Opinion
C043819.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. LARRY JOSEPH LEVINE, Defendant and Appellant.
A jury convicted defendant Larry Joseph Levine of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a) - count 1) but acquitted him of assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) - count 2). In bifurcated proceedings, the trial court found true the allegation defendant had a 1985 serious felony conviction for violating section 245, subdivision (a). (§§ 667, subds. (c), (d) & (e)(1), 667.5, subd. (c), & 1192.7, subd. (a).) At sentencing, the court struck the prior, found it was an unusual case, suspended imposition of sentence, and granted defendant probation. The court ordered defendant to serve 180 days in county jail, less 180 days credit for time served.
All further statutory references are to the Penal Code.
The sole issue on appeal is whether defendant is entitled to reversal because the court failed to instruct the jury sua sponte that defendants admission should be viewed with caution, using CALJIC No. 2.71. We shall affirm the judgment.
CALJIC No 2.71 (7th ed. 2003) reads: "An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [¶] 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. [¶] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]"
FACTUAL AND PROCEDURAL BACKGROUND
Mary Matthews had been dating defendant for four years. On October 30, 2002, she was living with him in a camper parked in Woodland. Matthewss five-year-old grandson also lived with her and defendant.
Defendant spent the afternoon and evening drinking, and started an argument with Matthews around 3:00 oclock in the morning. Defendant pulled Matthews from the bunk where she had been sleeping. She hit her head on the steps. He then forced her to the ground and choked her with his hands. Matthews testified defendant squeezed her neck for approximately 15 minutes, causing her to foam at the mouth and lose consciousness. She bit defendants finger to make him let go, but she was unable to speak.
Defendant eventually released Matthews. When she attempted to get out the door, defendant grabbed a steak knife, put it to her neck, and said, "`Bitch, Ill kill you." Matthews escaped from the camper when defendant turned away to calm her grandson, who had witnessed the incident. She immediately called 911 from a nearby pay phone.
Woodland Police Officer Dallas Hyde responded to Matthewss call and spoke to her at the scene. He reported that Matthews was very upset and sometimes difficult to understand. Hyde observed scratches on the back of her neck and photographed the injuries. Matthews told him she received the injuries in a fight with defendant.
Officer Hyde also made contact with defendant, who was intoxicated and incoherent. Most of defendants answers made no sense, but he did deny that any physical altercation had occurred.
Defendant presented no evidence on his own behalf at trial.
DISCUSSION
Defendant argues the trial courts failure to instruct the jury sua sponte that his admission should be viewed with caution denied him his federal and state constitutional rights to a fair trial and due process of law. We conclude any error in failing to instruct the jury with CALJIC No. 2.71 was harmless on this record.
There is no dispute that defendants threat, "Bitch, Ill kill you," was an admission — that is, an extrajudicial statement made by the defendant that tends to prove his guilt when considered with the rest of the evidence. (People v. Brackett (1991) 229 Cal.App.3d 13, 20.) Defendant is also correct that the court must instruct the jury sua sponte in accordance with CALJIC No. 2.71 when there is evidence of an admission. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224 (Bunyard), quoting People v. Beagle (1972) 6 Cal.3d 441, 455 (Beagle ).) The purpose of the admonition is to aid the jury in determining whether the admission was, in fact, made by the defendant. (People v. Bemis (1949) 33 Cal.2d 395, 400.)
However, the trial courts failure to give CALJIC No. 2.71 is not reversible error if, on reweighing the evidence, the appellate court concludes it is not reasonably probable that the jury would have reached a verdict more favorable to the defendant absent the error. (Bunyard, supra, 45 Cal.3d at p. 1224; Beagle, supra, 6 Cal.3d at pp. 455-456; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
In People v. Carpenter (1997) 15 Cal.4th 312 (Carpenter), a murder case, the Supreme Court held that the failure to give CALJIC No. 2.71 was harmless under "the normal standard of review for state law error." (Carpenter, supra, 15 Cal.4th at p. 393.) The Supreme Court explained that the failure to give the cautionary instruction was not one of the very narrow categories of error that render a trial fundamentally unfair. (Ibid.) After reviewing the record, the Supreme Court noted that the defendants admission involved five "simple" words — "`"I want to rape you"" — spoken when defendant had the witnesss full attention. (Id. at pp. 392, 393.) It continued, "[T]he court fully instructed the jury on judging the credibility of a witness, thus providing guidance on how to determine whether to credit the testimony. Accordingly, there is no reasonable probability the error was prejudicial; indeed, we would even find the error harmless beyond a reasonable doubt." (Id. at p. 393.)
The same is true in the case before us. It is undisputed that defendant held a knife to Matthewss neck and said, "Bitch, Ill kill you." Matthewss testimony that defendant choked her was corroborated by Officer Hyde and the photographs. Moreover, the trial court fully instructed the jury on how to assess witness credibility using CALJIC Nos. 2.13 [prior consistent or inconsistent statements as evidence], 2.20 [believability of witness], 2.21.1 [discrepancies in testimony], 2.22 [weighing conflicting testimony], 2.27 [sufficiency of testimony of one witness], and 2.61 [defendant may rely on state of the evidence].
We reject defendants suggestion that it was reasonably probable the error would have affected the verdict because "the jury did not find the prosecutions case entirely credible, as evidenced by their unwillingness to return a guilty verdict on Count II." Counts 1 and 2 involved separate offenses with different elements. (See §§ 273.5, subd. (a), 245, subd. (a)(1).) The record supports the jurys determination that defendant inflicted corporal injury on Matthews as alleged in count 1. Defendant offers no theory under which his admission might have affected that verdict. It is mere speculation that the cautionary instruction would have made any difference to the outcome.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J. and ROBIE, J.