Opinion
B161314.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. RENNIE CARL TUCKER, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Analee J. Nations, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Rennie Carl Tucker, appeals from his conviction for unlawful driving or taking of an automobile (Veh. Code, § 10851, subd. (a)) and findings based on his admission that he served five prior prison terms. (Pen. Code, § 667.5, subd. (c).) Defendant argues: the trial court improperly instructed the jury with CALJIC Nos. 2.04, 2.28, and 17.41.1; the trial court failed to instruct the jury with CALJIC No. 2.02; the trial court should have given an instruction on the application of the reasonable doubt standard to circumstantial evidence concerning mental states; he was denied effective assistance of counsel; cumulative error requires reversal of the vehicle taking charge; and his prior prison term admissions were not voluntarily and intelligently made. We conclude no prejudicial error occurred and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-320; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On January 10, 2002, Los Angeles County Sheriffs Deputy Michael Berk saw a Jeep truck driven by defendant speeding in a school zone. Deputy Berk pulled the truck over. Defendant produced a California identification card. Defendant said that his license was invalid. Deputy Berk noticed that defendant was eating sunflower seeds and spitting the shells onto the truck floor. Deputy Berk also saw that the ignition was badly damaged and the steering column of the truck was broken. There were no keys in the ignition. When asked for the registration and proof of insurance, defendant indicated he did not have paperwork on the truck.
Deputy Berk ran a computer check of defendants identification card. Deputy Berk learned that defendant had $21,000 in outstanding warrants. Deputy Berk also discovered that the license plate on the Jeep truck belonged to a Ford. Deputy Berk, who was only riding a motorcycle, requested backup assistance. Deputy Berk told defendant to get out of the truck. Defendant was instructed to accompany Deputy Berk to the area of the motorcycle. Deputy Berk attempted to arrest defendant on the warrants. Defendant resisted being handcuffed and ran. Deputy Berk chased defendant. Defendant scaled a wall and disappeared. A search ensued. Defendant was arrested approximately 10 to 15 minutes later. A search of the Jeep truck revealed no registration, proof of insurance, or any documents bearing defendants name. A check of the vehicle identification number revealed that the Jeep truck was owned by a company known as No Nonsense Termite Company. The Jeep had been stolen from Michael Williams, the owner of the No Nonsense Termite Company, in October 2001. Mr. Williams did not know defendant. Obviously, defendant was not given permission by Mr. Williams to drive the stolen Jeep. When Mr. Williams got the truck back, it had been "stripped." Mr. Williams estimated that the missing equipment was valued at approximately $7,300 and there was approximately $2,000 damage to the truck. The losses were not covered by insurance.
Defendant testified that he had agreed to fix the truck for a man. The man had identified himself as "Michael Williams." But, the man was not Mr. Williams, the victim, who testified at trial. Defendant spent approximately 10 hours repairing the Jeep at a cost of approximately $250. When the man returned for the Jeep, defendant said it needed additional repairs. The man offered to sell the truck to defendant for $500, not including the $250 repairs. Defendant agreed to purchase the Jeep from the man. Renee Lane had lived with defendant prior to the date that he purchased the Jeep truck. On December 26, 2001, Ms. Lane prepared a document for a man named "Michael Williams." The document gave defendant permission to drive the Jeep while he did mechanical work on it. The document included a vehicle identification number. Ms. Lane was present when the man identified as "Mr. Williams" and defendant signed the document. Ms. Lane signed as a witness to the note. The man did not show any identification or give any address or phone number to Ms. Lane. Ms. Lane kept the note following defendants arrest. Ms. Lane kept the note to give to defendants attorney. Ms. Lane had a friend, known only as "Sherry," deliver the original of the document to defendants former attorney. Ms. Lane did not keep a copy of the document. Ms. Lane did not give a copy of the note to the sheriffs investigators. Ms. Lane testified, "I held onto it to give to his lawyer, because I have had evidence lost by police officers prior to this in other cases."
When Deputy Brad Foss interviewed Ms. Lane just prior to her testimony, she said that she wrote the note at defendants request. Ms. Lane did not say that the man known as "Mr. Williams" wrote the note. Ms. Lane told Deputy Foss that it was defendants idea to prepare the note. Deputy Foss interviewed defendant. Defendant said that he had papers for the truck. Defendant said the paperwork was in the truck. But no such paperwork was ever produced. Defendant did not indicate that he had repaired the truck for someone and later purchased it from him. Defendant did not mention Mr. Williams. Defendant had been arrested in September 2001 in another case for which he was charged with possessing a stolen automobile. At that time, defendant explained he had prepared a "lien" on the car. The lien was prepared because the owner had not paid for repairs. This explanation was given to Deputy Foss. Thereafter, defendant was released from custody and never charged with an offense related to that stolen automobile in September 2001.
