PEOPLE v. PACHECO (1989)

OPINION

Defendant was convicted by jury of assault with intent to commit rape (Pen.Code,1 § 220) and false imprisonment (§ 236).   He then admitted the attendant enhancement allegation that the offenses were committed while he was released on bail pending trial on an earlier felony offense (§ 12022.1).   Sentenced to an aggregate term of eight years in prison, defendant appeals contending error in the giving of CALJIC No. 2.71.   We agree, find the error to be prejudicial, and reverse the judgment.

STATEMENT OF FACTS

On August 21, 1987, at 9:30 p.m., the alleged victim, Denise R., and her friend, Mary Andre, met by prearrangement at the Black Angus Restaurant in Modesto.   The bar was crowded so they stood at a standing bar and ordered beer.   Later, Mary's cousin, Jerry Pimentel, came in and seeing Mary and Denise, joined them at the standing bar.   Denise had never met Jerry and during the evening danced one dance with him.   At trial, Denise admitted testifying at the preliminary hearing that she had not danced with Jerry.

At approximately 10:30 p.m., after first dancing with Mary, defendant introduced himself to Denise as Lawrence Jacobs.   They engaged in casual conversation and danced three or four times during the course of the evening.   At one point, defendant jokingly said he wanted to take Denise home with him.

As the 2 a.m. closing time approached, Denise, Mary, Jerry, and defendant walked out of the Black Angus to the parking lot and stood next to Denise's car talking for 10 to 15 minutes.   Defendant asked Denise if she would drive him to his car which was located around the corner at the back of the restaurant.   Denise then drove defendant to his car and pulled into the adjoining parking space.   Defendant asked Denise if she would mind talking to him for a few minutes, and she turned off the engine and lights.

After talking for a few minutes, defendant asked for a good night kiss.   Denise said yes, and they kissed for two or three minutes.   Denise told defendant that she did not want him to get the wrong impression;  that she did not want him to think she was going to have sex with him.   Defendant asked, “why not.”   Denise told him she did not have sex with men she did not know or with whom she did not have a relationship and she was not going to have sex with him.   Defendant tried to initiate another kiss, and Denise told him she thought he had better go.   Defendant then turned and grabbed Denise so that he was straddling her with his knees on the seat on each side of her.   He ripped open her blouse and bra exposing her breasts.   Denise began struggling, and defendant grabbed both of her wrists.   She managed to free her right hand, lunged over to the passenger's side, opened the door, and screamed for help.   Defendant immediately closed the door and hit Denise twice in the face with his fist.   He tried to undo Denise's pants, and she continued to struggle and scream.   Defendant then started to choke her with his right hand, and Denise poked him in the eye.

At one point, defendant told her that if she did not stop fighting he was going to hurt her.   She continued struggling, and just before the security guard arrived, defendant said, “I'm going to hurt you, you bitch.”

At about 2:15 a.m., David Owens was seated in a car in the Black Angus parking lot waiting to get a ride home with a bartender.   He saw a car rocking and then a girl opened the car door and yelled for help.  “And then the guy slammed it shut again real quick.   And then it happened again about 15 minutes later.   Then I went in and called the police.”   Juliana Beth Martin, who was waiting in the car with Mr. Owens, corroborated his testimony.

Mrs. Janice Wedge was also in the Black Angus parking lot that evening at about 2 a.m.   She saw a car with a woman driving and a male passenger pull into the lot and park.   After awhile she saw the door open and the light go on inside the car and could see hands waving.   She heard a woman scream and then a man yell, “God damn it.   Shut up.”   She could see the car “thrashing about” and heard “muffled noises like screaming.”   Mrs. Wedge got out of her truck and started toward the car, and two security guards came out of the restaurant.   She was present when the security guards pulled defendant out of the car.   She saw that the woman's blouse and bra were torn off so that her breasts were exposed.   When the police arrived, one of the officer's asked the woman to remove her blouse and bra, and Mrs. Wedge took her into the bathroom at the Black Angus and helped her.

Ramon Pimentel and Maxamillo Vignoli were the security guards on duty at the Black Angus.   Pimentel testified that between 11:30 and 12 p.m. he saw Denise R. and defendant walk out of the restaurant and a little while later saw them sitting in a car in the parking lot.   He was sure it was Denise and “pretty sure” it was defendant.   They returned to the Black Angus sometime between 12 p.m. and 12:30 a.m.   At about 1:45 a.m., he saw them again going to the parking lot.   Ten to fifteen minutes later as he was making his rounds, he saw them in the vehicle, and they had their arms around one another and were kissing.   Between 2:10 and 2:20 a.m. he again walked by the car, but could not see inside because the windows were fogged up.   At about 2:30 a.m., Pimentel was inside with Vignoli when someone knocked on the door and said a woman in the parking lot was yelling for help.   He and Vignoli ran out to the vehicle, flashed their lights inside, and could see defendant and Denise struggling.   Denise was saying, “Please help me.   He is trying to rape me.”   She was crying and her blouse and bra were open.   Pimentel opened the passenger door and with Vignoli's help pulled defendant out onto the ground and handcuffed him.

Vignoli testified that the first thing defendant said when he was pulled from the car was, “She was trying to rape me.”

James Gilbert, a bartender at the Black Angus, followed the security guards out to the parking lot.   He could see a man and a woman fighting inside the car and heard the woman screaming for help.   When defendant was pulled from the car his pants were unzipped and kept saying, “that she was fighting him, she was trying to attack him, and that she was trying to rape him.”

