Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. MF006640A, Kenneth C. Twisselman, II, Judge.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural history
Appellant Kentry Shawn Walker was convicted after a jury trial of three felony counts of vandalism (Pen. Code, § 594, subd. (b)(1), counts two, three, and five; two misdemeanor counts of vandalism (§ 594, subd. (b)(2)(A), counts one and six); and one misdemeanor count of contributing to the delinquency of a minor (§ 272, count seven). In a bifurcated proceeding, the trial court found true the allegations that Walker had suffered two prior strike convictions within the meaning of section 667, subdivisions (c)-(j) and section 1170.12, subdivisions (a)-(e), a juvenile robbery and carjacking.
All further references are to the Penal Code.
At sentencing, the trial court denied Walker’s motion to reduce the felony offenses to misdemeanors but agreed to strike one of his prior strike convictions. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court imposed the mitigated term of 16 months, doubled on count two, and consecutive eight-month sentences, doubled on counts three and nine, for a total term of five years, four months, in prison. The court imposed a one-year term for each of the three misdemeanor counts, to be served concurrent to the prison term.
FACTUAL HISTORY
In the early hours of September 14, 2004, a number of vehicles parked in Mojave, California, were damaged when someone threw rocks at them. One of the targeted vehicles was a Kern County Sheriff’s Department patrol car parked at a well-lit car dealership. This last act of vandalism was witnessed by a citizen driving by and occurred between 2:00 a.m. and 4:00 a.m. The citizen saw a young Black male, wearing a long-sleeved, checkered shirt, throw a rock through the windshield of the patrol car and return to a light grey or blue compact car that was parked nearby. The citizen reported that he could not determine how many people were in the car, but saw that someone other than the young male was driving it. He also said that any occupants of the car would have a clear view of the vandalism. The citizen called the police.
At approximately 3:30 a.m., Deputy Coster located a car matching the description and initiated a traffic stop in order to investigate the vandalism. He saw as he approached the car a young Black male wearing a long-sleeved, checkered shirt sitting in the back seat. Coster also saw a rock the size of a golf ball resting in the center console of the car. There were three additional passengers in the car, all female. The young Black male was a juvenile, as was one of the female passengers. The citizen who had reported the vandalism came to the location and was able to identify positively the car and the male juvenile.
Coster asked Walker, who was the driver of the car, where he was coming from. Walker answered that he had just picked up the three women and they were going to the store. After the occupants were removed from the car, more rocks and rock dust were found in the back seat of the car. The rocks were of the same color and type as those used to vandalize the patrol car.
Defense witness Tara McKenzie testified that the car’s occupants had been together since 1:00 a.m. that night and were on their way home from Denny’s when the male juvenile asked to relieve himself. She said the car stopped at the dealership for only a minute and she heard nothing to suggest a car window had been broken because they were playing loud music. She did not see where the male juvenile went because she did not look. After stopping near the car dealership, they drove to her mother-in-law’s house and then to the store, but were never in the area where the other damaged cars were parked.
DISCUSSION
I. Miranda
Walker contends that his statement to Deputy Coster that he had just picked up his female passengers and was headed to the store was made in response to a custodial question without him first having been advised of his rights. As a result, the statement was admitted in violation of the Fifth Amendment and the rule of Miranda v. Arizona (1966) 384 U.S. 436. We review de novo the trial court’s determination that the statement was not made in response to a custodial interrogation. (People v. San Nicolas (2004) 34 Cal.4th 614, 642.)
The rule of Miranda applies only to custodial interrogations. (People v. Mickey (1991) 54 Cal.3d 612, 646.) A person temporarily detained and subjected to investigatory questions pursuant to a routine traffic stop is not in custody for purposes of Miranda. (Berkemer v. McCarty (1984) 468 U.S. 420, 438-440; People v. Forster (1994) 29 Cal.App.4th 1746, 1754; see also People v. Bell (1996) 43 Cal.App.4th 754, 760 [ordinary traffic stop treated as investigatory detention].) A traffic stop is justified at its inception if based on at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Miranda (1993) 17 Cal.App.4th 917, 926.)
