PEOPLE v. WOODS

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. David Jonathan WOODS, Defendant and Appellant.

No. A041136.

Decided: August 24, 1989

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., David Rose, Deputy Atty. Gen., for plaintiff and respondent. Catherine Ellis, El Sobrante, for defendant and appellant.

Appellant was found guilty after jury trial of burglary (count I, Pen.Code, § 459);  petty theft with a prior conviction (count II, Pen.Code, § 666);  and robbery (count III, Pen.Code, § 211).  [[/]]

The evidence adduced at trial was not in significant dispute and may be summarized as follows.

On August 15, 1987, Mark Bruner and his brother Michael 1 were operating a hot dog stand in front of the Alpha Beta market in Napa to raise money for a preschool attended by Mark's daughter.   Mark was a part-time employee of Alpha Beta, but the Bruners' hot dog stand was not connected with the store.

At around 6 p.m., the Bruners observed appellant leave the Alpha Beta market.   According to Michael:  “He had a large bulge in his pants and he had his hands in the groin area where the bulge was, and it just looked abnormal.”   Appellant walked to his car in the parking lot.   Mark saw him “take a bottle out of his pants” and lay it on the floorboard of his car.

Appellant returned to the market.   Mark followed to report the apparent theft to Kevin Hunkins, another employee of Alpha Beta.   Meanwhile, appellant went to the liquor department where Mark saw him take two bottles of liquor from the shelf and put them in his pants.   Without paying for the liquor, appellant left the store followed closely by Mark.

Kevin was already waiting outside.   He confronted appellant and asked him to “step back into the store.”   When appellant said, “who are you,” Kevin identified himself as a store employee.   Appellant “just kept trying to walk around” or “push his way around” Kevin, who repeatedly stepped in front of him to block his path.   Mark testified that appellant “was basically trying to get away ․ from Kevin so he couldn't be stopped.”

Finally, Kevin “grabbed” appellant, whose response was to reach toward his back pocket, proclaim that he had a knife, and threaten:  “I'm going to stick it right through you.”   Kevin “thought [appellant] had a knife, so he retreated momentarily out of his arms reach.”   Then, he told appellant “to pull it out if he had it.   Let's see it.”   Kevin also asked Mark to return to the store and call the police.

When appellant failed to produce a knife, he was grabbed by the arm and neck and wrestled to the ground by Kevin and Mike.   They “held him there until the police came.”   Liquor bottles were subsequently found by the police in appellant's car and on his person.

I

Appellant's first contention is that the robbery conviction is not supported by substantial evidence.   Specifically, he complains that elements of force or fear were not sufficiently established.

 We must “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’  (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)  ‘Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact.’  (People v. Martin (1973) 9 Cal.3d 687, 695 [108 Cal.Rptr. 809, 511 P.2d 1161].)”  (People v. Small (1988) 205 Cal.App.3d 319, 324, 252 Cal.Rptr. 41.)   Evidence of each of the essential elements of the crime must be substantial.  (People v. Hernandez (1988) 47 Cal.3d 315, 253 Cal.Rptr. 199, 763 P.2d 1289.)

 The crime of robbery is defined as the felonious taking of personal property in the possession of another, from his or her person or immediate presence, and against his or her will, accomplished by means of force or fear.  (People v. Ramos (1982) 30 Cal.3d 553, 589, 180 Cal.Rptr. 266, 639 P.2d 908;  People v. Martinez (1984) 150 Cal.App.3d 579, 597, 198 Cal.Rptr. 565;  People v. Gordon (1982) 136 Cal.App.3d 519, 528, 186 Cal.Rptr. 373.)   Appellant insists that his act of pushing Kevin was “not the sort of force that will support a robbery conviction.”   He also submits that since Kevin “did not act as if he were afraid,” no fear was established.   We disagree.

