Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge, Super.Ct.No. RIF115799
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a jury trial, defendant Mark Phillips was convicted of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The jury also found true the allegations that defendant personally used a deadly and dangerous weapon and personally inflicted great bodily injury upon the victim. (§§ 12022, subd. (b)(1), 12022.7, subd. (a), 1192.7, subd. (c)(8) & (23).) On August 4, 2006, defendant was sentenced to a total term of six years in state prison. He appeals, contending that (1) the trial court improperly instructed the jury with CALJIC No. 2.03; (2) the trial court improperly instructed the jury with CALJIC No. 2.06; and (3) the prosecutor committed misconduct by attempting to shift the burden of proof. We reject these contentions and affirm.
All further statutory references are to the Penal Code unless otherwise specified.
I. PROCEDURAL BACKGROUND AND FACTS
On March 15, 2004, around 5:30 or 6:00 p.m., Dustin Smith drove Steven Kirby (the victim) and his girlfriend, Jessica Rothenberger, to the Swan Lake Mart in Mira Loma, California. Rothenberger and the victim testified that they went into the store while Smith waited in the car. At some point, Smith began talking with defendant, whose car was parked next to Smith’s. When Rothenberger returned to the car and started climbing into the back, defendant told her several times that he had seen her at the pool that day. According to the victim, defendant also said, “Damn, I seen that ass somewhere so had to have been at the pool.” Defendant’s speech was slurred as if he was intoxicated.
In contrast, Smith testified that Rothenberger remained in the car with him and that when Kirby returned, defendant and Rothenberger were already talking.
Rothenberger told defendant that he had not seen her at the pool. When the victim told defendant that Rothenberger had been with the victim all day, defendant replied, “No, I don’t think so, son.” The victim got upset and told defendant, “Son, you know, why don’t you get out of the car? We’ll see, son.”
Defendant got out of the passenger side of his car and met the victim at the back of the car. After the victim pushed defendant onto the trunk of his car, defendant swung at the victim. At that point, the victim noticed his arm had been cut and there was a knife with a curved or hooked blade in defendant’s hand. The victim backed up two steps, but defendant came after him. Defendant was swinging the blade. The victim continued to run backwards, dodging and ducking. Defendant swung again at the victim, cutting the victim under his chin. The victim tripped, and as he was falling backwards, defendant cut the victim on the left side of his neck, severing his external jugular vein. The laceration extended into the muscle, almost cutting it in half. During the attack, defendant said something like, “I’m going to kill you. I’m going to get you. I’m real.”
At that point, Rothenberger came running and threw her shoes at defendant. In response, defendant said that he was going to get her too. A young male who was unknown to the victim, later identified as David D., came running up with a knife. He got between defendant and Rothenberger and backed defendant away. Defendant told David D., “I’m going to get you like ‘ol boy.” Rothenberger asked people to call 911.
When Riverside County Sheriff’s Deputy Roberta Slaymaker arrived at the scene, she approached defendant and asked if he had any weapons. He said he did not. Deputy Slaymaker searched defendant and did not find any weapons. Deputy Kelly Vyhnalek interviewed defendant. Defendant told Deputy Vyhnalek that while he was talking to someone, a lady (Rothenberger) walked out of the store. Defendant asked her if he had seen her at the pool that day and she said no. Defendant claimed that, without warning, the victim approached defendant’s car and started “punching” defendant. Defendant said that he got out of his car through the passenger’s side door where he was met by the victim and another person wearing a blue shirt (later identified as David D.) and carrying a double-bladed knife. Defendant claimed that he was backing away while those people were attacking him. He then pulled out a small knife for protection. He denied swinging the knife at or cutting the victim or the other man. Instead, he claimed that he did not realize that the victim had been cut. Deputy Vyhnalek asked defendant a couple of times where his knife was. Defendant ignored the question and would not respond. There was a small cut on defendant’s right thumb. When the deputy asked how defendant got the cut, he said that he did not know.
II. CALJIC NO. 2.03
Defendant contends the trial court erred in instructing the jury, over his objection, with CALJIC No. 2.03, which provides that a defendant’s “willfully false” statement about the charged crime may show “a consciousness of guilt,” but is “not sufficient by itself to prove guilt.” He argues the instruction lacked a proper evidentiary basis. The People disagree, arguing that the testimony of other witnesses demonstrated the falsity of defendant’s pretrial statements.
