Filed 5/16/14 P. v. Jester CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037592
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS102695A)

         v.

STEVEN ANTHONY JESTER,

         Defendant and Appellant.



         A jury convicted defendant Steven Anthony Jester of attempting by threat or
violence to deter the performance of an officer’s duty (Pen. Code, § 69), failing to
comply with a lawful order (Veh. Code, former § 2800, subd. (a)),1 driving under the
influence (DUI) (§ 23152, subd. (a)), and possessing marijuana while driving (§ 23222,
subd. (b)). An allegation that he willfully refused to submit to a chemical test (§ 23577,
subd. (a)) was also found true. The jury acquitted defendant of making criminal threats
(Pen. Code, § 422). The trial court suspended imposition of sentence and placed him on
probation.
         On appeal, defendant contends that (1) there was insufficient evidence to support
his former section 2800 and Penal Code section 69 convictions and the section 23577
enhancement because the prosecution failed to prove the officer acted lawfully; (2) the

1
         Further statutory references are to the Vehicle Code unless otherwise noted.
trial court prejudicially erred in failing to instruct the jury on “the element of lawfulness”
and the elements of criminal trespass; (3) the trial court prejudicially misinstructed the
jury on “the reach of Penal Code section 69;” (4) the trial court prejudicially erred in
giving CALCRIM No. 225 instead of CALCRIM No. 224; (5) the trial court abused its
discretion in allowing the “surprise testimony” of a 911 caller; (6) his defense counsel
was prejudicially deficient; and (7) the cumulative effect of the trial court’s errors denied
him due process. Defendant also asks us to independently review the transcript of the in
camera hearing on his Pitchess2 motion for discovery of police officer personnel records,
which the trial court denied. We affirm.


                                      I. Background
       California Highway Patrol (CHP) Officer Ben Grasmuck was on patrol in Big Sur
around 4:45 p.m. on December 8, 2010. He was traveling north on Highway 1 when he
came upon defendant and another man standing on the shoulder in the middle of the
Bixby Bridge. Defendant was lowering something over the west side of the bridge as the
other man video recorded his actions. Grasmuck believed that defendant was about to
bungee jump from the bridge. He radioed for backup, stopped his patrol vehicle,
activated its emergency lights, and told defendant over the P.A. system, “ ‘Don’t even
think about it’ . . . . ‘Pull your crap up.’ ” As Grasmuck got out of his vehicle, defendant
“jumped up on the bridge railing,” lost his balance and fell back onto the roadway, and
then climbed up again. It “looked like he was going to parachute off the bridge.”
Grasmuck put up his hand to stop an approaching pickup truck because he “was worried
about [defendant] falling backwards in front of that truck.” “I was concerned about his
safety. I was concerned about traffic safety. I didn’t know what the guy with the camera



2
       Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

                                              2
was going to do.” Grasmuck told defendant he would arrest him if he jumped.
Defendant told him, “Sorry, but I gotta do it.” “And then he jumped.”
       Grasmuck drove to the Bixby Bridge parking area. Videographer Tyler Mitchell
was waiting there for defendant. When defendant returned, Grasmuck arrested him for
disobeying a lawful order.
       Grasmuck had noticed defendant’s “red and watery” eyes before defendant
jumped. He also “smelled a strong odor” of alcohol that he thought came from
defendant. When he put defendant into the patrol vehicle, Grasmuck again noticed “the
strong odor of an alcoholic beverage . . . .” Defendant’s speech was slurred. His “eyes
were red and watery.” He was also “loud” and “argumentative.” Defendant was
“yelling” at Mitchell to film the encounter and “yelling” at Grasmuck that he could not
arrest him for jumping off the bridge. Grasmuck had made over 1,200 DUI arrests and
assisted in about 1,000 more in his 23 years with the CHP. He concluded that defendant
was “very intoxicated” and told him he was also under arrest for DUI.
       Officer John Correa responded to Grasmuck’s call for backup. Correa did an
inventory search of defendant’s black Isuzu Trooper. He found two baggies of a
substance that he recognized as marijuana in “the main pocket” of a backpack on the rear
seat of the Isuzu.
       Grasmuck transported defendant to the CHP office in Salinas. Defendant was
“screaming” insults at him during the 90-minute drive. “And then he would calm down
for a little while” and ask why Grasmuck arrested him. When Grasmuck repeated that
defendant was under arrest for disobeying a lawful order, “for jumping off of the bridge,
which is a trespassing charge,” and for DUI, “that would send him up that ramp again.”
Defendant repeatedly threatened to “find [Grasmuck] later” and “fuck [him] up” but then
apologized. He offered several times to give Grasmuck a free skydiving lesson if he let
him go. Mood swings and threats are “not uncommon when you arrest somebody for
drunk driving” but Grasmuck became concerned when defendant threatened his family.
                                            3
Defendant said, “I’m gonna look you up on Facebook and I’m gonna find you. And then
I’m going to come to your house, I’m gonna fuck you up.” “I’m going to find you on the
internet. I’m gonna find your wife. I’m gonna befriend her and I’m going to fuck her up
the ass.”
       At the CHP office, Grasmuck told defendant that he was required to take a
chemical test. Defendant “screamed back I wasn’t driving, I was jumping off a bridge.”
Grasmuck read the requirement to defendant and asked again if he would submit to the
test. “And he said no, fuck you.”
       Grasmuck testified at trial about what occurred that day. The jury viewed
Mitchell’s two videos and examined 28 photographs of the Bixby Bridge area. Grasmuck
explained that there is no designated trail providing public access to the beach below the
bridge. The area below the bridge and most of the land along Highway 1 in the area is
privately owned. Grasmuck testified that “at the time, I thought the only way out was
across private property up Bixby Creek. . . . But there was another way that was
unknown to me at that time.” Defendant returned from the beach that way.
       Mitchell testified that defendant called him on December 8, 2010 from somewhere
near Mitchell’s house in Marina and asked if he wanted to go to Big Sur. Defendant
appeared “normal” when he drove up about 20 minutes later. Mitchell denied telling
Grasmuck that he smelled alcohol on defendant’s breath when defendant picked him up.
Mitchell had not used alcohol or drugs that day. Neither he nor defendant consumed
alcohol during the drive to the bridge. Mitchell noticed defendant weaving “a little bit”
as he drove and “maybe veer[ing] from the lane a little bit.”
       When they arrived at the bridge, defendant told Mitchell that there was alcohol in
the truck and offered him some. Mitchell declined. He testified that defendant “was
drinking a lot” for 10 or 15 minutes before he jumped. Defendant downed “multiple”
glasses of an alcoholic beverage “[i]n gulps.” Mitchell did not recall telling police that


                                             4
defendant had nothing alcoholic to drink at the bridge or that they had been there just 10
minutes before Grasmuck arrived.
       Correa testified that when he saw defendant’s Isuzu in the Bixby Bridge parking
area, he realized that the license plate number and vehicle description matched
information he had heard in a “be on the lookout” broadcast earlier that afternoon. “It
was the same plate.”
       CHP public safety dispatch supervisor Nicole Stewart authenticated the recording
of a 911 call made by Edward Arratia at 2:28 p.m. on December 8, 2010. The recording
was played for the jury. Arratia testified that he was driving south on Highway 1 near
Moss Landing. He was “right behind” a black SUV that was “more than swerving. It
was actually gonna cause an accident.” The driver “kind of lost it” on a curve, braked
“really hard,” and “almost rear-ended” the car in front of him. The SUV “kind of drifted
slightly into the other lane” and “hit the yellow—the center divider.” Arratia was behind
the SUV from a quarter of a mile north of Moss Landing “[p]retty much [to] the . . .
Castroville/Salinas exit . . . .” The driver “was still continuing swerving” and was
“weaving a little bit.” “He kind a [sic] got a little bit better when he got on the straighter
road” but “he was still swerving.”
       Defendant’s former coworker Leandro Tompkins testified for the defense.
Tompkins had known defendant for about five years and had “never” seen him violent.
       Defendant testified in his own behalf. He told the jury that he had nothing to drink
that day until he “first got to the bridge.” He “didn’t even know there was booze in the
car.” He did not recall a near-collision. He had one or “possibly two” glasses of an
alcoholic beverage at the bridge. He drank them “quickly” because “I’m an alcoholic.”
He was feeling the effects of the alcohol by the time Grasmuck arrived. Defendant
admitted “insulting” Grasmuck during the ride to the CHP office but denied threatening
him or his wife. He labeled Grasmuck’s testimony on that point “a complete
fabrication.”
                                               5
       The jury deliberated for about three and a half hours before returning an acquittal
on the Penal Code section 422 count, guilty verdicts on the remaining counts, and a true
finding on the enhancement allegation. The trial court suspended imposition of sentence
and placed defendant on probation. Defendant filed a timely notice of appeal.


