P. v. Boyette

Filed 6/17/08 P. v. Boyette CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

Travis Christopher Boyette was convicted of possession of cocaine base for sale. He contends the trial courts jury instructions should have included a specific admonition that witnesses conduct could reflect on their credibility. Boyette argues that such an admonition was relevant to this case because on the day before trial, the two police officers involved in his arrest discussed the facts of the case via telephone, and, as a consequence, one of them changed his testimony from that which he had given at the preliminary hearing. Boyette asserts that by failing to instruct the jury it could consider this telephone conversation as evidence bearing upon the officers credibility, the court violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution. We affirm the judgment.

Although we agree that in the circumstances of this case, a specific instruction the jury could consider conduct as part of its evaluation of the witnesses credibility would have been appropriate, we nonetheless conclude that the error, if any, was harmless. Despite the courts omission of any specific reference to conduct, it did instruct the jury that it could appropriately consider anything bearing on credibility. Counsel extensively discussed the phone calls effect on the officers credibility as part of their arguments to the jury, and the instructions given clearly directed the jury to consider those facts.

FACTS

Boyette, along with his codefendant Robert Weller, was charged with possession for sale of cocaine base (Health & Saf. Code,  11351.5) and the sale or transportation of cocaine. (Health & Saf. Code,  11352, subd. (a).)

In a Health and Safety Code section 1538.5 motion that took place on June 12, 2006, Officer Raul Mayorga testified. He said that on May 4, 2006, at approximately 2:50 in the afternoon, he and fellow Officer Abelardo Oropeza drove an unmarked van to the intersection of First Street and Grand Avenue in Santa Ana. While waiting to make a left turn, they noticed a man later identified as Weller near a service station. Weller talked to a white male, approximately 40 years old, for a few seconds, handed him an object, and then walked away. The officers turned and parked the van in the parking lot behind the station to monitor Weller, whom they believed had just participated in a drug transaction. According to Mayorga, Weller walked to a tan Kia parked behind the station. Another man, later identified as Boyette, approached Weller as he stood by the car. Weller then sat sideways in the car, pulled up his pant leg, took a bag from his sock, and then handed the bag to Boyette.

A third man, Fernando Amaro Hernandez, walked toward Boyette and Weller. Boyette met Hernandez a few feet away from the car, and then reached into the bag Weller had provided him and gave part of its contents to Hernandez. The officers dispatched marked police cars; Hernandez saw them first and whistled an alert to Boyette and Weller. The men scattered in different directions, Hernandez and Boyette on foot, Weller riding a bicycle.

Mayorga explained he detained Hernandez and placed him in a squad car, but did not find any contraband on him. After running a background check and finding nothing, Mayorga took Hernandez out of the car. He was about to release Hernandez when another officer noticed a bag on the floorboard below where Hernandez had been sitting. Mayorga then talked to Oropeza, who had pursued Boyette. Oropeza indicated Boyette threw two bags before he was detained, and Mayorga saw them lying on the ground. Boyettes bags were later found to contain 2.4 grams of cocaine base, and Hernandezs bag contained cocaine.

Both Boyette and Weller were bound over in trial, which began four months later on November 15, 2006. The day before trial, Oropeza called Mayorga to go over with [him] the circumstances of what he recalled in this case from the time [they] were stopped at the intersection making a left-hand turn, until the time that the defendants were arrested and taken away.

Oropeza testified first at trial. He said while the van he drove was stopped at the intersection, he noticed Weller riding a bicyclein circles in the service stations parking lot. Weller briefly spoke to a white male, approximately 40 years old, and then walked with him to the back of the store. Oropeza steered the van into the service station, drove around it, and parked behind the store. Weller was observed handing the man an object, then rode his bicycle to the tan Kia, where Boyette was already standing.

Oropeza explained that while Weller and Boyette were talking, Hernandez approached. Weller walked to Hernandez, spoke with him for a few seconds, returned to the car, and Oropeza saw him take a bag from his sock, and give it to Boyette. Boyette then met Hernandez a few feet away from the car, removed part of the bags contents and handed it to Hernandez. When the police cars were dispatched, Hernandez whistled, and the men scattered. Oropeza exited the van and detained Weller, who threw two bags, later determined to contain cocaine base, on the ground.

On cross-examination, Boyette asked Oropeza why he had testified to personally seeing Boyette remove the bag from his sock when the police report said it had been Mayorgas observation. Oropeza replied he had personally seen it, Mayorga was also watching, and commenting about it as they watched, so he noted in his report that Mayorga had seen, but just didnt note his own observation. He claimed to have made similar omissions in several reports over the years.

