P. v. Maxey

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Filed 1/31/08 P. v. Maxey CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL SCOTT MAXEY,
Defendant and Appellant.
E040818
(Super.Ct.No. FSB043741)
OPINION
APPEAL from the Superior Court of San Bernardino County. Marsha Slough,
Judge. Affirmed.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda
Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Kinnaird
Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

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On July 1, 2005, following a jury trial, defendant Michael Scott Maxey, was found
guilty of assault with a firearm (count 1; Pen. Code, § 245, subd. (a)(2)1) and making
criminal threats (count 2; § 422). The jury also found true the allegation that defendant
personally used a firearm in the commission of both counts (§§ 1203.06, subd. (a)(1),
12022.5, subd. (a)). On September 23, 2005, the trial court dismissed count 2 under
section 1385 upon motion of the People. Defendant was then sentenced to state prison
for a total term of 14 years.
I. FACTS
In March 2004, Derrell Garcia sold his Chevy Blazer to Michael Acosta. Because
Acosta failed to timely pay for the car, Garcia decided to repossess it. He enlisted the
help of Carlos Rene Reyes.
On the evening of March 31, 2004, Garcia drove Reyes to a residence where the
Blazer was parked. Without a key or notice to Acosta, Reyes got into the Blazer, started
the engine and began to drive away. As he was leaving, he was being pursued by a
Mustang convertible and a Camaro.
About two miles into the drive, a white car, the Mustang, was driving next to
Reyes. It did not have its headlights on, the top was down and there was only one person
inside, the driver. While stopped at a red light, the driver got out of the Mustang and
grabbed something from the trunk. Reyes became nervous and ran the red light. He
1 All further references are to the Penal Code unless otherwise indicated.

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continued driving and heard shots. One shot blew out the back window of the Blazer.
Reyes lost control of the Blazer and hit a street light.
When Reyes tried to walk away, the Mustang cut him off. The driver of the
Mustang, later identified as defendant, held a gun to Reyes’s head and said, “You stole
my truck.” He also said, “Get on your fucking knees, or I’m going to shoot you.” Reyes
got down on his knees. Defendant then ordered Reyes to sit on the curb, warning him
that he would be shot if he tried to run. Defendant called someone on his cell phone and
said that he had the guy who had stolen the truck. Defendant then walked over to the
Mustang and put the gun away.
Tracey Boynton, a resident of a group home located at the intersection, heard a
knock on the door. When she looked outside, she saw a man in a black sweatshirt
(Reyes) running across the street. She then saw the white Mustang swerve around a van,
drive up on the curb, and stop in front of Reyes. A man wearing a red shirt (defendant)
got out of the Mustang and pointed a gun at Reyes’s head, telling him, “Don’t move.”
Reyes sat down on the curb and crouched over. He started praying, saying, “Oh, God,
please don’t let him shoot me.”
Boynton called the police. While Boynton was on the telephone, she heard
defendant order Reyes to walk across the street. Reyes complied. Defendant then
walked over to the Mustang and bent down near it. After he straightened up, Boynton did
not see a gun.

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Officer Christopher Flowers of the San Bernardino Police Department arrived and
saw defendant reaching into the back seat of the Mustang, which was parked in the
middle of the road facing the wrong direction. Officer Flowers also saw Reyes standing
on the curb. Reyes was initially interviewed by Officer Tom Stieg. Reyes said that he
was not involved in the accident and was not driving the Blazer. Reyes later explained to
Officer Flowers that defendant pursued him in the Mustang and fired five rounds after
Reyes tried to repossess Garcia’s car. Reyes also told Officer Flowers that defendant
pointed a gun at him and threatened him.
Officer Steven Lyter recovered a Glock handgun from beneath the driver’s seat of
the Mustang. Defendant was subsequently arrested. As defendant was being arrested,
Boynton told dispatch that the man wearing the red shirt being arrested was the person
with the gun. Defendant was wearing a red shirt and blue jeans when he was arrested.
Defendant offered the testimony of Patricia Wilson, the director of the group
home, who said that Boynton is “a habitual liar.” It was stipulated that Garcia was on
probation for a misdemeanor case on the night of the incident and during the time he
testified. Arthur Bustamonte, an investigator with the public defender’s office, testified
about an interview of Boynton by Dwight Moore of the district attorney’s office. In that
interview, Boynton told Moore that she got up when she first heard the noises that made
her go outside, and she said that she used a cell phone to call the police.

