P. v. Galkoski

Filed 3/22/06 P. v. Galkoski 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 Diego County, John M. Thompson, Judge. Affirmed.

A jury convicted James B. Galkoski of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a); count 1); receiving a stolen vehicle (Pen. Code, § 496, subd. (d); count 3); and receiving stolen property (Pen. Code, § 496, subd. (a); count 4). The court sentenced Galkoski to four years and eight months in prison: the upper term of four years for unlawfully taking and driving a vehicle and a consecutive eight-month term for receiving stolen property. The court stayed sentence (Pen. Code, § 654) for receiving a stolen vehicle.

Galkoski appeals, contending: (1) the court violated his right to confront a witness and his right to present a defense by refusing to allow him to cross-examine a witness; (2) the court erred by failing to provide the jury with instructions under CALJIC Nos. 3.10, 3.11, 3.12 and 3.18 concerning accomplice liability; and (3) his sentence must be reversed because the court violated his constitutional rights by sentencing him to the upper term sentence of count 1.^[1] We affirm the judgment.

FACTUAL BACKGROUND

On November 9, 2004, Galkoski arrived at Maria Palmer's home in a white pickup truck.^[2] He parked the truck in Palmer's driveway and started to repair her car with tools he had brought in the truck. Later the same day, Sheila Brown went to Palmer's house and saw Galkoski working in the driveway on Palmer's car. Brown spent some time at Palmer's house until Brown noticed she had lost a money order. Because she did not have a car of her own, she asked Palmer for a ride to her mother's house to look for the money order. Galkoski was still working on Palmer's car at that time so Palmer asked

him if she could borrow his pickup truck to drive Brown home. Galkoski said he needed the truck because his tools were in them but suggested they borrow his other car.^[3] The women agreed and drove with Galkoski in the truck about three miles away to a 1998 Toyota Camry. Galkoski unlocked the door to the Camry and started the car. Palmer and Brown got into Camry and drove away.

Officer David Speck of the San Diego Police Department saw the stolen Camry on the road while he was on duty. He initiated a high risk vehicle stop and pulled over the car. Speck noted both Brown and Palmer looked upset and did not appear to know why they had been stopped by the police. He subsequently ordered Palmer and Brown out of the car.

At trial, Speck testified he separated the two women and questioned them about the stolen Camry. After questioning Palmer, Speck learned Brown went to Palmer's house early in the day and shortly thereafter, Brown realized she left a money order in her ex-husband's car. Brown needed a ride home and asked Palmer to drive her. Palmer said she asked Galkoski if she could borrow his truck and he said no because he needed to use the tools in the truck. He said they could use another car. Galkoski drove her and Brown to the Camry. Galkoski unlocked the Camry and gave her the key. She placed the key on her key ring so she would not lose it. Speck noted the key appeared to be a shaved key, the kind commonly used to steal older model Toyota cars.

Speck questioned Brown and her statement was almost identical to Palmer's. Brown stated she went to visit Palmer earlier that day and after some time had passed, she realized she had lost her money order. Brown asked Palmer for a ride home and so they asked Galkoski if they could use his truck. Brown told Speck that Galkoski was using tools from the truck but said he would let them use another car. Galkoski then drove them in the truck to a Camry. Galkoski unlocked the Camry and gave Palmer the key.

Police officers later went to Palmer's house and found Galkoski using the tools from the white pickup truck to repair Palmer's car. The officers detained Galkoski, dusted the truck for fingerprints and searched it. Among the items found were a backpack and the title to another stolen car. The backpack contained a bible that belonged to Galkoski's girlfriend. Later, Ara Pardini arrived at Palmer's house and identified his truck and tools. The officers read Galkoski his rights and Galkoski told an officer he borrowed the tools from a friend and denied ever being in McAuley's Camry. He said Pardini's truck was already at Palmer's house when he arrived to work on Palmer's car. He denied stealing the truck.

Forensics reported at trial that the fingerprints taken from inside Pardini's truck matched Galkoski's prints. In addition, a print taken from the inside of McAuley's Camry matched Galkoski's right ring finger.