Mayorga then testified. He said while waiting in the left turn lane, he noticed Weller sitting on a bicycle and talking to the unidentified white man. Weller appeared to give something to the man, and then they walked behind the service station. The officers van followed them. When the van got there, the two men were standing face-to-face, and the white male was showing Weller what he had in his hand, and Weller pointed at it. There was another hand-to-hand exchange, and the man left. Mayorga believed he had just seen a drug transaction, but the white male had been unsatisfied with what he initially received, hence the second exchange. Mayorga testified that Weller then walked to the tan Kia, and Boyette stood nearby on the opposite side of a retaining wall.

Boyette then approached Weller at the Kia and they talked; soon Hernandez approached. Weller sat sideways in the car, pulled up his pant leg, and pulled out a bag from his sock. He then handed the bag to Boyette, who met Hernandez a few feet from the car, took out part of its contents and gave it to Hernandez. Police cars were dispatched; Hernandez whistled when he saw them, and the men scattered. Mayorga testified he detained Hernandez, and placed him in the squad car. Another officer discovered a package of what was later confirmed to be cocaine on the floorboard below where Hernandez had been sitting, and Hernandez was arrested.

Under cross-examination by Boyettes counsel, Mayorga said he could not remember whether Weller was still on his bicycle when he spoke with the white male. He then said he believed Weller rode his bike from the back of the service station to the Kia. Counsel asked Mayorga four times whether Hernandez spoke with Weller before Weller sat in the Kia, or afterward. Mayorga repeatedly stated he could not remember, but knew Weller and Hernandez spoke at some point. However, when counsel repeated the facts Mayorga had testified to, Mayorga interrupted him and emphatically stated Hernandez and Weller spoke before Weller took the bag from his sock. Counsel then asked to have the record reread to emphasize the inconsistency between Mayorgas claimed inability to remember and his sudden assertion he did remember. The court refused because [i]t was over a long period of time the question was reasked. Its the courts recollection lets just save some time, that the officer did indicate he wasnt sure whether Mr. Weller sat in the car prior to contacting Mr. Hernandez or after.

When Wellers counsel cross-examined, Mayorga admitted discussing the case with Oropeza the day before trial. When asked why, he said Because [Oropeza] can remember things that I didnt. And he wrote the [police] report. If I would have wrote the police report it probably would have been a little different. Mayorga also acknowledged that his trial testimony about the extent of the transaction Weller had with the white male, and his testimony about driving around the service station, contradicted his pretrial testimony. When asked why his testimony had changed, Mayorga said now after speaking with [Oropeza] we reviewed it and I do recall something different.

Boyette did not testify, but moved to dismiss on the ground the officers credibility had been damaged to the extent the case should not be submitted. The court denied the motion.[1]

Weller then testified in his own defense. He said he met Hernandez in the service station parking lot, and they both walked to the tan Kia, where Boyette was already sitting in the front seat. Boyette exited the car and the three of them discussed the bicycle in Wellers possession, which he had borrowed from Boyette. Weller sat in the car to scratch his foot because he had a bad case of athletes foot and had a rash on [his] ankle. Weller then saw a person with whom he wanted to speak. He began riding the bicycle away, but the police arrived and stopped him. They patted him down and emptied his pockets, then left. Weller remained in the area, and the police soon returned, patted him down again, and put him in the squad car. Weller talked to one of the officers and denied having drugs; the officer responded by punching him on the side of the face.

When the court gave the jury instructions, it explained the elements of the charges, then turned to credibility. It instructed the jury pursuant to CALCRIM No. 226, explaining to the jury that You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. . . .[] In evaluating a witnesss testimony you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.

CALCRIM No. 226 then lists 14 factors the jury may consider in assessing credibility. Eight of these factors, including evaluations of a witness motive, perception, and memory, are considered standard elements of the instruction, while the remaining six factors, such as a witness admission that he lied, may be stricken if irrelevant to the case.

Here, the court read to the jury all of the standard credibility factors, as well as two of the additional relevance-based ones, before stating, sua sponte, the next line, counsel, doesnt apply, so Im going to strike it out. And the following line, as well.

Unfortunately, the court actually omitted all four of the remaining factors listed in CALCRIM No. 226, including that the jury could properly consider whether a witness had engaged in . . . conduct that reflects on his or her believability. (Emphasis added.) Instead, the court immediately proceeded to read the concluding portion of CALCRIM No. 226, informing the jury, among other things, that it should not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. . . .

