PEOPLE v. MAGDALENO (1994)

Following a jury trial, appellant was convicted of auto burglary (Pen.Code, § 459) and petty theft with a prior conviction (Penal Code §§ 666, 484).   Appellant was sentenced to three years in state prison for the auto burglary, to be served concurrently with both a three-year term for the petty theft with a prior conviction and a one-year county jail sentence for a misdemeanor probation revocation case.   Appellant contends that the court erred by failing to instruct sua sponte, pursuant to our decision in People v. Marquez (1993) 16 Cal.App.4th 115, 20 Cal.Rptr.2d 365, on the need to find corroborating evidence in order to rely on a witness's out-of-court identification, that the trial court erred by instructing the jury that the testimony of a single witness could be sufficient to prove any fact, and that the trial court erred in failing to instruct the jury on the lesser included offense of auto tampering.   Appellant further contends that the prosecutor committed misconduct in closing argument.   We affirm.

Appellant's first three contentions relate to the auto burglary charge.   On the afternoon of January 1, 1993, at a motel in Soledad, a motel employee and a business visitor, Arturo Daniel, were in the laundry room when the employee heard glass breaking.   They stepped out of the laundry room and Daniel saw a man sticking his hand into the broken driver's side window of the company truck.   The man was facing Daniel.   The man had a tattoo on his neck.   He turned and ran.   The Soledad police officer who came to the motel to investigate saw a car in the motel parking lot that he recognized as appellant's.   It was a blue Pontiac which had the broken driver's side window covered with plastic.   The car did not belong to a guest of the motel.   The car had not been in the parking lot that morning.   The motel owner tried to “stake out” the car, but it was driven away several hours later during a moment's inattention.

On January 10, the officer presented Daniel with a photo line-up which included a picture of appellant.   Daniel was unable to identify anyone.   Six days later, while in a grocery store, Daniel saw the person who had stuck his arm in the truck's broken window.   That person left the store and drove off in a blue Pontiac with a broken window on the driver's side covered by plastic.   Daniel told the police officer what he had seen.   The officer showed Daniel a new photo line-up.   Daniel identified a photo of appellant.

At trial, Daniel testified that he was unable to say whether appellant was the same man who he saw with his hand in the broken window of the truck.   However, he also testified that he had no doubt that the man he saw in the store and the man he identified during the second photo line-up was the same man who broke into the motel truck.   Two police officers testified that appellant is the only person with a neck tattoo associated with appellant's blue Pontiac.

 The court instructed the jury pursuant to CALJIC 2.27 that “You should give the testimony of a single witness whatever weight you think it deserves.   However, testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact.   You should carefully review all the evidence upon which the proof of such fact depends.”   Appellant argues that the only testimony identifying appellant as the perpetrator of the act against the truck was a report of Daniel's prior out-of-court photo identification.   From this he argues that the court's instruction that the testimony of a single witness could prove any fact authorized the jury to find defendant guilty based on an out-of-court identification without finding the corroboration required by People v. Gould (1960) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865.

We disagree with appellant's interpretation of CALJIC 2.27 as it applies to this case.   For purposes of our discussion of the application of this instruction, Daniel's testimony had three aspects to it.   First, he testified that he saw a man with his hand inside the truck.   Second, he testified that he saw the same man a few weeks later and saw him get into a blue Pontiac with plastic on the window.   Third, he testified that the person he saw with his hand in the truck and the person he saw in the store was the same person he selected from the photo-line up.   He also verified that he was unable to select anyone from the first photo line-up he was shown, and he did not identify appellant at trial as the perpetrator of the auto burglary.¹  An instruction to the jury that the testimony of a single witness is sufficient to prove any fact simply means that Daniel's testimony that he saw a man with his hand in the truck is sufficient to prove that a man put his hand in the truck.   Daniel's testimony that the person he selected from the photo line-up is the person he saw at the truck is sufficient to prove that fact.   Daniel did not testify that appellant was the person with his arm in the truck.   Whether or not appellant is the person Daniel saw at the truck is an inference the jury is entitled to draw from these facts when considered with the other evidence in the case, including testimony about appellant's neck tattoo and connecting appellant to the blue Pontiac.   There was no error in giving CALJIC 2.27.

