P. v. Soto

P. v. Soto

Filed 8/11/08 P. v. Soto CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND A. SOTO, Defendant and Appellant.

D051164 (Super. Ct. No. SCN222412)

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed as modified.

On March 28, 2007, a jury convicted Raymond A. Soto of first degree robbery (Pen. Code,^[1] 211, 212.5, subd. (a)) and found that in the commission of the robbery he had personally used a deadly and dangerous weapon, "to wit: nunchakus" ( 12022, subd. (b)(1)).^[2] In a bifurcated proceeding, the trial court found that Soto had suffered a 1999 residential burglary, which constituted both a serious felony prior conviction ( 667, subd. (a)) and a strike under the Three Strikes law ( 667, subd. (b)-(i), 1170.12) and for which he had served a prior prison term ( 667.5, subd. (b)). After denying Soto's motion to strike the prior, the court sentenced Soto to a total prison term of 14 years, consisting of the four-year midterm for the robbery, doubled to eight years under the three strikes law, one year for the weapons use enhancement plus five years for the prior serious felony conviction.^[3]

Soto appeals, contending that there was insufficient credible evidence to support his robbery conviction and that the trial court prejudicially erred in not dismissing the case for clear error under Brady v. Maryland (1963) 373 U.S. 83 (Brady), in allowing the prosecutor to comment on his failure to testify and account for his whereabouts on the night of the robbery in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin), and in denying his motion to strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 at the time of sentencing. Soto also claims the cumulative effect of the trial errors denied him due process and a fair trial. With the exception of the modification noted to Soto's sentence, we affirm.

DISCUSSION^[4]

I

SUFFICIENCY OF THE EVIDENCE

Because Soto challenges the sufficiency of the evidence to support his conviction for first degree robbery, we have viewed the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment. (People v.Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We resolve the issue based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the convicted offense. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; Johnson, supra, 26 Cal.3d at p. 577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (Peoplev.Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)

In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code,  312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of [Soto's crime] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081, original italics.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Here the record before the jury, viewed in accordance with these rules, showed that in the early morning of December 13, 2006, Carlos Dascanio called 9-1-1 to report that he had been robbed some 25 minutes earlier in his hotel room at the Palms Inn in Escondido, California. In that call, Dascanio said that four people, two with guns and one with orange nunchakus, had robbed him of $370. He described one of the people as his ex-girlfriend, named Shawna Shepherd, who was coming over to the hotel to pay him back some money she owed him, and another as an Hispanic male named Sancho, who was Shepherd's new boyfriend. Dascanio described Sancho as having tattoos on one side of his neck and said he had been "swinging his [nunchakus] like he was about to use them" when he asked for the money. Dascanio described the two gunmen as white, one with really bad teeth. When the dispatcher asked Dascanio why it took so long to call police, Dascanio replied, "I packed everything up and I'm getting the hell out of here as soon as you guys come over. Cause the guy threatened my life. You know, both of them, Sancho up front and the big guy behind him. Cause if they find out I'll be six-feet underground."

When the police arrived, Dascanio gave them an initial report and then talked with Detective Ted Henson later that afternoon to give a statement about the robbery. At that time, Henson showed Dascanio a six-pack photographic lineup that included Soto's photograph and Dascanio identified him as the person called Sancho who was with Shepherd and the others during the robbery. Dascanio explained that while the photograph depicted Soto with short hair, he now had longer, shoulder length hair.

On December 19, 2006, Soto was stopped driving Shepherd's car, with Shepherd as a passenger. After the two were arrested, officers searched the car and found a cell phone, papers belonging to both Shepherd and Soto, and a pair of orange nunchakus in the trunk. In a subsequent search of Shepherd's apartment, officers found, among other things, a notice to quit or pay rent dated November 30, 2006, a notebook containing references to Santos and Sancho, and a handwritten note with the name, room number and directions to Dascanio's hotel. Henson later videotaped his separate interviews with Shepherd and Soto.

Shepherd initially denied any knowledge or involvement in a robbery on December 13, 2006, merely stating that she had an ex-boyfriend who was causing her a lot of problems. She eventually changed her story, admitting she had been at Dascanio's hotel room after he had called her and offered to sell her drugs that night. Because she hated him and he would not leave her alone, she decided to rob him. Once she was at the hotel, she went into the room alone, used the nunchakus to scare Dascanio and then stole his drugs. Shepherd also conceded she had called Dascanio after she left, telling him not to call the police.

In Soto's interview, he told Henson that he was probably at a casino "blow[ing] the rent money" on December 13, 2006. He had borrowed money at the start of December to pay the rent, but had blown that, too. Soto denied ever going by the name "Sancho," denied being in a gang, denied having a notebook, denied knowing Dascanio or the location of the hotel, and denied having any knowledge or involvement in the robbery. He also claimed he had never touched the nunchakus found in the trunk and had never called the hotel. Faced with Henson's accusations that the evidence pointed toward his involvement and he wanted his side of the story, Soto responded that "no robbery happened in his point of view." Soto, as well as Shepherd, told Henson that Shepherd was pregnant with Soto's child.

During the investigation, a cell phone the police had seized from Soto booted up with the words, "Sancho's Productions," and also displayed, "Sancho."

