P. v. Wallace

Filed 4/21/06 P. v. Wallace CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Raymond L. Brosterhous, II and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

Superior Court Case No. CR-F-03-117194

On October 14, 2003, the Tulare County District Attorney filed a felony complaint in superior court charging appellant Stephen Wayne Wallace as follows: count I--possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) with three prior prison terms (Pen. Code,^[1] § 667.5, subd. (b)) and count II--receiving stolen property (§ 496, subd. (a)) with three prior prison terms (§ 667.5, subd. (b)).

On October 28, 2003, appellant pleaded nolo contendere to count I and admitted the related special allegations. The court dismissed count II and indicated it would commit appellant to Recovery Court.

On November 14, 2003, the court issued a bench warrant for appellant's failure to appear for sentencing. On December 2, 2003, appellant appeared in court, the court reappointed the public defender to represent him, and the matter was continued for sentencing.

On January 16, 2004, the court conducted a sentencing hearing, placed appellant on formal probation, and executed a written probation agreement with appellant and his probation officer.

On June 21, 2004, the probation officer filed a certificate and affidavit averring that appellant committed three violations of the terms of his probation. On January 11, 2005, the probation officer filed another certificate and affidavit averring appellant's failure to obey all laws, a term and condition of probation.

On January 14, 2005, the court revoked and terminated appellant's probation and committed him to state prison for the middle term of two years with 367 days of custody credits. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and imposed a number of fees and penalty assessments. The court ordered appellant to participate in a substance abuse counseling or education program while imprisoned (§ 1203.096) and directed him to register as a narcotics offender (Health & Saf. Code, § 11590).

On March 1, 2005, appellant filed a timely notice of appeal.

Superior Court Case No. CR-F-03-119523

On December 2, 2003, the Tulare County District Attorney filed a felony complaint in superior court charging appellant as follows: count I--possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) with five prior offenses affecting probation eligibility (§ 1203, subd. (e)(4)) and count II--misdemeanor possession of a smoking device (Health & Saf. Code, § 11364).

On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On December 12, 2003, appellant pleaded nolo contendere to the substantive counts and the court indicated it would commit appellant to Recovery Court.

On January 16, 2004, the court conducted a sentencing hearing, placed appellant on formal probation, and executed a written probation agreement with appellant and his probation officer. The written agreement referenced both case No. F-03-119523 and case No. F-03-117194.

On June 21, 2004, the court filed an order for bench warrant pursuant to a certificate and affidavit of the probation officer citing three violations of the terms and conditions of probation.

On January 14, 2005, the court revoked and terminated appellant's probation and committed him to state prison for the middle term of two years with 340 days of custody credits. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and imposed a number of fees and penalty assessments. The court ordered appellant to participate in a substance abuse counseling or education program while imprisoned (§ 1203.096).

On March 1, 2005, appellant filed a timely notice of appeal.

Superior Court Case No. VCF130242

On September 9, 2004, the Tulare County District Attorney filed a first amended felony complaint in superior court charging appellant as follows:

Count I--vehicle theft (Veh. Code, § 10851, subd. (a));

Count II--receiving stolen property (§ 496d, subd. (a));

Count III--receiving stolen property (§ 496, subd. (a));

Count IV--first degree burglary (§ 459);

Counts V and VI--second degree robbery (§ 211);

Counts VII and VIII--petty theft with a prior (§ 666); and

Count IX--assault with a deadly weapon and by force likely to produce great bodily injury (§ 245, subd. (a)(1)). Each count further alleged appellant suffered two prior prison terms (§ 667.5, subd. (b)) and seven prior offenses affecting probation eligibility (§ 1203, subd. (e)(4)).

On September 14, 2004, the court conducted a preliminary examination and held appellant to answer.

On September 24, 2004, the Tulare County District Attorney filed an information in superior court charging appellant as follows:

Count I--unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) with four prior prison terms (§ 667.5, subd. (b)) and six prior offenses affecting probation eligibility (§ 1203, subd. (e)(4));

Count II--receiving stolen property (§ 496d, subd. (a)) with four prior prison terms (§ 667.5, subd. (b)) and six prior offenses affecting probation eligibility (§ 1203, subd. (e)(4));

Count III--receiving stolen property (§ 496, subd. (a)) with four prior prison terms (§ 667.5, subd. (b)) and six prior offenses affecting probation eligibility (§ 1203, subd. (e)(4));

Count IV--first degree burglary (§ 459) with four prior prison terms (§ 667.5, subd. (b)) and six prior offenses affecting probation eligibility (§ 1203, subd. (e)(4));

Counts V and VI--second degree robbery (§ 211) with four prior prison terms (§ 667.5, subd. (b)) and six prior offenses affecting probation eligibility (§ 1203, subd. (e)(4));

Counts VII and VIII--petty theft with a prior (§ 666) with four prior prison terms (§ 667.5, subd. (b)) and six prior offenses affecting probation eligibility (§ 1203, subd. (e)(4)); and

Count IX--assault with a deadly weapon and by force likely to produce great bodily injury (§ 245, subd. (a)(1)) with four prior prison terms (§ 667.5, subd. (b)) and six prior offenses affecting probation eligibility (§ 1203, subd. (e)(4)).

