P. v. Quisenberry

Filed 9/29/06 P. v. Quisenberry CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Andrew Kauffman, Judge. Modified and, as modified, affirmed.

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Anthony Quisenberry appeals from the judgment entered following his convictions by jury on count 1 - first degree residential burglary (Pen. Code, § 459) and count 6 - conspiracy to commit first degree residential burglary (Pen. Code, § 182) with an admission that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced him to prison for 17 years, and the sentence included concurrent terms for the offenses.

In this case, in which appellant and another person conspired to commit residential burglary, engaged in casing activity by driving around a neighborhood in a car, and later committed a residential burglary, we accept respondent’s concession that multiple punishment on counts 1 and 6 violated Penal Code section 654. There was no substantial evidence that appellant entertained independent criminal objectives when committing the offenses at issue in those counts.

We reject appellant’s claim that the trial court reversibly erred as to his conspiracy conviction by instructing the jury pursuant to CALJIC No. 2.06, which pertains to attempts to suppress evidence, that the jury could view the removal of license plates from the car as evidence of appellant’s consciousness of guilt. Appellant argues the instruction was erroneous because the removal was preoffense conduct with respect to the burglary and one cannot have consciousness of guilt concerning an offense that has not yet occurred.

However, the trial court did not err since it gave CALJIC No. 2.06 without referring to the removal of the plates. Moreover, even if the trial court had given the instruction and referred to the removal of the license plates, there was substantial evidence supporting the instruction because (1) agreement is an element of conspiracy; therefore, there was substantial evidence that the removal was postagreement conduct evidencing consciousness of wrongdoing and (2) there was evidence that, just before police apprehended appellant, he tried to hide a cell phone in his sock. Accordingly, appellant is really arguing the trial court gave CALJIC No. 2.06, referred to the removal of the license plates, but failed to amplify the instruction to reflect it did not apply to preoffense conduct. However, appellant waived that issue by failing to request amplification below.

Moreover, as to the merits, we reject appellant’s preoffense conduct argument that one cannot have consciousness of guilt concerning an offense that has not yet occurred. CALJIC No. 2.06 makes clear that certain types of deceptive or evasive behavior on a defendant’s part may indicate consciousness of wrongdoing. These types of misbehavior need not indicate consciousness of wrongdoing of a specific offense. Further, whether the misbehavior occurs before or after the offense is irrelevant. Further still, as mentioned, the removal of the license plates was postagreement conduct evidencing consciousness of wrongdoing and there was evidence that appellant tried to hide a cell phone in his sock; therefore, these facts supported the giving of the instruction.

In any event, as to prejudice, although appellant assumes there was evidence he removed the license plates, the jury reasonably could have concluded the opposite, and appellant concedes that the giving of an irrelevant instruction is usually harmless error. Moreover, appellant makes no sufficiency claim as to the conspiracy or burglary conviction, and appellant nearly concedes there was overwhelming evidence of guilt of the conspiracy. Accordingly, any trial court error in giving CALJIC No. 2.06 was not prejudicial.

We reject appellant’s claim that cumulative prejudicial error resulted from the giving of the instruction. In particular, appellant claims the prosecutor erroneously argued to the jury that the conspiracy was completed when appellant and his confederate began driving in the neighborhood. However, the prosecutor also discussed the role of overt acts. Moreover, appellant did not object below to the prosecutor’s comments about which appellant now complains, nor does appellant independently contend the comments constituted prosecutorial misconduct. The court instructed the jury on conspiracy, the instruction made clear that a conspiracy conviction required proof of an unlawful agreement plus an overt act, and the jury is presumed to have followed the court’s instruction.

The fact that the removal of the plates was also alleged as an overt act of the conspiracy did not preclude the prosecutor from arguing to the jury that CALJIC No. 2.06 applied to the removal, since the jury could rely on the removal to infer consciousness of wrongdoing in connection with the agreement element of conspiracy. Finally, the fact that the prosecutor, without dispute, properly referred during his opening statement to a prior conviction which appellant suffered, but the court later ruled that evidence of the prior conviction would not be received was, as appellant concedes, harmless error in itself. This is so because the trial court admonished the jury to disregard the prosecutor’s reference to the prior conviction. No cumulative prejudicial error occurred.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence presented by the People, the sufficiency of which evidence is undisputed, established as follows. About 10:45 a.m., on November 17, 2004, a white Chevy Monte Carlo stopped at the home of Robin Choi, who lived at 15435 South Harvard in Gardena. There is no dispute appellant and Smith were in the car, and burglarized Choi’s home (count 1), stealing, inter alia, his checks and a credit card.

