P. v. Spann

Filed 4/24/07 P. v. Spann CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas R. White, Judge. Affirmed.

David Christian Read, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Jason Spann was convicted of failing to stop at the scene of an accident resulting in death. (Veh. Code, 20001.) He contends the trial court erred in instructing the jury in the language of CALJIC No. 2.21.2, regarding a witness who is willfully false. Concluding that CALJIC No. 2.21.2 has been repeatedly upheld against the arguments raised by defendant, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 2004, at approximately 8:30 p.m., defendant was driving east on Avenue S in Palmdale. The road was undergoing construction, resulting in a reduced speed limit of 40 miles per hour and only one lane of eastbound traffic.

Sherman Slade was a pedestrian who apparently attempted to cross Avenue S outside of a marked crosswalk. He stepped in front of defendants car and was immediately struck. Slade was struck by the center of defendants car, slid up the hood, and smashed against the windshield. He was then thrown over the roof and trunk of the car and landed on the ground behind defendants car. Slade died from his injuries.

The car directly behind defendants vehicle was driven by William McCants. When McCants saw something thrown over defendants car, he slammed on the brakes, although he did not yet know what the object was. McCants stopped in the eastbound lane and exited his car to investigate. As he approached, McCants realized that the object was a body. He went back to his car and activated his hazard lights. Neil Smith had been driving behind McCants. He pulled his car off the road and came up alongside McCants.

The impact with Slades body had caused substantial damage to defendants car. There was a dent in the center of hood; the plastic moldings were broken off the front of the car; and there was a large hole in the windshield. Defendant pulled over some distance away from the accident. Defendant had not been driving alone; his brother, Ethan, had been sitting in the front passenger seat. Ethan got out of the car, walked a short distance back toward the accident scene, and then returned to the car. The car remained parked for a few minutes. Defendant had a criminal record and had been driving on a suspended license. He started the car and drove off, at approximately 60 miles per hour.

McCants and Smith had both observed these events, although they differed in the details. At McCantss suggestion, Smith followed defendants vehicle in order to obtain its license plate number. He was successful. At this point, neither McCants nor Smith had been aware that the impact with Slade had ripped the front license plate from defendants car, dislodging it at the scene. Los Angeles Sheriffs Department Deputy Frank Rothe ultimately identified defendant from the license plate, and found him at Ethans girlfriends house later that night.

Deputy Rothe spoke with defendant. Defendant initially told Deputy Rothe that the car had been parked in front of the house all day. Defendant represented that he had been home all day and discovered the damage to his car around 9:00 p.m. Defendant stated that nobody had driven the car all day. Deputy Rothe told defendant that his license plate had been found at the scene and witnesses saw his car there. Deputy Rothe further explained that the person that he hit was the one at fault in the collision, and if [defendant] continued telling . . . the same story, he would look like a liar. Defendant then changed his story. He told Deputy Rothe that he hit something when he was driving. Defendant explained that he did not know what he had hit, so he pulled over and got out of the car to investigate. Defendant told Deputy Rothe that he ran 100 yards back down the street, but saw nothing. Defendant told Deputy Rothe that Ethan had remained in the car the entire time. Defendant had speculated that perhaps someone had thrown a brick at his car.

At trial, defendant did not deny leaving the scene of the accident; he simply took the position that he had not known, at the time he left the scene, that a person had been injured. Defendant testified as follows: (1) after the accident, he pulled over as soon as he saw a place to do so; (2) he got out of the car and walked back 50 to 100 feet in search of an explanation; (3) he concluded someone had thrown a brick at the car or shot at him, so he returned to the car; (4) when he returned, he saw that Ethan had left the car and was standing near the trunk; and (5) fearing that he and Ethan had been attacked, he directed Ethan back into the car and drove away. Defendant also testified to a different view of his conversation with Deputy Rothe. Specifically, he testified that: (1) he had been asleep when Deputy Rothe came to the house, and was momentarily disoriented when he first spoke to the deputy; (2) he did not deny driving the car; (3) in his disorientation, he had answered no, when the deputy initially asked if he had been in an accident; (4) when his head cleared, he told Deputy Rothe exactly what had happened; (5) he had specifically told Deputy Rothe that Ethan had exited the car.