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II. FILING OF A THIRD COMPLAINT AGAINST DEFENDANT
Defendant contends the trial court erred by allowing the filing of the third
complaint upon a finding of excusable neglect. He argues that the efforts made by the
investigators do not demonstrate excusable neglect.
A. Background
Defendant was arraigned on the first filed complaint on April 29, 2004. Because
the prosecution was unable to locate a witness, the matter was dismissed on June 24,
2004. The case was refiled the same day, proceeded to a preliminary hearing, and the
matter was set for trial. On September 13, 2004, the last date possible for trial to start,
the prosecution announced that it was unable to proceed. The case was dismissed a
second time.
In December 2004, the prosecution sought to file the matter for the third time.
The matter was continued for arraignment to January 3, 2005, in order for the defense to
prepare points and authorities in opposition to the third filing. On January 4, 2005, the
matter was continued because defendant had been transported to prison and was not
present.
Oral argument on the prosecution’s request to file the third complaint was held on
March 17, 2005. The prosecution offered the affidavit of Investigator Paul Amicone,
who stated his efforts to locate Reyes in June 2004. Investigator Amicone contacted
friends and family members of Reyes, who reported that Reyes had moved to Los
Angeles. When the investigator called Reyes’s sister, she stated that Reyes did not have

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a permanent address or phone number. She agreed to have Reyes contact the
investigator. A week went by and Reyes did not call the investigator. More calls were
made to Reyes’s sister; however, the investigator had a hard time getting anyone to
answer the phone. When the investigator next spoke with Reyes’s sister, she said that she
had left several messages for Reyes with another sister in Los Angeles and that Reyes’s
whereabouts were unknown. She refused to provide the number for the sister in Los
Angeles.
Investigator Amicone continued making calls to Reyes’s sister. On June 17, 2004,
no one answered. The next day, Reyes’s sister reiterated her understanding of Reyes’s
location. She explained that Reyes had left her house a few weeks ago on “bad terms.”
On June 21, the investigator had not heard back from either of Reyes’s sisters. He then
tried to contact Garcia but received no answer.
Following the dismissal of the case on June 24, 2004, Investigator Ronald Miller
was assigned to locate Reyes. On August 3, the investigator attempted service on
Reyes’s last known address. He then ran a criminal history and found an address in
Monterey Park. The attempted service in Monterey Park was unsuccessful because
Reyes no longer lived there. The investigator then contacted Garcia, who contacted
Reyes’s sister. The sister said that Reyes was staying with friends in El Monte, and she
would have Reyes contact Investigator Miller.
On August 31, 2004, Investigator Miller spoke with Garcia, who said that Reyes
had moved to Fontana. Garcia also said that he would attempt to get the address. When

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the investigator called Reyes’s sister, there was no answer. Finding an address for
Garcia’s wife in Baldwin Park, Investigator Miller had Reyes served there. Reyes had
never lived there. Checking the Los Angeles jail system on September 10, 2004, the
investigator was unable to locate Reyes. The second filing was dismissed on
September 13.
On October 4, 2004, Investigator Miller located Reyes in the Los Angeles jail and
learned that his release date was set for December 31. Reyes was released from custody
on October 24. The investigator continued to check with the Los Angeles jail system.
On November 29, he learned that Reyes was staying with his sister in Colton. On
December 2, Investigator Miller obtained an address for Reyes, and Reyes was served
with a subpoena to appear in court the next day. Reyes said he could not testify because
he would be labeled a snitch and harmed if he ever went back to jail. He also said that he
was going to testify that he did not remember anything.
On December 8, 2004, the prosecution moved for a third filing of the complaint on
the grounds that it was unable to locate Reyes, who had since been served and had
appeared in court. The motion included the declarations of Investigators Amicone and
Miller, detailing their attempts to locate Reyes. The defense opposed the motion. In
reaching its decision to grant the motion, the trial court stated: “Well, I tend to agree in
one regard and that is there’s been a substantial amount of display by the family of the
victim in this matter of uncooperativeness. However, I’m not convinced necessarily that
Investigator Miller’s efforts were superficial by virtue of the fact that he was essentially