CALJIC No. 2.03 (Consciousness of Guilt Falsehood) states: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
A consciousness of guilt instruction is appropriate if there is “‘evidence in the record which, if believed by the jury, will sufficiently support the suggested inference.’” (People v. Ramirez (2006) 39 Cal.4th 398, 456.) Contrary to defendant’s argument, any false statement concerning the charge is evidence of a consciousness of guilt. (People v. Lewis (1990) 50 Cal.3d 262, 276.) In addition, our Supreme Court has “repeatedly rejected” arguments that pattern jury instructions on consciousness of guilt permit “the jury to draw irrational inferences about a defendant’s mental state during the commission of the charged offenses.” (People v. Jurado (2006) 38 Cal.4th 72, 125; see also People v. Guerra (2006) 37 Cal.4th 1067, 1137 .) No limitation on the use of such evidence is necessary because “‘[t]he instructions do not assume the existence of evidence relating to each charge.’” (People v. San Nicolas (2004) 34 Cal.4th 614, 667.) The giving of CALJIC No. 2.03 is justified where the falsity of the defendant’s pretrial statements is demonstrated by the testimony of other witnesses at trial. (People v. Williams (1995) 33 Cal.App.4th 467, 478.)
In this case, the testimonies of other witnesses set forth a different scenario from that described by defendant. The witnesses confirmed that defendant and the victim had a verbal altercation while defendant was sitting in his car. They also agreed that defendant got out of the passenger side of his car and met the victim at the rear of the car. Before the victim could hit defendant, he cut the victim’s arm with a knife. The victim ran backwards. Defendant again swung at the victim, cutting him under the chin. The victim tripped over a parking stump as he continued to back away. During his fall, he was cut on the left side of his neck by defendant’s knife. At that point, David Dixon came to the victim’s aid.
If the jury believed the testimonies of the prosecution’s witnesses, then it could reasonably have found defendant’s statements to the deputy were willfully false and deliberately misleading. Thus, the jury could have inferred a consciousness of guilt. If the jury believed defendant’s testimony, then CALJIC No. 2.03 did not apply.
Even if we were to assume that the court erred in instructing the jury with CALJIC No. 2.03, we find no prejudice. Our high court has held that there is no reversible error in giving CALJIC No. 2.03 and similar instructions because the instructions “made clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The 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.) CALJIC No. 2.03 thus does not improperly shift the balance of the instructions against the defense or endorse the prosecution’s theory and lessen its burden of proof.
III. CALJIC NO. 2.06
In a related claim, defendant faults the trial court for instructing the jury, over his objection, with CALJIC No. 2.06, which provides that a defendant’s attempt “to suppress evidence against himself in any manner such as by concealing evidence,” may show “a consciousness of guilt,” but is “not sufficient by itself to prove guilt.” Again, defendant claims a lack of an evidentiary basis for the instruction. The People disagree, arguing the evidence shows that defendant disposed of the knife that he used on the victim before the police arrived.
CALJIC No. 2.06 (Efforts to Suppress Evidence) told the jury: “If you find that a defendant attempted to suppress evidence against himself in any manner, such as 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.”
It is well settled that CALJIC No. 2.06 is properly given if there is some evidence in the record that, if believed by a jury, would support an inference that the defendant’s attempt to suppress evidence reflected that he or she had a consciousness of guilt. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Here, the victim, Rothenberger, and Ronald Norton (a witness who was walking into the store at the time of the incident) each testified that defendant used a knife with a curved or “hook” blade to cut the victim. Defendant’s coworker, Tracy Medina, also saw defendant with a knife; however, she claimed the knife had a “triangle point.” Defendant admitted to the police that he had pulled out a knife from one of his pockets; however, he claimed that he had never cut the victim with it. When defendant was searched by the police, the knife with the curved blade was not found. When asked where the knife was, defendant would not say. The only knife recovered was the one used by David D.
If the jury believed that defendant purposefully disposed of the knife with the curved blade, then it could reasonably conclude that he did so in an effort to conceal incriminating evidence. Thus, the jury could have inferred a consciousness of guilt. If the jury believed defendant’s testimony, then CALJIC No. 2.06 did not apply.
As with CALJIC No. 2.03, even if we assume the trial court erred in instructing with CALJIC No. 2.06, we find the error to be harmless in light of the evidence against defendant and the instruction’s neutral language and permissive application. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 102; People v. Jackson, supra, 13 Cal.4th at pp. 1223-1224; People v. Johnson (1992) 3 Cal.4th 1183, 1235-1236.)
IV. PROSECUTORIAL MISCONDUCT
During closing argument, defense counsel argued there was no physical evidence to support the prosecution’s theory as to what happened in this case. Specifically, he argued: “You saw pictures of the store. You saw pictures of the parking stall. You’d better believe they took pictures of [defendant]. But you didn’t see that. You know why? Because there was no blood on him. He’s slicing up. And you can tell, talking about the jugular veins cut, all of this grewsome [sic] blood, not a drop of blood on [defendant]. [¶] Why? Because he didn’t cut him. If they had that evidence you would have seen that evidence. But you didn’t. Because there was none. Not a speck of blood on him. And you would imagine with those type (sic) of injuries in the neck area there would be something because it’s not just one cut it’s a couple of cuts. Something on the finger, a little blood. No, nothing there.”
