P. v.
Filed 9/14/12 P. v. Berkley CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
BRAXTON GEORGE BERKLEY,
Defendant
and Appellant.
E053903
(Super.Ct.No.
FMB1000296)
APPEAL from the Superior
Court of
Bernardino County. John
P. Vander Feer, Judge. Affirmed as
modified.
Jerry D. Whatley and Beatrice C.
Tillman, under appointments by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Steve Oetting and Lise S. Jacobson, Deputy Attorneys
General, for Plaintiff and Respondent.
On June 26, 2010, a car containing defendant and his wife
passed a California Highway Patrol officer traveling at 85 miles per hour in an
area where the posted speed limit was 65 miles per hour. After passing the officer, defendant and his
wife pulled over because she felt sick, and they both exited the car. The highway patrol officer pulled behind the
car, approached defendant, and immediately determined that he was
intoxicated. Defendant was found to have
0.20 percent blood alcohol content. The
only issue at trial was whether defendant was driving the car at the time it
was seen by the officer. The jury
determined that he was and found him guilty of driving under the influence of
alcohol with a blood alcohol content greater than 0.08 percent.
Defendant now claims on appeal as
follows:
1. The
trial court violated his rights to due
process by instructing the jury on the fabrication of evidence (CALCRIM No.
371), which was not supported by the evidence.
2. Instruction
with CALCRIM No. 371 lowered the People’s burden of proof by instructing the jury
that they could convict based only on evidence that both defendant and his wife
fabricated evidence.
3. The
untimely disclosure of material evidence infringed on his right to present a
defense and to a fair trial.
4. His
sentence on driving with a blood alcohol content greater than .08 percent
should be stayed pursuant to Penal Code section 654.
We agree with the last contention
and will order the sentence modified.
Otherwise, we affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant found guilty
of felony driving under the influence of alcohol (DUI) (Veh. Code, § 23152,
subd. (a); count 1) and driving with a blood alcohol content of 0.08 percent or
greater (Veh. Code, § 23152, subd. (b); count 2). In a bifurcated court trial, after waiving
his rights to a jury trial, the trial court found as to both counts that
defendant had a prior DUI conviction within the meaning of Vehicle Code
sections 23550 and 23550.5. In addition,
the trial court found that defendant had suffered a prior felony conviction
(Pen. Code, § 667, subds. (b)-(i))
name="_ftnref1" title="">[1] and had served a prior prison term (§ 667.5,
subd. (b)) within the meaning of the three strikes law.
Defendant was sentenced to the upper
term of three years on count 1, doubled under the three strikes law, for a
total of six years. He was given one
additional year for the prior prison term and a concurrent term of six years on
count 2. Defendant received a total
sentence of seven years in state prison.
II
FACTUAL BACKGROUND
A. People’s
Case-in-Chief
On June 26, 2010, California Highway Patrol Officer Jesse Miller was
in a marked patrol car on Highway 62 in San Bernardino County using radar to
detect speeders. Around 12:45 p.m., he
observed a car driving toward him at a high rate of speed. The radar detector showed that the car was
moving at 85 miles per hour. The posted
speed limit was 65 miles per hour.
Officer Miller observed two people in the vehicle. He described the driver as a male, wearing a
blue shirt and a baseball cap. He later
identified him as defendant. The
passenger was a heavy-set woman.
The car slowed down after it passed Officer Miller and pulled over
before Officer Miller activated his lights.
Officer Miller pulled up behind the car, within 20 feet. Defendant’s wife, Linda Buck, exited the
passenger side door. Defendant exited
the driver’s side door and walked to the back of the car toward Officer
Miller. Officer Miller stated over the
public address system on his vehicle that defendant should stop where he
was. Buck was hunched over a bush 10 to
12 feet from the car.
Officer Miller approached defendant and asked, “What’s going on?†Defendant responded that he had been driving
his wife home when she got sick. Officer
Miller advised defendant that he had been driving 85 miles per hour. Defendant denied that he was driving that
fast.
