Filed 5/28/15 P. v. Ortiz CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C070982

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM031995)

         v.

TRAVIS MICHAEL ORTIZ,

                   Defendant and Appellant.




         Defendant Travis Michael Ortiz appeals following his conviction of murder with
personal and intentional use and discharge of a firearm resulting in death. (Pen. Code,
§§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b)-(d); unless otherwise stated,
statutory references that follow are to the Penal Code.) Defendant contends the
government’s delayed disclosure and loss of potentially exculpatory evidence
compromised his right to due process of law, presentation of a defense, and effective
assistance of counsel. Defendant also argues the trial court erred in allowing into


                                                             1
evidence (1) a gun found in his car days after the shooting and (2) uncharged offenses to
show motive. We affirm the judgment.

                                FACTS AND PROCEEDINGS

       Bridget Castillo witnessed the murder of her boyfriend, Skhy Abrahamian, on a
sidewalk on January 2, 2010, around 10:00 p.m.
       Defendant’s first trial which took place in November 2011 ended in a mistrial
when the jury deadlocked at four guilty and eight not guilty.
       At the second trial, Bridget said she went with her baby that night to see the victim
at the apartment of his business partner, Nick Patti. Patti was not at the apartment.
Though given immunity in return for her testimony, Bridget testified she was unaware at
that time that the nature of Abrahamian’s and Patti’s business was growing and selling
marijuana.
       Going to the apartment, Abrahamian was nervous due to an earlier unexpected
visit from someone named “Corky,” who was not defendant. Abrahamian walked
Bridget to her car. Defendant -- whom Bridget has known for 15 years and identified in
court -- drove up in a silver SUV, left it running with the lights on, got out, and wanted
to talk to Abrahamian. Defendant was wearing a baseball cap backwards. Defendant and
Abrahamian were members of the Norten͂ o street gang and had business dealings
together.
       Defendant said, “let’s go in the house.” Abrahamian did not want to go inside.
The two men walked away from the car, but Bridget could still see them. She was
nervous because defendant was not acting normal; he was sweating and agitated. As
Bridget waited in the car, she heard Abrahamian ask, “Why do you have your hands in
your pocket? What’s wrong?” Bridget phoned her brother Nathan, whose testimony
confirmed her unease. Abrahamian came back to Bridget’s car to get his house key, told
her to go home, and walked away from the car.


                                             2
       Bridget looked down at her phone, heard a gunshot, looked up, and saw
Abrahamian fall to the ground. She ran to him. Defendant just looked at her “like
whatever.” He put his hands underneath his sweater, but Bridget was more focused on
his eyes. Defendant got in the SUV and drove off.
       Because she was afraid of defendant’s gang connections, Bridget lied when she
initially told police she did not know the shooter. Gang culture bans cooperating with
police. That night, Bridget told her brother Nathan that defendant shot the victim, and
Nathan told a third person, who called police. Bridget also told her brother that she saw
the muzzle flash of defendant’s gun going off, saw the victim fall to the ground, saw
defendant tuck the gun away while standing over the victim and staring at her.
       Nick Patti testified he was walking home when he heard the gunshot and screams
from half a block away. He saw the victim’s body on the ground from about 10 feet
away and and ran away. Patti had been walking home after running away 10 or 15
minutes earlier when defendant drove up in a silver SUV, pointed a silver revolver, yelled
and threatened to “dome” Patti, i.e., shoot him in the head, if he did not get in the vehicle.
       Neighbors in their apartments heard the yelling and later heard the gunshot and
saw a silver SUV drive away.
       Upon hearing the suspect vehicle might be a silver Mitsubishi Montero, a police
sergeant knew such a vehicle was associated with Norten͂ o gang member Erick Lara and
owned by Erick’s relative Rafael Lara. The sergeant located the SUV parked outside
Rafael’s address. He did not check whether the hood was warm.
       Based on reports the SUV might be a rental, police checked with rental companies
and learned defendant was an authorized driver on a silver Pontiac Torrent SUV rented to
his relative Serapio Ortiz. On January 6, 2010, police saw defendant return the Pontiac
SUV to the rental office.




                                              3
      On January 9, 2010, police arrested defendant in his Trailblazer. He had $1,400 in
cash and a stainless steel Ruger .357 Magnum revolver on the right rear passenger
floorboard. The gun was loaded with five hollow point bullets.
      The pathologist testified the victim was shot in the back of the head at close range,
about one-and-a-half to three feet, at a slightly downward angle. He had an exit wound in
his forehead. No bullet or fragments were recovered from his body. The pathologist
opined the wound was made by a medium caliber bullet, approximately .9 mm., .38 mm.,
or .357 mm., but not .45 mm. or .22 mm.
      Over defense objection, the trial court allowed the prosecution to present evidence
of three uncharged offenses involving defendant.
      Patti, who testified under a grant of immunity, told the jury he committed a
robbery with defendant and the victim in December 2009. Defendant needed money and
wanted to rob a woman with whom the victim dealt drugs. Defendant’s brother, Scott
Ortiz, arranged to have the woman bring 40 pounds of marijuana to Scott’s apartment for
an ostensible sale. Defendant, the victim, Nick Patti, and “Corky” waited outside. The
woman drove up and sent her two “kids” (ages unknown) to knock on the door. When no
one answered, they headed for the car. Defendant and Corky, each armed with a gun,
stopped them. Defendant grabbed one and pushed the other, then had the two “guys” lay
on the ground. Defendant and Corky grabbed the marijuana. The four cohorts went to
Corky’s and divided the loot. Each agreed to pay Scott $1,000 for helping set up the
robbery.
      Later that month, defendant visited Patti and asked to see the marijuana. Patti
displayed about 20 pounds of marijuana. Defendant asked if Patti and the victim had the
money to pay Scott. Patti said they were having trouble selling the marijuana because it
was poor quality. Defendant asked Patti to call the victim. When Patti looked down at
his phone, defendant hit him with something and knocked him out. When Patti came to,
defendant was gone and so was the marijuana.

