Opinion
A157372
09-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 18CR008383)
Jose Ramirez was convicted of two felony assaults, one causing great bodily injury. (Pen. Code, §§ 245 & 12022.7, subd. (a).) The trial court imposed an aggregate sentence of eight years in prison. On appeal, Ramirez contends the judgment must be reversed because of the erroneous admission of uncharged conduct evidence and a prejudicial jury instruction error. We affirm.
BACKGROUND
I. The April 2018 Attack
In April 2018, Rocael C.M. had his own plumbing business where he worked with his friend Raul M. These men were both acquainted with Ramirez. Rocael and Ramirez went to school together when they were children in Guatemala and their families knew each other. Raul had met Ramirez in 2016 at a place near the Fruitvale BART Station where people went to look for work, and Raul often saw Ramirez there before he started working for Rocael.
On the morning of April 16, Rocael and Raul went to Home Depot in Oakland to purchase pipes for a job. When they left the store, Raul saw Ramirez in the parking lot, but thought nothing of it. He and Rocael walked across the lot, put their purchases in the back of Rocael's van and locked it.
As Rocael turned toward the driver's side of his van, he saw Ramirez approaching with another man he recognized but whose name he did not know. Almost immediately, Ramirez punched Rocael in the mouth while the other man went after Raul.
Raul did not see anybody coming before he felt a strike to the back of his head that caused him to fall to the ground. When Raul got up, he saw the man who hit him holding a 2-foot-long piece of iron or metal. Then he realized that several men were attacking them. Raul recognized a few of them, including Ramirez, who was wearing a white shirt and was the only man in the group not wearing a sweatshirt. Without turning his back on the man who had hit him, Raul moved toward the Home Depot entrance where a security guard was stationed. His attacker followed part-way, then threatened to get Raul another time and left. The security guard laughed when Raul reported what had happened.
Meanwhile, Ramirez and his companions trapped Rocael in the space between his van and the car parked next to it. Ramirez pulled out a folding knife and displayed its blade, which was 4 or 5 inches long. He began swiping the blade at Rocael, who had to back away to avoid getting cut in the stomach. When Rocael reached the front of the van, two more men with knives were moving toward him. He pulled out pepper spray, which he attempted to use against his attackers as he started to run back into Home Depot. A man hit him in the forehead with a piece of rebar and another man tried to make him fall by hitting him in the stomach, but Rocael kept moving. As he moved toward the entrance of Home Depot, he felt a stab just below his right shoulder, turned and saw Ramirez with a knife in his hand, but he kept moving to the entrance.
Rocael did not think he had been badly hurt, so when he saw Raul at the store entrance, he said they should go to work, but Raul said no because Rocael was bleeding too much. The security guard called for assistance. When police arrived, Rocael told them Ramirez stabbed him. Raul reported the names of the assailants whom he had recognized, including Ramirez. Rocael was taken to the hospital by ambulance. Raul declined to go because he thought he had only suffered a "small blow," but when he got home he "felt bad," and he experienced occasional headaches for several months.
When Rocael testified at Ramirez's jury trial in February 2019, he was "100 percent sure" that it was Ramirez who stabbed him. The prosecutor showed Rocael an excerpt from surveillance video that was recorded in the Home Depot parking lot during the time when Rocael and Ruiz were attacked. Rocael used a pointer to identify himself and Raul walking to the van with their purchases. He also pointed out men who participated in the attack and identified one man who was wearing a white shirt as Ramirez.
At trial, the prosecution also presented a video that was made from surveillance film recorded at several locations in the Home Depot parking lot. Vicki Long, an audio-visual specialist employed by the district attorney's office, testified about how she enhanced and edited the video in order to track some of the movements of two men: Rocael, who was wearing an orange work shirt; and the man wearing a white shirt, who had been identified as Ramirez.
