P. v. Callies

















Filed 6/5/13 P. v. Callies CA3











NOT TO BE PUBLISHED









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opinion has not been certified for publication or ordered published for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.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE, Plaintiff and Respondent, v. JUDGE CALLIES, Defendant and Appellant.

C071609 (Super. Ct. No. 11F05733)

A jury convicted defendant Judge
Callies of robbery and kidnapping to
commit robbery. Defendant now contends
(1) the trial court erred in instructing the jury with the last bracketed
paragraph in CALCRIM No. 226 [witnesses], and (2) the abstract of judgment must
be corrected to reflect a sentence of life with the possibility of parole,
rather than seven years to life in prison.

We conclude there was no href="http://www.mcmillanlaw.com/">instructional error and the abstract of
judgment correctly reflects the sentence imposed by the trial court.

We will affirm the judgment.

BACKGROUND

Eric Scott drove into a parking
space at a taco stand and bumped another car.
Defendant and another man claimed the car was theirs and asked Scott to
pay for the damage. Scott gave defendant
$20 or $30, but defendant said that was not enough money. Defendant offered to go with Scott to a bank
to get more money. Scott construed the
“offer” as a demand. Defendant had his
hand in his pocket and Scott thought defendant might have a gun. Fearing for his safety, Scott drove with
defendant to an ATM, withdrew $160, and gave it to defendant.

Defendant suggested Scott’s car
stereo could be used to make up the balance on the money “owed” for car
repairs. Scott disagreed, but defendant
instructed him to drive to an apartment complex. Scott realized a car was following them and
became more worried he would be hurt.

At the apartment complex, defendant
started taking the dashboard apart to remove the car stereo. He obtained metal cutters from his friend,
Jibri Stepter, and continued trying to remove the stereo. Stepter took Scott’s wallet and left. Defendant told Scott to hand over his car
keys; he also took Scott’s cell phone.
Defendant then drove Scott around asking strangers for a screwdriver
that he could use to remove the car stereo.
When one man offered them a butter knife, defendant rejected the offer
by pointing his gun at the man.
Eventually, defendant removed the stereo from Scott’s car and returned
the car to Scott. Scott returned to the
taco stand, borrowed a cell phone and called the police.

Defendant testified he thought Scott
looked like an “easy target.” The car
Scott hit did not belong to either defendant or his friend, but when defendant
saw the collision he decided to con Scott out of money. He told Scott the damage could be covered by
$100 to $200 and when Scott informed defendant he only had $30 on him,
defendant offered to go with him to an ATM.
Scott came back from the ATM with $160 and defendant tried to convince
him to include the car stereo in the deal.
According to defendant, Scott agreed and they went to an apartment
complex. Stepter followed them from the
taco stand. Stepter gave defendant
pruning shears and defendant used them to remove the car stereo. He then told Scott how to get back to the
taco stand. Defendant denied having a
gun and denied ever driving Scott’s car.
Defendant acknowledged Stepter took Scott’s cell phone and perhaps his
wallet, but he did not see Stepter with a gun.


Defendant admitted he was a liar and
a thief. He testified at trial that most
of his prior denials were lies, but he said he was telling the truth at
trial.

A jury found defendant guilty of
kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1) -- count one)href="#_ftn1" name="_ftnref1" title="">[1] and robbery (§ 211 -- count two). The trial court sentenced defendant to seven
years to life in prison on count one, stayed sentence on count two pursuant to
section 654, awarded 356 days of presentence custody credit and ordered
defendant to pay various fines and fees.


DISCUSSION

I

Defendant contends the trial court
erred in instructing the jury with the last bracketed paragraph in CALCRIM No.
226. That paragraph states: “If you decide that a witness deliberately
lied about something significant in this case, you should consider not
believing anything that witness says. Or,
if you think the witness lied about some things, but told the truth about
others, you may simply accept the part that you think is true and ignore the
rest.”

The attorneys and the trial judge
reviewed the jury instructions before the trial judge instructed the jury. Defendant’s trial counsel expressly agreed it
was appropriate to instruct the jury pursuant to CALCRIM No. 226 as given. Based on that agreement, the Attorney General
now argues defendant’s appellate challenge should be rejected as invited
error. Defendant counters that the
invited error doctrine does not bar our review because defendant’s trial
counsel did not state a “ ‘conscious, deliberate, or tactical
reason’ ” for agreeing to the instruction.
(Quoting People v. Collins
(1992) 10 Cal.App.4th 690, 694-695.)

