Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Blythe J. Leszkay and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA366140)
APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford I. Klein, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Blythe J. Leszkay and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Juan Carlos Gonzalez guilty of making criminal threats in violation of Penal Code section 422. The trial court imposed the middle term of two years imprisonment. In his timely appeal, defendant contends trial counsel provided constitutionally ineffective assistance by failing to request an instruction on voluntary intoxication and presenting an ill-conceived and prejudicial defense without adequate investigation. Defendant also contends the trial court prejudicially erred by withdrawing the jury instruction (Judicial Council of Cal. Crim. Jury Instns. (2009-2010) CALCRIM No. 358) that cautioned the jury to consider defendant's statements "with caution."
All further statutory references are to the Penal Code, unless otherwise indicated.
STATEMENT OF FACTS
The victim, Rebeka-Maria Morales, worked for the Department of Children and Family Services as an emergency social worker, investigating child abuse and neglect out of the Department's Torrance office. In May 2009, Morales was the emergency response social worker sent to investigate allegations of child abuse at the home where defendant lived with his wife and three daughters. Morales determined there was an immediate child safety concern that required detention of defendant's three children. After consulting with her supervisor, the children were removed from defendant's home.
In connection with the children's removal, Morales met with defendant at a McDonald's restaurant to discuss the possibility of fashioning a safety plan to protect the children without their removal from the family home. Morales gave defendant her business card with her work cell phone number. They had a second meeting at the Department's Torrance office. Morales told defendant the children would be removed from the home because a safety plan would not be adequate to protect them. She provided defendant with a safety plan for him to follow in order to "get his three daughters back." At that point, Morales's direct involvement in defendant's case ended. The matter was transferred to another social worker for the family to work toward reunification.
When Morales arrived at McDonald's, she saw defendant pointing his index finger very close to the middle daughter's face and heard defendant yelling at the daughter. Morales was concerned that defendant was intoxicated. He smelled strongly of alcohol and persisted in poking her left arm, despite her objections. When he leaned over and poked her in the arm the third time, she ended the interview.
Morales found immediate child safety concerns based on the middle daughter's refusal to remain in the home due to fear of defendant, the mother's inability to protect the daughters, and property damage, including holes in the wall, a broken microwave oven door, and broken kitchen cabinet that defendant had punched. She also relied on a prior report that the middle daughter had received bruises, indicative of physical abuse by defendant. One or more of the children said that defendant had abused illicit drugs in the past.
As of December 23, 2009, defendant had not been permitted to live with his daughters. That morning at approximately 6:00 a.m., Morales was at home when she received a call on her work cell phone. She recognized defendant's voice on the line. He identified himself by name and asked for her in Spanish, a language in which Morales was fluent. His tone of voice was "very firm, very scary." Defendant said he intended to kill himself and was going to her office to kill her. "He said that [Morales] messed with him when [Morales] took his children. He said that it was going to be [her] Christmas gift. He said that him [sic] and [she] were both going to go to hell . . . ." In response, Morales tried to convince defendant not to come to her office and to kill her. She tried to "redirect him," by getting him to focus on maintaining his efforts with the reunification process.
When the call ended, Morales telephoned her supervisor to alert her to a potential threat to the Torrance office. She called 911 to alert the police to defendant's threat. Morales proceeded to call several other police departments in the various locations where she, defendant, and his daughters were located. She was concerned for her own safety as well as for the safety of defendant and his daughters. Because of defendant's threat, Morales was too frightened to go into work. From her prior interviews with defendant, Morales observed that he was aggressive and upset about having his children removed.
Victor Portillo was a social worker who had worked on the case of defendant's children. When he arrived at the Torrance office on the morning of December 23, he checked his voice mailbox and found a message from a person identifying himself as defendant. A recording of the message was played to the jury. The message was left at 6:21 a.m. and was in Spanish. In the message, defendant swore at Portillo and accused him and the Department of destroying defendant's life. Defendant said he had been out of his home for seven months and had "fallen into a deep depression." He said he thought only about "ending [his] life" and swore he would "come back for [Portillo] from hell."
