Opinion
F040934.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. LESTER J. GEBRO, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Michael A. Canzoneri and Aaron R. Maguire, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Appellant was convicted by a jury of robbery (count one) and grand theft from a person (count two). The trial court suspended imposition of sentence on count one and placed appellant on formal probation for three years, with the condition that appellant serve six months in the county jail. The court stayed the sentence on count two (Pen. Code, § 654).
Appellant took a wallet out of the pants pocket of Tsekani Burrell during a fight among Burrell, appellants friend Prince, and appellant. The fight occurred in an alley near a bar where all three had been drinking. The fight was witnessed by two female juveniles and began after appellant and Prince approached Burrell and accused him of taking Princes beer. One of the juveniles saw appellant reach into Burrells pocket while Prince was holding Burrell, pull something out, and then run off with Prince down the alley. After the two departed, Burrell stood up, felt his pockets, and noticed his wallet was missing. He yelled, "Hey, they got my wallet!" and began chasing appellant and Prince. Officer McNeal arrived and detained all three individuals. Burrell accused appellant and Prince of taking the wallet and appellant responded "Yeah, I got your fuckin wallet, its in my pocket." Burrells wallet, which contained two hundred and sixty-two dollars in cash, was found on appellant. Appellant told McNeal he saw a wallet fall to the ground during the fight and picked it up. He said he did not know who it belonged to and he did not know why he "took it."
At trial, appellant testified the wallet dropped out during a moment in the fight when Burrell fell backwards and had his hands on Princes back, although appellant also said he did not actually see the wallet fall out of anyones pocket. He also testified that he believed, "just because of the way things happened," the wallet belonged to Prince, who carried his wallet in his back pocket.
DISCUSSION
I.
Although the trial court erred by failing to instruct sua sponte on the defense of mistake of fact, appellant was not prejudiced as a result.
The trial court had a duty to give the mistake of fact instruction (CALJIC No. 4.35). Appellants testimony that he picked up the wallet, believing it to be Princes, was sufficient to support such defense and would, if believed by the jury, have negated the intent element of the charged offenses. (People v. Barton (1995) 12 Cal.4th 186, 195 [a trial courts duty to instruct, sua sponte, on particular defenses arises when there is substantial evidence to support such a defense and the defense is not inconsistent with the defendants theory of the case]; People v. Wooten (1996) 44 Cal.App.4th 1834, 1848 [accord]; People v. Green (1996) 50 Cal.App.4th 1076, 1083-1084 [robbery requires specific intent to permanently deprive the victim of possession of the property]; CALJIC No. 9.40; see also Peoples v. Irizarry (1995) 37 Cal.App.4th 967, 975 [mistaken belief of fact that defendant had permission to enter and take property would negate requisite intent element of burglary].)
CALJIC No. 4.35 provides: "An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus, a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful."
However, no legal harm accrued to appellant by the absence of the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 165 [instructional error is not reversible unless an examination of the record establishes a reasonable probability that the error affected the outcome].) The jury was instructed that, in order to convict appellant of robbery, it must find he had the intent to permanently deprive the "owner of [the] property before or at the time that the act of taking the property occurred." Given the evidence and the argument of counsel, the jury knew it was required to decide whether appellant was credible when he testified he picked the wallet off the ground because he thought it belonged to Prince or whether the juvenile was credible when she testified she saw appellant take the wallet from Burrells pocket while restrained by Prince. Given the verdicts, the jury necessarily found the juveniles testimony, rather than appellants, to have been credible because, had the jury accepted appellants contrary version of the facts, the jury could not have concluded that appellant harbored the requisite mental element for either theft or robbery. (People v. Turner (1990) 50 Cal.3d 668, 690-691 [a trial courts failure to instruct is not prejudicial if the jury necessarily resolved the factual question adversely to the defendant under other instructions].)
On this subject, the jury asked for a reread of the relevant testimony by the juvenile.
Furthermore, the comments made by a juror after the verdict was read do not establish that the verdict would have been different had the omitted instruction been given. The court asked the jury whether it had considered one or both of two theories — "Lets roll the drunk" or "were gonna get even with him for stealing the beer." One juror (Juror No. 11) answered that the jury had considered "[b]oth of those theories." The court then asked "did you ever get down to consensus, as to which it was, or did you just end up, after a full discussion, saying, well, the truth is, he committed the robbery." Juror No. 11 answered "You want my response? You can disagree with me, but we actually based our decision on the letter of the law, and we felt that it was neither of those theories, it was a mistake, a bad decision, but, we had to go by the law."
This exchange does not demonstrate the jury found that appellant was credible when he said he believed the wallet belonged to Prince. The juror stressed that the jury followed the law. If the jury had concluded in fact that appellant had been mistaken about the wallets ownership, the jury could not have found the requisite intent element under the relevant clear and unchallenged instructions that were given and could not have convicted appellant of either charged crime under any theory.
