Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F05278.
MAURO, J.
A jury convicted defendant Rashad Delrico Mack of first degree murder and attempted robbery. On appeal, defendant contends the trial court prejudicially erred when it (1) refused to instruct the jury that, in evaluating the credibility of a witness, they could consider whether the witness was promised a benefit in exchange for his testimony, and (2) removed a juror during deliberations for intentionally concealing material information during voir dire.
We conclude that (1) the requested optional bracketed portion of CALCRIM No. 226 was not supported by the evidence, and the trial court did not err in declining to modify it; and (2) the trial court did not abuse its discretion in removing a juror who intentionally concealed material information during voir dire. We will affirm the judgment.
BACKGROUND
The night before the murder, victim Jesse Reiter and his friend Michael Boyd visited two bars in Woodland, drinking beer and shots of liquor. At closing time, they used some of Reiter’s cocaine and drove to Sacramento in Boyd’s Jeep Cherokee. They went to Club Fantasy, a strip club on Richards Boulevard. The men stayed at the strip club until it closed around 4:00 a.m.
Defendant’s cousin, Peter Walker, and one of Walker’s friends, Cheryl Cruz, were also at Club Fantasy until it closed. Walker and Cruz had been drinking alcohol and smoking marijuana at defendant’s house in the south area of Sacramento prior to visiting the strip club. When they left the club, they encountered Reiter and Boyd in the parking lot.
Reiter and Boyd asked Walker and Cruz if they knew where to find “some hoes and snow, ” the term “snow” referring to cocaine. Walker mentioned something about going down to Stockton Boulevard, but Reiter and Boyd instead decided to get a room at the nearby Governors Inn where they planned to call strippers to their room. Walker and Cruz also drove to the Governors Inn. In the motel parking lot, Walker told Reiter that he had a friend who was a stripper, and invited Reiter and Boyd to follow their car. Reiter and Boyd agreed, following Walker and Cruz to the south Sacramento neighborhood. During the drive, Walker spoke to defendant on his cell phone.
Around the corner from defendant’s house, Walker and Cruz pulled over and motioned for their followers to pull up beside them. Walker told Reiter and Boyd: “[W]ait here, we’ll be back.” Walker dropped Cruz off at her car and went to defendant’s house. Cruz also went to defendant’s house and saw Walker and defendant leave together.
Meanwhile, Reiter and Boyd used some more cocaine while they waited for Walker’s return. Five to ten minutes later, Walker and defendant pulled up behind Reiter and Boyd. Reiter got out of the Jeep, leaving the passenger door open. Walker then entered the Jeep through the passenger door and removed the keys from the ignition. Realizing that nothing good would come from this encounter, Boyd sat motionless in the driver’s seat, staring straight ahead in a state of shock. He then heard either Walker or defendant say “give me all of it, ” followed by the sounds of a struggle, and finally, a gunshot.
Defendant shot Reiter with a.410 caliber shotgun. The blast ripped through Reiter’s right thigh, severing his femoral artery and causing a massive amount of bleeding. As shock turned to panic, Boyd bolted from the Jeep and ran to a nearby house. Walker and defendant departed while Reiter screamed: “They shot me. They shot me. Call 911. I got hit in my femoral artery. Call 911. Help. Help.” Boyd called 911. He then went to Reiter and tried to stop the bleeding. Emergency services arrived a short time later, but the blood loss was too extensive. Reiter did not survive.
Following the shooting, Walker and defendant went back to defendant’s house. In the kitchen, Walker told defendant: “[W]hy did you do that? It didn’t have to go like that.” Defendant responded: “[F]uck, man, it wasn’t supposed to go down like this.”
Later in the day, defendant told one of his friends, Kenneth Jones, that he and his cousin had gone “around the corner” the night before to get cocaine from “two white guys.” When Jones asked defendant if he got the cocaine, defendant answered: “[N]o, man, dude was playing with me[, ] so I shot him. I shot him in his artery.” Defendant showed Jones the shotgun he used to shoot Reiter, took the gun apart, and had Jones hide the barrel beneath his backyard deck, where it was ultimately found. Twelve.410 caliber shotgun shells were also found in defendant’s bedroom.