A written translation of the statement from Spanish into English was provided to the jurors.
At approximately 7:30 that morning, Officer Brendy Ponce and his partner arrived at the East 70th Street residence where defendant was living, in response to a report that defendant had threatened suicide and was depressed. Defendant was on the porch, talking on the telephone. After Officer Ponce asked defendant questions to determine whether he was suicidal, he decided to take defendant to the police station for a mental health evaluation. Defendant said he wanted to hurt himself and said he took three times his normal dose of antidepressant medication. While conducting the investigation, Officer Ponce called Morales and was told about defendant's threatening statements.
During the drive to the police station, Officer Ponce advised defendant of his rights under Miranda and asked him questions about Morales. Defendant said he was angry with her because she "had a personal vendetta against him." Defendant "expressed just extreme hate," stating: "I'm going to take care of her. I'm going to take care of her. This is my mission in life. I'm going to make sure she doesn't do this to me again." When Officer Ponce asked whether he was serious and why he was making threats, defendant said, "This is not a threat. This is my mission." Defendant continued to explain, saying that he had been a guerrilla fighter in El Salvador who had "killed people since he was 15, using different types of weapons." The officer thought defendant "was capable of . . . completing that task." At one point during their conversation, defendant grinned at Officer Ponce and said, "The next time you see my face, it's going to be on Eyewitness News."
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant's wife, Alma Gonzalez, testified about the meeting at McDonald's. The meeting was very short because Morales cancelled it in anger after defendant said his middle daughter "was more intelligent than that stupid idiot Rebeka Morales." When Morales first interviewed her at the family home, Mrs. Gonzalez denied that defendant had ever used "drugs or alcohol or anything."
Defendant's eldest daughter Yajaria testified concerning Morales's visit and interview on May 29. She denied telling Morales that her mother could not protect her and her sisters, or that her father abused drugs or was an alcoholic. Regarding the McDonald's meeting, Yajaria recalled that she hugged her father and spoke to him as soon as she arrived. She smelled no odor of alcohol and her father did not appear to be drunk. Morales cancelled the McDonald's meeting shortly after it began because Morales "got very angry" when defendant insulted her.
Defendant's middle daughter Laura testified that on May 29 the Department had her taken from her home because she was afraid of returning to the family house. She "had gotten into trouble and [defendant] yelled and he hit [her]" with his open hand. It did not hurt and it left no mark. The investigation began when Laura told her high school counselor about her fear. The counselor called the police and the Department. Morales and two police officers took her from school to the police station, before taking her home, where the investigation took place. Laura did not say her father used illicit drugs, but only that he smoked cigarettes. Morales, however, responded by saying that cigarettes were drugs and she wanted to have defendant tested for drug use. Laura did not tell Morales that her mother could not protect her and her sisters. Laura did not see her father poke or touch Morales during the meeting at McDonald's. She corroborated her mother and sister's testimony that Morales cut the meeting short after defendant insulted and angered Morales by calling her a "stupid idiot."
Defendant was "frustrated" at the McDonald's meeting because Morales had taken his daughters away "without a motive, a reason." He insulted her by saying she was stupid and an idiot. Morales cancelled the meeting and said he "was going to be sorry because of the insults; that [defendant] did not know the power that she has to destroy [his] life." In connection with court proceedings concerning his children, he was falsely accused of being a drug abuser.
Regarding the events of December 23, 2009, defendant denied that he was prescribed medication as a result of court-ordered counseling, which he had completed. He was not seeing a therapist for depression, but was taking prescribed antidepressant medication. He "felt a very big depression" because he was living apart from his wife and daughters, and because of "the system and the false accusations" against him. He decided to commit suicide. Defendant chose not to cut his veins because he did not want to cause a mess in his sister's home where he was staying. Instead, he "saw three bottles of pills and . . . started to take them with Coca-Cola." He had not eaten or slept for approximately four days. He was wearing pajamas and was unarmed.