                                            4
       The third uncharged offense was that, 10 or 15 minutes before killing the victim,
defendant pointed a silver gun at Patti and threatened to “dome” him (shoot him in the
head) if he did not get in the SUV.
       The prosecution rested its case. After a recess, the prosecutor told the court he had
just learned that Edward Hastings, a neighbor who saw an SUV drive away after the
gunshot, had called police days after the murder to report he saw the shooter and SUV at
a gas station. This was news to the prosecutor, who contacted police and was told no
such report was found. Upon further inquiry, certain law enforcement officers
remembered having received the information. Police obtained and viewed the gas station
surveillance video, identified the person as Erick Lara, a Norten͂ o gang member whose
relative Rafael Lara owned a silver Mitsubishi Montero. The police eliminated them as
suspects. The prosecutor wrote his own report and disclosed it to defense counsel.
       The police lost the video.
       Hastings had not been called as a prosecution witness at the second trial. He did
testify at the first trial but was not asked about the report of the SUV.
       After proceedings to fashion a remedy for the government’s prior failure to
disclose this evidence (which we discuss post), the defense called Hastings as a witness.
He was on his porch on the night of the shooting, drinking Hennessy’s whiskey and
smoking marijuana. He was “pretty drunk.” He heard and saw a man in the driver’s seat
of a silver Mitsubishi Montero SUV yelling at a man standing on the curb. The street
was dark, with only one streetlight, on the other side of the street. The driver was
wearing a baseball cap, and Hastings did not see his face. The pedestrian jogged away,
and the vehicle left. Ten or 15 minutes later, Hastings was inside his home, heard
“fireworks” and screaming, looked out his window, and saw the same vehicle pull away
from the curb. In the light of a passing car, Hastings caught a glimpse of the driver, who
was a White or light-skinned Hispanic male with a goatee, wearing a baseball cap.



                                              5
       Hastings was certain the silver SUV was a Mitsubishi Montero. He thought it
might be a rental, because it was clean and new. It was in better shape than a neighbor’s
silver Mitsubishi Montero that was parked on the street at the time of the shooting.
Hastings is knowledgeable about vehicle makes and models. The police tested his talent
by having him identify photos of vehicles with logos obscured. Hastings repeated the test
in court, got three out of 12 wrong and offered two answers (one right and one wrong) for
each of two other photos.
       That night, police took Hastings to view the silver Montero associated with
Norten͂ o gang member Erick Lara. Hastings said it was similar but could not identify it
as the suspect vehicle. A stipulation was read to the jury that Erick Lara, a Norten͂ o gang
member, was convicted of shooting a .38 caliber revolver at a house occupied by a
Suren͂ o gang member on May 28, 2010.
       Two days after this murder, Hastings was at a gas station, where he saw a man
who looked like the shooter. The man wore a baseball cap and was walking from an
SUV to the entrance. The SUV was a silver Mitsubishi Montero. “[W]hen I saw the
vehicle and I saw the guy, it just made me think of [the murder].” He first said he saw
the man and the SUV at the same time but, when shown a document to refresh
recollection, said he saw the person first. In court, Hastings learned the SUV at the gas
station was the same SUV he had been unable to identify for police the night of the
murder. He testified he had forgotten that the police took him to see an SUV.
       In this trial testimony two years after the murder, Hastings could not say for sure if
the man at the gas station was the shooter and could not remember what it was about the
man at the gas station that made him think he was the shooter.
       Police Sergeant Rob Merrifield testified the license number reported by Hastings
belonged to the Lara vehicle. Hastings reported he saw the subject and then the vehicle.
Merrifield made a report, turned it over to his supervisor, and has since become aware the
report was never given to defense counsel. The report did not get into the police master

                                             6
file and was not disclosed to the district attorney’s office. Merrifield found his copy in
his own personal computer bank. Merrifield was surprised at not being subpoenaed to
testify at prior hearings, but he kept his mouth shut.
       When requested to do so, Detective James Parrott checked police logs for a record
of Hastings’s phone call but found nothing. The logs would not show a call made to
Sergeant Merrifield’s cell phone. When asked to check the logs, Parrott did not mention
having watched the video because he forgot he had watched the video. He looked at a
photograph of Rafael Lara the morning of his testimony and now remembered that the
person on the video was Rafael Lara. Erick Lara was a passenger in the vehicle when it
was stopped by police in August 2009.
       Police detective Scott Harris testified he showed Hastings a photo lineup of six
men, including defendant, and Hastings did not identify anyone as the shooter. Neither
was Lara included in the lineup.
       The jury found defendant guilty of first degree murder and found the gun
enhancement allegations true.
       The trial court sentenced defendant to 25 years to life for murder plus 25 years to
life for personally and intentionally discharging a firearm causing death (§ 12022.53,
subd. (d)). The court imposed and stayed execution of a 10-year sentence and a 20-year
sentence for the other firearm enhancements (§ 12022.53, subds. (b)- (c).)

