Opinion
B156848.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. HANIF GEREAU, Defendant and Appellant.
Carol K. Lysaght, 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, Assistant Attorney General, Chung L. Mar and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Hanif Gereau, of one count of carrying a loaded firearm in violation of Penal Code section 12031, subdivision (a)(1). The trial court denied appellant probation and sentenced him to the midterm of two years in state prison.
All further references to statutes are to the Penal Code unless stated otherwise.
On appeal, appellant contends: (1) because the trial court delivered an instruction on section 12031, subdivision (a)(1) that eliminated an essential element of that offense, appellants conviction must be reversed; and (2) the court committed a series of errors in relation to the only scintilla of evidence on the critical issue of appellants alleged knowledge of the guns presence.
FACTS
I. Prosecution Evidence
On November 4, 2000, appellant was gambling at the Normandie Casino located in the 1000 block of Rosecrans Avenue in the City of Gardena, Los Angeles County. At approximately 11:00 p.m., appellant began arguing with a dealer at a Pai Gow table. The floor manager asked a security guard to remove appellant from the casino. When he was asked to leave, appellant refused to go until he got his money from the table. The dealer said appellant had no money on the table. The security personnel were unsuccessful in talking appellant into leaving, as was a friend of appellants. There was a struggle as the officers tried to physically remove appellant and to place handcuffs on him. During the struggle, appellant was sprayed with mace. Appellant broke free and was allowed to walk away into the parking lot.
Appellant walked toward a Toyota RAV4 in the parking lot. The man who had been with him in the casino joined him. As they approached the RAV4, a man seated inside the car got out and asked what had happened. The three got into the RAV4, and it drove off.
The security officers had their dispatcher call the police because appellant had shouted threats at them as he walked towards his car. Appellant said he would come back and kill them. The security officers provided police with a description of appellant and the RAV4.
Gardena Police Officer Mark Thompson was on patrol in the area of the casino. He responded to the radio call regarding a fight inside the casino involving casino security. As Officer Thompson drove north on Vermont Avenue toward the casino, he saw the RAV4 parked in a Chevron gas station on the southeast corner of Vermont and Rosecrans Avenues. He radioed other units and drove into the gas station lot. Gardena Police Officers Bill McReynolds and Brian Juckett were in the area and responded to the gas station, arriving right behind Officer Thompson.
The police saw appellant seated in the drivers seat of the RAV4. He was the sole occupant of the car. Two men were standing nearby. Police officers detained all three men. A patdown search of appellant revealed that appellant had the keys to the RAV4 in his right front pants pocket and that he was wearing a bulletproof vest. Appellant falsely identified himself to police as Anthony Kinchen. During a search of the RAV4, Officer Juckett found a loaded .22-caliber revolver under the drivers seat.
The officers put appellant and one of his companions, Sergio Paul, in the back of a patrol car that was equipped with video and audio recorders. The recorders were on while the two men were in the car. Officer Thompson reviewed the video/audio tape recording and prepared a transcript of the audio portion. The recording was played to the jury.
Officer Juckett conducted a computer search to determine the registered owner of the gun that was found under the drivers seat of the RAV4. The registered owner was not appellant. No usable or identifiable fingerprints were lifted from the loaded revolver.
II. Defense Evidence
Videotapes from the Normandie Casino captured little of the dispute between appellant and casino personnel. The incident occurred just as the videotapes were being rewound and changed.
Gardena Police Detective Mark Wilson was assigned as the investigating officer in the case. Wilson ran a check on the RAV4 and discovered that it was registered to a rental car company. The .22-caliber revolver found in the car was not tested for operability by test firing. Wilson believed it was operable because it contained an expended cartridge and the firing pin built into the hammer was intact.
DISCUSSION
I. Giving of Modified Version of CALJIC No. 16.470
A. Appellants Argument
Appellant contends that the version of CALJIC No. 16.470 given by the trial court omitted any mention of the need for proof that the offense was committed in an incorporated city or in a prohibited area of an unincorporated territory. Appellant also argues that there was insufficient evidence to prove this geographical element of the offense.
B. Proceedings Below
Appellant was convicted of a felony violation of section 12031, subdivision (a)(1). This section provides that "[a] person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." ( § 12031, subd. (a)(1), italics added.) Section 12031, subdivision (a)(2)(A) through (G) provides that violation of the statute shall be punished as either a felony or a misdemeanor, depending upon the circumstances. Subdivision (a)(2)(F) provides that "where the person is not listed with the Department of Justice pursuant to Section 11106, as the registered owner of the pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($ 1,000), or both that fine and imprisonment." ( § 12031, subd. (a)(2)(F).) Appellant was charged with a felony violation on the basis of section 12031, subdivision (a)(2)(F).
