Opinion
2d Crim. No. B197452
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE R. RIVAS, Defendant and Appellant.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
Appellant Jose R. Rivas was convicted by jury of the unlawful taking of a vehicle (count 4, Veh. Code, § 10851, subd. (a)); misdemeanor giving false information to a peace officer (count 3, Pen. Code, § 148.9, subd. (a)); and misdemeanor battery of his ex-girlfriend (count 2, § 243, subd. (e)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
Appellant admitted the allegation that he had suffered a prior strike conviction within the meaning of section 667, subdivisions (c)(1) and (e)(1) and section 1170.12, subdivisions (a)(1) and (c)(1). Appellant also admitted that, by virtue of his conviction in the instant case, he had violated probation in another matter.
We granted appellants request to amend his notice of appeal to include an appeal from the trial courts award of presentence custody credits in a separate matter, case No. 2002027336. Appellant has since informed us by letter that the custody credits have been corrected by the trial court, thus the only issues on appeal are those raised in case No. 2005044748.
Appellant was sentenced to state prison for a total term of four years. The trial court selected the mid-term of two years on count 4, which was doubled under the Three Strikes law for the prior felony conviction. The court imposed a sentence of one year in county jail on count 2 and 180 days in jail on count 3, to be served concurrently with the sentence on count 4.
Appellant received credit for 464 days of time served, including 326 actual days and 138 days of conduct credit. He was ordered to pay restitution and parole revocation fines of $400 each and his drivers license was suspended for six months. He alleges instructional error and claims that his admission of a prior conviction allegation is invalid because it was not intelligently made. We affirm.
FACTS
Rosa Garcia and her adult daughter, Maria, lived in an apartment on Picasso Road in Goleta. Marias husband is related to appellant. Rosa owns a dark red Toyota RAV 4 with standard California license plates. On December 15, 2005, Rosa arrived home from work about 10:20 p.m. and found appellant sleeping on her sofa.
Later that evening Rosa, Maria and appellant used the car to run an errand. Rosa was tired, so Maria drove. Appellant asked Maria if he could have a ride to Ventura. Rosa interrupted and denied the request because she had to work the next morning. Maria told appellant that she could not take him to Ventura because the car was not hers. All three returned to Rosas home about 11:30 p.m. Rosa placed the car keys on top of a table and went to bed. She heard appellant ask Maria again if she would drive him to Ventura. The next morning Rosa found that appellant and her keys were gone. She called the police at approximately 9:00 a.m. and reported that her car was missing. Rosa had never given appellant permission to drive her car.
On December 16, 2005, appellant visited his former girlfriend, Stephanie Castro, who lived in Fillmore. Appellant and Castro had separated a month earlier, and Castro lived with the couples five children. At approximately 10:30 p.m., appellant called Castro and said he was coming to her house. He arrived at approximately 11:00 p.m. and asked her who was there. Appellant yelled at Castro and struck her on the right side of the mouth. He told her that if she wanted to see her children the next day, she had better tell him what was going on.
Appellant walked into the kitchen and Castro called 911. He grabbed the phone out of her hand and hung it up saying, "You aint calling nobody fucking bitch." Appellant called someone else on the phone. When he hung up, the 911 dispatcher called back. Appellant answered the phone and said, "No, wrong number." Castro grabbed the phone away from appellant and told the dispatcher that he had hit her. Appellant left the house and got into a burgundy-colored car.
In response to the 911 call, Deputy Sheriff Hector Macias arrived at Castros home and noticed she had a slightly swollen lip with a small dot of blood, consistent with having been struck on the side of the face. Castro later told Macias that appellant tried to pull the phone out of the wall, had struck her on the right side of her mouth and threatened her children. She said that appellant should be arrested. At trial, Castro denied having made these statements.
Shortly before midnight on December 17, 2005, Deputy Sheriff Brian Hackworth was on patrol in Fillmore. He had heard a dispatch about a domestic violence complaint with a description of the suspect. The dispatch included appellants name, date of birth, and described the car he was driving. Hackworth saw a car matching the description and pulled it over. It did not have standard license plates, but only paper plates.
Appellant initially told Hackworth that the car belonged to his aunt and gave a false name and birth date. Hackworth contacted dispatch and obtained a more detailed description of the suspect. Observing that appellant matched the description, Hackworth ordered him out of the car. Appellant complied, then told Hackworth that his real name was Joe Rivas and there was an outstanding warrant for his arrest. Appellant was arrested due to the outstanding warrant, driving on a suspended license and for providing false information to a peace officer. The vehicle was released to its registered owner, Rosa Garcia.
Appellant testified that, on December 15, 2006, Maria had given him the keys and permission to use the car. He believed that Maria had the authority to allow him to use it.
DISCUSSION
CALCRIM No. 362
Appellant claims that the trial court committed prejudicial error by failing to instruct sua sponte with CALCRIM No. 362, concerning willfully false statements and consciousness of guilt. The court has a sua sponte duty to instruct on consciousness of guilt when there is evidence that the defendant intentionally made a false statement from which such an inference could be drawn. (People v. Atwood (1963) 223 Cal.App.2d 316, 333-334, overruled on other grounds in People v. Carter (2003) 30 Cal.4th 1166, 1197-1198.) The court refused the instruction which was requested by the prosecution.
CALCRIM No. 362 provides that if the defendant "made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt. . . . [¶] 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."