Defense

Galkoski testified at trial that on November 9, 2004, he took a bus to Palmer's house. He further testified he had left the tools at Palmer's house on a different occasion and that the white pickup truck was already at Palmer's house when he arrived. Galkoski testified he never drove the truck but did go into the truck to find cigarettes and the backpack. He denied stealing the truck or the Camry.

DISCUSSION

I

CONSTITUTIONAL RIGHT TO CONFRONTATION AND TO PRESENT A DEFENSE

Galkoski argues the court violated his Sixth Amendment right to confront a witness and his right to present a defense by precluding him from cross-examining Palmer about an incident concerning the theft of her neighbor's car registration tag. He asserts this evidence was relevant and admissible as to Palmer's credibility and honesty.

A. Overview of Sixth Amendment Right of Confrontation

A defendant has a Sixth Amendment right to confront the witnesses against him and to cross-examine his accusers. "A criminal defendant states a violation of the confrontation clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness, and thereby to expose facts from which the jury could appropriately draw inferences relating to the reliability of the witness." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385, citing Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680 and Davis v. Alaska (1974) 415 U.S. 308, 318.)

However, a trial court retains wide discretion to reasonably limit questions on cross-examination regarding issues of a witness's credibility. (Davis v. Alaska, supra, 415 U.S. at pp. 315-316.) When a trial court exercises its discretion to prohibit cross-examination, a defendant's federal constitutional right to confront the witness is not infringed unless the confrontation might reasonably have produced a different impression of the witness's credibility. (In re Ryan N., supra, 92 Cal.App.4th at p. 1386.) "As long as the cross-examiner has the opportunity to place the witness in his or her proper light, and to put the weight of the witness's testimony and credibility to a reasonable test which allows the fact finder fairly to appraise it, the trial court may permissibly limit cross-examination to prevent undue harassment, expenditure of time, or confusion of the issues." (Ibid.; Delaware v. Van Arsdall, supra, 475 U.S. at pp. 678-679; Davis v. Alaska, supra, 415 U.S. at p. 318; People v. Ayala (2000) 23 Cal.4th 225, 301.) Thus, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 20.)

"Evidentiary rulings will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial court's decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice." (In re Ryan N., supra, 92 Cal.App.4th at p. 1385.)

B. Court Properly Refused Cross-Examination

Here, defense counsel unsuccessfully sought to cross-examine Palmer concerning car registration tags she allegedly stole from her neighbor, Mr. Garcia. The defense later sought to have Garcia testify he noticed his car registration tag was missing and after searching the neighborhood, he found the tag on Palmer's car. The defense intended to use Garcia's testimony to show Palmer's dishonesty. The court denied the request stating there was an "insufficient nexus in the connection between Mr. Garcia or Ms. Palmer and the tag." In addition, the court reasoned the incident was two years old and there was no evidence indicating Palmer had actually taken the tag or placed it on her car. We agree with the trial court's ruling. According to Palmer's attorney, Palmer denied ever taking Garcia's car registration tag and there was no evidence aside from Garcia's claims that Palmer's stole the car tag. Even had Garcia testified, the line of questioning had limited probative value as to Palmer's credibility, was confusing and would have caused delay and undue consumption of time. (Evid. Code, § 352.) The court did not abuse its discretion by denying Galkoski's request to cross-examine Palmer or present Garcia as a witness. (People v. Harris (1989) 47 Cal.3d 1047, 1090-1091 [court retains authority to limit cross-examination when relevance is insignificant as compared with potential for prejudice and confusion].)

Further, the excluded cross-examination would not have reasonably produced a significantly different impression of Palmer's credibility. (See People v. Cudjo (1993) 6 Cal.4th 585, 611; In re Ryan N., supra, 92 Cal.App.4th at p. 1386.) Defense counsel had already cross-examined Palmer about her actions on the day the stolen Camry was found, her relationship with Galkoski, the stolen white truck and the shaved key on her key ring. Counsel made the jury aware of Palmer's prior conviction of illegally transporting and possessing drugs and how this could be a factor to consider in weighing Palmer's testimony. (CALJIC 2.23.) After the presentation of witnesses, the court provided the jury with the appropriate instructions concerning the believability of witnesses including CALJIC Nos. 2.20 (Believability of Witness), 2.21.1 (Discrepancies in Testimony) and 2.21.2 (Witness Willfully False). Thus, defense counsel had the opportunity to fully probe issues of Palmer's credibility. In doing so, counsel placed Palmer in her proper light and put the weight of her testimony and credibility to a reasonable test, thus allowing the jury to fully appraise it. (In re Ryan N., supra, at p. 1386.) No error occurred and no prejudice to Galkoski resulted. (People v. Sully (1991) 53 Cal.3d 1195, 1219.)

