Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA109363, Roger Ito, Judge.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
A jury found defendant Majed Ali Yazbeck guilty of one count of grand theft. The trial court suspended imposition of sentence and placed defendant on three years formal probation on the condition that he serve 180 days in county jail. Defendant’s sole contention on appeal is the trial court prejudicially erred in instructing the jury with CALCRIM No. 361-that it could consider defendant’s failure, if any, to explain or deny evidence against him in evaluating that evidence. We affirm.
FACTS
Viken Kradjian (Kradjian) owned and operated Kradjian Importing Company (KIC) in Glendale, which distributed and sold cheese shipped from overseas. Once at the harbor, the imported cheese would be taken by truck to Versacold, a cold storage warehouse in Vernon, where it would remain until transported to the KIC warehouse in Glendale for distribution to KIC’s retail clients. Defendant was a KIC driver, who was often assigned to transport cheese from Versacold to the KIC warehouse.
In 2008, Kradjian learned that several pallets of imported cheese were missing from Versacold. Nick Savala (Savala), a private investigator, was hired to look into the thefts. During the investigation, Pedro Vargas (Vargas), a Versacold employee, told Savala that defendant had offered him money for pallets of cheese in January 2009. At Savala’s request, Vargas agreed to befriend defendant, to feign complicity in any thefts defendant orchestrated, and to keep Savala apprised of defendant’s activities.
The calendar year for all dates is 2009, unless otherwise indicated.
Defendant approached Vargas and offered to pay him $2,800 for four pallets of imported cheese stored at Versacold. Vargas agreed to prepare the pallets for defendant to pick up after business hours on February 11. He also agreed to cover the warehouse security cameras as directed by defendant. At around 7:30 p.m., defendant arrived at Versacold and loaded the pallets of cheese onto his truck. He handed Vargas $100, and promised to pay him the balance due after selling the cheese. Savala, who had been alerted by Vargas, was videotaping defendant.
The videotape was played at trial for the jury.
When defendant drove away, he was followed by Savala to Wholesale Produce, a cold storage warehouse, which KIC used for food products other than cheese. As defendant was unloading the pallets, he was arrested by police. A search of defendant’s pockets yielded KIC labels that he had removed from the pallets.
Defendant testified in his defense that he was a trusted employee of KIC and agreed to investigate the thefts of the imported cheese at Kradjian’s request. According to defendant, it was Vargas who was stealing the cheese. He offered to sell defendant several pallets of cheese on January 2. Defendant agreed to buy the cheese and met Vargas at Versacold in an effort to implicate him in the theft; however, Vargas backed out of the sale. Defendant attempted to inform Kradjian about Vargas’s activities, but Kradjian was out of town and could not be reached by telephone. Vargas also begged defendant not to report the proposed sale.
Vargas again offered to sell defendant some imported cheese on February 11. Defendant agreed to buy the cheese on that date, but he decided not to tell Kradjian in advance, believing Vargas may back out of the sale as he did earlier. Defendant testified he loaded the cheese onto his truck and drove it directly to Wholesale Produce on the night of February 11, because he suspected he was being followed by Vargas’s confederates. Defendant believed they were involved in gang activity, and could realize his true intentions if he led them to the KIC warehouse rather than to Wholesale Produce. Defendant also refrained from notifying Wholesale Produce employees that he was being followed, fearing trouble with Vargas’s confederates if the police were contacted. With Kradjian’s knowledge, defendant had stored cheese at Wholesale Products in the past. This time, defendant planned on recovering the cheese from the facility after reporting Vargas’s theft to Kradjian. Defendant removed one label from each pallet to enable Kradjian to identify the stolen pallets later.
Kradjian testified he had asked defendant about the missing cheese, but had never requested him to investigate, and that defendant was never authorized to deliver cheese to Wholesale Produce at any time. Kradjian further testified that defendant did not have permission to pick up the imported cheese from Versacold after hours on February 14; he was not supposed to be there at all that day. The KIC labels that police recovered from defendant were to remain on the pallets until the cheese was to be distributed.
Evidence was introduced that Kradjian spoke to defendant following his arrest and defendant claimed to have never before diverted cheese to Wholesale Produce, although there was evidence to the contrary. Defendant further claimed not to have told Kradjian earlier of his plan to catch Vargas stealing the cheese because he wanted “to surprise” his employer. When Kradjian asked defendant why he had removed the labels from the pallets, defendant had no explanation.
The Wholesale Produce manager reported that four pallets of cheese, valued at $25,900, had been previously found at the facility.
DISCUSSION
Defendant argues the court committed reversible error by instructing the jury with CALCRIM No. 361. Whether or not the trial court erred in charging the jury with the instruction, the error was harmless.
We note at the outset defendant did not object to the giving of CALCRIM No. 361. Nonetheless his claim is reviewable if the alleged error affected his “substantial rights,” as he contends. (Pen Code, § 1259; People v Richardson (2008) 43 Cal.4th 959, 1002; People v. Anderson (1994) 26 Cal.App.4th 1241, 1249 [“Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim--at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.”].)
Pursuant to CALCRIM No. 361, the trial court instructed the jurors that if defendant “failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
Defendant contends the instruction was misplaced because he did in fact offer explanations for the incriminating evidence. Specifically, defendant argues that he testified as to his reasons for not alerting his employer of Vargas’s criminal conduct, for taking the pallets of cheese to Wholesale Produce, rather than to the KIC warehouse, for not having police notified that Vargas’s confederates were behind him, and for removing the KIC labels from the pallets. Although the explanations may have been a little far-fetched, defendant maintains they were consistent with his defense that he only took the cheese as part of his plan to catch Vargas and his confederates in the act of stealing the imported cheese. Accordingly, defendant argues CALCRIM No. 361 was improperly given.
Defendant also complains the trial court failed to provide a reason for the instruction or to undertake a factual inquiry to that effect. “The trial judge [did] not state on the record whether there was a question asked that called for an explanation by [defendant], nor [did] he state whether the [defendant] failed to explain or deny that question. In fact the trial court had already decided to give CALCRIM No. 361 before hearing [defendant]’s testimony.” However, defendant cites no authority which imposes such an obligation on the trial court. We decline to find such an obligation for the first time in a case where the record shows no objection to the instruction being given.
In the People’s view, the instruction was warranted because defendant’s explanations were so bizarre and implausible they effectively amounted to no explanations at all. The People argue defendant’s testimony explaining his failure to inform Kradjian of Vargas’s criminal activities and his own plan to thwart them until after his arrest was contradictory and incredible.
There is decisional authority to support both parties’ positions. As the comment to CALCRIM No. 361 explains, “If the defendant’s denial or explanation is bizarre or implausible, several courts have held that the question whether his or her response is reasonable should be given to the jury with an instruction regarding adverse inferences.” (People v. Mask (1986) 188 Cal.App.3d 450, 455; see also People v. Belmontes (1988) 45 Cal.3d 744, 784, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Roehler (1985) 167 Cal.App.3d 353, 392-393.) For instance, if a defendant elects to testify at trial and there are “logical gaps” in the ensuing testimony, the jury may be instructed with CALCRIM No. 361. (People v. Redmond (1981) 29 Cal.3d 904, 911.)
On the other hand, in People v. Kondor (1988) 200 Cal.App.3d 52, 57, the appellate court stated, “the test for giving the instruction [on the failure to deny or explain evidence] is not whether the defendant’s testimony is believable. [The instruction] is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear.” (Compare People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030 [following former cases] with People v. Lamer (2003) 110 Cal.App.4th 1463 [following Kondor].)
Even if the instruction were improper, it was not prejudicial. Error in giving this instruction is only prejudicial if it reasonably probable a more favorable verdict would have resulted had the instruction not been given. (People v. Saddler (1979) 24 Cal.3d 671, 683; People v. Watson (1956) 46 Cal.2d 818, 836.) CALCRIM No. 361 does not direct the jury to draw an adverse inference and contains other portions favorable to the defense, suggesting when it would be unreasonable to draw the inference and cautioning that the failure to deny or explain evidence does not create a presumption of guilt. (People v. Ballard (1991) 1 Cal.App.4th 752, 756-757 ; see People v. Lamer, supra, 110 Cal.App.4th at pp. 1472-1473.) Moreover, here, the trial court told the jury that not all the instructions were necessarily applicable (CALCRIM No. 200), and advised jurors to follow the instructions that applied to the facts determined by them, thereby “mitigat[ing] any prejudicial effect” related to the giving of CALCRIM No. 361. (People v. Lamer,supra, 110 Cal.App.4th at p. 1472, see also People v. Saddler, supra, 24 Cal.3d at p. 684.) Consequently, if the jury here found that defendant did explain and deny the incriminating evidence, we can assume the jury disregarded CALCRIM No. 361 and defendant suffered no prejudice. (See People v. Yeoman (2003) 31 Cal.4th 93, 139 [jury presumed to understand and follow instructions].)
Although People v. Ballard, supra, 1 Cal.App.4th 752, at page 756, was referring to CALJIC No. 2.62, that instruction is the predecessor of CALCRIM No. 361. The two instructions are sufficiently similar such that Ballard and other cited authorities apply to both. (See People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066-1067.)
Defendant argues that CALCRIM No. 200 did not alleviate the prejudicial effect of CALCRIM No. 361, because it prompted the jury to single out his testimony for adverse scrutiny, “while no instruction was given which mentioned the effect of [Vargas’s] inability to explain the inconsistencies in his story.” Defendant’s argument would have had more traction had the trial court not also given CALCRIM No. 226. That instruction informed the jury it was to decide the credibility of each witness and may believe all, part or none of any witness’s testimony. Additionally, the instruction advised the jury, that in evaluating “each witness[’s]” credibility, it may consider: (1) whether the witness’s testimony was influenced by bias, prejudice, or other factors; (2) whether the witness made a prior consistent or inconsistent statement; (3) the reasonableness of the testimony in light of other evidence; and (4) whether other evidence proved or disproved any fact about which the witness testified.
As given by the trial court here, CALCRIM No. 226 read: “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [¶] How well was the witness able to remember and describe what happened? [¶] What was the witness’s behavior while testifying? [¶] Did the witness understand the questions and answer them directly? [¶] Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] What was the witness’s attitude about the case or about testifying? [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the testimony when you consider all the other evidence in the case? [¶] Did other evidence prove or disprove any fact about which the witness testified? [¶] Has the witness engaged in other conduct that reflects on his or her believability? [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
Finally, the evidence of defendant’s guilt, including the testimony of Vargas, Savala and particularly of Kradjian, as well as defendant’s testimony and contradictory statements, was strong. Thus, it is not reasonably probable that a result more favorable to defendant would have occurred had CALCRIM No. 361 not been given or that the instruction affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Ballard, supra, 1 Cal.App.4th at pp. 756-757.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.