P. v. Felix





















Filed 1/7/13 P. v. Felix
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. JOSE RICARDO FELIX, Defendant and Appellant.

B237229 (Los Angeles County Super. Ct. No. PA068155 )

APPEAL from a
judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Harvey Giss, Judge. Affirmed.

Gloria C. Cohen,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.



_________________________







Defendant and appellant, Jose
Ricardo Felix, appeals his conviction for residential burglary (Pen. Code,
§ 459).href="#_ftn1" name="_ftnref1"
title="">[1] He was sentenced to href="http://www.mcmillanlaw.com/">state prison for six years.

The judgment is affirmed.

>BACKGROUND

Viewed in accordance with the usual
rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1.
Prosecution evidence.

Maria Deleon and her husband Hector
Acosta lived on Telfair Avenue in Pacoima. Stevan Lopez
lived across the street. In late
June 2010, Lopez asked Deleon to watch his house while he was on
vacation. On June 29, Deleon saw a
young man she did not recognize coming out of Lopez’s house carrying a
box. The man then went back into Lopez’s
house. Deleon alerted Acosta, who ran
over to see what was going on.

There was a black Nissan Altima in
the middle of the street. Acosta later
told police he knew the driver, Gilberto Estrada. Acosta saw a man coming out of the Lopez
house with a box and screamed at him.
The man dropped the box. Acosta
tried to grab him, but the man jumped into the Nissan. Estrada looked at Acosta and said, “Don’t
worry, we’ll be back.” The Nissan drove
off. Acosta was scared because Estrada
was a gang member.

Deleon and Acosta called Lopez to
tell him what happened. When Lopez returned
home he found the rear door of his house had been broken into and various
things were missing: sports cards,
sports memorabilia, a coin collection and a handgun. Lopez was acquainted with Estrada.

On
July 7, 2010, Illinois State Police stopped a black Nissan for speeding. Estrada was sitting in the passenger
seat. A search of the vehicle uncovered
three tubs containing baseball cards and memorabilia.

Meanwhile,
Los Angeles Police Officer Richard Sotelo had decided to go to a house located
at 12901 Osbourne Street in Pacoima in order to arrest Estrada for the Lopez burglary. Before setting out, Sotelo ran a check on the
address and discovered that defendant Felix, who had an outstanding bench
warrant for an unrelated burglary, was also living there. When Sotelo arrived at the Osbourne Street
house, he found Felix and arrested him.

At the police station, Felix asked
why Sotelo had come to the house and Sotelo said he was looking for Estrada in
connection with a burglary on Telfair.
After receiving a Miranda
warning,href="#_ftn2" name="_ftnref2" title="">[2]
Felix admitted he had been involved in the Telfair burglary, but he said
Estrada had forced him to commit the crime.
Felix said he used a hammer to break into the rear door of Lopez’s house
and that he took a gun and some baseball cards.
After being scared off by witnesses, Estrada dropped Felix off at the Osborne Street
house and Felix didn’t know what Estrada had done with the stolen property.

Sotelo asked Felix to put his
statement into writing, so Felix wrote and signed the following statement: “The gun ain’t on my possession. I was forced to brake [sic] into the house . . . . I took out a couple boxes and a gun from the
house. Then I drop off to my house and
never heard of the stolen property or him again. I got a box of baseball cards but no property
on my possession. I went through the
back door with a hammer to brake the lock.
Boxes (3) took of baseball
cards.”

Sotelo testified Felix did not
exhibit any confusion or appear to be under the influence of drugs or alcohol.

2. Defense
evidence

. Felix testified in
his own defense. He had previously been
convicted as an adult of felony grand theft.
He was on probation for a different, juvenile offense when he was arrested
in this case. In addition, he was in
violation of that probation when he was arrested.

Felix testified the police came to
his house and arrested him for not checking in with his probation officer. When Officer Sotelo told Felix he looked like
the suspect in a burglary, Felix got nervous.
Sotelo said he just needed Felix’s help in identifying the second
burglary suspect so they could get Estrada, and that if Felix confessed he
could go home because he was “young.” So
Felix wrote out a statement falsely confessing to the burglary; he just wrote
down whatever Sotelo told him to write.

Asked if he hadn’t realized the
written statement sounded like a true confession, Felix testified: “Well, I really, I didn’t do it. Just a piece of paper. I wanted to go home.” Asked about the specific details contained in
the statement, Felix testified Sotelo told him exactly what to say. Felix testified he remembered being given a >Miranda warning inside the police
station, and that he told Sotelo he understood his rights.

Felix testified he had smoked
methamphetamine 20 minutes before his arrest and that he was under the
influence of that drug when he wrote out the false confession. Asked if the methamphetamine had affected his
memory, Felix testified he remembered everything, but that the methamphetamine
had affected his ability to make rational decisions.

