Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick N. Wapner, Judge, Los Angeles County Super. Ct. No. BA292599
Sylvia W. Beckham, 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, Senior Assistant Attorney General, Stephanie A. Miyoshi and April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Jerry Frederick of selling cocaine base (count 1) and possessing drug paraphernalia (count 2). In a bifurcated hearing after a jury waiver, Frederick admitted a prior robbery conviction pursuant to the “Three Strikes” law. After denying Frederick’s motion to dismiss the strike enhancement for sentencing purposes, the court imposed a four-year middle term on count 1, doubled to eight years as a second strike; a concurrent term on count 2; and struck allegations of eight prior prison term felony convictions which Frederick did not admit, the prosecution did not prove, and the court did not find true.
Health and Safety Code sections 11352, subdivision (a); 11364, subdivision (a).
Penal Code sections 211; 667, subdivisions (b)-(i), 1170.12; all further undesignated section references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Sections 667.5, subdivision (b); 1385, subdivision (c)(1).
Frederick timely appealed. He contends the court prejudicially erred in (I) instructing the jury pursuant to CALCRIM No. 226, “If the evidence establishes that a witness’ character for truthfulness has not been discussed by the people who know him or her, you may conclude from the lack of discussion that the witness’ character for truthfulness is good[,]” because no character witnesses testified; and (II) striking rather than finding not true the prior prison term enhancements (the Attorney General concedes this issue).
Fall 2006 edition; all further CALCRIM references are to the Fall 2006 edition.
We reject contention (I) but agree with contention (II). We modify the judgment to reflect not true findings on the eight prior prison term enhancements. Although not raised by the parties, we remand for the court to prepare an amended abstract of judgment showing Frederick was convicted by jury, not plea. The court shall forward a copy of the amended abstract to the Department of Corrections. In all other respects we affirm the judgment.
FACTS AND PROCEEDINGS BELOW
Frederick does not challenge the sufficiency of the evidence. Viewed in accord with the usual rules governing appellate review, the evidence disclosed in the afternoon of October 28, 2005, undercover Los Angeles Police Officer Delilah Vizcarra was near the intersection of 7th and San Julian Streets posing as a potential drug buyer. Frederick approached Vizcarra and asked if she wanted to buy a crack pipe. She “told him no, that I didn’t want a pipe. And I told him I was looking for” $10 worth of crack cocaine. Frederick told her “to go with him, with his boy, that he had it.” Vizcarra explained in such street sales where two sellers cooperate on one sale, the seller in Frederick’s role is known as a “hook,” who brings the potential buyer to the seller who possesses the drugs, in exchange for which the hook hopes to receive a small portion of either the money or the drugs.
People v. Hill (1998) 17 Cal.4th 800, 848-849.
Frederick took Vizcarra to Dana Graham, who was standing about 20 feet away. Frederick asked Vizcarra for her money. She handed him $10 in prerecorded bills. Frederick asked Graham for $10 worth of crack cocaine and handed Graham the money. In exchange, Graham handed Frederick two small pieces of rock cocaine, which Frederick handed to Vizcarra, who then turned and walked away. Frederick neither asked for nor received any other money or drugs from Vizcarra or Graham. Using a hidden transmitter, Vizcarra told covering officers the sale was complete and directed them to arrest Frederick and Graham. In response, backup officers arrested Frederick and Graham and recovered a crack pipe from Frederick and the $10 in prerecorded bills, another crack pipe, and additional rock cocaine from Graham.
In defense, Graham admitted he was selling drugs on October 28, 2005, was arrested, pled guilty, and was sent to prison. Graham also admitted two previous drug-sale convictions. However, Graham claimed he did not sell drugs to any women on October 28 and first saw Frederick that day in jail when both were in custody. Graham also claimed he never used a “hook” to consummate drug sales.