Soto and Shepherd were both charged with the crimes in this case and proceeded to jury trial. In addition to the above evidence being presented, Dascanio testified at length about his relationship with Shepherd and the robbery incident. Dascanio had met Shepherd, 20 years younger than himself, through a mutual friend, and had moved in with her in July 2006, after he lost his job selling cars. Although they had a sexual relationship, in September 2006, Shepherd started seeing another man and asked Dascanio to move out. After a few days, Shepherd asked him to move back in, but he then moved out for good on September 14, 2006, when she began dating a second man.

After moving out, Dascanio moved into a motel but stayed in contact with Shepherd. Besides retrieving his possessions from her apartment several days later, he paid her some money he owed her and also loaned her his television set. Shepherd also would sometimes stop by the motel to smoke marijuana with him and have sex. One time in September when he had been over to her apartment complex, Dascanio had witnessed a skateboarder run into a tire on Shepherd's car, causing it to deflate. When he bent down to look at the damage, a neighbor lady noticed him.

Dascanio testified that in October 2006, he loaned Shepherd some money, first $100 and then another $200, which she was to pay him back by the 14th of October when she received her unemployment check because he needed to pay his rent. When he had not heard from her after calling her numerous times, he got an advance payment from work to pay his rent at the motel. On October 19, he went to Shepherd's apartment to collect the money, but no one would answer the door even though he knew someone was there. When he continued to knock and sat outside her apartment, Shepherd opened the door. When he told her his predicament, she refused to pay him back and told him, "Dude, you got burned." During this encounter, Dascanio noticed a man sitting on the couch in the living room, who would later be identified as Soto.

Dascanio had very little contact with Shepherd until the beginning of December 2006, when he sent her an e-mail regarding a eulogy site for the father of a mutual friend and also wished her a happy birthday. On December 8, 2006, Shepherd telephoned Dascanio asking whether he knew anyone who wanted to buy a computer. When he told her he did not, she asked to borrow $200 from him with the computer as collateral, telling him that she needed rent money. He told her he would not get paid until Monday, December 12, 2006.

After getting paid, Dascanio cashed his check for $750, bought groceries and cigarettes, paid for a taxi back to the motel and paid his rent. He put the remaining money, approximately $330 or $340, in a drawer in his motel room. The next day, Shepherd called him at work. He returned the call that night when he got back to the motel, leaving a message when she did not answer. When she returned the call, she told Dascanio she had resolved the rent problem and wanted to pay him back some of the money she owed him, intimating she would be at the motel within an hour. After midnight and four or five calls to say that she was running late, Shepherd told Dascanio she would be there in 20 minutes. At about 1:30 a.m., after several more calls, Shepherd said she would be there in five minutes.

Shepherd finally knocked at Dascanio's motel door at about 2:00 a.m. on December 13, 2006. When he opened the door, Shepherd stepped inside and gave him a hug, as three males, including the one he had seen earlier on the couch in her apartment, appeared from around the corner and pushed their way into the motel room. As the men moved around the room, Shepherd told Dascanio, "Just give us your money, Carlos." At that time, Soto was holding a pair of neon, pinkish-orange nunchakus in front of his chest and the other two men had guns at their waists. Soto then began swinging the nunchakus at Dascanio, saying he was Shepherd's "new man, " that he was "Sancho from West Side Saints," and telling Dascanio to make it easy on himself and tell them where the money was.

When Dascanio told Soto the money was in the dresser, he opened the drawer, counted the money and put it in his pocket, commenting "Well, that was easy enough." One of the other men grabbed his gun and told Dascanio, "You better not go to the cops, or I'll kill you. I'll put you six feet under." He also said, "Mother fucker, I see your face. You see my face. I will put you six feet under if you talk to the cops." Soto added that he did not care if Dascanio went to the police because he had "nothing to lose."

When the group left, Dascanio shut and locked the door, sat down on the floor and worried about how he was going to deal with this so he would not get killed. Although he intended to call the police, he decided to pack his things up first so he would be able to leave when the police arrived. After about five or 10 minutes of packing and taking his belongings to his car, Shepherd called and asked if he had called the cops. She told him that he better not call because "[t]hese guys are serious [and t]hey will mess you up." Although he told her he had not called the police, Shepherd called him again a few minutes later and asked if he had called the police. This second time, she passed the telephone to Soto, who asked Dascanio, "So are we square?" When Dascanio told him they were not square because Soto had just "fucking robbed [him]," Soto asked whether they were "cool then?" When Dascanio then told him "We're cool. I'm not going to call the cops," Soto commented that that was good and told him, "if you ever have any problems in the future, anybody is giving you a hard time, you need somebody to go see you, give me a call." Five to 10 minutes later, Dascanio finished packing and called the police.

On cross-examination, Dascanio was extensively questioned about his drug usage. He admitted he had used methamphetamine (meth) more than a decade ago, had previously experimented with Vicodin without a prescription, had used heroin years before and had even tried mushrooms in the past. He denied, however, that he knew anyone by the name of Francisco Quiroz.

Also on cross-examination, Dascanio conceded that he had filed a fraud claim against Shepherd through the state unemployment office after he discovered she had stated she had interviewed with him at the car dealership for a job when she had not, and admitted he had "perjured himself" at the preliminary hearing by giving a false home address. Dascanio explained he had lied at that earlier hearing because he had not wanted Soto and Shepherd to know his real address, which was still at the motel, but in a different room. The defense further used phone records and e-mail copies entered into evidence to show that Dascanio had had more contact with Shepherd between October 16, 2006 and early December 2006, than he had claimed on direct examination.

