P. v. Gibbs
Filed 9/29/10 P. v. Gibbs CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SHERRIE LYNETTE GIBBS,
Defendant and Appellant.
D056403
(Super. Ct.
No. SCS227666)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Ana L. Espana, Judge.
Affirmed.
A jury
convicted Sherrie Gibbs of one count of possession
of marijuana for sale (Health & Saf. Code, § 11359) and one count
of transportation of more than 28.5 grams of marijuana in violation of Health
and Safety Code section 11360, subdivision (a).
Gibbs was placed on formal probation subject to certain conditions.
Gibbs
appeals, contending that the trial court erred in instructing the jury with
CALCRIM No. 361, which addresses the failure of a defendant to explain or deny
adverse evidence.
We agree
with Gibbs that the trial court erred in giving CALCRIM No. 361. However, upon our review of the record, we
find the error harmless. (
836 (Watson).)
STATEMENT
OF FACTS
Since Gibbs
does not challenge either the sufficiency or the admissibility of the evidence
to support her conviction, we will provide only a brief summary of the facts in
order to give context to the discussion which follows.
On March 27, 2009 Gibbs was
arrested at the San Ysidro port of entry as she attempted to drive her 2000
Toyota Echo into the United States. While she was attempting to enter into the United
States, federal authorities detected the presence of drugs in her car and
ultimately seized 47.65 kilograms or 104.83 pounds of marijuana from a floor
compartment in her car.
The
officers discovered the marijuana after noting the floor area of the Toyota
Echo had been substantially altered. The
floor appeared to have been raised and the carpet had been tampered with and
did not fit properly.
Gibbs
denied knowledge of the marijuana in the car and explained that she had
obtained the car through a friend named Roberto Bustamente who had helped her
move to Tijuana from the United
States and helped her purchase the Toyota
Echo. She testified she never inspected
the car. Gibbs also stated that prior to
her arrest the car had been taken to a mechanic for electrical problems. The car had been taken to a shop referred to
her by Bustamente where the car remained for two days.
Gibbs
testified the Bustamente borrowed her car for approximately four hours on the
day prior to her arrest. She testified
she did not notice anything unusual about either the floor, the pedals or the
carpet in her car.
DISCUSSION
The trial
court, without objection from Gibbs, determined to instruct the jury in the
language of CALCRIM No. 361, which reads as follows: "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 still prove each element of
the crime 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."
When the trial
court read the instruction, the court not only altered the gender to refer to
"her" instead of "him," but misread the first word of the
instruction. The court began the
instruction with the statement, "now, the defendant failed in her
testimony to explain or deny the evidence against her." In essence, the trial court substituted the
word "now" for "if" in the pattern instruction. The written instruction as given to the jury
contained the accurate wording.
Gibbs
contends that she did not fail to explain or deny any adverse evidence and
accordingly the trial court erred in giving the instruction. Gibbs also argues that she was substantially
prejudiced by the instruction and accordingly, her conviction should be reversed.
As we have
indicated, we agree there is no basis in this record for the giving of the
instruction. However, based upon our
examination of the record, we conclude the giving of the instruction was
harmless error.
At the
outset, the Attorney General argues that Gibbs has forfeited the claim of error
by failing to object. However, the
Attorney General also acknowledges that in order for this court to determine
whether the error affected the substantial rights of the appellant, we are
required to reach the merits. (
1082, 1087.)
When we
review a claim of instructional error we do so de novo applying our independent
judgment to the evaluation of the appropriateness of the instruction. (People
v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.)
Instructing
the jury on the defendant's alleged failure to explain or deny inculpatory
evidence requires that there be some fact or evidence in the prosecution's case
within the defendant's knowledge that he or she has failed to explain or deny. A contradiction between the defendant's
testimony and other witnesses or an argument that the defendant's testimony is
not believable does not warrant the giving of an instruction on the defendant's
failure to explain or deny adverse evidence.
(People v. Kondor (1988) 200
Cal.App.3d 52, 57; People v. Lamer (2003)
110 Cal.App.4th 1463, 1469 (Lamer).)
Much of the
previous case law addressing the question of a defendant's failure to deny or
explain evidence arises from CALJIC No. 2.62, which is the predecessor to CALCRIM
No. 361. CALJIC No. 2.62 reads as
follows:
"In this case defendant has testified to certain
matters. [¶] If you find that the
defendant failed to explain or deny any evidence against him introduced by the
prosecution which he can reasonably be expected to deny or explain because of
facts within his knowledge, you may take that failure into consideration as
tending to indicate the truth of this evidence and as indicating that among the
inferences that may reasonably be drawn therefrom those unfavorable to the
defendant are the more probable. [¶] The
failure of a defendant to deny or explain evidence against him does not, by
itself, warrant an inference of guilt, nor does it relieve the prosecution of
its burden of proving every essential element of the crime and the guilt of the
defendant beyond a reasonable doubt. [¶]
If a defendant does not have the knowledge that he would need to deny or to
explain evidence against him, it would be unreasonable to draw an inference
unfavorable to him because of his failure to deny or explain this
evidence."
