Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF096686A
SCOTLAND, P. J.
A jury convicted defendant Ricky McClain Colding of the first degree murder of his former girlfriend, Jennifer Mitchell. (Pen. Code, §§ 187, subd. (a), 189; further section references are to the Penal Code unless otherwise specified.) A charge of attempted murder of Mitchell’s new boyfriend, David Taylor, was dismissed in the interest of justice after the jury was unable to reach a verdict on that count. A five-year prior serious felony enhancement was sustained (§ 667, subd. (a)), and defendant was found to have two prior serious felonies (strikes) within the meaning of the “three strikes law.” (§§ 667, subds. (b)-(i), 1170.12). He was sentenced as a second strike offender, rather than third strike offender, because both strikes occurred on the same date. Thus, the court imposed a sentence of 50 years to life for the murder plus five years for the prior serious felony conviction enhancement.
On appeal, defendant contends (1) witness Jammony Meadows’s in-court identifications of defendant violated his right to a fair identification procedure, (2) the trial court abused its discretion by precluding the defense from impeaching Taylor with his prior commission of burglary, and (3) the court erred by not instructing the jury sua sponte that defendant’s unrecorded oral statements must be viewed with caution. We shall affirm the judgment.
FACTS
Prosecution Case-In-Chief
Defendant and Mitchell used to be boyfriend and girlfriend. For two to three years between 2002 or 2003 and 2005, they lived together in Stockton with Mitchell’s children. When Mitchell ended the relationship, she “kicked [defendant] out of the house.”
Approximately six months prior to the murder, Mitchell began dating Taylor, who lived in Oakland. Thereafter, defendant started following Mitchell on different occasions. Once he chased Mitchell and Taylor as they were driving in Stockton. Another time, he drove over the raised median of a street and tried to hit Mitchell and her daughter, Jennifer Malone, with his car. When Mitchell confronted him about this, they argued. Upset and crying, Mitchell told her friend, Sonia Saxton, that defendant “was trying to kill [Mitchell]... because she... wanted to leave him.”
On June 11, 2005, Mitchell and Malone spotted defendant following them in his green Lexus. Around 9:45 p.m. that evening, Mitchell met Taylor at a local gas station and they departed together on Taylor’s motorcycle. Mitchell spotted defendant in his car and told Taylor about it. As Taylor continued driving down the street, he saw defendant make a U-turn and start following Taylor and Mitchell. Taylor headed eastbound on Houston Avenue, and his motorcycle and defendant’s car reached speeds of approximately 95 miles per hour. When the vehicles neared the T-intersection where Houston Avenue dead-ends at Manthey Road, Taylor tried to slow down and squeeze between a sport utility vehicle and the right side curb. Defendant’s car struck the motorcycle from behind, sending Taylor and Mitchell flying from the motorcycle to the ground.
As the incident was unfolding, Ingrid Icasiano was driving on Manthey Road when she saw what she believed was a “car race” on Houston Avenue. She stopped near the intersection and, although she did not see defendant’s Lexus hit Taylor’s motorcycle, she saw the motorcycle skidding down the road after the impact.
When defendant reached the intersection, he turned right onto Manthey Road and drove past Icasiano’s car. He then made a U-turn, went past Icasiano’s car again, and headed back down Houston Avenue. The second time defendant drove past her, Icasiano got the license plate number of defendant’s car and telephoned 911.
When Taylor saw defendant heading back down Houston Avenue, he jumped up off the ground and went to the sidewalk. Mitchell remained lying in the street. Without slowing down, defendant drove his car over Mitchell, killing her, and then fled from the scene.
Jammony Meadows was standing on Houston Avenue, saw what happened and, at the preliminary hearing and at trial, identified defendant as the driver of the car that rammed Taylor’s motorcycle and then ran over Mitchell.
When officers arrived at the scene, Taylor said Mitchell’s former boyfriend, “Ricky,” had run over them. Taylor subsequently identified defendant in a photo lineup as the driver who rammed into Taylor’s motorcycle and then ran over Mitchell as she lay in the street.
