Opinion
B155198.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ERIC FALCON, Defendant and Appellant.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Eric Falcon, appeals from his conviction for second degree robbery (Pen. Code, § 211) and the jury finding that he personally used a firearm. ( §§ 12022.5, subd. (a)(1), 12022.53, subd. (b).) Defendant argues: there was insufficient evidence to support his conviction; the trial court improperly instructed the jury on flight and with CALJIC No. 17.41.1; the jurors may have been prejudiced by extraneous jury instructions; and further record correction proceedings are necessary to determine whether juror misconduct occurred. We reject these contentions and affirm the judgment.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Osband (1996) 13 Cal.4th 622, 690, 919 P.2d 640; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 2 a.m. on August 21, 2000, Michael Washington was waiting for a bus at Western and Florence Avenues with two other individuals. Mr. Washington was leaning against a take-out window at a nearby restaurant and had his bag on the shelf there. Defendant and another Hispanic man walked toward Mr. Washington. Mr. Washington made eye contact with defendant. Defendant and the other man, who was the shorter, then separated. Defendant walked in front of Mr. Washington. Defendant said, "Look, I dont want any shit from you." As defendant leaned forward, he pulled his sleeve up to reveal a small silver handgun with a white handle. Mr. Washington tried to back away and said, "I dont have anything on me." Mr. Washington walked toward the curb. Mr. Washington turned around and was struck in the face with the shorter mans fist. The two men walked towards Mr. Washingtons bag. Defendant picked up the bag and walked away. Mr. Washington then walked behind defendant and grabbed the bag. Defendant turned around and began to swing the handgun at Mr. Washington. Mr. Washington stumbled and fell. After a brief struggle with the bag, defendant pulled the bag away from Mr. Washington.
Defendant left with the bag and handed it to the shorter man. Mr. Washington again followed. Defendant turned and pointed the gun at Mr. Washington. Mr. Washington then stopped. Defendant and the shorter man walked away. Mr. Washington was able to see defendants face clearly throughout the incident. Mr. Washingtons wallet with credit cards and an automated teller card along with $ 40 or $ 50, a cell phone, pager, magazines, and books were inside the bag defendant stole. Some women at a nearby nightclub where Mr. Washington worked called the police. Mr. Washington was treated by emergency medical technicians at the scene. Mr. Washingtons face was bloody. Mr. Washington gave the police a description of his assailants.
Thereafter, Mr. Washington was taken by police officers several blocks away to identify suspects. Mr. Washingtons credit card was found in a car parked in front of the residence. As Mr. Washington sat in the patrol car, the officers brought out three men. The spotlights from two patrol cars were directed toward the three men. Mr. Washington identified one of the men as the shorter of the two thieves. Thereafter, defendant was brought outside and placed next to the other three men. Mr. Washington identified defendant as the man with the gun. Mr. Washington recognized defendants face and height. Defendant appeared to be wearing different clothes. Mr. Washington was certain that defendant was the man who stole the bag. Mr. Washingtons cell phone and Visa credit card were brought out of the house the same evening. Mr. Washington also positively identified defendant as the robber at the preliminary hearing.
A woman who introduced herself as defendants girlfriend approached Mr. Washington. Mr. Washington was in a courthouse for purposes of testifying in this case. The woman pleaded with Mr. Washington to consider dropping the charges. The woman said that although she could not replace everything that was taken from Mr. Washington, she could offer $ 500 or $ 1,000 to make up for his loss. She also indicated she may know the person who had the remainder of Mr. Washingtons property. The woman followed Mr. Washington and held his arm briefly. The woman reiterated she was in love with defendant, was pregnant, and did not want him to go to jail. The woman said that defendant told her he did not commit the robbery. The woman was not in the courtroom on the day Mr. Washingtons testified during the trial.
