Filed 3/2/18 P. v. Mitchell CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN RALPH MITCHELL,
Defendant and Appellant.

A143365

(San Mateo County
Super. Ct. No. SC079452, SC078775,
SC079224, SC080274)


A jury convicted Justin Ralph Mitchell of two residential burglaries and a host of other theft-related and drug-related charges. In this appeal, Mitchell challenges the jury instructions in several respects. We find no error in the trial court’s decision to give CALCRIM No. 373 (Other Perpetrator) or CALCRIM No. 370 (Motive), and we find harmless error in the trial court’s failure to give an instruction on accomplice testimony and in its inadvertent reading of CALCRIM No. 361. We accordingly affirm.
BACKGROUND
In this consolidated case, Mitchell was charged with 21 crimes: three first-degree residential burglaries (counts 1–3), three auto burglaries (counts 4–6), other theft-related charges (counts 7–10, 12-15, 18), drug charges (counts 11, 16–17, 19-20), and misdemeanor obstructing an officer (count 21). Testifying at trial, Mitchell admitted to most of these crimes, but he did not admit to the residential burglaries. For those, he attempted to shift responsibility onto his friend, Joey Vandor.
In addition to evidence of Mitchell’s other crimes, the prosecutor presented evidence that on the night of October 13, 2013, several homes and cars in a neighborhood in the Woodside hills had been burglarized, and that lots of the property stolen had been found at Mitchell’s home when he was arrested three days later. In particular, Mitchell was found in possession of a Chevron credit card from the home whose burglary was charged in count one, and four auto rims and a cell phone cover from the home whose burglary was charged in count two. The owner of the home whose burglary was charged in count three, Ms. Ghasemi, reported nothing taken from her home, where a door that led only to a bathroom had been opened. However, two cars in Ghasemi’s driveway had also been broken into, and items stolen from them were found in Mitchell’s home and in the front yard of a home down the street from Ghasemi. Ghasemi’s neighbor testified that at about 7:30 in the morning after the burglaries he found Mitchell digging in his front yard, looking for items that Mitchell said he had thrown there from his truck. Later, the neighbor found Ghasemi’s papers and flash drive at the place in his yard where he had seen Mitchell digging.
Mitchell testified that he and Vandor were together in the neighborhood that night. They drove into the Woodside hills in Mitchell’s truck, smoked methamphetamine, and then went for a walk. Mitchell broke into some cars, including the cars in Ghasemi’s driveway, looking to steal property. He then realized he’d lost track of Vandor so walked around looking for him. Later that night, he talked to Vandor on the telephone and learned Vandor had some wheel rims stashed in the bushes outside a home that he wanted Mitchell’s help retrieving. Mitchell testified that he picked up Vandor with the wheel rims, a laptop, and a backpack and then dropped Vandor off to bicycle home without his loot. Before he picked up Vandor, a police car drove by and spooked Mitchell, prompting him to bury a couple of stolen cell phones so he would not be caught with them, and he attempted later in the morning to retrieve them. In addition to admitting all the charged crimes except for the residential burglaries, Mitchell told the jury that he had prior convictions for assault on a police officer and several theft-related crimes.
On rebuttal, Vandor took the stand under a grant of immunity with respect to possession or use of methamphetamine. He testified that he has smoked methamphetamine with Mitchell in the past, but only at home in Belmont. At no time in October 2013 did he go into the Woodside hills with Mitchell. Vandor admitted that he had multiple theft-related prior convictions.
The jury convicted Mitchell on all counts except the third residential burglary, for which they acquitted him. With a prior strike and other allegations also found true, Mitchell received a 33-year sentence. This timely appeal followed.
DISCUSSION
We review de novo the question whether jury instructions correctly state the applicable law. (See People v. Posey (2004) 32 Cal.4th 193, 218.) We must evaluate a challenged instruction in the context of the jury instructions as a whole, determining whether there is a “reasonable likelihood” that the jury misunderstood its charge. (People v. Smithey (1999) 20 Cal.4th 936, 963.)
A. Giving CALCRIM No. 373 (Other Perpetrator) Was Not Error.
Mitchell argues that the trial court erred in instructing the jury with CALCRIM No. 373 (Other Perpetrator), and that this error affected his substantial rights. Because of significant differences between the instruction read to the jury in this case and the instruction in the cases on which Mitchell relies, we disagree.