On September 28, 2004, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On November 10, 2004, appellant filed a motion to sever counts I, II, and III from the remaining substantive counts of the information.

On November 9, 2004, the district attorney filed written opposition to appellant's motion to sever.^[2]

On November 19, 2004, the court conducted a contested hearing on the motion to sever and took the matter under submission. Later that same date, the court granted the motion by minute order, noting "insufficient common characteristics or attributes for cou[n]ts 1 thru 3 to be tried with counts 4 thru 7. [¶] Counts 4 thru 9 will be tried first with the remaining counts to be tried immediately after."

On December 6, 2004, jury trial commenced.

On December 7, 2004, the People rested and the court granted appellant's motion for acquittal on count III.

Later that same date, the jury found appellant guilty of counts I (first degree burglary) and IV (petty theft with a prior) (former counts IV and VII, respectively) . The jury also found appellant guilty of battery (§ 242) and assault (§ 240), lesser included offenses of that charged in count VI (assault with a deadly weapon) (former count IX). The jury found appellant not guilty of count II (second degree robbery) and count V (petty theft with a prior) (former counts V and VIII, respectively).

On the same date, the court, sitting without a jury, found the prior conviction underlying the petty theft count to be true (§ 666).

On December 8, 2004, the court renumbered the substantive counts of the information as follows:

Original Number in Information As Amended

I VII

II VIII

III IX

IV I

V II

VI III

VII IV

VIII V

IX VI

On the same date, appellant pleaded nolo contendere to newly numbered counts VII (vehicle theft) and IX (receiving stolen property) (former counts I and III) and admitted four prior prison terms. In exchange, the court agreed to dismiss count II and indicated a sentence of five years eight months.

On January 14, 2005, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of five years eight months in state prison. The court imposed the middle term of four years on count I with an additional term of one year for the prior prison term, a term of eight months (one-third of the middle term) on count IV, and concurrent two-year middle terms on counts VII and IX. The court awarded 315 days of custody credits, imposed a $2,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), directed appellant to pay a $20 court security assessment and to participate in substance abuse counseling or a substance abuse education program during imprisonment (§ 1203.096).

On March 1, 2005, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

In the spring of 2004, Edward Hooks (Hooks) was living at a campsite on the St. Johns River Parkway near Visalia, an area frequented by homeless persons. At 4:00 a.m. on April 20, 2004, Hooks was asleep in his tent at the campsite. The Ozark Trail brand tent consisted of four walls, a zip-down entrance, a rear window, and a floor. His friend, Kenneth Campbell (Campbell), was asleep in a sleeping bag on a cot or sun chair located just outside of the tent.

Both men were awakened by the sound of two male voices. When Campbell asked who it was, the two men asked who he was. Campbell responded, "No, who are you, because this is our campsite." They replied by telling him to "'just be quiet.'" Someone stood over Campbell, shined a flashlight in his face, and told him not to move "or he'd get hurt." One of the men then asked whether Hooks was home. Campbell told them that Hooks was asleep in the tent.

Hooks, who was half-asleep, heard a voice telling him to get up because they needed to talk. When Hooks did not promptly emerge from the tent, one man said, "Get your [profanity] out here." Hooks got up, stuck his upper body out the front of the tent, and kept his feet inside the tent. As Hooks did so, he recognized appellant and one Larry Ingram (Ingram) standing outside of the tent. Hooks had known appellant for about three years and Ingram for about four years. Hooks considered Ingram a friend. Hooks told Campbell, "'Hey, Kenny it's all right. I know these guys. Everything's cool.'"

Approximately four months earlier, Hooks and his wife had lived in a house with appellant and some other people. Hooks and appellant developed some animosity with respect to Hooks's wife and appellant ultimately evicted the couple from the house. When Hooks emerged from the tent, appellant spoke to him in a very deliberate and threatening voice. Appellant instructed Hooks not to call, write, or talk to his--Hooks's--wife in any way, shape, or form. Appellant shined a flashlight on Hooks and said his wife did not want to have anything to do with him because she was now with appellant. Appellant further told Hooks he could continue to see his son but not his wife.

Appellant then asked Hooks, "What's that in your tent there?" or "'What have you got in the tent?'" Hooks turned to looked and explained the item to which appellant was referring. When Hooks turned around, appellant hit the right side of his face with the flashlight. Hooks fell onto his back and became disoriented. Hooks said he was afraid of further injury if he did not get away from appellant. With a bloodied face, Hooks rose to his feet and said, "'I'm leaving guys no matter if you want to beat me up again or not, but I'm gonna go take a piss.'" Appellant and Ingram let Hooks depart. Hooks stumbled down a path, made his way to a street, and waved down a truck. He told the truck driver he needed help. The driver dialed 911 and handed Hooks the telephone. Hooks did not recall talking to an operator. Four or five minutes after the telephone call, police arrived and summoned an ambulance. Medical personnel examined Hooks and transported him to a hospital via ambulance.

After Hooks left the campsite, Ingram walked over to Campbell, apologized for what had occurred, and said he did not know this was going to happen. As Ingram spoke with Campbell, appellant began going through Hooks's property inside the tent. Ingram told appellant they needed to leave but appellant said, "'No, I'm getting the stuff.'" Campbell left the area and walked toward a street. Appellant and Ingram remained at the campsite. As Campbell approached the street he met with police and gave them a statement. The police told Campbell that Hooks was at the hospital.

