Filed 1/3/20 P. v. Faler CA3

Opinion on rehearing

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT HENRY FALER,

Defendant and Appellant.

C086697

(Super. Ct. No. 14F05242)

OPINION ON REHEARING

This case arises out of a gang-related drive-by shooting. Following a jury trial, defendant Robert Henry Faler was found guilty of attempted murder (Pen. Code, § 664/187, subd. (a)), discharge of a firearm at an occupied motor vehicle (§ 246), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found true the allegations that the crimes were committed for the benefit of and/or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant personally used and intentionally discharged a firearm (§§ 12022.53, subds. (b) & (c), 12022.5, subd. (a)), had a prior serious felony conviction that qualified as a strike under the “Three Strikes” law (§§ 677, subds. (b)-(i), 1170.12), and had served a prior prison term (§ 667.5, subd. (b)). After the trial court denied defendant’s Romero motion to strike his prior strike conviction, it sentenced him to an aggregate term of 31 years to life in state prison.

On appeal, defendant contends the trial court erred by failing to (1) exclude untimely disclosed evidence or declare a mistrial because the introduction of that evidence undermined his defense theory, (2) order a split of DNA evidence to allow independent testing by the defense, and (3) grant his Romero motion to strike his prior strike conviction.

On October 15, 2019, in an unpublished opinion (People v. Faler (Oct. 15, 2019, C086697)), we affirmed the judgment. Three days later, defendant filed a petition for rehearing, arguing that he was entitled to the benefit of recently enacted Senate Bill No. 136, which amends section 667.5, subdivision (b) to eliminate the one-year sentence enhancement for prior prison terms other than those imposed for sexually violent offenses. (Stats. 2019, ch. 590, § 1.) We granted the petition for rehearing, which we construed as a supplemental opening brief, requested supplemental briefing from the People, and vacated our unpublished opinion. In its supplemental brief, the People concede that defendant is entitled to the benefit of Senate Bill No. 136, and we agree. Accordingly, we will modify the judgment by striking the one-year enhancement imposed pursuant to section 667.5, subdivision (b). In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We provide a summary of only the facts pertinent to the resolution of this appeal. Additional information relevant to claims raised on appeal is discussed post.

The Shooting

In the summer of 2014, Gerardo R. (Gerardo), his brother Juan R. (Juan), and Juan S. worked at the Olive Garden restaurant near the Arden Fair Mall in Sacramento. After work one evening, they went to the AM/PM gas station on Arden Way in the Gerardo and Juan’s family’s Chevy Trailblazer. Juan drove, Gerardo sat in the front passenger seat, and Juan S. sat in the backseat. They arrived at the gas station at 12:45 a.m. on July 18, 2014. While they were at the gas station, Juan S. noticed that two men were staring at them, “looking at [them] weird.” Gerardo observed the same two men, who were sitting in the front seats of a Ford Mustang, laughing, which he considered weird.

Shortly after the Trailblazer left the AM/PM, the Mustang pulled alongside it at an intersection on Arden Way. The man in the front passenger seat of the Mustang, who appeared to be in his early 20’s, pulled out a handgun and fired several shots and then leaned out his window and displayed gang signs. After the Mustang drove off, Juan pulled into a parking lot and stopped. An inspection of the Trailblazer revealed several bullet holes on the driver’s side door. Later that day, Gerardo reported the shooting to the police.

Defendant’s Arrest

Less than two weeks after the shooting, police officers conducted a traffic stop on a minivan in the Arden area after observing what appeared to be a hand-to-hand drug transaction between the front passenger and a pedestrian. Lizet Perez, also known as “Mousie,” was driving and defendant was sitting in the front passenger seat.

When the minivan was searched, officers found a large blue purse in between the front seats. A search of the purse revealed a stolen, loaded, .32-caliber semiautomatic handgun, six unspent .32-caliber bullets, and brass knuckles. The officers also found some papers on the front passenger seat floorboard containing gang symbols and correspondence related to the Sureño gang, including the Sureño subset known as the Howe Park Sureños. Following the search, defendant was arrested and taken into custody. He was 22 years old.

Investigation into the Shooting and Alexis Lopez’s Arrest

During the investigation into the shooting, two bullets were recovered from the driver’s side door of the Trailblazer and one from the center console. A criminalist later determined that these bullets were fired from the handgun found in the minivan.

DNA samples (i.e., contact swabs) were taken from two of the items found in the minivan—the handgun and its magazine. A criminalist determined that the DNA on these items was contributed by more than one person but was unable to develop a useable DNA profile due to her inability to determine the number of contributors and the low amount of DNA on the contact swabs. A forensic investigator lifted a fingerprint from the handgun but was unable to make an identification because the fingerprint lacked sufficient ridge detail.

A review of the surveillance footage captured by the security cameras at the AM/PM on the night of the shooting showed that the Trailblazer arrived at 12:45 a.m. and the Mustang arrived around two minutes later. The footage did not show a passenger in the Mustang or any interaction between the occupants of the vehicles. The footage showed that the Trailblazer left at 12:50 a.m. and the Mustang left less than a minute later.

