Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS223842 David M. Gill, Judge.
BENKE, Acting P. J.
A jury convicted Hoang Minh Tran (Hoang) of aiding a prisoner's escape (Pen. Code, § 4534). The trial court sentenced Hoang to eight months in prison.
Because Hoang Minh Tran shares a surname with the escapee in this case, for the sake of clarity we refer to each individual by his first name.
All statutory references are to the Penal Code.
Hoang contends the trial court erred in denying his motion for a new trial because the court inadvertently instructed the jury with the consciousness of guilt instruction, which the parties and the court previously agreed would not be given. Hoang also contends he was denied due process of law because the court failed to instruct the jury that it needed to find him guilty beyond a reasonable doubt as to every element of the crime charged. As discussed below, we reject both contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prisoner Escape
Police arrested Hoang on October 9, 2008, on unrelated criminal charges (which were the subject of a separate appeal, discussed briefly post). A parole officer arrested another man, Tuan Tran (Tuan), that same day. The two men were co-defendants in a felony case pending trial, and are of the same nationality and of similar physical appearance.
Hoang and Tuan were both booked into the central jail. Each received a standard-issue identification wristband, which included biographical information and a small photo. In the month following their arrests, deputies separately moved Hoang and Tuan among various jail cells and facilities. However, the two men had substantial contact at least twice during their incarceration and extensive and repeated contact on the day of Tuan's escape. Hoang and Tuan also swapped wristbands several times while they were incarcerated.
On October 29, 2008, family members posted bail for Hoang. However, the jail released Tuan, who had assumed Hoang's identity. Tuan provided deputies and the jail's release clerk with Hoang's wristband and biographical information. Tuan's escape became known when Hoang's bail bondsman complained of Hoang's continued incarceration after bail was posted for Hoang.
When deputies contacted Hoang in jail, they found him without a wristband. Hoang initially claimed to have lost the wristband in the showers. After deputies told Hoang they could review video footage of the shower entrance and exit, he changed his story and claimed he was unsure where he lost the wristband.
Detectives fingerprinted Hoang and secured his positive identification. They then conducted a roll call of jail inmates and found Tuan missing. Detectives collected evidence from surveillance footage and the jail cells of Tuan and Hoang and booked Hoang for aiding Tuan's escape from custody.
B. Trial Proceedings
At trial, the parties stipulated to the removal of CALCRIM No. 362—the consciousness of guilt instruction—from the jury instructions. The court accepted the stipulation. However, before closing argument the court inadvertently read CALCRIM No. 362 to the jury. The court also read CALCRIM No. 200 (discussed post).
The version of CALCRIM No. 362 read by the court provided as follows: "You have to do some fact finding—but if you find that Mr. Tran made a false or misleading statement relating to the crime with which he's charged, knowing that that statement was false or with the intent to mislead the person or persons to whom the statement was made, that conduct may show you that, ah, Mr. Tran was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] It's up to you to decide if you find that he made such statement or statements. It's up to you to decide the meaning, the significance of any such statements. And, certainly, that evidence cannot, by itself, prove his guilt. You have to first decide whether he knowingly, intentionally made a false or misleading statement. If you find he did, then you consider that evidence as part of the evidence. You decide the weight, the significance. But that evidence alone, of course, is not sufficient to prove his guilt." (Italics added.)
Outside the presence of the jury, counsel informed the court that it read CALCRIM No. 362 to the jury. The court noted its oversight and in response removed CALCRIM No. 362 from the final packet of written instructions given the jury for its use in deliberations. However, the court elected not to orally admonish the jury regarding the oversight because the court did not want to draw more attention to the issue. The record shows trial counsel did not disagree with the trial court's handling of this matter.
After his conviction, Hoang moved for a new trial. He claimed the court's instruction of CALCRIM No. 362 to the jury gave the impression that evidence did exist to sustain its mention, contrary to the stipulation of the parties. Hoang argued this impression prejudiced the jury against him.
The trial court rejected Hoang's new trial motion, ruling CALCRIM No. 362 did not have mandatory or automatic effect. It reasoned the application of CALCRIM No. 362 initially depended on whether the jury found Hoang in fact lied about the crime charged: if the jury made this finding and CALCRIM No. 362 became operative, the instruction was not superfluous. Conversely, if the jury did not find Hoang lied about the crime, the instruction would be inapplicable and Hoang would not be prejudiced by it.
DISCUSSION
I
Jury Instructions
Hoang contends the court abused its discretion when it denied his new trial motion on the basis it inadvertently instructed the jury with CALCRIM No. 362 in contravention of the parties' stipulation. We disagree.
A. Standard of Review and Governing Law
" 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' " (People v. Williams (1988) 45 Cal.3d 1268, 1318, abrogated on another ground as stated in People v. Guiuan (1998) 18 Cal.4th 558, 560-561; see also People v. Davis (1995) 10 Cal.4th 463, 524.) An erroneous instruction, no matter how egregious, justifies a reversal only if it caused a " 'miscarriage of justice, ' " which "should be declared only when the court, 'after an examination of the entire cause, including the evidence, ' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
An appeal from a conviction may include a review of an order denying new trial. (§ 1237; People v. Williams (1973) 36 Cal.App.3d 262, 264, fn. 1.) In reviewing a motion for a new trial, the trial court is "guided by a presumption in favor of the verdict and proceedings supporting it." (People v. Davis, supra, 10 Cal.4th at p. 524.)
"In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Nor do we limit our consideration to "only parts of an instruction or one particular instruction." (People v. Smith (2008) 168 Cal.App.4th 7, 13.)