Officer Miller smelled alcohol on defendant, but defendant denied that
he had been drinking. Defendant was
somewhat responsive to the initial questioning but became defensive when
Officer Miller asked him whether he had been drinking. Officer Miller noted while speaking with
defendant that defendant was swaying to the point that it appeared he might
fall over, his speech was slurred, and his eyes were red and watery, all signs
that he might be intoxicated.
Officer Miller performed a horizontal gaze nystagmus test, the results
of which were consistent with defendant’s being intoxicated. Defendant refused to take a preliminary
alcohol screening test or any other tests.
Buck stood near the car.
Officer Miller arrested defendant for DUI. Defendant told Officer Miller, “You don’t got
shit on me. You never saw me
driving.†Defendant did not say he was
not driving.
Officer Miller then advised Buck that a tow truck would come to get
the car and that another officer, Dennis Carr, would provide her with
transportation. Officer Miller asked her
why she had not been driving the car, and she responded it was because she was
sick.
When Officer Carr arrived at the scene, defendant was agitated and
yelling obscenities. He was also yelling
that Officer Miller did not see him driving.
Defendant did not say that his wife was driving. Officer Carr waited with Buck for the tow
truck and drove her to meet someone whom she had called to pick her up. At no time did Buck tell Officer Carr that
she had been driving the car when Officer Miller pulled them over. It did not appear to Officer Carr that Buck
had been drinking.
While in the patrol car, Officer Miller advised defendant that he
needed to submit to a blood or breath test once they arrived at the highway
patrol station. Defendant responded that
he did not want to talk to him. During
the ride, when Officer Miller reiterated that when they got to jail he would
have to take a blood or breath test, he responded, “I’m not taking any
test.†When Officer Miller advised
defendant that they would have to draw his blood even if he did not consent, he
responded, “Nobody is taking my blood.â€
When they arrived at a local jail, Sergeant Karen Barksdale, who was
Officer Miller’s supervisor, met with Officer Miller and defendant. Another officer, Joan Griffin, was also
present. Defendant told Sergeant
Barksdale that Officer Miller had stopped him for no reason and that he had
just been driving his wife home.
Defendant was advised that he would have to submit to a blood
test. Defendant did not consent to the
test but advised the officers that he would not resist. Both Sergeant Barksdale and Officer Griffin
noted that defendant appeared intoxicated.
At 1:38 p.m., a phlebotomist drew defendant’s blood. A test of defendant’s blood revealed that he
had a blood alcohol content of 0.20 percent.
A criminalist testified that, based on his blood alcohol content and the
observations by Officer Miller, defendant would have been impaired to drive a
car.
Defendant eventually apologized to Officer Miller for the things he
had said to him. He told Officer Miller
he was just mad because everyone else had been driving as fast as he was when
he got pulled over. Defendant never
stated during the entire booking process or when he was arrested that Buck had
been driving the car.
Four recorded phone calls between defendant and Buck while he was in
jail were played for the jury. They
discussed during these phone calls that Buck would testify at his trial that
she had been driving the car.
B.
Buck testified that she had been
driving that day. She suffered from
kidney disease and had pulled the car over to the side of the road because she
felt sick. She left the car to
vomit. Defendant returned to the car to
get her a towel when Officer Miller pulled up behind the car. Buck claimed Officer Miller approached their
car after they had been stopped for about three or four minutes. She heard defendant tell Officer Miller that
he had not been driving the car. Officer
Miller never asked her if she had been driving.
Buck was afraid to testify because
she had a warrant for her arrest for driving on a suspended license. In their jail phone conversations, defendant
was encouraging her to come to court to testify because he knew she was
afraid. Buck denied that she and
defendant had fabricated the story that she had been driving that day.
III
CALCRIM NO. 371
Defendant essentially attacks
instruction to the jury with CALCRIM No. 371 on two grounds. He insists the evidence presented in this
case did not support the instruction. In
addition, he claims that the instruction lowered the People’s burden of proof
allowing the jury to convict him if they found that both defendant and his wife
fabricated evidence.
A.
At trial, the jurors heard telephone
conversations between defendant and Buck while he was in jail. Relevant to the issue here, defendant
mentioned several times to Buck that she would testify on his behalf that she
had been driving that day. During their
first recorded jail conversation, defendant told Buck that he wanted her to be
present to talk with his lawyer. During
the conversation, defendant said to Buck, “You know, you can just tell him we
was on the side of the road and we was gunna switch. You know what I mean. That’s it.
Cause I don’t know if it’s gunna work.
Cause they gunna be like, why is he lying on you if I was driving, you
was driving, whatever. He couldn’t see. But we was on the side of the road. That’s a
good thing. Well anyway, we’ll see
what’s going on.â€
In the second conversation, Buck
asked if defendant had spoken with his lawyer.
Defendant responded that he was working on a witness list. He said, “I haven’t decided about the driver
yet but we will talk to you and do it later.â€
In a third conversation, they
discussed that he had just returned from court.
He told Buck, “Oh no. They
talking crazy on that deal. So I just
told them, we just gunna go to trial.
And have you come in and tell them about when you was driving and we
gunna get, we was on the side of the road, same thing we told the other
guy.†Buck responded, “Oh. Ok.â€
Defendant also said to her, “So I told them when you got sick and pulled
over and I was on the side with you and that’s when, that’s when this fool
pulled up. So you know what’s going on
when you talk to him.â€
Defendant asked Buck if she had
received a letter that he wrote her, and she responded that she had not. He told her, “[I]t’s important. Cause dude gunna get in touch with you. But we just gunna tell him the same thing we
told the paid lawyer. That you was
driving and you got sick and pulled over and that’s when they got me. I talk to you more about it.â€
In a final conversation, Buck stated
that she had not been contacted by the lawyer’s investigator. Defendant said, “Oh. You just want to tell the same story that we
told the other lawyer.†Defendant told
Buck that it was important that she testify and talk to the investigator. Defendant again said to Buck, “Yeah. So basically it’s same thing that we told the
other court appointed attorney. Is that,
you know, how you drove up there and you was driving back, you didn’t feel
good, and we was on the side of the road, you was throwing up.†Buck responded, “Babe, please don’t keep
talking about it. I know.â€
The trial court instructed the jury
with CALCRIM No. 371 as follows: “If the
defendant tried to create false evidence or obtain false testimony, that
conduct may show that he was aware of
his guilt. If you conclude that the
defendant made such an attempt, it is up to you to decide its meaning and
importance. However, evidence of such an
attempt could not prove guilt by itself.
[¶] If someone other than the
defendant tried to create false evidence, provide false testimony or conceal or
destroy evidence, that conduct may show that the defendant was aware of his
guilt, but only if the defendant was present and knew about that conduct or if
not present, authorize the other person’s actions. It is up to you decide the meaning and
importance of this evidence. However,
evidence of such conduct cannot . . . prove guilt by
itself.†Defendant objected to the
instruction on the ground that there was no evidence supporting that either
defendant or Buck had fabricated evidence.
The jury also received other instructions that if they found defendant
had made false or misleading statements relating to the charged crime, such
statements might show his consciousness of guilt, and the jury could consider
them in determining his guilt, but such statements could not prove his guilt by
themselves.
B.
CALCRIM No. 371 is properly given
where there is some evidence in the record that, if believed by the jury,
sufficiently supports an inference of consciousness of guilt. (See People
v. Coffman & Marlow (2004) 34 Cal.4th 1, 102 [concerning CALJIC Nos.
2.04
2.04 & 371 can be given if the defendant’s efforts to fabricate evidence is
indicative of his consciousness of guilt].)
The instruction makes “clear to the jury that certain types of deceptive
or evasive behavior on a defendant’s part could indicate consciousness of
guilt, while also clarifying that such activity was not of itself sufficient to
prove a defendant’s guilt, and allowing the jury to determine the weight and
significance assigned to such behavior.
The cautionary nature of the instructions benefits the defense, admonishing
the jury to circumspection regarding evidence that might otherwise be
considered decisively inculpatory.
[Citations.]†(
1164, 1224.) Where there is no evidence
to support the instruction, “at worst†it is “superfluous,†and, where the
evidence of guilt is strong, reversal is not warranted. (People
v. Pride (1992) 3 Cal.4th 195, 248-249; see also Jackson, at p. 1225.)
In reviewing the four conversations
between defendant and Buck, the evidence reasonably supports that they were
fabricating a story. Defendant first
stated that he had not “decided†who was driving and would let Buck know. As the trial approached, he became more and more
agitated and expressed to Buck that she had to testify on his behalf. The jury could reasonably infer that if Buck
had in fact been driving that night, there would be no need for defendant to
continually tell Buck how she should testify.
Moreover, on the night of the incident, neither defendant nor Buck
stated that she was driving the car.
This gives more credence to the People’s theory that this was fabricated
evidence.
Defendant claims that the evidence
should be viewed in the light that defendant was only trying to convince Buck
to fix her warrant and testify for him because she was reluctant to
testify. Certainly one can argue such
interpretation. In fact, defense counsel
maintained in closing argument that the discussions between Buck and defendant
were because she did not want to come to court to testify. But the evidence also could be interpreted to
show that defendant was asking her to fabricate evidence and she agreed. It was up to the jury to decide if the
evidence was fabricated based on the language in the instruction.
Defendant alludes to the fact that
the instruction is circular, violates the federal Constitution, and creates an
improper inference in favor of the People’s case. The California Supreme Court has rejected
that CALJIC No. 2.04, the predecessor of CALCRIM No. 371, violated
an irrational inference. (
621; People v. Guerra (2006) 37
Cal.4th 1067, 1137, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Defendant also claims that if the
jury believed that both defendant and Buck fabricated the story, they could
find him guilty, under on the language of CALCRIM No. 371, based on this
attempt to fabricate evidence alone. He
claims that “[r]ead literally, evidence of only one circumstance ‘cannot prove
guilt by itself.’ But if the jury found
both circumstances to have been proven ‑‑ then the
cautionary admonition did not apply.â€
Defendant never objected to the
instruction below on these grounds and did not seek a modification of the
standard instruction. “‘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.]â€
(People v. Hudson (2006) 38
Cal.4th 1002, 1011-1012.) If defendant
felt that the instruction was erroneous, he should have requested a
modification.
“In reviewing a claim that the
court’s instructions were incorrect or misleading, we inquire whether there is
a reasonable likelihood the jury understood the instructions as asserted by the
defendant.†(People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.) We consider whether, in the context of the
entire charge, there is a reasonable likelihood that the jury misconstrued or
misapplied its words. (
1009, 1016-1017.) It is inconceivable
that the jury interpreted the instruction as argued by defendant. To the contrary, they were advised that they
could not convict defendant based only on false evidence. They were given an additional instruction
(CALCRIM No. 362) regarding false statements and testimony by defendant that
advised the jury they had to find evidence other than the false statements in
order to convict him. CALCRIM No. 371
was appropriately given in this case.
We also conclude that even if the
trial court erred by giving CALCRIM No. 371, any error was harmless. Although defendant claims that his rights to
due process and fair trial were implicated, an error in giving instructions is
evaluated under People v. Watson (1956)
46 Cal.2d 818, 836, that is, reversal is warranted if it appears reasonably
probable the defendant would have obtained a more favorable outcome had the
error not occurred.
The California Supreme Court has
held that “[t]he inference of consciousness of guilt from willful falsehood or
fabrication or suppression of evidence is one supported by common sense, which
many jurors are likely to indulge even without an instruction.†(People
v. Holloway (2004) 33 Cal.4th 96, 142.)
The instruction here admonished the jury that even if they found that
defendant had fabricated evidence, they could not convict him on that basis
alone. The instruction benefitted
defendant by requiring other supporting evidence.
Moreover, there was ample evidence
that defendant was driving the car, and only defendant’s and Buck’s
self-serving statements stated otherwise.
Officer Miller clearly identified defendant as the driver of the
car. Defendant never denied driving on
the day he was arrested, he made statements about driving Buck because she was
sick, and he told Officer Miller that he was angry that he had been stopped
when other drivers were also speeding.
Before her trial testimony, Buck had never said she was driving that
day. There was no dispute that defendant
was under the influence of alcohol.
Based on the foregoing, even if the jury had not been instructed with
CALCRIM No. 371, the results of the trial would have been the same.
