Opinion
A128977
08-24-2011
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. BASHALA PAUL BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. CH48444)
Defendant Bashala Paul Brown appeals the judgment and sentence imposed following his jury-trial convictions for second degree robbery (Pen. Code, § 211),carjacking (§ 215), and assault with a firearm (§ 245, subd. (a)(2)). We affirm the judgment of conviction. We also strike the trial court's fee order.
All further statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of December 7, 2009, Mohit Basandrai and Antonio C. (a minor) drove to a local gas station to meet a person, later identified as defendant, who wanted to buy a laptop computer. K.H. (a minor) had arranged the meeting between Basandrai and defendant after K.H. learned Basandrai had a laptop for sale. Basandrai arrived at the gas station and K.H. and defendant approached his car. Basandrai handed them the computer and they examined it. Defendant agreed to buy the computer. He then asked Basandrai for a ride to his mother's house so he could borrow money for the purchase. Basandrai agreed and defendant and K.H. got in the back seat of the car. While driving to defendant's mother's home, defendant brandished a gun and ordered Basandrai to pull over. Basandrai pulled over and defendant tapped Antonio C. on the head with the gun and demanded that Antonio C. and Basandrai hand over their cell phones. Antonio C. surrendered his cell phone and defendant told him to get out of the car. Antonio C. got out of the vehicle and ran to shelter behind a garbage can. At this point, defendant got out of the back seat, opened the driver's door and fired his gun in the air. Frightened by the gunshot, Basandrai immediately got out the car and handed over his cell phone to defendant. Defendant got back in Basandrai's car and drove off with K.H. When defendant left, Basandrai and Antonio C. went to Basandrai's house to call the police and report the vehicle as stolen.
Later that evening, police located Basandrai's vehicle and set up surveillance in an effort to locate the suspects. Police officers observed two individuals who matched the description of the suspects walking towards Basandrai's vehicle. Both suspects ran when they saw the police. Police eventually detained the suspects. Antonio C. and Basandrai attended separate in-field shows ups for each suspect. Antonio C. identified K.H. as the younger suspect involved in the robbery and defendant as the person with the gun. Basandrai failed to make an identification. Instead, he "kept putting his head down" and "not looking at [the suspect] to see if he can identify him." He asked the officers, "You guys found my car, right?" and stated, "I just want my car back." K.H. told police that defendant's name was Paul Brown. K.H. also admitted that he was with defendant when the gun was brandished and Basandria's car was taken. Police searched defendant and recovered a bullet of the same caliber as the shell casing recovered at the scene of the crime.
Subsequently, in May 2010, the Alameda County District Attorney (DA) filed an amended information charging defendant in counts one and two with second degree robbery (§ 211) of Basandrai and Antonio C.; in count three with carjacking (§ 215); and in count four with assault with a firearm (§ 245, subd. (a)(2)) on Antonio C. Additionally, the DA alleged defendant personally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm during the commission of the alleged offenses (§ 12022.5, subd. (a)). The DA also alleged defendant suffered a prior felony carjacking conviction.
The case proceeded to trial, at the conclusion of which the jury returned a verdict of guilty on all counts. The jury also found true the weapons allegations. Thereafter, the prosecution moved to dismiss the prior felony strike conviction for the purposes of sentencing, and the court dismissed that conviction. At a hearing held on June 28, 2010, the court sentenced defendant to a total term of 27 years 4 months in state prison. Defendant filed a notice of appeal the next day.
DISCUSSION
A. Background
Before trial, the district attorney filed a motion in limine contending that two threatening letters, received by Basandrai and revealed to Antonio C., were relevant to witness credibility and should be admitted into evidence pursuant to Evidence Code section 780. In response, defendant sought an order prohibiting the prosecution from introducing the letters and all related testimony because there was no evidence defendant sent them to the victim. Defendant asserted the letters were highly prejudicial because the jury could infer defendant was responsible for the letters and consider them as evidence of his guilt. After a hearing on pretrial motions, the court ruled the letters were relevant to "the witness's [sic] state of mind and their credibility," and that, subject to a limiting instruction, the "probative value would outweigh prejudice."
Evidence Code 780 provides: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (j) His attitude toward the action in which he testifies or toward the giving of testimony." (Evid. Code § 780, subd. (j).)