 It is established that the degree of force or fear employed is immaterial.  (People v. Lescallett (1981) 123 Cal.App.3d 487, 491, 176 Cal.Rptr. 687.)   The force or fear required to make the offense a robbery is merely that actually necessary to overcome the victim's resistance.  (Ibid;  see also People v. Ramos (1980) 106 Cal.App.3d 591, 601–602, 165 Cal.Rptr. 179.)  “[T]he elements of force and fear do not need to be extreme for purposes of constituting robbery.  [Citations.]”  (Id. at p. 602, 165 Cal.Rptr. 179.)

It is also “settled that the crime of robbery is not confined to the act of taking property from victims.   The nature of the crime is such that a robber's escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place.   Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety.  [Citations.]”  (People v. Carroll (1970) 1 Cal.3d 581, 585, 83 Cal.Rptr. 176, 463 P.2d 400;  see also People v. Beaumaster (1971) 17 Cal.App.3d 996, 1004, 95 Cal.Rptr. 360.)   A robbery continues until the perpetrator “is in unchallenged possession of the stolen property.”  (People v. Turner (1983) 145 Cal.App.3d 658, 681, 193 Cal.Rptr. 614.)   Thus, “what would have been a mere theft is transformed into robbery if the perpetrator, having peacefully acquired the property, uses force to retain or escape with it.  [Citations.]”  (People v. Winkler (1986) 178 Cal.App.3d 750, 756, 224 Cal.Rptr. 28.)

Upon being confronted during the course of his escape, appellant first attempted to push past the victim.   Then, when Kevin tried to use reasonable force to recover the stolen property, as was his right (People v. Young (1963) 214 Cal.App.2d 641, 648, 29 Cal.Rptr. 595), appellant threatened to “stick” him with a knife.   A threat caused Kevin to “back off,” fearful of being stabbed.

Upon similar evidence, a robbery conviction was affirmed in People v. Estes (1983) 147 Cal.App.3d 23, 194 Cal.Rptr. 909.   In Estes, a security guard who observed the defendant remove a coat and vest from the store, followed him outside, approached him in the parking lot and asked him to return to the store.   The defendant “began to walk away,” so the guard attempted to detain him.  (Id. at p. 26, 194 Cal.Rptr. 909.)   The defendant then “pulled out a knife, swung it” at the guard and threatened to kill him.  (Ibid.)  Citing People v. Anderson (1966) 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366, the court concluded:  “By preventing the guard from regaining control over the merchandise, defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance․  [¶] [A] robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which defendant originally acquired the property․  [¶] The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.   It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape․   Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction.”  (Id. at pp. 27–28, 194 Cal.Rptr. 909.)

Here, appellant used physical force to attempt to push his way past the store employee.   When this proved unsuccessful in effectuating an escape, he threatened to stab the victim with a knife.   The victim testified that he was frightened by appellant's threat, and momentarily retreated.   In our view, such evidence establishes the force or fear element of robbery.  (People v. Renteria (1964) 61 Cal.2d 497, 499, 39 Cal.Rptr. 213, 393 P.2d 413;  People v. Hays (1983) 147 Cal.App.3d 534, 542, 195 Cal.Rptr. 252;  People v. Lescallett, supra, 123 Cal.App.3d 487, 492, 176 Cal.Rptr. 687.)   Appellant's use of force and fear to resist attempts to impede his escape and recover the stolen property is sufficient to sustain the robbery conviction.  (People v. Anderson, supra, 64 Cal.2d 633, 638, 51 Cal.Rptr. 238, 414 P.2d 366;  People v. Estes, supra, 147 Cal.App.3d 23, 28, 194 Cal.Rptr. 909;  People v. Kent (1981) 125 Cal.App.3d 207, 213–214, fn. 6, 178 Cal.Rptr. 28;  People v. Perhab (1949) 92 Cal.App.2d 430, 434–436, 206 P.2d 1133.)

[[/]]

IV

 Appellant, while engaged in shoplifting, elevated the offense to robbery by bluffing a store employee with a threat to use a knife if he were not allowed to escape with his booty.   He now argues that the trial court erred by not giving, sua sponte, CALJIC No. 2.71, which admonishes jurors to view a defendant's oral admissions with caution.   This argument is premised on confusion resulting from the failure of CALJIC No. 2.71 to distinguish “admissions” from “verbal acts.”  (Cf. People v. Mendoza (1987) 192 Cal.App.3d 667, 676, 238 Cal.Rptr. 1.)

