P. v. Fay

Filed 10/24/07 P. v. Fay CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

Defendant Christopher Steven Fay stole a bicycle after codefendant Curtis Taylor assaulted the bicycles owner. An information charged both men with second degree robbery and battery with serious bodily injury. (Pen. Code, 211, 243, subd. (d); unspecified statutory references that follow are to the Penal Code.) The jury acquitted defendant Fay of the charged offenses but convicted him of the lesser included offense of grand theft; it convicted codefendant Taylor of the lesser offense of battery but acquitted him entirely of theft-related charges. The court found a prior offense charged against Fay to be true.

This appeal involves only defendant Fay. Sentenced to an aggregate prison term of four years, he contends that (1) his attorney failed to provide the effective assistance of counsel when he conceded that defendant took the victims bicycle, and (2) several instructional errors occurred. We affirm the judgment.

Facts and Proceedings

At approximately 9:30 p.m., Nathan O. sat outside a market, smoking a cigarette and drinking a beer. His BMX bicycle was with him; the bike had an estimated value of $500-$800.

Nathan noticed a woman (Christine) using a pay phone in the parking lot. Christine lived with codefendant Taylor, and had walked the four miles to the market after an argument with him. Christine walked over to Nathan and asked for a cigarette.

A few moments later, defendant drove into the parking lot. While the car was still in motion, Taylor jumped out of the car from the passengers side. He went up to Nathan and told him to stand up. When Nathan did not comply, Taylor punched him in the face. Taylor told him to get out, and Nathan got on his bicycle. As Nathan started to ride away, Taylor repeated, that he needed to get out of here, but he ordered Nathan to leave the bike, saying, Its mine now.

By this point, defendant had also gotten out of the car and was approaching Nathan. Nathan dropped the bike, ran into the store and asked the clerk for help. When he returned with the clerk, he saw that defendant had backed the car into a nearby parking space and was putting Nathans bicycle into the backseat of the car. Defendant then drove the car to where Taylor and Christine were standing, they got into the front seat, and the car left.

Nathan and the clerk called 911. The assault had given Nathan a bad headache and he could not see out of one eye, but he gave a description of the perpetrators to the police.

Christines father had notified law enforcement that his daughter might have been kidnapped. At approximately 10:30 p.m., sheriffs officers went to the mobile home she shared with Taylor to investigate, and found defendant sitting on the rear steps. The victims BMX bicycle was on the ground nearby. Defendant said he had walked to Taylors from his home about 30 minutes earlier in order to visit Taylor and help him with his children. He denied having been to the market, and said that the bicycle was there when he arrived. He did not know anything about a Lincoln Town Car, the type of car the victim had described.

Defendants Lincoln Town Car was found in a nearby parking space. When defendant was later arrested, he said he had lied about driving the car because he had a suspended license.

An information charged both defendant and Taylor with second degree robbery and battery with great bodily injury.

At trial, one witness described a previous incident in which defendant forcibly took a quad runner from him.

Defendant testified at trial and denied any responsibility for the physical attack on Nathan but admitted taking the bicycle. He said that he had driven Taylor to the market to pick up Christine. Taylor jumped out of the car as it was still moving, but defendant did not see Taylor hit Nathan.

He noticed Nathan getting on his bicycle and then saw him get off and go into the store. Defendant said he saw the bicycle lying on the ground, so he took it and put it in his car. Defense counsel asked directly, You were going to steal it [the bicycle]? and defendant responded, Yes, sir.

On cross-examination, defendant said he decided to take the bicycle [b]ecause it was just sitting there on the ground. He later said he did not know the bicycle belonged to the victim, and that he at first thought it was Christines. He thought she had ridden the bicycle to get to the store from the trailer park. According to defendant, he asked himself why a person would drop a bike and leave it and run off unless it was not his.

However, in response to further questions posed to him during cross-examination, defendant said that he had never seen Christine with a bicycle before, had never seen a bicycle like this at the trailer she shared with Taylor, and had never heard her say that she owned a BMX bicycle. He acknowledged that Christine had made no effort to take the bike with her when she was at the market, and that he never told her that he had recovered her bike and put it in his car. When police officers told him that they were looking for a stolen bicycle, he did not say that he had taken the bicycle thinking that it belonged to Christine.

In closing argument, and as detailed later in this opinion, defense counsel admitted that defendant took the bicycle and should be convicted of grand theft, but he vehemently denied that a robbery occurred or that defendant had any involvement in the physical attack on Nathan.

Apparently the jury was persuaded. It convicted defendant only of grand theft and acquitted him of all other charges. The trial court found a prior conviction to be true and sentenced defendant to an aggregate prison term of four years. This appeal followed.