C. Constitutional Right to Present a Defense

The restriction on Galkoski's right to cross-examine Palmer did not violate his constitutional right to present a defense. That right requires an accused to be able " 'to present all relevant evidence of significant probative value to his defense.' " (People v. Babbitt (1998) 45 Cal.3d 660, 684, quoting People v. Reeder (1978) 82 Cal.App.3d 543, 553, underscored text italicized in Reeder, other italics added.)

We reject Galkoski's claim because the trial court's ruling restricting the cross-examination of Palmer did not prevent Galkoski from presenting evidence related to his defense. The court instead merely precluded Galkoski from initiating a line of questioning about an incident that had limited probative value and would have resulted in confusion and delay. Further, the gravamen of Galkoski's defense was that the white pickup truck was already in Palmer's driveway when he arrived to repair her car. In this regard, any testimony by Palmer or Garcia concerning stolen car registration tags was not vital to Galkoski's defense especially where the defense had the opportunity to address Palmer's credibility by cross-examining her about the stolen cars and introducing her prior conviction. The court's ruling did not rise to the level of an unconstitutional deprivation of the right to prevent a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102.)

II

ACCOMPLICE LIABILITY INSTRUCTIONS

Galkoski asserts the trial court erred by failing to provide the jury with instructions concerning accomplice liability as to Palmer. (CALJIC Nos. 3.10, 3.11, 3.12, 3.18.) He contends the evidence presented at trial proved Palmer was an accomplice to the charged offenses because she was found driving the stolen 1998 Camry and the stolen white pickup truck was found in her driveway.

A. Legal Principles

Penal Code section 1111 provides "[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense[.]" An "accomplice" is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given" (ibid.), that is one who is considered a "principal" in the offense. (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114.) A "principal" is one who is "concerned in the commission of a crime [regardless of] whether [he or she] directly commit[s] the act constituting the offense, or aid[s] and abet[s] in its commission[.]" (Pen. Code, § 31.) One is liable as an aider and abettor if he or she acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91; People v. Marshall (1997) 15 Cal.4th 1, 40.)

If there is evidence from which the jury could find a witness to be an accomplice, the court must sua sponte instruct the jury on accomplice testimony. (People v. Lewis (2001) 26 Cal.4th 334, 369 (Lewis); People v. Zapien (1993) 4 Cal.4th 929, 982.) The accomplice instructions inform the jury that if it finds the witness is an accomplice, the witness's testimony should be viewed with distrust and must be corroborated by evidence tending to connect the defendant with the commission of the offense. (People v. Stankewitz, supra, 51 Cal.3d at p. 90; CALJIC Nos. 3.19, 3.11, 3.12.) The cautionary instructions are required because an accomplice may try to shift the blame in an effort to minimize his own culpability. (People v. Tobias (2001) 25 Cal.4th 327, 331.) However, the court need not give the accomplice instructions if it determines the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice. (Lewis, supra, 26 Cal.4th at p. 369.) Substantial evidence is not any evidence, no matter how weak, but evidence sufficient to deserve consideration by the jury. This requires something more than mere speculation. (Id. at pp. 369-370.) Mere knowledge of a crime and presence at the scene is also insufficient because "this fact without more merely means that [the individual] was an eyewitness and not necessarily an accomplice to the crimes." (Id. at p. 369, citing People v. Stankewitz, supra, 51 Cal.3d at p. 90.) The burden is on the defendant to establish by a preponderance of the evidence that a witness is an accomplice. (People v. Sully, supra, 53 Cal. 3d 1195, 1228.)