                                      II. Discussion
                             A. Sufficiency of the Evidence
       Defendant claims there was insufficient evidence to support his former
section 2800 and Penal Code section 69 convictions and the section 23577 enhancement
because the prosecution failed to prove that Grasmuck acted lawfully. We disagree.
       “The law we apply in assessing a claim of sufficiency of the evidence is well
established: ‘ “ ‘ “[T]he court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ [Citation.] The
standard is the same under the state and federal due process clauses. [Citation.] ‘We
presume “ ‘in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct
or circumstantial evidence is involved.” [Citation.]’ [Citation.]” (People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 294.) “Reversal . . . is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
                          1. Former Section 2800 Conviction
       Defendant argues that there was insufficient evidence to support his former
section 2800, subdivision (a) conviction because there was no evidence that Grasmuck’s
orders to get down from the bridge railing and not to jump were lawful. The argument
lacks merit.
                                             6
        Former section 2800, subdivision (a) provided in relevant part that “[i]t is
unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a
peace officer . . . when that peace officer is in uniform and is performing duties pursuant
to any of the provisions of this code.” (Former § 2800, subd. (a).) “[T]he express
language of section 2800, authorizing traffic officers to make ‘an order, signal, or
direction’ the disobedience of which is illegal, is limited to lawful orders, willfully
disregarded or disobeyed.” (People v. Ritter (1980) 115 Cal.App.3d Supp. 1, 6 (Ritter).)
A “ ‘lawful order’ [is] a reasonable order made by a traffic officer which is reasonably
necessary to aid him in the performance of his duty to enforce ‘the rules of the road.’ ”
(Id. at p. 4.)
        CHP officers are peace officers whose primary duty is “the enforcement of any
law relating to the use or operation of vehicles upon the highways, or laws pertaining to
the provision of police services for the protection of state officers, state properties, and
the occupants of state properties, or both . . . .” (Pen. Code, § 830.2, subd. (a); § 2409.)
They “are authorized to direct traffic according to law, and . . . to expedite traffic or
insure safety, may direct traffic as conditions may require notwithstanding the provisions
of [the Vehicle] code.” (§ 2410.) “[T]raffic” includes “pedestrians . . . .” (§ 620.)
        Here, Grasmuck testified that there is “a road cut [on Highway 1] where you . . .
come down from Hurricane Point and around the corner and suddenly . . . you’re just on
the southern approach to the bridge.” When he saw defendant and Mitchell on the
bridge, Grasmuck’s immediate concerns were “[t]raffic” and “[defendant’s] safety.” He
saw defendant “fall back off the bridge rail into the roadway.” He was also concerned
about Mitchell. He “didn’t want [approaching cars] to hit him while they were watching
[defendant] and myself.” Grasmuck stopped his patrol vehicle where it would be most
visible to approaching motorists and activated its emergency lights. He put up his hand
to stop oncoming traffic as he walked toward defendant. He instructed defendant to “get
down” and “come on down.” Grasmuck was expediting traffic and ensuring public safety
                                               7
when he ordered defendant to get down from the railing and not to jump. (§ 2410.)
Defendant was creating a traffic hazard that endangered himself, Mitchell, and passing
motorists. The videos that the jury viewed made this apparent. They showed a narrow
mountain roadway with traffic edging over the yellow line to avoid defendant as he
walked on the bridge, not always on the narrow shoulder but sometimes in the roadway.
Defendant’s left arm extended horizontally into the path of traffic at times. He dropped
his parachute over the railing at the midpoint of the bridge, climbed onto the rail, fell
back onto the roadway, and then clambered back up as Grasmuck approached with his
hand extended to stop oncoming cars.
       We reject defendant’s assertion that any traffic problems or safety issues were
created by Grasmuck. The video established that defendant created a dangerous
distraction. It showed him dressed in shorts and a t-shirt as he balanced on the railing
with his parachute dangling out of sight below the roadway. The parachute harness was
not so obvious that it would have been immediately apparent to drivers suddenly
confronted with the sight of a man poised precariously on a bridge railing hundreds of
feet above the rocks and beach below. The distraction would have been amplified when
defendant suddenly somersaulted off the bridge because motorists would not have seen
the parachute that dangled below the roadway and it would not have opened until
defendant was out of their sight.
       Substantial evidence thus supported conclusions that defendant created a traffic
hazard and that Grasmuck acted within his lawful authority to ensure defendant’s,
Mitchell’s, and the public’s safety when he ordered defendant to get down from the
railing and not to jump. (§ 2410; Ritter, supra, 115 Cal.App.3d Supp. at p. 4.)
Grasmuck’s orders were lawful. (Ritter, at p. 4.) Defendant does not challenge the
sufficiency of the evidence to support a conclusion that he willfully failed to comply with
Grasmuck’s orders. (Former § 2800, subd. (a).) Nor does he deny that Grasmuck was in


                                              8
uniform when he issued them. (Ibid.) It follows that sufficient evidence supported
defendant’s former section 2800, subdivision (a) conviction.
       Defendant argues that Grasmuck “unambiguously testified that the sole basis for
his order . . . not to jump was that he thought [defendant] would be trespassing if he
landed on the beach.” The record does not support this overbroad assertion. After
Grasmuck testified that his immediate concerns when he saw defendant and Mitchell on
the bridge were “[t]raffic” and “safety,” he was asked why he told defendant not to jump.
He replied that it was “not legal to jump off of that bridge because . . . at the time, I
thought the only way out was across private property . . . .” The questioning then
returned to his traffic safety concerns. Grasmuck did not testify that the sole basis for his
order was his belief that defendant would have to trespass over private property to get
back to the roadway, nor can any such conclusion be inferred on this record.
                2. DUI Conviction and Chemical Testing Enhancement
       Defendant claims there was insufficient evidence to support his DUI conviction
because Grasmuck did not see him driving. He reasons that this means there was
insufficient evidence to support a true finding on the enhancement allegation since his
arrest for DUI was unlawful. We disagree.
       Penal Code former section 836 provided that “[a] peace officer may arrest a
person in obedience to a warrant, or . . . without a warrant, may arrest a person when any
of the following circumstances occur: [¶] (1) The officer has probable cause to believe
that the person to be arrested has committed a public offense in the officer’s presence.
[¶] (2) The person arrested has committed a felony, although not in the officer’s
presence. [¶] (3) The officer has probable cause to believe that the person to be arrested
has committed a felony, whether or not a felony, in fact, has been committed.” (Pen.
Code, former § 836, subd. (a).) Penal Code former section 836 generally precludes
warrantless arrests for misdemeanors and infractions not committed in an officer’s
presence but “[t]he Legislature has provided exceptions to this requirement.” (People v.
                                               9
Schofield (2001) 90 Cal.App.4th 968, 969 (Schofield), disapproved on another ground in
People v. Thompson (2006) 38 Cal.4th 811, 828, fn. 3 (Thompson).) “In 1969, the
Legislature enacted Vehicle Code section 40300.5,” which provides in pertinent part that
“ ‘[i]n addition to the authority to make an arrest without a warrant pursuant to paragraph
(1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a
warrant, arrest a person when the officer has reasonable cause to believe that the person
had been driving while under the influence of an alcoholic beverage . . . when the
following exists: [¶] . . . [¶] (e) The person may destroy or conceal evidence of the crime
unless immediately arrested.’ ” (Schofield, at pp. 972-973; § 40300.5, subd. (e).) The
statute’s reach is not limited to situations in which the defendant intentionally or willfully
destroys or conceals evidence. Section 40300.5, subdivision (e) also “creates an
exception to the presence requirement . . . because evidence will be destroyed by the
simple passage of time unless the person is immediately arrested.” (Schofield, at pp. 974-
975; see Thompson, at pp. 824-825 [holding that the metabolization of alcohol qualified
as imminent destruction of evidence justifying warrantless entry to arrest DUI suspect].)
       The issue here is whether Grasmuck had “reasonable cause to believe [defendant]
had been driving while under the influence of an alcoholic beverage . . . .” (§ 40300.5,
subd. (e); Schofield, supra, 90 Cal.App.4th at p. at p. 970.) He did. He saw defendant
climb onto the bridge rail, lose his balance, and fall back into the roadway. He noticed
defendant’s “red and watery” eyes and detected a strong odor of alcohol that he initially
thought and later confirmed came from defendant. He observed that defendant was
“argumentative” and “loud,” that his speech was slurred, and that he was “somewhat”
incoherent. Ample evidence thus supported a conclusion that defendant was “very
intoxicated.” Ample evidence also supported a conclusion that defendant had driven to
the bridge in that condition. Mitchell told Grasmuck that he smelled alcohol on
defendant’s breath when defendant picked him up in Marina, that defendant drove them


