Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF116942A. John I. Kelly, Judge.
Terry R. Kolkey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Appellant Augustine Mejia appeals from the judgment entered following a jury trial in which he was convicted of possessing methamphetamine for sale (Health & Saf. Code, § 11378; count 1), resisting, delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1); count 2), and possessing a device used for unlawfully injecting or smoking a controlled substance (Health & Saf. Code, § 11364; count 3). The trial court found that appellant had previously been convicted of a violation of Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2, subd. (c)) and served a prior prison term (Pen. Code, § 667.5, subd. (b)). Appellant was sentenced to six years in prison. Appellant contends (1) the trial court erred in instructing the jury with CALJIC No. 2.03, and (2) the trial court made comments to the jury that coerced the verdict, in violation of appellant’s right to due process. Finding no reversible error, we affirm.
FACTS
On November 9, 2006, Sheriff’s Deputy Robert Contreras went to a residence on Kentucky Street in Kern County to conduct a follow-up investigation of a robbery which had occurred the previous month. Deputy Contreras observed appellant outside the residence. Appellant told the deputy he was there performing yard work. However, Deputy Contreras did not see any tools or equipment for yard work.
Deputy Contreras returned to the Kentucky Street residence the following day. Again, he encountered appellant and appellant told him he had just finished gardening work at the residence. Appellant was carrying a nylon bag. Deputy Contreras asked appellant if he could search the bag and appellant agreed. Inside the bag, the deputy found a glass pipe, documents bearing appellant’s name, and a plastic container with compartments resembling a toolbox. In one of the corner compartments, Deputy Contreras noticed several baggies. Based on the manner of packaging, he suspected they contained methamphetamine.
Deputy Contreras also testified that after his first encounter with appellant, he learned that appellant was on probation and subject to search conditions for narcotics and paraphernalia.
Noticing a bulge in one of appellant’s front pockets, Deputy Contreras asked appellant if he could search him. Appellant agreed. Appellant had in his pocket $230 in cash, consisting of twenty-five $1 bills, nine $5 bills, four $10 bills, and six $20 bills. Appellant explained to Deputy Contreras that he had just been paid for doing yard work.
Deputy Contreras tried to place appellant under arrest but “within two seconds [appellant] took off running.” After chasing appellant for a short time, Deputy Contreras returned to secure the items he had located during his search of appellant. The plastic container inside appellant’s nylon bag was determined to contain nine plastic baggies (or “bindles”) of methamphetamine. Contreras opined that the methamphetamine was possessed for purposes of sale rather than personal use. The parties stipulated that appellant knew methamphetamine was a controlled substance, and that appellant knew the object, instrument, or paraphernalia was used for unlawfully injecting or smoking a controlled substance.
On November 15, 2006, Deputy Contreras returned to the Kentucky Street residence and saw appellant in the back yard. He walked up to appellant and placed him under arrest. After he advised appellant of his Miranda rights, appellant agreed to speak with him. First, Deputy Contreras asked appellant why he did not run that day. Appellant replied that “he didn’t do anything.” Deputy Contreras then asked appellant if he sold drugs to kids. Appellant said no. Deputy Contreras further questioned, “So you only sell to adults?” Appellant initially answered yes but moments later qualified his answer by saying that “if he sold drugs, it would be to adults.”
Miranda v. Arizona (1966) 384 U.S. 436.
The defense
Blanca Macias testified that on two occasions in November she paid appellant “to get rid of some garbage.” On the first occasion she gave him $90. The second time she gave him $80.
Israel Matthew Vargas testified that he had a business for which he hired appellant to do various jobs. Vargas explained: “He’s my helper basically because we do landscaping, and sometimes we do just basic gardening, demolition, haul-aways.” According to Vargas, during the first week of November 2006, they “did a little bit of cleanup on Kentucky, and then we did also a sprinkler job in Taft.” Vargas agreed to pay appellant $700 for his work but paid him only $400. Vargas confirmed he always paid appellant in cash.
DISCUSSION
I. CALJIC No. 2.03
Appellant contends that the trial court erred by instructing the jury with CALJIC No. 2.03 because there was insufficient evidence that he made willfully false or deliberately misleading statements. We disagree.
The trial court instructed the jury pursuant to CALJIC No. 2.03 as follows: “If you find that before this trial that the defendant made a willfully false or deliberately misleading statement concerning the crime or crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove the guilt, and its weight and significance, if any, are for you to decide.”
“The giving of CALJIC No. 2.03 is justified when there exists evidence that the defendant prefabricated a story to explain his conduct.” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103; see also People v. Jackson (1996) 13 Cal.4th 1164, 1225 (Jackson) [evidence of a defendant’s false or misleading statements to create an alibi before being charged with any crime should be addressed by CALJIC No. 2.03]; People v. Rankin (1992) 9 Cal.App.4th 430, 436 (Rankin) [when there is evidence that a defendant fabricated a story to explain his conduct, a false statement indicates a consciousness of the defendant’s own guilt and is admissible against him].) When questioned by Deputy Contreras regarding his presence at the Kentucky Street residence, appellant twice said he had just performed gardening work, although he did not appear to have any gardening tools or equipment with him, and, on the second occasion, was found to be carrying a bag that contained nine bindles of methamphetamine. These circumstances support a reasonable inference that appellant’s statement that he was at the residence because he had been performing gardening work was fabricated for the purpose of explaining his conduct or deflecting suspicion from himself. Because the instruction had a proper evidentiary basis, it was not error to give it. (People v. Snow (2003) 30 Cal.4th 43, 96-97.)