After being treated, Hooks met with Campbell and they went back to the campsite. While traveling on a trail near the river, Hooks and Campbell saw appellant riding a bicycle across the river, approximately 40 feet away. He was carrying items of property from the campsite. When Hooks and Campbell returned to the campsite, they saw that much of their personal property was gone.

Several days after the incident, Hooks went to the police station with Ingram. Ingram had told Hooks he was afraid of going to jail because of the incident at the campsite. Ingram also told Hooks he was a three strikes candidate, that he was Hooks's friend, and that he did not go to the campsite to intentionally hurt Hooks. Hooks told the police he wanted to drop the charges against Ingram.

Defense

At approximately 4:00 a.m. on April 20, 2004, Visalia Police Officer Joel Arjona was dispatched to the scene. He arrived and took a statement from Hooks. Hooks told Arjona that appellant called him out of his tent and said, "'Get your ass out here, get your ass out here.'" Hooks put his boots on and went outside. Hooks said he was hit but did not recall exactly what happened. After Hooks was hit, he unsuccessfully ran to a nearby residence for help and then returned to the campsite. Appellant and Ingram were gone upon his return. Hooks then left the campsite again and flagged down a motorist for help. The motorist dialed 911. According to Arjona, Hooks seemed agitated and did not say he had been hit with a flashlight.

Appellant said he and Ingram went to see Hooks at 4:00 a.m. Appellant did not know where Hooks lived and asked Ingram to show him the way. Appellant wanted to discuss something with Hooks and approached the campsite with a flashlight taken from his bicycle. When appellant and Ingram arrived at the campsite, they found Campbell outside of the tent. Ingram asked Campbell where "Si" was. Campbell said Si had left with someone else but indicated that Hooks was asleep inside the tent. Appellant said he calmly called out, "Hey, come out here."

Appellant knocked on the inside of the tent and Hooks said, "Hey, what's up Steve?" Hooks appeared and told appellant to hold on while he put on his shoes. Appellant thought Hooks was taking too long and yelled, "Get your [ass] out here." Ingram was standing over Campbell, who was inside a sleeping bag on a couch. Ingram told Campbell to take his hands out of the sleeping bag, to be quiet, and not to move.

Hooks emerged from the tent and he and appellant discussed Hooks's wife. According to appellant, the conversation was calm and lasted five to 10 minutes. At the end of the conversation, Hooks made a comment that appellant did not like. Appellant asked Hooks not to repeat the comment. Hooks repeated himself and appellant responded by hitting Hooks's mouth as hard as he could with a closed fist. Appellant said he knocked Hooks out in front of the tent.

Appellant said he then picked Hooks up and told him, "Look, man, I'm sorry that I hit you but don't say that no more." Hooks indicated he had to use the restroom. Appellant walked him toward a tree and let him relieve himself. Appellant said that was the last time he saw Hooks. Appellant said he returned to the campsite and found Ingram taking things out of Hooks's tent. Appellant walked to Campbell, said he was sorry he had to see the incident, and added that "things happen." Appellant left with Ingram after the latter put some "stuff" into a bag. Appellant and Ingram went in different directions. Appellant saw Hooks again at 9:30 a.m. He saw Hooks in front of appellant's residence, two and a half miles away from the campsite. Appellant said he had known Ingram all of his life because they were cousins. Appellant also said he did not know Campbell before the incident but had known Hooks for about three years.

DISCUSSION

I.

CALJIC Nos. 2.71, 2.71.7, AND 2.72

Appellant contends the burglary and theft convictions must be reversed because the trial court failed to sua sponte instruct the jury in CALJIC Nos. 2.71 (admission--defined), 2.71.7 (pre-offense statement by defendant), and 2.72 (corpus delicti must be proved independent of admission or confession).

Appellant initially contends "THE BURGLARY AND THEFT CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY TO VIEW A PURPORTED ORAL STATEMENT OF INTENT WITH CAUTION AND TO FIND INDEPENDENT PROOF OF THE CORPUS DELICTI OF THE ALLEGED CRIMES." Appellant goes on to argue the trial court erred in failing to sua sponte instruct the jury "to Consider Purported Pre-crime Statement with Caution and Instruct the Corpus [Delicti] Must Be Proved Independent of Appellant's Extrajudicial Statements."

In framing his argument, appellant does not precisely specify the statement or statements at issue. Under California law, it is the duty of the defendant to show error. That means a defendant is under an affirmative duty in that respect and it is not proper to attempt to shift that burden upon the court or the respondent. (People v. Goodall (1951) 104 Cal.App.2d 242, 249.) Nevertheless, the policy of the law generally favors the hearing of appeals on the merits. (People v. Carpenter (1939) 36 Cal.App.2d Supp 760, 764.) Therefore, we will briefly examine the record to identify the statement or statements at issue here.

On direct examination of Kenneth Campbell during the People's case-in-chief, the following exchange occurred:

"THE WITNESS: ... This is Steve [appellant] talking to Ed [Hooks]. Later that I found out his name. Saying that, you know, his wife – you know, 'You're not gonna see your wife any more. She's with me now.' And stuff like that. And I was going whoa.

