Filed 11/21/13 P. v. Cruz CA4/1
                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                          STATE OF CALIFORNIA



THE PEOPLE,                                                            D059948

         Plaintiff and Respondent,

         v.                                                            (Super. Ct. No. SCD221121)

JACOB ANDREW CRUZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Laura H. Parsky, Judge. Affirmed.

         Michael Anthony Hernandez for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steven Taylor Oetting and

Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.



         A jury found Jacob Andrew Cruz guilty of one count of employing a minor to

engage in prohibited acts and several counts of lewd acts upon a child. On the lewd

act charges, the jury also found true allegations that Cruz had substantial sexual
contact with a child younger than 14 years of age and committed the offenses against

more than one victim. He appeals, contending (1) the trial court erred in not taking an

affirmative waiver of his right to testify on his own behalf, (2) he was denied due

process and a fair trial because the prosecution failed to turn over impeachment

evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), and (3) the

trial court violated ex post facto principles when it found he was statutorily ineligible

for probation. We affirm the judgment.

                 FACTUAL AND PROCEDURAL BACKGROUND

       Because Cruz does not challenge the sufficiency of the evidence to support his

convictions, we summarize the pertinent facts to provide background for our

discussion of his contentions on appeal.

       In 2000, Cruz babysat his cousins, Christopher E. and Richard E., at his

apartment. Cruz took Christopher into a bedroom where he touched Christopher's

penis and sodomized him. Cruz also touched Richard's penis. Years later, Christopher

told his girlfriend, Tiffany Brown, about the incident with Cruz.

       Around 2006, Cruz lived in a house with several family members, including E.

E. E., who was nine years old at the time of trial, testified that Cruz touched her

private area. She previously told a child protective services worker that Cruz had

touched her under her underwear.

       In 2007, Miranda F.'s sister found a suspicious camera outside their home. The

camera had video footage taken at night outside Miranda's bedroom window and



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showed her wearing only a towel. Miranda was 13 years old at the time. Cruz later

admitted making the video, hoping to "see nudity."

                                          DISCUSSION

                               I. Waiver of Right to Testify

       Cruz contends the trial court was required to obtain an express waiver of his

right to testify at trial. We disagree.

       " ' "Every criminal defendant is privileged to testify in his own defense, or to

refuse to do so." [Citation.] The defendant's "absolute right not to be called as a

witness and not to testify" arises from the Fifth Amendment to the United States

Constitution and article I, section 15 of the California Constitution. [Citation.]

Although tactical decisions at trial are generally counsel's responsibility, the decision

whether to testify, a question of fundamental importance, is made by the defendant

after consultation with counsel. [Citations.]' " (People v. Carter (2005) 36 Cal.4th

1114, 1198.) Although a defendant has this right, a court has no duty to advise a

defendant of the right to testify or seek an explicit waiver of the right from the

defendant unless the court learns of an express conflict between the defendant and

defense counsel about the matter. (People v. Enraca (2012) 53 Cal.4th 735, 762.)

" '[A] trial judge may safely assume that a defendant, who is ably represented and who

does not testify[,] is merely exercising his Fifth Amendment privilege against self-

incrimination and is abiding by his counsel's trial strategy; otherwise, the judge would

have to conduct a law seminar prior to every criminal trial.' " (People v. Cox (1991) 53

Cal.3d 618, 671.)

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       Here, after the last witness's testimony, the trial court inquired of both the

defense and the prosecution as to whether they wished to present additional evidence.

Both sides affirmatively rested. Cruz never sought to testify on his own behalf.

Further, he does not point to and we have found no indication in the record of a

conflict with defense counsel regarding Cruz's desire to testify at trial. Accordingly,

the trial court did not have a duty to obtain Cruz's express waiver of his right to testify.

