P. v. Stinnett

Filed 12/22/08 P. v. Stinnett CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Victor S. Haltom, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Robert Curtis Stinnett of violating Penal Code sections 666 (petty theft with a prior)^[1]and 488 (petty theft). He was sentenced to an aggravated term of three years, plus four one-year enhancements that resulted from four prior convictions, each resulting in prison terms ( 667.5, subd. (b)), for a total term of seven years.

Stinnett argues that his convictions must be reversed because of numerous errors in instructing the jury and because the prosecutor committed misconduct while questioning witnesses and during closing argument.

We agree with Stinnett that the trial court erred in failing to instruct the jury sua sponte with three separate instructions (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM Nos. 358, 359, 1800). We also agree that the prosecutor committed misconduct during his cross-examination of Stinnett by asking Stinnett if other witnesses, whose testimony contradicted Stinnetts testimony, were lying. We affirm the judgment, however, because these errors, either singularly or together, did not result in a reasonable probability that Stinnett would have obtained a better result if he had received an error-free trial.

FACTUAL AND PROCEDURAL SUMMARY

On March 6, 2007, at approximately 2:00 a.m., Tel-Tec Security Systems (Tel-Tec) received an alarm activation at Melos Gas & Gear, followed shortly thereafter by two additional alarm activations. The sheriffs department was notified, as was the owner of the business, David Melo.

Melo arrived at the location shortly after receiving the call from Tel-Tec. When he arrived he saw Stinnett in a vehicle in the parking lot of the business. The vehicle was probably in the darkest part of the yard. The trunk to the vehicle was open. Stinnett casually started to drive off when two Kern County Sheriffs officers arrived.

Deputy Sheriff Lance Grimes responded to Melos Gas & Gear. Grimes saw a vehicle in front of Melos vehicle driving out of the parking lot with its trunk open. Grimes stopped the vehicle. Stinnett was the driver of the vehicle. A metal clipboard, similar to the ones used by police officers to hold paperwork, and a black radio device in a pouch, later identified as a scanner, were recovered from the front seat of the vehicle. A search of the business yard failed to locate any other individuals. The search did not reveal any sign of forced entry.

Deputy Sheriff Andrew Chaidez also responded to the alarm call. Melo and other deputies already had arrived at the scene. In response to Chaidezs questions, Stinnett stated that he had been at the business because his vehicle had overheated. Chaidez searched Stinnetts vehicle and located the metal clipboard and scanner. When asked about the clipboard, Stinnett replied, Oh, that one, or similar words. He denied the property was from inside the business. When asked about the scanner, he stated, God must have put it there.

Melo testified that it appeared that two or three other trucks also had been ransacked that night. The scanning system used in each truck cost about $1,000. Melo had never met Stinnett, and Stinnett did not have permission to possess the scanner or the metal clipboard.

Philip Marquez, who works for Melo Gas & Gear, made deliveries in his truck on March 5, 2007. At the end of his shift he left part of his scanner (used to scan the bar codes on the bottles that are delivered and picked up during the day), his metal clipboard, and lunch box inside his work truck. He identified the part of the scanner and the metal clipboard that were recovered from Stinnetts vehicle as the items he had left in his truck at the end of the work day of March 5.

Stinnett testified he was on his way home from work when his car broke down so he stopped at a business because it had lighting. He parked the car five or six feet from the fence where the car died. Stinnett became angry and started walking around. He took out his anger by kicking the fence. He then sat next to the fence to cool down, and then opened the trunk and the hood of his vehicle. Stinnett began hitting the starter with a wrench in an attempt to start the vehicle. Because he had to get under the car, Stinnett picked up a metal clipboard he found next to the fence on which he was going to rest his head. He also found the scanner still inside a pouch lying next to the fence. After he got his car started, Stinnett decided the two items he found were abandoned, so he placed them in his car. When he started to leave, a vehicle pulled up behind him. Sheriffs deputies arrived shortly thereafter and Stinnett complied with orders to stop his vehicle. Stinnett was handcuffed and placed in the back of a patrol vehicle.

Stinnett explained to the deputies that he stopped because his car had overheated. He also denied having anything in his vehicle that belonged to the business. He did not realize that the items he found on the ground belonged to the business. He denied saying that God had put the scanner in his vehicle. He denied climbing the fence and going into the business yard. He also explained that his trunk did not latch properly, so it must have opened accidentally when he drove off.