Defendant was "feeling the effects of the medication," when he decided to make telephone calls. First, he called the attorney who represented his daughters in the children's court matter. Next, he called social worker Jessica Broy, followed by the Department investigator, Victor Portillo. Last, he called Morales. Defendant left essentially the same message for all four persons: Defendant was going to take his own life and he blamed them because they had "destroyed" him. He never threatened any of their lives.
Defendant considered it fortunate that Morales answered the phone because she helped to save his life by alerting the police, who came to his house and arrested him. They arrived at approximately 6:30 a.m. When defendant identified himself, the officers questioned him about his safety and placed him in handcuffs. During the drive to the police station, defendant spoke to the officers, but made no threats to third parties. Defendant was taken to a psychologist or psychiatrist who examined him about his desire to commit suicide. While waiting for the evaluation to begin, defendant kept falling asleep, "even while walking," due to the pills he had taken. Defendant said that despite being "heavily medicated," he remembered "perfectly" the details of the events of the morning of December 23, except for the amount of time he waited for the psychological evaluation and whether the evaluation occurred at the police station or in a clinic.
I. Ineffective Assistance of Counsel
Defendant asserts two claims that his trial attorney rendered ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth amendments to the United States Constitution. First, he contends trial counsel was ineffective by failing to request an instruction on voluntary intoxication. Second, he claims counsel made the constitutionally indefensible error of presenting an ill-conceived and prejudicial defense without adequate investigation. Both claims fail. On this record, there was nothing objectively unreasonable about choosing not to pursue a voluntary intoxication defense, and, contrary to defendant's assertions, there was a reasonable basis for the chosen defense strategy.
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)" (People v. Cunningham, supra, at p. 1003.)
"The Sixth Amendment guarantees competent representation by counsel for criminal defendants [, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland v. Washington, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8 Cal.4th 450, 513.) "A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.'" (People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Given the presumption of reasonableness proper to direct appellate review, our Supreme Court has "repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. [Citations.] The defendant must show that counsel's action or inaction was not a reasonable tactical choice, and in most cases '"'the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . .'"' [Citations.]" (People v. Michaels (2002) 28 Cal.4th 486, 526.)
Here, the appellate record demonstrates that counsel's unexplained decision to forgo a voluntary intoxication defense, as well as his strategic reliance on defendant's testimony that he never threatened Morales's life, were facially reasonable. Moreover, in attempting to show prejudice, defendant improperly relies on speculation.
A. Voluntary Intoxication Defense
The scope of voluntary intoxication as a defense to a specific intent crime—such as making criminal threats under section 422—is narrow. "[W]hen our Legislature eliminated the defense of diminished capacity (Stats. 1981, ch. 404, pp. 1591-1592), it precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant's capacity to form a requisite criminal intent, but it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent." (People v. Williams (1997) 16 Cal.4th 635, 677.) Accordingly, "[a] defendant is entitled to such an instruction only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent.' (People v. Horton (1995) 11 Cal.4th 1068, 1119; see also People v. Saille (1991) 54 Cal.3d 1103, 1117 [explaining that a defendant charged with murder is free to show that 'because of his mental illness or voluntary intoxication, he did not in fact form the intent unlawfully to kill' (original italics)].)" (People v. Williams, supra, at pp. 677-678.) "It is well settled that '[a]n instruction on the significance of voluntary intoxication is a "pinpoint" instruction that the trial court is not required to give unless requested by the defendant.' (People v. Rundle (2008) 43 Cal.4th 76, 145, citing People v. Saille[, supra,]54 Cal.3d [at p.] 1120.)" (People v. Verdugo (2010) 50 Cal.4th 263, 295.)
