Opinion
E040035
5-15-2007
THE PEOPLE, Plaintiff and Respondent, v. KENOTH R. BISHOP, Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Kenoth Bishop appeals from judgment entered following a jury conviction for resisting by means of force or violence an executive officer in the performance of his duty (count 1; Pen. Code, § 69). Defendant admitted the truth of a prison prior (§ 667.5, subd. (b)). The trial court sentenced defendant to four years in state prison, suspended the sentence, and placed defendant on three years probation, with one year in jail and participation in a 52-week anger management program.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in admitting testimony of irrelevant, prejudicial prior acts; refusing to instruct on the lesser included offense of misdemeanor nonforcible resisting arrest (§ 148); and instructing the jury with elements of an uncharged crime. Defendant complains of cumulative error.
We reject defendants contentions and affirm the judgment.
1. Factual Background
Before the charged offense, WCAB information and assistance officer, Mia Cornejo, encountered defendant at the WCAB information window twice in 2004. Cornejo testified at defendants trial that, the first time, defendant requested her to transfer his workers compensation file from the Goleta WCAB office to Riverside. Cornejo told him he would have to contact the Goleta office since his file was there. Defendant appeared agitated and was loud. After she gave him the phone number for the Goleta office, he left. He appeared to be carrying a tape recorder in the palm of his hand.
The Workers Compensation Appeals Board.
Cornejo encountered defendant the second time a month or two later. After Cornejo said hello to him, he held up a tape recorder and said he was recording the conversation because everyone lied to him. According to Cornejo, he was extremely agitated and upset. He was close up to the window, shouting in a very loud, demanding voice, and repeatedly used profanity, such as the "`F word." He thought Cornejo was discriminating against him. Defendant asked if his file had been transferred. As he shouted, he leaned into the window. He was aggressive and intimidating.
Defendant is Black.
Cornejo was concerned for her safety even though there was glass between her and defendant. A coworker nearby asked if they should call security and Cornejo said, yes, and walked away from the window. Someone from security arrived and spoke to defendant. Defendant eventually left without incident. Cornejo reported the incident to her supervisor.
Cornejos supervisor, Barbara Cooley, testified that Cornejo sent her an email concerning the incidents involving defendant and requested security be present at defendants next hearing. Cooley arranged for a WCAB contracted California Highway Patrol (CHP) officer to be present at defendants next hearing on October 6, 2004.
CHP Officer Dale Gordon testified he was assigned to attend defendants hearing on October 6. Gordon was told defendant had appeared at the WCAB on two prior occasions, had been agitated and very loud, and had been escorted out of the building. Gordon was also told tape recorders were not permitted and that, if defendant had one, he could not bring it to the hearing.
When defendant arrived at the WCAB, Cooley pointed him out to Gordon. Gordon greeted him and noticed he had a tape recorder. Gordon told defendant tape recorders were not permitted in the hearing rooms. Defendant appeared extremely angry. He handed his tape recorder to his girlfriend. Gordon asked defendant to step into a nearby room so Gordon could search him for weapons. According to Gordon, this was customary policy at hearings when there had been any kind of previous incident. Defendant and Cooley walked into the room, and Gordon followed. Defendants girlfriend remained outside.
After Gordon explained that he needed to search defendant, defendant yelled, "Fuck, I dont have any weapons." When asked to turn around so Gordon could search him, defendant became extremely agitated and aggressive. He said, "Dont touch me. Dont fucking touch me." He was within two feet of Gordon. Gordon had not touched him. Gordon told him to calm down. As defendant stormed out of the room into the hallway to get his tape recorder, he demanded Gordon state his name, rank and serial number. While in the hallway, defendant grabbed his tape recorder from his girlfriend, shoved it in Gordons face, and demanded Gordons name, rank and serial number. Gordon provided the requested information. Gordon calmed down defendant and they went back in the room. Gordon explained to defendant that they went back in the room because people were milling around and he did not want to embarrass defendant while searching him.
Gordon asked defendant to put his hands behind his head for the search. Defendant said he could not put his hands behind his back because he had a dislocated shoulder. Gordon told defendant he had not asked him to put his hands behind his back. Defendant refused to put his hands behind his head. He put his hands against the wall for two or three seconds but Gordon was not able to search him because defendant turned around, became increasingly agitated, and began screaming profanities. He said, "Fuck you. Dont fucking touch me. I dont have to do anything that you say." Defendant was about two feet from Gordon. In a raised voice, Gordon tried to calm down defendant.