Defense counsel further argued: “Again, the thing that — the DA tactic that is usually used, what I was talking about earlier, that there was no pictures or anything presented to the jury regarding any blood or anything like that on [defendant]. I know a lot of times in the rebuttal they’ll come back and say, well, you know, the defense could have given you pictures and all of that. [¶] The problem with that argument is that we don’t live in China. We don’t have the burden of proving his innocence. They have the burden of proving his guilt. So it’s not up to us to bring in evidence to prove his innocence, so to speak. [¶] If they’re trying to convict this man of attempted murder, they have the duty, the obligation to present all of the evidence to support those charges beyond a reasonable doubt.”
In rebuttal, the prosecutor stated: “Okay. No blood on the defendant he says. A couple of things. I know the defense claims they’re not in China. And we’re not. Thank goodness with respect to these types of laws. [¶] But I want to read an instruction to you. One of the most powerful instructions for the defense. . . . [¶] . . . [¶] The title is a little misleading. Because of that I want to read it to you. The title says, the defendant may rely on the state of the evidence. But let’s look at what the instruction actually says. [¶] . . . [¶] In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. [¶] No lack of testimony on the defendant’s part will make up for a failure of proof upon the People so as to support a finding against him to any essential element. [¶] It’s really not about the defendant may rely on the state of the evidence, only with respect to whether he would testify. That’s what that instruction is about. It’s not about other evidence that they can provide and they can put forward. If there is evidence that the defendant didn’t have any blood on him or did have blood on him, the defense is just as capable and just as resourceful as the People are.”
Defense counsel objected on the grounds that the prosecutor was shifting the burden of proof. The objection was overruled. On appeal, defendant repeats his trial court objection by arguing the prosecutor’s rebuttal arguments effectively and unconstitutionally shifted the burden of proof by suggesting defendant was responsible for producing certain evidence and must be guilty because he failed to do so. More specifically, defendant claims that “[i]n explaining CALJIC No. 2.61 to the jury, the prosecution told the jury to distinguish between defense evidence characterized as the defendant’s testimony and ‘other evidence’ produced by the defense.” According to defendant, the jury was led to believe that the “‘other evidence’” is not controlled by the instruction, and thus, the prosecution’s burden of persuasion only applied in limited circumstances. Defendant notes that the jury, during deliberations, asked for “[a] copy or readback of prosecuting attorney’s power point presentation showing definitions of intent, charges — attempted murder etc.” Although the court refused the jury’s request, defendant asserts that the request demonstrates “the jury was persuaded by the prosecution’s incorrect interpretation of the law and argument.” We disagree.
A prosecutor is given wide latitude in arguing a case to the jury as long as it amounts to fair comment on the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.) “The closing statements of counsel should relate to the law and the facts of the case as each side interprets them.” (People v. Hawthorne (1992) 4 Cal.4th 43, 60.) The prosecutor’s statements in closing argument must be viewed in context with the remainder of summation. (People v. Medina (1995) 11 Cal.4th 694, 756.) It is not unconstitutional for a prosecutor to comment on “‘“the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.”’” (People v. Carter (2005) 36 Cal.4th 1215, 1266.) However, “[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
In this case, the prosecutor’s rebuttal argument was nothing more than fair comment on the state of the evidence in direct response to certain statements made by the defense attorney in closing arguments. (People v. Cunningham (2001) 25 Cal.4th 926, 1026.) The prosecutor’s point was clear — the alleged evidentiary flaw cited by the defense attorney in his closing argument (i.e., failure to introduce a picture of defendant’s shirt) in order to discredit the prosecution’s case-in-chief was merely a diversion intended to distract the jury. However, as the prosecutor pointed out, the defense was just as capable of presenting the evidence and could not blame the prosecution for its absence. Likewise, the prosecutor’s reference to CALJIC No. 2.61 was in further support of his response to defense counsel’s attempt to discredit the prosecutor. There is no chance the jury could have misunderstood the prosecutor’s argument to mean the defense had the burden of proof on the elements of the crimes charged. The jury was appropriately instructed on the burden of proof and the fact that neither side is required to produce all documents or objects suggested by the evidence. We presume the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
“Because there was neither burden shifting nor misconduct by the prosecutor, defendant has not established prejudice justifying reversal under the state law test requiring a reasonable likelihood of a more favorable verdict in the absence of the challenged conduct. [Citations.] Even if we were to conclude that these instances constituted error, which we do not, applying the test pertaining to error of federal constitutional dimension, we conclude that the prosecutor’s comments . . . were harmless beyond a reasonable doubt. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 608.)
V. CUMULATIVE ERROR DOCTRINE
Defendants contend that various errors are, taken together, prejudicial and require reversal. Having found no individual prejudicial error, we also conclude there is no cumulative prejudice. (People v. Cook, supra, 39 Cal.4th at p. 608.)
VI. DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.