Los Angeles Police Officers Greg Garcia and a partner arrived at the robbery scene. After speaking to Mr. Washington and another witness, Officer Garcia requested assistance from other officers. Based on information given by Officer Garcia, two other officers went to a nearby residence. Mr. Washington was driven to that residence. Four officers went to the door of the residence. Inside the residence, Officer Garcia noticed a cellular telephone in the hallway. All of the occupants of the residence denied knowing who owned the telephone. Officer Garcia showed the telephone to Mr. Washington. Mr. Washington identified the telephone as the one taken in the robbery. Mr. Washington told Officer Garcia the number for the telephone. When Officer Garcia activated the telephone, the same number given by Mr. Washington appeared on the phone. The occupants of the house were then lined up outside the house for a field identification. Officer Garcia went into the back yard of the residence to search for additional evidence. Officer Garcia found defendant crouching behind a trash can in the corner of the yard. When searched, $ 48 was found in defendants front pocket. Mr. Washingtons Visa credit card was found in a red pickup truck at the residence.
III. DISCUSSION
A. Sufficiency of the Evidence
On various theories, defendant argues there was insufficient evidence to support his conviction for robbery. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, 827 P.2d 388, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631, 276 Cal. Rptr. 874, 802 P.2d 376; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738; see also People v. Gurule (2002) 28 Cal.4th 557, 630.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374; People v. Marshall (1997) 15 Cal.4th 1, 34, 931 P.2d 262; People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103; People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal. Rptr. 228, 721 P.2d 110; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618; People v. Stanley (1995) 10 Cal.4th 764, 792, 897 P.2d 481; People v. Bloom (1989) 48 Cal.3d 1194, 1208, 259 Cal. Rptr. 669, 774 P.2d 698; People v. Bean (1988) 46 Cal.3d 919, 932, 251 Cal. Rptr. 467, 760 P.2d 996.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal. Rptr. 529, 457 P.2d 321.)
There was substantial evidence to support defendants robbery conviction.
Mr. Washington identified defendant at the show-up, preliminary hearing, and trial. Defendant was found hiding in the back yard of a residence where Mr. Washingtons property was found by the police. The sufficiency of the evidence contention has no merit.
B. Instructions
1. CALJIC No. 2.52
Defendant argues that the trial court improperly instructed the jury with CALJIC No. 2.52 regarding his flight after the robbery, thereby violating his due process rights. The jury was instructed with CALJIC No. 2.52 as follows: "The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt but is a fact which, if proved, may be considered by you in light of all the other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." No error occurred.
The California Supreme Court has held, "In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." (People v. Bradford (1997) 14 Cal.4th 1005, 1055, 929 P.2d 544, quoting People v. Ray (1996) 13 Cal.4th 313, 345, 914 P.2d 846; People v. Jones (1991) 53 Cal.3d 1115, 1145, 282 Cal. Rptr. 465, 811 P.2d 757; People v. Mason (1991) 52 Cal.3d 909, 943, 277 Cal. Rptr. 166, 802 P.2d 950; People v. Turner (1990) 50 Cal.3d 668, 694-695, 268 Cal. Rptr. 706, 789 P.2d 887; § 1127c.) Defendant argues there was no evidentiary support for the instruction. However, defendant left the scene of the robbery and was not seen until an hour later hiding in Mr. Rosass backyard when police arrived. We reject defendants claim that the fact he walked away from the scene of the robbery is not an indication of flight. In addition, the victims property was found both inside Mr. Rosas house and in the bed of a pickup truck parked outside. Moreover, the California Supreme Court has held that a defendant is not entitled to an instruction on the absence of flight. (People v. Staten (2000) 24 Cal.4th 434, 459; People v. Green (1980) 27 Cal.3d 1, 39-40, 164 Cal. Rptr. 1, 609 P.2d 468, overruled on another point People v. Garcia (2002) 28 Cal.4th 557, 628-629.) The instruction was properly given. Finally, in light of other evidence of defendants guilt and other instructions given, any error in instructing on flight was harmless. It is not reasonably probable a result more favorable to defendant would have been reached absent such a purported error. (People v. Crandell (1988) 46 Cal.3d 833, 870, 251 Cal. Rptr. 227, 760 P.2d 423; People v. Silva (1988) 45 Cal.3d 604, 628, 247 Cal. Rptr. 573, 754 P.2d 1070; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
2. CALJIC No. 17.41.1
Defendant argues that the trial court improperly instructed the jury with CALJIC No. 17.41.1, which violated his constitutional right to a fair trial and due process. This contention has no merit. (People v. Engelman (2002) 28 Cal.4th 436, 441.) Nonetheless, under any standard of reversible error, the alleged error was entirely harmless given the uncontradicted nature of the overwhelming and conclusive proof of guilt. (Chapman v. California (1967) 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Watson, supra, 46 Cal.2d at p. 836; see also People v. Molina (2000) 82 Cal.App.4th 1329, 1335-1336.)