 Appellant contends that the trial court erred in failing to instruct the jury sua sponte on the need to find corroborating evidence in order to rely on Daniel's out-of-court identification.  “An extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.”  (People v. Gould, supra, 54 Cal.2d 621, 631, 7 Cal.Rptr. 273, 354 P.2d 865.)

In Gould, a defendant challenged the admission into evidence of a witness's identification of his photograph shortly after the crime.   Although Gould held that some corroboration is necessary to sustain a conviction based on an out-of-court identification, Justice Traynor observed that “Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial [citation] but as independent evidence of identity.   Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached [citations], evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind.  [Citations.]  The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances.   The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.”  (Id. at p. 626, 7 Cal.Rptr. 273, 354 P.2d 865.)

In People v. Marquez, supra, 16 Cal.App.4th 115, 20 Cal.Rptr.2d 365, we considered appellant's claim that the trial court had a sua sponte obligation to instruct on the holding in Gould.²  We held that “a trial court must instruct on the need for corroboration of an extrajudicial identification whenever evidence of a witness's extrajudicial identification of a defendant is admitted at trial and that witness fails to confirm the extrajudicial identification at trial.”  (Id. at p. 121, 20 Cal.Rptr.2d 365.)   Without citation to any post-Marquez authority, respondent invites us to reconsider our holding in Marquez.   We decline.   A petition for rehearing has already been denied in Marquez.³

In Marquez, we found that the trial court's failure to instruct on the need for corroboration was not prejudicial because it was not reasonably probable that a properly instructed jury would have failed to find the requisite corroboration for the witness's extrajudicial identification, applying the standard of review in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.  (Id. at p. 122, 20 Cal.Rptr.2d 365.)   Appellant urges us to apply a different standard of review, arguing that instructing the jury pursuant to CALJIC 2.27 impacted the error in failing to give the Marquez instruction.   As discussed above, we disagree with appellant's interpretation of the application of CALJIC 2.27 to the evidence in this case and thus analyze the failure to give the Marquez instruction under the standard of review enunciated in that case.

“The failure to instruct on the need for corroboration is harmless where the record contains substantial corroborative evidence.  (People v. Miranda (1987) 44 Cal.3d 57, 100 [241 Cal.Rptr. 594, 744 P.2d 1127].)”  (People v. Marquez, supra, 16 Cal.App.4th 115, 122, 20 Cal.Rptr.2d 365.)   Here, the question of the substantiality of the prosecution's case was resolved by the trial court at the conclusion of the prosecution's case when the defense attorney moved for an acquittal, citing Gould.   The court ruled that the identification was sufficiently corroborated by the circumstances of the car matching the description of appellant's in the motel parking lot, and the witness's subsequent sighting of the same man he had seen at the burglarized truck entering a car matching the description of appellant's.   The court commented on the strength of Daniel's photo line-up identification when shown the second line-up and observed that there was a “big difference between the two photo line-ups.”   We adopt the trial court's view of the corroborating evidence and find the error in failing to instruct pursuant to Marquez was not prejudicial because it is not reasonably probable that a properly instructed jury would have failed to find the requisite corroboration for Daniel's extrajudicial identification.

