’ ”]; People v. Price 

(1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective 

assistance by failing to make motions or objections that counsel 

reasonably determines would be futile”].)
11

“A violation of section 1054.1 is subject to the harmlesserror standard set forth in People v. Watson (1956) 46 Cal.2d 818, 

836.” (People v. Verdugo (2010) 50 Cal.4th 263, 280.) However, if 

a discovery violation implicates a defendant’s constitutional 

rights, a reviewing court evaluates whether the error is harmless 

beyond a reasonable doubt as described in Chapman v. California

(1967) 386 U.S. 18, 24. (People v. Gonzalez (2006) 38 Cal.4th 932, 

961.) 

The evidence that Vasquez committed misdemeanor 

vandalism was overwhelming. Misdemeanor vandalism is the 

destruction or damage to property causing less than $400 in

damage. (§ 594, subd. (b)(2).) The eyewitnesses uniformly 

testified to the destruction and damage to property by Vasquez in 

the board and care facility. Mora observed Vasquez throwing 

things in the living room, including the television, and damaging 

the smoke alarm. Coye testified Vasquez was “tearing [] apart” 

the house when she arrived, including breaking the smoke 

alarms and putting a hole in the ceiling. Sanchez agreed there 

were holes in the ceiling that were not there before the incident. 

Both Coye and Sanchez testified the front window and bathroom

window were broken. 

Vasquez dismisses the eyewitnesses’ testimony, contending 

it was inconsistent in two ways: (1) Mora testified Vasquez 

damaged the television but Coye testified there was no damage to 

the television and (2) Mora and Coye testified the smoke alarms 

were damaged but Sanchez testified no smoke detectors were 

damaged. According to Vasquez, the eyewitness testimony was 

unreliable, and the only reliable evidence of damage was the 

video footage showing the smoke alarm dangling from the ceiling.
12

As a result, the admission of the video evidence was prejudicial 

error. We disagree. 

First, Vasquez mischaracterizes the witnesses’ testimony 

regarding the damage to the television. The reporter’s transcript 

shows Mora testified Vasquez threw the television to the floor 

twice, but it did not break. Mora’s testimony is entirely 

consistent with Coye’s testimony that there was no damage to the 

television. 

Second, Vasquez ignores Coye’s and Sanchez’s consistent

testimony that the front window and bathroom window were

broken. The video shown to the jury does not reveal whether the 

windows were broken. Indeed, the video did not show the 

bathroom and only partially showed the front window. Coye’s 

and Sanchez’s testimony is sufficient by itself to support a 

conviction for misdemeanor vandalism.

Third, there are only minor inconsistencies regarding the 

damage to the ceiling and smoke detectors. Sanchez testified no 

smoke detectors were damaged, which is contrary to Mora’s and 

Coye’s testimony. However, Sanchez testified he noticed holes in 

the ceiling that had not been there before. This testimony was 

entirely consistent with Mora’s and Coye’s testimony that there 

was damage to the ceiling. We disagree these minor 

inconsistencies rendered the eyewitness testimony suspect. 

As discussed above, Mora, Coye, and Sanchez all testified to 

damage to the home caused by Vasquez. The video evidence 

served only to support the eyewitness testimony; it was not the 

sole reliable evidence of damage.
13

V. Vasquez Has Forfeited His Challenge to the 

Assessments 

Last, Vasquez argues the trial court improperly imposed a 

$30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1))

and a $40 court operations assessment (Gov. Code, § 1465.8, 

subdivision (a)(1)) after it determined he lacked the ability to pay

restitution. We find Vasquez has forfeited these issues. 

During the sentencing hearing, the following colloquy 

occurred: 

“The Court: . . . Does your client have the present ability to 

pay fines, fees, and assessments?

[Defense counsel]: He does not, your Honor. He was 

unemployed at the time, living in a board and care.

The Court: Thank you. Pursuant to Dueñas[,5] the 

restitution fine of $100 is stayed. And I am, though, 

required to impose the $30 facilities assessment and $20 

per count court security fee for a total of $40 as to that fine. 

[¶] People, do you want to have a hearing to be able to 

prove up that he also has the present ability to pay the 

restitution fine as well?

[Prosecutor]: No, your Honor. It’s submitted as to that.

The Court: Thank you. So the only fines are $30 facilities 

and total of $40 for the security fee.”

Vasquez remained silent and did not object to the 

assessments when they were imposed by the trial court. As a 

result, he forfeited these claims. (People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1154 [failure to object to trial court fees 

precluded defendant’s Dueñas challenge]; see also People v. 

5 People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
14

Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 

Cal.4th 680, 729.)

DISPOSITION

The judgment is affirmed.

BIGELOW, P. J.

WE CONCUR:

STRATTON, J.

WILEY, J.