Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F08590
ROBIE , J.
A jury found defendant Samuel Saldana guilty of carjacking and sustained an allegation that he personally used a firearm. The trial court sentenced him to 5 years, to be served consecutively to a 26-year 4-month sentence in a prior carjacking case, for an aggregate term of 31 years 4 months.
On appeal, defendant contends: 1) the trial court erroneously admitted evidence of subsequent uncharged carjackings; 2) a mistrial should have been granted after an officer testified that he was on a gang task force; 3) the jury was improperly instructed with CALJIC No. 2.50; 4) the trial court erred in giving CALJIC No. 2.15; 5) cumulative error warrants reversal; and 6) the order to pay attorney fees is not supported by substantial evidence and was imposed without proper notice. We reject the contentions, order a correction of the abstract, and affirm.
BACKGROUND
On August 27, 2003, at around 3:00 a.m., Brenda Bass was at the gate of her apartment complex in her green Cadillac Catera. Her remote control would not open the gate, so she read papers from work while waiting to be let in. Bass heard a knock on her window and looked up to see defendant, asking her, “Ma’am what time is it?”
Bass attempted to start her car, but defendant pointed a gray revolver at her face and said, “Ma’am, I wouldn’t do that if I was you.” Bass exited her Cadillac and left the keys in the car. As she left the car, Bass noticed another man who was covering his face with what appeared to be a white sweatshirt.
After leaving her car, Bass asked defendant if she could get her papers from the Cadillac. Defendant allowed her to take the papers, but not her briefcase. Defendant got into Bass’s car on the driver’s side, while the other man entered on the passenger side. They drove away in Bass’s car in no apparent hurry. Bass then walked to her apartment and called the police.
Evidence from two uncharged subsequent carjackings was admitted at trial. On August 28, 2003, at around 2:00 p.m., Amy Garcia was returning to her Silver Honda Accord in Concord after having lunch when she noticed a four-door green car creeping into the street and then executing a turnabout at the end of the court. There were about five Hispanic males in their early 20’s in the green car. Garcia had a nervous feeling about this car, so she ran to her Civic. After she got into her car, which was parallel parked, Garcia noticed that the green car had moved to block her Civic from backing out.
Defendant got out of the green car and “tapped on my window for me to get out of the car.” He was carrying a silver revolver at his side in his right hand. He never tapped the gun on the window or pointed it at Garcia. Defendant told Garcia he would not hurt her, and she left the car and walked across the street. Defendant got in her car, pulled out, and the green car followed after him as both cars headed toward the freeway. Garcia’s purse, which contained her ATM card and a credit card, was in her Civic when defendant took it.
Jeannie Hylkema drove her Yukon SUV to her condominium in San Jose at around 6:00 p.m. on August 28, 2003. Parked next to the mailbox after getting the mail, Hylkema spied a silver car containing three or four people lingering behind her truck. As she put her mail down, Hylkema noticed a man was approaching her from the direction of the silver car. Hylkema got a good look at the man, whom she identified later as defendant.
Defendant flashed a silver or chrome gun at her and told Hylkema to get out. Hylkema said she was not leaving without her infant son, who was in the back seat. Defendant replied, “‘You can get your baby out and I won’t hurt you,’” and Hylkema left the truck with her son. Hylkema started to take her diaper bag, but defendant told her to leave it. After Hylkema told him it was a diaper bag, defendant searched it, and let Hylkema take the bag after examining the contents.
Defendant took money from Hylkema’s wallet. She then asked for her wallet back and defendant tossed the wallet to her. After defendant would not give her cell phone back, Hylkema ran to a neighbor’s house. Hylkema called her husband and 911 and then activated the OnStar and LoJack devices on the Yukon.
On August 28, 2003, California Highway Patrol was notified that OnStar was tracking the stolen Yukon. The truck was discovered on Interstate 205 near Tracy at around 7:50 p.m. and a pursuit ensued. Pursuit was broken off after the Yukon went into the City of Tracy during the afternoon commute, but a helicopter followed the truck.