II. Rocael's Prior Encounters With Ramirez
Rocael testified that after he moved to the United States in 2006, he saw Ramirez on two occasions prior to the Home Depot incident. The first encounter was in 2010 when they both played in the same pick-up soccer game in Oakland. During the game, Rocael and Ramirez reintroduced themselves after having not seen each other since they were children. After the game, Ramirez got into a fight with another player and pulled a knife on him. Someone intervened and kicked the knife out of Ramirez's hand. Things calmed down quickly, nobody was hurt, and the police were never called. Rocael observed the altercation but did not participate in any way. At trial, he testified that the knife Ramirez had at the soccer game looked "more or less" like the knife he pulled out at Home Depot.
The second time Rocael saw Ramirez was in December 2016 at a wake that was held for Rocael's uncle. Rocael recalled that he had been at the gathering for several hours when Ramirez arrived with a friend at around 11:00 p.m. or midnight. Sometime after that, Rocael heard his brother yelling loudly outside the church and went to see what was happening. From the door of the church, Rocael saw Ramirez attacking Rocael's brother with a knife. Rocael's brother had taken off his belt and appeared to be trying to knock the knife out of Ramirez's hand. A few of Rocael's family members were outside at the time and Ramirez was still with his friend. Then more of Ramirez's friends arrived. Rocael stayed by the door of the church and called for his brother to come back inside. Rocael's brother managed to get away even though Ramirez's friends were there, and he came back into the church. He had a small cut on his back where the tip of the knife had gone through his sweater.
Rocael testified that he did not have time to talk to his brother about what happened outside the church before the police arrived and took their statements. Rocael told the police that he had seen Ramirez with a knife, which was the truth. Rocael was "100 percent" sure that Ramirez was the person who attacked Rocael's brother with a knife.
When defense counsel cross-examined Rocael, she elicited additional details about the 2016 knife incident. Rocael testified that when he gave his statement to the police on the night of the incident, he reported everything he saw. He denied lying about anything. Defense counsel asked how the altercation unfolded. Rocael testified that initially Ramirez and his friend accosted Rocael's brother, Elias. Then Rocael's cousin tried to break things up, and other family members went to stand with Elias. Rocael was not in a position to see the interaction, other than observing that Ramirez had a knife. Rocael confirmed that he did not see Ramirez holding any weapon other than a knife.
Defense counsel asked Rocael whether he discussed the 2016 incident when the police interviewed him about the assaults at Home Depot. Rocael responded, "Yes, we talked about that, but I don't know if you want to talk about that case." Defense counsel continued this line of questioning, asking whether Rocael told the officer investigating the Home Depot attack that Ramirez had a gun during the 2016 incident. Rocael replied: "Okay. Yes. If you want to talk about that, I can say more things. I don't know if you want to do that. I can talk about the death of the other man." Defense counsel continued to prod, eliciting testimony from Rocael that when he was interviewed in connection with the Home Depot assaults, he told police that Ramirez had a gun outside the church on the night of the wake. Defense counsel reminded Rocael that he had just testified that Ramirez did not have a gun in 2016 and asked which fact was true. Rocael testified that Ramirez did have a gun at the 2016 wake.
Defense counsel pivoted to the statement Rocael gave to police in 2016, asking Rocael to confirm what he had reported. Rocael had reported that Ramirez had a knife and that three other people who arrived in a white car had guns. However, Rocael did not tell police that Ramirez had a gun. When defense counsel asked again what Rocael was now claiming was true, the prosecutor objected, and the court took a recess.
When cross-examination resumed the next court day, Rocael confirmed that the information he gave to police on the night of the 2016 incident was made into a written statement, and that he had agreed to "assist with the Prosecution." The statement Rocael had signed said that Ramirez had a large knife, but it did not say that Ramirez actually attacked Elias with the knife. The statement also said that several men had guns and identified some of those men by name, but it did not say that Ramirez had a gun. Rocael testified that his 2016 statement was true; he had not lied to the police. But he was very afraid and did not tell them everything he saw.
