Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge, Super. Ct. No. 06NF0614
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Luis Enrique Arevalo contends the court wrongly added words to a standard jury instruction. The addition is simply the first line from the next standard jury instruction. We conclude the court properly read the jury instructions, even if the transcript has the paragraph break in the wrong place. Even if the court misspoke, the jury received correct, written instructions remedying any harm. We affirm.
FACTS
A La Habra police officer saw defendant driving a car at a high rate of speed. The officer followed defendant. Defendant drove into an intersection without yielding to cross traffic, cutting off another car. The ensuing collision flipped defendant’s car onto its side, trapping a passenger’s head under it. Defendant climbed out of the car. The officer approached defendant, noticing defendant smelled of alcohol and had bloodshot eyes. After defendant failed a field sobriety test, he admitted he was drunk. A breath test indicated his blood alcohol level was 0.30 percent. A second test showed his blood alcohol level was 0.31 percent.
The People charged defendant with one count each of causing bodily injury while driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)) (count 1); causing bodily injury while driving with a blood alcohol level of 0.08 percent or greater (§ 23153, subd. (b)) (count 2); and driving without a valid license (§ 12500, subd. (a)) (count 3). The People alleged defendant personally inflicted great bodily injury to his passenger (Pen. Code, § 12022.7, subd. (a)), had a blood alcohol level of 0.20 percent or greater (§ 23578), and had two prior convictions for driving under the influence of drugs or alcohol (§§ 23152, subd. (a), 23626).
All further statutory references are to the Vehicle Code unless otherwise stated.
At trial, the prosecution called the police officer as a witness. The officer testified that when he first saw the car, he noticed the driver was male, Hispanic, and wearing a blue San Diego Chargers football jersey, number 55 (linebacker Junior Seau’s number). The officer saw the man in the jersey crawl out of the car after the crash. No one else in the car or at the scene was wearing a blue football jersey. The officer identified defendant as the driver. Defendant presented no defense.
The court granted the prosecution’s request to instruct the jury with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM Nos. 301 and 302. The court modified CALCRIM No. 301 by omitting the first line; this modification is not challenged on appeal.
The clerk’s transcript includes correct, typewritten copies of CALCRIM Nos. 301 and 302. The last two lines of CALCRIM No. 301 state, “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” The first two lines of CALCRIM No. 302 state, “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point . . . .”
According to the reporter’s transcript, the court read these jury instructions to the jury as follows: “And you are instructed that the testimony of only one witness is sufficient to approach [sic] any fact. Before, however, if you conclude the testimony of one witness proffers [sic] a fact, you should carefully review all of the evidence if you determine there is a conflict in the evidence. [¶] Decide what evidence to believe. Don’t just count the number of witnesses that agree or disagree on a point . . . .”
The jury found defendant guilty of counts 1 and 2. It further found true the allegations that he drove with a blood alcohol level of 0.20 percent or greater with regard to count 2, and that he personally inflicted great bodily injury with regard to both counts. Defendant admitted his prior convictions. The court sentenced him to a total term of six years in state prison. It imposed a midterm three-year sentence on count 1 and a consecutive three-year term for the inflicting great bodily injury enhancement. It stayed sentencing on count 2.
The court granted the prosecution’s motion to dismiss count 3.
The court granted the prosecution’s motion to dismiss the allegation that defendant drove with a blood alcohol level of 0.20 percent or greater with regard to count 1.
DISCUSSION
Defendant contends the court wrongly embellished CALCRIM No. 301, which states in part, “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” Relying on the reporter’s transcript, defendant contends the court actually instructed the jury, “Before, however, if you conclude the testimony of one witness proffers [sic] a fact, you should carefully review all of the evidence if you determine there is a conflict in the evidence.” (Italics added.)
Defendant contends the court’s instructions misled the jury into uncritically accepting the officer’s identification of him as the car’s driver. The officer’s testimony was the only evidence identifying defendant. Because defendant presented no defense, there was no “conflict in the evidence” regarding the identification. Defendant concludes the instructions encouraged the jury to accept the officer’s identification without carefully reviewing it, as they directed the jury to “carefully review all of the evidence if you determine there is a conflict in the evidence.” (Italics added.)
Defendant forfeited this claim by failing to object when the court read the instructions. “[I]f defendant believed the instruction was unclear, he had the obligation to request clarifying language.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.)
At any rate, it does not appear the court erred at all. Its alleged “embellishment” of CALCRIM No. 301 is nothing more than the first clause of the first sentence of the next standard form instruction, CALCRIM No. 302. Did the court actually embellish CALCRIM No. 301, or does the reporter’s transcript simply fail to indicate the paragraph break between CALCRIM No. 301 and CALCRIM No. 302?
On matters of punctuation and format, the reporter’s transcript is not sacrosanct. “[W]e are not bound by the punctuation supplied by the court reporter.” (People v. Huggins (2006) 38 Cal.4th 175, 191 (Huggins).) “[W]hen the court orally instructs the jury, the court reporter cannot always capture and report the court’s intended punctuation. Speakers seldom indicate punctuation as they speak, leaving the court reporter with the always difficult, and sometimes impossible, task of supplying punctuation that reflects the speaker’s cadence and inflection. Although we rely upon the court reporter to accurately record the words spoken in court, we are not bound by the court reporter’s interpretation of the speaker’s intended meaning as shown by the punctuation inserted by the reporter.” (Id. at p.190.)
In Huggins, the California Supreme Court rejected the contention, similar to defendant’s claim, that the court misread a standard jury instruction by turning a stand-alone sentence into a clause of the next sentence. (Huggins, supra, 38 Cal.4th at pp. 190-191.) Instead, the court concluded the reporter’s choice of a comma instead of a period failed to correctly capture the court’s spoken instructions. “Because the court clearly was reading a standard instruction, it is far more likely that the punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed by the court’s oral instructions than that the court misread the standard instruction. We can conclude with confidence, therefore, that the court read the standard instruction as it was written and did not merge the final two sentences of the standard instruction as reflected in the reporter’s transcript.” (Id. at p. 191.)
We confidently conclude the same. The court correctly read the two standard form instructions. The reporter simply failed to indicate the proper point of separation between the two.
This conclusion is bolstered by the lack of any objection to the court’s reading of the instructions. “The failure on the part of anyone to request clarification [of allegedly misspoken jury instructions] indicates the fact that there was generally a lack of appreciation for the possibility either of the error’s actually having occurred or of its having any prejudicial effect.” (People v. Long (1970) 6 Cal.App.3d 741, 750, italics added.)
The conclusion is further supported by two other transcription errors. CALCRIM No. 301 provides in part, “the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact.” (Italics added.) But the reporter’s transcript states, “[T]he testimony of only one witness is sufficient to approach any fact. Before, however, if you conclude the testimony of one witness proffers a fact.” (Italics added.) It is implausible that the court misread “prove” as “approach” and “proves” as “proffers.” The words look nothing alike. But they sound alike. Given the phonetic nature of stenography, it is far more plausible that the reporter wrongly transcribed “prove” and “proves” as “approach” and “proffers.”
Even if the court did misspeak or otherwise embellish CALCRIM No. 301, any error was cured when the court provided correct, written instructions to the jury during their deliberations. Our high court has consistently “presumed that the jury was guided by the written instructions” in rejecting claims of misspoken instructions. (People v. Davis (1995) 10 Cal.4th 463, 542; People v. Osband (1996) 13 Cal.4th 622, 687 [“The jurors had before them six copies of the written version when they began to deliberate, and we presume that they were guided by those copies”].)
The parties note the jury asked for a copy of the written instructions and assume the court provided them. The jury foreperson confirmed this to the court: “We do have what you read to us and we did look through that . . . .”
Defendant notes the issue of identification was close. The only evidence that defendant was driving the car was the officer’s testimony. The officer testified that when he saw defendant actually driving the car before the crash, the officer was driving 30 miles per hour in one direction and defendant was driving 40 miles per hour in the opposite direction. Less than 30 minutes into deliberations, the jury asked for a read back of the officer’s testimony about seeing defendant driving and recognizing his football jersey. It later asked for a read back of the officer’s testimony about what he saw before the crash. The next day, the jury indicated it was deadlocked and asked for the written jury instructions. It later informed the court, “We cannot unanimously decide the credibility of [the officer’s testimony]. Specifically, his ability to positively identify the driver.” The jury maintained its deadlock, leading the court to read back the entirety of the officer’s testimony. After the read back and a recess, the jury reached its verdict.
The issue of identification may have been close, but the jury was able to resolve its uncertainty about the officer’s credibility and find defendant guilty beyond a reasonable doubt. It did so with the benefit of written jury instructions that are indisputably correct. The transcript of the spoken instructions fails to show any prejudicial error warranting reversal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.