The Yukon was discovered in the middle of a road. Defendant and a woman were seen running from the Yukon in different directions and a Highway Patrol Officer caught defendant. Todd Monday, who was out on his coffee break, saw someone throwing a rag from the window of a Yukon during a police pursuit through Tracy on August 28, 2003. Monday discovered a revolver and a washcloth in the area where the rag was thrown and later pointed out the location of the gun to the police.
Bass, Garcia, and Hylkema identified the revolver found by Monday as like the one used in their carjackings. Garcia testified that Bass’s green Cadillac was similar to the green car in her carjacking. Hylkema testified that Garcia’s Civic was similar to the silver car used in her carjacking.
Bass’s Cadillac was found near a freeway in Concord. Garcia’s Civic was found parked with the engine still running at a gas station in San Jose within a few hundred yards of State Route 17. Bass’s car keys and Garcia’s credit card were found in Hylkema’s Yukon.
DISCUSSION
I
Other Carjackings Evidence
Defendant contends the admission of the uncharged carjackings against Garcia and Hylkema violated Evidence Code section 352 and due process. We reject his claim.
Before the trial, defendant moved in limine to exclude the uncharged carjackings, claiming the evidence was unduly prejudicial and essentially character evidence. The trial court and the parties agreed that the prosecution’s theory of admissibility did not rely on Evidence Code section 1101, subdivision (b), but that certain features of the uncharged carjackings -- a gun was used by defendant in all three carjackings, a car similar to the one stolen from Bass was used by defendant in the Garcia carjacking, a car like Garcia’s was present at the Hylkema carjacking, and Bass’s keys and Garcia’s credit card were found in Hylkema’s car -- were circumstantial evidence of defendant’s identity as the person who carjacked Bass. Admitting that the other crimes evidence contained relevant evidence, defendant asked the court to sanitize the uncharged crimes evidence “in a way that overcomes the [Evidence Code section] 352 issue and is not overly prejudicial.”
The trial court rejected defendant’s contention. Accommodating defendant’s request would place “artificial constraints” on the prosecution’s case. The trial court found the evidence contained in the uncharged carjackings to be very probative, and that any attempt to present this outside of its context in the carjackings risked confusing the jury. The court denied the defense motion to exclude the uncharged crimes evidence under Evidence Code section 352 without prejudice to any later offer to sanitize the evidence. Defendant never submitted a proposal for sanitizing the uncharged crimes evidence.
Defendant contends the trial court should have sanitized the circumstantial evidence under Evidence Code section 352. The trial court has discretion under Evidence Code section 352 to exclude evidence if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review rulings pursuant to Evidence Code section 352 under the abuse of discretion standard. (People v. Jablonski (2006) 37 Cal.4th 774, 828-829.) We reverse only if the trial court’s ruling was “‘arbitrary, capricious or patently absurd’” and caused a “‘manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The uncharged carjackings contained interlocking evidence which was highly relevant to the central issue in the case, defendant’s identity as the perpetrator of the Bass carjacking. A car similar to Bass’s was used by defendant in the Garcia carjacking, which took place one day after the Bass carjacking. Bass’s car was found in Concord, where Garcia’s car was taken, providing additional support for the inference that Bass’s car was used by defendant. The testimony that a silver car was used in the Hylkema carjacking reinforces Garcia’s testimony identifying defendant. Identification evidence is also found from all three victims identifying defendant as using a gun in each crime and the presence of Garcia’s credit card and Bass’s keys in Hylkema’s stolen Yukon. The chase and apprehension tied defendant to the stolen Yukon, a gun thrown from the vehicle, and the credit card and keys found inside. Finally, the crimes took place within a relatively short span of time.
“Sanitizing” this evidence by removing references to the uncharged offenses would unnecessarily risk confusing the jury by depriving the identification evidence of its necessary context. The identification evidence and the uncharged crimes are pieces of the same puzzle. Removing the uncharged crimes would give the jury an inaccurate and confusing picture of the case.
