Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Nos. MF33375 & MF46413. Ronald W. Hansen, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Cornell, J., and Kane, J.
PROCEEDINGS
On January 8, 2004, appellant, Clinton Edward Ward, pled guilty to one count of possession of cocaine (Health & Saf. Code, § 11350) in case No. MF33375. Appellant was placed in a deferred entry of judgment program pursuant to Proposition 36. Appellant owed a $585 fee to a program at the time he was arrested in case No. MF46413. On May 9, 2008, the court found appellant’s performance in his program was unsatisfactory and he had the ability to pay the fee. The court entered judgment based on appellant’s plea in 2004.
On May 18, 2002, California Highway Patrol officers saw appellant’s car parked on railroad tracks with its high beam lights pointed toward oncoming traffic. Appellant did not have a driver’s license, vehicle registration, or automobile insurance. The officer determined appellant’s license had been suspended and prepared to have the car impounded. During an inventory search, the officer found.05 grams of cocaine base inside the car.
On February 27, 2008, an information was filed in case No. MF46413 charging appellant with attempted murder (Pen. Code, §§ 664 & 187, subd. (a), count one) and assault with a deadly weapon, a knife (§ 245, subd. (a)(1), count two). The information alleged appellant inflicted great bodily injury (§ 12022.7, subd. (a)) and used a deadly weapon, a knife (§ 12022, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
On April 24, 2008, a jury found appellant not guilty of attempted murder but guilty of the lesser offense of attempted voluntary manslaughter (§§ 664 & 192, subd. (a)). The jury convicted appellant of count two and found the enhancements were true. On June 2, 2008, the trial court sentenced appellant to prison for five years six months for attempted voluntary manslaughter and to consecutive sentences of three years for the great bodily injury enhancement and one year for the weapon enhancement. Appellant’s sentence for count two was stayed pursuant to section 654. The court sentenced appellant in case No. MF33375 to a consecutive term of eight months. Appellant’s total prison term is ten years two months.
On appeal, appellant contends the trial court erred in instructing the jury with CALCRIM No. 361. Appellant also contends the trial court violated his Fifth Amendment right not to testify against himself during the probation revocation hearing.
FACTS
Prosecution Case
On June 16, 2007, appellant had a conversation with Kimberly Ross concerning Nancy Saelee, appellant’s ex-girlfriend and the mother of two of his children. Appellant asked Ross about Saelee’s new boyfriend. Ross told him she knew nothing about that. Appellant told Ross he would find out who he is. Appellant told Ross “you’re going to read about a dead body in the paper whatever I do....” Ross was afraid for Saelee and contacted Saelee that evening to tell her what appellant said.
Ruben Herrera is Saelee’s boyfriend. Saelee was staying at her grandparent’s home. Herrera stayed with Saelee the evening Ross called. The morning of June 17, 2007, Saelee stayed home for a while because she had been sick the previous weekend. Herrera was helping her.
Appellant came over earlier that morning while Saelee was sleeping in the living room. Appellant rang the doorbell, but no one opened the door. Saelee’s mother called the police. An officer responded to the call and they filed a report that appellant had been there earlier. They called the police because appellant had been coming over every day and bothering them.
After the police left, Saelee and Herrera had a meal in the kitchen. Saelee’s grandparents were in their bedroom. There is a sliding glass door between the patio and the kitchen. As Saelee and Herrera were eating, appellant entered the kitchen through a sliding back door. Appellant said he did not want anyone around his kids. Appellant pulled out a pocket knife. Saelee was standing in front of Herrera trying to block appellant who was already trying to stab Herrera. Appellant again said he did not want anyone around his kids and started stabbing Herrera around Saelee. Saelee did not get stabbed or injured.
Saelee yelled for help from her grandparents. Saelee’s grandfather ran toward Herrera to push appellant away. Within a minute, Saelee was able to dial 911 after initially misdialing the number. Appellant exited the house and left in an older Cadillac. Herrera did not have a knife and was trying to block appellant’s attacks with his arm. Herrera never obtained possession of appellant’s knife.
Shortly after appellant’s arrest, he called Saelee from jail and asked her to change her statement. Saelee admitted that in another trial involving allegations of domestic violence by appellant against Saelee, she committed perjury by testifying that what she told the police was not true. Saelee said she did this because she listened to what appellant told her and she was afraid of him. In his conversation from jail, appellant told Saelee it would not be a problem for her to commit perjury because she had done so before.
