Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06ZF0142, William R. Froeberg, Judge.
David Y. Stanley, 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, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant’s argument that the trial court erred in instructing the jury with CALCRIM Nos. 226 and 362 is not persuasive. We affirm.
I
FACTS
Salvador Chavo Marquez was found guilty of murder in the first degree as charged in count one. The jury found it to be true the murder was committed while defendant was engaged in the commission or attempted commission of a burglary, that the murder involved infliction of torture and that defendant personally used a dangerous weapon in committing the murder. Defendant was also convicted of animal cruelty as charged in count two and the unlawful taking of a vehicle as charged in count three. The court sentenced defendant to state prison for life without possibility of parole plus a determinate sentence of one year.
On August 6, 2006 at 1:00 a.m., the California Highway Patrol found a truck with flashing hazard lights parked on the shoulder of northbound Interstate 5 just south of Oso Parkway. It appeared that both occupants were asleep and the windows were down. Defendant was in the driver’s seat. Officers smelled alcohol, woke them up and conducted a DUI investigation. Defendant gave his address as 126 Esplanade in San Clemente. Defendant’s shoes were covered with blood.
Defendant said he had been driving the vehicle, began his journey a half-hour earlier and pulled over when he ran out of gas. He was placed under arrest for driving under the influence of alcohol. The vehicle defendant was driving was a 1994 Ford Ranger pickup with license plate number 5A87565. The pickup was sent to a tow yard for storage.
Later on the morning of August 6, a neighbor and “best friend” of Stephen Clark noticed his car was gone, the garage door was open, fishing tackle was gone and “there were like papers... strewn all over the driveway, like computer paper and stuff.” The friend went around to the back door and saw jewelry on the ground next to the back door and blood spots on the tile. In the evening, the friend went inside the house, found the body and called the police.
Pursuant to a request for a welfare check, the Orange County Sheriff’s Department went to 126 Esplanade in San Clemente at 7:12 p.m. on August 6. There was “a significant amount of blood located on the floors and on the walls of the residence.” Officers found a body with “massive injuries” on the floor of a bathroom. A dead dog was next to the body.
The police noticed there was no vehicle at the location, and ran a check to find out whether any vehicles were registered to anyone at that address. The dispatcher notified the officers at the scene that the vehicle, a 1994 Ford Ranger pickup with license plate number 5A87565, was impounded at a tow yard.
The deceased was identified as Stephen Clark. Inside his truck, investigators found a “fillet type of knife, ” jewelry, coins, chips from a casinos, computer equipment, Stephen Clark’s passport and video pornography.
After the body was removed, three broken knife blades and broken teeth were found on the floor where the deceased was laying. The blades had “Miracle Blade” on them, the same brand as a block of knives in the kitchen. There was a bloody shoe print on the wall which was “a little dented in that area.” Yellow smears the same color as the victim’s intestines were found on the doorjamb. On top of a counter in the residence, a plastic bag containing a stun gun and a broken knife was found.
On autopsy, multiple stab wounds of Stephen Clark were found. Some were inflicted before and some after death. His 11-pound dog suffered 60 stab wounds. Most were inflicted before death.
The blood found on defendant’s shorts and shoes matched the DNA profile of Stephen Clark. Defendant’s fingerprints were on various items in the truck bed. A bloody shoe print on Stephen Clark’s bathroom wall, a bloody shoe print taken from jeans collected at the residence and shoe impressions found on the body of the deceased during autopsy were all consistent with the shoes defendant was wearing.
Benjamin Clark, who is no relation to Stephen Clark, testified defendant stayed with him and two other men for about two weeks prior to August 5, 2006. Defendant returned to the motel at 10:00 or 10:30 p.m. on August 5. One of the roommates asked him why his shoes were bloody. Benjamin Clark testified about defendant’s response: “He said that he got in a fight and ‘don’t worry about it ‘cause there’s no more problems.’ And ‘the guy’s not amongst the living.’”
