P. v. Carrillo

Filed 10/28/08 P. v. Carrillo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R. S. Detjen, Judge.

Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant appeals from his conviction of second degree burglary of a motor vehicle (Pen. Code^[1], 459) and receiving stolen property ( 496, subd. (a)), with seven prior felony convictions ( 667, subds. (b) (i)). He asserts the prosecutor engaged in misconduct by failing to disclose or deliver evidence favorable to defendant and arguing that defendants version of events was a big lie based on the absence of that evidence. Additionally, he asserts the court erred in instructing the jury to view defendants oral statements with caution, when those statements were exculpatory, failed to determine whether defendant was eligible for probation and whether probation should be granted, and abused its discretion in refusing to strike all, or all but one, of his prior strikes. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2006, at about 11:00 p.m., David Guzman parked his car near a bar in downtown Madera. He left his car there and had his brother drive him home about 2:00 a.m. on New Years Day. Another brother, Jose Becerra, drove him back to get his car about 8:30 or 9:00 a.m. that day. When the brothers arrived, the rear drivers side door of Guzmans car was open, and defendant was halfway inside the car, moving things around in the trunk, which was accessible through the back seat. The cars front passenger window was broken. The brothers sneaked up and grabbed defendant, then called the police. Defendant immediately stated that they got the wrong guy, and he was being a good Samaritan and putting back into the car things he had found scattered. There was another car across the street with a broken window; defendant said he had put things back in that car too.

When Officer Sheklanian arrived, defendant again explained he was being a good citizen and putting items he had found scattered outside the car back in it. Sheklanian asked what was in the plastic bag defendant had in his hands; defendant said it contained toothpaste he had just bought. Sheklanian looked in the bag. There was no toothpaste or receipt for purchase of toothpaste in the bag; it contained items belonging to Guzman, which had been in the front portion of his car, including a roll of quarters and a roll of dimes, cassette tapes, and a small statue of the Virgin Mary. When Sheklanian searched defendant, he found a shard of glass in defendants pocket; Guzman and Becerra observed glass coming from defendants clothing during the search.

Defendant was convicted of second degree burglary of a motor vehicle and receiving stolen property. Allegations of seven prior strike felonies were found true. He was sentenced to 25 years to life in prison on each count, with the sentence on count 2 stayed pursuant to section 654.

During the trial, after Sheklanian testified that there was no toothpaste or receipt in defendants plastic bag; defendant told his attorney the receipt was in his wallet, which was being held with his personal property at the jail. Defense counsel told the prosecutor and the court that jail personnel had confirmed there was a receipt in defendants wallet, dated January 1, 2007, from a store close to the place where Guzmans car was broken into, and he was sending his investigator to obtain it. Later, someone the prosecutor believed to be the defense investigator entered the courtroom and spoke with defense counsel; the defense rested soon after, without introducing the receipt in evidence.

In closing argument, the prosecutor asserted there was no toothpaste or receipt in defendants bag and argued that, if there had been toothpaste or a receipt, dont you think the defense would have brought that to trial? He added, There is no receipt because there was no purchase of any toothpaste because it's all just a big lie. At a break during the prosecutors argument, defendant moved for a mistrial, asserting the prosecutor knew a receipt existed because defense counsel had told him earlier, and it was improper for him to argue that the receipt did not exist. Alternatively, he requested that he be allowed to explain in closing why the receipt had not been admitted, or that the jury be instructed to disregard the prosecutors argument about the receipt. The prosecutor responded that, when the investigator returned to court empty-handed, and no receipt was offered in evidence, he reasonably concluded the receipt did not exist and included that in his argument. The court denied defendants motion, concluding the prosecutor did not know a receipt existed and it is permissible for an attorney to comment on the failure of the opposing party to present material evidence.

DISCUSSION

I. Nondisclosure of Receipt

Defendant contends the prosecutor engaged in misconduct by failing to disclose the existence of the receipt to defendant prior to trial. Alternatively, he asserts as misconduct the prosecutors failure to help him obtain the receipt from the jail after it was discovered in defendants wallet. He contends the receipt was evidence favorable and material to the defense, because it tended to corroborate his statement that he had purchased toothpaste that morning, which tended to support the truthfulness of his statements about picking up scattered items and placing them back in Guzmans car.

