P. v. Smiraglia

Filed 11/19/08 P. v. Smiraglia CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Paul James Smiraglia appeals from his conviction below for first degree murder on several grounds. We affirm the judgment.

BACKGROUND

By an information filed on March 14, 2005, it was alleged that defendant had committed murder pursuant to Penal Code section 187, subdivision (a)[1] and that, pursuant to section 190.2, subdivision (a)(18), the murder was intentional and involved the infliction of torture. A jury trial followed. We summarize only that evidence admitted at trial that is relevant to the issues raised by defendants appeal.

Clearlake Detective Carl Stein testified that in May 2003 Sharmon Hawley told him that Diedre Coleman, whose disappearance Stein was investigating, had left Clearlake with a half black, half white boyfriend. Hawley repeatedly denied to Stein that she knew anything about Colemans whereabouts until July 2003, when she told him that she had helped defendant dispose of Colemans body and suspected defendant had killed Coleman. She directed police to a creek bed, where they found Colemans tarpaulin-wrapped body in an advanced state of decomposition.

Hawleys Testimony

Hawley testified that she met Coleman and defendant in Clearlake in 2002. They were all methamphetamine users. Coleman told Hawley that defendant made crank, and that she helped him shop for ingredients because she had a car. They were going to make some crank to make money and leave town. Hawley invited them to move into her trailer home, where she allowed defendant to manufacture methamphetamine.

One night, Hawley returned home from a trip and fell asleep on her living room couch, but woke up to hear defendant and Coleman arguing in the bedroom. Defendant said, you need to just shut up, and Coleman continued to argue. Hawley heard thumping sounds and moving around, and saw defendant go to the kitchen for something and return to the bedroom. She heard Coleman argue and call defendant names, then sound scared and surprised and tell defendant to leave her alone. Defendant told Coleman that if she would not shut up, he was going to make her shut up. He returned to the kitchen, told Hawley he was going to give Coleman something to shut her up, said something about a needle and a hammer, and returned to the bedroom. Hawley heard defendant say, all you had to do was shut up, but you wouldnt listen to me, heard Coleman say, no, no, no, and heard defendant say, Im going to make sure you shut up. Defendant came out and asked where he could find a hammer, and returned to the bedroom. Hawley heard Coleman yell, stop, stop, help me, help me, and call Hawleys name, but Hawley was too scared to do anything. Eventually, the noises stopped.

Defendant came out of the bedroom and told Hawley he had not meant for things to go as far as they did, but [Coleman] just wouldnt shut up, all she had to do was shut up. He said that he had injected Coleman with two things to make her quiet down but they had not worked, and then felt he had to finish her off because it had become already too late.

Defendant wrapped up Colemans body in a tarp. He told Hawley she was going to be his new partner, and wanted her to drive him somewhere to get rid of the body. She persuaded him to wait, and he put the body in a childrens toy bin. After some days, they put the body in the trunk of Hawleys car and chose a spot away from a road, where defendant kicked the body down a hill and covered it with pieces of bushes.

McFarlands and Bauers Testimony

Donald McFarland testified that, in the summer of 2002, defendant and Coleman stayed at his house, where defendant cooked methamphetamine. After defendant and Coleman had moved out, McFarland and his girlfriend, Nicole Bauer, visited them at Hawleys trailer. When Bauer asked to use the bathroom, defendant told her not to touch anything in there. McFarland saw something wrapped in black plastic running the length of the bathtub. He also noticed the trailer smelled really bad. McFarland did not see Coleman again. Later that day, defendant and Hawley came to McFarlands and Bauers residence and, when McFarland said Bauer believed defendant had killed Coleman, defendant said, loose lips sink ships. He warned McFarland to be careful what he said, and on another occasion put a gun in McFarlands face.

Bauers testimony corroborated McFarlands in virtually all respects. She also recalled that defendant and Coleman did not seem very affectionate with each other.

Hammans Testimony

Wesley Hamman testified that, shortly before he was due to be paroled from prison, defendant, also a prisoner, asked him to kill a girl whose name Hamman remembered as Charmin Holly. Defendant told him that he had killed a woman who was a drug user and nuisance while he was staying with Holly and cooking methamphetamine, with Holly present. He first hit and beat up the woman, then injected her with muriatic acid, but it did not kill her and she was flopping on the floor and screaming, so he got a hammer and hit her several times in the head to make sure she was dead. He wrapped up her body, and he and Holly disposed of the body up in the mountains somewhere. He had to convince Holly to help him. He wanted her help because the body was heavy and he wanted to make her a part of the crime to raise a red flag about her in case she later testified against him. Defendant talked about killing Holly every day.

