Filed 10/29/18 P. v. Sharp CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Defendant Channing Jacob Sharp appeals a judgment entered after a jury found him guilty of first degree residential burglary, conspiracy to commit first degree residential burglary, and resisting, delaying or obstructing a peace officer. He argues the trial court erred under Evidence Code section 352 when it allowed audio recordings of defendant being interrogated by law enforcement to be played for the jury because two statements made by the interrogating officers were prejudicial.[1] He contends this error violated due process and his right to a fair trial. We disagree and affirm the trial court.

I. BACKGROUND

We limit our factual recitation to that necessary to decide defendant’s arguments on appeal.

Defendant initially objected to the People’s intention to play audio recordings of law enforcement interrogating defendant as part of the People’s opening statement. The trial court sustained this objection. Defendant later objected under section 352 to two statements made by officers that the People intended to offer as evidence. Specifically, defendant complained the statement made by the interrogating officer, that “I can promise you, you are not going to get 12 jurors that are going to buy your story,” was a legal conclusion and should not be admitted. Defendant further objected on the same basis to the statement of another officer who said, “I saw you behind the tree where you dumped your shirt which shows the conscience of guilt.” The trial court overruled these objections finding the statements were part of the interrogation and did not bind the jury.

The challenged statements were contained in two different audio recordings received as separate exhibits (Exhibits 43 & 45), which were played for the jury. Transcripts of these recordings were provided to the jury as an aid and are part of the clerk’s transcript on appeal (Exhibits 43A & 45A).

The challenged portion of Exhibit 43, as reflected in Exhibit 43A, stated: “Uh I can promise you you’re not going to get twelve jurors that are going to buy your story.” After the People played Exhibit 43 for the jury, the trial court, on its own motion, voiced a concern that the statement was made after the interrogation was complete and was not actually part of the interrogation. After argument, the court acted on the People’s suggestion to strike this statement, and the statement was struck. The court thereafter advised the jury: “[T]he very last statement from the officer, which didn’t seem to be part of the interrogation, that was the officer’s opinion. That part I’m striking. It’s just the officer’s opinion. That is not evidence. Okay. His opinion to what 12 jurors will do is not evidence. That’s up to you, not to him. So that part is stricken. [¶] . . . So you are ordered to disregard that part of the transcript and that part of the recording. But the rest of the recording remains in evidence.”

The challenged portion of Exhibit 45, as reflected in Exhibit 45A, stated: “Ok, I saw you behind the tree where you dumped your shirt, which shows the consistence [sic] of guilt and you ran away from your shirt.” The court denied defendant’s renewed objection to the admission of this statement as a legal conclusion, reiterating its previous ruling that it was the officer’s opinion that was part of the interrogation. The court explained to the jury, “the objection from defense was the same objection he made to the other officer’s statement, that the officer was giving his opinions here. That’s correct. But I’m allowing it into evidence because it’s just part of the ongoing interrogation. The officer’s statements are just his opinions, but I’m allowing it into evidence because it’s part of the ongoing interrogation.”

Later the same day, the trial court instructed the jury again concerning the officer’s statements made during interrogations that had been played for the jury, stating: “I want to clarify for the jury, too, that the officer’s statements that were being made during the interrogation, they are not being admitted for the truth of the matter of the officer’s statements. They are only being admitted for you to understand the defendant’s statements that are being made during the interrogation. Okay. You are to follow that directive.”

After the close of evidence, the trial court instructed the jury in pertinent part that: “You must decide what the facts are. It is up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial.” “You must follow the law as I explain it to you, even if you disagree with it. . . . [¶] Pay careful attention to all of these instructions and consider them together.” “If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.” The court instructed the jury on defendant’s alleged consciousness of guilt as demonstrated by flight and false statements.

Thereafter, the People’s closing argument did not mention the officer statements contained in Exhibits 43 or 45, nor did it otherwise reference law enforcement beliefs concerning defendant’s actions or what a hypothetical jury would do. Defendant’s counsel likewise did not mention these things, although his argument conceded defendant lied to authorities in these interviews because he was afraid “if he told the cops the truth, they wouldn’t believe him.”

II. DISCUSSION

Defendant argues the admission of the two officers’ statements violated section 352, which in turn violated due process and his right to a fair trial.

Section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Prejudice following the erroneous admission of evidence that does not render a trial fundamentally unfair is reviewed under People v. Watson (1956) 46 Cal.2d 818, which asks “whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.)

Statements made by an investigator during an interrogation may be admitted to provide context to a defendant’s responses without running afoul of evidentiary rules. (People v. Maciel (2013) 57 Cal.4th 482, 524 (Maciel) [officer statement that defendant “set-up” the murder was provided to provide context, not for the truth of the matter].) We find the high court’s treatment of a similar claim in People v. Case (2018) 5 Cal.5th 1 (Case) instructive. In that case, the court determined the defendant was not unduly prejudiced for purposes of section 352 by the admission of portions of a recorded police interview wherein the police repeatedly stated that defendant was lying and had committed the underlying crime. (Case, at pp. 34-37.) These statements were relevant to the witness’s state of mind, and the trial court’s careful jury instructions concerning this testimony prevented undue prejudice. (Id. at p. 37 [noting presumption that “jury followed the court’s instruction”].)

Here, shortly after they were presented to the jury, the trial court instructed the jury to disregard the statement from Exhibits 43/43A, which it noted was mere opinion and not evidence, and the statement was stricken. The court later reiterated in its jury instructions that, if testimony was stricken, it must be disregarded and not used for any purpose. We presume the jury followed the court’s instruction, (Case, supra, 5 Cal.5th at p. 37) and thus, any arguable error in allowing the statement to be presented to the jury was presumptively corrected by the court. Therefore, it is not “reasonably probable the verdict would have been more favorable to the defendant absent” the erroneous publication of the stricken statement. (People v. Partida, supra, 37 Cal.4th at p. 439.) This is particularly true given that neither counsel mentioned this statement or interrogating officers’ beliefs in closing arguments.

Defendant has also failed to establish that he was unduly prejudiced by the inclusion of the complained-of statement contained in Exhibits 45/45A. The trial court instructed the jury that this statement was not admitted for the truth of the matter, but to provide context to defendant’s interrogation responses. (Maciel, supra, 57 Cal.4th at p. 524 [rejecting claim that court should have redacted officer interrogation statement that defendant set-up the murder, admitted for context, but not its truth].) The court further instructed the jury to decide the facts, follow the law as explained by the court, and provided actual instructions on consciousness of guilt. We presume the jury followed these instructions. (Case, supra, 5 Cal.5th at p. 37.)

Defendant has not demonstrated he was prejudiced for purposes of section 352, by the hypothetical possibility that the jury ignored the court’s instructions and deferred to the officer’s statement from the interrogation that defendant discarding his shirt showed consciousness of guilt. (Case, supra, 5 Cal.5th at p. 37.) This is especially true given that the statement was not mentioned by the parties in closing arguments. The People’s arguments on consciousness of guilt focused on other facts consistent with consciousness of guilt.[2]

We further reject defendant’s argument that “[t]he admission of the prejudicial interrogations of the officers rose to the level of a federal due process violation and [that defendant] was denied a fair trial.” It is unclear whether his argument that the interrogation statements must be treated like affirmative testimony, which would be forbidden by applicable rules, is separate from his argument concerning the alleged section 352 error. However, as recognized in Maciel, supra, 57 Cal.4th at p. 524, the admission of interrogation statements are not analogous to the admission of witness testimony concerning a defendant’s guilt. Thus, even if this argument is separate, it fails on the merits.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

BUTZ, J.