Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS221559, Timothy R. Walsh, Judge.
BENKE, J.
A jury convicted Tynell Tyrone Parrish of robbery (count 1, Pen. Code, § 211) and conspiracy to commit robbery (count 2, § 182, subd. (a)). The court sentenced him to prison for three years. On appeal, Parrish contends the trial court erred in instructing the jury with CALCRIM No. 361 (defendant's failure to explain or deny evidence against him). For reasons we explain, we disagree and affirm the judgment of conviction.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Discussion of certain facts relating to the specific claims of error are reserved for analysis in those sections, post. We state the facts in a light most favorable to the judgment. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1427.)
Parrish initially met co-defendant Connely Trazel Brown in 2006 playing online video games and they began having daily conversations, including one in which Parrish agreed to rob the Eastlake Petroleum gas station. At the time, Parrish was working as a state correctional officer in New York. He came to San Diego the weekend of May 31 to June 2, 2008. Parrish claimed he came to participate in a Sony video game competition with Brown, however, Parrish never played in the competition.
Brown pleaded guilty to both counts before trial.
Francisco Avila manages the Eastlake Petroleum gas station in Chula Vista. Brown worked as a cashier at the gas station. Cashiers are required to put money into the safe when their cash registers exceed $300. Avila's managerial responsibilities include taking the money from the safe, counting it and depositing it in the bank. The money is taken to the bank every day except weekends, when the bank is closed. Therefore, Monday deposits are the largest because they include money collected on Friday, Saturday and Sunday.
On Monday, June 2, 2008, Avila and Brown were both working at the gas station. Parrish accompanied Brown to work, but stayed in the car. Brown parked the car, a Hyundai Sonata, next to Avila's car and left the keys with Parrish. Later that day, the gas station's video surveillance showed Avila opening the safe while Brown was two or three feet away from him, working at the register. Avila placed the money into a merchandise bag and then walked into his office to count the money. While Avila was counting the money, Brown was talking on a cell phone. When Avila finished counting the money, he got into his car to go to the bank. The video showed Brown holding a cell phone and looking out the window as Avila walked toward his car. Brown then left the building and looked toward the area where Avila always parked his car. At this point, the video showed Brown holding a cell phone to his ear.
Cell phone records showed a total of 20 calls between Brown's cell phone and Parrish's cell phone in the three-hour time frame surrounding the robbery.
Avila drove to the bank and parked directly in front of the bank entrance. As he walked towards the entrance, he noticed an African-American man wearing a blue shirt walking into the bank. The man walked past Avila, then quickly turned around and punched Avila in the forehead. The man pulled on the bag of money until it ripped and took off with approximately $22,000. Edith Flores, a bank employee, called the police and reported a man had stolen a deposit and was driving away in a navy blue Hyundai, license plate 395R72. Flores described him as an African-American man, medium height, with short hair, wearing a short-sleeved blue shirt. In court she identified Parrish as the man she saw outside the bank.
After speaking with employees of the gas station, a Chula Vista police detective went to Brown's address and discovered a Hyundai matching the description given by Flores. On July 17, 2008, the detective showed Avila a photographic lineup and Avila identified Parrish's photograph as the person who robbed him.
DISCUSSION
CALCRIM No. 361: Failure to Explain or Deny
A. Introduction
The challenged instruction as given by the trial court, CALCRIM No. 361, reads: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
Parrish contends the trial court improperly instructed the jury that his failure to explain or deny evidence against him could be used as evidence of his guilt. Parrish also contends this improper instruction implicated his constitutional rights and constitutes reversible error. We conclude Parrish forfeited his claim by failing to object to the instruction in the trial court. Nevertheless, we further conclude his claim fails on the merits.
B. Forfeiture
A defendant's failure to object to a proposed instruction forfeits his claim of error on appeal, unless the error affects his substantial rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Here, Parrish acknowledges that defense counsel did not object to CALCRIM No. 361 and appears to have agreed to the instruction. Thus, Parrish forfeited his claim of instructional error by failing to raise it in the trial court. In any event, for the reasons we discuss, we conclude the alleged error did not affect his substantial rights. We also review the merits of his contentions to forestall any claim based on ineffective assistance of counsel.
C. Standard of Review
A claim of instructional error is reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.)
D. Analysis
Parrish claims that CALCRIM No. 361 singled out his testimony for special scrutiny and impermissibly invited jurors not to trust that testimony if there was a conflict in the evidence. Thus, he asserts the instructions denied him his rights to a jury trial, to due process and to present a defense, guaranteed by the Sixth, Fifth, and Fourteenth Amendments to the United States Constitution.
This court has reviewed claims of instructional error regarding CALJIC No. 2.62, the predecessor to CALCRIM No. 361. (See People v. Lamer (2003) 110 Cal.App.4th 1463, 1468-1474 [defendant claimed the trial court improperly instructed the jury, pursuant to CALJIC No. 2.62, that it was entitled to draw certain adverse inferences from the defendant's failure to explain or deny evidence against him].) Although the language of CALCRIM No. 361 differs somewhat from its predecessor, we conclude the reasoning applied to CALJIC No. 2.62 applies equally to CALCRIM No. 361. (See People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1067.)