At trial, the prosecutor introduced the letters through the testimony of Hayward Police Officer Angela Irizarry. Before Irizzary testified, the court read an instruction to the jury pertaining to the relevance of the letters: "During the trial letters sent to the alleged victim were admitted for a limited purpose of his state of mind, attitude, actions, bias, prejudice, presence or lack thereof of any of those factors. You may consider those letters only for that purpose and for no other." After reading the instruction, the court stated, "I'm going to read it again just so every juror has heard this." The court read the instruction a second time. Thereafter, Officer Irizzary read the letters to the jury. One of the letters states: "Check it out! You and your friend [Antonio C.] better not go to court or we gonna come get you. If you do go to court say that our nigga is not the guy that robbed you. If he don't come home, you DIE!" The other letter states: "We respect the fact that you didn't want to point no one out. In fact that shows u aint no snitch. But your friend [Antonio C.] is. So now we got a problem. If you or him goes to court on that carjacking or anything else, we have no choice but to kill you. As you can see we have your information. We know more than a little bit about you. Oh and trust me we'll find out if you or him tell the cops. So if I were you I'd tell your boy [Antonio C.] to say he pointed out the wrong person, and make sure you don't come to court. No one got hurt, and you got your vehicle back. Leave it at that. We really don't want to have to kill you or even worse, just kill your family so you can live with the guilt. That's only if our nigga don't get out. It's 'All on you.' . . . Cordially Submitted."
During the prosecution's case, Basandrai and Antonio C. testified regarding the threatening letters. Basandrai testified he received the letters at his house within about two weeks of the carjacking. He discussed the contents of the letters with his parents and told Antonio C. about them. After receiving the letters, Basandrai was afraid to testify. Antonio C. testified that he did not identify defendant at the preliminary hearing on account of the threatening letters.
During the defense case, defense counsel submitted a proposed stipulation regarding the defendant's custodial status. The prosecution did not object and the court read the stipulation to the jury "The defendant . . . has been in custody at Santa Rita jail since his arrest [on December 7, 2009]. At the jail, all phone calls by jail inmates are recorded. All inmate mail is subject to and may be inspected."
After presentation of evidence and argument of counsel, the court instructed the jury on the law of the case, including the limited purpose for which the threatening letters were admitted.
B. Analysis
Defendant contends the court abused its discretion under Evidence Code section 352 when it admitted the "threat evidence" because (1) the testimony of Basandrai and Antonio C. combined with the stipulation that defendant's mail was "subject to and may be inspected" while he was in custody, permitted the jury to infer that defendant was connected to the threatening letters; and, (2) the court should have expressly admonished the jury that it could not infer consciousness of defendant's guilt from the letters. We discuss these contentions in turn.
As we stated in People v. Jennings (2000) 81 Cal.App.4th 1301, "Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury." . . . 'The [trial] court's exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.' [Citation.]" (Id. at pp. 1314-1315.)
Preliminarily, we note that Basandrai and Antonio C. both testified about the effect of the threatening letters. Basandrai testified he was afraid to come to court on account of the letters. Antonio C. testified that he did not identify defendant at the preliminary hearing on account of the threatening letters. Thus, the letters in question were clearly relevant to the witnesses' state of mind and credibility, pursuant to Evidence Code section 780. (See People v. Harris (2008) 43 Cal.4th 1269, 1288 "Evidence that a witness is afraid to testify or fears retaliation is admissible because it bears on credibility" [citing cases]; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369 ["A witness who testifies despite fear of recrimination of any kind by anyone is credible because of his or her personal stake in the testimony[,] . . . [and] the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility"].)
In his opening brief, defendant suggests that even if the threat evidence was relevant to Antonio C.'s testimony given the inconsistency between his preliminary hearing testimony and trial testimony, it was not relevant to Basandrai's testimony because no similar inconsistency was established there. However, a prior inconsistency is only one of the several matters bearing on witness credibility admissible under Evidence Code section 780. The threat evidence here was relevant to Basandrai's "attitude toward the action in which he testifies or toward the giving of testimony." (Evid. Code § 780, subd. (j)).