A jury convicted defendant of first degree murder and attempted robbery. (Pen. Code, §§ 187, subd. (a), 664, 211.) The jury also found that defendant committed the murder during the commission of a robbery (§ 190.2, subd. (a)(17)), and that he intentionally and personally discharged a firearm causing Reiter’s death. (§§ 12022.53, subd. (d), 12022.5, subd. (a)(1).) The trial court sentenced defendant to a term of life in prison without the possibility of parole for the murder, plus a consecutive term of 25 years to life for the firearm enhancement. Pursuant to section 654, the trial court stayed a consecutive term of ten years for the enhancement of discharging a firearm causing death, a consecutive term of three years for the attempted robbery, and a consecutive term of 25 years to life for the firearm enhancement attached to the attempted robbery.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends the trial court prejudicially erred by refusing to instruct the jury that, in evaluating the credibility of a witness, they could consider whether the witness was promised a benefit in exchange for his testimony. According to defendant, this error “deprived [him] of his constitutional due process right to present a complete defense and his constitutional right to a jury determination of every material fact presented by the evidence including his defense.” We disagree.
CALCRIM No. 226 provides: “You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.” The instruction then lists several factors the jury may consider in evaluating a witness’s credibility, including the following bracketed factor: “Was the witness promised immunity or leniency in exchange for his or her testimony?” (CALCRIM No. 226.)
CALCRIM No. 226 provides in full:
This instruction must be given sua sponte by the trial court in every criminal case, but certain paragraphs may be omitted if they are not supported by the evidence. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 (Rincon-Pineda).)
Defendant asked the trial court to include the bracketed portion concerning promises of immunity or leniency in exchange for testimony. He argued that the bracketed portion was supported by substantial evidence that Kenneth Jones had implicated defendant in the shooting during his interview with police because of certain promises purportedly made to Jones by Detective Schneider. Specifically, Jones testified that he had been arrested on an outstanding Nevada warrant charging a probation violation, that Detective Schneider threatened to have his children taken by the Department of Social Services (DSS), and that Jones offered information about the shooting if Detective Schneider would promise that he would not be sent to Nevada, and that his children would be allowed to live with his mother instead of being taken by DSS. According to Jones, Detective Schneider said “he would see what he could do” about the DSS situation. Jones also testified that Detective Schneider told him: “Unless you work with us, you go back to Nevada. You have no friend, nobody on your side. Reno comes to take you back. But if you work with me, you’ll have someone on your side, and I’ll talk to the Reno folks, see if there is a way you can do your time here[.]”
Detective Schneider denied threatening to have Jones’s children taken by DSS, and further denied making any promises to Jones in exchange for his statement. Nowhere in the transcript of the interview was there any mention by Detective Schneider of DSS taking Jones’s children. However, Detective Schneider did acknowledge that Jones was afraid of being sent to Nevada because he “felt there was a hit on his head.” He also told Jones that, while he could not promise Jones that he would be able to stay in California, he would speak to the Nevada authorities on Jones’s behalf.
Detective Schneider sent a letter to the Nevada Department of Parole and Probation informing them of Jones’s cooperation in the investigation, and conveying Jones’s fear for his safety and request to have his probation transferred to California. Despite this letter, Jones was returned to Nevada to be incarcerated, and remained a Nevada inmate at the time he testified at trial.
Defendant does not contend that any promises were made in exchange for Jones’s testimony at trial. His argument is based solely on the promises purportedly made in exchange for Jones’s statement to police. The trial court declined to include the requested bracketed factor, agreeing with the People’s argument that this factor refers to a promise of immunity or leniency given in exchange for testimony at trial, and not to a promise given in exchange for a statement to police. The trial court did allow defendant’s attorney to argue that such promises made Jones’s testimony at trial unreliable under the general language of the instruction: “In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.” (CALCRIM No. 226.)
The trial court did not err in omitting the requested bracketed portion of CALCRIM No. 226. The bracketed portion of the instruction was not supported by the evidence. Jones was not promised immunity or leniency in exchange for his testimony. (CALCRIM No. 226.) While there is evidence that if Jones cooperated with the police, Detective Schneider would inform the Nevada authorities of Jones’s cooperation and would “see what he could do” about Jones’s DSS situation, this cannot be construed as a promise of immunity or leniency. Nor was the promised benefit offered in exchange for Jones’s testimony at trial. Indeed, by the time of trial, Jones had been sent to Nevada to be incarcerated. Thus, any perceived benefit to Jones had evaporated by the time he took the stand to testify against defendant.
