Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Kevin G. DeNoce, Judge, Super. Ct. No. 2008017258
Mark Brown, 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, Senior Assistant Attorney General, , Supervising Deputy Attorney General, Lance W. Winters, Robret C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Deni Justice was granted probation with one year in the county jail after a jury convicted her of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Appellant appeals, contending that the trial court erred in giving a CALCRIM 362 consciousness of guilt/false statements instruction. We affirm.
All statutory references are to the Penal Code.
Facts
This is a domestic violence case in which appellant attempted to stab her brother, Daniel Combs, at their Camarillo residence. Appallant lived at the house with Combs, appellant's disabled mother, a second brother (Derek Small), and appellant's sister (Dawn Rhodes).
On the morning of April 28, 2008, Daniel Combs got out of bed to use the bathroom. The sun was rising and it was already light outside. Combs noticed that all the house lights were on and turned them off. When Combs emerged from the bathroom a minute or two later, the lights were back on.
Combs turned off the lights and saw appellant standing at the kitchen counter. The kitchen light was on. Concerned about the electricity bill, Combs said, "we got to keep these lights out." Lighting and electricity bills were an ongoing issue and family members had repeatedly asked appellant to turn the lights off.
Appellant turned and smiled, holding a six inch steak knife. Appellant advanced towards Combs, swiped the knife at his chest, and swung the knife back and forth. The knife grazed Combs' chest. She chased Combs into the backyard, swiping the knife at him five or six times. Combs punched appellant in the face, ran back inside, woke his brother and sister, and shouted "Denise just stabbed me."
Appellant reentered the house moments later with the knife. Combs disarmed appellant, ran outside, and called 911. While Combs was making the call, appellant called 911 and spoke to the operator. Appellant said that Combs turned the lights off, came at her like "a crazy person, " and "I stabbed him." The operator told appellant that Combs is "talking to us also" and that "[h]e said you tried to stab him." Appellant replied, "I didn't know who it was, all the lights were off."
A week before the stabbing, appellant attacked Combs without warning and punched him in the face several times. She also assaulted her brother, Derek Small, with a steak knife and chased him through the house in 2003.
Appellant did not testify but argued self defense. A redacted copy of appellant's 911 call was played to the jury.
CALCRIM 362
Appellant argues that the trial court erred in giving CALCRIM 362 which states: "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 she was aware of her guilt of the crime and you may consider it in determining her 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."
The instruction is proper where the evidence indicates that defendant fabricated a story to explain his or her conduct. (People v. Williams (1995) 33 Cal.App.4th 467, 478-479 [discussing CALJIC 2.03].) Our Supreme Court has repeatedly rejected arguments that CALCRIM 362 and its predecessor CALJIC 2.03 violate a defendant's due process right to a fair trial. (People v. Howard (2008) 42 Cal.4th 1000, 1024-1025.) "Deliberately false statements to the police about matters that are within an arrestee's knowledge and materially relate to his or her guilt or innocence have long been considered cogent evidence of a consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances. [Citation.]" (People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168.)
Here the falsehood or fabrication was shown by appellant's inconsistent statements and other evidence. It was daylight and the kitchen light was on. Combs testified that he could clearly see appellant and the glimmer of the knife across the kitchen.
CALCRIM 362 was properly given based on appellant's false and contradictory statements to the 911 operator. Appellant said that Combs came at her "like a crazy person, " that "I just started to stab him, " and "I stabbed him." When the operator stated that Combs is "talking to us also" and "[h]e said you tried to stab him, " appellant replied, "I didn't know who it was, all the lights were off." The fair import of this statement was that appellant was fabricating an excuse after realizing that she had just confessed.
The jury was instructed that it could infer consciousness of guilt but only if it found that appellant made a "false or misleading statement" and knew the statement was false. CALCRIM 362 cautioned the jury that a false or misleading statement was insufficient by itself to convict, which benefited the defense. (People v. Page (2008) 44 Cal.4th 1, 50; People v. Jackson (1996) 13 Cal.4th 1164, 1224.) The jury was admonished to view the statement with circumspection and that "it is up to you to decide its meaning and importance." "Of course, the jury need not believe the prosecution's evidence suggesting that the statement was false, and even if it finds that the statement was false, it need not conclude that the defendant deliberately lied to hide [her] complicity in the crime. In brief, the question is one of weight, not admissibility." (People v. Kimble (1988) 44 Cal.3d 480, 498.)
The jury was instructed on the corpus delicti rule (CALCRIM 359), that the prosecution had the burden of proving beyond a reasonable doubt that appellant did not act in lawful self-defense (CALCRIM 875), that "it is up to you to decide how much importance" to give to appellant's out-of-court statements (CALCRIM 358), and "[d]o not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (CALCRIM 200.)
Nor was appellant denied a due process right to a fair trial. (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) "The inference of consciousness of guilt from willful falsehood or fabrication or suppression of evidence is one supported by common sense, which many jurors are likely to indulge even without an instruction. In this case, such circumstantial evidence of consciousness of guilt was among the strongest evidence against defendant and would certainly have been argued – properly – by the prosecutor even without the challenged instruction[]. To highlight this circumstantial evidence in the course of cautioning the jury against overreliance on it was not unfair to defendant." (People v. Halloway (2004) 33 Cal.4th 96, 142.)
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.