P. v. Crisler

Filed 7/28/08 P. v. Crisler CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Robert Lee Crisler of first degree murder and found charged gang and weapon enhancements to be true. (Pen. Code, 187, subd. (a); 12022.53, subd. (d); 186.22, subd. (b)(1), (f); 190.2, subd. (a)(22); Welf & Inst. Code, 707, subd. (d); unspecified statutory references that follow are to the Penal Code.) Sentenced to a prison term of life without possibility of parole plus a consecutive sentence of 25 years to life, defendant raises various claims of instructional error. None of these contentions has merit, and we therefore affirm the judgment.

Facts and Proceedings

After a series of altercations between members of the rival Sureno and Norteno gangs, defendant and other Surenos went to the home of a Norteno member to provoke a fight. Defendant brought a gun with him, and the confrontation ended with defendant firing several shots at Mario V. and killing him.

In videotaped interviews with investigators, two of defendants fellow gang associates described the events leading up to the shooting. They said that when defendant saw the victim, he asked if he was Norte, and then fired his gun. They identified defendant as the shooter, and said that the gun used in the shooting was later left in defendants apartment.

One of the victims friends gave a physical description of the person who fired the gun. He subsequently viewed a photographic lineup and identified defendant as the shooter.

Defendant was arrested after trying to flee from police officers. He had guns and ammunition with him. The .22 caliber gun had gunpowder residue, and ballistic tests indicated that it could have fired the fatal shots.

At trial, defendants gang associates recanted their earlier statements, said that they did not see who shot the victim, and asserted that they had been pressured into identifying defendant as the perpetrator. The prosecutor introduced their videotaped interviews with police and also presented evidence that these individuals had confirmed their statements and identification of defendant in subsequent interviews with investigators for both the defense and prosecution.

The jury convicted defendant as charged, and this appeal followed.

Discussion

Defendant raises several challenges to the instructions given to the jury. In reviewing jury instructions, we consider the entire charge, not parts of an instruction or one particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Defendant must demonstrate a reasonable likelihood that the jury misunderstood the challenged instructions. (People v. Anderson (2007) 152 Cal.App.4th 919, 938.)

We examine each of defendants claims.

I

CALCRIM No. 220 (Reasonable Doubt)

CALCRIM No. 220 explains the presumption of innocence and the states burden of proof. In relevant part, the court instructed: A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. . . . []  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.

Defendant faults the CALCRIM instruction because it does not use the exact language of section 1096, which defines reasonable doubt as that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

Defendant argues that CALCRIMs departure from the formulation of . . . section 1096, defining proof beyond a reasonable doubt, obscures the scope given to individual subjectivity in that concept, increases intolerably the ambiguity in the phrase abiding convict, and overall fails to convey the necessary impression of subjective certitude the evidence must induce in the jurors in order to satisfy the due process requirement of proof beyond a reasonable doubt.

Defendant explains his thesis at length, arguing that CALCRIM No. 220 reflects a simplification of the syntax and the rearrangement of the various topics used to define proof beyond a reasonable doubt . . . leav[ing] an impression of substantive similarity and improperly convey[ing] the impression that proof beyond a reasonable doubt is merely a very high degree of objective probability, and that abiding conviction is more a temporal matter than a matter of intensity of feeling. He argues that the instruction fails to convey to the jury that the issue is not only a cognitive assessment of the evidence, but something that is also felt subjectively . . . . He asserts that while section 1096 combines the subjective and objective aspect of proof beyond a reasonable doubt into an organic whole, especially with the subordinate clause that speaks of the entire comparison and consideration of all the evidence, CALCRIM No. 220 mute[s] to the point of obscurity the subjective element . . . , takes the subordinate clause in question and confers on it an entire paragraph[.] He also contends that the abiding language in CALCRIM No. 220, lacks the intensity of feeling or belief in guilt and the qualitative scope of abiding as opposed to the quantitative or temporal sense.

The trial court is not required to instruct the jury in the language of section 1096. (People v. Freeman (1994) 8 Cal.4th 450, 503.) An instruction meets constitutional standards if it correctly conveys the concept of reasonable doubt to the jury. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L.Ed.2d 583, 590].)

CALCRIM No. 220 does precisely that. As we held in People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268, this instruction neither lowers the prosecutions standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant. Instead, it properly and unambiguously explains reasonable doubt and correctly states the governments burden of proof. Its use of the abiding conviction language is likewise proper. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238-1239.) Defendants claims to the contrary are meritless.

II

CALCRIM No. 359 (Corpus Delicti: Independent Evidence of aCharged Crime)

In their statements to detectives, defendants accomplices recounted various statements made by defendant. For example, they said that defendant asked if the victim was Norte before shooting him. They reported that defendant admitted shooting the victim, but claimed to do so because he thought the victim was going to pull something out of his pocket. One accomplice said that defendant claimed to have shot five other people on earlier occasions.

The court instructed the jury pursuant to CALCRIM No. 359 that defendant could not be convicted based on his out-of-court statement alone. Unless you conclude that other evidence shows someone committed the charged crime or a lesser included offense, you may not rely on any out-of-court statements by the defendant to convict him of that crime or lesser offense. []  The other evidence may be slight and need only be enough to support a reasonable inference that someones criminal conduct caused an injury, loss, or harm. The other evidence does not have to prove beyond a reasonable doubt that the charged crime actually was committed. []  The identity of the person who committed the crime and the degree of the crime may be proved by the defendants statement alone. []  You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.