The statutes governing discovery in criminal matters require the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence in the possession of the prosecuting attorney or [known by] the prosecuting attorney to be in the possession of the investigating agencies. ( 1054.1.) Evidence subject to disclosure includes [a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged (id., subd. (c)) and [a]ny exculpatory evidence (id., subd. (e)). Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. ( 1054.7.) (People v. Zambrano (2007) 41 Cal.4th 1082, 1133 (Zambrano).)

Independent of the statutory scheme, the federal due process clause also imposes on the prosecutor a duty to disclose evidence materially favorable to the defendant. (Zambrano, supra, 41 Cal.4th at p. 1132; Brady v. Maryland (1963) 373 U.S. 83, 87.) The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials. [Citations.] The obligation is not limited to evidence the prosecutor's office itself actually knows of or possesses, but includes evidence known to the others acting on the governments behalf in the case, including the police. [Citation.] (Zambrano, supra, 41 Cal.4th at p. 1132.) In order to prevail on a Brady claim, a defendant must demonstrate that: (1) the evidence at issue is favorable, either because it is exculpatory or because it is impeaching; (2) such evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice resulted. [Citation.] (Raley v. Ylst (9th Cir. 2006) 470 F.3d 792, 804 (Raley).) Brady claims are subject to independent review. (People v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar).)

Assuming, without deciding, that the receipt was evidence favorable to defendant, we conclude that it was not in the possession of or suppressed by the prosecution, and was not material to the issue of defendants guilt or innocence. Consequently, there was no violation of the duty to disclose.

A. Possession by the prosecution

The statutory duty of disclosure applies to designated material that is in the possession of the prosecuting attorney or that the prosecuting attorney knows to be in the possession of the investigating agencies. ( 1054.1.) Under Brady, the disclosure duty applies to material in the possession of the prosecution team, including both investigative and prosecutorial personnel. (In re Brown (1998) 17 Cal.4th 873, 879 (Brown).) The statutory duty is no broader than the duty under Brady. (Zambrano, supra, 41 Cal.4th at pp. 1133-1134.) Under Brady, the prosecutor's duty extends to evidence known to the others acting on the government's behalf [citation], [b]ut the prosecution cannot reasonably be held responsible for evidence in the possession of all government agencies, including those not involved in the investigation or prosecution of the case. [I]nformation possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material. [Citation.] [Citations.] (Id. at p. 1133.)

In Brown, the crime lab provided both the prosecutor and defense counsel with a copy of the first page of its report showing that defendant tested negative for PCP in his bloodstream. It did not provide the prosecutor with a copy of the second page of the report, a worksheet that indicated a positive result from a different test. The court noted [t]he individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation. (Brown, supra, 17 Cal.4th at p. 879.) The court concluded the crime lab was part of the investigative team, and the prosecutor violated Brady by failing to disclose the second page of the report to the defense attorney, even though the individual prosecutor was unaware of it. (Brown, supra, 17 Cal.4th at pp. 883, 891.)

In People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305 (Barrett), defendant, who was charged with murdering his cellmate in prison, sought discovery from the prosecutor of records of the California Department of Corrections (CDC). The court observed that a prosecutor has a duty to disclose exculpatory evidence possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work, that is, a person or agency acting on the governments behalf [citation] or assisting the governments case. (Id. at p. 1315.)

Conversely, a prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material. (Barrett, supra, 80 Cal.App.4th at p. 1315.)

To the extent prison officials had interviewed crime witnesses, prepared reports and performed other investigative tasks in connection with the homicide, CDC had acted as part of the investigative team, and the prosecutor could be required to provide the investigative materials in discovery. (Barrett, supra, 80 Cal.App.4th at p. 1317.) However, to the extent defendant sought records kept by CDC in its role as administrator of prisons, i.e., records relating to the supervision and management of the prison, CDC was not part of the prosecution team and defendant was required to obtain discovery from it as from any third party through the subpoena process. (Id. at pp. 1317-1318.)

In Zambrano, defendants sister had sent a letter to a deputy sheriff at the jail where defendant was housed pending trial. Defendant contended the prosecutor violated both Brady and the statutory duty of disclosure by failing to disclose the letter to defense counsel, because it might have supported an insanity defense. (Zambrano, supra, 41 Cal.4th at p. 1131.) The court found no violation. The prosecutors office did not possess, and was not aware of, the letter to the deputy. (Id. at p. 1133.) Moreover, the record does not show the sheriff's office was an agency subject to the statutory or constitutional duty of disclosure. So far as appears, the sheriff was only defendant's jailer, and was not involved in the investigation or prosecution of the charges against him. (Ibid.)

