P. v. Alvarez

Filed 4/17/07 P. v. Alvarez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Bernardino County, Barry L. Plotkin, Judge. Affirmed.

A jury convicted Anthony Rene Alvarez (also known as Smiley) of receiving a stolen motor vehicle (Penal Code^[1] 496d, subd. (a), count 1); and receiving stolen checks ( 496, subd. (a), counts 2, 4, and 5); he was acquitted of one count of receiving stolen checks ( 496, subd. (a), count 3.) In separate proceedings, the court found true that Alvarez had four prior convictions within the meaning of the Three Strikes Law. The court sentenced him to 25 years to life.

Alvarez contends the trial court committed prejudicial error by denying both his request for a pinpoint jury instruction, and a motion for mistrial based on a claimed error under Doyle v. Ohio (1976) 426 U.S. 610, 617. We affirm.

FACTUAL BACKGROUND

Amber Talamantes testified that on July 25, 2003, she reported to the City of Ontario Police Department that her Honda Accord was stolen. On August 2, 2003, Ontario police located the car and detained Alvarez, the driver, and a female passenger. Inside the car was found a notebook with sticker letters that said, "EL Smiley;" inside the notebook were checks that were determined to be stolen. Alvarez was placed in a police car, and when he was transferred, the police found in the seat where he had sat torn pieces of a check from the same account as two untorn checks found in his notebook. The police contacted Talamantes, who stated she did not know the occupants of the car. She subsequently denied knowledge of the checks or notebook found in the car.

On January 14, 2004, Alvarez telephoned Talamantes from the West Valley Detention Center; she initially told him, "[Y]ou did me wrong by taking my car." Later, Alvarez asked her to call his investigator and say she just got mad at Alvarez because he took too long with the car. Talamantes responded, "Then, why did I report it stolen, what's my story to that?" She answered her own question with, "Because I got pissed off?" Alvarez responded, "Either you can go that route, or you can tell 'em, hey, you know what? I went and, I got your car back from whoever took it from you. And I was taking it back, and I just happened to get caught with it." Alvarez made other telephone calls from jail and told different individuals he had obtained Talamantes's cooperation to testify according to his version of events.

Around the same time that Alvarez telephoned Talamantes, she received a telephone call from her friend, Tommy Dilks, who was also in jail. He told her, "I know you're mad as hell about the car and all that, we'll get that figured out down the road at a later date." He asked her to tell Alvarez's investigator as follows: "I knew [Alvarez] had my fucking car and I was pissed, I didn't want to wait no more, so I just said fuck it, I didn't give nobody permission." Talamantes asked Dilks, "And I won't be liable for none of the shit that was in it?" Dilks responded, "No. Hell no." The recordings of all calls were played for the jurors, who also were given copies of the transcripts.

Alvarez did not testify at trial. Jay Avila, Talamantes's ex-boyfriend, testified for the defense that he jointly owned the car and had loaned it to Alvarez during the time it was reported stolen.

DISCUSSION

I.

Alvarez contends his Sixth Amendment right to a fair trial was violated by the trial court's refusal to give a proffered pinpoint instruction, which was requested based on Talamantes's testimony that when she met jointly with the district attorney and his investigator, she told them she did not want to testify at trial because she had "a lot hanging over [her] head," given that she was a parolee. Specifically, she asked them what the prison term for perjury was, and stated she had to decide if she would testify untruthfully or testify truthfully but be considered "a rat." The prosecutor asked Talamantes at trial, "And these options you had, is it true you're the one who brought up those options, we did not pressure you into those options? Talamantes responded, "No, I had mentioned that."

On recross-examination, Defense counsel asked Talamantes if it was not true that the District Attorney investigator had told her, "[W]hen you are subpoenaed and you go up to court and sit up on the witness stand, if you have to sit up on the witness stand, are you going to go with the original story that you gave to the police or are you going to change it based on these two phone calls?" She answered that the investigator had said that.

