Opinion
G042003 G042231 No. 08NF0678 08NF0267
10-20-2010
THE PEOPLE, Plaintiff and Respondent, v. MOTUSAGA JOSEPH FAAALIGA, Defendant and Appellant.
Jennifer L. Peabody, 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, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
OPINION
Appeal from a judgment of the Superior Court of Orange County, William L. Evans, Judge. Affirmed.
Jennifer L. Peabody, 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, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Motusaga Joseph Faaaliga challenges his robbery conviction on the basis the trial court misinstructed the jury on several principles applicable to his case. Finding no reason to disturb the judgment, we affirm.
FACTS
One afternoon, Israel Martinez was in Anaheim to do some landscaping work. Somehow, he ended up in an alley talking to a prostitute named Amy. After agreeing to terms, they went to a nearby motel and consummated the deal; Amy gave Martinez oral sex, and in exchange, he gave her $40.
Afterward, Martinez left the room, which was on the third floor of the motel. As he was walking down the stairs, he encountered appellant and Nicolas Moss on the second floor. They stepped in front of him and asked him if he wanted to buy some drugs. When Martinez said no, appellant grabbed him by the shirt collar and showed him a gun he had in his waistband. He and Moss then pulled Martinez into the hallway on the second floor of the motel. Appellant pushed Martinez up against the wall and demanded his money, while Moss closed the hallway doors. Appellant then took Martinezs wallet and cell phone from him. He asked Martinez for the PINs to his credit cards, but Martinez said he didnt know them.
Appellant started slapping Martinez at that point, but before things got too far out of hand, Amy came upon the scene. She called out appellants name and told him to leave Martinez alone. She then got between appellant and Martinez, which gave Martinez a chance to get away. He ran down to the motel office and asked for help, but the woman at the desk said she did not want to get involved. Amy then entered the office and implored Martinez not to call the police. While she was talking, Martinez noticed appellant and Moss enter a cab in the parking lot.
Martinez got in his truck and followed the cab. As he was driving, he contacted the police and told them what was going on. About five minutes later, the cab pulled over and appellant and Moss go out. Initially, they just moseyed about the area, unaware they had been followed. But when the police pulled up, they tried to flee. Appellant ran straight into the path of Martinezs truck and collided with this vehicle. As he hit the pavement, a gun fell from his clothing. At that point, Moss surrendered, and both men were arrested.
When interviewed at the scene, Martinez lied about the location of the robbery. He said it occurred in an alley while he was inside his truck and mentioned nothing about Amy or the motel. The next day, the police interviewed him again. This time, he told them everything that happened, including the part about his illicit encounter with Amy.
Moss gave a very different version of events. He testified he and appellant were hanging out on the stairs of the motel when Martinez came walking down from the third floor. Martinez asked appellant if he had any marijuana, and appellant indicated he did. They then walked into the hallway, while Moss waited out on the stairs. About a minute later, appellant came back outside, followed by Martinez. Martinez then walked down the stairs and left the area. After that, Moss and appellant took a cab to Mosss house. As they were walking in the area, the police and Martinez arrived. Martinez drove his truck into appellant and then tried to attack him while he was on the ground. However, the police intervened and restored order.
During his testimony, Moss admitted he was convicted of a felony "in relation to this case." The records in Moss case, of which we have taken judicial notice, show he was originally charged with robbery, but eventually pleaded guilty to simple theft.
I
Appellant contends the court prejudicially erred in failing to instruct the jury that Moss was an accomplice as a matter of law. We disagree.
An accomplice is a person "who is liable to prosecution for the identical offense charged against the defendant." (Pen. Code, § 1111.) If a witness is deemed to be an accomplice, his testimony must be viewed with caution and cannot be used to support a conviction absent corroboration, which is what the court told the jury in this case. (CALCRIM No. 334.) However, it is generally up to the jury to decide the threshold question of whether a particular witness is an accomplice in the first place. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) The trial court is only permitted to decide the issue as a matter of law when the underlying facts are clear and undisputed. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214; People v. Williams (1997) 16 Cal.4th 635, 679.) If there is any dispute as to "the facts or the inferences to be drawn therefrom," the issue must be submitted to the jury. (People v. Fauber (1992) 2 Cal.4th 792, 834.)
Here, the facts pertaining to Moss status were not clear and undisputed. While Martinezs testimony implicated him in the robbery, Moss himself testified that, other than being present in the general area, he had nothing to do with the encounter between appellant and Martinez. Moss testimony was, of course, clouded by the fact he was convicted of theft in relation to this case. Still, "the facts or the inferences to be drawn therefrom" (People v. Fauber, supra, 2 Cal.4th at p. 834) were sufficiently disputed to make his status a question for the jury. Therefore, the court did not err in failing to instruct he was an accomplice as a matter of law.
