Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. VA 102839, Roger T. Ito, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Gloria Jackson appeals from the judgment following her conviction for one count of possession of rock cocaine. We hold that the trial court erred in instructing the jury under CALCRIM No. 361 (defendant’s failure to explain or deny adverse testimony) but we conclude the error was harmless and affirm the judgment.
FACTS AND PROCEEDINGS BELOW
Sheriff’s deputy Brian Anderson testified that he and his partner were patrolling the area of Elm and 88th Streets when he saw Jackson standing next to a car that had its motor running. No one was in the car but Jackson and two men were standing nearby. Anderson got out of his patrol car and walked toward Jackson. When Anderson was approximately 10 feet from Jackson, he saw her put a wadded up tissue and a white rock-like object on the roof of the car and begin walking away. Anderson recovered the rock-like object from the roof of the car along with the tissue in which he found another rock-like object. He believed these rock-like objects were rock cocaine and detained Jackson for questioning. In the course of this questioning Anderson observed that Jackson could not stand still, her pupils were dilated and her pulse was higher than normal. He formed the opinion that Jackson was under the influence of a stimulant and arrested her. When he asked her for identifying information Jackson refused to give her name, address or date of birth.
A criminalist with the Sheriff’s Department testified that the rock-like substances submitted by Anderson contained cocaine base.
Jackson testified in her defense. On the day she was arrested she was riding her bicycle home from a store when she saw two men she knew standing next to a car with its motor running. The men asked Jackson if they could borrow her bicycle for a few minutes. She agreed to let one of the men borrow the bike. Before the man rode away Jackson removed two bags that were hanging from the handlebars and placed them in the car parked next to where the men were standing. After awhile the man who borrowed the bicycle returned. As Jackson reached into the car to retrieve her bags a Sheriff’s patrol car pulled up. A deputy ordered her to step away from the car, which she did. Jackson had a cold and was holding a tissue in her hand. The deputy took the tissue and put it on the roof of the car then started circling Jackson while looking on the ground and around the car. Finding nothing, the deputy then searched the scarf that Jackson had around her neck and felt her hair. Again, he found nothing. Finally, the deputy ordered Jackson to remove her shoes. When she refused, the deputy handcuffed her, forced her to sit on the curb and removed her shoes himself. There were no drugs hidden in her shoes. The deputy then placed Jackson, still handcuffed, in the patrol car and drove her to the sheriff’s station. He never told Jackson why he was arresting her.
Jackson denied using or possessing cocaine that day and denied putting any object on the roof of the car. She also disputed Anderson’s testimony that she had trouble standing still and denied that he performed a field sobriety test on her.
The court instructed the jury under CALCRIM No. 361 that if the defendant failed to explain or deny inculpatory evidence when she reasonably could be expected to do so they could consider such failure in evaluating that evidence. In the People’s rebuttal closing argument the prosecutor asserted that Jackson had failed to explain “where the rocks came from” if not from her. Jackson objected and asked the court to “reread the instruction that says the defense doesn’t have to prove anything at all” or in the alternative to declare a mistrial. The court denied both requests.
The jury found Jackson guilty of one count of possession of cocaine base and the court sentenced her to the low term of 16 months. Jackson filed a timely appeal.
DISCUSSION
The court instructed the jury in the language of CALCRIM No. 361 as follows: “If the defendant failed in her testimony to explain or deny evidence against her, and [if] she could reasonably be expected to have done so based on what she knew, you may consider her failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime 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.”
The trial court erred in giving this instruction because there was no evidence in the prosecution’s case within Jackson’s knowledge that she failed to explain or deny. Essentially, Jackson’s testimony contradicted Anderson’s testimony point-by-point. Jackson denied possessing or using cocaine on the day in question; denied placing “rock-like objects” on the roof of the car; and denied exhibiting any signs of intoxication. “[A] contradiction is not a failure to explain or deny.” (People v. Saddler (1979) 24 Cal.3d 671, 682.)