The trial court, pursuant to Evidence Code section 352, ruled that the probative value of this relevant threat evidence outweighed any prejudicial effect, subject to a limiting instruction that the jury could only consider the letters for the purpose of showing the victim's "state of mind, attitude, actions, bias, prejudice, presence or lack thereof of any of those factors," and "may consider those letters only for that purpose and for no other" [italics added]. "Jurors are presumed . . . to have followed the court's instructions. [Citation]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Because the jury was clearly and unambiguously instructed in this manner, and we assume they followed the instruction as given, we conclude there is no reasonable likelihood that the jury received the letters as evidence of defendant's consciousness of guilt by inferring he was responsible for them. (See People v. Crew (2003) 31 Cal.4th 822, 848 ["Challenges to the wording of jury instructions are resolved by determining whether there is a reasonable likelihood that the jury misapplied or misconstrued the instruction"].) Accordingly, we find no abuse of discretion by the trial court in admitting the threat evidence subject to the limiting instruction that the jury could only consider it for the purpose of assessing witness credibility.
Defendant's reliance on People v. Weiss (1958) 50 Cal.2d 535, overruled on another ground in People v. Johnson (1980) 26 Cal.3d 557, 571, is misplaced. In that case, the California Supreme Court concluded it was error to admit hearsay evidence of a threatening phone call as evidence of consciousness of guilt where the record "is barren of any showing that the call was connected with or authorized by any defendant." (Id. at p. 553.) Here, the letters were not introduced as evidence of defendant's guilt: Rather, the letters were introduced for the strictly limited purpose of establishing the witnesses' state of mind, and the jury was so instructed.
We also reject defendant's contention that the court was required to expressly admonish the jury that it could not infer consciousness of defendant's guilt from the letters. First, we note defendant did not ask the trial court to include this express admonition in its limiting instruction. Accordingly, defendant may not complain on appeal that the limiting instruction was defective on that basis. (See People v. Spurlock (2003)114 Cal.App.4th 1122, 1130 ["The rule . . . is that ' "a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested an appropriate clarifying or amplifying language." ' (Citation.)"].)
In all events, this claim is meritless. As noted above, the trial court clearly and unambiguously instructed the jury that it could only consider the threat evidence for the purpose of assessing witness credibility. The court's instruction strictly limited the jury's consideration of the threat evidence at issue. Whereas the court, at defendant's request, could have added an express admonition that the jury should not infer defendant was behind the threats, it was not required to do so where its instruction was otherwise adequate. Further, none of the cases cited by defendant hold that if a limiting instruction on threat evidence admitted under Evidence Code section 780 does not include an express admonition that the jury should not attribute a threat to defendant, then it is defective as a matter of law. (See People v. Harris (1989) 47 Cal.3d 1047, 1071 ["It is axiomatic . . . that a decision does not stand for a proposition not considered by the court"].) Accordingly, our conclusion that the jury was properly instructed regarding its consideration of the threatening letters remains firm.
For example, in People v. Guerra (2006) 37 Cal.4th 1067, an automatic death penalty appeal, defendant claimed the trial court abused its discretion by admitting witnesses' testimony that they feared retribution upon return to Guatemala for testifying against defendant: The Supreme Court noted, "[T]he record suggests the witnesses exhibited hesitancy in responding to questions. The jury was entitled to consider their explanations in evaluating their credibility, and the trial court instructed the jury accordingly. Importantly, the trial court further admonished the jurors that if they believed the statements were made, they must not attribute them to defendant. Accordingly, the trial court properly exercised its discretion in admitting their testimony." (Id. at p. 1142 [italics added].) Thus, whereas the Supreme Court approved the trial court's further admonition, the Court did not address the issue of whether the limiting instruction would have been defective without it.
In sum, the letters in question were relevant to assessing witness testimony pursuant to Evidence Code section 780, and the trial court did not abuse its discretion under Evidence Code section 352 by ruling that, subject to a limiting instruction, their probative value outweighed any prejudicial effect.
Defendant also contends that admission of the letters violated his federal constitutional rights to due process. However, "[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913, citing Estelle v. McGuire (1991) 502 U.S. 62, 70.) Here, the admission of relevant threat evidence, subject to an unambiguous limiting instruction, did not render defendant's trial fundamentally unfair.
Last, regarding the sentence imposed, defendant contends there is insufficient evidence to support the trial court's imposition of a $250 probation investigation fee, pursuant to section 1203.1b. Respondent concedes that this issue is preserved for appeal despite defendant's failure to object below. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 [claims based on the insufficiency of the evidence to support the order or judgment need not be asserted below to be preserved on appeal].) Moreover, respondent submits there is no substantial record evidence that defendant had ability to pay the $250 probation investigation fee, and we agree. Accordingly, we strike the fee order.
DISPOSITION
The judgment of conviction is affirmed. The fee order is stricken.
Jenkins, J.
We concur:
McGuiness, P. J.
Pollak, J.