                                        DISCUSSION

                                              I

                    Delayed Disclosure and Loss of Surveillance Video

       Defendant complains the prosecution failed to disclose until mid-way through the
second trial that Hastings called police days after the shooting to report he saw a third
party who looked like the shooter and had a similar SUV at a gas station. He also
complains that the police lost the surveillance video. Defendant argues these defects

                                              7
compromised his rights to due process of law, to present a complete defense, and to
effective assistance of counsel. He says the sanctions the court imposed on the
prosecution were inadequate.
       However, defendant offers no argument about right to counsel or to present a
complete defense, nor did he raise these points in the trial court. He merely cites the
federal Constitution and two cases, but without discussion. (Missouri v. Frye (2012) _
U.S. _ [182 L.Ed.2d 379] [counsel was deficient in failing to tell defendant about plea
offer]; Crane v. Kentucky (1986) 476 U.S. 683 [90 L.Ed.2d 636 [exclusion of
circumstances of defendant’s confession, on ground voluntariness was resolved in pretrial
ruling, deprived defendant of fair trial].) Accordingly, defendant has forfeited these
points. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).)
       On appeal, as in the trial court, defendant’s focus is due process. (Brady v.
Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady) [prosecution’s duty to disclose
potentially exculpatory evidence]; Arizona v. Youngblood (1988) 488 U.S. 51 [102
L.Ed.2d 281] (Youngblood) [police failure to preserve evidence “potentially useful” to
defense does not violate due process absent bad faith]; California v. Trombetta (1984)
467 U.S. 479 [81 L.Ed.2d 413] (Trombetta) [evidence must possess both exculpatory
value that was apparent before it was destroyed and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means].)
       We explain there was no finding of bad faith warranting a sanction for failure to
preserve the video, defendant was able to obtain comparable evidence of the video by
other means, and the sanctions the trial court imposed on the prosecution were adequate
to defeat defendant’s due process claim.

       A.     Background

       At the preliminary hearing in April 2010, three months after the shooting,
Detective Parrott testified but was not asked about Hastings. An initial trial date was


                                             8
vacated in August 2011 before a jury was selected because Nick Patti provided “new
information” that was a “bombshell” which both sides needed time to investigate. Patti
was not called as a witness at the first trial.
       At the first trial in November 2011, Hastings and Parrott testified as prosecution
witnesses, but neither mentioned that the police took Hastings to view a silver Montero
on the night of the shooting, or that Hastings contacted police about the man at the gas
station.
       After the first trial ended in the hung jury, the second trial took place in March
2012, with the same retained defense counsel but a different prosecutor. In discussing
evidentiary rulings, the defense complained it felt forced to temper its portrayal of the
victim’s character for violence in the second trial, because the court indicated it might
then allow the prosecution to present evidence of defendant’s character for violence in
the form of a video showing defendant assaulting someone in jail two days ago.
       In the second trial, the prosecution rested its case without calling Hastings or
Parrott to the witness stand. However, after a recess, the prosecutor told the court he had
learned that potentially exculpatory evidence had been withheld from the defense. The
information came to light when the prosecutor re-interviewed Hastings on March 1, 2012,
and Hastings mentioned he called police days after the shooting to report he saw the
suspect and the SUV at a gas station. The prosecutor checked with police, who found no
such report.
       That morning, however, a district attorney’s investigator, William Proffitt, was
reviewing a tape of Hasting’s statement and heard Hastings say at the end of the tape, “I
saw that vehicle a week later and called your sergeant [Rob Merrifield] and gave him the
license plate number.” No one had previously checked with Merrifield, but the
prosecution did so now and learned Merrifield remembered writing a supplemental report
about it. Police produced the report, which had not been placed in the central file, and
which stated Hastings called two days after the killing and said he believed he saw the

                                                  9
shooter walking at the gas station before Hastings spotted the vehicle and reported, “I
knew it was him.” Merrifield obtained the gas station surveillance video. The vehicle in
the video was the Lara vehicle that police had driven Hastings to see the night of the
murder, at which time Hastings was unable to identify it as the suspect vehicle. The
prosecutor admitted to the court that the video, which should have been disclosed to the
defense, was now missing. Apparently, the person in the video was Rafael or Erick Lara.
Erick Lara was now in prison, having been convicted a few months earlier for a drive-by
shooting using a .38 caliber revolver.
       Defense counsel initially said he would seek dismissal or retrial but later, in
response to direct inquiry from the court as to what the defense wanted, counsel said he
was requesting a mistrial, because the withheld evidence might have led to an acquittal in
the first trial where eight jurors considered defendant not guilty.
       The court ruled the evidence should have been disclosed to the defense as
potentially exculpatory evidence of third-party culpability. After a continuance, the
prosecutor reported Erick Lara had been contacted in prison but refused to talk. The
defense wanted time to interview a different prisoner who had inculpated Erick Lara on
another matter and to develop evidence of ties between Bridget and Lara.
       The trial court held a hearing outside the jury’s presence, in which the law
enforcement officers testified to their lax performance consistent with their later
testimony in front of the jury.
       The trial court asked defendant whether he agreed with his attorney’s request for a
mistrial. Defendant said no, he wanted the trial to proceed. Defense counsel said it was
against his advice.
       The trial court found elements of a Brady violation in the failure to provide the
defense with Hastings’s statement to police and failure to preserve the video. The court
believed Parrott did not see Merrifield’s report until the previous week, but Parrott had
known about and viewed the video in January 2010, and the police lost the tape and

