Opinion
C057223
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GARY STIRNAMAN, Defendant and Appellant.
Not to be Published
A jury acquitted defendant Robert Gary Stirnaman of grand and petty theft but convicted him of knowing receipt of stolen property. (Pen. Code, § 496, subd. (a).) Defendant admitted having served three prior prison terms. (Id., § 667.5, subd. (b).) The trial court sentenced defendant to state prison for four years four months, and he timely filed this appeal.
On appeal, defendant contends the trial court misinstructed the jury on threats against a witness; the prosecutor committed misconduct in argument; and the trial court improperly denied defendants request for commitment to the California Rehabilitation Center (CRC). We shall affirm the judgment.
FACTUAL BACKGROUND
Charles Simmons owned a landscape company in Amador County and employed defendant as a laborer off and on for four or five months. Then, in early February 2007, Simmonss son, who managed the companys employees, "let him go." At trial, Simmons identified a photograph of a Honda water pump he bought in October 2006 for over $2,000. In February 2007, about a week after defendant left the landscape company, Simmons discovered that the pump was missing when a pawn shop owner he knew called him to ask if he had a four-inch Honda pump. The pawn shop owner told Simmons that an employee of the pawn shop had run the pumps serial number "and my name come up because [it was] registered with Honda." Simmons had kept the pump in a storage shed that had no door. Simmons contacted law enforcement and retrieved the pump from the authorities, with a property release form bearing the prosecutors name.
Amador County Deputy Sheriff Eric Taylor learned from a pawn shop employee that Cynthia Crimmins had filled out the pawn shop paperwork. Crimmins gave Taylor defendants name.
When Deputy Taylor then spoke with defendant over the telephone, defendant denied having been to a pawn shop, saying that "if any pawn shop [had] a videotape of him, [it] was false; it would have been someone else."
At trial in July 2007, Crimmins testified she went with defendant to Sacramento and he took the water pump into the pawn shop, but asked her to fill out the paperwork, which she did. At the time of trial she was on "electronic home monitoring" for an unrelated theft offense, for which she pleaded guilty a week before going to the pawn shop.
Over a relevance objection, the prosecution asked Crimmins if she had been threatened, and she testified that she had been warned. While she was incarcerated in the county jail, another inmate came back from court and made a comment that Crimmins described at trial as follows: "I have just as much to do with this as he does and he knows where I live. He only got 16 months and he will come visit me if I dont be quiet." After Crimmins was released from jail in May 2007, she received a phone call to the effect "that I need to keep my mouth shut and watch out for [defendant] and that his family knows and to be quiet, to be stupid." Finally, Crimmins described an event just days before trial started: "This person came to my house, handed me a piece of paper and told me that when I take the stand I am to be stupid or take the fifth or not say anything." The paper she had been handed was a portion of the police report in this case. The person was an acquaintance, Roger Adam, but Crimmins did not know of any connection between Adam and defendant.
On cross-examination, Crimmins testified she used a Woodfern Drive address in Pioneer on the pawn slip, but actually lived on North Main Street in Jackson. On redirect she testified the Woodfern Drive address was on her drivers license and was her parents address.
The pawn shop manager identified defendant as the man who carried the water pump into the shop. Although defense counsel elicited that the identification was "more because of photographs and not from what you [i.e., the manager] remember," on redirect the manager testified his in-court identification was not because of the photographs. The pawn shop paperwork called for Crimmins to supply an address and a drivers license or other identification, and that information was printed on the pawn slip.
Defendants brother testified defendant was with him on the day in question, February 6, 2007. In answer to the question whether he had ever testified for his brother before, he gave a narrative answer explaining that he had been in the army for eight years, had distanced himself from defendant, and although he knew his brother had been guilty of things before, "I wouldnt testify now if I didnt almost one hundred percent know that this crime in question could not have been him." On cross-examination, defendants brother conceded that he had never told the police that defendant was with him on the relevant day.