In the defense case, Soto presented testimony from one of Shepherd's neighbors, Quiroz, and a district attorney investigator. The neighbor testified about seeing Dascanio deflate one of Shepherd's car tires in October 2006 after he had moved out of her apartment.

Quiroz, who was serving jail time for receiving stolen property, testified about being a friend with a man named "Brad," who was purportedly Dascanio's roommate at the motel, and about visiting with Brad and Dascanio in the room and smoking meth numerous times. During those times, Dascanio talked about how upset he was that his ex-girlfriend was dating Soto and offered Quiroz money and drugs to set them up because he was angry that Shepherd still owed him money. Quiroz explained that he had had these conversations about a week after meeting Dascanio, which would have been in May, June or July 2006, but he could not remember the exact dates. On cross-examination, Quiroz denied being in Dascanio's room the day of the robbery and clarified that what Dascanio had asked him to do never involved doing anything to harm Soto or Shepherd. Quiroz denied his drug usage had affected his memory.

The district attorney investigator testified about checking the telephone records for Dascanio's room and discovering that Dascanio had dialed two numbers after midnight the night of the robbery, which did not belong to Shepherd. When the investigator confronted Dascanio with the information, he denied knowing to whom the numbers belonged. When the investigator then dialed the first number, a person named Phillip Moon answered, saying he had met Dascanio five or six times. Dascanio denied knowing Moon.

During closing arguments, the prosecutor reminded the jurors that during voir dire, they had agreed that crime could happen in "all sorts of circumstances, in all sorts of manner, and that anyone can be a victim, including the likes of Carlos Dascanio," whom she described as "a 40-something, occasional drug-using, used car salesman, living hand to mouth on small commissions in a low-rent motel in Escondido, someone who appears to seem quite comfortable skidding along rock bottom and surrounding himself with ne'er-do-wells." The prosecutor pointed out that although there might be some minor inconsistencies in the various versions of the information given by Dascanio to the authorities, the major portions regarding the events of the robbery and the people involved in it relayed to the 911 operator, the responding police officers, Detective Henson, at the preliminary hearing and at trial, were all consistent.

Shepherd's counsel argued that only Shepherd robbed Dascanio and that no one else was with her at the motel on the night of December 13, 2006. Soto's counsel pointed out that there was no physical evidence in this case against Soto and no admissions or confession similar to that of Shepherd's regarding involvement in the robbery. Counsel claimed Dascanio was a liar and pointed out the numerous lies in his testimony regarding his drug usage, regarding his relationship with Quiroz and drugs, regarding the tire incident, regarding not being upset with his breakup with Shepherd, regarding his admission of lying under oath at the preliminary hearing in this case, regarding being scared after this incident, regarding the number of contacts by phone and email with Shepherd, regarding the phone calls on December 13, 2006, and about Soto's involvement in this case.

Although the jury did not find that Shepherd or Soto had committed the robbery in concert with at least two other persons, it found beyond a reasonable doubt that Soto had committed the robbery with Shepherd against Dascanio on December 13, 2006. Reiterating the arguments made by his counsel below, regarding the lack of physical evidence and Dascanio's numerous uncorroborated "lies," Soto contends the jury had insufficient evidence to convict him of robbery in this case. Essentially, he asserts that his conviction must be reversed because Dascanio's claim that he was present when Shepherd robbed him were "inherently improbable on their face." We disagree.

As the People point out, the uncorroborated testimony of a single witness is sufficient to sustain a conviction unless it is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) To reject testimony as inherently improbable, its "falsity must be apparent without resorting to inferences or deductions." (People v. Huston (1943) 21 Cal.2d 690, 693 (Huston), overruled on another point by People v. Burton (1961) 55 Cal.2d 328, 352.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)

Here, Soto does not challenge the sufficiency of the evidence to support any particular element of robbery, claiming only that "Dascanio's allegations were unbelievable per se, and his allegations were the only evidence that supported the verdict." Although Shepherd claimed in her postarrest interview that she alone had robbed Dascanio in his motel room and Dascanio admitted he had lied about his address at the preliminary hearing and was discredited in parts of his testimony concerning his relationship with her and with drugs during his cross-examination, he consistently stated that Soto was with Shepherd and two other men who came into his motel room and robbed him. There was nothing physically impossible or inherently improbable about Soto's inclusion in the group that robbed Dascanio. Soto asks this court to engage in numerous inferences from the conflicts and the admission of lying in Dascanio's testimony as well as the lateness of his call to 911 to cast doubt about Dascanio's statements that Soto was at the motel with Shepherd on December 13, 2006, and used the orange nunchakus to threaten him and take his money. In other words, Soto is asking us to reweigh the evidence using such inferences or deductions, which we cannot do. (Evid. Code,  312; see also Huston, supra, 21 Cal.2d at p. 693.)

Contrary to Soto's reliance on People v. Carvalho (1952) 112 Cal.App.2d 482, (Carvalho), a very factually specific 56-year-old case that held the testimony of the complaining witness there was inherently improbable to support findings that her estranged husband had kidnapped her and forced her to go to various places without her consent because it was "totally at variance with the usual and ordinary conduct of one who is the victim of kidnapping" (id. at p. 489), the facts in this case are not analogous to those in Carvalho. Neither Dascanio's lie at the preliminary hearing about where he lived or his alleged lies about the extent of his relationship with Shepherd and drugs were inconsistent or "totally at variance with" his having been robbed by her and Soto. Even though there was a delay in calling the police, such 25 minute delay is a far cry from the 30-day delay in reporting a crime in Carvalho and was reasonably explained by Dascanio's fear that the robbers had threatened him with death if he called the police.

