Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Super.Ct.No. FSB051510
Toni Guthrie, 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, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Marissa A Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant Craig Lee Hendrickson entered a liquor store, heated up two burritos in the store’s microwave, placed a sandwich in his pocket, and attempted to leave the store without paying for the items. During trial, defendant claimed that he had paid for the burritos, but did not recall how the sandwich got into his pocket.
Defendant was charged with second degree robbery (Pen. Code, § 211), second degree commercial burglary (§ 459), and petty theft with priors. (§§ 666 & 484, subd. (a).) It was further alleged that defendant suffered a prison prior. (§ 666; Health & Saf. Code § 11377, subd. (a).)
All further statutory references will be to the Penal Code unless indicated.
After a jury trial, defendant was convicted of petty theft and attempted petty theft, and the jury found true the allegation of his prior conviction of petty theft with a prior. The trial judge found true that defendant had suffered two prior prison terms pursuant to section 667.5. Defendant was acquitted of the second degree robbery, attempted second degree robbery, second degree commercial burglary, and attempted second degree burglary charges.
On appeal, defendant contends that (1) the trial court committed prejudicial error in failing to instruct on the claim-of-right defense in the written jury instructions, (2) the trial court erred in giving CALCRIM No. 362 because the evidence was insufficient to warrant the instruction, (3) the trial court erred in allowing the prosecutor to refer to defendant’s prior conviction without sanitizing it, (4) defendant did not waive his right to a jury trial as to the prior convictions, and the sentence enhancement imposed for those convictions must be set aside, and (5) the prejudicial effect of cumulative errors requires the reversal of defendant’s conviction.
We conclude that the court properly instructed the jury on defendant’s claim-of-right defense. We further find that there was sufficient evidence regarding consciousness of guilt to warrant the giving of the CALCRIM No. 362 instruction. We conclude that the prosecutor’s reference to defendant’s prior conviction was harmless error. Finally, we hold that the trial court’s failure to advise defendant of his right to a jury trial on his prior convictions was harmless error. Consequently, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
We view the facts in the light favoring the judgment as required by People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Staten (2000) 24 Cal.4th 434, 461.
At approximately 11:00 p.m. on August 13, 2005, Chong Yol Kim (Kim) and Adalberto Guerra (Guerra) were working at the Hilltop Liquor Store in Crestline. Kim, the store clerk, was behind the cash register and Guerra was stocking merchandise. Defendant walked into the store—possibly under the influence—and began to curse and tease Guerra, was noisy, and made disparaging remarks to Kim. Defendant then left the store without purchasing anything.
Around 20 minutes later defendant reentered the store and walked angrily toward the refrigerator. Defendant took two burritos and a sandwich from a refrigerator and placed the burritos in the store’s microwave. When defendant slammed the microwave shut, Kim asked him to be careful—to not damage the microwave. Defendant began eating the sandwich and again cursed at Guerra.
Kim calls the “sandwich” both a hamburger and a sandwich, and calls the two “burritos” sandwiches. To avoid confusion we will refer to the single food item as “sandwich” and the two food items as “burrito(s).”
Defendant then retrieved the burritos from the microwave and held them in his hands while he placed the partially eaten sandwich in his jacket pocket. He walked to the door without stopping at the cash register to pay. Kim told defendant that he needed to pay for the items and he blocked defendant from exiting the store by standing in his path. Defendant claimed that he had already paid for the items. Kim grabbed defendant and told Guerra to lock the door in order to prevent defendant from leaving. Defendant pushed and hit Kim in the face with his fist, and a struggle ensued. Kim called 911 while defendant remained in the locked store.
Police arrived at the store and arrested defendant. They found two burritos on the floor near the locked front door and what appeared to have been a partially eaten cheese steak sandwich in defendant’s jacket pocket. Officers also found $178.80 in defendant’s pocket. Defendant was placed into the police car, and as he was “pretty relaxed,” he slid off of the back seat and fell asleep on the rear floorboard.
During questioning at the police station, defendant said he went to the store, got two burritos from the refrigerator, heated them up, and gave the clerk either a $10 or $20 bill. Defendant never mentioned to the officers that he had been in the store earlier, left, and then later returned.
Defendant was criminally charged and the matter went to trial. The parties stipulated that there was no cash register tape documenting the store’s sales transactions. Additionally, the store’s security cameras were not working.
Testifying in his own defense, defendant stated that he purchased two burritos, ice cream, and three lottery tickets during his first visit to the store. He also asked for change in order to use an outside payphone. He placed the two burritos inside the microwave, then left the store to make a phone call. After completing his call, he reentered the store to retrieve the warm burritos, which he had already paid for. When he tried to leave the store, a fight broke out.