                                             10
failed to provide the information about the report or the video to the prosecutor. The
court nevertheless ruled defendant could receive a fair trial, and the violation did not rise
to the level warranting a mistrial for prosecutorial misconduct. “It appears that the failure
to provide the report of Sergeant Merrifield was negligent on the part of the Chico Police
Department . . . .” But the information contained in Merrifield’s report was now
available to the defense. Because Hastings and police who viewed the video were
available as witnesses, the failure to preserve the video would not result in the loss of a
fair trial.
        The trial court would not declare a mistrial but did fashion remedies: As a
nonexhaustive list of sanctions against the government, the trial court offered to entertain
a defense request for additional time to investigate, allow the defense to make an opening
statement to the jury limited to the new information, instruct the jury about the police
failings pursuant to CALCRIM No. 306, and consider a request to exclude evidence of
Parrott’s observation of the video.
        Defense counsel said he would give an opening statement and wanted the jury
instruction. Counsel would not ask the court to exclude evidence of Parrott’s viewing of
the video. Nor was he asking for any other remedies “[g]iven the Court’s previous
ruling.” He was not asking for time to investigate, because he could not possibly
accomplish what he wanted in a short time frame. The court offered to ask jurors about
their availability for a longer continuance. Defense counsel said it would take two weeks
for the prison to allow him access to a prisoner, and a delay that long seemed unfeasible.
The prosecutor indicated a willingness to try to expedite access. Defense counsel replied,
“from a strategic standpoint, as I sit here, if we’re going to go forward with this trial, I
would prefer to do it today.”
        The trial court also ruled defendant could present evidence of Erick Lara’s
conviction for shooting a .38 caliber gun, and it was presented to the jury by stipulation.



                                              11
       The trial court told the jury it was allowing defense counsel to give an additional
opening statement because “there has been some additional information provided to the
defense recently in this case.”
       The defense called Proffitt and Hastings as trial witnesses, as recited above.
       The trial court instructed the jury with a modified CALCRIM No. 306:
       “Both the People and the defense must disclose their evidence to the other side
before trial, within the time limits set by law. Failure to follow this rule may deny the
other side the change to produce all relevant evidence, to counter opposing evidence, or
to receive a fair trial.
       “The Chico Police Department did not provide to District Attorney Nelson
Sergeant Merrifield’s Report until Friday, March 16, 2012. This report included Sergeant
Merrifield driving Mr. Edward Hastings to Roads Terrace to view a Silver Montero SUV
on the night of January 2, 2010. The report discussed receiving a telephone call from
witness Edward Hastings on January 4, 2010 and reporting an alleged sighting of the
person and vehicle he identified as leaving [the crime scene] on January 2, 2010. The
report also discussed Detective Hoffman obtaining a copy of a business surveillance
recording of the AM/PM parking lot . . . where Mr. Hastings reported seeing the person
and vehicle he identified as leaving [the crime scene]. The Chico Police Department
viewed but did not preserve the business surveillance recording . . . .
       “The attorney for the People failed to disclose Sergeant Merrifield’s Report within
the legal time period.
       “In evaluating the weight and significance of that evidence, you may consider the
effect, if any, of that late disclosure.”




                                             12
       B.     Analysis

              1. Brady

       On appeal, defendant argues the delayed discovery violated not only Brady but
also section 1054.1. However, he did not assert a statutory violation in the trial court.
The constitutional duty imposed by Brady is independent of, and to be differentiated
from, the statutory duty imposed by section 1054.1. (People v. Bohannon (2000)
82 Cal.App.4th 798, 804, overruled on other grounds in People v. Zambrano (2007)
41 Cal.4th 1082, 1135.) Even assuming a statutory claim would nevertheless be
preserved for appeal, defendant’s appellate brief merely says the statute requires
disclosure of all relevant witness statements. He offers no legal analysis for application
of the statute to this case, and we therefore need not address the statutory claim. (Stanley,
supra, 10 Cal.4th at p. 793.)
       As to the constitutional claim, defendant does not argue the trial court erred in
denying a mistrial. He argues the sanctions fashioned by the court were inadequate,
entitling him to reversal of the conviction and dismissal of the charges.
       Brady imposes on the prosecution a constitutional duty to disclose exculpatory
information to the defense (Brady, supra, 373 U.S. 83), including information known
only to police investigators acting on the prosecution’s behalf. (Kyles v. Whitley (1995)
514 U.S. 419, 437-438 [131 L.Ed.2d 490]; In re Brown (1998) 17 Cal.4th 873, 879 &
fn. 3 (Brown).) Brady imputes to the prosecutor information known to police
investigators involved in the case, and responsibility for Brady compliance lies
exclusively with the prosecution. (Brown, supra, 17 Cal.4th at p. 878.) The duty to
disclose is violated even if the prosecutor’s failure to do so was negligent or inadvertent.
(Ibid.; People v. Kasim (1997) 56 Cal.App.4th 1360, 1381.)
       To establish a Brady violation, a defendant must show (1) the evidence at issue is
favorable to the accused, either exculpatory or impeaching; (2) the evidence was


                                             13
suppressed by the state, either willfully or inadvertently; and (3) prejudice must have
ensued. (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286] (Strickler);
People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) “Prejudice, in this context,
focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.]
Materiality, in turn, requires more than a showing that the suppressed evidence would
have been admissible [citation], that the absence of the suppressed evidence made
conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a
witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A
defendant instead ‘must show a “reasonable probability of a different result.” ’
[Citation.]” (Salazar, supra, 35 Cal.4th at p. 1043.) “The requisite reasonable
probability is a probability sufficient to undermine confidence in the outcome on the part
of the reviewing court. It is a probability assessed by considering the evidence in
question under the totality of the relevant circumstances and not in isolation or in the
abstract. [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 907-908.) A discovery
violation is not necessarily a due process violation. (People v. Ochoa (1998) 19 Cal.4th
353, 474.)
       On review of a Brady issue, conclusions of law or mixed questions of law and
fact, such as the elements of a Brady claim, are subject to independent review. (Salazar,
supra, 35 Cal.4th at p. 1042.) Findings of fact, though not binding, are entitled to great
weight when supported by substantial evidence. (Ibid.)
       A threshold point not addressed by the parties is whether Brady applies at all,
because the defense knew all along that Hastings was a witness and presumably had the
opportunity to talk to him. Had the defense conducted its own investigation with
diligence, it could have discovered that Hastings thought he saw the suspect at the gas
station days after the shooting and reported this sighting to the police, which could have
led to discovery that police followed up by obtaining the video. “ ‘[W]hen information is
fully available to a defendant at the time of trial and his only reason for not obtaining and