                                             10
to the bridge, that they did not drink alcohol in the car, and that defendant had nothing to
drink after they arrived at the bridge.
       Because Grasmuck had “reasonable cause to believe that [defendant] had been
driving while under the influence of an alcoholic beverage . . . ,” the DUI arrest to
preserve evidence that might otherwise have been destroyed was lawful. (§ 40300.5,
subd. (e); Schofield, supra, 90 Cal.App.4th at p. at p. 970.) Because the DUI arrest was
lawful, defendant was required to submit to chemical testing. (§ 23612, subd. (a)(1)(A)
[“A person who drives a motor vehicle is deemed to have given his or her consent to
chemical testing of his or her blood or breath for the purpose of determining the alcoholic
content of his or her blood, if lawfully arrested for any offense allegedly committed in
violation of Section . . . 23152 . . . .”].)
       Section 23577 provides that “[i]f any person is convicted of [DUI], and at the time
of the arrest leading to that conviction that person willfully refused a peace officer’s
request to submit to . . . the chemical test or tests pursuant to Section 23612, the court
shall impose [certain enhancements].” (§ 23577, subd. (a).) “The willful refusal or
failure to complete the chemical test required pursuant to Section 23612 shall be pled and
proven.” (§ 23577, subd. (b).)
       Here, Grasmuck testified that he read the chemical testing requirement to
defendant and asked him if he would submit to the test. Defendant “said no, fuck you.”
This was plainly a “willful refusal” to complete the test. (§ 23577, subd. (b).) Thus,
sufficient evidence supported the jury’s true finding on the section 23577 enhancement
allegation.
                            3. Penal Code Section 69 Conviction
       Defendant argues that there was insufficient evidence to support his conviction for
attempting by threat to deter the performance of an officer’s duty (Pen. Code, § 69)
because there was no evidence that he specifically intended to deter Grasmuck’s lawful
conduct. We cannot agree.
                                               11
       Penal Code section 69 prescribes punishment for any attempt “by means of any
threat or violence, to deter or prevent an executive officer from performing any duty
imposed upon such officer by law . . . .” (Pen. Code, § 69.) “A threat, unaccompanied
by any physical force, may support a conviction for the first type of offense under section
69.” (In re Manuel G. (1997) 16 Cal.4th 805, 814 (Manuel G.).) But the statute requires
more than a threat. (People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893,
897.) “Indeed, its central requirement is an attempt to deter the executive officer.” (Ibid.)
A threat of unlawful violence “is merely the means by which the attempt is made.”
(Manuel G., at p. 815.) Penal Code section 69 “encompasses attempts to deter either an
officer’s immediate performance of a duty imposed by law or the officer’s performance
of such a duty at some time in the future.” (Manuel G., at p. 817.) It “does not reach
threats made only in . . . retaliation for an officer’s past performance of his or her duties.”
(Id. at p. 817, fn. 6.) “[A] violation of section 69 requires a specific intent to interfere
with the executive officer’s performance of his duties . . . .” (People v. Gutierrez (2002)
28 Cal.4th 1083, 1153-1154.)
       Defendant insists that specific intent was lacking here because “[m]entally, he was
focused backward in time, responding to or retaliating for [Grasmuck’s] past and illegal
conduct in arresting him.” The record does not support this assertion.
       Grasmuck testified that defendant’s first threat was delivered as they were “going
up Laureles Grade Road.” “He said something like I’m gonna fuck you up. I’m gonna
find you later, I’m gonna fuck you up.” During the same portion of the drive to the CHP
office in Salinas, defendant offered to give Grasmuck a free skydiving lesson “ ‘if you let
me go.’ ” The temporal proximity of the two statements supported a conclusion that
defendant made both with the same intent. That intent was to get out of the predicament
he found himself in. The jury could reasonably have concluded from this circumstantial
evidence that when defendant’s effort to bribe Grasmuck failed to effect his release,
defendant turned to threats of violence. Substantial evidence thus supported a finding
                                              12
that defendant voiced his threats with the requisite specific intent to deter Grasmuck from
performing his official duties. Defendant’s Penal Code section 69 conviction was
supported by sufficient evidence.