The trial court in this case gave an amended version of CALJIC No. 16.470, the standard instruction for the misdemeanor offense of carrying a loaded firearm in violation of section 12031. The standard instruction reads in pertinent part as follows: "Every person who, with knowledge of its presence, [unlawfully] carries a loaded firearm [on his or her person] [or] [in a vehicle] [while in any public place] [while on any public street in an incorporated city] [while on any public street in a prohibited area of unincorporated territory] is guilty of a violation of Penal Code section 12031, subdivisions (a)(1)/(2)(F), a misdemeanor." The instruction goes on to describe the defense of having a license for the firearm, and to define "prohibited area" and what constitutes a "loaded" firearm. The instruction provides that "in order to prove this crime, each of the following elements must be proved: [P] 1. A person carried a loaded firearm [on [his] [her] person] [or] [in a vehicle] while ____________; and [P] 2. The person had knowledge of the presence of the firearm [.] [; and [P] 3. The person did not have a valid license to carry the particular firearm.]" (CALJIC No. 16.470 (1997 rev.).) (Italics added.) The standard instruction thus allows the court to fill in whether the offense occurred in a public place (or on a public street) in an incorporated city or in a public place (or on a public street) in a prohibited area of an incorporated territory.
The instruction the court below read to the jury was read in pertinent part as follows: "The defendant is accused in Count 4 with having violated section 12031(a)(1) of the Penal Code. [P] Every person who, with knowledge of its presence, carries a loaded firearm which is not registered to that person, in a vehicle, is guilty of violation of this section of the law. [P] . . . [P] In order to prove this crime, each of the following elements must be proved: [P] First, a person carried a loaded firearm in a vehicle; [P] Second, the firearm was not registered to that person; [P] Third, the person had knowledge of the presence of the firearm." The first element omitted any mention of the geographical location where appellant was alleged to have carried the loaded firearm.
C. Relevant Authority
In criminal cases, ""even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case."" (People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094.)
Under the California Constitution, instructional error is reviewed under the Watson standard. (People v. Flood (1998) 18 Cal.4th 470, 490, 957 P.2d 869.) In order for error to be harmless, there must be a reasonable probability that the outcome of a defendants trial would have been different had the trial court properly instructed the jury. (Ibid.) With respect to the United States Constitution, a trial courts error in omitting an element from the charge to the jury is analyzed for harmless error under the stricter Chapman standard. (Neder v. United States (1999) 527 U.S. 1, 9, 15, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (Neder).) The test is "whether it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Id. at p. 15.) It must be evident that a rational jury would have found the defendant guilty absent the error. (Id. at pp. 16, 18.)
People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.
Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.
D. Discussion
We agree with appellant that the trial court erred in not instructing on all of the elements of the crime charged. We conclude, however, that the error was harmless under any standard. Appellant was found in possession of the gun at a gas station, which was clearly a public place, since it was "accessible to members of the public having business with" the gas station. (People v. Vega (1971) 18 Cal. App. 3d 954, 958, 96 Cal. Rptr. 391 [concluding that a market parking lot was a public place for purposes of § 12031].) The casino, which he had left minutes before, was located in the City of Gardena in the County of Los Angeles, as testified to by Ricky Tillman, a former security guard at the Normandie Casino. Security Guard Horacio Hizon also testified that the Normandie Casino was located in Gardena. Officer Thompson, who first spotted appellants RAV4 in the gas station, was a Gardena police officer on duty in the area of Vermont Avenue and Rosecrans Avenue. Officer Thompson acknowledged that the Normandie Casino was located in the City of Gardena and that the Chevron gas station was within one or two blocks of the casino. He testified that the Normandie Casino was in the 1000 block of Rosecrans Avenue, and he broadcast the location of the gas station at which appellant was arrested as 850 Rosecrans Avenue. Officer Juckett testified that he traveled from the Chevron gas station to the Normandie Casino in 30 seconds.
In light of this evidence of the proximity of the gas station to the casino, which was located in the City of Gardena, a rational jury would have found appellant guilty of the violation of section 12031 even if it had been properly instructed that the offense had to take place while appellant was in a public place or on a public street in an incorporated city or in a public place or on a public street in a prohibited area of unincorporated territory. (Neder, supra, 527 U.S. at p. 18.)