                                             14
presenting the evidence to the Court is his lack of reasonable diligence, the defendant has
no Brady claim.’ [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 715.) That is
the case here.
       But, even assuming for the sake of argument that defendant nevertheless has a
Brady claim, it fails. Despite the People’s argument that the challenged evidence was not
exculpatory, it was at least arguably exculpatory. What we find lacking is prejudice.
       Without mention of defendant’s lack of investigative diligence and the Morrison
case, the trial court found “there has been a Brady violation in as much as the evidence of
the interview with Mr. Hastings by Sergeant Merrifield was not provided to the defense
in a timely fashion. And the video surveillance . . . was not preserved.” However, the
trial court did not make an express finding of prejudice which is a required element of a
Brady violation. (Salazar, supra, 35 Cal.4th at pp. 1042-1043 [strictly speaking, there is
no Brady violation unless there is prejudice].)
       But even if the trial court had expressly found prejudice, the sanctions imposed by
the court cured it. Keeping in mind that “prejudice” in the Brady context requires a
showing that there is a reasonable probability of a different result had the prosecution
disclosed the material in a timely fashion, that is, a probability sufficient to undermine
confidence in the outcome on the part of the reviewing court, that showing has not been
made here. Defendant not only got to present all the evidence of Hastings’s sighting at
the gas station of a possible suspect who was not defendant, but defendant also got to
make a supplemental opening statement, a very favorable jury instruction, and have the
jury know of the casual performance by the police. Although the video was lost, the jury
heard police testimony that the person depicted in the video was not defendant but rather
Rafael Lara, and photographs of Rafael and Erick Lara were introduced into evidence.
       Moreover, there was overwhelming evidence of defendant’s guilt. Bridget
Castillo witnessed the murder close up and positively identified defendant, whom she had
known for years, as the killer. Though she said she was looking at her phone the instant

                                             15
the shot was fired, she told her brother that night that she saw the muzzle flash. In either
case, she saw defendant put the gun away, stand close to the victim who was shot at close
range and be unsurprised by the gunfire. Additionally, Nick Patti, the person neighbors
observed on the sidewalk being yelled at by the SUV driver, knew defendant and
identified him as the driver of the SUV as it was being driven away.
       Defendant argues Bridget’s testimony was doubtful, because she claimed not to
know about the marijuana business despite being given immunity. But the jury obviously
believed her testimony about the shooting and was entitled to do so. Defendant
insinuates Patti was not credible because he appeared with “a new story” before the first
trial, and the prosecution did not call him as a witness at the first trial. However, the
record shows only that Patti appeared with “new information” and does not support
defendant’s insinuation.
       Defendant complains the prosecutor in closing argument attempted to minimize
the government misconduct and Hasting’s testimony. Well, of course he did, that was his
job. Defendant argues the prosecutor acted as an unsworn witness by telling the jury he
was the one who brought forward the withheld information, and he and the police felt bad
about it. However, defendant did not object in the trial court and therefore cannot raise
the point on appeal. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1238.)
       Defendant argues he was prejudiced because his first jury deadlocked eight-to-four
for acquittal and, had the Hastings evidence been presented to the first jury, the first jury
may have acquitted him, or more jurors may have voted for acquittal so as to dissuade the
prosecution from re-trying the case. Defendant cites no authority for such retrospective
analysis. The People cite a non-Brady case recognizing as a general proposition that in
some cases it may be “persuasive that the first trial ended in a hung jury when deciding
whether the error that occurred in the retrial was prejudicial.” (People v. Soojian (2010)
190 Cal.App.4th 491, 520.) The People argue the two trials are not comparable, because
some evidence and theories differed. We need not compare the two. Soojian held that

                                              16
when a defendant moves for new trial based on new evidence, he meets his burden to
show a different result probable if he shows at least one juror would probably have voted
to find him not guilty had the new evidence been presented, because a hung jury is a
better result than a guilty verdict. (Id. at pp. 520-521.) Even assuming Soojian applies, a
hung jury with nine or more votes for acquittal is not a more favorable result than a hung
jury with eight votes for acquittal. It is speculative to say the prosecution would have
given up or defendant would have won 12 votes for acquittal. Speculation is not
sufficient for reversal. (People v. Hoyos (2007) 41 Cal.4th 872, 922.) The “ ‘mere
possibility’ ” that undisclosed information might have helped the defense or affected the
outcome does not establish materiality in the constitutional sense. (Ibid.)
       The need for a second trial did not deprive defendant of Hastings’s recollection
because, even at the first trial, Hastings had problems with his memory. In the first trial
Hastings was forthright about being “inebriated” that night, having consumed a pint of
whiskey “pretty quick” and two marijuana joints and having a “good buzz on,” and not
being able to remember some things because he was “inebriated.” When asked at the
first trial if he remembered what he saw, Hastings testified he had just reviewed the
police report of his statement. Some of his perceptions were wrong or unhelpful to the
defense. The SUV in the gas station video was the same vehicle Hastings was unable to
identify for police the night of the murder. And Hastings testified in the first trial that he
believed the person who ran away from the SUV (Patti) was the same person Hastings
saw lying dead on the ground.
       We conclude the sanctions imposed by the trial court were adequate. There was
no prejudice, hence no Brady violation, hence no need for reversal.

