P. v.
Boyce





















Filed 12/17/12 P. v. Boyce CA3













NOT TO BE PUBLISHED

















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opinion has not been certified for publication or ordered published for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

THIRD
APPELLATE DISTRICT

(Sacramento)

----






>

THE PEOPLE, Plaintiff and Respondent, v. DONNELL BOYCE, Defendant and Appellant.

C069511 (Super. Ct. No. 11F00503)

A
jury convicted defendant Donnell Boyce of second
degree robbery, grossly negligent discharge of a firearm, possession of a
firearm by a convicted felon, and assault with a semiautomatic
firearm. The trial court denied
defendant’s motion for a new trial and sentenced him to 41 years in
prison.

Defendant
contends (1) the trial court erred in denying his request to instruct the jury
with CALCRIM No. 306 [untimely disclosure of evidence], and (2) his trial
counsel rendered ineffective assistance in connection with the href="http://www.mcmillanlaw.com/">motion for a new trial.

We
conclude (1) the trial court did not err in declining to instruct the jury
regarding the prosecutor’s late disclosure of a gunshot residue report because
the report was disclosed a week before trial, the trial court offered to
continue the trial, and the late disclosure had no effect on the trial; and (2)
defendant’s claim of ineffective assistance lacks merit because he has failed
to show prejudice.

We
will affirm the judgment.

BACKGROUND

Jose
Vazquez and his nephew Teodro Montalvo Escoto (Montalvo) went to a gas station
and liquor store in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Sacramento. Vazquez was carrying between $800 and $900 on
him. As Vazquez returned to his truck
with the beer he purchased, a young person struck him in the face, knocking
Vazquez down. The person took Vazquez’s
telephone, wallet and money. Additional
young men joined the assault, hitting and kicking Vazquez while he was on the
ground. Another person pointed a gun at
Montalvo, demanded Montalvo’s money and took Montalvo’s wallet.

When
the assailants left, the robber with the gun fired it into the air. Montalvo ran into the store and the gunman
fired another shot.

Theron
Jiles was at the gas station and heard several shots fired. He looked up and saw a man walking down the
street yelling and shooting into the air.
Jiles could see the height and build of the shooter, but not his
face. The shooter was tall, wore baggy
pants and a dark “hoodie,” and wore his hair in dreadlocks. The shooter fired more shots as he walked
down the street.

Private
security officer Casey Council was in the vicinity and heard the gunfire. Council drove slowly, with no lights on, in
the direction of the shots and eventually saw some people “scattering at a
jogging pace.” As he reached the area of
the gas station, he heard more shots.
Still concealed, Council saw a group, including defendant, walking
toward him. Defendant fired five or six
more shots as he continued to walk.

Council
radioed for assistance and then illuminated defendant with his car-mounted
spotlight. Council saw a semiautomatic
handgun in defendant’s hand. Defendant
fled into a field and ultimately tried to hide next to a building. Council approached him and ordered him to
raise his hands. Defendant no longer had
the gun in his hand. By that time
sheriff’s deputies arrived and took defendant into custody. The semiautomatic firearm was found where
defendant had been running.

Jiles
identified defendant as the shooter based on defendant’s height, clothes and
hair. Council also identified defendant
as the shooter. Vazquez and Montalvo
were intoxicated at the time and could not make an in-field identification.

Six
shell casings from the semiautomatic firearm were located at the scene of the
first shooting at the gas station. No
fingerprints were found on the gun, but gunshot residue was found on
defendant’s hands.

Additional
facts are included in the discussion as relevant to defendant’s contentions on
appeal.

A
jury convicted defendant of two counts of second
degree robbery (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1]
§§ 211, 212.5, subd. (c)--counts one & two), grossly negligent
discharge of a firearm (§ 246.3--count three), possession of a firearm by
a convicted felon (former § 12021, subd. (a)(1)--count four), and assault
with a semiautomatic firearm (§ 245, subd. (b)--count five). The jury found that defendant personally used
(§§ 12022.53, subd. (b), 12022.5, subd. (a)), and personally and
intentionally discharged (§ 12022.53, subd. (c)), a handgun in the
commission of counts one and two; and that defendant personally used a handgun
in the commission of count five (§ 12022.5, subds. (a) & (d)). The trial court found that defendant had a
prior serious felony conviction.
(§§ 667, 1170.12, 1192.7, subd. (c).) The trial court sentenced defendant to 41
years in prison.

DISCUSSION

I

Defendant
contends the trial court erred when it refused his request to instruct the jury
with CALCRIM No. 306 [untimely disclosure of evidence].href="#_ftn2" name="_ftnref2" title="">[2] Defendant requested the instruction based on
the prosecutor’s late disclosure of a gunshot residue report.