Moreover, it can be assumed from the rapid succession of events that appellant also possessed the gun while in the parking lot of the Normandie Casino in the City of Gardena, another public place. The time that passed between appellants departure and his arrest at the gas station was so brief that he did not have time to acquire the gun found under his seat. The time of day made it unlikely that he could have purchased it. The record shows that Officers McReynolds and Juckett were en route to responding to the disturbance call that came from the Normandie Casino when they heard that the suspects had been found at the gas station nearby. They were responding within a minute or two of broadcast, which indicates that appellant was located within a few minutes of leaving the casino. Officer Thompson received the dispatch to respond to the Normandie Casino at 11:21 p.m., and the videotaped record shows that he began detaining appellant and his companions at 11:29 p.m.
Furthermore, appellants sole defense to the gun charge was lack of knowledge. He argued that it wasnt reasonable to assume he was driving, since he had been maced, and he denied all knowledge that the gun was located in the car as evidenced by the recording of his comments in the police car. This defense was necessarily rejected by the jury when it returned a guilty verdict. Therefore, the error in failing to instruct on the geographical location of the gas station was harmless beyond a reasonable doubt. As stated in Neder, supra, 527 U.S. at page 19: "In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee." Neder also stated that holding such an error harmless does not "reflect a denigration of the constitutional rights involved. [Citation.] On the contrary, it `serves a very useful purpose insofar as [it] blocks setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. [Citation.]"
II. Trial Courts Alleged Errors Regarding Admission of the Recording of Appellants Conversation
A. Appellants Arguments
Appellant argues that the trial court abused its discretion under Evidence Code section 352 and wrongly admitted the recording and transcript of appellants conversation in the police car. Appellant also argues that the trial court erred in giving the adoptive admission instruction in connection with the contents of the recording. Finally, appellant contends that the trial court erred in failing to instruct the jury pursuant to CALJIC No. 2.71 to view evidence of oral admissions with caution.
We refer to the video/audiotape as a recording for ease of reference. The image is static, however, and the camera is directed toward the front of the police car. The important part of the videotape is its audio portion that recorded appellants and Pauls conversation.
B. Proceedings Below
Appellant asserts that the prosecution relied solely on a fragment of the often unintelligible recording between appellant and co-arrestee Sergio Paul to prove the element of appellants knowledge of the guns presence. Appellant objected to the introduction of the recording, arguing that the transcript was "woefully incomplete," and noting that, although the recording was 25 minutes long, only certain portions were transcribed. Also, there were numerous places in which the transcript characterized the recording as "inaudible." Appellant also argued that Officer Thompson should have used more sophisticated equipment in order to create a more accurate transcript. Finally, appellant argued that the recording was more prejudicial than probative.
The court ruled, after reviewing the recording and the transcript, that the recording was more probative than prejudicial. The court allowed the prosecution to play the recording for the jury, and the jury was permitted to read the transcript while the recording was played. The recording was admitted into evidence, but the court ruled that the transcript would be marked for identification only and not received into evidence. Before the recording was played, the court told the members of the jury that the transcript might not be completely accurate and that they should use the transcript only as a guide while relying on the recording as the best evidence of what was said.
The transcript reveals the following exchange between appellant and Sergio Paul regarding the gun:
"D: (Mumbling) Why didnt we keep going? (Mumbling)
"Sergio Paul: Mutha fucka, you, the gun.
"Sergio Paul: Theyre gonna search us again. Know what I mean?
"D: Dont stress out much, but . . . they arent trippin on that.
"Sergio Paul: But what they said, though . . . You had the gun, man.
The time is included at intervals in the transcript.
"D: Yeah, the little pecker. Man, that mutha fucker was in that mutha fucker, we dont know how it got there; its a rental car, you feel me, `cause thats bullshit . . . [.]"
Subsequently, the prosecutor requested the court to read the adoptive admission instruction, CALJIC No. 2.71.5, with respect to the recorded conversation. The prosecutor argued that the instruction was appropriate because appellant was asked or told that he had the gun, and he did not make a denial. Instead, appellant said, "We dont know anything about that little pecker. Remember, this is a rental car."
Appellant objected to the reading of CALJIC No. 2.71.5, arguing that the prosecutor had misrepresented what Sergio Paul had said. He claimed that Paul had said, "But what they said, though, you, the gun, man." Paul had not accused appellant of anything, but had merely repeated what "they" said. Appellant argued that his response could not reasonably be construed as an adoption of anything. The court overruled appellants objection and gave the instruction.
The prosecutor argued during closing argument that the recording proved appellant had the requisite knowledge, stating: "The guy in his car, the other guy who was put in the patrol car says something about — You remember hearing it — `But man, that gun. [P] And the defendant says `That little pecker, you know. Its a rental car. [P] You remember that. Something to that effect. He responds. `That little pecker. Immediately after the guy says `But man, the gun. You had the gun. [P] Then you hear the defendants response about `That little pecker. Its a rental car. Thats bullshit, you know." The prosecutor went on to say that appellants words constituted an adoptive admission under CALJIC No. 2.71.5.