On November 17, 2004, Gardena Police Officer Eric Williams was on patrol in an unmarked patrol car as part of a burglary suppression surveillance team. Williams was patrolling specific areas where there had been numerous residential burglaries during the last several months.

Shortly before noon, Williams saw the Chevy turn from Van Ness onto 147th Street. The Chevy had very dark tinted windows and lacked license plates. Williams indicated that when “somebody goes out to commit crimes, they like to take license plates off the cars so someone can’t get the plates during commission of the crime to report them to police.”

The Chevy’s front windshield was not tinted, and Williams saw the driver, later determined to be Gregory Smith. There was also a passenger, later determined to be appellant. The Chevy drove very slowly down several neighborhood streets, sometimes multiple times on the same street. The surveillance team conducted surveillance of the Chevy but sometimes an officer lost sight of it.

About 12:15 p.m., a white car stopped at 1309 West 148th Street in Gardena, the home of Ms. Matsumi Nanaumi. Someone repeatedly rang the doorbell of the home, and the white car later drove away. About 12:40 p.m., the Chevy drove into the driveway of the home of Mr. and Mrs. Urabe located at 1229 West 162nd Street.[1] Police detained Smith at the location but appellant fled through a backyard to the driveway of a residence on 161st Street and behind the Urabes’s home. An officer testified appellant was dusting himself off and “had his cell phone that he ended up hiding in his sock” when he began walking on the sidewalk. Police detained appellant.

A police officer searched the Chevy’s trunk. He testified he found that “the license plates to the vehicle were placed underneath a large speaker box and hidden out of view.”[2] In response to court questioning, the officer testified the plates were hidden from his view when he opened the trunk. The license plates were the plates for the Chevy, and the plates had current registration tags on them. The plates looked relatively new, were not packaged in Department of Motor Vehicle material, and were loose.

The officer also searched the glove compartment and found inside it Choi’s checks and credit cards. Cell phones were in the center console area, and $563 was in the center console. Appellant was the Chevy’s registered owner. He presented no defense evidence.

CONTENTIONS

Appellant contends multiple punishment on counts 1 and 6 was improper. He also contends the trial court reversibly erred as to his conspiracy conviction by giving CALJIC No. 2.06 based on the removal of the license plates from the Chevy.

DISCUSSION

1. Multiple Punishment on Counts 1 and 6 Violated Penal Code Section 654.

We accept respondent’s concession that multiple punishment (concurrent terms) on counts 1 and 6 violated Penal Code section 654. There was no substantial evidence that appellant entertained independent criminal objectives when committing the offenses at issue in those counts. (Cf. In re Cruz (1966) 64 Cal.2d 178, 180-181; People v. Keller (1963) 212 Cal.App.2d 210, 220.)

2. The Trial Court Did Not Reversibly Err by Giving CALJIC No. 2.06.

a. Pertinent Facts.

After the parties rested at trial, the court commented that the court and parties had discussed jury instructions. The court stated, “[Defense counsel], you indicated you were objecting to the court’s giving of CALJIC 2.06 relative to efforts to conceal evidence.” Appellant did not reply. The court indicated it would give the instruction.

During jury argument concerning CALJIC No. 2.06, the People argued the license plate was the suppressed evidence. The court later instructed, pursuant to CALJIC No. 2.06, that “If you find that the defendant attempted to suppress evidence against him in any manner, such as by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt; however, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

b. Analysis.

(1) Appellant’s Claim Is Without Merit.

Appellant is arguing (1) the trial court reversibly erred as to his conspiracy conviction by instructing the jury pursuant to CALJIC No. 2.06 that they could view the removal of the license plates as evidence of consciousness of guilt and (2) the instruction was erroneous because the removal was preoffense conduct with respect to the burglary.

We reject appellant’s above mentioned argument that the trial court erred. Although the prosecutor argued to the jury that they could, based on CALJIC No. 2.06, view the removal of the license plates as evidence of consciousness of guilt, the trial court merely gave CALJIC No. 2.06 to the jury without referring to the removal.

