P. v. Medina

Filed 10/25/06 P. v. Medina CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

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Defendant Manuel Montanes Medina was charged with transporting a controlled substance and two other offenses after methamphetamine was found on and under the seat of a patrol car in the spot where defendant had been sitting following a traffic stop. At trial, defendant’s nephew, Alberto Martinez, who had been in the patrol car with him, testified that all of the drugs were his. Notwithstanding Martinez’s testimony, the jury found defendant guilty.

On appeal, defendant offers two arguments, neither of which has any merit.

Defendant first contends that either because Martinez was his accomplice as a matter of law or because there was sufficient evidence for the jury to find Martinez was his accomplice, the trial court committed reversible error in failing to give accomplice instructions. More specifically, defendant contends the jury should have been instructed with CALJIC No. 3.18 (testimony of an accomplice to be viewed with caution) and CALJIC No. 3.11 (testimony of an accomplice must be corroborated).

Even assuming for sake of argument that Martinez was defendant’s accomplice, there was no error. With respect to CALJIC No. 3.18, “The law on this question is clear. When an accomplice is called as a witness by the prosecution, the court must instruct the jurors sua sponte to distrust his testimony. [Citations.] When, by contrast, he is called by the defendant, the instruction should be given only at the defendant’s request.” (People v. Williams (1988) 45 Cal.3d 1268, 1314, italics added.)

Here, it was defendant who called Martinez as a witness. Furthermore, defendant expressly stipulated to withdrawal of the accomplice instructions. Under these circumstances, not only did the court have no duty to give CALJIC No. 3.18, it would have been error for the court to do so.

As for CALJIC No. 3.11, that instruction “informs the jury in accordance with [Penal Code] section 1111 that a defendant cannot be convicted on the testimony of an accomplice unless such testimony is corroborated by other evidence tending to connect the defendant with the crime.”^[1] (People v. Frye (1998) 18 Cal.4th 894, 965.) By its very terms, that instruction applies only when the prosecution is seeking to convict the defendant on the testimony of an accomplice. It does not apply when, as here, the accomplice testifies solely for the defense.

In arguing prejudice, defendant refers obliquely to “that portion of Martinez’s testimony that inculpated [defendant],” but at no point does he specifically identify any such testimony. Our own review of Martinez’s testimony reveals that Martinez consistently took responsibility for all of the drugs that were found and did not place any blame on defendant, even indirectly. Since defendant’s conviction could not have been predicated on Martinez’s testimony, Penal Code section 1111 did not apply here, and the trial court had no duty to give CALJIC No. 3.11.

Defendant’s second claim of error is predicated on the trial court’s giving of CALJIC No. 2.11.5, as follows: “There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crime for which the defendant is on trial. There may be many reasons why that person is not here on trial, therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial.”

Defendant contends the trial court erred in giving this instruction because Martinez -- the “other person” to whom the instruction obviously referred -- testified at trial. We agree. “A court should ‘not use this instruction if the other person is a witness for either the prosecution or the defense.’ (Use note to CALJIC No. 2.11.5 (7th ed. 2005), p. 43.) When an accomplice . . . testifies, the instruction might suggest to the jury that it need not consider the factors it otherwise would employ to weigh the credibility of these witnesses, such as the circumstance that the witness has been granted immunity from prosecution in return for his or her testimony.” (People v. Cornwell (2005) 37 Cal.4th 50, 88.)

Defendant contends the error “should be analyzed under the harmless-beyond-a-reasonable doubt standard.” Our Supreme Court recently rejected a similar argument. (People v. Cornwell, supra, 37 Cal.4th at p. 89.) Accordingly, the question is whether “it is reasonably likely that, taken as a whole, the instructions misled the jury in the manner claimed by defendant or that they relieved the prosecution of any part of its burden of proof.” (Ibid.)

Under that standard, defendant has not shown any prejudice from the erroneous instruction. He contends that “CALJIC No. 2.11.5 forbade the jurors from considering whether Martinez might have had a bias or motive for testifying as he did” and thus “prevented the jurors from examining Martinez’s motive(s) to testify.” We disagree.

The jurors were instructed not to “single out any particular sentence or any individual point or instruction and ignore the others,” but instead to “[c]onsider the instructions as [a] whole and each in light of all of the others.” They were also instructed that “[i]n determining the believability of a witness, you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including but not limited to . . . . . . The existence or nonexistence of a bias, interest or other motive . . . .”

Under the circumstances here, it is not reasonably probable the jurors were misled into disregarding this instruction to consider the existence or nonexistence of any motive Martinez had to lie or tell the truth by the command in CALJIC No. 2.11.5 that they were “not [to] speculate or guess as to why the other person [i.e., Martinez,] [wa]s not being prosecuted in this trial.” This is so because the evidence established that Martinez had already pled guilty to possession of methamphetamine arising out of this incident. Because the evidence did not leave the jury any room to speculate or guess why Martinez was not being prosecuted along with defendant, it is not reasonably probable the jury was misled by CALJIC No. 2.11.5, let alone misled in any way that prejudiced defendant’s case.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS , Acting P.J.

BUTZ , J.

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^[1] In relevant part, Penal Code section 1111 provides that “[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; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”