People v. Williams

Opinion

I. Statement of the Case

A jury convicted defendant Anthony Williams of four counts of second degree armed robbery and being a felon in possession of a firearm. (Pen. Code, §§211, 212.5, subd. (c), 12021.1, subd. (a), 12022, subd. (a).)^[1] In addition, the jury found that defendant committed the offenses while on parole for a serious or violent felony, suffered two prior “strike” felony convictions and a prior “serious felony” conviction, and served a prior prison term. (See §§ 667, subd. (a), 667, subds. (b)-(i), 667.5, subd. (b), 1170.12, 1203.085, subd. (a).) The court imposed a total sentence of 32 years as follows: five concurrent 25-year-to-life sentences, one for each offense; consecutive and three concurrent one-year arming enhancements, one for each count of robbery; a consecutive five-year enhancement for the prior “serious felony” conviction; and a consecutive one-year enhancement for the prior prison term. The court also imposed a restitution fine of $5,000 and a criminal justice administration fee of $138 and ordered any money confiscated from him be applied toward his restitution fund fine. The court gave defendant credit for 508 days of actual presentence custody and an additional 75 days of conduct credit, for a total of 583 days.

Defendant filed a timely notice of appeal from the judgment. He claims the court erred in giving standard CALJIC instructions that permitted the jury to infer guilt from his false or misleading statements to police (CALJIC No. 2.03) and from his conscious possession of recently stolen property (CALJIC No. 2.15). He also claims the court erred in imposing a one-year prior-prison-term enhancement and undercalculating the amount of pretrial custody credit to which he was entitled. We agree that the court undercal-culated his custody credit, modify the judgment, and affirm the judgment as modified.

The police dispatcher broadcast information about the robbery, and upon hearing it, Officer Alexander Keller of the San Jose Police Department positioned himself on Blossom Hill about 1.4 miles from Little Caesar’s. At 8:40 p.m., he spotted a white van with three African-American men in the front seat. He attempted to stop it, but the van sped up, turned onto a side street, and began to swerve. It hit the curb a few times, then turned onto another street and slowed down. As it did, the front passenger door opened, and an African-American man jumped out and ran off. According to Keller, this person was about five feet eight to five feet ten inches tall, 20 to 25 years old, and had a shaved head. He was wearing a red and blue plaid Pendleton jacket and was cradling a large bulge under the jacket. He was also holding a handgun.

Keller waited for backup officers, and when they arrived, defendant and a man named Emmanuel Earl Briggs were taken from the van, arrested, and placed in separate patrol cars.^[2] Police searched the van and found a large, blue plaid flannel shirt. Inside a shirt pocket was a Montgomery Ward receipt with defendant’s name on it for a battery. Next to the shirt was a plastic surgical glove. Police also found a black hooded sweatshirt. In searching the surrounding area, police found the plaid jacket worn by the man who fled from the van.

Police brought the victims to the scene, but none could positively identify either suspect. Wolf thought the blue flannel shirt found in the van looked like the one worn by a robber. He also said the two suspects were about the

When booked, defendant had neatly folded $100 bills in his wallet. No such bills were taken from the cash register at Little Caesar’s. Briggs had only $8.36 on him. Police lifted fingerprints and shoe prints from the counter at Little Caesar’s, but none matched defendant’s or Briggs’s. A week after the arrest, police found Wolf’s wallet in a compartment in the back of the van. Five months later, at a lineup, none of the victims could identify defendant as one of the robbers.

The Defense

Defendant testified that he worked for a plumbing company and that the white van was assigned to him.^[3] He explained that on the night of the robbery, he and Briggs went to Montgomery Ward’s for a new car battery but stopped on the way for something to eat at a Carl’s Jr., which is not far from Little Caesar’s. Before they got out of the van, an African-American man opened the passenger side door, pointed a gun at Briggs, and got in. He then ordered defendant to “get the ‘F’ out of there,” directing him onto Blossom Hill. Within minutes, a patrol car started to follow them, and the man ordered defendant to turn. Defendant tried to pull over to the curb once or twice, but the man ordered him to keep going. Moments later, the man went into the back of the van. Defendant thought he was about to be hit or shot and let go of the steering wheel, causing the van to hit the curb. The man then returned to the front, ordered defendant do slow down, and then jumped out and ran.