In arguing that a voluntary intoxication was such an "obvious defense" that there could be no reasonable basis for failing to request an instruction on it, defendant points to his testimony that he was suicidal on the morning of the incident and took three times the prescribed dosage of an antidepressant medication and had not eaten or slept for four days. Just before placing the telephone calls, including the call to Morales, he was "feeling the effects of the medication." Later that morning, while waiting for the evaluation to begin, defendant kept falling asleep, "even while walking," due to the pills he had taken. While such evidence tends to support the inference he was intoxicated, it provides little, if any, basis for inferring that defendant's intoxication prevented him from forming the required specific intent—that his threatening statement "be taken as a threat." (§ 422.)
As the Attorney General points out, there was other evidence available to trial counsel that defendant overlooks and which renders such an inference as to mental state highly dubious. First, defendant's testimony was largely inconsistent with a voluntary intoxication defense. Defendant did not testify that his medication inhibited his ability to understand what he was doing or what he meant at the time he placed the telephone calls. To the contrary, defendant said that despite being heavily medicated, he remembered "perfectly" the details of the events of the morning of December 23, except for the amount of time he waited for the psychological evaluation and whether the evaluation occurred at the police station or in a clinic.
Defendant made clear in his testimony that he intended to convey a specific message—that the Department's actions had ruined his life and made him suicidal. Central to his testimony was that he had no intention to threaten anyone's life other than his own. Moreover, the officers did not notice anything in defendant's manner suggestive of psychosis, drug-induced or otherwise. Officer Ponce considered defendant capable of understanding and waiving his Miranda rights. The officers' referral of defendant for a mental health examination provides little evidence of drug-induced psychosis, since Officer Ponce's concern was whether defendant was suicidal. Further, defendant stated that the mental health evaluation concluded that he was "normal." The record contains no testimony as to the type of drug defendant used or the prescribed dosage, much less any corroboration of the amount he claimed to have ingested. There was no evidence that the medication could cause the kind of impairment that would prevent a person from forming a specific intent.
We are aware the trial court sustained the prosecution objection and ruled defendant's testimony to that fact inadmissible, but defendant's statement was made under oath and is a relevant consideration on the question of defense counsel's trial tactics.
On such a meager showing, it is questionable whether defendant would have received a voluntary intoxication instruction even if he had requested one. In People v. Marshall (1996) 13 Cal.4th 799, our Supreme Court held the trial court was justified in refusing to so instruct despite an evidentiary showing that was marginally stronger than defendant's. "Although the offenses were committed after defendant had gone virtually without sleep for approximately 24 hours, and after he had drunk an unspecified number of alcoholic drinks over a period of some hours, evidence of the effect of defendant's alcohol consumption on his state of mind is lacking. One arresting officer testified that in his opinion defendant was sober when taken into custody. Although another officer testified defendant seemed 'dazed,' this falls short of a reasonable basis for concluding defendant's capacity to entertain the mental state required for murder was diminished. Defendant's blood-alcohol content, tested about three hours after the shootings, suggested some impairment, as might have rendered him an unsafe driver, but the record does not support a conclusion that at the time of the offenses defendant was unable to premeditate or form an intent to kill. Accordingly, because no reasonable jury would have so found, the trial court did not err in refusing the requested instruction." (Id. at p. 848; see also People v. Williams (1988) 45 Cal.3d 1268, 1311-1312; People v. Verdugo, supra, 50 Cal.4th at p. 295 [no duty to instruct where evidence of voluntary intoxication did not show substantial affect on ability to form specific intent and was inconsistent with defense].)
Defendant's reliance on People v. Moore (2002) 96 Cal.App.4th 1105 is misplaced. In Moore, the appellate court did not hold the defendant's testimony that he smoked cocaine before stabbing the victim was sufficient to support a voluntary intoxication instruction. Instead, it highlighted the evidence that defendant was delusional at the time. Defendant admitted stabbing the victim, but denied having the intent to kill her—"he just wanted to see what it would be like to stab someone." (Id. at p. 1110.) In support, the defense presented expert medical testimony that "it is not uncommon for a chronic user to develop delusional ideas, including becoming psychotic, hearing voices and having visual hallucinations. A person in a psychotic state can become irrational, compulsive, and impetuous and lack control over his behavior. These effects can be exacerbated by sleep deprivation and by failure to eat properly. Memory can also be impaired by the use of cocaine." (Id. at p. 1111.) Here, in contrast to Moore, there was no evidence that defendant was delusional, and defendant specifically denied making the threat.
