Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV701129, Gerard S. Brown, Judge.
Alan Macina, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Marilyn L. George, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Craig Robert Boroch appeals from a jury conviction for a single count of petty theft with priors in violation of Penal Code section 666. He claims prejudicial error because the trial court admitted statements he made to an investigating officer and instructed the jury the statements could be used to show a consciousness of guilt.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, the manager of a building demolition project testified there were two large recycling bins on the site used for scrap metal taken out of a 300,000-square-foot building while it was being demolished. The manager explained that scrap metal and other recyclable materials from a demolition project have considerable value to the construction company. The value of recyclable materials is considered when the company is bidding a contract because it “can virtually lower the price” of the contract “by hundreds of thousands of dollars.” No trespassing signs were posted on the fence, and because of prior thefts, the site was patrolled by a security company at night.
On the morning of May 4, 2007, one of the recycling bins was half full, and the other had just been emptied. On the ground around the bins, there were piles of scrap metal about two and one-half feet high over an area of 10 to 15 feet waiting to be loaded into the bins with a tractor. Some scrap metal items were inside a fenced area and some were not.
At approximately 10:45 a.m. on May 4, 2007, the manager, who was about 200 feet away, noticed an older white Dodge pickup truck near the scrap metal bins with the tailgate down, so he started walking toward the truck. When he was about 150 feet away, he saw defendant loading some of the scrap metal debris into his truck. The manager continued to walk toward the truck to see what was going on.
To get defendant’s attention, the manager yelled, “hey.” Defendant said, “don’t worry about me or something to that extent,” and began loading his truck faster. The manager estimated he saw defendant load three or four different items into his truck, which might have been worth $150 or $200. Defendant then got into the truck. As he got closer, about 75 feet away, the manager yelled, “Hey, what are you doing?” Defendant leaned out of his truck and yelled, “Oh, I’m just taking scrap.” He then drove off in his truck. As defendant drove off, the manager noticed the truck was so full of metal it was “almost dragging.” Other than the pieces he saw defendant load into the truck, the manager could not determine how much of the materials in the back of defendant’s truck had been taken from the construction site. While defendant was driving away, the manager typed the license plate number of the truck into his cell phone and then dialed 911.
During the investigation, the manager identified defendant as the individual he saw at the demolition site on May 4, 2007, from a six-pack photographic lineup.
Defendant did not testify at trial. During closing argument, defendant’s trial attorney argued no crime was committed, because the circumstances indicated defendant reasonably believed he was taking abandoned scraps or “stuff” the construction company did not “care about.”
The jury convicted defendant of petty theft with priors in violation of Penal Code section 666. Defendant admitted two prior convictions for petty theft within the meaning of section 667.5, subdivision (b), and a third prior conviction for petty theft with a prior was stricken. The trial court sentenced defendant to a total of four years in state prison: the middle term of two years for the theft, plus two consecutive terms of one year for each of the admitted prior convictions.
DISCUSSION
Admissibility
Defendant argues the trial court abused its discretion by denying a request to strike testimony by a detective about statements defendant made in an investigative interview. Defendant believes the statements were more prejudicial than probative under Evidence Code section 352 and should have been stricken. According to defendant, the statements were vague, irrelevant, and lacked the context necessary for the jury to understand them. Defendant argues he was prejudiced because the jury would not have convicted him if it was not permitted to consider this testimony.
The detective testified he arranged to meet defendant in a parking lot to talk to him about the case in public. Defendant arrived at the parking lot in a white Dodge pickup truck. The challenged testimony of the detective reads as follows:
“Q And what if anything did he tell you? [¶] . . . [¶]
“Q And you asked him about the theft that occurred on May 4, 2007?
“A I didn’t specifically go into the details of the theft, no. I was more interested in gaining knowledge about where stolen property was going.
“Q Did you ask him if he was involved in theft?
“A Directly, no.
“Q So why did he tell you he wasn’t involved in a theft? [¶] . . . [¶]
“THE COURT: . . . Why don’t you go through the conversation he had with him instead. [¶]
“Q Let’s start with the first thing you said to him.
“A Basically just general conversation. . . . Then I told him why I was talking to him. I requested if he could provide me with information where stolen property was going. He told me he wasn’t involved. That the incident that I was there about, he had lent his truck to a person named Willie.
“Q And the incident you were there about was the incident that occurred on May 4, 2007?
“A Yes, it was. [¶] . . . [¶]
“Q He said he lent his truck to an individual named Willie?
“A Yes.
“Q Did he give you any information about Willie?
“A Willie lived on Ninth Street in Upland. That was all.