In his opening brief, appellant focuses solely on his responses to Deputy Contreras’s questions regarding whether he sold drugs to adults or children, and argues these statements were insufficient to justify giving CALJIC No. 2.03 to the jury. Appellant did not file a reply brief, and therefore has not addressed respondent’s assertion, with which we agree, that appellant’s statements claiming to be at the residence to perform gardening work also constituted a sufficient evidentiary basis for CALJIC No. 2.03.
Any error in giving CALJIC No. 2.03, moreover, was harmless, as it was not reasonably probable appellant would have obtained a more favorable result had the instruction not been given. (Rankin, supra, 9 Cal.App.4th at p. 436 [applying People v. Watson (1956) 46 Cal.2d 818, 836 standard of prejudice when court instructed jury under CALJIC No. 2.03].) This instruction leaves to the jury both the factual determination whether the defendant’s statements before trial were false and the significance, if any, of the false statements. (People v. Williams (2000) 79 Cal.App.4th 1157, 1168 [CALJIC No. 2.03 requires first that the jury find defendant’s statement willfully false or deliberately misleading and then “does not ascribe any particular importance to the evidence but permits the jury to decided what weight or significance, if any, should be given the false statement”]; see also Rankin, supra, 9 Cal.App.4th at p. 436 [inference of guilt suggested by CALJIC No. 2.03 is a permissive one].) It also tells the jury that evidence of prior statements by the defendant that were willfully false or deliberately misleading is not sufficient to support a conviction. (Williams, supra, 79 Cal.App.4th at p. 1168 [CALJIC No. 2.03 “expressly forbids the jury from basing a conviction solely on the fact that the defendant made a false statement”].) To that extent, the instruction would tend to benefit a defendant by warning the jury that evidence that otherwise might be considered highly incriminating is not, by itself, sufficient to prove guilt. (Jackson, supra, 13 Cal.4th 1164, 1224 [“cautionary nature of the [consciousness-of-guilt] instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory”].) Finally, the jury was instructed under CALJIC No. 17.31 to disregard any instruction that applies to facts it had determined did not exist. Had the jury determined appellant did not make willfully false or deliberately misleading statements before trial, it simply would have found CALJIC No. 2.03 inapplicable and disregarded it. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [“we and others have described the presumption that jurors understand and follow instructions as ‘[t]he crucial assumption underlying our constitutional system of trial by jury’”].)
II. Alleged Jury Coercion
Appellant contends the trial court committed reversible error by making comments that coerced the jury’s verdict, in violation of his right to due process. We reject appellant’s contention.
On Friday, February 16, 2007, the last day of appellant’s trial, the trial court addressed the following comments to the jury:
“Unfortunately, there has been a change in schedule for today. There is a death in one of the close family members of one of the attorneys, and it was not known until yesterday late after you had gone.
“So I have arranged with the attorneys -- and the defendant was here a little earlier -- to have this matter proceed at 1:30 this afternoon so that we can accommodate the family’s funeral services that are scheduled this morning at 10:00.
“So I am also assured by counsel that the proceeding will be very short as far as one additional short witness, and then we’ll have closing instructions from the attorneys, and I will instruct you, and you will commence your deliberations this afternoon. I am not sure that that is going to require a lot of time, but I would hope that by the end of today you will have completed your task as jurors.
“So I am going to excuse you until 1:30 here. Don’t make up your mind about anything, folks. See you at 1:30.” (Italics added.)
Appellant now contends the trial court’s italicized comments were “improper, biased, and coercive” because they “strongly suggested that either the evidence was so one-sided as to require little consideration or that the case was not important enough to spend time on.” In support of his contention, appellant relies on People v. Anderson (1990) 52 Cal.3d 453 (Anderson), a capital case in which the defendant was convicted of murder and burglary, with a felony-murder special circumstance, after he fatally shot an elderly woman during the burglary of her home. (Id. at pp. 464-465.) On appeal, the defendant argued that the trial court made comments that effectively directed the jury to find true the felony-murder special-circumstance allegation. (Id. at p. 469.) Specifically,
“The [trial] court at one point noted its ‘reasonable expectation’ that deliberations would commence on Thursday, December 19, that ‘very likely’ a special circumstance verdict would be reached on that day, and that any further deliberations, if needed, would take place the following day in view of the forthcoming holiday recess. Thereafter, prior to closing arguments, the court indicated the issue of defendant’s intent to kill was a ‘fairly simple question,’ and stated that presumably a verdict would be reached within two or three hours.” (Ibid.)