Based on this record, a jury could reasonably disbelieve Shepherd's and Soto's postarrest statements regarding Soto's noninvolvement in the robbery and believe the consistent statements by Dascanio in his trial and preliminary hearing testimony as well as those made to the 911 operator, a police officer and Henson that Soto was a participant in the robbery. Dascanio's statements alone were sufficient to support Soto's conviction for robbery.

II

BRADY VIOLATION

When Soto's counsel asked Dascanio on cross-examination whether he had always been honest about this incident in his statements with police and the court, Dascanio initially responded, "Yes." When counsel asked whether he had always been honest when he had talked with the prosecutor and her investigator, Dascanio replied,

"You know, no. I was not. I told the prosecutor. I told the detective that at the last proceeding I was very concerned about this. I told them that I needed them to know that I actually perjured myself, because I was asked, 'Do you still live at the hotel?' And I said, 'no'. In all honesty, because Mr. Soto was there, his brother was in the background, and I didn't want that to get out, that I still lived there. Why? Because I still feared for my life. So if that information were to get out, it would have come back and . . . possibly hurt me seriously. So I did contact [the investigator] immediately, the day after. As soon as I sat down with [the prosecutor], I told her the same thing."

Under further questioning, Dascanio explained that he had told both Henson and the prosecutor that he had lied under oath about his residence. He told the detective the day after the preliminary hearing in January 2007, and the prosecutor on February 23, 2007 when he met with her and her investigator. After further questioning of Dascanio on other matters, the trial recessed for the day.

The next morning Soto's counsel again asked Dascanio about telling the prosecutor and her investigator that he had perjured himself at the preliminary hearing. Dascanio explained again that he had used the word "perjured" because he was trying to be honest and thwart any perjury charge "because [he] lived in a different residence when, in essence, [he was] in fear for [his] life." Although he had talked with the prosecutor three or four times before trial, he only mentioned "one time very briefly" that he had perjured himself at the preliminary hearing.

Later, on redirect, the prosecutor again asked Dascanio about telling Henson about perjuring himself at the preliminary hearing. Dascanio explained that he did not know the legal definition of "perjury," but used the term because he did not tell the truth about where he was living when asked at the preliminary hearing while under oath. He did so because he was concerned for his safety and did not want the defendants to know where he was living, which was at the Palms Inn, but in a different room than where the incident occurred. Dascanio claimed that that was the only thing he had said at the preliminary hearing that was not truthful.

After the jury was excused for the lunch recess, the court addressed several evidentiary and discovery matters and Soto's counsel brought up the subject regarding Dascanio saying he had perjured himself at the preliminary hearing. Counsel complained that "[t]his is the first time that I've heard that evidence. It's not in any of the reports that I have received from the prosecutor. Now, either he's lying, or there's been a grave Brady violation." Asked to respond, the prosecutor explained that she had given Soto's counsel Dascanio's address as well as the police report and such information shows that his testimony at the preliminary hearing was inconsistent, so she did not think it was Brady material when Dascanio had told her that he had lied under oath at the preliminary hearing. The prosecutor "did not feel that his personal characterization of him not disclosing publicly to these two people, who he's in fear of, where he lived, his characterization of that as being perjury to be Brady [material]."

The court strongly disagreed, telling the prosecutor that "when a witness acknowledges to you, 'I lied under oath in court about this case,' that is Brady material, . . . [a]nd that needs to be turned over immediately." When the prosecutor again claimed that all the information before the defense revealed that the statements about where Dascanio was living conflicted, the court explained that it was Dascanio's admission that he had committed perjury that was the Brady material and that was not in the reports. When Soto's counsel requested a jury instruction and sanctions, and Shepherd's counsel joined in the requests, the court said it would think about the matter and hear from counsel after court returned at 1:30 p.m.

At that time, Soto's counsel characterized the disclosure violation concerning Dascanio admittedly lying at the preliminary hearing as prosecutorial misconduct and asked the court for a dismissal with prejudice against Soto rather than monetary sanctions. The prosecutor maintained that dismissal for prosecutorial misconduct was inappropriate and she would submit to the court's discretion in terms of a request for a mistrial. The prosecutor asked that there be a separate hearing on the matter so she could re-educate herself on Brady and the "consequences that flow from there."

After Soto's counsel reiterated it was only interested in dismissal as a sanction and Shepherd's counsel joined in the request for dismissal or alternatively for a mistrial, the trial judge gave her preliminary thoughts:

"There is no doubt in my mind that this is a violation of Brady versus Maryland. I do not think that prosecutors should try to analyze a situation like this and say, 'well, I turned over, in one of 3,000 pages of discovery, a piece of paper that has his address on it, and so they could have taken that and figured out that he had lied at the prelim.' [] When the key witness in the case admits that he lied under oath, that he wasn't confused about the question, mistaken about what he was saying when he says, 'I know I intentionally lied,' it is a very serious situation. That should be turned over immediately. [] I'm clear in my mind, clear as a bell, [prosecutor] that that was Brady and should have been turned over. Moreover, Penal Code section 1054 requires the district attorney to turn over all witness statements, not to pick and choose which ones you think are relevant or not. When the key witness calls you and provides you with information like this, it is discoverable independently under Penal Code section 1054. It is a witness statement. So in my mind there was a clear violation of the discovery rules. [] With regard to the sanction proposed, first of all, the defense counsel are not in agreement. [Soto's counsel] is not moving for a mistrial. [Shepherd's counsel] is. Dismissal is absolutely not appropriate. The witness admitted this on his own in his examination. All three attorneys have the full opportunity and have been examining this man for two days. So it wasn't as if the lawyers were so prejudiced that they could not bring this material before this jury. They brought it out completely. They will be able to make whatever arguments they want with regard to it. So the way it worked in this case with the witness admitting, 'I called them. I told them I committed perjury.' I think under those circumstances there is no extreme prejudice to either defendant in this case. [] If there was prejudice that I could see, I would be granting a mistrial in a heartbeat. Dismissal is only appropriate in a situation where it cannot be cured. It's information so prejudicial that a jury cannot be told to disregard it. Other circumstances, not this circumstance."

Although the court found dismissal an inappropriate sanction in this case and was not inclined to grant a mistrial because the information was now before the jury and both defense counsel could argue the matter in closing, it was inclined to order some type of monetary sanction and give some type of jury instruction as suggested by Soto's counsel. The court deferred the matter until jury instruction discussions and deliberations to permit the parties to more fully address the matter.

Subsequently, during Henson's testimony, the detective conceded that Dascanio called him after the preliminary hearing and told him he had perjured himself at the preliminary hearing about his residence. When Dascanio told Henson that he had not lied about the robbery incident and had only lied about where he was residing because he feared for his safety, Henson did not believe it was a perjury incident and told Dascanio not to worry about it. Nor did Henson think the matter significant enough to put in his reports or tell the prosecutor and defense counsel. When defense counsel later cross-examined Henson about the matter, he confirmed he did not report what Dascanio had told him, and testified he would never lie under oath so as to perjure himself and that doing so was "a big no-no."

At the close of the prosecution case, Soto's counsel moved to dismiss the charges against Soto on grounds Soto's due process and fair trial rights were violated by the belated disclosure of Dascanio's lying at the preliminary hearing. In response to the motion, the prosecutor expressed her understanding that a Brady violation "happens after a trial when it's discovered evidence, statements, things [that] were never turned over and never seen by the defense" and that this was only a statutory discovery violation. When the court disagreed, saying that Brady "applies whenever exculpatory information is not turned over to defense counsel in a timely manner," the prosecutor said she accepted the court's ruling, but just wanted to make a record of her views. The prosecutor argued that although there was a statutory violation, it was not prejudicial to the defense because the information, though untimely, was fully explored with Dascanio and Henson on both cross and direct examinations, and the jury was going to be instructed in terms of evaluating such evidence. Because the issue of lying was covered thoroughly in the two days of jury selection, the prosecutor did not think that additional voir dire on or mention in opening statements regarding Dascanio's admission he had lied about his residence at the preliminary hearing would change the defense strategy, which was already that Dascanio was lying about how the robbery happened.

The court denied the motion to dismiss under section 1118 based on the reasons it had earlier articulated when it gave its preliminary thoughts on the matter. To the extent Soto was basing the motion on the sufficiency of the evidence, the court also denied the motion.

During Soto's defense case, another district attorney investigator on the case denied she had heard Dascanio tell the prosecutor about perjuring himself at the preliminary hearing. The investigator noted, however, that had she known about the lie, she would have put it in a formal report because "a lie is a lie."

The court subsequently instructed the jury with a modified CALCRIM No. 306 entitled "Untimely Disclosure of Evidence." Such instruction provided that:

"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 follow this rule may deny the other side the chance to produce all relevant evidence, to counteropposing evidence, or to receive a fair trial. [] The attorney for the People. . . failed to disclose Carlos Dascanio's admission that he lied under oath at the preliminary hearing regarding his current residing address. [] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."

The prosecutor and Soto's counsel both addressed the instruction and Dascanio's admission that he had lied at the preliminary hearing in their respective closing arguments.

After the jury returned its verdicts and before the court trial on the priors, the court held a hearing to determine whether it should impose monetary sanctions against the prosecutor for the untimely disclosure. Another deputy district attorney, who was in charge of training prosecutors regarding discovery and Brady issues and had reviewed this case and its rulings, appeared in support of the prosecutor and conceded that she had erred by engaging in a presumptive form of analysis, i.e., making an inferential leap about whether this evidence favorable to the defense was material. The deputy argued, however, that the prosecutor's conduct in doing so was not willful. The prosecutor then apologized profusely for initially focusing on whether Dascanio's lie was material to the facts of the robbery instead of whether it was important as exculpatory matter going to the credibility of a witness and assured the court her failure to disclose the information was merely the result of being distracted by testing Dascanio regarding his version of the facts of the robbery incident. The prosecutor claimed that her earlier arguments to the court were going to the prejudice column rather than to the issue of whether the information was favorable Brady material that needed to be disclosed. The deputy proposed, that instead of sanctions, this case should be used as a learning tool for other deputies, like the prosecutor, and investigators who were working for the district attorney's office, like Henson, to educate them on discovery and Brady principles to help prevent this type of situation from happening again. The deputy also suggested that the prosecutor be required to participate in a discovery training program that the district attorney's office had and that the deputy would supervise her training and report back to the court about her completion of the program.