III. DISCUSSION
A. Instructions
1. CALJIC No. 2.28
a. factual and procedural background
On July 1, 2002, two days prior to trial, defense counsel gave the prosecutor a copy of the handwritten note dated December 26, 2001, which purportedly gave defendant permission to drive the Jeep. The author of the note, a Mr. Williams, was identified as the owner of the Jeep. The note was signed by defendant, Ms. Lane, and the person identified as Mr. Williams. Defendants lawyer at the time of trial, George Creque, discussed the document with the prosecutor. Defendants former attorney, Ed Consiglio, gave the document to Mr. Creque. The prosecutor indicated that he had been assigned to the case since late March or April 2002. The trial court reserved judgment on whether to instruct the jury regarding the untimely disclosure of the note. At the time Ms. Lane testified, the prosecutor objected to the introduction of the handwritten note at a sidebar conference. Mr. Creque indicated the evidence was being offered for the purpose of demonstrating that defendant had permission to drive the truck. The trial court agreed to the notes introduction into evidence for purposes of establishing defendants state of mind rather than to prove any such permission was given. Ms. Lane testified regarding the above discussed note.
Following Ms. Lanes testimony, the trial court and counsel further discussed the untimely disclosure of the note to the prosecution. Mr. Creques explanation for the untimely disclosure of the note was as follows. Mr. Consiglio originally represented defendant. Ms. Lane gave the note to Mr. Consiglio. Mr. Creque stated: "There was prior counsel on this . . . who gave me the document[]. He had informed me that he had discussed these documents with the deputy district attorney at the time. . . . And I was under the impression he had already given these documents, copies of them, to the district attorneys office. Certainly they have been discussed. [¶] It is my impression from the prior counsel on it, because it was—he had discussed with me what the D.A. deputy D.A. had said to him at the time, so they were aware of them." The prosecutor stated he did not have a copy of the note in his file or any written references to its existence. The trial court requested that the deputy district attorney attempt to determine which prosecutor was previously assigned to the case.
At the close of testimony, the prosecutor requested that the trial court instruct the jury with CALJIC No. 2.28 The deputy district attorney explained that he had spoken to both prosecutors previously assigned to the case. Those prosecutors stated that the note was never given to them. In addition, according to the deputy district attorney, neither Mr. Consiglio nor Mr. Creque discussed with either of the prosecutors who previously handled the case that there was a note which granted defendant permission to drive the Jeep. The trial court found that there was a failure to timely disclose the note. The trial court indicated it would instruct with CALJIC No. 2.28 pursuant to section 1054.5, subdivision (b).
CALJIC No. 2.28 was given as follows: "The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial, so as to promote the ascertainment of truth, save court time, and avoid any surprise which may arise during the course of the trial. [¶] Concealment of evidence and/or delaying the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the noncompliant partys evidence. [¶] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. [¶] In this case the defendant concealed and/or failed to timely disclose the following evidence: The handwritten note dated 12/26/2001 regarding the defendant using the Jeep pickup, which is Defense Exhibit A. [¶] Although the defendants concealment and/or failure to timely disclose this evidence was without lawful justification, the court has under the law permitted the production of this evidence during the trial. [¶] The weight and significance of any concealment and/or delayed disclosure are matters for your consideration. However, you should consider whether the concealed and/or untimely disclosed evidence pertains to a fact of importance, to something trivial, or subject matters already established by other credible evidence."
MOSK, J., Concurring and Dissenting.
I concur in the majority opinion insofar as it affirms the judgment of conviction and the true findings on the prior prison term allegations concerning Case Nos. MA005889 and MA017329. I dissent from the portion of the majority opinion affirming the courts true finding on the prior prison term allegation for Case No. MA007674.
Prior to trial, Rennie Carl Tucker (Tucker) waived his right to a jury trial on the five prior prison terms alleged in the information. After his conviction for the charged offense, he agreed to admit them. Although the trial court was obligated to advise Tucker—before accepting his admissions—that by admitting the prior prison terms he waived his constitutional rights to confront witnesses and against self-incrimination (In re Yurko (1974) 10 Cal.3d 857, 863; In re Tahl (1969) 1 Cal.3d 122, 132), the court merely directed the prosecutor to take the admissions.