When read in context, it is apparent that the Juror No. 11 believed the robbery was not planned but was the consequence of an ill-conceived altercation, and appellants "mistake" or "bad decision" was the decision to steal the wallet when the opportunity arose during the fight. As respondent notes, the decision to pick up Princes wallet could not have been a "bad" one by appellant. This also appears to have been the trial courts understanding of the jurors comments, for the court said "You are a good jury then. [¶] You did not have to agree upon a theory, but you had to make up your mind, as to what actually happened there. [¶] Was the wallet taken? [¶] Was it with that particular intent?"
Furthermore, appellant was not denied effective assistance of counsel when his attorney failed to move for a new trial on the ground the jury had been misinstructed. Reversible error based upon an asserted professional mistake by defense counsel is not shown in the absence of proof of resulting prejudice. (People v. Riel (2000) 22 Cal.4th 1153, 1175 [to succeed on a claim of ineffective assistance of counsel, an appellant must show that counsels performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms and he must show prejudice, i.e., that it is reasonably probable, but for counsels failings, the result would have been more favorable to the defendant]; People v. Cox (1991) 53 Cal.3d 618, 656 [when a defendant cannot establish the second prong of this test, it is unnecessary to first consider whether counsels performance was deficient].)
II.
The trial court was not obligated to grant appellants motion for a new trial.
The statements by Juror No. 11 do not establish that the jurys verdict was contrary to the law. Setting aside the matter of whether the contention was waived because a new trial was not sought on this specific ground, appellant misconstrues those statements. When considered in context, the jurors remarks do not even suggest that the jury ignored the law in rendering its verdicts. If anything, the remarks confirm the jury well understood its obligation to follow the instructions and in fact took great care to do so. The jury was given complete and accurate instructions on the elements of the offenses charged, the burden of proof, and the means by which to evaluate the evidence and conduct deliberations. (People v. Cain (1995) 10 Cal.4th 1, 52 [we must presume the jury understood and followed its instructions].) The failure to include mistake of fact instructions cannot be deemed legally significant under the circumstances of this case because the jury, in order to render the verdicts it did, necessarily rejected outright the only factual basis in the trial record — appellants own testimony — which supported the defense.
Moreover, the statement of a single juror cannot be used to impeach the jurys verdict. (Evid. Code, § 1150, subd. (a); People v. Steele (2002) 27 Cal.4th 1230, 1261 [statute prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors mental processes or reasons for verdict]; People v. Morris (1991) 53 Cal.3d 152, 231 [a verdict may not be impeached by inquiry into the jurors mental or subjective reasoning processes; evidence about how a juror understood the instructions is incompetent to impeach a verdict], disapproved on other grounds in People v. Stansburg (1995) 9 Cal.4th 824, 830, fn. 1.) Because Juror No. 11s comments cannot legally repudiate the verdict, the trial courts denial of the new trial motion was neither state law error nor a federal due process violation.
III.
Appellants contention the prosecutor engaged in misconduct when he asked appellant during cross-examination to comment on the credibility of witnesses McNeal and the female juvenile was waived for purposes of appeal by appellants failure to object to the complained of actions at trial. (People v. Boyette (2002) 29 Cal.4th 381, 431 [unless excused from objecting, defendant who failed to object to alleged misconduct at trial did not preserve issue for presentation on appeal].)
In addition, appellant was not denied the effective assistance of counsel by virtue of defense counsels failure to object to the alleged improper questioning by the prosecutor because 1) the record discloses a possible strategic reason for not objecting, and 2) the failure to object was not prejudicial. (People v. Anderson (2001) 25 Cal.4th 543, 569 [the record affords no basis for concluding that counsels omission was not based on an informed tactical choice]; People v. Hillhouse (2002) 27 Cal.4th 469, 502 [deciding whether to object is inherently tactical and the failure to object will rarely establish ineffective assistance of counsel]; People v. Kelly (1992) 1 Cal.4th 495, 520 ["Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight .... A reviewing court will not second-guess trial counsels reasonable tactical decisions"]; People v. Cox, supra, 53 Cal.3d 618, 656 [a defendant claiming ineffective assistance of counsel must establish prejudice].)
While it is inappropriate to solicit inadmissible lay opinion concerning the veracity of other witnesses (People v. Melton (1988) 44 Cal.3d 713, 744; U. S. v. Richter (2nd Cir. 1987) 826 F.2d 206, 208; U. S. v. Sullivan (1st Cir. 1996) 85 F.3d 743, 749), here the record discloses a rational strategic reason why defense counsel might have decided not to object to the prosecutors attempt to get appellant to pass on the veracity of McNeal or the juvenile witness. Appellants defense was based on his testimony that the fight was over a stolen beer and that he picked up the wallet with the belief it belonged to Prince. Appellant also testified he told McNeal he had seen Burrell take the beer. McNeal, however, testified appellant did not tell him he believed the wallet belonged to Prince nor did appellant say he saw Burrell take the beer, and the juvenile testified she saw appellant reach into Burrells pocket and take the wallet. Because the testimony by McNeal and the juvenile contradicted appellants testimony or undercut his defense theory, defense counsel could reasonably have concluded that the prosecutors questions permitted appellant himself — the only person in a position to counter the unfavorable testimony — to express a reason for the inconsistencies, a sound tactical basis for not objecting to the prosecutors questions.