The jury requested both the recording and the transcript during deliberations. The court did not allow the jury to have the transcript.
C. Trial Court Did Not Abuse Its Discretion Under Evidence Code Section 352
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) A trial courts determination under Evidence Code section 352 will not be disturbed on appeal absent a clear showing of abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Such an abuse of discretion is established only by a showing that the discretion was exercised in a manner that is "arbitrary, capricious or patently absurd" and resulted in a "manifest miscarriage of justice." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, 885 P.2d 1.)
We conclude that the recording of appellants and Sergio Pauls conversation inside the police car was properly admitted. The record shows that the court heard arguments from both parties, viewed the recording and compared the transcript of the audio portion, and, generally, balanced the probative value against the prejudicial impact. The trial courts determination that a recording is substantially complete and correct with regard to material matters is within its broad discretion. (People v. Polk (1996) 47 Cal.App.4th 944, 953.)
Even though portions of the conversation were inaudible, these portions did not destroy the recordings relevancy. As long as there are intelligible and relevant statements that do not require recourse to speculation, a tape recording is admissible. (People v. Phillips (1985) 41 Cal.3d 29, 78, 222 Cal. Rptr. 127, 711 P.2d 423, quoting People v. Demery (1980) 104 Cal. App. 3d 548, 559, 163 Cal. Rptr. 814; People v. Polk, supra, 47 Cal.App.4th 944, 952-953; People v. Von Villas (1992) 11 Cal.App.4th 175, 225; People v. Miley (1984) 158 Cal. App. 3d 25, 36, 204 Cal. Rptr. 347.)
The recording in this case had substantial portions that were intelligible. These portions were relevant to the issue of, inter alia, appellants knowledge of the presence of the gun. The statements were more probative than prejudicial because appellants defense was lack of knowledge, and the recording clearly showed he demonstrated no surprise when his companion brought up the subject of the gun. The recording revealed appellants plan to blame the existence of the gun on the fact that the car was a rental. Appellant is also heard instructing his companion to say that a third person ("my homeboy") was driving: ". . . say that he walked off when he drove us across the street, remember that part, okay. Alright, he walked off. Just remember that part, okay. He walked off. He already left when he saw the little problem was going down. He walked off. Its a rental car. . . ." This strategy was clearly designed to bolster appellants claim that he was not driving and had no knowledge of the gun. Appellant is also heard to inform his companion that he told the police he was from the Virgin Islands, adding "you got that" and he said he hoped someone would not tell the police his real name.
In addition, having reviewed the recording and read the transcript, this court has determined that the transcript was not misleading. In any event, the transcript was provided to the jury for only a brief period of time, during the playing of the recording. The court did not admit the transcript into evidence and specifically informed the jurors that the transcript was not evidence.
We conclude appellant was not unduly prejudiced by admission of the recording and its transcript. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "All evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is `prejudicial. The `prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, `prejudicial is not synonymous with `damaging."" (People v. Gionis (1995) 9 Cal.4th 1196, 1214, 892 P.2d 1199.) The evidence of the recording was not such that it would create an emotional bias against appellant, and, because it was highly probative, appellants claim fails.
D. Trial Court Properly Gave Instruction on Adoptive Admissions
Over defense objection the trial court granted the prosecution request to have a jury instruction on adoptive admissions read to the jury. The court read CALJIC No. 2.71.5, as follows: "If you should find from the evidence that there was an occasion when the defendant, under conditions which reasonably afforded him an opportunity to reply, failed to make a denial in [the] face of an accusation expressed directly to him or in his presence, charging him with the crime for which the defendant now is on trial, or tending to connect him with its commission, and that he heard the accusation, and understood its nature, then the circumstance of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation thus made was true. [P] Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and conduct of the accused in the face of it. [P] Unless you find that the defendants silence and conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard that statement."
Appellant argues, as he did below, that Sergio Pauls remark about the gun was sufficiently unintelligible so as to rule out any conclusion regarding whether a response by appellant was called for. Moreover, he contends, he responded to Pauls remarks with a statement denying knowledge of the guns presence, and not with silence, evasion, or equivocation. Therefore, the adoptive admission instruction was unwarranted and the court erred by reading it.
As the transcript indicates, the portion of the recording pertinent to this issue reads as follows:
"D: (Mumbling) Why didnt we keep going? (Mumbling)
"Sergio Paul: Mutha fucka, you, the gun.
"Sergio Paul: Theyre gonna search us again. Know what I mean?
