P. .v Morales

Filed 8/31/09 P. .v Morales CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed with directions.

Kathleen Woods Novoa, 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, Sharon L. Rhodes and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant, Joseph Morales, of first degree robbery (Pen. Code 211),^[1]during which he used a deadly weapon ( 12022, subd. (b)(1)), residential burglary ( 459), while someone was present in the residence ( 667.5, subd. (c)), receiving stolen property ( 496, subd. (a)), vehicle theft (Veh. Code, 10851, subd.(a)) and misdemeanor hit and run (Veh. Code, 20002, subd. (a)). He was sentenced to prison for 7 years and appeals, claiming error in the admission of evidence and instruction of the jury. We reject his contentions and affirm, while directing the trial court to amend the abstract of judgment and minutes of the sentencing hearing to correct errors therein.

Facts

On January 4, 2007, defendant participated in a home invasion robbery, while using a machete. On January 11, property taken in a residential burglary was found in defendants car. On January 17, he took off in a car belonging to the grandmother of a friend, after a police officer had blocked his exit and ordered him to sit on a curb where he could be interviewed. On his way out of the parking lot, he hit a parked car, but kept going. On January 22, he revisited the site of the home invasion robbery and used a crowbar to break in.

Issues and Discussion

1. Admission of Victims Preliminary Hearing Testimony

In their trial brief, the People asserted that the preliminary hearing testimony of the female victim of the home invasion robbery was admissible under, inter alia, Evidence Code section 1291.^[2] They further asserted that this victim was unavailable in that she died a few weeks after testifying at the preliminary hearing on February 15, 2007. The People received a return subpoena that was sent out via the United States Postal Service stating that [she] was deceased.

During a 402 hearing just before trial began, defense counsel not only did not contest this representation, but he asked the trial court to prohibit any mention [of] the death of [the female victim of] . . . the home-invasion robberies.  . . .  Shes unavailable. I just dont think the jury needs to know that shes dead. Defense counsel did not contend that this victims preliminary hearing testimony was inadmissiblerather, when the prosecutor told the trial court she had a reader who was prepared to read the testimony that day, the court asked defense counsel if he was going to be an active participant and he said no, adding that he did not mind if the reader also read the cross examination.

Defendant here contends that the trial court erred when it allowed the preliminary hearing testimony of this victim to be read into the record because the People had produced no evidence that she was dead. However, defense counsels representation to the trial court that this victim was, indeed, dead and, therefore, unavailable, rendered such proof unnecessary and his failure to object to the admission of this evidence on this basis waived the admissibility of this evidence. (Evid. Code, 353.) Defendants fall-back position, that his trial attorney was incompetent for failing to object to the admission of this evidence on the ground that the People had not proved that this victim was dead might have a better chance had trial counsel, himself, not conceded this fact.

2. Jury Instructions

a. Judicial Council of California Criminal Jury Instructions, CALCRIM No. 220

After requesting that CALCRIM No. 220 be given to the jury, defendant now claims it erroneously prohibited the jury from considering the absence of evidence as a basis for finding reasonable doubt. That standard instruction provides, The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.

Not only has defendant waived his argument by requesting the instruction below,^[3]it is meritless. The instruction says nothing about the absence of evidence, therefore, defendants characterization of it is in error. CALCRIM No. 220 tells the jury that the evidence must prove defendants guilt beyond a reasonable doubt and [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal . . . . Therefore, the instruction unequivocally implies that the absence of evidence that proves guilt beyond a reasonable doubt requires an acquittal.^[4]

As defendant concedes, an identical argument was rejected in People v. Guerrero (2007) 155 Cal. App. 4th 1264, 1268 (Guerrero). Therein, the appellate court held,  . . . CALCRIM No. 220 instructs the jury to acquit in the absence of evidence.  . . . [W]e consider whether a reasonable juror would apply the instruction in the manner suggested by defendant. [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendants guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant. (Id. at pp. 1268-1269.)

