P. v. Vargas

Filed 6/16/06 P. v. Vargas 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 L. Davidson, Judge. Affirmed.

A jury convicted Francisco Javier Vargas of assault with a deadly weapon or force likely to produce great bodily injury while personally using a deadly weapon. (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)(23).) The court suspended imposition of sentence and placed him on probation for three years, including a condition he serve 365 days in custody. Vargas contends the trial court reversibly erred in including CALJIC No. 2.62 in instructions to the jury.

FACTS

On February 27, 2004, Vargas entered Chico Sales, a metal shop. He greeted his nephew Osmar Solano, and Gonzalo Gonzalez, a long-time friend who welded in the shop. Gonzalez testified that he returned to work and shortly thereafter felt a blow to his knee. He removed his welding mask and saw Vargas swinging a pipe at Gonzalez's head. Gonzalez blocked the pipe and tried to get away. He felt another blow to his back or buttock area. Gonzalez testified that Solano grabbed Vargas. Vargas told Solano not to hold him back, that he was going to kill Gonzalez because he had stolen parts from his van. Gonzalez denied stealing anything. Gonzalez went outside and called police.

Solano testified that he worked at Chico Sales. He did not remember his uncle coming to the shop on February 27, 2004, He did not remember talking with a police officer about what his uncle did at the shop or that his uncle hit someone with a metal pipe. Review of the police report did not refresh his recollection.

Officer Martinez testified that on March 2 he spoke with Solano. Solano told him that on February 27 Vargas came to the shop and greeted workers, including Gonzalez. Solano told Officer Martinez that he heard someone yell, turned around, and saw Vargas striking Gonzalez with a pipe. Gonzalez was trying to block the blows. Solano ran to stop the attack.

Juan Garcia testified that he also worked in the shop and that on February 27, Vargas came to the shop and greeted workers. While Garcia was outside, he heard noises and saw Vargas exit the shop. Garcia heard Solano say, "Calm, down." Garcia saw Vargas with a metal pipe, but did not remember telling a police officer that he saw Vargas hit Gonzalez with the pipe. During direct examination of Garcia, the court recessed for the day and ordered Garcia to return the following morning. The following morning, Garcia did not return. He returned that afternoon and testified that he remembered nothing other than what was written in the police report.

Officer Martinez was recalled and testified that after the incident Garcia told him that Vargas came to the shop and greeted everyone. Garcia told Martinez that he saw Vargas pick up a metal pipe. He saw a commotion and saw Vargas hit Gonzalez with a metal pipe.

Vargas testified that on February 27 he went to the shop and talked with Solano. Vargas asked Gonzalez why he was stealing from his van. Gonzalez denied stealing and Vargas told him he had witnesses. Gonzalez hit Vargas on the nose with a piece of "metal or something." Vargas grabbed Gonzalez and they fell down. On the ground, Vargas grabbed a pipe and hit Gonzalez.

With no objection, the court included in the jury instructions CALJIC No. 2.62 which reads:

"In this case defendant has testified to certain matters. [¶] If you find that defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such 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 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 would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence."

DISCUSSION

In People v. Saddler (1979) 24 Cal.3d 671, 682-683, the Supreme Court rejected constitutional and due process challenges to CALJIC No. 2.62, but held that giving the instruction was nonetheless error in the case before it where the defendant had presented a complete alibi defense to a charged robbery, fully explaining or denying all the evidence which had been presented to the contrary. In light of the circumstances of the case, however, the error was harmless. (People v. Saddler, supra, at pp. 683-684; see also, People v. Peters (1982) 128 Cal.App.3d 75, 83-87 [harmless error].)

Here, while it does not appear that Vargas failed to explain or deny any material evidence against him that the People introduced, Vargas did not object in the trial court to giving CALJIC No. 2.62. He cannot object for the first time on appeal unless his substantial rights were affected. (Pen. Code, § 1259.) " '[C]ases equate "substantial rights" with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]' " (People v. Rivera (1984) 162 Cal.App.3d 141, 146.) Even if Vargas could challenge on appeal the giving of CALJIC No. 2.62 without objecting in the trial court, and even if we assume error in the giving of the instruction, there is no possibility of prejudice. At most, the jury was given unnecessary information and the court told the jury to disregard any instruction that applied to facts the jury determined not to exist. There is no reasonable likelihood of a different result had the now-challenged instruction not been given. As the reviewing court said in People v. Ballard (1991) 1 Cal.App.4th 752, 756-757, "Assuming this instruction should not have been given, any error was not prejudicial. 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. [Citations.]" The same is true here.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McINTYRE, Acting P. J.

AARON, J.