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People v. Stephenson

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E044152 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF136223, Robert George Spitzer, Judge.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

RICHLI, J.

A jury found defendant guilty of one count of possession of ammunition by a convicted felon. (Pen. Code, § 12316, subd. (b)(1).) After defendant waived his right to a jury trial on the prior conviction allegations, the trial court found true that defendant had sustained one prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subds. (c)(1)) and one prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a total term of three years eight months in state prison.

All further statutory references are to the Penal Code unless otherwise indicated.

Defendant’s sole contention on appeal is that the trial court erroneously, and in violation of his federal constitutional rights to due process and a fair trial, instructed the jury with new pattern jury instructions pursuant to CALCRIM Nos. 223, 226, and 302. Alternatively, he claims the challenged instructions are ambiguous and it was “reasonably likely” that the jury applied the instructions in a way that violated the Constitution. We reject these contentions and affirm the judgment.

I FACTUAL BACKGROUND

On April 20, 2007, around 8:15 p.m., Riverside Police Department Officers Eric Hibbard, Michael O’Boyle, and David Castaneda of the Police and Corrections Team (PACT) went to a residence in Riverside to serve a search warrant on defendant, a parolee-at-large. Upon arrival, Officer Hibbard noticed a truck that the officers had been told defendant drove was parked in front of the residence.

The officers knocked on the front door and a female answered the door. Officer Hibbard asked about defendant’s whereabouts; she told them he was in the bedroom. The PACT officers entered the residence and Officer Hibbard contacted defendant in the first bedroom. Defendant was sitting in a chair underneath the bedroom window. No other person was in the room. After confirming defendant’s identity, Officer Hibbard arrested defendant and placed him in the backseat of a patrol vehicle.

Officer Hibbard then confirmed that the truck parked in front of the residence belonged to defendant. Because the truck was locked, Officer Hibbard asked defendant for the keys. During the parole search of the truck, Officer Hibbard found a small “12 by 12” toolbox in the extra cab of the truck, on the passenger side. Inside the toolbox, in a plastic baggie, Officer Hibbard found ten .40-caliber bullets.

Meanwhile, Officer Castaneda found a backpack on the front passenger seat. Inside the backpack, the officers found a day planner and a wallet, which contained defendant’s identification. Also inside the backpack, the officers found a small plastic container with five .40-caliber bullets inside of it. Officer Castaneda also found a holster, which was wrapped in a towel in the rear pocket area of the passenger seat. Officer O’Boyle searched the day planner, which contained 24 checks. Most of the checks showed defendant as the payee, made out by four different individuals. The majority of the checks were written by Barbara Bickett, defendant’s grandmother.

After a more thorough search of the bedroom, Officer Hibbard found an additional .40-caliber bullet on top of a dresser.

The parties stipulated that defendant had been previously convicted of a felony offense, placing him in the class of persons prohibited from owning or possessing a firearm.

Defendant’s defense was that none of the ammunition was his. Brian Sweeney, defendant’s close friend, testified that he borrowed defendant’s truck for a couple of weeks in April 2007, while defendant used another vehicle. Sweeney claimed that the bullets found in the truck were his. He explained that he had gone target shooting with family and friends and had purchased the ammunition. The ammunition box broke and several rounds had fallen out and were missing. After the box broke, he placed the bullets in a plastic baggie in his backpack and placed the backpack in the truck. The bullets were subsequently recovered at various locations. Sweeney also testified that the toolbox in defendant’s truck was his as well, and that he had placed one round inside the toolbox. Sweeney claimed that when he heard about defendant being arrested, he contacted defendant’s parole officer to find out what he could do to exonerate defendant.

Defendant’s girlfriend testified that the bedroom the officers searched was her bedroom. She also testified that she had found a single .40-caliber bullet across the street from her residence and had placed the bullet in her nightstand drawer. When she returned home after the search, the bullet was out of the drawer and sitting on a table.

Defendant’s girlfriend and her mother both testified that defendant does not live with them or stay at their house very often, and that he did not spend the night at their residence on April 19, 2007. They both indicated that defendant’s primary residence is in Sun City with his grandmother.