The receipt in issue was in the possession of the jail at the time of trial. Defense counsel proposed a stipulation that the receipt was taken from defendants wallet in his property at the jail, where it had been since his arrest. There is nothing in the record to indicate that the prosecutor or anyone who investigated the offense was aware of the existence or location of the receipt before defense counsel mentioned it during trial. As in Zambrano, the disputed material was in the possession of defendants jailer, and there is nothing in the record to suggest the jailer was involved in the investigation or prosecution of the charges against him. The receipt, and the wallet in which it was found, were apparently held by the jail in the ordinary course of its duties of supervision and management of the jail, and not because the jail or its personnel was part of the investigation or prosecution team. Consequently, the record does not demonstrate that the receipt was in the possession of the prosecuting attorney or any agency acting on behalf of the government in investigation or prosecution of the crime. Therefore, the prosecutor did not have a duty to disclose the receipt to defendant.

B. Suppression of the evidence

[W]here the defendant is aware of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the attention of the defense. (Raley, supra, 470 F.3d at p. 804.) If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it by the exercise of reasonable diligence. [Citations.] (Salazar, supra, 35 Cal.4th at p. 1049.)

In Raley, defendant contended the prosecutor violated his right to due process under Brady, by failing to disclose exculpatory and mitigating evidence contained in [his] medical records from his pretrial confinement in jail. The court found no violation. [Defendant] knew that he had made frequent visits to medical personnel at the jail. He knew that he was taking medication that they prescribed for him. Those facts were sufficient to alert defense counsel to the probability that the jail had created medical records relating to [defendant]. Because [defendant] knew of the existence of the evidence, his counsel could have sought the documents through discovery. (Raley, supra, 470 F.3d at p. 804.)

In Barrett, the court concluded that materials held by the CDC in its capacity as administrator of the state prison system, rather than as an investigator in the case against defendant, could be obtained only by subpoena, and the responsibility for obtaining them by subpoena fell on defendant, not on the prosecution. (Barrett), supra, 80 Cal.App.4th at p. 1318.)

Defendant knew the receipt existed, and he knew its location; he volunteered that information to his attorney during the trial. Defendant could have obtained the receipt by subpoena prior to trial. The prosecution did not violate Brady by failing to disclose what defendant already knew. Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendants investigation for him. [Citation.] If the material evidence is in a defendants possession or is available to a defendant through the exercise of due diligence, then the defendant has all that is necessary to ensure a fair trial . [Citations.] (Zambrano, supra, 41 Cal.4th at p. 1134.) There was no suppression of the evidence.

C. Materiality and Prejudice

Even if the prosecution fails to disclose favorable evidence in its possession, to establish a statutory or constitutional violation, defendant must demonstrate that prejudice resulted from the nondisclosure. (People v. Garcia (1993) 17 Cal.App.4th 1169, 1183.) Prejudice, in this context, focuses on the materiality of the evidence to the issue of guilt or innocence. [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction more likely [citation], or that using the suppressed evidence to discredit a witnesss testimony might have changed the outcome of the trial [citation]. A defendant instead must show a reasonable probability of a different result. [Citation.] (Salazar, supra, 35 Cal.4th at p. 1043.)^[2] The requisite reasonable probability is a probability sufficient to undermine[] confidence in the outcome on the part of the reviewing court. [Citations.] It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. (Sassounian, supra, 9 Cal.4th at p. 544, last bracketed insertion added.)

Defendant contends the receipt was material because it tended to corroborate his statements that he was being a good citizen and putting items back in the car, by supporting the truthfulness of his other statement to Sheklanian, about the toothpaste. According to defense counsel, the receipt was dated January 1, 2007, came from a store near the scene, and reflected a purchase for $1.36. Defense counsel conceded the receipt did not reflect what merchandise was purchased. Even if defendant had been able to obtain and present evidence, other than defendants testimony, linking this receipt to a purchase of toothpaste,^[3]the receipt was not material.

Defendants statement to Sheklanian was not that he had purchased toothpaste that morning, which the receipt might tend to support, but that the plastic bag he was holding contained toothpaste he had purchased that morning. Two witnesses testified there was no toothpaste in the bag, only items belonging to Guzman. Thus, the testimony demonstrated that defendants claim there was toothpaste in the bag was untrue. Introduction in evidence of a receipt found in defendants wallet would not reasonably have led the jury to believe that the bag contained toothpaste or that defendants statement that the bag contained toothpaste was truthful.

