P.
v. Boykin
Filed
9/13/13 P. v. Boykin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSHUA CODY BOYKIN,
Defendant and
Appellant.
F064577
(Tuolumne
Super. Ct. No. CRF36920)
APPEAL from
County. James A. Boscoe, Judge.
Jessie
Morris, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
FACTS
Defendant
Joshua Cody Boykin was charged with the following crimes in a second amended information:
count I –
Code, § 12021, subd. (a)(1)
count II – possession of ammunition
by a felon (Pen. Code,
name="_ftnref3" title="">[2]
§ 12316, subd. (b)(1) ); and count III – misdemeanor driving
with a suspended license (Veh. Code, § 14601.2, subd. (a).) Four identical prior convictions were alleged
as to each of counts I and II: a July 25, 2007, conviction for violating
section 245, subdivision (a)(1); and three June 15, 2010, convictions for
violating sections 12021, subdivision (a)(1), 243, subdivision (d),
and 245, subdivision (a)(1). The
same four convictions were alleged as section 667.5, subdivision (b)
enhancements. The June 15, 2010,
conviction for violating section 243, subdivision (d) was also alleged as a
prior strike.
Defendant pled guilty to count
III. Defendant ostensibly admitted all four
prior convictions. A jury convicted
defendant on counts I and II. The court
sentenced defendant to a total of five years in prison.
TRIAL
EVIDENCE
Prosecution’s
Case
On October
22, 2011, Lynne Bird was on duty as a law enforcement officer for the U.S.
Forest Service. She observed two
individuals driving motorcycles without helmets. One of the motorcycles did not have
appropriate turn signals and lighting. Bird “guess[ed]†the motorcycles were “maybeâ€
25 feet away when she first saw them.
Bird
activated her overhead lights and motioned for the motorcyclists to pull over. From the time she first observed them to the
time she exited her patrol vehicle, Bird never lost sight of the motorcycles.
Bird observed “a camouflage-colored
shotgun in brackets on the front†of one of the motorcycles. Defendant was on the motorcycle with the
shotgun. Defendant’s
motorcycle had an expired registration.
A female, later identified as
Jacqueline Ramirez, was on the other motorcycle. Ramirez had a rifle in a shoulder sling. Bird determined that Ramirez’s motorcycle “was
not street legal.â€
Defendant presented a California identification
card to Bird. Bird asked if defendant
had a driver’s license, and he responded that it was “back at his camp.†Bird checked defendant’s driver’s license
number and discovered it had been suspended. The dispatcher also told Bird that defendant
was on “C.D.C. probation.â€
Defendant told Bird that he was
hunting for squirrels. Bird testified
that “even though you’re hunting, in the State of California, you cannot
operate a motor vehicle with rounds chambered in the weapon.†Bird told defendant she was going to look at
this weapon. Defendant said, “Here’s my
weapon†or words to that effect.
Bird testified no rounds were
chambered in the shotgun, but “there were two rounds in the tube.â€
Bird allowed Ramirez to return to
camp to get a vehicle that could transport defendant’s vehicle since he was not
allowed to drive it himself. Bird then
checked defendant’s criminal history. She discovered defendant was a felon and
placed him under arrest for possessing a firearm.
There was a jacket draped over the
motorcycle, and defendant advised the jacket was his.
the pocket of the jacket.
Defense Case
Defendant’s cousin, Shawn Smith,
testified that he went camping with defendant and Ramirez. Smith testified that, at some point,
defendant and Ramirez left camp. When
the two left, Ramirez had the rifle on her shoulder and drove the motorcycle
with the shotgun on the handlebars.
Defendant rode the other vehicle.
Sergio Mendoza testified that he knew
defendant through mutual friends. On
October 22, 2011, Sergio was driving on a county road with his friend, David
Correia, when he saw defendant and a “girl†coming down a hill. Sergio testified there was no weapon on
defendant’s bike, and there was a shotgun on the bike the “girl†was riding.
David Correia testified he was with
Sergio Mendoza on October 22, 2011. He
also testified that there was “some kind of weapon across the handlebars of the
bike [the “ ‘girl’ â€] was riding.â€
He did not observe any other weapons.