Therefore, this is not a case in which there could be no satisfactory explanation for trial counsel's decision to forego a voluntary intoxication defense. (See, e.g., People v. Cunningham, supra, 25 Cal.4th at p. 1003.) Defendant's assumption that there was no "down side" to pursuing such a defense is questionable. Based on the evidence outlined above, defendant would have been vulnerable to damaging cross-examination regarding his ability to form a specific intent. Defendant's mental health history could have been placed at issue, requiring disclosure of potentially damaging evidence in his medical records. Assessment of such risks is well beyond this court's scope of direct appellate review. In any event, contrary to defendant's assertion, the mere fact that the defense may have had "nothing to lose" in pursuing such a defendant cannot form the basis for an ineffective assistance claim under the Sixth Amendment. (Knowles v. Mirzayance (Mar. 24, 2009, No. 07-1315)_U.S._[129 S.Ct. 1411, 1419].)
Moreover, given that defendant can only speculate on the efficacy of pursuing the alternative defense, he cannot show prejudice under Strickland. Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (In re Clark (1993) 5 Cal.4th 750, 766.)
B. Theory of Defense
In a related claim, defendant argues trial counsel's tactical decision to pursue a defense that Morales lied about the death threat based on her personal vendetta against him was so objectively unreasonable that it amounted to constitutionally defective representation because it resulted in the admission of damaging testimony as to defendant's violent conduct in the past. We disagree.
As we have explained, defendant's assertion that a voluntary intoxication defense negating specific intent was the only viable defense option is questionable at best. Moreover, defendant miscasts the defense evidence by highlighting the damaging aspects of the testimony, while ignoring the exculpatory value of the defense testimony. The chosen defense presented the jury with a coherent basis for rejecting the prosecution case. Defendant testified that he never made the threat that Morales attributed to him. She, on the other hand, had previously told him that she had the power to destroy his life. In order to explain and bolster that testimony, the defense presented evidence that Morales was biased against him. His wife and daughters corroborated his testimony that Morales broke off the McDonald's interview because he insulted her. The defense witnesses also explained how Morales systematically exaggerated or misrepresented the risks that defendant posed to the children. Had the jurors believed the defense witnesses, they likely would have reached a verdict favorable to the defense. The fact that the chosen defense strategy entailed the risk that some adverse testimony would be admitted hardly renders it unreasonable.
The choice of which defense to mount is the kind of tactical decision that Sixth Amendment precedent leaves to counsel's independent judgment. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" (Strickland v. Washington, supra, 466 U.S. at p. 689; see also People v. White (1981) 118 Cal.App.3d 767, 779 (conc. opn. of Wiener, J.) ["Although Monday morning quarterbacking may be stimulating, it is inappropriate when judging lawyers who deal in the demanding and uncertain turf of the courtroom."].)
Defendant fails to overcome the presumption of reasonable professional assistance. Contrary to defendant's mistaken approach, we "will neither second-guess counsel's decisions nor apply the fabled twenty-twenty vision of hindsight." (Campbell v. Wood (9th Cir. 1994) 18 F.3d 662, 673; see also e.g., People v. Weaver (2001) 26 Cal.4th 876, 926 ["'[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]"].) As the appellate record shows neither objectively deficient performance nor a reasonable likelihood of prejudice, we reject the claim.
II. Jury Instruction
Defendant contends the trial court prejudicially erred by withdrawing CALCRIM No. 358—which admonishes the jury to view a defendant's oral statement with caution— from the package of written jury instructions provided to the jury during deliberations. As we explain, even assuming the instruction was withdrawn and doing so was erroneous, there was no reasonable likelihood defendant suffered prejudice as a result.
