P. v. Baker

Filed 10/23/06 P. v. Baker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Scottrell Kinta Baker, was found guilty after a jury trial of making a criminal threat (Pen. Code, §422, count two) and of personally using a firearm during the commission of his offense (Pen. Code, 12022.5, subd. (a)).^[1] The jury acquitted the appellant of dissuading a witness (§ 136.1, subd. (a)(1), count three) and failed to reach a verdict on whether he committed a robbery (§ 212.5, subd. (c), count one). The trial court granted the prosecution’s motion to add a count alleging appellant committed grand theft from the person of another (§ 487, subd. (c)). Appellant entered into a plea agreement whereby he admitted this allegation in exchange for the dismissal of count one.

The court imposed the middle term of two years on count two plus four years for the gun use enhancement. The court imposed the midterm of two years for grand theft, but ordered it be served concurrently. Appellant’s total prison term is six years. The court imposed a restitution fine and granted applicable custody credits. On appeal, appellant contends the trial court erred in failing to instruct the jury on accomplice testimony. Appellant also contends the court improperly instructed the jury with CALJIC No. 2.27 concerning the testimony of a single witness.

FACTS

Prosecution

On the morning of February 26, 2005, Shaun Hill was waiting for a cab. Hill had been drinking with friends at several bars in Bakersfield and was talking to appellant. Appellant told Hill friends were picking him up. Appellant offered Hill a ride. Appellant telephoned Safiya Lamb, a friend, and told her he was downtown. Lamb and two others in her apartment, Leslie Scott and Bryson Blair, entered Lamb’s car and left.

Lamb drove to Blair’s house and dropped him off. She then picked up appellant and Hill. Scott sat in the front seat with Lamb. Appellant and Hill were in the back of the car. Hill, who was very intoxicated, said he wanted to get a motel room. Hill mentioned several times that he had money and would pay for the room. Although they drove to a few motels, they did not acquire a room. Scott testified that Hill wanted to buy drugs but did not purchase any.

Hill offered to buy gas. Lamb stopped at a gas station. Appellant asked Lamb to call Blair. As Lamb put gas into her tank, she handed her phone to appellant.^[2] Neither Lamb nor Scott heard the conversation between appellant and Blair. According to Scott, Hill left the car to pay for the gas. Appellant asked Lamb to pick up Blair and she did so.

Lamb stopped where Blair was standing. Appellant exited the car and told Hill to exit as well. Appellant and Blair pulled Hill out of the car, punched him in the face, and knocked him down. While on the ground, appellant and Blair kicked Hill in the chest. Lamb yelled at them to stop. Lamb did not know Blair and appellant were going to rob Hill. Appellant and Blair demanded Hill’s wallet and told him they would continue to beat him if he did not give them his money. Appellant and Blair took Hill’s cell phone and his wallet, which contained about $300. Appellant and Blair got back into the car. Lamb testified that Blair fired a shot as she drove away. Scott heard the shot, but did not see who fired it.

Lamb drove back a couple of blocks to her apartment. In the parking lot, Scott saw appellant going through Hill’s wallet. Lamb was arguing with appellant. Appellant waived a gun at her and told her not to call the police. Appellant told Lamb he was releasing the gun’s safety and he threatened to kill Lamb. Scott saw appellant pushing a button on the gun, but was not sure if it was the safety. Scott heard Lamb say she was going to call the police. Scott also heard appellant say: “I don’t care, homegirl. I’m going to kill you.” Lamb felt threatened by what appellant said and because he waiving the gun around. Lamb explained she did not call the police. She was hysterical.

Appellant left with Blair. Later, Lamb and Scott got back into Lamb’s car with Lamb’s brother and the brother’s friend. Hill walked to a pay phone and called the police. Bakersfield Police Officers Donald Cegielski and Charles Sherman were dispatched to the scene. They found Hill bleeding from the mouth. Hill had scratch marks on his neck, minor abrasions on his face, and complained of pain to his ribs and stomach.