The evidence was not excessively prejudicial in light of its relevance. By being inextricably interlinked to highly relevant evidence of defendant’s identity, the risk that the jury would convict defendant on the basis of the uncharged rather than the charged crimes was minimized.
The presence of a baby in the Hylkema carjacking does not, contrary to defendant’s contention, render the evidence unduly prejudicial. Defendant allowed Hylkema to take her baby and the diaper bag before he took her SUV. Although a baby was present at the uncharged crime, there is nothing related to the baby which could prejudice defendant.
The trial court did not abuse its discretion in admitting this highly relevant evidence over defendant’s Evidence Code section 352 objection.
II
Gang Reference
David Espinosa, an officer with the Concord Police Department, testified about the photographic lineup he conducted with Garcia. When the prosecutor asked what was his assignment in September of 2003, Officer Espinosa replied, in “September of 2003 I was assigned to gang investigations and detective for the Concord P.D.” Neither the prosecutor nor Officer Espinosa made any subsequent references to gangs or gang investigations.
Defendant did not object to the gang investigation reference, but did move for a mistrial that same day. The trial court denied the motion, but offered to give a limiting instruction to the jury. Defendant never asked for a limiting instruction.
Defendant contends we should review the trial court’s denial of the mistrial motion de novo because the witness’s statement is an error independent of the court’s ruling on the motion. We disagree.
“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.) Because the question of whether a particular incident is incurably prejudicial is by nature a speculative matter, the trial court is vested with “‘considerable discretion’” in deciding mistrial motions. (People v. Wharton (1991) 53 Cal.3d 522, 565.) “Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice.” (Ibid.)
We recognize the potentially inflammatory nature of any testimony about gangs. (See People v. Williams (1997) 16 Cal.4th 153, 193.) Nonetheless, we find no prejudicial misconduct here. Officer Espinosa’s reference to the gang enforcement assignment was fleeting. No further reference to gangs was made at the trial. This testimony was not elicited by the prosecution, catching both parties by surprise. The trial court did not abuse its discretion by declining to grant a mistrial on the basis of this single reference to a gang enforcement assignment by a peripheral witness.
III
CALJIC No. 2.50 Instruction
The jury was instructed with a modified version of CALJIC No. 2.50, which stated:
“Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial.
“This evidence, if believed, may not be used by you to prove that the defendant is of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show:
“The identity of the person who committed the crime, if any, of which the defendant is accused;
“For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in this case. You are not permitted to consider such evidence for any other purpose.”
Both parties agreed to giving this version of CALJIC No. 2.50. Defendant argues that there was not enough similarity between the charged and uncharged crimes to support the admissibility of the uncharged crimes as identity evidence under Evidence Code section 1101. He concludes that this instruction overstated the inference of guilt which the jury could draw from the other crimes evidence by allowing it to infer identity from the other crimes themselves rather than the circumstantial evidence of identity contained in the other crimes evidence. According to defendant, the trial court should have instructed the jury “to consider the uncharged offenses to show: a ‘clear connection’ between the crimes supporting the inference [defendant] committed both (CALJIC No. 2.50); and/or that [defendant] ‘possessed the means that might have been useful or necessary for the commission of the crime charged’ (i.e., the gun) (CALJIC No. 2.50).”
Defendant did not request any additional instruction. Therefore, his claim that other instructions should have been given is forfeited on appeal. (People v. Johnson (1993) 6 Cal.4th 1, 52.)
Because defendant did not object to CALJIC No. 2.50, he has forfeited any claim that the instruction was erroneous unless the instruction affected the defendant’s substantial rights. (Pen. Code, § 1259; People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.) Substantial rights are equated with a miscarriage of justice, which results if it is reasonably probable the defendant would have obtained a more favorable result had the instruction not been given. (Cal. Const., art. VI, § 13; Christopher,at pp. 426-427; People v. Watson (1956) 46 Cal.2d 818, 836.) As we show, defendant’s substantial rights were not affected by the instruction.