In light of all the evidence, it is not reasonably probable the jury would have reached a result more favorable to defendant if the receipt had been disclosed to defendant prior to trial. The evidence at trial indicated that Guzman left his locked car parked on the street. When he returned for it the next day, he and his brother observed defendant in the back seat of the car with his hands in the trunk. The front passenger window was broken; there was glass on defendant. Defendant was holding a small plastic bag, which he said contained toothpaste he had purchased that morning. The bag instead contained items belonging to Guzman that had been in the front portion of his car. Defendant stated he was putting the items back in the car, not taking them out.

The items in defendants plastic bag included two rolls of coins. As the prosecution pointed out, if someone else had broken into the cars and strewn items from them onto the ground outside, as defendant contended, it was unlikely such a person would have left behind two rolls of coins. There also was no evidence anything was missing from Guzmans car other than the items in defendants bag.

Defendant claimed he was replacing items in Guzmans car, as he had in the car across the street. Sheklanian testified there were papers and debris scattered about in that car, and CDs on the floorboard of the front passenger seat, where the window was broken. Defendant did not, however, replace the items in Guzmans car by simply putting them through the broken window into the front passenger area; he was found in the open rear door on the drivers side rummaging in the trunk. The items defendant claimed he was putting back in the car were not in the car, but in defendants plastic bag. Considering the totality of the relevant circumstances, it is not reasonably probable a different result would have been reached if the receipt had been disclosed prior to trial.

Because the receipt was not in the possession of, or suppressed by, the prosecution and was not material to defendants guilt or innocence, there was no violation of the prosecutions statutory or constitutional disclosure obligations.

D. Failure to assist in obtaining receipt

Defendant contends that, if the prosecution was not required to disclose the receipt prior to trial, it was at least obligated to assist defendant in obtaining it from the jail once defendant had expressed an interest in it during trial. For the reasons already discussed, the prosecutor was not obligated to disclose or provide the receipt to defendant, and the prosecutors lack of assistance to defendant in obtaining the receipt from the jail did not violate his statutory or constitutional disclosure obligations.

II. Prosecutors Argument

Defendant contends the prosecutor engaged in misconduct by making the following argument:

Now, the defendant also stated that when before the officer searched his bag he asked him what was inside. What did he say? He said it was a tube of toothpaste that I just purchased. He didnt say anything else was in the bag. He said he had a tube of toothpaste in that bag that he had just purchased. Guess what? There is no tube of toothpaste. There is no receipt. [] [] 

Now, if there was a receipt, if there was toothpaste, dont you think the defense would have brought that to trial? Dont you think that they would have found that? Dont you think that they would have said, hey, Mr. Prosecutor, we have a receipt and here it is? There is no receipt because there was no purchase of any toothpaste because its all just a big lie.

The Attorney General argues defendant failed to object to the prosecutors argument or seek a corrective admonition from the court, and thereby waived any error. To preserve a claim of prosecutorial misconduct, the defendant must generally assign the conduct in question as error at trial and request the court to instruct the jury to disregard its effect. (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The reason for this rule, of course, is that the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury. (Bonin, at p. 689.) In Bonin, defense counsel failed to strictly comply with the requirements of the rule because she did not immediately object to the prosecutors question to the witness. (Ibid.) But she did achieve substantial compliance: by making her motions for a mistrial and to strike the challenged portion of [the witnesss] testimony, [defense counsel] effectively gave the court more than ample opportunity to correct the abuse. (Ibid.)

Similarly, in this case, although defense counsel did not immediately object to the prosecutors statements during closing argument, during a break in that argument defense counsel promptly moved for a mistrial; alternatively, he asked that he be permitted to explain to the jury why the receipt was not admitted or that the court admonish the jury not to consider the prosecutors argument about the absent receipt. Because defense counsel substantially complied with the requirement that he object and request an admonition, the claim of prosecutorial misconduct is not barred.

A prosecutor's rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Espinoza (1992) 3 Cal.4th 806, 820.) The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor. (People v. Mendoza (2007) 42 Cal.4th 686, 700.)