Deputy Coster stopped Walker because the car he was driving matched the description of the car connected to the vandalism of the patrol vehicle. In fact, Walker has not challenged the underlying reason for the stop. When Coster originally approached the car, he told Walker he was investigating acts of vandalism and asked Walker where he was coming from. Walker, who was not in custody, was still seated in the car with his keys in the ignition. Coster’s observation of the male juvenile sitting in the back seat (who matched the description of the vandal) does not change the traffic stop into a custodial detention. This is true even though the observation may have heightened the officer’s suspicions and justified a prolonged detention for further investigation. (See People v. Russell (2000) 81 Cal.App.4th 96, 102 [circumstances that develop during detention may provide reasonable suspicion to prolong detention].) “There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]” (Ibid., citing United States v. Sharpe (1985) 470 U.S. 675, 686-688.)
Coster testified that while he was talking to Walker he noticed the rock on the center console and asked if he could search the car. When Walker consented, Coster discovered the rocks in the back seat. Although his suspicions may have been further aroused as he observed who and what were in the car, Coster’s initial conversation with Walker was very limited. Walker was not physically restrained, placed in handcuffs, or directed to say or do anything. It was only later that Coster told Walker he was no longer free to leave. We conclude that Walker was not in custody for purposes of Miranda when he answered Coster’s question. There is no Fifth Amendment error. (People v. Carpenter (1997)15 Cal.4th 312, 384.)
Even if there was error, however, it was harmless beyond a reasonable doubt. The testimony of McKenzie, Walker’s passenger, was of little assistance to Walker when considered in light of the whole record, even in the absence of any inconsistent statement by Walker. McKenzie, although admitting they had stopped near the car dealership, said they did not drive to where the other cars were vandalized. She also stated that she did not get home from work until 1:00 a.m. As a result, she could not account for Walker’s actions prior to that time. She said they only stopped at the dealership for a short time because the male juvenile needed to relieve himself. While there, she could not hear what he was doing and did not look in his direction when the patrol car was vandalized. McKenzie’s testimony relates only to her limited knowledge of what the male juvenile was doing. It says nothing about what Walker knew. In any event, it does not establish an alibi defense since the owners of the other vandalized cars testified that their vehicles could have been damaged as early as 10:00 p.m. on September 13—a time period when McKenzie was not with Walker.
The evidence of guilt in this case is strong. Even if Walker’s statement had been excluded, the jury very likely would have returned the same verdict.
II. Instructional error
Walker next contends that the trial court erred when instructing the jury. He claims that 1) the court was required to instruct sua sponte that the jury must find that Walker had the specific intent to aid and abet the male juvenile, and 2) the court erred when it gave instructions on how to evaluate lay and expert opinion testimony because there was no opinion testimony to be considered. We reject both contentions.
A. Specific intent
The trial court instructed the jury as follows:
“Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include, one, those who directly and actively commit the act constituting the crime or, two, those who aid and abet the commission of the crime. [¶] A person aids and abets the commission of a crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime and, three, by act or advice aids, promotes, encourages, or instigates the commission of the crime. [¶] A person who aids and abets the commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” (Italics added.)
The court also told the jury that the crimes charged were all general-intent crimes that required a union of acts or conduct and general criminal intent, and that general criminal intent does not require an intent to violate the law. This is a correct statement of the law. The court did not give CALJIC No. 3.31, which would have instructed the jury that there must be a union or joint operation of act or conduct and a specific intent in the mind of the perpetrator, and that, unless this specific intent exists, the defendant cannot be found guilty of the crime charged.
In assessing whether the jury instructions were erroneous, we consider them as a whole and assume the jurors were capable of understanding them. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) Even if we were to assume that it would have been more prudent to give CALJIC No. 3.31, the instructions that were given advised the jury it could find that Walker was either a principal or an aider and abettor. Even if the jury chose the latter, the jury was told it had to find that the person aiding and abetting did so with knowledge of the unlawful purpose of the perpetrator and with “the intent or purpose of committing or encouraging or facilitating the commission of the crime .…” (CALJIC No. 3.01.) This instruction is sufficient to ensure that the jury found the requisite specific intent to convict on an aider-and-abettor theory of liability. We must presume the jury understood and followed its instructions. (People v. Cain (1995) 10 Cal.4th 1, 52.) The fact that one instruction lacks an essential element does not mean it cannot be provided in another instruction. Likewise, confusion in one instruction may be cured by a second. (People v. Bolin (1998) 18 Cal.4th 297, 328.)