In rebuttal the People recalled Chaidez, who confirmed that Stinnett made the statement about God putting the scanner inside his car.

The amended information alleged in count 1 that Stinnett violated section 487, subdivision (a), grand theft. Count 2 alleged that Stinnett violated section 666, petty theft with a prior conviction. In addition, each count alleged that Stinnett had suffered four prior convictions that resulted in a prison sentence within the meaning of section 667.5, subdivision (b). Stinnett stipulated that he had suffered two prior convictions within the meaning of section 666, and both parties stipulated that if Stinnett were found guilty of grand theft in count 1, or the lesser included offense of petty theft, then Stinnett also would be guilty of violating section 666.

The jury found Stinnett guilty of the lesser included offense of petty theft in count 1 and, pursuant to the stipulation of the parties, the trial court found Stinnett guilty of violating section 666. Stinnett waived his right to a jury trial on the issue of the prior convictions. The trial court found that Stinnett had suffered four prior convictions that resulted in prison terms, and sentenced Stinnett to the aggravated term of three years, plus one year for each prior prison term, for a total prison term of seven years.

DISCUSSION

I. Mistake of Fact Defense Instruction

Stinnett contends the trial court erred in failing to instruct the jury with CALCRIM No. 3406 (Mistake of Fact). He concedes trial counsel did not request the instruction, but asserts the trial court had a sua sponte obligation to instruct the jury with the instruction.

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman).) The trial courts sua sponte instructional obligation includes the obligation to instruct the jury with a specific defense if the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendants theory of the case. (People v. Salas (2006) 37 Cal.4th 967, 982 (Salas); Breverman, supra, 19 Cal.4th at p. 157.) There is no obligation to instruct a jury with a defense if the evidence supporting the defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)

The People acknowledge the trial courts sua sponte obligation on applicable defenses, but contend there was insufficient evidence to support the mistake of fact defense in this case. In assessing the evidence to determine whether to give an instruction, the trial court should not measure the substantiality of the evidence by weighing the credibility of the witnesses. That duty is within the exclusive province of the jury. However, the court need not give the instruction if the evidence is minimal and insubstantial. [Citation.] Finally, any doubt as to the sufficiency of the evidence to support the instruction should be resolved in favor of the accused. [Citation.] (People v. Russell (2006) 144 Cal.App.4th 1415, 1430 (Russell).) Evidence is substantial when, if believed, it would be sufficient to raise a reasonable doubt about the defendants guilt. (Salas, supra, 37 Cal.4th at p. 982.)

The People argue there was not substantial evidence to support a mistake of fact defense because Stinnetts testimony was inherently unbelievable. This assertion ignores the parameters of our analysis. We are required to assume the jury would believe Stinnetts testimony. The issue is whether Stinnetts testimony was sufficient to raise a reasonable doubt about his guilt. If so, the evidence was substantial enough to require the trial court to instruct the jury sua sponte about the mistake of fact defense.

The mistake of fact defense is applicable to claims that a defendant believed property was abandoned. (Russell, supra, 144 Cal.App.4th at p. 1426.) Here, Stinnett testified that he found the items on the ground near a trash can. If the jury believed this testimony, it would provide substantial evidence that the property was abandoned, thus negating the requirement that Stinnett intended to deprive the owner of the property. (CALCRIM No. 1800.) Accordingly, the trial court had a sua sponte obligation to instruct the jury with CALCRIM No. 3406 on Stinnetts claim that he thought the property was abandoned.

An instructional error such as the one in this case requires reversal of the judgment if, after examining the entire record, we conclude there is a reasonable probability the error affected the outcome of the trial. (Breverman, supra, 19 Cal.4th at p. 165.) While the Peoples argument that there was not substantial evidence to support the mistake of fact defense was not persuasive, the facts on which they relied in making the argument demonstrate why the trial courts error was harmless.

The essential facts in this case are undisputed. An alarm was activated at Melos business at 2:00 a.m. When Melo and the police arrived (less than 10 minutes after the alarm was activated the first time), Stinnett was attempting to drive away in his vehicle with the trunk lid in the open position. A search of his vehicle revealed the items that were removed from a vehicle within the businesss locked compound.