When appellant was pulled over by officer Hackworth, he gave Hackworth a false name and date of birth and said the car belonged to his aunt. He then admitted his true name and birth date and told Hackworth he had an outstanding warrant and did not want to return to jail. Appellant argues that he proffered a strong mistake-of-fact defense, and the false statements could have reflected a good-faith belief that he had permission to use the car. They might also have reflected that he knew he did not have permission to drive or that he gave a false name to avoid arrest on an existing warrant.
Thus, appellant reasons, the failure to instruct constitutes prejudicial error because the jury may have placed undue emphasis on his false statements to convict him of unlawfully taking a vehicle. Appellant contends that the instruction serves a "protective function," by allowing the jury to consider whether a false statement might be the "result of nervousness, intoxication, low intelligence or coercion," rather then evidence of consciousness of guilt.
Despite appellants argument, we fail to see how the omission of CALCRIM No. 362 could have prejudiced him. It was established that his statements were false. A mistake-of-fact defense was presented. The reason appellant would have made those statements and their degree of falsity involve an ordinary commonsense analysis that any jury would have undertaken. Drawing further attention to appellants false statements would not have enhanced his defense. There is no reasonable probability that, had the court instructed the jury with CALCRIM No. 362, the outcome would have been different. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
Admission of Prior Conviction Allegation
Before trial, appellant admitted the truth of a prior robbery conviction. He argues on appeal that the admission was not intelligent because he was confused by the trial courts explanation. He does not allege trial court error or claim that he was prejudiced. He contends only that the record does not reflect that his admission was intelligent, thus it must be set aside.
The prosecutor began taking the admission and established that appellant had previously committed second-degree robbery, the date of the offense and the date of conviction. He inquired, "Do you admit that you committed the — that offense in this county and were convicted of this in Ventura Superior Court?" Appellant responded, "Yeah. I pled guilty to that." The prosecutor continued, "Do you admit the conviction?" Appellant said, "Yes. Yeah, Ive been on three years probation. I should get off next month." The prosecutor asked, ". . . Has anybody coerced you or forced you into admitting this prior conviction today? And are you admitting this prior conviction freely and voluntarily?"
Appellant expressed confusion over whether the prosecutor was referring to his prior robbery conviction or the offense for which he was about to be tried:
"[Prosecutor]: Has anybody coerced you or forced you into admitting this prior conviction?
"[Appellant]: Uhm . . . I dont get, like, that. When I pled guilty or right now?" The prosecutor reiterated the date of the prior conviction and then inquired ". . . [d]o you admit to that?" Appellant repeated that he had pleaded guilty to second-degree robbery. The prosecutor again inquired, "The question is: Is anybody forcing you or coercing you into admitting your prior conviction today?" Appellant answered, "Yeah, you, because you still have the charges. . . . [N]obody is pressing charges, and Im having to take this to trial because I — why am I going to plead guilty and go to prison for nothing . . . [?]"
From the foregoing interchange, it is clear that appellant believed he was being asked if he was being "forced" to admit to the untried charges of battery, giving false information to a peace officer and the unlawful taking of a vehicle. He was not aware he was being asked to admit the truth of his prior robbery conviction. Defense counsel held an off-the-record conversation with appellant. The trial court clarified the matter by telling appellant he had the right to a trial on his old robbery conviction. The following colloquy occurred:
"[The Court]: The idea is, if you admit [the prior conviction], which is what we are talking about, then the jury wont hear about it unless you testify, but if you testify, they will hear about it. But if you wont testify, the jury wont know about it."
The court again asked whether anyone had threatened appellant to admit to the robbery charge and appellant answered, "No sir." The court asked whether appellant had been promised anything and appellant responded, "No. To that no." The court found that appellants admission was free and voluntary, and that he had been advised of and knowingly and intelligently waived his rights against self-incrimination, to be tried by a jury and to confront and cross-examine the witnesses against him.
Appellant emphasizes that he is not objecting to the courts advisement of rights as set forth in Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. He does not argue that the trial court failed to comply with the admonition and waiver procedure and even acknowledges that the court performed those procedures correctly. Appellant argues instead that his admission of the prior conviction was not intelligent, thus it is invalid and must be set aside.
Appellant contends that his interchange with the trial court caused him to believe that the only way to keep the jury from hearing about his prior conviction was not to testify. He claims that, had the court had explained that he could have had a bifurcated hearing on the prior conviction allegation, he would then have understood that he could have both denied the allegation and testified. Appellant contends that his obvious confusion over the effect of his admission demonstrates that it was not intelligently made.
Appellant acknowledges that a court is not required to inform a defendant that he is entitled to bifurcated hearing, but asserts that, under these circumstances, such information might have clarified his confusion. Appellant further adds that he suffered from mental difficulties resulting from a gunshot to his head several years earlier. He claims that this could have compounded his misunderstanding of the proceedings.
Appellant has raised an argument, based on a selected portion of the record, to assert that he was confused, thus his admission is invalid. A complete reading of the hearing transcript makes it plain that appellants misapprehension arose, not from a misunderstanding of the consequences of admitting a prior conviction, but when he was asked whether he wished to admit a prior conviction. Appellant at first believed that he was being coerced into admitting a charged but unproven crime. Once the matter was clarified, he admitted the prior conviction. We see no defect in appellants admission of his prior conviction or any trial court error.
The judgment is affirmed.
We concur:
GILBERT, P.J.
PERREN, J.