Moreover, it is readily apparent the courts failure to so instruct benefited rather than prejudiced appellant. Moss, after all, not only distanced himself from the robbery, he also exculpated appellant in the process. While Martinez testified appellant showed him a gun, roughed him up and took his money, Moss version of events contained none of that information. To the contrary, he made it sound like Martinez was the one who instigated the encounter and acted aggressively by driving his truck into appellant. That being the case, it would not have assisted appellant to have the court declare Moss an accomplice, because that would have required the jury to view his testimony with caution. As it was, the jury was free to decide that Moss was not an accomplice and to view his testimony as any other witness. Since Moss testimony was favorable to the defense, that could only have helped, not hurt, appellant. Therefore, the courts accomplice instructions are not grounds for reversal.
II
Appellant also contends the court erred in giving CALCRIM No. 223. He claims the instruction undermined the presumption of innocence and shifted the burden of proof to him, but we do not see it that way.
Pursuant to CALCRIM No. 223, the court instructed the jury, "Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. [Example given.] Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. [Example given.] [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
In attacking this instruction, appellant focuses on the phrase, "Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge...." He contends the phrase impermissibly shifts the burden of proof by suggesting the defense must affirmatively disprove the elements of the charged offense. However, CALCRIM No. 223 does not mention the burden of proof, which was addressed in a separate instruction. (See CALCRIM No. 220, which told the jury the presumption of innocence requires the prosecution to prove the defendant guilty beyond a reasonable doubt.) Nor does it state that a defendant must prove or disprove anything. "Reasonably read, the instruction cautions only that neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial evidence." (People v. Anderson (2007) 152 Cal.App.4th 919, 930.) As such, it does not "undermine the reasonable doubt standard or presumption of innocence. [Citations.]" (People v. Smith (2008) 168 Cal.App.4th 7, 18.)
III
Next, appellant takes aim at CALCRIM No. 302, claiming it "shifts to the defendant the burden of disproving his guilt and violates the due process clause of the Fourteenth Amendment." Again, we disagree.
CALCRIM No. 302 advised the jurors, "If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."
Appellant takes issue with the word "believe" in the opening sentence of the instruction. He argues that while jurors must believe evidence pointing toward guilt to convict, "the converse is not true, i.e., a finding of reasonable doubt does not require that any exculpatory evidence be believed — only that jurors harbor a reasonable doubt as to guilt." That may be true, but we do not agree with appellant that CALCRIM No. 302s failure to distinguish between inculpatory and exculpatory evidence renders the instruction unconstitutional. In fact, like CALCRIM No. 223, the instruction is silent on the burden of proof and does not place any obligation on the defense. It simply "mandates that the jury decide what evidence, if any, to believe, regardless of which side introduces the evidence[.]" (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191.) We discern no constitutional infirmity in this language. (Ibid.; People v. Anderson, supra, 152 Cal.App.4th at pp. 938-940.)
IV
Lastly, appellant contends the court erred in modifying CALCRIM No. 226, the instruction on witness credibility. While we agree the courts modification was erroneous, we find it was harmless under the circumstances presented.
CALCRIM No. 226 tells the jury, "In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." It then lists several factors the jury may consider in this regard, such as the witnesss demeanor and whether he has been convicted of a felony. The instruction also allows the jury to consider whether the "witness has engaged in other conduct that reflects upon his or her believability." The defense argued Martinezs encounter with Amy the prostitute constituted such "other conduct," but the court disagreed and modified CALCRIM No. 226 to delete that factor from the instruction. Consequently, the jury was not allowed to use the encounter in judging Martinezs credibility.
In modifying CALCRIM No. 226, the trial judge stated, "I dont think prostitution is a crime of moral turpitude." However, as the Attorney General concedes, several cases have held otherwise. (See, e.g., People v. Chandler (1997) 56 Cal.App.4th 703, 709; People v. Jaimez (1986) 184 Cal.App.3d 146; see also Stidwell v. Md. State Bd. of Chiropractic Examrs (Md. App. 2002) 799 A.2d 444 [solicitation of a prostitute is a crime of moral turpitude]; In re Koch (Az. 1995) 890 P.2d 1137 [same].) We therefore proceed to the issue of prejudice.
Although the court precluded the jury from considering Martinezs conduct with Amy in assessing his credibility, it did allow a considerable amount of evidence on the prostitution issue, since it was an underlying factual component of the case. It also turned out to be an important aspect of the credibility issue, not because of the moral implications surrounding Martinezs behavior, but because it shaped Martinezs subsequent interactions with the police. During trial, Martinez admitted he initially lied to the police about where the robbery occurred, so as to deflect attention from his encounter with Amy. And that admission opened the door to extensive cross-examination by defense counsel, who used Martinezs prior inconsistent statements to undermine his credibility. Because those statements centered on the very circumstances surrounding the robbery, the defense was able to use the prostitution issue to its considerable advantage. In the end, it was evident from Martinezs testimony that not only had he been untruthful with the police, he was quite ashamed of his conduct with Amy and just wanted the whole case to be over with.
Given how the prostitution issue played out, it is not reasonably probable appellant would have obtained a more favorable verdict had the court given CALCRIM No. 226 without modification. Irrespective of the moral turpitude issue, the defense still had plenty of ammunition with which to impeach Martinez, by virtue of his prior inconsistent statements. The jury was not left with a mistaken impression about his credibility, and we see no cause for reversal.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.