Defendant does not appear to contend that there was any egregious pattern of misconduct by the prosecutor, and the record would not support such a contention. Rather, defendant appears to contend the prosecutor used deceptive or reprehensible methods of persuasion by arguing that no receipt existed, even though he knew from defense counsels representation that a receipt did exist in defendants wallet at the jail.

It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (People v. Williams (1997) 16 Cal.4th 153, 221.) [P]rosecutorial comment upon a defendant's failure to introduce material evidence or to call logical witnesses is not improper. [Citations.] (People v. Wash (1993) 6 Cal.4th 215, 263.)

The prosecutors argument constituted fair comment on the evidence presented and the evidence not presented. No receipt was offered in evidence. There was no testimony that any receipt existed. The argument inviting the jury to infer from the absence of any such evidence that no receipt existed was proper. The prosecutor did not intentionally mislead the jury; prior to the time the argument was made, defense counsel had represented there was a receipt at the jail in defendants wallet and he had sent his investigator to retrieve it. The investigator returned, but no receipt was offered in evidence, and the defense rested. The prosecutor never saw a receipt. Defense counsel did not explain, prior to the prosecutors closing argument, why the receipt had not been proffered. The prosecutor was justified in assuming that some mistake had been made, and the receipt did not exist after all.

Additionally, prosecutorial misconduct is cause for reversal only if it is prejudicial, that is, if it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the alleged misconduct. (People v. Turner (1994) 8 Cal.4th 137, 194.) It is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the challenged argument. Between the two paragraphs of prosecutorial argument challenged by defendant, as quoted above, the prosecutor argued:

The only things inside that bag that Officer Sheklanian testified to were these items. These items in that small bag concealed by this person because he is the one that had just stolen them. And he lied about it because he didnt want the officer to look inside probably. That stands to reason. He lied about it because hes trying to avoid responsibility. He lied about it because he knew he was guilty of burglarizing that car and he didnt want to go to jail.

Thus, the prosecutor argued forcefully that defendant lied about what was in the plastic bag: defendant said it contained toothpaste, and it actually contained items stolen from Guzmans car. The prosecutor then added an argument that defendant lied about the purchase of toothpaste, based on the absence of any evidence of the toothpaste or a receipt for its purchase.

Even if he had not mentioned the receipt, the prosecutor would still have argued that defendants statement that the plastic bag contained toothpaste was a lie, told to conceal that he had stolen Guzmans property. He also still could have argued that there was no evidence of a toothpaste purchase, because no such evidence was admitted. There was no evidence that the statements defendant made to Sheklanian about the bag or the purchase of toothpaste were truthful, and so there was no basis for an inference from that truthfulness that defendants additional statements about putting items back in Guzmans car were also true. Consequently, it is not reasonably probable that the result would have been more favorable to defendant if the prosecutor had not mentioned the lack of a receipt in his closing argument. The prosecutors argument did not constitute misconduct.

III. Jury Instructions

Defendant contends the court made two errors in its instructions to the jury. First, he asserts the court should have modified Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 301 (CALCRIM) so that out-of-court statements of defendant would be considered on an equal footing with the testimony of witnesses at trial. Second, he contends the court should not have given CALCRIM No. 358, which deals with a defendants out-of-court oral statements, or at least should have omitted the last sentence, instructing the jury to consider such statements with caution. He argues the effect of the two errors was that the court unfairly singled out appellants statement for skepticism and wrongly implied that appellant had the burden of negating the prosecutors case.

At the request of the prosecutor, the court instructed the jury:

The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence. (CALCRIM No. 301.)

The courts CALCRIM No. 358 instruction was given at defendants request:

You have heard evidence that the defendant made oral statements before the trial. You must decide whether or not the defendant made any of these statements in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [] You must consider with caution evidence of a defendants oral statement unless it is written or otherwise recorded.

Defendant contends that, by instructing that the testimony of a single witness may prove any fact, but that it is up to the jury to decide how much importance to give to defendants pre-trial statements, and that defendants out-of-court statements were to be viewed with caution, the court improperly prompted the jury to look with distrust at the evidence of [defendants] exculpatory statement that he was acting as a good citizen and putting items back in Guzmans car. Defendant contends the CALCRIM No. 301 instruction should have been modified by the court to read:

The testimony of only one witness can prove any fact and the oral statement made by a defendant before trial can prove any fact. Before you conclude that the testimony of one witness or the oral statement of a defendant proves a fact, you should carefully review all the evidence.