Even if the trial court had instructed that, pursuant to CALJIC No. 2.06, the jury could view the removal of the license plates as evidence of consciousness of guilt, appellant’s claim of instructional error would be unavailing. The removal of the license plates was, as to the conspiracy, postagreement conduct that evidenced consciousness of wrongdoing as to the agreement element of the conspiracy (cf. People v. Jackson (1996) 13 Cal.4th 1164, 1224; People v. Price (1991) 1 Cal.4th 324, 427; People v. Ulibarri (1965) 232 Cal.App.2d 51, 54-55); therefore, that postagreement conduct supported the giving of the instruction. (Cf. People v. Breaux (1991) 1 Cal.4th 281, 303-304, fn. 7; People v. Ulibarri, supra, 232 Cal.App.2d at pp. 54-55.) Moreover, there was other evidence that appellant attempted to suppress evidence; an officer testified that appellant hid a cell phone in his sock. We note cell phones were found in the Chevy with contraband.

Therefore, even if the trial court had instructed the jury that, pursuant to CALJIC No. 2.06, they could view the removal of the license plates as evidence of consciousness of guilt, appellant is really arguing that the trial court erroneously failed to clarify or amplify the instruction to reflect it was inapplicable insofar as the removal was, as to the Choi burglary, preoffense conduct.

However, “[i]t is of course true that a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights. ([Pen. Code,] § 1259; People v. Hillhouse [(2002) 27 Cal.4th 469], 505-506; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) On the other hand, ‘”Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” [Citation.]’ [Citations.]” (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156, italics added.) Accordingly, notwithstanding appellant’s citation to Penal Code section 1259, he waived the issue of whether the instruction should have been modified to clarify it was inapplicable insofar as the removal constituted preoffense conduct.

As to the merits of appellant’s preoffense conduct argument, first, we reject appellant’s premise that preoffense conduct cannot support the giving of CALJIC No. 2.06 because one cannot have consciousness of guilt concerning an offense that has not yet occurred. Appellant cites no case the holding of which supports that premise.

Moreover, “‘A reasonable juror would understand “consciousness of guilt” to mean “consciousness of some wrongdoing“ rather than “consciousness of having committed the specific offense charged.” . . .’” (People v. Bolin (1998) 18 Cal.4th 297, 327, italics added.) Further, CALJIC No. 2.06, like similar consciousness of guilt instructions,[3] makes “‘clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, . . .’” (People v. Bolin, supra, at p. 327, quoting People v. Jackson [1996] 13 Cal.4th [1164,] 1224.) Simply put, the fact that the deceptive or evasive behavior precedes rather than follows an offense does not render misbehavior that would otherwise support the giving of the instruction unsupportive.

Further still, as mentioned, the removal of the license plates was postagreement conduct evidencing consciousness of wrongdoing. There was evidence that appellant tried to hide a cell phone in his sock. These facts supported the giving of CALJIC No. 2.06.

In his reply brief, appellant argues for the first time that the trial court erred by giving CALJIC No. 2.06 because it duplicated CALJIC No. 6.10, which defines the crime of conspiracy, and because CALJIC No. 2.06 was an impermissible pinpoint instruction. We reject the arguments because they were first raised in appellant’s reply brief. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Moreover, CALJIC No. 2.06 does not duplicate CALJIC No. 6.10. Finally, CALJIC No. 2.06 as given was not a pinpoint instruction. (Cf. People v. Randle (1992) 8 Cal.App.4th 1023, 1036-1037.)

(2) Any Error in Giving CALJIC No. 2.06 Was Not Prejudicial.

Even if the trial court erroneously had instructed the jury that, pursuant to CALJIC No. 2.06, they could view the removal of the license plates as evidence of consciousness of guilt, the error, for the reasons discussed below, would not have been prejudicial. First, we have assumed there was substantial evidence that appellant and/or his accomplice removed the license plates from the Chevy and replaced them with dealer plates, but the jury might well have concluded there was no such evidence. Appellant concedes there was no direct evidence as to who removed the plates or when they were removed. If neither appellant nor a confederate removed the plates, the instructions would be irrelevant, and appellant concedes that the error of giving an irrelevant instruction is normally harmless.