We reject the People’s argument that there were questions in the case that Jackson should have answered but did not, such as: What was deputy Anderson’s motive for lying? Why did deputy Anderson arrest Jackson and not the two men she was with? Why did Jackson refuse to identify herself to deputy Anderson? The first two questions—why would Anderson lie and why would he single out Jackson for arrest—were not within Jackson’s knowledge. The third question—why did Jackson refuse to identify herself when arrested—was not asked on direct or cross-examination and was too tangential to the issues in the case to create a “logical gap” in Jackson’s testimony. (Cf. People v. Redmond (1981) 29 Cal.3d 904, 911, neglecting to ask defendant for explanation does not preclude failure-to-explain instruction where lack of explanation leaves “logical gaps” in the defense case.)
No reported decision has discussed the prejudicial effect of erroneously instructing the jury under CALCRIM No. 361. Decisions addressing its predecessor, CALJIC No. 2.62, have concluded that errors in giving that instruction were harmless because of the qualifying language in the instruction and because the trial courts also instructed the juries under CALJIC No. 17.31 which tells the jury: “Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist.” (See e.g. People v. Saddler, supra, 24 Cal.3d at p. 684; People v. Lamer (2003) 110 Cal.App.4th 1463, 1473).
Although the language of the CALCRIM instructions given in this case differ slightly from their CALJIC predecessors the same harmless error analysis applies.
CALCRIM No. 361 and CALJIC No. 2.62 both tell the jury that if the defendant failed to explain or deny evidence that she could reasonably be expected to explain or deny based on facts within her knowledge the jury may take that failure into consideration in assessing the truth of the uncontradicted evidence. In addition, CALCRIM No. 361 cautions the jury that the defendant’s failure to explain or deny the prosecution’s evidence “is not enough by itself to prove guilt” and that the People “must still prove each element of the crime beyond a reasonable doubt.” Unlike CALCRIM No. 361, however, CALJIC No. 2.62 also instructs the jury that “[i]f a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.” We do not believe that CALCRIM No. 361’s failure to include the cautionary language from CALJIC No. 2.62 is reasonably likely to lead to confusion on the part of the jury as to when it may draw a negative inference from the defendant’s failure to deny or explain the prosecution’s evidence. CALCRIM No. 361 informs the jury at the beginning of each of its two paragraphs that it only applies “if the defendant failed” to explain or deny the prosecution’s evidence. (Italics added.) A reasonable juror could not conclude from the evidence in this case that Jackson failed to explain or deny the prosecution’s evidence.
We do not agree with Jackson’s contention that she was prejudiced by the combination of the instruction under CALCRIM No. 361 and the prosecutor’s passing remark in her closing argument that Jackson had failed to explain “where the rocks came from.” The prosecutor made no attempt to tie this remark to CALCRIM No. 361. On the contrary, instead of focusing on what Jackson had failed to explain the prosecutor’s closing argument emphasized what the prosecution had proven. The prosecutor told the jury: “The evidence is clear. Simple. Just go back in the jury room and check off the boxes or check off the elements that I have proved beyond a reasonable doubt and come back with a verdict of guilty.” Thus, notwithstanding the prosecutor’s fleeting remark, and given that the judge also instructed the jury that some instructions may not apply depending on the jury’s view of the facts, the error was harmless. No reasonable juror would have concluded that Jackson could reasonably be expected to explain the police officers state of mind or “where the rocks came from.”
The court instructed the jury under CALCRIM No. 200 that “some of these instructions may not apply, depending on your findings about the facts of the case.”
For the reasons explained above, we conclude that although the court should not have instructed the jury under CALCRIM No. 361, under the circumstances of this case it is not reasonably probable that Jackson would have obtained a more favorable result in the absence of that error. (People v. Lamer, supra, 110 Cal.App.4th at p. 1473; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.