Under re-direct, Rocael testified that when he saw Ramirez swing a knife at Elias on the night of the wake, he was too afraid to go and help his brother because three men with guns got out of a car, shots were fired, and a man standing a few feet away from Rocael fell to the ground. While all this was happening, Elias was able to get back to the church.
III. Ramirez's Defense
Ramirez's defense at trial was that he did not attack Rocael or Raul. Evidence supporting this claim was elicited from Paul Endo who testified as an expert on the subject of video enhancement. Endo enhanced a video clip that was taken from one camera angle in the Home Depot parking lot and isolated a picture of the man in the white shirt. Endo also used a video of Ramirez that was unrelated to this case to create a second screen shot for purposes of comparison.
During closing argument to the jury, defense counsel first argued that the video evidence proved Ramirez was not the same person as the man in the white shirt who attacked Rocael. Counsel then argued that Rocael's identification of Ramirez was erroneous, either because he made a genuine mistake or because his memory of the event was "marred by perception and by bias."
The fact that Rocael knew Ramirez prior to the Home Depot incident was reason to doubt Rocael's testimony rather than credit it, the defense argued. According to this theory, Rocael misidentified Ramirez because he blamed Ramirez for the tragedy that occurred at the wake in 2016. Therefore, when Rocael was caught up in the chaos of the Home Depot attack, and reeling from stress and fear, he may have thought it was Ramirez who stabbed him, but he was mistaken. Defense counsel argued that, regardless whether Rocael was lying or just mistaken, he was not a credible witness as shown by perceived discrepancies in his reports about what happened in the Home Depot parking lot and about what happened outside the church on the night of his uncle's wake.
DISCUSSION
I. The Uncharged Conduct Evidence
Ramirez contends the trial court committed reversible errors by admitting evidence of the 2010 pick-up soccer game and the 2016 assault of Rocael's brother. He argues the failure to exclude this bad character evidence violated Evidence Code section 1101 (section 1101) and deprived him of his constitutional right to a fair trial.
Section 1101 codifies the general rule that "[e]vidence of defendant's commission of other crimes, civil wrongs or bad acts is not admissible to show bad character or predisposition to criminality, but may be admitted to prove some material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (People v. Cage (2015) 62 Cal.4th 256, 273 (Cage).) Because this type of evidence can be " ' "highly inflammatory, its admissibility should be scrutinized with great care." ' " (Ibid.) "Specifically, the uncharged act must be relevant to prove a fact at issue (Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (People v. Leon (2015) 61 Cal.4th 569, 597-598 (Leon).)
On appeal, we review rulings the trial court made under section 1101 for abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
A. Additional Background
The parties filed competing in-limine motions regarding the admissibility of Rocael's two prior encounters with Ramirez. The trial court made a preliminary ruling that this evidence was admissible to prove a common plan or scheme and opportunity. The court stated the evidence might also be probative of a motive. However it doubted that the prior acts could be used to prove intent unless Ramirez was claiming self-defense.
A few days after ruling on these motions, the court advised the parties it would use a modified version of CALCRIM 375 to instruct the jury that evidence of the two uncharged acts was admissible for the limited purpose of proving a common plan or scheme and a motive for the charged crimes. Defense counsel objected to the instruction, renewed objections to this evidence and was granted another hearing.
Defense counsel argued, among other things, that the prosecutor intended to use the 2016 incident for the improper purpose of implicating Ramirez in a homicide that occurred outside the church around the same time that Rocael's brother was allegedly assaulted. In response, the prosecutor acknowledged that evidence of the homicide should be excluded because the People did not have evidence that Ramirez was "involved in the shooting or had a gun," but he argued that witnesses who saw people with guns outside the church should be permitted to testify about what they saw.
The court ruled that the fact someone was killed during the 2016 incident would be excluded under Evidence Code section 352, but evidence other people had guns was admissible for two reasons. First, it was relevant to the jury's assessment of Rocael's credibility. Second, this circumstance was similar to the Home Depot incident in that the defendant was accompanied by people carrying weapons.