Other Relevant Testimony

David Lansdowne, testified that Coleman and defendant, while staying with him in 2002, were verbally abusive towards each other. He found defendant making methamphetamine in a closet. After Coleman and defendant moved to a trailer, Lansdowne understood that defendant was sleeping with Hawley.

David Simmons testified that when he was released from jail in July 2002, defendant, Hawley, and Simmons wife picked him up in Colemans white Volvo. Hawley said Coleman was out of town with friends, and defendant told him Coleman had left with a Black man for Santa Rosa. Simmons looked directly at him and said, You killed her, didnt you? Defendant grinned and said nothing. Later, defendant and Hawley told him that he should burn their trailer if they were arrested.

Simmonss brother, Joseph Slover, testified that he saw defendant and Coleman quarreling like lovers, and that they would talk in a friendly manner at other times.

Jamie Brown testified that she knew Coleman and defendant in 2002, and that they appeared to be a couple, but that later Coleman was not around and defendant was with Hawley.

Lawrence Serigney testified that in 2002 he knew defendant and Coleman, who were involved. One day, he saw Coleman argue with defendant and threaten to call the police. After she walked away, defendant pulled out a small revolver and said, Im going to kill that bitch. Defendant and Coleman had an argumentative relationship.

Cesario Jacobo testified that he was Colemans friend, and that she had introduced defendant to him as her significant other. He last saw her in Hawleys trailer bedroom, apparently sleeping. Defendant told him that he had slapped the shit out of her, or something like that, after Coleman had discovered defendant and Hawley were engaged in activities. Jacobo did not see any injuries on Coleman, but he did not closely inspect her.

Regenia Hand testified that Coleman said she and defendant were a couple. Stein testified that she told him that the two had a huggy kissee relationship, and that they were hanging all over each other.

Karen Tucker, defendants former girlfriend, testified that defendant repeatedly beat her during their relationship.

The jury found defendant guilty of first degree murder, and that the murder involved the intentional infliction of torture. The court sentenced defendant to a life sentence without the possibility of parole. Defendant filed a timely notice of appeal.

DISCUSSION

I. Jury Instructions Regarding the Tucker Testimony

A. Evidence Code section 1109

Defendant contends the trial court erred when it permitted the jury to consider the prior domestic violence evidence regarding Karen Tucker as proof of the mental

state required for murder under Evidence Code 1109.[2] This is incorrect.

The People argue that defendant has forfeited his appellate argument because he did not properly raise it first in the court below. This is incorrect. As a part of his opposition to the prosecutions motion to introduce the Tucker evidence pursuant to Evidence Code section 1109, defendant argued, among other things, that it was doubtful the Legislature intended the statute to apply to this specific set of facts, and that introduction of the evidence was exceedingly prejudicial. This was sufficient to preserve his claim.

As for the merits, Karen Tucker testified that she began a relationship with defendant in 1997 and lived with him for four years. Defendant hit her repeatedly in the course of their arguments, pinning her down on a bed and punching her so as to knock her unconscious and split her eye open, punching her in the gut so hard just to shut [her] up that she went to the hospital, breaking five bones in her wrist when she tried to exit a car, breaking her ribs two or three times, and giving her numerous black eyes and bruises. They would start arguing over drugs and women, and he would hurt her to shut her up. Sometimes, she was injured so badly that she could not move. She was afraid defendant would kill her if she tried to leave him; he once took her out to the desert and told her he would bury her there if she left him. Their relationship ended when he hit her one day and, after she refused to get back into his truck, he drove away.

