Opinion
B237229
01-07-2013
THE PEOPLE, Plaintiff and Respondent, v. JOSE RICARDO FELIX, Defendant and Appellant.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. PA068155)
APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Jose Ricardo Felix, appeals his conviction for residential burglary (Pen. Code, § 459). He was sentenced to state prison for six years.
All further references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Maria Deleon and her husband Hector Acosta lived on Telfair Avenue in Pacoima. Stevan Lopez lived across the street. In late June 2010, Lopez asked Deleon to watch his house while he was on vacation. On June 29, Deleon saw a young man she did not recognize coming out of Lopez's house carrying a box. The man then went back into Lopez's house. Deleon alerted Acosta, who ran over to see what was going on.
There was a black Nissan Altima in the middle of the street. Acosta later told police he knew the driver, Gilberto Estrada. Acosta saw a man coming out of the Lopez house with a box and screamed at him. The man dropped the box. Acosta tried to grab him, but the man jumped into the Nissan. Estrada looked at Acosta and said, "Don't worry, we'll be back." The Nissan drove off. Acosta was scared because Estrada was a gang member.
Deleon and Acosta called Lopez to tell him what happened. When Lopez returned home he found the rear door of his house had been broken into and various things were missing: sports cards, sports memorabilia, a coin collection and a handgun. Lopez was acquainted with Estrada.
On July 7, 2010, Illinois State Police stopped a black Nissan for speeding. Estrada was sitting in the passenger seat. A search of the vehicle uncovered three tubs containing baseball cards and memorabilia.
Meanwhile, Los Angeles Police Officer Richard Sotelo had decided to go to a house located at 12901 Osbourne Street in Pacoima in order to arrest Estrada for the Lopez burglary. Before setting out, Sotelo ran a check on the address and discovered that defendant Felix, who had an outstanding bench warrant for an unrelated burglary, was also living there. When Sotelo arrived at the Osbourne Street house, he found Felix and arrested him.
At the police station, Felix asked why Sotelo had come to the house and Sotelo said he was looking for Estrada in connection with a burglary on Telfair. After receiving a Miranda warning, Felix admitted he had been involved in the Telfair burglary, but he said Estrada had forced him to commit the crime. Felix said he used a hammer to break into the rear door of Lopez's house and that he took a gun and some baseball cards. After being scared off by witnesses, Estrada dropped Felix off at the Osborne Street house and Felix didn't know what Estrada had done with the stolen property.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602[.
Sotelo asked Felix to put his statement into writing, so Felix wrote and signed the following statement: "The gun ain't on my possession. I was forced to brake [sic] into the house . . . . I took out a couple boxes and a gun from the house. Then I drop off to my house and never heard of the stolen property or him again. I got a box of baseball cards but no property on my possession. I went through the back door with a hammer to brake the lock. Boxes (3) took of baseball cards."
Sotelo testified Felix did not exhibit any confusion or appear to be under the influence of drugs or alcohol.
2. Defense evidence
Felix testified in his own defense. He had previously been convicted as an adult of felony grand theft. He was on probation for a different, juvenile offense when he was arrested in this case. In addition, he was in violation of that probation when he was arrested.
Felix testified the police came to his house and arrested him for not checking in with his probation officer. When Officer Sotelo told Felix he looked like the suspect in a burglary, Felix got nervous. Sotelo said he just needed Felix's help in identifying the second burglary suspect so they could get Estrada, and that if Felix confessed he could go home because he was "young." So Felix wrote out a statement falsely confessing to the burglary; he just wrote down whatever Sotelo told him to write.
Asked if he hadn't realized the written statement sounded like a true confession, Felix testified: "Well, I really, I didn't do it. Just a piece of paper. I wanted to go home." Asked about the specific details contained in the statement, Felix testified Sotelo told him exactly what to say. Felix testified he remembered being given a Miranda warning inside the police station, and that he told Sotelo he understood his rights.
Felix testified he had smoked methamphetamine 20 minutes before his arrest and that he was under the influence of that drug when he wrote out the false confession. Asked if the methamphetamine had affected his memory, Felix testified he remembered everything, but that the methamphetamine had affected his ability to make rational decisions.
