PEOPLE v. ELLIOTT

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Andre Marquis ELLIOTT, Defendant and Appellant.

No. B093601.

Decided: July 23, 1996

John Doyle, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

A jury found appellant guilty of three counts of robbery 1 (Pen.Code, § 211;  statutory references, unless otherwise noted, are to the Penal Code) and found true three principal-armed-with-a-firearm allegations.   Appellant was sentenced to a five-year state prison term.

Appellant contends the trial court erred in two instructions:  (1) evidence of an oral admission should be viewed with caution (CALJIC No. 2.71) and (2) by defining reasonable doubt only in terms of “an abiding conviction.”  (CALJIC No. 2.90 (1994 rev.).)

We find no error and affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On August 11, 1994, at about 8:50 a.m.   three Black men 2 entered U.S. Rentals on Firestone Boulevard in Downey, inquired about renting a trailer and then, at gunpoint, robbed the employees.   The robbers fled, ran to a waiting car, and left the scene but were followed by other employees in a truck.   The police soon joined the chase.   The robbers stopped, abandoned their vehicle, fled on foot, and were soon separately arrested.

Four victims positively identified appellant as the robber who had the bandage on his right hand and who wore white Reeboks with a blue stripe.   Appellant was the registered owner of the getaway car.

Neither appellant nor his codefendants testified.

DISCUSSION

1. Appellant contends the trial court erred in instructing the jury “evidence of an oral admission ... should be viewed with caution.”  (CALJIC No. 2.71.)

The prosecutor presented—or attempted to present 3 —evidence of appellant's extrajudicial statements.   Those statements were both inculpatory and exculpatory.

Detective Morrow testified appellant had stated he was present at U.S. Rentals, inquired about renting a vehicle, was asked for identification and then, when he saw his companions were going to commit a robbery, he departed.

This exculpatory statement (that he didn't know there was going to be a robbery and departed when the robbery began) was appellant's entire defense.   Accordingly, his counsel (and counsel for codefendant Ronald Avery) urged the trial court to omit the “view with caution” language in the last sentence of CALJIC No. 2.71.   The prosecutor and counsel for codefendant Kevin Avery urged the trial court to include that language.   The trial court instructed the jury:

“An admission is a statement made by defendant Elliott other than at his trial which does not by itself acknowledge his guilt of the crime(s) for which such defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.

“You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part.   If you should find that the defendant did not make the statement, you must reject it.   If you find that it is true in whole or in part, you may consider that part which you find to be true.

“Evidence of an oral admission of a defendant should be viewed with caution.”  (CALJIC No. 2.71.)

Appellant contends it was error to give this “view with caution” instruction because “both parties to the conversation agree[d] in open court that the defendant made the statement․” 4 Appellant also argues the instruction “cuts into the reasonable doubt standard” and undercut the instruction that “no adverse inference can be drawn from a defendant's failure to testify.”  (CALJIC No. 2.60.)

Appellant's contention is without merit.

 It is undisputed there was evidence of an oral admission by appellant.5  Accordingly, the trial court had a sua sponte duty to instruct the jury to view such admission with caution.  (People v. Stankewitz (1990) 51 Cal.3d 72, 94, 270 Cal.Rptr. 817, 793 P.2d 23;  People v. Marks (1988) 45 Cal.3d 1335, 1346, 248 Cal.Rptr. 874, 756 P.2d 260;  People v. Beagle (1972) 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Ford (1964) 60 Cal.2d 772, 799, 36 Cal.Rptr. 620, 388 P.2d 892;  People v. Franco (1994) 24 Cal.App.4th 1528, 1541, 30 Cal.Rptr.2d 478.)

Although this disposes of appellant's contention we believe it useful to illuminate some of the confusion involved with CALJIC No. 2.71.   We begin with the instruction.   It bears the caption “ADMISSION—DEFINED” and reads:  “An admission is a statement made by [a] [the] defendant other than at [his] [her] trial which does not by itself acknowledge [his] [her] guilt of the crime(s) for which such defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.

“You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part.   If you should find that the defendant did not make the statement, you must reject it.   If you find that it is true in whole or in part, you may consider that part which you find to be true.

“[Evidence of an oral admission of [a] [the] defendant should be viewed with caution.]”