Nevertheless, relying on People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), defendant argues that the trial court was required to modify the bracketed portion of the instruction to apply to this situation rather than reject it altogether. According to defendant, the bracketed factor should have been modified to read: Was the witness promised a “consideration or benefit” in exchange for his “extrajudicial statements” to police or testimony at trial? Falsetta does not impose such an obligation on the trial court. There, after upholding the constitutional validity of Evidence Code section 1108 (which permits the admission in a sex-offense case of evidence of a defendant’s other sex crimes for the purpose of demonstrating a propensity to commit such crimes), our Supreme Court held that the trial court erred by refusing to give a requested limiting instruction regarding the jury’s consideration of the other crimes evidence. (Falsetta, supra, 21 Cal.4th at p. 924.) While the requested instruction was “partially incorrect, ” the trial court had a duty to “tailor [the] proposed instruction to give the jury some guidance regarding the use of the other crimes evidence, rather than denying the instruction outright.” (Ibid., citing Evid. Code, § 355 [mandating limiting instruction on request].)
This case is distinguishable. Falsetta neither considered nor decided whether a trial court is required, upon request, to modify an inapplicable bracketed portion of CALCRIM No. 226 in order to render that portion applicable to the facts of defendant’s case. Cases are not authority for propositions not considered and decided. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620; LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 496-497, fn. 5.)
Moreover, the requested modification in this case is similar to the modification rejected in People v. Roberts (1992) 2 Cal.4th 271. There, our Supreme Court held that the trial court properly declined the defendant’s request to modify CALJIC No. 2.20 to “specify that the jury must also consider the state’s specific promises and payments to certain prosecution witnesses in evaluating credibility” because the “requested instruction would have been too argumentative.” (Id. at p. 313.) The court explained: “‘A criminal defendant is entitled, on request, to an instruction “pinpointing” the theory of his defense. [Citations.] As we recently explained, however, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories “is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.” [Citation.]’ Here the defense ably attacked the witnesses’ credibility throughout the trial, which was the proper place to emphasize the state’s promises and payments.” (Id. at pp. 313-314.)
Similarly, in the instant case, the trial court allowed defendant’s attorney to argue that the promises made to Jones in exchange for his statement to police rendered his testimony at trial unreliable under the general language of CALCRIM No. 226: “In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.” (CALCRIM No. 226.) This was the proper place to emphasize these purported promises.
Nor was defendant “deprived... of his constitutional due process right to present a complete defense and his constitutional right to a jury determination of every material fact presented by the evidence including his defense.” While defendant correctly points out that he is “entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor” (Matthews v. United States (1988) 485 U.S. 58, 63 [99 L.Ed.2d 54, 61]), and that he is further “‘entitled, on request, to an instruction “pinpointing” the theory of his defense’” (People v. Roberts, supra, 2 Cal.4th at pp. 313-314), CALCRIM No. 226 merely informs the jury how to assess the credibility of witnesses. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1240.)
Simply put, the trial court was not obligated to completely rewrite the bracketed factor concerning promises of leniency or immunity in exchange for testimony in order to make it applicable to defendant’s case. Because inapplicable portions of CALCRIM No. 226 may be omitted (see Rincon-Pineda, supra, 14 Cal.3d at pp. 883-884), the trial court did not err when it omitted this portion of the instruction.
II
We also disagree with defendant’s assertion that the trial court prejudicially erred by removing a juror during deliberations for intentionally concealing material information during voir dire.
A
On the eighth day of jury deliberations, a juror sent an anonymous note to the court, which stated: “I must share a concern regarding a fellow juror. I do not know his juror number but his name is Bill. Bill made statements last week in reference to personal matters involving prior interactions with the law. He stated, and I paraphrase, ‘I have been there, I know what it is like to be accused falsely.’ I feel this is influencing his responsibility to this case and I question if he can be impartial.”
The trial court expressed two concerns: first, that these prior interactions with the law, in which the juror felt falsely accused, might make him biased against law enforcement; and second, the juror made no reference to these interactions with the law on his juror questionnaire or during voir dire. For instance, question No. 30 of the juror questionnaire asked: “Have you or anyone close to you ever been arrested for or accused of a crime of any kind?” (Original emphasis.) The juror answered: “No.” Question No. 27 of the questionnaire asked: “Have you ever had any direct contact with any city, county, state or federal law enforcement agency, including the filing of reports, lodging complaints, being questioned regarding yourself or others, or being cited for a traffic violation, or otherwise?” The juror answered: “Ticket for expired registration.”
The trial court then explained that the prosecutor had located a misdemeanor complaint filed against the juror in 1993 charging him with possession of a controlled substance. This charge arose out of an incident in which a backpack containing methamphetamine (along with several documents identifying the juror) was found at the juror’s place of employment. An arrest warrant was mailed to the juror’s home, but apparently no other attempt was made to inform the juror of the charges, and the complaint was ultimately dismissed “due to [a] lack of service.”
