Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA 073007, Tomson T. Ong, Judge.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Ezequiel Allende was convicted by a jury of receiving stolen property and acquitted of first degree burglary. He admitted one prior conviction. The court sentenced him to the upper term of three years and added one year for the prior prison term. We affirm the conviction.
FACTS
Romero Gomez, his wife Nora Cruz and their two children left their apartment in Long Beach, California, overnight because of repairs that were being done to the apartment. Gomez locked the door when they left.
When they returned the following morning, they found the kitchen door open and the apartment ransacked. Numerous items were missing, including jewelry, a DVD player, tennis shoes, a home theater system, a watch that belonged to Cruz, two cordless telephones and a violin. Gomez reported the burglary and Long Beach Police Officer Perez came to the apartment and prepared a report.
The main telephone set had not been taken. On the night following the discovery of the burglary, the baby monitoring feature on the main telephone began picking up sound from the stolen telephones. Gomez began monitoring the conversations that were being held in the vicinity of the stolen phones and he called the police.
At the Gomez apartment, Perez and his partner heard some rap music on the monitoring feature from the main phone. Because Perez did not think that the cordless phones would have a very long range, the officers went outside to investigate.
The officers traced the music to a second story apartment in a nearby building. When an officer knocked on the door of the suspect apartment and asked for someone to come to the door, Perez could hear the request through the monitoring main phone’s monitoring feature.
The officers entered. In the living room, Perez saw two cordless telephones that matched Gomez’s description.
Perez walked up to a closet door; a chair had been placed against the door to keep it closed. Perez ordered anyone in the closet to come out. When nothing happened, he forced the door open and found appellant and a female inside.
The watch belonging to Cruz was in appellant’s pocket. Other items taken from the Gomez residence were also recovered from this apartment.
When appellant was taken into custody, he gave his name as Ricardo Benitez; the police, however, were able to identify him by his correct name.
When interviewed at the jail, appellant told the detective that he had obtained the stolen property from a homeless man named Roy. Appellant told the detective he knew the property was stolen because he saw Roy break into the residence and take the belongings. According to appellant, he and Roy moved the stolen property to the back of the apartment complex where Roy wound up giving appellant the stolen goods.
Appellant testified in his own defense that he did not commit the burglary and that he got the stolen items from Roy, but without knowing that these were stolen goods. Even though appellant stated that he knew that Roy was homeless, appellant insisted that he did not believe that the property was stolen. Appellant claimed to have purchased the stereo system from Roy for $200.
Appellant admitted that he pled guilty in 2004 to stealing two cars. He was on parole for this conviction when he was arrested by Perez for the Gomez burglary. He stated he was hiding in the closet when arrested because he thought that a warrant had been issued on the car theft conviction.
DISCUSSION
1. It Was Not Error To Instruct the Jury in Terms of CALJIC No. 2.50
Appellant contends that it was error to instruct the jury in terms of CALJIC No. 2.50; we set forth the instruction in the margin. Citing People v. Gray (2005) 37 Cal.4th 168, 202, appellant contends that the evidence that appellant was convicted of stealing two cars did not have a tendency to prove any material facts. Appellant also contends that the prior conviction for car theft was not “shown to be at all similar” to the offenses charged in this case.
As tailored to this case, CALJIC No. 2.50 states: “Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [¶] This evidence, if believed, may be considered by you for the limited purpose of determining if it tends to show: [¶] The existence of the intent which is a necessary element of the crime charged; [¶] The identity of the person who committed the crime, if any, of which the defendant is accused; [¶] A motive for the commission of the crime charged; [¶] The defendant had knowledge of the nature of things found in his possession; [¶] The defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged; [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case.”
“ ‘Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion.’ ” (People v. Gray, supra, 37 Cal.4th at p. 202.)
We begin by noting that evidence of the car theft conviction was properly admitted because appellant took the stand to testify in his own defense. “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony.” (Evid. Code, § 788.)