During a discussion regarding jury instructions, the court mentioned CALJIC No. 2.05, which states, "If you find that an effort to procure false or fabricated evidence was made by another person for the defendant's benefit, you may not consider that effort as tending to show the defendant's consciousness of guilt unless you also find that the defendant authorized that effort. If you find defendant authorized the effort, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide." (CALJIC No. 2.05 (2006 ed.) p. 37.) Defense counsel objected to this instruction, and instead offered the following pinpoint instruction: "If you find an effort to procure false or fabricated efforts [sic] made by the prosecution then you can consider that effort as tending to show that the prosecution believes they have a weak case."

The court declined to give the pinpoint instruction, reasoning, "I think what the evidence shows is that the investigator sought to persuade [Talamantes], whether it's called pressure or not, to testify consistently with the initial report that she made, which was that the vehicle was stolen. That evidence is plainly before the jury that she was encouraged in strong terms to testify consistently with her initial stolen report and not to retract or renege on any particular testimony. That's before the jury, that subject. Whether they think that renders her ultimate testimony unreliable is for the jury to consider. I think the defense should be given wide latitude to argue that, but I'm going to reject the request for a specific instruction on that issue. [] . . . "But in terms of weighing [Talamantes's] credibility, the jury is going to be told they can consider any matter that has tendency and reason to prove or disprove truthfulness, including but not limited to the factor in CALJIC 2.20 or the fact the defense claims she was pressured to testify in a certain fashion. I certainly would allow argument on that subject, but I will not give an instruction on that."

The trial court did not err in declining to give the requested pinpoint instruction because nothing in the standard instruction given precluded the jury from determining Talamantes's trial testimony was coerced, "and counsel's argument to the jury fully explicated [this] defense theme." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144-1145.)

II.

We reject Alvarez's claim the trial court erred in denying his motion for mistrial brought on the basis of Doyle error. A prosecutor may not use a defendant's post-Miranda [Miranda v. Arizona (1966) 384 U.S. 436] silence for impeachment purposes. (Doyle v. Ohio (1976) 426 U.S. 610, 617.) "[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Id., at p. 284.)

Here, on direct examination of Ontario Police Officer Jeffery Crittenden by the prosecutor, this exchange took place:

"Q Did you ask [Alvarez] about the blue vinyl notebook with the El Smiley on the outside that was recovered?

"A I did start asking him the question of the notebook and identified the notebook for him. He didn't want to talk to me any further.

"[Defense attorney] Objection, your Honor. Can we approach?"

During an unreported discussion, the defense attorney moved for a mistrial, arguing the jury should not have been allowed to learn that the defendant refused to continue speaking to Crittenden, which was Alvarez's assertion of his Miranda right to remain silent. The court denied the motion, stating Crittenden had made a clear error in his testimony, as evidenced by his police report. The court gave Crittenden an opportunity to correct the testimony, and accordingly instructed and admonished the jury as follows:

"[The prosecutor] needs to correct the record, and Officer Crittenden needs to correct a statement he just made. I'm going to ask you to disregard his answer to the question which had to do with his knowledge of the notebook. And the officer made a statement about whether he wanted to say something about the notebook.

"The truth is he apparently did say something about the notebook and that's what needs to be corrected, but I'm going to strike the officer's answer about his response to being asked about the notebook. You're to disregard it completely and not consider it for any reason whatsoever."

The prosecutor subsequently asked Crittenden, "[D]id the defendant make any statement under Miranda about whether the notebook belonged to him?" Crittenden responded that Alvarez denied the notebook belonged to him.

Even if there had been Doyle error, any likely prejudice to Alvarez was cured because immediately following Crittenden's mistake, the court instructed the jury to disregard the initial testimony. The prosecutor was not allowed to undertake impeachment on or call attention to Alvarez's postarrest silence. Thus, Alvarez's chances of obtaining a fair trial were not irreparably harmed, and it is not reasonably probable that, but for Crittenden's misstatement, Alvarez would have received a more favorable verdict. (People v. Davis (1996) 42 Cal.App.4th 806, 820, fn. 13.) Finally, even if Doyle error occurred, it was clearly harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)The case against appellant was established on the basis of testimony by Talamantes, and Alvarez's incriminating statements during telephone calls from jail. A notebook with Alvarez's nickname and containing the stolen checks was found in Talamantes's car, and Alvarez attempted to destroy one of the checks in the police car after his arrest. Therefore, we conclude appellant's assertion of reversible error is without merit.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.