Dr. Tony Yuk, a trauma surgeon, treated Herrera who was flown to the hospital. Herrera was in shock, had a tube down his windpipe, and the paramedics were breathing for him. Herrera suffered significant blood loss and was unconscious. Herrera had about 28 stab wounds. Without being flown to the hospital and receiving medical treatment, Herrera would have died. Some of the wounds, including one to the abdomen, damaged arteries. Herrera had four injuries to his hands and wrist, nine or ten to his forearms, seven to his head and neck, one to the abdomen, and several to his buttock. Herrera remembered nothing about the incident.
Defense Case
On June 17, 2007, Christina Jaimes was with appellant, who was going to pick up his kids, and a friend named Leslie Slaton. They were planning to take appellant’s kids to a barbeque. Jaimes stayed in the car while appellant entered the home through the front door. Jaimes believed appellant’s daughter opened the door for him to enter. According to Jaimes, appellant was inside the residence 10 or 15 minutes. When appellant left the house, he was breathing hard and scared. Appellant’s hands were bleeding and he looked worried.
Leslie Slaton testified that on June 17, 2007, she was with appellant and Jaimes. They went to Saelee’s home to pick up appellant’s children. Slaton thought appellant was inside the home for five or six minutes. Appellant came toward the car, running in the middle of the street. Appellant had blood on his hands and appeared scared. Appellant said some dude tried to stab him.
Appellant testified he had known Saelee about eight years. When Saelee found out appellant was dating Jaimes, Saelee jumped on Jaimes and beat her. Appellant said he had never seen Ross before the trial and denied having a conversation with her. Appellant had never met Herrera or heard of him prior to June 17, 2007.
Appellant went up the screen door of Saelee’s home. It was closed but the main door was open. Appellant’s daughter came up to the door and greeted appellant. Appellant proceeded into the house as he normally does. He picked up a diaper bag and a car seat. Appellant’s daughter told appellant that Saelee was in the kitchen. Appellant walked toward the kitchen.
When appellant approached the kitchen, a “guy jumped up hysterical like in a fight stance and, you know, I never knew who he was.” Appellant had never seen the man before and had no arguments with him. Appellant assumed the man was a boyfriend. Appellant said he was there to pick up the kids. Appellant’s daughter had told appellant about a man having sex with Saelee. Appellant told Herrera not to have sex in front of his daughter. Herrera replied, “fuck you.”
Herrera swung at appellant. Appellant did not notice that Herrera had a knife. As appellant defended himself, Herrera stabbed appellant in his hand and then cut appellant’s other hand. Appellant grabbed for the knife as Herrera was coming forward. Appellant was knocked down to his back. Appellant twisted the knife out of Herrera’s hand. Herrera began to hit appellant in the face and then everywhere. Appellant was afraid for his life and hit Herrera back with the knife. Saelee’s grandparents came and broke up them up. Appellant explained he did not premeditate to hurt Herrera. Appellant left through the front door and ran indirectly to his car.
Audio Tape
The jury heard an audio tape of a telephone conversation appellant had with Saelee from jail after he had been arrested. The jury also received transcripts of the tape. A portion of the tape was played. Appellant would not initially confirm that the male voice on the tape was his voice. After listening to more of the tape, appellant conceded it sounded like a call he made.
In the conversation, appellant told Saelee that he thought he did not know Herrera, but he was the same boy that shot at appellant in the projects. Appellant said Herrera was a Norteno from San Jose. Saelee denied appellant’s assertion. Saelee told appellant Herrera was not from San Jose. Appellant said Herrera had a criminal record.
Appellant testified that his references to Herrera during the telephone call from jail were based on information he learned after he was arrested.
Appellant was upset that Herrera was around appellant’s children and that everyone was looking for Herrera. Appellant asserted that he went to see his children that day and asked Saelee if she wanted him to go to jail for the rest of his life. Saelee replied appellant wanted to go to jail because he “did it.” Appellant accused Saelee of wanting to lie and to testify against him. Saelee asserted she was telling the truth and told appellant he brought it upon himself.
Appellant asked Saelee if she wanted him to be in jail the rest of his life and not see his kids. Saelee replied that obviously appellant wanted to be in jail the rest of his life. Appellant said he did not. They argued about their parents and about Jaimes.