"And Ed's taking this all very just off-the-cuff, you know. And just kind of, oh, really, you know. And just without making any moves because I don't know if Ed knew – [¶]...[¶]

"Q [by Deputy District Attorney Klein]: So then what happened?

"A Well, ultimately Ed got knocked to the ground with a flashlight.

"Q Did you see who did that?

"A That was Steve. [¶]...[¶]

"MR. KLEIN: Indicating holding [the flashlight] in a shining manner forward, Your Honor, from the elbow bent up.

"THE COURT: With the fist up near the right cheek.

"THE WITNESS: Like this.

"Q [by Mr. Klein] Yes.

"A [by Campbell] Then he [appellant] said, 'What have you got in the tent,' like that. And as Ed went to look like that and Ed came back, he kind of – he just – it was a quick – it wasn't a full. It was just a quick bam like that. [¶]...[¶]

"Q [by Mr. Klein] After Edward was knocked down, what transpired next, what happened after that?

"A Well, ... I felt very bad. I was powerless because I knew if I did anything ... same thing could happen to me. So I was like weighing that in my mind. At the same time angry. And then what happened after that?

"Q Yes.

"A Then Ed – after he had gathered himself up and had blood on his mouth and stuff like that, Ed more or less said ... just said screw it, like I'm leaving guys no matter if you want to beat me up again or not, but I'm gonna go take a piss.

"Q Yes.

"A So he was let go. And then Steve starting rummaging through the stuff. And at that time Larry [Ingram] was like apologizing to me. After he got hit, Larry said, 'Hey, man, we need to get out of here,' and stuff like that. [¶] And Larry even apologized to me, said, 'Hey, I'm sorry. I didn't know this was gonna happen,' and stuff like that. … And so, you know, I was let go too.

"Q Tell me what you saw. When you say Steve, are you referring to the defendant, Stephen Wallace?

"A Yes.

"Q Okay. So what did you see him do after Edward Hooks left?

"A Well, at that time I didn't see him take anything, but he was rummaging through the tent and whatnot."

On cross-examination of Campbell, the following exchange occurred:

"Q [by deputy public defender Banuelos] Okay. And at what point during this whole incident did Mr. Ingram say to you, you know, chill out, it's okay?

"A [by Campbell] After Ed got hit, Larry said ... 'Hey, man, we ... gotta get out of here.' And he said, 'I'm taking this stuff,' or whatever.… [¶] ... [¶]

"THE COURT: You said he said, 'We're gonna take the stuff.' Who's 'he'?

"THE WITNESS: Ed got hit by Steve. And then once Ed said, 'Hey, I'm leaving, I'm gonna go do this, you know, I'm gonna go to the bathroom,' he was let go. [¶] Then after that a minute or two, then Larry said, 'Hey, man, we gotta get out of here,' you know. And Steve said, 'No, I'm getting the stuff.'

"And then after a little bit, then Larry said – then he started apologizing to me and said, 'Hey, man, you know, sorry all this happened and stuff. It's all good.' Shook hands. Gave him a high five or whatever, punched fists or whatever like that. And, man, just go ahead and take off, you know, because he didn't want to get involved. You know."

Thus, from the foregoing recitation of the record, it appears appellant's alleged admissions consist of the brief utterances: "'I'm taking this stuff'" and "'No, I'm getting the stuff.'"

He specifically argues:

"Appellant was charged with several offenses against Edward Hooks and Kenneth Campbell and their property. In pertinent part, count 4 alleged residential burglary (Pen. Code, § 459) of a tent inhabited by Edward Hooks, count 7 alleged theft of Mr. Hooks' property, count 8 alleged theft of Mr. Campbell's property, and count 9 alleged assault upon Mr. Hooks with a deadly weapon, a flashlight (Pen. Code, § 245, subd. (a)(1)).

"There were several discrepancies in the evidence. One predomin[ant] discrepancy concerned whether appellant struck Mr. Hooks with his fist or a flashlight. Appellant admitted he forcefully struck Mr. Hooks with a closed fist, causing him to fall to the ground.^[[3]] Mr. Campbell and Mr. Hooks testified appellant struck Mr. Hooks with a flashlight. However, Mr. Hooks did not include in his report to the police having been struck with a flashlight.

"Another discrepancy involved a credibility contest. Mr. Campbell testified after Mr. Hooks left the area, Mr. Ingram suggested he and appellant also leave, and appellant responded, 'No, I'm getting the stuff.' Mr. Campbell testified appellant entered the tent and rummaged through personal property. Appellant testified he saw Mr. Ingram reach into Mr. Hooks' tent and take some items after Mr. Hooks left the area. Mr. Campbell and Mr. Hooks were impeached with numerous discrepancies between his initial account to police and their trial testimony surrounding the events leading to, as they testified, their observation of appellant hours later riding away on a bicycle loaded with property including items of Mr. Hooks' property. Mr. Campbell also testified when he returned to the campsite he discovered numerous items of his property were missing.