Defendant also testified. He stated he went camping with Ramirez and
Smith. On the afternoon of October 22,
2011, he and Ramirez left camp on trail bikes. The bike defendant rode was not “street
legal.†Defendant brought no
weapons. Ramirez brought a rifle
strapped to her back and a shotgun across the front of her motorcycle.
Defendant testified his license was
suspended at the time Bird stopped him. Defendant initially testified that both he and
Ramirez were wearing jackets. He later
testified that he did not recall whether he actually had a jacket. He said he “might have had just a heavier
sweatshirt or something.†He then
testified he didn’t “believe†he “actually had to take a jacket off.†Ramirez, however, did take her jacket off
when Bird had asked for her driver’s license.
Stipulation
Regarding Defendant’s Prior Convictions
During trial, the court read a
stipulation between the parties regarding defendant’s prior convictions. The
parties stipulated that defendant was previously convicted of violating: (1) section 245, subdivision (a)(1),
assault with force or weapon other than a firearm likely to cause great bodily
injury on July 25, 2007; (2) section 12021, subdivision (a)(1) felon in
possession of a firearm on June 15, 2010; (3) section 243, subdivision (d)
battery causing serious bodily injury on June 15, 2010; and (4) section 245,
subdivision (a)(1) assault with force or weapon other than a firearm
likely to cause great bodily injury on June 15, 2010.
Trial Court
Instructs Jury with CALCRIM 371
The court instructed the jury with
CALCRIM 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 cannot 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 the defendant was aware of his
guilt, but only if the defendant was present and knew about the conduct – knew
about that conduct, or if not present, authorized the other person’s actions. It is up to you to decide the meaning and
importance of this evidence. However,
evidence of such conduct cannot prove guilt by itself.â€
DISCUSSION
I.
NO PREJUDICE
RESULTED FROM THE COURT’S CALCRIM 371 INSTRUCTION
Defendant contends the court erred
in instructing the jury with CALCRIM 371.
He contends the evidence was insufficient to support the
instruction. We hold that, at most, the
instruction was unnecessary surplusage and affirm.
When the Supreme Court has
considered similar challenges to instructions regarding fabrication of evidence,
it analyzes potential prejudice first, often obviating the need to determine
whether the instruction was erroneously given. (E.g., People
v. Crew (2003) 31 Cal.4th 822, 848-849, People
v. Jackson (1996) 13 Cal.4th 1164, People
v. Pride (1992) 3 Cal.4th 195, 248-249.)
We will do the same here.
In People v. Pride, supra, 3
Cal.4th 195, the trial court instructed the jury that consciousness of guilt may
be inferred from any attempt by defendant to fabricate evidence at trial. (Id.
at p. 248.) Defendant argued that
conflicting testimony did not “support the instructional inference.†(Ibid.) The Supreme Court assumed arguendo that
defendant’s assessment of the testimony was true, but concluded any error was
harmless. (Ibid.) “[A]t worst, there
was no evidence to support the instruction and … it was superfluous.†(Id. at
p. 249.)
We reject defendant’s claim on the
same grounds. Even if there was
insufficient evidence supporting the fabrication of evidence instruction, the
error was harmless. The instruction merely
permits the jury to make a consciousness-of-guilt inference
false testimony. (See CALCRIM 371.) The conditional (i.e., permissive) nature of
the inference was reinforced by the court’s explanation that some of the
instructions may not apply, depending on the jury’s findings.
follow instructions. (
331.) Thus, if there was no evidence of
fabrication, the jury would not have made the consciousness of guilt
inference. If there was evidence of
fabrication, the instruction was properly given. Either way, we affirm.
Prosecutor’s
Comments Regarding Defense Counsel’s “Roleâ€
Defendant also claims the
prosecutor improperly disparaged defense
counsel. Specifically, defendant
cites the prosecutor’s comment that defense counsel’s “role is to get her
client off the hook.… Nothing about
justice being done or anything like that, or even to show you reasonable doubt.
Her job is to get – give you as much as
she possibly can and to provide a reasonable doubt – any kind of reason to
doubt whatsoever. Throw a little of this
out, throw a little of that out, see what happens.â€
First, defendant did not object to
these remarks and forfeited any claim of misconduct. (See People
v. Tully (2012) 54 Cal.4th 952, 1021.)