The trial court read CALCRIM No. 373: “The evidence shows that another person may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether that other person has been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged.”
Mitchell’s trial counsel did not object to this instruction, but on appeal Mitchell argues that giving the instruction was error because the other perpetrator, Joey Vandor, testified as a prosecution witness. Mitchell cites People v. Williams (1997) 16 Cal.4th 153, 226 and other cases as holding that it is error to give an instruction about uncharged perpetrators when the uncharged perpetrator testifies at trial. But several of the cases Mitchell cites in fact hold that it is not error to give such an instruction where the court also gives “ ‘ “the full panoply of witness credibility and accomplice instructions.” ’ ” (People v. Lawley (2002) 27 Cal.4th 102, 162; People v. Jones (2003) 30 Cal.4th 1084, 1114; People v. Brown (2003) 31 Cal.4th 518, 560–561.) And the specific instruction given in these cases, a 1988 version of CALJIC No. 2.11.5, differed from the instruction given in Mitchell’s case. It told jurors, after an introductory sentence, “ ‘Do not discuss or give any consideration to why the other person is not being prosecuted in this trial or whether [he][she] has been or will be prosecuted.’ ” (See, e.g., Williams, at p. 225, fn. 5; Lawley, at p. 162.)
The differences between that pattern instruction and the pattern instruction given in Mitchell’s case are significant. After our Supreme Court criticized the 1988 version of CALJIC No. 2.11.5, the instruction was modified to add two sentences, one on either side of the sentence quoted above. (People v. Fonseca (2003) 105 Cal.App.4th 543, 548 (Fonseca).) The 1996 version of CALJIC No. 2.11.5 reads, after the same introductory sentence: “ ‘There may be many reasons why [the uncharged perpetrator] is not here on trial. Therefore, do not discuss or give any consideration to why the other person is not being prosecuted in this trial or whether [he][she] has been or will be prosecuted. Your [sole] duty is to decide whether the People have proved the guilt of [each] defendant on trial.’ ” (Fonseca, at p. 548 [italics added in Fonseca].) The Fonseca court found no error in giving this instruction, “so long as a reasonable juror, considering the whole of his or her charge, would understand that evidence of criminal activity by a witness not being prosecuted in the current trial should be considered in assessing the witness’s credibility.” (Id. at p. 550.) Fonseca also calls the language italicized in the instruction above “something short of optimal,” suggesting that a phrase like “speculate upon” would be superior. (Ibid.) CALCRIM No. 373 keeps the improvements made in the 1996 CALJIC instruction and makes the additional improvement that Fonseca suggests. With CALCRIM No. 373, the jury is no longer told it cannot discuss or consider whether or why the other perpetrator is not being prosecuted. It is simply told not to “speculate about whether” such a prosecution has or will occur.
Following Fonseca, we see no error in the trial court having given CALCRIM No. 373 because the jury charge, considered in its entirety, required the jury to scrutinize and assess the evidence that Vandor, rather than Mitchell, committed the residential burglaries. The trial court gave CALCRIM No. 301, informing the jury that “[t]he testimony of only one witness can prove any fact,” so the jury knew Mitchell’s testimony could be enough to establish Vandor’s responsibility for the burglaries. The trial court also gave CALCRIM No. 226, informing the jury that it should use “common sense” in judging the credibility of the witnesses, and may consider factors such as whether the witness has “a personal interest in” the outcome of the case, has been “promised immunity or leniency in exchange for his or her testimony,” has “been convicted of a felony,” or has “engaged in other conduct that reflects on his or her believability,” an instruction that highlighted potential credibility problems affecting Vandor. Even the instruction he challenges, CALCRIM No. 373, is potentially useful to Mitchell as it begins with a sentence that applies only if one credits Mitchell’s version of events: “The evidence shows that another person may have been involved in the commission of the crimes charged against the defendant.”
The fact that this same instruction goes on to tell the jury not to “speculate about whether that other person has been or will be prosecuted” does not in any way discourage the jury from considering whether Vandor committed the crimes, nor dissuade them from scrutinizing his credibility as a witness. There was, accordingly, no error in the trial court giving CALCRIM No. 373 in this case.
