P. v. Lozano
Filed 1/23/13 P. v. Lozano CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ARGELIO
LOZANO,
Defendant and Appellant.
A130107
(Contra Costa
County
Super. Ct. No. 05-100712-9)
Argelio
Lozano appeals following a jury trial.
He was convicted of receiving
stolen property, evading an officer, hit and run, and obstructing a peace
officer in the performance of duties. He argues that his conviction should be
reversed because the trial court improperly restricted his voir dire of
prospective jurors, the jury was given misleading and confusing instructions on
circumstantial evidence, and the court
gave an unwarranted instruction on expert testimony. We conclude that the trial court did not
improperly restrict the scope of voir dire, and that Lozano’s challenges to the
instructions were forfeited due to his failure to raise them in the trial
court. Moreover, we conclude there was
no instructional error. Thus, we affirm.
A
San Pablo police officer on patrol
ran the license plate number of a white Acura Integra through his computer
system to determine whether it was stolen.
While doing so, he followed the car into a parking lot. Lozano was the driver. When the officer learned that the Acura was
reported as a stolen car, he confronted Lozano who tried to drive away and then
fled on foot. He was apprehended with
the assistance of a police dog after a brief chase through the neighborhood.
Lozano
testified at trial. He denied knowing
that the car was stolen and said that he purchased it that very day for $600 in
cash. The seller wrote out a bill of
sale. Lozano said that he saw the
officer behind him when he was driving, and made a right turn into the parking
lot to see if the officer would follow him.
When the officer did so and tried to approach him, Lozano ran because he
was in the country illegally and did not want to be deported. Lozano’s girlfriend was with him and she ran
too. He was apprehended when he was
attacked by a police dog after he lay down on the ground in response to an
officer’s order. In addition to the bill
of sale, Lozano claimed he had a wallet and $300 at the time of his arrest. The bill of sale, wallet and money were never
found. But the car was operated with a
key, and there was no damage to the ignition or wiring.
Lozano
was charged in an information with vehicle
theft under California Vehicle Code section 10851, subdivision (a),
receiving stolen property under Penal Code section 496d, misdemeanor evading an
officer under Vehicle Code section 2800.1, misdemeanor hit and run under
Vehicle Code section 20002, subdivision (a), and misdemeanor obstructing a
peace officer in the performance of duties under Penal Code section,
subdivision 148, subdivision (a). The
felony counts were enhanced due to allegations that Lozano had served two prior
terms in state prison. The jury convicted Lozano of possession of
stolen property and the three misdemeanors, and he was acquitted of vehicle
theft. The trial court determined beyond
a reasonable doubt that Lozano had served two prior terms in state prison. He was given the midterm of two years in
prison for receiving stolen property, and assessed two consecutive one-year
enhancements for each of his prior terms in prison for a total prison sentence
of four years. Lozano was given a
concurrent 300-day jail sentence for the misdemeanors. He was awarded 300 days of presentence
credits and timely appealed.
A. Voir Dire
When
the facts indicate that racial or ethnic prejudice may affect the jurors’ view
of the evidence, it is essential for the court to make an inquiry of possible
racial bias during jury voir dire. (People
v. Holt (1997) 15 Cal.4th 619, 660.)
But the contours of such an inquiry is committed to the sound discretion
of the trial court and entitled to substantial deference. (People
v. Wilborn (1999) 70 Cal.App.4th
339, 343.) We will not reverse a
judgment for the manner in which an inquiry about racial bias is made unless we
“can say that the resulting trial was fundamentally
unfair.†(People v. Holt, supra, at p. 661.)
Here, we can say no such thing.
During
voir dire, Lozano’s counsel attempted to ask potential jurors about whether
their views of the case would be affected by knowledge that Lozano is illegally
in the United States. The prosecution objected. After a brief sidebar conference, defense
counsel resumed questioning but changed the tenor of questions concerning
illegal presence in the United States
from a focus on Lozano to “a witness involved in the case or someone involved
in the case.†In this court, Lozano
claims that the court erred because he was prohibited from questioning the jury
about “possible juror bias toward him personally as a Mexican illegal with a
federal conviction for illegal entry.â€
But the record does not support Lozano’s characterization of the trial court’s ruling.
The
trial court permitted counsel to question potential jurors generally about
immigration and whether they would be biased against immigrants, but did not
want any questions tied specifically to Lozano.
The court was concerned that questions about Lozano’s immigration status
would introduce the jury to yet unproven facts and raised the possibility that
they would prejudge issues in the case.