After the court again heard from Soto's counsel, and Shepherd's counsel conceded that as to his client, the disclosure violation had been cured and he did not think sanctions were necessary at this point in light of the deputy's representation that the prosecutor would undergo some training on discovery and Brady, the court declined to impose sanctions on the prosecutor, accepting her word as an officer of the court that the nondisclosure was inadvertent, and finding that there was no prejudice to Soto's rights to a fair trial. In doing so, the court noted that the situation would have been different if the belatedly discovered information had not come out at trial, had not been fully examined by all parties and the jury had not been instructed on the matter before deliberations. Although the court expressed the hope that the district attorney's office would follow through with officewide training on Brady and discovery, it did not specifically order it.

On appeal, Soto contends he was denied due process and his convictions must be reversed because the prosecution intentionally withheld exculpatory evidence under Brady, supra, 373 U.S. 83, which, if timely disclosed, would have cast a different light on the chief witness's credibility in this case. Soto essentially argues that the trial court prejudicially erred in failing to dismiss the case for such clear Brady error. We disagree.

A. Pertinent Legal Rules

As this court noted in Abatti v. Superior Court (2003) 112 Cal.App.4th 39, even though "a criminal defendant does not have a general constitutional right to discovery [citation], under Brady, supra, 373 U.S. 83, 87, 'the prosecution must disclose to the defense any evidence that is "favorable to the accused" and is "material" on the issue of either guilt or punishment. Failure to do so[, regardless of the good faith of the prosecution,] violates the accused's constitutional right to due process. [Citation.]' [Citation.] Generally, 'evidence is "favorable" if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses.' [Citations.] 'Evidence is material under the Brady standard "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." [Citation.]' [Citation.] 'A "reasonable probability" [is] "a probability sufficient to undermine confidence in the outcome." [Citation.]' [Citations.] Impeachment of a witness can make the difference between acquittal and conviction, especially where credibility is the major issue in a case and evidence at trial will consist of opposing stories presented by the defense and the prosecution witnesses. [Citations.]" (Abatti, supra, at p. 52.)

In People v. Zambrano (2007) 41 Cal.4th 1082 (Zambrano), our Supreme Court noted that this disclosure obligation "is not limited to evidence the prosecutor's office itself actually knows of or possesses, but includes 'evidence known to the others acting on the government's behalf in the case, including the police.' [Citation.]" (Id. at p. 1132.) The court in Zambrano also commented that "[m]ateriality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.]" (Id. at pp. 1132-1133.) The court reiterated the conclusion drawn from Kyles v. Whitley (1995) 514 U.S. 419, 435 that "[b]ecause a constitutional violation occurs only if the suppressed evidence was material . . . , a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]" (Zambrano, supra, 41 Cal.4th at p. 1133.)

The court in Zambrano further recognized, as this court did in Abatti, that the duty of disclosure under Brady is independent from the prosecution's disclosure duties under the reciprocal discovery statute ( 1054.1) and applies even without a request by the defendant. (Zambrano, supra, 41 Cal.4th at p. 1133; Abatti, supra, 112 Cal.App.4th at p. 53.) And, where it is determined that the matter not disclosed was not material for purposes of Brady, it may nevertheless constitute a failure to disclose under the reciprocal discovery statute in which case any violation is reviewed under the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)

However, even though "the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then . . . the defendant has all that is necessary to ensure a fair trial . . . ." (People v. Salazar (2005) 35 Cal.4th 1031, 1048-1049 (Salazar).) Thus, the prosecutor's Brady obligations may be satisfied "by an 'open file' policy, under which defense counsel are free to examine all materials regarding the case that are in the prosecutor's possession. [Citations.]" (Zambrano, supra, 41 Cal.4th at p. 1134.) Further, "evidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. [Citations.]" (People v. Morrison (2004) 34 Cal.4th 698, 715 (Morrison).)

B. Analysis

Here, as the above record reveals, the trial court correctly determined that the prosecutor had failed to timely fulfill her duty under Brady to disclose evidence favorable to the defense because the admission by Dascanio that he had perjured himself at the preliminary hearing would help Soto and hurt the prosecution by impeaching Dascanio, the chief prosecution witness. (In re Sassounian (1995) 9 Cal.4th 535, 544.) Such failure also constituted a violation of the California statutory discovery rules. ( 1054.) Had the information not fortuitously come out during the cross-examination of Dascanio, as the trial court noted during the sanctions hearing, that nondisclosure would have placed this case in a much different light so as to undermine the confidence in the verdicts. The prosecutor and other deputy from the district attorney's office conceded as much.

Although the prosecution does not have a duty to conduct a defendant's investigation for him when the material evidence is in the defendant's possession (Salazar, supra, 35 Cal.4th at pp. 1048-1049), in this case, contrary to the Attorney General's position in its respondent's brief, the information that Dascanio had admitted he had committed perjury at the preliminary hearing was not contained in any discovery given to the defense. Neither Henson nor any other investigator put such fact in their reports concerning the robbery or in a change of Dascanio's address that were turned over to the defense. The Attorney General appears to fall into the same gap as the prosecutor initially did below in claiming the Brady information could readily be discerned by the defense because it had been given a copy of Dascanio's address at the motel and had a copy of the preliminary hearing transcript. As the trial court explained, it was not just picking out that Dascanio had lied about his address at the preliminary hearing, but the fact that he admitted he had intentionally done so for whatever reason. It is Dascanio's admission which, as the trial court found, is clearly Brady information that the prosecutor had the duty of turning over immediately to the defense.