"Appellant requested the jury be instructed on the manner to view prior inconsistent statements, CALJIC No. 2.13. The jury was instructed with CALJIC No. 2.13. The prosecutor withdrew his request for CALJIC No. 2.70 and 2.71, asserting there was no evidence of any confession or admission because appellant had invoked his right not to incriminate himself. The jury was not instructed to view oral admissions with caution (CALJIC No. 2.71), to view purported pre-crime statements with caution (CALJIC No. 2.71.7) or on the requirement to fine, 'some proof of each element of the crime,' independent of appellant's admissions (CALJIC No. 2.72). In pertinent part, the jury found appellant guilty of residential burglary and theft of Mr. Hooks' property. The jury found appellant not guilty of assault with a deadly weapon, although guilty of misdemeanor assault and battery (Pen. Code, § § 240, 242)."

CALJIC No. 2.71 states:

"An admission is a statement made by [a][the] defendant which does not by itself acknowledge [his][her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his][her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] [Evidence of an oral admission of [a][the] defendant not made in court should be viewed with caution.]"

CALJIC No. 2.71.7 states:

"Evidence has been received from which you may find that an oral statement of [intent][plan][motive][design] was made by the defendant before the offense with which [he][she] is charged was committed. [¶] It is for you to decide whether the statement was made by [a] [the] defendant. [¶] Evidence of an oral statement ought to be viewed with caution."

CALJIC No. 2.72 states:

"No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him][her] outside of this trial. [¶] The identity of the person who is alleged to have committed a crime is not an element of the crime [nor is the degree of the crime]. The identity [or degree of the crime] may be established by [a] [an] [confession] [or] [admission]."

The following exchange occurred during the reported conference on jury instructions held on December 6, 2004:

"[THE COURT:] Confession or admission, was there any – was there any confession or admission in this case?

"MR. KLEIN [deputy district attorney]: None that I'm aware of, Your Honor. I think he invoked.

"THE COURT: So that's withdrawn; is that right, Mr. Klein?

"MR. KLEIN: Yes, Your Honor.

"THE COURT: So 2.70 and 2.71 are withdrawn. 2.72 is withdrawn. [¶]...[¶]

"MS. BANUELOS [deputy public defender]: Your Honor, there was just one that – and I didn't bring a copy, but I can bring one tomorrow that we were going to request.

"THE COURT: Which is that?

"MS. BANUELOS: It was prior consistent or inconsistent statements, 2.13.

"THE COURT: I think I gave it. What is it?

"MS. BANUELOS: 2.13.

"THE COURT: That isn't in there?

"MS. BANUELOS: I don't believe it was in there. I'll doublecheck.

"THE COURT: You're right. Yeah, that should be in there. Okay. I'll make a copy of that and add it to your package...."

The prosecutor stated in opening argument:

"And here's pretty much what you'll have, is you'll have five verdict forms and they will be numbered one, and that's a 459 first, that's your burglary in the first degree of an inhabited dwelling, that being the tent.

"If for some reason you don't believe that to be true but you believe a burglary existed, then you would cho[o]se the second degree burglary.

"The law requires us to give you these options and that's what we're going to do is follow the law.

"The second count you have is by force or fear taking the property of Mr. Hooks. Well you know when you sucker-punch somebody and you got a light in your hand and you knock them out, that's force. You can have a million lawyers telling you what force is, but everything you bring in here, see, what if you wanted 12 lawyers as 12 jurors, or 12 judges here. What the law requires is 12 members of our community sitting here. Actually you have a 13th member of the jury going back with common sense. So I know you'll apply all the legal terms that you're given and I know you'll do your best. The law tells you to follow them, that's what you should do, but I don't think anybody, anybody can say that the property wasn't taken by force and fear.

"So he hits him. He says ahead of time, before he hits him, 'I'm going to take that property and what's in there,' and he hits him and takes the property. That is called robbery and it's robbery of Edward Hooks.

"Counts 4 and 5, the victims of that are Edward Hooks and Mr. Campbell, they had their property taken. Is there any doubt in your mind that isn't imaginary or possible that the defendant took that property or aided and abetted somebody else taking that property?"

Respondent acknowledges that appellant's statements constituted admissions but maintains the failure to instruct on admissions pursuant to CALJIC Nos. 2.71 and 2.71.7 and on corpus delicti pursuant to CALJIC No. 2.72 constituted harmless error.

Article VI, section 13 of the California Constitution states:

"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."

The word "misdirection" logically includes every kind of instructional error. Incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally misdirect the jury's deliberations. The prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable prejudicial error test embodied in article IV, section 13 of the California Constitution. (People v. Flood (1998) 18 Cal.4th 470, 487-490.) A reviewing court will not set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes the error has resulted in a miscarriage of justice. A miscarriage of justice occurs only when it is reasonably probable the jury would have reached a result more favorable to the appellant absent the error. (People v. Dieguez (2001) 89 Cal.App.4th 266, 277-278 (Dieguez).)

A. Cautionary Instructions Regarding Admissions

An admission has a distinct meaning in criminal law; it is an acknowledgment, declaration, or concession of a fact or action that tends to prove guilt or from which guilt may be inferred. An admission is similar to but less than a confession, which is a declaration or acknowledgment sufficient to establish guilt of the crime. A trial court has a duty to give CALJIC No. 2.71 sua sponte where an admission by the defendant is used to prove a part of the prosecution case. (People v. Zichko (2004) 118 Cal.App.4th 1055, 1059.)