The police arrived and ordered defendant and Briggs out of the van, handcuffed them, and put them in different patrol cars. Defendant testified that when he was in the patrol car, an officer asked if he knew what was going on. According to defendant, he said he did not know and then told the officer he had just been carjacked, specifically, that “I was going to get a bite to eat at Carl’s Junior, [and a] guy walked up to our van, put a gun in [m'c] my head and told me to drive.”

Later, while he sat in a holding cell, an officer told defendant he was being booked for armed robbery and asked if he had anything to say.

At trial, defendant denied robbing Little Caesar’s, or even knowing where it was located. Defendant admitted that his size and eye color were similar to one of the suspects. He admitted that the blue plaid shirt found in the van belonged to him. And he admitted that he uses surgical gloves for work. However, he did not know about the glove in the back of the van. Defendant also admitted prior convictions for voluntary manslaughter with personal use of a gun and for assault with a gun, arising from the same incident.

Rebuttal

Officer Mike Enoos of the San Jose Police Department testified that he spoke to defendant while defendant was handcuffed in the back of the patrol car. At that time, defendant said that the carjacker had approached him and Briggs as they were walking to Carl’s^[4]

III. CALJIC No. 2.03

In instructing the jury, the trial court gave CALJIC No. 2.03, which allows the jury to consider any “willfully false or deliberately misleading” statement made by a defendant after arrest “as a circumstance tending to prove a consciousness of guilt.”^[5] According to defendant, this instruction allowed jurors to consider his explanation to Officer Enoos about the carjacking as evidence of guilt if they found that it was false or misleading. Defendant points out that he spoke to Enoos before receiving any Miranda^[6] advise-ments. Thus, he claims that giving CALJIC No. 2.03 violated the general rule that prohibits the prosecution from using “xmMirandized” statements to prove guilt. (See Miranda v. Arizona, supra, 384 U.S. 436 .)

Since Miranda, the high court has reexamined, and limited, the sweeping effect of the Miranda rule. (See People v. Simpson (1998) 65 Cal.App.4th 854 , 859 [ 76 Cal.Rptr.2d 851 ], and authorities cited there.) Pertinent here is Harris v. New York (1971) 401 U.S. 222 [ 91 S.Ct. 643 , 28 L.Ed.2d 1 ] (hereafter Harris). In Harris, the court held that although the prosecution may not introduce an unMirandized statement as part of its case-in-chief, it may use such a statement to impeach a defendant’s inconsistent testimony, if he or she elects to testify. The court explained that “[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations.] Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third

In support of its analysis, the court cited Walder v. United States (1954) 347 U.S. 62 [ 74 S.Ct. 354 , 98 L.Ed. 503 ], a Fourth Amendment case, where the court permitted physical evidence, inadmissible in the case-in-chief, to be used for impeachment purposes. In Walder, the court stated, “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. . . . fl[] . . . [T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” (Id. at p. 65 [74 S.Ct. at p. 356].)

In Harris, the court found no “difference in principle” between Walder and the circumstances before it. (Harris, supra, 401 U.S. at p. 225 [91 S.Ct. at p. 645].) The court further opined that the impeachment process provided a “valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” (Ibid. [91 S.Ct. at p. 645].)

