Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. SWF025646, Timothy F. Freer, Judge.
McINTYRE, J.
A jury convicted Kelle Lee Jarka of the first degree murder of his wife, Isabelle Jarka, and found true the allegation that he committed the murder for financial gain. Kelle appeals, contending: (1) the trial court erroneously instructed the jury with CALCRIM No. 371 regarding false evidence; and (2) the trial court erroneously gave a special jury instruction regarding the special circumstance of murder for financial gain. We find no prejudicial error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Kelle and Isabelle were married over 20 years and had two children together. On April 27, 2008, while Kelle was at church with their daughter, Isabelle told her mother, Tina Canchola, that she was concerned about Kelle because lately he appeared "very nervous" and spent a lot of time with another woman, Mina Guillermina. Guillermina's husband had recently died and had told Kelle to take care of his family. Isabelle informed Canchola that a friend and "elder" from their church, Jose Cespedes, was coming to the house that night to talk to the couple about her concerns.
Cespedes went to the Jarkas' home around 10:30 that night. Isabelle informed Cespedes that she just learned that Guillermina's husband had AIDS, and was unhappy that Kelle did not tell her or the church congregation about this. After a lengthy discussion with Kelle and Isabelle, Cespedes left the Jarkas' home around 3:30 a.m.
Later that morning, Kelle called Canchola and asked her to open her door and take his baby. When Canchola opened the door, Kelle handed her the baby and called 911 to report a break-in at his house. Kelle informed the 911 operator that he left his house around 8:00 a.m. to get coffee and milk, and when he returned, the door was open, the house was torn up, and the baby was crying. Kelle stated that he found Isabelle upstairs lying on the floor not breathing.
Surveillance video and receipts from a drugstore and coffee shop showed that Kelle made a purchase at the drugstore at 8:15 a.m. and subsequently bought two drinks at the coffee shop. Kelle left the coffee shop at 8:33 a.m. The drive from the coffee shop to the Jarkas' home, even during times of heavy traffic, takes approximately four minutes. Kelle's 911 call was made at 8:45 a.m.
When investigators arrived at the house, they noticed that a pedestrian door leading into the garage had been forced open and the door frame was broken. The vehicle that Kelle said he drove to the store was parked in the garage. Debris from the broken door frame did not extend past the vehicle, indicating that when the door was forced open, the vehicle was in the garage. Additionally, investigators discovered an area of paint transfer on the vehicle that matched the paint from the door. Investigators also conducted tests on a door leading from the garage into the house that Kelle told them he found ajar when he came home. The tests revealed that the door could not remain open on its own because it automatically closed and latched.
Inside the home, investigators discovered numerous things that are not typical of a burglary. A computer tower was missing, but investigators noticed that the computer cords had been unscrewed, rather than yanked out. Desk drawers were found standing on their ends. Investigators thought this was unusual, especially because the drawers had to be lifted up and angled out to be removed. In the upstairs master bedroom, the top dresser drawers were open, but the second drawer down was still closed and contained $509 in cash. Three drawers from a jewelry cabinet were removed and stacked up, rather than being quickly discarded.
Additionally, the blood evidence was unusual. Isabelle died of blunt force head trauma after being struck in the head 11 times with an unidentified weapon. Although there was blood around Isabelle's body, there was no blood found on the doors leading out of the house. A detective testified that it is unusual for a burglary victim to be struck 11 times because burglars do not typically engage their victims and fight with them. Based on the evidence at the crime scene, investigators believed that the burglary had been staged.
In early May 2008, investigators went back to the Jarkas' home to collect additional evidence. That day, Kelle gave detectives a bloodstained purse, claiming he found it on the treadmill in the master bedroom. However, a videotape of the crime scene taken during the original investigation did not show the purse on the treadmill.
During the subsequent investigation, investigators also discovered three life insurance policies, with a cumulative face value in excess of $1 million, in the Jarkas' home. Isabelle was the insured on each policy, and Kelle was the primary beneficiary. All three policies went into effect in April 2008. Investigators also found evidence suggesting that the Jarkas were having financial troubles, including past due bills, delinquency notices, and telephone messages from creditors asking for payment.
An analysis of Kelle's laptop computer, which was retrieved from his vehicle during the second investigation, revealed numerous Internet searches in March and April 2008. The search topics included: "poison, does that cause instant death, " "asphyxiation, " "how long to medically suffocate, " "half million life insurance, no exam, " "the death benefit to the family from Social Security, " "how long does a life insurance policy need to be in effect to pay out, " "faster life insurance payoff, " "when do you receive a life insurance benefit, " and "when to remarry after death."