The trial court instructed the jurors pursuant to CALCRIM No. 852 that Tuckers testimony could be used as proof that defendant was disposed or more inclined to commit domestic violence and, if proven, that he was likely to commit and did commit domestic violence, murder, or voluntary manslaughter, as charged.[3]

Defendant contends this was error because it permitted the jury to consider the prior domestic violence evidence as proof of the mental state required for murder. While defendant concedes that Evidence Code section 1109 permits an inference that a defendant has a propensity to commit domestic violence crimes, he argues that it does not permit the inference that the defendant has propensity to commit those crimes all possessing the mental state of malice, which is what was at issue in this case, given the murder charge, as this would be a propensity inference well beyond what the Legislature intended. He contends that Evidence Code section 1109 was intended as a narrow exception to the prohibitions against the introduction of prior domestic violence evidence, limited to those crimes involving sex offenses or domestic violence, and did not permit a general criminal propensity inference.

In determining the Legislatures intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence[.] (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1055.) Evidence Code section 1109 provides that, with exceptions that are not relevant here, in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is admissible unless the court finds it is prejudicial pursuant to Evidence Code section 352s guidelines. Thus, the Legislature, rather than limit the statutes application, broadly refers to offenses involving domestic violence. This plainly allows the introduction of prior domestic violence evidence in cases such as the one before us. (See. e.g., People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [upholding admission of defendants domestic violence against previous girlfriends pursuant to Evidence Code section 1109 when he was tried for raping his girlfriend].)[4]

Certainly, defendants murder of Coleman involved domestic violence. Evidence Code Section 1109, subdivision (d)(3), provides that [d]omestic violence has the meaning set forth in Section 13700 of the Penal Code. . . . [D]omestic violence has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense. It cannot be disputed from the testimony that defendant and Coleman were either cohabitants, former co-habitants, or, at least, had a dating relationship (Pen. Code, 13700), bringing defendants actions within the statute.[5] Accordingly, defendants Evidence Code section 1109 argument lacks merit.[6]

B. Evidence Code Section 1101

Defendant also argues that the trial court erred by instructing the jury about the use of the Tucker testimony pursuant to Evidence Code section 1101. This also is incorrect.

Evidence of an uncharged offense is usually sought to be admitted as evidence that, if found to be true, proves a fact from which an inference of another fact may be drawn. [Citation.] As with other types of circumstantial evidence, its admissibility depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. (People v. Thompson (1980) 27 Cal.3d 303, 315, fn. omitted.)

Evidence that a defendant committed uncharged offenses is barred by Evidence Code section 1101 if it is offered to prove the defendants criminal disposition, but not if it is offered to prove the material disputed issues such as motive or intent. (People v. Hayes (1990) 52 Cal.3d 577, 617.) Evidence of uncharged crimes is inadmissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. (People v. Kipp (1998) 18 Cal.4th 349, 369.) The greatest degree of similarity is required to prove identity. (Ibid.) A lesser degree of similarity is required to establish relevance on the issue of common design or plan. (Id. at p. 371.) For purposes of proving intent, the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant probably harbor[ed] the same intent in each instance. (Ibid.) The recurrence of a similar result tends (increasing with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

The trial court must weigh the probative value of the uncharged offenses evidence against its prejudicial effect under Evidence Code section 352. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Since substantial prejudicial effect [is] inherent in [such] evidence, uncharged offenses are admissible only if they have substantial probative value. (Ibid.) On appeal, the trial courts determination of this issue, being essentially a determination of relevance, is review for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 369.) A court abuses its discretion when its ruling  falls outside the bounds of reason. (Id. at p. 371)

The court instructed the jury pursuant to CALCRIM No. 375 that it could consider Tuckers testimony in determining whether or not defendant killed Coleman, acted with the intent to kill her, and had a motive to kill her.[7] According to the defendant, the instruction infringed his Sixth Amendment and Fourteenth Amendment rights under the federal Constitution because [t]he evidence . . . was no more probative on the issue of [defendants] mental state under section 1101 than it was under section 1109. Though Tucker testified that [defendant] struck her and caused injuries that sometimes required medical treatment, he did not kill her or attempt to kill her. Thus, this is not a case in which similar intent can be inferred from similar conduct.

The trial court did not abuse its discretion. It could reasonably conclude the evidence of defendants violence towards Tucker and Coleman was sufficiently similar. Tucker testified that defendant attacked her in the course of their arguments, struck her with considerable force, and threatened to kill her. Similarly, Jacobo testified that defendant once told him something like that he had slapped the shit out of Coleman, and Serigney recalled defendant, after the two had argued, pulling out a revolver, saying Im going to kill that bitch. Tucker testified that defendant would hurt her to shut her up when they argued, the same reason, according to Hawley, that defendant gave for why he attacked Coleman in the midst of their argument on the night that he killed her.

