P. v. Rios

Filed 3/14/07 P. v. Rios 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tulare County. Joseph A. Kalashian, Judge.

Candice L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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This is an appeal from judgment after defendant and appellant Faviola Garcia Rios was found guilty of one count of petty theft with a prior. (Pen. Code,  666.) Defendant contends the court prejudicially misinstructed and failed to instruct the jury and erroneously excluded certain defense evidence. We affirm the judgment.

Facts and Procedural History

A security agent at a Savemart store saw defendant and Nina Huerta opening boxes of hair dye. Their backs were turned and he could not see exactly what they were doing. He saw Huerta place some of the boxes on a shelf toward the rear of the store. The agent quickly inspected the boxes as the two women went toward the checkout stand. He found nothing missing from the boxes and returned to his observation post.

Defendant and Huerta were detained just outside the store by another agent. After defendant admitted that she had placed a more expensive dye in the box of a less expensive product she had purchased, Huerta was released. An agent called the police and an officer came to the store. Defendant again admitted she switched the hair dyes and paid for the less expensive dye. Defendant was arrested.

Defendant was charged with one count of violation of Penal Code section 666 and a prior prison term enhancement was alleged. In a bifurcated trial, a jury found defendant guilty of petty theft. The court found true the prior theft conviction and the prior prison term allegation. The court sentenced defendant to a term of three years in prison (the two-year middle term plus a one-year enhancement). Defendant timely appeals.

Discussion

A. The Omitted Instructions

For reasons not apparent from the record, the jury was not instructed with CALJIC Nos. 2.22 and 2.70, both mandatory sua sponte instructions in the circumstances of this case.^[1] (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885; People v. Beagle (1971) 6 Cal.3d 441, 455.)

Defendant contends the essence of these instructions is constitutionally required and that the failure to give the instructions must result in reversal unless the error is harmless beyond a reasonable doubt pursuant to the standard established in Chapman v. California (1967) 386 U.S. 18, 24.) The standard of review in cases of omission of these two instructions has long been established as the prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836; that is, whether it is reasonably probable a properly instructed jury would have reached a result more favorable to the defendant. (People v. Blankenship (1970) 7 Cal.App.3d 305, 310.)

Defendant claims the omission of CALJIC No. 2.22 was prejudicial because the evidence was in conflict and the jury was not instructed on how to proceed in the face of conflicting testimony . The jury was, however, instructed in detail on how to proceed in the face of conflicting testimony. The court instructed with CALJIC No. 2.20, believability of witnesses, which told the jury members they were the sole judges of the believability of a witness and the weight to be given the testimony of each witness. The instruction, as given, then listed seven nonexclusive factors the jury could consider in evaluating truthfulness of a witness. The jury also was instructed with CALJIC No. 2.27, as follows: You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, [whose testimony about that fact does not require corroboration,] is sufficient for the proof of that fact. You should carefully review all of the evidence upon which the proof of that fact depends. (The oral version of the instruction omitted the bracketed material, which appeared in the written version provided to the jury.)

CALJIC No. 2.22 has a somewhat different focus, cautioning the jury that it is not to determine credibility simply based on the number of witnesses on one side or the other. In the present case there was no significant numerical superiority of witnesses on any particular issue of fact. As to the conflicts between the testimony of the security agent and Huerta, there was no other witness who addressed those facts. The testimony of the police officer about defendants confession was uncontradicted. Defendant has not shown that the jurys determinations of credibility probably would have been resolved more favorably to defendant had the jury been instructed with CALJIC No. 2.22.

The primary purpose of CALJIC No. 2.70 is to assist the jury in determining if the statement was in fact made. (People v. Beagle, supra, 6 Cal.3d at p. 456.) In the present case, the defense contested not the making or the content of defendants statement, but whether defendant meant what she said. It is not reasonably probable the jury would have reached a conclusion more favorable to defendant if it had been instructed with CALJIC No. 2.70. (Ibid.)