B. Analysis

The jury could not reasonably have found Palmer to be a principal in the offenses charged against Galkoski because based on the testimony presented at trial, there is no evidence to support a finding that Palmer was an accomplice to the charged offenses or to contradict her testimony. According to Palmer, she had arranged for Galkoski to repair her car. When he arrived in the stolen white pickup truck, he parked in the driveway and began to repair Palmer's car. After Brown arrived and noticed she had lost her money order, Galkoski agreed to drive the women in his white pickup truck to his other car. Once they reached the stolen Camry, Galkoski opened the car door for them and the women drove away. The record is void of any evidence indicating Palmer knew the Camry or white truck had been stolen or that she participated in stealing the vehicle. Palmer was not present when Galkoski stole the cars and there was no evidence that Palmer had knowledge of Galkoski's criminal purpose or that she acted with the intent or purpose of committing, encouraging or facilitating commission of the offenses. (People v. Stankewitz, supra, 51 Cal.3d at pp. 90-91.)

Even had the trial court erred by not providing the jury with instructions on accomplice liability, any error is harmless if there is sufficient corroborating evidence in the record. (People v. Zapien, supra, 4 Cal.4th at p. 982.) The corroborating evidence may be entirely circumstantial or slight, and entitled to little consideration when standing alone. (Ibid.)

Consistent with Palmer's testimony, Brown's testimony concerning the stolen truck and Camry sufficiently corroborated Palmer's statements to the police and testimony at trial. Brown testified she arrived at Palmer's house and Galkoski was using tools to work on Palmer's car. Palmer asked Galkoski if they could borrow his truck and Galkoski said he had his tools in the truck but that we would take the two women to his other car. He drove the two women in the truck to the Camry, opened the car door and started it before driving away in the truck. Further, Officer Speck's testimony concerning statements made by Palmer and Brown after he pulled them over corroborates Palmer's testimony. Thus, any error by the court is harmless.

III

THE TRIAL COURT'S SENTENCE WAS PROPER

Galkoski challenges the court's imposition of an upper-term sentence. He argues his sentence must be reversed because the court and not the jury made the findings on aggravating factors therefore violating his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S.296. In People v. Black (2005) 35 Cal.4th 1238 (Black), the California Supreme Court addressed the effect of the United States Supreme Court decisions in Blakely, supra, 542 U.S. 296, and in United States v. Booker (2005) 543 U.S. 220 on California's determinate sentencing law (DSL). The Court held the DSL, which allows judicial factfinding when a judge exercises discretion to impose an upper-term sentence, does not implicate a defendant's constitutional right to a jury trial. Rather, the DSL "simply authorize[s] a sentencing court to engage in the type of fact-finding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range." (Black, supra, 35 Cal.4th at p. 1254.)

We are aware of the United States Supreme Court's granting of review of People v. Cunningham. (See People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted Feb. 21, 2006, No. 05-6551, sub. nom. Cunningham v. California (2005) ___ U.S. ___ [ ___ S.Ct. ___ ].)^[4] However at the present time, Black, supra, 35 Cal.4th 1238 is the controlling authority. Thus, based on Black, the trial court's decision to select the upper term sentence did not violate Galkoski's Sixth Amendment right to a jury trial.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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^[1] In his opening brief, Galkoski raises a fourth issue concerning an error in the abstract of judgment. The record shows the trial court had previously corrected the abstract. Both parties agree the abstract is currently correct and the issue is now moot. We therefore shall not address the fourth issue.

^[2] On October 31, 2004, Ara Pardini's white 1994 Toyota truck was stolen. Pardini never gave anyone permission to take his truck or tools. Once the truck was found, Pardini noticed the tool box attached to the trunk had been broken into and several power tools were missing.

^[3] November 9, 2004, John McAuley's 1998 Toyota Camry was stolen. After the car was located and searched, the officers discovered that the title to the car was missing. McAuley never gave anyone permission to take his car.

^[4] The issue to be considered by the Supreme Court is whether the current DSL in California that allows judges to impose enhanced sentences based on their determination of facts not found by the jury violates the Sixth Amendment.