Because the loud altercation was disrupting the proceedings in the adjacent hearing rooms, Gordon arrested defendant for disturbing the peace and interfering with operations of a public agency. Defendant screamed in Gordons face but did not touch Gordon.
When Gordon attempted to arrest defendant, defendant became aggressive and resisted by pushing, shoving, and trying to turn and get away. Gordon pushed defendant against the wall to maintain control of him. Defendant turned his body, pushed Gordon away, and left the room.
Gordon followed him into the hallway and told defendant, if he refused to comply, Gordon would spray him with pepper spray. Defendant responded: "I dont have to listen to you. I dont have to do what you say. You just attacked me for no reason." He repeatedly used profanity. Gordon sprayed defendant with pepper spray but it was not effective. Defendant walked to the sitting area and said, "Help me, help me. The officer is attacking me." There were 25 or 30 people there.
Gordon called for backup assistance. Meanwhile defendant continued yelling and saying Gordon was attacking him. No one assisted defendant. Gordon tried to get defendant to leave the sitting room so Gordon could arrest him. As Gordon was telling defendant in an authoritative voice to leave the room, Rafael Estevez, a Spanish interpreter and ex-police officer, assisted Gordon in persuading defendant to leave the room. Estevez accompanied Gordon and defendant out of the sitting room.
After leaving the room, Gordon grabbed defendants left arm and pinned him up against a wall by the doorway. As defendant was attempting to kick Gordon, Gordon, with Estevezs assistance, tripped defendant and brought him to the ground. Defendant kicked Gordon and tried pushing Gordon away. With the help of Estevez, Gordon handcuffed defendant. Defendant was a large, stocky man. Defendant continued kicking, pushing, screaming, and yelling profanities. A few minutes later backup arrived. It took two or three officers to pick defendant up and carry him to a patrol car. Defendant continued resisting and kicking. As the officers were putting defendant in the patrol car, defendant tried to kick Gordon in the groin but another officer blocked the kick with his leg. During the incident, defendant inflicted on Gordon a one and one-quarter-inch cut across the top of his hand and a bruise on his left knee.
Jeffrey Schoonover, who was setting his own workers compensation case, testified he witnessed a portion of the October 6th incident. He saw Gordon take defendant into a small room and heard defendant say, "My arm doesnt go that way. I have a doctors note. Stop, youre hurting me." Later, defendant returned to the room Schoonover was in, sweaty and holding his shoulder. Gordon asked defendant to step outside. Defendant said, "No, I will be glad to do what you want me to do. You can arrest me, but please arrest me in this room, so everyone sitting there could see what was happening." Defendant repeatedly said his arm wouldnt "go that way." Defendant was very loud.
The reporters transcripts states Schoonover was "setting" his workers compensation case but this may be a typographical error. Most likely, he was settling his case.
Defendants girlfriend, Kathleen Pollini, testified she also saw part of the October 6th incident. Gordon approached defendant, asked him his name, and said, "I need you to come into this room with me, and you cannot take that tape-recorder." Defendant put the tape recorder in Gordons face and demanded Gordons name and badge number. Gordon told Pollini she could not go in the room with defendant. Through a window, she saw Gordon rip open defendants jacket. Defendant said, "What the hell are you doing?" Pollini got upset and went to the car. When she returned, defendant was on the floor, yelling at Gordon to get off his shoulder. Pollini knew defendants arm had been hurting him before the incident. Pollini was with defendant during defendants two visits to the WCAB prior to the October 6th incident. He was not told during the previous visits that he could not bring a tape recorder.
2. Admissibility of Evidence of Prior Acts
Defendant contends the trial court abused its discretion in allowing Cornejos prejudicial testimony regarding his two encounters with Cornejo in 2004, before the charged offense. Defendant argues that Cornejos testimony was prejudicial and had no probative value.
A. Procedural Background
Prior to the presentation of evidence at trial, defense counsel objected to Cornejo testifying as the prosecutions first witness. Defense counsel anticipated Cornejo would testify that she witnessed two incidents in which defendant had been overly aggressive and intimidating toward her when he appeared at the WCAB. Defense counsel noted that Cornejo had not witnessed the charged offense and there had been no charges filed or complaints made concerning the two prior incidents. Defense counsel claimed that Cornejos testimony thus was irrelevant and prejudicial. Defense counsel also complained that he would be required to defend defendant as to, not only the charged offense, but also the two prior incidents.