 “Where a person's conduct is relevant but is equivocal or ambiguous, the statements accompanying it may be admitted to explain and make the conduct understandable.   Such statements have been called ‘verbal acts' ” (1 Witkin, Cal. Evidence (3d ed. 1986) § 723, at p. 706, emphasis deleted) and are generally considered as outside the hearsay rule.  (6 Wigmore (Chadbourn Rev.) § 1772.)  “Without characterizing such evidence, Evidence Code § 1241 expressly declares that such evidence is not made inadmissible by the hearsay rule.”  (People v. Marchialette (1975) 45 Cal.App.3d 974, 980, 119 Cal.Rptr. 816, fn. deleted.)

“If there is evidence that a person such as a victim or defendant in a criminal case heard the declarant's statement, and acted on the basis of believing such statement to be true, it is the credibility of the hearer that is important.   The issue to be determined by the trier of fact is whether the hearer accurately (1) heard declarant's statement, (2) believed the statement to be true, and (3) acted in conformity with such belief.   Since the hearer is present in court, his credibility with respect to the three items mentioned, including his sincerity or veracity regarding these three items, can be tested through cross-examination.

Since declarant's statement is not being offered to prove the truth of the matter stated in the statement, no issue is presented for the trier of fact to determine whether declarant accurately perceived the facts stated in the statement, or remembered accurately what he perceived, or accurately told the hearer what he remembered.   Consequently, the hearsay dangers of evidence of a statement offered to prove the truth of the facts stated are not present in this situation.”  (1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 1.4, at p. 57;  emphasis in original.)

In certain crimes, such as robbery, the defendant's contemporaneous statements are an element of the offense.   Since such statements are not offered for the truth of the matters asserted, they are not hearsay and are admissible as “ ‘operative facts.’ ”  (People v. Patton (1976) 63 Cal.App.3d 211, 219, 133 Cal.Rptr. 533;  People v. Kohn (1968) 258 Cal.App.2d 368, 376, 65 Cal.Rptr. 867.)

 An “admission,” on the other hand, is a statement of the defendant relative to the offense but which is admissible only as an exception to the hearsay rule.   It is similar to a confession and subject to all the protections attendant on the admission of evidence which invokes the Fifth Amendment privilege against self-incrimination.  (People v. Atchley (1959) 53 Cal.2d 160, 170, 346 P.2d 764.)   Both “admissions” and “verbal acts” are out-of-court statements of the defendant relative to the offense;  however, the former are within the hearsay rule while the latter are independently admissible.   Cautionary instructions are only required when the defendant's statement is admitted as an exception to the hearsay rule.

In People v. La Salle (1980) 103 Cal.App.3d 139, 149–151, 162 Cal.Rptr. 816 (disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498, 244 Cal.Rptr. 148, 749 P.2d 803) 7 , Justice Jefferson discussed CALJIC's ambiguous definition of an “admission”:

“․ CALJIC No. 2.71 is ambiguous in the way in which it defines a defendant's admission.   The ambiguity comes from the definition that ‘[a]n admission is a statement by a defendant, which by itself is not sufficient to warrant an inference of guilt, but which tends to prove guilt when considered with the rest of the evidence.’

The vice in this definition of an ‘admission’ is that it does not distinguish between a statement of a defendant that constitutes a hearsay statement as an admission and a statement of a defendant that is non-hearsay and, hence, is not an admission.   It is only when a party's statement is introduced to prove the truth of the matter stated that it is properly considered hearsay evidence and becomes admissible against the party under the exception to the hearsay rule for the personal admission of a party.  (Evid.Code, § 1220.)   The innate concept of a party's ‘admission’ is that it is a hearsay statement which avoids the exclusionary rule because it falls within the exception to the hearsay exclusionary rule for a party's statement—offered against the party to prove ‘the truth of the matter stated.’  (Evid.Code, § 1200, subd. (a).)