As a result, of the three constitutional rights to which Tucker was entitled to be admonished before the trial court could properly accept his admissions, he was advised of only one—his right to a jury trial. Notwithstanding this deficiency, Tuckers admissions would be valid if the record affirmatively showed that they were made voluntarily and intelligently under the totality of the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1175; People v. Moore (1992) 8 Cal.App.4th 411, 417-418 [voluntariness and intelligence must be discernible from the record; record may not be silent].)
In my view, the record does not permit the conclusion that Tucker knew of his confrontation and self-incrimination rights and voluntarily and intelligently waived them because no information about these rights was imparted to him during the jury trial waiver or the taking of the admissions. When the requisite admonitions are neither given nor at least indirectly communicated to the defendant, courts are unable to conclude that the record affirmatively demonstrates that the defendant knew of these rights and voluntarily and intelligently admitted the prior convictions. (See, e.g., People v. Garcia (1996) 45 Cal.App.4th 1242, 1247-1248 [when defendant was told he could "`waive that right to a jury trial and have the court make that determination, or simply admit that the priors are true" and was not told what would occur at a trial on the prior convictions, "there was no advice from which the defendant could infer he had the right to confront witnesses in such a trial even if he had observed he had that right in the trial-in-chief"]; People v. Torres (1996) 43 Cal.App.4th 1073, 1080-1082 [reversing findings because defendant was not advised of confrontation and self-incrimination rights, and the record did not reveal that the nature of those rights had been communicated to and waived during admissions]; People v. Carroll (1996) 47 Cal.App.4th 892, 896-898 [reversing admission when defendant was informed of right to jury trial on prior conviction allegations but no self-incrimination or confrontation admonishments were given]; People v. Van Buren (2001) 93 Cal.App.4th 875, 883-884 [no mention of rights of confrontation or against self-incrimination and no evidence that defendant "understood how these rights applied to proving his prior conviction, or whether he was prepared to waive those rights as a condition to admitting his prior conviction"]; cf. People v. Campbell (1999) 76 Cal.App.4th 305, 310 [knowing and voluntary character of admission not inferred from defendants familiarity with criminal justice system]; People v. Johnson (1993) 15 Cal.App.4th 169, 178 [although defendant was no doubt familiar with his rights because he exercised them at trial, court cannot infer awareness and willingness to waive those rights from a silent record].)
Although the majority hold that Tuckers admissions were voluntary and intelligent because he had just completed a jury trial in which he waived his right against self-incrimination by testifying and exercised his right to confront witnesses against him through his counsels cross-examination, no California court has concluded in a published decision that a jury trial on the underlying charge is sufficient to establish the voluntariness and intelligence of the defendants admission of a prior conviction when the defendant was not advised in some manner of the rights to confrontation and against self-incrimination.
The absence of admonitions, however, requires the reversal of only one of the true findings. Of the three enhancements imposed by the trial court, two (for Case Nos. MA005889 and MA017329) were based on the terms Tucker served for convictions he admitted during cross-examination at trial on the substantive offense. Deficiencies in pre-admission admonitions are harmless when a defendant admits the priors during the trial on the currently charged crime. (People v. Harris (1992) 8 Cal.App.4th 104, 106-109; People v. Elmore (1990) 225 Cal.App.3d 953, 957-958, 960.) Accordingly, only the true finding on the enhancement for the prior prison term served in Case No. MA007674 should be reversed because of the improper admonitions and invalid waiver.
In sum, I would affirm the trial courts findings that Tucker served prior separate prison terms in Case Nos. MA005889 and MA017329, but would reverse the true findings on the Penal Code section 667.5, subdivision (b) enhancement imposed in connection with Case No. MA007674 and remand for additional proceedings on this allegation. (People v. Garcia, supra, 45 Cal.App.4th at p. 1248; People v. Torres, supra, 43 Cal.App.4th at pp. 1080-1082; People v. Carroll, supra, 47 Cal.App.4th at pp. 896-898; People v. Van Buren, supra, 93 Cal.App.4th at pp. 883-884.) Notes:
Whether an admission of a prior conviction may be voluntary and intelligent when the defendant was admonished only of the right to a jury trial is presently pending before the California Supreme Court. (People v. Mosby (2002) 95 Cal.App.4th 967, review granted May 1, 2002, S104862.)