B. The Aiding and Abetting Instruction

Over defendants objection, the court instructed the jury with CALJIC Nos. 3.00, 3.01, and 3.10, concerning aiding and abetting liability. Defendant contends this was error because the prosecution presented no evidence that would tend to show that appellant and Ms. Huerta were working together in any manner. This simply ignores the record. The store security agent testified that both persons were opening the hair dye boxes and that Huerta was the person who took to the back of the store the boxes with which defendant and Huerta had tampered. Defendant admitted to the police officer that she had paid for the lower-priced dye after switching the content of the boxes. The evidence is sufficient to support a conviction whether one concludes defendant directly committed the theft or, by paying for the switched product, assisted Huertas commission of the crime. The court did not err in giving aiding and abetting instructions.

Defendant also relies on People v. Perez (2005) 35 Cal.4th 1219 for the proposition that an aiding and abetting theory may not stand absent proof of a crime committed by a third party. This case does not help defendant, however. As noted above, the evidence was sufficient to permit the jury to conclude that defendant aided and abetted Huerta when she, with requisite knowledge and intent, paid for the box in which Huerta had placed the higher priced dye. Accordingly, there was proof--i.e., sufficient evidence to prove--Huerta committed the crime.

C. The Exclusion of Evidence

Two security agents were involved in defendants apprehension. One, Art Leos, was to testify at trial and one had moved out of the area. Neither worked for Savemart any longer, both having been discharged about six weeks after defendants arrest. Defense counsel indicated to the court that he intended to elicit information about the agents discharge for purposes of impeachment. Counsel said he thought the agents behavior in this case, were going to allege, was improper and show the reason they were fired was for the same behavior that they did in this particular case. The prosecutor objected. Defense counsel asked for an evidentiary hearing (see Evid. Code,  402, subd. (b)) to see more information about why they were fired, because I dont know enough about it myself. Maybe we could find out if it is relevant or not to this case. The court agreed to hold such a hearing.

At the hearing, a Savemart supervisor testified (by telephone) that the two agents had been discharged because they left the premises in pursuit of a shoplifter, which was strictly forbidden by company policy. Leos, the security agent who would be the prosecutions trial witness, testified that he ran outside after the shoplifter escaped, the other agent was pulling up in his car, and he told Leos to get in. Leos did not realize his partner was going after the shoplifter. The supervisor testified Leos otherwise had an unblemished record as an employee.

After the evidentiary portion of the hearing, defense counsel did not renew his request to use the information to impeach Leos and did not argue that the information now before the court was relevant. The trial court ruled that Leoss discharge from employment was really not relevant to the prosecution of this case.

On appeal, defendant contends the trial court abused its discretion in excluding evidence that the security agents had been fired for over-aggressively pursuing a petty theft suspect in an unrelated matter. She contends the jury was left with a deceptively rosy impression of Mr. Leos credibility.

Nothing in the proffered evidence tends to show Leos was untruthful or had falsely accused anyone of shoplifting. If anything, the proffered evidence might have enhanced Leoss credibility, since his termination provided a motive for bias against Savemart. In any event, Leoss testimony at trial was very limited and he often acknowledged that he had not seen defendant or Huerta actually place the more expensive dye in the wrong boxes. The proffered evidence would not have changed the jurys impression of the witnesss credibility (see People v. Frye (1998) 18 Cal.4th 894, 946) and the trial court did not abuse its discretion in excluding the evidence (Evid. Code,  352).

Disposition

The judgment is affirmed.

__________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

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CORNELL, J.

________________________________

GOMES, J.

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Analysis and review provided by La Mesa Property line Lawyers.

^[1] CALJIC No. 2.22 states: You are not required to decide any issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which you find more convincing. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.

CALIC No. 2.70 states: A confession is a statement made by a defendant in which [he] [she] has acknowledged [his] [her] guilt of the crime[s] for which [he] [she] is on trial. In order to constitute a confession, the statement must acknowledge participation in the crime[s] as well as the required [criminal intent] [state of mind].

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 a confession [or an admission], and if so, whether that statement is true in whole or in part.

[Evidence of [an oral confession] [or] [an oral admission] of the defendant not made in court should be viewed with caution.]