DISCUSSION
I. Instructional Error
Defendant contends the trial court misinstructed the jury about the threats described by Crimmins. He claims the instruction impaired the presumption of innocence and reduced the Peoples burden by allowing the jury to infer consciousness of guilt on an impermissible basis, because there was no evidence linking defendant to the threats. Although the instruction should not have been given, it caused no prejudice.
Defendant does not contend that the threat evidence itself was inadmissible. Evidence that a witness has been threatened is admissible to bolster her or his credibility, whether or not the threat has any connection to the defendant: "Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witnesss fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.] . . . [¶] . . . There is no requirement, however, that threats be corroborated before they may be admitted to reflect on the witnesss credibility. Indeed, it is not necessary to show the witnesss fear of retaliation is `directly linked to the defendant for the threat to be admissible. [Citation.] It is not necessarily the source of the threat—but its existence—that is relevant to the witnesss credibility." (People v. Burgener (2003) 29 Cal.4th 833, 869-870; see People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369 (Olguin).)
But when threat evidence is used to show consciousness of guilt, the trial court must first determine if there is any evidence in the record from which the jury could rationally conclude the threat came from defendant or at his direction. (See People v. Hannon (1977) 19 Cal.3d 588, 597-598 (Hannon ).) The trial court elaborated on a pattern instruction, CALCRIM No. 371, which it read to the jury as follows: "If someone other than defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show defendant was aware of his guilt, but only if defendant was present and knew about that conduct or that defendant was not present, [but] authorized the other persons actions. Relates to the testimony of Miss Crimmins[, who] talked about the three different instances with unidentified parties. Its up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself."
The Attorney General concedes there is no evidence showing defendant was connected to the threats made against Crimmins. Therefore, although the evidence of threats was admissible on the issue of her credibility, the trial court should not have instructed that it was "up to [the jury]" to determine if the evidence showed consciousness of guilt. Instead, to avoid the possibility that the jury would speculate that it could use the threats for an improper purpose, the jury should have been instructed that the evidence of threats was admissible only on the issue of Crimmins credibility. (See Olguin, supra, 31 Cal.App.4th at p. 1368 ["The trial court correctly limited the evidence to `the witness[s] state of mind, attitude, actions, bias, prejudice, lack or presence thereof, and we presume the jury adhered to the trial courts limitations on this testimony"].)
In a case relied on by defendant, Hannon, supra, 19 Cal.3d 588, the instruction as given failed to state that efforts to discourage a witness could not be used against Hannon unless he was present or authorized the threats. (Id. at pp. 597-600 & fn. 3.) But in this case, the instruction clearly admonished the jury not to conclude the threats came from defendant or at his behest unless the jury found there was evidence connecting him to the threats. Thus, unlike in Hannon, by following the terms of the instruction itself, assuming the jury believed that the threats had been made as described by Crimmins, the jury would disregard the theory of consciousness of guilt when it concluded no evidence linked defendant to those threats.
Moreover, unlike in Hannon, where the only linkage between the defendant and the crime was one eyewitness whose ability to see a robber was subject to challenge, this case was not close. Two witnesses placed defendant at the pawn shop with the stolen pump in his hands and although Crimmins was a felon, the other eyewitness, the pawn shop manager, had no motive to lie. Although defendant was acquitted of the theft of the pump, the fact he had recently been discharged from the business where the pump had been stored also linked him to the pawning of the pump. The alibi evidence provided by defendants brother was implausible. The prosecutor did not rely on the improper theory of consciousness of guilt based on the threats in argument. He mentioned the threats only in connection with Crimmins credibility, arguing she came to court despite the threats and therefore should be believed, despite her theft conviction. The fact that the jury acquitted defendant of theft charges showed it could fairly evaluate the evidence and follow the instructions. On this record it is not reasonably likely that the misinstruction led to the guilty verdict. Any error was harmless under the state standard of prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Contrary to defendants view, this instruction did not lessen the Peoples burden or create an unlawful presumption, calling for application of the federal standard of harmless error. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101-102; People v. Jackson (1996) 13 Cal.4th 1164, 1222-1224.)