Around a week after the shooting, the manager of the AM/PM informed the police that she had seen the man who was driving the Mustang on the night of the shooting. When Detective Bryan Alonso of the Sacramento Police Department reviewed the AM/PM’s surveillance footage, he observed what appeared to be the same man and Mustang that was at the AM/PM on the night of the shooting. Detective Alonso obtained the license plate number of the Mustang from the footage and subsequently identified Alexis Lopez (Lopez) as the driver.

Less than two weeks later, officers conducted a traffic stop on the Mustang near the Arden Fair Mall. Aquileo Lopez—Lopez’s father—was driving the car. During the stop, Lopez approached the Mustang on foot. He was arrested and taken into custody after Detective Alonso recognized him from the AM/PM’s surveillance footage. Because there was a warrant out for his arrest, Lopez’s father was also arrested and taken into custody.

Four days later, Detective Alonso showed Gerardo a photographic lineup that included a photograph of defendant. Gerardo did not identify defendant or any other person in the lineup as the shooter. Gerardo was not shown a photographic lineup that included a photograph of Lopez or Perez.

Police Interview of Lopez

On the same day as he was arrested, Lopez was interviewed by Detective Alonso and his partner. When Lopez was shown still images from the AM/PM’s surveillance footage, he admitted that he was at the AM/PM on the night of the shooting and was the driver of the Mustang. He explained that he recognized Gerardo and believed that Gerardo was a member of the Norteño gang. He further explained that he became upset when Gerardo displayed gang signs and the occupants of the Trailblazer yelled “north side.” Lopez claimed that he was no longer in a gang but admitted he had been in a gang when he was younger. He further claimed that he chased after the Trailblazer to ask the occupants why they were “coming at” him and to tell them he did not “bang” anymore.

When asked, Lopez initially claimed that he was alone on the night of the shooting. However, he later changed his story and claimed that defendant was a passenger in the Mustang and the shooter. He noted that defendant was currently in custody.

Lopez never mentioned that Perez was also a passenger in the Mustang at the time of the shooting.

Searches

After Lopez consented to a search of his cell phone, a forensic examination of the phone was conducted. The information extracted from the phone was placed onto a compact disc and booked into evidence. However, due to the limitations of the software used to extract the information, some of the files in the phone were not recovered. As a consequence, a search warrant was later obtained and a second forensic examination of the phone was conducted. The information extracted from the phone was placed onto a separate compact disc and booked into evidence. The information obtained from the second extraction included, among other things, two Facebook messages Lopez sent to his girlfriend on the night of the shooting.

A search warrant was also obtained for Lopez’s Facebook records. A review of the records revealed that there were photographs of defendant on Lopez’s Facebook page.

Police Interview of Defendant

After Lopez was interviewed, Detective Alonso and his partner interviewed defendant. The recording of the interview was played for the jury.

During the interview, defendant initially denied knowing Lopez and denied that he had ever been inside Lopez’s Mustang. Although unsure, defendant stated that he was probably at home on the night of the shooting. However, after he was told that the police were processing the Mustang for DNA and fingerprints, he indicated that it was possible that he had been in that car before.

Upon further questioning, defendant admitted that he knew Lopez and had been a passenger in the Mustang on the night of the shooting. He then gave the following account of what happened on the night of the shooting: Around 1:00 a.m. he and Perez were drinking alcohol at a school in the Arden area when Lopez drove up in his Mustang. After they talked for about 10 minutes, Lopez drove off. When Lopez returned around two hours later, they talked for about 20 minutes. Thereafter, Lopez and defendant went to the AM/PM on Arden Way. Lopez put gas in his car and then drove defendant home. Defendant sat in the front passenger seat.

According to defendant, he and Lopez arrived at the AM/PM around 4:00 a.m. However, when defendant was told that the AM/PM’s surveillance footage did not show the Mustang arrive around 4:00 a.m., he claimed he was not with Lopez on the night of the shooting. He also denied that people referred to him as “Guero.” He said that he was known “on the streets” as LG but refused to explain what the initials stand for.

During the interview, defendant claimed that his cell phone had been stolen around a week before the shooting.

Lopez’s Trial Testimony

At the outset of his testimony and on cross-examination, Lopez acknowledged that he had entered into a plea agreement with the prosecution prior to trial. He explained that he agreed to plead guilty to committing assault with a firearm and admit a gang enhancement allegation in exchange for a 14-year prison sentence and his full cooperation, including his truthful testimony. When asked, Lopez confirmed that he was facing a potential life sentence for his role in the shooting.

Lopez testified that he had known Perez since he was 12 years old, and that he met defendant through Perez in 2014. He claimed that he did not know defendant well, explaining that he had only hung out with defendant a few times and knew him “[f]rom the streets, from the crime that happened.”

Lopez admitted that he joined the Sureño gang when he was 11 or 12 years old but claimed that he dropped out of the gang prior to trial. He explained that he believed defendant was a member of the Howe Park Sureños because defendant had an “HP” tattoo and other gang-related tattoos and hung out at Howe Park, a Sureño territory. Lopez further explained that Sureños and Norteños are enemies, and that it would be disrespectful for a Norteño to enter a Sureño territory. He noted that a Sureño would not hang out in a Norteño territory because he or she “could get shot or beat up.”