Second, defendant mischaracterizes
the prosecutor’s remarks. He argues
“[i]t is misconduct for the prosecutor to accuse defense counsel of fabricating
a defense [citations], or to imply that defense counsel is free to deceive the
jury. [Citation.]†That is not what the prosecutor did here. Arguing that defense counsel’s role is to “ ‘get
their clients off’ †is not equivalent to accusing them of deception. (See U.S.
v. Russell (10th Cir. 1997) 109 F.3d 1503, 1514.) Rather, the prosecutor was emphasizing defense
counsel’s role as an advocate for her client rather than a disinterested
truth-seeker.
Indeed, the prosecutor’s comments
are not such a distortion of defense counsel’s role. (See ibid.)
“If [defense counsel] can confuse a
witness, even a truthful one, or make him appear at a disadvantage, unsure or
indecisive, that will be his normal course. Our interest in not convicting the innocent
permits counsel to put the State to its proof, to put the State’s case in the
worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which
defense counsel must observe but more often than not, defense counsel will
cross-examine a prosecution witness, and impeach him if he can, even if he
thinks the witness is telling the truth .…
In this respect, as part of our modified adversary system and as part of
the duty imposed on the most honorable defense counsel, we countenance or
require conduct which in many instances has little, if any, relation to the
search for truth.†(U.S. v. Wade (1967) 388 U.S. 218, 257-258 (conc. & dis. opn. of
White, J.), fns. omitted.)
Alleged
Error
Defendant next claims the
prosecutor committed Doyle error by using
defendant’s postarrest silence for impeachment purposes. First, defendant did not object and thereby
waived this claim. (See
1292, 1333.) Second, no
“rights.†“[T]he Constitution does not
prohibit the use for impeachment purposes of a defendant’s silence … after
arrest if no Miranda [
are given .…†(Brecht v. Abrahamson (1993) 507 U.S. 619, 628.)
Prosecutor’s
Comments Regarding Witness Smith “Lyingâ€
Defendant claims the prosecutor
improperly interjected personal beliefs regarding credibility when
cross-examining witness Smith. Defendant
cites the following portion of the prosecutor’s cross-examination:
“[THE PROSECUTOR:] Why did you wait until two days before trial
to give this statement instead of calling the police the next day, the day
after, the day after, the month after?
“[SMITH:] Because I know that he’s not supposed to be in
possession of one and she was accusing him of being in possession of one. Who am I supposed to contact? Am I supposed to contact her supervisor and
say she did a wrong thing and she is making everything up? Where is that going to get me?
“[THE PROSECUTOR:] You didn’t try, did you?
“[SMITH:] Would you have tried?
“[THE PROSECUTOR:] I’m not on the witness stand right now. [¶] The
answer is yes. I would have tried right
away. But how about you, with your own
flesh and blood? You didn’t, did you?
“[SMITH:] No.
“[THE PROSECUTOR:] And that’s because it is a lie. What you are saying here is a lie, and you
have just come in behind –
“[DEFENSE COUNSEL:] Objection. This is argumentative.
“THE COURT: I’ll sustain that.â€
Contrary to defendant’s argument, “ ‘[t]he
prosecutor is permitted to urge, in colorful terms, that defense witnesses are
not entitled to credence … [and] to argue on the basis of inference from the
evidence that a defense is fabricated .…’ †(People
v. Boyette (2002) 29 Cal.4th 381, 433.)
“It is not misconduct … for the prosecutor to comment on the credibility
of defense witnesses, if such comments are based on the evidence.†(People
v. Sloan (1963) 223 Cal.App.2d 96, 99.)
However, the prosecutor’s statement
about Smith lying was an argumentative “speech to the jury masquerading as a
question.†(People v. Chatman (2006) 38 Cal.4th 344, 384.) The trial court properly sustained defense
counsel’s objection that the comments were argumentative.
But the statements were
objectionable because they were made during examination of a witness, not
because they conveyed information the jury should never hear. We hold the prosecutor’s error was harmless because
the comments were not inherently prejudicial.
