P. v. Parrish
Filed 9/28/10 P. v. Parrish CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TYNELL TYRONE PARRISH,
Defendant and Appellant.
D055814
(Super. Ct.
No. SCS221559)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Timothy R. Walsh, Judge. Affirmed.
A jury
convicted Tynell Tyrone Parrish of robbery
(count 1, Pen. Code,[1] § 211)
and conspiracy to commit robbery (count 2, § 182, subd. (a)). The court sentenced him to prison for three
years. On appeal, Parrish contends the
trial court erred in instructing the jury with CALCRIM No. 361 (defendant's
failure to explain or deny evidence against him). For reasons we explain, we disagree and
affirm the judgment of conviction.
FACTUAL
AND PROCEDURAL BACKGROUND[2]
Parrish
initially met co-defendant Connely Trazel Brown[3] in 2006
playing online video games and they began having daily conversations, including
one in which Parrish agreed to rob the Eastlake Petroleum gas station. At the time, Parrish was working as a state
correctional officer in New York. He came to San Diego
the weekend of May 31 to June 2, 2008. Parrish claimed he came to participate in a
Sony video game competition with Brown, however, Parrish never played in the
competition.
Francisco
Avila manages the Eastlake Petroleum gas station in Chula
Vista. Brown
worked as a cashier at the gas station.
Cashiers are required to put money into the safe when their cash
registers exceed $300. Avila's
managerial responsibilities include taking the money from the safe, counting it
and depositing it in the bank. The money
is taken to the bank every day except weekends, when the bank is closed. Therefore, Monday deposits are the largest
because they include money collected on Friday, Saturday and Sunday.
On Monday, June 2, 2008, Avila
and Brown were both working at the gas station.
Parrish accompanied Brown to work, but stayed in the car. Brown parked the car, a Hyundai Sonata, next
to Avila's car and left the keys
with Parrish. Later that day, the gas
station's video surveillance showed Avila
opening the safe while Brown was two or three feet away from him, working at
the register. Avila
placed the money into a merchandise bag and then walked into his office to
count the money. While Avila
was counting the money, Brown was talking on a cell phone. When Avila
finished counting the money, he got into his car to go to the bank. The video showed Brown holding a cell phone
and looking out the window as Avila
walked toward his car. Brown then left
the building and looked toward the area where Avila
always parked his car. At this point,
the video showed Brown holding a cell phone to his ear.[4]
Avila
drove to the bank and parked directly in front of the bank entrance. As he walked towards the entrance, he noticed
an African-American man wearing a blue shirt walking into the bank. The man walked past Avila,
then quickly turned around and punched Avila
in the forehead. The man pulled on the
bag of money until it ripped and took off with approximately $22,000. Edith Flores, a bank employee, called the
police and reported a man had stolen a deposit and was driving away in a navy
blue Hyundai, license plate 395R72. Flores
described him as an African-American man, medium height, with short hair,
wearing a short-sleeved blue shirt. In
court she identified Parrish as the man she saw outside the bank.
After
speaking with employees of the gas station, a Chula Vista
police detective went to Brown's address and discovered a Hyundai matching the
description given by Flores. On July
17, 2008, the detective showed Avila
a photographic lineup and Avila
identified Parrish's photograph as the person who robbed him.
DISCUSSION
CALCRIM No. 361: Failure to
Explain or Deny
A. Introduction
The challenged instruction as
given by the trial court, CALCRIM No. 361, reads: "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."
Parrish
contends the trial court improperly instructed the jury that his failure to
explain or deny evidence against him could be used as evidence of his
guilt. Parrish also contends this
improper instruction implicated his constitutional rights and constitutes
reversible error. We conclude Parrish
forfeited his claim by failing to object to the instruction in the trial
court. Nevertheless, we further conclude
his claim fails on the merits.
B. Forfeiture
A defendant's failure to object
to a proposed instruction forfeits his claim of error on appeal, unless the
error affects his substantial rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether claimed
instructional error affected the substantial rights of the defendant
necessarily requires an examination of the merits of the claim--at least to the
extent of ascertaining whether the asserted error would result in prejudice if
error it was." (
1241, 1249.)
Here,
Parrish acknowledges that defense counsel did not object to CALCRIM No. 361 and
appears to have agreed to the instruction.
Thus, Parrish forfeited his claim of instructional error by failing to
raise it in the trial court. In any
event, for the reasons we discuss, we conclude the alleged error did not affect
his substantial rights. We also review
the merits of his contentions to forestall any claim based on ineffective
assistance of counsel.
C. Standard
of Review
A claim of
instructional error is reviewed de novo.
(People v. Posey (2004) 32
Cal.4th 193, 218.) "Review of the
adequacy of instructions is based on whether the trial court 'fully and fairly
instructed on the applicable law.'
[Citation.]" (
1082, 1088.) In determining whether
error has been committed in giving jury instructions, we consider the
instructions as a whole and assume jurors are intelligent persons, capable of
understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted,
if possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.'
[Citation.]" (
D. Analysis
Parrish claims that CALCRIM No.