First, the definition excludes inculpatory statements testified to by a defendant.   This definition violates both common 6 and legal usage.7  We commonly speak of a defendant “admitting” a prior felony conviction allegation or “admitting” (by his testimony) he shot the victim—but in self-defense.   On cross-examination, a prosecutor seeks to extract “admissions” from a defendant.8

Second, the “definition” suggests that an all-encompassing “admission” is not an “admission” at all.   Jurors instructed only by CALJIC No. 2.71—not 2.70 (which defines a confession and contrasts it with an admission)—would be obliged to consider “a statement ․ acknowledg[ing] ․ guilt ․” as not an admission.9

Third, the definition fails to define.   Rather than straightforwardly stating an admission is an acknowledgment by a party of a relevant fact, it states what an admission is not (it is not a confession).   The “definition” then requires one to “consider[ ] the rest of the evidence” to determine if the statement “tends to prove ․ guilt.”   If it does, it is an admission.   If not, it isn't.10

Fourth, the definition misleadingly states that if a statement is an admission it “tends to prove ․ guilt.”   This example is illustrative.   A robber fled in a white sedan.   Defendant admitted owning a white sedan.   There was no other evidence of his guilt.   In such circumstances it would be misleading to instruct the jury that the admission “tends to prove ․ guilt.” 11

Fifth, after informing the jury they determine whether the defendant made the statement and whether the statement is true, the instruction issues this superfluous command:  “If you should find that the defendant did not make the statement, you must reject it.”

Sixth, it erroneously implies a false statement cannot be considered (“․ you may consider that part which you find to be true ”).   CALJIC No. 2.03 states the opposite (“․ a willfully false ․ statement ․” may be considered as “a consciousness of guilt.”)

Seventh, the instruction directs the jury to “view with caution” not oral statements of a defendant but only “oral admissions.” 12  Why the distinction?

The reasons for the “view with caution” admonition would appear to apply to all oral statements.  “This kind of testimony is considered dangerous, first, because it may be misapprehended by the person who hears it;  secondly, it may not be well remembered;  thirdly, it may not be correctly repeated.”   (People v. Gardner (1961) 195 Cal.App.2d 829, 832, 16 Cal.Rptr. 256;  see also People v. Bemis (1949) 33 Cal.2d 395, 399, 202 P.2d 82 [“ ‘It is a familiar rule that verbal admissions should be received with caution and subjected to careful scrutiny, as no class of evidence is more subject to error or abuse.   Witnesses having the best motives are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used.   No other class of testimony affords such temptations or opportunities for unscrupulous witnesses to torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.’ ”];  People v. Beagle, supra, 6 Cal.3d 441, 456, 99 Cal.Rptr. 313, 492 P.2d 1 [“The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.”];   3 Witkin, Cal. Evidence (3d ed.1986) § 1773, “Oral Admissions,” pp. 1725–1726.)

But appellate decisions are not in agreement concerning what oral statements should be viewed with caution.   Suppose an officer testifies the defendant made inculpatory oral statements and the defendant testifies he made not inculpatory but exculpatory oral statements.   What testimony should the jury view with caution?   If, as 2.71 directs, only oral “admissions” should be viewed with caution, should the jury be suspicious of the officer's testimony but not the defendant's?  (See People v. Carswell (1959) 51 Cal.2d 602, 608–609, 335 P.2d 99.)

If a defendant's statement is not offered for its truth People v. LaSalle (1980) 103 Cal.App.3d 139, 149–153, 162 Cal.Rptr. 816 (disapproved on other ground by People v. Kimble (1988) 44 Cal.3d 480, 498, 244 Cal.Rptr. 148, 749 P.2d 803) holds it cannot be an “admission” within the meaning of CALJIC No. 2.71.  People v. Mendoza (1987) 192 Cal.App.3d 667, 238 Cal.Rptr. 1 and People v. Brackett (1991) 229 Cal.App.3d 13, 280 Cal.Rptr. 305 disagree.   Mendoza concludes a false statement by defendant (not offered for its truth) should be viewed with caution.  Brackett requires that even evidence of oral statements uttered during the crime must be viewed with caution.

People v. Beagle, supra, 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1 holds the “view with caution” requirement applies to pre-offense statements (id. at p. 455, fn. 5, 99 Cal.Rptr. 313, 492 P.2d 1;  see also People v. Ford (1964) 60 Cal.2d 772, 799, 36 Cal.Rptr. 620, 388 P.2d 892) but People v. Stankewitz, supra, 51 Cal.3d 72, 93–94, footnote 8, 270 Cal.Rptr. 817, 793 P.2d 23 is not sure that it does.

Finally, People v. Bacigalupo (1991) 1 Cal.4th 103, 129, 2 Cal.Rptr.2d 335, 820 P.2d 559 makes clear that when there is evidence of both inculpatory and exculpatory defendant statements, CALJIC No. 2.71 instructs the jury to view with caution only the inculpatory statements.

If we have illuminated some of the confusion involved with CALJIC No. 2.71 how may that confusion be eliminated or reduced?   We have these suggestions.

1. Omit a definition of “admission” and omit any reference to an admission.   Both are unnecessary.

2. Omit the entire second paragraph—it is unnecessary, redundant of other instructions, and misleading.

3. If there is evidence of an oral statement which case law requires be viewed with caution, the jury should merely be instructed to “view with caution evidence of [such extrajudicial] oral statements.”