The only issue was Stinnetts intent. But his testimony was simply unbelievable. He claims he stopped when his car broke down, worked on his car for a few minutes before he was able to start it, and then was accosted when he attempted to drive away. It is inconceivable that Stinnett, based on his testimony, was not present when the alarm was tripped at Melos business. It also is inconceivable that the items were taken before Stinnett arrived by an unknown thief who successfully entered the yard without triggering the alarm, and then the alarm was tripped accidentally several times by some other person or animal. It also is inconceivable that if this very skilled, or very lucky, thief did break into Melos business, he or she would leave the only items he or she took along the fence line where Stinnett stopped his vehicle.

More likely the alarm was tripped by the person who broke into and took the items from Melos business. If so, the thief must have been at the business the same time as Stinnett. Stinnett testified, however, that he did not see or hear anyone else while he was working on his vehicle. This testimony is unbelievable because this unknown thief would have walked very near Stinnett and his vehicle to place the stolen items where Stinnett claimed he found them. In other words, Stinnetts testimony was so unbelievable the jury surely rejected it.

Nor is the testimony made more believable because the jury asked a question during deliberations. Specifically, the jury inquired whether it would be considered theft if the defendant took the items from outside the fence and did not cross the fence. After discussing the matter with the attorneys, the trial court informed the jury that the elements of theft did not require items stolen or property stolen be on the property of the owner. Its not on there as one of the elements. The elements are the defendant took possession of the property owned by someone else; the defendant took property without the owners consent; the defendant took the property and he intended to deprive the owner of it permanently; and that the defendant moved the property even a small distance and kept it for any period of time, however brief. The jury returned with a verdict shortly after the trial court answered its question.

The jurys question does not suggest that it believed Stinnetts testimony. Instead, the question implies that the jury thought either that Stinnett had an accomplice, or that he knew the property was valuable when he found it lying outside the fence. Under either scenario, the jury rejected Stinnetts testimony in all relevant parts.

Stinnetts version of the events was so unbelievable that it undoubtedly was rejected by the jury. Therefore, there is no reasonable probability the jury would have reached a different conclusion had it been instructed with a mistake of fact defense.

II. Failure to Instruct with CALCRIM Nos. 358 and 359

The trial court did not instruct the jury with CALCRIM No. 358 (Evidence of Defendants Statements) or CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged Crime), nor did Stinnett request the instructions. Stinnett argues the trial court erred because it had a sua sponte duty to instruct the jury with these instructions. The People concede the trial court had a sua sponte duty to instruct with both instructions, but claim the error was harmless. We agree.

We begin with the corpus delicti rule. Whenever an accuseds extrajudicial statements form part of the prosecutions evidence, the cases have additionally required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.] (People v. Alvarez (2002) 27 Cal.4th 1161, 1170 (Alvarez).) The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] (Id. at p. 1171.) Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.] (Id at p. 1181.)

It is not reasonably probable the jury would have reached a different result since there was more than sufficient independent evidence of the corpus delicti of the crime. Melo and Marquez explained that the scanner and clipboard belonged to Melos company, and that both items were in Melos vehicle at the end of the previous business day. The alarm was activated on at least three separate occasions. The scanner and clipboard were found in Stinnetts vehicle. This independent evidence is more than adequate to establish, as a matter of law, that the failure to give the instruction was harmless. (Alvarez, supra, 27 Cal.4th at p. 1181.)

CALCRIM No. 358, on the other hand, would have provided some benefit to Stinnett because it specifically informs the jury that it must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded. Stinnetts argues that prejudice was inherent in the failure to give these instructions because the statement attributed to him by Chaidez, that God must have put the scanner in his car, was tantamount to an admission of guilt. Since Stinnett denied making this statement, he argues that CALCRIM No. 358 would have convinced the jury that Stinnett, and not Chaidez, should have been believed.

We are not convinced a different result would have been reached had the jury been properly instructed. The issue of believability was squarely before the jury. Chaidez testified that the God must have put it there statement was made by Stinnett, and Stinnett denied it. Instructing the jury that Stinnetts statement should be viewed with caution when he admitted putting the scanner in his vehicle adds nothing to the debate. Considering Stinnetts incredible story, discussed in the preceding section, it is not reasonably probable that Stinnett would have obtained a better result if CALCRIM No. 358 had been given.