Lopez gave the following account of what happened on the night of the shooting: On July 17, 2014, he left work between 11:30 p.m. and 12:00 a.m. Thereafter, he picked up defendant and Perez in his Mustang and then drove to the AM/PM gas station across the street from the Arden Fair Mall. Defendant sat in the front passenger seat and Perez sat in the back seat. Neither defendant nor Perez got out of the car at the gas station. While he was pumping gas, Lopez saw Gerardo and Juan, whom he believed were Norteño gang members. Because Gerardo said something about “Norte” as the Trailblazer was driving away, Lopez chased after the Trailblazer to find out if the occupants wanted to fight. When Lopez caught up to the Trailblazer a minute or two later at an intersection, defendant displayed gang signs with one hand and fired a gun with his other hand. Lopez then sped off toward the freeway.

Lopez explained that he provided conflicting accounts to the police about the shooting because he was an active member of the Sureño gang at the time and “snitching” would have violated the gang’s code and put him at risk of physical harm. Lopez further explained that he did not tell the police Perez was with him at the time of the shooting because she was a close friend. When asked, Lopez confirmed that Perez had told him she had a gun that belonged to “Guero,” i.e., defendant.

On cross-examination, Lopez admitted that he initially told the police he was alone at the time of the shooting. However, after several hours of questioning, he told the police that defendant was with him. Lopez admitted that he changed his story after he was told that his father was in the next room crying, his daughter was going to grow up without a dad, and the police knew he was not alone in the Mustang on the night of the shooting. Lopez explained that he was coming down off methamphetamine at the time and had not slept for five days and just wanted the interview to be over so he could sleep. He admitted that he was concerned that his father would be blamed for the shooting, that he had used methamphetamine in the days leading up to the shooting, and that he would have said anything to get out of the interview room.

When asked, Lopez admitted that in late June 2014 he wanted to get revenge on the person who had “pulled a knife on [him]” and took his drugs. He indicated that he was “mad as fuck” at the time and looking for a gun. Lopez also admitted that he had pictures of guns on his phone, and that, in June 2014, he threatened some Norteño gang members on Facebook that he would “get into it with them.”

Facebook Messages

Around two hours after the shooting, Lopez sent a Facebook message to his girlfriend from his cell phone. At trial, Detective Alonso testified that the message stated: “Babe, I’m sorry. I’m barely hitting you up. But I had to go bust a mission with my boy, Guer[a], and that home girl, Mousie. Laughs out loud. We shot some buster by Arden area in the street, laughs out loud. They was driving. Laughs out loud.” Shortly thereafter, Lopez sent a second message that stated: “Guero.”

At trial, Lopez explained that “buster” is a derogatory term that Sureños use to refer to Norteños. Lopez also explained that defendant was known as “Guero” and Perez was known as Mousie.

Gang Expert Testimony

An expert on criminal street gangs testified that the AM/PM gas station on Arden Way is near Howe Park, which is Sureño territory. The expert opined that defendant, Lopez, and Perez were all active Sureño gang members in 2014. In reaching this opinion as to defendant, the expert relied on defendant’s gang tattoos, his association with other Sureño gang members, photographs of him displaying gang signs, gang letters, and his participation in the shooting giving rise to this case.

The expert confirmed that a Norteño entering Sureño territory would be sufficient provocation to trigger an altercation, and that “buster” is a derogatory term that Sureños use to refer to Norteños. The expert also noted that defendant’s gang moniker was “little Guero.”

Telephone Records

An examination of telephone records by a criminal intelligence specialist revealed that a phone call was placed from Lopez’s cell phone to defendant’s cell phone at 12:36 a.m. on July 18, 2014, from an area near the location of the shooting. The records also showed that two phone calls were placed from defendant’s cell phone to Lopez’s cell phone between 12:01 a.m. and 12:44 a.m. on July 18, 2014. The contact list in Lopez’s cell phone listed “Guero” in connection with defendant’s phone number.

DISCUSSION

1.0 Late Disclosure of Evidence

Defendant contends the trial court committed reversible error when it refused to exclude the untimely disclosed Facebook messages Lopez sent to his girlfriend on the night of the shooting or declare a mistrial because the introduction of that evidence undermined his defense theory. We disagree.

1.1 Additional Background

As previously indicated, after Lopez was arrested and taken into custody in August 2014, he consented to a search of his cell phone. Thereafter, a forensic examination of the phone was conducted. The information extracted from the phone was placed onto a compact disc and booked into evidence. However, due to the limitations of the software used to extract the information, some of the files in the phone were not recovered. As a consequence, a search warrant was later obtained and a second forensic examination of the phone was conducted. The extracted information was placed onto a separate compact disc and booked into evidence. A copy of the first compact disc was disclosed to the defense in September 2014. A copy of the second disc was not disclosed to the defense prior to trial.

The jury trial in this matter commenced on June 19, 2017. During opening statements, the prosecutor articulated the People’s theory that defendant was the shooter in a gang-related drive-by shooting that involved two vehicles and three victims—Gerardo, Juan, and Juan S. She stated that the evidence would show that defendant was a passenger in Lopez’s car on the night of the shooting and was the shooter. The prosecutor explained that Lopez was identified as being involved in the shooting from surveillance footage captured by security cameras at a gas station. The prosecutor further explained that defendant was arrested less than two weeks after the shooting during a traffic stop, and that the handgun found in connection with his arrest was the gun used in the shooting. She also explained that, after Lopez was arrested, he told the police that defendant was the shooter. The prosecutor noted that Lopez had been a codefendant in this case but had entered into a plea agreement prior to trial. She explained that, pursuant to the agreement, Lopez agreed to testify truthfully against defendant in exchange for a 14-year sentence for assault with a semiautomatic firearm.