CALJIC No. 2.71 is not unique.   Like many CALJIC instructions, it is an unexamined accretion preserved not by usefulness but by antiquated fiat.   If there was a time when it was necessary to specially caution jurors that unrecorded, oral statements “may be misapprehended ․ may not be well remembered ․ [and] may not be correctly repeated” (People v. Gardner, supra, 195 Cal.App.2d at p. 832, 16 Cal.Rptr. 256)—that time has long passed.

In fact, it may be time to freshly and completely re-examine CALJIC.

2. Appellant contends the trial court erred by defining reasonable doubt only in terms of “an abiding conviction.”

 As recommended by People v. Freeman (1994) 8 Cal.4th 450, 504, 34 Cal.Rptr.2d 558, 882 P.2d 249 the trial court omitted “moral certainty” from its reasonable doubt instruction.  (CALJIC No. 2.90 (1994 rev.).)   Appellant claims error.   We disagree.

We cannot say that by faithfully following the explicit direction of our Supreme Court the trial court erred.  (See People v. Light (1996) 44 Cal.App.4th 879, 884–889, 52 Cal.Rptr.2d 218.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Appellant was found not guilty of two counts of robbery.

2.   Appellant was tried with Kevin Avery and Ronald Avery.   Kevin Avery was also convicted of three counts of robbery and filed an appeal.   His request to withdraw his appeal was granted.   Ronald Avery was found not guilty.

3.   The prosecutor, for example, examined Detective Morrow as follows:“Q. Did he [appellant] indicate to you whether he went to a location called U.S. Rentals?“A. Yes.“Q. And did he indicate to you whether he entered that particular store?“A. Yes.“Q. Did he indicate to you whether he talked to—[Objection by defense counsel.   Bench conference.   Prosecutor resumed the examination.]“Q. Now, did Mr. Elliott [appellant] indicate to you prior to going to U.S. Rentals whether he drove his own vehicle at some point?“A. Yes.“Q. Did he indicate to you, Detective, that at some point another person began to drive the car?“A. Yes.“Q. Did he indicate to you whether that other person actually drove the car to the U.S. Rental location?“A. Yes.“Q. Now, sir, did he also indicate to you whether he talked to a rental clerk that he did not know inside U.S. Rentals?“A. Yes.” (Italics added.)Since such questions asked only what appellant “indicated,” the answers did not disclose anything appellant actually said.Additionally, by injecting “whether ” into the questions, the witness was not asked about the substance of appellant's statements but only their subjects.   For example, the witness's answer to the first question (“Did he [appellant] indicate to you whether he went to a location called U.S. Rentals?”) would be the same (“Yes”) if appellant had stated he had or had not gone there.   In either event, he had indicated whether he had gone there.

4.   There was no such “agreement.”   Detective Morrow merely testified to his recollection of appellant's statements.   Appellant did not testify and the parties did not enter into any stipulation or “agreement.”

5.   Detective Morrow testified appellant admitted being present at the U.S. Rentals robbery and being the registered owner of the robbery getaway car.

6.   Webster's Third New International Dictionary (Unabridged 1981) defines admission as:  “The granting of an argument or position ․:  the act of acknowledging something asserted:  acquiescence or concurrence in the truth of an allegation.”

7.   Black's Law Dictionary (6th ed.1990) defines admissions as “Confessions, concessions or voluntary acknowledgments made by a party of the existence of certain facts ․ statements by a party ․ of the existence of a fact which is relevant to the cause of his adversary.”“A voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action.”Ballentine's Law Dictionary (3d ed.1948) defines an admission as “A statement of a party ․ inconsistent with his claim or position․”

8.   The publishers of the Evidence Code contribute to the confusion by entitling Chapter 2, Article 1 “CONFESSIONS AND ADMISSIONS” and captioning section 1220 “Admission of party” when the subject is only statements of a party offered against him.   A “statement” is defined by Evidence Code section 225 (“oral or written expression ․”) and is content neutral.

9.   This result is the product of 2.71 simply adopting appellate language used to distinguish admissions from confessions, not to define admissions.  (See, e.g., People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620, disapproved on other grounds by People v. Cahill (1993) 5 Cal.4th 478, 494, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

10.   Do we really expect a juror to “consider” six months or nine months worth of evidence before determining whether a statement is an “admission”?

11.   “And, conversely, wrong to instruct then the statement is not an admission.

12.   Compare CALJIC No. 2.71.7, which requires pre-offense oral statements of intent, plan, motive, or design be viewed with caution, with CALJIC No. 2.03, which omits such a requirement concerning willfully false statements.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur: