Opinion
A144655
03-21-2017
THE PEOPLE, Plaintiff and Respondent, v. LEONEL GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 1418524)
Defendant Leonel Garcia was found guilty of simple assault (Pen. Code, § 240), false imprisonment by violence (§§ 236, 237, subd.(a)) and felony witness dissuasion (§ 136.1) in connection with a domestic altercation with his sister. He now appeals, arguing the jury was given an erroneous instruction allowing a permissive inference of his consciousness of guilt that he contends was not supported by the evidence.
All further statutory references are to the Penal Code.
We affirm the judgment.
BACKGROUND
By information filed in September 2014, the Contra Costa District Attorney charged Garcia with four felonies in connection with a fight he engaged in with his sister, Zuleyma, on July 5, 2014: making criminal threats (§ 422), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), false imprisonment by violence or menace (§§ 236, 237, subd. (a)), and assault by force likely to cause great bodily injury (§ 245, subd. (a)(4)).
According to the victim, Garcia's 18-year-old sister Zuleyma, the altercation took place late at night on July 5, 2014, at their mother's home in San Pablo, California, where Garcia lived and Zuleyma sometimes did too. It began when Garcia, who had been drinking, angrily confronted his sister in a bedroom and accused her of telling their brother about a recent police encounter in which Garcia had falsely given the brother's name for a traffic ticket so Garcia would avoid arrest on an outstanding warrant. He became "really mad" when she told him, "Leo, you're drunk. I don't want to talk about it. Let's talk about it in the morning." The altercation quickly escalated and, according to the victim, Garcia pushed her, swore at her, physically attacked her, forced his way back into the bedroom after she tried closing the door on him, and prevented her from leaving the room. When she told him she was going to call her adult friend Megan, he angrily said " 'Do you want me to go to jail?' " Repeatedly, he kept telling her if she called someone he would go to jail, and insisted, " 'do you want me to go to jail?' " At one point, the victim pressed a button on her phone to place an emergency call to her friend and threw the phone under the bed to let it ring. Megan heard the commotion from the other end of the line and summoned police. According to the victim, Garcia repeatedly threatened her: when her phone began ringing, he told her, "[a]nswer it and see what happens," which scared her and which she took as a threat he would start hitting her again; he also told her to text Megan and say she was fine and, frightened, she complied; and once the police arrived and knocked at the door, he told her "[i]f you say something I'll kill you."
Megan, Zuleyma's former middle school softball coach, was essentially Zuleyma's de facto guardian. She had taken Zuleyma in after Zuleyma's own mother had become abusive, attained some legal rights over her care and allowed Zuleyma to live with her part time.
Garcia corroborated much of his sister's account, including physically attacking her and getting very angry, although he denied beating her up as badly as she had claimed, making various threats or trying to dissuade her from contacting anybody.
Additional details, where pertinent, are discussed below.
Among the jury instructions was CALCRIM No. 371 concerning consciousness of guilt, based on an attempt to suppress evidence. Specifically, the jury was told: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
The jury returned a verdict exonerating Garcia only in part. It found Garcia not guilty of making criminal threats and not guilty of assault by force likely to cause great bodily injury. But it found him guilty of dissuading a witness by force or violence; false imprisonment by violence; and misdemeanor assault.
This count consisted, among other elements, of a willful threat to unlawfully kill or cause great bodily injury to Garcia's sister that conveyed "a serious intention and the immediate prospect that the threat would be carried out" and caused her to be in sustained fear for her own safety.
Garcia was subsequently sentenced to state prison for five years, and this timely appeal followed.
DISCUSSION
Garcia raises a single issue on appeal, arguing the trial court erred in giving CALCRIM No. 371 on consciousness of guilt because "no evidence was adduced at trial from which such an inference could have been drawn."
