P. v. Montijo

Filed 6/14/06 P. v. Montijo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hofmann, Judge. Affirmed.

A jury convicted Ronald Edward Montijo, Sr., of one count of preparing false documentary evidence (Pen. Code,^[1] § 132) and dismissed one count of receiving a bribe (§ 138, subd. (b)). Montijo then admitted a prior serious or violent felony within the meaning of sections 667 and 1170.12.

The court denied Montijo's request to strike the prior conviction and sentenced him to a term of four years in prison, consisting of the middle term of two years, doubled under the three strikes law.

On appeal, Montijo asserts that (1) there is no substantial evidence to support his conviction; (2) the statute under which he was convicted, section 134, is unconstitutionally vague; (3) the court erroneously failed to sua sponte instruct the jury on the definitions of "fraudulent," "deceitful," "proceeding" and "inquiry" contained in section 134; (4) the court erred in instructing the jury under CALJIC No. 2.01 (Sufficiency of Circumstantial Evidence─Generally) instead of CALJIC No. 2.02 (Sufficiency of Circumstantial Evidence to Prove Specific Intent or Mental State); (5) the court erred in instructing the jury under CALJIC No. 2.62; (6) the court abused its discretion by denying his motion to strike the prior conviction; and (7) the cumulative nature of the errors warrants a reversal of the judgment. We affirm.

FACTUAL BACKGROUND

A. People's Case

In 2003 Caroline Carmichael pleaded guilty to driving under the influence (DUI) and was ordered to attend an 18-month counseling program at Occupational Health Services (OHS) in San Marcos. The program required group counseling every week, individual meetings every other week, and attendance at Alcoholics Anonymous (AA) meetings. During her orientation with OHS, Carmichael was told that if she did not comply with the program's requirements, she would be sent back to court.

Montijo was the OHS counselor assigned to Carmichael. He was the group counselor, as well as the counselor for her individual meetings. Montijo told Carmichael that if she did not comply with the requirements of the program, he could send her back to court. In her mind, this meant going to jail.

Carmichael did not attend the required AA meetings. She quit attending them after five weeks. Montijo counseled her that she needed to attend those meetings. After a few weeks, Montijo filled out her attendance record to show that she was attending AA meetings and said, "This is going to cost you." Carmichael understood this to mean that Montijo wanted money. That first time she gave Montijo $200. This occurred in the summer of 2003, about five months into the program. Carmichael gave Montijo money because he threatened to send her back to court and told her she would be sent to jail.

At every meeting after the first time she gave Montijo money, he asked for money to sign off on the AA attendance card. Carmichael gave Montijo a total of $500 to $1,000, usually in increments of $100. Montijo filled out a chart that falsely verified that she had gone to AA meetings.

In late 2003 Carmichael told Montijo that she did not have any more money to give to him. He responded that there were other ways that she could pay. At the time he said this, Montijo started to put his hands on her, so she thought he meant sexual favors. Montijo gave her a hug at every meeting and said how pretty she was, and, "I bet you taste so good." It started with Montijo putting his arms around her back. However, as time went on he dropped his hands to her buttocks. Carmichael did not object because she was scared. Montijo asked her when she had days off from work and told her he would come by her house. Carmichael told him that she was always working.

Through 2004 Montijo touched Carmichael's private parts over and under her clothing. She did not say anything to Montijo because she was afraid he would send her back to court, and she would have to go to jail because she was not complying with the terms of her probation. After Montijo started touching her, he would do it at every individual meeting. Carmichael never said no because she wanted to complete the program.

Carmichael also did not attend all the required group meetings. At each group meeting she was required to sign an attendance card, which was also signed by her counselor. The attendance log was kept at the OHS building. At the end of each meeting Carmichael was also required to sign a progress note about the topic discussed in the group meeting. Her counselor would also sign the progress note. Montijo kept the records regarding Carmichael's attendance at group meetings. Carmichael missed nine meetings and only made up seven of those meetings by going to makeup group sessions.