In response, defense counsel stated that the evidence would show that Lopez knew Gerardo and Juan and had “every motive” to shoot at them and Juan S. She noted that Lopez had a “few run-ins with various people” and was upset and “looking for trouble” in the summer of 2014. Defense counsel further stated that the evidence would show that defendant did not know the victims and did not have a motive to shoot at them. She noted that the video surveillance footage referenced by the prosecutor would not show that defendant was present at the gas station on the night of the shooting. She indicated that the footage would show Lopez and a blue Mustang but would not show Lopez interacting with anyone inside the Mustang or the victims. Nor would the footage show that Lopez or any of the victims displayed gang signs or wore gang-related clothing or paraphernalia. Defense counsel also noted that other surveillance footage captured by security cameras near the area of the shooting would show the Mustang but would not show defendant. Defense counsel stated that the evidence would show that Lopez repeatedly told the police that he was alone at the time of the shooting, and that the handgun recovered in connection with defendant’s arrest was not found on defendant’s person but rather in a purse belonging to someone else.

On June 21, 2017, the day after Lopez finished testifying, defense counsel advised the trial court that the People had just disclosed deleted messages from Lopez’s cell phone that contained “very damaging . . . information.” Defense counsel explained that she had previously received information extracted from Lopez’s phone but was unsure whether the deleted messages, which consisted of the two Facebook messages Lopez sent to his girlfriend around two hours after the shooting, were part of that disclosure.

Four days later, the prosecutor advised defense counsel that the Facebook messages were not included in the September 2014 pretrial disclosure of information that was extracted from Lopez’s cell phone. Thereafter, the People filed a motion seeking permission to introduce the messages, arguing that they were admissible under the prior consistent statement exception to the hearsay rule to counter the implied charge that Lopez’s testimony was fabricated, and should not be excluded under Evidence Code section 352. The People further argued that the messages should not be excluded as a discovery sanction because the evidence was immediately disclosed after the prosecutor became aware of it, and because the delay in disclosure was not willful or an attempt to obtain a tactical advantage. In support of its motion, the People explained that Detective Alonso had recently informed the prosecutor about the messages, which he discovered while preparing to testify. The People further explained that the prosecution was previously unaware of the messages because the district attorney’s office never received a copy of the compact disc containing the information recovered from Lopez’s cell phone during the second forensic examination. The People maintained that there was no bad faith in the prosecution’s failure to realize that it had failed to disclose all the information extracted from Lopez’s cell phone.

Defendant filed his own brief requesting that the trial court exclude the Facebook messages or declare a mistrial. Defendant conceded that the late disclosure of evidence was unintentional but argued that the requested relief was warranted because the evidence bolstered the credibility of Lopez and severely damaged the credibility of the defense theory, which was that Lopez contrived his story about defendant being the shooter. Defendant asserted that the defense had committed to the theory that Lopez had lied to investigating officers, and witnesses were cross-examined with that theory in mind. Defendant noted that the credibility of Lopez was critical because Lopez’s testimony was the only evidence placing defendant inside the Mustang at the time of the shooting. According to defendant, had he known about the messages prior to trial, “the defense would not have impeached . . . Lopez in the way it did in front of the jury,” and would have pursued “[d]ifferent defense strategies . . . including but not limited to subpoenaing other cell phone records such as those of . . . Perez for historical cell site data.” He further asserted that “[t]he defense may have even chosen to serve . . . Perez with a subpoena or ask different questions of . . . Perez when the defense investigator attempted contact.”

At the hearing on the motion, defense counsel conceded that the prosecutor had only recently learned about the Facebook messages contained on the second compact disc but maintained that this evidence should be excluded or that a mistrial should be declared. Defense counsel noted that the messages were disclosed after she had filed her in limine motions, articulated the defense theory in her opening statement, and cross-examined Lopez and Detective Alonso. Defense counsel argued that a continuance and/or calling additional witnesses would not remedy the prejudice from the late disclosure because she had already committed to the theory that Lopez was alone in the Mustang, and therefore the messages would undercut the defense theory and damage her credibility with the jury. Defense counsel maintained that, had she known about the messages before trial, she would have made a different opening statement and questioned Lopez and Detective Alonso differently. Defense counsel acknowledged that the late disclosure was inadvertent but insisted that admitting the evidence would be improper as it would result in a “trial by surprise.” Defense counsel did not offer any specifics as to what she would have done differently if the messages had been timely disclosed. Instead, she stated that she would not have “burnt [her] credibility” with the jury by articulating a defense theory that was undermined by the messages.

