Opinion
2d Crim. No. B226622
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. ROMAN DARIO ROJAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. VA111853)
(Los Angeles County)
Roman Dario Rojas was convicted by jury of unlawful driving or taking of a vehicle. (Veh. Code, § 10851.) He admitted the allegation that he had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court imposed a total aggregate term of three years in state prison, consisting of the mid-term of two years, plus one year for one of the prior prison term enhancements. Appellant claims the court erred in excluding certain evidence and alleges instructional error. We affirm.
FACTS
Prosecution Evidence
On August 18, 2009, Police Officer Christopher Leffler was on patrol in Santa Fe Springs in Los Angeles County. At approximately 3:30 a.m., he saw appellant getting out of a green Lexus. He closed the driver's side door with a pair of gloves between his hand and the door handle. Leffler became suspicious because this technique is used in vehicle thefts to avoid leaving fingerprints. Appellant walked toward a beige two-door Toyota pickup truck parked nearby. He opened the driver's side door with the gloves, got inside and drove away.
Leffler followed appellant and ran his license plate number through a computer inside the patrol car. The Toyota had been reported stolen in Long Beach. After calling for assistance, Leffler activated his overheard lights and appellant pulled over. Leffler arrested him and placed him in the patrol car.
Inside the truck was a "shaved" ignition key sticking halfway out of the ignition. Leffler reached inside and was able to start the truck using the key. He found a pair of black gloves and a single latex glove on the front seat. Leffler testified that a shaved key is a common burglary tool used in auto thefts. A file is used to wear down the teeth, so it will fit the ignition. Appellant was searched and Leffler recovered another latex glove and an "Ilco" key, which can be altered to fit any ignition, particularly in Hondas or Toyotas.
Defense Evidence
Appellant testified that, at approximately 4:30 p.m. or 5:00 p.m., he arrived at the home of his friend, Devon. There, he met a woman and her boyfriend who invited him to join them at a bar. They drove together, arriving at about 6:00 p.m. or 7:00 p.m. At approximately 10:00 p.m., the boyfriend asked appellant if he could return at 2:30 a.m. to help them move a truck to Long Beach.
Appellant agreed. He went home and returned to the bar's parking lot at 2:30 a.m., and followed the couple to a beige Toyota truck. The woman handed him two keys and said one would start the truck. Appellant assumed the other was a door key. One of the keys had been ground down. Appellant put that key in the ignition. It only went partway in, but started the truck. The couple told appellant to follow them to Long Beach, but did not say precisely where they were going.
After appellant had driven one block, he realized that he had left his lighter in the Lexus. He drove back to the car and retrieved the lighter and a pair of motorcycle gloves. Appellant returned to the pickup and drove away. He then noticed several patrol cars following him, and suspected the truck might be stolen.
The Lexus was registered to appellant's sister.
Appellant did not think it odd that the couple asked for his help, even though one could have driven one car and the other followed in the truck. He was not concerned that the woman did not know which key started the vehicle, and the key only went halfway into the ignition. He was not made suspicious by the fact that two strangers asked him to follow them in a truck to an unknown location. Appellant explained his behavior by saying, "I'm a nice guy," and "I made a commitment to help them out and I wasn't going to back out." He testified that he wore motorcycle gloves because it was cold. He put the latex gloves on first, so the other gloves would slide on more easily.
DISCUSSION
At trial, appellant testified that the name of the woman who had given him the keys was "Miss Blair." On cross-examination, he admitted that he had not known the couple's names on the night of the offense. The following exchange occurred:
"[Prosecutor:] [W]hen you were interviewed by the police after you were arrested, you said you didn't know their names; is that correct?
"[Appellant:] Yes.
"[Prosecutor:] As you are testifying today, you're saying the girl's name is Miss Blair; is that correct?
"[Appellant:] I read the police report.
"[Prosecutor:] Objection, your honor. Motion to strike as hearsay.
"[The Court:] Sustained. Stricken.
"[Defense Counsel:] Excuse me. [The prosecutor] asked him that.
"[Prosecutor:] That's hearsay, your Honor.
"[The Court:] That he read the report, it is hearsay. Sustained.
"[Prosecutor:] Motion to strike.
"[The Court:] Stricken."
During closing argument the prosecutor emphasized that appellant could not remember Blair's name on the date of the offense, but was able to remember it one year later.
Appellant argues that the trial court's exclusion of his testimony violated due process by depriving him of the right to present a defense. He contends he should have been allowed to explain how he learned Blair's name. Exclusion of his response "allow[ed] the prosecutor to leave the impression with the jury that appellant's testimony was a recent fabrication and not what he told the police that night." Appellant asserts that he was further prejudiced by the prosecutor's repeated challenges to his credibility.
The foregoing claim fails because the exclusion of evidence based on state law does not implicate a defendant's federal constitutional right to present a defense. (People v. Abilez (2007) 41 Cal.4th 472, 503; People v. Phillips (2000) 22 Cal.4th 226, 238; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The federal Constitution guarantees criminal defendants an opportunity to present a defense; however, states retain broad latitude to establish rules excluding evidence from criminal trials. (United States v. Scheffer (1998) 523 U.S. 303, 308; Crane v. Kentucky (1986) 476 U.S. 683, 690-691; California v. Trombetta (1984) 467 U.S. 479, 485.)
"Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Such a ruling is subject to the standard of review articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cunningham, supra, at p. 999; People v. Fudge, supra, 7 Cal.4th at p. 1102.)
It is unlikely that the excluded evidence would have changed the jurors' impression of appellant's credibility. He testified that two strangers asked him to drive a truck to Long Beach at 2:30 a.m. He agreed to assist them, without knowing their identities, their precise destination, the reason for moving the truck, or why it was to be moved at that hour. Appellant's credibility was already in question because he had admitted two prior burglary convictions. The jury was instructed that it could consider these priors in assessing the credibility of his testimony. Appellant also admitted that, on the night of his arrest, he stated that his friend's name was Greg. At trial, he testified that the friend's name was Devon. He did not give police Devon's true name because he did not want to get him involved.
Evidence of appellant's guilt was overwhelming. He was apprehended while driving a stolen truck, which he had started by using a shaved ignition key. An officer had seen him open the door with a glove between his hand and the door handle. On the seat was a pair of motorcycle gloves and a latex glove. Appellant had in his possession another latex glove and a type of key commonly used in car burglaries. Evidence that appellant had learned Blair's name from reading the police report was a minor point. It did not interfere with his right to present a defense. (People v. Cunningham, supra, 25 Cal.4th at p. 999.) It is not reasonably probable that a result more favorable to appellant would have been reached had his testimony concerning the police report been admitted.
Alleged Instructional Error
Appellant filed a new trial motion challenging the trial court's exclusion of his testimony, which we addressed above. He also claimed the court erred by instructing the jury with CALCRIM No. 361, concerning a defendant's failure to explain or deny adverse testimony. He argued that that there was no evidentiary basis to support the instruction.
The court instructed the jury on a Friday. On Monday, the jury began deliberations. After they had left the courtroom, defense counsel told the court that CALCRIM No. 361 should not have been given sua sponte, unless the court made findings to justify giving the instruction. Counsel stated, "I don't know what we can do about it now. I didn't want to bring it up before the jury, but that just rerings the bell that it should not have been given."
The prosecutor responded that he had not submitted a set of requested instructions but, had he done so, he would have included a request for CALCRIM No. 361. He stated that "in this case there were at least a few instances where the defendant was confronted with incriminating evidence and failed to provide some reasonable explanation. So I certainly would have requested it myself. If the court or counsel is looking for specifics, I can point to specifics in his examination. His failure or inability to explain why he didn't think certain things were suspicious. His inability to explain adequately his conduct in this case." The court noted the defense objection and concluded that it "believe[d] there were facts that a jury could look at to determine that, in fact, he did fail to explain or deny certain things."
Appellant subsequently filed his new trial motion, which the court denied. CALCRIM No. 361 provides that "If the defendant failed in [his] testimony to explain or deny evidence against [him], and if [he] could reasonably be expected to have done so based on what [he] knew, you may consider [his] failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
At the hearing on the new trial motion, the trial court stated that it had given both counsel packages of proposed instructions, which included CALCRIM No. 361, and neither side objected. Defense counsel claimed that he did not receive a package of instructions from the court or prosecution.
Appellant bases his argument on the Bench Notes to CALCRIM No. 361 that state in part, "Before an instruction on this principle may be given, the trial court must ascertain as a matter of law: (1) if a question was asked that called for an explanation or denial of incriminating evidence; (2) if the defendant knew the facts necessary to answer the question or if some circumstance precluded the defendant from knowing such facts; and (3) if the defendant failed to deny or explain the incriminating evidence when answering the question. [Citations.]" (Judicial Council of Cal. Crim. Jury Instns. (2011) Bench Notes to CALCRIM No. 361, p. 138.)
We independently review a claim of instructional error. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.) CALCRIM No. 361 is appropriate when there are facts or evidence in the prosecution's case within the defendant's knowledge which he did not explain or deny. (People v. Saddler (1979) 24 Cal.3d 671, 682; People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) It appears that the trial court's decision to give the instruction was due to appellant's failure to explain why he agreed to help strangers move their truck from Santa Fe Springs to Long Beach in the early morning hours.
However, the court issued the instruction without first identifying incriminating evidence that appellant failed to explain or deny. Even if we assume there was no proper basis to instruct the jury with CALCRIM No. 361, any error was harmless. (People v. Saddler, supra, 24 Cal.3d at p. 683 [applying standard in People v. Watson, supra, 46 Cal.2d 836 to determine prejudice]; accord, People v. Lamer, supra, 110 Cal.App.4th at pp. 1471-1472.) It is not reasonably probable that a result more favorable to appellant would have been reached had the challenged instruction not been given. Accordingly, there is no basis for his claim of cumulative error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
YEGAN, J.
Debra Cole-Hall, Judge Superior Court County of Los Angeles
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.