B. Analysis
After reviewing the entire record, we conclude the trial court articulated the appropriate standard of review for a new trial motion and properly exercised its discretion when it denied Hoang's motion. First, the record shows the jury was properly instructed with CALCRIM No. 200. Specifically, the trial court instructed the jury "any decision in this case will depend on the facts, the evidence and the law. So your [the jury's] two basic responsibilities as a juror are, first, to be a judge of the facts, to decide what facts have or have not been provided to you by the evidence, and then to become a decision-maker by applying the law as you find it applicable to the evidence and to the facts proved to you by that evidence."
The version of CALCRIM No. 200 then-applicable provided as follows: "Members of the jury, I will now instruct you on the law that applies to this case. [I will give you a copy of the instructions to use in the jury room.] [¶] You must decide what the facts are. It is up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial. [¶] Do not let bias, sympathy, prejudice, or public opinion influence your decision. [¶] You must reach your verdict without any consideration of punishment. [¶] You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions. [¶] Pay careful attention to all of these instructions and consider them together. If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it. [¶] Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings. [¶] Some of these instructions may not apply, depending on your findings about the facts of the case. [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."
As to the latter point, the trial court further instructed the jury that it was the court's "duty and responsibility to instruct you on the law. You must accept the court's instructions on the law, regardless of any personal likes or dislikes or attitudes or opinions you may have. But you have the ultimate decisive responsibility of applying that law as you find it applicable to the evidence and to the facts proved to you by that evidence."
Thus, the trial court informed the jury that not all instructions may apply to the facts of this case, including, by way of example only, CALCRIM No. 362. "Read as a whole, CALCRIM No. 200 makes it abundantly clear in straightforward language that it is the jury who decides the facts and the jury who determines which instructions apply to those facts." (People v. Anderson (2007) 152 Cal.App.4th 919, 929.)
Second, the record establishes the court was mindful of Hoang's due process rights and took adequate steps to preserve them when it removed CALCRIM No. 362 from the final instructions given the jury. The court created an ample record as to why it did not orally admonish the jury that CALCRIM NO. 362 was inadvertently given by the court despite the parties' stipulation, explaining it thought such an additional instruction would be more prejudicial than helpful to Hoang. We conclude this was a proper exercise of the trial court's discretion on this issue.
Third, in denying the new trial motion the trial court found there was sufficient evidence to support instructing the jury with CALCRIM No. 362 irrespective of the parties' stipulation. We agree. Indeed, when deputies contacted Hoang in jail, the record shows they found him without a wristband and he initially claimed to have lost the wristband in the showers. After deputies told Hoang they could review video footage of the shower entrance and exit, he changed his story and claimed he was unsure where he lost the wristband. Such evidence supports the consciousness of guilt instruction.
" '[C]ounsel... may agree as to the facts, but they cannot control this court by stipulation as to the sole, or any, question of law to be determined under them. [¶] When a particular legal conclusion follows from a given state of facts, no stipulation of counsel can prevent the court from so declaring it.' [Citations.]" (People v. Castillo (2010) 49 Cal.4th 145, 171; see also § 1124 ["The Court must decide all questions of law which arise in the course of a trial."].)
Thus, although the trial court out of an abundance of caution removed CALCRIM No. 362 from the packet of written instructions given the jury for use in its deliberations, the record shows there was sufficient evidence for this instruction to be given.
Fourth, assuming arguendo the trial court "erred" when it instructed the jury with CALCRIM No. 362, we conclude that error was not prejudicial. The record contains ample evidence to show Hoang aided in Tuan's escape. (See People v. Guerra (2006) 37 Cal.4th 1067, 1148 [the court presumes harmless error for superfluous jury instructions where the jury returns a conviction in light of substantial evidence]; see also People v. Watson, supra, 46 Cal.2d at p. 836.) For this separate and independent reason, we conclude the trial court did not abuse its discretion when it denied the new trial motion of Hoang.
II
Burden of Proof
Hoang next contends the trial court erred in giving the revised version of CALCRIM No. 220 because it did not instruct the jury that in order to find Hoang guilty of the offense charged, the prosecution had to prove each element of the offense beyond a reasonable doubt. Hoang previously made this argument in a separate appeal before this court (D055729). We rejected his argument then, and do so again here.
"Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) This court has explained that "[w]hether an instruction correctly conveys this [reasonable doubt] standard must be determined by examining the instruction in the context of all the instructions given the jury." (People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601, citing Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239].) Moreover, we apply a de novo standard of review in determining whether an instruction correctly states the law. (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.)
As we noted in Hoang's previous appeal, recent California case law on this issue upholds the revised version of CALCRIM No. 220 as legally adequate when, as in the present case, the jury also was properly instructed regarding the need to prove the elements of the underlying offense. (See People v. Riley (2010) 185 Cal.App.4th 754, 770; People v. Henning (2009) 178 Cal.App.4th 388, 405-406; People v. Ramos, supra, 163 Cal.App.4th at pp. 1088-1089.)
In the present case, the trial court gave CALCRIM No. 220 as well as CALCRIM No. 2760, as adapted, which enumerated the elements the prosecution was required to prove in order to find Tran guilty under section 4534. Indeed, the jury was instructed that a defendant in a criminal case is presumed innocent, that this presumption requires the People prove "each and every one of the four essential elements of the crime" beyond a reasonable doubt and that "when we talk about the People's burden of proof, we are talking about proof beyond a reasonable doubt." Thus, on this record we conclude the trial court did not error when it instructed the jury pursuant to CALCRIM No. 220.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: NARES, J.O'ROURKE, J.