The prosecutor argued Cornejos testimony was admissible under Evidence Code section 1101, subdivision (b) because the testimony related to defendants behavior and Gordons conduct at the time of the charged offense. It also explained why Gordon was present on October 6th and was relevant to defendants anticipated defense that Gordon had been overly aggressive and overreacted. Also, during both the prior incidents and charged offense, defendants conduct was similar. He had a tape recorder, yelled, and used profanity. Cornejos testimony would thus corroborate Gordons testimony and show why Gordon responded the way he did.
The trial court noted defendants objection but overruled it. The trial court noted that Evidence Code section 1101, subdivision (b) need not be considered because Cornejos testimony was relevant to the Peoples case-in-chief to show defendants course of conduct leading up to the altercation on October 6th. The testimony would assist the jury in understanding why Gordon reacted the way he did. The trial court concluded Cornejos testimony was relevant but stated that Cornejo should not be the Peoples first witness because defendants defense was not yet before the court. Defense counsel told the court that, if Cornejo would be testifying one way or another, he did not object to Cornejo testifying as the Peoples first witness.
The People called Cornejo as their first witness. She testified regarding her two encounters with defendant at the WCAB.
B. Applicable Law
Under Evidence Code section 352, the trial court has discretion to exclude evidence "`. . . if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The trial courts exercise of discretion in admitting evidence under Evidence Code section 352 will not be disturbed unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.) The prejudice which exclusion of evidence under section 352 is designed to avoid is not the prejudice "to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (People v. Karis (1988) 46 Cal.3d 612, 638.)
C. Analysis
Defendant argues Cornejos testimony was irrelevant to the prosecution of defendants section 69 charges and its prejudicial nature outweighed any probative value under Evidence Code section 352.
Section 69 makes it unlawful, among other things, to attempt, "by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty."
Defendant argues that his prior acts, to which Cornejo testified, were not relevant because they did not constitute section 69 violations. Cornejo was not an executive officer and defendant did not resist by unlawful force or violence. Defendant claims he was resisting an unlawful detention and arrest. Furthermore, Cornejos testimony was irrelevant because she did not witness the charged offense.
We disagree. Cornejos testimony was relevant to establishing the circumstances, of and reasons for, Gordons acts, including why Gordon was at the WCAB, why he singled defendant out, why Gordon told defendant he could not bring his tape recorder to the hearing, why he attempted to search defendant for weapons, why Gordon arrested defendant for breaching the peace, and why Gordon reacted the way he did when defendant refused to comply with Gordons orders.
Cornejos testimony was thus relevant to defendants defense, in which his attorney argued that defendant acted in self-defense, in response to Gordon using excessive unreasonable force, and that Gordon did not have a lawful basis for apprehending defendant for a breach of peace. During closing argument, defense counsel asserted that defendant did not act unlawfully, did not use excessive force, and did not initiate the force and/or violence in the case. Defense counsel also argued that Gordon unlawfully detained defendant because defendant did not commit a breach of peace, and defendant acted in self-defense.
Cornejos testimony concerning defendants previous acts of loud, aggressive, belligerent conduct was sufficiently relevant and admissible for purposes of refuting defendants defense.
Defendant argues that, even if Cornejos testimony concerning defendants prior acts had some relevance, its probative value was outweighed by its prejudicial nature under Evidence Code section 352. Defendant claims the evidence evoked an emotional bias against defendant by portraying him as a belligerent troublemaker, who had committed similar bad acts in the past.
Defendant further complains that the trial court did not even consider the prejudicial impact of such character evidence after concluding it was relevant. Defendant argues that, because the trial court did not weigh the probative value of Cornejos testimony against its prejudicial effect, this court must presume the trial court abused its discretion in allowing the evidence. (People v. Martinez (1980) 106 Cal.App.3d 524, 532.) But in concluding whether to admit or exclude prior crimes evidence under section 352, the trial court need not expressly weigh prejudice against probative value. All that is required is that the record demonstrate that the trial court understood its responsibilities and fulfilled them under section 352. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)
Even assuming this court must presume an abuse of discretion, there is sufficient evidence overcoming the presumption. Any prejudice evoked by Cornejos testimony regarding defendants prior acts was outweighed by its probative value. Even if Cornejo had not testified, Gordon could have testified as to why he was present at the WCAB and why he singled out defendant as a potential troublemaker. Gordons awareness of defendants prior bad acts was relevant to explaining his response to defendants conduct. In addition, Cornejos description of defendants prior acts concerned conduct that was relatively mild compared with his conduct on October 6.