Defendant asked to speak with the owner, who lived upstairs, as to what had happened on the previous day. Kim replied, “No, I’m going to call the police.”
Defendant testified that the day before the incident, he entered the same store and purchased several items and the same store clerk accused him of not paying. However, defendant had paid for the items, and another customer, who was present and knew defendant, verified that defendant did pay for the items.
Although defendant had admitted to a prior history of alcoholism, he testified that he was sober the night of the incident. He said he consumed three 12-ounce beers at work between 2:30 p.m. and 5:00 p.m. In the hours leading up to first visit to the liquor store, defendant sat at a bar but denied drinking any alcohol there.
DISCUSSION
A. The Trial Court Properly Instructed the Jury on Defendant’s Claim-of-Right Defense.
Because defendant testified that he paid for the food items, defendant was asserting a claim-of-right defense at trial. Defendant argues the trial court inadequately instructed the jury on his claim-of-right defense in that the trial court’s oral instruction did not make it clear that his claim-of-right defense applied not only to the robbery, but to the petty theft as well. He states the trial court’s oral instruction that claim-of-right was a defense to petty theft, as well as robbery, was added only as an afterthought.
The trial court indicated, “If you have a reasonable doubt about whether the defendant had the intent required for theft, you must find him not guilty of robbery. [¶] That actually should be not guilty of petty theft as well.”
In reviewing defendant’s argument that the jury was improperly instructed on the claim-of-right defense to theft, we must first decide whether written instructions trump oral instructions, as defendant contends. The Supreme Court of California has stated that when oral and written jury instructions conflict, the written instructions will govern any conflict. (People v. Osband (1996) 13 Cal.4th 622, 717 (Osband).) Osband gives a clear example of when a trial court’s oral and written jury instructions are in conflict. In that case, the jury was orally instructed that they must consider certain factors, but were instructed in writing that they could consider those same factors only if applicable. (Ibid.) In addition, regarding the weight to be given to particular testimony, the jury was orally instructed that they should consider such, but were instructed in writing that they may consider such, but were not required to do so. (Ibid.)
We conclude that Osband does not apply in this case. In Osband, supra, both the written and oral instructions addressed the same issue. Here, the written instructions read as follows:
“If the defendant obtained property under a claim of right, he did not have the intent required for the crime of Robbery.
“The defendant obtained property under a claim of right if he believed in good faith that he had a right to the specific property or a specific amount of money, and he openly took it.
“In deciding whether the defendant believed that he had a right to the property and whether he held that belief in good faith, consider all the facts known to him at the time he obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.
“If you have a reasonable doubt about whether the defendant had the intent required for theft, you must find him not guilty of Robbery. [¶] . . . [¶]
“DEFENSE TO THEFT OR ROBBERY: CLAIM OF RIGHT.”
The language at the bottom of the instruction clearly states that it is a defense instruction for theft, as well as robbery. The trial court’s verbal statement, “That actually should be not guilty of petty theft as well” emphasized the claim-of-right defense applied to the petty theft charge as well as the robbery charge.
Because written instructions are controlling only when they conflict with oral instructions, and as these instructions do not conflict, we must next determine whether the instructions were adequate. Whether to give written instructions to the jury “is a matter entrusted to the trial court’s discretion” and oral instructions are all that are required. Oral instructions are sufficient by themselves to charge a jury. (People v. Seaton (2001) 26 Cal.4th 598, 673; see also § 1093, subd. (f).)
In the present case, the trial court gave an accurate description of the claim-of-right defense and its applicability to a petty theft offense in its oral instructions. The oral instruction correctly informed the jury that defendant must be found not guilty of petty theft if he had a good faith belief that he had a claim of right to the food.
Defense counsel specifically requested the inclusion of the claim-of-right jury instruction, cited to it in its allegedly inadequate form during closing arguments, discussed it at length, and specifically stated that it applied to all of the crimes charged. Defense counsel’s closing argument drew specific attention to CALCRIM No. 1863, by pointing out, “if you find that [defendant] honestly believed that he had a claim to that property, then it’s in a nutshell for the defense for pretty much all three of these crimes if [defendant] thought he paid for that.” Also, defense counsel told the jury that even if defendant mistakenly believed that he had paid for the items because he was intoxicated, that is a sufficient defense to return a not guilty verdict. Defense counsel concluded by asking: “Is it reasonable that [defendant] is mistaken that he paid for the items because of the alcohol? Yes. [¶] And if you find that to be true, then you must, you must, find him not guilty.”
