Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F00103
SIMS, J.A jury convicted defendant Larry Gale Johnson of two counts of second degree robbery. (Pen. Code, § 211; undesignated section references are to the Penal Code.) In a bifurcated proceeding, the trial court found that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior felony conviction (§ 667, subd. (a)).
Defendant contends the trial court committed prejudicial instructional error. We shall affirm.
FACTS
Around 6:45 p.m. on New Year’s Eve 2004, two men, wearing bulky black leather jackets and black ski masks or knit caps pulled down over their faces, entered a Starbucks at Stockton Boulevard and T Street in Sacramento. They grabbed the cell phone of customer Sheila Coleman, then forced the shift manager, Scotty Wilson, to open the safe. (They did not display weapons, but one gestured as if he had a gun hidden on his person.) They took about $872 from the safe and the cash registers. Although the robbers’ features were concealed, Wilson saw that the men were African Americans; he thought they stood six-two or six-three.
According to the probation report, defendant is African American, stands six feet, one inch tall, and weighs 245 pounds.
When the men left, Wilson called the police, who arrived quickly. After taking statements, they conducted a field show-up of a suspect in custody (defendant), but none of the witnesses could identify him.
When Coleman’s cell phone was taken, she was using it to inform Kevin Johnson, a friend who had just left the Starbucks, that something fishy was going on. Johnson drove back in time to see the apparent robbers (one a muscular six-feet two or three inches tall, the other smaller) leave the store and get into a car. Following them onto eastbound Highway 50, he spotted their car’s license number. They got off the freeway at 59th Street; he continued to follow them. Soon he saw their car, with a blown tire, parked in a residential neighborhood. He returned to the Starbucks and gave the police the car’s location and license number.
Marcia Frasinetti, who lived on a cul-de-sac off 59th and T Streets, heard a loud noise around 7:00 p.m., and then saw a car with a damaged tire on the cul-de-sac. After it stopped, a man jumped out and ran down the street. At the house where the car had stopped, Frasinetti and her neighbors found dollar bills all over the lawn.
California Highway Patrol (CHP) officers heading toward the Starbucks around 7:00 p.m. saw Sacramento city police there in force. After learning from dispatch that suspects had been seen jumping fences in the neighborhood of 59th Street, the CHP officers headed there. At Lorraine Court and 59th Street, they saw a man, later identified as defendant, walking toward them in the pouring rain, breathing heavily, and dressed only in a black sleeveless shirt, muddy khaki pants, and black tennis shoes. He said he did not live in the neighborhood, but had just been in a fight with his girlfriend somewhere nearby. The officers detained him and called for Sacramento city police. Searching the back yard of the house he had come from, the officers found two black knit gloves.
Sacramento Police Officer Tobias Williams went from the Starbucks to Lorraine Court and 59th Street, took defendant into custody, and conducted the field show-ups mentioned above. Then he dropped defendant off at his home in the 4100 block of Broadway. Back at the Starbucks, Officer Williams watched the surveillance videotape of the robbery, saw that the suspects were dressed similarly to defendant, and notified his supervisor.
Around 1:00 a.m. on January 1, 2005, Sacramento Police Officer Stephen Sanguinetti and his partner went to Brigette Gipson’s home in South Natomas to investigate a stolen-vehicle report. A man in the stairwell of her building said she was in, then entered her apartment ahead of them and went into the bedroom.
The officers told Gipson that her “stolen” car had been impounded because it was used in a robbery earlier in the day. She claimed she had left it on Fruitridge near Stockton with the keys inside after it overheated.
The identifying information the man in the apartment gave the officers did not check out. They accused him of being Larry Johnson, a suspect in the Starbucks robbery. After he admitted it, they detained him in their squad car.
Around 2:15 a.m., Officer Sanguinetti advised Gipson of her rights, warning her she might be liable as an accessory or a conspirator, and questioned her again. This time she said defendant came to her apartment at 9:00 or 10:00 a.m. on December 31 and they discussed their plans for the evening; he borrowed her car with a promise to bring it right back, but returned around 11:00 p.m., saying the car had been taken after he parked it on Fruitridge. On a chair in the apartment Officer Sanguinetti saw a big black leather jacket which matched the description of the jackets the suspects had worn; he seized the jacket as evidence.
Sacramento Police Detective Rod Guerra conducted a videotaped interview of defendant in custody starting at around 4:00 a.m. on January 1, 2005. The tape was played for the jury, which received a transcript.