B. The 2010 Knife Incident Should Not Have Been Admitted But the Error Was Harmless
In their appellate briefs, the parties disagree about whether evidence of the 2010 soccer game was admissible under section 1101. We frame the issue differently. Evidence Rocael played soccer with Ramirez in 2010 was relevant to the jury's assessment of Rocael's credibility because it tended to support his testimony that he recognized Ramirez during the Home Depot attack. However, because the post-game knife incident was a discrete "bad" act, its admissibility must be independently evaluated. We conclude that the trial court erred by admitting this evidence to prove a common plan or scheme and/or a motive for the assaults, but that the error was harmless.
The relevance of an uncharged act "depends, in part, on whether the act is sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or other material fact." (Leon, supra, 61 Cal.4th at p. 598.) The requisite degree of similarity depends on the fact in issue. While a very high degree of similarity is required to raise an inference of identity, courts more readily admit uncharged misconduct to prove intent—the evidence need only support an inference that the defendant probably harbored the same intent in both instances. Common plan evidence lies somewhere in the middle of this spectrum. (Ibid.)
Uncharged criminal acts are admissible to prove a common design or plan if they are sufficiently similar to "demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Here, the heated exchange between two players after a recreational soccer game was substantively very different from the orchestrated ambush that occurred at Home Depot. The mere fact that Ramirez used the same type of knife in these unrelated incidents does not support an inference of a common plan.
Nor do we find any basis for concluding that the 2010 knife incident was admissible to explain Ramirez's motive for committing the Home Depot assaults. "Where other crimes or bad conduct evidence is admitted to show motive, ' "an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself" ' [citation], the other crimes or conduct evidence may be dissimilar to the charged offenses provided there is a direct relationship or nexus between it and the current alleged crimes." (Cage, supra, 62 Cal.4th at pp. 273-274; see also People v. Wang (2020) 46 Cal.App.5th 1055, 1078.)
Here, the People's theory is that Ramirez attacked Rocael in 2018 because Rocael had witnessed the 2010 altercation. However, Rocael's role in the 2010 incident was too tangential to establish the required nexus to the current charges. Rocael did not participate or intervene in the altercation or call the police afterwards. And the evidence does not establish that Ramirez was even aware Rocael was present when the post-game dispute unfolded.
The People present an alternative theory that the 2010 knife incident was admissible to prove intent. They reason that, while assault is a general intent crime, it still requires proof that the defendant did "an intentional act," knowing that the act would result "in the application of physical force against another." (Quoting People v. Williams (2001) 26 Cal.4th 779, 790.) Thus, the People contend, the 2010 knife incident is relevant to show that Ramirez intended to assault Rocael because he previously used the same type of knife to commit an assault at the soccer game. In presenting this theory, the People acknowledge that the 2010 knife incident was not admitted as evidence of intent but contend that this court may affirm the lower court's decision if correct on any ground. (Citing People v. Zapien (1993) 4 Cal.4th 929, 976 (Zapien).)
The principle the People attempt to invoke states that "a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason." (Zapien, supra, 4 Cal.4th at p. 976.) However, they ignore that the trial court's express ruling or decision in this case was that the uncharged acts were inadmissible to prove intent. Thus, the jury was not permitted to use the 2010 incident to support a finding of general intent to commit the 2019 assaults.
Furthermore, the trial court's ruling that this evidence was inadmissible to prove intent was supported by a correct reason, i.e. that intent was not a disputed issue in this case. Indeed, there was no dispute at trial that intentional assaults occurred. The disputed issue was whether Ramirez was the person who committed them. Thus, even if the 2010 knife incident was sufficiently similar to satisfy the relatively low threshold for admitting uncharged conduct probative of intent, the evidence was properly excluded for this purpose because intent was not a disputed issue. (Evid. Code, §§ 210, 352.)