Kelle was arrested on May 28, 2008, and charged with his wife's murder.
DISCUSSION
I. CALCRIM No. 371
Over the defense's objection, the trial court instructed the jury with CALCRIM No. 371 as follows: "If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself." Kelle contends: (1) the portion of the instruction regarding "false testimony" was improper because there was no evidence that he attempted to obtain false testimony; (2) instructing the jury regarding fabrication of evidence unfairly supported the prosecution's theory of the case and lessened its burden of proof; and (3) if any issue was forfeited due to counsel's failure to object or raise the issue, counsel rendered ineffective assistance of counsel. We reject the first two contentions, and therefore need not consider the third.
First, although Kelle argues that the portion of the instruction regarding "false testimony" was improper because there was no evidence at trial that he attempted to persuade a witness to testify falsely, Kelle failed to request a modification of the instruction. "[I]f defendant believed the instructions required clarification or modification, it was incumbent upon him to request it." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140.) Regardless, we conclude that any error in administering the "false testimony" portion of CALCRIM No. 371 was harmless. Other instructions informed the jury that certain instructions may not be applicable to the case. Specifically, the trial court stated, "Some of these instructions may not apply depending on your findings about the facts of the case. Don't assume that just because I give a particular instruction that I'm suggest [sic] anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." These instructions adequately alerted the jury that it should disregard any instructions that were not applicable to the facts of the case. Accordingly, we find no prejudicial error in including "false testimony" within CALCRIM No. 371.
Kelle's next contention is that the trial court's inclusion of CALCRIM No. 371 inappropriately endorsed the prosecution's theory of the case and lessened its burden of proof. Despite Kelle's recognition that consciousness of guilt instructions akin to CALCRIM No. 371 have been upheld against similar challenges (see People v. Jackson (1996) 13 Cal.4th 1164, 1224; People v. Coffman (2004) 34 Cal.4th 1, 102), he nevertheless argues it was improperly given in this case because evidence regarding fabrication of the burglary was "critical" to the prosecution's case in that "[t]he determination whether [he] staged the crime largely coincided with the determination of whether [he] was guilty." We note that Kelle does not cite to any legal authority to support this argument; regardless, we are not persuaded by his contention.
Here, the prosecution's theory was that Kelle murdered his wife and fabricated evidence regarding a burglary to suggest that he was not the perpetrator. CALCRIM No. 371 instructed the jury that "[i]f you conclude that the defendant made... an attempt [to create false evidence], it is up to you to decide its meaning and importance." Giving this instruction does not endorse the prosecution's theory of the case. Rather, the instruction admonishes the jury to consider the weight and significance of the evidence only if it first finds that the defendant did in fact fabricate evidence. There was ample evidence for the jury to conclude that Kelle fabricated the burglary. Thus, pursuant to CALCRIM No. 371, the jury was instructed to consider the weight and significance of that evidence. Further, the instruction advised the jury that an attempt to create false evidence "cannot prove guilt by itself." Given the substantial evidence in the record suggesting that the burglary was fabricated, we conclude that the cautionary nature of the instruction was beneficial to Kelle, rather than harmful, and correctly guided the jury's consideration of the evidence. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235 [cautionary instruction regarding consciousness of guilt is beneficial to the defendant]; People v. Kelly (1992) 1 Cal.4th 495, 531-532 [same].) Moreover, the trial court instructed the jury that the People were required to prove Kelle guilty on all of the elements of the charged offense beyond a reasonable doubt, and informed the jury that the court was not suggesting anything about the case by giving particular instructions. We presume the jury followed the instructions as given (People v. Osband (1996) 13 Cal.4th 622, 714), and the jury understood it was to consider the instructions as a whole and each in the context of all the others. (People v. Mills (1991) 1 Cal.App.4th 898, 918.) Considering the entire body of instructions, we conclude that the trial court's instruction to the jury on CALCRIM No. 371 did not impermissibly endorse the prosecution's theory or lessen its burden of proof.
Lastly, having determined that the trial court properly instructed the jury with CALCRIM No. 371, we need not address Kelle's ineffective assistance of counsel claim. (See People v. Price (1991) 1 Cal.4th 324, 440.)
II. Special Instruction Regarding Murder for Financial Gain
Kelle contends the trial court committed prejudicial error by giving a special instruction regarding the special circumstance of murder for financial gain. Specifically, Kelle argues that the instruction misled the jury regarding the requisite mental state for the special circumstance to apply and "diluted" the meaning of CALCRIM No. 720, the standard jury instruction regarding financial gain.