After waiving his rights, defendant said that when stopped on the previous evening, he had just gotten out of the car of his girlfriend, Natalie Reed (for whom he could not give an address or phone number), due to an argument which had turned physical. After the police dropped him off at home, he spoke to Brigette Gipson, who was upset about her stolen car. He started walking down the street, and then got a ride to her place for $6 from “Shawn”; if not for Shawn (about whom he could give no further information) he probably would not have gone there. He had seen Gipson on the morning of December 31, but he was “just passing through.” He was not in her car on New Year’s Eve. He did not know why it was found near where the police stopped him. If Gipson said he borrowed it from her, she was lying.
After interviewing defendant, Detective Guerra went with another officer to defendant’s address around 7:30 a.m. on January 1. They found Natalie Reed, along with her cousin Yaphette Menefee and some small children, and took Reed’s statement. Then they went to Lorraine Court and 59th Street, where they found a car key, a wet dollar bill, shoe impressions, and a black ski mask in a back yard next to the one previously searched. The key turned out to open the doors and trunk of the impounded car.
Called by the People under a grant of use immunity, Brigette Gipson testified that she and defendant were once lovers, but for the last year had just been friends. She told the story about her car that she had first told Officer Sanguinetti. She claimed defendant did not come over on December 31, 2004, until near midnight. She did not remember telling the officer that defendant had borrowed her car that morning.
Also called by the People under a grant of use immunity, Natalie Reed testified that she and defendant had lived together for the last 10 years. On December 31, 2004, she planned to celebrate the holiday by taking a bus to Reno with Yaphette Menefee, but he wanted to go with Reed to the Hard Rock Cafe in Sacramento and did not want her going anywhere with Menefee, whom he disliked. They started yelling at each other, and then fought physically. They began fighting inside their apartment, then went out on the street, and then returned to the apartment. Then they got into the car of “T” (a friend who had just happened to pull into their driveway) and got a ride to a grocery store. After returning from the store, they resumed the argument, then got back into “T”’s car. After they had ridden a couple of blocks, still arguing, defendant got out of the car and walked off. “T” and Reed returned to Reed’s home. Reed stayed in after that; Menefee came by, but left to go to Reno alone. Later, the police dropped defendant off at home.
Reed had trouble remembering times, sequences, and other details in this story because she had been drinking from the time she woke up that day, as she normally did on New Year’s Eve.
Reed testified that around 2:30 or 3:00 a.m. on January 1 she had to pick up Menefee at a Denny’s on Florin Road, driving a friend’s car, because Menefee’s bus to Reno got snowed in and had to return to Sacramento.
Reed claimed that she did not remember what she told Detective Guerra on the morning of January 1, 2005, at her home. She admitted that she and defendant spoke on the telephone just before and just after Detective Guerra’s visit, but denied that they had discussed what to tell the police.
The People then played the tape of a three-way phone conversation between defendant, Reed, and Menefee, which the jury followed with a transcript. Reed admitted that this conversation took place immediately after Detective Guerra’s interview.
The trial court overruled defendant’s hearsay objection to the tape’s admission. Defendant now concedes that this ruling was correct.
At the start, Reed said to defendant: “I don’t know if I messed up”; she then called Menefee on “three-way.” Reed explained: “I told them you was here. I mean, I told them we got in a fight. I told them I was drunk so I don’t got times all the way down pat. . . . [¶] I told them we got in an argument about 5:00 or -- about 5:00 . . ., 5:30, 5:45 . . . .” Defendant replied: “Nigger, you was supposed to tell them we was fighting and you dropped me off and I walked off from you.” When Reed explained that she had said it all happened near their home, defendant said: “Nigger, I told them we was in a car over there by 59th and we was fighting and fuck, man.” Reed said: “I didn’t know what to say because I knew you was like -- we need to get the story straight. And I know you said about the fighting and shit but you didn’t tell me where to say we got in a fight.” Defendant then said: “Oh, fuck, shut up. . . . [¶] All you had to do was just shut up though.” They realized that they had also contradicted each other about the car and driver: he had said she was driving her burgundy or orange two-door car, but she had said “T” was driving and the car was a silver or gray or blue four-door.
Reed believed, incorrectly, that the police would not be able to pick up Menefee’s voice that way.
Reed proposed that they say defendant had falsely told her he was going out later that night with a friend to buy marijuana (as she had told the police) because he did not want her to know he was going to see Brigette Gipson. Defendant and Menefee agreed that Reed should tell the police nothing more.