              2. Youngblood and Trombetta

       Under Trombetta, supra, 467 U.S. 479 [81 L.Ed.2d 413], in order to find a due
process violation in the government’s failure to preserve evidence, the evidence must


                                              17
both possess exculpatory value that was apparent before it was destroyed and be of such
a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means. (Id. at pp. 488-489; People v. Alvarez (2014)
229 Cal.App.4th 761, 772 (Alvarez).) Under Youngblood, supra, 488 U.S. 51 [102
L.Ed.2d 281], the police failure to preserve evidence “potentially useful” to the defense
does not violate due process absent bad faith. (Id. at p. 58; Alvarez, supra,
229 Cal.App.4th at p. 773.)
       It is not clear that defendant affirmatively argued Youngblood or Trombetta in the
trial court. The court spoke only of Brady.
       In any event, we review a trial court’s decision on a Trombetta/Youngblood
motion under the substantial evidence standard. (Alvarez, supra, 229 Cal.App.4th 761,
774 [trial court’s dismissal of charges was proper as to two defendants because police in
bad faith failed to preserve video allegedly showing that an officer repeatedly encouraged
the victim to point the finger at the two defendants].)
       Even assuming the matter is not forfeited, defendant fails to show grounds for
reversal of the judgment. Defendant on appeal claims the government engaged in
“flagrant and egregious” misconduct warranting reversal of the conviction and dismissal
of the charges. Defendant says that, when the government engages in misconduct, it is
the People’s burden to show that sanctions are not warranted because there was no
prejudice. He cites People v. Zapien (1993) 4 Cal.4th 929, 967, where the prosecution
intentionally destroyed a tape recording prepared by the defense. The arguments fail on
multiple fronts. First, the defense did not ask the trial court for dismissal. Although
defense counsel initially told the trial court he would ask for dismissal or mistrial, when
the trial court later asked what the defense wanted, counsel’s response was “mistrial.”
Second, the trial court did impose sanctions. Third, the trial court did not find flagrant
and egregious government misconduct. Contrary to defendant’s perception that it is



                                              18
inconceivable that the police did not act in bad faith, the trial court made no finding of
bad faith, as opposed to mere negligence.
       In the absence of a finding of bad faith, defendant fails to show a Youngblood
violation. As to Trombetta, defendant fails to show a violation because, although the
exculpatory value of the evidence was apparent before the police lost the video, the trial
court found, and defendant was able to obtain, comparable evidence by other reasonably
available means, i.e., the police testified the man in the video was not defendant, and the
jury was shown photographs of Rafael and Erick Lara, the person(s) police said was
shown in the video.
       We conclude the government’s failure to disclose and preserve evidence does not
warrant reversal of the judgment.

                                              II

                              Admission of Gun into Evidence

       Defendant complains the trial court improperly allowed into evidence the .357
caliber gun found in his car upon his arrest, because there was no proof it was the gun
used in the murder. Defendant argues the evidence was not relevant, should have been
excluded under Evidence Code section 352 as more prejudicial than probative, and
violated his federal constitutional right to due process. We disagree.

       A.     Background

       Before the first trial, defendant sought exclusion of the gun found in his vehicle.
The prosecutor said Department of Justice analysis could not prove it was the murder
weapon but, based on the bullet holes in the victim’s head, the gun was consistent with
the range of calibers that might have caused the victim’s death. The trial court found the
probative value was not outweighed by prejudicial effect of the evidence under Evidence
Code section 352. Defendant later revisited the issue, arguing the bullets in the gun



                                             19
found in his car were “hollow point” which expand and would leave a larger exit wound
than the victim’s exit wound.
       Still during the first trial, the prosecutor acknowledged it was possible the gun was
not the one used in the murder because a witness made a statement that defendant
disposes of a weapon after he uses it and gets a new one, but the gun was consistent with
the murder weapon. The trial court again ruled the evidence admissible. The pathologist
testified the wounds were not necessarily inconsistent with hollow point bullets, because
a bullet may hit some material or tissue that plugs the hollow point, thwarting the bullet’s
expansion.
       In later discussing Nick Patti’s testimony, the first prosecutor said Patti would
testify defendant gets rid of a gun after he uses it. The prosecutor said, “I think that’s
relevant because [defendant had a loaded revolver consistent with the murder weapon
when arrested and] . . . he likes to use a revolver because it doesn’t leave a case. That
was sent to [Department of Justice] and there’s no indication that it was the gun used. In
fact it probably isn’t the gun that was used to skill [sic] [the victim] and that’s consistent
with the defendant after he uses a gun he gets rid of it.” (Italics added.) The trial court
asked why defendant’s habit and custom of tossing firearms was admissible. The
prosecutor said habit and custom was inadmissible unless the door was opened, so the
prosecutor withdrew the request to have Patti testify about defendant’s habit of tossing
guns unless the defense opened the door.
       In the second trial, over defense objection that there was no evidence linking the
gun to this crime, the new prosecutor argued and the trial court ruled the .357 caliber
revolver found in defendant’s car was admissible because it was “consistent with the
[range of] caliber” of the gun used in shooting the victim.
       At the second trial, the prosecution expert opined the bullet that killed the victim
was from a medium caliber revolver of approximately .9 mm., .38, or .357 caliber. Patti
testified defendant had a silver revolver minutes before the shooting. Nathan Castillo

                                              20
testified his sister Bridget said she saw a “silver flash.” Police who arrested defendant a
week after the murder found in his car a silver, stainless steel .357 caliber revolver.