Montijo provided documentation stating that Carmichael had completed sufficient group sessions, although she missed two sessions. Montijo brought the attendance logs to Carmichael and told her to sign in for two makeup group sessions for April 14 and April 28, 2004, that were run by him. Carmichael did not attend those makeup sessions but signed the attendance logs because Montijo told her to do so. Montijo also gave Carmichael a card showing attendance at three AA meetings. Montijo prepared a form showing that Carmichael had attended all 52 required AA meetings and all required group counseling sessions.

In September 2004 Carmichael had an exit interview with Montijo on her last day in that portion of the program, and Montijo gave her the document showing that she had finished all her AA meetings and all needed group makeup classes. Montijo told her to sign it and that he had taken care of everything. Carmichael signed the document.

During the exit interview, Montijo asked for directions to her house and said he was coming over the following Tuesday. Carmichael gave Montijo directions to her house because she was scared.

Carmichael then called the sheriff's department and told them what Montijo had done. After Carmichael contacted law enforcement and OHS about Montijo's actions, Montijo tried to call her cell phone, but she did not answer. Montijo called about 15 times that day, but she did not answer. At the sheriff's direction, she placed a call to Montijo at home from the sheriff's office. When he answered the phone and she identified herself, Montijo hung up.

Carla Cline, the manager of the restaurant where Carmichael worked, testified and provided time card records showing that Carmichael was at work on April 14 and 28, 2004, at the same time as the group meetings.

Detective Daniel Deese of the San Diego Sheriff's Department conducted surveillance on Montijo on the day Montijo had told Carmichael that he was going to her house. Montijo drove away from his house and, while on the freeway, he drove erratically, alternately accelerating, changing lanes, and slowing down. He was then followed on surface streets and when he eventually stopped at a residence, the detectives made contact with him. Detective Deese's partner told Montijo he was being arrested for sexual assault. Montijo responded, "It's a lie, . . . she is a drug addict. She's a drunk. She's making the whole thing up." Montijo also stated that it was his word against hers and that the matter would not go anywhere.

At the San Marcos sheriff's station, Montijo was advised of his Miranda^[2] rights and agreed to waive them. Montijo identified Carmichael as the accuser. Montijo first told the officers that he never touched Carmichael, but later told them that he might have hugged her once. He did not know why Carmichael would accuse him of the things she had. He tried to call her 15 times the day before because OHS administrators had pulled her file, and he wanted to find out what was going on. He hit the redial button on his phone several times. Montijo denied falsifying any documents and stated that he was not able to access them even if he had wanted to.

At first Montijo told the officers that nothing happened between him and Carmichael. Later, however, he said that at the exit interview Carmichael told him she did not want to be transferred to another counselor, and she offered to be Montijo's "woman on the side" if he would continue to be her counselor. He told her he could not do that. He told police that Carmichael also gave him her address. Montijo thought Carmichael was making accusations against him because she was upset that he had rebuffed her. He also stated that he thought she was making the accusations to get out of the remaining months of the program.

Montijo admitted that there was flirting between he and Carmichael. He also admitted that he told Carmichael that he was coming over to her house that day and that she probably believed him. However, he claimed that he did not intend to go to her house.

Sandy LaPrade, a close friend of Carmichael's, testified that Carmichael complained about Montijo on numerous occasions prior to September 2004. Carmichael told her that Montijo was a "pig" and was always asking her for money and always putting his hands on her. Carmichael told her it started with him grabbing her butt, then her breasts, and it was getting progressively worse.

Adelina Olmos was a member of Carmichael's counseling group at OHS. She and Carmichael had shared the observation that Montijo was flirtatious. On one occasion during an individual meeting Montijo told Olmos that she looked "good enough to eat." This comment upset her and when Montijo became aware of this by the look on her face, he apologized. Montijo once told her that she needed a strong man to take care of her and that if she were his woman he would take care of her. There were times when his comments in face-to-face meetings seemed inappropriate. Carmichael told her about what had happened between her and Montijo, but only after she had gone to the police and Olmos asked Carmichael what had happened.

B. Defense Case

Montijo testified in his own defense. In 1975 he was addicted to drugs. He had six felony convictions. The first conviction was for manslaughter. The other five convictions were for possession of firearms and drugs. He was in and out of prison from 1980 to 1996. When he was released from prison in 1996 he went into a drug rehabilitation program, obtained an associates in art degree from Palomar College and thereafter became a drug and alcohol counselor.

Montijo first met Carmichael in July 2003, when he was assigned as her counselor in her 18-month DUI program at OHS. He was her counselor for 14 months. Montijo kept a record of Carmichael's progress through the DUI program by a "DUI Tracking Sheet" he kept in her file. Carmichael performed poorly in the program and was suspended three times.

To dismiss a person from the program, a counselor would send the person's file to the counselor's supervisor and ultimately to the OHS director. As Montijo admitted, the director could then send the client back to court for noncompliance with the OHS program:

"Q Mr. Montijo, the question is, how do you get dismissed? . . . [Y]ou get dismissed because you the counselor submit the file to a director or supervisor and it goes up the chain until the person [who's] in charge decides there's no compliance; is that right?

"A Yes.

"Q All right. So once somebody gets dismissed based on the files that you create as a counselor they get sent back to court?

"A Uh huh.

"Q Correct?

"A Yes."

Montijo testified that Carmichael finished all classes in the first two phases of the program: 35 group counseling sessions, 26 individual sessions, 6 education classes and 52 self-help (AA) meetings. Montijo documented Carmichael's completion of the first two phases of the program.

According to Montijo, Carmichael brought in cards showing she had completed all 52 self-help (AA) meetings. He had no independent way of verifying if she had attended the meetings. At her last individual meeting, Carmichael brought in a card showing attendance at three AA meetings. Montijo told Carmichael that it looked falsified.

Montijo was shown makeup group progress notes for April 14 and 28, 2004, signed by Montijo and Carmichael. Montijo testified that Carmichael attended the group sessions on April 14 and 28, 2004.

The individual meetings were held in three-sided cubicles and lasted about 15 minutes. There was a lot of traffic on the floor when counselors were conducting these meetings and people were walking by the cubicle all the time. Montijo's supervisor would frequently check the cubicles during the face-to-face meetings. Additionally, anyone could easily hear what was going on in adjacent cubicles.

In Montijo's last individual meeting with Carmichael in September 2004 she asked him to get her out of the remaining six months of the program in exchange for money or sex. He told her, "No way." Carmichael told him to come to her house the following Tuesday if he changed his mind. To "humor" her he told her he would come by.

Montijo denied falsifying any court documents or OHS documents.

When he was arrested by police for sexual assault, Montijo was advised of his Miranda rights and agreed to speak with the officers. However, he did not tell them that Carmichael had propositioned him three days earlier. Instead, he said he did not know why she would claim he sexually assaulted her.

Carmichael denied being an alcoholic and this was a barrier to completion of the program according to Montijo. However, in all his assessments of her Montijo wrote that she had no barrier to completion. Montijo always wrote that Carmichael believed that the program was helping her, although she actually thought it was not.

Carmichael's attendance at AA meetings was sporadic. However, the tracking sheet that he filled out showed she attended meetings almost every week, and sometimes two or three times a week. Montijo explained this by saying that what he meant was that Carmichael was regular in attendance but not regular in bringing in proof of meetings.

Montijo's supervisor, William Horejs, testified that Montijo was an excellent employee and that there had never been anything in his client files that caused him concern about his work performance. There had never been any complaints about Montijo making improper sexual advances. He considered Montijo an honest person, and he had never heard anyone question his competence or integrity.