For that violation of untimely disclosure, which was not immediately objected to by Soto, the trial court determined dismissal was not warranted in this case. The record and law support this determination.

The record reflects that by the time Soto's counsel complained of the failure to turn over Brady information, Dascanio had already been thoroughly questioned on the matter through cross-examination and redirect. At that time, counsel asked only for a jury instruction and sanctions. At a subsequent hearing, Soto's counsel asked for dismissal based on prosecutorial misconduct for the nondisclosure that had inadvertently come out in Dascanio's cross-examination. Although normally, if favorable Brady information is material there is an outright constitutional due process violation requiring reversal if that information is suppressed alleviating any harmless error review (Zambrano, supra, 41 Cal.4th at p. 1133), in this case the trial court recognized that the information was before the jury and therefore not "suppressed." Although under the Brady terminology there was technically no "Brady violation" because the material evidence^[5]was not truly suppressed (Morrison, supra, 34 Cal.4th at p. 715), the court then proceeded with a harmless error analysis for the prosecutor's failure to timely disclose the information and found that because the matter had been so thoroughly examined and the parties would be able to argue the matter after the jury was given an appropriate instruction concerning the prosecutor's failure to disclose the information, there was no prejudicial error. We agree with this analysis, which also applied to the state statutory discovery violation that the trial court had found. Soto has not challenged that ruling.

Having carefully reviewed this matter in light of the record and law, we conclude Soto was not denied due process and the trial court did not error in failing to dismiss the case for a Brady violation.

III

CLAIMED GRIFFIN ERROR

At the beginning of the prosecutor's closing arguments, after describing the cast of characters and noting the evidence was uncontradicted that a robbery had occurred at about 2:00 a.m. at the Palms Inn on December 13, 2006, and Dascanio was the victim who was robbed with the nunchakus, the prosecutor opined that the only question presented by the defense was whether one person, Shepherd, had been involved in the crime as she had claimed in her postarrest interview, or whether there were three other robbers, including Soto, involved in the robbery. In arguing that more than one robber was involved, the prosecutor pointed out that Dascanio had given all sorts of details about the robbers to the 911 operator and Detective Henson and that he had sounded fearful both on the tape and while talking to the detective. The prosecutor also pointed out that Dascanio had told the same story and details to the responding officer and again at the preliminary hearing and at trial.

The prosecutor essentially argued that there was no indication Dascanio made the details of the robbery up, asking whether the jurors really thought it was only the 5' 4", 115 pound Shepherd with the nunchakus, who robbed Dascanio, who is six feet tall and weighs over 200 pounds. The prosecutor commented that although there was no out of court admission of participation by Soto in his postarrest statements to the detective as there had been with Shepherd, there was circumstantial evidence of such participation. Such evidence included testimony from the police that a person usually does not go to "drug ripoffs" alone, the tattoos on Soto's neck that Dascanio described to the 911 operator and detective, the use of the name Sancho and Santos by one of the robbers, the phone records that showed Shepherd continually called Dascanio during the pertinent time and also made calls to Soto, which appeared to have been erased from his cell phone, and Soto's postarrest statements to the detective that he was at a casino on December 13, 2006 blowing the rent money and that he never used the name Sancho even though it was written in the notebook found at Shepherd's apartment.

After commenting that a defendant has a constitutional right not to put on a defense and to rely on the prosecution evidence, the prosecutor explained that if a defendant does present evidence such is to be scrutinized the same as the prosecution evidence. She noted that although Shepherd did not put on a defense through any witnesses or testimony, Soto had done so. The prosecutor then reviewed that evidence, noting that Shepherd's neighbor had not addressed anything about December 13, 2006, or the robbery, but only had discussed some earlier time when Dascanio had purportedly deflated Shepherd's tire. The prosecutor also argued that Quiroz, who said he was friends with "a guy named Brad," as well as an acquaintance of both defendants, had made some obviously false claims, like Brad lived at the motel with Dascanio during the time Dascanio was living with Shepherd. The prosecutor questioned why the jury had not heard from Brad who could corroborate Quiroz, who had a "faulty memory," two prior convictions and a relationship with the defendants.

The prosecutor asked the jury, "What is noticeably missing from the information, the evidence that Mr. Soto decided to present to you? The defense, as they present it to you, makes the decision not to give you what we don't hear. What's absent? Anything about the night of the 13th. Anything about the night of the robbery. Who was Raymond Soto with on the night of the robbery if he wasn't committing the robbery - with Shawna Shepherd?" Soto's counsel immediately objected and the court asked to see counsel at sidebar.

At that hearing, Soto's counsel stated that "[i]t's rather interesting how [the prosecutor's] framed it. She knows . . . we have no obligation to present any evidence. She's now clearly saying we've not presented X, Y, and Z. We're objecting," In response, the prosecutor explained,

"As I flushed out in my in limines, the People have a right to comment on the defense's failure to produce logical witnesses. The defense, in his case, Mr. Soto, had admitted all along that he was not there, that he didn't do it, that he was out at the casino. If they choose to call two witnesses to malign Mr. Dascanio as their entire case, once they put on the case I can comment on their failure to call logical witnesses. That means anybody who maybe was with [Soto] on the night of the robbery. That means a receipt from a . . . restaurant, from the casino, one bartender, one dealer, one security camera. He was arrested just days after the robbery. He said he was at the casino to blow the rent money. It's common knowledge casinos are latent with cameras. All he has to do is say, 'I got to the casino at 1:00 o'clock, walked in the door.' I can comment on their failure to produce these things. It's a fair comment."