"D: Dont stress out much, but . . . they arent trippin on that.
"Sergio Paul: But what they said, though . . . You had the gun, man.
"23:50:00
"D: Yeah, the little pecker. Man, that mutha fucker was in that mutha fucker, we dont know how it got there; its a rental car, you feel me, `cause thats bullshit . . . [.]"
In People v. Riel (2000) 22 Cal.4th 1153, 998 P.2d 969, our Supreme Court, discussing the adoptive admission exception to the hearsay rule, stated, "If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt. [Citations.] `For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential. [Citation.] `When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the partys reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence. [Citation.]" (Id. at p. 1189.)
We disagree with appellants argument. An admission is any statement made by the defendant that is "relative to the offense charged." (People v. Ford (1964) 60 Cal.2d 772, 799, 36 Cal. Rptr. 620, 388 P.2d 892.) To be characterized as an admission, a statement need not be against the defendants interest. (People v. Mendoza (1987) 192 Cal. App. 3d 667, 675, 238 Cal. Rptr. 1.) Any statement by a defendant, even if self-serving when made, can be offered against him. (Ibid .) Appellants characterization of the record is unpersuasive, and his response to Pauls statement about the gun can reasonably be considered an admission. The recording clearly states that Paul said "You had the gun," regardless of which man called the gun "the little pecker." Appellant evinced no surprise or denial of his knowledge, but rather answered with a strategy for avoiding responsibility for the gun. A jury could reasonably infer that appellants response demonstrated consciousness of guilt and knowledge of the existence of the gun under the drivers seat. We conclude the trial court did not err in giving CALJIC No. 2.71.5, since substantial evidence supported the giving of the instruction. (Cf. People v. Riel, supra, 22 Cal.4th at p. 1189; People v. Medina (1990) 51 Cal.3d 870, 889-891, 274 Cal. Rptr. 849, 799 P.2d 1282; People v. Edelbacher (1989) 47 Cal.3d 983, 1011, 254 Cal. Rptr. 586, 766 P.2d 1; People v. Preston (1973) 9 Cal.3d 308, 313-314, 107 Cal. Rptr. 300, 508 P.2d 300.)
Moreover, because the recording contained some evidence of an adoptive admission, the court was required to give CALJIC No. 2.71.5, which is a pro-defense cautionary instruction that prevents jurors from giving unwarranted weight to mere accusatory statements. (People v. Humphries (1986) 185 Cal. App. 3d 1315, 1335-1336, 230 Cal. Rptr. 536; People v. Avalos (1979) 98 Cal. App. 3d 701, 711, 159 Cal. Rptr. 736.)
In any event, any error in charging the jury with CALJIC No. 2.71.5 was harmless because it is not reasonably probable appellant would have achieved a more favorable result had the jury not been so instructed. (People v. Breverman, supra, 19 Cal.4th 142, 149, 173.) Appellants knowledge of the guns presence under the seat was established because appellant was clearly the driver of the vehicle. He was found sitting in the drivers seat at the gas station, and the keys to the RAV4 were found inside appellants right front pocket. Also Ricky Tillman testified that the guards escorted appellant to a vehicle, and someone got out of the drivers seat as appellant approached the car. Given the circumstantial evidence of the gun being found in the car under the drivers seat and the evidence showing that appellant was the driver and tried to conceal that fact, it is not reasonably probable the jury would have reached a result more favorable to appellant absent the instruction.
E. Trial Court Did Not Err in Not Reading CALJIC No. 2.71
Appellant argues that the trial court was required to sua sponte instruct the jury to view evidence of oral admissions with caution pursuant to CALJIC No. 2.71. This instruction provides that "an admission is a statement by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crimes for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [P] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [P] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]"
The trial court did not err by failing to instruct that oral admissions should be viewed with caution. Jurors are told to view such statements with caution when the issue is whether the statements were in fact made — an issue that does not exist where, as here, the statements are recorded. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393, 935 P.2d 708; People v. Hines (1964) 61 Cal.2d 164, 173, 37 Cal. Rptr. 622, 390 P.2d 398, overruled on other grounds by People v. Murtishaw (1981) 29 Cal.3d 733, 774-775, fn. 40, 175 Cal. Rptr. 738, 631 P.2d 446; People v. Franco (1994) 24 Cal.App.4th 1528, 1541.) Although the recording had inaudible portions — largely when appellants companion was speaking rather than when appellant was speaking — the authenticity of the recording was not challenged, and there were many statements by appellant that were perfectly audible.
Appellants companion mumbled and, unlike appellant, did not articulate his words.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P.J., and ASHMANN-GERST, J.