Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 62078448, 62076442
ROBIE, J.
A jury found defendant Eugene Jacobb McBride guilty of carjacking, unlawful taking or driving of a vehicle, and petty theft with priors. The court found true he had two prior strikes, two prior serious felony convictions, and two prior prison terms. It sentenced him to 35 years to life in state prison.
On appeal, defendant contends the court erred by: (1) admitting statements he made to police at the time of his arrest; (2) modifying CALCRIM No. 362 (false statement); and (3) denying his motion to dismiss his strikes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497). Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Chris Beck lived with his father in a house in Auburn. He packed up his truck for a move to Truckee and planned on leaving the house early the next morning.
Beck waken at 3:30 a.m. as planned but went back to sleep for 20 minutes after hearing the roads were closed due to inclement weather, leaving the keys in the center console and the door of the truck unlocked. He waken 15 minutes later to the sound of someone starting his truck and walked out the front door to see defendant in his truck driving past him out of the driveway.
Beck gave chase and caught up with the truck. He jumped on the step bar on the driver’s side and held onto the construction rack, yelling at defendant and trying to reach inside the window to grab defendant. Reaching speeds of between 40 and 55 miles per hour, defendant drove erratically and swerved across both lanes of the two-lane road in an effort to dislodge Beck from the truck. Beck eventually jumped off and rolled to the ground, suffering minor injuries in the process. He went back home.
At 6:45 a.m., Beck’s friend, Jenna, picked him up in her car. While driving, they came across Beck’s abandoned truck resting in a ditch alongside the road and called the authorities. When police arrived, they found blood inside the cab. A number of Beck’s personal items were missing from the truck.
Later that morning, Sheriff Deputy Greg McKenzie and other officers arrested defendant at his home. Defendant had blood on his hands and a bandage on one of his fingers. Defendant’s wife told McKenzie that defendant cut himself with a knife. Defendant was handcuffed and detained in the backseat of a patrol car while deputies searched his home. They discovered a glass methamphetamine pipe and a metal pipe with marijuana residue on it but did not find any of the items stolen from Beck’s truck.
McKenzie opened the patrol car to advise defendant of his rights and tell him why he was being arrested. Before McKenzie could say anything, defendant blurted out, “I can give you the location where meth is being manufactured,” and told McKenzie he did not want to go to jail. McKenzie explained to defendant that he was under arrest for stealing a truck. Defendant continued to try to convince McKenzie not to take him to jail, telling him he knew where methamphetamine was being manufactured. He pleaded with McKenzie repeatedly during the drive to the jailhouse, saying, “I don’t want to go to jail” and offering to provide him with information.
During the booking process at the jail, McKenzie smelled a “strong odor” of alcohol on defendant’s breath. Tests showed defendant’s blood alcohol content was 0.12 to 0.13 percent.
DISCUSSION
I
Admissibility Of Defendant’s Statements To Police
As we have recounted, defendant told Deputy McKenzie he knew where methamphetamine was being manufactured and offered to provide information about it to avoid going to jail. Defendant repeated his offer even after he was told why he was being arrested and continued to do so while being transported to jail.
At trial, over defense objection, the trial court concluded the evidence was relevant to show defendant’s consciousness of guilt and its probative value substantially outweighed the risk of prejudice. At the same time, the court excluded references to “cooking” and “pounds” of methamphetamine as unduly prejudicial.
On appeal, defendant contends his statements were not relevant because he was not charged with a drug offense, the statements did not reflect a consciousness of guilt, they were “bad character evidence,” and they were substantially more prejudicial than probative. Defendant’s arguments fail.
Defendant raises these claims as encompassing federal constitutional and state law error. Our conclusion that there was no error disposes of both. (People v. Lewis (2009) 46 Cal.4th 1255, 1284 [The routine application of state evidentiary law does not implicate a defendant’s constitutional rights].)
“Relevant evidence” is “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; People v. Hill (1992) 3 Cal.App.4th 16, 28-29, overruled on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) Here, faced with the prospect of being returned to jail, defendant offered to make a deal with McKenzie to avoid going to jail. He persisted in his attempts to negotiate with McKenzie even after he was informed of the reason for his arrest, repeating his offer all the way to the jail. This evidence bore on defendant’s credibility because a jury could rationally conclude that defendant, believing he was guilty, was trying to get out of the situation by bartering with police by using information he had about other crimes.
Nevertheless, defendant urges other reasons he may have made the statements, i.e., he was “fairly intoxicated” when he was arrested, he was newly on parole following two prior serious felony convictions, he “knew that there was drug paraphernalia in his trailer,” and the drug paraphernalia found in the trailer “may have been placed on the hood of the patrol car.” It is these circumstances, he claims, that caused him to repeatedly offer information to McKenzie and tell McKenzie he did not want to go to jail. That there could have been other reasons for defendant to have made the statements goes to their weight, not admissibility. Defendant’s argument based on relevancy fails.