CALJIC instruction No. 2.71 makes it appear that every statement made by a defendant constitutes an ‘admission’ if the statement ‘tends to prove guilt when considered with the rest of the evidence.’ ”

Citing People v. Mendoza, supra, 192 Cal.App.3d at 676, fn. 3, 238 Cal.Rptr. 1, the dissent concludes that “La Salle does not represent existing law on the subject of admissions and ․ has been recently disapproved.”  Mendoza concerned the defendant's post-arrest statements to the police rather than statements contemporaneous with the crime.   Indeed, in every case cited in the dissent the defendants' statements were not admissible as contemporaneous statements;  rather, they were uttered either before or after the crime was committed.  People v. Mendoza, supra, 192 Cal.App.3d at pp. 675–676, 238 Cal.Rptr. 1, People v. Aho (1984) 152 Cal.App.3d 658, 663, 199 Cal.Rptr. 671, and People v. Perkins (1982) 129 Cal.App.3d 15, 23, 180 Cal.Rptr. 763, all concern defendants' statements to the police after they were arrested.  People v. Beagle (1972) 6 Cal.3d 441, 455, fn. 5, 99 Cal.Rptr. 313, 492 P.2d 1, concerns defendant's pre-fire solicitation of an arsonist and his post-fire exclamation to the police, “[t]he bottle did not break.”   People v. Ford (1964) 60 Cal.2d 772, 799–800, 36 Cal.Rptr. 620, 388 P.2d 892, concerns defendant's pre-crime statements which showed intent, deliberation and premeditation.  People v. Moore (1988) 201 Cal.App.3d 877, 881, 247 Cal.Rptr. 353, concerns defendant's statements made to a fellow inmate as well as those made to the police.  People v. James (1987) 196 Cal.App.3d 272, 286 (modified denial of rehearing 196 Cal.App.3d 982a, 241 Cal.Rptr. 691), concerns pre-crime statements relevant to intent.  People v. Epperson (1985) 168 Cal.App.3d 856, 861, 214 Cal.Rptr. 540, concerns the use of prior testimony from a civil suit based on the same facts as the criminal prosecution.  People v. Hudson (1981) 126 Cal.App.3d 733, 742, 179 Cal.Rptr. 95, concerns the defendant's post-rape expression of sorrow and an admission of guilt to the victim's mother.

If there is a sua sponte obligation to give CALJIC No. 2.71 whenever a statement by the defendant relative to the crime is admitted, that obligation cannot end there.   If an admission or confession is admitted the court must also give CALJIC No. 2.72—“Corpus Delicti Must be Proved Independent of Admission or Confession.”  (People v. Beagle, supra, 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1.)   Since that instruction requires proof of each element of an offense independent of any admission, how could the element of robbery, that the taking was accomplished “by force or fear,” be established without admitting the words uttered by the robber?   It simply is not the law that juries must be instructed to view with caution the traditional threat, “[y]our money or your life!”

V

[[/]]

The judgment is affirmed.

Disagreeing in part with the majority opinion, I would hold that the trial court erred in failing to give, sua sponte, an instruction that a defendant's admissions must be viewed with caution.  (CALJIC No. 2.71.) 1  The admission to which this instruction applies is the testimony of an eyewitness that appellant threatened to stab Kevin Hunkins.   Because I find the error harmless, however, I concur in the majority's decision.

It is of course indisputable that CALJIC No. 2.71 must be given sua sponte where evidence of an oral admission by the defendant has been introduced by the prosecution.  (People v. Beagle (1972) 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Hudson (1981) 126 Cal.App.3d 733, 179 Cal.Rptr. 95.)