II. Prosecutorial Misconduct
Defendant asserts the prosecutor committed three separate instances of misconduct during argument. The claims are that the prosecutor suggested the defense had a duty to produce evidence, that the prosecutor vouched for a witness, and that the prosecutor unfairly denigrated a defense witness.
"We begin by noting that defendant failed to object at trial to any of these references. Where, as here, the defendant failed to object below, the initial question to be decided is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected; if it would not, then and only then must we reach the issue of whether the harm resulted in a miscarriage of justice. [Citation.] [¶] In this case, defendants failure to object bars review since any harm as to each of the cited instances could have been cured by a timely objection and admonition." (People v. Marquez (1992) 1 Cal.4th 553, 575-576.) Here, defendants claims are of the sort that can readily be cured by a trial courts admonition, if it concludes the argument is improper. Therefore, the failure to object forfeits the claims. Contrary to defendants view, the cited instances of misconduct were not "pervasive" such that an objection would have been futile.
Further, the prosecutor committed no error. We address defendants three claims separately.
1. In argument, defense counsel questioned why the police never fingerprinted the water pump. In rebuttal, the prosecutor stated the pump had been released to its owner, Simmons, and that defendant "had just as much opportunity as I did to fingerprint."
This was not misconduct. "`As a general principle, prosecutors may allude to the defenses failure to present exculpatory evidence [citation], and such commentary does not . . . erroneously imply that the defendant bears a burden of proof." (People v. Lewis (2004) 117 Cal.App.4th 246, 257.) The People had no duty to fingerprint the water pump, and the argument that the defense could have done so was a fair response to the defense argument. The People did not argue defendant was obligated to fingerprint the pump; therefore, it did not shift the burden of proof to defendant. (Cf. People v. Woods (2006) 146 Cal.App.4th 106, 111-114 [prosecutor asserted defense had obligation to produce impeachment evidence; conviction reversed].)
2. During closing arguments, after conceding Crimmins had put her parents address on the pawn slip, the prosecutor suggested this was an innocent mistake, arguing "when you are young, youve been using your parents house, not unusual to have your drivers license at mom and dads house, that explains why she has a different address where the officers contacted her. Nobody trying to pull the wool. She wasnt try[ing] to hide from anything as far as that goes." "Really no motive to fabricate a story about [defendant]. In fact her testimony was that she was threatened for wanting to tell the police what had happened."
Contrary to defendants view, the prosecutor did not vouch for Crimminss credibility. "Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper `vouching, which usually involves an attempt to bolster a witness by reference to facts outside the record." (People v. Medina (1995) 11 Cal.4th 694, 757.) The facts cited by the prosecutor were based on evidence in the record and the argument why the jury should believe Crimmins was fair argument.
We reject defendants broad claim that "simply telling the jury that the witness had no reason to lie constituted improper vouching." The case cited in support of this claim involved a prosecutor who implied personal knowledge that peace officer witnesses were credible, in part because they would be disciplined if they lied. In part the prosecutor argued that in order to disbelieve those witnesses the jury would have to find that "`they must have lied at the scene there; they came into this court and they lied to you; they lied to this judge; they lied to me; they lied to my agent, Agent Baltazar. I guess they lied to the dispatcher when they called it in. These are officers that risk losin their jobs, risk losin their pension, risk losin their livelihood. And, on top of that if they come in here and lie, I guess theyre riskin bein prosecuted for perjury." (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1146.) Assuming that case was correctly decided (but see id. at pp. 1166-1168 (Trott, J., dissenting on the vouching issue)), it bears no resemblance to this case.
3. In rebuttal, the prosecutor stated defendants brothers story was "[p]reposterous, ludicrous, didnt happen" because two witnesses placed defendant in the pawn shop, Crimmins and the manager. He then said (in a passage which may have been mistranscribed): "Im sorry if you got alibi from your brother, you believe in God, can you think the true American way like he testified to. Im not making fun. I believe he did eight years in the army. If its the truth you run to the police, you get them on the phone and say this is crap my brother was with me all day. That is not what happened."