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misled also. [¶] According to his declaration, he ran the victim, found he was in jail in
L.A. County and was not due to be released until December 31st, which would have put
him within the time period of the trial. So I think his reliance on that information was
sufficient. [¶] In checking back with L.A. County Jail, he finds out that the victim was
released early. And again it then starts the runaround of trying to locate him again.”
Ultimately, the trial court found that reasonable efforts were made. Although the court
did not find that such reasonable efforts satisfied due diligence, it opined that requirement
was unnecessary to move forward for this purpose.
B. Standard of Review
“Section 1387, subdivision (a) provides in pertinent part: ‘An order terminating
an action pursuant to this chapter . . . is a bar to any other prosecution for the same
offense if it is a felony . . . and the action has been previously terminated pursuant to this
chapter . . . .’ This [sic] commonly called in felony cases the two dismissal rule.
[Citations.] However, section 1387.1 provides: ‘(a) Where an offense is a violent felony,
as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined
in Section 1387, the people shall be permitted one additional opportunity to refile charges
where either of the prior dismissals under Section 1387 were due solely to excusable
neglect. In no case shall the additional refiling of charges provided under this section be
permitted where the conduct of the prosecution amounted to bad faith. [¶] (b) As used in
this section, “excusable neglect” includes, but is not limited to, error on the part of the
court, prosecution, law enforcement agency, or witnesses.’ Section 1387.1 is an

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exception to the so-called two-dismissal rule. [Citations.]” (People v. Mason (2006) 140
Cal.App.4th 1190, 1195-1196.)
“The term ‘excusable neglect’ in section 1387.1 is given the same construction in
criminal cases as it has been given in civil cases. [Citation.] ‘“Simply expressed,
‘excusable neglect is neglect that might have been the act or omission of a reasonably
prudent person under the same or similar circumstances.’” [Citation.]’ [Citation.]”
(Miller v. Superior Court (2002) 101 Cal.App.4th 728, 741, quoting People v. Massey
(2000) 79 Cal.App.4th 204, 211.) In Massey, “The ‘neglect’ under section 1387.1 was
the failure of the People to have the witnesses in court on the date set for the first trial.
This neglect was ‘excusable’ because reasonable efforts had been made to secure the
witnesses’ attendance.” (People v. Massey, supra, at p. 211.) “‘[I]f the police and
prosecution had done all that could be reasonably expected to locate their witnesses and
get them to court, and yet not succeeded, then, so far as concerns the construction of
section 1387.1, their failure should still be labeled excusable neglect, despite the absence
of any actual neglect, as commonly understood to include an element of carelessness or
lack of sufficient regard or effort.’” (Id. at p. 211.)
The application of section 1387.1 lies within the trial court’s discretion. Absent a
clear abuse of such discretion, or a showing of inexcusable neglect, we will affirm the
trial court’s decision. (People v. Woods (1993) 12 Cal.App.4th 1139, 1149.)

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C. Analysis
Based on the record before this court, we cannot say that the trial court abused its
discretion when it found that the prosecution’s failure to locate Reyes on September 13,
2004, was excusable neglect. Investigator Miller faced many obstacles in his search for
Reyes. It was clear that Reyes did not want to be a witness. He told the investigator that
testifying would result in his being labeled a snitch and being harmed if he ever went
back to jail2. Reyes also indicated that he would testify that he did not remember
anything. Thus, Reyes was purposefully trying to avoid being subpoenaed as a witness.
Reyes’s friends and family members attempted to help him avoid being found by being
evasive about his location. They claimed that he did not have a permanent address, no
phone, and that he moved around a lot. Outside of family and friends, Investigator Miller
checked the Los Angeles jail system and Reyes’s last contact address and number.
Contrary to defendant’s assertion, the investigator did not wait until right before trial to
begin searching for Reyes. The search began 40 days prior to trial. Likewise,
defendant’s claim that the investigator limited his search to family members and friends
is incorrect. Investigator Miller checked Reyes’s criminal history and current
incarceration. It is apparent that through no fault of the prosecution, the trial could not
commence on the two previous dates assigned because the main witness, Reyes, avoided
detection.
2 At oral argument, defense counsel questioned whether what was done to find
Reyes after September 13, 2004, was relevant. We find that it was relevant because it
provided further evidence of Reyes’s determination not to be found.