                             B. Claimed Instructional Errors
                               1. Definition of “Lawfulness”
       Defendant argues that his former section 2800 and Penal Code 69 convictions and
the true finding on the section 23577 enhancement allegation must be reversed “because
the jury received no instruction to guide them in determining the common element of
lawfulness.” He maintains that “[d]epending as the trial court did solely on the language
of the statutes was inadequate because lawfulness can only be determined by reference to
principles of constitutional law governing illegal detentions, unlawful warrantless arrests,
and the use of tainted evidence derived from them.” We disagree.
       Our review is de novo. “Whether or not to give any particular instruction in any
particular case entails the resolution of a mixed question of law and fact that, we believe,
is . . . predominantly legal. As such, it should be examined without deference.” (People
v. Waidla (2000) 22 Cal.4th 690, 733.)
       “In a criminal case, a trial court has a duty to instruct the jury on ‘ “ ‘ “the general
principles of law relevant to the issues raised by the evidence.” ’ ” ’ [Citation.] The
‘general principles of law governing the case’ are those principles connected with the
evidence and which are necessary for the jury’s understanding of the case. [Citations.]”
(People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).) The trial court has a duty to
instruct the jury on the essential elements of the charged offense even without a request
by the defendant. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
       Generally, “ ‘[a] party may not complain on appeal that an instruction correct in
law and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’ ” (People v. Sully (1991) 53
                                               13
Cal.3d 1195, 1218.) “ ‘[T]he language of a statute defining a crime or defense is
generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient
when the defendant fails to request amplification. If the jury would have no difficulty in
understanding the statute without guidance, the court need do no more than instruct in
statutory language.’ ” (Estrada, supra, 11 Cal.4th at p. 574.)
       Defendant’s assertion that the jury was not instructed on the element of lawfulness
is incorrect. An instruction that tracked the language of CALCRIM No. 2656 told the
jury with respect to the former section 2800, subdivision (a) count that “[t]he defendant is
charged in Count 4 with failing to comply with a lawful order of a uniformed peace
officer, in violation of . . . section 2800(a).” (Italics added.) The same instruction told
the jury that “[t]o prove that the defendant is guilty of this crime, the People must prove
that, one, Officer Grasmuck was a peace officer lawfully performing or attempting to
perform his duties pursuant to the Vehicle Code; two, the officer was in uniform; and
three, the defendant willfully failed or refused to comply with a lawful order or direction
of the peace officer.” (Italics added.) The relevant portion of the instruction on the Penal
Code 69 count told the jury that “[t]o prove that the defendant is guilty of this crime, the
People must prove that, one, the defendant willfully and unlawfully used violence or a
threat of violence to try to prevent or deter an executive officer from performing the
officer’s lawful duty, and two, when the defendant acted he intended to prevent or deter
the executive officer from performing the officer’s lawful duty . . . .” (CALCRIM
No. 2651, italics added.) The instruction on the section 23577 enhancement allegation
told the jury that the prosecution had to establish that “the peace officer lawfully arrested
the defendant . . . .” (Italics added.)
       Defendant does not contend that any of these instructions incorrectly stated the
law. He did not challenge them below. Nor did he request the amplifying or clarifying
instruction that he now urges should have been given. His failure to do so forfeited the
argument. (People v. Jenkins (2000) 22 Cal.4th 900, 1020-1021 (Jenkins) [contentions
                                             14
that trial court “failed to define adequately what constituted an officer’s lawful
performance of his or her duties” and “should have expanded upon the definition of
‘performance of official duties’ ” held “waived, because defendant did not request such a
clarification below.”].)
       Defendant urges that the trial court had a sua sponte obligation to instruct the jury
with CALCRIM No. 2670. He argues that the court’s failure to do so “unconstitutionally
relieved the prosecution of its obligation to prove the essential element of lawfulness
beyond a reasonable doubt.” We disagree.
       CALCRIM No. 2670 instructs the jury that the People have the burden of proving
beyond a reasonable doubt that an officer was lawfully performing his duty and that an
officer is not lawfully performing his duty “if he . . . is unlawfully arresting or detaining
someone” or “using unreasonable or excessive force when making or attempting to make
an otherwise lawful arrest or detention.” (CALCRIM No. 2670.) The bench notes state
that “[t]he court has a sua sponte duty to give this instruction if there is sufficient
evidence that the officer was not lawfully performing his or her duties and lawful
performance is an element of the offense.” (Bench Notes to CALCRIM No. 2670 (2012
ed.) pp. 597-598.) This instruction is in accord with California Supreme Court precedent
holding that “[d]isputed facts relating to the question whether the officer was acting
lawfully are for the jury to determine . . . .” (Jenkins, supra, 22 Cal.4th at p. 1020; see
also People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [“disputed facts bearing on the
issue of legal cause must be submitted to the jury considering an engaged-in-duty
element”].)
       Here, there were no disputed facts relating to the lawfulness of Grasmuck’s
actions for the jury to resolve. Defendant did not challenge the lawfulness of Grasmuck’s
orders at trial. Nor did he challenge the legality of his detention and arrest for refusing to
comply with those orders. He did not challenge the lawfulness of his other arrests or rely
on a fruit of the poisonous tree theory at trial. There is no substantial evidence in the
                                              15
record to support any of those theories. “ ‘[A] trial judge must only give those
instructions which are supported by substantial evidence. [Citations.]’ ” (People v.
Roldan (2005) 35 Cal.4th 646, 715 (Roldan), disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “A party is not entitled to an instruction on a
theory for which there is no supporting evidence.” (People v. Memro (1995) 11 Cal.4th
786, 868 (Memro), overruled on another point in People v. Gaines (2009) 46 Cal.4th 172,
181, fn. 2.) On this record, the trial court’s obligation to instruct the jury with CALCRIM
No. 2670, which explains when an arrest or detention is unlawful, was never triggered.
       Defendant urges that the trial court had a sua sponte duty to instruct the jury with
CALCRIM No. 2670 because “[i]t is undeniably ‘error not to submit all elements of a
charged offense to the jury, regardless of the state of the evidence.’ [Citation.]” The
argument lacks merit. The jury was instructed on the elements of each offense. We have
determined that absent a request by defendant to augment those instructions and without
sufficient evidence that Grasmuck was not lawfully performing his duties, the trial court
had no obligation to instruct the jury with CALCRIM No. 2670. (Roldan, supra, 35
Cal.4th at p. 715.)
       Defendant’s reliance on dictum in People v. Wilkins (1993) 14 Cal.App.4th 761
(Wilkins) is misplaced. In Wilkins, the prosecution relied at trial on exigent
circumstances and consent to justify a warrantless entry. (Id. at pp. 767, 771, 777, fn. 8,
780.) Both theories were supported by substantial evidence. (Ibid.) The state of the
evidence in Wilkins thus required sua sponte instruction on exigent circumstances and
valid consent as “material constituent[s] of an element necessary for conviction.” (Id. at
p. 777 & fn. 8.) Not so here. Unlike in Wilkins, there was no substantial evidence to
support the sua sponte instruction that defendant claims was required. Wilkins is
inapposite.




                                             16
                           2. Penal Code Section 69 Instructions
       Defendant argues that “if it had not been obvious to the trial court before,” a jury
question during deliberations “should certainly have alerted it to the need to provide more
complete instruction” on the Penal Code section 69 count. We cannot agree. The note
said, “We need more information about the actions leading to Mr. Jester being charged
with count #1 Penal Code Section 69. When did this offense take place?” We do not
read the note as a plea for “more complete instruction.” It seeks clarification of the facts,
not the law. Because the jury’s task is to determine the facts, the trial court appropriately
responded, “You have heard and received all the evidence. You can use any and all
evidence received during the trial to determine if any conduct or actions by the Defendant
. . . constitute a violation of P.C. 69.”
       In his reply brief, defendant asserts that he “argued below” that the trial court’s
failure to instruct the jury sua sponte on “the technical legal terms of ‘trespass,’ ‘lawful,’
and ‘lawfulness,’ all in the context of the officer detaining and arresting [defendant], and
of [defendant’s] verbal threats related to that conduct, constituted prejudicial instructional
error in violation of the Fifth, Sixth, and Fourteenth Amendments to the Constitution,
subject to Chapman harmless error analysis.” Defendant’s assertion is incorrect. He
made no such argument in the trial court, as he expressly concedes in his opening brief on
appeal. Even if we assume that he preserved the argument, it is simply another iteration
of his claim that his initial encounter with Grasmuck was an illegal detention that set in
motion a chain reaction that obligated the trial court to instruct the jury sua sponte with
CALCRIM No. 2670. We have already rejected that argument.
       Defendant claims the trial court prejudicially misinstructed the jury on “the reach
of Penal Code section 69 . . . .” He quotes snippets of CALCRIM No. 2651 out of
context to support his argument that the instruction “made no reference to the essential
requirement of lawfulness in the exercise of discretion and the performance of official


                                              17
duties.” He contends that the misinstruction “allowed the jury to convict [him] even if
the officer was ‘performing his duties’ unlawfully, or in the past.” We disagree.
       “ ‘[T]he correctness of jury instructions is to be determined from the entire charge
of the court, not from a consideration of parts of an instruction or from a particular
instruction.’ [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 252.) “We
presume that jurors are intelligent and capable of understanding and applying the court’s
instructions. [Citation.]” (People v. Butler (2009) 46 Cal.4th 847, 873.) “A defendant
challenging an instruction as being subject to erroneous interpretation by the jury must
demonstrate a reasonable likelihood that the jury understood the instruction in the way
asserted by the defendant. [Citations.]” (People v. Cross (2008) 45 Cal.4th 58, 67-68
(Cross).)
       Here, the court gave the standard instruction. The jury was instructed that “[t]he
defendant is charged in Count 1 with trying to prevent or deter an executive officer from
performing the officer’s duty, in violation of Penal Code [s]ection 69. [¶] To prove that
the defendant is guilty of this crime, the People must prove that, one, the defendant
willfully and unlawfully used violence or a threat of violence to try to prevent or deter an
executive officer from performing the officer’s lawful duty, and two, when the defendant
acted he intended to prevent or deter the executive officer from performing the officer’s
lawful duty. [¶] Someone commits an act willfully when he or she does it willingly or
on purpose. [¶] An executive officer is a government official who may use his or her
own discretion in performing his or her job duties. A sworn peace officer is an executive
officer. [¶] The executive officer does not need to be performing his or her duties at the
time the threat is communicated. [¶] A threat may be oral or written and may be implied
by a pattern of conduct or a combination of statements and conduct. [¶] Someone who
intends that a statement be understood as a threat, does not have to actually intend to
carry out the threatened fact. [¶] A sworn member of the [CHP] is a peace officer.”
(CALCRIM No. 2651.)
                                             18
       In our view, the structure of the instruction defeats defendant’s argument that it
“allowed the jury to convict [him] even if the officer was ‘performing his duties’
unlawfully, or in the past . . . .” The instruction first described the elements of the
offense. It correctly informed the jurors that the prosecution had to prove that defendant
willfully and unlawfully threatened an officer in an attempt to deter him “from
performing the officer’s lawful duty” and that he acted with the intent to deter the officer
“from performing the officer’s lawful duty.” In separate and subordinate paragraphs, the
instruction then defined “willfully” and “executive officer” and explained that the officer
did not have to be performing his duties when the threat was communicated. No rational
juror would have interpreted the definition of “executive officer” to suggest that
Grasmuck had discretion to perform his duties unlawfully. Nor can the instruction be
read to suggest that defendant could be convicted for attempting to deter Grasmuck’s past
performance of his duties. It is impossible to deter conduct that has already occurred.
Thus, it is not reasonably likely that the jury would have interpreted the instruction in the
way defendant suggests. His argument fails. (Cross, supra, 45 Cal.4th at pp. 67-68.)
       Defendant complains that the court gave a “truncated” version of CALCRIM
No. 2651. We assume he is referring to the trial court’s omission of optional language
that explains that “[a] peace officer is not lawfully performing his or her duties if he or
she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive
force in his or her duties). . . .” (CALCRIM No. 2651.) The optional language is
appropriately included when lawful performance is an issue. (Bench Notes to CALCRIM
No. 2651 (2012 ed.) p. 569.) Here, lawful performance was not an issue. Thus, the trial
court properly omitted the optional language.
                        3. Circumstantial Evidence Instructions
       Although both sides agreed below that CALCRIM No. 225 (circumstantial
evidence: intent or mental state) was the appropriate instruction, defendant now contends


