Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Ct. No. 2009032089 Kevin G. DeNoce, Judge
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
David Richard Booth appeals his conviction by jury for attempted robbery with personal infliction of great bodily injury (Pen. Code, §§ 664/211; 12022.7, subd. (a)) and battery causing serious bodily injury (§ 243, subd. (d)). The trial court sentenced appellant to five years state prison. We modify the sentence to impose a mandatory $60 court security fee (§ 1465.8, subd. (a)(1)) and a $60 criminal conviction assessment (Gov. Code, § 70373). The judgment, as modified, is affirmed..
All statutory references are to the Penal Code unless otherwise stated.
Facts
The evidence, viewed in the light most favorable to the judgment, shows that the victim Raymond Hill met appellant, Jacob Wilson, and Robert Kale at a park in Ventura on September 1, 2009. Hill was drinking, had more than $350 on his person, and had just been released from a mental health facility. Hill was loud and boisterous, flashed his money, and offered to buy alcohol. Appellant told him to leave because "you're starting to piss some of the people off."
Appellant, Wilson, and Kale walked down to the beach. Wilson and appellant talked about robbing Hill, but Kale thought it was joke. Appellant saw Hill later that evening and invited him to drink with them.
Standing in a circle under the pier, the group shared a beer with Hill. Then, appellant punched Hill in the face and punched him four or five more times. After Hill fell down, Wilson punched and kicked him and went through his pockets. Hill heard appellant say, "make sure he's dead, finish him off." As Wilson went through his pockets, someone said "Get everything, get everything" and "keep beating him, I'm not going down for this."
Diego Gomez and Jana Gomez were leaving a restaurant and heard Hill moaning. They saw three men run out from under the pier. One of the men turned to go back. Another man said, "Did you get it all?" and "Forget it. Forget it. Let's just go. Let's get outta here."
Hill stumbled out from under the pier and said that he had been beat up and robbed. Jana Gomez called 911. Diego Gomez followed appellant, Kale, and Wilson to the beach promenade at California Street.
After the police arrived and detained the three attackers, Diego Gomez and Jana Gomez identified them. Hill said that $300 was taken from his pocket and identified appellant, Kale, and Wilson as the robbers. Hill said that appellant was the first to hit him and "the one who started everything." The money was never found.
Hill was transported to the hospital and treated for a lip laceration, a fractured nose, and head trauma. He complained of broken teeth and pain in the chest, stomach, back and right ankle.
Kale told the police that appellant punched Hill and helped Wilson go through Hill's pockets. "I told 'em to stop, but they wouldn't stop."
Appellant waived his Miranda rights (Miranda v. Arizona (1996) 384 U.S. 436 [16 L.Ed.2d 694]) and, in a taped interview, said that Hill grabbed Wilson's neck and tried to grab appellant. Appellant claimed that he punched Hill in self-defense and punched him only once. Appellant repeatedly denied taking Hill's money. A redacted tape recording of the interview was played to the jury.
Redacted Police Statement
Appellant argues that the trial court abused its discretion by ruling that the jury could not hear the entire police interview. During the interview, the officer told appellant that Kale and Wilson had said that appellant was involved in the robbery. Appellant repeatedly denied going through Hill's pockets. The officer said, "You're gonna have to stand up and start being honest, because your little story isn't the truth."
The prosecution introduced a redacted tape of the interview, excluding part of the interview in which the officer played back Wilson's statement. Appellant was insolent and told the officer to tell Kale and Wilson what appellant had to say: " I'm saying I don't know what the fuck they did, cause I – basically I'm the one that's the fucking evil robber that beats people up and goes through their pockets?"
The officer told appellant to "[w]atch your tone with me!!" and "I'm gonna put you down on the ground right now, boy." Appellant said "I'd love that, " taunting and provoking the officer further. The officer warned if appellant didn't "chill, " that he would "put a taser in your neck...." "[A]ll I'm asking is the truth from you... [¶]... You have no remorse! " Appellant replied, "I wish that didn't have to happen. I didn't want that to happen."
The officer said, "You chill – look at me! You chill your voice with me, you don't get that way. I'll put a taser in your neck and I'll put you on the god damn ground and twist you up in a heart beat! You think you can handle it? Can you take me? No, you can't! Try it!! Watch your god damn tone!!"
Appellant requested that the excerpt be played to the jury because the officer acted "unprofessionally " and it "sheds light into the officers' mindset in terms of what they're looking for." Citing People v. Jacobs (2000) 78 Cal.App.4th 1444, the trial court ruled that appellant's statement was self-serving and exculpatory and, if admitted, could open the door to impeachment. The prosecution argued if the entire interview was admitted, that it would impeach appellant based on three prior juvenile adjudications, a felony conviction, and three misdemeanor convictions.