Discussion

I

Ineffective Assistance of Counsel Claim

Defendant contends that his attorney failed to provide the effective assistance of counsel when, in closing arguments, he acknowledged that defendant took the victims bicycle, and stated that he expected the jury to convict defendant of grand theft. Defendant contends this concession was inappropriate because there was evidence of mistake of fact. Defense counsels arguments reflected valid and understandable tactical decisions, not ineffective assistance of counsel.

To establish ineffective assistance of counsel, a defendant must demonstrate both that counsels representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsels errors, a determination more favorable to defendant would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.)

In reviewing such a claim, we presume that counsel exercised reasonable professional judgment in making trial decisions. (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Holt, supra, 15 Cal.4th at p. 703.) Appellate courts reverse convictions on the ground of inadequate assistance of counsel only when the record affirmatively reveals that counsel had no rational tactical purpose for an allegedly incompetent act or omission. [Citation.] A reviewing court will not second-guess trial counsels reasonable tactical decisions. (People v. Milner (1988) 45 Cal.3d 227, 238.)

In testifying at trial, defendant readily admitted that he saw the bicycle lying on the ground and put it in the back seat of his car. His attorney asked, You were going to steal it? Defendant responded, Yes, sir. Defendant subsequently suggested that he thought the bicycle belonged to Christine but, as our earlier factual recitation makes clear, he had no reason to link Christine with this or any bicycle, and his behavior was inconsistent with such a belief.

In closing arguments, counsel argued that defendant had not committed a robbery. He described the encounter between Taylor and the victim, and defendants parking of the car. He said, [Defendant] comes out of the car, the vehicle--excuse me--[the victim] has dropped the bicycle and [defendant] decides that hes going to steal it. Why do we submit to you hes telling the truth? Because he got on the stand and told you he intended to steal it. []  Now, from this chain of events, you have to decide whether or not [defendant] was guilty of a robbery, when the victim said he never said anything to him, he never touched him. []  District Attorney wants you to believe that [defendant], as hes moving the car backwards, saw [the victim] being hit, heard what Mr. Taylor said to [the victim]. Its for your decision whether or not thats possible. []  Based on [defendants] testimony, you will convict him of grand theft, theres no doubt, because he admitted to it. And the bicycle was over--value was over 400 dollars.

Defense counsel argued that defendant did not aid and abet Taylor in the assault and then said: The District Attorney would have you believe that as [the victim] is going into the store, . . . that [defendant] was aiding and abetting Mr. Taylor. Actually not the case. He saw [the bicycle] lying there and he decided he was going to take it. And he told you that. Thats grand theft, thats not robbery. In order to be an aider and abettor, you have to know what is in the mind of the person youre aiding. What they are intending to do.

He argued that the only crime defendant had committed was a crime of opportunity. Defendant saw the bike lying there, the guy walking away. Im going to take the bicycle, thats grand theft. Its not robbery. Its not battery with serious bodily injury. He asserted that [i]f somebody is intending to commit a robbery, they dont go ahead and park their car. . . . The bike would have been grabbed and the bike would have been gone. If [defendant] had heard what was going on, the car would never have been parked. When he exited the car, he saw the bike lying on the ground, he decided to take it. He concluded by telling the jury that defendant believes that you will find him guilty of grand theft, and find him not guilty of the other charges.

Conceding guilt of a particular offense does not necessarily demonstrate incompetence. (People v. Lucas (1995) 12 Cal.4th 415, 446.) To the contrary. Given defendants own testimony at trial and his numerous inconsistent statements, counsel could well conclude that a mistake-of-fact defense was not viable. [I]t is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his clients innocence but instead adopted a more realistic approach, namely, that although defendant may have committed grand theft, he did not commit robbery or battery. (People v. Jackson (1980) 28 Cal.3d 264, 292.) Under the circumstances presented here, candor with the jury was an indication of good trial tactics, not incompetence. (People v. Mayfield (1993) 5 Cal.4th 142, 177.)

II

Alleged Instructional Error

Defendant raises several claims of instructional error. We address each in turn.

A. Mistake of Fact

Defendant contends that the trial court erred in failing to instruct the jury sua sponte on mistake of fact. He asserts that such an instruction was necessary given defendants testimony that he thought that the bike belonged to Christine and he was simply recovering it for her. No such instruction was required.

In the absence of a request for a particular instruction, a trial courts obligation to instruct on a particular defense arises only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citations.] (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.)

As just discussed, defendant admitted he stole the bicycle. Given this testimony, defense counsel elected to acknowledge defendant was guilty of grand theft and focus his arguments, and the jurys attention, on the other charges. The trial court was under no obligation to instruct sua sponte on mistake of fact, a defense inconsistent with defendants theory of the case.

B. CALCRIM No. 361

Defendant contends that there was no evidence to support giving CALCRIM No. 361, Failure to Explain or Deny Adverse Testimony, and the trial court therefore erred in giving this instruction. The People concede that the instruction should not have been given, but assert the error was harmless. We agree.