After Reed ran through another version of what she should say, defendant replied: “Oh, shit. Don’t tell them that stupid ass shit when I just told you what the fuck I (Unintelligible). You -- you -- you talking and ain’t listening.” She answered: “I am baby, I’m listening. It’s just, I don’t -- that’s why I said, I fucked up. ‘Cause I let you -- ‘cause all I know is you said 5:30 we got in a fight. I didn’t hear you say where at and all that shit.”
Defendant explained: “See my whole point about telling them about the fight was just to let them know I went in that neighborhood for nothing. My -- my wife put me out in this neighborhood. I got away from her motherfucker ass, and she drove off.” Reed proposed telling the police that she “got in the car with old girl [sic] and I had to get out of the car -- ” Defendant interrupted: “Can’t tell them that shit.” Reed said: “Uh-huh. Oh, ‘cause they’d go question her and shit, huh? We can’t even be doing too much over this phone.”
Defendant did not testify.
DISCUSSION
The People requested several instructions on consciousness of guilt, including Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM Nos. 362 and 371. The trial court rejected an addition defendant proposed to CALCRIM No. 362 and overruled his objection to CALCRIM No. 371, then gave both instructions. Defendant contends that the court erred prejudicially by doing so. We disagree.
Defendant concedes that related instructions on adoptive admissions and on defendant’s own statements (CALCRIM Nos. 357 and 358) were properly given.
CALCRIM No. 362, as given orally, reads as follows:
“If the defendant made a false or misleading statement . . . related to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime, and you may consider it in determining his guilt. If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that defendant made such a statement cannot prove his guilt by itself.”
Defendant submitted the following additional language: “On the other hand, the statement may have been given out of fear of being convicted of a crime he did not commit.” The prosecutor asserted that the instruction as it stood was sufficient and defendant’s proposed addition was improperly suggestive. The trial court declined to give that additional sentence. Defendant does not now argue that the court should have so instructed.
CALCRIM No. 371, as given orally, reads as follows:
“If the defendant tried to hide evidence or discourage someone from testifying against him, 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.
“If the defendant tried to create false evidence or obtain false testimony, that conduct may show 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.”
The second paragraph does not appear in the written instruction found in the clerk’s transcript; however, the parties agree that it was given.
Defendant contends: (1) These instructions should not have been given because they did not fit the evidence. (2) In addition, they were improper “pinpoint” instructions. (3) Finally, they were prejudicial because the case against him was not otherwise strong: no one identified him as one of the robbers, and there was no “forensic” evidence linking him to the crime. We conclude, on the contrary, that the instructions were correctly given, but even if they had not been given it is not reasonably probable that defendant would have obtained a better outcome.
Defendant does not expand on this last point. If he means, however, that the People failed to present the sort of evidence which faithful viewers of “CSI” might expect to see in every criminal case, the short answer is that such evidence was not needed to prove this case. We explain why post.
Substantial Evidence Justified the Instructions
As to CALCRIM No. 362, defendant made statements to investigating officers, related to the crime (including his efforts to avoid detection), which the jury could reasonably have found to have been knowingly false or misleading: (1) his claim that he was found at Lorraine Court and 59th Street because he had gotten out of Natalie Reed’s car there; (2) his claim to Detective Guerra that he could not provide an address or phone number for Reed, who lived with him; (3) his denial that he was in Brigette Gipson’s car, identified as the robbers’ getaway car, on New Year’s Eve; and (4) his provision of false identifying information to Officer Sanguinetti.
Defendant does not address this evidence in this context. Instead, he discusses only his recorded conversation with Reed and Menefee. He asserts that his statements were not meant to mislead Reed because she knew the facts about her own conduct and they did not discuss the robbery, then asserts that they could not have been talking about “falsifying ‘evidence’” because they knew the police had already taken their statements, then concludes that his statements to Reed “could not be considered ‘admissions’ because they did not tend to prove his guilt of the charged offense.” This argument is not persuasive. The instruction was not limited on its face to the taped conversation. Thus, even if the People had requested it only with reference to that conversation (which the record does not show), that would not have precluded the jury from considering whether it covered other statements made by defendant.