361 singled out his testimony for special scrutiny and impermissibly invited
jurors not to trust that testimony if there was a conflict in the
evidence. Thus, he asserts the
instructions denied him his rights to a jury trial, to due process and to
present a defense, guaranteed by the Sixth, Fifth, and Fourteenth Amendments to
the United States Constitution.
This court
has reviewed claims of instructional error regarding CALJIC No. 2.62, the
predecessor to CALCRIM No. 361. (See
1463, 1468-1474 [defendant claimed the trial court improperly instructed the
jury, pursuant to CALJIC No. 2.62, that it was entitled to draw certain adverse
inferences from the defendant's failure to explain or deny evidence against
him].) Although the language of CALCRIM
No. 361 differs somewhat from its predecessor,[5] we
conclude the reasoning applied to CALJIC No. 2.62 applies equally to CALCRIM
No. 361. (See People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1067.)
"
'[B]efore a jury can be instructed that it may draw a particular inference,
evidence must appear in the record which, if believed by the jury, will support
the suggested inference [citation].'
[Citation]." (
681.) "An appellate court's duty in
reviewing a claim that CALJIC No. 2.62 was improperly given is 'to ascertain if
[the] defendant . . . failed to explain or deny any fact of
evidence that was within the scope of
relevant cross-examination.'
[Citation.] In order for the
instruction to be properly given '[t]here [must be] facts or evidence in the
prosecution's case within [the defendant's] knowledge which he did not explain
or deny.' [Citation.] A contradiction between the defendant's
testimony and other witness' testimony does not constitute a failure to explain
or deny so as to justify giving the instruction. '[T]he test for giving the instruction is not
whether or not the testimony is believable.
CALJIC No. 2.62, [and similarly CALCRIM No. 361,] is unwarranted when a
defendant explains or denies matters within his or her knowledge, no matter how
improbable that explanation may appear.'
[Citation.]" (
We agree
the trial court erred in instructing the jury with CALCRIM No. 361. Here, the instruction was improper because
there were no facts or evidence in the prosecution's case and within Parrish's
knowledge that he failed to explain or deny.
Parrish denied agreeing to rob Avila. He denied ever seeing Avila
before the court proceedings began. He
testified that he only went to a bar, to Brown's house and to Brown's workplace
while in San Diego. He also testified he had never been to the
bank where Avila was robbed. He denied committing the robbery and said
that he had fallen asleep in Brown's car at the time the robbery was
committed. He denied making any calls to
or receiving any calls from Brown. He
further denied having his cell phone at the time of the alleged calls. Therefore, it appears the trial court erred
by giving CALCRIM No. 361 because it was not warranted by the evidence.
E. The
Error Was Harmless
Having decided the trial court
erred in instructing the jury with CALCRIM No. 361, we turn to the question of
whether that error was prejudicial.
Parrish claims that we must apply the harmless beyond a reasonable doubt
standard of Chapman v. California
(1967) 386 U.S.
18 [87 S.Ct. 824]. However, the
of a federal constitutional dimension. (
which correctly states a principle of law but has no application to the facts
of the case, if that is the only error, it does not implicate federal
constitutional rights. (
1129; see also People v. Rodriguez,
instructing the jury with CALCRIM No. 361].)[6] Courts have "rather uniformly"
applied the harmless error standard adopted in People v. Watson (1956) 46 Cal.2d 818, 836, when reviewing the
erroneous use of CALJIC No. 2.62. (
353, 393.) We conclude the
CALCRIM No. 361. (See
In applying that standard, we must determine whether it is reasonably
probable that the result would have been more favorable to Parrish had the
error not occurred. (
Here, the
evidence against Parrish was overwhelming.
Brown testified that Parrish agreed to rob Avila
at the bank. Brown's testimony was corroborated by two eyewitnesses, cell phone
records and video surveillance tapes.
Parrish also had the keys to the Hyundai implicated in the robbery and Avila
positively identified Parrish as the man who robbed him at the bank.
Additionally,
the court instructed the jury, according to CALCRIM No. 200,[7]
"[s]ome of these instructions may not apply, depending on your findings
about the facts of the case. Do not
assume just because I gave 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."
Because
Parrish did not fail to explain or deny evidence against him, the jury had no
basis for applying CALCRIM No. 361 in evaluating the evidence. "Jurors are presumed able to understand
and correlate instructions and are further presumed to have followed the
court's instructions." (
852.) There is nothing in the record
before us to suggest otherwise.
Under the
circumstances, we conclude it is not reasonably probable that a result more
favorable to Parrish would have been reached in the absence of error. (See People
v. Watson, supra, 46 Cal.2d at p.
836.) Accordingly, we conclude that the
giving of CALCRIM No. 361 was harmless error.
DISPOSITION
The
judgment of conviction is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
McDONALD,
J.
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[1]
All further statutory references are to the Penal Code unless otherwise
specified.
[2]
Discussion of certain facts relating to the specific claims of error
are reserved for analysis in those sections, post. We state the facts in
a light most favorable to the judgment.
(People v. Gaut (2002) 95
Cal.App.4th 1425, 1427.)