Prior to instructing the jury, the trial court discussed the proposed instructions with the parties out of the jury's presence. The court stated that it was inclined to give CALCRIM No. 358, regarding defendant's oral statements. There was no objection. The court instructed the jury as follows: "You have heard evidence that the defendant made oral statements before the trial. You must decide whether the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. [¶] It is up to you to decide how much importance to give to the statements. Consider with caution any statement made by the defendant tending to show his guilt, unless the statement was written or otherwise recorded."
The trial court excused the jury after completing the instructions. Outside the jury's presence, the court told the parties that while reading the instructions it realized CALCRIM No. 358 should not have been given because defendant's statement to Morales was an element of the charged offense of making criminal threats. As such, the instruction "could confuse the jury." The prosecutor agreed. The court proposed rereading the instruction to the jurors and informing them that it did not apply. The prosecutor, however, suggested the court not tell the jury anything about the instruction, but merely remove that instruction from the packet of instructions to be given them during deliberations. The defense agreed that the instruction was inapplicable and did not object to the prosecutor's proposal that the court not advise the jury about the pattern instruction, but simply remove it from the written instructions given to the jury. The prosecutor represented that he would not mention the instruction during argument.
Initially, we note that the factual basis for this claim is ambiguous. Although the trial court stated, and its minute order confirms, that it intended to withdraw CALCRIM No. 358 from the packet of written instructions to be submitted to the jury, the certified packet of instructions contained in the clerk's transcript includes that pattern instruction with the cautionary language as among those given to the jury. Because the parties did not consider this aspect of the claim in their appellate briefing, we requested supplemental briefing on that point. As defendant points out, People v. Wader (1993) 5 Cal.4th 610 is instructive. There, the record failed to establish whether the jury's requested read back of testimony was conducted. Approximately one and a half years later, neither trial court nor counsel could recall whether the read back had occurred. Our Supreme Court reasoned: "It is reasonable to assume that the court reporter did reread the testimony to the jury, as the trial court apparently instructed." (Id. at p. 661.) We will therefore assume the trial court acted in accord with its stated intent.
"A trial court has a sua sponte duty to instruct the jury to view a defendant's oral admissions with caution if the evidence warrants it. [Citations.]" (People v. Wilson (2008) 43 Cal.4th 1, 19.) The purpose of the cautionary instruction "is '"to help the jury to determine whether the statement attributed to the defendant was in fact made . . . ."'" (Ibid., quoting People v. Dickey (2005) 35 Cal.4th 884, 905; see also People v. Carpenter (1997) 15 Cal.4th 312, 393 [the cautionary instruction applies "to any oral statement of the defendant, whether made before, during, or after the crime"].) However, in People v. Zichko (2004) 118 Cal.App.4th 1055 (Zichko), the court held the instruction does not apply when a defendant's statement is an element of the crime, as in conspiracy or criminal threats (§ 422). (Id. at p. 1059 ["Zichko's verbal threat to shoot Ford . . . was the act of making a criminal threat. The statements constituted the crime, not admissions of the crime . . . ."].)
Zichko, supra, concerned the application of CALJIC No. 2.71, which is the parallel provision to CALCRIM No. 358.
Here, the trial court believed the Zichko rationale precluded the application of CALCRIM No. 358 because defendant's statements to Morales (which were not recorded) constituted the actionable conduct itself for purposes of proving the criminal threats charge. On appeal, defendant argues that regardless of whether the instruction applied to the statements to Morales, it clearly applied to defendant's statements to Officer Ponce, which amounted to damaging admissions. Defendant also argues that Zichko was wrongly decided and inconsistent with precedent, including our decision in People v. Ramirez (1974) 40 Cal.App.3d 347.