The trial court instructed pursuant to CALCRIM No. 361 as follows: If a defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. []  If a defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.

The same principles are reflected in CALJIC No. 2.62, an instruction analyzed at length in People v. Lamer (2003) 110 Cal.App.4th 1463. The courts discussion is equally applicable to CALCRIM No. 361. It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citations]. [Citations.] An appellate courts duty in reviewing a claim that CALJIC No. 2.62 was improperly given is to ascertain if [the] defendant . . . failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination. [Citation.] In order for the instruction to be properly given [t]here [must be] facts or evidence in the prosecutions case within [the defendants] knowledge which he did not explain or deny. [Citation.] A contradiction between the defendants testimony and other witnesses testimony does not constitute a failure to deny which justifies giving the instruction. [Citation.] [T]he test for giving the instruction is not whether the defendants testimony is believable. CALJIC No. 2.62 is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear. [Citation.] (Lamer, supra, at p. 1469.)

The People properly concede that CALCRIM No. 361 should not have been given here. There was no failure to explain or deny here; defendant simply gave a description of events that was contrary to that of other witnesses.

Although defendant urges otherwise, the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 applies. (People v. Saddler (1979) 24 Cal.3d 671, 683; People v. Lamer, supra, 110 Cal.App.4th at p. 1471-1473.) Reversal is required only if is reasonably probable that a result more favorable to defendant would have occurred had this instruction not been given. That is not the case here.

The court told the jury that not all of the instructions were necessarily applicable, and it advised the jury to follow the instructions that applied to the facts as it determined them to be. Most importantly, as previously outlined, the evidence against defendant was strong and he gave contradictory and implausible explanations for his conduct. Given these circumstances, there was no reasonable probability that the jury would have returned a more favorable verdict had the court refused to give CALCRIM No. 361. The error was therefore harmless.

C. CALCRIM No. 371

Defendant contends that the trial court erred in instructing the jury on consciousness of guilt pursuant to CALCRIM No. 371. The error, if any, was harmless.

The court instructed, If the [d]efendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the [d]efendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself. []  If you conclude that a [d]efendant tried to hide evidence, you may consider that conduct only against that [d]efendant. You may not consider that conduct in deciding whether any other [d]efendant is guilty or not guilty.

Defendant contends that this instruction should not have been given because there was no evidence of an attempt to create false evidence, obtain false testimony, or hide evidence. The People respond that the instruction was proper because defendant lied to officers when he was first questioned, and then at trial gave two different versions of events, testifying both that he intended to steal the bicycle and that he put it in his car because he thought the bike belonged to Christine. We question whether CALCRIM No. 371 was proper under these circumstances.

In People v. Jackson (1996) 13 Cal.4th 1164, the California Supreme Court analyzed CALJIC No. 2.04, which provides that a jury may infer consciousness of guilt if you find that a defendant attempted to or did persuade a witness to testify falsely or tried to fabricate evidence to be produced at the trial . . . . (Jackson, supra, at p. 1224.) The court agreed with defendants claim that this instruction was appropriate only when a defendant attempted to induce a witness to lie in a judicial proceeding or otherwise tried to fabricate evidence when a trial was pending. The court concluded that the language of the instruction, and particularly the phrase evidence to be produced at trial, suggests such a limitation. [Citation.] The manufacture of an alibi before defendant is charged with a crime is more appropriately addressed by CALJIC No. 2.03, concerning a defendants willfully false or deliberately misleading statements concerning the charge on which he is now being tried. (Id. at p. 1225.)

CALCRIM No. 371 also describes attempts to create false evidence, hide evidence, or obtain false testimony but, unlike CALJIC No. 2.04, the instruction is not expressly limited to evidence to be produced at the trial. Arguably, the concerns expressed in People v. Jackson are therefore not present.

But, as in People v. Jackson, another instruction more appropriately explained how a jury is to view a defendants own misleading statements. The court gave CALCRIM No. 362 (Consciousness of Guilt: False Statements) as follows: If either of the [d]efendants made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other [d]efendants guilt. []  If you conclude that the [d]efendant made a statement, its up to you to decide its meaning and importance. However, evidence that a [d]efendant made such a statement cannot prove guilt by itself.

It is this instruction, rather than CALCRIM No. 371, that most accurately applies to defendants false statements.

But if giving CALCRIM No. 371 was error, it was harmless. [A]t worst, there was no evidence to support the instruction and . . . it was superfluous. As previously explained, evidence of defendants guilt was strong. Under the circumstances, reversal on such a minor, tangential point is not warranted. (People v. Pride (1992) 3 Cal.4th 195, 249.)