The court stated: "It's really a [Evidence Code section] 352 ruling. I have to balance a lot of things. Jacobs isn't really clear about this exculpatory/non-exculpatory rule.... But I have to do a 352, I have to analyze the potential prejudice of the defendant's priors and the consumption of time and the confusion and a trial within a trial.... [¶] I don't think it survives a 352 analysis, to answer your question directly. If that's all the defense is seeking to put on, I don't think the probative value of those priors outweighs the potential prejudice.... [¶] Now, if the defense, you know, wants to start introducing other and more statements of the defendant in the interview under [section] 356, ... at some point in time the defendant's credibility becomes so significant with respect to the statements he's asking to introduce, that I think under 352 analysis, the scales would start to tip in favor of the People and those priors would come in."
We review for abuse of discretion. Evidence Code section 356 provides that where one party introduces part of a conversation, the opposing party may admit any other part necessary to place the original excerpts in context. (People v. Pride (1992) 3 Cal.4th 195, 235.) The purpose of section 356 is to prevent the use of selected aspects of a conversation, so as to create a misleading impression on the subject addressed. (People v. Williams (2006) 40 Cal.4th 287, 319.) "By its terms section 356 allows further inquiry into otherwise inadmissible matter only, (1) where it relates to the same subject, and (2) it is necessary to make the already introduced conversation understood." (People v. Gambos (1970) 5 Cal.App.3d 187, 192.) Additional statements may be excluded if they do not clarify or explain the redacted statement or where the additional statements have marginal probative value and the proponent of the evidence will not be seriously prejudiced by their exclusion. (See e.g., People v. Von Villas (1992) 10 Cal.App.4th 201, 271.) "[A] trial court has broad exclusion to exclude evidence it deems irrelevant, cumulative, or unduly prejudicial or time-consuming. (Evid. Code, § 352.)" (People v. Pride, supra, 3 Cal.4th at p. 235.)
The trial court reasonably concluded that the excised statements were exculpatory and self-serving and not necessary to clarify the redacted interview. Evidence Code section 356 insures that out-of-court statements, if received into evidence, are viewed in their proper context. (1 Witkin, Cal. Evidence, Circumstantial Evidence (4th ed. 2000) § 36, p. 368.) Consistent with this principle, the trial court ruled that if appellant wanted to introduce the taser threat statements, the statements should be considered in the full context what appellant said to provoke the officer.
Appellant argues that the trial court erred in excluding the excised statements under Evidence Code section 352. The trial court agreed the taser threat statements on clerk's transcript pages 356-357 "ha[ve] some bearing upon the defendant's statements [in the redacted tape]... in terms of they're being spontaneous, voluntary...." It ruled that under section 352, the prosecution would not be permitted to introduce impeachment evidence as to those statements.
Appellant was warned that if he introduced further additional statements, it would open the door to impeachment. (People v. Jacobs, supra, 78 Cal.App.4th 1444.) The trial court cited, as an example, the last few pages of the interview in which appellant was asked, "Is there anything else that you left out or anything else that needs to be added to your statement that's truthful?"
Appellant responded, "I might've seen him [Hill] before on Main Street."
The officer said, "That's not what I'm talking about. I am talking about 'did you go through his pockets?' That's what I'm talking about. "
Appellant responded, "No, sir. No, I did not. I did not take anything from him. No."
The trial court stated "that really is an exculpatory, self-serving statement, and if the defendant was asking that that come in under [section] 356, that that would open the door to the People impeaching."
Appellant did not object and is precluded from arguing that the trial court erred or abused its discretion. (Evid. Code, § 353; People v. Raley (1992) 2 Cal.4th 870, 892.) As a matter of trial tactics, appellant withdrew the request to admit additional statements and agreed the defense was not asking for the statements to come in pursuant to Evidence Code section 356.
Assuming, arguendo, that the trial court misapplied section 356, the error was harmless. (People v. Arias (1996) 13 Cal.4th 92, 156-157.) The evidence shows that appellant beat and attempted to rob Hill. Before Hill arrived at the pier, Kale overheard appellant and Wilson talk about robbing Hill. Appellant invited Hill to drink with them and punched Hill five or six times as Wilson went through Hill's pockets. Kale, appellant's best friend, told the police that he saw appellant go through Hill's pockets. It was damning evidence.