Hill told the officers that two men struck him before taking his wallet and cell phone. Hill said a shot was fired. Hill described Lamb’s car. Cegielski later stopped the car. Sherman transported Hill to the location of the vehicle stop. Hill identified Lamb and Scott as being involved in the incident. Lamb was initially arrested for robbery. Once Detective Mark Charmley began to investigate the incident, however, he believed Lamb should not have been arrested. Charmley told Lamb that if she cooperated, he would talk on Lamb’s behalf to the district attorney.

Charmley questioned Hill, Lamb, and Scott. Lamb told Charmley that appellant pulled out a gun in the parking lot of the apartment complex and threatened to kill her. She said she saw appellant and Blair strike Hill. Lamb said that following the incident, appellant and Blair telephoned her several times. On one occasion, appellant asked Lamb what she told the police. Charmley questioned appellant. At first, appellant denied Lamb picked him up downtown but later admitted that she did so. Appellant denied doing anything to Hill, but later admitted he and Blair robbed Hill. Appellant later said that Blair robbed Hill but that he did not participate in the robbery.

Defense

Appellant testified that he met Hill in a bar. When Hill later asked for a ride, appellant offered him one. Lamb picked them up. Hill wanted to get a motel room so they could party. Hill asked appellant if he could get some cocaine. Lamb offered to contact someone. They drove to some motels, but did not get a room. Lamb said Blair had cocaine so they drove over to pick him up.

Blair got into the car and said he had no cocaine. Appellant, Blair, and Hill started walking when Blair struck Hill. Appellant did not hit or strike Hill. Appellant said he did not have a gun but that Blair had one. Blair fired a shot and they got back into Lamb’s car.

When they arrived at Lamb’s apartment, she was angry because appellant would not give her any money. Appellant denied hitting Hill and denied seeing Hill’s wallet. Appellant only saw Blair hit Hill once. Appellant denied telling Charmley that he and Blair robbed Hill and denied threatening Lamb or telling her not to testify.

ACCOMPLICE TESTIMONY

Appellant argues there was evidence in the record that Lamb was appellant’s accomplice in the robbery of Hill. Appellant contends the trial court erred in failing to give the jury accomplice instructions. Appellant argues that had the jury heard such instructions, it may have viewed Lamb’s testimony with more suspicion concerning the criminal threat allegation. As we will explain, there is no merit to this contention.

An accomplice is a person who is liable for prosecution for the same offense charged against the defendant. (§ 1111; People v. James (1987) 196 Cal.App.3d 272, 284.) When the evidence, whether presented by the prosecution or the defense, establishes that a witness may be found to be an accomplice, the court has a sua sponte duty to instruct on accomplice testimony. (People v. Tobias (2001) 25 Cal.4th 327, 331.)

An accomplice has a natural incentive to minimize his or her guilt before the jury and enlarge that of others. The law requires an accomplice’s testimony to be viewed with distrust to the extent it incriminates others. If sufficient evidence is adduced at trial that a witness is an accomplice, the trial court must give accomplice instructions even in the absence of a request from the defendant. (People v. Brown (2003) 31 Cal.4th 518, 555.) Before an accomplice’s testimony may be considered by a jury, it must be corroborated. (Ibid.)

The corroborative evidence need not corroborate every fact to which the accomplice testifies or establish the corpus delicti of the crime. It is sufficient if it tends to connect the defendant to the offense so as to satisfy the jury the accomplice is telling the truth. The corroborative evidence may be slight and entitled to little consideration when standing alone. (People v. Williams (1997) 16 Cal.4th 153, 246.)

Respondent argues that appellant was not convicted of robbery. He was convicted of making a criminal threat against Lamb. According to respondent, Lamb could not be an accomplice to appellant’s threat to her. We agree. By definition, Lamb could not have been charged under count two as a person who is liable for prosecution for the same offense charged against the defendant.