The case against defendant was strong. As we have already discussed, the other crimes evidence was inextricably linked with powerful circumstantial evidence of defendant’s identity. The jury was properly instructed with the definitions of carjacking and reasonable doubt. There were also a number of common factors to the charged and uncharged crimes. In each crime defendant approached a woman driver, knocked on her window, and then initiated the carjacking. Defendant used a revolver in each crime, and allowed his victims to remove items from the vehicle before taking it. The similarities between the charged and the uncharged offenses reduces any prejudice to defendant from the giving of CALJIC No. 2.50.
Defendant also claims that CALJIC No. 2.50 deprived him of due process by creating a permissive inference which lessened the prosecution’s burden of proof on the element of identity.
CALJIC No. 2.50 is meant to limit the jury’s use of evidence and does not instruct the jury to draw favorable inferences to the prosecution. The purpose of CALJIC No. 2.50 is to limit the jury’s use of evidence introduced pursuant to Evidence Code section 1101, subdivision (b), that is, evidence of a defendant’s prior bad acts to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or lack of consent. (See People v. Ewoldt (1994) 7 Cal.4th 380, 393.) CALJIC No. 2.50 neither directed a verdict on an element of the offense nor lessened the prosecution’s burden of proof. Accordingly, we reject defendant’s due process claim.
IV
CALJIC No. 2.15
The trial court instructed the jury with a modified version of CALJIC No. 2.15, which stated:
“If you find that the defendant was in possession of recently stolen property belonging to Ms. Brenda Bass, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime charged. Before guilt may be inferred, there must be corroborating evidence tending to prove the defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt.
“As corroboration, you may consider the attributes of possession -- time, place, and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, and any other evidence which tends to connect the defendant with the crime charged.”
Defendant contends this version of CALJIC No. 2.15 was not supported by the evidence, misstated the law by omitting a requirement that the possession of the stolen property be conscious, and violated due process by lowering the prosecution’s burden of proof. We reject all three contentions.
A
Insufficient Evidence For The Instruction
Defendant relies on People v. Morris (1988) 46 Cal.3d 1, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, footnote 5, to support his contentions that the instruction was not supported by the evidence and should have contained a reference to conscious possession of the stolen property. In Morris, the defendant contended the court should not have instructed the jury with CALJIC No. 2.15 because there was insufficient evidence to show either that he was in possession of property or that the property was stolen. (Morris, at p. 40.) The Supreme Court agreed, stating: “It is clear . . . that where the evidence relating to ‘possession’ is conflicting or unclear, an unqualified instruction pursuant to CALJIC No. 2.15 should not be given, for it could easily mislead the jury into assuming that the defendant’s possession has been established when, in actuality, the issue is in doubt.” (Ibid.)
However, the instruction given by the court in Morris was unqualified. The court told the jury that the defendant’s “‘conscious possession of recently stolen property . . . [while] . . . not enough to justify his conviction . . . is, however, a circumstance to be considered in connection with other evidence.’” (People v. Morris, supra, 46 Cal.3d at p. 40.)
Here, unlike Morris, the instruction was not unqualified in a way that might imply the defendant in fact possessed stolen property. (People v. Williams (2000) 79 Cal.App.4th 1157, 1172.) The trial court correctly informed the jury the instruction applied only “if” the jury found the defendant was in possession of recently stolen property. Since the rule of Morris only applies to the unqualified version of the instruction, defendant’s insufficient evidence argument is without merit.
B
Omission Of “Conscious” From Instruction
The omission of the term “conscious” from CALJIC No. 2.15 was not error. At defendant’s request, the trial court instructed the jury with the definition of possession in CALJIC No. 1.24. The instruction defined “actual possession” as requiring a person to “knowingly exercise direct physical control over a thing,” and “constructive possession” as not requiring actual possession but requiring that a “person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.” In addition, “[o]ne person may have possession alone, or two or more persons together may share actual or constructive possession.”