B. Giving CALCRIM No. 370 (Motive) Was Not Error.
Evidence that Mitchell owed money to his stepfather and his girlfriend’s mother at the time of the burglaries was admitted without objection at trial. The trial court then instructed the jury on motive, and the prosecutor argued in closing that Mitchell’s motive for the crimes was “financial stress” brought on by his debts and the expense of his methamphetamine use. Mitchell argues that the court erred in instructing the jury on motive because the instruction allowed the prosecutor to argue that Mitchell’s poverty motivated his crimes, an inference that Mitchell argues is impermissible under the law.
The trial court gave CALCRIM No. 370: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
The instruction does not mention poverty, and not giving the instruction would not have prevented the prosecutor from arguing that Mitchell’s debts motivated his crimes. As People v. Harris (2005) 37 Cal.4th 310, 345 explains: “It is true that ‘[e]vidence of a defendant’s poverty or indebtedness generally is inadmissible to establish motive to commit robbery or theft, because reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice.’ [Citation.] But here, the evidence was already presented without objection, largely from defendant’s own mouth. The prosecutor merely commented on that evidence, which was proper.”
Likewise in this case, Mitchell testified to his own debts, and even that his indebtedness motivated at least one of his crimes. With regard to the car burglary at Kennedy Middle School on October 5, 2013, Mitchell admitted that he was breaking into cars because he was “desperate and needed some money.” The prosecutor was entitled to comment on this testimony and remind the jury of this motive after Mitchell placed it in evidence. There was accordingly no error in the trial court instructing the jury with CALCRIM No. 370 regarding motive.
C. Failing to Give an Instruction on Accomplice Testimony Was Error, But Harmless.
Mitchell argues that the trial court erred in failing to instruct the jury on the rules pertaining to accomplice testimony, including the need for corroboration of any incriminating testimony an accomplice gives. We agree with Mitchell, but conclude the error was harmless.
Where the evidence at trial suggests that a witness may have been an accomplice, the court has a sua sponte duty to instruct on the law governing accomplices, for example by reading CALCRIM No. 334. (People v. Tobias (2001) 25 Cal.4th 327, 331.) Consistent with Penal Code section 1111, CALCRIM No. 334 instructs the jury that an accomplice is any person “subject to prosecution for the identical crime charged against the defendant,” and that if the jury finds that a witness was an accomplice, it cannot convict the defendant on the basis of the accomplice’s testimony unless credible, independent evidence linking the defendant to the crime corroborates that testimony. CALCRIM No. 334 also instructs that any testimony “of an accomplice that tends to incriminate the defendant should be viewed with caution.”
Mitchell’s testimony is evidence from which a jury could reasonably have determined that Vandor was subject to prosecution for at least one of the home burglaries with which Mitchell was charged. Mitchell testified that on the evening of October 13, 2013, he left Vandor in the Woodside hills, then returned at Vandor’s request to pick him up, along with some wheel rims, a lap top, and other items Vandor had collected. Ms. Ferrari testified that these same items went missing from her home on Croyden Way on the night of October 13, 2013, giving rise to the first degree burglary charge in count two. The jury should therefore have been instructed that before they considered Vandor’s testimony against Mitchell, they should decide whether Vandor was an accomplice and, if he was an accomplice, then they should view his testimony with caution and not accept it without sufficient corroboration. (See Pen. Code, § 1111; People v. Tobias, supra, 25 Cal.4th at p. 331.)
We see no prejudice from the trial court’s error in failing to so instruct the jury. Corroborating evidence connecting Mitchell with the two residential burglaries was abundant, including evidence that the wheel rims stolen from Ferrari’s house were found at Mitchell’s home when he was arrested three days after the crime, that a Chevron credit card stolen from the other burglarized home was also found in Mitchell’s home, and that, according to Mitchell’s own testimony, he was in the Woodside hills on the night of the crime committing auto burglaries and helping Vandor to cart away the stolen goods. “A trial court’s failure to instruct the jury that it should view an accomplice’s testimony with distrust does not prejudice the defendant when the record contains sufficient corroborating evidence” (People v. Williams, supra, 16 Cal.4th at p. 226), and this record contains more than sufficient evidence to corroborate Mitchell’s involvement in the crime.