Even if there was sufficient evidence that Lamb was an accomplice to the robbery, appellant was not convicted of that offense. In a separate proceeding, appellant pled guilty to grand theft from the person. Appellant surmises that he was still prejudiced by the absence of an accomplice instruction because, had the jury been so instructed, it would likely have viewed Lamb’s testimony concerning his criminal threat to her with more suspicion and may have acquitted him of making the threat. Appellant’s assertion of prejudice is he did not get to impeach Lamb with accomplice instructions which were applicable to a count upon which the jury failed to reach a verdict.

Had appellant, for instance, pled guilty to robbery or to grand theft prior to trial, he would not be entitled to accomplice instructions on count two. Appellant admitted he committed grand theft of a person in a separate proceeding after jury deliberations. Whether his admission occurred before, or after, jury deliberations, he was not entitled to accomplice instructions on count two. We find appellant’s assertion of error attenuated and speculative.

Finally, the failure to give an accomplice instruction is harmless error if there is sufficient corroborating evidence in the record. (People v. Lewis (2001) 26 Cal.4th 334, 370; People v. Hayes (1999) 21 Cal.4th 1211, 1271.) Appellant himself provided more than slight corroborative evidence of count two by testifying that he was in the car with Lamb, Scott, and Blair. Concerning the facts of appellant’s criminal threat against Lamb, Scott’s testimony differed from Lamb’s testimony in only minor, insignificant details. The error in failing to give the jury accomplice instructions, if any, was necessarily harmless.^[3]

CALJIC NO. 2.27

Appellant contends the trial court erred in failing to excise inapplicable portions of CALJIC No. 2.27 when it instructed the jury.^[4] Appellant argues that because he was the only witness who testified that he did not hit or strike Hill, did not have a gun, and testified to the events that evening in different fashion from the other witnesses, this instruction as given would lead the jury to believe that without corroboration it “should carefully review” evidence related to any fact testified to by that witness. Appellant believes this instruction subjected his testimony to more scrutiny than that given to other witnesses thereby affecting his substantial rights.

The use note to CALJIC No. 2.27 advises, “Use the first bracketed phrase if corroboration is required . . . .” (Emphasis added.) Relying on this use note, appellant suggests it is error to instruct the jury with the version of CALJIC No. 2.27 which includes references to uncorroborated testimony if no testimony requiring corroboration is presented. He argues, and respondent does not dispute, that no such testimony was presented here. Therefore, appellant contends, the court erred in instructing the jury with the version of CALJIC No. 2.27 containing references to corroboration. We disagree.^[5]

Appellant’s reliance on the use note to CALJIC No. 2.27 is misplaced. The portion of the note upon which he relies states as follows: “Use the first bracketed phrase if corroboration of a witness’ testimony is required, such as in Penal Code § 1103a (Perjury), 1108 (abortion or enticement for prostitution), 1111 (testimony of accomplice), and 653f (solicitation to commit felony). People v. Stewart [(1983)] 145 Cal.App.3d 967, 975 . . . states it is ‘better practice’ to use that phrase. People v. Chavez [(1985)] 39 Cal.3d 823, 831 . . . states that they agree with [Stewart] in this suggested addition where appropriate.”

In People v. Stewart (1983) 145 Cal.App.3d 967, the defendant argued that the court prejudicially erred in instructing the jury pursuant to CALJIC No. 2.27 that the testimony of one witness was sufficient to prove any fact in the case, because the prosecution presented accomplice testimony inculpating the defendant, and therefore giving CALJIC No. 2.27 created the possibility of conviction based solely upon the testimony of the accomplice in violation of the principle that accomplice testimony requires corroboration (§ 1111). (Id. at p. 975.) The appellate court rejected this argument based on the fact the trial court gave other instructions which made unlikely any misunderstanding on the part of the jury of the proper way in which to evaluate accomplice testimony. In dictum, the court added that “under these circumstances,” viz., where testimony requiring corroboration is presented, the “better practice,” which would “serve to alert jurors to the special problems relating to accomplice testimony,” would be to “modify the language of the instruction by adding the language italicized in the following quotation: “ ‘Testimony which you believe given by one witness whose testimony does not require corroboration is sufficient for proof of any fact . . . .’ “ (Ibid.)