As to CALCRIM No. 371, the jury could reasonably have found that defendant tried to “hide evidence” based on the officers’ discovery of gloves, a ski mask, and the keys to the getaway car in the back yards of houses near Lorraine Court and 59th Street after defendant was seen walking away from those back yards underdressed for the weather and breathing heavily. Contrary to defendant’s assumption, nothing in this instruction required the jury to consider it only as to the taped conversation. Thus we need not decide whether the conversation itself would have justified giving this paragraph of the instruction. However, as to the second prong of the instruction -- defendant’s attempt to create false evidence or obtain false testimony -- the taped conversation, in which the parties labored to try to figure out how the conflicting stories they had already told could somehow be fit together to form a convincing alibi, was substantial evidence of such an attempt.
Defendant cites People v. Stankewitz (1990) 51 Cal.3d 72 (Stankewitz) for the proposition that instructions along the lines of CALCRIM Nos. 362 and 371 “are limited to situations where a defendant makes false statements related to the crime, attempts to induce a witness to lie for him in a judicial proceeding or otherwise tries to fabricate evidence when a trial or prosecution is pending.” (Italics added.) Stankewitz, supra, 51 Cal.3d 72, does not so hold. It holds only that such facts justify an instruction on consciousness of guilt, not that such instruction may not be given absent those precise facts. (Id. at pp. 97-98.)
CALCRIM Nos. 362 and 371 Are Not “Impermissible ‘Pinpoint’ Instructions”
Defendant asserts that CALCRIM Nos. 362 and 371 are “impermissible ‘pinpoint’ instruction[s] that violated [defendant]’s right to due process by lessening the prosecution’s burden of proof.” We have already rejected this contention as to CALCRIM No. 362, and defendant does not give any reason why we should reconsider our view. (People v. McGowan (2008) 160 Cal.App.4th 1099, 1103-1104.) The Supreme Court has rejected this contention as to CALJIC Nos. 2.04 and 2.06, the precursors of CALCRIM No. 371. (People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224.) Defendant’s claim lacks merit.
The claim that “pinpoint” instructions are ipso facto “impermissible” is confused. The cases discussing true pinpoint instructions -- i.e., instructions which “pinpoint” a party’s theory of the case -- uniformly hold that they are proper. (See, e.g., People v. Wright (1988) 45 Cal.3d 1126, 1137; People v. Adrian (1982) 135 Cal.App.3d 335, 338.) What is incorrect is an instruction that “improperly implies certain conclusions from specified evidence” -- i.e., one which directs the jury to draw a particular legal conclusion from its consideration of specific evidence. (People v. Wright, supra, 45 Cal.3d at pp. 1137-1138.)
No Prejudice
But even assuming the instructions did not apply to the evidence, defendant cannot show that they caused him prejudice, for three reasons: (1) Instructions which are correct in law but irrelevant to the evidence are generally harmless (People v. Rowland (1992) 4 Cal.4th 238, 282), and the jury was directed to disregard any instructions it finds inapplicable. (2) The instructions given here are favorable to the defense. (3) The case against defendant was strong.
First, assuming CALCRIM Nos. 362 and 371 did not apply to the evidence, we presume the jury followed the trial court’s instruction to disregard them. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
Second, these instructions do not require the jury to find that any fact adverse to the defendant has been proven. Furthermore, they caution the jury that even if it so finds, that fact alone is not sufficient to prove guilt and the jury must determine what weight and significance to give it. “The cautionary nature of [such] instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]” (People v. Jackson, supra, 13 Cal.4th at p. 1224.)
Finally, there is no reasonable probability that defendant would have fared better if the instructions had not been given. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendant’s connection to the getaway car, the proximity of other evidence of the robbery to the spot where defendant was found, the incredibility of his explanation for being there at that time, and the other falsehoods he told or tried to persuade others to tell on his behalf, overwhelmingly pointed to his guilt. Contrary to defendant’s assertion, this was not a case that needed proof in the form of “forensic” evidence by criminalists or DNA experts. The evidence actually offered was sufficient to tie defendant to the crime beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J. BUTZ, J.
Defendant’s confederate was not tried in this case.
Menefee (also called by the People) testified that the bus to Reno got snowed in and returned to the Denny’s on Florin Road, where the passengers had boarded. She also testified, however, that Reed was with her from the time the bus left for Reno until they returned to Reed’s home early the next morning. The defense impeached Menefee on cross-examination with prior felony convictions, including sale of cocaine, possession of a firearm as a felon, and manslaughter.
During the instructions conference, defendant objected only to the first paragraph, asserting that he had not sought to discourage Reed from testifying or asked her to hide evidence.