                                              19
that the trial court should have given CALCRIM No. 224 (circumstantial evidence:
sufficiency of evidence) instead. We disagree.
       “An instruction on the principles contained in [CALCRIM No. 224] ‘must be
given sua sponte when the prosecution substantially relies on circumstantial evidence to
prove guilt. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 885 (Rogers).)
“[B]ut it should not be given where the evidence relied on is either direct or, if
circumstantial, is not equally consistent with a reasonable conclusion of innocence.”
(People v. Heishman (1988) 45 Cal.3d 147, 167 (Heishman); People v. Wiley (1976) 18
Cal.3d 162, 174-176 (Wiley).) Nor is it required “where the alleged circumstantial
evidence is incidental to, and corroborative of, direct evidence.” (People v. Malbrough
(1961) 55 Cal.2d 249, 250-251 (Malbrough).) “CALCRIM Nos. 224 and 225 provide
essentially the same information on how the jury should consider circumstantial
evidence, but CALCRIM No. 224 is more inclusive.” (People v. Samaniego (2009) 172
Cal.App.4th 1148, 1172 (Samaniego);3 see People v. Cole (2004) 33 Cal.4th 1158, 1222
(Cole).) “CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the
defendant’s specific intent or mental state is the only element of the offense that rests
substantially or entirely on circumstantial evidence.’ [Citations.]” (Samaniego, at
pp. 1171-1172; see Cole, at p. 1222.)
                          a. DUI and Circumstantial Evidence
       Defendant argues that the trial court should have instructed the jury with
CALCRIM No. 224 because “the prosecution relied exclusively on circumstantial

3
        “CALCRIM Nos. 224 and 225 are substantially the same as their predecessors,
CALJIC Nos. 2.01 and 2.02. In each pair, the lower numbered instruction informs the
jury as to how to consider circumstantial evidence to find the defendant guilty, and the
higher numbered instruction informs the jury on how to consider circumstantial evidence
when only the element of mental state or intent has been proven by such evidence.
Authorities discussing these CALJIC instructions are therefore instructive with regard to
the analogous CALCRIM instructions.” (Samaniego, supra, 172 Cal.App.4th at p. 1171,
fn. 12.)

