Opinion
F042605.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEVORNE WARE, Defendant and Appellant.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dibiaso, Acting P.J., Vartabedian, J., and Cornell, J.
SUMMARY OF PROCEEDINGS BELOW
Appellant Johnny Levorne Ware was convicted after a jury trial of failing to register as a sex offender. The trial court found that appellant had suffered a prior serious felony conviction within the meaning of Californias Three Strikes Law and had served a prior prison term. Appellant was sentenced to the upper term of three years, doubled, plus one year for the prior prison term enhancement, for a total term of seven years.
At trial the issue was whether appellant, a long haul truck driver who was registered as a sex offender in Lancaster, California, had moved into a house rented to Lynn Golden in Rosamond, California. Both appellant and Golden testified that appellant did not live in the home with Golden and her children, but only visited on occasion. Golden testified that appellant did not live with her and simply left a few personal items — jogging clothes, tooth brush, etc., at her house for use when he visited. Neighbors of Golden testified they had seen appellant helping when Golden moved into the house, and they saw him regularly at the house and in the neighborhood. Appellant testified he lived in his truck in Lancaster, and although he had helped Golden move, he had only stayed there overnight once or twice. Appellant admitted giving the Rosamond address as his when renting a storage unit in Lancaster, but claims he used it because he only had a post office box address in Lancaster. Golden testified another friend, Art Bonner lived with her. Kern County Deputy Sheriff Dennis Gagnon testified that Golden had told him that appellant had been living with her on a full time basis since they moved into the house and she never mentioned Bonner.
DISCUSSION
The single issue on appeal is whether the trial court improperly instructed the jury with CALJIC No. 2.21.2, which permits the jury to distrust as untrue the whole of a witnesses testimony if it finds that the witness has been false in a material part of his or her testimony. Appellant argues the instruction violates due process because it encouraged the jury to reject his testimony and that of a witness favorable to him (Golden), thereby diminishing his ability to raise a reasonable doubt as to his guilt.
The instruction reads as follows:
"A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless, from all of the evidence, you believe the probability of truth favors his or her testimony in other particulars."
Assuming without deciding that appellant has not waived his claim of error for failing to object to the instruction at trial, we reject appellants contentions and will affirm.
See People v. Daya (1994) 29 Cal.App.4th 697, 710 ["defendant is not entitled to remain mute at trial and scream foul on appeal for the courts failure to expand, modify, and refine standardized jury instructions"]; People v. Wader (1993) 5 Cal.4th 610, 645 [trial court not required to given former version of CALJIC 2.21.1 sua sponte].
As appellant concedes, the challenged instruction has been repeatedly upheld as a correct statement of law, most recently in People v. Millwee (1998) 18 Cal.4th 96, 159. (See also People v. Beardslee (1991) 53 Cal.3d 68, 94 [instruction has been repeatedly approved as a correct statement of the law]; People v. Lang (1989) 49 Cal.3d 991, 1023; People v. Allison (1989) 48 Cal.3d 879, 895.) As the court in Millwee explained, "[b]y its own terms, CALJIC No. 2.21.2 permits — but does not require — a general inference of distrust where testimony is `willfully false in `material part. The instruction also authorizes rejection of the witnesss testimony as a `whole only where appropriate based on `all the evidence." (Millwee, supra, 18 Cal.4th at p. 159.)
There is no reason to believe the jury would conclude CALJIC No. 2.21.2 was primarily aimed at the testimony of appellant and Golden. "The instruction is phrased in neutral fashion and applies to witnesses called by either side." (Millwee, supra, 18 Cal.4th at p. 159; see also People v. Turner (1990) 50 Cal.3d 668, 699 [applying neutral standards of credibility to defense witnesses does not improperly lessen the prosecutions burden].) In any event, appellant is not entitled to "a false aura of veracity." (Millwee, supra, at p. 160.) The state Supreme Court in People v. Beardslee, supra, 53 Cal.3d at p. 95, rejected an almost identical claim as that made here by appellant and concluded the instruction did not shift the burden of proof to the defense. The state Supreme Court in Beardslee cited with approval an earlier statement made in People v. Blassingill (1988) 199 Cal.App.3d 1413, 1419, "CALJIC No. 2.21 does nothing more than explain to a jury one of the tests they may employ in resolving a credibility dispute."
As an intermediate appellate court, we are bound to follow this well reasoned and settled line of authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The instruction was properly given.
DISPOSITION
The judgment is affirmed.