Although the prosecutors passage, just quoted, seems odd in isolation, that is in part because of the odd nature of defendants brothers testimony. He stated he had been in the army and although he knew defendant had done bad things before, he was certain defendant was innocent on this occasion because defendant had been with him. But two witnesses, Crimmins and the store manager, testified defendant was at the pawn shop. Although he claimed to know that defendant was innocent, the brother never reported to the police that he had been with defendant that day. The failure of a witness to come forward, or to tell his or her story only to one party, may support an inference of bias. (See Hannon, supra, 19 Cal.3d at pp. 601-602.) And the fact he was defendants brother raised a fair claim of bias. Therefore, the prosecutors criticism of defendants brothers testimony was fair argument. It was not a personal character attack, but an argument based on the record.
Because we have reached the merits and found that none of the instances of claimed misconduct were misconduct, we need not address defendants fallback claim of incompetence of trial counsel in failing to object. It is not incompetence to refrain from making futile objections. (See People v. Maury (2003) 30 Cal.4th 342, 419-420.)
III. Commitment to CRC
"[I]f it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence" and initiate CRC commitment proceedings, unless the judge finds the defendant unsuitable because of excessive criminality. (Welf. & Inst. Code, § 3051, 1st par.; see People v. Flower (1976) 62 Cal.App.3d 904, 909-911.)
At sentencing in this case, defense counsel argued defendants record consisted of petty property and drug crimes. The court denied probation and noted there was no evidence of any substance abuse "in this particular case" and because defendant had not complied in the past, given four probation violations, probation was denied. After the trial court sentenced defendant to the low term of 16 months, added three years for the prior prison terms, imposed fines and restitution, and advised defendant of his appellate rights, the court admonished defendant to reform his life "because if you dont, if you dont take advantage of NA or AA in prison, you are going to be right back here."
Shortly after this, defendant personally addressed the court: "Is there any possible way just get some help, go to CRC, have a program, have a drug program and get to the bottom of all this. I was born in Jackson, lived in Jackson. Everything Ive ever done has been based on drugs."
The court replied that the request was too late and "I dont see any evidence of it." On appeal, defendant claims the trial court should have granted his request for CRC commitment.
When a party fails to request CRC in the trial court, the issue of the propriety of a CRC commitment is deemed forfeited. (See People v. Lizarraga (2003) 110 Cal.App.4th 689, 691-692.) Here, defendant was represented by counsel, who did not make any request for CRC before the trial court imposed sentence. In this circumstance, we tend to agree with the trial court that the request was too late. However, for purposes of this appeal, we will address the CRC issue on the merits.
The record before the trial court did not show defendant was an addict or in danger of becoming one. It showed that he was convicted of drug possession and went to prison in 1994, was convicted of drug possession and being under the influence of drugs in 1998 and, after violating probation, went to prison, and was convicted of drug transportation and sent to prison in 2002. He had a number of other convictions, and three other prison commitments. But the last indication in the probation report that he used drugs was in 1998. The fact that defendant had used drugs in the past did not compel the trial court to find he was now an addict, or about to become an addict. (See People v. Young (1991) 228 Cal.App.3d 171, 184-185; People v. Flores (1979) 92 Cal.App.3d 461, 469-470.) The trial court was not compelled to believe defendants claim, made with no corroboration, that his criminality stemmed from drugs.
Defendant also contends the trial court failed to provide an adequate statement of reasons. We disagree. A formal statement of reasons is required when a trial court declines to send an "eligible defendant" to CRC. (Cal. Rules of Court, rule 4.406(b)(9).) Here, the court did not find defendant was "eligible" because it found no evidence he was addicted, or in danger of addiction. (See People v. Granado (1994) 22 Cal.App.4th 194, 202, fn. 7.) In any event, in this context, the statement that no evidence supported the CRC request adequately explained the reasoning behind the decision. (Cf. People v. Jeffery (2006) 142 Cal.App.4th 192, 196 [evidence defendant was addicted; courts statement that a "variety" of reasons supported decision not to send him to CRC was inadequate].)
Because we uphold the trial courts finding that there was no evidence defendant was eligible for CRC, we need not address whether his level of criminality, including his prior prison terms, would in any event disqualify him from CRC.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
HULL, J.