       B.     Analysis

       Contrary to defendant’s view, the first prosecutor’s comment that the gun was
probably not the murder weapon, does not constitute a concession that the evidence was
inadmissible and did not bind the second prosecutor’s evaluation of the evidence. The
second prosecutor argued the gun was consistent with the murder weapon and adduced
evidence to that effect.
       Evidence of the gun found in defendant’s car was admissible because there was
evidence it could have been the murder weapon. “When the specific type of weapon used
to commit a homicide is not known, it may be permissible to admit into evidence
weapons found in the defendant’s possession some time after the crime that could have
been the weapons employed. There need be no conclusive demonstration that the
weapon in defendant’s possession was the murder weapon. [Citations.]” (People v. Riser
(1956) 47 Cal.2d 566, 577 (Riser), overruled on other grounds in People v. Chapman
(1959) 52 Cal.2d 95, 98; and People v. Morse (1964) 60 Cal.2d 631, 648-649.)
       Riser went on to say that, when the prosecution relies on a specific type of weapon
as the murder weapon, it is error to admit evidence that other weapons were found in the
defendant’s possession, because such evidence tends to show, not that he committed the
crime, but that he is the sort of person who carries deadly weapons. (Riser, supra,
47 Cal.2d at p. 577; see People v. Mills (2010) 48 Cal.4th 158, 197 [Riser’s holding on
this point does not apply where prosecution does not rely on a specific weapon].) Riser
held the trial court erred in admitting into evidence a Colt .38 revolver found in the
defendant’s possession, where the prosecution witness established the murder weapon
was a Smith and Wesson .38 Special revolver. (Riser, supra, 47 Cal.2d at p. 577.)
However, the error was not prejudicial because shells and a holster were properly


                                             21
admitted and from these the jury would have concluded the defendant possessed firearms.
(Id. at pp. 577-578.)
         Defendant suggests cases such as Riser are not authoritative because they predate
enactment of Evidence Code section 352, which became operative in 1967. However,
Evidence Code section 352 codified common law principles. (People v. Fitch (1997)
55 Cal.App.4th 172, 181; see also, People v. Ford (1964) 60 Cal.2d 772, 801 [trial court
abused discretion in failing to weigh probative value of autopsy photos against prejudicial
effect].)
         As to Evidence Code section 352, defendant on appeal offers no analysis that the
gun should have been excluded as more prejudicial than probative. He merely cites
inapposite cases where appellate courts upheld trial court’s exercise of discretion in
excluding speculative evidence proffered by the defense. (People v. Stitely (2005)
35 Cal.4th 514, 547-548; People v. Holloway (2004) 33 Cal.4th 96, 133-135.) Defendant
argues these cases stand for the proposition that the trial court is not required to admit
every piece of evidence that makes the defendant look bad, and that is what happened in
this case. However, cases upholding trial court discretion to exclude evidence do not
compel or even support reversal of trial court discretion allowing evidence. Moreover,
evidence that defendant had a gun when arrested was not more prejudicial than probative,
in light of the eyewitness testimony that defendant fired a gun at the victim at close
range.
         Since there was no evidentiary error, we need not address defendant’s argument
that error was prejudicial because the prosecutor’s argument to the jury -- that the gun in
defendant’s car was consistent with the murder weapon -- asked the jury to draw an
unwarranted inference the prosecutor knew was not likely to be true.




                                             22
                                              III

                                   Uncharged Misconduct

        Defendant complains the trial court improperly allowed evidence that he
participated in three uncharged offenses (robbery outside Scott’s apartment, assault and
robbery at Patti’s apartment, and threatening Patti at gunpoint on the street) under
Evidence Code section 1101.

        A.     Background

        At the first trial, the prosecutor said he was giving Nick Patti use immunity for the
December 9, 2009, robbery, and the uncharged offenses were admissible to show
defendant’s motive for this shooting was anger that the victim had not paid his debt to
defendant’s brother Scott for help setting up the December 9th robbery. The trial court
ruled the evidence was inflammatory but more probative than prejudicial and would be
admitted.
        The trial court reaffirmed the ruling for the second trial, viewing the evidence as
highly relevant to motive, not unduly prejudicial, and not likely to consume excessive
time.
        The trial court instructed the jury on the limited purpose of this evidence to show
motive.

        B.     Analysis

        Evidence Code section 1101 provides in part:
        “(a) Except as provided in this section and Sections 1102, 1103, 1108, and 1109,
evidence of a person’s character or a trait of his or her character (whether in the form of
an opinion, evidence of reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion.



                                              23
        “(b) Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident . . . .) other than his or her disposition to commit such an act. . . .”
        “The admissibility of other crimes evidence depends on (1) the materiality of the
facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts,
and (3) the existence of any rule or policy requiring exclusion of the evidence.” (People
v. Carpenter (1997) 15 Cal.4th 312, 378-379, superseded by statute on other grounds as
stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) “Evidence of
uncharged offenses ‘is so prejudicial that its admission requires extremely careful
analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in
[such] evidence,” uncharged offenses are admissible only if they have substantial
probative value.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 404, superseded
by statute on other grounds as stated in People v. Robertson (2012) 208 Cal.App.4th 965,
991.)
        We review the trial court’s ruling under both statutes (Evid. Code, §§ 1101, 352)
for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
        Here, the evidence had substantial probative value to explain a motive for an
otherwise unexplained attack.
        Defendant argues the prior bad acts were admitted only to show motive, and “it is
doubtful that appellant’s dismay with Patti and Abrahamian for their failure to repay
Scott led to the fatal shooting.” Defendant views this prosecution theory as “doubtful”
because defendant supposedly recovered more than the amount owed when he stole the
marijuana from Patti, and defendant did not kill Patti at that time but only hit him.
However, there was no evidence of the value of the marijuana defendant took from Patti
or that it could cover defendant’s debt. Moreover, defendant’s self-serving doubt would