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Accordingly, the trial court’s excusable neglect finding and subsequent order
granting the prosecution’s motion to file a third complaint did not amount to an abuse of
discretion.
III. IMPEACHMENT OF BOYNTON
On appeal, defendant asserts the trial court violated his Sixth Amendment right to
confront witnesses (the confrontation clause) by refusing to allow him to impeach
Boynton with her probationary status and performance on probation.
A. Background
Prior to trial, defendant moved to impeach Boynton on her failure to perform her
probationary duties following a felony drug conviction. An Evidence Code section 402
hearing was held in which Boynton testified she was unaware there was a warrant for her
arrest for her failure to comply with the terms of her probation. Boynton admitted being
arrested in January 2000 for possession of rock cocaine. She pled guilty, entered a
diversion program, and was required to report to a parole officer. Boynton remembered
attending a court hearing on May 22, 2001, but did not remember her diversion program
being terminated. She said she was taken into custody for a few days and ordered to
report to CALTRANS and work on the weekends. She missed some days, so she had to
return to court and have the work release program reinstated. Boynton acknowledged
that she did not finish her weekend duties; however, she claimed that she checked with
probation in 2003 and was told that she was no longer in the system. Since then,
Boynton attended the prison ministry each year. By doing so, a background check on her

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was run each year. She was never informed of any problems with her probation.
Boynton was a witness at trial because she called 911 on the night of the incident and
reported the events to the dispatcher.
Defendant moved to impeach Boynton with her probationary status. The trial
court denied the motion on the grounds there was no showing that her testimony was
influenced by her probationary status. Instead, the court found that Boynton did not even
know that she was still on probation and had a warrant for her arrest. Thus, the court
concluded that Boynton’s probationary status was irrelevant because it lacked
impeachment value.
B. Analysis
A defendant’s rights under the confrontation clause are violated only when the
trial court’s ruling prevents the defendant from engaging in “‘“otherwise appropriate
cross-examination”’” designed to “‘“‘expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability of the witness.’”
[Citations.]’” (People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.) “‘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.] . . . . Thus, unless the defendant can show
that the prohibited cross-examination would have produced “a significantly different

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impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its
discretion in this regard does not violate the Sixth Amendment.’” (Id. at p. 1051.)
A witness’s probationary status is not always admissible for the impeachment
purposes. (People v. Chatman (2006) 38 Cal.4th 344, 374.) Rather, the defendant must
show the witness’s probationary status could have affected her testimony. (Ibid.; Davis v.
Alaska (1974) 415 U.S. 308, 315 [witness who was on probation and in vicinity of
business at time of robbery had motive to falsely identify another as a suspect to deflect
suspicion from himself]; People v. Adam (1983) 149 Cal.App.3d 1190, 1193 [prosecution
witness who was on probation, with defendant when he cashed checks allegedly stolen
from the defendant’s father, and apparently received funds from those checks, had motive
to cooperate with police]; People v. Espinoza (1977) 73 Cal.App.3d 287, 291 [victim
witness had motive to lie about his use of force because such use would violate the terms
of his probation].)
Here, there is no evidence that Boynton’s probationary status, or her performance
on probation, might have influenced her testimony. First, she was ignorant of the fact
that she was still on probation. Second, she had attended prison ministry each year which
subjected her to a check on her status. Third, she had no connection to either defendant
or Reyes. Fourth, she voluntarily called 911. If she was attempting to avoid contact with
law enforcement, she would have remained silent. And finally, as the prosecution points
out, the fact that her performance on probation was less than perfect could have been
attributed to reasons having no bearing on her veracity.

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IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant raises the issue of ineffective assistance of counsel based on his
counsel’s decision not to subpoena a witness.
A. Background
Following receipt of the jury’s verdict, defendant moved for a new trial. One of
the grounds was whether he had received the ineffective assistance of counsel.
Defendant claimed that his counsel failed to offer the testimony of Kevin Kiibert, a
witness who was interviewed by the officers on the night of the incident. Kiibert
identified both defendant and Reyes. Police reports indicate that Kiibert said he saw the
two men arguing in the road and that defendant was raising his right hand up and down.
Kiibert was not sure if either of them had a weapon. When Kiibert asked if they needed
help, defendant said they were okay and that they did not.
In response to the charge of ineffective assistance, defendant’s counsel explained
that he had located Kiibert in Louisiana through a family law file on day 55 of 60 of the
third filing. Counsel was familiar with processing witnesses from out of state and the
process is relatively slow. Because the prosecution had problems in the past with
locating Reyes, and because, as of day 55, Reyes remained absent, defense counsel
explained that he had made a tactical decision not to serve Kiibert. He did not want to
delay the trial during the time it would take to get Kiibert to California and thus give the
prosecution additional time and opportunity to bring Reyes to court. In defense counsel’s
mind, it was a “race for the finish line.” Counsel was questioned further: “But as that