Although it is a closer question, we conclude that Mitchell also suffered no prejudice from the trial court’s failure to admonish the jury that accomplice testimony “should be viewed with caution.” (CALCRIM No. 334.) The trial court did read CALCRIM No. 226, reminding the jury that in assessing the credibility of a witness it could consider the witness’s personal interest in a case, promises of immunity in exchange for the witness’s testimony, and evidence of a witness’s own criminality bearing on the witness’s credibility. Given his criminal history Vandor was a somewhat compromised witness, but one without the same incentives to shift blame onto a co-defendant that an accomplice sometimes has, as there was absolutely no evidence tying Vandor to any of these crimes except for Mitchell’s self-interested testimony. Considering the jury charge as a whole, it is not reasonably probable that the jury would have reached a different outcome if the jury had also been told that the testimony “of an accomplice should be viewed with caution” and given “the weight you think it deserves after examining it with care.” (CALCRIM No. 334.) The failure to give CALCRIM No. 334 or a similar instruction is therefore harmless error. (People v. Watson (1956) 46 Cal.2d 818, 835–836; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
D. Giving CALCRIM No. 361 (Failure to Explain or Deny Adverse Testimony) Was Error, But Harmless.
The parties and the trial court agreed that the evidence did not support giving CALCRIM No. 361 (Failure to Explain or Deny Adverse Testimony), but it was inadvertently read to the jury as part of the charge. We agree with Mitchell this was error, but conclude it was harmless.
In reading CALCRIM No. 361, the trial court said: “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 the defendant guilty beyond a reasonable doubt.”
This “instruction applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (People v. Cortez (2016) 63 Cal.4th 101, 117.) The People have not pointed to any such failure to explain or deny in Mitchell’s testimony. Reading this instruction to the jury was accordingly error.
Mitchell argues that the error was not only prejudicial, but that it violates the due process requirement of reciprocity in a manner that interfered with his right to a fair trial. A similar due process argument was considered and rejected in People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1067. Rodriguez reasons that “Evidence Code section 413 allows a trier of fact to consider a party’s failure to explain or deny evidence,” which “distinguishes a criminal defendant from the other trial witnesses.” (Id. at p. 1068.) But Mitchell correctly points out that this state statute cannot cure a federal constitutional problem, if there be one. (See, e.g., Carella v. California (1989) 491 U.S. 263, 264–266 [jury instructions embodying statutory presumptions violate due process]; Griffin v. California (1965) 380 U.S. 609 [failure-to-explain-or-deny instruction, if defendant does not testify, violates due process].) More persuasively, Rodriguez also explains that CALCRIM No. 361 incorporates the presumption of innocence by informing the jury that a defendant’s failure to explain or deny incriminating evidence “ ‘is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt.’ ” (Rodriguez, at pp. 1066–1067.) In this regard, the instruction is much more favorable to a defendant than a similar instruction, CALJIC No. 2.62, which our Supreme Court has found not inconsistent with due process, even though that CALJIC instruction informed the jury that a similar failure to explain or deny could be taken “ ‘as tending to indicate the truth of’ ” the incriminating evidence. (People v. Saddler (1979) 24 Cal.3d 671, 677, fn. 4, 679–680; see also People v. Lamer (2003) 110 Cal.App.4th 1463, 1471 [CALJIC No. 2.62 does not violate due process by requiring defendant to disprove an element of the offense].) If CALJIC No. 2.62 does not violate due process, we fail to see how the milder instruction given in this case would.
Mitchell relies on Wardius v. Oregon (1973) 412 U.S. 470 and Evans v. Superior Court (1974) 11 Cal.3d 617 in arguing there is a due process requirement of reciprocity that CALCRIM No. 361 offends, but those cases are easily distinguished. Wardius holds that because due process requires a “balance of forces between the accused and his accuser,” a state may not—absent a strong showing of state interests—require a defendant to disclose his alibi before trial if the state is not similarly required to disclose witnesses who will rebut that alibi. (Wardius, at p. 474–475.) And on the same reciprocity rationale, Evans holds that a defendant is entitled, in an appropriate case, to a pre-trial line-up because the prosecution has the ability to conduct one. (Evans, at pp. 623, 625.) These decisions are about making investigative resources or discoverable information available on a reciprocal basis. They do not address jury instructions, and do not require that the jury charge ignore the ways that a defendant is not like other witnesses. Mitchell does not persuade us that the reciprocity principle of Wardius and Evans has any bearing on the constitutionality of CALCRIM No. 361, or that giving this instruction in any way deprived him of a fair trial.