Officer Hibbard explained that during the search on April 20, defendant’s girlfriend had telephoned the house from her cellular telephone. Officer Hibbard asked her to return to the residence so they could talk. Defendant’s girlfriend indicated she would be there shortly, but failed to show up. She never contacted the officer or told him that the bullet found in the nightstand belonged to someone else. In addition, nobody came forward to claim the ammunition.

II DISCUSSION

Defendant contends the court erroneously instructed the jury with new pattern jury instructions, specifically CALCRIM Nos. 223 (direct and circumstantial evidence), 226 (witnesses), and 302 (evaluating conflicting evidence), in violation of his federal constitutional rights to due process and a fair trial. We review defendant’s constitutional challenges pursuant to sections 1259 and 1469. Defendant’s arguments have been soundly rejected by our colleagues in both the Third and Fifth Districts in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra). We adopt the reasoning in those opinions and affirm.

Accordingly, we reject the People’s argument that defendant forfeited or waived his instructional challenges by choosing to have the trial court instruct the jury with the CALCRIM, rather than suggesting modifications.

A. CALCRIM No. 223

CALCRIM No. 223 defines direct and circumstantial evidence, which a party could present, and explains the difference between the two. The portion of CALCRIM No. 223 that defendant challenges was read by the trial court as follows: “Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of the charge, including the specific intent or mental state and the acts necessary to support a conviction. [¶] And neither is necessarily any more reliable than the other. Neither circumstantial evidence nor direct evidence is entitled to any greater weight than the other merely because of its legal characterization. [¶] You must decide whether a fact in issue has been proved based on all the evidence without any regard to who has produced it.” (Italics added.)

Defendant advances essentially the same arguments rejected in Anderson, supra, 152 Cal.App.4th at pages 929-934 and Ibarra, supra, 156 Cal.App.4th at pages 1186-1187. We adopt the reasoning of those two decisions and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.

B. CALCRIM No. 226

CALCRIM No. 226 provides guidance for assessing witness credibility. As given by the trial court here, it read: “You alone, as I told you yesterday, are the sole judges of the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, you should use your common sense and your own experience. The testimony of each witness must be judged using the same standard. You must set aside any bias or prejudice that you may have that’s based on the witness’s gender or race or religion or country of national origin or economic station in life. You may believe all, part or none of the witness’s testimony. You should consider the testimony of each witness and decide how much of it you choose to believe.

“Now, in evaluating the testimony of a witness, you may consider anything that has a tendency or reason to prove the truthfulness of that individual, and you may want to ask yourself questions. For example, how well could the witness see, hear or otherwise perceive the matters about which the witness is offering testimony? . . .

Did other evidence prove or disprove something that the witness testified to? Did the witness admit to being untruthful? Has the witness been convicted of a felony and has the witness engaged in other conduct that reflects on his or her believability? Do not automatically reject the testimony of a witness just because of inconsistencies in that testimony or because of conflicts with the testimony of other witnesses.” (Italics added.)

Defendant argues that like CALCRIM No. 223, CALCRIM No. 226 “insinuates to the jury that [defendant] was required to disprove some element of the offense with which he was charged” and impermissibly lightens the prosecution’s burden of proof. Defendant again presses essentially the same arguments rejected in Anderson, supra, 152 Cal.App.4th at pages 934-936 and Ibarra, supra, 156 Cal.App.4th at pages 1187-1188. We adopt the reasoning of those two decisions and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.

Furthermore, the challenged portion of CALCRIM No. 226 was neutral, telling the jurors to consider whether or not other evidence proved or disproved a witness’s testimony. Moreover, the California Supreme Court has consistently rejected similar challenges to the analogous witness instruction in CALJIC No. 2.21.2. (See, e.g., People v. Beardslee (1991) 53 Cal.3d 68, 94; People v. Lang (1989) 49 Cal.3d 991, 1023-1024.)

In any event, the language at issue is not the focal part of the instruction. The crucial point of CALCRIM No. 226 is to inform jurors that they should not automatically reject or discredit a witness because of discrepancies and inconsistencies in the testimony. The language defendant complains about expands upon and explains that point, but is not the focus of the instruction. Accordingly, we do not agree that CALCRIM No. 226 is legally inadequate.