Since the probative value of Cornejos testimony outweighed any prejudicial impact, we conclude the trial court did not abuse its discretion in permitting Cornejos testimony.
3. Instruction on Misdemeanor Nonforcible Resisting Arrest
Defendant argues the trial court committed reversible error in failing to instruct on nonforcible resisting arrest (§ 148) as a lesser included offense to the charged offense of deterring or resisting arrest by means of force or violence (count 1; § 69). We disagree.
A. Background
During the parties and courts discussion of jury instructions, defendant requested instruction on misdemeanor nonforcible resisting arrest (section 148 offense) as a lesser included offense of count 1 (section 69 offense). The trial court rejected the instruction on the grounds a section 148 offense was a lesser related offense, not a lesser included offense, and the prosecution would not agree to instruction on a section 148 offense.
After the trial, defendant moved for a new trial or, alternatively, for reduction of the section 69 offense to a section 148 offense on the ground that, after the trial, defense counsel spoke to three jurors and they indicated defendants conduct was "probably misdemeanor conduct. Had they been given the opportunity, they probably most likely could have convicted Mr. Bishop of a misdemeanor, . . ." The prosecutor told the court she also had spoken with the jurors and they had indicated that the facts in the case "did seem a little weak, but once they understood the defendant had an extensive record, especially with confronting officers in the past, they had absolutely no problem that this [w]as a felony, . . ." The trial court denied defendants motion for new trial and for reduction of the section 69 offense to a section 148 offense.
B. Applicable Law and Analysis
The court must instruct on lesser included offenses when there is substantial evidence supporting a verdict that the defendant is guilty of the lesser, but not the greater, crime. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)
The criteria for determining whether one offense is a lesser included offense of another are currently open to some doubt. Historically, "one of two tests (called the `elements test and the `accusatory pleading test) must be met. The elements test is satisfied when `"all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.] [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]" (People v. Lopez (1998) 19 Cal.4th 282, 288.)
While the elements test focuses on the definition of a crime in the abstract, "[u]nder the accusatory pleading test, a lesser offense is included within the greater charged offense `"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.] [Citations.]" (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)
In People v. Montoya (2004) 33 Cal.4th 1031, the Supreme Court noted that courts generally use the accusatory pleading test "to determine whether to instruct a jury on an uncharged lesser offense. [Citations.]" (Id. at p. 1035.) The court further noted that some Court of Appeal decisions have concluded the accusatory pleading test only applies when the issue is whether to instruct, and "`does not apply to considerations of whether multiple convictions are proper. [Citations.]" (Ibid.) The Montoya court did not resolve that issue, because it determined that under the circumstances of that case, both the elements test and the accusatory pleading test would yield the same result. (Id. at pp. 1035-1036; see also People v. Reed (2006) 38 Cal.4th 1224, 1229, 1231.)
The appellate courts disagree as to whether nonforcible resisting arrest, as defined in section 148, is a lesser included offense of section 69. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533 (Lopez); People v. Belmares (2003) 106 Cal.App.4th 19, 23-24 (Belmares) [section 148, subdivision (a)(1), is not a lesser included offense of section 69]; People v. Esquibel (1992) 3 Cal.App.4th 850, 854-855 (Esquibel) [section 148, subdivision (a)(1), is a lesser included offense of section 69].) We agree with the analysis in Lopez and Belmares.
As the court in Belmares explained, "Analysis of the statutory elements of the two offenses shows [the section 148 offense] requires commission of the crime at the time of a peace officers discharge or attempted discharge of a duty of his or her office or employment. (§ 148, subd. (a)(1).) A CALJIC instruction so defines that temporal element: [¶] `In order to prove this crime, each of the following elements must be proved: [¶] 1. A person willfully resisted, delayed, or obstructed a [peace officer] . . . [¶] 2. At the time the [peace officer] . . . was engaged in the performance of [his] [her] duties; and [¶] 3. The person who willfully resisted, delayed, or obstructed knew or reasonably should have known that: [¶] (a) the other person was a [peace officer] . . . [¶] (b) and was engaged in the performance of [his] [her] duties. (CALJIC No. 16.102 (1998 rev.) (6th ed. 1996) (July 2002 pocket pt.), italics added.)