In any event, even if there was instructional error on this point, it was harmless. (People v. Breverman (1998) 19 Cal.4th 142, 165 [instructional error not reversible unless record establishes reasonable probability that it affected outcome].) The citizen’s testimony and identification; the rocks and dirt found in the car and their similarity to those located in the damaged vehicles; the age of the juvenile; Walker’s role as driver during the vandalism of the patrol car; and the small chance that in a town the size of Mojave there would be more than one car driving around vandalizing cars by throwing rocks at them on a single night, are strong evidence that Walker had the required specific intent as either a principal or as an aider and abettor and was guilty as charged.
B. Opinion testimony
The trial court gave CALJIC Nos. 2.80 and 2.81 on how to evaluate opinion testimony. Respondent contends that these instructions were requested by Walker, a position unsupported by the record. The record does show that the prosecutor did not request them, but it does not show that Walker requested them—only that he did not object to them. Since Walker has alternatively framed this issue as an ineffective-assistance-of-counsel claim, we will address his objection on the merits.
First, we conclude that there was opinion evidence and, as a result, the instructions properly were given. Deputy Coster testified as an expert that he did not believe Walker was under the influence when stopped. (People v. Ojeda (1990) 225 Cal.App.3d 404, 408 [officer, based on experience and training, can give expert opinion on whether driver is intoxicated].) Coster also gave his lay opinion that the rocks found in Walker’s car were similar in color and texture to those located in the patrol car. In addition, the citizen witness testified that the car he observed was light gray or blue. (United States v. Skeet (9th Cir. 1982) 665 F.2d 983, 985 [lay witnesses may give opinions about things of common occurrence such as size and color].) The instructions given regarding opinion testimony were correct statements of the law and were responsive to the evidence.
Secondly, even if the evidence did not support the instruction on opinion testimony, we would conclude that any error is harmless. Our state Supreme Court has stated that instructional error is not reversible unless an examination of the record establishes a reasonable probability that the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Walker contends that there is prejudice because the instructions gave more credibility to Deputy Coster’s testimony. To the contrary, Coster’s testimony was not particularly harmful to Walker. Coster simply testified that he stopped Walker and found a male juvenile (ultimately identified as the vandal of the patrol car) and several rocks in the car. The jury saw pictures of the rocks in Walker’s car and the rocks that were thrown at the various vehicles. The inferences to be drawn from this evidence did not rest on Coster’s credibility alone.
III. Alibi defense
Walker claims he was denied effective assistance of counsel when his counsel failed to request an alibi instruction. He claims the crux of his defense was the alibi evidence presented by McKenzie who testified regarding his whereabouts on September 14 between 1:00 a.m. and approximately 3:30 a.m.
To succeed on a claim of ineffective assistance of counsel, Walker must show that his counsel’s performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms. He must show prejudice, i.e., that it is reasonably probable, but for counsel’s failings, that the result would have been more favorable to Walker. (People v. Riel (2000) 22 Cal.4th 1153, 1175.)
Walker does not meet this burden. First, as we have already explained, McKenzie’s testimony does not provide him with an alibi. The alibi instruction Walker contends should have been given states that “[t]he defendant in this case has introduced evidence for the purpose of showing that [he] … was not present at the time and place of the commission of the alleged crime for which [he] … is here on trial.” (CALJIC No. 4.50.) In direct contrast, McKenzie’s testimony places Walker at the scene of the patrol car vandalism and does not preclude his presence at the scene of the other three. She cannot account for Walker’s location from 10:00 p.m. to 1:00 a.m. In light of this evidence, a request for an alibi instruction was unwarranted. In any event, Walker cannot show prejudice for the reasons we have already stated.
Having found no error in the trial proceedings, we reject Walker’s contention of cumulative error. (People v. Beeler (1995) 9 Cal.4th 953, 994.)
IV. Sentencing error
Finally, Walker contends that the trial court was obliged to stay the sentence imposed for count seven (contributing to the delinquency of a minor) because the same acts constituted the offenses for which punishment was imposed on the other counts. Respondent agrees that the sentence should have been stayed pursuant to section 654. We accept the concession and order the sentence imposed on count seven stayed.
DISPOSITION
The judgment of conviction is affirmed. The sentence is modified to stay the sentence imposed on count seven. The court shall prepare a new abstract of judgment and send copies to the appropriate authorities.
WE CONCUR: Gomes, J., Hill, J.