An instruction in substantially the language of CALCRIM No. 301 should be given in every criminal case in which no corroborating evidence is required. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.) Defendant did not request any modification of this instruction at trial. Defendant cites no authority for the proposition that a defendants unsworn out-of-court statement should be placed on an equal footing with sworn in-court witness testimony. A defendants out-of-court statement itself is not evidence that may be considered by the jury. It must be placed in evidence in some way, generally by witness testimony as to what defendant said, or by some writing or recording reflecting what defendant said or wrote. CALCRIM No. 301 instructs the jury that the testimony of one witness is sufficient to prove any fact, which would include the fact that defendant made a particular statement. There was no error in giving the CALCRIM No. 301 instruction without the suggested modification.

Although defendant requested CALCRIM No. 358, he now contends the court should have deleted from the instruction the last sentence, which advises caution in considering defendants oral statements, because his only oral statement was exculpatory. The bench notes accompanying the instruction state: The court has a sua sponte duty to give this instruction when there is evidence that defendant made an admission or confession before trial. The notes also state that the last sentence of the instruction should be given [i]f the jury heard both inculpatory and exculpatory, or only inculpatory, statements attributed to the defendant, but it should not be given [i]f the jury heard only exculpatory statements by the defendant.

We recognize it is not uncommon that a single statement may tend to prove guilt or innocence, depending upon the state of the remaining evidence and the issue for which it is being considered. Many times extrajudicial statements of defendants, especially when made in the context of questioning by authorities, have the purpose of asserting innocence. Although a statement when made may not be incriminating, when considered with the rest of the evidence at trial it may nevertheless be viewed as an admission. For example, a defendant's statement denying participation in a crime may create an inference of incredibility or consciousness of guilt when considered along with other evidence connecting the defendant with the crime. That same statement may be purely exculpatory when considered in the absence of that other evidence. [Citation.] Similarly, a statement by a defendant purportedly giving an innocent explanation of the circumstances may be so implausible that it is incredible, thereby tending to prove guilt. Yet the implausible explanation may still be relied upon as a defense. (People v. Vega (1990) 220 Cal.App.3d 310, 317-318.)

The prosecutor elicited testimony about defendants pretrial statements, then argued in closing that defendants explanation of his actions did not make sense, was unreasonable, was ridiculous, and showed a consciousness of guilt. Essentially, he argued defendants explanation was so incredible it tended to prove his guilt. Consequently, although on its face defendants statement appears exculpatory, when viewed with the other evidence presented it was not so clearly exclusively exculpatory as to preclude giving the CALCRIM No. 358 instruction, including the final sentence.
Additionally, there was no prejudice to defendant from giving the instruction. The standard of review is the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction [not] been given. (People v. Dickey (2005) 35 Cal.4th 884, 905.) The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. (People v. Beagle (1972) 6 Cal.3d 441, 456.) CALCRIM No. 358 specifically states that the jury must decide whether or not the defendant made the statements attributed to him; in making that determination, the jury is instructed to consider with caution oral statements that are not written or otherwise recorded. The distinction is between written or recorded statements, which may be proven by the tangible writing or recording, and oral statements, evidence of which may be easily fabricated.

All three of the witnesses at trial gave similar testimony: that defendant stated he was being a good citizen or a good Samaritan and was putting items back in the car, not taking them out. No contrary evidence was presented. The closing arguments of both counsel assumed those statements had been made. There was no dispute about the statements being made or about the substance of their content. Consequently, it is not likely the jury discounted defendants statements because of doubts about whether the statements had been made or not or whether the witnesses descriptions of what was said were accurate.It is not reasonably probable the jury would have reached a more favorable result if the instruction (or the last sentence of the instruction) had not been given.

IV. Striking Prior Convictions

The trial court denied defendants request that it strike all or all but one of his prior strike offenses pursuant to section 1385. Defendant contends the trial court erred in failing to treat all of his prior strikes as one strike.

Section 1385 permits a court, on its own motion and in furtherance of justice, to strike prior felony conviction allegations in cases brought under the Three Strikes law. ( 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) A trial court's decision notto strike a prior serious or violent felony conviction allegation under section 1385 is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The burden is on the defendant to show that the sentencing decision was irrational or arbitrary. (Id. at p. 376.) In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (Id. at pp. 376-377.)