"[The section 69 offense], on the other hand, has disjunctive temporal elements, one of which is congruent with, the other of which is inconsistent with, the temporal element of resisting. (§ 69.) `[T]he plain language of the statute encompasses attempts to deter either an officers immediate performance of a duty imposed by law or the officers performance of such a duty at some time in the future. (In re Manuel G. (1997) 16 Cal.4th 805, 817; accord, com. to CALJIC No. 7.50 (6th ed. 1996) (July 2002 pocket pt.), p. 89.) A CALJIC instruction so defines those disjunctive temporal elements: [¶] `In order to prove this crime, each of the following elements must be proved: [¶] [1. A person willfully [and unlawfully] attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and [¶] 2. The attempt was accomplished by means of any threat or violence.] [¶] [1. A person knowingly [and unlawfully] resisted an executive officer in the performance of his or her duty; and [¶] 2. The resistance was accomplished by means of force or violence.] (CALJIC No. 7.50 (6th ed. 1996).)" (Belmares, supra, 106 Cal.App.4th at pp. 23-24, fns. omitted; see also Lopez, supra, 129 Cal.App.4th at p. 1532.)
The Belmares court concluded that, "[b]y the statutory elements test, then, we hold [the section 148 offense] is not a lesser included offense of [the section 69 offense] since one can deter an officers duty in the future (§ 69) without resisting the officers discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1))." (Belmares, supra, 106 Cal.App.4th at p. 24; Lopez, supra, 129 Cal.App.4th at p. 1532.)
Relying on Belmares, the Lopez court agreed: "We agree with People v. Belmares (2003) 106 Cal.App.4th 19 (Belmares) that section 148 is not a lesser included offense of section 69, because section 69 can involve a present attempt to deter an officers future duty. (Belmares. supra, at pp. 24-26.) We see no conflict between Belmares and Esquibel. We understand Esquibel to have assumed without deciding that section 148 is a lesser included offense of section 69. (Esquibel, supra, [3 Cal.App.4th] at pp. 854-855.) In any event, to the extent there is a conflict in these opinions, this court has characterized section 148 as a lesser related offense. [Citation.] A criminal defendant has no right to requested instructions on lesser related offenses without the prosecutors permission. [Citation.]" (Lopez, supra, 129 Cal.App.4th at p. 1532; italics added.) Accordingly, in the instant case, under the statutory elements test, the trial court was not required to instruct the jury on a section 148 offense.
Defendant argues that, even if under the statutory elements test the section 148 offense was not a lesser included offense, under the alternative pleadings test, it qualified as a lesser included offense. The information alleges in relevant part: "The District Attorney of the County of Riverside hereby accuses [defendant] of a violation of . . . section 69, a felony, in that on or about October 6, 2004, . . . he did wilfully and unlawfully attempt by means of threats and violence to deter and prevent D. GORDON, who was then and there an executive officer, from performing a duty imposed upon such officer by law, and, did knowingly resist by the use of force and violence said executive officer in the performance of his duty." [Italics added.]
The court in Lopez disagreed that, under the pleadings test, instruction was required on a section 148 offense, as a lesser included offense of a section 69 offense. (Lopez, supra, 129 Cal.App.4th at pp. 1532-1533.) The Lopez court explained: "Defendant contends that Belmares is distinguishable due to the difference in the pleadings in this case. Defendant contends that the violation of section 69 was alleged in the conjunctive . . . , thereby limiting proof to resisting an officer in the present performance of his duty, which would also violate section 148. [¶] Defendant misunderstands the significance of these allegations. When a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. [Citations.] We read the information to have charged defendant with violating section 69 in the statutes terms. `When . . . the accusatory pleading describes a crime in the statutory language, an offense is necessarily included in the greater offense when the greater offense cannot be committed without necessarily committing the lesser offense. [Citations.] The statutory elements test is the only one relevant here. The trial court need not have instructed the jury that . . . section 148 . . . was an offense included in section 69." (Lopez, supra, at pp. 1532-1533.)
Here, also, the violation of section 69 was alleged in the conjunctive. Under Lopez, instruction on a section 148 offense was thus not required. (Lopez, supra, 129 Cal.App.4th at p. 1533.)
Moreover, even if we were to agree that section 148, the more general statute, is, as pleaded in this case, a lesser included offense of section 69, the more narrow statute, we do not agree that the evidence supported an instruction on the lesser offense. Gordons testimony established that defendant intentionally used unjustified force, including pushing, scratching, and bruising Gordon in violation of section 69. Under such circumstances, the trial court was not required to instruct on the lesser section 148 offense, because there was no substantial evidence that the crime was less than a section 69 offense. (Breverman, supra, 19 Cal.4th at p. 162.)