Thus, in dictum, Stewart endorsed by our Supreme Court in People v. Chavez, supra, 39 Cal.3d 823, 831 indicates that certain language should be added to CALJIC No. 2.27 when testimony requiring corroboration is presented. Neither Stewart nor Chavez, however, suggest that when no such testimony is presented it is error for the court to tell the jury that uncorroborated testimony of a single witness is entitled to whatever weight jurors think it deserves; that such testimony concerning any fact, if believed, is sufficient proof of that fact; and that if proof of a fact depends on the testimony of a single witness the jury should carefully review all evidence upon which proof of that fact depends.

Appellant’s argument suggests the challenged instruction devalued his testimony or placed it at an inferior position to that of the prosecution witnesses. Appellant argues this thereby violated his constitutional rights to present a defense and to due process of law. The challenged instruction did not tell the jury that corroboration was “required.” To the contrary, the instruction told the jury that credible uncorroborated testimony concerning any fact was sufficient for proof of that fact. As we view the instruction, it was helpful to appellant. (See People v. Stewart, supra, 145 Cal.App.3d at p. 974; People v. Garcia, supra, 39 Cal.3d at p. 831.)

Appellant also argues the last sentence of the instruction required the jury to “carefully review all of the evidence upon which the proof of that fact depends.” This portion of the instruction, however, has nothing to do, per se, with corroboration. Indeed, the California Supreme Court has noted more than once that CALJIC No. 2.27, including this particular portion, is necessary in every criminal case. (People v. Turner (1990) 50 Cal.3d 668, 696; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.)

This instruction, by itself, does not suggest that appellant’s testimony requires corroboration. We therefore find the instruction is, at worst, superfluous and inapplicable to appellant’s case.^[6] The jury was given CALJIC No. 17.31 to: “Disregard any instruction which applies to facts determined by you not to exist.” The jury is presumed to have followed all of the court’s instructions. (People v. Carter (2005) 36 Cal.4th 1114, 1176-1177.) It is likely the jury followed CALJIC No. 17.31 and disregarded the inapplicable portion of CALJIC No. 2.27. The court did not err instructing the jury with the modified version of CALJIC No. 2.27.

Finally, even if we were to find the instruction erroneous or misleading, under the circumstances of this case, we would find no prejudice in light of the relatively strong prosecution evidence on count two, including the consistent evidence of Lamb and Scott, and the improbability of much of appellant’s testimony concerning count two. (People v. Turner, supra, 50 Cal.3d 668, 698.)

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, A.P.J., Cornell, J., and Kane, J.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] Scott explained that Blair called Lamb’s phone which Scott had. Blair asked to speak to appellant. Scott handed the phone to Lamb who handed it to appellant.

^[3] The parties spend considerable time arguing whether defense counsel invited the error when he told the trial court that accomplice instructions were not necessary. In light of our holding, we do not reach respondent’s contention that the potential error was invited by defense counsel or appellant’s contention that if defense counsel invited the error, his representation of appellant was ineffective.

^[4] CALJIC No. 2.27 is as follows. The portions appellant challenges as inapplicable to this case are set forth in italics.

“You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, whose testimony about that fact does not require corroboration is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends. (Italics added.)

^[5] Respondent argues that appellant neither objected to the instruction as given nor asked that it be modified, and that therefore appellant’s challenge to the instruction is waived. Because appellant argues this error affects his fundamental right to a fair trial, we assume, without deciding, that appellant’s challenge to the instruction is cognizable on this appeal. Furthermore, in light of our rejection of appellant’s argument, we do not reach his assertion that trial counsel’s failure to object to the trial court’s use of the italicized language in CALJIC No. 2.27 was ineffective assistance of counsel.

^[6] In People v. Chavez, supra, 39 Cal.3d 823, 830, the Supreme Court rejected an argument by the People that accomplice instructions were superfluous because there was evidence from which the jury could find a witness to be an accomplice. Here, in contrast, there was no evidence from which the jury could infer that Lamb or Scott were accomplices to appellant’s criminal threat to Lamb as alleged in count two.