Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. CR060021, CR061377
OPINION
RIVERA, J.
Defendant appeals judgments entered in two cases. In one case (People v. Roberts (Super. Ct. Humboldt County, 2006, No. CR060021)), a jury convicted him of attempted vehicle theft. (Veh. Code, § 10851; Pen. Code, § 664.) In another (People v. Roberts (Super. Ct. Humboldt County, 2006, No. CR061377)), he pled no contest to second degree burglary. (Humboldt County case No. CR061377.) He was sentenced to three years in case No. CR061377, and to a concurrent 18-month term in case No. CR060021. We affirm.
Defendant has not raised any issues related to the conviction in case No. CR061377, and we will not recite the facts here.
I. Background
Kelly Martin, a building contractor and real estate investor, was working at an apartment building in downtown Eureka. His truck was parked outside, with the keys in the vehicle. While he was inside the building, he heard the engine of his truck running and went outside to investigate. He saw defendant in the driver’s seat of the truck. The engine was still running. Defendant was “grinding the gears,” “trying to take off” in the truck. Martin asked defendant what he was doing, and defendant told him he was taking the truck around the block for someone. Defendant did not respond when Martin asked who had told him to take it. Martin took the keys and asked defendant why he was trying to steal the truck. Defendant said he had to “get going” and told Martin he did not want to go back to prison. Defendant moved away from the truck and was getting ready to run, and Martin took him by his coat and hung onto him, then called 911 on his cell phone.
A police officer came and took defendant into custody. Defendant appeared to the officer to be under the influence of methamphetamines or some other controlled substance. Defendant told the officer that someone had asked him to move the truck.
Defendant testified in his own defense that as he was walking near the apartment building, a man wearing a tool belt and a hammer told him to bring the truck to the back of the building and said he would meet defendant there. Defendant did “scab” labor for an agency. Although the man made no mention of payment, defendant thought he was being offered a job. He got in the truck and started the engine, but was unable to get it into gear. Martin came to the truck, asked what he was doing, and said he would call the police. Defendant asked him not to, telling him that his parole would be revoked if he had contact with law enforcement, “especially with an offense of this nature.” He told Martin that the person who had told him to move the truck must be in the alley.
Defendant acknowledged on cross-examination that he had in the past been convicted of vehicle theft, tampering with a vehicle, second degree burglary, and petty theft with a prior, as well as other offenses. He had smoked methamphetamine on the day in question. He was also using other drugs at the time, including heroin, marijuana, Valium, Oxycodone, and Oxycontin.
Michael Wiles, an acquaintance of defendant, testified that on the date in question, he saw defendant talking to someone wearing a tool belt, who looked like a construction worker. The man walked off, and defendant told Wiles he had a job and did not have time to talk. Defendant got into the truck and started the engine. Wiles saw Martin challenge and detain defendant, but left when the police arrived because he was on parole and did not want to have any contact with the police.
II. Discussion
A. Dismissal of Juror
Partway through the trial in case No. CR060021, one of the jurors asked to speak with the judge. The juror first mentioned that he knew one of the witnesses and had waved to him in the hallway. He then told the court that he did not think he could deliver a guilty verdict after hearing the evidence, because he had “issues with the correctional system and judicial system.” He said that if the correctional system were good, recidivism rates would not be as high as they are, and he did not think defendant would “get what he needed out of the correctional system.” The judge asked, “What I am trying to get at is this, you are not able to set aside the issue of penalty or punishment in making your determination?” The juror answered, “At this point that is a correct statement.” Over defendant’s objection, the trial court excused the juror and replaced him with an alternate, stating that the juror had “not only expressed but demonstrated that he can’t follow the instructions of the [c]ourt relative to following the law.”
Defendant, who was representing himself at trial, told the juror, “If you wish to bow out, bow out.” However, before the juror was dismissed, defendant argued to the court that the juror would be able to make an unbiased decision after he had heard all the evidence.
Penal Code section 1089 permits the replacing of a juror with an alternate for good cause. “[W]e review the trial court’s determination to discharge a juror by applying an abuse of discretion standard and will uphold that decision if there is substantial evidence supporting it. We also require a juror’s inability to perform as a juror to appear in the record as a ‘ “ ‘demonstrable reality.’ ” ’ [Citations.]” (People v. Boyette (2002) 29 Cal.4th 381, 462 (Boyette).) Moreover, “where an alternate juror, approved by defendant in voir dire, is allowed to deliberate on the jury panel, the defendant bears a heavy burden to demonstrate that he was somehow harmed thereby.” (People v. Hall (1979) 95 Cal.App.3d 299, 307.)
Defendant argues that the trial court has only limited discretion in dismissing a juror. Our Supreme Court, however, has explicitly disapproved this standard. In Boyette, the court noted that it had rejected the older rule that the trial court had at most a limited discretion to determine that a juror could not perform his or her functions. The court instead followed the more modern rule that “under [Penal Code] section 1089, a trial court ‘has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve.’ [Citations.]” (Boyette, supra, 29 Cal.4th at p. 462, fn. 19.) We are, of course, bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We see no abuse of the trial court’s broad discretion. The juror who was discharged had indicated he would not be able to assess defendant’s guilt based solely on the evidence. The trial court observed his demeanor and could assess his sincerity. (See Boyette, supra, 29 Cal.4th at p. 463.) Although the trial court’s inquiry was brief, the record indicates it was adequate, and substantial evidence supports the court’s conclusion.