At closing argument, the prosecutor conceded she was not real thrilled with the way Officer Mayorga testified, admitting he let himself get tripped up during cross-examination. She argued the inconsistency was due to misrecollection, however, not any improper collaboration between Mayorga and Oropeza. She also argued police officers who lie will not have their reports believed, so they are always motivated to tell the truth. Finally, she said if the officers had collaborated prior to trial as defense would want the jury to believe, their testimony during trial would have actually been more consistent.

In his closing, Boyettes counsel repeatedly accused the officers of lying. He emphasized that Mayorga could not remember whether Hernandez had spoken with Weller before or after getting into the car until after counsel had mentioned Wellers getting the drugs from his sock. Counsel also stated he was surprised when Officer Mayorga acknowledged that Officer Oropeza recalled some things that I didnt. Counsel asserted that Officer Mayorga could never actually admit he did not remember most of what Oropeza discussed, and suggested to the jury that is the most reasonable inference you can take from the more measured concession Mayorga had made.

Wellers counsel also argued I dont think you can reach any conclusion other than [the officers] lied. He flatly accused Oropeza of calling Mayorga on the telephone before trial for the purpose of collusion: Who is the one who made the phone call before trial? To talk to the other one? What the heck is Oropeza doing that for? He has got no business calling up Mayorga. Nobody asked him to do that. . . .[] . . . [] I never, I didnt even think of the possibility that Oropeza was trying to get to [Mayorga] before they even got down here and talked to the prosecutor [to] make sure that Mayorga had his story straight. [] But thats what happened.

Wellers counsel also showcased the discrepancies between Mayorgas testimony at the pretrial hearing and the trial, noting the latter was a lot more like what Officer Oropeza said. Then he questioned the veracity of Oropezas claim he had seen Weller hand something to Boyette, because the police report reflected it was Mayorga who had seen it. Counsel suggested that Oropeza had testified contrary to the police report as a result of the improper phone call. Counsel reminded the jury of the courts instruction that if it found part of a witness testimony to be untrue, it could ignore everything that witness said, and recommended that the jury do so with respect to both officers testimony.

The jury convicted Boyette of count one, possession for sale of cocaine base, but not guilty of count two, sale or transportation of cocaine base. He was sentenced to a total of nine years in prison.

I

Boyette contends the trial judge erred in instructing the jury because although it did instruct pursuant to CALCRIM No. 226, it omitted, without warning, the portion of the instruction which informed the jury it could consider the other conduct of witnesses in assessing their credibility. Boyette, argues that conduct instruction was highly relevant to this case, due to the fact the two police officer witnesses talked to each other on the telephone on the day before trial, with the specific purpose of going over their proposed testimony. Boyette argues this omission violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution.

The prosecution argues that Boyettes contention is waived, because he failed to specifically object to the omission at trial. However, the prosecutions authority for that assertion, People v. Flood (1998)18 Cal. 4th 470, is a case in which the court actually considered appellants claim of instructional error, despite appellants failure to object at trial.

In any event, even assuming the prosecution had cited different authority, we would not be inclined to find a waiver in the circumstances of this case. Here, the court struck out four of the factors included in CALCRIM No. 226, without advance warning, and after stating it was omitting only two. Moreover, it never actually identified the provisions it was omitting. Under these circumstances, we cannot conclude the court provided Boyette a reasonable opportunity to object, and we believe it would be unduly harsh to treat the matter as waived.

Boyettes contention is the court erred in failing to expressly state to the jury that it could consider other conduct that reflects on [a witnesss] believability as part of its rendition of CALCRIM No. 226. Although that particular factor is intended to be given only if relevant to a particular case, and there is no clear definition as to exactly what other conduct is to be considered relevant,[2] we agree that such an instruction would seem appropriate here.

The fact that two police officers had a private telephone conversation to review the facts of an arrest, and discuss the substance each others recollection, may be entirely innocent a good faith attempt to refresh those recollections. But such conduct is also consistent with an attempt at improper collusion. The jury would be entitled to draw such an inference, especially in light of the fact that Mayorgas testimony actually did change in some respects between the preliminary hearing and the trial.

However, even assuming the conduct instruction was specifically relevant here, its omission does not automatically compel the conclusion the courts instructions, taken as a whole, were inadequate. CALCRIM instructions are strongly encouraged and recommended . . . unless . . . a different instruction would more accurately state the law and be understood by jurors. (Cal. Rules of Court, rule 2.1050.) However, although pattern jury instructions are prepared by distinguished legal scholars and provide a valuable service to the courts, they are not the law and are not binding. (People v. Mojica (2006) 139 Cal.App.4th 1197, 1204.)