In the case before us, defendant testified on direct examination that when he was sitting in the patrol car after his arrest, “[a] police officer came to talk to me. He asked me do I know what was going on. I told him no. [I] told him I just got carjacked. I was going to get a bite to eat at Carl’s Junior, [and a] guy walked up to our van, put a gun in [sic] my head and told me to drive.” It is undisputed that this statement to Officer Enoos was xmMirandized. The issue, therefore, is whether the Miranda rule prohibits an instruction that allows the jury to draw an inference of guilt from a willfully false or deliberately misleading xmMirandized statement that the defendant voluntarily introduces into evidence on direct examination.^[8]

Miranda and Harris address the circumstances under which the prosecution may introduce a defendant’s xmMirandized statement. Neither case

The analysis and policy considerations that prompted the court in Harris to permit the use of an unMirandized statement for impeachment apply with equal force here. As Harris explains, a defendant has no right to commit perjury at trial without the risk of being subjected to a traditional form of impeachment via prior inconsistent statements. Thus, a defendant ought not be able to use the Miranda rule as a shield to protect perjurious, exculpatory trial testimony from impeachment by a prior inconsistent unMirandized statement.

Similarly, we do not believe a defendant may introduce his or her own false statement, whether or not obtained in violation of Miranda, presumably to bolster his or her defense, and escape the inherent risks associated with any other evidence presented by the defense, among them, the risk that a prior false statement may be the basis for an inference of^[9] Deliberately false statements to the police about matters that are within an arrestee’s knowledge and materially relate to his or her guilt or innocence

Moreover, even if there were such a reasonable likelihood, we would find any prejudice from the instructional ambiguity harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18 , 24 [ 87 S.Ct. 824 , 828, 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ]; cf. People v. Torrez, supra, 31 Cal.App.4th 1084 [any error in giving CALJIC No. 2.13 harmless beyond a reasonable doubt].) The detail about where the carj acker approached defendant and Briggs constituted an insignificant part of defendant’s version of events. There was no reasonable basis for a juror to find that defendant deliberately lied about the detail but otherwise told the truth about what happened. On the contrary, if the jury found the detail false, it would be because it found the whole story was false. Moreover, the jury was properly allowed to draw an inference of guilt from defendant’s testimony and properly allowed to consider the detail and defendant’s two prior felony convictions in determining his credibility. Under the circumstances, the prejudicial impact of an improper inference of guilt drawn from the detail would, in our view, be imperceptible.^[10]

IV. CALJIC No. 2.15

As noted above, police found Arturo Wolf’s wallet in the back of defendant’s van. At trial, the court gave CALJIC No. 2.15, which allows an inference of guilt if the jury finds that (1) a defendant had “conscious possession of recently stolen property” and. (2) there is additional corroborating evidence of guilt. Defendant notes that he testified to the effect that the carj acker must have hid the wallet in the back of the van. Relying primarily on People v. Morris (1988) 46 Cal.3d 1 [ 249 Cal.Rptr. 119 , 756 P.2d 843 ], defendant contends it was error to give CALJIC No. 2.15 because there was conflicting evidence about whether he had conscious possession of Wolf’s wallet—i.e., knowing dominion and control. This claim is meritless.

In Morris, a witness testified that the defendant looked like the man who presented a particular credit card, which, other evidence revealed, the victim

As defendant correctly observes, there was conflicting evidence on the issue of his conscious possession of the wallet: either he stole it or he was unaware that the carj acker had stashed it in the van. However, unlike the instruction in Morris (and Rubio), the court’s instruction here was not “unqualified” in a way that might imply that defendant did in fact possess Wolf’s wallet. Rather, the instruction permitted an inference of guilt only if the jury first found that defendant was in conscious possession of the wallet and there was additional corroborating evidence of guilt. Moreover, the court later warned the jury against inferring the existence of any fact from either its instructions or statements and directed the jury to disregard instructions that were applicable only to a certain state of facts if it did not find that state of facts to be true. (See CALJIC Nos. 17.30 and 17.31.) Under the circumstances, we find no reasonable likelihood that the jury would have thought it could infer guilt even if it believed defendant’s version of events. (See Estelle v. McGuire, supra, 502 U.S. at p. 72 [112 S.Ct. at p. 482]; People v. Cain, supra, 10 Cal.4th at p. 36.) Thus, the court properly gave CALJIC No. 2.15. Moreover, given the court’s cautionary instructions, we would find any potential misunderstanding harmless. (See People v. Morris, supra, 46 Cal.3d at p. 41 [finding the error harmless].)