Defendant asked Benjamin Clark and the other two roommates if one of them would drive to Los Angeles with him. Benjamin Clark said he would go. Defendant said his truck was parked out back. Benjamin Clark noticed the truck “was just full of stuff, fishing poles, all kinds of stuff loaded up in the truck” and “computers, like, you know, monitors, printers, cords, and boxes.” Defendant told Benjamin Clark he “needed to go sell some of the stuff to make some money.” Benjamin Clark had trouble getting into the front seat because it was full of “computer stuff. Uh, coins, watches or - stuff in bags.” At that point, defendant “took the stuff out and threw some stuff in the dumpster and set some stuff next to the dumpster.”
Once the two got on the freeway, they ran out of gas. Some people were pulled over on the side in front of them. Benjamin Clark asked defendant to arrange with those people to get gas. He said they fell asleep while “waiting for the people to come back with the gas.”
On August 7, 2006, two investigators from the Orange County Sheriff’s Department interviewed defendant at the sheriff’s department. When he was asked his address, defendant said he “was starting to stay at a friend of mine’s house, [Stephen] Clark. And his address was 126 Esplanade.” Defendant added: “But he like kicked me out and stuff and he’s been having like a lot of problems.”
Defendant said he last saw the deceased on Saturday at about 7:00 p.m. When he was asked what the two of them did, he responded: “He was going through so many problems. He was like, ‘Sal, it’s better for you just to leave right now.’ He’s all, ‘Just take my truck. Just make sure you bring it back.’ I was like, ‘Okay.’ So then - I think he - he was just going crazy, like for days already. It’s been like that. It’s like every single day like that, you know.”
When the officers told him about the murder, defendant denied having anything to do with it. He said: “Well, you guys think that I did it or something? Because I know that I was in his truck and all....” Then defendant said: “I can’t believe this is happening. God. I mean - I forget. I should have called the police.” When pressed as to why he should have called the police, defendant said when he showed up at decedent’s house on Saturday at “like 9:00, 10:00 o’clock” to borrow his truck, he tried to wake him up. Then defendant added: “I don’t even remember. And - and I went to the house and I - and I - I seen him and I seen a - a knife there and everything and I picked it up. Well, it was like broken and stuff. And I was trying to get him up, you know. And I was like, oh, my God, you know. And I was - and then when I went in, like there was blood everywhere, you know. And I was like, ‘Steve, ’ you know, like trying to shake him a little bit, and he wouldn’t get up. And I said, oh, my God, I just got to get out of here, you know.”
Defendant also told the investigators the deceased owed him money for some work he did, and that when defendant told Stephen Clark he was going to take his fishing pole, decedent attacked defendant. But he said he did not harm the decedent.
At trial, defendant said he rode his bicycle over to decedent’s house and described what happened: “The last time I seen Stephen Clark was on a Saturday, a Saturday where I went to his house to apologize to him and to see if he could allow me to live - to go back to his house. And I made contact with him. I went - I went into the back door. I saw him. I told him that I needed to talk to him. He told me to get out of his house. And I told him, ‘Please. Just listen to me.’ [¶] And he came at me and told me to get out of his house.” He said the decedent was cooking and that “he came at me with a knife, and he pushed me.” Defendant testified he remembers taking the knife away from Stephen Clark, Clark running away, and defendant fearing he was “gonna get his gun.” Defendant said he was afraid of decedent and he “blacked out” at that point.
Defendant admitted his story to the investigators about coming over to Stephen Clark’s house at 7:00 p.m. was not true. He said he was telling the truth when he told them he picked up the knife, but that he remembers dropping it, and he does not know how it ended up in the truck. He said: “I don’t remember stabbing Mr. Clark at all.” Defense counsel asked defendant: “You concede that you must have stabbed him, right?” Defendant responded: “Obviously after reviewing all the evidence, yes. I have a strong belief that it’s possible that it was me. And nobody else was present at the time. I remember snapping like - snapping out of my blackout and seeing him dead on the floor.”
Defendant said he does not remember too much about taking the truck. Nor did defendant remember putting decedent’s personal property in the truck. As to defendant’s own bicycle being in the truck, he conceded he must have put it there.
Defendant said he was drinking all day. The parties stipulated “the defendant’s blood sample which was taken from him on August 6, 2006 At 2:29 a.m. tested positive for the presence of marijuana and a blood-alcohol level of.17 percent, and that no other drugs were found in the defendant’s blood.”