C. CALCRIM No. 302

CALCRIM No. 302 provides guidance regarding the evaluation of conflicting evidence. Defendant challenges CALCRIM No. 302 on several bases. Specifically, he asserts that the instruction improperly states the law and undermines the presumption of innocence by (1) creating a presumption that all witnesses are telling the truth; (2) focusing the jury on which side presents the more compelling evidence; (3) instructing that if the defense witnesses are disbelieved, the prosecution witnesses should be believed; and (4) telling the jury to consider how many witnesses a party calls before reaching its verdict.

As given by the trial court here, CALCRIM No. 302 read: “If you determine that there’s a conflict in the evidence, you must decide what evidence, if any, you believe. Do not simply count the number of witnesses who agree or disagree on a particular point and accept the testimony of the greater number of witnesses. [¶] On the other hand, do not disregard the testimony of the greater number of witnesses or any witness for that matter, without a reason. Do not disregard the testimony of any witness merely out of a whim or prejudice or out of a desire to favor one side over and against the other. What’s important, ladies and gentlemen, is not in the number of witnesses, but in the relative convincing force of the evidence, whether the testimony or other evidence convinces you as to the truth of the charges.”

Again, defendant’s arguments have been rejected in Anderson and Ibarra. (Anderson, supra, 152 Cal.App.4th at pp. 938-940; Ibarra, supra, 156 Cal.App.4th at pp. 1190-1191; see also People v. Reyes (2007) 151 Cal.App.4th 1491, 1497.) We adopt the reasoning of those two decisions and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.

D. Whether the Instructions Were Ambiguous

In the alternative, defendant argues that, in the event that this court finds the above challenged instructions valid, the challenged instructions “must be deemed to be ambiguous for all of the same reasons discussed above.” We disagree.

“‘When reviewing [a federal constitutional claim concerning] a supposedly ambiguous [i.e., potentially misleading] jury instruction, “‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’”’” (People v. Ayala (2000) 24 Cal.4th 243, 289.) In determining the correctness of jury instructions, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can be found to be ambiguous or misleading only if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957.) We presume that jurors are intelligent and capable of understanding and correlating all jury instructions given. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.)

There is no reasonable likelihood here that the jury applied the challenged instruction so as to violate defendant’s constitutional rights. CALCRIM No. 223 merely defined the two types of evidence a party could present at trial, i.e., direct and circumstantial, and explained the differences between the two. Additionally, the same paragraph containing the challenged language in CALCRIM No. 223 tells the jury to consider whether a fact has been proved “based on all the evidence.” CALCRIM No. 226 was neutral as explained above and informed the jury to consider whether or not other evidence proved or disproved a witness’s testimony. CALCRIM No. 302 includes the words “if any” immediately following the challenged portion. When the subject phrase is taken as a whole, it plainly informed the jurors that they could believe all of the evidence, part of it, or none of it. We see no reasonable likelihood of the jury misunderstanding the challenged instructions in the manner defendant suggests. The trial court instructed the jury, in a straightforward and unambiguous manner, to evaluate the evidence and the witnesses.

Moreover, the jury was instructed pursuant to CALCRIM No. 220, the instruction on reasonable doubt. This instruction conveyed to the jury that if the People presented no evidence, or insufficient evidence, then the People had not met its burden and defendant was entitled to an acquittal. The court also instructed the jury pursuant to CALCRIM No. 300, which stated that neither side was required to call all witnesses who might have information about the case nor to present all available evidence. The jury was also instructed pursuant to CALCRIM No. 225 (circumstantial evidence: intent or mental state). That instruction told the jurors again that the People had the burden of proof; that the burden was referring to both the charged act and the necessary mental state; that the jury could not rely on circumstantial evidence alone unless each necessary fact was proven beyond a reasonable doubt; and that if there were two reasonable interpretations of the circumstantial evidence, the jury must adopt the one most favorable to defendant. The court further instructed the jury pursuant to CALCRIM No. 200 (duties of judge and jury) and to consider the instructions together as a whole.

Based on the foregoing, we reject defendant’s claims with regard to these instructions.

III DISPOSITION

The judgment is affirmed.

We concur: RAMIREZ, P. J., HOLLENHORST, J.


Summaries of

People v. Stephenson

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E044152 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Stephenson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARRETT STEPHENSON, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 29, 2008

Citations

No. E044152 (Cal. Ct. App. Jul. 29, 2008)