The trial court denied defendant’s request to exclude the Facebook messages or declare a mistrial. In doing so, the court did not specifically find that a discovery violation had occurred. Instead, the court noted that the disclosure of the messages was late “in the sense that . . . th[e] disc [(containing the messages)] existed for years, and wasn’t turned over.” The court went on to find that there was no bad faith on the part of the People in failing to disclose the evidence before trial, and that the admission of the evidence would not be unduly prejudicial. In rejecting defendant’s prejudice argument, the court observed that the messages were made close in time to the shooting and were consistent with Lopez’s trial testimony, with the exception that the messages revealed for the first time that Perez was also a passenger in the Mustang at the time of the shooting. The court also observed that, based on Lopez’s statements to the police, the defense was aware that he would testify that defendant was a passenger in the Mustang on the night of the shooting. The court disagreed with defense counsel’s assessment that she had “locked [her]self in a particular theory of defense” other than Lopez was not telling the truth, noting that counsel could still argue that the jury should not believe Lopez. While the court acknowledged that the messages would make it more difficult for the defense to convince the jury that Lopez was not telling the truth, it concluded that this was not a proper basis to exclude the evidence or declare a mistrial. After defense counsel declined the court’s offer to continue the matter to allow the defense to meet the evidence and/or to recall Lopez for further questioning, Detective Alonso testified as to the contents of the messages Lopez sent to his girlfriend around two hours after the shooting.

As noted above, the first message read: “Babe, I’m sorry. I’m barely hitting you up. But I had to go bust a mission with my boy, Guer[a], and that home girl, Mousie. Laughs out loud. We shot some buster by Arden area in the street, laughs out loud. They was driving. Laughs out loud.” Shortly thereafter, Lopez sent a second message that stated: “Guero.”

1.2 Analysis

Section 1054.1 requires the prosecution to disclose to the defense certain categories of evidence in the possession of the prosecuting attorney and evidence the prosecuting attorney knows to be in the possession of the investigating agencies. Evidence subject to disclosure includes any relevant written statements of witnesses whom the prosecutor intends to call at trial. (§ 1054.1, subd. (f).) Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)

Upon a showing both that the defense complied with the informal discovery procedures provided by the statute, and that the prosecutor has not complied with section 1054.1, “a court may make any order necessary to enforce the provisions of [the statute], 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.” (§ 1054.5, subd. (b).) The trial court may also “advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (Ibid.) A court may prohibit a witness from testifying as a discovery sanction only if all other sanctions have been exhausted (§ 1054.5, subd. (c)), and only upon “a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial.” (People v. Jordan (2003) 108 Cal.App.4th 349, 358.)

“ ‘ “[If] the truth is to be served, the failure to disclose, at least where not wilful, should not be punished by the suppression of evidence, but by giving the offended party a proper opportunity to meet the new evidence. . . .” ’ ” (People v. Reyes (1974) 12 Cal.3d 486, 502.) “[T]he normal remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance.” (People v. Barnett (1998) 17 Cal.4th 1044, 1131.) “ ‘It is defendant’s burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1103.)

“The trial court has broad discretion to fashion a remedy in the event of a discovery abuse to ensure that the defendant receives a fair trial.” (People v. Bowles (2011) 198 Cal.App.4th 318, 325, citing People v. Jenkins (2000) 22 Cal.4th 900, 951.) A trial court’s ruling on matters regarding discovery is reviewed for abuse of discretion. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.)

Preliminarily, we note that defendant does not specifically argue that the midtrial disclosure of the Facebook messages violated the discovery statute. Instead, defendant assumes a discovery violation and argues that reversal is required because the untimely disclosure of the messages deprived him of the opportunity to design an intelligent litigation strategy, resulting in an unfair trial. Defendant claims that the evidence completely undermined the defense theory—Lopez was lying about defendant’s involvement in the shooting to benefit himself and his father. Defendant insists that, had he known about the messages earlier, he would have pursued a different strategy; specifically, he would have attempted to undermine the credibility of Lopez’s claim that defendant was the shooter by focusing the jury’s attention on evidence that would support the inference that Perez was the shooter.

We need not decide whether the discovery statute was violated because, even if we assume that a violation occurred, defendant has not met his burden to show that the trial court abused its discretion in failing to exclude the Facebook messages or declare a mistrial. Defendant does not argue that the midtrial disclosure of the messages was willful and does not dispute that he failed to request a continuance to meet the evidence. The record reflects that, in response to the midtrial disclosure of the messages, the trial court offered to continue the matter to provide the defense an opportunity to meet the evidence. The court also offered the defense the opportunity to recall Lopez for further questioning. Defendant did not accept either offer. Instead, he insisted that the trial court must either exclude the evidence or declare a mistrial, arguing that “no additional cross-examination of any witnesses will unring the bell as far as what the jury has already heard . . . .”

Defendant’s generalized statements about what he would have done differently had the evidence been disclosed earlier are insufficient to demonstrate prejudice. (See People v. Verdugo (2010) 50 Cal.4th 263, 281-282.) The messages were duplicative of Lopez’s trial testimony and the statements he made to the police after the shooting. As the trial court pointed out, the defense was aware before trial that Lopez was expected to testify that defendant was a passenger in the Mustang on the night of the shooting. Further, when the messages were disclosed midtrial, defendant was not yet tied to any particular defense theory other than Lopez was not telling the truth. Nothing prevented the defense from requesting a continuance and pursuing the theory that Perez was the shooter and Lopez was lying. The fact that the messages bolstered Lopez’s credibility and harmed the defense’s theory was not a proper basis to exclude the evidence.