III. Prosecutorial Misconduct

Stinnett argues the prosecutor committed misconduct during trial, entitling him to a new trial. He assigns as misconduct questions asked during cross-examination that fall into the were the other witnesses lying category, and attempts by the prosecutor to capitalize on the discrepancy between Stinnetts testimony and Chaidezs testimony.

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 819.)

The first instance of alleged misconduct occurred during the prosecutors cross-examination of Stinnett. The prosecutor first confirmed that Stinnett claimed he did not tell Chaidez that God had put the scanner in his vehicle. The prosecutor then followed up with Stinnett as follows:

Q. Okay. In that situation that we had Deputy Chaidez who came in just a little bit ago and he testified that you said that to him after he asked you about the scanner --

A. Thats false.

Q. So in this case, again, the deputies are not telling the truth in your opinion?

A. Yes, he put words in my mouth.

Q. So youre saying the deputy came in here and under oath testified that you said that he was not telling the truth?

A. Yes. Because he was -- he was kind of forcing me when I was sitting in the back of the vehicle.

Q. My question was purely concerning Deputy Chaidez and what you believed he was doing when he testified under oath.

A. I did not make that statement. He said that statement.

The prosecutor used the same tactic when he cross-examined Stinnett about Melos testimony.

Q. Mr. David Melo who owned the business stated the car [was] parked[] [p]robably in the darkest area in that parking lot.

A. Thats not true.

Q. So youre saying that Mr. Melo who owns the compound is not telling the truth in that regard?

A. I dont know if hes not telling the truth or not, but there was a light on that building and thats the reason I parked next to there because I didnt have to use a flashlight.

Q. The question is when David Melo came up and observed your vehicle he said where your vehicle was located was the darkest area of that parking lot.

A. I dont know if thats true or not.

It is unfortunate that prosecutors continue to use this tactic since it is clearly improper. As explained in People v. Zambrano (2004) 124 Cal.App.4th 228, 239-243 (Zambrano), such questions are argumentative and designed to elicit irrelevant and inadmissible lay opinion that would invade the province of the jury to judge the credibility of the witnesses. There was no need to clarify Stinnetts testimony. Before the prosecutor began his cross-examination of Stinnett, it was clear that he and Chaidez disagreed upon whether Stinnett made the God must have put it there statement. The dispute could not have been clearer, and asking Stinnett whether the deputy was being truthful could not possibly have led to admissible evidence.

The questions concerning Melos testimony also are improper, even though Stinnett deflected them by claiming that there was light where he parked. Counsel compounded these errors by referring in closing argument to Stinnetts attempt to convince the jury that

Chaidez got up on the stand, under oath, as a police officer, and lie to you. Thats what Mr. Stinnett is trying to have you believe. Similar to him trying to have you believe that David Melo got on the stand and said this is the darkest part of the yard even though hes the owner of the business he doesnt know. It was bright. Hes trying to get you to believe that David Melo got on the stand and did the same thing.

Since there was no justification for the use of such questions during the cross-examination of Stinnett, we conclude the prosecutor committed misconduct with this line of questions.

We will reverse a judgment for prosecutorial misconduct, however, only if it is reasonably probable the jury would have reached a result more favorable to the defendant if the misconduct had not occurred. (Zambrano, supra, 124 Cal.App.4th at p. 243.) Once again, as we explained above, the evidence against Stinnett was so overwhelming that it is not reasonably probable these questions, which did not consume a significant amount of trial time, and the argument, which also was brief, influenced the jury. Therefore, we conclude there is not a reasonable probability that Stinnett would have obtained a better result had the misconduct not occurred.

IV. Multiple Convictions

Stinnett contends, and the People concede, that he was convicted on two separate counts for the same theft. This is impermissible. (People v. Brito (1991) 232 Cal.App.3d 316, 326, fn. 8.) Accordingly, we will reverse the judgment on count 1 of petty theft ( 488) and vacate the concurrent six-month sentence imposed on that count.^[2]

DISPOSITION

The judgment on count 2 for petty theft with a prior conviction ( 666), and the prison term imposed thereon, is affirmed. The judgment of conviction on count 1 for petty theft ( 488) is reversed and the concurrent sentence imposed on that count is vacated.