Saelee insisted she was going to court to tell the truth. Appellant said, “You gonna do that to me?” Saelee again said was going to tell the truth. Appellant asked if that was how they were. Appellant said he “thought we were better than that.” Appellant told Saelee, Herrera “got your brain fucked up.” Saelee told appellant he was wrong. The conversation continued this way for some time. Saelee and appellant argued over their parents and their children.
Saelee said that if she had pulled out a knife and stabbed someone, she would have known the consequences of what she had done. The following colloquy then occurred:
CW: “Nancy, Nancy, Nancy, Nancy, Nancy. The boy [Herrera] ain’t gonna get in trouble. Ok? Just go ahead and tell the boy had the knife and he’s not gonna be in trouble.
NS: “No, why? Why lie in court.
CW: “Why lie?
NS: “I’m not gonna lie in court.
CW: “What are you talkin about? You already lied in court before.
NS: “No, eh. About what?
CW: “You remember when we went to jury trial? You lied in court before.
NS: “Oh, for, for you beatin on me to just tryin to help your ass out cause you made me to.
CW: “Nancy, I don’t know what you talkin about.
NS: “When we were still together.
CW: “You telling stories right there. You still made perjury in court.
NS: “Ok, that was the only time.
CW: “You still made perjury in court.
NS: “Lie and said you didn’t beat me when you did.
CW: “Nancy.
NS: “This is somethin totally different, (unintelligible).
CW: “Nancy. Oh, this is my life. My kids ain’t gonna see me. My kids can’t come see me.”
CALCRIM No. 361
Appellant contends the trial court erred when it instructed the jury with CALCRIM No. 361 because there was no evidence presented at trial that appellant failed to explain or to deny. Respondent acknowledges the instruction was improperly given, but argues appellant failed to object to the instruction and any error was harmless. As we explain, there was important evidence presented at trial that appellant failed to explain or refute.
CALCRIM No. 361 is similar in content to CALJIC No. 2.62 which the California Supreme Court upheld in People v. Saddler (1979) 24 Cal.3d 671, 680-681. CALCRIM No. 361 is consistent with Evidence Code section 413 that provides the trier of fact may consider a party’s failure to explain or to deny by his or her testimony evidence or facts against him or her. Both CALCRIM 361 and CALJIC No. 2.62 have overcome constitutional challenges that they improperly shift the prosecution’s burden of proof. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066-1068.)
The jury was instructed with CALCRIM No. 361 as follows. “If the defendant failed that [sic] his testimony to explain or deny evidence against him, and he could reasonably be expected to do 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 each element of the crime 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.”
Appellant argues that the instruction should not be given unless there is some specific and significant defense omission that the prosecution wishes to stress or the defense wishes to mitigate. A contradiction between a defendant’s testimony and other witnesses’ testimony does not constitute a failure to explain or to deny which justifies the instruction. The test is not whether the defendant’s testimony is believable. The instruction should not be given when a defendant explains or denies matters within his or her knowledge even if the explanation is improbable. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469 (Lamer).)
Appellant states that the prosecutor and court were silent as to what omission or gap in his testimony justified CALCRIM 361. Appellant argues his testimony was merely contradictory to the testimony of other witnesses and was not bizarre or implausible. Appellant characterizes the testimony at trial as a “he said/she said” dispute between two people who are estranged and hostile to one another.
During his telephone conversation with Saelee, appellant initially denies any involvement in attacking Herrera. These denials, alone, would not justify the use of CALCRIM 361. Appellant cites to several authorities in which the defendant denied all of the essential aspects of the prosecution’s case and use of the predecessor instruction was found to be improper. (See People v. Saddler (1979) 24 Cal.3d 671, 683 [defendant testified to alibi]; People v. Kondor (1988) 200 Cal.App.3d 52, 57 [defendant explained all facts within her knowledge, denying knowledge of fraudulent deed]; People v. James (1987) 196 Cal.App.3d 272, 296 [defendant explained all of the evidence against him]; People v. Marsh (1985) 175 Cal.App.3d 987, 994 [same]; People v. De Larco (1983) 142 Cal.App.3d 294, 309 [same].)
In each of these authorities although the use of the instruction was found to be improper, the error was found to be harmless.
As appellant’s conversation with Saelee progresses, however, it becomes clear that appellant is asking Saelee to commit perjury, as she had in the earlier domestic violence action brought against appellant. Appellant’s tone changes when Saelee tells him she is going to tell the truth. He asks Saelee if she is going to do that and says he thought they were better than that.