Frederick also testified. On direct examination, he claimed he offered to sell a crack pipe to Vizcarra, whom he had never seen before, but she replied, “No, I just have some” rock cocaine, and walked away. Frederick claimed he had no further contact with Vizcarra and no contact with Graham that day. A few minutes later, uniformed police arrested him. He claimed he told them he “didn’t do anything but ask [Vizcarra] did she want to buy a pipe[,]” and if they did not “release me, I’m going to trial.” He admitted previous convictions for forgery, petty theft, and two felonies, but claimed he pled guilty in those cases because he was guilty. On cross-examination, Frederick for the first time claimed he saw Graham sell drugs to Vizcarra, denied the police ever read him his Miranda rights, and admitted he was convicted by jury in one of his prior convictions.
Miranda v. Arizona (1966) 384 U.S. 436.
Also in defense, Steven Binns, who admitted prior convictions for false imprisonment, rape, robbery, and theft, testified Vizcarra, whom he did not know, approached him near the intersection of 48th Street and Normandie Boulevard in April 2003 and asked if he would sell her some rock cocaine. He refused but told her he could take her to someone who would. She asked if he had any crack cocaine. He said he did, spit a small piece hidden in his mouth onto his hand, and showed it to her. She grabbed it and walked away despite his protests. He then noticed and picked up two $5 bills from the ground where she had been standing. A second officer approached Binns waving a baggie containing pieces of rock cocaine and claimed he had recovered the baggie from Binns, who was arrested. Binns filed a complaint with the police department alleging Vizcarra and other officers framed him and the second officer broke his jaw. When Binns testified in his defense at his trial he admitted no one had broken his jaw and he had lied when he so claimed. Binns had been returned from state prison to county jail to testify, which he considered punishment, not a reward.
In rebuttal, one of the arresting officers testified he advised Frederick of his Miranda rights. Frederick refused to respond and made no statement.
In their jury arguments, the prosecutor and Frederick’s counsel disputed the credibility of Vizcarra and the defense witnesses, but neither attorney mentioned the challenged portion of CALCRIM No. 226 or any other credibility instruction. The prosecutor argued Vizcarra was credible, the other evidence, including inconsistencies in the defense witnesses’ testimony, corroborated her, and the defense witnesses lied, based on their admitted untruthfulness and inconsistencies in their testimony. Frederick’s counsel argued Vizcarra lied about Frederick’s participation in the sale.
Without objection, the court gave several instructions regarding how the jury should weigh witness credibility. Pursuant to CALCRIM No. 200, the court stated: “Pay careful attention to all of these instructions and consider them together. . . . Some of these instructions may not apply depending on your findings about the facts. [¶] Do not assume just because I give a particular instruction that I am suggesting anything about the facts. [¶] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” (Italics added.)
With the exception of the challenged portion of CALCRIM No. 226 quoted above, Frederick does not challenge any of the court’s instructions.
The quoted instruction correctly states the law. (People v. Osband (1996) 13 Cal.4th 622, 679; People v. Palmer (1946) 76 Cal.App.2d 679, 686-687.)
The court also instructed the jurors (1) they could convict Frederick only if the evidence as a whole convinced them of his guilt beyond a reasonable doubt; (2) regarding direct and circumstantial evidence and the sufficiency of circumstantial evidence to prove guilt; and (3) regarding how to weigh prior witness statements, felony convictions, being in custody, proof of a fact from a single witness, conflicting evidence, and lay opinion. In addition, as discussed above, the court gave CALCRIM No. 226, the general instruction regarding witness credibility.
CALCRIM Nos. 220; 223; 224; 301; 302; 316; 318; 333; 337.
In addition to the portion of the instruction quoted above, the remainder of the instruction stated: “You alone must judge the credibility or believability of the witnesses. [¶] In deciding whether testimony is true and accurate, use your common sense and experience. [¶] The testimony of each witness must be judged by the same standard. [¶] You must set aside any bias . . . or prejudice you may have, including any based on the witness’ gender, race, religion or national origin. [¶] You may believe all, part or none of any witness’ testimony. [¶] Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’ testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of the testimony. [¶] Among the factors you may consider are how well could the witness see, hear or otherwise perceive the things about which the witness testified. [¶] How well was the witness able to remember and describe what happened? [¶] What was the witness’ behavior while testifying? [¶] Did the witness understand the questions and answer them directly? [¶] Was the witness’ testimony influenced by a factor such as bias, prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided? [¶] What was the witness’ attitude about the case or about testifying? [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the testimony when you consider all the other evidence in the case? [¶] Did other evidence prove or disprove any fact about which the witness testified? [¶] Did the witness admit to being untruthful? [¶] What was the witness’ character for truthfulness? [¶] Has the witness been convicted of a felony? [¶] Has the witness engaged in other conduct that reflects on his or her believability? [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. [¶] Consider whether the differences are important or not. [¶] People sometimes honestly forget things or make mistakes about what they remember. [¶] Also, two persons may witness the same event, yet see or hear it differently. [¶] . . . . [¶] If you do not believe a witness’ testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’ earlier statement on that subject. [¶] If you decide that a witness deliberately lied about something significant in the case, you should consider not believing anything the witness says. [¶] Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (Italics added.)