Over the objection of defense counsel, the trial court brought in the juror for questioning. The juror denied having been falsely accused of any crime, and further denied any knowledge of the incident involving the methamphetamine found in the backpack. He did admit to stating during deliberations that, “in the old days, ” he was pulled over and searched “on a regular basis” simply because he had long hair and drove a van. The juror further explained that he was stopped and searched approximately 20 times over the span of roughly 13 years, but did not disclose these incidents on his juror questionnaire because he “never got a ticket for them.”
The trial court removed the juror, explaining that his “response to question number 27 was not truthful and forthcoming.” As the court explained its reasoning, the question clearly and unambiguously asked whether the juror had any “direct contact” with law enforcement, including the filing of reports, lodging complaints, being questioned, being cited for a traffic violation, “or otherwise, ” and the juror intentionally concealed roughly 20 occasions in which he was pulled over and searched by law enforcement, and believed the searches were conducted solely because he had long hair and drove a van. The court found that this intentional concealment raised a presumption of prejudice within the meaning of People v. Blackwell (1987) 191 Cal.App.3d 925 (Blackwell) and removed the juror.
As an independent ground for removing the juror, the trial court explained that the juror’s demeanor during questioning and “carefully qualified” answers caused the court to conclude by clear and convincing evidence that he was not being truthful about the incident involving the methamphetamine found in the backpack.
B
Defendant asserts that his constitutional rights to due process and to a fair trial by an unbiased jury were infringed by the removal of this juror “because the record fails to establish that the juror intentionally concealed material information on his questionnaire or during voir dire.” According to defendant, “[a]ny failure to disclose pertinent information... was likely unintentional or inadvertent.” We are not persuaded.
Section 1089 gives the trial court the authority to discharge a juror who, upon good cause shown, is found to be unable to perform his or her duty. Because “[a] juror’s duty is to weigh the evidence and credibility of witnesses with impartiality and to reach a fair and unbiased verdict, ” a finding of “actual bias, which would have supported a challenge for cause, renders [the juror] ‘unable to perform his [or her] duty’ and thus subject to discharge and substitution” under section 1089. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1484.)
We review the trial court’s decision to discharge a juror under the deferential abuse of discretion standard, and will uphold the decision unless it falls outside the bounds of reason. (People v. Earp (1999) 20 Cal.4th 826, 893; see also People v. Halsey (1993) 12 Cal.App.4th 885, 892 [noting few cases have found an abuse of discretion].) “The substitution of a juror for good cause pursuant to section 1089, even after deliberations have commenced, ‘“does not offend constitutional proscriptions.”’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 820-821 (Wilson).) However, in order to protect a defendant’s constitutional rights to due process and to a fair trial by an unbiased jury, “a juror’s inability to perform as a juror must be shown as a ‘demonstrable reality.’” (Id. at p. 821; see also People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Where a juror intentionally conceals material information or provides false answers during the voir dire examination, actual bias may be presumed and the juror removed. (Wilson, supra, 44 Cal.4th at pp. 822-823; People v. McPeters (1992) 2 Cal.4th 1148, 1175 (McPeters), abrogated by statute on another point as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107; see also People v. San Nicolas (2004) 34 Cal.4th 614, 644.) However, “mere inadvertent or unintentional failures to disclose are not accorded the same effect. ‘[T]he proper test to be applied to unintentional “concealment” is whether the juror is sufficiently biased to constitute good cause for the court to find under [section 1089] that [the juror] is unable to perform his [or her] duty.’” (McPeters, supra, 2 Cal.4th at p. 1175.) In determining whether the juror intentionally concealed material information, we must consider “‘“whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited....”’” (Blackwell, supra, 191 Cal.App.3d at p. 930.)
We conclude that question No. 27 was both relevant and unambiguous, that the juror had substantial knowledge of the information sought to be elicited, and that he nonetheless concealed roughly 20 occasions in which he had “direct contact” with law enforcement. Thus, the trial court did not abuse its discretion in removing the juror for intentionally concealing material information during voir dire.
Defendant’s reliance on People v. Dyer (1988) 45 Cal.3d 26 (Dyer), Wilson, supra, 44 Cal.4th 758, and Sanders v. Lamarque (9th Cir. 2004) 357 F.3d 943 (Sanders), is misplaced.