For purposes of CALJIC No. 2.71, an admission is defined broadly as a “statement made by [a] ․ defendant other than at [his] ․ trial which does not by itself acknowledge [his] ․ guilt of the crime(s) for which [he] ․ is on trial, but which statement tends to prove [his] ․ guilt when considered with the rest of the evidence.”   For purposes of the cautionary instruction, the courts have not distinguished between actual admissions and other damaging statements of the accused relating to the crime.  (People v. Beagle, supra, 6 Cal.3d 441, 455, fn. 5, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Ford (1964) 60 Cal.2d 772, 799–800, 36 Cal.Rptr. 620, 388 P.2d 892;  People v. James (1987) 196 Cal.App.3d 272, 286, 241 Cal.Rptr. 691;  People v. Lopez (1975) 47 Cal.App.3d 8, 12, 120 Cal.Rptr. 562.)   An admission is considered “any statement by the accused relative to the offense․”  (People v. Atchley (1959) 53 Cal.2d 160, 170, 346 P.2d 764;  see also People v. Epperson (1985) 168 Cal.App.3d 856, 861, 214 Cal.Rptr. 540;  People v. Perkins (1982) 129 Cal.App.3d 15, 23, 180 Cal.Rptr. 763.)   The statement need not even be incriminating to qualify as an admission.  (People v. Aho (1984) 152 Cal.App.3d 658, 663, 199 Cal.Rptr. 671;  People v. Perkins, supra, 129 Cal.App.3d at p. 23, 180 Cal.Rptr. 763.)

While appellant's statement may not have been hearsay, because it was not offered for the truth of the matter asserted, it must be characterized as an admission under CALJIC No. 2.71 because when considered with the rest of the evidence it tends to prove his guilt;  that is, of robbery, through use of force and fear.  (People v. Mendoza (1987) 192 Cal.App.3d 667, 675–676, 238 Cal.Rptr. 1.)   As the court observed in People v. Lopez, supra, 47 Cal.App.3d 8, 12, 120 Cal.Rptr. 562, when the People seek to prove an essential element of the offense “by testimony repeating words purporting to come from the lips of the accused, either before or after the crime was committed, they have produced evidence of oral admissions and cautionary instructions are required [citations].”

The majority opinion defines an admission in accordance with the principles of hearsay evidence, under which a “verbal act” is not offered for the truth of the matter, and is hence not inadmissible under the hearsay rule.   CALJIC 2.71 is not a rule of evidence, however, and it defines admission in much broader terms for purposes of the cautionary instruction.   The reason for the different and more expansive definition is found in the rationale underlying the instruction.   CALJIC 2.71 seeks to protect the accused from the potential prejudicial effect of a statement which might be understood by the jury as an admission of guilt.   Thus, the jury is provided with a broad description of an admission—more expansive than the evidentiary definition—and is then instructed to determine whether a statement is an admission, and if so, to view it with caution.   The rules of evidence are not applicable for the sound reason that the jury cannot be expected to differentiate a verbal act from an admission when considering the impact and weight of a defendant's statement which tends to prove guilt.

For the same reason, the distinction drawn by the majority between statements made by the defendant before or after a crime—which the majority would classify as admissions—and contemporaneous statements—which are defined as mere verbal acts—is of no import when considering the need for a cautionary instruction.   In both cases, the jury must be warned to view with caution any statement which might be interpreted, either correctly or incorrectly, as an admission of guilt.   I would therefore conclude that the trial court erred in failing to instruct the jury, in accordance with CALJIC No. 2.71 to view appellant's admission with caution.  (Ibid.) 2

As to whether the omission of CALJIC No. 2.71 was prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (People v. Heishman (1988) 45 Cal.3d 147, 166, 246 Cal.Rptr. 673, 753 P.2d 629;  People v. Beagle, supra, 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1), I think it was not.   The circumstances of the case must be examined in light of the established rule that verbal admissions, as a class of evidence, are singularly subject to error and abuse.  (People v. Lopez, supra, 47 Cal.App.3d at p. 13, 120 Cal.Rptr. 562;  People v. Blankenship (1970) 7 Cal.App.3d 305, 312, 86 Cal.Rptr. 651.)   Our high court has cautioned:  “ ‘ “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. Ford, supra, 60 Cal.2d 772, 800, 36 Cal.Rptr. 620, 388 P.2d 892;  see also People v. Lopez, supra, 47 Cal.App.3d at p. 13, 120 Cal.Rptr. 562.)