Detective Dena Kendrick testified for the defense that, when she spoke to Felix the morning after his arrest, he denied having burglarized Lopez's house. When Kendrick reminded Felix he had been given Miranda warnings, Felix said "he didn't remember anything, that he was out of it." Kendrick's conversation with Felix did not last long because he "continued to say 'I don't remember anything. I was totally out of it.' " Felix specifically told Kendrick he did not "remember dealing with Sotelo." When she asked if there was some medication or narcotic Felix used "that would cause him any memory difficulty . . . where you don't remember anything that happened . . . less than ten hours prior," Felix said no, he just smokes marijuana occasionally. Asked if she saw any "signs or symptoms of methamphetamine use," Kendrick testified Felix "didn't appear to have used recently."
CONTENTION
The trial court erred by instructing the jury with CALCRIM No. 361 on a defendant's failure to deny or explain inculpatory evidence.
DISCUSSION
Felix contends the trial court erred by instructing the jury with CALCRIM No. 361, as follows: "You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt. If the defendant failed in his testimony to explain or deny evidence against him and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. [¶] The People must prove the defendant guilty beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
It is well-established that " '[i]f the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury [citations].' [Citation.]" (People v. Belmontes (1988) 45 Cal.3d 744, 784, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "We have said that when a defendant testifies in his own behalf he thereby waives his self-incrimination privilege under both federal and state Constitutions as to matters within the scope of permissible cross-examination [citations] and that when he denies commission of the crime a defendant thereby renders 'very wide' the permissible scope of his cross-examination. [Citation.] It is entirely proper for a jury, during its deliberations, to consider logical gaps in the defense case, and the jury is reminded of this fact by the instruction at issue." (People v. Redmond (1981) 29 Cal.3d 904, 911.)
See, e.g., People v. Belmontes, supra, 45 Cal.3d at p. 783 [CALJIC No. 2.62 (predecessor instruction) proper where defendant testified he hit victim once in head with metal bar but failed to explain autopsy surgeon's contradictory findings, and where defendant testified accomplice must have ransacked bedroom but failed to explain how accomplice could have beaten victim extensively and ransacked bedroom in matter of seconds]; People v. Mask (1986) 188 Cal.App.3d 450, 455 [CALJIC No. 2.62 proper where "[d]efendant offered an implausible explanation for his presence near the scene of the crime. . . . Even if we assume defendant took an inordinately long time in his travels, there are approximately three hours for which defendant was unable to account."].)
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Felix argues the instruction was improper here because he denied having committed the burglary and "[i]t is neither bizarre nor implausible that an unsophisticated young suspect could believe that the police would let him go home if he told them what they wanted to hear." We cannot agree with this argument.
Given Felix's criminal history, as both a juvenile and an adult, it is a mischaracterization to describe him as "unsophisticated." As the prosecutor reminded the jury during closing argument: "Now, Mr. Felix has been in trouble before. He knows the system. He knows that writing of the confession means that he ends up here. It's not like he's some babe in the woods, thinks I get to go home and nothing ever happens. [¶] He knows the drill, and yet he writes it out any way." "[S]omeone like him who knows . . . the system, would never have confessed, because he thought he was going home to a no bail warrant after doing the crime." The prosecutor made the same point while cross-examining Felix: "Q. So you thought that even though they knew you had been in trouble multiple times that you were on probation and absconding[,] that they wanted you to confess to something you didn't do and then they'd let you go? [¶] A. Yes, sir."
There are at least two additional reasons why the instruction was proper. First, as the trial court pointed out during a sidebar with counsel, it was implausible to think Officer Sotelo would have cajoled Felix into making a written confession, yet tell him to include a disclaimer that undercut his culpability: "Why would the cop, if he manufactured that statement and told the defendant what to write, have him put a disclaimer like that? That disclaimer that I was forced to break into the house. No police officer would have anybody put [that] in the report, therefore it makes it very reliable and believable that everything was put in there by the defendant."
Second, Felix's testimony contained an additional fundamental contradiction that only he could have explained. He testified he had smoked methamphetamine just 20 minutes before his arrest and, although the drug did not affect his ability to remember exactly how he came to write the false confession, the following morning he told Detective Kendrick he had absolutely no memory of his interaction with Sotelo or of having made a written statement, and that the only drug he used was marijuana. Given these conflicting explanations regarding his memory of how the written confession came about, the trial court was justified in giving CALCRIM No. 361. (See, e.g., People v. Sanchez (1994) 24 Cal.App.4th 1012, 1030 [CALJIC No. 2.62 [predecessor instruction] proper where defendant gave detailed testimony about his prolific consumption of alcohol and cocaine, but claimed to have no memory of inculpatory events occurring the same afternoon].)
The trial court did not err by instructing the jury with CALCRIM No. 361.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.