Second, appellant makes no sufficiency claim to his conspiracy conviction. Moreover, he concedes in a footnote in his opening brief that the giving of CALJIC No. 2.06 did not constitute prejudicial error as to his burglary conviction because “by any stretch of the imagination the evidence against appellant on the burglary count was overwhelming.” Further, he concedes the burglary was committed under circumstances that required concerted action; therefore, “an agreement to commit burglaries could readily be inferred from the uncontradicted facts.” Beyond that, he concedes that, given a “damning chain of circumstances, it was extremely unlikely that the jury would find that overt act no. 1 was not true.” We accept the concessions, and note appellant has nearly conceded there was overwhelming evidence of appellant’s guilt of the conspiracy. Any trial court error in giving CALJIC No. 2.06 was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

None of the cases cited by appellant, or his argument, compels a contrary conclusion. In particular, appellant, in his opening brief, claims that the giving of the instruction was prejudicial, essentially for four reasons. At one point in his reply brief, appellant characterizes his claim as one of cumulative prejudice.

Appellant argues, first, that the prosecutor erroneously commented during jury argument that the conspiracy was complete “at the time that Mr. Smith and Mr. Quisenberry set out on their tour of Gardena” and that the conspiracy was complete “in the agreement to go ahead and commit those burglaries.” The prosecutor’s above quoted comments omit an express reference to the overt act element, and appellant suggests this was error.

The “crime of conspiracy is complete ‘when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement.’ [Citations.]” (People v Superior Court (1988) 46 Cal.3d 381, 397 (Caswell).) In the present case, the prosecutor indicated to the jury that they should consider the overt acts as evidence of the conspiracy. The prosecutor further told the jury that “if you feel there was a conspiracy and that any of the overt acts that are alleged, in fact, took place, . . . that’s sufficient to return a guilty verdict on that count.” Appellant did not object below to the prosecutor’s comments about which appellant now complains, nor does appellant independently contend the comments constituted prosecutorial misconduct. The court instructed the jury on conspiracy using CALJIC No. 6.10, and that instruction made clear that a conspiracy conviction required proof of an unlawful agreement plus an overt act. The jury is presumed to have followed the court’s instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Second, appellant claims it was confusing that the information alleged the removal of the license plates as an overt act[4] and the prosecutor argued to the jury that CALJIC No. 2.06 applied to the removal. Again, appellant did not object below on that ground to the prosecutor’s argument. Nor does appellant explain why the allegation and prosecutorial argument were confusing. In any event, we see no reason why the jury could not rely on proof of the removal to establish the overt act element of conspiracy and to permit the jury to infer consciousness of wrongdoing as to the agreement element. Third, appellant suggests the instruction was not clearly inapplicable, and the evidence of appellant’s consciousness of guilt was not compelling. However, for reasons discussed above, we conclude the instruction was applicable and there was compelling evidence of appellant’s guilt.

Fourth, appellant notes that the prosecutor, consistent with an earlier ruling on a motion in limine, referred during the prosecutor’s opening statement to a prior burglary conviction which appellant suffered. Appellant also notes the court later reversed its ruling and excluded evidence of the prior conviction. Appellant argues the jury was therefore tainted by the prosecutor’s unsubstantiated comment that appellant had suffered a prior burglary conviction. However, appellant concedes that any error from this source was itself harmless because, during the final charge to the jury, the trial court admonished the jury to disregard the prosecutor’s reference to the prior conviction. No cumulative prejudicial error occurred.

DISPOSITION

The judgment is modified by staying execution of sentence on appellant’s conviction for conspiracy (count 6) pending completion of his sentence on his conviction for first degree residential burglary (count 1), such stay then to become permanent, and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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Analysis and review provided by La Mesa Property line Lawyers.

[1] The third amended information alleged counts 1 through 3, and 6. Counts 2 and 3 alleged appellant committed attempted burglary as to the Nanaumi and Urabe homes, respectively. The trial court granted Penal Code section 995 motions to dismiss as to counts 2 and 3.

[2] When the officer so testified, appellant’s counsel “move[d] to strike the term ‘hidden out of view.’” Appellant did not secure a ruling on the motion.

[3] See CALJIC No. 2.03 concerning willfully false or deliberately misleading statements, CALJIC No. 2.04 concerning attempts to persuade a witness to testify falsely or attempts to fabricate evidence, and CALJIC No. 2.52 concerning flight after a crime. (People v. Jackson, supra, 13 Cal.4th at pp. 1222-1224.)

[4] The third amended information alleged as overt act I that appellant “removed his license plates and hid them in his vehicle while committing overt acts.”