B. Failure to Instruct on Tampering with Vehicle
Defendant contends the trial court erred in denying his request for an instruction on tampering with a vehicle (Veh. Code, § 10852), which has been held to be a lesser included offense of vehicle theft (People v. Anderson (1975) 15 Cal.3d 806, 810 [construing grand theft auto, Pen. Code, § 484, subd. (a) and Pen. Code, former § 487, subd. (3)]). We will assume, without deciding, that it is likewise a lesser included offense of Vehicle Code section 10851.
A trial court must instruct the jury on lesser included offenses “ ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 194-195.) Thus, “the trial court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury.” (Id. at p. 195, fn. 4; see also People v. Breverman (1998) 19 Cal.4th 142, 162.)
There is no evidence here the offense was less than that charged. The information charged that defendant, in violation of Vehicle Code section 10851, subdivision (a), “did willfully, unlawfully and feloniously attempt to drive or take a certain vehicle, to wit, a 1990 Ford Truck, then and there the personal property of Kelly Martin, without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to or possession of said vehicle.” Vehicle Code section 10852 provides: “No person shall either individually or in association with one or more other persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.” Both Martin and defendant testified that defendant got into the truck, started the engine, and tried unsuccessfully to get the truck into gear. Defendant testified that he intended to drive the vehicle, in the belief that he was authorized to do so. There is no evidence to support a conclusion that he was doing anything but trying to “drive or take” the truck. In the circumstances, the trial court did not err in refusing to instruct the jury on tampering.
C. CALCRIM No. 220
Defendant contends the trial court erred in instructing the jury on presumption of innocence and reasonable doubt pursuant to CALCRIM No. 220. The court instructed the jury as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Italics added.)
Defendant contends the italicized portion of the instruction erroneously failed to instruct the jury that it should not consider as evidence either the fact of the arrest or the fact that he had been brought to trial. According to defendant, the jury might have been left with the impression that, although it should not be biased against him by the facts that he had been arrested and brought to trial, it could use those facts as evidence of his guilt. We reject this strained reading of the instruction. No reasonable jury would come to such a conclusion.
In any case, defendant’s argument, even if we accepted it, would lead to the conclusion not that the instruction contains an incorrect statement of law, but that it is incomplete because of what it fails to explain. “Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218; see also People v. Stankewitz (1990) 51 Cal.3d 72, 93.) Defendant did not ask the trial court to modify the instruction. In failing to do so, he waived the point on appeal.
D. CALCRIM No. 302
The trial court instructed the jury pursuant to CALCRIM No. 302 as follows: “If you determine there is a conflict in the evidence, you must decide what evidence if any to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of a greater number of witnesses. On the other hand, do not disregard the testimony of a greater number of witnesses or any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” Defendant contends this instruction improperly invited the jury to count the number of witnesses on each side and consider the relative number in determining his guilt.
We need not decide whether the instruction was correct, because any error was harmless. (See People v. Breverman, supra, 19 Cal.4th at p. 176.) There was no dispute that defendant got into Martin’s truck, started the engine, and tried to put it into gear in preparation for driving it. The dispute instead was whether defendant believed he was authorized to do so. Two witnesses—defendant and Wiles—testified for defendant on this question. Defendant testified that someone wearing a tool belt had asked him to drive Martin’s truck to the back of the building and had then walked away. Wiles corroborated defendant’s version of events by testifying that he had seen defendant talking to someone with a tool belt, that the man then walked around a corner, and that defendant told him he had a job. No one testified that defendant had not been approached by such a person. Instead, Martin testified he had not given anyone permission to use the truck. Even if the jury believed it should count the number of witnesses who testified about whether defendant had permission, or believed he had permission, to use the truck in deciding defendant’s guilt, defendant would have suffered no disadvantage.
E. CALCRIM No. 460
In instructing the jury on the meaning of an attempted crime, the trial court provided CALCRIM No. 460. The instruction included the following language: “To decide whether the defendant intended to commit unauthorized use of a motor vehicle, please refer to the separate instruction I will now give you on that crime . . . .” (Italics added.) Defendant contends this instruction improperly implied that the jury was required to reach a verdict, rather than telling the jury to reach a verdict only if it could do so.
No reasonable jury would read such an implication into the challenged language. The natural reading is that the court was instructing the jury on the law it should apply in its deliberations about defendant’s intent, not that the jury was required to reach a verdict. This is particularly true in light of the trial court’s later instruction to the jury that it should “try to agree on a verdict if you can.” (CALCRIM No. 3550.)
F. CALCRIM No. 362
The trial court instructed the jury pursuant to CALCRIM No. 362: “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 that he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude 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 this instruction misstates the law, and that consciousness of guilt is only shown by fabrications that are designed to hide complicity in the crime or to avoid detection, not by other false statements relating to the crime. The only false statement at issue, according to defendant, was his statement that a stranger told him to move the truck, and this statement could not have been designed to hide his complicity or to avoid detection, since he had already been detected in the vehicle.
We reject this contention. As stated in People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168: “Deliberately false statements to the police about matters that are within an arrestee’s knowledge and materially relate to his or her guilt or innocence have long been considered cogent evidence of a consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances. [Citation.] Moreover, permitting the jury to draw an inference of wrongdoing from a false statement is as much a traditional feature of the adversarial fact finding process as impeachment by prior inconsistent statements.” (See also People v. Kimble (1988) 44 Cal.3d 480, 496.) Thus, “the giving of CALJIC No. 2.03 [the predecessor to CALCRIM No. 362] is justified where there exists evidence that the defendant prefabricated a story to explain his conduct.” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103.) Defendant’s statements related to his guilt or innocence of the crime of which he was charged, and the jury could reasonably conclude he had prefabricated it to explain his conduct. In the circumstances, we see no error in giving CALCRIM No. 362.
III. Disposition
The judgments are affirmed.
We concur: RUVOLO, P. J., REARDON, J.