Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Hill, J.
Procedural HISTORY
Appellant Nickles Dobbyn was convicted after jury trial of one count of auto theft. In a bifurcated court trial, the trial court found that Dobbyn had two prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4); a prior auto theft conviction within the meaning of section 666.5; and two auto theft and one burglary convictions within the meaning of section 667.5, subdivision (b).
All further references are to the Penal Code, unless noted otherwise.
Dobbyn was sentenced in this case to a six-year prison term (the upper term of three years, plus one year for each of the three section 667.5 priors). A sentence in a separate unrelated case brought Dobbyn’s total term to nine years.
Factual HISTORY
Valerie Martinez contacted police after seeing in a store parking lot her 1988 Honda Accord, which had been stolen six days previously in Oakdale. Mrs. Martinez saw Dobbyn walk away from the car. When police arrived, Officer Gillian Christensen located Dobbyn and questioned him. Dobbyn admitted driving the Honda to the store. He claimed, however, that the car belonged to his girlfriend, Lisa Taylor. Dobbyn produced the car keys, the stereo face-plate, and a set of vehicle registration papers that matched the license plate on the Honda, but not the vehicle identification number. The registration listed Taylor as the owner. Officer Christensen testified that, when she asked Dobbyn why the plates did not match the car, he volunteered that the car was not stolen.
Taylor testified that she purchased the car for $200 through “a friend of a friend,” for parts after her old Honda Accord broke down. She transferred the license plates from the old Honda to the new Honda and installed a new stereo. She said she loaned the car to Dobbyn without telling him about buying the new Honda. Dobbyn had driven the old Honda and carried the registration for that Honda in his wallet. Taylor produced a bill of sale and a pink slip for the new Honda, which identified the seller as Alberto Martinez and listed the names of other individuals who Taylor did not know.
Taylor had been Dobbyn’s girlfriend for a couple of weeks prior to the arrest. Although the two were not living together, Taylor explained that Dobbyn lived around the corner from her and the two “were around each other most the time.”
Jonathan Hernandez, who knew Taylor and who had suffered numerous auto theft convictions, testified that he had stolen the Honda in Oakdale after his car ran out of gas. At the preliminary hearing, Hernandez could not describe the car or give the details of the theft. At trial, however, his memory had been restored. He did not, however, know what he had done with the car after stealing it.
Discussion
The single issue on appeal is whether the trial court’s failure to instruct the jury that it should view with distrust Dobbyn’s statement to Officer Christensen that the car was not stolen was prejudicial. We conclude it is not and will affirm the judgment.
CalCrim No. 358, formerly CALJIC No. 2.71, provides as follows:
“You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s].”
The purpose of this cautionary instruction is to assist the jury in determining whether the statement was in fact made by the defendant. It applies to any oral statement of the defendant, whether made before, during, or after the crime. (People v. Carpenter (1997) 15 Cal.4th 312, 393.) The instruction is to be given sua sponte when, as here, there is evidence that defendant made an admission or confession before trial. (People v. Beagle (1972) 6 Cal.3d 441, 455-456.) An admission is any statement against pecuniary or proprietary interest. (Evid. Code, § 1230.) Dobbyn’s statement to Christensen that the car was “not stolen” could be viewed as either exculpatory or inculpatory. It could be seen as a confident assertion that the car was Taylor’s and any mix-up in the paperwork was innocent. But, it could also be viewed as a defensive response to the officer’s query about the inconsistent registration papers in an attempt to hide guilt. It was error not to give the instruction.
In the face of instructional error, we determine whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. Only if we answer this question yes will the judgment be reversed. (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) Failure to give the cautionary instruction does not make the trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 73.)
We find the error was harmless. The defense evidence was simply not believable. Hernandez’s story was unlikely to be accepted as true by the jury. It reeked of fabrication and bias. At the preliminary hearing, he could not remember where or when he had stolen the car, or what it looked like. When asked what car he had stolen, Hernandez responded, “[w]hatever car you guys are talking about.” At trial, after admitting he had talked to Dobbyn about the case, he could now remember that the car was a gold-colored Honda and that he had stolen it in Oakdale at 2:00 o’clock in the morning. He still could not remember however what he did with the car after he stole it.
Taylor’s story was likewise unbelievable. She did not know from whom she bought the car. She purportedly had a pink slip and a bill of sale, which she produced at trial, but she could not identify the individuals whose names appeared on either document. The bill of sale was purportedly signed by Alberto Martinez, the husband of the car’s owner. Mr. Martinez denied selling the car and testified that his paycheck stub was in the car at the time it was stolen. His identity was known. Taylor did not attempt to transfer the car’s ownership to her and did not inform police after Dobbyn was arrested that she had this paperwork. Taylor’s acts were inconsistent with her explanation of the car’s purchase. She claimed she bought the car because her old Honda was broken down, and she intended to use the parts to fix her old Honda. Instead, she put the old plates on the new car and drove it, purchasing a new stereo for the new Honda. She claimed that Dobbyn was unaware of the switch in cars, but testified he had driven the old Honda before, which is why he had the registration in his wallet. It seems highly unlikely that Dobbyn would not know that the car he was driving was a different vehicle or that the old Honda had broken down. Taylor was unable to explain what happened to the old Honda and why Dobbyn would be unaware that it was disabled and apparently missing. Mrs. Martinez was able to recognize the car from scratches on the window, a missing piece of rubber on the steering wheel, and evidence of a removed sticker on the back window. Taylor’s explanation for the switched plates, the switched cars, and the bogus legal documentation suggested a belated attempt to cover for Dobbyn.
Moreover, the court fully instructed the jury on judging the credibility of a witness, providing guidance on whether to credit testimony, including CALCRIM No. 318 which explains how to evaluate a prior statement made by a witness before trial. The jury had the tools necessary to determine whether Christiansen accurately testified that the statement had been made and how to evaluate the true nature of Dobbyn’s statement.
We also reject Dobbyn’s contention that the prosecutor relied heavily on Dobbyn’s statement to Christiansen in making the prosecution’s case. The prosecutor mentioned it once and only argued that it provided evidence of knowledge. After a thorough review of the record, we believe the statement made to Christiansen played little if any role in the jury’s determination of guilt or innocence. The main evidence of guilt was the bumbling effort made to fabricate an explanation for the obvious: Dobbyn was driving a stolen car with switched plates and carrying a registration that matched the switched plates. It was only Mrs. Martinez’s identification of her own car and careful confirmation of the vehicle identification numbers that thwarted the cover-up attempt. Accordingly, there is no reasonable probability the error was prejudicial under any standard of review.
Disposition
The judgment is affirmed.