Initially, we assess the Attorney General's contention that defendant forfeited his instructional error claim by inviting the error. The record is unclear whether defense counsel "made a conscious, deliberate tactical choice between having the instruction and not having it." (People v. Cooper (1991) 53 Cal.3d 771, 831.) On the one hand, counsel would have recognized that having the instruction read was potentially beneficial in that the jury may have understood it to cast suspicion on defendant's statement to Morales. That was how the trial court and counsel apparently understood it at the time. (See People v. Slaughter (2001) 27 Cal.4th 1187, 1200 ["To the extent that defendant's admissions were inculpatory, it is clear that defendant could not have been prejudiced by the giving of an instruction that the jury should view this evidence with caution."].) On the other hand, we cannot determine whether trial counsel considered the potential benefits of having the jury instructed that his oral, non-recorded statements by Officer Ponce should be viewed with caution.
We therefore consider the instructional error claim under section 1259, which permits such review of any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby. (See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Our review under section 1259 obviates the necessity "to consider defendant's claim that defense counsel's failure to object denied him effective assistance of counsel." (Ibid.)
To determine prejudice for the failure to give this cautionary instruction, "'[w]e apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.'" (People v. Wilson, supra, 43 Cal.4th at p. 19, quoting People v. Carpenter, supra, 15 Cal.4th at p. 393.) The failure to instruct the jury to view defendant's statements with caution has been repeatedly found nonprejudicial where the defendant denies making the statements attributed to him or her. In this case, defendant did not testify or argue that Officer Ponce failed to reflect his admissions accurately; his position was that he never made those statements. "A defendant's simple denials about making the statements, along with uncontradicted testimony about his statements, may support the conclusion that the instructional error was harmless." (People v. Wilson, supra, at p. 19; People v. Dickey, supra, 35 Cal.4th at p. 906 [where there is no conflict in the evidence about the content of the statement, "but simply a denial by the defendant that he made the statements attributed to him, we have found failure to give the cautionary instruction harmless."].)
Not only did defendant deny making the admissions altogether, making the credibility determination obvious to the jury without the need for additional caution, but the jury was orally instructed to consider all defendant's statements with caution. In making the harmless error evaluation, our Supreme Court has explained that we should not overlook that point. "Although this court gives priority to the written version of an instruction when a conflict exists between the written and oral versions, the jury is not informed of this rule. It is thus possible the jury followed the oral instruction." (People v. Wilson (2008) 44 Cal.4th 758, 804.) We therefore find no reasonable probability that inclusion of the cautionary instruction in the written version would have affected the verdict.
Having found any error in withdrawing CALCRIM No. 358 harmless, we do not reach the question of whether the jury must be instructed to view all pretrial statements by defendant, including those that constitute the criminal threat itself, with caution or whether the Zichko holding conflicts with our decision in People v. Ramirez, supra, 40 Cal.App.3d 347. However, we note that Ramirez was not a criminal threats case and the statements at issue did not constitute an element of the charged offense. Rather, in a narcotics prosecution, the police officer testified that the defendant said the heroin "could not be cut up but should be sold as is" in order to support the inference that the defendant was a commercial drug dealer. (People v. Ramirez, supra, 40 Cal.App.3d at pp. 351352.) In Ramirez, we held it was error not to instruct that defendant's statements be viewed with caution despite the People's assertion that those statements were "verbal acts," not admissions. (Id. at p. 352.)
III. Cumulative Error
Defendant contends the "cumulative prejudice flowing from the combination of" ineffective assistance and the other errors asserted rendered defendants trial fundamentally unfair" and violated his constitutional right to a fair trial. (See People v. Hill (1998) 17 Cal.4th 800, 815.) We disagree. To the extent any errors may have occurred during defendant's trial, they "were harmless whether considered individually or collectively. Defendant was entitled to a fair trial, not a perfect one." (People v. Box (2000) 23 Cal.4th 1153, 1214, overruled on a different point in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)
The judgment is affirmed.
KRIEGLER, J. We concur:
ARMSTRONG, Acting P. J.