On June 29, 2005, officers found defendant’s Lexus in Fremont, where it had been left for some time. There was a three-inch or four-inch wide black rubber streak on the front bumper of the Lexus, just below a large dent in the “leading edge of the hood.” The streak “was consistent with a tire,” and an expert witness testified that the “black tire mark” and the damage to the hood of defendant’s Lexus were “consistent with [it] coming in contact with a motorcycle tire” and “the upper portion of the rear fender, rear tail light area on a motorcycle.” Streaks on the undercarriage of the Lexus were consistent with it “coming in contact with some large object that would remove the debris from underneath” the car.
A pathologist testified Mitchell died from multiple internal injuries--fractured ribs; punctures, lacerations, and bruising of her lungs; lacerations of her liver; fractured pelvis and femurs; and bleeding in her chest and abdominal cavities. Mitchell also had extensive abrasions of her skin that contained “grease-like staining.” Her injuries were consistent with being run over by a car.
Defense
While Officer Nicholas Nunez was performing his duties at the crime scene, he was approached by Meadows, who described what Meadows had witnessed (the car striking the back of the motorcycle and then running over Mitchell). He thought the car was a dark green four-door Honda Accord or Toyota Camry. When asked whether he had seen the driver of the car, Meadows indicated he had not.
Other officers, who had interviewed witnesses, testified that many of them were unable to identify the driver of the car.
A psychologist testified for the defense as an expert on eyewitness identification. She did not review any of the evidence in this case and did not offer any opinions regarding the witness identifications.
DISCUSSION
I
Defendant contends that Meadows’s in-court identifications, at the preliminary hearing and at trial, of defendant as the perpetrator of the crime violated defendant’s right to a fair identification procedure. We find no prejudicial error.
A
Preliminary examination
During the preliminary examination, the prosecutor indicated she intended to ask Meadows whether he could identify the driver of the car. At the scene of the crime, Meadows had said he did not see the driver. Nevertheless, the prosecutor explained that, when questioning witnesses in court, attorneys often “elicit more information than is in the police report.”
Defendant objected that his due process rights to a lineup and to avoid unduly suggestive identification procedures entitled him to be absent from the hearing, or to be shielded from Meadows’s view, pending resolution of the issue whether Meadows could make an identification. Defense counsel stated that he had not requested a lineup because Meadows had said he did not see the driver.
Overruling the objection, the magistrate reasoned that defendant’s “only remedy” was to request a pretrial lineup and that, if Meadows identified defendant at the preliminary examination, his prior statement could be used for impeachment.
Meadows then testified that he did not see the driver when the car passed him the first time and struck the motorcycle from behind, but that when the car came back a second time, Meadows was able to see the driver through the windshield “very briefly,” for about “30 seconds,” just before it ran over Mitchell. Meadows described the driver as a bald, African-American male. Although Meadows had not seen the driver’s facial features, he identified defendant as the person driving the car.
Trial
Defendant filed a pretrial motion to preclude Meadows from identifying him at trial and to exclude evidence that Meadows had identified him at the preliminary hearing. Defendant argued the identification procedure had been unduly suggestive.
To determine whether the identification was reliable, the trial court held an Evidence Code section 402 hearing about the circumstances surrounding the prior identification.
Meadows testified he had talked to a police officer briefly at the scene and had given no description of the driver--not his ethnicity, age, hair, or clothing. When an officer later came to his house, Meadows again gave no description of the driver. Meadows did not recall whether he had said he was unable to see the driver.
When counsel asked how Meadows could identify defendant at the preliminary examination, after telling the officer he did not see the driver, Meadows testified he had lied to the police so that he would not have to testify. Meadows said he had known the driver was African-American, bald, and not heavy set, but did not give those details to the officer.
Meadows explained that he identified defendant at the preliminary examination based on “sources,” “like the things that [he] saw from the incident.” Meadows admitted he had not seen the driver’s face. However, on cross-examination, Meadows said he recognized defendant at the preliminary hearing based on his face.
On redirect examination, Meadows testified he did not see the driver’s face at the scene. He did not recognize defendant’s face from the silhouette he had seen inside the car; however, he did recognize defendant’s face from the preliminary examination. The identification was based on defendant’s size and his being African-American and bald. Meadows agreed he had not told the officers those traits.