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deadline that you just described was approaching, were you aware of the fact that the case
had already been filed twice by the district attorney, dismissed twice by the district
attorney, and if the trial didn’t go this third time around, the People would never again be
able to prosecute this?” Defense counsel answered, “Yes.”
B. Standard of Review
To establish a claim of ineffective assistance of counsel, a defendant must show
that his counsel’s performance was deficient and that the deficiency prejudiced his
defense. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Neely (1993) 6
Cal.4th 901, 908-909.) An attorney provides deficient representation, in violation of the
defendant’s state and federal constitutional right to the effective assistance of trial
counsel, if the attorney’s performance fell below an objective standard of professional
competence. (Strickland v. Washington, supra, at p. 687; People v. Ledesma (1987) 43
Cal.3d 171, 217-218.) To obtain reversal, the defendant must show both that counsel’s
performance was deficient and that the deficiency was prejudicial. In this context,
prejudice means that there is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the defendant. (Strickland v. Washington,
supra, at p. 687.) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Id. at p. 694; see also People v. Ledesma, supra, at pp. 217-
218.)

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C. Analysis
Here, we find neither deficient performance nor prejudice. According to defense
counsel, he chose not to serve Kiibert pending the third trial for tactical reasons.
Although appellate counsel claims the sole reason for not serving Kiibert was based on
insufficient time, the record indicates otherwise. It was a “race for the finish line.”
Specifically, counsel did not want to give the prosecution more time to locate Reyes.
Such strategy had worked for counsel during the first two attempts to bring the case to
trial. Although it wasn’t as successful during the third, the Attorney General suggests
that it was “likely Kiibert was not subpoenaed because he was not an exculpatory
witness.” We agree. According to the record, Kiibert positively identified defendant as
being at the scene and being involved in some sort of altercation with Reyes. Kiibert
could not positively say that defendant did not have a weapon in his hand. However,
Kiibert could confirm that defendant kept raising his hand. Such movement suggests that
there was something in his hand prompting him to raise it. Moreover, the fact that
defendant told Kiibert that they did not need any help indicates that defendant wanted
Kiibert to leave the scene. Clearly, Kiibert’s account of what happened does not qualify
as exculpatory evidence. Rather, it supports the versions of the facts of Reyes and
Boynton. As such, we cannot fault defense counsel for not calling a witness whose
testimony might do more harm than good. (People v. Miranda (1987) 44 Cal.3d 57,
121.) Likewise, we find no prejudice in the omission of Kiibert’s testimony. (People v.
Pope (1979) 23 Cal.3d 412, 424-425.)

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V. INSTRUCTIONAL ERROR RE: DISCOVERY VIOLATIONS
Defendant contends he was prejudiced by the prosecutor’s failure to timely
disclose the notes taken from his phone conversation with Boynton, Boynton’s prior
record, and Garcia’s prior record. Defendant also asserts the trial court abused its
discretion by refusing to instruct the jury that the prosecution failed to disclose evidence
in a timely manner.
A. Background
1. Interview notes
Prior to voir dire, defense counsel alleged that Deputy District Attorney Dwight
Moore (Moore) committed discovery violations by failing to disclose notes he had taken
of a phone interview with Boynton on June 10, 2004.3 In response, Moore acknowledged
his delay in turning over the notes; however, he argued that the defense was not
prejudiced. Later in the trial, the issue was revisited with a defense request to have
Moore take the stand. Moore characterized his notes as one page containing the
following: “Notes, phone con with Tracey Boynton, 6-10-04, at 2:00 p.m.”; “Gun,
hyphen, red shirt, comma, white, scribble, black pants, comma, white car”; “Gunman got
on cell phone before PD arrived”; and “On phone with 911.” Moore argued that he had
no recollection of the interview, but his notes speak for themselves. Moore also stated
3 Moore did not give his notes to defense counsel until three days before trial
commenced.