 We note that CALJIC 3.11.1 (When Eyewitness Identification Must Be Corroborated) has been added in response to Marquez.   The Use Note suggests that CALJIC 3.12 (Testimony of Accomplice Must Be Corroborated) can be modified and given if there is a need for further instruction on the sufficiency of the corroboration.   This statement may be misleading without clarification.   The corroboration needed to confirm an extrajudicial identification is not the same as the corroboration needed to confirm an accomplice's testimony.   An accomplice's testimony requires corroboration because it is inherently suspect.   An eyewitness's extrajudicial identification is not.   Any modification to CALJIC 3.12 to describe the sufficiency of evidence to corroborate an extrajudicial identification should make clear that it is the extrajudicial identification, not the eyewitness's testimony in its entirety, that is being corroborated.⁴

 Appellant contends that the trial court erred by failing to instruct the jury on the lesser included offense of auto tampering.   To be convicted of auto tampering, the prosecution need only show that the person “willfully injure[d] or tamper[ed] with any vehicle [or the contents thereof] or ․ br[oke] or remove[d] any part of a vehicle without the consent of the owner․”  (CALJIC No. 16.620) Appellant argues that “the record authorized the inference that the perpetrator damaged the truck without stealing or intending to steal and the record also authorized the inference that the truck was not locked at the time of the entry.”

In People v. Mooney (1983) 145 Cal.App.3d 502, 505, 193 Cal.Rptr. 381, cited by appellant, the court held that, on the facts of that case, auto tampering is a lesser included offense of auto burglary.   In Mooney, the victim of the offense testified that the doors to her van were locked when she parked it.   The defendant testified that the passenger's window was rolled down and the door was unlocked when he entered the van.   On this evidence, the appellate court found that the trial court should have given the requested instruction on auto tampering.   The court also noted that, “Were there no evidence to raise a reasonable doubt whether the van was locked, there would be no error for the court need not instruct on lesser included offenses where substantial evidence would support only a verdict of guilt on the greater charge.  (People v. Ramos (1982) 30 Cal.3d 553, 582 [180 Cal.Rptr. 266, 639 P.2d 908], reversed on other grounds in California v. Ramos (1983) 463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171].)”  (Id. at p. 506, 193 Cal.Rptr. 381.)   Here, the evidence was that the motel's policy was to lock the truck's doors and that the doors of the truck were in fact locked when the police arrived to investigate the burglary.   Even considering Evidence Code section 412, which directs the trier of fact to distrust evidence used by a party to establish a fact where that party fails to present the most probative evidence to which he has access to prove that fact, this testimony does not amount to evidence that the doors were unlocked, as in Mooney.

Appellant contends that a reasonable jury could form a reasonable doubt that the entry into the truck was executed without felonious intent and thus the failure to instruct on auto tampering was error.   The prosecution theory was that the burglar broke the truck window to steal the tools inside.   The owner of the motel testified that there were tools in the passenger compartment of the truck.   The investigating officer testified as follows:

“Q. [By the prosecutor] The car doors were locked on the car?

“A. Yes.   They were.

“Q. And the window was smashed?

“A. Yes.   It was.

“Q. And there were power tools inside?

“A. Yes.”

From this evidence, appellant argues that there could be a reasonable doubt about the offender's intent as a result of the fact that there was no evidence that the tools in the truck had been visible to or otherwise known to the offender.   In appellant's view, such doubt would be supported “by the fact that although the perpetrator had successfully put his hand through the truck window before being spotted, he fled without taking the tools or anything else from the truck.”   The court's sua sponte “ ‘obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e.g. People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370] ), but not when there is no evidence that the offense was less than that charged.  (People v. Noah (1971) 5 Cal.3d 469, 479 [96 Cal.Rptr. 441, 487 P.2d 1009];  People v. Osuna (1969) 70 Cal.2d 759, 767 [76 Cal.Rptr. 462, 452 P.2d 678].)'  (People v. Sedeno (1974) 10 Cal.3d 703, 715–716 [112 Cal.Rptr. 1, 518 P.2d 913].)”  (People v. Wickersham (1982) 32 Cal.3d 307, 323–324, 185 Cal.Rptr. 436, 650 P.2d 311.)   The evidence quoted above simply cannot reasonably be said to raise a question as to whether the perpetrator had the intent to steal.   It is, of course, the evidence to which the trial court is required to look in determining whether instructions on lesser included offenses are mandated.   Appellant's speculation that the perpetrator just wanted to break the window and may not have seen the tools does not constitute evidence that the offense was less than that charged.   There was no sua sponte obligation to instruct on auto tampering under the facts of this case.⁵