The trial court denied defendant’s motion but ruled that the defense could impeach Meadows with the factors explored at the Evidence Code section 402 hearing. The court also offered to give a cautionary instruction.
At trial, Meadows identified defendant as the driver of the car that hit the motorcycle. He reiterated that he had not seen defendant’s facial features but had observed that the driver was an African-American male with a bald head.
B
Defendant claims that the magistrate should have granted his request to be excused “during [Meadows’s] testimony [at the preliminary examination] to avoid a suggestive ID and preserve any right to a line-up if [Meadows] changes his mind then and says that he can make some kind of an identification.” (Citing Evans v. Superior Court (1974) 11 Cal.3d 617, 622 [due process requires, upon timely request, a pretrial lineup when eyewitness identification is a material issue and there is a reasonable likelihood of mistaken identification].)
The People respond that, if defendant believed Meadows would mistakenly identify him as the driver, he should have requested a pretrial lineup instead of asking to be excused during Meadows’s testimony. However, as defense counsel told the magistrate, the evidence obtained by discovery indicated that Meadows had not seen the driver; thus, there being no reasonable likelihood of mistaken identification, there was no basis to request a lineup until contrary evidence was produced.
Assuming for the purpose of discussion that defendant was entitled to excuse himself from the preliminary examination for the brief period it would have taken to determine whether Meadows could identify the perpetrator, “the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 189]; original italics.)
Even without Meadows’s identification testimony, there was overwhelming evidence that defendant was the driver who murdered Mitchell. Evidence showed defendant’s romantic relationship with her had just ended; she had kicked him out of the house and started seeing another man (Taylor); defendant was unhappy about the breakup (indeed, Mitchell had to change the locks on the residence to keep defendant out); two weeks prior to the murder, defendant tried to chase Taylor and Mitchell as they were driving in Stockton; earlier on the day of the murder, defendant tried to hit Mitchell and her daughter with his car; Mitchell, upset and crying, told Saxton that defendant was trying to kill Mitchell because she wanted to leave him; Taylor identified defendant as the killer; the license number of the killer’s vehicle, recorded by a witness, was traced to the Lexus owned by defendant; weeks later, defendant’s Lexus was found abandoned; markings on and damage to the Lexus were consistent with witness accounts that defendant hit the back of Taylor’s motorcycle and then returned to run over and kill Mitchell after she fell off the motorcycle.
The defense was left with challenging the reliability of all the identifications and other incriminating evidence, and asserting that members of defendant’s family had access to the Lexus used to kill Mitchell. In other words, the defense was left with an argument asking jurors to speculate that an unidentified person--perhaps a member of defendant’s family--committed the crime in defendant’s car for a reason or reasons unknown. No evidence supported that speculation, and overwhelming evidence refuted it.
Defendant’s appellate counsel makes a valiant effort to show prejudice by emphasizing perceived weaknesses in prosecution witnesses’ testimony. However, taken together, the prosecution evidence established unequivocally that defendant was the driver who killed Mitchell.
In light of the overwhelming evidence of defendant’s guilt, the verdict surely was not attributable to Meadows’s identification testimony. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [124 L.Ed.2d at p. 189].) Therefore, the ruling allowing introduction of his identification testimony was harmless.
II
Defendant contends the trial court abused its discretion and violated his confrontation and fair trial rights when it precluded him from impeaching Taylor with his prior burglary adjudication. We disagree.
A
Defendant’s written pretrial motion included a request to impeach Taylor with his having committed first degree burglary. The prosecutor objected because it was a juvenile court adjudication, the records were sealed, the burglary was in 1999, and Taylor was discharged from the California Youth Authority in 2002.
Citing Welfare and Institutions Code section 1772 and People v. Lee (1994) 28 Cal.App.4th 1724, defense counsel acknowledged Taylor’s juvenile adjudication was inadmissible, but he asserted that he could ask Taylor about the underlying conduct. The trial court agreed he could do so, subject to Evidence Code section 352.