The jury deliberated for slightly more than six hours over three days. The jury requested and received readbacks of Vizcarra’s and the searching officer’s testimony. Thereafter, the jury convicted Fredericks of selling cocaine base and possessing drug paraphernalia.
Before trial, the court granted Frederick’s motion to bifurcate trial of the prior conviction allegations. After the verdicts, Frederick waived jury and agreed to a court trial of the prior convictions. At sentencing, when the court stated it intended to deny Frederick’s Romero motion and impose an eight-year sentence as recommended by the prosecution, Frederick admitted the one prior conviction alleged under the Three Strikes law, but the prosecution never proved, Frederick never admitted, and the court did not find true the eight prior prison term enhancements, which the court struck at sentencing.
DISCUSSION
I. THE COURT ERRED IN GIVING THE CHALLENGED PORTION OF CALCRIM NO. 226, BUT THE ERROR WAS HARMLESS.
Frederick contends the court prejudicially erred in giving the challenged portion of CALCRIM No. 226, which stated: “If the evidence establishes that a witness’ character for truthfulness has not been discussed by the people who know him or her, you may conclude from the lack of discussion that the witness’ character for truthfulness is good.” He does not dispute the correctness of the legal principle contained therein, but argues the challenged language should not have been given because, since none of the witnesses was a character witness, no evidence supported it. He also argues he did not waive the issue by failing to challenge the language below because the court was required to instruct correctly on witness credibility sua sponte. He concludes the error was prejudicial because the case turned on competing witness credibility and the instruction unfairly bolstered Vizcarra’s credibility. We agree Frederick did not waive the issue and the court erred in giving the challenged portion of the instruction, but conclude the error was harmless.
CALJIC No. 2.24 (Spring 2007 ed.) contains similar language.
In criminal cases, the trial court must instruct sua sponte on the general principles of law relevant to the issues raised by the evidence. This duty includes giving correct instructions regarding witness credibility. A court errs if it gives a legally correct instruction which is irrelevant, i.e., unsupported by substantial evidence. Because the court was required to instruct correctly on witness credibility sua sponte, Frederick did not waive his challenge to this portion of CALCRIM No. 226 by failing to object. An error in giving a legally correct but irrelevant instruction requires reversal only if it is reasonably probably the defendant would have obtained a more favorable verdict absent the error.
People v. Breverman (1998) 19 Cal.4th 142, 154.
People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-885.
People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.
People v. Breverman, supra, 19 Cal.4th at pages 149, 164-179; People v. Rowland (1992) 4 Cal.4th 238, 282.
We agree with Frederick the court erred in giving the challenged portion of the instruction because no character witnesses testified about any witness’ reputation for honesty. Here, both parties impeached the other’s witnesses not with character evidence of the witnesses’ general reputation for dishonesty, but with prior specific bad acts demonstrating dishonesty. Thus, Binns testified for Frederick about Vizcarra’s alleged dishonesty in falsely accusing Binns of drug sales and possession, and the prosecution, by seeking to impeach Graham, Frederick, and Binns with their prior felony convictions, forced them to admit the convictions. The prosecution also elicited Binns’ admission that he lied when falsely accusing the officers of breaking his jaw, and Frederick’s implied admission that he lied when he claimed he pled guilty in all his prior convictions, both apparently resulting from the prosecutor’s threat to prove the lies with independent evidence. Although the court correctly instructed the jury it could weigh those acts when determining witness credibility, it erred in including in those instructions, apparently automatically, the related but distinct concept of character evidence of general reputation for dishonesty, of which the jury heard none. Indeed, the “Bench Notes” to CALCRIM No. 226 instruct that the challenged language should be given only “if relevant based on the evidence.” Thus, the challenged portion of the instruction, addressing circumstances in which the jury could assume good character for truthfulness from the absence of a discussion among character witnesses about the witness’ character for honesty, was irrelevant, and the court erred in giving it.
