Opinion
B159411.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ERNESTO SALINAS, Defendant and Appellant.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
Carlos Ernesto Salinas appeals a judgment convicting him of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). He contends the trial court erred by failing to instruct the jury pursuant to CALJIC No. 2.21.2 that a witness who is willfully false in part of his testimony is to be distrusted in other parts, and by instructing the jury pursuant to former CALJIC No. 17.41.1 that jurors are obligated to inform the court if a juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on an improper basis. We conclude that there was no instructional error.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged Salinas with one count of sale of a controlled substance.
An undercover police officer testified at trial that he purchased rock cocaine from Salinas with the assistance of Lavandis Landy. The officer testified that when Landy attracted Salinass attention, Salinas raised his palms, opened his eyes wide, and tilted his head back. The officer testified that Salinass gestures were a common signal made by drug sellers in the neighborhood. He testified that Landy then turned and walked away from Salinas and the officer followed until the three men approached each other around the corner. The officer testified that particularly among Latinos it is common for the seller to walk away after displaying a signal and for the buyer to follow. The officer testified that after a brief discussion he displayed $ 40, Salinas handed cocaine to Landy, and the officer handed the $ 40 to Salinas.
On cross-examination, the officer acknowledged that he did not recall testifying about Salinass gestures in two preliminary hearings and that he did not discuss the gestures with the prosecutor. The officer also acknowledged that in the two preliminary hearings and in a prior trial he did not testify that the behavior here was typical for Latinos engaged in drug transactions.
Salinas requested that the court instruct the jury with CALJIC No. 2.21.2, which states: "A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars." The court refused this instruction. The instructions given included former CALJIC No. 17.41.1.
The jury convicted Salinas on the single count charged.
CONTENTIONS
Salinas contends (1) the trial court erred by failing to instruct the jury with CALJIC No. 2.21.2; and (2) the instruction pursuant to former CALJIC No. 17.41.1 violated his constitutional rights to trial by jury and due process.
The People refute these contentions and contend the judgment must be amended to include an additional $ 50 state penalty and a $ 35 county penalty.
DISCUSSION
1. The Refusal to Instruct with CALJIC No. 2.21.2 Was Not Error
A criminal defendant is entitled to an instruction on a theory only if the theory is supported by the evidence. (People v. Memro (1995) 11 Cal.4th 786, 868, 905 P.2d 1305; People v. Roberts (1992) 2 Cal.4th 271, 313, 826 P.2d 274.) Accordingly, CALJIC No. 2.21.2 must be given only if there is evidence to support the conclusion that a witness willfully testified falsely on a material part of the witnesss testimony.
There is no evidence that the officers testimony concerning Salinass gestures and the practice among Latinos engaged in drug transactions was false or contradicted by the officers testimony in prior proceedings. The defense presented no evidence at trial to contradict the officers testimony. The officers testimony in the present trial discloses no contradiction with his prior testimony and police report but only greater detail, as the officer explained on recross-examination. We therefore conclude that the court did not err by denying the instruction.
2. The Instruction Pursuant to Former CALJIC No. 17.41.1 Was Not Error
The California Supreme Court in People v. Engelman (2002) 28 Cal.4th 436, 444 held that an instruction pursuant to former CALJIC No. 17.41.1 did not violate the constitutional right to trial by jury or the constitutional right to a unanimous verdict, and was not error. The court also rejected the defendants arguments that the instruction violated due process and was reversible error per se. (Id. at p. 442.) The Engelman court concluded that although giving the instruction was not error, former CALJIC No. 17.41.1 had the potential to intrude unnecessarily into jury deliberations. (Id. at pp. 446-449.) The court therefore directed that former CALJIC No. 17.41.1 not be given in future trials. (Id. at p. 449.) The Engelman opinion was filed in July 2002.
The jury here returned a verdict in May 2002, before People v. Engelman, supra, 28 Cal.4th 436 was filed.
People v. Engelman, supra, 28 Cal.4th 436 compels the conclusion that instructing the jury pursuant to former CALJIC No. 17.41.1 did not violate Salinass constitutional rights to trial by jury or due process. The Engelman court concluded that giving the instruction was not error on those grounds, as stated ante. Moreover, Salinas cites nothing in the record to indicate that the potential harms that the Engelman court cautioned against were realized in this case.
3. The People Cannot Complain of Error Because They Did Not Appeal the
Judgment
A nonappealing respondent ordinarily may not challenge the judgment. (Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.) A respondent may request review of a ruling for the purpose of showing that the appellant was not prejudiced by an error asserted by the appellant so that the judgment should be affirmed. (Code Civ. Proc., § 906; California State Employees Assn. v. State Personnel Bd. (1986) 178 Cal. App. 3d 372, 382, fn. 7, 223 Cal. Rptr. 826.) A nonappealing respondent may not seek a reversal or other affirmative relief on appeal, however. (Estate of Powell, at p. 1439.) We cannot review the state and county penalties because the People did not appeal the judgment.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J., ALDRICH, J.