                                             20
evidence” to prove the DUI charge. The Attorney General disagrees. She maintains that
the prosecution relied primarily on direct evidence. We agree with the Attorney General.
       To prove the DUI charge, the prosecution had to establish that defendant drove a
vehicle while under the influence of an alcoholic beverage. (CALCRIM No. 2110;
People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 5.) The prosecution relied primarily
on direct evidence to establish both elements. Arratia’s testimony, the recording of his
911 call, and the computer printout of that call established that the driver of the car
Arratia observed on Highway 1 near Moss Landing was impaired in some way, although
it did not establish the nature of the impairment. Correa’s testimony established that the
black Isuzu he saw at the bridge was the same car Arratia reported to police. Defendant
admitted that he was the driver of that car.
       Ample direct evidence, including the videos, Grasmuck’s testimony, and
defendant’s own admissions, established that defendant was intoxicated at the bridge.
Mitchell’s observations provided a direct evidence link between defendant’s intoxication
at the bridge and his prior driving. Mitchell told Grasmuck that he smelled alcohol on
defendant’s breath when defendant picked him up, that he noticed him weaving “a little
bit” and “maybe veer[ing] from the lane a little bit” on the drive to the bridge, that they
did not drink alcohol during the drive, and that defendant had nothing to drink at the
bridge. Thus, there was sufficient direct evidence to establish the elements of the DUI
offense.
       Circumstantial evidence corroborated the conclusion that defendant drove while
under the influence of alcohol. It did so by supporting a reasonable inference that
defendant was under the influence when Arratia encountered him. Mitchell’s statement
to Grasmuck that he smelled alcohol on defendant’s breath when defendant picked him
up in Marina permitted an inference that the impaired driving Arratia observed near Moss
Landing before defendant picked Mitchell up was caused by intoxication rather than by
some other factor. The inference was bolstered by Mitchell’s testimony that he did not
                                               21
see alcoholic beverages in the car when defendant picked him up and that he noticed
defendant weaving “a little bit” and “maybe veer[ing] from the lane a little bit” on the
remainder of the drive although neither of them drank alcohol in the car. Defendant’s
testimony that he was an alcoholic further supported an inference that intoxication caused
the impaired driving that Arratia reported. Instruction with CALCRIM No. 224 is not
required where circumstantial evidence is “incidental to, and corroborative of, direct
evidence,” as was the case here. (Malbrough, supra, 55 Cal.2d at pp. 250-251.)
       Instruction with CALCRIM No. 224 is also not required where the evidence relied
on, “if circumstantial, is not equally consistent with a reasonable conclusion of
innocence.” (Heishman, supra, 45 Cal.3d at p. 167; Wiley, supra, 18 Cal.3d at pp. 174-
176.) There was no such consistency here. The evidence pointing to defendant’s guilt
was strong. He did not suggest an alternate inference to be drawn from any of the
circumstantial evidence presented at trial. Instead, he denied having anything alcoholic
to drink before he set out that day. He testified that he did not recall having difficulty
keeping his car from swerving on Highway 1 in the area of Moss Landing. He did not
recall having to brake suddenly or almost colliding with another car. “Defendant’s
testimony that he could not remember was not inconsistent with the evidence of guilt.”
(Rogers, supra, 39 Cal.4th at p. 886.) On this record, the circumstantial evidence that the
prosecution relied on to prove the DUI charge was not equally susceptible of a reasonable
interpretation pointing to defendant’s innocence. Instruction with CALCRIM No. 224
was not required. (Heishman, at p. 167; Wiley, at pp. 174-176.)
       Although he made no such argument at trial, defendant now argues that his
impaired driving “was as reasonably attributable to [his] use of his cell phone to call
Mitchell, which the other evidence showed occurred at the same time.” The record cites
that he relies on refer to the post-arrest call that he made to Mitchell from the CHP office
much later that day. The record does not reveal the time of defendant’s earlier call to
Mitchell or where he placed that call from. The call was brief. Mitchell testified that
                                             22
defendant asked him if he wanted to go to Big Sur and “[t]hat was it.” Mitchell estimated
that defendant arrived at his house in Marina about 20 minutes later. Defendant cites no
other evidence to support his argument.
       The evidence that defendant relies on does not support a reasonable inference that
his impaired driving was attributable to his cell phone call to Mitchell. Without more
details, defendant’s assertion is entirely speculative. On these facts, the trial court had no
sua sponte duty to instruct the jury with CALCRIM No. 224. (Heishman, supra, 45
Cal.3d at p. 167; Wiley, supra, 18 Cal.3d at pp. 174-176.)
                b. Marijuana Possession and Circumstantial Evidence
       Defendant argues that the trial court should have given CALCRIM No. 224
because “the prosecution relied exclusively on circumstantial evidence” to prove the
marijuana possession charge. The Attorney General counters that while circumstantial
evidence was used to prove the charge, “the only issue was whether defendant in fact
possessed the marijuana, which was directly dependent on his own assertions that he did
not know [it] was in his backpack. Thus, the question was one of knowledge, properly
invoking the mental state instruction under CALCRIM No. 225.” We agree with the
Attorney General.
       To establish defendant’s violation of section 23222, subdivision (b), the
prosecution had to prove (1) that he possessed a controlled substance, (2) that he knew of
its presence, (3) that he knew of its nature or character as a controlled substance, (4) that
he knew the controlled substance was marijuana, (5) that the controlled substance was in
a usable amount, and (6) that he possessed it while driving a motor vehicle. (CALCRIM
No. 2304.) Direct evidence established all but the knowledge element. Correa testified
that he found two baggies containing what he recognized as marijuana in a backpack on
the back seat of defendant’s Isuzu. Department of Justice criminalist Rachel Frase
testified that the substance tested positive for marijuana and constituted a usable quantity.
Mitchell testified that the backpack in which the marijuana was found was in the back
                                              23
seat of the Isuzu when defendant picked him up in Marina and that he “believe[d]” the
backpack belonged to defendant. Defendant and Mitchell testified that defendant drove
alone in the Isuzu to Mitchell’s house in Marina and then drove them both to the Bixby
Bridge.
       Neither defendant nor Mitchell was asked about the marijuana at trial. The
prosecution relied on circumstantial evidence to establish defendant’s knowledge of its
existence and nature. In closing argument, the prosecutor urged the jury to “look at the
circumstances and draw a reasonable inference. [¶] One such to be drawn here is that the
person who owns the backpack knows what’s in it. This is a backpack that’s in the
backseat [sic] of a car he’s driving, has control over. It’s full of his equipment, his jump
equipment. That’s his backpack. He has reason to know what’s in it.”
       But that was not the only reasonable inference to be drawn from the evidence.
Defendant testified that he “assumed” the backpack in the back of the Isuzu belonged to
his roommate. He said that he “didn’t even know there was booze in the car until we got
there and in this backpack, like I said, there was a half gallon of vodka . . . .” If the jury
believed defendant’s testimony, it would have supported an inference that defendant did
not discover the marijuana in the backpack until he arrived at the bridge.
       Since the knowledge elements of the marijuana possession charge rested
substantially or entirely on circumstantial evidence that was equally consistent with a
reasonable conclusion of guilt or innocence, the trial court properly instructed the jury
with CALCRIM No. 225. (Samaniego, supra, 172 Cal.App.4th at p. 1171; People v.
Yrigoyen (1955) 45 Cal.2d 46, 49.) Because the other elements of the charge rested
substantially or entirely on direct evidence, the court did not err in failing to instruct the
jury with CALCRIM No. 224. (Heishman, supra, 45 Cal.3d at p. 167; Wiley, supra, 18
Cal.3d at pp. 174-176.)
       We reject defendant’s argument that the failure to give CALCRIM No. 224 “could
not but violate [his] substantial and fundamental constitutional right to due process.” As
                                              24
the California Supreme Court explained in Rogers, “Insofar as the federal Constitution
itself does not require courts to instruct on the evaluation of circumstantial evidence
where, as here, the jury properly was instructed on reasonable doubt [citations],
defendant’s claim necessarily rests on the asserted arbitrary denial of a state-created
liberty interest. [Citation.] We doubt the common law right to a circumstantial evidence
instruction rises to the level of a liberty interest protected by the due process clause.
[Citation.]” (Rogers, supra, 39 Cal.4th at pp. 886-887.)
       Here, the jury was properly instructed with CALCRIM Nos. 103 and 220 on the
presumption of innocence, the prosecution’s burden of proof, and reasonable doubt.
Defendant’s due process rights were not violated. (People v. McKinnon (2011) 54
Cal.4th 610, 677; Rogers, supra, 39 Cal.4th at pp. 886-887.)


                        C. Admission of 911 Caller’s Testimony
       Defendant argues that the trial court abused its discretion and violated his right to
due process when it denied his motion to exclude Arratia’s “surprise” testimony or,
alternatively, to continue the trial. We disagree.
                                       1. Background
       Early on the second day of trial and before opening statements were given, the
prosecutor informed the trial court that after court the previous evening he learned for the
first time about the “be on the lookout” broadcast that Correa heard several hours before
defendant’s arrest. The prosecutor promptly asked Grasmuck to locate the witness whose
911 call triggered the broadcast. Grasmuck interviewed Arratia later that evening. The
prosecutor represented that “[t]hat was my first knowledge about the existence of that
witness.” He told the court that he had already given the defense copies of the CAD
[computer assisted dispatch] printout and Grasmuck’s supplemental report. He asked that
Arratia be permitted to testify. The defense moved to exclude the evidence as “late


                                              25
discovery,” arguing that the CHP had the information all along and should have included
it in its original report.
       The trial court responded that “things come up” in jury trials despite the parties’
best efforts to prepare their cases. The court remarked that it saw little difference
between “the character witness [the defense] provided Friday and this type of witness.”
The court told the defense that information about Tomkins was in defendant’s possession,
“[s]o you can’t say, well, I didn’t have it but my client had it. Well, [the prosecutor]
didn’t have this information but his investigating officer had it or had access to it. . . . [¶]
I believe both of you in good faith do your best to prepare your cases and in particular
this case, and unfortunately, things come up.” “In a perfect world, I guess we could say,
well, we should [have done] all this six months ago . . . . I just don’t think that’s a very
practical position for a court to take. [¶] . . . I don’t think there’s any personal game
playing going on. I don’t think either of you intentionally failed to disclose any of this
information. [¶] . . . [¶] So the question then becomes how do we remedy issues of late
discovery so neither side is prejudiced and each side has an ability to prepare?”
       The court directed the prosecutor to run a rap sheet on Arratia and provide it to the
defense. The prosecutor also agreed to provide the audio portion of the CAD. The court
suggested having Arratia testify subject to recall so that if the defense uncovered
anything, “then we can recall him and I’d give you great leeway with your cross-
examination.” Defense counsel rejected that suggestion. Defense counsel also rejected a
suggestion that Arratia testify last. The prosecutor offered to make Arratia available for
an interview after lunch but defense counsel said his investigator was not available until
“later” that afternoon. The prosecutor offered to make Arratia available before trial the
following morning. The court agreed that was an option “but the [d]efense is indicating
they are not going to present their case out of order and I’m not going to have three or
four hours where we’re not doing anything on the second day of trial.”