Although we conclude that evidence Ramirez pulled a knife on someone after the 2010 soccer game should not have been admitted, we also find the error was harmless because it is not reasonably probable that the outcome of these proceedings would have been different if this evidence had been excluded. (See People v. Williams (2009) 170 Cal.App.4th 587, 612 [applying standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) to evaluate error in admission of uncharged act evidence].) Testimony about this incident was very general because Rocael was not involved in the altercation and his observations were limited. Whatever the dispute had been, it was resolved without violence or police intervention. Thus, the incident was significantly less inflammatory than the charged crimes (and the other evidence omitted under section 1101, subd. (b)). Nor was there anything about the details of the 2010 incident that created a risk of tempting the jury to punish Ramirez even if they were not convinced that he committed the charged offenses. Finally, we note that the jury's questions during deliberations show that it was focused on the evidence of what happened in the Home Depot parking lot, rather than during the prior incidents in which Ramirez wielded a knife.
C. The 2016 Knife Incident Was Admissible Evidence
We employ the same approach to our analysis of the 2016 incident. The fact that Rocael saw Ramirez at Rocael's uncle's wake was relevant because the defense challenged Rocael's credibility as a witness and the 2016 incident supported Rocael's claim that his family and Ramirez's family were acquainted. The issue we address here pertains to the admissibility of the altercation outside the church between Ramirez and Rocael's brother.
Unlike the 2010 incident, the altercation that occurred in 2016 did share some common features with the Home Depot assaults. In both cases, Ramirez used a knife and was accompanied by associates who displayed weapons. Furthermore, the incidents were connected by the fact that the victims were brothers. Finally, Rocael's observations during the 2016 attack, although limited, were consistent with the ambush-like situation that he found himself in at the Home Depot parking lot. Thus, the trial court did not abuse its discretion by concluding that evidence of the 2016 altercation was probative of a common plan.
The 2016 incident was also properly admitted as evidence of a motive for the 2018 assaults. The 2016 attack was evidence of Ramirez's animus toward a member of Rocael's immediate family. Furthermore, Rocael himself made a formal statement about the 2016 incident and agreed to cooperate with the police. On appeal, Ramirez contends it would be pure speculation to make a connection between Rocael's 2016 police report and the Home Depot incident because the prosecution did not present evidence establishing that Ramirez knew about the report. This argument goes to weight rather than relevancy. The prior incident tended to prove that Ramirez at a minimum disliked Rocael's family and may have held a grudge against Rocael in particular for reporting his criminal conduct to the police.
Moreover, the trial court did not abuse its discretion by concluding that the probative value of the 2016 knife incident outweighed the danger of unfair prejudice. " ' "In applying [Evidence Code] section 352, 'prejudicial' is not synonymous with 'damaging.' " ' [Citation.] ' " '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.' " ' [Citation.] The 'prejudice' which [Evidence Code] section 352 seeks to avoid is that which ' " 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " ' " (Cage, supra, 62 Cal.4th at p. 275.) Here, the 2016 incident was damaging to the defense because it suggested that Ramirez had committed a similar offense against the victim's brother (common plan) and it provided a possible explanation for the Home Depot attacks (motive). But this evidence did not uniquely tend to evoke unfair emotional bias against Ramirez.
D. The 2016 Shooting Incident
By separate argument, Ramirez contends the trial court committed reversible error by making a pre-trial ruling to admit evidence that people other than Ramirez had guns outside the church where the wake was being held. Ramirez contends the trial court abused its discretion because (1) this evidence was "completely irrelevant," and (2) the allegedly erroneous ruling led to the admission of "extremely inflammatory evidence" that a person was shot and killed outside the church.
Evidence that people associated with Ramirez had guns at the church was relevant because it supported the prosecution theory that the 2016 incident and its fallout gave Ramirez a motive for attacking Rocael. The evidence was also relevant to establish a common plan because when Ramirez attacked Rocael at Home Depot he was also accompanied by associates who were carrying weapons. Ramirez disputes there was any evidence linking him to the gun-toting men outside the church , but Rocael recognized at least three of the men, knew their names, and identified them as friends of Ramirez's.