                                               24
not prevent the jury from concluding that, regardless the value of the marijuana, there
remained the issue of the victim’s failure to honor the debt voluntarily.
       Defendant argues the evidence was not highly probative, because it went to
motive, and motive is not an element of murder. However, “ ‘[b]ecause a motive is
ordinarily the incentive for criminal behavior, its probative value generally exceeds its
prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ ”
(People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
       Defendant argues the evidence of his prior acts was only tangentially related to the
issues in this case and was inflammatory and prejudicial, because “no one saw appellant
fire the fatal shot” and no weapon linked defendant to the offense. This argument falters
on its disingenuous premise that no one saw defendant kill the victim. Bridget saw
defendant and the victim together, saw defendant was agitated, saw a silver flash on
defendant’s person and heard a gunshot, saw the victim fall to the ground, saw defendant
put the silver item away, saw defendant was not surprised by the gunfire, and saw
defendant walk away from the bleeding victim. The forensic evidence showed the victim
was killed by a gunshot fired from close range, not more than three feet. There was no
evidence of anyone other than defendant that close to the victim. Evidence of
defendant’s guilt was overwhelming.
       Defendant argues crimes against children are especially inflammatory. However,
he cites no evidence as to the ages of the “kids” who went to Scott Ortiz’s door. Patti
referred to them as “guys,” which suggests they were not young children.
       Defendant cites inapposite case law where materiality was tenuous. (People v.
Lopez (2011) 198 Cal.App.4th 698, 715 [prior thefts improperly admitted without
connection to instant crime]; People v. Albarran (2007) 149 Cal.App.4th 214, 226-228
[gang evidence improperly admitted where there was no evidence the motive of the
charged offense was gang-related].)



                                             25
       This case is more similar to the murder case of People v. Butler (2005)
127 Cal.App.4th 49 (Butler). There, the trial court allowed Evidence Code section 1101
evidence to explain the defendant’s motive for an otherwise unprovoked attack. (Id. at
p. 61.) The uncharged misconduct occurred five days before the killing, at a party on
November 16th. A group of friends was approached by a stranger (the defendant), who
argued with one and punched another for “looking at” the defendant. (Id. at p. 52.) The
defendant left the party. Some of the group chased after him, but he got away. As the
group headed home in a car, they saw the defendant coming down the street with a gun in
his hand. (Id. at pp. 52-53.)
       Five days later, some of the group was standing at a bus stop when the defendant
walked up with two companions and asked one of the victims, 14-year-old Clive, if he
remembered the defendant. Clive said no. Defendant hit him, starting a fight. Defendant
reached into his shirt for a gun. The group ran. (Id. at p. 53.) They heard gunshots but
did not see who was doing the shooting. Clive suffered 10 gunshot wounds and died. A
bystander saw the shooter was the man with the ponytail. Only the defendant had a
ponytail. (Id. at pp. 53-54.) Another witness told colleagues that defendant was the
perpetrator but at trial denied having so stated. The colleagues testified to her prior
inconsistent statement. (Id. at p. 54.) The trial court allowed the prosecution to use the
November 16th incident as relevant to prove motive. (Id. at p. 60.) The appellate court
affirmed. There was a direct relationship between the two incidents. (Id. at p. 61.) In
each, the defendant had a dispute with members of the same group of friends. The
defendant was chased away from the party but returned brandishing a weapon. At the
bus stop, defendant hit Clive without provocation. The incident at the party was relevant
to explain the defendant’s motive for the otherwise unprovoked attack on Clive. It was
properly admitted as more probative than prejudicial in light of the more serious nature of
the later shooting. (Ibid.)



                                             26
       Defendant’s reply brief argues Butler is distinguishable because there the motive
for revenge was much clearer. However, defendant again relies on his self-serving
assumption, unsupported by evidence, that the marijuana defendant took from Patti
satisfied the victim’s debt or that forced recovery of the debt necessarily forgave the
disrespect shown by failure to pay it voluntarily.
       Defendant’s reply brief cites People v. McWhorter (2009) 47 Cal.4th 318, where
the defendant murdered his neighbor and her son during a robbery. The defendant
complained the trial court would not let him introduce evidence that the neighbor feared
her ex-husband who had been convicted of misdemeanor spousal abuse. The defendant
wanted to use this evidence to argue the ex-husband committed the murders for the
possible motive of terminating his child support payments. (Id. at pp. 367-368, 371-372.)
The Supreme Court held the evidence was properly excluded because it was speculative
as to motive. (Id. at p. 372.) Here, in contrast, the evidence was not speculative.
       We conclude the evidence of uncharged offenses was more probative than
prejudicial and was properly admitted under Evidence Code section 352. We therefore
need not address defendant’s argument that the evidence denied him fundamental fairness
under the federal Constitution. (People v. Rundle (2008) 43 Cal.4th 76, 109, fn. 6
[rejection on merits of claim that trial court erred on issue actually before that court
necessarily leads to rejection of newly raised constitutional “gloss” as well], overruled on
other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.)




                                              27
                                   DISPOSITION

     The judgment is affirmed.



                                                 HULL   , J.



We concur:



     BLEASE             , Acting P. J.



     NICHOLSON          , J.




                                         28