                                              26
       The trial court learned during a mid-afternoon break that defense counsel had not
yet spoken to his investigator or interviewed Arratia. It stated that “[a]s I told both
attorneys in chambers, this witness has come down from San Jose and is going to testify
today. So I don’t know how to convince you, [defense counsel], that you are going to
lose your opportunity to speak with this witness if you don’t avail yourself of the
opportunity. I don’t know if I can be anymore [sic] clear on this topic.” The court
reminded the defense that the prosecutor had agreed to stipulate to any impeachable
offenses or crimes of moral turpitude “so as not to put you in a position of not being able
to obtain any certified copies of convictions.” The court asked if the defense would be
interested in an Evidence Code section 402 hearing. Counsel replied, “I’d rather have
five minutes to call my investigator.”
       After Tompkins testified, the court told the jury to take another break. Upon
learning that defense counsel and his investigator had interviewed Arratia but had not yet
listened to the one-minute recording of the 911 call, the court stated. “We’ve spent more
time in this trial off the record than on the record. I am at my wit’s end, quite frankly. I
think it’s disrespectful to the jury . . . . [¶] . . . I have tried to make accommodations.
This gentleman from San Jose has been here. No one’s talked to him because we wanted
to wait for an investigator who was out of town. We offered to do a 402 hearing [and] to
do it on the record if you didn’t feel comfortable talking to him for making yourself a
witness issue. [¶] It’s my feeling that the recording of what he said will speak for itself.
If you feel after you hear it you need time to call rebuttal witnesses, feel free to do so.
But I have no idea why this couldn’t have been done in the last 20 minutes . . . .” When
Arratia finally took the stand, defense counsel declined to cross-examine him.
                                         2. Analysis
       California’s reciprocal discovery statute “requires the prosecution to disclose to
the defense, in advance of trial or as soon as discovered, certain categories of evidence
‘in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . .
                                              27
to be in the possession of the investigating agencies.’ ” (People v. Zambrano (2007) 41
Cal.4th 1082, 1133, disapproved on another ground in People v. Doolin, supra, 45
Cal.4th at p. 421, fn. 22; Pen. Code, § 1054.1.) Evidence subject to disclosure includes
“[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial”
and “[r]elevant written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial . . . .” (Pen. Code, § 1054.1,
subds. (a), (f).) The disclosures must generally be made “at least 30 days prior to the
trial,” but “[i]f the material and information becomes known to, or comes into the
possession of, a party within 30 days of trial, disclosure shall be made immediately . . . .”
(Pen. Code, § 1054.7.) On a showing that a party has not complied with its obligations
under the statute and that the moving party has complied with its own obligations, a court
may make any order necessary to enforce its provisions, “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.” (Pen. Code, § 1054.5, subd. (b).) The court may prohibit the testimony of
a witness “only if all other sanctions have been exhausted.” (Pen. Code, § 1054.5,
subd. (c).) “[P]rohibiting the testimony of a witness is not an appropriate discovery
sanction in a criminal case absent a showing of significant prejudice and of willful
conduct.” (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1747, 1758 (Gonzales).)
       The trial court did not abuse its discretion in denying defendant’s motion to
exclude Arratia’s testimony. The prosecutor sent Grasmuck to locate and interview
Arratia almost immediately after he learned about the 911 call. He disclosed the CAD
printout and Grasmuck’s supplemental report soon after. (Pen. Code, § 1054.7.) The
trial court expressly found that there was “no personal game playing” and no intentional
failure to disclose evidence. (Gonzales, supra, 22 Cal.App.4th at p. 1758.) It follows
that there was no violation of the reciprocal discovery statute. (People v. Hammond
(1994) 22 Cal.App.4th 1611, 1624 (Hammond) [where there was “absolutely nothing in
                                             28
the record that would support a conclusion of willfulness,” trial court properly found no
discovery violation and properly permitted prosecution to call previously undisclosed
rebuttal witness whose testimony did not became relevant until defense witness
testified.].) Thus, no sanction was warranted.
       Defendant argues that the trial court abused its discretion in failing to grant a
continuance. We disagree.
       “Continuances shall be granted only upon a showing of good cause.” (Pen. Code,
§ 1050, subd. (e).) When a continuance is sought in the midst of trial, the trial judge
“ ‘ “must consider not only the benefit which the moving party anticipates but also the
likelihood that such benefit will result, the burden on other witnesses, jurors and the court
and, above all, whether substantial justice will be accomplished or defeated by a granting
of the motion.” ’ [Citations.]” (People v. Samayoa (1997) 15 Cal.4th 795, 840
(Samayoa).) “ ‘The burden is on [the defendant] to establish an abuse of judicial
discretion . . . .’ [Citation.] ‘[A]n order of denial is seldom successfully attacked.’
[Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1003, abrogated on another ground
as noted in People v. Pearson (2013) 56 Cal.4th 393, 461-462.)
       Here, the trial court carefully considered the Samayoa factors. The court gave
defendant ample opportunity to prepare to meet the evidence. It did so without unduly
burdening the jury, other witnesses, or the trial process. Defendant and his investigator
had the opportunity to review Arratia’s rap sheet, to listen to the recording of his 911 call,
and to interview him before he testified. Defense counsel did not explain why he needed
additional time or how that extra time would benefit the defense. No abuse of discretion
appears. (Samayoa, supra, 15 Cal.4th 795, 840.)
       Defendant complains that the trial court unfairly applied the “identical” standard
in allowing the defense to present Tompkins’s testimony and in allowing the prosecution
to present Arratia’s testimony. He argues that the court should have taken into account
that Tomkins was discovered and disclosed “3 or 4 days before jury selection began, and
                                             29
almost a week before the witness would be testifying,” whereas “[t]he sudden disclosure
of Arratia presented a very different and strikingly unfair circumstance . . . .”
       We see no abuse of discretion. We are not persuaded by defendant’s argument
that “the lapse of time alone—a whole year—made the admission of [Arratia’s]
testimony unfairly prejudicial” because defendant could have “scant hope” of
remembering the cause of his erratic driving. We doubt that defendant’s memory would
have been sharper had the disclosure been made 30 days earlier, as the discovery statutes
contemplate. (Pen. Code, § 1054.7.) Even if defendant’s memory had faded, the defense
could have cross-examined Arratia about the “entirely innocent” explanations defendant
now suggests caused his erratic driving. The defense could have asked Arratia about
traffic conditions generally. It could have asked him if there was a driver in front of
defendant who “might have created a hazard” that required defendant to brake suddenly.
Given Arratia’s testimony that he was “right behind” defendant from about a quarter of a
mile north of Moss Landing “[p]retty much [to] the . . . Castroville/Salinas exit,” the
defense could have asked him whether he saw defendant using a cell phone. The defense
chose instead to forego cross-examination.
       Defendant argues that a brief continuance “would have revealed the strong
exculpatory inferences to be drawn from [Arratia’s] testimony, inferences that might very
well have led to [defendant’s] acquittal.” He asserts that he called Mitchell from his cell
phone “at about th[e] same time” Arratia saw him driving erratically in the area of Moss
Landing. He argues that this evidence supported an “entirely reasonable” inference that
he and Mitchell arrived at the bridge at least an hour before Grasmuck did, which gave
them “plenty of time to become intoxicated” at the bridge.
       There are a number of problems with this argument. The record does not reveal
when defendant called Mitchell or where he called him from. Defendant’s assertion
about the timing of his call and the conclusions he draws from that timing are entirely
speculative. The record also does not reveal how long defendant and Mitchell remained
                                              30
at Mitchell’s house before they left for the bridge. The fact that defendant may have had
“plenty of time” to drink at the bridge does not establish that he was not already
intoxicated when he arrived there. We reject defendant’s assertion that a brief
continuance would have allowed his counsel to prepare cross-examination that would
have revealed “strong exculpatory inferences” to be drawn from Arratia’s testimony.
       To the extent defendant suggests that Brady v. Maryland (1963) 373 U.S. 83
required earlier disclosure of the 911 call evidence, we reject the contention. “The
holding in Brady v. Maryland requires disclosure only of evidence that is both favorable
to the accused and ‘material either to guilt or to punishment.’ [Citations.]” (United
States v. Bagley (1985) 473 U.S. 667, 674.) “Favorable evidence includes both evidence
that is exculpatory to the defendant as well as evidence that is damaging to the
prosecution, such as evidence that impeaches a government witness.” (People v. Uribe
(2008) 162 Cal.App.4th 1457, 1471-1472.) Arratia’s testimony was not favorable to the
defense, so the belated disclosure of his identity information was not a Brady violation.
       Defendant argues that the trial court’s denial of his motion for a continuance
violated his constitutional right to due process and a fair trial. We disagree. The motion
was properly denied. There is no predicate on which to base a claim of constitutional
error. (People v. Gurule (2002) 28 Cal.4th 557, 656.)