During cross-examination of appellant, the prosecutor asked, "So, if Officer McNeal were to testify otherwise [that appellant had not told him he saw Burrell take the beer], would it be your testimony that he is being untruthful?" Appellant responded "He may have just not put it in his report." Later, the prosecutor asked appellant whether he agreed that the quoted statement appearing in the officers report, "I dont know why I did it" was "a flat out lie?" Appellant responded "He was not taking notes at the time of my statement, so he may have miswrote[sic] it, or something, yes."
The prosecutor asked appellant if he was aware of any reason why the juvenile would come into court and lie, and whether there was any thing "out there" involving appellant and the juvenile or her family which would cause her to "make something up like that?" Appellant respondent that he did not "know why she would." Given our conclusion that there was a tactical reason not to object to the prosecutors questions, we do not decide whether this line of questioning violates the rule against asking for lay opinion concerning the veracity of a witness. We note, however, that this question goes not so much to the veracity of the witness but rather to the existence of any bias on the part of the witness. Evidence of bias is admissible and, thus, this would be a proper line of inquiry. (Evid. Code, § 780, subd. (f).)
For the same reason, there is no prejudice. The credibility issues raised by the contradictory versions of the relevant events were squarely before the jury. The jury was told that it must determine the veracity of each of those who testified and the factors to be considered in determining credibility, including memory and view point, were described. (CALJIC No. 2.20 [Believability of Witnesses].) The prosecutors inquiry into the same topic when cross-examining appellant did not impact the jurys task. Contrary to appellants assertion in his brief, he was not forced to call the two witnesses liars and he did not; his answers were not antagonistic nor did they denigrate either of the two witnesses. Rather, appellant proffered the entirely cogent explanation that McNeal may not have recorded appellants statements accurately and the not surprising comment that he did not know why the juvenile would lie. In our view, therefore, whatever opinions appellant ventured in response to the prosecutors questions could not reasonably have affected the outcome of trial. (See People v. Melton, supra, 44 Cal.3d at p. 745 [no prejudice because counsel asked only four questions, mostly eliciting information related to bias and any implication that other witnesses were credible was minimal in context].)
IV.
It was not error to instruct with CALJIC No. 17.41.1.
This issue is now settled. Jury nullification is contrary to this states ideal of equal justice for all and is not to be condoned. It is not error to instruct the jury accordingly. (People v. Williams (2001) 25 Cal.4th 441, 463.) Furthermore, this court has consistently found that CALJIC No. 17.41.1 does not intrude into a jurors deliberative thought processes nor does it eliminate jury secrecy. (See accord People v. Elam (2001) 91 Cal.App.4th 298, 312-313.) The Supreme Court has recently held that giving the instruction does not "constitute[] a violation of the constitutional right to trial by jury or otherwise constitute[] error under state law." (People v. Engelman (2002) 28 Cal.4th 436, 441.)
Although it found no constitutional violations requiring reversal, the Supreme Court did order that CALJIC No. 17.41.1 not be given in the future because "the instruction has the potential to intrude unnecessarily on the deliberative process and affect it adversely." (People v. Engelman, supra, 28 Cal.4th at p. 445.) As was true in Engelman, there is no allegation here that the jury had difficulties with respect to deliberations in the present case so the prospective ban on the instruction had no impact.
V.
As respondent concedes, the conviction for grand theft from a person (count two) must be reversed because it is a lesser included offense of the conviction for robbery (count one) and both convictions were based upon the same conduct. (People v. Ortega (1998) 19 Cal.4th 686, 694 [robbery always includes a theft with the additional element of force].) The trial court should have dismissed the theft offense instead of merely staying the conviction pursuant to Penal Code section 654. We will reverse the conviction on count two. (People v. Cole (1982) 31 Cal.3d 568, 582 ["`If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed"].)
VI.
There are no cumulative errors which together resulted in a "verdict contrary to the result that would have occurred in the absence of the errors."
One error relates only to sentencing and will be corrected by our disposition. The other two errors — the failure to give the mistake of fact instruction and the arguably improper questions by the prosecutor concerning witness veracity — did not infect the fairness of the trial in light of the circumstances of the case, and it is not reasonably probable the jury would have reached a result more favorable to appellant absent either or both of these errors. (People v. Williams (1971) 22 Cal.App.3d 34, 45 [reversal not required when totality of error found not to contribute to guilty verdict]; People v. Kronemyer (1987) 189 Cal.App.3d 314, 349 [reviewing court is to assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence].)
DISPOSITION
The judgment is modified by vacating appellants conviction for grand theft from a person (count two). As so modified, the judgment is affirmed.
WE CONCUR: Buckley, J., and Cornell, J.