4. Instruction on Unlawful Recording of Confidential Communications
Defendant contends the trial court erred in instructing the jury on the unlawful recording offense (section 632 offense).
During a discussion of jury instructions, the prosecutor requested the court to instruct the jury on the section 632 offense for the purpose of informing the jury that Gordon did not act unreasonably in telling defendant he could not have a tape recorder at the WCAB. Defendant objected on the ground defendant did not commit the offense. He did not have an opportunity to record anyone.
The court overruled defendants objection, explaining: "I think it minimizes any confusion about whether or not recording somebodys speech with a tape-recorder is lawful or not. [¶] Because you will recall . . . Miss Cornejo who testified that the defendant wanted to record her statement when he was there the first time, and then there is the matter of the defendant placing the tape-recorder in front of the officers face to ask him his name and identification. [¶] Of course thats appropriate. A person obviously can lawfully ask an officer his or her name and serial number. [¶] . . . [¶] I just think it would help the jury. I dont think it is prejudicial to the defendant."
The trial court instructed the jury under section 632 as follows: "Every person who intentionally and without consent of all parties to a confidential communication by means of any recording device records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of the telegraph, telephone, or other device, except a radio, is in violation of Penal Code Section 632."
Under section 632, subdivision (a), it is a crime to record a confidential communication that is carried on by means of a tape recorder without the consent of all parties to the confidential communication. "Confidential communication" includes "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." (§ 632, subd. (c).)
Defendant argues there was no evidence supporting a section 632 instruction. While it is true that there was insufficient evidence to support a finding that defendant violated section 632, since defendant did not record any confidential communications while at the WCAB on October 6th, the section 632 instruction was not used to convict defendant of violating section 632. Defendant was not charged with a section 632 offense. Rather, the instruction was used to show that Gordon did not act unreasonably in prohibiting defendant from bringing the recorder into the WCAB hearing room because there was the possibility defendant might use it unlawfully. The instruction also clarified whether defendants possession and use of the recorder was unlawful.
"The general rule is that in a criminal case the trial court must instruct on the `principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.] [Citation.]" (People v. Mobley (1999) 72 Cal.App.4th 761, 781, quoting People v. Saddler (1979) 24 Cal.3d 671, 681.)
Because evidence of defendants possession and use of a tape recorder, and Gordons insistence that defendant not bring it to court raised issues of whether prohibition of the recorder was justified, the section 632 instruction was proper. It addressed pertinent issues and also benefited defendant by clarifying that his possession and use of the recorder on October 6th was not unlawful.
Defendant complains that the instruction was harmful because the court did not define the term "confidential communication," and thus the jury may have assumed that defendants use of the recorder at the WCAB was an unlawful act even though he did not record any confidential communications. But the only time defendant used the recorder on October 6th was while in a WCAB hallway, accessible to the public, and he did not record any confidential communications. Defendant recorded Gordon stating his name, rank, and serial number, which was not a confidential communication.
Even assuming the trial court abused its discretion in giving the section 632 instruction, it was harmless error. The instruction was more beneficial to defendant than harmful. It clarified that his possession and use of the recorder on October 6th was lawful.
Defendant complains that giving the instruction confused the jury and made it unlikely there was a unanimous verdict because the jury could have convicted defendant based on a section 632 violation, a breach of peace violation (§ 415, subd. (2)), or a section 69 violation, since the court instructed the jury on all of these crimes even though defendant was only charged with a section 69 offense.
The court instructed the jury that, "The prosecution has introduced evidence for the purpose of showing that more than one act upon which a conviction on Count 1 may be based. [¶] Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts." Shortly before giving this instruction, the court instructed on the offenses of breaching the peace and the recording offense.
Defendant argues that these instructions misled the jury into believing it could convict defendant, without unanimity as to the basis for convicting defendant of violating section 69.
The court, however, did not instruct the jury that it could convict defendant based on the section 632 offense and there was no evidence supporting such a conviction. Even if the court erred in instructing on the section 632 recording offense, it was harmless error because it is not reasonably likely the jury would have found defendant violated section 632 or that the jury convicted defendant of the section 69 offense based on a section 632 violation. (People v. Watson (1956) 46 Cal.2d 818, 835-836.)
We further find no merit to defendants cumulative error contention. As discussed above, the trial court did not commit any error and, even if it did, such errors were harmless individually, as well as cumulatively.
5. Disposition
The judgment is affirmed.
We concur:
Hollenhorst, Acting P. J.
Miller, J.