Horejs routinely walked around the cubicle area as a quality control measure. It was not difficult for a person in one cubicle to hear what was going on in the other cubicles. Two coworkers of Montijo's that worked in the cubicles adjacent to his testified that one could easily hear what went on in the adjoining cubicle, and they had never heard anything inappropriate coming from Montijo's cubicle.

DISCUSSION

I. SUBSTANTIAL EVIDENCE TO SUPPORT COUNT 1

Montijo asserts that there is no substantial evidence to support his conviction for preparing false evidence as there is no evidence he produced a document for a "fraudulent or deceitful purpose" or that he intended to produce it "upon any trial, proceeding or inquiry whatever, authorized by law." We reject these contentions.

A. Standard of Review

When the sufficiency of the evidence is challenged on appeal, the appellate court reviews the evidence and reasonable inferences drawn from that evidence most favorably to the prevailing party. The court upholds the judgment if substantial evidence supports it. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.) It is not the function of the appellate court to reweigh or reinterpret evidence but to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson, supra, 26 Cal.3d at p. 576.) We reverse a conviction on the ground of insufficient evidence only if it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Substantial evidence is evidence that is "reasonable, credible, and of solid value." (People v. Johnson, supra, 26 Cal.3d at p. 578.) This standard of review is equally applicable when the conviction is based on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

B. Analysis

Section 134 provides:

"PREPARING FALSE EVIDENCE. Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony." (Italics added.)

There is sufficient evidence from which the jury could find that Montijo prepared the false documents stating that Carmichael had complied with the terms of her probation for a fraudulent or deceitful purpose. Carmichael testified that she was threatened, both at orientation and by Montijo, that if she did not attend the required meetings, she would be kicked out of the program, would be sent back to court, and would go to jail. The evidence shows that Montijo put false information on the documents tracking her compliance for the purpose of defrauding the court with a representation that Carmichael had complied with the court-ordered program.

Likewise, there is sufficient evidence to demonstrate that Montijo intended the false documents to be produced "upon any trial, proceeding, or inquiry whatever." The program Carmichael attended was a condition of her probation. Montijo was responsible for keeping track of Carmichael's compliance with the program. If there was a lack of compliance, OHS would notify the court. Similarly, OHS would have to provide the court with proof that Carmichael had successfully completed the program. This could only be done based upon Montijo's false recording and reporting of Carmichael's compliance with the program. Montijo's understanding that what he recorded on Carmichael's compliance documents determined whether or not she would successfully complete that term of probation is sufficient to show his intent that the documents would be produced "upon any trial, proceeding, or inquiry whatever." Substantial evidence supports Montijo's conviction on count 1.

II. CONSTITUTIONAL CHALLENGE TO SECTION 134

Montijo next asserts that section 134 is unconstitutionally vague as the words "proceeding" and "inquiry" are so ambiguous that no one has notice of what actions are prohibited, and the statute is subject to arbitrary and discriminatory enforcement based upon personal predilections. This contention is unavailing.

In People v. Moore (1999) 75 Cal.App.4th 37, 44, the Court of Appeal noted due process requires a statute must "'"'be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.'"'" (Quoting Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) Moreover, legislative enactments are upheld unless their unconstitutionality is clear: "'"'A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given its language.'" [Citation.]'" (People v. Moore, supra, 75 Cal.App.4th at p. 44, quoting Williams v. Garcetti, supra, 5 Cal.4th at p. 568.) To be successful, a challenge that a statute is uncertain or ambiguous must show it is "'"impermissibly vague in all of its applications." [Citation.]'" (People v. Moore, supra, at p. 44, quoting Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201, italics added by Evangelatos.)

With respect to whether the statute at issue in this case is impermissibly vague, we ask the following question: Does section 134 provide a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly?" (Grayned v. City of Rockford (1972) 408 U.S. 104, 108.)