Appellant then insists four times that Saelee lied or produced perjury in the prior criminal action, expressly telling her that she must do so now to keep him out of prison. Appellant failed to explain or to deny the inconsistencies in the conversation from which, under Evidence Code section 413, the jury could question the credibility of appellant’s testimony. Appellant had no explanation or denial at trial that he was trying to persuade Saelee to commit perjury for him, as she had done before, to keep him out of jail. This was far more than the simple denial of culpability that appellant made at the beginning of the telephone call.
Furthermore, the prosecutor stated in his opening argument that appellant would do anything to dissuade Saelee from testifying. In his rebuttal argument, the prosecutor noted appellant tried to get Saelee to commit perjury because she had already done so and the purpose of appellant’s phone call was to try to dissuade Saelee from testifying against him. The prosecutor noted appellant’s attempts to dissuade Saelee from testifying showed consciousness of guilt. (See People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669-1670 [false statements to ward off suspicion are evidence of consciousness of guilt].)
We therefore reject appellant’s assertion that there was no evidence at trial he failed to explain or to deny. We further find respondent’s concession of this matter improvident. Appellant’s failure to provide an explanation or a denial of his attempt to dissuade Saelee from testifying at trial during his telephone conversation from jail justified the use of CALCRIM No. 361.
The jury obviously rejected appellant’s self-defense argument. Even if the use of CALCRIM 361 was given in error, we find that had instruction not been given, it is not reasonably probable that there would have been a more favorable result to appellant. (People v. Watson (1956) 46 Cal.2d 818, 836; Lamer, supra, 110 Cal.App.4th at p. 1471-1472.)
The jury was further instructed that some of the instructions may not apply depending on their findings and to follow those instructions that apply to the facts as it finds them.
ENTRY OF JUDGMENT IN PREVIOUS ACTION
Appellant contends the trial court violated his Fifth Amendment right against self-incrimination at the hearing on whether to enter judgment in the earlier action because he was not advised of his right not to testify at the hearing. Respondent argues that appellant’s testimony was not compelled because it did not carry the risk of future incrimination. We agree with respondent.
On May 9, 2008, the court conducted a hearing on the deferred entry of judgment in case No. MF33375 pursuant to section 1000.3. Appellant’s counsel requested that there be a hearing on appellant’s ability to pay $585 in outstanding program fees necessary for appellant to complete his drug treatment program. The court determined that its focus would be on appellant’s ability to pay from December 2006 until he was arrested in June 2007. Defense counsel sought to produce evidence concerning appellant’s ability to pay and called appellant as a witness during the hearing.
Appellant testified that in December 2006 he was receiving SSI disability payments. Appellant received about $700 per month. Appellant’s rent was $635 per month and his utilities close to $100 per month. Appellant paid about $100 per month for food. He owned a 1987 Cadillac that was in working condition. He also received as a gift from Saelee a Susuki motorcycle worth $1300 or $1400. The court found appellant only owed $585 and owned a motorcycle free and clear. The court found appellant had the financial ability to pay the fee. The court further found that appellant’s conviction of a felony disqualified him from dismissal of the earlier action.
If the invocation of the privilege against self-incrimination would lead to revocation of probation, this creates a classic penalty situation excusing the failure to assert the privilege. The probationer’s answers to questions would be deemed compelled and therefore inadmissible. (Minnesota v. Murphy (1984) 465 U.S. 420, 435.) The situation is different, however, if questions put to the probationer were relevant to his probationary status and posed no realistic threat of incarceration in a separate criminal proceeding. This is especially the case when the condition itself is not a criminal act. (Id. at p. 435, fn. 7)
The respondent argues appellant’s guilty plea was already entered and he was only asked about an outstanding fee and faced no future criminal prosecution from his answers. We agree. Appellant was not asked any questions other than about his probationary status and faced no threat of incarceration from his testimony. Indeed, appellant was called to testify by his own attorney. We therefore reject appellant’s contention that his Fifth Amendment rights were violated.
Even if we were to find appellant’s right not to incriminate himself was violated, appellant suffered no prejudice. Section 1000.3 does not permit the dismissal of a diverted criminal action where “the defendant is convicted of a misdemeanor that reflects the defendant’s propensity for violence, or the defendant is convicted of a felony....” The trial court found appellant had been convicted of a felony and did not qualify for dismissal of case No. MF33375. The trial court’s finding was correct. Because there is an additional basis for the trial court’s entry of judgment, any potential error concerning appellant’s right to incriminate himself was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
DISPOSITION
The judgment is affirmed.