Furthermore, this pre-trial ruling did not lead directly to the admission of evidence that a man was shot outside the church. That information was disclosed in response to questions defense counsel posed during her cross-examination of Rocael, when she pressed the witness regarding allegedly inconsistent statements he made about whether Ramirez had a gun at the church on the night of the wake. The questions were a legitimate attempt to undermine the credibility of this witness, but the trial tactic invited the error about which Ramirez now complains. Because Ramirez " 'is responsible for the inclusion of [this] evidence, he cannot complain on appeal that its admission was error.' " (People v. Ramos (1997) 15 Cal.4th 1133, 1168; see also People v. Williams (1988) 44 Cal.3d 883, 912 ["It is axiomatic that a party who himself offers inadmissible evidence is estopped to assert error in regard thereto"].)
In his reply brief, Ramirez insists he did not open the door to evidence of the homicide incident by asking "specific question[s]" designed to show that Rocael had changed his story about Ramirez's conduct on the night of the 2016 incident. We disagree. The record reflects that Rocael made an effort to comply with the court's ruling before he finally mentioned that a person had died. At that point, defense counsel did not move to strike the remark or request a sidebar but continued to ask questions about whether or not Ramirez had a gun outside the church on the night of the wake. Asking those questions opened the door to Rocael's explanation for why he changed his story—Rocael was afraid to tell everything he saw because Ramirez's assault of Rocael's brother was interrupted by a shooting.
The trial court recognized all of this when it denied a defense motion for a mistrial on the ground that Rocael had violated the pre-trial order by disclosing that a man was shot outside the church. The court also recognized that this defense strategy may have inadvertently caused the jury to suspect that Ramirez committed the homicide or was somehow involved in it. Therefore, the trial court modified its pre-trial ruling and permitted both sides to examine Rocael about the shooting. This was a reasonable solution to the problem that resulted from the defendant's trial strategy.
II. The Jury Instruction
Ramirez's final claim is that the trial court committed prejudicial error when it employed a modified CALCRIM 375 to address the issues in this case. "We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) " ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)
A. The Challenged Instruction
The modified CALCRIM 375 instruction stated:
"The People presented evidence that the defendant committed the offense of ASSAULT WITH A DEADLY WEAPON that was not charged in this case.
"The People presented evidence that the defendant brandished a Knife on another separate occasion.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense and act. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the offense and act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether:
"That evidence tends to prove that the defendant had a plan to commit the offenses alleged in this case and that he employed that plan in this case and committed the charged offenses.
"That evidence tends to prove that the defendant had motive to commit the charged offenses.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and act and the charged crimes.
"Do not conclude from this evidence that the defendant has bad character or is disposed to commit crime.
"If you conclude that the defendant committed the act, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Counts One and Two. The People must still prove the crimes charged and allegations beyond a reasonable doubt."
B. Analysis
Preliminarily, Ramirez contends that the part of this instruction permitting the jury to consider Ramirez's prior acts as evidence of a motive is not supported by substantial evidence. We have already rejected this claim; the 2016 incident, if proven by the prosecution, was substantial evidence of a possible motive for the Home Depot assaults.
Ramirez also contends that the part of the instruction permitting the jury to consider uncharged conduct as probative of a motive was argumentative. Acknowledging he did not make this argument below, Ramirez posits that the error was not forfeited because it affected his substantial rights by depriving him of a fair trial. (See Pen. Code, § 1259.) While it is conceivable that an argumentative jury instruction could implicate a defendant's substantial right, Ramirez's claim lacks merit.
A jury instruction is argumentative when it is " ' "of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence." ' " (People v. Lewis (2001) 26 Cal.4th 334, 380.) Here, the jury was told that (1) the prior act evidence could be considered only if the prosecution proved the prior acts occurred; and (2) if the prosecution did carry its burden of proof, the jury could, but was not required to, consider the prior acts evidence for the limited purpose of deciding whether the evidence tended to prove a common plan or a motive for the charged crimes. There was nothing argumentative about this instruction.