A

The
trial court ordered the prosecutor to provide various discovery items to
defendant, including forensic test results, reports, witness lists and witness
statements. The deadline for disclosure
was about a month before trial. After
the discovery deadline and shortly before trial, defendant filed a trial brief
and motions in limine seeking to exclude testimony concerning gunshot residue
found on defendant, because the defense did not receive discovery of gunshot
residue test results until a week before trial in violation of the trial
court’s discovery order. Defendant
argued that the late disclosure put him in the position of either giving up his
statutory speedy trial right or going to trial without adequate time to
independently review the evidence. The
prosecutor responded that she provided the test results the day after she
received them, and that a backlog of work at the laboratory caused the
delay.

The
trial court found that the prosecution failed to provide the discovery within
the ordered time, but that the discovery was provided a week prior to
commencement of trial. After noting that
exclusion of the evidence would be the “most prejudicial and most extreme”
sanction available, the trial court decided instead to grant the defense a
continuance if one were requested.
Defense counsel reiterated her objection to having to “choose between
[defendant’s] constitutional rights.”
The trial court responded that the trial had not started, no jury had
been sworn, no defense strategy had been revealed, and no prejudice
appeared.

Defense
counsel requested, “[a]s a compromise,” that the trial court instruct the jury
regarding the late disclosure. The
prosecutor objected that the instruction would imply there had been bad faith
by the prosecution, which everyone agreed was not the case. The trial court took the matter under
submission, deferring the question of the jury instruction until later in the
trial when the importance of the evidence could be determined.

At
trial, a criminalist testified that gunshot residue particles were found on the
front and back of both of defendant’s hands.


Near
the conclusion of trial, when jury instructions were being discussed outside
the jury’s presence, defense counsel renewed her request that the jury be
instructed with CALCRIM No. 306. The
trial court again acknowledged the prosecution’s failure to comply with the
discovery deadline but noted that the defense received the evidence a week
before trial and the trial court had been willing to grant a continuance. The trial court noted that the defense
cross-examination of the criminalist had been “very effective,” giving the
defense points it could argue. The trial
court found that the late disclosure had not prejudiced the defense. The trial court said the instruction would be
“telling the jury they can consider [the] effect” of the late disclosure, but
the trial court did not “really see the effect.” The trial court declined to give the
requested instruction.

B>

“Section
1054.1 (the reciprocal-discovery statute) ‘. . . requires the
prosecution to disclose to the defense . . . certain categories of
evidence “in the possession of the prosecuting attorney or [known by] the
prosecuting attorney . . . to be in the possession of the
investigating agencies.” ’
[Citation.] Evidence subject to
disclosure includes . . . ‘[a]ll relevant real evidence seized or
obtained as a part of the investigation of the offenses
charged’ . . . .
‘Absent good cause, such evidence must be disclosed at least 30 days
before trial, or immediately if discovered or obtained within 30 days of trial. [Citation.]’
[Citation.] [¶] Upon a showing both that the defense complied
with the informal discovery procedures provided by the statute, and that the
prosecutor has not complied with section 1054.1, a trial court ‘may make any
order necessary to enforce the provisions’ of the statute, ‘including, but not
limited to, immediate disclosure, . . . continuance of the matter, or
any other lawful order.’
[Citation.] The court may also
‘advise the jury of any failure or refusal to disclose and of any untimely
disclosure.’ [Citation.] A violation of section 1054.1 is subject to
the harmless-error standard set forth in People
v. Watson (1956) 46 Cal.2d 818, 836.
[Citation.]” (>People v. Verdugo (2010) 50 Cal.4th
263, 279-280.)

The
record amply supports the trial court’s conclusion that no prejudice arose from
the late disclosure. The defense had the
gunshot residue report a week before trial, and the trial court was willing to
grant a further continuance for the defense to review the evidence. The prosecutor’s failure to meet the
discovery deadline did not prevent the defense from mounting an effective
cross-examination of the criminalist.

Defendant
argues the criminalist’s testimony about the gunshot residue evidence was
“highly prejudicial” because the prosecutor relied on that evidence during her
summation. But the issue presented on
appeal is whether defendant was prejudiced by the trial court’s refusal to
instruct the jury with CALCRIM No. 306,
which would have directed the jury to consider the effect, if any, of the late
disclosure. Contrary to defendant’s
argument, the trial court found that it did not observe any effect of the late
disclosure in the trial. Thus, as a
matter of state law, the instruction was properly refused.

In
any event, given the evidence that defendant committed the offenses for which
he was convicted, it is not reasonably probable that he could have fared any
better had the instruction been given. (People
v. Verdugo, supra,
50 Cal.4th at pp. 279-280; People
v. Watson, supra, 46 Cal.2d
at p. 836.)