IV
DISCLOSURE OF EVIDENCE BY THE PEOPLE
Defendant contends that the late
disclosure of statements by Sergeant Barksdale and Officer Carr impacted his
ability to present a defense.
A.
On November 8, 2010, in a first
trial on these charges, defendant moved for a mistrial based on statements made
by Officer Miller during trial that were not contained in the police report or
disclosed to defendant prior to trial.
Defendant also complained about testimony from Sergeant Barksdale and
Officer Carr (who had not testified yet but who were on the People’s witness
list) who did not prepare investigative reports. Defendant understood that all of the
statements went to his defense that he was not driving at the time of the
incident. The People argued that, at the
time Officer Miller wrote his report, he had no idea that the identity of the
driver would be an issue in the case.
Officer Miller did not emphasize the point in his report as a
result.
Further, Officer Miller’s report
mentioned that Sergeant Barksdale and Officer Griffin were present at the jail
when defendant arrived. Their statements
about whether defendant denied he was driving that night were not a surprise. The prosecutor maintained that he only became
aware of Sergeant Barksdale’s statements a few days prior to trial. The trial court believed that there was a
violation of section 1054 because not all of the defendant’s statements were
disclosed to the defense prior to trial.
These statements were disclosed after defendant had committed to a no‑driving
defense. Officer Miller told things to
the prosecutor at the preliminary hearing that were not told to the defense
until trial. Since all of the
information was not given to defendant, and he had committed to a defense, the
trial was deemed fundamentally unfair. A
mistrial was declared.
Prior to the instant trial,
defendant brought a motion in limine to exclude the evidence that prompted the
mistrial in the prior case, except for statements by Officer Miller. The parties then discussed testimony that
would be forthcoming from Officer Griffin, Officer Carr, and Sergeant
Barksdale. The prosecutor proffered that
he had spoken with all three officers that day.
He had received a statement from Officer Carr that was disclosed to
defense counsel and would not be reduced to writing. Further, the statements of Sergeant Barksdale
were sent to defense counsel but no report had been made. Statements by Officer Griffin were only given
to defense counsel orally. The trial
court recommended that all of the statements be reduced to writing so that
neither defense counsel nor the prosecutor became witnesses.
Defense counsel argued that under
section 1054.1, he had to be provided with evidence prior to trial. In addition, it was a due process
violation. Defense counsel had a
“general idea†as to what the statements would be, but he did not have
specifics in order to respond to them.
He sought to exclude the testimony of all three witnesses in their entirety. The prosecutor disagreed, arguing that
section 1054.1 only required disclosure of written or recorded statements. He had provided the statements of the
officers to defense counsel in a timely manner.
The trial court denied the motion to
exclude without prejudice but stated, “When you get the actual summaries, you
could read, and I believe it needs to be readdressed outside the presence of
the jury.†The prosecutor assured the
trial court he would try to get written summaries from the officers to defense
counsel as soon as possible.
Sergeant Barksdale testified that
she submitted a written report on February 9, 2011. During her testimony, she admitted that she
had not written the report until asked to do so by the prosecutor. There was no objection to the summary
report. Officer Carr testified that he
had written a report a week prior to trial.
He did not take any notes at the scene.
There was no objection to the summary report or any further objection to
the testimony.
B.
Defendant contends that the late
disclosure of the testimony of Officer Carr and Sergeant Barksdale violated his
federal constitutional rights to due process and to present a defense pursuant
to Brady v. Maryland (1963) 373 U.S.
83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady). “In Brady
. . . the United States Supreme Court held that a defendant’s right to due
process is violated when ‘favorable’ evidence that has been ‘suppressed’ by the
prosecution is ‘material’ to the issue of guilt or punishment.†(In re
Pratt (1999) 69 Cal.App.4th 1294, 1312.)
“The Brady disclosure
obligation encompasses both impeachment and exculpatory evidence, and exists
regardless of whether the defendant makes a specific request for the
information.†(People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471.) “‘Materiality includes consideration of the
effect of the nondisclosure on defense investigations and trial
strategies. [Citations.]’†(People
v. Verdugo (2010) 50 Cal.4th 263, 279.)