The trial judge disagreed, stating, "I think that you are permitted to comment on what they presented. And even extending that, for example, you can argue about, 'where was Brad? And why wasn't Brad called?' Because they chose to present evidence on that area. I think that is fair game. However, you cannot say, why didn't they produce witnesses on the X or Y? I think that is a questionable area. And I would sustain the objection." The court granted Soto's counsel's request to admonish the jury to disregard the prosecutor's last comment before the sidebar.

The prosecutor then finished her argument by summing up the defense evidence, which consisted of some phone records, photographs of Dascanio, the motel, and Shepherd's apartment, an e-mail from November 27, 2006, Shepherd's neighbor's and Quiroz's testimony, and stated, "[i]n all of that evidence offered by the defense, none of it, none of it can tell you about December 13th. It's all the look-over-here kind of stuff."

In Soto's closing arguments, after stressing that a defendant has a right not to testify and the right to rely on the evidence presented by the prosecution as instructed, Soto's counsel explained that in this case the jurors had nonetheless heard from Soto through his statements to the detective after being read his rights after his arrest. In those, he denied any involvement in this case. Counsel noted that Shepherd had also consistently told the detective in her postarrest statements that she had committed the robbery alone and had only stolen drugs, not money.

During a break in Soto's closing, his counsel expressed concern about the prosecutor's earlier remarks, stating:

"If the court will recall, the prosecutor kept talking about, mockingly, to a defendant's right not to testify. We're concerned if an error has occurred. She's also continually talking about -and we had to have an objection at sidebar -about how the defense doesn't have to produce any evidence, that the jury has already heard part of her argument, even though the court has stricken it or admonished . . . the jury."

The trial judge immediately responded by stating:

"Let me amplify the record on that very briefly - because that is a very gray area. And I took a look at some cases. And [the prosecutor's] probably correct that that was a permissible area of argument. [] I certainly am not comfortable when prosecutors talk about pieces of evidence that could have been brought up before the jury but were not. But there are a couple [of] cases, and they're all so fact specific that it's really hard to make general principles of law based on specific appellate cases. It's an area that I would stay away from. [] But I will tell you, in looking at the law and rereading what she cited in her trial brief, that it probably was not even objectionable. I already told the jury to disregard it. I did not see that when she was talking about a defendant's right not to testify or present any evidence that she was saying that tongue in cheek in any way at all. I didn't see her being flip about it. I didn't notice that there was anything improper about that part of her argument, [defense counsel]. So you and I just disagree on that issue. I thought it was very appropriate, and I did not see the problems that you did."

When the court asked if there were "[a]nything else," Soto's counsel replied, "No."

On appeal, Soto contends that the prosecutor committed prejudicial Griffin error during closing argument when she asked what was missing from the evidence Soto had presented at trial and who was he with on the night of the robbery if not with Shepherd committing the robbery. Soto asserts that because the prosecutor emphasized that Dascanio had come to court to tell his side of the story and had spent two days being cross-examined, the prosecutor necessarily implied that Soto had failed to testify when she asked what was missing from the defense thereby essentially contrasting Dascanio's willingness to testify with Soto's silence similar to the Griffin error found in People v. Guzman (2000) 80 Cal.App.4th 1282 (Guzman). We disagree and conclude there was no Griffin error on this record.

A. Pertinent Legal Principles

It is well established that under Griffin, a defendant's Fifth Amendment privilege against self-incrimination and to remain silent is violated when the prosecutor comments directly or indirectly upon the defendant's failure to testify in his defense or urges the jury to infer guilt from the defendant's silence. (Griffin, supra, 380 U.S. at p. 615; People v. Hardy (1992) 2 Cal.4th 86, 154; People v. Medina (1995) 11 Cal.4th 694, 755.) In assessing a claim of Griffin error, we view the prosecutor's allegedly offensive comments in the context of the prosecutor's arguments as a whole and in light of the evidence before the jury. (People v. Mayfield (1993) 5 Cal.4th 150, 178; People v. Mincey (1992) 2 Cal.4th 408, 446.) Where the claim is that the prosecutor implicitly commented on the defendant's failure to testify, the defendant must show that there is a reasonable likelihood the jury understood the comments to refer to his silence. (People v. Clair (1992) 2 Cal.4th 629, 663.) Although the prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses, "[w]hen improper comment on a defendant's silence occurs, the error requires reversal of the judgment unless a reviewing court concludes the error was harmless beyond a reasonable doubt. [Citations.]" (Hardy, supra, 2 Cal.4th at p. 157; People v. Vargas (1973) 9 Cal.3d 470, 475.)

B. Analysis

Here, when Soto's counsel initially objected to the prosecutor referring to missing evidence, he did not specifically mention Griffin or object that the prosecutor was contrasting Dascanio's willingness to talk with Soto's silence or failure to testify at trial. Rather, counsel objected that the prosecution was suggesting the defense had a burden to present evidence. On such theory, the court sustained the objec