We also reject defendant’s contention that the trial court erred by failing to declare a mistrial. “ ‘Generally [a] trial judge has discretion to grant or deny [a motion for a mistrial], and will grant it on determining that a party’s chances of receiving a fair trial have been irreparably damaged.’ ” (People v. Welch (1999) 20 Cal.4th 701, 749.) “ ‘In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard.’ ” (People v. Gonzales (2011) 51 Cal.4th 894, 921.) Although defendant did not file a formal motion for mistrial, the trial court construed his request for a mistrial as a motion for mistrial and denied the motion on the ground that admitting the messages would not be unduly prejudicial. We find no error. For the reasons discussed ante, defendant has not demonstrated that the midtrial disclosure of the messages irreparably damaged his chances of receiving a fair trial. He has not shown that the trial court’s proposed remedy of continuing the matter and allowing further questioning of Lopez was inadequate.

2.0 DNA Testing

Defendant contends the trial court committed reversible error when it refused to order a split of DNA evidence to allow independent testing by the defense. According to defendant, the record fails to support the conclusion that the testing by the prosecution would consume all the DNA evidence. We find no error.

2.1 Additional Background

Defendant filed a pretrial motion seeking an order preventing the prosecution from destroying evidence by consuming it for DNA testing. Defendant explained that he had been notified by the prosecution that the DNA samples (i.e., contact swabs) taken from the handgun and its magazine would be consumed during DNA testing. Defendant objected to the consumption of the DNA evidence in its entirety and requested an order requiring the prosecution to split the samples to allow independent testing by the defense. Defendant argued that his due process rights would be violated if material evidence was destroyed.

In response, the People confirmed that it had notified the defense that the contact swabs would likely be consumed in their entirety during DNA testing by the Sacramento County District Attorney’s Crime Lab (crime lab). The People noted that it had offered the defense the opportunity to have their own scientific expert(s) present during the testing, and that the crime lab would take all steps necessary to preserve material for independent testing. The People argued that defendant’s motion should be denied because well-established authority allows for consumptive testing of evidence which is not exculpatory on its face, and because there is no authority requiring a split of evidence where, as here, the evidence cannot be split without compromising the testing. In support of its position, the People submitted a declaration from Deven Johnson, a criminalist working at the crime lab. Among other things, Johnson attested that the crime lab would need to entirely consume the contact swabs to maximize the lab’s chances of obtaining the most biological information from the swabs, which could either be inculpatory or exculpatory with respect to defendant. She explained that the crime lab “routinely consumes all contact DNA swabs,” and that lab procedures do not include splitting the swabs, as doing so “could sacrifice the quality of the DNA results” because “[e]ven full contact DNA swabs often do not have enough DNA present to obtain a useable profile.” She further explained that “[b]ecause there is no screening method to estimate how much DNA [is] present on a contact swab [(prior to DNA extraction)], and because contact DNA is, by nature, often [at] very low level[s,] [the crime lab] must use the entire swab or risk getting no [DNA] profile at all.”

At the hearing on the motion, Johnson provided testimony consistent with the statements she made in her declaration. She confirmed that the crime lab would need to entirely consume the contact swabs during DNA testing. When asked, she acknowledged that it is possible to split a contact swab (as she indicated in her declaration), but noted that the crime lab has a guideline that prohibits proceeding in this manner because it is not the best way to “get the most out of the evidence.” Johnson explained that contact swabs usually contain very small amounts of DNA and, “more often than not,” the DNA profiles developed from the contact swabs “are less than full profiles or they’re oftentimes mixture profiles.” She further explained that once a contact swab is split, it cannot be combined with the other half of the swab at some later point in the testing process to develop a usable interpretative DNA profile. She acknowledged that the crime lab had recently begun using new software and equipment that allowed it to obtain far more information from a single DNA sample but maintained that the new software and equipment did not “change the fact that with contact samples the best chance . . . of obtaining a usable profile is to consume the entire swab.” Johnson made it clear that the new software and equipment did not alter her opinion that the contact swabs needed to be consumed in their entirety during DNA testing.

After hearing arguments from counsel, the trial court denied defendant’s motion. It reasoned as follows: “The court finds the evidence at this hearing has shown it is necessary for the . . . Crime Lab to consume the two swabs in order to test the swabs, the one swab from the gun, one from the magazine, for DNA evidence and produce the most reliable and informative results. [¶] This is especially so given the fragile nature of DNA evidence as [Johnson] . . . testified and the source of the potential DNA evidence in this particular case. [¶] . . . I believe . . . that there is contact DNA versus [other sources of DNA (e.g., blood, semen, saliva)] given the nature of the items here. [Johnson] testified that contact DNA is by nature often at very low levels, and the lab does need to consume the whole sample or risk getting no profile at all. I believe this is a legitimate concern based on her testimony. [¶] She also [wrote] in her declaration . . . that even full contact DNA swabs often do not have enough DNA present to obtain a usable profile. Splitting the sample in this case could sacrifice the quality of the DNA results and jeopardize the testing, and it’s not so simple to split it because she also talked about the potential for loss when that is done at each part of the process. [¶] I believe this is neither prejudicial to either party nor a violation of Defendant’s due process rights, especially given [that Johnson] testified the Crime Lab will take steps to preserve any additional DNA for independent testing and further testing, and also the defense expert can observe the entire process and videotape or photograph the process if they request to do so. [¶] And as counsel and [Johnson] pointed out, we don’t know if this is exculpatory, inculpatory. It’s speculative. Assuming it’s exculpatory, it appears to me that splitting it and potentially losing that result would be extremely detrimental to the Defendant[]. [¶] So the defense motion is denied.”