Applying the harmless error standard of People v. Watson, supra, 46 Cal.2d at page 836, we find that including CALCRIM No. 361 in the jury charge was harmless because it is not “reasonably probable” Mitchell would have obtained a more favorable result if this instruction had not been given. Most likely, the jury ignored CALCRIM No. 361, as the parties identified no failure on Mitchell’s part to explain or deny the evidence against him. The trial court instructed the jury with CALCRIM No. 200, including: “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. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) But even if the jury did think CALCRIM No. 361 applied to the facts of this case, the instruction directed them to “consider” Mitchell’s failure to explain or deny evidence against him, but to decide for themselves “the meaning and importance of that failure.” The instruction specifically counsels the jury not to make too much of it. Any failure to explain or deny incriminating evidence is “not enough by itself to prove guilt,” which “[t]he People must still prove . . . beyond a reasonable doubt.” (CALCRIM No. 361.) Because the presumption of innocence is built into this instruction (instead of the jury being encouraged to apply an adverse inference if the defendant fails to explain away incriminating evidence), and because the court told the jury to ignore inapplicable instructions, we see no prejudice from the reading of this instruction.
E. Cumulative Instructional Error
Mitchell argues that the instructional errors were cumulative and collectively require reversal. As to the residential burglaries charged in counts one and two, we consider the issue of cumulative error to be close. The fundamental decision for the jury was whether Mitchell’s testimony created a reasonable doubt as to whether he or Vandor burglarized these two homes. Vandor denied any involvement, but the court erred in not informing the jury to view that testimony with caution. Compounding that error, the court mistakenly told the jury it could consider any failure on Mitchell’s part to explain or deny evidence against him.
Ultimately, we find no reversible error, even as to the residential burglary charges. In addition to the reasons explained in sections C and D, ante, we see problems with Mitchell’s testimony that would have made it difficult for the jury to accept. We name just a few. First, Mitchell damaged his own credibility by giving statements to the police before trial in which he told numerous lies, some of them blaming on other people crimes to which he later admitted. Second, Mitchell testified about Vandor’s conduct at the Ghasemi’s home at the outset of his October 13 crime spree in a manner that undermines Mitchell’s theory that Vandor committed the residential burglaries. Mitchell testified that as he went up the driveway to burglarize Ghasemi’s vehicles, Vandor stayed on the street at the end of the driveway because there was light coming out of the windows of the house and Vandor did not want to go onto the property with people home. Yet Mitchell insisted that he never went into any houses, suggesting that the door left open at Ghasemi’s house and the two other burglaries of inhabited homes in the neighborhood were Vandor’s doing. Third, Mitchell’s account of his communications with Vandor on the night of the crime spree is improbable. Perhaps to explain why his own phone showed no telephone calls or texts with Vandor, Mitchell testified that he communicated from a stolen phone he came upon and could no longer locate, and that he did so without changing the service into his own name. Fourth, Mitchell implicitly blamed on Vandor even a crime that Mitchell admitted to the jury he himself had committed. Specifically, Mitchell testified that the property he discarded in the front yard of Ghasemi’s neighbor when he went back to dig up the two stolen phones was stuff that Vandor had placed in the console of his truck. But that property came from Ghasemi’s vehicle, which Mitchell admitted burglarizing with no help from Vandor. Inconsistent statements like this would have made Mitchell’s testimony difficult for the jury to credit, especially in light of the evidence that Mitchell was a burglar on a crime spree that night, with a propensity to blame his crimes on others.
Our review of the record as a whole leads us to conclude that it is not “reasonably probable” that the jury, properly instructed, would have reached a different conclusion about Mitchell’s responsibility for the residential burglaries. The charge, taken as a whole, directed the jury to consider each witness’s credibility and provided specific guidance as to factors that could help with that task. The charge also told the jury to disregard instructions that did not apply, and to decide for themselves the significance of the testimony they heard. While the two errors that Mitchell has identified are regrettable, they fail to “rise by accretion to the level of reversible and prejudicial error.” (People v. Hill, 17 Cal.4th 800, 844.)
DISPOSITION
The judgment is affirmed.


_________________________
TUCHER, J.*


We concur:


_________________________
KLINE, P.J.


_________________________
MILLER, J.









* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.