Section 134 is not unconstitutionally vague as to the terms "proceeding" or "inquiry." First, the statute limits them to those proceedings or inquiries "authorized by law." This means not only court proceedings, but also administrative hearings or inquiries established by statute. In People v. Clark (1977) 72 Cal.App.3d 80 the defendant was charged with violating section 134 based on his alleged preparation of a false document introduced by his representative at a grievance committee hearing at a state university where defendant had sought employment. The trial court dismissed the information, ruling section 134 did not apply to such an administrative proceeding. The appellate court reversed, holding section 134 clearly encompassed the grievance board hearing, as it was both a proceeding authorized by and an inquiry pursuant to law, i.e., Education Code section 24315. As the Court of Appeal in Clark held: "The Legislature in addition to providing that this section apply to full-scale trials, provides a penalty for falsely produced material at other proceedings or inquiries 'authorized by law,' which plainly need not be full-scale trials. [Citation.]" (People v. Clark, supra, 72 Cal.App.3d at pp. 83-84, fn. omitted.) The court went on to note that the objective of section 134 "is to prevent the fraudulent introduction of material in a proceeding under the authority of law. To apply the . . . section to inquiry proceedings is necessitated by the purpose of discouraging introduction of this material." (People v. Clark, supra, at p. 84.)

Thus, section 134 applies to court proceedings, as well as administrative hearings and inquiries, so long as they are established by statute. Therefore, it is not so broad, as Montijo contends, that it would apply to "[a] parent fibbing on the note he writes to send with his child to school, about the child's absence the day before," nor to a "middle manager at a corporation who fudges some figures on a report requested by his supervisor."

Moreover, it is not unconstitutionally vague as applied in this case. Here, the falsified documents were to be used to determine Carmichael's compliance with a term of her probation. Thus, they were to be used with regard to a formal court proceeding, not an "inquiry" outside formal court process. Nor is there any basis for counsel for Montijo's statement that what Montijo did constituted nothing more than "a counselor's fiction on a trivial bureaucratic form" or that Montijo was merely giving a client a "'break' on some trivial formality or other" such that "no person in a job like [Montijo's] could have been on notice that what [he] did was proscribed . . . ." Falsifying documents that track a probationer's compliance with a condition of probation is a serious matter that any reasonable counselor would realize is both unethical and illegal, and which seriously harms the integrity of the court-ordered probation system.

III. FAILURE TO DEFINE ELEMENTS OF PREPARATION OF FALSE EVIDENCE

Montijo asserts that the court erred in failing sua sponte to instruct the jury on the definitions of terms "fraudulent," deceitful," "proceeding," and "inquiry," as those terms are used in section 134. This contention is unavailing.

"As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate basis for an instruction. If a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning. If, however, a word or phrase is used in a technical sense differing from its commonly understood meaning, clarifying instructions are appropriate and should be given on the court's own motion." (People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.)

Here, Montijo did not request amplification of the words "fraudulent," deceitful," "proceeding," and "inquiry." Thus, the court was not required, sua sponte, to define those words unless they had a "'"technical sense peculiar to the law,"'" that is, a "statutory definition differ[ing] from the meaning that might be ascribed to the same [word] in common parlance." (People v. Estrada (1995) 11 Cal.4th 568, 574-575, 578 [the phrase "reckless indifference to human life" as used in section 190.2 has no technical meaning peculiar to the law].)

Montijo admits that our Supreme Court has held that a court is under no duty to sua sponte define the terms "fraudulent" or "deceitful." (See People v. Hardy (1992) 2 Cal.4th 86, 153.) As Montijo also acknowledges, we are compelled to follow this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Montijo also asserts, however, that the court should have defined the terms "proceeding" and "inquiry" as these terms are so broad that they could be applied to "just about any human enterprise of any kind." However, as explained above, the statute is limited in its application to those proceedings or inquiries "authorized by law." Moreover, Montijo does not provide any argument or authority to demonstrate that these terms have technical meanings that are not commonly understood in the English language. The court did not err by not acting sua sponte to define these terms.

IV. CALJIC NO. 2.02

Montijo next asserts that the court erred by instructing the jury on circumstantial evidence with CALJIC No. 2.01 instead of No. 2.02. This contention is unavailing.