 Appellant contends that the prosecutor's closing argument tainted the jury's verdict by making reference to appellant's exercise of his right to silence at trial.   This contention relates to the prosecutor's argument concerning the petty theft with a prior conviction count.   In that case, an employee of Long's Drug store in Salinas testified that he saw a man shove a carton of cigarettes down his pants and walk out.   Three Long's employees attempted to stop the man who ran to a blue car.   One employee wrote the car's license number on his hand.   When shown a photo line-up, one employee immediately identified appellant as the man he saw take the cigarettes and confirmed this identification at trial.   The other two employees identified appellant's photograph, but were not positive.   At trial, those two witnesses positively identified appellant.

During rebuttal, the prosecutor argued “The evidence that was presented in this case, without any question, uncontradicted, proves [appellant] is guilty of both offenses.  [¶] There is some contradiction on the burglary.   We have already gone over that, but there isn't anything that suggests for a moment that he is not guilty of petty theft.  [¶] What is it?  [¶] Is there a witness who came in and said [appellant] is not guilty of the petty theft?   No.  No.   He is guilty where the proof shows he is guilty.”

Defense counsel objected to the prosecutor's comment and moved for a mistrial.   The trial court denied the mistrial motion and, after a discussion of the fact that the jury would be instructed “that they're not to consider the fact that the Defendant didn't testify” and asked defense counsel “Do you want me to tell the jury they weren't to consider that comment, ․ that it was uncontradicted, or you asked for some cautionary instruction that the Court give now?”   Defense counsel declined.

Appellant contends that this remark constitutes error under Griffin v. California (1965) 380 U.S. 609, 614–615, 85 S.Ct. 1229, 1232–33, 14 L.Ed.2d 106, which holds that the Fifth and Fourteenth Amendments prohibit prosecutors from commenting on the silence of the accused.   Appellant argues that “the only witness who could have come in and testified that [appellant] did not commit petty theft was [appellant].”   We disagree.   There was no issue raised in this case as to the state of mind of the perpetrator, and thus the prosecutor's remarks clearly do not refer to appellant's failure to deny a criminal intent.   Appellant's defense was mistaken identity.   Alibi witnesses other than appellant could have testified that appellant was not in the store at the time of the theft.  “Although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.  (People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal.Rptr. 15, 509 P.2d 959].)”  (People v. Szeto (1981) 29 Cal.3d 20, 34, 171 Cal.Rptr. 652, 623 P.2d 213.)   We find no Griffin error.

Appellant also raises the issue of the constitutionality of CALJIC No. 2.90, based upon Cage v. Louisiana (1990) 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339, and Sandoval v. California (No. 92–9049, cert. granted September 28, 1993, ––– U.S. ––––, 114 S.Ct. 40, 125 L.Ed.2d 789).   The Supreme Court has now upheld this instruction.  (Victor v. Nebraska (1994) 522 U.S. –––– [114 S.Ct. 1239], 127 L.Ed.2d 583.)

The judgment is affirmed.

WE CONCUR:

FOOTNOTES

1.   At a hearing outside the presence of the jury, the trial court said “there is strong indication as evident to the jury and evident from the Court that [Daniel] is intentionally going sideways because he is scared.”

2.   Our opinion in Marquez was filed about two weeks after this trial.

3.   A petition for rehearing was denied June 24, 1993, and the petitions of both appellant and respondent for review by the Supreme Court were denied August 19, 1993.

4.   Thus, for example, there may be cases in which other parts of the eyewitness's testimony may serve to confirm his or her extrajudicial identification.

5.   Although there may be cases in which the prosecution's case rests on such equivocal or incredible testimony that the prosecution evidence could fit under both the offense charged and a lesser included offense, but this is not such a case.

ELIA, Associate Justice.

COTTLE, P.J., and BAMATTRE–MANOUKIAN, J., concur.