So, while counsel did not ask jurors about their views toward Lozano due
to his conviction for illegal entry, she did ask jurors whether they could
fairly consider the testimony of an illegal immigrant. In fact, two jurors were excused after they
expressed concern over whether they could fairly evaluate testimony from a
witness who was illegally in the
States.
Moreover,
the court’s ruling did not prevent Lozano’s lawyer from asking jurors about
whether their ability to be fair would be affected if a witness or other person
associated with the trial had been previously convicted of an immigration
offense. But no such questions were
asked. The trial court’s de-linking of
voir dire questioning from the identities of specific parties or witnesses
comports with the general guidelines contained in the Judicial Administration
Standards. California Standards of
Judicial Administration, Standard 4.30 (b)(20), provides that when appropriate
racial bias may be probed in the following manner: “It may appear that one or more of the
parties, attorneys, or witnesses come from a particular national, racial, or
religious group (or may have a lifestyle different form your own). Would this in any way affect your judgment or
the weight and credibility you would give to their testimony?†“Trial court judges should closely follow the
language and formulae for voir dire recommended by the Judicial Council in the
Standards to ensure that all appropriate areas of inquiry are covered in an
appropriate manner.†(
661.) That appears to be what the trial
court was attempting to do here.
This
is not a case, like those relied upon by Lozano, where the court declined to
permit any inquiry into racial or ethnic bias or bias due to a prior criminal conviction. (See Rosales-Lopez
v. United States (1981) 451 U.S. 182; Ristaino
v. Ross (1976) 424 U.S. 589; People
v. Wilborn, supra, 70 Cal.App.4th 339; People
v. Chapman (1993) 15 Cal.App.4th 136.)
Those cases are inapposite. The
court did not prohibit voir dire of potential jurors to see if they would be
biased against illegal immigrants or a person convicted of an immigration
offense. There was no error.
B. Instructions
on Circumstantial Evidence
Lozano makes two arguments
challenging the instructions to the jury.
He argues it was error and confusing for the trial court to instruct on
the use of circumstantial evidence with both CALCRIM Nos. 224 and
225. He also contends these instructions
were improper because they did not specifically guide the jury in evaluating
his intent to receive stolen property.
According to Lozano the instructions on circumstantial evidence were
deficient because the instructions on the elements of receiving stolen property
did not require the jury to conclude that the circumstantial evidence of his
intent must be irreconcilable with his claim of innocence.
The People contend, correctly, that Lozano forfeited
to the use of both CALCRIM Nos. 224 and 225.
“Generally, ‘ “[a] party may not complain
on appeal that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.†’ †(People v. Samaniego (2009) 172
Cal.App.4th 1148, 1163 (Samaniego); People v. Tuggles (2009) 179
Cal.App.4th 339, 364.) Lozano is not
arguing that either CALCRIM Nos. 224 or 225 is an incorrect statement of the law, but rather
claims that together they were misleading in the circumstances. To preserve this claim for appeal, Lozano was
required to request clarifying language at trial. (Ibid.; see also People v. Spurlock
(2003) 114 Cal.App.4th 1122, 1130.) He
did not. Nevertheless, we will consider
his claim.
We
consider a claim of instructional error under the de novo standard of
review. But “ ‘ “[i]n
determining whether error has been committed in giving or not giving jury
instructions, we must consider the instructions as a whole . . .
[and] assume that the jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are
given.†’ †(
1082, 1088.) We interpret instructions
to support rather than defeat the judgment when they are reasonably susceptible
of such an interpretation. (
As
the Attorney General points out, CALCRIM No. 224 and CALCRIM No. 225
are each accurate statements of the law, and Lozano makes no claim that they
are not. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187 [upholding
CALCRIM No. 224]; People v. Golde (2008)
163 Cal.App.4th 101, 118 [upholding CALCRIM No. 225].) Moreover, although the bench notes to the
jury instructions advise that CALCRIM No. 225 is to be used when a
defendant’s intent or mental state is the only issue that rests upon
circumstantial evidence and that CALCRIM No. 224 is to be used when
multiple elements of an offense may rest upon it, no court has yet held that
giving the two instructions together is reversible
error. (Cf. People v. Salas (1976) 58 Cal.App.3d 460, 473 [where both precursor
instructions to CALCRIM Nos. 224 and 225, CALJIC Nos. 2.01 and 2.02, were given]; People v. McKinzie (2012) 54 Cal.4th 1302, 1355 [again, both
precursor instructions CALJIC Nos. 2.01 and 2.02 were given].) We will not be the first. Each of the instructions properly advised the
jury on the consideration of circumstantial evidence. The fact that they were repetitive or
redundant does not in and of itself create error.