Although Garcia does not say so expressly, his appellate argument boils down to the contention not that this permissive inference instruction was wrongly given at all, but rather that there was insufficient evidence to justify it with respect to the witness dissuasion count, which was just one of four charged felony counts and is the sole focus of his factual and legal analysis on appeal. He argues, "[i]n order for a court to instruct a jury it may infer consciousness of guilt, there must be independent evidence of some effort by the defendant to dissuade a witness, i.e., evidence other than that comprising the proof upon which the prosecution relies in its effort to establish the defendant's guilt of the charged offense(s)." He contends, "Any inference of guilt arising from threats made by a defendant during the alleged commission of a witness intimidation offense would be necessarily irrelevant to jurors deliberating on the witness intimidation charge," he contends. So, he says in his reply brief, "[b]ecause the consciousness of guilt instruction . . . was predicated on the actus reus of the witness dissuasion charge, the instruction was improper." The instruction, he contends, "improperly suggested to the jury that it could infer consciousness of guilt on Mr. Garcia's part based on the very evidence the prosecution relied upon to establish Mr. Garcia's guilt on the witness dissuasion charge. By giving the instruction to the jury, the trial court necessarily intimated to the jury that it assumed Mr. Garcia's guilt on the witness dissuasion charge. The error necessitates reversal." (Italics added.)
That error, if any, has been forfeited. Although an objection is unnecessary to preserve the claim that a consciousness of guilt instruction is unsupported by any of the evidence (see People v. Hannon (1977) 19 Cal.3d 588, 600; Pen. Code, § 1259), a request for clarification or modification is necessary to preserve a contention the instruction should not have been applied to all charges or, in effect, that the instruction should have been limited to only certain counts. (See People v. San Nicolas (2004) 34 Cal.4th 614, 667; People v. Rodrigues (1994) 8 Cal.4th 1060, 1140; People v. Crandell (1988) 46 Cal.3d 833, 870-871 (Crandell), abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 365-366; see also, e.g., People v. Mize (1950) 100 Cal.App.2d 584, 588 ["an injured party may complain upon appeal only in case he requests that the instruction be made more specific or asks for other qualifying instructions and his request is refused"].) Garcia concedes he did not object to the instruction, and does not dispute the People's assertion that he also did not request any clarification or modification of it. It therefore is unnecessary to decide whether the court erred in giving this instruction as applied to the witness dissuasion count because the issue has not been preserved for review.
In any event, there was no error. The instruction told the jury that evidence of such an attempt was not sufficient itself to prove guilt, and left it to the jury to determine its "meaning and importance." As we recently said in another context, CALCRIM No. 371 leaves it to the jury to decide "whether the inference [of consciousness of guilt] should be drawn in light of the whole record; and . . . how the evidence is to be weighed." (People v. Mackey (2015) 233 Cal.App.4th 32, 113.) Therefore, the instruction in no way lessened the prosecution's burden of proof, because "[t]he cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory." (People v. Jackson (1996) 13 Cal.4th 1164, 1224; People v. Thornton, 41 Cal.4th 391, 438; People v. Peyton (2014) 229 Cal.App.4th 1063, 1078.)
Indeed, virtually the same argument was rejected in People v. Crandell, supra, 46 Cal.3d 833, where the Supreme Court held there was no error in instructing a jury that a capital murder defendant's attempts to suppress evidence by destroying evidence or intimidating a witness could be considered to prove his consciousness of guilt even though the instruction was not limited to a specific charge and there was no evidence to justify the instruction on two of the three charges (kidnapping and assault, as opposed to the murder charge). (Id. at p. 870.) Crandell found no error, because "[t]he instructions do not assume the existence of evidence relating to each charge; they merely instruct the jury on the use of such evidence should it be found to exist. Accordingly, the instructions were neither erroneous nor irrelevant." (Ibid.; see also People v. Mendoza (2000) 24 Cal.4th 130, 180 ["it is for the jury to determine to which offenses, if any, the inference [of consciousness of guilt] should apply"].)
Crandell also held, in effect, any error was forfeited, concluding with the observation that "[i]f defendant desired limitation or clarification of the instructions, it was incumbent upon him to request it." (Crandell, supra, 46 Cal.3d at pp. 870-871; accord, People v. San Nicolas, supra, 34 Cal.4th at p. 667 [no error in instructing on consciousness of guilt without specifying the charge to which the instruction applied: "no such limitation is legally required, nor did defendant request such a limitation or modified instruction at trial"].)