Under the invited error doctrine, a
defendant may not challenge a jury instruction given by the trial court if
defendant’s trial counsel made a deliberate and conscious tactical choice to
request or acquiesce in the instruction.
(People v. Thornton (2007) 41
Cal.4th 391, 436; People v. Catlin
(2001) 26 Cal.4th 81, 150; People v.
Collins, supra, 10 Cal.App.4th at pp. 694-695.) The deliberate tactical purpose need not be
expressly articulated as such; it can be shown by the actions and argument of
trial counsel taken as a whole. (>People v. Avalos (1984) 37 Cal.3d 216,
229; see also People v. Marshall
(1990) 50 Cal.3d 907, 931-932.)

In closing argument, defendant’s
trial counsel challenged Scott’s credibility and pointed out the
inconsistencies in Scott’s pretrial statements and testimony. Trial counsel urged the jurors to consider
the various factors listed in CALCRIM No. 226 in deciding who and what to
believe. The record demonstrates that
trial counsel’s agreement to instruct the jury with CALCRIM No. 226, including
the bracketed last paragraph, was a deliberate tactical choice, not “mere
unconsidered acquiescence.” (>People v. Avalos, supra, 37 Cal.3d at p.
229.) Accordingly, the invited error
doctrine applies and defendant cannot challenge the instruction on appeal.

In any event, the trial court did
not err in giving the instruction. With
unusual candor, defendant testified he is a liar, he lies to get what he wants,
he would probably lie to get himself out of trouble, and he would lie to
minimize his own criminal conduct. That
testimony supported giving the bracketed instruction.

Defendant argues the challenged
paragraph directed the jurors that they “should” disbelieve him. But that is not true. The instruction merely directed the jurors to
“consider” not believing a witness if they find the witness deliberately
lied. (People v. Warner (2008) 166 Cal.App.4th 653, 658 (>Warner).)

Defendant claims the challenged
paragraph necessarily impaired the jury's credibility-determining function in a
case where the defense depended substantially on defendant’s testimony, adding
that the paragraph should not be given when a defendant testifies because a
criminal defendant “always in theory has a motive to lie.” However, the California Supreme Court
rejected challenges to similar instructions.
(People v. Carey (2007)
41 Cal.4th 109, 130-131 [CALJIC No. 2.21.2 does not lower burden of
proof]; People v. Maury (2003)
30 Cal.4th 342, 428-429 [CALJIC No. 2.21.2 does not create “probability of
truth” standard]; People v. Beardslee
(1991) 53 Cal.3d 68, 94-95 [CALJIC No. 2.21 is correct statement of law
and does not require jury to reject any testimony]; People v. Lang (1989) 49 Cal.3d 991, 1023-1024 [CALJIC No.
2.21 properly given].)

Defendant argues CALCRIM No. 226 is
different from CALJIC No. 2.21.2 because CALCRIM No. 226 more strongly
encourages a jury to reject defendant’s entire testimony if it finds a material
falsehood somewhere in his testimony.
But in Warner, supra, 166 Cal.App.4th
at page 658, the Court of Appeal compared the language of the two instructions
and concluded they are both facially neutral.
The court added that the instructions “apply to all witnesses who
testify at trial” and “focus no more on the defendant's testimony than on that
of any other witness.” (>Ibid.)
We find the analysis in Warner
persuasive and choose to follow it.
Accordingly, defendant has not established instructional error.

II

Defendant next contends the abstract
of judgment must be corrected to reflect a sentence of life with the
possibility of parole, rather than seven years to life in prison.

In sentencing defendant on count
one, the trial court said “the defendant shall be committed to State Prison for
the indeterminate term of life with the minimum eligible parole of seven
years.” The abstract of judgment
states: “Defendant was sentenced to
State Prison for an INDETERMINATE TERM as follows: [¶] . . . [¶] 6.c. 7 years to Life on counts 1.”

The abstract accurately reflects the
orally pronounced sentence. Nonetheless,
to support his claim that the “abstract” should be “corrected,” defendant
argues that minimum parole eligibility is the province of the California
Department of Corrections and Rehabilitation and should not have been a component
of the sentence imposed by the trial court.
But that is not a basis to “correct” the abstract of judgment. There is no clerical error in the abstract
requiring correction.

To the extent defendant may be
challenging the sentence itself, he does not cite authority holding that the
sentence imposed was an unauthorized sentence (People v. Stanley (1995) 10 Cal.4th 764, 793), and he does not
claim or establish prejudice.

His contention lacks merit.

DISPOSITION

The judgment is affirmed.







MAURO , J.





We concur:





RAYE , P. J.





HULL , J.