Kale's statement was corroborated by the cuts on appellant's and Wilson's hands, Hill's injuries, and by Hill. As Wilson went through Hill's pockets, Hill heard someone say, "Get everything, get everything." The jury drew the inference that it was appellant who told Wilson to "Get everything" and to "Keep beating him, I'm not going down for this." Diego Gomez and Jana Gomez saw appellant, Wilson, and Kale run away. As Wilson turned to walk back to Hill, appellant asked "Did you get it all? and "Forget it. Forget it. Let's just go."
Appellant repeatedly denied involvement in the robbery. Most of the interview was received into evidence and included a recording of the officer yelling at appellant, all of which was considered by the jury. It is not reasonably probable that appellant would have received a more favorable result but for the exclusion of the additional statements that were cumulative and of marginal probative value. (People v. Arias, supra, 13 Cal.App.4th at p. 157.) Nor has appellant shown that the evidentiary rulings denied him a fair trial. (See e.g., People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [application of ordinary rules of evidence to admit or exclude evidence does not infringe on defendant's due process right to fair trial].)
Conspiracy Instructions
The jury was instructed on evidence of uncharged conspiracy (CALCRIM 416), liability for coconspirator's acts (CALCRIM 417), statements by a coconspirator (CALCRIM 418), and acts committed or statements made before joining conspiracy (CALCRIM 419). Appellant argues that the instructions were confusing but did not object on that ground and forfeited the claim.
On the merits, the instructions correctly stated the law. It is well settled that instructional error is not determined by isolated parts of the instructions or from one particular instruction. (People v. Smithery (1999) 20 Cal.4th 936, 963-964.) Rather, we read the instructions as a whole to determine whether there is a reasonably likelihood they confused or misled the jury. (See e.g., People v. Hughes (2002) 27 Cal.4th 287, 341.) It is presumed the jurors understood, correlated, and correctly applied the instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Appellant takes issue with CALCRIM 417 which states that the jury did not have to find that appellant conspired to commit a robbery (count 1) in order to find him guilty of battery (count 2). Appellant asserts the jury did not have to find that appellant conspired to commit a robbery to convict him of battery. He argues that the jury should have been instructed that it could return a guilty verdict on just the robbery charge, just the battery charge, or both charges.
The CALCRIM 417 instruction stated that a conspirator is criminally responsible for criminal acts in furtherance of the conspiracy that are a natural and probable consequence of the conspiracy. "To prove that the defendant is guilty of the crime charged in Count 2 [battery], the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: robbery; [¶] 2. A member of the conspiracy committed battery causing serious bodily injury to further the conspiracy; [¶] AND [¶] 3. Battery causing serious bodily injury was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit."
The argument is specious because the battery was not in dispute. Appellant admitted punching Hill and said that he may have punched Hill three times. Kale said it was five to six punches.
The trial court instructed on co-conspirator liability, direct perpetrator and aider and abettor liability, and that "[s]ome of these instructions may not apply, depending on your findings about the facts of the case." (CALCRIM 200.) The jury was instructed: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." (CALCRIM 3515.) CALCRIM 416 stated: "The People contend that the defendant conspired to commit the crime of robbery." The jury was not instructed that it could find appellant guilty of attempted robbery based on a conspiracy theory.
The jury returned a not guilty verdict on the robbery count. It found appellant guilty of battery and the lesser crime of attempted robbery based on overwhelming evidence. But for the alleged instructional error, there is no reasonable likelihood that appellant would have received a more favorable result. (See e.g., Neder v. United States (1999) 527 U.S. 1, 17-18 [144 L.Ed.2d 35, 52-53]; [overwhelming evidence rendered alleged instructional error harmless]; People v. Chun (2009) 45 Cal.4th 1172, 1204-1206 [same].)
Abstract of Judgment
The Attorney General argues that the abstract of judgment incorrectly states that a $40 aggregate court security fee was imposed (§ 1465.8, subd. (a)(1)). The trial court failed to impose a mandatory $30 court security fee (§ 1465.8, subd. (a)) and a mandatory $30 criminal assessment fee (Gov. Code, § 70373) on each conviction. Where mandatory fees are not reflected in the abstract of judgment or imposed at oral pronouncement of judgment, the judgment may be modified on appeal. (See e.g., People v. Smith (2001) 24 Cal.4th 849, 852-853 [failure to impose mandatory parole revocation fine pursuant to § 1202.45 may be corrected by appellate court]; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328 [§ 1465.8 court security fees].)
We modify the judgment to impose a $60 aggregate court security fee (§ 1465.8, subd. (a)(1)) and a $60 aggregate criminal assessment fee (Gov. Code, § 70373). The trial court is directed to prepare an amended abstract of judgment and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The judgment, as modified, is affirmed.
We concur: GILBERT, P.J., PERREN, J.