Prosecutor’s
Comments Regarding Ramirez’s Absence from Trial
Defendant complains that the
prosecutor improperly highlighted Ramirez’s absence from trial during
Defendant did not object and
thereby waived this claim. (See
improper. Rather, “the prosecutor was
merely making the permissible argument that defendant had failed ‘ “to
introduce material evidence or to call logical witnesses†’ [citation] to support
his story .…†(People v. Boyette, supra,
29 Cal.4th at p. 434.)
name="_ftnref10" title="">[9]
Prior Convictions
Defendant also claims the
prosecutor improperly utilized his prior convictions which were the subject of
a stipulation. He cites the following
colloquy:
“[Prosecutor]: You knew better back in ’07 when you got
convicted of your first felony assault. You
knew then you shouldn’t be around guns, right?
“[Defendant]: That’s correct.
“[Prosecutor]: But you got convicted of being around guns. So why are you telling these people ‘I know
better’ when you had been convicted in ’07, and three years later it happens to
you?
“[Defense counsel]: Your Honor, objection. This is argumentative and goes beyond the
proper scope of the use of the felonies.
“THE COURT: I’ll sustain the objection.â€
Defendant argues the prosecutor’s
question improperly spoke to propensity rather than credibility. This is incorrect. The prosecutor’s question went to credibility.
The stipulation as to defendant’s
prior felonies included a 2007 felony conviction and a 2010 conviction for
being a felon in possession of a firearm.
Immediately prior to the dialogue cited above, defendant testified that
he was not in possession of the shotgun on October 22, 2011. He then testified, “I have been in trouble for
this before, and I know better. Do not
possess a firearm. Do not be around
it.†The prosecutor’s subsequent
questions, which defendant criticizes here, were obviously meant to undermine
defendant’s claim. The prosecutor’s
questions effectively imply the following argument: defendant knew after his 2007 felony
conviction that he should not be around guns, yet he was convicted for firearm
possession in 2010; therefore you should not believe him now when he again says
he knows better than to be around guns. This
is a credibility argument (i.e., do not believe defendant’s testimony that he
“know[s] betterâ€).
The Cumulative
Effect of Any Error(s) was Not Prejudicial
As we explained
trial court’s CALCRIM 371 instruction. The
only other “errors†identified by defendant were the two instances of
argumentative questioning by the prosecutor outlined above. In both instances, objections were
sustained. The court instructed the
jury: “If I sustained an objection, you must
ignore the question.†The court also
instructed the jury that the attorneys’ questions were not evidence. “We assume the jury followed these
instructions†and thereby avoided any prejudice. (People
v. Chatman, supra, 38 Cal.4th at
p. 405.)
II.
THE
COURT DID NOT FAIL TO TAKE AN ADMISSION ON THE PRIOR CONVICTIONS
Defendant contends the trial court
erroneously failed to take admissions on the prior conviction enhancements. Defendant concedes he admitted the prior
convictions but contends the admissions related to the felon status element of
counts I and II, not the prior conviction sentencing enhancements.
Additional Facts
Shortly before trial began, the
following colloquy occurred:
“THE COURT: So with that understanding, Mr. Boykin
[defendant], that you’d be giving up all those Constitutional rights and the
consequences of the admissions that I have described to you, do you still
intend to admit the prior convictions that are alleged in the Second Amended
Information?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: All right. [¶] Then
I’ll ask you, Mr. Boykin, as to Count 1, it alleges a conviction from
Stanislaus County on July 25th, 2007 for a violation of 245(a)(1). [¶] Do
you admit or deny that allegation?
“THE DEFENDANT: I admit it, Your Honor.
“THE COURT: With respect to the June 15th, 2010 allegation
of a prior conviction on that date for a violation of Section 12021(a)(1) of
the California Penal Code in Stanislaus County, do you admit or deny that?
“THE DEFENDANT: I admit, Your Honor.
“THE COURT: With respect to the allegation on June –
conviction on June 15th, 2010, violation of Section 243(d) in Stanislaus
County, Mr. Boykin, do you admit or deny that?
“THE DEFENDANT: Admit that, Your Honor.