_____________________

CORNELL, Acting P.J.

I CONCUR:

_____________________

GOMES, J.

CONCURRING OPINION OF KANE, J.

I concur in the decision that the judgment of conviction on count 1 for petty theft should be reversed and the judgment on count 2 for petty theft with a prior conviction and the prison term imposed thereon should be affirmed. I write separately to express my disagreement with the majoritys conclusion that the prosecutor committed prosecutorial misconduct in his cross-examination of defendant and during his final argument.

Case law recognizes two levels of prosecutorial misconduct. The first violates the federal Constitution when it amounts to a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Smithey (1999) 20 Cal.4th 936, 960.) Where the misconduct does not render the trial fundamentally unfair, prosecutorial misconduct occurs only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Smithey, supra, at p. 960.) The majority opinion acknowledges these two types of misconduct but does not identify which category of misconduct the prosecutor purportedly committed or whether his conduct satisfied both definitions. Regardless, in my opinion there was no misconduct under either definition.

Were they lying questions do call for inadmissible opinion testimony and may infringe on the jurys right to make credibility determinations. (People v. Foster (2003) 111 Cal.App.4th 379, 384.) These questions are also objectionable on the ground that they are argumentative. Nevertheless, such questions are asked everyday in trials of all types, civil and criminal. In some instances, such questions fail to draw an objection at all. Counsel sometimes want witnesses--even their own client--to answer a were they lying question in order to emphasize that one side is lying and one side is telling the truth.^[3] Throughout the country there are some lines of cases holding that were they lying questions are always misconduct, some holding they are not misconduct and others holding that they are neither categorically improper nor categorically proper, depending upon the circumstances. (People v. Foster, supra, at pp. 384-385.)

In this case, the prosecutor asked two were they lying questions of defendant regarding Deputy Chaidez and one such question was asked of defendant about David Melo. These three were they lying questions did not comprise an egregious pattern of conduct that infected the trial with unfairness nor did they involve the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) There was no pattern of conduct. There was no deception. There was no reprehensibility.

Finally, reference is made to a portion of the prosecutors opening argument, in which he said:

Mr. Stinnett would have you believe that Deputy Chaidez got up on the stand, under oath, as a police officer, and lie[d] to you. Thats what Mr. Stinnett is trying to have you believe. Similar to him trying to have you believe that David Melo got on the stand and said this is the darkest part of the yard even though hes the owner of the business he doesnt know. It was bright. Hes trying to get you to believe that David Melo got on the stand and did the same thing.

This argument is the same argument that could have been made even if the were they lying questions had not been asked. This kind of argument--in which it is argued that the other side would have you believe a party or witness is lying-- is not untypical in trials of all kinds, based on conflicts in the testimony, even without a witness being asked if other witnesses lied. When there are irreconcilable conflicts in testimony, counsel sometimes employ the tactic of arguing that before the jury can accept a witnesss testimony as true, the jury must conclude that the opposing witness actually lied. Under those circumstances, there is nothing improper about making that argument.

The prosecutors opening and closing arguments made clear that he was not relying on any opinion testimony of defendant, but rather was asking the jury to find his witnesses credible and defendant incredible. In the prosecutors closing argument, he stated:

When it gets down to believability of a witness, the point is you have to weigh the witnesses, their credibility. I asked Mr. Stinnett on the stand concerning Mr. Melos statement of that being the darkest spot. He said its not true. Mr. Melo is the owner of the business.

There you have to weigh the credibility. Who is believable in this situation? The issue with Deputy Chaidez and Mr. Smith is the same circumstances. Mr. Stinnett is basically saying or is saying that what Deputy Chaidez said on the stand is not true. You have to weigh the believability of the witness.

There is nothing improper about this argument. There was no pattern of misconduct nor was there any misconduct that amounted to a denial of due process or the use of deception or reprehensibility. Neither the trial court nor defense counsel objected or called into question these matters during the trial. While that is not determinative of whether misconduct occurred, it tends to support the de minimis nature of this conduct, which falls significantly short of being egregious, deceptive or reprehensible.

__________________________

Kane, J.

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

^[2]The abstract of judgment does not refer to the petty theft conviction, and therefore does not need to be amended.

^[3] In this case, defense counsel did not object to the three were they lying questions posed to defendant by the prosecutor during cross-examination.