Instructions are not considered in isolation; their correctness and adequacy is determined by consideration of the entire charge to the jury. (People v. Wilson (1992) 3 Cal.4th 926, 943.) The omission of the term “conscious” from CALJIC No. 2.15 was not error when the instruction is considered in the context of the jury being given the definition of possession in CALJIC No. 1.24. In order for CALJIC No. 2.15 to apply, the jury must first determine under CALJIC No. 1.24 that he possessed the recently stolen property by having knowingly exercised direct control or the right to control the property. There was no error.
C
Due Process
Defendant contends that CALJIC No. 2.15’s reference to “slight corroboration” deprives him of due process by lowering the prosecution’s standard of proof. The California Supreme Court has expressly upheld CALJIC No. 2.15 against due process challenges. (People v. Holt (1997) 15 Cal.4th 619, 677; People v. Johnson (1993) 6 Cal.4th 1, 36-38.) Defendant attempts to distinguish these cases, asserting that they only addressed whether the instruction created an impermissible mandatory presumption rather than defendant’s contention that the language directly lowered the burden of proof.
Defendant’s claim was addressed by the Court of Appeal in People v. Snyder (2003) 112 Cal.App.4th 1200. Snyder rejected the contention that CALJIC No. 2.15 reduced the prosecution’s burden of proof. The instruction creates a permissive inference. (Id. at p. 1226.) “Because a jury may accept or reject a permissive inference ‘based on its evaluation of the evidence, [it] therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt.’ [Citation.] Requiring only ‘slight’ corroborative evidence in support of a permissive inference, such as that created by possession of stolen property, does not change the prosecution’s burden of proving every element of the offense, or otherwise violate the accuser’s right to due process unless the conclusion suggested is not one that reason or common sense could justify in light of the proven facts before the jury.” (Ibid.)
The inference permitted by CALJIC No. 2.15 has been repeatedly upheld by the courts as a correct statement of the law. (People v. McFarland (1962) 58 Cal.2d 748, 754-755; People v. Snyder, supra, 112 Cal.App.4th at p. 1228, fn. 11.) This time-tested inference contradicts neither reason nor common sense, and we reject defendant’s due process claim.
V
Cumulative Error
Finding no trial error, we reject defendant’s claim that cumulative error warrants reversal.
VI
Attorney Fees
Defendant contends the trial court imposed an order for him to pay $2,440 in attorney fees without proper notice and is not supported by substantial evidence.
At sentencing, the trial court stated “[b]ased on the current fee schedule, I’m determining that the cost of your legal assistance is $2,400 and I’m ordering you to pay this amount subject to a finding of the Department of Revenue Recovery that you have the ability to pay. In other words, D&R makes the judgment of whether you can pay.”
Defendant did not object to the imposition of the fee or any lack of notice. Accordingly, he has forfeited his right to contest the adequacy of his notice. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395-1396.) He was also given adequate notice, having been informed at arraignment that he would be ordered to pay attorney fees if it is determined he has the ability to pay.
The trial court may only impose attorney fees if it finds defendant has the ability to pay. (Pen. Code, § 987, subd. (c).) However, that same provision states that the court may, “in its discretion, order a defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to employ his or her own counsel.” (Ibid.)
Since the trial court never ordered defendant to pay attorney fees, but instead followed the statutory procedure for allowing a county officer to determine whether defendant had the ability to pay, the court committed no error. However, as both parties point out, the abstract incorrectly states that the trial court ordered defendant to pay attorney fees.
As rendition of judgment is the oral pronouncement, the abstract cannot add to or modify the judgment which it purports to summarize. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Thus, we shall order the abstract corrected to reflect the oral pronouncement of the court. (See People v. Sanchez (1998) 64 Cal.App.4th 1329, 1331-1332.)
DISPOSITION
The judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment reflecting that any payment of attorney fees by defendant was subject to a finding by the Department of Revenue Recovery that defendant has the ability to pay the fees. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , Acting P.J., RAYE , J.