Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR68587
ROBIE, J.
Defendant Mark Thomas Boles appeals from the judgment of conviction after a jury found him guilty of arson, possession of an incendiary device, and attempt to burn a vehicle. He contends the trial court prejudicially erred when it instructed the jury on consciousness of guilt with CALJIC No. 2.03. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Diane R. lived in a house in Los Molinos. Several years before the fire resulting in the charges at issue here, defendant had been to Diane’s house. He entered in the middle of the night and went to Diane’s daughter Dawna’s bedroom. At the time, Dawna was approximately 14 or 15 years old. Defendant was in his 30’s or 40’s. He woke Dawna up and said, “‘I have seen you outside before, thought you were pretty, wanted to know if you want to go party.’” Dawna said no and he left. Later that night, he returned, asking if she had changed her mind.
We mean no disrespect to the victims; however, for ease of identification, we will refer to them by their first names.
Diane and Dawna called the police and filed trespassing charges. The police spoke to defendant afterwards, but he was never charged. About one year before the fire, defendant went to Diane and Dawna’s house again and was forced to leave by Diane. At trial, defendant claimed he had not been to the house before the night of the fire, suggesting perhaps his brother was the one who had been to the house before.
Approximately 11:00 p.m. on the night of the fire, some residents of the house were on the front porch. Diane was not home. Defendant walked up to the house, asking if someone could give him a ride. John, one of the residents, offered to give defendant a ride. Dawna told defendant he was not welcome at the house.
Anthony, another of the residents, asked Dawna why defendant was not welcome at the house. She told him about the trespassing incident several years back. Anthony instructed John not to give defendant a ride and then punched defendant. Defendant fell to the ground and Anthony kicked him. Defendant left.
Later that night, the house burned down. Several friends were staying with Diane in the house at the time. Approximately 3:00 a.m., one of the residents awakened to find the front porch of the home on fire. She woke the rest of the house and they all exited through the back.
California Department of Forestry and Fire Protection Battalion Chief David Harp investigated the fire. He interviewed several witnesses, including defendant. During his interview with defendant, Harp asked him about his experiences with Diane and Dawna. At first, defendant stated he did not know Dawna. Later in the interview, he acknowledged he did know who she was, but under a different last name. He stated he had not been involved in the alleged trespass. He also claimed Diane was lying about the other incident a year after the alleged trespass, stating he had not been to the house then either.
Defendant was tried on charges of arson, possession of an incendiary device, attempt to burn a vehicle, and seven counts of attempted murder. During his first trial, there was a jury deadlock resulting in a mistrial.
At the second trial, prior to jury deliberations, the trial court instructed the jury with CALJIC No. 2.03 on consciousness of guilt. The second jury found defendant guilty of arson, possession of an incendiary device, and attempt to burn a vehicle.
CALJIC No. 2.03 provides as follows: “If you find that before this trial, [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
DISCUSSION
Defendant contends the trial court erred by instructing the jury with CALJIC No. 2.03. Defendant argues the instruction was improper, as “there is no evidence in the record of any false or misleading pretrial statement by the defendant.” The People argue the instruction was justified by defendant’s statements to Harp claiming he did not know the victims.
The People are correct. Defendant’s own testimony supported a finding that during his pretrial interview, he told Harp he did not know Dawna. Later in the interview, defendant acknowledged he did know Dawna, but he claimed she had a different last name at the time. During the interview, he admitted he had been questioned by the police about Dawna because of the trespassing allegation. Thus, defendant’s own testimony would have supported a finding that he made a false statement to Harp. Diane’s and Dawna’s testimony also supported a finding that the initial statement to Harp was false. Diane testified defendant had been to the house before. She stated he had come to Dawna’s to invite her to “party.” Diane also testified defendant had come back to the house a year later. Dawna testified that defendant had been to her house before to ask her if she wanted to “party.”
A trial court may instruct the jury on consciousness of guilt using CALJIC No. 2.03 if a jury could find a defendant’s pretrial statements to be false, either by the defendant’s own testimony at trial or the testimony of other witnesses. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1102-1103.) Therefore, the trial court did not err in instructing the jury on consciousness of guilt.
DISPOSITION
The judgment is affirmed.
We concur: RAYE , Acting P.J. HULL , J.