As Boyette acknowledges, the trial courts essential obligation is to give instructions . . . that are necessary for the jurys understanding of the case. [Citation.] (People v. Wader (1993) 5 Cal.4th 610, 645.) Thus, the issue of instructional sufficiency turns on whether it appears the jury was adequately informed as to how it should assess the credibility of the witnesses in this case. [A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in . . . context. [Citation.] (People v. Haskett (1990) 52 Cal.3d 210.)

Here, although the court did not specifically mention witness conduct, it did admonish the jurors that [i]n evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. (Emphasis added.) And of course, the courts instructions certainly did nothing to dissuade the jury from considering the phone call. In our view, that was probably sufficient to ensure the jurors considered the officers phone call in its assessment of their credibility. To put it simply, the fact that two witnesses made a special effort to privately review their testimony on the eve of trial is a pretty obvious factor to consider in assessing the believability of their testimony especially when attorneys for both sides deal with it at length.

Whether the jury might consider such evidence as suggesting the witnesses went out of their way to ensure accuracy, or instead to obfuscate, cannot be guessed here. But we would certainly be surprised if it was not considered at all. And in considering it, the jury was adequately instructed that they were to take into account anything they did to prove or disprove the officers testimony. Consequently, when considered as a whole, we cannot conclude the courts instructions were inadequate.

II

Moreover, even if we had deemed the courts instructions inadequate in this case, such an error would not support a reversal of the judgment unless we also conclude, in light of the entire record, that the inadequacy was prejudicial to the outcome of the trial. (People v. Fudge (1994) 7 Cal.4th 1075, 1110.) As explained in Fudge, one of the factors to be considered in assessing likely prejudice is whether the issue omitted from the instructions was addressed in counsels closing arguments. Although counsels arguments are not a substitute for a proper jury instruction, . . . detailed argument supports [a] conclusion that the error in refusing the instruction was harmless . . . . [Citation.] (People v. Fudge, supra, 7 Cal.4th at p. 1111.)

In this case, counsel for both Weller and Boyette forcefully attacked the police officers testimonial inconsistencies on cross-examination, and Officer Mayorga actually admitted that the changes in his testimony were due, at least in part, to his pretrial discussion with Oropeza.

During closing argument, the officers credibility was such an obvious ground for dispute that the prosecutor felt it necessary to acknowledge, up front, that she was not happy with Mayorgas testimony. She also felt compelled to deny the officers were guilty of collusion before any other counsel had yet had the opportunity to assert they were.

Once counsel for Boyette and Weller were given their turns, they forcefully, and repeatedly, accused the officers of lying, and explicitly portrayed the pre-trial phone call as an improper attempt by the officers to coordinate false testimony. The prosecutor made no objection to that line of argument, and the court never suggested to the jury that it would be improper to consider it.

Based upon this record, we cannot conclude it would have made any difference to the outcome of the case if the court had expressly instructed the jury it could consider the officers conduct in assessing their credibility. Even assuming the jury might not have recognized the potential significance of the officers pretrial phone call on its own and we believe it almost certainly would have that significance was laid out explicitly by defense counsel during closing argument, and offered to the jury, without objection by either the prosecutor or the court, for its consideration. To the extent the jury was interested in considering the phone call as evidence bearing on credibility, we are quite confident it did so.

Because the instructional error, if any, was harmless beyond any reasonable doubt, we affirm the judgment.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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[1] A judge generally cannot exclude testimony if the witness credibility is at issue, as a witness must be allowed to testify unless he or she cannot communicate intelligibly or understand the duty to tell the truth, or unless no rational jury could believe the witness actually saw the events he or she claims to have seen. (People v. Anderson (2001) 25 Cal.4th 543, 576.) It is for the jury to determine whether the witness is credible, and its decision is guided by the credibility instructions.

[2] As the prosecutor points out, CALJIC, the formerly endorsed instructions, listed a similar factor of past criminal conduct of a witness amounting to a misdemeanor. (CALJIC No. 2.20) However, the language in CALCRIM No. 226 is broader than the former CALJIC instruction on this point, and the seems to suggest that any conduct, whether criminal or otherwise, may properly be considered if it reasonably bears upon credibility. Conduct consistent with an intent to provide collusive testimony would seem to fall within that broader scope.