When the evidence warrants, the court must give the cautionary instructions sua sponte. The purpose of such instructions is to assist the jury in determining whether the statement was in fact made. This purpose is applicable to any oral statement of a defendant, whether made before, during, or after the crime. When a trial court fails to so instruct sua sponte, a reviewing court applies the normal standard of review for state law error. In other words, the reviewing court must determine whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instructions been given. Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393.)

In the instant case, the prosecution presented sufficient evidence of the burglary and theft offenses independent of appellant's statements. Kenneth Campbell testified he saw appellant going through Hooks's property inside the tent before Campbell left the campsite. After Hooks was treated at the hospital, he reunited with Campbell and they returned to the campsite. While proceeding on a trail near the St. John's River, both Hooks and Campbell saw appellant riding a bicycle on the other side of the river. Appellant was carrying items of property and Hooks recognized some of those items as being his own. When Hooks and Campbell reached the actual campsite, they discovered that most of their personal property was missing.

Given this detailed testimony, it is not reasonably probable a result more favorable to appellant would have occurred had the court given the cautionary instructions CALJIC Nos. 2.71 and 2.71.7.

B. Corpus Delicti

Corpus delicti of a crime consists of (1) the fact of the injury, loss or harm, and (2) the existence of a criminal agency as its cause. (People v. Daly (1992) 8 Cal.App.4th 47, 59 (Daly).) In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) A precondition for a criminal conviction is that the state must prove that a "crime" has been committed otherwise there could not possibly be guilt, either in the accused or in anyone else. (People v. Ochoa (1998) 19 Cal.4th 353, 404 (Ochoa).) The purpose of the corpus delicti rule is to ensure that a person will not be falsely convicted, by his or her untested words alone, of a crime that never happened. (Alvarez, supra, at p. 1169.)

The longstanding rule in California was that once the corpus delicti has been proved by such evidence from another source, the extrajudicial statements then become admissible to determine the defendant's connection with the crime. (Ochoa, supra, 19 Cal.4th at pp. 404-405.) In other words, before extrajudicial statements may be introduced, slight corroborating facts must show independently that a crime has been committed by someone. (Id. at p. 405.) The prosecution need not eliminate all inferences tending to show a noncriminal cause of the harm. Rather, the foundation may be laid by the introduction of evidence which creates a reasonable inference that the crime could have been caused by a criminal agency even in the presence of an equally plausible noncriminal explanation of the event. (Ibid.)

The California Supreme Court modified this rule in Alvarez, stating:

"… Because of the adoption of section 28(d) [of article I of the California Constitution] through Proposition 8, there no longer exists a trial objection to the admission in evidence of the defendant's out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant's extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed." (Alvarez, supra, 27 Cal.4th at p. 1180.)

However, Alvarez held that Proposition 8 did not eliminate the independent-proof rule insofar as that rule still prohibits conviction where the defendant's out-of-court statements are the only evidence establishing the crime was committed. (Alvarez, supra, 27 Cal.4th at p. 1180.) Thus, section 28, subdivision (d) of article I of the California Constitution "did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution's independent showing." (Alvarez, supra, at p. 1180.) Alvarez reaffirmed the modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be a slight or prima facie showing permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues. (Id. at p. 1181.)

The corpus delicti rule was satisfied in this case given the particular nature of the offenses originally charged in counts IV (residential burglary), VII and VIII (both petty theft with a prior), and IX (assault with a deadly weapon). As noted above, the elements of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm. (People v. Wright (1990) 52 Cal.3d 367, 404.) Proof of corpus delicti need not be beyond a reasonable doubt; a slight or prima facie showing is sufficient. (People v. Diaz (1992) 3 Cal.4th 495, 528-529.) The identity of the perpetrator of the crime is never an essential element of the corpus delicti. Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant. (People v. Manson (1977) 71 Cal.App.3d 1, 41; see People v. Armitage (1987) 194 Cal.App.3d 405, 422; People v. Kraft (2000) 23 Cal.4th 978, 1057; People v. Crew (2003) 31 Cal.4th 822, 837.) Moreover, a sua sponte corpus delicti instruction is not required where the defendant's extrajudicial statements were not expressions of an intent to commit a crime at a later time, but were made at the time of the offense, and were thus part of the offense itself. (Alvarez, supra, 27 Cal.4th at p. 1172, fn. 9.)

In the instant case, the prosecutor argued: "So he hits him. He says ahead of time, before he hits him, 'I'm going to take that property and what's in there,' and he hits him and takes the property. That is called robbery and it's robbery of Edward Hooks."

The Supreme Court has extended the corpus delicti rule to preoffense statements of later intent as well as to postoffense admissions and confessions, but not to a statement that is part of the crime itself. (People v. Carpenter (1997) 15 Cal.4th 312, 393-394.) Nevertheless, omission of CALJIC No. 2.72 harmless where the corpus delicti is clearly established by evidence independent of the admissions. (Daly, supra, 8 Cal.App.4th at p. 59.) Once again, the prosecution presented sufficient evidence of the burglary and theft offenses independent of appellant's statements. Kenneth Campbell testified he saw appellant going through Hooks's property inside the tent before Campbell left the campsite. After Hooks was treated at the hospital, he reunited with Campbell and they returned to the campsite. While proceeding on a trail near the St. John's River, both Hooks and Campbell saw appellant riding a bicycle on the other side of the river. Appellant was carrying items of property and Hooks recognized some of those items as being his own. When Hooks and Campbell reached the actual campsite, they discovered that most of their personal property was missing.

