P. v. Williams

Filed 12/5/07 P. v. Williams CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

Laura Schaefer, 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, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant, Charles David Williams, Jr., of first degree burglary (Pen. Code,  459/460, subd. (a)). In a separate proceeding, the court found true allegations that Williams had three prior convictions within the meaning of the three strikes law (Pen. Code, 667, subds. (a) & (b)-(i)).

On August 11, 2006, the court sentenced Williams to an indeterminate sentence of 25 years to life. On appeal, Williams contends the court prejudicially erred by its failure to instruct the jury with CALCRIM Nos. 338 and 359. We will affirm.

FACTS

Lance Ortega testified that on December 28, 2005, he left for work from his house in Porterville at 5:00 a.m. and returned at approximately 6:30 p.m. When Ortega returned, he found his front screen door unlocked, his front door ajar, his back screen door unlocked, and the stick used to secure the back screen door on his couch. In the master bedroom bathroom, he found the stick he used to secure the window lying on the window sill. In the backyard, Ortega found a screen had been removed from his kitchen window and propped up against the side of the house. Several valuables were missing including approximately $50 in change, his fiances jewelry, a $2 bill, and a camera.

Porterville officer Dominic Barteau testified that during the investigation of the Ortega burglary, he found a footprint on the window of the master bedroom bathroom, on the toilet lid, and on the bathroom floor.

Williams lived across the street from Ortega in a tent in the backyard of his daughter, Melissa Williamss (Melissa) house. Melissa testified that on December 28, 20005, she visited her father in his tent. Williams showed Melissa a $2 bill and a see-through chain purse containing coins, necklaces, and other jewelry. Melissa asked Williams where he got the property and Williams stated he did a little burglary. She asked Williams where, and he replied that he robbed Lances house. Williams left and while he was gone, Melissa spoke to the police and told them that her father had confessed to robbing Ortegas house. Williams returned later but left again when Melissa told him the police had been there and that she spoke with them.

Melissa also testified that she loved her father but did not like that he made her clean up after him and run errands. Her boyfriend did not get along with him either because Williams accused him of molesting Melissas daughter.

Williams did not testify.

DISCUSSION

The court did not instruct the jury with CALCRIM No. 358 (Evidence of Defendants Statements) or CALCRIM No. 359 (Corpus Delecti: Independent Evidence of a Charged Crime). Williams contends the court prejudicially erred by its failure to so instruct the jury because Melissa was a hostile witness, his admissions to Melissa were vital to the prosecutions case, and charging the jury with CALCRIM No. 359 would have instructed the jury that he could not be convicted based only on his out-of-court statements. He concedes the case against him boiled down to Melissas credibility. We will find the court erred by its failure to charge the jury with CALCRIM No. 358, but that the error was harmless.

CALCRIM No. 358 provides:

You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s].

CALCRIM No. 358 is the equivalent of CALJIC No. 2.71. The court must give CALJIC No. 2.71 sua sponte where a defendants admissions are used to prove a part of the prosecutions case. (People v. Shoals (1992) 8 Cal.App.4th 475, 498.) The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.] (People v. Beagle (1972) 6 Cal.3d 441, 456.) The omission, however, does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (Id. at p. 455.)

Here, Melissas testimony regarding Williamss statements to her required the court to charge the jury with CALCRIM No. 358. Thus, the court erred by omitting this instruction. However, since Williams did not challenge the fact the statements were made or their content, the only issue with regard to these statements was, as Williams concedes, Melissas credibility. The court charged the jury with CALCRIM No. 226 which instructed the jury that they were the sole judges of a witnesss credibility, CALCRIM No. 301which instructed the jury that the testimony of one witness is sufficient to prove any fact, and CALCRIM No. 302 (Evaluating Conflicting Evidence). These instructions adequately informed the jury of its duty to determine the believability of the witness and of each part of [her] testimony and the weight to which the testimony was entitled. (People v. Shoals (1992) 8 Cal.App.4th 475, 499.) Further, Melissas account of Williamss admissions was corroborated by Williamss possession on the date of the burglary of coins, jewelry and a $2 bill, which were consistent with the type of property taken during the burglary. Accordingly, we conclude that the failure to charge the jury with CALCRIM No. 358 was harmless. (People v. Shoals, supra, 8Cal.App.4th at p. 499; People v. Bunyard (1988) 45 Cal.3d 1189,1225.)

Moreover, CALCRIM No. 359 provides:

The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendants out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed.

That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.

The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendants statement[s] alone.

You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt. (Italics added.)

In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. [Citations.] In California, it has traditionallybeen held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.] (Id. at p. 1169.) Whenever an accuseds extrajudicial statements form part of the prosecutions evidence, ... the trial court is required to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations] (Id. at p. 1170.) However, failure to give the corpus delicti instruction does not require reversal if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Beagle (1972) 6 Cal.3d 441, 445-466.) Further, [o]nce the necessary quantum of independent evidence is present, the defendants extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.] (People v. Alvarez, supra, 27 Cal.4th at p. 1171.)

It is clear from the language of CALCRIM No. 359 and the foregoing authorities that the People may rely solely on a defendants statements to convict him once the People have proven by other evidence, which may be slight, that a crime occurred. The instruction does not, as Williams contends, instruct the jury that they may never convict a defendant based on his statements alone. Further, the court here was required to instruct the jury sua sponte with CALCRIM No. 359 because the prosecution relied on Williamss statement to prove his guilt. However, the error was harmless because the evidence adequately established, independent of Williamss admissions, that Ortegas house had been burglarized. (Cf. People v. Beagle, supra, 6 Cal.3d at pp. 447-448, 455-466.)

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Cornell, J., and Gomes, J.