In Dyer, supra, 45 Cal.3d 26, a juror was asked whether any member of her family had been a “crime victim.” While her brother had been shot and killed five years earlier, she answered “no” because she believed the shooting was an accident. (Dyer, supra, 45 Cal.3d at p. 58.) The trial court found that the juror was telling the truth and denied defendant’s motion for a mistrial. (Id. at pp. 58-59.) Our Supreme Court found no abuse of discretion, explaining: “The questions defendant prepared for voir dire were ambiguous; if the question at issue had asked whether any member of the family had been shot or killed by another person, [the juror’s] answer probably would have been different. There is no evidence that [the juror] was lying when she answered ‘no’ to the question and its reference to ‘crime victims.’” (Id. at p. 59, citing Blackwell, supra, 191 Cal.App.3d at pp. 929-931.)
Here, the juror was asked whether he had any “direct contact” with law enforcement, including the filing of reports, lodging complaints, being questioned, being cited for a traffic violation, “or otherwise.” Unlike the question posed in Dyer, this question is not ambiguous. The juror explained that he did not reveal the many occasions in which he was pulled over and searched because he never received a ticket. However, while being cited for a traffic violation was included as a specific example of direct contact with law enforcement, the question asked for “any direct contact” (italics added), and included the phrase “or otherwise” after the list of examples. Being pulled over and searched on numerous occasions certainly qualifies as direct contact with law enforcement. Moreover, unlike Dyer, the trial court concluded that the juror was not telling the truth, based on the juror’s demeanor while answering questions.
In Wilson, supra, 44 Cal.4th 758, a juror was removed during the penalty phase of a capital murder trial. He was the sole juror voting for life imprisonment, and made a number of comments concerning race during penalty phase deliberations, including: “‘“I don’t expect you to understand; you’re not black.” “Black people don’t admit being abused.” “Black kids have a different relationship with their fathers.”’” (Id. at p. 818.) The trial court found that he “‘concealed his racial biases and fundamental belief in racial stereotypes on voir dire.’” (Id. at p. 819.) Our Supreme Court disagreed: “The record fails to demonstrate that [the juror] concealed anything. He was never asked whether he would interpret evidence of any abuse defendant may have suffered as a child through the prism of his own experiences; indeed, we expect jurors to use their own life experiences when evaluating the evidence. [Citation.]” (Id. at p. 823.) While the juror affirmed during voir dire that “he would not consider defendant’s race to benefit or disadvantage him and that he would treat him like he would anyone else, ” he explained during the penalty phase that “he viewed the mitigating evidence favorably because defendant came from a broken, disadvantaged family, not simply because he was African-American.” (Ibid.) And while the trial court “apparently concluded that [the juror] had concealed certain race-based assumptions regarding the nature of family dynamics in African-American families, especially with regard to young men who grow up without strong positive male role models, ” he was not asked about that subject during voir dire, and the “failure to express his views about African-American family dynamics is not the kind of concealment that would justify [his] removal from the jury under section 1089, i.e., something showing ‘good cause’ he was ‘unable to perform his... duty [as a juror].’” (Id. at pp. 823-824.)
This case is not like Wilson. Here, the juror was not removed for concealing views that he was not asked about during voir dire. Instead, he was removed for failing to reveal roughly 20 times in which he was pulled over and searched, purportedly because he had long hair and drove a van, after he was specifically asked to reveal “any direct contact” with law enforcement.
Nor is this case like Sanders, supra, 357 F.3d 943, in which a juror was removed because the trial court erroneously concluded that she failed to disclose her sons’ gang affiliation or that she lived in a neighborhood where there was gang activity. In reality, the juror “answered questions about her sons’ activities in detail and did not, in fact, live ‘in a neighborhood where apparently there was... gang activity going on.’” (Id. at pp. 947-949.) Here, unlike Sanders, the record fully supports the trial court’s conclusion that the juror in this case failed to disclose numerous direct contacts with law enforcement despite the fact that this was precisely what he was asked to disclose during voir dire.
The trial court did not abuse its discretion in removing the juror for intentionally concealing material information during voir dire.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., NICHOLSON, J.
“You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.
“In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
“How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
“How well was the witness able to remember and describe what happened?
“What was the witness’s behavior while testifying?
“Did the witness understand the questions and answer them directly?
“Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
“What was the witness’s attitude about the case or about testifying?
“Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
“How reasonable is the testimony when you consider all the other evidence in the case?
“[Did other evidence prove or disprove any fact about which the witness testified?]
“[Did the witness admit to being untruthful?]
“[What is the witness’s character for truthfulness?]
“[Has the witness been convicted of a felony?]
“[Has the witness engaged in [other] conduct that reflects on his or her believability?]
“[Was the witness promised immunity or leniency in exchange for his or her testimony?]
“Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
“[If the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.]
“[If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject.]
“[If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]”