Not only was this correct instruction given orally by the court, but it was also discussed in unmistakable detail by defense counsel after the jury had been orally instructed. The oral instruction was adequate, and the caption of the written instructions properly referenced the theft. Therefore, we conclude that the trial court properly instructed the jury on defendant’s claim-of-right defense.
B. There Was Sufficient Evidence to Warrant Giving CALCRIM No. 362.
The court instructed the jury on consciousness of guilt by giving CALCRIM No. 362, which provides:
“If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Defendant alleges that giving the instruction was prejudicial error because there was insufficient evidence that defendant had made false or misleading statements.
CALCRIM No. 362 (formerly CALJIC No. 2.03) “is justified when there exists evidence that the defendant prefabricated a story to explain his conduct.” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103 (Edwards).) This evidence can include inconsistencies in the defendant’s own testimony, pretrial statements, or any other prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498.) However, “[t]his instruction is not applicable in the situation where a defendant makes an explanation of behavior to the police which is consistent with his self-serving testimony at trial that conflicts with the prosecution’s evidence before the jury.” (People v. Rubio (1977) 71 Cal.App.3d 757.) Therefore, this court must assess whether the evidence in the instant case rises to the level of being inconsistent.
In Edwards, the defendant’s pretrial statements and his trial testimony contained minor discrepancies, but were overall consistent. (Edwards, supra, 8 Cal.App.4th at p. 1103.) However, regarding the prosecution’s other evidence, if the jury “believed the testimony of other witnesses, it could reasonably have found defendant’s pretrial statements were willfully false and deliberately misleading.” (Id. at p. 1104.) “From this, the jury could have inferred a consciousness of guilt” sufficient to justify a CALCRIM No. 362 jury instruction. (Ibid.)
This case bears a striking resemblance to Edwards. Here, just as in Edwards, defendant’s pretrial statements and trial testimony contained only minor discrepancies. However, Kim’s testimony that defendant attempted to leave the store without paying for the burritos and sandwich was directly inconsistent with defendant’s contention. If the jury believed Kim, it could have reasonably found defendant’s pretrial statements and trial testimony to be “willfully false and deliberately misleading [and] [f]rom this, the jury could have inferred a consciousness of guilt.” (Edwards, supra, 8 Cal.App.4th at p. 1104.) Thus, Kim’s testimony was sufficient evidence to justify a CALCRIM No. 362 jury instruction, and the trial court did not err.
Also, the fact that there was sufficient evidence to warrant giving a CALCRIM No. 362 jury instruction does not mean that the jury was required to accept such evidence as truth. The instruction merely provides that jurors may draw an inference of guilt from such evidence if they find evidence to establish that the defendant made a false or misleading statement. Alternatively, if the jury did not believe Kim’s testimony, they were not required to infer consciousness of guilt. (Edwards, supra, 8 Cal.App.4th at p. 1104.) Therefore, we further conclude that the CALCRIM No. 362 jury instruction was proper and not prejudicial because the jury was free to disregard an inference of guilt if they believed defendant.
C. Prosecutor’s Reference to Defendant’s Prior Petty Theft Conviction Was Not Prejudicial.
During pretrial motions in limine, defense counsel informed the court that defendant may testify at trial. As a result, the prosecutor sought to use defendant’s prior petty theft conviction as impeachment evidence, arguing petty theft is a crime of moral turpitude indicative of a person’s ability to tell the truth. Defense counsel interjected a section 352 objection, claiming its use was more prejudicial than probative, and in the alternative, asked that the conviction be sanitized if the trial court were to admit it.
The trial court decided that the prosecutor could impeach defendant with his prior petty theft conviction, provided it was sanitized—the conviction could only be referred to as a “prior offense involving theft,” and not a “petty theft with a prior.”
In the course of defendant’s direct examination, defense counsel asked:
“[Defense:] Now, after [Kim] jumped in front of you and said you had to pay, what happened next?
“[Defendant:] He pounced. He tried to wrestle me to the ground. I said, ‘Get out of the way. I want to go home.’ This is . . . almost 11:00 at night. I told him, ‘Get out of the way. I want to go home.’ [¶] He goes, ‘No, you didn’t pay.’ [¶] And I said, ‘You liar. I did too.’ [¶] He jumped on me. We started scuffling. We wrestled to the ground. Both of them are on me. They wrestled me to the ground. [¶] I broke free. I told them, ‘You go up and get Ms. Lee right now.’ That’s the owner of the store. She lives right above the store. I said, ‘I’m not paying you for these items again. I already paid for them.’