Moreover,
defendant’s claim fares no better under the federal Constitution. He contends the trial court refused the
instruction “because of defense counsel’s ‘effective’ cross-examination of the
criminalist who testified about the [gunshot residue] results.” But the trial court refused the instruction
because the predicate for the instruction--some “effect” from late
disclosure--had not been shown.
Defendant argues the trial court’s conclusion was speculative, but he
fails in his burden to show an effect upon which the jury instruction could
have operated. Beyond a reasonable
doubt, defendant would not have fared any better had CALCRIM No. 306 been
given. (>Chapman v. California (1967) 386 U.S.
18, 24 [17 L.Ed.2d 705, 710-711].)

II

Defendant
also contends his trial counsel rendered ineffective assistance in connection
with his motion for a new trial.

A

After
the jury rendered its verdicts, the trial court instructed the jurors: “Now that the case is over, you may choose
whether or not to discuss the case and your deliberations with anyone. I remind you that under California law, you
must wait at least 90 days before negotiating or agreeing to accept any payment
for information about the case.”

After
the other jurors departed, the foreman, a Sacramento Bee newspaper reporter,
asked the trial court if he could keep his notes from the trial. The trial court said that would be
acceptable, “but I also want to just make sure that you . . .
understand . . . where I instructed that the law forbids you from accepting
any payment for any information about this case within 90 days.”

The
foreman indicated that he understood and stated: “I don’t anticipate writing about it, but for
philosophical reasons, I don’t think I should have to give up my notes.”

The
next day the foreman published an article or opinion piece on his newspaper’s
website. The article stated, among other
things, that after the trial the foreman researched defendant’s background and
learned about defendant’s criminal history.
The website noted that the foreman has been “a Bee reporter since
2000.”

Several
e-mails were exchanged between defense counsel and the trial court. Defense counsel asked the trial court to
schedule an order to show cause (OSC) hearing for the juror. The trial court declined.

Defendant
filed a motion for a new trial, claiming the foreman “may have engaged in
misconduct warranting a new trial.”
Although the foreman’s article said his research on defendant’s
background occurred after the trial had concluded, the new trial motion
speculated that the foreman conducted research during deliberations and thus
had “improperly received information about [defendant’s] prior criminal history
during the trial.”

The
trial court denied the motion for a new trial, stating “there’s been absolutely
no evidence to show that the juror committed misconduct.” The trial court added that to support a
request for an OSC hearing, defense counsel had to file a sworn declaration.

B>

Defendant
claims his trial counsel rendered ineffective assistance regarding the motion
for new trial. He claims the facts allow
reasonable inferences that (1) contrary to his statement to the trial court,
the foreman anticipated writing about the trial, (2) the foreman sought to keep
his notes for that purpose, and (3) as a Bee reporter since 2000, the foreman
was paid for his article in violation of the trial court’s instruction. Defendant claims the article disclosed the
foreman’s actual bias against him, based on the article’s concluding
comment: “This was [defendant’s] first
jury trial--mine as well. I hope we
never meet again.”

In
addition, defendant claims defense counsel did not adequately investigate the
basis for the new trial motion and did not properly prepare the motion because
she failed to provide the trial court with a sworn declaration and formal
application for an OSC to compel the juror to attend the hearing on the new
trial motion, as required by Code of Civil Procedure sections 206 and 237.

“ ‘ “[I]n
order to demonstrate ineffective assistance of counsel, a defendant must first
show counsel’s performance was ‘deficient’ because his ‘representation fell
below an objective standard of reasonableness . . . under prevailing
professional norms.’ [Citation.] Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.
[Citation.] Prejudice is shown
when there is a ‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]”
[Citation.]’ ” (>People v. Avena (1996)
13 Cal.4th 394, 418; footnote omitted.)

Defendant
has failed to demonstrate prejudice.
Even if defense counsel rendered deficient performance when she failed
to submit a sworn affidavit, there is no showing of what such an affidavit
would have stated or what the foreman’s testimony at an ensuing hearing would
have been. As the Attorney General
suggests, the foreman might have stated that, although he had no preconceived
feelings about the case and did not anticipate writing about it, his feelings
changed following the conclusion of the trial when, freed from the court’s
admonition, he discovered defendant’s criminal history. The foreman could have said that, contrary to
defendant’s suggested inference, the newspaper did not pay him for the article
he wrote.

Defendant
dismisses these possibilities as “blatant speculation.” However, defendant has the burden to >prove prejudice; the Attorney General
has no burden to prove its absence. (>People v. Avena,> supra, 13 Cal.4th at p. 418.)

Because defendant’s claim of juror
misconduct rests on nothing more than speculation, there is no basis to presume
that the misconduct resulted in prejudice.
(See In re Hitchings (1993)
6 Cal.4th 97, 119-120.)

DISPOSITION

The judgment is affirmed.









MAURO , J.





We concur:





ROBIE ,
Acting P. J.





HOCH ,
J.