The usual context of a claim of error predicated on the admission of evidence of other, uncharged crimes is that such evidence was received; the contention is that the evidence should have been excluded. Here, there can be no claim that the car theft conviction should have been excluded since it was admissible to impeach appellant. This case therefore represents the somewhat novel contention that giving CALJIC No. 2.50 was in and of itself error, without regard to the fact that the evidence of other crimes was properly admitted.
This contention is untenable. Since other-crimes evidence was properly received to impeach appellant, CALJIC No. 2.50 constituted nothing more or less than a correct statement of the law. If the jury chose not to apply it to the facts of this case, it was an abstract statement of the law. As such, it made no difference one way or the other. If the jury chose to apply this instruction to the case, it could do so only on the issues of intent, identity, motive, and knowledge -- also a correct proposition. Thus, if CALJIC No. 2.50 had any effect at all in this case, it was to prevent the jury from considering the other-crimes conviction as evidence of appellant’s bad character. This too is a correct statement of law, and it benefited appellant.
As far as the last point is concerned, we do not agree with appellant that the effect of giving CALJIC No. 2.50 was to suggest that “appellant was the type of person who is disposed to commit crimes.” The effect of giving this instruction had just the opposite effect. The jury was instructed that they could consider other-crimes evidence to show intent, identity, motive and knowledge for these limited purposes only. (See fn. 1, ante.)
The absence of even the possibility of error is confirmed by the circumstance that, as far as the instant conviction of receiving stolen property is concerned, intent, motive and knowledge were, in varying degrees, all at issue in this case. Appellant admitted that he received the stolen goods, but contested that he knew they were stolen. The commission of similar criminal acts has been held to indicate guilty knowledge. (See authorities collected in 1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 76, p. 413.)
We conclude that it was not error to instruct the jury in terms of CALJIC No. 2.50. In light of this conclusion, we do not address appellant’s further contention that giving CALJIC No. 2.50 was error of constitutional dimension.
2. CALJIC Nos. 2.06 and 2.62 Were, Respectively, Not Prejudicial and Not Erroneous
Appellant contends that there was no evidence to support CALJIC No. 2.06; he objected to this instruction in the trial court.
“If you find that a defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness or by an offer to compensate a witness or by destroying evidence or by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” (CALJIC No. 2.06, as given in this case.)
Respondent points to the facts that appellant had the victim’s watch in his pocket and that he hid in the closet when the police entered his apartment. We think these facts are less than marginal, when it comes to CALJIC No. 2.06. They do not amount to false statements, denials, and changing one’s appearance, which are the circumstances in the cases cited by respondent that justified CALJIC No. 2.06 in those cases. It is also true that the instruction as given should have omitted reference to intimidation of witnesses, offers to compensate a witness and destroying evidence (see fn. 3, ante), since we have not been made aware of any evidence that would have supported these statements in CALJIC No. 2.06 as it was given to the jury in this case. There is therefore no question that giving this instruction was error.
We cannot say, however, that appellant was prejudiced by this instruction. Appellant’s defense on the receiving stolen property charge was close to inherently improbable; few, if any, homeless people are lawfully possessed of home stereo systems, cordless telephones and the other items that were taken in the burglary. The fact is that appellant was found in possession of these items, that he hid from the police and that he attempted to conceal his identity by giving a false name. Moreover, according to the prosecution’s evidence, appellant admitted to the interrogating detective that he knew that the property was stolen. The jury showed its discernment by exonerating appellant from the burglary charge and by finding him guilty of receiving stolen property. Indeed, it is hard to see how the jury could have come to any other conclusions. In a word, the evidence against appellant on receiving stolen property was overwhelming. CALJIC No. 2.06 did not make any difference in the outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The same analysis does not apply to CALJIC No. 2.62; appellant objected to this instruction as well. Appellant failed to explain why he initially gave a false name to the detective who interrogated him. This was an incriminating circumstance, as we have noted. Appellant’s failure to give an explanation for this was a proper basis for CALJIC No. 2.62. The claim, advanced on appeal, that he was hiding in the closet because he thought he was wanted for a parole violation is not an explanation of why he gave a false name when first questioned by the police.
“In this case defendant has testified to certain matters. [¶] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.” (CALJIC No. 2.62, as given in this case.)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.