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that he had spoken with the defense investigator, and if the investigator was called as a
witness, Moore would not raise any hearsay objections.
The trial court refused to have Moore take the stand; however, defendant was
allowed to call his investigator as a witness. Investigator Arthur Bustamonte testified that
he had spoken with Moore about his interview with Boynton. Boynton told Moore that
she was in bed when she heard a noise and called 911 on a cellular phone.
2. Boynton’s prior record
At the same time that defense counsel raised the issue of Moore’s notes, he also
claimed that Moore failed to disclose Boynton’s prior record. Moore explained that he
ran Boynton through the CIA and DOJ databases and came up with no prior record. He
also said he would follow up on defense counsel’s belief that Boynton had a prior record
in Riverside. On the first day of voir dire, Moore explained that Boynton did have a prior
felony conviction for Health and Safety Code section 11350. The court found that the
crime was not one for moral turpitude and thus could not be used for impeachment
purposes. Defense counsel agreed; however, he requested to use Boynton’s performance
on probation for impeachment. As previously discussed, the trial court refused.
3. Garcia’s prior record
The day after Garcia testified, defense counsel informed the court that Garcia was
on probation for a prior misdemeanor drug conviction. Defense counsel requested the
court impose discovery sanctions on Moore. Most of the discussion regarding Garcia’s
probationary status was held in chambers and is not part of the record on appeal.

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However, the trial court later noted the issue of whether a bench warrant had been issued
and/or entered into the system for Garcia. Defense counsel did not allege a failure to
disclose Garcia’s prior record, merely the fact that he was on probation. The trial court
found Garcia’s probationary status admissible impeachment evidence and agreed to
inform the jury of this information via a stipulation. Thus, the jury was told: “Witness,
Mr. Garcia — Mr. Garcia was on probation on a misdemeanor case out of Riverside
County on the night of the incident and during the time that he testified during this trial.”
B. Standard of Review
Section 1054 et seq., also known as the reciprocal discovery statute, requires the
prosecutor to “disclose to the defendant or his or her attorney [certain] materials and
information, if it is in the possession of the prosecuting attorney or if the prosecuting
attorney knows it to be in the possession of the investigating agencies: [¶] (a) The names
and addresses of persons the prosecutor intends to call as witnesses at trial. [¶] . . . [¶]
(d) The existence of a felony conviction of any material witness whose credibility is
likely to be critical to the outcome of the trial. [¶] (e) Any exculpatory evidence. [¶]
(f) Relevant written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial . . . .” (§ 1054.1, subds. (a), (d),
(e) & (f).) In the absence of good cause, this evidence must be disclosed at least 30 days
before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)
Subdivision (b) of section 1054.5 provides, in part, “Upon a showing that a party
has not complied with Section 1054.1 . . . a court may make any order necessary to

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enforce the provisions of this chapter, including, but 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 failure or refusal to disclose and of any
untimely disclosure.” Subdivision (c) of that statute provides, however, “The court shall
not dismiss a charge pursuant to subdivision (b) unless required to do so by the
Constitution of the United States.”
The only substantive discovery mandated by the United States Constitution is the
disclosure of material exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83.
(People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1134.) The prosecutor’s failure to
fulfill this obligation is not at issue here because defendant does not claim that the
prosecution withheld exculpatory evidence. Clearly, notes from a phone conversation
with Boynton, Boynton’s prior record, and Garcia’s prior record amounted to no more
than impeaching evidence. Thus, defendant is only asserting a statutory violation, and, as
noted above, the sanctions available to the trial court for such discovery violation are
found in section 1054.5. However, once trial is over, these sanctions do not apply. In
order for defendant to prevail on appeal on the grounds of violation of the pretrial
discovery right of a defendant, he must establish that the information not disclosed was
exculpatory and that “it is reasonably probable, by state-law standards, that the omission
affected the trial result.” (People v. Zambrano, supra, at p. 1135, fn. 13; People v.
Watson (1956) 46 Cal.2d 818, 836.)