From the foregoing testimony, the jury could reasonably conclude that injury, loss or harm occurred to Hooks and Campbell and that a criminal agency caused the injury, loss or harm. In our view, a result more favorable to appellant would not have occurred had the court instructed the jury in CALJIC No. 2.72.

II.

FAILURE TO INSTRUCT ON AIDING AND ABETTING WITH RESPECT TO

THE THEFT AND BURGLARY CHARGES

Appellant contends his theft and burglary convictions must be reversed because the trial court failed to instruct the jurors on aiding and abetting.

He specifically argues:

"The prosecutor charged appellant as the direct perpetrator of residential burglary and theft, as well as several other crimes. There were no co-defendants charged with appellant. The evidence established another man, Larry Ingram, was involved in the events surrounding the alleged offenses. It was the prosecutor's theory the burglary was based upon intent to commit theft, and the theft was committed during the burglary. At one point in the prosecutor's summation before the jury, the prosecutor argued the evidence left no doubt appellant was guilty of the theft either as the direct perpetrator or as an aider and abettor. The trial court, however, did not instruct the jury on the definition of principals or upon the intent required to find guilt on a theory of aiding and abetting. The error violated appellant's federal constitutional rights to a trial by jury and due process. Under the facts of this case, the error was not harmless beyond a reasonable doubt. [¶]...[¶]

"Appellant was charged in pertinent part with residential burglary (Pen. Code, § 459) of a tent inhabited by Edward Hooks, and theft of Mr. Hooks' property (Pen. Code, § 484). The prosecution witness, Kenneth Campbell, testified after Mr. Hooks walked away, the man who approached with appellant, Larry Ingram, suggested he and appellant also leave and appellant declined and indicated he was, 'getting the stuff.' Mr. Campbell testified appellant entered the tent and rummaged through personal property. On the other hand, appellant testified he saw Mr. Ingram reach into Mr. Hooks' tent and take some items after Mr. Hooks left the area. Since appellant understood Mr. Ingram had been staying at the campsite, he was unsure whether the items Mr. Ingram took belonged to Mr. Hooks or possibly to Mr. Ingram. Mr. Campbell and Mr. Hooks claimed they saw appellant, hours later, riding away on a bicycle loaded with property including items of Mr. Hooks' property.

"The jury was instructed with CALJIC No. 2.11.5, which directs [jurors] to refrain from speculating why a perpetrator is not on trial with the defendant. During the brief opening summation, the prosecutor argued with regard to theft of Mr. Hooks' property, 'Is there any doubt in your mind that isn't imaginary or possible that the defendant took that property or aided and abetted somebody else taking that property?' ([E]mphasis added.) The trial court did not instruct the jury on the concept principals to an offense include the actual perpetrator and all aiders and abetters of the offense committed (CALJIC No. 3.00).^[[4]] The trial court did not instruct on the conduct and intent required to find guilt based upon 'aiding and abetting' (CALJIC No. 3.01).^[[5]] The jury signed the verdict form indicating it found appellant guilty of first degree burglary and guilty of theft of Mr. Hooks' property. [¶]...[¶]

"The standard instruction, CALJIC No. 3.01, is required to be given sua sponte anytime a defendant is prosecuted under an aiding and abetting theory. [Citations omitted.] Here, despite the trial court instructing the jury not to speculate about the fate of an unjoined perpetrator, and despite the fact the prosecutor advanced the theory appellant was guilty as an aider and abett[o]r, the court did not instruct the jury with the definition of principals (CALJIC No. 3.00) or the conduct and intent elements of aiding and abetting (CALJIC No. 3.01). Since these principles were not conveyed in any other instructions, the jury was invited to find appellant guilty by acting as an aider and abettor without being required to first find beyond a reasonable doubt appellant had knowledge of the criminal purpose and promoted it, intending it would be accomplished by the perpetrator. (See People v. Beeman (1984) 35 Cal.3d 547.) The trial court erred."

The district attorney alleged in relevant part in information No. VCF130242:

"COUNT 4 [¶] On or about the 20th day of April, 2004, in the above named Judicial District, the crime of FIRST DEGREE BURGLARY, PERSON PRESENT, in violation of Penal Code Section PC459, a FELONY, was committed by STEPHEN WAYNE WALLACE, who did enter an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by E. HOOKS, with the intent to commit larceny and any felony. [¶]...[¶]

"COUNT 5 [¶] On or about the 20th day of April, 2004, in the above named Judicial District, the crime of 2ND DEGREE ROBBERY, in violation of Penal Code Section PC211, a FELONY, was committed by STEPHEN WAYNE WALLACE, who did unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of E. HOOKS."

The prosecution stated during opening argument:

"Counts 4 and 5, the victims of that are Edward Hooks and Mr. Campbell, they had their property taken. Is there any doubt in your mind that isn't imaginary or possible that the defendant took that property or aided and abetted somebody else taking that property?"