California Constitution, article I, section 28, subdivision (d); Evidence Code sections 352, 780, 785-788; People v. Ayala (2000) 23 Cal.4th 225, 300-301; People v. Wheeler (1992) 4 Cal.4th 284, 288, 290-292, 295-297; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, sections 280-281, 285-286, 288-314, pages 353, 357-361, 362-394.
The parties do not challenge any of the court’s related evidentiary rulings.
However, this error did not prejudice Frederick. First, the court instructed the jury to ignore instructions that applied to facts it found did not exist. Most likely, the jury ignored the challenged portion of the instruction after correctly determining it was inapplicable. Second, as the Attorney General argues, the challenged language applied to all the witnesses, not just Vizcarra. As discussed above, all three defense witnesses were impeached with felony convictions, which the court instructed the jury to consider as they bore on credibility, and two of those witnesses also directly or indirectly admitted having lied about portions of their testimony, another factor the court told the jury to consider in weighing credibility. Thus, even if the jury applied the challenged language, it was equally as likely to use it to enhance the defense witnesses’ credibility as Vizcarra’s.
Third, the court otherwise properly instructed the jury regarding how to weigh competing witness credibility. Given the plethora of credibility factors and instructions, nothing suggests the verdicts resulted from any, let alone prejudicial, consideration of the challenged instruction. Fourth, neither party mentioned, let alone emphasized, the challenged language in its argument, further reducing the likelihood of prejudice.
Finally, Frederick argues the length of deliberations and the jury’s readback requests shows the challenged language affected the verdict. We disagree. The jury sought readbacks of Vizcarra’s and the searching officer’s, but no defense witness’, testimony. Had the jury been focused on the challenged language to Frederick’s detriment, it likely would have reviewed Binns’ testimony, the source of evidence of Vizcarra’s alleged prior dishonest act. Moreover, all the defense witnesses were impeached with multiple prior felony convictions, Binns and Frederick admitted lying during their testimony, Frederick’s account was internally inconsistent regarding whether Vizcarra bought drugs from Graham, and Graham’s and Frederick’s accounts of the sale contradicted each other regarding whether Graham sold drugs to a woman. To accept the defense version of events, the jury would have to reach the unlikely conclusion Vizcarra falsely implicated Frederick when Graham unquestionably sold her drugs, and turned down Binns’ offer to take her to a drug salesman who presumably would have sold her drugs and whom she could have arrested. On the totality of this record, we cannot say it is reasonably probable a properly instructed jury would have returned a different verdict.
II. THE JUDGMENT MUST BE MODIFIED TO REFLECT NOT TRUE FINDINGS ON THE EIGHT PRIOR PRISON TERM ENHANCEMENTS.
We agree with the parties the judgment must be modified to reflect not true findings for the eight prior prison term enhancements which Frederick never admitted, the prosecution never proved, and the court never found true. We agree this situation is different from those in which retrial of such enhancements is permitted even if an appellate court concludes the evidence was insufficient to support true findings. On the contrary, here the prosecution, apparently satisfied with the eight-year indicated sentence, presented no evidence of the enhancements, which the court never found true.
People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439-1440.
People v. Barragan (2004) 32 Cal.4th 236, 239, 243-259; People v. Monge (1997) 16 Cal.4th 826, 829, 831-845.
DISPOSITION
We modify the judgment to reflect not true findings on the eight prior prison term enhancements. We remand the case for the trial court to prepare an amended abstract of judgment showing Frederick was convicted by jury, not plea. The court shall forward a copy of the amended abstract to the Department of Corrections. In all other respects the judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.