                               II. Alleged Brady Violation

A. Background

       After trial commenced, Walter Escobar, a District Attorney investigator,

interviewed Brown regarding Christopher's disclosure to her about the molestation he

suffered as a child. Brown informed Escobar that Christopher told her Cruz molested

him during a camping trip at the La Jolla Indian Reservation. Christopher told Brown

that Cruz had sex with him from behind and he remembered the incident as if it

occurred yesterday.

       During trial, the prosecutor provided defense counsel with Escobar's report of

the interview. The one-page report summarized the interview and indicated that the

interview was recorded. Defense counsel "did not review the particulars of the

[report]."

       After the jury returned its verdicts, a defense investigator contacted the

prosecutor and inquired about the audio recording of Escobar's interview with Brown.

The prosecutor gave a CD of the audio recording to the defense investigator.



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       Cruz moved for a new trial, arguing he was prejudiced by the prosecution's

failure to provide the audio recording during trial. Specifically, Cruz claimed the

information revealed by Brown contradicted Christopher's testimony regarding the

location of the incident, Cruz's physical positioning, the absence of any witnesses, and

Christopher's revelation of the abuse to Richard. The trial court denied the motion,

finding there was no Brady violation because the prosecution disclosed the evidence to

defense counsel during trial and Cruz failed to show he could not have discovered the

evidence with reasonable diligence. Lastly, the court concluded the evidence would

not have rendered a different result at trial because Brown's statement lacked

credibility and corroborated several aspects of the prosecution's case.

B. Analysis

       Cruz contends he was denied due process and a fair trial because the

prosecution failed to turn over the audio recording during trial in violation of Brady,

supra, 373 U.S. 83. We reject this argument.

       "In Brady, the United States Supreme Court held that 'the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.' [Citation.] Thus, under Brady and its progeny,

the state is required to disclose to the defense any material, favorable evidence.

[Citations.] Favorable evidence includes both evidence that is exculpatory to the

defendant as well as evidence that is damaging to the prosecution, such as evidence



                                            5
that impeaches a government witness. [Citations.]" (People v. Uribe (2008) 162

Cal.App.4th 1457, 1471–1472.)

       There are three elements to a Brady claim: (1) the evidence must be favorable

to the accused, either because it is exculpatory, or because it is impeaching; (2) that

evidence must have been suppressed by the State, either willfully or inadvertently; and

(3) defendant suffered prejudice. (People v. Salazar (2005) 35 Cal.4th 1031, 1043.)

"Conclusions of law or of mixed questions of law and fact, such as the elements of a

Brady claim [citation], are subject to independent review. [Citation.] Because the

[trier of fact] can observe the demeanor of the witnesses and their manner of testifying,

findings of fact, though not binding, are entitled to great weight when supported by

substantial evidence." (Id. at p. 1042.)

       Here, Cruz failed to show the prosecution suppressed the evidence. During

trial, the prosecution provided defense counsel with a summary of Brown's interview.

That summary provided the details of the interview and stated that the interview was

recorded. Thus, the information was fully available to Cruz during trial. Simply put,

there is no Brady claim of prosecutorial suppression of evidence " 'when information is

fully available to a defendant at the time of trial and his only reason for not obtaining

and presenting the evidence to the Court is his lack of reasonable diligence . . . .' "

(People v. Morrison (2004) 34 Cal.4th 698, 715, quoting United States v. Brown (5th

Cir. 1980) 628 F.2d 471, 473.)

       Further, Cruz has failed to demonstrate there was a material discrepancy

between the audio recording and the summary of Brown's interview provided during

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trial. Based on our review of the summary and transcript of the audio recording, the

significant evidence was disclosed to defense counsel. Namely, the summary conveys

Brown's recollection that Christopher stated Cruz had sex with him from behind at the

La Jolla Indian Reservation and that he had not told anyone about the incident.

Accordingly, the evidence was disclosed and available to Cruz during trial. Under

these circumstances, we conclude there was no Brady violation.