Defendant disagrees, asserting that the instruction skewed the balance between the defense and the prosecution in favor of the prosecution. He argues that by failing to mention prosecution witnesses, CALCRIM No. 371 suggested that the defense was more likely than the prosecution to use dishonest tactics. He also claims that because the instruction did not specify that the false statements or fabrications would have occurred before trial, the jury could have understood it to be suggesting that [defendants] testimony was more likely than the prosecution witnesses testimony to have been false.

CALCRIM No. 371 cannot be reasonably interpreted in such a manner. The court told the jurors that they alone must judge the credibility or believability of the witnesses, and instructed that [t]he testimony of each witness must be judged by the same standard. (CALCRIM No. 226.) Defendants claim of prejudice is unpersuasive.

D. CALCRIM No. 372

Defendant contends another instruction given by the court, CALCRIM No. 372 on flight, is fundamentally flawed and should not have been given. Defendant asserts the instruction is argumentative, presumes that defendant is guilty of a crime, and is generally biased in favor of the prosecution and lowers its burden of proof. None of these claims has merit.

As given to the jury, CALCRIM No. 372 provided: If a defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that a [d]efendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that . . . the [d]efendant fled or tried to flee cannot prove guilt by itself.

Defendant contends this instruction is impermissibly argumentative because it invited the jury to draw an inference favorable to the prosecutions position that [defendant] fled but did not invite it to draw an inference favorable to [defendants] position there was no flight. We disagree.

Section 1127c requires a flight instruction if evidence of flight is relied upon as tending to prove guilt. A flight instruction is proper whenever evidence of the circumstances of defendants departure from the crime scene or his usual environs . . . logically permits an inference that his movement was motivated by guilty knowledge. (People v. Turner (1990) 50 Cal.3d 668, 694.)

Initially, we note that the California Supreme Court has rejected defendants suggestion that a jury should be instructed that absence of flight demonstrates lack of guilt. (People v. Staten (2000) 24 Cal.4th 434, 459.) We are bound by that determination. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

CALCRIM No. 372 properly states the law. Defendant drove from the market after loading the victims bicycle in his car. CALCRIM No. 372 did not require the jury to view this behavior as flight. Instead, it left the appropriate characterization of defendants conduct to the jurys determination, and outlined the permissible inferences that could be drawn if it concluded that defendant fled the scene. The instruction does not direct that a particular inference be drawn and cannot be deemed argumentative. (See People v. Mendoza (2000) 24 Cal.4th 130, 180-181 [reaching the same conclusion about CALJIC No. 2.52, another flight instruction].)

Defendant next contends that CALCRIM No. 372 improperly presumes (1) the commission of a crime, by referring to defendants flight as occurring immediately after the crime was committed and (2) defendants guilt, by referring to defendant being aware of his guilt. We disagree. Again, the instruction permits a permissive inference to be drawn if the jury determines that certain facts occurred. It does not presume those facts to exist, nor does it direct a particular conclusion. Defendants concerns are unfounded. (See People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1159.)

Finally, defendant contends that flight instructions in general are slanted in favor of the prosecution, and lower the prosecutions burden of proof. The California Supreme Court has repeatedly upheld the constitutionality of flight instructions such as CALJIC No. 2.52. (E.g., People v. Navarette (2003) 30 Cal.4th 458, 502; People v. Jackson, supra, 13 Cal.4th at pp. 1223-1224.) And, at least one court has applied the same reasoning to hold that CALCRIM No. 372 does not lower the prosecutions burden of proof. (People v. Hernandez Rios, supra, 151 Cal.App.4th at p. 1159.) We agree.

E. CALCRIM No. 220

The trial court instructed the jury on reasonable doubt pursuant to CALCRIM No. 220. This instruction concludes with the following paragraph: In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the [d]efendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty. (Italics added.)

Defendant contends that the italicized language impermissibly shifted the burden of proof to defendant because [t]he jury could have only interpreted this [statement] as requiring it to compare the evidence presented by the prosecution with the evidence presented by the defense.

The identical contention was raised and rejected in People v. Hernandez Rios, supra, 151 Cal.App.4th at p. 1157. The court noted that CALJIC No. 2.90 contained similar language referring to the comparison and consideration of all the evidence, and had been approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16-17 [127 L.Ed.2d 583, 597]. The Hernandez Rios court concluded that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 serves to inform the jury that its decision must be based on the evidence, and it rejected defendants claim that the instruction shifted the burden of proof. (People v. Hernandez Rios, supra, 151 Cal.App.4th at p. 1157.)

We agree. Nothing in this instruction suggests that the defense must present evidence or otherwise bears any burden of proof. In fact, the court specifically instructed at the outset of trial that the defense may present evidence but is not required to do so. Because they are presumed innocent, the [d]efendants do not have to prove that they are not guilty. (CALCRIM No. 100.)

CALCRIM No. 220 accurately states the law and reminds the jurors that their decision is to be based on the evidence presented at trial and not any other source. Defendants claim that the instruction shifts the burden of proof is meritless.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

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