Here, the prosecution did not offer appellant's statement to be taken for its truth—whether appellant intended to stab the victim was of no consequence—but only to convince the jury that he made the threat, and so the cautionary instruction was not critical to the jury's view of the evidence.   (People v. Epperson, supra, 168 Cal.App.3d 856, 862, 214 Cal.Rptr. 540.)   Since the statement was not offered for its truth, there was little chance that a false impression of its meaning would be conveyed.   The witnesses had no apparent bias against appellant and, significantly, there was absolutely no conflict in the evidence.  (People v. Lopez, supra, 47 Cal.App.3d 8, 14, 120 Cal.Rptr. 562.)   All the witnesses agreed that the statement was made, and testified consistently as to its context.  (People v. Beagle, supra, 6 Cal.3d 441, 456, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Epperson, supra, 168 Cal.App.3d at p. 862, 214 Cal.Rptr. 540.)  “A failure to give cautionary instructions is less apt to be prejudicial where there is no conflicting evidence or issue concerning the statements [citations].”  (People v. Lopez, supra, 47 Cal.App.3d at p. 14, 120 Cal.Rptr. 562.)   Finally, appellant did not challenge the testimony that he made the statement, only its legal effect upon the robbery charge.   Under the circumstances, I conclude that it is not reasonably probable the jury would have reached a different conclusion if the cautionary instruction had been given.  (People v. Beagle, supra, 6 Cal.3d at p. 456, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Moore (1988) 201 Cal.App.3d 877, 887, 247 Cal.Rptr. 353;  People v. Smith (1986) 187 Cal.App.3d 666, 680, 231 Cal.Rptr. 897;  People v. Lopez, supra, 47 Cal.App.3d at p. 14, 120 Cal.Rptr. 562.)

FOOTNOTES

1.   To avoid confusion, we will depart from our usual practice and refer to the witnesses by their first names.

7.   People v. Kimble, supra, 44 Cal.3d at pp. 496–498, 244 Cal.Rptr. 148, 749 P.2d 803, disapproved several cases, including La Salle, which had held that a defendant's prior false statements could not be admitted to show consciousness of guilt unless they were inconsistent with the defendant's testimony at trial.   The court in Kimble never addressed Justice Jefferson's criticism of CALJIC No. 2.71's definition of an “admission.”

1.   CALJIC No. 2.71 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.”

2.   In support of the argument that appellant's statement to the victim was not an admission, the Attorney General relies on People v. La Salle (1980) 103 Cal.App.3d 139, 150, 162 Cal.Rptr. 816, where the court complained that the definition of admission in CALJIC No. 2.71 “does not distinguish between a statement of a defendant that constitutes a hearsay statement as an admission and a statement of a defendant that is non-hearsay and, hence, is not an admission.   It is only when a party's statement is introduced to prove the truth of the matter stated that it is properly considered hearsay evidence and becomes admissible against the party under the exception to the hearsay rule for the personal admission of a party.  (Evid.Code, § 1220.)”   CALJIC No. 2.71 was criticized as “ambiguous and misleading” for apparently including within the definition of admission every statement which “tends to prove guilt when considered with the rest of the evidence.”   The court warned that “a jury cannot be expected to know what kind of a defendant's statement constitutes an ‘admission’ which tends to prove defendant's guilt.”   The court thus concluded:  “To remove this ambiguity, CALJIC No. 2.71 should be amended so that the second sentence would correctly define the nature of an admission as a defendant's hearsay statement offered for its truth.”La Salle does not represent existing law on the subject of admissions and CALJIC No. 2.71, and has been recently disapproved.  (People v. Mendoza, supra, 192 Cal.App.3d 667, 676, fn. 3, 238 Cal.Rptr. 1.)

STEIN, Associate Justice.

HOLMDAHL, J., concurs.

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