2.2 Analysis

We find no error in the trial court’s denial of defendant’s request to split the DNA samples for independent testing. Case law is clear that where, as here, there exists only one sample of evidence, which will be consumed in its entirety during testing by the prosecution, the defense has no right to test the sample independently, although the better practice is to offer the defense the ability to be present at the testing. (People v. Varghese (2008) 162 Cal.App.4th 1084, 1093, citing People v. Griffin (1988) 46 Cal.3d 1011, 1019-1023 (Griffin).) In Griffin, our Supreme Court explained that while it is the “better practice” for the prosecution to allow a defense expert to be present when a test will consume all of the evidence, this practice “has not been established as a constitutional requirement.” (Griffin, at pp. 1021-1022, fn. 2.) Here, the record reflects that the prosecution complied with this practice.

We are not persuaded by defendant’s contention that reversal is required because Johnson’s testimony “failed to provide substantial evidence to support the trial court’s finding that consumption of the samples in their entirety was necessary for testing.” While Johnson acknowledged that it was possible to split the contact swabs in this case, she stated that the swabs needed to be consumed in their entirety during testing to maximize the chance of obtaining a useable DNA profile. She explained that because there is no screening method to estimate how much DNA is present on a contact swab prior to DNA extraction, and because contact swabs often contain very low levels of DNA, the crime lab must use the entire swab or risk getting no DNA profile at all. She noted that once a contact swab is split in half, it cannot be combined with the other half at some later point to obtain a useable DNA profile. When asked, she made it clear that the new software and equipment available to the crime lab for DNA testing did not alter her opinion that the contact swabs needed to be consumed in their entirety. The defense did not present any evidence showing that the contact swabs could have been split without compromising the results of the testing.

On this record, we cannot conclude the trial court erred. But even if it did, any error was harmless. The evidence in the record shows that the contact swabs did not contain a sufficient amount of DNA to identify the persons who contributed the DNA on the handgun and its magazine. Defendant has not directed us to any portion of the record demonstrating that the crime lab improperly tested or analyzed the DNA samples. Instead, defendant speculates that “independent testing and analysis by the defense may well have yielded more conclusive results than were produced by the prosecution’s testing and analysis. More importantly, independent testing and analysis by the defense may well have indicated that [defendant] was excluded as a contributor to the DNA on the gun and magazine.” (Italics added.) Defendant’s speculation, without more, is insufficient to meet his burden to establish prejudicial error under any standard. (Chapman v. California (1967) 386 U.S. 18, 22 [17 L.Ed.2d 708] [beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability].) This is particularly true given the strength of the evidence against him.

3.0 Romero Motion

Defendant contends the trial court abused its discretion in denying his Romero motion to strike his prior strike conviction. We disagree.

3.1 Additional Background

Prior to sentencing, defendant filed a Romero motion asking the court to strike his prior strike conviction for second degree robbery (§ 211) while armed with a firearm (§ 12022, subd. (a)(1)). In support of his request, defendant stated that his strike prior was committed when he was a minor, the “bulk” of his criminal conduct resulted in juvenile adjudications, he was youthful when he committed the instant offenses (22 years old), he suffered severe neglect and abuse as a child, was exposed to drugs in utero, and had been diagnosed with attention deficit hyperactivity disorder and oppositional defiance disorder. In addition, defendant noted that he would still be subject to a lengthy sentence if the court struck his strike prior.

The People filed a written opposition, arguing that defendant’s motion should be denied given the extremely serious and violent nature of the current gang motivated offenses and his conduct in custody since committing the offenses. The People stated that, despite being prohibited from possessing a gun based on his prior robbery conviction, defendant fired multiple shots at three people on a public street simply because they were rival gang members. The People noted that the shooting occurred approximately 12 hours after defendant was released from custody for violating the conditions of his probation. In addition, the People noted that defendant had engaged in numerous acts of misconduct while incarcerated, including repeatedly punching an officer in the face, obstructing and resisting an officer by use of force and threats of force, manufacturing a weapon (six-inch “stabbing device” or shank), and multiple occasions of threatening physical harm to officers and possessing contraband (e.g., sharpened metal, a razor, jail-made alcohol, and prescription medication without a prescription). The documents attached to the People’s opposition showed that defendant was currently charged with battery against a custodial officer (§ 243, subd. (c)(1)), obstructing and resisting an executive officer in the performance of his duties by force and threats of force (§ 69), and possession of a deadly weapon (6-inch metal stabbing instrument) while lawfully confined (§ 4574, subd. (a)).