In his appellate brief, Ramirez does not address the written instruction, which the jury had during its deliberations. Instead, he challenges the instruction as it was read to the jury at trial. According to the Reporter's Transcript, after describing the prosecutor's burden of proof and instructing the jury to disregard the uncharged conduct evidence if the prosecutor did not carry this burden, the court stated: "If you decide that the defendant committed the offense and act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether that evidence tends to prove the defendant had a plan to commit the offenses alleged in this case, and that he employed that plan in this case and committed the charged offenses. Also, that evidence tends to prove that the defendant had a motive to commit the charged offenses."
We note that the conjunctive adverb "Also" in the last sentence of this excerpt does not appear in the written instruction. Ramirez contends that when the trial court added the word "Also" to its oral recitation of the instruction, it changed the substantive meaning of CALCRIM 375 by directing the jury to find that Ramirez did have a motive for the charged crimes.
"When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner." (People v. Wilson (2008) 44 Cal.4th 758, 803-804.) Applying this standard, we conclude that it is not reasonably likely the jury interpreted the modified CALCRIM 375 instruction as a direction that Ramirez had a motive for the charged crimes.
Ramirez takes several missteps by interpreting an isolated statement in this modified CALCRIM instruction as a stand-alone directive requiring the jury to find he had a motive for the current offenses. Preliminarily, Ramirez fails to acknowledge that his interpretation of the challenged statement is aided by discrepancies in punctuation between the reported language and the instruction as it was provided to the jury in writing. Because the jury never saw the version of the instruction that appears in the Reporter's Transcript, it could not have been misled by the court reporter's editorial decisions in transcribing the instruction.
The Reporter's Transcript omits an important colon at the end of the phrase "for the limited purpose of deciding whether," and does not use paragraph signposts that appear in the written instruction in order to convey that it is up to the jury to decide whether the uncharged act evidence tends to prove the defendant had a motive to commit the charged crimes.
Further, Ramirez ignores the context provided by the balance of the instruction. When considered in the context in which it was read, the challenged statement may be confusing, but it does not override other parts of the instruction that accurately convey the pertinent legal principles governing the use of uncharged conduct evidence. The instruction still states correctly that the jury may not consider the uncharged conduct at all unless the prosecutor proved that the conduct occurred and, even if the prosecution made that showing, the jury is not required to consider this evidence if it elects not to.
Moreover, because Ramirez ignores the fact that the written instruction is not argumentative, he overlooks the principle that undermines his claim of error: To the extent the inclusion of the word "Also" in the oral reading of this instruction created " 'a discrepancy . . . between the written and oral versions of jury instructions, the written instructions provided to the jury will control.' " (People v. Edwards (2013) 57 Cal.4th 658, 746; see also People v. Osband (1996) 13 Cal.4th 622, 717 ["as long as the court provides the jury with the written instructions to take into the deliberation room, they govern in any conflict with those delivered orally"].) This rule makes good sense when, as here, there is no indication that the jury was even aware of the discrepancy.
Finally, even if the oral instruction contained an argumentative statement, the error was harmless. (See People v. Santana (2013) 56 Cal.4th 999, 1012 [applying Watson, supra, 46 Cal.2d at p. 836, to evaluate impact of argumentative instruction].) There was strong evidence in the 2016 incident that Ramirez had a motive for these crimes, and Ramirez does not dispute that the written jury instructions were complete, correct, and provided to the jury for review during their deliberations. Under these circumstances, we think any confusion the court's addition of the word "Also" might have introduced into the reading of the jury instructions would have been cured when the jury had a chance to consult the written version of the instructions in the jury room. It is not reasonably probable the outcome of the case would have been different if the court had not added a word when reading the modified CALCRIM 375 instruction at trial.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.