Nor
did the instructions as a whole permit the jury to conclude that it could find
Lozano guilty of receiving stolen property without properly evaluating the
circumstantial evidence of his state of mind.
When the jury was instructed on its consideration of circumstantial
evidence of Lozano’s intent, the court specifically told jurors that “[t]he
instruction for each crime explains the intent or mental state required.†The jury was also told that “before you may
rely on circumstantial evidence to conclude that the defendant had the required
intent or mental state, you must be convinced that the only reasonable
conclusion supported by the circumstantial evidence is that the defendant had
the required intent or mental state. If
you can draw two or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions supports a finding that the
defendant did have the required intent or mental state and another reasonable
conclusion supports a finding that the defendant did not, you must conclude
that the required intent or mental state was not proved by the circumstantial
evidence.†Later instructions told
jurors that receiving a stolen vehicle required a specific intent , and the
elements of the crime required the jury to conclude that Lozano “knew that the
property had been stolen.â€
Against
this backdrop, Lozano’s claim that the jury was not instructed that
circumstantial evidence of his mental state must be irreconcilable with his
innocence falls short. The instruction
that circumstantial evidence of intent was sufficient if “the only reasonable
conclusion†could be that Lozano had the required criminal intent, and that
evidence that could reasonably support either guilt or innocence, must support
innocence, effectively ensured that the jury would not convict on insufficient
circumstantial evidence. It is not error
to permit the jury to reject unreasonable interpretations of the evidence, and
no reasonable juror would have understood the court’s instructions to permit
Lozano’s conviction on circumstantial evidence that could be reasonably squared
with his innocence. (See
1050–1051.)
Lozano’s
reliance on People v. Salas, supra,
58 Cal.App.3d 460 in support of this argument is misplaced. In Salas,
the court concluded that instructions on circumstantial evidence of intent were
inadequate because they informed the jury only how to evaluate the defendant’s
intent to commit robbery, but said nothing of the intent required for robbery
with the specific intent to inflict great bodily injury on the victim. It is worth noting that the satisfactory
instruction on the circumstantial evidence of intent to commit robbery was
CALJIC No. 2.02, the predecessor instruction to CALCRIM No. 225, that
Lozano challenges in this appeal.
Considering
the instructions as a whole and affording proper deference to the jury’s
abilities to reasonably understand and correlate all the instructions given,
there was no error in the instructions pertaining to circumstantial evidence of specific
intent.
Testimony
Lozano’s
final claim of error is that the trial court instructed on expert testimony
despite the fact that the prosecution never offered any witness as an
expert. According to Lozano, without
citation to authority, “before a witness’s opinion can be deemed an expert
opinion, the party procuring the testimony must offer the witness as an
expert.†We disagree. It is incumbent on a party opposing expert
evidence to object to it, and in the absence of an objection there is no
requirement that the proponent qualify a witness. (People
v. Rodriquez (1969) 274 Cal.App.2d 770, 776.) Moreover, it is the trial court’s duty to
instruct on the effect of expert testimony admitted in a criminal trial. (Pen. Code, § 1127b.)
Several
police officers testified during trial, in part, on subjects based upon their
training and experience. Without
objection, they offered opinion testimony on the inherent risks in traffic
stops, and the likelihood that trained canines would discover personal items
discarded by a defendant in the vicinity of a crime scene. The efficacy of search dogs is a proper subject of expert
testimony. (People v. Willis (2004) 115 Cal.App.4th 379, 386.) The court was correct to instruct on the
jury’s proper consideration of expert testimony.
Lozano
argues that “[d]efense counsel quite reasonably did not object when the police
officers offered their lay opinions for the very reason that the subsequent
instruction was objectionable.†We will
not indulge this strange tactical choice.
There were a variety of legitimate means available to Lozano’s counsel
to oppose the introduction of this evidence.
(See People v. Williams (1992)
3 Cal.App.4th 1330 [discussing motions in limine and procedures under Evidence
Code section 402 to test police officer expert testimony].) Silence was not one of them. “The doctrine of
invited error is designed to prevent an accused from gaining a reversal on
appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the
trial court to err, the appellant cannot be heard to complain on appeal.†(People
v. Wickersham (1982) 32 Cal.3d 307, 330.)
Because we have concluded none of
Lozano’s arguments on appeal have merit, we reject his argument that his
conviction must be reversed because his trial was affected by cumulative error.
DISPOSITION
The judgment is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Jenkins, J.