At the hearing on the motion, defense counsel highlighted that defendant was youthful, had an extraordinarily traumatic childhood, had support in the community, accepted responsibility for his conduct, and was remorseful. Defense counsel also noted that defendant was under 25 when he committed the offenses in this case, and that most of the jail misconduct cited by the People occurred when he was under 25 years old. The prosecutor responded by reiterating the points she made in her written opposition, including that defendant was a serious danger to society based on the current offenses and his misconduct while incarcerated in connection with this case. The prosecutor acknowledged that defendant had an “extremely rough upbringing” and was youthful when he committed the current offenses but noted that he had opportunities to rehabilitate in the juvenile justice system. With respect to the jail misconduct, the prosecutor noted that defendant had broken the nose of the officer he physically assaulted. She also noted that defendant had made a shank and verbalized his intent to stab another inmate after he was convicted of the current offenses. In reply, defense counsel asserted that defendant had demonstrated an ability to better himself while incarcerated, as evidenced by the fact that he had obtained his GED.

In denying the Romero motion, the trial court reasoned as follows: “The Court does have discretion to strike a strike, if the Court finds that the defendant really falls outside the spirit of the three-strikes scheme and, essentially, that it would just be inappropriate to impose a severe sentence based on the strike. That would not really be appropriate, given [a] comparison [of the] factors in mitigation [with] the factors in aggravation. [¶] . . . [¶] . . . There are kind of minimal factors in mitigation. One clearly is his age at the time he committed the prior offense, which is a strike, and his relative youth when he committed [the current] offenses. [¶] Also in mitigation would be [defendant’s] expressed desire to rehabilitate himself and integrate himself into society. And as [defense counsel] pointed out, he did get his GED while he was in custody. However, those factors in mitigation are far outweighed by the severity of the current offense. [¶] Furthermore, the continuing gang involvement, as reflected in the jury’s finding that this was gang related, the significance of his prior strike, and the fact that it was not at all remote[,] . . . the fact that this crime . . . occurred within hours of him being released from custody. And, finally, his actions after this event where he was accused of two very, very serious crimes while in custody. [¶] Now, of course, he’s not been convicted of those crimes, but the fact he’s being charged with those and the extensive amount of writeups that he has that were produced in the People’s points and authorities kind of counteract the stated desire for rehabilitation. [¶] And so with those things in mind, it does not appear that the mitigation really outweighs aggravation, and it doesn’t seem that this falls outside the spirit of the three-strikes law.” The court went on to discuss the sentencing options in this case with and without the strike prior, noting that “there is nothing about the three-strikes law that creates some sort of crazy, inappropriate sentence in this case.”

3.2 Analysis

Section 1385 gives the trial court authority in furtherance of justice to order an action dismissed. (§ 1385, subd. (a).) In Romero, the California Supreme Court held that a trial court may utilize section 1385 to dismiss a prior strike conviction allegation for purposes of sentencing under the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 504.) A trial court’s ruling denying a request to dismiss a prior strike conviction allegation “is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)

“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)

In Carmony, the Supreme Court explained: “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ ” (Carmony, supra, 33 Cal.4th at p. 377.) The circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the Three Strikes scheme must be extraordinary. (Id. at p. 378.) Reversal is justified where the trial court was unaware of its discretion to dismiss a prior strike or considered impermissible factors in declining to dismiss. (Ibid.) But where the trial court, aware of its discretion, “ ‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.’ ” (Ibid.)

In deciding whether to dismiss a prior strike conviction allegation, a trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

We find no abuse of discretion. In ruling on defendant’s motion, the trial court was aware of its discretion, considered the relevant factors, and reached its decision in conformity with the spirit of the Three Strikes law. The decision was neither irrational nor arbitrary.

4.0 Senate Bill No. 136

On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1) (Cal. Const., art. IV, § 8, subd. (c); People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute enacted at regular session of Legislature generally becomes effective on January 1 of year following its enactment].) The bill amends section 667.5, subdivision (b) to provide, in pertinent part: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail . . . is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . .” (Stats. 2019, ch. 590, § 1, italics added.) When defendant was originally sentenced, former section 667.5, subdivision (b) provided for an additional one-year term for a prior prison term, regardless of the underlying offense. (Former § 667.5, subd. (b).)

In their supplemental briefing, the parties agree that Senate Bill No. 136’s amendment to section 667.5, subdivision (b) applies retroactively to this case, and that defendant is entitled to the ameliorative benefit of the amendment because his prior prison term was not for a sexually violent offense. We agree.

Absent evidence to the contrary, an amendment to a statute that reduces the penalty for an enhancement, such as Senate Bill No. 136, applies to all defendants whose judgments are not final as of the amendment’s effective date. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.) Here, Senate Bill No. 136 narrowed who was eligible for a one-year prior prison term enhancement under section 667.5, subdivision (b), thus rendering ineligible many individuals, including defendant whose prior robbery conviction does not qualify as a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b). When it enacted Senate Bill No. 136, the Legislature did not indicate it intended the legislation to apply prospectively only. Defendant’s judgment will not be final when the amendment to section 667.5, subdivision (b) takes effect, thus entitling him to its benefits. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306 [defendant entitled to retroactive application of criminal statute that takes effect during the time defendant has to appeal to the Supreme Court]; People v. Jennings, supra, 42 Cal.App.5th at p. 682 [concluding that Senate Bill No. 136’s amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of January 1, 2020].) Accordingly, we will modify the judgment by striking the one-year sentence imposed for the section 667.5, subdivision (b) enhancement.

DISPOSITION

The judgment is modified to strike the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b). The trial court shall prepare an amended abstract of judgment and forward a certified copy thereof to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

/s/

Butz, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Krause, J.