Defendant focuses on various purported differences between the evidence of defendants relationship and assaults of Tucker and that regarding Coleman.

He argues, for example, that there was no evidence that he tried to kill or attempted to kill Tucker, that none of the assaults Tucker described involved a weapon, that his relationship with Tucker was not at all like his relationship with Coleman, and that (contrary to Jacobos testimony) there was no evidence of physical violence between Coleman and defendant except for Hawleys testimony. He also cites testimony by friends that the two were a couple and affectionate with each other, some of which we have already discussed, and the absence of anyone testifying that they witnessed physical violence between them. These purported differences are unpersuasive in light of the evidence of striking similarities in defendants treatment of Coleman and Tucker.

Defendant also contends two cases support his argument. First, he argues that, in the present case, as in People v. Deeney (1983) 145 Cal.App.3d 647, the uncharged conduct . . . revealed neither knowledge material to [Colemans] death nor a motive to kill her, and no close connection existed between [defendants] acts [against Tucker] and [Colemans] death as would warrant the inference that if [defendant] committed the former, he was responsible for the latter. This is incorrect. In Deeney, the defendant was convicted of the involuntary manslaughter of his wife, who had died of a head injury. (Id. at p. 651.) There was evidence that the defendant had dragged his wife onto the grass in front of their residence and sprayed her with water from a hose while yelling obscenities at her, and that the victim had bruises on her body in the weeks before she was killed, but no one testified that they ever saw defendant hit or beat her. (Id. at pp. 651, 656.) The appellate court found the evidence inadmissible because it did not tend to show the defendant had killed her, since the victim had died of a brain hemorrhage, and the other crimes evidence, showing only that he had dragged her over a grassy area, did not involve any physical attacks even remotely capable of causing death. (Id. at p. 654.) The testimony of Jacobo, Serigney, and Hawley stand in sharp contrast to the evidence in that case.

Defendant also argues that the facts here are very different from those in People v. Johnson (1991) 233 Cal.App.3d 425, where the defendant was convicted of murdering his former girlfriend after his wife testified that he would tell her as he beat her that he would do to her what he had done to his former girlfriend. (Id. at pp. 434, 442-443.) The appellate court held the evidence was appropriately admitted, distinguishing the facts from People v. Deeney, supra, 145 Cal.App.3d 647. Defendant argues that there is no such verbal linkage of the Karen Tucker assaults and the killing of [Coleman.] This is far too narrow a reading of Johnson, and ignores that Tuckers and Hawleys testimony indicated defendant struck girlfriends during arguments in order to silence them.

Accordingly, we conclude defendants argument lacks merit.[8]

II. Defendants Intoxication Argument

Defendant next argues that his Sixth Amendment right to effective assistance of counsel and Fourteenth Amendment right to due process were violated because his trial defense counsel failed to seek a jury instruction on intoxication pursuant to CALCRIM No. 625.[9]

A defendant claiming ineffective assistance of counsel bears the burden of showing both that counsels performance was deficient, and that there was a reasonable probability that, but for counsels errors, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 688, 684-695; In re Cudjo (1999) 20 Cal.4th 673, 687.) [A] defendant is entitled to an instruction on voluntary intoxication only when there is substantial evidence of the defendants voluntary intoxication and the intoxication affected the defendants actual formation of specific intent. (People v. Roldan (2005) 35 Cal.4th 646, 715.) Normally, merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, is not enough[.] (People v. Mayfield (1993) 5 Cal.4th 142, 205.)

Defendant argues that the entire ambience in which the killing of [Coleman] occurred was pervaded by the use of methamphetamine, and by methamphetamine intoxication. Furthermore, for [Coleman] to have been killed because . . . she just wouldnt shut up, certainly smacks of a decision rashly and without reasonable basis. This is speculation, not evidence, that defendant was intoxicated when he attacked and killed Coleman. Defendants argument lacks merit altogether.

III. Defendants Pinpoint Jury Instruction Arguments

Finally, defendant argues that the trial court violated his right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution, and acted contrary to California Supreme Court case law, when it gave the jury pinpoint jury instructions, based on CALCRIM Nos. 357 and 371.