“[Defense:] Were you able to leave the store?
“[Defendant:] I wanted to stay there until Ms. Lee came. I’m not one to cause trouble in that town. I’ve been there too long. I wanted her downstairs to explain to her what happened the day before.”
Defense counsel continued her direct examination:
“[Defense:] And you drank alcohol before that day?
“[Defendant:] No.
“[Defense:] Ever in your life?
“[Defendant:] Yes, I have. Excuse me.
“[Defense:] Have you had a problem with alcohol in the past?
“[Defendant:] In the past, yeah. Over the years, I’ve learned how to maintain it, you know.”
“[Defense:] Have you ever drank vodka before?
“[Defendant:] Sure.
“[Defense:] In fact, you’ve been accused of taking two bottles of vodka back in 1994 out of a liquor store; is that correct?
“[Defendant:] Out of a liquor store?
“[Defense:] Yes.
“[Defendant:] Or a supermarket?
“[Defense:] It was a store; is that correct?
“[Defendant:] Yes.
“[Defense:] And did you, in fact, admit that you did it?
“[Defendant:] Yes, ma’am.
“[Defense:] And did you have any money on you that day? [¶] . . . [¶]
“[Defendant:] No.
“[Defense:] And why did you take those bottles of vodka?
“[Defendant:] Because I was broke. And, actually, at that time I did have a problem with the alcohol.”
The prosecutor then cross-examined defendant regarding the prior theft. She inquired of the defendant:
“[Prosecutor:] I know you mentioned . . . that you didn’t want to cause any trouble in the town.
“[Defendant:] No.
“[Prosecutor:] Have you had trouble in the town? [¶] . . . [¶]
“[Defendant:] Other than that petty theft, no.” [¶] . . . [¶]
“[Prosecutor:] And I just want to clarify your felony conviction. Is that Case FCF1014 on July 19, 2001? Does that sound right? [¶] . . . [¶]
“[Defendant:] Yes, ma’am. It sounds right.
“[Prosecutor:] And when you were convicted for that -- and that was a charge of petty theft with a prior; correct?
“[Defendant:] Yes.
“[Prosecutor:] When you were convicted for that, did you go to prison?
“[Defendant:] Yes.”
Defendant claims that the trial court erred when it allowed the prosecutor to mention that defendant had a prior conviction without sanitizing the details of that conviction, as was agreed to by counsel at the beginning of trial. He complains that the testimony was not stricken, despite the prior agreement. Consequently, he maintains that allowing the reference was prejudicial and the judgment should be reversed. We disagree.
The standard of review for admitting impeachment evidence is “abuse of discretion.” A trial court’s exercise of discretion in admitting impeachment evidence will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
First, defendant has forfeited his claim on appeal. “Failure to make a timely objection or motion to strike inadmissible evidence constitutes a waiver of the right to later complain of its erroneous admission into evidence. [Citation.] Parties also waive the right to later contest the admissibility of evidence where counsel fails to state the specific, correct ground or grounds supporting the objection.” (Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 865.) Defense counsel did not make a motion to strike the testimony or request the jury be admonished to disregard the prosecutor’s reference; thus, she never asked the trial court to exercise its discretion. Hence, any objection to the evidence has been forfeited. (Evid. Code, § 353, subd. (a); People v. Marks (2003) 31 Cal.4th 197, 228; People v. Lang (1989) 49 Cal.3d 991, 1020 [failure to make motion to strike waived claim that prosecution never established all preconditions for admissibility of evidence].)
Even if we were to assume that defendant’s claim was preserved and the trial court abused its discretion in admitting the evidence, we find the prosecutor’s remarks did not prejudice defendant.
The record reveals that defense counsel was the first to broach the prior conviction by asking defendant about the facts underlying his 1994 petty theft conviction. She asked defendant why he took two bottles of vodka, to which defendant answered that at the time, he had a problem with alcohol, and because he was broke, he took the vodka. He also testified that he demanded to talk to the store owner because he was “not one to cause trouble in that town” and wanted to explain that he had paid for his purchases on each occasion that the store clerk accused him of stealing.
Although a misdemeanor involving moral turpitude may be used for impeachment, only the conduct is admissible; the fact of a misdemeanor conviction is inadmissible hearsay. (People v. Wheeler (1992) 4 Cal.4th 284, 295-300.)