C. Jury Instruction Packets
In his supplemental brief, defendant argues there is a "very real possibility" that the jurors received irrelevant and prejudicial instructions. At issue is the presence of a set of unrelated jury instructions in both the clerks transcript in this case and the superior court file. A set of instructions which quite obviously does not apply to this case bears defendants name and case number as well as a clerks "filed" stamp.
1. Factual and procedural background
On September 19, 2002, we issued an order directing the trial judge, the Honorable Gregory M. Alarcon, to act as referee to determine whether: the reporters transcript correctly sets forth the instructions given to the jury in this case; stalking, domestic violence, kidnapping, felony false imprisonment, and terrorist threats written instructions were physically given to the jury; and the February 5, 2001, file stamp dates and notation as to the accused on the two sets of instructions were accurate. We further ordered Judge Alarcon to hold a hearing in an effort to correct the record.
Judge Alarcon commenced the record correction proceedings on November 13, 2002. Superior Court Deputy Clerk Karen Olds identified the jury instructions bearing her name and "filed" stamp for February 5, 2001. Ms. Olds testified that she had not served as a clerk for Judge Alarcon and did not recall defendants case. At the time of defendants trial, she was a court manager in the Van Nuys court. However, Ms. Olds believed that she may have stamped it, postdating it, after someone reviewing the case noticed that it had not been stamped. Superior Court Deputy Clerk Maral Dermenjian was Judge Alarcons clerk at the time of defendants trial. Ms. Dermenjian testified that it was the practice of the court to have the judge prepare the instructions in booklet form. Thereafter, she would receive the original set of instructions and a copy would be made for each juror. Ms. Dermenjian did not know whether the incorrect instructions actually went into the jury room in this case. However, the packet of incorrect instructions was not in booklet format as was typical for Judge Alarcons courtroom. Some of the writing on the face of the first page of the incorrect instructions was written by Ms. Dermenjian.
Following the testimony of the two clerks, the trial court contacted the former jurors in this case by letter requesting their attendance at a hearing on the subject of the discrepancy in the jury instructions. Eight of the twelve jurors appeared on two different dates. Each jurors identity remained anonymous. The jurors were given copies of the two sets of jury instructions. Packet "A" was the booklet form instructions read to the jury by Judge Alarcon at trial. Packet "B" was the incorrect instructions related to stalking, domestic violence, kidnapping, and related crimes. Each juror completed a special verdict form regarding the two different jury instruction packets. The jurors unanimously agreed that they: received the jury instruction packet prepared in booklet form (packet A) in their original deliberations; did not receive packet B; and did not receive packet B alone. When questioned at the hearing, several jurors indicated they recalled seeing another set of papers on the table when they entered the jury room. However, they further indicated the papers were gathered up by one or two jurors who either gave them to a deputy sheriff or put them aside. The jurors did not recall if anyone read the incorrect instructions before putting them aside. The jurors indicated they considered only the instructions read to them by Judge Alarcon.
On January 7, 2003, Judge Alarcon issued his report on the record correction proceedings. In response to this courts questions, Judge Alarcon found: (1) the February 11, 2001, reporters transcript correctly sets forth the instructions given to the jurors; (2) the jury in this case did not receive the erroneous jury instructions in their deliberations; and (3) the file stamp on the correct instructions is accurate and the file stamp on the incorrect instructions was inaccurate. In addition, Judge Alarcon refused to order the four remaining jurors to appear and respond to questioning regarding the jury instructions. Judge Alarcon concluded, "The Court believes that the testimony of the eight former jurors who did appear for questioning, when combined with other evidence and the Courts own knowledge of its procedures in providing written jury instructions in criminal trials, is sufficient to resolve the issues presented by Justice Turners Order."
2. No prejudice resulted
Defendant argues that there is a possibility of jury prejudice because of exposure to the irrelevant instructions. Defendant supports his argument by citing to: the deputy clerks inability to state for certain that the incorrect instructions were sent to the jurors; the eight jurors inability to recall whether they had seen the incorrect instructions; and the inability to question the remaining four jurors regarding the incorrect instructions.