CALJIC No. 2.62 reads: "In this case defendant has testified to certain matters. [¶] If you find that [a] [the] defendant failed to explain or deny any evidence against [him] [her] introduced by the prosecution which [he] [she] can reasonably be expected to deny or explain because of facts within [his] [her] knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against [him] [her] does not, by itself, warrant an inference of guilt nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that [he] [she] would need to deny or explain evidence against [him, ] [her, ] it would be unreasonable to draw an inference unfavorable to [him] [her] because of [his] [her] failure to deny or explain this evidence."
" '[B]efore a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].' [Citation]." (People v. Saddler (1979) 24 Cal.3d 671, 681.) "An appellate court's duty in reviewing a claim that CALJIC No. 2.62 was improperly given is 'to ascertain if [the] defendant... failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination.' [Citation.] In order for the instruction to be properly given '[t]here [must be] facts or evidence in the prosecution's case within [the defendant's] knowledge which he did not explain or deny.' [Citation.] A contradiction between the defendant's testimony and other witness' testimony does not constitute a failure to explain or deny so as to justify giving the instruction. '[T]he test for giving the instruction is not whether or not the testimony is believable. CALJIC No. 2.62, [and similarly CALCRIM No. 361, ] is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear.' [Citation.]" (People v. Lamer, supra, 110 Cal.App.4th at p.1469.)
We agree the trial court erred in instructing the jury with CALCRIM No. 361. Here, the instruction was improper because there were no facts or evidence in the prosecution's case and within Parrish's knowledge that he failed to explain or deny. Parrish denied agreeing to rob Avila. He denied ever seeing Avila before the court proceedings began. He testified that he only went to a bar, to Brown's house and to Brown's workplace while in San Diego. He also testified he had never been to the bank where Avila was robbed. He denied committing the robbery and said that he had fallen asleep in Brown's car at the time the robbery was committed. He denied making any calls to or receiving any calls from Brown. He further denied having his cell phone at the time of the alleged calls. Therefore, it appears the trial court erred by giving CALCRIM No. 361 because it was not warranted by the evidence.
E. The Error Was Harmless
Having decided the trial court erred in instructing the jury with CALCRIM No. 361, we turn to the question of whether that error was prejudicial. Parrish claims that we must apply the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824]. However, the Chapman standard only applies to errors of a federal constitutional dimension. (Id. at p. 24.) Although it is error to give an instruction which correctly states a principle of law but has no application to the facts of the case, if that is the only error, it does not implicate federal constitutional rights. (People v. Guiton (1993) 4 Cal.4th 1116, 1129; see also People v. Rodriguez, supra, 170 Cal.App.4th at p. 1068 [no constitutional infirmity in instructing the jury with CALCRIM No. 361].) Courts have "rather uniformly" applied the harmless error standard adopted in People v. Watson (1956) 46 Cal.2d 818, 836, when reviewing the erroneous use of CALJIC No. 2.62. (People v. Roehler (1985) 167 Cal.App.3d 353, 393.) We conclude the Watson standard similarly applies to CALCRIM No. 361. (See People v. Rodriguez, supra, 170 Cal.App.4th at p. 1067.) In applying that standard, we must determine whether it is reasonably probable that the result would have been more favorable to Parrish had the error not occurred. (People v. Watson, supra, 46 Cal.2d at p. 836.)
See also People v. Saddler, supra, 24 Cal.3d at p. 683 [applying a harmless error standard to an instructional error based on CALJIC No. 2.62]; and People v. Lamer, supra, 110 Cal.App.4th at pp. 1471-1472 [same].
Here, the evidence against Parrish was overwhelming. Brown testified that Parrish agreed to rob Avila at the bank. Brown's testimony was corroborated by two eyewitnesses, cell phone records and video surveillance tapes. Parrish also had the keys to the Hyundai implicated in the robbery and Avila positively identified Parrish as the man who robbed him at the bank.
Additionally, the court instructed the jury, according to CALCRIM No. 200, "[s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I gave 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."
"While such an instruction does not render an otherwise improper instruction proper, it may be considered in assessing the prejudicial effect of an improper instruction." (People v. Saddler, supra, 24 Cal.3d at p. 684 [concluding error was not prejudicial, in part, because the jury was instructed under CALJIC No. 17.31 "that they were to 'disregard any instruction which applies to a state of facts which you determine does not exist' "].)
Because Parrish did not fail to explain or deny evidence against him, the jury had no basis for applying CALCRIM No. 361 in evaluating the evidence. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) There is nothing in the record before us to suggest otherwise.
Under the circumstances, we conclude it is not reasonably probable that a result more favorable to Parrish would have been reached in the absence of error. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we conclude that the giving of CALCRIM No. 361 was harmless error.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.