Opinion
B197338
8-7-2008
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS AVILA, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
FACTS AND PROCEEDINGS
On September 2, 2006, Maria Anaya walked toward her car after work and sensed someone following her. When she turned around, Anaya saw appellant, Juan Carlos Avila, standing behind her. Appellant told Anaya to throw her belongings and keys into the car. When Anaya refused, appellant threatened to kill her. Anaya screamed for help and her coworker, Ernesto Montes, came to offer assistance. Appellant then entered Anayas car and drove away. While appellant backed out of the parking space, Montes saw appellants face. Anaya called the police after appellant drove away.
Anayas car was a 2004 red Chrysler Sebring convertible. On September 6, 2006, California Highway Patrol Officer Brian Berg noticed a red Sebring playing "very loud music." After running a wants and registration check on the vehicle, Berg learned it was stolen. Berg then attempted to stop the vehicle, at which point it accelerated to 90 miles per hour. After leading police on a high speed chase, the Sebring crashed and the driver, later identified as appellant, attempted to flee on foot. After police finally apprehended appellant, he gave officers two false names. Police searched the vehicle, recovered many of Anayas belongings, and verified the vehicle was registered to Anaya.
Police contacted Anaya and requested a description of the perpetrator. Anayas description matched appellant. On separate occasions, both Anaya and her coworker, Montes, identified appellant by picking his photo out of a package containing six photos.
Following a trial, appellant was found guilty of one count of carjacking, in violation of Penal Code section 215, subdivision (a), and a second count of second degree robbery, in violation of section 211. The trial court sentenced appellant as follows: five years for the first count, carjacking, doubled for the strike pursuant to 1170.12, subdivision (1)(3), plus five years for a prior robbery conviction pursuant to section 667, subdivision (a)(1), and doubled pursuant to section 1170.12, subdivision (c)(1). Consecutive to the foregoing 15 years, appellant was sentenced to one year for the second count, robbery, doubled for the strike, for a total of 17 years in prison.
All undesignated statutory references are to the Penal Code.
Appellant now argues the following: (1) the trial court committed prejudicial error by failing to give jury instructions CALJIC Nos. 2.03 and 2.52 relating to consciousness of guilt; (2) the sentence for the robbery count should have been stayed pursuant to section 654; (3) a new sentencing hearing should be ordered because the trial court was unaware it had discretion to sentence appellant concurrently on the robbery count; (4) the trial court failed to state reasons for the sentence it imposed; and (5) the sentence violated the prohibition against dual use of facts contained in California Rules of Court, rule 4.425(b)(2). We address each of appellants arguments in turn.
Appellants opening brief also argued the trial court had a sua sponte duty to give CALJIC No. 2.15. Appellant later abandoned this argument after our Supreme Court issued its opinion in People v. Najera (2008) 43 Cal.4th 1132 (Najera).
DISCUSSION
1. The Trial Courts Failure to Properly Instruct the Jury Was Not Reversible Error
At trial, the prosecution offered evidence to the jury that appellant gave two false names to, and fled from, the police. Officer Berg testified that appellant had given him two false names and during closing arguments the prosecution stated, "Why would you lead someone on a chase, unless youre guilty? . . . [¶] . . . You take off when youre guilty of a crime." The trial court, however, did not instruct on how the jury should consider evidence of consciousness of guilt. Appellant contends the trial courts failure to give CALJIC Nos. 2.03 (false statements) and 2.52 (flight), which explain that evidence showing consciousness of guilt is not alone sufficient to establish guilt, constituted prejudicial error.
CALJIC No. 2.03 provides: "If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which he is now being tried, you may consider that statement as a circumstance tending to prove consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt."
CALJIC No. 2.52 provides: "The [flight] [attempted flight] [escape] [attempted escape] [from custody] of a person [immediately] after the commission of a crime, or after [he][she] is accused of a crime, is not sufficient in itself to establish [his][her] guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty."