Even absent a request, the trial court must instruct on the general principles of law applicable to the case. The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case. The trial court must give instructions on every theory of the case supported by substantial evidence, included defenses consistent with the defendant's theory of the case. Evidence is substantial only if a reasonable jury could find it persuasive. The trial court's determination of whether an instruction should be given must be made without reference to the credibility of the evidence. The trial court need not give instructions based solely on conjecture and speculation. Instructions on aiding and abetting are not required where the defendant was not tried as an aider and abettor and there was no evidence to support such a theory. (People v. Young (2005) 34 Cal.4th 1149, 1200-1201.)

Article VI, section 13 of the California Constitution states:

"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."

The word "misdirection" logically includes every kind of instructional error. Incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally misdirect the jury's deliberations. A reviewing court will not set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes the error has resulted in a miscarriage of justice. A miscarriage of justice occurs only when it is reasonably probable the jury would have reached a result more favorable to the appellant absent the error. (Dieguez, supra, 89 Cal.App.4th at pp. 277-278.)

In the instant case, Kenneth Campbell testified that appellant asked Hooks, "'What have you got in the tent,'" before punching Hooks with his right hand. Campbell further testified, "... Ed got hit by this gentleman here, and everything got stolen. And he was going away from the area with the stuff. When we came back, I mean we came back ... it was light, and he was still taking this stuff. Do I really know that that was our stuff? No. But everything was gone." Hooks testified appellant asked, "'What's that in your tent there?'" Hooks turned, looked, and said, "'Well it's a box with a cushion on it.'" After responding, Hooks said he "turned back around and when I turned back around I met the blunt end of a mag light upside my face at my nose and my upper lips." Hooks further testified he and Campbell returned to the campsite after Hooks visited the hospital. Hooks said, "... I witnessed Mr. Stephen Wallace on a bike taking my belongings from my campsite. He had a long, black bag that I had in a box, the very box that I spoke of earlier, on his handlebars. A couple of other items, a chest set and a box, some other items. Basically everything that I had was taken." When asked for specifics, Hooks said his belongings included an Emerson stereo, six gel cell batteries, clothing, a box made of cherry wood, a knife bearing an eagle emblem, a "chest" set, and bicycle parts.

Appellant admitted striking Hooks with a closed fist and knocking him out cold. He further testified, "As I turned around, Mr. Ingram had been into Mr. Hooks' tent and took some things out of his tent, was taking things out of his tent. He was already in there. He just reached in and grabbed a few things out." Appellant said Ingram put some "stuff" into a bag and they departed from the campsite. He subsequently testified, "What he took, I don't know. Mr. Ingram had been staying there before. I can't say whose property it was." He also testified he saw Ingram drive away with stuff from the tent and he did not call the police.

Section 31 governs aiding and abetting liability. The statute extends criminal liability as principals in a crime to "[a]ll persons concerned in the commission of a crime," and all those who "aid and abet in its commission." Thus, the commission of a crime is a prerequisite for criminal liability. If the defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor. For a defendant to be found guilty under an aiding and abetting theory, someone other than the defendant must be proven to have attempted or committed a crime; i.e., absent proof of a predicate offense, conviction on an aiding and abetting theory cannot be sustained. (People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez).)

The Supreme Court analyzed aiding and abetting liability in detail in People v. McCoy (2001) 25 Cal.4th 1111 (McCoy). There, the court explained that an aider and abettor's guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state. (Id. at p. 1117.) The court further stated that once it is proved the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his or her own mens rea. (Id. at pp. 1118-1119.) Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus a crime committed by the direct perpetrator; (b) the aider and abettor's mens rea knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends; and (c) the aider and abettor's actus reus conduct by the aider and abettor that in fact assists the achievement of the crime. (Perez, supra, 35 Cal.4th at p. 1225, citing McCoy, supra, 25 Cal.4th at p. 1117.)

Consistent with these principles, the Supreme Court has explained that accomplice liability, including aider and abettor liability, is "derivative," i.e., it results from an act by the perpetrator to which the accomplice contributed. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) A trial court must instruct on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Funes (1994) 23 Cal.App.4th 1506, 1523.) A party is not entitled to an instruction on a theory for which there is no substantial evidence. (People v. Memro (1995) 11 Cal.4th 786, 868.) Expressed another way, it is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

Here, as respondent points out, both Hooks and Campbell testified to the effect that appellant committed the burglary of the tent. In contrast, appellant acknowledged striking Hooks but maintained Ingram was the perpetrator of the burglary of the tent and the theft of the personal items. Appellant has not cited and we have been unable to find any portion of the record evidence supporting the notion that appellant aided and abetted a burglary and theft by Ingram. Clearly, the prosecutor briefly alluded to the theory of aiding and abetting in his opening argument. However, that reference was made in the context of a rhetorical question and did not specifically mention any facts elicited by either the prosecution or defense at trial. Moreover, the unsworn statements of counsel are not evidence (In re Zeth S. (2003) 31 Cal.4th 396, 413-414, fn. 11) and the jury was instructed to that effect.

The theory of aiding and abetting was inconsistent with both the prosecution case and