The prosecutor picked up on defendant’s refrain and inquired, “Have you had trouble in that town?” to which defendant responded, “Other than the petty theft, no.” Thus, it was defendant who first informed the jury that he committed a prior petty theft.
We conclude that defendant was not prejudiced by the jury becoming aware of his felony conviction of a petty theft with a prior. We agree with the trial court’s assessment that no harm resulted when the jury found out the prior conviction was a petty theft, rather than a theft.
The jury was aware that defendant had a felony conviction for which he served time in state prison in 2001—that felony conviction was based upon a theft charge. The jury learned that the theft was a petty theft; defendant admitted to stealing two bottles of vodka in 1994. Informing the jury that the 2001 felony conviction was based on his 1994 conviction for stealing two bottles of vodka prevents the jury from assuming there was yet another theft conviction, since they were told that the felony was based on a petty theft conviction. As the trial court correctly observed, the jury’s discovery that defendant’s felony conviction was based upon a petty theft, rather than a theft, was a “distinction without a difference.”
C. The Trial Court’s Failure to Advise Defendant of His Right to a Jury Trial on His Priors Was Harmless Error.
Pursuant to section 667.5, the information alleged that defendant suffered the following prior convictions: a 2001 petty theft with a prior and a 2002 possession of a controlled substance. Before trial, defendant requested that his petty theft with a prior conviction and his possession of a controlled substance conviction be bifurcated, and his request was granted by the court.
During trial, the prosecutor presented evidence regarding defendant’s alleged prior petty theft with a prior conviction and incarceration, and defendant admitted its truth. Subsequently, the jury found true defendant’s conviction and incarceration for the 2001 petty theft with a prior. Later, a bench trial was held regarding defendant’s 2002 possession of a controlled substance, and the court found true both the conviction and incarceration for this charge.
It is undisputed that the trial court failed to admonish defendant of his statutory right to have a jury assess the truth of both his prior conviction and incarceration for the possession of a controlled substance charge.
According to section 1025, a defendant has the statutory right to have a jury determine the truth of an allegation that defendant has suffered a prior felony conviction and incarceration. (People v. Vera (1997) 15 Cal.4th 269, 274.) If a defendant is deprived by the trial court of this statutory right, it is an error of state law and is subject to the Watson harmless error analysis. (People v. Epps (2001) 25 Cal.4th 19, 28-29 (Epps).)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
In Epps, the California Supreme Court held that conducting a bench trial in order to determine the truth of prior convictions over defendant’s objection is a harmless error, despite the fact that defendant was deprived of a statutory right. (Epps, supra, 25 Cal.4th at pp. 22, 28-29.) This conclusion rested on the observation that the only factual question for the jury was whether or not the convictions occurred, and defendant argued that he was wrongly convicted rather than that he was not convicted at all. The sole witness during the trial was a fingerprint expert and defense counsel’s only argument was a contestation of identity. However, the court deemed the prior conviction records to be official governmental documents that clearly described the alleged convictions. Therefore, the truth of the convictions was thereby established and the trial court’s error in conducting the bench trial was non-prejudicial under Watson.
Just as in Epps, it is not reasonably probable under a Watson analysis that a result more favorable to defendant would have been reached in the absence of error. Here, the only factual question was whether or not defendant had been convicted and incarcerated for the 2002 possession of a controlled substance. During the bench trial, the deputy who took defendant’s fingerprints and the fingerprint examiner who compared defendant’s prints in the instant case to previously taken fingerprints established a match, both clearly described the alleged convictions. Also, defendant’s 10-print card from the instant case, a certified copy of the “969(b) packet” which contained a chronological history indicating defendant’s two prison priors, an abstract of judgment in the possession of a controlled substance case, two other fingerprint cards, a photograph, and the public records for the possession of a controlled substance case, were all moved into evidence. Similar to Epps, these conviction records constituted official governmental documents by which the truth of the conviction and incarceration was established. Accordingly, it is not reasonably probable that a more favorable result would have been reached if a jury determined the truth of defendant’s prior conviction and incarceration. Therefore, we conclude that, under Watson, the error in conducting a bench trial was harmless.
D. Cumulative Error.
Defendant asserts that reversal is required due to cumulative errors which deprived him of a fair trial. We do not agree, as there were no errors to accrue. Therefore, we reject defendant’s argument that cumulative error deprived him of a fair trial or warrants reversal of the verdict in whole or in part. Defendants are entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)
DISPOSITION
The judgment is affirmed.
We concur
HOLLENHORST Acting P. J., RICHLI J.