Opinion
2d Crim. No. B229965
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. CARLTON WILLIAMS, Defendant and Appellant.
Law Offices of Helen Simkins Irza, Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stephen D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. VA114512-01)
(Los Angeles County)
Appellant Carlton Williams was convicted by jury of forgery (Pen. Code, § 475, subd. (c), count 1); forgery in violation of section 476 (count 2); second degree burglary (§ 459, count 3); and receiving stolen property (§ 496, subd. (a), count 4). The trial court found that appellant had a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court denied probation and imposed a total term of six years in state prison. It selected count 3 as the base term and imposed the upper term of three years, doubled to six years for the prior strike conviction. As to count 1, it imposed the upper term of three years, which it stayed pursuant to section 654. As to counts 2 and 4, it imposed the upper term of three years for each count, and ordered them to run concurrently with each other and with the sentence in count 3. The court struck the prior prison term allegation.
FACTS
On December 29, 2009, victim Maria Ramos wrote a check to AT&T for $11.91. It was drawn on her account at Wells Fargo Bank and its number was 1476. She placed a stop payment on the check after learning that AT&T had not received it.
On March 11, 2010, appellant entered a Wells Fargo branch and attempted to cash the check. It was made payable to appellant in the amount of $300 and signed by the victim. The bank teller noticed that appellant's name had been written over another name, and the date of the check and dollar amount had been altered. There were different shades of blue ink on the check.
The teller asked appellant for two forms of identification and he produced a debit card and California identification card, both in his name. He gave a fingerprint at the teller's request. The teller then contacted the victim who confirmed that she had lost check number 1476 and did not know appellant. Her supervisor called the police. During this time, appellant appeared very relaxed and at one point even asked another bank employee if something was wrong.
Deputy Sheriff Raul Zuniga arrived at the bank and saw that appellant was seated at a teller window. Zuniga handcuffed appellant, took him outside, and read him
his Miranda rights. He asked appellant where he got the check, and appellant responded that the victim gave it to him because he had done construction work at her home. However, he was unable to describe the victim's physical appearance. He then told Zuniga that a friend gave him the check. Appellant denied having stolen it.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
Appellant claims that the trial court erred by not instructing the jury with CALJIC No. 2.71, that a defendant's unrecorded, oral admissions should be viewed with caution. He contends that the court's failure to give this instruction sua sponte constitutes reversible error.
CALJIC No. 2.71 provides that:
"An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.
"You are the exclusive judges as to whether the defendant made an admission and, if so, whether that statement is true in whole or in part.
"[Evidence of an oral admission of [a] [the] defendant not contained in an audio or video recording and not made in court should be viewed with caution.]"
The revised instruction (CALCRIM 358) reads: "You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]"
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When a defendant's oral statements are admitted into evidence, the trial court has a sua sponte duty to instruct the jury that such evidence must be viewed with caution. (People v. Jackson (2009) 45 Cal.4th 662, 694; People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) Reversal is not required if it not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Wilson (2008) 43 Cal.4th 1, 19; Slaughter, at p. 1201.) The cautionary instruction is intended to assist the jury in determining whether the statement was in fact made. (People v. Dickey (2005) 35 Cal.4th 884, 905.)
The People concede that the instruction should have been given, but argue that its omission was harmless error. We agree. Appellant neither denied having made the statements nor presented evidence that his statements differed from those testified to by Deputy Zuniga. Moreover, the jury was instructed on the assessment of witness credibility.
Even in the absence of appellant's oral statements, the evidence was overwhelming that he committed the charged offenses. He attempted to cash a check on which the name of the payee was obliterated and replaced with his name. The dollar amount had been altered. The check was issued by a person who was unknown to appellant and he made no argument that it was legitimate.
The trial court's error was harmless. Based on the record as a whole, we conclude that it is not reasonably probable the jury would have reached a result more favorable to appellant had CALJIC 2.71 been given.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
PERREN, J.
Michael A. Cowell, Judge
Superior Court County of Los Angeles
Law Offices of Helen Simkins Irza, Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stephen D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.