P. v. Broomfield

Filed 4/18/07 P. v. Broomfield CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark Mooney, Judge. Affirmed.

A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Patricia Broomfield appeals her conviction on the basis that the trial court modified her proposed special jury instruction concerning informants. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Broomfield was charged with selling, transporting, or offering to sell a controlled substance, cocaine base (Health & Saf. Code,  11352, subd. (a)), and possessing cocaine base for sale (Health & Saf. Code,  11351.5.)

The evidence at trial included testimony from two informants who were paid and allowed to continue residency in the United States as compensation for serving as informants. Broomfields defense attacked the informants credibility. She proposed that the trial court give the following jury instruction, a modification of a standard instruction given when in-custody informants are used:

The testimony of an informant should be viewed with caution and close scrutiny. In evaluating this testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard this testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in this case.

The trial court modified the proposed instruction by deleting the first sentence and altering the word should in the second sentence to may.

Broomfield was convicted of the charged offenses and sentenced to four years in state prison. She appeals.

DISCUSSION

The sole basis of Broomfields appeal is the trial courts modification of her proposed jury instruction concerning informants. The court instructed the jury as follows:

In this trial evidence has been received from two informants. In evaluating such testimony, you may consider the extent that it may have been influenced by the receipt of or expectation of any benefits from the parties calling that witness. This does not mean that you may arbitrarily disregard such testimony, but should give it the weight to which you find it to be entitled in light of all of the evidence in this case.

Broomfield argues that the trial court committed constitutional error when it failed to instruct the jury that informant testimony should be viewed with caution and close scrutiny and when it told the jury that it may, as opposed to that it should, consider the extent to which informant testimony may have been influenced by the receipt of or expectation of benefits from the party calling that witness.

Broomfield bases her proposed instruction on the instruction set forth in Penal Code section 1127a, subdivision (b), but the statute limits that mandated instruction to a case in which there is an in-custody informant whose testimony is based upon statements made by the defendant while both the informant and the defendant are held within a correctional institution. (Pen. Code,  1127a, subd. (a).) The informants here were not in custody, and their testimony was not based on statements obtained while they were with the defendant in a correctional institution. Penal Code section 1127a, therefore, does not apply.

Broomfield also relies on U.S. v. Patterson (9th Cir. 1981) 648 F.2d 625, 630-631 and U.S. v. Gonzalez (5th Cir. 1974) 491 F.2d 1202, 1207-1208, both of which stand for the proposition that in the federal courts, defendants are entitled upon request to instructions that highlight the credibility issues inherent in informant testimony. Neither case, however, sets forth mandatory language for such an instruction, and neither establishes that the jury instruction given here was inadequate. The Patterson court stated that failing to give an informant credibility instruction mandates reversal when the informants testimony supplies the only strong evidence of guilt; although it included the text of the instruction that was refused, the court did not discuss what language was appropriate or necessary for an informant instruction. (Patterson, at p. 630-631 & fn. 11.) The Gonzalez court wrote that the federal courts are careful to fully apprise the jury of the inherent possibility of [informant] testimonys untruthfulness. (Gonzalez, at p. 1207.) The informant jury instruction here did precisely that: the jurors were told that they should give it the weight to which [they] f[ou]nd it to be entitled in the light of all of the evidence in this case, and that in their deliberations they could consider the extent to which the testimony may have been influenced by the receipt of or expectation of benefits from the government.

Moreover, other jury instructions guided the jurors in evaluating the informants testimony. CALJIC No. 2.20 advised jurors that they could consider anything that ha[d] a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including [t]he existence or nonexistence of a bias, interest, or other motive. CALJIC No. 2.21.1 instructed jurors on the significance of discrepancies in testimony. CALJIC No. 2.21.2 authorized jurors to conclude that a witness who was willfully false in a material part of his or her testimony could be distrusted in other parts of his or her testimony. CALJIC No. 2.22 instructed the jurors how to weigh conflicting testimony. One informant had a prior felony conviction and an admission of prior perjury, and accordingly, the jury was instructed with CALJIC No. 2.23, which told the jury it could consider the conviction for the purpose of determining that informants believability and in weighing his testimony. Similarly, the jury was instructed that the other informants past criminal conduct amounting to a misdemeanor was also a circumstance to be considered in weighing his testimony and could be considered for the purposes of determining his believability. (CALJIC No. 2.23.1.) The California Supreme Court has held that standard jury instructions on the credibility of witnesses (CALJIC Nos. 2.20, 2.21, 2.22, and 2.23) are sufficient to instruct the jury on evaluating informant testimony and that special informant-specific instructions may properly be refused altogether. (People v. Garceau (1993) 6 Cal.4th 140, 190-191, disapproved on another point by People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)

In light of this array of instructions given to the jury, we cannot agree with Broomfields contention that the courts modification of her proposed jury instruction failed to assure that the jury would fairly and reliably assess the informants credibility. The jury was adequately instructed on evaluating the informants credibility.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

JOHNSON, Acting P.J.

WOODS, J.

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