Every criminal defendant has a right to a trial by an unbiased, impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, section 16.) The California Supreme Court utilizes the American Bar Association standards for determining whether a presumption of prejudice arises from juror misconduct based upon exposure to material that was not part of the record. The Supreme Court has held, "The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror. (2 ABA Standards for Criminal Justice, [(2ed. 1980)] std. 8-3.7, Commentary, p. 8.58.)" (People v. Holloway (1990) 50 Cal.3d 1098, 1109, 269 Cal. Rptr. 530, 790 P.2d 1327, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, 889 P.2d 588; accord In re Malone (1996) 12 Cal.4th 935, 964, 911 P.2d 468.) However, the Supreme Court acknowledged that there are cases where such presumed prejudice is rebutted. (People v. Holloway, supra, 50 Cal.3d 1098, 1110; see People v. Pinholster (1992) 1 Cal.4th 865, 925-926, 824 P.2d 571 [presumed prejudice as a result of prospective jurors reading of newspaper article regarding another capital trial rebutted]; People v. Von Villas (1995) 36 Cal.App.4th 1425, 1431-1433 [presumption of prejudice from jurors inadvertent view of newspaper headline regarding co-defendants conviction rebutted and did not appear a substantial likelihood of juror bias]; People v. Sutter (1982) 134 Cal. App. 3d 806, 820-821, 184 Cal. Rptr. 829 [evidence from jurors improper visit to the crime scene added nothing contradictory to the evidence at trial].)
There is no basis for defendants claim that the jurors considered the inapplicable instructions. Judge Alarcon based his findings on the information received at the hearings and his own recollection of his practice in the delivery of jury instructions. Both Ms. Dermenjian and Judge Alarcon recalled that it was their practice to have Judge Alarcon generate the instructions in booklet form as in packet A, read them to the jury, and make copies for each juror when deliberations began. In this case, the record reflects that during the trial, Judge Alarcon told the jurors that each would receive a copy of the jury instructions. Thereafter, during the trial, Judge Alarcon read the instructions given in booklet form. Judge Alarcons practice utilized individual jury instruction pages, as was contained in packet B, only in those instances where the attorneys so belatedly submitted the instructions that to craft them in edited booklet style would delay the trial. Moreover, even if the jurors saw the irrelevant instructions, they were instructed to disregard them pursuant to CALJIC No. 17.31. The California Supreme Court has consistently stated that on appeal it is presumed the jury follows the instructions they are given. (People v. Bradford (1997) 15 Cal.4th 1229, 1337, 939 P.2d 259; People v. Osband, supra, 13 Cal.4th at p. 714; People v. Kemp (1961) 55 Cal.2d 458, 477, 11 Cal. Rptr. 361, 359 P.2d 913; People v. Chavez (1958) 50 Cal.2d 778, 790, 329 P.2d 907; People v. Foote (1957) 48 Cal.2d 20, 23, 306 P.2d 803; People v. Thomas (1994) 26 Cal.App.4th 1328, 1333-1334.) On this ground the judgment is affirmed.
Finally, no purpose would be served by having four more jurors testify. The California Supreme Court has held: "Strong public policies protect discharged jurors from improperly intrusive conduct in all cases, and that jurors in criminal cases, in particular, have an absolute right not to discuss their verdict or deliberations with anyone. (Code Civ. Proc., § 206, subds. (a)-(d) [criminal jurors have absolute right to refuse posttrial discussion of verdict or deliberations; unconsented or unreasonable juror contacts are prohibited]; also cf. id., § 237, subds. (a)(2), (4), (b) [sealing juror-identifying information, except upon good cause, where verdict rendered after January 1, 1996] . . . .)" (In re Hamilton (1999) 20 Cal.4th 273, 303, fn. 23, 975 P.2d 600; see also Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1208.) The judgment may not be reversed because irrelevant jury instructions which were never read to the jurors may have been in the jury room. Any presumption of prejudice has been overcome.
IV. DISPOSITION
The judgment is affirmed.
We concur: GRIGNON, J., MOSK, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.