Defendant accused Deputy Rothe of lying on the stand, saying, Deputy Rothe was untruthful about just about everything he said. Defendant testified that Deputy Rothe made . . . up several of the statements he attributed to defendant. He also testified that McCants and Smith were either untruthful (something he considered highly possible) or just mistaken in their testimony that he had not left the car.

At the close of the evidence, the prosecution requested that the jury be instructed in the language of CALJIC No. 2.21.2 on a witness being willfully false. Defendant objected to the instruction. The trial court gave the instruction over defendants objection, on the basis that it was supported by the evidence, not significantly prejudicial, and not likely to mislead the jurors.

The jury found defendant guilty. Defendant was sentenced to the middle term of three years in prison. He filed a timely notice of appeal.

ISSUE ON APPEAL

The sole issue on appeal is whether the trial court erred in instructing the jury in the language of CALJIC No. 2.21.2. We conclude the instruction was not improper.

DISCUSSION

The trial court instructed the jury in the language of CALJIC No. 2.21.2 as follows: A witness, who is willfully false in one material part of his[^[1]] testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his testimony in other particulars.

Defendant first contends that giving this instruction constitutes error because the very act of giving the instruction implies that the trial court believes a witness has lied. This is incorrect. The jury was also instructed: (1) to consider all of the instructions as a whole (CALJIC No. 1.01); (2) that all instructions are not necessarily applicable (CALJIC No. 17.31); and (3) that discrepancies between the testimony of witnesses does not necessarily mean a witness should be discredited (CALJIC No. 2.21.1). Given these instructions, the jury could not possibly have assumed that the giving of CALJIC No. 2.21.2 meant that the trial court believed a witness had lied.

Second, defendant argues that giving the instruction implied that the court believed defendant had lied. The Supreme Court has rejected this contention. (People v. Millwee (1998) 18 Cal.4th 96, 159.) The instruction is neutrally phrased and not necessarily directed at the testimony of the defendant. (Ibid.) In any event, [t]o the extent the jury could reasonably infer defendant was not testifying truthfully in whole or part, he was not entitled to a false aura of veracity. (Id. at pp. 159-160.)

Third, defendant argues that, to the extent the jury applied the instruction to the testimony of a prosecution witness, the instruction impermissibly lowered the burden of proof to a mere probability of truth. This, too, has been rejected by the Supreme Court, on the basis that the targeted instruction says no such thing. (People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Hillhouse (2002) 27 Cal.4th 469, 493.)

Finally, defendant relies on dicta in People v. Rivers (1993) 20 Cal.App.4th 1040, to argue that the instruction should not be given when it affects the crucial testimony of a sole percipient witness. Here, defendant argues that he was the sole percipient witness to the key issue of his mental state. Rivers is wholly distinguishable. In Rivers, the witness to whom the instruction was obviously directed was the crime victim, who was the sole percipient witness to the robbery with which the defendant was charged. (Id. at pp. 1043-1045.) The court was concerned with whether, in this circumstance, the instruction suggested the victims testimony could be accepted based on a mere probability of truth and therefore lessened the prosecutions burden. The court ultimately concluded that, even though the instruction was applied to a prosecution witness who provide[d] the critical evidence against the defendant, (id. at p. 1045), there was no possibility of prejudice because there were, in fact, no material inconsistencies between the victims testimony and that of the only other witness. (Id. at p. 1046-1047.) The Rivers courts concerns regarding the lessening of the prosecutions burden of proof when the instruction is applied to a sole percipient prosecution witness are clearly inapplicable in this case, where defendant takes the position that he was the sole percipient witness.

In any event, the instruction was not necessarily directed at defendant. Defendant took the position that Deputy Rothe lied in his testimony, and also thought it highly possible that McCants and Smith has fabricated certain facts. The issue of whether any of the witnesses at trial were willfully false in their testimony was squarely presented, and the trial court did not err in instructing the jury on how to treat the testimony of such a witness.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KITCHING, J.

ALDRICH, J.

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^[1] There were no female witnesses.