                     D. Claimed Ineffective Assistance of Counsel
       Defendant claims his counsel rendered ineffective assistance because he failed to
move to suppress “the evidence obtained by the officer through violation of [his] Fourth
Amendment right to be free from unreasonable search and seizure” and also failed “to
conduct minimal legal research into the elements of criminal trespass and the element of
lawful performance of duties.” We disagree.
       A defendant seeking reversal for ineffective assistance of counsel must prove both
deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218;
                                            31
Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first element
“requires showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p. 687.)
“Second, the defendant must show that the deficient performance prejudiced the
defense.” (Ibid.) A court deciding an ineffective assistance claim does not need to
address the elements in order, or even to address both elements if the defendant makes an
insufficient showing on one. (Id. at p. 697.)
       Defendant cannot show deficient performance here. We have determined that
Grasmuck’s actions were lawful. Defendant was not detained. There was no basis for a
suppression motion. The failure to make a meritless claim is not deficient performance.
(Strickland, supra, 466 U.S. at p. 676.)


                              E. Denial of Pitchess Motion
       Defendant asks us to review the sealed transcript of the hearing on his Pitchess
motion for discovery of police officer personnel records, which the trial court denied.
                                     1. Background
       Defendant moved for broad discovery of records from Grasmuck’s personnel file,
including records relating to “falsifying police reports, tampering with evidence, or
otherwise over-reaching to make a case . . . .” The accompanying declaration of his trial
counsel asserted that defendant disputed Grasmuck’s report of threats made during the
ride to the CHP office and that defendant planned to use any evidence discovered to “to
cross-examine and impeach Officer Grasmuck at trial.” In lieu of a statement of facts,
defendant referred the court to his counsel’s declaration and to Grasmuck’s police report.
       The police report’s two-page summary of the facts described the ride to the CHP
office in Salinas as follows. “As I was transporting Mr. Jester to the Monterey Area
Office, he continually shouted insults at me. After each insult (you’re a cocksucker,
you’re a mother fucker, you son of a bitch you didn’t have to arrest me . . . ), he would
                                             32
apologize. He would try and appeal to my sense of fairness for a few minutes, and he
routinely offered to give me a free skydiving lesson. After a few minutes he would
become enraged again. Mr. Jester’s mood swings continued throughout the encounter.
About halfway to the office, Mr. Jester began to threaten me and my family. He said he
would find me on Facebook and find out everything about me. He said he would look me
up on the internet and find my wife. He said he would befriend my wife, and then fuck
her in the ass. Mr. Jester repeated variations on his threats over and over on our way to
the Area Office.” Grasmuck’s report also described what occurred after they arrived at
the CHP office. “While completing my paperwork Mr. Jester made a very specific threat.
He said he was going to find me, find my family and fuck me up. He was going to use
the internet and find out everything about me including where I lived and all of my
family members. He said he was going to ‘Fuck up you and your shallow life.’ Because
. . . the tone and intensity of the threat had changed, I charged him with 69PC—Threats
against a peace officer and 422PC—Terrorist threats.
       “Officer J. Geer, ID 19640, responded to the area office and took possession of
Mr. Jester and the marijuana found in his car. Officer Geer transported Mr. Jester to the
Monterey County Jail for booking. While en-route, Mr. Jester related that he didn’t
really threaten me, he only said he was going to look me up on Facebook.”
       The declaration of defendant’s trial counsel stated that Grasmuck’s “account of
Mr. Jester’s statements is false in material respects. Specifically, Mr. Jester asserts that
he never told Officer Grasmuck that he would look him up on Facebook, that he would
befriend his wife, or have any type of sexual contact with her. Mr. Jester never told
Officer Grasmuck that he was going to ‘fuck up you and your shallow life.’ ” “Mr. Jester
asserts that those statements were not made and are not true.”
       At the hearing on the motion, the trial court commented that defendant’s showing
of good cause was insufficient “based on what’s been presented to the Court so far.”
Defendant’s trial counsel argued in response that good cause was shown because
                                              33
Grasmuck was “the only person” who could provide competent evidence about the
threats, since no one else heard them. “And because of that, we believe that it is
important to obtain materials that would reflect on his character and any previous false
statements and police report[s] of false testimony that he made.”
       The trial court denied the motion. The court explained that “simply saying I didn’t
say exactly that would not be sufficient to even give the Court a basis to start nosing into
the personnel file.”
                                        2. Analysis
       A criminal defendant has a limited right to discovery of peace officer personnel
records. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1047; Pen.
Code, §§ 832.5, 832.7-832.8.) “The procedure requires a showing of good cause for the
discovery, an in camera review of the records if good cause is shown, and disclosure of
information ‘relevant to the subject matter involved in the pending litigation.’
[Citation.]” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) “Good cause for
discovery exists when the defendant shows both ‘ “materiality” to the subject matter of
the pending litigation and a “reasonable belief” that the agency has the type of
information sought.’ [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1016 (Warrick).) “To show the requested information is material, a defendant is required
to ‘establish not only a logical link between the defense proposed and the pending charge,
but also to articulate how the discovery being sought would support such a defense or
how it would impeach the officer's version of events.’ [Citation.]” (Garcia v. Superior
Court (2007) 42 Cal.4th 63, 71 (Garcia).) “Counsel’s affidavit must also describe a
factual scenario that would support a defense claim of officer misconduct. [Citation.]”
(Ibid.) The good cause threshold is “relatively low.” (City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74, 83.) “What the defendant must present is a specific factual
scenario of officer misconduct that is plausible when read in light of the pertinent
documents.” (Warrick, at p. 1025.) “Depending on the circumstances of the case, the
                                             34
scenario may be a simple denial of accusations in the police report or an alternative
version of what might have occurred.” (Garcia, at p. 72.)
       “A motion for discovery of peace officer personnel records is addressed to the
sound discretion of the trial court, reviewable for abuse.” (Alford v. Superior Court
(2003) 29 Cal.4th 1033, 1039.)
       Here, defendant posited a specific factual scenario. He asserted that Grasmuck
fabricated the threats, falsified his police report with them, and testified falsely about
them at the preliminary examination “to improperly bolster his case.” That scenario was
not plausible “when read in the light of the pertinent documents,” which included
defendant’s statement to Geer that he “didn’t really threaten [Grasmuck but] only said he
was going to look him up on Facebook.” (Warrick, supra, 35 Cal.4th at p. 1025.)
Defendant’s statement that he “didn’t really threaten” Grasmuck does not support an
inference that Grasmuck fabricated the threats. It suggests instead that defendant
belatedly recognized that his statements to Grasmuck could have been interpreted as
threats. Defendant’s statements to Geer undermined defendant’s assertion through his
counsel that Grasmuck falsified his police report.
       Nowhere in defendant’s counsel’s declaration are defendant’s statements to Geer
explained or acknowledged. Defendant does not deny that he made those statements. He
does not claim that Geer or Grasmuck fabricated them. He asserts no misconduct at all
on Geer’s part. He did not seek to discover documents from Geer’s personnel file.
Defendant’s factual scenario is internally inconsistent because his counsel’s declaration
contradicts defendant’s own statements to Geer. (Compare People v. Thompson, supra,
141 Cal.App.4th at pp. 1317-1318 [factual scenario “not internally consistent or
complete” where the defendant failed to provide an alternate version of the facts and
“d[id] not explain his own actions in a manner that adequately support[ed] his defense”]
with Warrick, supra, 35 Cal.4th at p. 1027 [good cause established by plausible if not
entirely convincing alternative version of the facts; scenario that defense counsel’s
                                              35
declaration described was internally consistent where any conflicts with the police report
supported the defendant’s allegations that police fabricated facts in the report.) Because
defendant failed to describe a specific factual scenario of officer misconduct that was
plausible when read in light of the pertinent documents, he failed to establish good cause
for the requested discovery. His Pitchess motion was properly denied.


                                   F. Cumulative Error
       Defendant contends that the cumulative effect of the trial court’s errors deprived
him of a fundamentally fair trial. As we have found no error, his claim fails. (People v.
Cooper (1991) 53 Cal.3d 771, 839.)


                                     III. Disposition
       The judgment is affirmed.


                                          ___________________________
                                          Mihara, J.


WE CONCUR:


_____________________________
Premo, Acting P. J.


_____________________________
Márquez, J.




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