V. Prior Prison Term Enhancement^[12]

Defendant contends the court erred in imposing a one-year prior-prison-term enhancement based on the period of time he spent at the California Youth Authority (CYA). We disagree.

The record reveals that the enhancement was based on a 1989 conviction for assault with a firearm defendant committed when he was 18 years old. At sentencing, the court imposed a three-year term for the assault and stayed it. The abstract of judgment states, “Recommend housing at CYA pursuant [to Welfare and Institutions Code] § 1731.5.” It also states, “Defendant is remanded to the custody of the sheriff, to be delivered[] upon acceptance by CYA [to the] California Youth Authority.” In October 1989, defendant was accepted and received by CYA, where he remained until he was paroled in 1995.

When defendant was sentenced for the assault, section 1731.5, subdivision (a), authorized the trial court to directly commit persons who, when arrested, were under 21 years old, to CYA. (See Stats. 1987, ch. 354, § 1, pp. 1466-1467.) Section 1731.5, subdivision (c), permitted the Director of Corrections to transfer persons under 21 years old to CYA. That section also permitted the court to order that such persons be housed at CYA for the duration of their prison term. In pertinent part, the section provided, “In sentencing a person under the age of 21 years, the court may order that the person shall be transferred to the custody of the Youth Authority pursuant to this subdivision. When the court makes such an order and the Youth Authority fails to accept custody of the person, the person shall be returned to court for resentencing. The transfer shall be solely for the purposes of housing the inmate, allowing participation in the programs available at the institution by the inmate, and allowing Youth Authority parole supervision of the inmate, who, in all other aspects shall be deemed to be committed to

It is settled that a direct commitment to CYA under section 1731.5, subdivision (a), in lieu of a prison term is not a “prior prison term” for the purposes of enhancement under Penal Code section 667.5, subdivision (b). However, a transfer to CYA for housing either by the court at sentencing or later by the Director of Corrections under section 1731.5, subdivision (c) is a “prior prison term.” (People v. Seals (1993) 14 Cal.App.4th 1379 , 1382-1385 [ 18 Cal.Rptr.2d 676 ].)

The record here reveals that in 1989, the trial court did not commit defendant directly to the CYA in lieu of a prison term. Rather, it imposed a prison term and then, under the authority of section 1731.5, subdivision (c), ordered that defendant be immediately transferred to CYA for “housing.” Thus, defendant’s CYA commitment was a “prison term” within the meaning of Penal Code section 667.5, subdivision (b), and the court below properly imposed a one-year enhancement.

Defendant cites the, current version of section 1731.5, subdivision (c), under which, the Department of Corrections may transfer a person under the age of 18 years to the CYA for housing. He argues that this section was inapplicable because he was over 18 when sentenced and the record contains no transfer by the Department of Corrections. Thus, it follows that he must have been committed to the CYA under subdivision (a). This argument is meritless. Defendant was sentenced under the former version of section 1731.5 quoted above, which applied to those under 21 years of age. Moreover, as noted above, transfer to the CYA may be ordered not only by the Department of Corrections after a- defendant is sent to prison but also in the first instance by the court at sentencing.

Defendant contends that because his current offenses were not “violent” offenses within the meaning of section 667.5, subdivision (c), the amount of presentence conduct credit to which he was entitled should have been calculated pursuant to Penal Code section 4019, rather than section 2933.1, which limited credit to 15 percent of actual time. Under section 4019, he

The People agree with defendant that section 4019 governs the calculation of credit in this case and concede that he is entitled to 254 days of credit. (See People v. Thomas (1999) 21 Cal.4th 1122 , 1130 [ 90 Cal.Rptr.2d 642 , 988 P.2d 563 ].) We also agree and modify the judgment accordingly.

The judgment is modified to give defendant credit for 508 days of actual custody and 254 days of good conduct credit for a total of 762 days. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a copy of the amended abstract to the Department of Corrections.

Bamattre-Manoukian, Acting P. J., and Mihara, J., concurred.

Appellant’s petition for review by the Supreme Court was denied August 9, 2000. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.