Although
CALCRIM No. 361 is more benign than the CALJIC counterpart in that the CALCRIM
instruction does not authorize the jury to draw an adverse inference, we think
the basic principle underlying the two instructions is the same. Both instructions permit the jury to utilize
the failure of a defendant to deny or explain certain evidence.
In the
present case, it is clear that Gibbs denied or explained all of the
prosecution's incriminating evidence.
She denied knowledge of the marijuana and denied noticing the
alterations to the floor compartment of the automobile. Indeed the Attorney General does not argue
that Gibbs failed to deny or explain adverse evidence, but rather that her
explanations are not credible or they are implausible. As we have indicated, that is not the correct
standard for the giving of this instruction.
The instruction is predicated upon a failure to explain or deny, not on
the credibility of the explanation or denial.
(People v. Haynes (1983) 148
Cal.App.3d 1117, 1120-1122; People v.
Saddler (1979) 24 Cal.3d 671, 677.)
This court
in Lamer, supra, 110 Cal.App.4th 1463
at pages 1469 through 1470 explained that an instruction on a defendant's
failure to explain or deny evidence should not be given unless there is some
specific or significant defense omission that the prosecution wishes to stress
or the defense wishes to mitigate. In
this instance, there is no such evidence of a failure to explain or deny, but
rather simply a challenge to the credibility of Gibbs's testimony. A credibility challenge is not a legitimate
basis for the giving of CALCRIM No. 361.
Given our
conclusion the instruction should not have been given we turn to the question
of whether the instruction was prejudicial.
As we
explained in Lamer, supra, 110
Cal.App.4th at page 1471, this type of instruction does not implicate Gibbs's
constitutional rights. Rather this form
of instructional error should be analyzed under the Watson standard. (
836.) Thus our charge is to determine
whether it is reasonably probable that a result more favorable to Gibbs would
have been reached if the court had not given this instruction.
We note
first that CALCRIM No. 361 is not identical to CALJIC No. 2.62. As we have noted, CALJIC No. 2.62 authorizes
the jury to draw a negative inference on the basis of the defendant's failure
to explain or deny evidence. (
450, 454.) The CALCRIM instruction,
however, simply advises the jury that it may consider the defendant's failure
to explain or deny the prosecution evidence and give it such weight as the jury
deems appropriate. The instruction,
however, does not advise the jurors to draw any unfavorable inferences towards
the defendant. Thus, as we have noted,
CALCRIM No. 361 is more benign than CALJIC No. 2.62.
The
instruction was misread by the trial court when the court used the word
"now" instead of "if."
However, the jury had in its possession the proper instruction. Further, we note that the prosecution did not
comment on the instruction during the prosecution's closing arguments. In fact, the only reference we find to the
instruction in closing arguments was made by defense counsel when counsel
accurately quoted the instruction and then explained why he had made certain
references in his closing argument.
In short,
there is no indication that the prosecution or the court unduly emphasized the
instruction such that Gibbs was prejudiced.
The instruction itself applies only if the jury finds the defendant
failed to explain or deny evidence. The
trial court had also instructed the jury with CALCRIM No. 200, which states in
part: "Some of these instructions may
not apply, depending on your findings about the facts of the case. Do not assume just because I give a
particular instruction that I am suggesting anything about the
facts."
Here
Gibbs gave lengthy and detailed explanations of her activities and denied any
knowledge of the marijuana or of any unusual circumstances that should have
drawn her attention to its presence in the vehicle. Thus, there is no significant likelihood that
the jury could find she did not explain or deny the prosecution's evidence. Rather this case turned on credibility.
The
presence of a substantial quantity of marijuana in her car is not in
dispute. The only issue in dispute is
Gibbs's knowledge of its presence. The
substantially altered floor of the automobile, such that it was raised as much
as five inches and probably required her to make major adjustments in order to
drive the car, is substantial evidence bearing on the question of her knowledge
of the altered state of the car and the presence of the marijuana. The jury could reasonably reject the notion
that the car could have been modified without her knowledge or that it was such
that marijuana had been in the car for a substantial period of time. In short, the evidence supporting the
conviction is substantial. The jury
instruction at issue, while erroneously given, cannot be said to have caused
her prejudice.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE
CONCUR:
NARES,
J.
McINTYRE, J.
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