The trial court instructed the jury with CALCRIM No. 720 as follows: "The defendant is charged with the special circumstance of murder for financial gain in violation of Penal Code section 190.2(a)(1). [¶] To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant intended to kill; [¶] AND [¶] 2. The killing was carried out for financial gain."
In addition to the CALCRIM instruction, the People requested a special instruction on financial gain and offered two proposals. The first proposal provided as follows:
"In order for you to find that the killing was carried out for financial gain, you do not have to find that financial gain is the primary or sole motive for the killing. However, you must find that the Defendant committed the murder with the expectation that he would thereby obtain the desired financial gain."
The second proposal stated:
"In deciding whether the defendant committed the murder for financial gain, you do not have to find that the financial gain was a dominant, substantial or significant motive. The relevant inquiry is whether the defendant committed the murder in the expectation that he would thereby obtain the desired financial gain."
The trial court indicated that both of these instructions were correct statements of the law and that it was inclined to give a special instruction regarding financial gain because the CALCRIM instruction was not particularly helpful to the jury. When asked whether she objected to the instructions, defense counsel stated that she preferred the first proposed instruction over the second. Accordingly, the court instructed the jury with the People's first proposed instruction, as set forth above.
The applicable standard of review that guides our analysis with respect to Kelle's claim of instructional error was explained by the Court of Appeal in Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 335 (Mock): "'error in instructing the jury shall be grounds for reversal only when the reviewing court, "after an examination of the entire cause, including the evidence, " concludes that the error "has resulted in a miscarriage of justice." The test of reversible error has been stated in terms of the likelihood that the improper instruction misled the jury. [Citation.]' [Citations.] Thus, if a review of the entire record demonstrates that the improper instruction was so likely to have misled the jury as to become a factor in the verdict, it is prejudicial and a ground for reversal. [Citation.]" The Mock court also explained that "'[t]he determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all of the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn.' [Citations.]" (Mock, supra, 4 Cal.App.4th at p. 335; see also People v. Smithey (1999) 20 Cal.4th 936, 963 [stating that the relevant inquiry is whether "there is a reasonable likelihood that the jury misunderstood and misapplied the instruction"]; People v. Cain (1995) 10 Cal.4th 1, 35-36 [same].) In evaluating a claim that an instruction is misleading, we consider the instructions as a whole, not just in isolated parts. (People v. Smithey, supra, 20 Cal.4th at p. 963.)
Here, the special instruction was crafted from language in multiple cases wherein the court used the term "expectation" when considering whether the murder was carried out for financial gain. (See People v. Howard (1988) 44 Cal.3d 375, 409 (Howard) ["the relevant inquiry is whether the defendant committed the murder in the expectation that he would thereby obtain the desired financial gain"]; People v. Noguera (1992) 4 Cal.4th 599 [quoting Howard].) Kelle argues that by using the term "expectation, " the jury was misled regarding the mental state required for application of the special circumstance of murder for financial gain.
In our view, CALCRIM No. 720 properly sets forth the requirements of Penal Code section 190.2, subdivision (a)(1), and nothing in the statutory language requires further explanation. Thus, we agree with Kelle that use of the term "expectation" might, in some circumstances, lower the standard for application of the special circumstance; however, we conclude that it did not in this case as there was not a reasonable likelihood that the jury misunderstood or misapplied the instruction. There is no evidence of jury confusion because the jury did not request a reread of the instructions regarding murder for financial gain or any testimony. (Mock, supra, 4 Cal.App.4th at p. 335.) Moreover, this was not a "close case" or one in which there was a "conflict in the evidence" regarding financial gain. (Id. at pp. 335-336.) To the contrary, there was substantial evidence in the record supporting the jury's finding that the murder was committed for financial gain. The evidence indicated that the Jarkas were having financial troubles, and Kelle had obtained multiple life insurance on Isabelle just weeks before her murder. In addition, shortly before the murder, Kelle conducted multiple Internet searches regarding payment of life insurance benefits. Based on the evidence and the cumulative body of jury instructions given, including CALCRIM No. 720, we conclude that Kelle has not shown prejudicial error resulting from the special instruction. Despite our conclusion that there was no prejudicial error in this case, we strongly caution the trial court against giving jury instructions based on statements in cases as "[t]he reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind." (People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13.)
Lastly, Kelle asserts that if any issue was forfeited regarding the special instruction, counsel rendered ineffective assistance of counsel. In light of our conclusion that Kelle has not shown prejudicial error resulting from the special instruction, we need not address his ineffective assistance of counsel claim. (See People v. Price (1991) 1 Cal.4th 324, 440.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P.J., HALLER, J.