Opinion
B160882.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. SHELLY POMPA, Defendant and Appellant.
Michael L. Plaut for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
Shelly Pompa appeals from the judgment entered after a jury convicted her of robbery with the use of a deadly weapon (Pen. Code, § 211, 12022, subd. (b)(1)) and she admitted that she had previously been convicted of a prior serious felony. (Pen. Code, §§ 667, subds. (a)(1), and (b) through (i).) She was sentenced to ten years in state prison. On appeal, she contends that the court erred when it instructed the jury with a modified version of CALJIC No. 2.06, when it failed to instruct the jury with CALJIC No. 2.71, and when it denied her motion for mistrial after the jury was inadvertently told that she had an alias. We find each of these contentions to be without merit and affirm the conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On January 11, 2002, Mynor Palencia was parking his car at a shopping center at Gage and Cesar Chavez Avenue in East Los Angeles. The windows of his car were open. A male approached him on the drivers side and asked for money. Palencia refused and the man approached him a second time, on the passenger side, and asked for money again in a more intimidating manner. Appellant appeared on the drivers side and held a knife to Palencias throat. She then reached into Palencias pants pocket and pulled out approximately $ 86. Appellant told him that if he tried anything, she or the male would shoot him. Then appellant left with the male and Palencia called the police from a pay phone. Later, Palencia identified appellant from a line up. He could not identify her male companion.
Palencia was the only witness to testify at the trial. Appellants defense was that Palencia was not credible.
DISCUSSION
1. Mistrial Motion
When the court read the information to the jury prior to voir dire, it stated, "the crime of second degree robbery in violation of Penal Code section 211, a felony, was committed by Cynthia Sandoval, who did, I guess, thats—is it Shelly Pompa?" Defense counsel said, "Shelly Pompa," and the court finished reading the information. In a sidebar conference, the court said that the information stated appellants name was Cynthia Sandoval, and defense counsel explained that Cynthia Sandoval was an alias, but that the court records had not been corrected. Defense counsel unsuccessfully moved for a mistrial.
Appellant contends that the mention of the alias was prejudicial because the jury was likely to believe that she had a "bad motive" for using an alias. In this situation, we can find no prejudice. There was nothing said to the jury to indicate that appellant ever used an alias. The courts reading suggests only that there was an incorrect name used on the information. There was no error in denying the motion for mistrial. (People v. Barnett (1998) 17 Cal.4th 1044, 1131-1133, 954 P.2d 384; People v. Pensinger (1991) 52 Cal.3d 1210, 1253, 278 Cal. Rptr. 640, 805 P.2d 899.)
2. CALJIC No. 2.06
Palencia, the victim, testified at trial that when he entered the courtroom, appellant addressed him, saying "Please not to say anything," although he did not know her. As a result, the court instructed the jury with a modified version of CALJIC No. 2.06: "If you find that the defendant attempted to suppress evidence against herself in any manner, such as by the intimidation of a witness, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
Appellant contends that the court erred in giving this instruction because there was no act of intimidation. Appellant misreads the instruction. "Intimidation" as used in the instruction, is merely an example of an attempt to suppress evidence, but the instruction applies to "any manner" of suppressing evidence. " Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilty from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. [Citation.]" (People v. Hart (1999) 20 Cal.4th 546, 620, 976 P.2d 683, quoting People v. Hannon (1977) 19 Cal.3d 588, 597, 138 Cal. Rptr. 885, 564 P.2d 1203.) An attempt to suppress is sufficient to warrant giving the instruction, and the evidence need not be actually suppressed. (People v. Hart, supra, 20 Cal.4th at p. 621.) Here, appellant was apparently trying to gain sympathy from Palencia so that he would not testify against her. There was no error in giving this instruction.
3. CALJIC No. 2.71
Appellant contends that, as a result of what she said to the victim in court, the court should have instructed the jury with CALJIC No. 2.71: "Evidence of an oral admission of the defendant not made in court should be viewed with caution." The instruction defines an admission as "a statement made by a defendant which does not by itself acknowledge his or her guilt." Any conceivable error in failing to give this instruction was utterly harmless. Since there was no evidence contradicting Palencias testimony, there is no probability that giving this instruction would have changed the result, especially since the jury was instructed with CALJIC No. 2.20 on evaluating a witnesss credibility. (People v. Carpenter (1997) 15 Cal.4th 312, 393, 935 P.2d 708.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J., and CURRY, J.