The Three Strikes law was intended to restrict courts discretion in sentencing repeat offenders. (Romero, supra, 13 Cal.4th at p. 528.) Allegations of prior serious or violent felony convictions may be stricken only in furtherance of justice. This language requires consideration of both the constitutional rights of the defendant and the interests of society in the fair prosecution of crimes properly alleged. (Id. at pp. 530-531.) In determining whether to strike a prior felony conviction allegation under the Three Strikes law, the court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)

Defendant points to the following factors as showing he is not within the three strikes schemes spirit. His current felony convictions are for second degree burglary and possession of stolen property, which are not serious or violent felonies ( 667.5, subd. (c), 1192.7, subd. (c)); the offenses were not committed in dangerous circumstances, but in broad daylight, in public, when no one was present in the car. His seven prior felony convictions were all adjudicated in the same case; defendant invites us to assume the convictions arose out of a single act, rather than multiple acts committed in an indivisible course of conduct, and to treat them as one strike conviction for that reason. The prior strike convictions occurred more than 20 years before the current offenses. Defendant is a diabetic, alcoholic, heroin addict, who has never been in a drug or alcohol treatment program.

Defendants prior felony convictions were for two counts of robbery, two counts of attempted robbery, and three counts of assault with a deadly weapon. The record does not reflect the circumstances surrounding those offenses. Defendant spent approximately five years in prison for those offenses. In the 16 years between his release from prison and the commission of the current offenses, he had no further felony convictions, but numerous misdemeanor convictions.

At sentencing, the court indicated it had read the probation report and reviewed defendants criminal history. It discussed defendants misdemeanor convictions and alcohol and drug use. It denied defendants request to strike some or all of his strike convictions, concluding: Concerning the facts of the case, the facts of the defendants prior record, the defendants character and prospects, the facts weigh heavily toward the interest of society and the fair prosecution of crimes properly alleged and proven. The Court does not find the defendant outside the realm of the Three Strikes Law.

Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, the judgment must be affirmed. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The trial court considered the relevant information and reached a proper decision. Defendant has not demonstrated that its decision was irrational or arbitrary. No abuse of discretion has been shown.

V. Probation

Defendant contends the trial court failed to consider whether he should be placed on probation. Defendant was not eligible for probation. A defendant who is convicted of a felony with one or more prior serious or violent felony convictions cannot be granted probation. ( 667, subd. (c)(2).) While a defendant with prior strike convictions may be placed on probation for the current offense if the trial court strikes the prior strike conviction allegations (People v. Superior Court (Roam) (1999) 69 Cal.App.4th 1220, 1228-1229), the trial court in this case did not strike any of defendants seven prior strike convictions.

Rule 4.413(b) of the California Rules of Court does not apply. It sets out the facts to be considered in determining whether a particular case should be treated as an exception to a prohibition against granting probation. It applies only when the governing statute prohibits probation except in unusual cases where the interests of justice would best be served, or a substantially equivalent provision. (Ibid.) Section 667 contains no such exception. It simply provides that, when a defendant with prior strike convictions is convicted of the current offense, [p]robation for the current offense shall not be granted. (Id., subd. (c)(2).)

DISPOSITION

The judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

LEVY, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

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

^[2] Some cases discuss this requirement in terms of materiality, stating that prejudice or harmless error analysis is not required in Brady analysis. They indicate, however, that prejudice is established by a showing that the undisclosed evidence is both favorable to defendant and material to his defense. In In re Sassounian (1995), for example, the court stated: A showing by the prisoner of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of error and prejudice. For, here, there is no error unless there is also prejudice. (9 Cal.4th 535, 544, fn. 7 (Sassounian).) In Brown, the court stated that nondisclosure of favorable evidence denies a defendant due process under Brady only when the evidence is material in the sense that suppression undermines confidence in the outcome of the trial; materiality requires a reasonable probability of a different result if the evidence had been disclosed. (Brown, supra, 17 Cal.4th at p. 884.) [O]nce a reviewing court applying [this test] has found constitutional error there is no need for further harmless-error review. [Citation.] The one subsumes the other. (Id. at p. 887.)

^[3] In arguing his motion for mistrial, defense counsel indicated he did not pursue the matter of the receipt because he would have had to have put defendant on the stand to testify that the receipt was for a toothpaste purchase; the court had ruled that defendant could be impeached with three prior felony convictions, and defense counsel believed the harm from such impeachment would outweigh the benefit of admitting the receipt in evidence.