The People argue defendant forfeited his arguments by failing to object to the instructions appealed from in the trial court below. Section 1259 provides in relevant part that the appellate court may . . . review any instruction given . . . , even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby. ( 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) The People contend the instructions must be presumed correct based on court rulings regarding similar CALJIC instructions, which leads to the conclusion that [defendants] substantial rights were not affected by the errors he alleges. This is unpersuasive because it is based on the correctness of the challenged instructions, rather than whether they implicated defendants substantial rights. Therefore, we proceed to the merits of defendants arguments.

A. Instruction Based on CALCRIM No. 357

The court instructed the jury pursuant to CALCRIM No. 357 with regard to possible adoptive admissions by defendant as follows:

If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true:

1. The statement was made to the defendant or made in [his/her] presence;

2. The defendant heard and understood the statement;

3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true;

AND

4. The defendant could have denied it but did not.

If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true.

If you decide that any of these requirements has not been met, you must not consider either the statement or the defendants response for any purpose.

The category of evidence referred to in the instruction is admissible at trial. If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt. (People v. Preston (1973) 9 Cal.3d 308, 313-314.)

As defendant acknowledges, our Supreme Court expressly approved of jury instructions regarding evidence that may show the consciousness of guilt. (People v. Jackson (1996) 13 Cal.4th 1164, 1224; People v. Kelly (1992) 1 Cal.4th 495, 531-532; see also People v. Riggs (2008) 44 Cal.4th 248, 309, fn. 27 [regarding CALJIC No. 2.04 and CALCRIM No. 3.71].) Furthermore, prior to CALCRIM No. 357, CALJIC No. 2.71.5 addressed the issue of adoptive admissions (People v. Medina (1990) 51 Cal.3d 870, 891, affd. sub. nom. Medina v. California (1992) 505 U.S. 437), which our Supreme Court found was an appropriate instruction. (People v. Silva (1988) 45 Cal.3d 604, 625; People v. Medina, supra, at p. 891.)

Defendant fails to establish a meaningful difference between CALCRIM No. 357 and these previously approved consciousness of guilt instructions, including CALJIC No. 2.71.5.[10] He argues that the trial courts instruction in the present case conflicts with the principles set forth in People v. Wright (1988) 45 Cal.3d 1126 (Wright), and related cases,[11] and violated his federal constitutional rights because it directed the jurys attention to the evidence that [defendant] had allegedly failed to deny that he had killed [Coleman] when accused of the crime by [McFarland and Bauer], and suggested this showed their accusation was true.[12] He also complains that since the defense cannot obtain pinpoint instructions pursuant to Wright, what is sauce for the goose is sauce for the gander, and that allowing the prosecution to direct jury attention to particular evidence which will prove guilt, or dispel a reasonable doubt, violates the federal Constitutional principle that there must be absolute impartiality regarding jury instructions. Essentially, defendant complains that allowing the instructions here in light of Wright and related cases creates a double standard that violates his due process rights, and has not been addressed in prior case law.

Allowing the instruction in light of Wright and its progeny does not create a double standard. In Wright, our Supreme Court concluded the challenged defense instruction told the jury to consider specific evidence, such as specific testimony, in a manner which implie[d] certain conclusions from specified evidence; in other words, which was argumentative.[13] (Wright, supra, 45 Cal.3d. at p. 1137.) Subsequently, in rejecting a due process argument regarding consciousness of guilt instructions, our Supreme Court distinguished Wright directly: [D]efendant claims that each of these instructions was an impermissible pinpoint instruction that violated his right to due process by lessening the prosecution's burden of proof. In [Wright, supra, 45 Cal.3d 1126], we distinguished between instructions which properly pinpoint[] the theory of the defense and those which "improperly impl[y] certain conclusions from specified evidence . . . . (Id. at p. 1137.) In that case we gave as an example of the former an alibi instruction which directs the jury to acquit a defendant if it believed him not to be present at the time the crime was committed. [Citation.] . . . [Citation] . . . [o]n the other hand, we disapproved as argumentative the instruction requested by the defendant in Wright, which would have instructed the jury to consider various pieces of evidence[.] (People v. Jackson, supra, 13 Cal.4th at pp. 1223-1224.)