II
DISCUSSION
Defendant contends the trial court erred in instructing the jury with CALCRIM Nos. 362 and 226. He argues the errors were also “cumulatively prejudicial.”
CALCRIM No. 362 was given to the jury as follows: “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 defendants 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 paragraph in CALJIC No. 226 to which defendant addresses his argument was given to the jury as follows: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.”
Since defendant’s trial, CALCRIM No. 362 has been revised, likely because the instruction was criticized in People v. Bayeh (2009) 170 Cal.App.4th 1241. Its predecessor instruction, CALJIC No. 2.03 was limited to statements made before trial. Since August 2009, CALCRIM No. 362 is limited to statements made “before this trial” In Bayeh, the court stated: “Thus, we doubt that the CALCRIM committee intended CALCRIM No. 362 to be used as it was here: to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant’s trial testimony. Nevertheless, we conclude that defendant suffered no prejudice, because California law makes clear that a defendant’s false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt.” People v. Bayeh, supra, 170 Cal.App.4th at pp. 1248-1249.)
CALJIC No. 2.03 reads: “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] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
CALCRIM No. 362 now reads: “If [the] defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt. [You may not consider the statement in deciding any other defendant’s 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 Bayeh court noted that “although CALCRIM No. 362 omits the limiting language found in CALJIC No. 2.03, CALCRIM No. 362 expressly refers to a false or misleading statement made by defendant, not to false or misleading testimony.” (People v. Bayeh, supra, 170 Cal.App.4that p. 1248.) The court ultimately found “that defendant suffered no prejudice, because California law makes clear that a defendant’s false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt.” (Id. at p. 1249, citing People v. Showers (1968) 68 Cal.2d 639, and People v. Amador (1970) 8 Cal.App.3d 788, as examples.)
In Showers, the defendant’s testimony amounted to an unlikely story, and the court said: “False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt. [Citations.]” (People v. Showers, supra, 68 Cal.2d at p. 643.) In People v. Amador, supra, 8 Cal.App.3d 788, the court stated: “Analytically there may be a difference between false statements to the police during the investigatory stage of a prosecution and false testimony from the stand. It has, however, been recognized authoritatively that under proper circumstances each type of falsehood may be considered as part of the prosecution’s total case.” (Id. at p. 791.)
Defendant testified he went to the decedent’s home and stabbed him. But he also said he went over there to apologize, and that he blacked out. If the jury did not believe defendant’s minimizing statements, it likely inferred he was guilty, not that he was conscious of his guilt. But either way, it makes no difference. The jury had the choice whether to believe or disbelieve defendant’s excuses. If they disbelieved the excuses, the reverse was that defendant consciously, intentionally and deliberately stabbed the decedent. There was no error in instructing the jury with CALCRIM No. 362.
Defendant also claims error because the court instructed the jury with CALCRIM No. 226. It is a word in each of the two sentences of the last paragraph of the instruction to which he specifically objects. We have italicized the challenged words as follows: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.”
In deciding whether or not jury instructions correctly conveyed the law, the reviewing court must look to the instructions as a whole to see whether there is a reasonable likelihood the jury misunderstood the instructions. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. McPeters (1992) 2 Cal.4th 1148, 1191.) Jurors are presumed to be intelligent people capable of understanding and correlating jury instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Defendant artificially parses the language of the instruction. The first sentence tells the jurors they “should consider” not believing a witness; it does not tell them they should not believe the witness. The second sentence simply informs the jury about something it “may” do.
A similar challenge was rejected in People v. Warner (2008) 166 Cal.App.4th 653: “Since Warner fails to persuade us that semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are even material, let alone prejudicial, we reject his challenge to the former by deferring to a long line of California Supreme Court cases rebuffing analogous challenges to the latter. (See, e.g., People v. Carey (2007) 41 Cal.4th 109, 130-131; People v. Maury (2003) 30 Cal.4th 342, 428-429; People v. Millwee (1999) 18 Cal.4th 96, 158-161.)” (Id. at p. 659.)
We find no error in either of the challenged instructions. Nor is there cumulative error.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.