Although Tucker admitted serving five prior separate prison terms within the meaning of Penal Code section 667.5, subdivision (b), the trial court imposed only three enhancements, and struck the remaining two in the interest of justice.
b. propriety of the instruction
Defendant argues that the trial court violated his due process rights by instructing the jury with CALJIC No. 2.28 rather than: ordering a continuance; imposing a fine on Mr. Creque; or holding Mr. Creque in contempt. Defendant also asserts that CALJIC No. 2.28 unfairly refers to the concealment of evidence when that never occurred in this case. Section 1054.3 requires the disclosure of real evidence which the defendant intends to offer in evidence at trial. Section 1054.7 requires the disclosure be made at least 30 days prior to trial. A trial court may advise the jury of an untimely disclosure. (§ 1054.5; see also People v. Hammond (1994) 22 Cal.App.4th 1611, 1620-1621.) However, defendant neither objected to the instruction with CALJIC No. 2.28 nor suggested modifications. As a result, these issues have been waived because it was not the subject of an appropriate objection in the trial court. (People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1193.) Moreover, defendants failure to raise the constitutional issues in the trial court makes this issue the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Vera (1997) 15 Cal.4th 269, 274; People v. Padilla (1995) 11 Cal.4th 891, 971, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rodrigues, supra, 8 Cal.4th at p. 1116, fn. 20; People v. Garceau (1993) 6 Cal.4th 140, 173; People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. McPeters (1992) 2 Cal.4th 1148, 1174; People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10; People v. Yarbrough (1997) 57 Cal.App.4th 469, 477-478.)
Notwithstanding those waivers, CALJIC No. 2.28 was properly given. A trial court has discretion to decide what sanction to impose for violation of a disclosure order. (§ 1054.5; People v. Zamora (1980) 28 Cal.3d 88, 99; People v. Wimberly (1992) 5 Cal.App.4th 773, 792; Mendibles v. Superior Court (1984) 162 Cal.App.3d 1191, 1198.) The court is guided in its determination of sanctions in criminal cases by the extent the evidence will undermine the reliability of the fact finders conclusion and whether the failure to comply was willful and motivated to obtain a technical advantage. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.) Sanctions are generally imposed when the information is readily available but there is a deliberate failure to disclose. (See People v. Santos (1994) 30 Cal.App.4th 169, 178.)
In this case, without abusing discretion, the trial court could have concluded a sanction in the form of a continuance would not have allowed the prosecutor to investigate the document within a reasonable time without unwarranted delay. Moreover, the trial court could reasonably have decided the imposition of a fine or sanctions against defense counsel for failing to produce the document would not have remedied the prejudice to the prosecution. The defense was in possession of the document months before trial but did not deliver a copy to the prosecutor until two days before jury selection commenced. Two former prosecutors assigned to the case were adamant that neither Mr. Creque nor Mr. Consiglio had produced the document in question. The trial court specifically found a "total failure to timely produce this evidence." The instruction was given in the alternative language of "concealment and/or failure to timely disclose this evidence." Based on the testimony given at trial by Ms. Lane regarding her delay in delivering the document to Mr. Consiglio, the jury could have readily determined that the failure to timely disclose the evidence was the result of her inaction. The trial court did not abuse its discretion in giving the instruction rather than a more severe sanction of excluding the evidence. (People v. Zamora, supra, 28 Cal.3d at pp. 96-103; People v. Gonzales, supra, 22 Cal.App.4th at pp. 1753-1757.)
In any event, any error in so instructing the jury was harmless under any prejudice based standard of reversible error. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.) The owner of the Jeep, the only Mr. Williams to testify at trial, testified the truck had been stolen from him. Mr. Williams did not know defendant. Defendant did not have permission to drive the truck. Ms. Lanes and defendants testimony regarding the written statement varied in detail. Detective Fosss testimony regarding Ms. Lanes indication that she wrote the handwritten note contradicted her testimony at trial. In addition, defendant did not mention Mr. Williamss name to Detective Foss. While being interviewed, defendant did not mention that there was a note authorizing him to drive the Jeep. It was not until after the owner of the truck was identified that the handwritten note bearing the name of a Mr. Williams appeared. Defendant fled from Deputy Berk. The jurors had the opportunity to weigh the inferences presented by the testimony and determine the credibility of the witnesses. The note was, in fact, presented as evidence to the jury. Both Ms. Lane and defendant had the opportunity to testify why they did not immediately give the document to the prosecutor. Defendant also testified that he had purchased the Jeep truck. However, there was also overwhelming evidence that: the truck was stolen; it was severely damaged; its ignition had been "punched"; the license plate on the truck was traced to a Ford automobile; defendant had not attempted to register or insure the truck; and defendant fled from Deputy Berk. Any error was harmless beyond a reasonable doubt.