CALJIC NO. 2.01, (Sufficiency of Circumstantial Evidence─Generally) states:

"However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but ( 2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant's guilt and the other to [his] [her] innocence, you must adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

CALJIC No. 2.02 (Sufficiency of Circumstantial Evidence To Prove Specific Intent or Mental State), which was not given by the trial court, is a narrower version of CALJIC No. 2.01 that applies only to circumstantial evidence of a person's specific intent or mental state:

"The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged . . .] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and ] [mental state] but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." (CALJIC No. 2.02.)

CALJIC No. 2.02 educates the jury as to how it should view circumstantial evidence to prove specific intent, whereas CALJIC No. 2.01 addresses the sufficiency of circumstantial evidence generally. CALJIC No. 2.01 is "the more inclusive instruction on sufficiency of circumstantial evidence" (People v. Marshall (1996) 13 Cal.4th 799, 849) and the use notes for both instructions indicate they are alternative instructions that should not be given together because CALJIC No. 2.01 is inclusive of all issues, including specific intent, whereas CALJIC No. 2.02 is limited to just specific intent. (Use Notes for CALJIC Nos. 2.01 & 2.02; see also People v. Bloyd (1987) 43 Cal.3d 333, 352.) Our Supreme Court has repeatedly held there is no need for a trial court to give CALJIC No. 2.02 when the court gives "a more inclusive instruction based upon CALJIC No. 2.01, unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state." (People v. Hughes (2002) 27 Cal.4th 287, 347.)

Here, the circumstantial evidence supported more than Montijo's specific intent. Indeed, Montijo relied upon the court's instruction under CALJIC No. 2.01 to argue in closing that the jury should not find Montijo guilty because the People's case rested on circumstantial evidence.

Moreover, any error in failing to give CALJIC No. 2.02 was harmless since the court instructed the jury with CALJIC No. 2.01, which generally tells the jury how to consider circumstantial evidence, and fully instructed the jury on the elements of the offense, including the specific intent element. There is no reasonable probability the jury did not properly apply the rules regarding circumstantial evidence to the intent element of the offenses. Thus, any error in failing to give CALJIC No. 2.02 was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836-837.)

V. CALJIC NO. 2.62

Montijo contends the court erred by instructing the jury with CALJIC No. 2.62 on a defendant's failure to explain or deny evidence. We reject this contention.

CALJIC No. 2.62 states:

"In this case defendant has testified to certain matters. [¶] If you find that [a] [the] defendant failed to explain or deny any evidence against [him] [her] introduced by the prosecution which [he] [she] can reasonably be expected to deny or explain because of facts within [his] [her] knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against [him] [her] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that [he] [she] would need to deny or to explain evidence against [him,] [her,] it would be unreasonable to draw an inference unfavorable to [him] [her] because of [his] [her] failure to deny or explain this evidence."

CALJIC No. 2.62 is warranted when the defendant testifies and during his testimony fails to explain or deny a fact within his or her specific knowledge. (People v. Saddler (1979) 24 Cal.3d 671, 681-682; People v. Peters (1982) 128 Cal.App.3d 75, 85-86.) The instruction may also be given when the defendant's explanation is inherently implausible or bizarre or when the defendant provides only a partial explanation or claims only partial knowledge. (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1030.) "[T]he applicability of CALJIC No. 2.62 is peculiarly dependent on the particular facts of the case." (People v. Roehler (1985) 167 Cal.App.3d 353, 393.)

Here, the instruction was warranted, at a minimum, by Montijo's implausible statement that Carmichael attended makeup group counseling sessions on April 14 and 28, 2004. He made this statement even after Carmichael produced documentary evidence showing that she was at work at the time these sessions were held. Montijo offered no explanation as to how she could have attended those meetings at the same time that she was at work.