Division One of this court, in People v. Westbrooks (2007) 151^[5]Cal.App.4th 1500, 1509 (Westbrooks), which defendant also cites as unsupportive of his contention, held,  . . . 220 . . . does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendants guilt. [It] . . . conveyed to the jury the notion that the People had the burden of proving [defendants] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing guilt.

People v. Flores (2007) 153 Cal.App.4th 1088, 1093, People v. Zavala (2008) 168 Cal.App.4th 772, 781 and People v. Garelick (2008) 161 Cal.App.4th 1107, 1119 also agree with our position and that taken in Guerrero and Westbrooks.

b. CALCRIM No. 372

The jury was given the following modified version of the standard instruction on flight, CALCRIM No. 372, If the defendant fled immediately after being detained by a peace officer, that conduct may show that he was aware of his guilt.

Defendant begins his attack on the giving of this instruction by criticizing it in general, although he concedes that the California Supreme Court has generally upheld it. He offers no convincing argument for us to depart from this binding precedent.

Next, defendant claims that the only crime to which this instruction was applicable was the misdemeanor hit and run and the instructions failure to limit itself to that crime requires reversal of all his convictions. First, if defendant wanted clarification of the instruction, it was incumbent upon him to request itotherwise, the matter is deemed to have been waived. (People v. Guerra (2006) 37 Cal.4th 1067, 1134, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)

Second, the instruction wasmodified to limit its application to the crime that culminated in defendant being detained by the police and then immediately thereafter fleeing. There was only one crime amongst defendants several that fits that description and that was the vehicle theft on January 17, 2009. The instruction clearly did not apply to the hit and run because defendant began fleeing before he committed that crime. In fact, his commission of that offense was part of the act of fleeing. The prosecutor argued to the jury that defendant fleeing showed consciousness of guilt only as to the car theft.^[6] Defendants defense to this charge was that he believed he had permission to drive it.^[7] Identity was not at issue. Therefore, defendants argument that the flight instruction is inappropriate when identity is at issue is irrelevant. Moreover, as the People correctly point out, the California Supreme Court has rejected this argument. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140; People v. Mason (1991) 52 Cal.3d 909, 943.) Therefore, even if the jurors somehow applied this instruction to the home invasion robbery, this was not improper.

Disposition

The trial court imposed a $2,000 restitution fine and a $2,000 parole revocation fine. The abstract erroneously reported both as being $200 and the sentencing hearing minutes report the latter was $200. The trial court is directed to amend the abstract and minutes to correct these mistakes. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] That section provides, (a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and : [] (1) The former testimony is offered against a person who offered it in evidence of his own behalf on the former occasion or against the successor in interest of such person; or [] (2) the party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing. [] (b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to: [] (1) Objections to the form of the question which were not made at the time the former testimony was given. [] (2) Objections based on competency or privilege which did not exist at the time the former testimony was given.

^[3]Contrary to defendants characterization of what his trial attorney did, counsel did not just not object to the instructionhe requested that it be given.

^[4] One of the opinions defendant cites in his opening brief, which he asserts upheld the . . . instruction against constitutional challenges such as the one [defendant] puts forth here but ha[s] been incorrectly decided because [it] d[id] not take into consideration the arguments of prosecutors who exploit this misstatement of the law, leading to the lessening of their burden did not address the same argument defendant advances here. (See People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156, 1157.)

^[5] Appellate counsel for defendant inadvertently cites Westbrooks as Westbrook and as being located at 131 Cal.App.4th.

^[6] Although the prosecutor argued that defendant fleeing the scene of the January 4 home invasion robbery/residential burglary (defendant was acquitted of the latter) and the January 22 residential burglary also showed his consciousness of guilt as to these offenses, none of these offenses resulted in defendant being detained by the police on January 17.

^[7] The jury was given the mistake of fact instruction in relation to this charge.