                         III. Alleged Ex Post Facto Violation

       Cruz argues the trial court violated ex post facto principles when it found he

was statutorily ineligible for probation on the counts relating to lewd acts on Richard

and Christopher because those crimes occurred in 2000, which was before the current

version of Penal Code section 667.61 (the One Strike law) was in effect. (All further

statutory references are to the Penal Code.) We reject his argument.

       "The federal and state prohibitions against ex post facto laws apply to any

statute that punishes as a crime an act previously committed which was not a crime

when done or . . . inflicts greater punishment than the applicable law when the crime

was committed." (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)

       In its current version, the One Strike law requires a person convicted of

committing a lewd act in violation of section 288, subdivision (a) to be sentenced to an

indeterminate prison term of 15 years to life when, among other things, "[t]he

defendant has been convicted in the present case . . . of committing [a qualifying]

offense . . . against more than one victim." (§ 667.61, subds. (b), (e)(4).) However,

prior to 2006, the One Strike law applied to defendants convicted under section 288,

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subdivision (a) " 'unless the defendant qualifies for probation under subdivision (c) of

Section 1203.066.' " (§ 667.61, former subd. (c)(7), italics added.) Former section

1203.066, subdivision (c), which was effective through December 31, 2005, detailed

the findings the court was required to make before granting probation, including

findings that the defendant was related to the victim or a member of the victim's

household, probation was in the best interests of the child, rehabilitation was feasible,

the defendant was removed from the victim's household, and a grant of probation

would not threaten the victim with physical harm. "Of course, probation is not

required where favorable findings under section 1203.066[, subdivision] (c) are made.

The sentencing court 'retains the discretion' to find the defendant unsuitable for

probation and to order imprisonment." (People v. Wutzke (2002) 28 Cal.4th 923, 932,

fn. 7.)

          Here, in sentencing Cruz, the trial court found he was ineligible for probation

because he committed the offenses against more than one victim and had substantial

sexual contact with a victim younger than 14 years of age. Cruz contends the sentence

was improper as to his offenses against Christopher and Richard because those crimes

occurred before the One Strike law was amended to eliminate the probation exception.

He claims the trial court could have exercised its discretion to sentence him to a

determinate term or probation. As we shall explain, we reject Cruz's argument on

multiple grounds.

          First, the trial court could not have granted probation based on the record.

"[A] defendant has the burden to present evidence showing that he is entitled to

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consideration for probation under [former] subdivision (c) of section 1203.066."

(People v. Groomes (1993) 14 Cal.App.4th 84, 89.) The record revealed that Cruz was

related to Christopher and Richard; however, the record does not include evidence as

to the other requirements. Further, even if evidence was presented on the probation

requirements, probation was not appropriate in this case because Christopher and

Richard were adults at the time of sentencing. "[T]he plain language of former section

1203.066(c)(2) evinces the Legislature's intent that a sentencing court shall have no

authority, and thus no legal discretion, to grant probation to a defendant . . . in a case

in which the molestation victim is no longer a child at time of sentencing." (People v.

Wills (2008) 160 Cal.App.4th 728, 740.)

       Second, Cruz's sentence did not violate ex post facto principles because it was

not a greater punishment than the applicable law when the crime was committed.

(People v. Alvarez, supra, 100 Cal.App.4th at p. 1178.) Cruz was sentenced to terms

of 15 years to life for each of his crimes against Christopher and Richard. At the time

Cruz committed those crimes, he was subject to the One Strike law unless he qualified

for probation. (§ 667.61, former subd. (c)(7).) As we previously discussed, Cruz did

not meet the requirements for probation. Accordingly, the trial court did not err in

sentencing Cruz to indeterminate terms of 15 years to life.

       Lastly, we note that Cruz ignores that he was also convicted of committing a

lewd act on E. in 2006 and the jury found true allegations that he committed the

offense against more than one victim and had substantial sexual contact with E.



                                             9
Accordingly, probation was not available to Cruz based on his crime against E. Thus,

we reject Cruz's contention of an ex post facto violation.

                                    DISPOSITION

       The judgment is affirmed.



                                                                MCINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

MCDONALD, J.




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