Similarly, in People v. Kelly, supra, 1 Cal.4th 495, our Supreme Court stated, Defendant contends the court erred in giving CALJIC No. 2.03 . . . . We have repeatedly upheld the instruction when based upon evidence. [Citations.] Defendant recognizes this, but claims that the rule must be reassessed in light of our recent decision in [Wright, supra, 45 Cal.3d 1126]. . . . [] CALJIC No. 2.03, however, does not merely pinpoint evidence the jury may consider. It tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. [Citation.] . . . If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction. There was no error. (Kelly, at pp. 531-532.)[14]

The trial court below instructed on the law to follow regarding the category of evidence referred to in the instruction, possible adoptive admissions, including in order to provide the cautionary statement that if certain evidentiary requirements are not met, the jury must not consider either the statement or the defendants response for any purpose. As is plain from reading the instruction, it does not imply anything about specific evidence, contrary to defendants characterization of it, is impartial, and is not argumentative. It bears no resemblance to the defense instruction requested in Wright, supra, 45 Cal.3d 1126, and does not create a double standard under state or federal law for jury instructions offered by the prosecution and the defense. In short, defendants arguments lack merit.

B. Instruction Based on CALCRIM No. 371

The court instructed the jury regarding consciousness of guilt and concealment of evidence, pursuant to CALCRIM No. 371, as follows: If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.

The case law approving of consciousness of guilt instructions that we have already cited is equally applicable here. Furthermore, our Supreme Court specifically approved of CALJIC No. 2.06, [15] which preceded CALCRIM No. 371, in People v. Jackson, supra, 13 Cal.4th at pages 1223-1224, as well as in People v. Johnson (1992) 3 Cal.4th 1183, 1235.

Defendant, as he does regarding CALCRIM No. 357, argues that the trial courts CALCRIM No. 371-based instruction inappropriately directed the jurys attention to certain specific evidence admitted at trial, i.e., that defendant had allegedly concealed physical evidence related to [Colemans] murder, and [defendant] had allegedly solicited [Hamman] to prevent [Hawley] from testifying against him. The court did not, as is obvious from reading the instruction. Furthermore, the instruction provides the cautionary statement to the jury that evidence of such an attempt cannot prove guilt by itself. It too bears no resemblance to the instruction discussed in People v. Wright, supra, 45 Cal.3d 1126, and does not create a double standard under state or federal law for jury instructions offered by the prosecution and the defense. Defendants arguments lack merit here as well.[16]

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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[1] All further unspecified code sections are to the Penal Code.

[2] Defendant characterizes the courts error as violating his federal constitutional rights, but argues only a violation of Evidence Code section 1109.

[3] The full instruction given to the jury was as follows:

CALCRIM No. 852. EVIDENCE OF UNCHARGED DOMESTIC VIOLENCE. The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: domestic violence against Karen Tucker. [] Domestic violence means abuse committed against an adult who is a cohabitant or former cohabitant, or any person who dated or is dating the defendant. [] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [] The term cohabitants means two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabitant include, but are not limited to: (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use of ownership of property, (4) the parties holding themselves out as husband and wife, (5) the parties registering as domestic partners, (6) the continuity of the relationship, and (7) the length of the relationship. [] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [] If the People have not met this burden of proof, you must disregard this evidence entirely. [] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit domestic violence, murder, or voluntary manslaughter, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder or voluntary manslaughter. The People must still prove each element of every charge beyond a reasonable doubt.

[4] If the statutory language is clear and unambiguous, our task is at an end, for there is no need for judicial construction. (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1083.) Nonetheless, we briefly note that section 1109s legislative history strongly supports our conclusion, as it states that  [i]f we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. (People v. Johnson (2000) 77 Cal.App.4th 410, 419.)

[5] Section 13700, subdivision (b), defines domestic violence in relevant part as abuse committed against . . . [a] cohabitant, former cohabitant, or person with whom the suspect . . . is having or has had a dating or engagement relationship. Its subdivision (a) defines abuse as intentionally or recklessly causing or attempting to cause bodily injury[.]

Family Code section 6211 defines domestic violence as abuse against, among others, a cohabitant or former cohabitant as defined in Family Code section 6209 (which defines a cohabitant as a present or former regular resident of the household), and a person with whom the respondent is having or has had a dating or engagement relationship. (Fam. Code, 6211, subds. (b) & (c).)