Appellate authority in this area is not entirely consistent. Appellant correctly argues that trial courts have a sua sponte duty to give CALJIC No. 2.52 where evidence of a defendants flight from police is presented to the jury. (Najera, supra, 43 Cal.4th at p. 1139, fn. 4.) While some authority suggests trial courts have a sua sponte duty to give CALJIC No. 2.03 where evidence that the defendant lied to the police is presented (see People v. Atwood (1963) 223 Cal.App.2d 316, 333 (Atwood)), our Supreme Court has suggested that Atwoods holding may be limited to its facts. (Najera, at p. 1139, fn. 3.) For purposes of this appeal, we assume without deciding that the trial court had a sua sponte obligation to give CALJIC No. 2.03. We address whether any error in failing to give the two instructions was prejudicial.
Whether instructional error on consciousness of guilt is prejudicial is determined under People v. Watson (1956) 46 Cal.2d 818. (See Atwood, supra, 223 Cal.App.2d at p. 334 [applying Watson to a trial courts failure to instruct the jury on evidence of defendants false statement to police and finding the error nonprejudicial].) In order for error to be prejudicial, and thus reversible, it must appear "`reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, at p. 837.)
Where different pieces of evidence each independently establish consciousness of guilt, an appellate court may amalgamate those pieces of evidence to show the unlikelihood of a more favorable result for the defendant absent any instructional error. (People v. Clark (1953) 122 Cal.App.2d 342, 345-346 (Clark), disapproved on another ground in Najera, supra, 43 Cal.4th at p. 1141.) In Clark, the defendant was convicted of second degree robbery. Some of the robbery victims belongings were found in a pawn shop just hours after the robbery occurred and the defendant had sold the items to the pawn shop at prices well below their true value. Police also found some of the robbery victims belongings at the defendants home. The defendant, claiming an unidentified friend gave him the items to sell, offered a dubious alibi supported only by the testimony of a witness then under arrest. The court referred to the defendants claims as "suspicious circumstances." The defendant also attempted to bribe the arresting police officers. Despite the trial courts failure to instruct the jury regarding the evidence of the defendants possession of recently stolen property, the court affirmed the conviction, holding the error was not prejudicial. (Clark, at p. 346.) The court in particular noted the defendants attempt to bribe the arresting officers "could be considered by the jury as indicating a consciousness of guilt [and that] [t]he corroborating circumstances, together with the admitted fact of possession of recently stolen property, are amply sufficient to sustain the conviction." (Ibid.)
Even if the trial court gave CALJIC Nos. 2.03 and 2.52, the jury could still consider, so long as it did not solely rely on, the evidence establishing consciousness of guilt: flight from police (by car and then by foot once the car chase ended), and two lies to police officers regarding appellants identity. Both the victim and the witness identified appellant as the perpetrator. Police also discovered appellant in possession of the victims car and personal belongings within the car just four days after the crime. The evidence in its totality is thus sufficiently strong to establish that, even if the jury had been properly instructed, it is not reasonably probable appellant would have received a more favorable result. Accordingly, any error in failing to give CALJIC Nos. 2.03 and 2.52 was harmless.
2. The Sentence on the Robbery Count Should Be Stayed Pursuant to Section 654
Section 654 establishes an "act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Whether a course of criminal conduct . . . gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; italics added.) Appellant argues the sentence on count 2, the robbery count, was improper because both counts (carjacking and robbery) were part of an indivisible course of conduct motivated by a single objective (obtaining the victims car and its contents). Respondent agrees as do we. Appellants sentence on count 2 should be stayed.
3. The Sentencing Issues Are Moot
As appellant acknowledges, because the robbery sentence is stayed under section 654, appellants argument about the trial courts selection of a consecutive, as opposed to a concurrent, sentence on the robbery is moot.
DISPOSITION
The sentence on count 2 is reversed and the matter is remanded with directions that the trial court stay the imposition of sentence on that count. In all other respects, the judgment is affirmed.
WE CONCUR:
FLIER, J.
BIGELOW, J.