Nor, finally, was Garcia prejudiced even assuming there was an error. Whether reviewed as a species of ordinary error under People v. Watson (1956) 46 Cal.2d 818, 836 (see People v. Turner (1990) 50 Cal.3d 668, 695), or as a species of federal constitutional error under Chapman v. California (1967) 386 U.S. 18, as Garcia urges us to do, it is beyond reasonable doubt that this instruction did not affect Garcia's conviction. Most importantly, nobody argued this inference to the jury. Neither the prosecution nor the defense even mentioned this instruction during closing argument, much less called the jury's attention to it to any meaningful degree. In addition, Garcia contends the problem with permissive inference instructions generally is that they sometimes "interfere[] with the jury's obligation to apply the reasonable doubt standard or otherwise distort[] the jury's deliberative process," yet here the challenged instruction itself told the jury that evidence of an attempt to hide evidence or discourage someone from testifying against the defendant "cannot prove guilt by itself," the jury was properly instructed on the presumption of innocence and guilt beyond a reasonable doubt, and both the prosecution and the defense properly couched their closing arguments in terms of the reasonable doubt standard. Nor do we see logically how there could be any prejudice. The challenged instruction permitted an inference of guilt only if the jury believed Garcia made threats; but if the jury believed he did so, then it wouldn't be inconsistent with one of the elements of the witness dissuasion charge. In other words, the fact that the same conduct would support both an inference of guilt under the instructions and a finding of guilt could not have affected the outcome. There was no risk in these circumstances that the jury's use of a permissible inference "caused the presumptively rational factfinder to make an erroneous factual determination." (Ulster, supra, 442 U.S. at p. 157.)
Garcia argues the error here is of constitutional dimension under Francis v. Franklin (1985) 471 U.S. 307, which observed that "[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." (Id. at pp. 314-315, citing Ulster County Court v. Allen (1979) 442 U.S. 140, 157-163 (Ulster).) As explained by Ulster, "Because [a] permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination." (Ulster, at p. 157.) --------
Finally, there was overwhelming evidence of Garcia's guilt on this charge. Although ultimately his conviction for witness dissuasion came down to his sister's word against his as to what was said during the attack, Garcia himself admitted: physically attacking his sister, pushing her and throwing her on the bed, getting "angrier and angrier" at her, shouting profanities at her ("fucking bitch"), knowing that if the victim's friend Megan were called the police would be called too; and being under the influence of alcohol ("kind of tipsy, but . . . not drunk"). He admitted that he frightened his sister, and he couldn't rule out that he might have caused her various injuries too (to her lip, back, bruising on her temple, cheek and neck). He also admitted having lied to police (about his identity) to avoid arrest on another occasion. All of these things he admitted alone tended to corroborate his sister's account that he tried to discourage her from reporting him to the police that day too. And then there was his sister's testimony, corroborated by the police officer who responded at the scene, that she was too scared to speak to police within earshot or view of her brother, and initially said everything was fine while at the same time signaling non-verbally that something was wrong. Garcia also had two prior felony convictions, and the jury was instructed it could take them into account in assessing his credibility. There also was evidence he fled the scene when police arrived (by his own admission, he left while police were still outside), and the jury was instructed it could infer consciousness of guilt from that too. Finally, not even defense counsel called the victim a liar; instead, he argued she was prone to exaggeration because she was "very fragile," due to past abuse at the hands of her mother and another brother. His principal closing argument was that her injuries weren't consistent with the kind of aggravated attack she said had taken place, and briefly suggested that because she exaggerated how badly Garcia had beaten her she also must have exaggerated about the threats and other things he said to her too. Even so, defense counsel acknowledged that Garcia admitted that he was "mean," that he "upset his sister," "that he's a bully," "has a horrible temper" and "can't control his anger."
In short, it is beyond reasonable doubt that the challenged instruction, even if erroneous, did not affect Garcia's conviction.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.