Evidence is material under
probability that the result of the proceeding would have been different had the
evidence been disclosed. (
917-918.)
The statements here were disclosed
prior to trial. Moreover, the evidence
was inculpatory, not exculpatory.
Additionally, it did not constitute impeachment evidence. There is no indication that Sergeant
Barksdale or Officer Carr could be impeached with statements that defendant
told them he was not driving or that Buck said that she was driving. Their testimony was entirely consistent. This evidence was not material to the
defense. The only defense in this case
was that defendant was not driving.
Regardless of the statements by Officer Carr or Sergeant Barksdale, he
had no choice but to claim he was not driving.
Even if the People could be considered to have untimely disclosed this
evidence, it was not material. No
violation under the federal Constitution occurred in this case.
Moreover, under the state standard
of section 1054.1, reversal is not required.
The People have a statutory duty pursuant to section 1054.1 to disclose
to the defense at least 30 days before trial, or immediately if discovered
within 30 days of trial, certain categories of evidence, including all relevant
evidence that is “‘“in possession of the prosecuting attorney or [known by] the
prosecuting attorney . . . to be in the possession of the investigating
agencies.â€â€™â€ (People v. Verdugo, supra, 50 Cal.4th at pp. 279-280; see also §§
1054.1 [listing disclosure requirements]; 1054.7 [setting deadlines on when
such information must be disclosed].) If
it is shown that any party has failed to comply with the statutory disclosure
requirements, the trial court “may make any order necessary†to enforce those
provisions, “including, but not limited to, ordering immediate disclosure,
[initiating] contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continu[ing] the matter, or any
other lawful order. Further, the court
may advise the jury of any failure or refusal to disclose and of any untimely
disclosure.†(§ 1054.5, subd. (b); see
also Verdugo, at p. 280.)
Here, the People made defendant
aware of the statements by Officer Carr and Sergeant Barksdale. The trial court immediately ordered that the
statements be reduced to writing and that the writing be given to
did not request that the jury be admonished that there was a late disclosure of
evidence pursuant to section 1054.5, subdivision (b). Under the circumstances, there were no
violations of section 1054.1 et. seq.
Moreover, reversal is required only
where it is reasonably probable that absent the disclosure violation the
verdict would have been more favorable to the defendant. (People
v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, disapproved on another
point in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) As set forth
in detail, ante, the statements of
Officer Carr and Sergeant Barksdale were not favorable to defendant. Further, there is nothing in the record to
support that defendant was ineffective in cross‑examining the officers
due to what defendant claims was late disclosure. Reversal is not warranted under either the
state statute or the federal Constitution.
V
PENAL CODE SECTION 654
Defendant contends that his sentence
on count 2, which was ordered to run concurrent to the sentence on count 1,
should have been stayed under section 654.
The People agree that the sentence should be stayed.
At the time of sentencing, the trial
court stated that it was going to run count 2 concurrent to the sentence on
count 1. It stated, “[T]hat will run concurrent. I don’t think it’s 654 because it’s different
allegations. It’s not driving under the
influence. Driving with a .08 you don’t
have to be under the influence. So that
whole term will be concurrent . . . .â€
Section 654 is applicable where defendant
commits multiple crimes as part of an indivisible course of conduct and bars
multiple punishment when a defendant is convicted of two or more offenses that
are incident to one objective. (
501, 507.)
The convictions here were based on a
single act of driving. As such, section
654 is applicable. (See
Cal.App.4th 851, 857; see also People v.
Duarte (1984) 161 Cal.App.3d 438, 447-448.)
VI
DISPOSITION
The judgment is modified to reflect
that defendant’s six-year sentence on count 2 is stayed. The superior court is directed to amend the
minute order from sentencing to reflect the modification and to prepare an
amended abstract of judgment to be forwarded to the California
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] CALJIC
No. 2.04 (Fall ed. 2006) provided as follows:
“If you find that a defendant [attempted to] [or] [did] persuade a
witness to testify falsely or [attempted to [or] [did]] fabricate evidence to
be produced at the trial, such conduct may be considered by you as a
circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by
itself to prove guilt and its weight and significance, if any, are for you to
decide.â€