In a convoluted argument, defendant contends that this instruction is irrelevant in any case in which there are accomplice witnesses, and erroneous when those witnesses attest to admissions made by the defendant. He argues that because accomplice testimony must be corroborated ( 1111), in any case in which there is either an accomplice witness as a matter of law, or even enough evidence to submit the question of accomplice status to the jury, then instruction on the corpus delicti rule is simply irrelevant. The accomplice witness necessary establishes the foundation of corroboration necessary to trigger consideration of the defendants extrajudicial statements. He notes that the jury was properly instructed on corroboration and was told pursuant to CALCRIM No. 335 that the identity of the defendant as connected to the crime cannot be established by statements or testimony of an accomplice witness without independent corroboration, but he asserts that CALCRIM No. 359 confused the matter by inviting the jury to consider that the extrajudicial statements of the defendant are a category of evidence that is neither the statement nor the testimony of the accomplice, and that it can be used competently as corroboration tending to connect the defendant to the crime. The remainder of defendants extensive argument does little to clarify these concerns.

We find this argument difficult to decipher. Suffice it to say that we have no issue with the instructions given in this case. Evidence implicating defendant in the shooting came from accomplices who told investigators that they saw defendant shoot the victim. They also reported that defendant made statements admitting his involvement. Investigators for both the district attorney and defendant testified that these witnesses subsequently confirmed their identifications and made no corrections to their statements. A rival gang member was shown a photographic lineup, and he identified defendant as the shooter. Ballistic evidence confirmed that the gun found in defendants possession could have been the murder weapon.

The court instructed the jury that defendant could not be convicted solely on the basis of his own statements. (CALCRIM No. 359.) These statements were reported by individuals who, if a crime was committed, were accomplices as a matter of law, and the court also instructed that accomplice testimony must be corroborated, that this supporting evidence must be independent of any accomplices statement or testimony, and that the evidence needed to support the statement or testimony of an accomplice cannot be provided by the statement or testimony of another accomplice. (CALCRIM No. 335.)

These instructions were clear and straightforward, and together offered a proper explanation of the principles relating to the use of defendants out-of-court statements. There was no error.

III

CALCRIM No. 358 (Evidence of Defendants Statements)

Defendant contends that the trial court erred in failing to instruct sua sponte that defendants out-of-court statements must be viewed with caution. The People acknowledge that such an instruction should have been given, but argue that the failure to do so was harmless error. We agree.

CALCRIM No. 358 provides in relevant part, You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded. This instruction must be given sua sponte when warranted by the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 392.)

As just described, witnesses recounted several out-of-court statements made by defendant. As the People recognize, the trial court should have instructed sua sponte in accordance with CALCRIM No. 358 that these statements should be viewed with caution. However, the failure to do so is reversible error only if it is reasonably probable that the jury would have reached a more favorable result had the instruction been given. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) That is not the case here.

The evidence against defendant was overwhelming. Accomplices gave videotaped statements identifying defendant as the shooter, and they later confirmed those statements to investigators for the prosecution and defense. A friend of the victims identified defendant as the shooter from a photographic lineup. Witnesses described the gun involved in the shooting as a .22 caliber revolver and said it was left in defendants apartment. Defendant had such a gun in his possession when he was arrested, and ballistic evidence established that this gun could have been the murder weapon.

Given the strength of this evidence, the error in failing to instruct the jury pursuant to CALCRIM No. 358 was harmless.

IV

CALCRIM No. 337 (Witness in Custody or Physically Restrained)

Defendants accomplices were in custody when they testified, and the trial court therefore instructed pursuant to CALCRIM No. 337 as follows: When certain witnesses testified, they were in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witnesses testimony according to the instructions that I have given you.

Defendant contends that this instruction was erroneous because the in-custody status of the accomplices was in fact relevant to establish bias, self-interest, and the possibility of witness collusion.

The People suggest that this instruction was given at defendants request and any error was invited. However, as the People also seem to recognize, the record does not clearly indicate who asked for CALCRIM No. 337, and we will not apply the invited error rule under these circumstances. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49; People v. Valdez (2004) 32 Cal.4th 73, 115-116.)

However, turning to the merits of defendants claim, we conclude that CALCRIM No. 337 was properly given. This instruction specifically states that the in-custody status of a witness does not by itself make a witness more or less believable (italics added), and informs the jury that credibility determinations are to be made in accordance with other given instructions.

One of these instructions, CALCRIM No. 226, listed some of the factors to consider in evaluating credibility, including whether the witnesss testimony was influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided, or whether the witness has a felony conviction. Defendant was free to argue that the accomplices might have colluded with each other or otherwise have been biased. CALCRIM No. 337 did not preclude the jury from considering such factors. It simply clarified that in-custody status, in and of itself, had no bearing on credibility, and that witness credibility was to be determined in accordance with other instructions.

The trial court did not err in giving CALCRIM No. 337.

V

Cumulative Error

Defendant contends that the cumulative effect of multiple errors compels reversal. The predicate for defendants claim is missing: no multiple errors occurred. As we have explained, there was only one error and it was harmless. There is no cumulative effect to assess.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

DAVIS, Acting P.J.

CANTIL-SAKAUYE , J.

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