“THE COURT: With respect to the June 15th conviction for a
violation of Section 245(a)(1) in Stanislaus County, do you admit or deny that
allegation?
“THE DEFENDANT: I admit, Your Honor.
“THE COURT: With respect to Count 2, Mr. Boykin, the –
that count alleges those same prior convictions as elements of the offense. And I’m not going to read each one, but do you
admit all of the allegations in Count 2 just as I have read them to you in
Count 1?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Same convictions on the same dates?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: All right. [¶] All
right. Counsel, I’m not going to take an
admission as to the 667.5(b) enhancements. They’re all the same. [¶] Do
you think that is necessary?
“MR. HOVATTER [prosecutor]: I do not, Your Honor.
“MS. WOODALL [defense counsel]:
No, Your Honor. We would – we would stipulate he did
serve a term in prison for those offenses.â€
Analysis
Section 1025, subdivision (a)
requires that the court ask whether defendant “has suffered the prior
conviction.†(§ 1025, subd. (a).) The court did so, as outlined
And, in each instance, the defendant admitted the prior conviction. The admissions are “conclusive of the fact of [defendant]
having suffered the prior conviction in all subsequent proceedings.†(§ 1025, subd. (a).)
Defendant tries to avoid the clear
import of his admissions by suggesting that his admissions “referenced only the
felon status†element of the substantive counts, not the prior conviction
enhancements. Defendant cites no
authority for the notion that he admitted the prior convictions for one purpose
(i.e., his felon status) but not another (i.e., prior convictions
enhancements). To the contrary, the
California Supreme Court has held that a “ ‘[d]efendant’s admission of [a]
prior conviction[] is not limited in scope to the fact of the conviction[] but
extends to all allegations concerning the [felony] contained in the
information.’ †(
835-836.) Once defendant admitted the
prior convictions, they were conclusively established for purposes of the felon
status element of counts I and II, and
the prior conviction enhancements. (See § 1025, subd. (a);
III.
DEFENDANT’S
SENTENCE DOES NOT VIOLATE SECTION 654
Defendant contends that under
section 654 he may only be punished for either possessing the firearm or the
ammunition. We disagree.
Defendant argues that because his
“convictions were based on a single act, section 654 prohibits multiple
punishment.†We reject defendant’s
premise. Possessing a firearm and
possessing ammunition outside apart from that firearm are two separate acts. “ ‘[S]imultaneous possession of different
items of contraband’ are separate acts†for purposes of section 654. (People
v. Jones (2012) 54 Cal.4th 350, 358.)
In a related argument, defendant
next claims his sole intent was to “possess a loaded firearm.†But, defendant cites to no evidence he
committed these two acts pursuant to the single objective of possessing a
loaded firearm. Defendant did not
testify as to his objective in possessing the firearm or the ammunition. To the contrary, he denied possessing either.
The principal case on which
defendant relies, People v. Lopez (2004)
119 Cal.App.4th 132 (Lopez), is
distinguishable. In Lopez, defendant was charged with unlawful possession of a firearm
and unlawful possession of ammunition. (
court imposed concurrent sentences for the firearm and ammunition counts. (Id. at
p. 137.) The Court of Appeal stayed
one of the sentences under 654. (
However, in Lopez, all of the ammunition defendant possessed was loaded into
the firearm. (Id. at p. 138.) This
crucial fact was incorporated into Lopez’s
holding: “Where, as here, all of the ammunition is loaded into the firearm,
an[] ‘indivisible course of conduct’ is present and section 654 precludes
multiple punishment.†(
also possessed ammunition outside of the firearm, in his jacket.
In sum, defendant committed
separate physical acts by possessing the shotgun and the ammunition in his
jacket. By its plain language, section
654 applies to multiple punishment of a single act. (See § 654 [“An act or omission … the
act or omission.…â€], italics added.) Even
with the expansion of section 654’s scope through case law, the statute does
not apply to defendant’s sentence.
DISPOSITION
The judgment is affirmed.
J. and Poochigian, J.
This section was repealed by Stats. 2010, ch. 711, § 4, operative January
1, 2012, and reenacted as section 29800, subdivision (a)(1).