In a different attack on the admissibility of the evidence, defendant contends the statements were not admissible because they were neither false nor made to deliberately mislead or deceive McKenzie and did not relate to the charged crimes. Defendant misses the point. Whether the statements were false was irrelevant. He cites People v. Kimble (1988) 44 Cal.3d 480 and People v. Fritz (2007) 153 Cal.App.4th 949, as support for his belief that only “false statements” “relating to the issue of his guilt or innocence” are admissible to show consciousness of guilt. What defendant fails to recognize is that Kimble and Fritz dealt with only one category of evidence that shows consciousness of guilt, i.e. false statements that relate to the crime itself. There are others, i.e., flight after crime and the scenario we have here (trading information of other crimes for a get-out-of-jail-free card), that show consciousness of guilt without sharing the attributes discussed in Kimble and Fritz. They are nonetheless admissible. The fact defendant was trying to cut a deal with the arresting deputy to avoid going to jail is evidence of his consciousness of guilt, regardless of whether the statements (that defendant indeed knew where methamphetamine was being manufactured) were true and whether the statement related to the current crimes.
Finally, we find no abuse of discretion in the admissibility of this evidence. Although the statements were damaging to the defense, that is not synonymous with the undue prejudice that necessitates exclusion of evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) As we noted, the court did exclude portions of defendant’s statements that might tend to inflame, such as the reference to the large amount of methamphetamine (i.e. “pounds”) and “cooking” of the drug. Moreover, there was nothing in defendant’s challenged statements suggesting he was the one involved in drug activity, so defendant’s speculation that the evidence was simply evidence of his bad character is incorrect. On this record, defendant’s argument fails.
A reasonable inference from the at-issue statements were that defendant knew simply the location of methamphetamine manufacturing. This is all his statements included, he was not charged with a drug-related offense, and he was never questioned at trial about whether the drug paraphernalia found in the trailer belonged to him. It was the defendant who voluntarily admitted ownership of those items on cross-examination. Had he not done so, the jury might well have concluded the drug paraphernalia belonged to his wife or one of the many guests visiting his home. Having volunteered that information, however, defendant himself allowed the jury to draw the inference that he may have known more than simply a location for methamphetamine manufacturing, but that was not based on the limited statements offered to prove consciousness of guilt.
II
CALCRIM No. 362
The court modified CALCRIM No. 362 which in its unadulterated form deals with “consciousness of guilt” to be drawn from defendant’s “false statements.” The version given here stated as follows: “If the defendant attempted to dissuade the police from arresting him or taking him to jail, 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 did attempt to dissuade the police from arresting him or taking him to jail, it is up to you to decide its meaning and importance. However, evidence that the defendant did attempt to dissuade the police in such a manner cannot prove guilt by itself.”
CALCRIM No. 362 provides that if a defendant makes “a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead,” that conduct may show consciousness of guilt and the jury “may consider it in determining [the defendant’s] guilt.” The instruction further provides, “If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Defendant contends the court incorrectly removed the knowledge requirement and incorrectly told the jury “it is up to you to decide [the statement’s] meaning and importance.” The court’s modification of the instruction was appropriate. A knowledge requirement was unnecessary because the statement’s falsity was irrelevant to showing consciousness of guilt. The point of the statement was, regardless of whether defendant did or did not know where methamphetamine was being manufactured, he thought he could avoid jail by claiming he so knew and trading that information with police. Moreover, it was the jury’s job to determine what the statement meant and what weight to attach to it. The jury was neither incorrectly nor inadequately instructed.
Having found no error in the instruction or the admission of evidence, we reject defendant’s claim (inserted in the midst of his evidentiary and instructional arguments) that counsel’s performance was deficient based on a lack of adequate objection.
III
Denial Of Romero Motion
Defendant contends the trial court failed to take into consideration several mitigating factors, thus abusing its discretion in denying his Romero motion. We are not persuaded.
In support of his claim of abuse of discretion, defendant points to several “significant mitigating factors” he claims the trial court failed to take into consideration: he had a difficult childhood, suffering physical abuse and sexual abuse; he spent time at a boys’ ranch and prison, but was still able to obtain a high school diploma and attend college after release from custody; he had a long history of alcohol and substance abuse; and his offense was “committed when he was under the influence of alcohol.”
The record makes clear the trial court understood defendant’s background and current crimes and did not abuse its discretion in failing to strike one or both of defendant’s priors. The written Romero motion and the probation report contained detailed information regarding defendant’s upbringing and the difficulties he had as a child, as well as facts pertaining to defendant’s long-term drug and alcohol use. The court acknowledged having received and read, among other things, defendant’s moving papers and the probation report. Furthermore, in denying defendant’s motion, the court explained the discretion it had in granting or denying the Romero motion; found the carjacking to be very dangerous; noted defendant had been sent to a boys’ ranch as a juvenile; pointed out he “had and has a serious drug addiction problem”; and explained the nature of his prior convictions. In denying the motion, the court concluded defendant was a recidivist who posed a threat to society and was “the type of person [who] the Three Strikes Law was intended to apply to.” There was no error.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.