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C. Analysis
On the record before this court, defendant is unable to establish that there is a
reasonable probability of a different outcome. Regarding Moore’s interview notes, at
best, they showed inconsistency in Boynton’s testimony at trial. In Moore’s notes,
Boynton said defendant was wearing black pants; at trial, she said he was wearing white
pants. When shown a picture of defendant that was taken on the night of the incident,
Boynton indicated the clothes in the picture appeared to be the same clothes worn by the
man with the gun. In Moore’s notes, Boynton claimed to be in bed. At trial, she said she
was in the craft room. In Moore’s notes, Boynton claimed to call 911 on a cellular
phone. At trial, she testified that it was a cordless phone. These inconsistencies are
trivial, at best. In any event, the defense investigator testified to them. Thus, the late
disclosure did not affect defendant’s impeachment of Boynton’s testimony.
Regarding Boynton’s prior record, as we previously stated, the trial court properly
excluded its use for impeachment purposes. Accordingly, defendant was not prejudiced
by the late disclosure. Regarding Garcia’s prior record, defendant acknowledges, “The
late discovery of the Garcia information was cured by a stipulation that he was on
probation at the time of the charged incident and at the time he testified.” Given the
stipulation that was read to the jury, we cannot find that defendant was prejudiced. In
sum, we are unable to conclude that there is a reasonable probability the outcome of the
trial would have been different had the challenged evidence been disclosed in a timely
manner to defense counsel prior to trial. Regarding defense counsel’s request that the

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trial court instruct the jury, we note that defendant was told that he could ask for a
continuance; however, he declined. Because we cannot find that Moore’s actions were
willful, we cannot find any error in the trial court’s decision not to impose section 1054.4
sanctions in the form of notice to the jury pursuant to Judicial Council of California
Criminal Jury Instructions, CALCRIM No. 306. Thus, defendant’s claim of material,
prejudicial nondisclosure of evidence fails.
VI. CUMULATIVE ERROR DOCTRINE
Defendant contends that various errors are, taken together, prejudicial and require
reversal. Having found no individual prejudicial error, we also conclude there is no
cumulative prejudice. (People v. Cook ( 2006) 39 Cal.4th 566, 608.)
VII. IMPOSITION OF UPPER TERM
Defendant claims the trial court erred in imposing an upper term sentence based
on facts not found by a jury beyond a reasonable doubt nor admitted by him.
(Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856, 166 L.Ed.2d 856]
(Cunningham).)
A. Background
Defendant was convicted of assault with a firearm and criminal threats. The jury
also found that defendant personally used a firearm in the commission of both crimes. At
sentencing, the trial court found there were no circumstances in mitigation. As for the
circumstances in aggravation, the court found that the crime involved great violence in
the threat of great bodily harm and that defendant was on grant of probation at the time.

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(Cal. Rules of Court, rules 4.421(a)(1) & (b)(4).) The trial court sentenced defendant to
the upper term of four years for assault with a firearm and a consecutive 10-year term for
the firearm enhancement.
B. Analysis
“Other than a prior conviction, [citation] . . . ‘any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’ [Citations.]” (Cunningham, supra, 549 U.S. at p.
___ [127 S.Ct. at p. 864], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
“‘The relevant “statutory maximum”’ . . . “‘is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose without any
additional findings.’ [Citation.]” (Cunningham, supra, at p. 860, quoting Blakely v.
Washington (2004) 542 U.S. 296, 303-304 (Blakely).) Thus, ordinarily, “the middle term
prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.
[Citation].” (Cunningham, supra, at p. 868.)
However, “if one aggravating circumstance has been established in accordance
with the[se] constitutional requirements . . . the defendant is not ‘legally entitled’ to the
middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People
v. Black (2007) 41 Cal.4th 799, 813, fn. omitted.) “[S]o long as a defendant is eligible
for the upper term by virtue of facts that have been established consistently with Sixth
Amendment principles, the federal Constitution permits the trial court to rely upon any

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number of aggravating circumstances . . . regardless of whether the facts underlying those
circumstances have been found to be true by a jury.” (Ibid.)
According to defendant, there were no properly determined aggravating factors.
We disagree. In imposing the upper term, the trial court relied on defendant’s criminal
history, finding that he was on felony probation when he committed the current offense.
Under these circumstances, with one aggravating factor established in accordance with
constitutional requirements, defendant was a recidivist not “‘legally entitled’” to the
middle term. (People v. Black, supra, 41 Cal.4th at p. 813.) There was no Blakely or
Cunningham error, and no abuse of discretion, in the trial court’s decision to sentence
defendant to the upper term.
VIII. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
GAUT
J.
MILLER
J.

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