Defense counsel argued the impeachment should be allowed because Taylor was a pivotal witness, the burglary conduct was probative of Taylor’s credibility, and the defense would challenge Taylor’s credibility based on his contradictory prior statements. The prosecutor countered the evidence was not probative because, following the juvenile adjudication, Taylor had “been in absolutely no trouble for years and years.”
The trial court exercised its discretion to exclude the evidence, stating: “First, he was properly discharged from YA, and secondly, the rap sheet that was provided by the prosecutor, the certified rap, has no subsequent convictions, and because of that the court is going to exclude it under 352. I think the prejudicial effect would far outweigh its probative value.”
B
“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. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; italics in original.)
Defendant claims the “only prejudice from the evidence [of Taylor’s prior burglary conduct] was to the prosecution from the erosion of Taylor’s credibility, but this is not the type of prejudice contemplated” by Evidence Code section 352. However, “no rule... precludes the trial court from using Evidence Code section 352 in the prosecution’s favor to exclude evidence offered by defendant, the probative value of which is substantially outweighed by the danger of undue prejudice to the prosecution.” (People v. De La Plane (1979) 88 Cal.App.3d 223, 241, italics omitted.)
Here, the trial court could reasonably find that the probative value of Taylor’s burglary was slight because the conduct occurred while he was a minor, appeared to be an isolated incident, and was followed by approximately six years of law abiding behavior. And the court could reasonably find this slight value was substantially outweighed by the danger that lay jurors would undervalue Taylor’s rehabilitation and period of lawful behavior and, therefore, draw an unwarranted inference that he would lie under oath.
In any event, the ruling did not prejudice defendant because, as we have already noted, evidence of his guilt was overwhelming, and his conviction surely did not result from the jury’s ignorance of Taylor’s prior burglary activity. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [124 L.Ed.2d at p. 189].)
III
In defendant’s view, the trial court committed prejudicial error when it failed to instruct the jurors sua sponte that they must view with caution defendant’s unrecorded oral statements. (CALCRIM No. 358.)
CALCRIM No. 358 provides in relevant part: “You have heard evidence that the defendant made oral statements before the trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict.... [¶] You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.”
When the evidence warrants, the cautionary instruction must be given, even if not requested. (People v. Carpenter (1997) 15 Cal.4th 312, 392, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) In requiring cautionary instructions, courts do not distinguish between actual admissions and preoffense statements of intent; while the risk of conviction based upon a false preoffense statement alone is less than the risk of conviction based upon a false confession or admission, “‘we find the risk of an unjust result sufficient to justify our broader rule.’ [Citation.]” (People v. Carpenter, supra, 15 Cal.4th at p. 392.)
Defendant claims the cautionary instruction was required by Mitchell’s conversation with her friend, Sonia Saxton, after Mitchell and defendant had argued on the afternoon of the murder (Mitchell told Saxton that defendant was trying to kill her because she wanted to leave him). He also contends the instruction was required by preoffense statements that he had made to Mitchell, in Saxton’s presence, months before the murder (according to Saxton, defendant said, “girl, if you ever leave me I’m going to hurt you, I’m going to hurt you,” or “if I catch you with somebody, I’m going to hurt you, girl, I’m going to hurt you”; she further testified that defendant had made the comments “in a little joking way” and that Mitchell would laugh).
“The rationale behind the cautionary instruction suggests it applies broadly. ‘The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ [Citation.] This purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime.” (People v. Carpenter, supra, 15 Cal.4th at pp. 392-393.) Hence, the trial court should have given the cautionary instruction with respect to defendant’s statements made before the murder.
Omission of the cautionary instruction is reviewable under “the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. [Citations.]” (People v. Carpenter, supra, 15 Cal.4th at p. 393.) Carpenter rejected the contention, renewed by defendant here, that the error violates federal due process and requires the prosecution to prove that it was harmless beyond a reasonable doubt. (Ibid.; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
While Mitchell and Saxton had been best friends, no evidence supported an inference that Saxton responded to the murder by fabricating the statements attributed to defendant. In view of the overwhelming evidence of defendant’s guilt as Mitchell’s killer, it is not reasonably probable that the jury would have reached a more favorable result had the cautionary instruction been given. (People v. Carpenter, supra, 15 Cal.4th at p. 393; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., BUTZ, J.