Moreover, even if we were to conclude Montijo did not fail to explain any adverse evidence, we would not reverse. Reversal for instructional error is required only if it is reasonably probable the verdict would have been different had the error not been made. (People v. Watson, supra, 46 Cal.2d at p. 836.) Any error in giving CALJIC No. 2.62 was harmless under this standard because "CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt). It is not reasonably probable a more favorable verdict would have resulted if the instruction had not been given." (People v. Ballard (1991) 1 Cal.App.4th 752, 756-757.)

The court's statement in Ballard is equally applicable to this case. The instruction did not require the jury to find Montijo had failed to explain or deny any evidence or to draw any adverse inferences. It is not reasonably probable the verdict would have been different had the instruction not been given.^[3]

VI. DECISION NOT TO DISMISS STRIKE PRIOR CONVICTION

Montijo asserts that the court abused its discretion in refusing to dismiss his prior strike conviction. We conclude that the court, after consideration of all relevant factors, did not abuse its discretion not to dismiss the strike conviction based upon the seriousness of the crime and Montijo's past criminal history.

We review a trial court's decision not to strike a prior conviction pursuant to section 1385 under "the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) Under this standard, a "'"decision will not be reversed merely because reasonable people might disagree"'" (Carmony, supra, 33 Cal.4th at p. 377); rather, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances[, such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible facts in declining to dismiss [citation], or where . . . 'the sentencing norms [established by the three strikes law may, as a matter of law,] produce [] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.]" (Id. at p. 378.)

A trial court must also "consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies" before exercising its discretion to strike a prior felony conviction. (People v. Williams (1998) 17 Cal.4th 148, 161; Carmony, supra, 33 Cal.4th at p. 377.)

In considering Montijo's motion to dismiss his strike conviction, the court understood it had discretion to do so and understood the factors it had to consider to determine whether Montijo "may be deemed to be outside of the scope of the three strikes law." The court properly considered the circumstances of the present felony offense and Montijo's background and history. In reaching its decision not to dismiss the strike conviction, the court focused on the fact that Montijo's actions brought "the system of monitoring probationers into disrepute and the integrity of this court-ordered treatment program [in] question as a result of this kind of activity that [Montijo] was found guilty of." The court considered the violation of trust placed in Montijo by OHS to be a very serious matter.

The court did consider the fact that the strike conviction was 25 years old, but also that it was originally a murder charge with special circumstances that Montijo was given the opportunity to plead to voluntary manslaughter with personal use of a firearm, a sawed-off shotgun. The court indicated that it would be inclined to dismiss the strike conviction if he had been law abiding since that time, but noted that after that conviction Montijo was in and out of prison for the next 16 years on felony convictions involving drugs and guns, and performed poorly on probation and parole.

The court weighed these factors against the positive steps that Montijo had taken in recent years. The court considered the fact that Montijo had obtained an education, found a job, found faith, was married, and had a lot of supporters in the community.

However, in the end the court declined to exercise its discretion to dismiss the strike conviction because the positive factors did not take him outside the spirit of the three strikes law because of the seriousness of the current offense, his lengthy criminal history and his failure to succeed on prior grants of probation and parole. In weighing these factors against the mitigating factors offered in support of the motion to strike, the court could reasonably find Montijo came fully within the spirit of the three strikes law. (People v. Williams, supra, 17 Cal.4th at pp. 162-163.)

Moreover, it is not our role to reweigh the sentencing factors or substitute our evaluation for that of the trial court. Because Montijo has not shown the court considered any impermissible facts in declining to dismiss his strike prior, nor has he established that the imposition of the three strikes law here warrants a departure from the legislatively preferred consecutive sentencing scheme, we cannot conclude the court abused its broad sentencing discretion. (Carmony, supra, 33 Cal.4th at pp. 377-378.)

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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

^[2] Miranda v. Arizona (l966) 384 U.S. 436.

^[3] Because we have concluded that the court did not err, or that any error made was not prejudicial, we need not address Montijo's contention that the cumulative nature of the court's errors warrants a reversal of the judgment.