Detective Dena Kendrick testified
for the defense that, when she spoke to Felix the morning after his arrest, he
denied having burglarized Lopez’s house.
When Kendrick reminded Felix he had been given Miranda warnings, Felix said “he didn’t remember anything, that he
was out of it.” Kendrick’s conversation
with Felix did not last long because he “continued to say ‘I don’t remember
anything. I was totally out of
it.’ ” Felix specifically told
Kendrick he did not “remember dealing with Sotelo.” When she asked if there was some medication
or narcotic Felix used “that would cause him any memory difficulty
. . . where you don’t remember anything that happened . . .
less than ten hours prior,” Felix said no, he just smokes marijuana
occasionally. Asked if she saw any
“signs or symptoms of methamphetamine use,” Kendrick testified Felix “didn’t
appear to have used recently.”

CONTENTION

The
trial court erred by instructing the jury with CALCRIM No. 361 on a
defendant’s failure to deny or explain inculpatory evidence.

DISCUSSION

Felix contends the trial court erred
by instructing the jury with CALCRIM No. 361, as follows: “You may not convict the defendant unless the
People have proved his guilt beyond a reasonable doubt. If the defendant failed in his testimony to
explain or deny evidence against him and if he could reasonably be expected to
have done so based on what he knew, you may consider his failure to explain or
deny in evaluating that evidence. Any such
failure is not enough by itself to prove guilt.
[¶] The People must prove the
defendant guilty beyond a reasonable doubt.
If the defendant failed to explain or deny, it is up to you to decide
the meaning and importance of that failure.”


It is well-established that
“ ‘[i]f the defendant tenders an explanation which, while superficially
accounting for his activities, nevertheless seems bizarre or implausible, the
inquiry whether he reasonably should have known about circumstances claimed to
be outside his knowledge is a credibility question for resolution by the jury
[citations].’ [Citation.]” (People
v. Belmontes (1988) 45 Cal.3d 744, 784, disapproved on other grounds
in People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22.)
“We have said that when a defendant testifies in his own behalf he
thereby waives his self-incrimination
privilege under both federal and state Constitutions as to matters within
the scope of permissible cross-examination [citations] and that when he denies
commission of the crime a defendant thereby renders ‘very wide’ the permissible
scope of his cross-examination.
[Citation.] It is entirely proper
for a jury, during its deliberations, to consider logical gaps in the defense
case, and the jury is reminded of this fact by the instruction at issue.” (People
v. Redmond (1981) 29 Cal.3d 904, 911.)href="#_ftn3" name="_ftnref3" title="">>[3]

Felix argues the instruction was
improper here because he denied having committed the burglary and “[i]t is
neither bizarre nor implausible that an unsophisticated young suspect could
believe that the police would let him go home if he told them what they wanted
to hear.” We cannot agree with this
argument.

Given Felix’s criminal history, as
both a juvenile and an adult, it is a mischaracterization to describe him as
“unsophisticated.” As the prosecutor
reminded the jury during closing argument:
“Now, Mr. Felix has been in trouble before. He knows the system. He knows that writing of the confession means
that he ends up here. It’s not like he’s
some babe in the woods, thinks I get to go home and nothing ever happens. [¶] He
knows the drill, and yet he writes it out any way.” “[S]omeone like him who knows . . .
the system, would never have confessed, because he thought he was going home to
a no bail warrant after doing the crime.”
The prosecutor made the same point while cross-examining Felix: “Q. So you thought that even
though they knew you had been in trouble multiple times that you were on
probation and absconding[,] that they wanted you to confess to something you
didn’t do and then they’d let you go?
[¶] A. Yes, sir.”


There are at least two additional
reasons why the instruction was proper.
First, as the trial court pointed out during a sidebar with counsel, it
was implausible to think Officer Sotelo would have cajoled Felix into making a
written confession, yet tell him to include a disclaimer that undercut his
culpability: “Why would the cop, if he
manufactured that statement and told the defendant what to write, have him put
a disclaimer like that? That disclaimer
that I was forced to break into the house.
No police officer would have anybody put [that] in the report, therefore
it makes it very reliable and believable that everything was put in there by
the defendant.”

Second, Felix’s testimony contained
an additional fundamental contradiction that only he could have explained. He testified he had smoked methamphetamine
just 20 minutes before his arrest and, although the drug did not affect
his ability to remember exactly how he came to write the false confession, the
following morning he told Detective Kendrick he had absolutely no memory of his
interaction with Sotelo or of having made a written statement, and that the
only drug he used was marijuana. Given
these conflicting explanations regarding his memory of how the written
confession came about, the trial court was justified in giving CALCRIM
No. 361. (See, e.g., >People v. Sanchez (1994) 24 Cal.App.4th
1012, 1030 [CALJIC No. 2.62 [predecessor instruction] proper where
defendant gave detailed testimony about his prolific consumption of alcohol and
cocaine, but claimed to have no memory of inculpatory events occurring the same
afternoon].)

The trial court did not err by
instructing the jury with CALCRIM No. 361.

DISPOSITION

The
judgment is affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







KLEIN,
P. J.





We concur:





KITCHING,
J.









ALDRICH,
J.