[6] Defendant, other than arguing in a general way that it makes no sense to infer malice from the past commission of a crime for which the concept of malice does not even exist, fails to explain why it would be improper to draw an inference of malice from evidence properly admitted pursuant to Evidence Code section 1109. To the extent he may intend this to be an independent argument, we disregard it. An appellate court is not required to consider errors where the appellant merely complains of them without pertinent argument. (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873.)

[7] The full instruction was as follows:

CALCRIM No. 375. EVIDENCE OF UNCHARGED OFFENSE TO PROVE IDENTITY, INTENT, COMMON PLAN, ETC.

The People presented evidence that the defendant committed other offenses that were not charged in this case. [] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [] If the People have not met this burden, you must disregard this evidence entirely. [] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [] The defendant was the person who committed the offense alleged in this case; or [] The defendant acted with the intent to kill [Coleman]; or [] The defendant had a motive to commit the offense alleged in this case. [] Do not consider this evidence for any other purpose. [] [Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime]. [] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder of the lesser related offense of voluntary manslaughter. The People must still prove each element of the charge beyond a reasonable doubt.

[8] Since we find no error, we do not discuss the parties debate over whether the claimed error was harmless. Accordingly, we do not discuss certain testimony pointed out by defendant, such as Hawleys failure to recall previous statements to police that were inconsistent with her trial testimony, or Steins testimony that Hamman wrote to him that he would testify as you wished in return for consideration. We also do not discuss the substantial amount of testimony that further corroborated various aspects of Hawleys testimony.

[9] Defendant concedes that the trial court had no sua sponteduty to provide an intoxication instruction.

[10] The instruction given in People v. Silva, supra, 45 Cal.3d 604, stated,  If you should find from the evidence that there was an occasion when the defendant, under conditions which reasonably afforded him an opportunity to reply, failed to make denial or made false, evasive or contradictory statements, in the face of an accusation, expressed directly to him or in his presence, charging him with the crime for which he now is on trial or tending to connect him with its commission, and if you should find that he heard the accusation and understood its nature, the circumstances of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation thus made was true. Evidence of such an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and conduct of the accused in the face of it; and unless you should find that his conduct at the time indicated an admission that the accusatory statement was true, you should entirely disregard the statement. (Id. at p. 625.)

[11] Defendant also cites People v. Harris (1989) 47 Cal.3d 1047, People v. McNamara (1892) 94 Cal. 509, and People v. Earp (1999) 20 Cal.4th 826, 886, as well as federal case law and secondary authority regarding the need for impartiality in the matter of jury instructions.

[12] Defendant does not refer to Simmonss testimony of his accusation to defendant after getting out of prison, but the courts jury instruction appears applicable to it as well.

[13] The instruction given in Wright, supra, 45 Cal.3d 1126, stated:

In determining whether a reasonable doubt exists as to the guilt of Mr. Wright you may consider that:

1. All of the robbers wore masks;

2. The testimony of Inspector Cisneros regarding Peter Marinos comments at the time he viewed defendant Wrights photograph;

3. The testimony of Inspector Cisneros regarding whether or not he showed Erica Albertsen defendant Wrights photograph, and whether or not she recognized that photograph;

4. The testimony of Inspector Cisneros regarding Stephanie Sungs comments at the time she signed defendant Wrights photograph;

5. Peoples Exhibit Number 20, a pink card with the name Stephanie Sung. (Id. at p. 1135, fn. 5.)

[14] Defendant acknowledges People v. Kelly, supra, 1 Cal.4th 495, but argues it does not deal with the inequality between prosecution and defense pinpoint instructions, and may not have considered the exact issue he raises here. These contentions ignore the critical distinction made there between CALJIC No. 2.03 and the Wright instruction, which also applies to this case.

[15] CALJIC No. 2.06, as stated in People v. Jackson, supra, 13 Cal.4th 1164, was:  If you find that a defendant attempted to suppress evidence against himself in any manner, such as [by concealing evidence] such attempts may be considered by you as a circumstance tending to show a consciousness of guilt. However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration. (Jackson, at p. 1223, fn. 13.)

[16] In light of our ruling, we need not address the arguments about whether any trial court error in giving these instructions was harmless.