“Q And what did you tell him at this point?
“A I advised him that he had been identified by a photo lineup as the person that was there when the incident occurred. [¶] . . . [¶]
“Q After you told him this, what did the defendant say?
“A He told me that he might have been there, but he did not take part in any theft.
“Q Did he say he might have been there with Willie?
“A Yes.
“Q And what did you tell him at this point?
“A I advised him that there was only one person in the vehicle and he was, once again, I.D.’d as the person from the photo lineup.
“Q And what did he tell you at this point?
“A He stated that he might have been out in the area, but he was not part of stealing anything, that he had been walking along the railroad tracks recycling metal he found along the way.
Counsel argued the detective’s testimony was only marginally relevant and was being offered to “create some kind of prejudice.” Counsel also complained the testimony was vague, because there was nothing to indicate the detective was specifically asking defendant about the incident on May 4, 2007. The trial court agreed the testimony was somewhat vague. However, the trial court focused on the specific answers defendant gave to the detective in response to his general questions, stating in pertinent part as follows: “The defendant’s own answers would seem to clarify that he knew exactly what was being talked about, Number 1; Number 2, false, evasive answers are certainly a very strong indication of a consciousness of guilt; and, Number 3, although there’s some vagaries here, these are vagaries that are very obvious to all of us, including the jury.” The trial court ruled the evidence was admissible because it was not more prejudicial than probative. In reaching its determination, the trial court stated “it is crystal clear to me by the answers given by the defendant to those questions, that he knew exactly what the officer was talking about.”
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s determination on the admissibility of evidence pursuant to Evidence Code section 352 is reviewed for abuse of discretion. (Ibid.) “ ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) “Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendant’s case based upon extraneous or irrelevant considerations.” (People v. Rogers (2006) 39 Cal.4th 826, 863.)
Defendant’s statements to the detective were highly probative because they tended to corroborate the testimony of the eyewitness who said he saw defendant’s vehicle at the scene and later identified defendant in a lineup. Defendant’s comments to the detective raised a permissible inference he knew what the detective was talking about, was familiar with the location the detective was asking him about, and had been there recently. Any ambiguity in the detective’s testimony as to whether defendant admitted being present at the scene during a specific time period only affects the weight of the evidence, not its admissibility. As defendant’s trial counsel acknowledged in her argument, she was free to argue the evidence was exculpatory because it was vague as to time and because defendant denied any wrongdoing. Although damaging, the detective’s testimony is not the type of evidence that raises legitimate concerns of undue prejudice. The trial court therefore acted well within its broad discretion under Evidence Code section 352 when it declined to strike the detective’s testimony.
Consciousness of Guilt Instruction
Defendant also argues it was erroneous for the trial court to give an instruction that allowed the jury to consider defendant’s statements to the detective as indicative of a consciousness of guilt. Defendant believes his statements “fail to raise an inference that he lied about anything” and only show he gave reasonable responses to the detective and denied stealing.
The jury was instructed (pursuant to CALCRIM No. 362) as follows: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
The People incorrectly assert defendant forfeited this claim by failing to make a timely objection in the trial court. (People v. Benavides (2005) 35 Cal.4th 69, 100 [appellate review is not waived where a defendant fails to timely object to an instruction on consciousness of guilt].)
“Guilty knowledge, as well as intent to violate the law, may be shown by the facts and circumstances in the case, including the conduct of an accused, and any false or misleading statements he may make to the arresting officers or others with relation to material facts, for the purpose of misleading, or warding off suspicion. Such conduct is receivable in evidence as indicating a consciousness of guilt, and such false statements, though not conclusive of guilt, may strengthen inferences of guilt arising from other facts.” (People v. Turner (1948) 86 Cal.App.2d 791, 801.) A cautionary instruction is required whenever the prosecution relies on evidence to show a consciousness of guilt. (People v. Thornton (2007) 41 Cal.4th 391, 438.) The instruction is proper even if the only evidence that the defendant’s statement is false or misleading is its inconsistency with the prosecution’s case at trial. (People v. Arias (1996) 13 Cal.4th 92, 141.) “The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) “The inference of guilt suggested by the instruction is a permissive one. The jury is admonished that ‘such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.’ ” (People v. Rankin (1992) 9 Cal.App.4th 430, 436.)
Here, the manager’s testimony not only identified defendant as the thief, but also put defendant’s truck at the scene of the crime. Given this strong evidence of guilt, the jury could reasonably conclude defendant’s statements to the detective were either false or misleading and were calculated to deflect suspicion. We therefore conclude a consciousness of guilt instruction was appropriate.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., GAUT, J.