After first concluding the defendant waived any claim of error based on the trial court’s remarks by failing to object, our Supreme Court acknowledged, “On the merits, the court’s statements do approach the kind of coercive conduct deemed improper in prior cases.” (Anderson, supra, 52 Cal.3d at p. 469.) “‘A trial judge should refrain from placing specific time pressure on a deliberating jury and should never imply that the case warrants only desultory deliberation. Such comments risk persuading legitimate dissidents, whatever their views, that the court considers their position unreasonable.’ [Citation.]” (Ibid.) The court went on to observe, “Here, of course, the jury had not yet commenced its deliberations and no ‘dissidents’ had yet voiced their concerns. Nonetheless, we think trial judges should avoid any potentially coercive ‘predictions,’ at any stage of the trial, concerning the ease with which the jury should decide the case or particular issues.” (Ibid.) Following these observations, the court noted that any alleged error was “necessarily harmless in light of People v. Anderson [(1987)] 43 Cal.3d 1104” and it was “not reasonably possible the court’s remarks, directed to the special circumstance issue, could have affected the jury’s penalty decision.” (Anderson, supra, 52 Cal.3d at p. 469.)
In People v. Anderson, supra, the court “held that intent to kill need be charged and proved for a felony-murder special circumstance only where the defendant was an aider and abettor to the homicide and not the actual killer. (43 Cal.3d at pp. 1138-1147.)” (Anderson, supra, 52 Cal.3d at p. 466.)
Appellant acknowledges that, like the defendant in Anderson, he failed to object to the trial court’s comments but contends the issue should be addressed in this appeal because an objection or admonition would have been futile. Appellants asserts that “once the court had expressed its opinion that the case required little time for a decision, an admonition by the court would not have cured the harm already done” but “would have only highlighted the improper comments.” We disagree that the court’s brief comments were so suggestive or potentially coercive that an admonition would not have cured the harm they assertedly caused. Because he did not object to the trial court’s comments, appellant waived his challenge on appeal.
Despite waiver of this issue, we review the propriety of the trial court’s comments because appellant contends his trial counsel was ineffective for failing to object. To establish ineffective assistance of counsel, appellant must show, by a preponderance of the evidence, that his counsel’s representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel’s errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) In determining whether counsel’s performance was deficient, we exercise deferential scrutiny and “assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.” (Ledesma, supra, 43 Cal.3d at p. 216.) We presume that counsel’s conduct fell within the wide range of reasonable professional assistance and tactical errors are generally not deemed reversible. (People v. Maury (2003) 30 Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance “if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation.” (People v. Burgener (2003) 29 Cal.4th 833, 880.)
The record here reveals the trial court made its comments at the beginning of the last day of trial while addressing a schedule change to allow one of the attorneys to attend a funeral in the morning. The court repeated assurances by the attorneys that the afternoon’s proceedings would be short and then briefly described what would follow after the testimony of the one remaining witness. When viewed in context, we do not think the court’s next remark (“I am not sure that that is going to require a lot of time, but I would hope that by the end of today you will have completed your task as jurors”) necessarily had a coercive connotation. In light of the court’s focus on the anticipated brevity of the afternoon’s proceedings, based largely on the attorneys’ representations to the court, defense counsel could reasonably have interpreted the court’s comments as merely an attempt to reassure jurors that they would not be excessively inconvenienced by the unexpected disruption of the morning’s proceedings, rather than to place any time pressure on the jury or to imply the case deserved minimal attention. Moreover, unlike the trial court in Anderson, the court here did not comment on any particular issue in the case or suggest it would only require a short period of time to resolve. Accordingly, appellant has failed to demonstrate his trial counsel was deficient in failing to object to the court’s comments.
However, even assuming the trial court’s comments contained “potentially coercive ‘predictions,’” the record demonstrates that it is not reasonably probable the comments affected the outcome of the trial. (Anderson, supra, 52 Cal.3d at p. 469.) When appellant’s trial resumed in the afternoon, the court made no further comments regarding how long it might, or ought to, take for the jury to reach a verdict. The court also gave instructions that warned against jurors against taking cues from the court and admonished jurors that their individual opinions were required. Finally, when the jury indicated it had reached a verdict at 4:45 p.m., after only 35 minutes of deliberations, the trial court specifically asked the foreperson, “Have you had sufficient time to do so or were you so rushed that you had a difficult time?” The foreperson responded, “We had sufficient time to do so.” On this record, there is no indication the jury was directly affected by the court’s earlier prediction that the jury was likely to have fulfilled its obligations by the end of the day. Because appellant has not shown it is reasonably probable a more favorable determination would have resulted but for the trial court’s comments, it necessarily must follow that appellant cannot meet the second prong of the test for ineffective assistance of counsel based on trial counsel’s failure to object. (People v. Price (1991) 1 Cal.4th 324, 440.)
The trial court thus instructed the jury: “I have not intended by anything I have said or done or by anything -- any question that I may have asked or by any rulings I may have made to intimate or suggest what you should find to be the facts or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion. [¶] … [¶] If anything I have said or done seems to have indicated an opinion, disregard it and make your own decision as to what the facts are in this case. [¶] The People and the defendant are entitled to the individual opinion of each juror.”
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., DAWSON, J.