2. CALJIC No. 2.04
Defendant argues the trial court improperly instructed the jury with CALJIC No. 2.04, which read: "If you find that the defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt." Defendant argues the instruction was irrelevant, confusing, prejudicial, and violative of his right to due process and a fair jury trial under the Sixth and Fourteenth Amendments. During discussions regarding jury instructions, the trial court noted: "Defense A is a highly unusual document. It wasnt discovered or produced in a timely fashion. For that reason, Im giving the other instruction as previously discussed. [The prosecutor] may well have a right to have this instruction given, to the extent that the jury determines that there was an effort here to fabricate evidence. [¶] Indeed, if they decide that thats a phony baloney note, its probably a good idea that [defense counsel]—your client have this instruction, because it says, `this conduct—namely, the act of fabricating evidence—`is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
Defendant argues, "[T]here was no evidence before the jury to support . . . a conclusion [of fabrication]." We disagree. The jurors could reasonably infer that the note was prepared following defendants arrest and discovery of the real Mr. Williamss name. Defendant had prior experience with Detective Foss in a similar situation in September 2001. Defendant was driving a stolen car. In September 2001, defendant was released when he related he had prepared lien papers on the automobile in question. Defendant did not produce such documentation to Deputy Foss in this case. (See People v. Jackson (1996) 13 Cal.4th 1164, 1225; People v. Rodrigues, supra, 8 Cal.4th at p. 1139.) In addition, as the trial court pointed out, the instruction benefited defendant by admonishing the jurors that the evidence of fabrication by itself was insufficient to prove guilt and its weight and significance was for them to decide. (See People v. Jackson, supra, 13 Cal.4th at p. 1224; People v. Johnson (1992) 3 Cal.4th 1183, 1235; People v. Kelly (1992) 1 Cal.4th 495, 531-532.) Moreover, even if the instruction was erroneously given, it is not reasonably probable that a more favorable verdict would have been reached. (People v. Jackson, supra, 13 Cal.4th at p. 1225; People v. Pride (1992) 3 Cal.4th 195, 249; People v. Watson, supra, 46 Cal.2d at p. 836.)
3. CALJIC No. 2.02
Defendant argues the trial court improperly failed to instruct the jury sua sponte with CALJIC No. 2.02, which reads: "The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s] _____, _____, _____ and ____], [or] [the crime[s] of _____, _____, _____, which [is a] [are] lesser crime[s]],] [or] [find the allegation _____ to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion. [¶] Also if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
Defendant argues the prosecutor relied on circumstantial evidence to the intent elements of Vehicle Code section 10851, subdivision (a) violation. Defendant argues he presented circumstantial evidence the Jeep was not stolen—his own testimony. Defendant argues the failure to give CALJIC No. 2.02 lowered the prosecutors burden of proof of the material element of specific intent. In People v. Honig (1996) 48 Cal.App.4th 289, 341, our colleagues in the Court of Appeal for the Third Appellate District held: "CALJIC No. 2.02 was designed to be used in place of CALJIC No. 2.01 when the defendants specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. . . . It should not be given where the evidence is either direct or, if circumstantial, is not equally consistent with a conclusion of innocence." (Ibid., citing People v. Heishman (1988) 45 Cal.3d 147, 167; People v. Wiley (1976) 18 Cal.3d 162, 174-176.)
No doubt, there was circumstantial evidence defendant was driving a stolen Jeep. The prosecution presented evidence that: the trucks ignition had been punched and the steering column was covered with a bandana; no key had been used to start the Jeep; there was a screwdriver on the floor of the Jeep; the Jeep bore a license plate that belonged to another automobile; the Jeep had been stolen from a company owned by Mr. Williams; Mr. Williams did not give defendant permission to drive the truck; the truck was badly damaged; equipment and chemicals had been removed; and defendant fled from Deputy Berk. Defendant presented no circumstantial evidence. Defendants testimony consisted of: a claim the person named Mr. Williams was the Jeep owner; defendant had never met Mr. Williams; and Mr. Williams gave defendant permission to drive the Jeep. The note consisted of circumstantial evidence defendant had permission to drive the Jeep. Therefore, it was error under state law not to give CALJIC No. 2.02. But the error was entirely harmless given the strength of the prosecution presentation and the other instructions given. (Cal. Const., art. VI, § 13; People v. Lee (1990) 220 Cal.App.3d 320, 328; People v. DeLeon (1982) 138 Cal.App.3d 602, 608.)
However, no federal constitutional error occurred. In terms of defendants evidentiary reasonable doubt theory, the California Supreme Court has held that we evaluate the correctness of jury instructions by examining the entire charge rather than a consideration of a particular instruction or parts thereof. (People v. Wilson (1992) 3 Cal.4th 926, 943; People v. Crandell (1988) 46 Cal.3d 833, 874; People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753.) As the Supreme Court held in People v. Wilson, supra, 3 Cal.4th at page 943 in connection with an argument that CALJIC No. 2.01 undermined the reasonable doubt standard: "[T]he jury properly can find the prosecutions theory as to the interpretation of the circumstantial evidence `reasonable and alternate theories favorable to the defense `unreasonable, . . . only if the jury is convinced beyond a reasonable doubt of the accuracy of the prosecutions theory." The Supreme Court concluded, "[W]hen the instructions are viewed as a whole, the disputed language [in CALJIC No. 2.01] does not undermine the instructions on the presumption of innocence and the standard of proof beyond a reasonable doubt . . . ." (Ibid.) In this case, the jury was also instructed with: CALJIC No. 2.90 which defines reasonable doubt; CALJIC No. 3.31 regarding the concurrence of an act and specific intent; and CALJIC No. 14.36 that defined the unlawful taking of an automobile including the specific intent to deprive the owner of possession or title. Therefore, no federal constitutional issue is present because the failure to instruct pursuant to CALJIC No. 2.02 is solely a state law issue.
4. CALJIC No. 2.90
Defendant argues CALJIC No. 2.90, given in the absence of another instruction applying the reasonable doubt standard to each element of the offense, violates his due process and fair trial rights. This contention has no merit. (Victor v. Nebraska (1994) 511 U.S. 1, 23-24; People v. Freeman (1994) 8 Cal.4th 450, 504, fn. 9; People v. Godwin (1996) 50 Cal.App.4th 1562, 1571-1572; People v. Tran (1996) 47 Cal.App.4th 253, 262-263; see also People v. Hawkins (1995) 10 Cal.4th 920, 954, overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
5. CALJIC No. 17.41.1
Defendant argues that the trial court improperly instructed the jury with CALJIC No. 17.41.1, which violated his constitutional fair trial and due process rights. This contention has no merit. (People v. Engelman (2002) 28 Cal.4th 436, 441.) Nonetheless, under any standard of reversible error, the alleged misinstruction was entirely harmless given the conclusive proof of guilt. (Chapman v. California, supra, 386 U.S. at p. 22; People v. Watson, supra, 46 Cal.2d at p. 836; see also People v. Molina (2000) 82 Cal.App.4th 1329, 1335-1336.)
B. Assistance of Counsel
1. Failure to object to the prosecutors argument
Defendant argued he was denied effective assistance of counsel. Defendant argues Mr. Creque failed to object to the prosecutors alleged misstatement of the testimony in closing argument which supported the prosecutions fabrication of evidence contention. Before ineffective assistance of counsel may be found, there must be proof not only that the defense attorneys performance was deficient but also that defendant suffered prejudice as a consequence. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Horton (1995) 11 Cal.4th 1068, 1122; In re Fields (1990) 51 Cal.3d 1063, 1068-1069; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Furthermore, we engage in a presumption, which it is defendants burden to overcome, that counsels performance came within the wide range of reasonable professional assistance and was the product of sound trial strategy. (Strickland v. Washington, supra, 466 U.S. at pp. 689-690; People v. Hart (1999) 20 Cal.4th 546, 624; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Lewis (1990) 50 Cal.3d 262, 288.) As will be set forth below, defendant has demonstrated neither constitutionally inadequate assistance nor prejudice in connection with the prosecutors arguments.
Defendant argues the prosecutor misstated the record during closing argument. Defendant argues, "[T]he prosecutor misstated the record, claiming [defendant] had been in custody when the Williams note . . . was signed." Defendant argues defense counsel should have objected because the prosecutors statement improperly supported the jury instruction on fabrication of evidence. We disagree.
The prosecutor argued: "[W]e have this document that youre going to see, Defense Exhibit A, and its signed by someone named Mike Williams, and we know that its not the Mike Williams that testified. How on earth, first of all, could [defendant] have known that name? And second of all, if you believe its the defendants signature on there, how could that have gotten on that document with the defendant being in custody? [¶] Hes in communication with his girlfriend, Ms. Lane. Hes in communication with her. Shes on the outside; hes on the inside. Michael Williams, the name, where did that come from? [¶] The deputy testified thats not on the registration for [Department of Motor Vehicles]. If you recall that testimony, a small fact when it came out, but I think its kind of important now. The registration was to that termite company . . . . [¶] . . . [¶] No Nonsense Termite Company. It was not to Mike Williams. [¶] So how did the defendant know to make up this story, to manufacture this evidence with this name Mike Williams on it, because its not in the system? . . . [¶] Deputy Fosss supplemental report — weve already discussed reciprocal discovery. . . . [I]t means everything Ive got, theyve got. As soon as Ive got it, theyve got it. What do you think that includes? Could it possibly include Deputy Fosss supplemental report? You betcha. [¶] . . . Whose name is in there? Victim, Michael Williams, owner of the termite company. And who gets that document? Not on the day of his arrest and certainly not the day after, but Deputy Foss has to conduct his investigation. He talks to Michael Williams, he drafts the supplemental report. [¶] Eventually, through reciprocal discovery, who does it go to? And eventually where does the name Michael Williams appear? Day seven of ten for trial, Monday of last week, it appears on a handwritten note."
This argument furthered the prosecution theory of fabrication of evidence. It did not suggest that defendant was in custody on December 26, 2001. Rather, it emphasizes that defendant had no knowledge of the Jeep owners name until after he was in custody for the offense. After fleeing from Deputy Berk, defendant was arrested; viz. in custody. This argument properly summarized the prosecutors view of what the evidence demonstrated. Therefore, any objection on the part of defense counsel would have been inappropriate.
Moreover, such an objection would have emphasized the prosecutors argument. As a result, on direct appeal, Mr. Creques failure to object must be deemed an appropriate trial tactic. The California Supreme Court has held: "[W]here counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 926; People v. Earp (1999) 20 Cal.4th 826, 896.) Defendant has failed to sustain his burden of demonstrating a denial of his right to effective representation by counsel.
2. Mr. Creques Failure to comply with his disclosure obligations
Defendant argues that absent a finding that the reading of CALJIC No. 2.28 was unduly harsh and unwarranted, we must find Mr. Creque provided ineffective assistance by failing to disclose the note to the prosecution 30 days prior to trial. Defendant further argues that Mr. Creques inaction amounted to "the withdrawal of a potentially meritorious defense." First, in terms of why the note was not timely disclosed, no testimony was presented—only the unsworn allegations of the prosecutor and Mr. Creque. There was no testimony by Mr. Consiglio and the two prosecutors who had previously been assigned this case. We are wary of assessing on direct appeal an ineffective assistance claim given the contrary presumption in the face of no testimony. Second, defendant has failed to sustain his prejudice burden. The failure to disclose the note ultimately resulted in CALJIC No. 2.28 being read to the jury. As noted previously, under any prejudicial standard of reversible error, the giving of CALJIC No. 2.28 had no effect on the outcome of the trial. (Chapman v. California, supra, 386 U.S. at p. 22; People v. Watson, supra, 46 Cal.2d at p. 836.) This is not a case where we lack confidence in the outcome. (See Wiggins v. Smith (2003) __ U.S. __, __ [123 S.Ct. 2527, 2542]; Woodford v. Visciotti (2002) 537 U.S. 19, 23.)
C. Cumulative Error
Defendant argues that the cumulative effect of errors committed by the trial court requires the reversal of his convictions. We disagree. There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. (People v. Noguera (1992) 4 Cal.4th 599, 649; see also People v. Cudjo (1993) 6 Cal.4th 585, 630 [no cumulative error when the few errors which occurred during the trial were inconsequential]; People v. Garceau, supra, 6 Cal.4th at p. 198; People v. Clark (1993) 5 Cal.4th 950, 1017.) Whether considered for their cumulative effect, the errors alleged did not affect the process or accrue to defendants detriment of a degree sufficient to permit reversal. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As the California Supreme Court has held, "A defendant is entitled to a fair trial, not a perfect one." (People v. Mincey (1992) 2 Cal.4th 408, 454; People v. Miranda (1987) 44 Cal.3d 57, 123.) In this case, one of strong evidence of guilt, defendant received more than a fair trial.
D. Defendants Admission of Prior Prison Terms
Defendant argues that although he was advised of his right to a jury trial with respect to his three prior prison terms, he was not told of his right to confront and cross-examine witnesses and of the privilege against self-incrimination. Thus, he argues his subsequent admission of the prior prison terms allegation within the meaning of section 667.5, subdivision (b), was neither voluntary nor intelligent and his three one-year enhancements must be reversed. At the outset, we note none of defendants federal constitutional rights are implicated in a bifurcated trial on prior prison term allegations. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; People v. Thomas (2001) 91 Cal.App.4th 212, 215.) Therefore, this issue is solely one of state, not federal law.
Before a prior prison term admission is received, the accused must be advised of the statutory, jury trial, self-incrimination, and confrontation rights. (In re Yurko (1974) 10 Cal.3d 857, 863-864; see 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 453, pp. 648-651.) However, in People v. Howard (1992) 1 Cal.4th 1132, 1180, the California Supreme Court held that the absence of an express waiver of the self-incrimination privilege did not render a defendants admission of a prior conviction less than voluntary and intelligent. The Howard court looked to the entire record to determine if a plea is voluntary and intelligent under the totality of the circumstances. (Id. at pp. 1175, 1178 ["Boykin [v. Alabama (1969) 395 U.S. 238, 242] does not require specific articulation of each of the three rights waived by the guilty plea, as long as it is clear from the record that the plea was voluntary and intelligent . . . ."]; see also North Carolina v. Alford (1970) 400 U.S. 25, 31; People v. Allen (1999) 21 Cal.4th 424, 438-439 [same].)
Prior to trial, the prosecutor indicated that defendant had provided the documentation necessary to prove three of the prior prison terms allegations. Also, the deputy district attorney indicated two superior court files were in the courtroom. Thereafter, Mr. Creque stipulated to a bifurcated trial wherein, "[T]he proof of any prior convictions as alleged in the information be the subject of a second and later proceeding." Mr. Creque indicated his willingness to stipulate to a court trial on the prior prison terms allegation. Thereafter, defendant was advised of his right to a jury trial on the five prior prison terms allegations alleged in the information. The prosecutor explained, "By stipulating, instead of keeping the same 12 jurors to decide whether or not these priors are yours, what you would be stipulating to is to allow the court to determine whether or not these are qualifying priors." Defendant responded: "Thats fine. Yeah, I understand." Defendant then waived his right to a jury trial concerning the proof of the prior prison terms allegation. Mr. Creque agreed to the waiver.
Thereafter, the jury trial commenced regarding the Vehicle Code section 10851, subdivision (a) charge. Defendant was impeached with three prior prison term convictions during cross-examination. Defendant admitted he had been convicted of possession for sale of a controlled substance and felony spousal abuse. But, defendant had no recollection of a conviction for possession of stolen property. Following the guilty verdict in the trial on the taking of the truck, defendant agreed to admit he had served five prison terms rather than have the previously agreed to court trial on that issue. In each case, defendant admitted he was convicted and sentenced to state prison.
Because only state law considerations are at issue, a showing of a reasonable probability of a different result must be made before reversal is in order. (Cal. Const., art. VI, § 13; People v. Epps (2001) 25 Cal.4th 19, 29; 6 Witkin & Epstein, Cal. Criminal Law, supra, Reversible Error, § 7, p. 451.) Defendant readily admitted two of the five prior prison terms allegation during his cross-examination at trial. Defendant had just completed a trial where every witness was cross-examined. His trial had resulted from his not guilty plea. Defendant was certainly aware of his right against self-incrimination. He had previously been convicted of felonies and misdemeanors on 14 occasions. Had the admonition been given, there is no reasonable probability of a more favorable result. (See, e.g., People v. Harris (1992) 8 Cal.App.4th 104, 106-109; People v. Elmore (1990) 225 Cal.App.3d 953, 957, 960.) We note that a variation of this issue is currently pending before the California Supreme Court in People v. Mosby (2002) 95 Cal.App.4th 967 (review granted May 1, 2002, S104862.)
IV. DISPOSITION
The judgment is affirmed.
I concur: GRIGNON, J.