Modesto Police Officer James Walsh arrived at the Black Angus at 2:37 a.m.   The security guards already had defendant in custody.   After being apprised of the situation, Officer Walsh took defendant to the police station where, after first obtaining a Miranda, waiver, he took a statement from defendant who did not appear to be intoxicated.   Defendant stated that he met the girl at the Black Angus and she drove him to his car.   They sat in the car talking about “sexual matters” for several minutes, and the girl was telling him how she “liked it rough.”   They then started kissing and, “You know, touching, feeling each other.”   The girl then told him to rip off her clothes and make love to her.   He said he started making love to her when all of a sudden she started screaming and telling him to leave her alone.   He denied striking the woman.

Defendant did not testify.

DISCUSSION

DID THE TRIAL COURT ERR IN GIVING THE CAUTIONARY LANGUAGE IN CALJIC NO. 2.71?

Defendant contends that under the circumstances of this case where defense counsel in closing argument not only admitted that defendant had given the statement to Officer Walsh, but relied upon the exculpatory nature of that statement as the basis of his defense, the giving of that portion of CALJIC No. 2.71 which told the jury to view his statement with caution was prejudicial error.

CALJIC No. 2.71, as given to the jury, was in pertinent part as follows:

“An admission is a statement made by 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.

“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 the defendant should be viewed with caution.”

Since defendant was relying on his pretrial statements as a defense to the charges, he contends the jury should not have been instructed to view those statements with caution.

CALJIC No. 2.71 is usually a sua sponte instruction where evidence of a defendant's admissions have been presented to the jury.   This instruction is generally given for the benefit of the defendant, and its purpose is to assist the jury in determining whether the statements were in fact made or were reported accurately.  (People v. Beagle (1972) 6 Cal.3d 441, 456, 99 Cal.Rptr. 313, 492 P.2d 1.)   However, in this case, defendant did not dispute the fact that he made the statement.   In fact, he relied on his statement to argue his innocence:

“Now, you look in terms of what Mr. Pacheco tells us.   He didn't come up here today in terms of variances in what he told the police officer.   His statement was made that evening shortly thereafter, made to a police officer, he willfully says, ‘I am going to tell—I have nothing to hide.   I am going to tell what took place.’   And you have his statement.   He is not going to get up today and change that.”

Defendant contends that the giving of CALJIC No. 2.71 here is analogous to the situation where an accomplice testifies on a defendant's behalf.   Ordinarily, where there is accomplice testimony, the court is required to give a cautionary instruction concerning the accomplice's testimony even though no request is made.  (People v. Miller (1960) 185 Cal.App.2d 59, 82, 8 Cal.Rptr. 91.)   In People v. Graham (1978) 83 Cal.App.3d 736, 742–744, 149 Cal.Rptr. 6, however, the court held that it was error to give the cautionary instruction when an accomplice was called to testify by the prosecution because the accomplice in fact gave testimony helpful to the defendant.   It is similarly error to give the cautionary instruction when an accomplice is called as a witness by the defense.  (People v. Hartung (1950) 101 Cal.App.2d 292, 295, 225 P.2d 614;  People v. Fowler (1987) 196 Cal.App.3d 79, 85, 241 Cal.Rptr. 571.)

Historically, the reason for the rule requiring a cautionary instruction when an accomplice testifies as a witness for the prosecution is that the evidence is coming from a tainted source and is often given in the expectation of leniency or immunity.  (People v. Dail (1943) 22 Cal.2d 642, 654, 140 P.2d 828;  People v. Tewksbury (1976) 15 Cal.3d 953, 967, 127 Cal.Rptr. 135, 544 P.2d 1335.)   However, where an accomplice testifies for the defense, the rationale no longer applies.   It is therefore held that the giving of the cautionary instruction in that situation is error.  (People v. Graham, supra, 83 Cal.App.3d at p. 743, 149 Cal.Rptr. 6.)

 When a defendant has made statements that could be construed as admissions and the defendant denies making those statements in whole or in part, then the cautionary instruction should be given.   However, where the defendant, as here, did not deny making the statements and instead relied on them as his only defense, it follows that the jury should not be told to view that evidence with caution.

The problem created by such an instruction is that the jurors cannot reasonably be expected to distinguish between the two different issues—whether or not the statement was made, and the truth of the content of the statement.   The statement, “Evidence of an oral admission should be viewed with caution” can have a different meaning to a layperson than it has to one trained in the law.   The latter understands “evidence” to refer to the fact of making the admission.   A layperson might well, and probably would, understand “evidence” to mean the content of the admission.   Thus, there is a real danger that since the jury already understood from defense counsel's argument that the fact of whether the statement was made was not in issue, the jurors could reasonably conclude that the cautionary instruction was intended to admonish them to view with caution defendant's claims of innocence contained in his pretrial statement.²

 Undoubtedly, the court's instruction under the circumstances of this case affected substantial rights of the defendant.   Whether the applicable standard of prejudice is that of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 or the higher standard enunciated in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, we conclude the error was prejudicial.

The issue of guilt depended upon the jury's resolution of the credibility contest between Denise and defendant.   The jury had to weigh the victim's word against the defendant's.   While Denise's testimony was corroborated in many respects, such as her cries for help, her struggles with defendant, and her testimony that she never left the bar until closing time, there was substantial conflicting evidence as to material parts.   For example, the Black Angus security guard, Ramon Pimentel, testified that he had seen Denise with defendant in the parking lot two hours earlier, seated in a car in an affectionate embrace and kissing.   Denise denied this.   Also, Denise admitted incorrectly denying at the preliminary hearing that she danced with Jerry Pimentel in the bar, attributing her denial to a lapse of memory.

Also, while defendant's claims did not jibe completely with all of the evidence, they were not so inherently improbable as to be arbitrarily disregarded.

“To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.   The improbability must be apparent;  evidence which is unusual or inconsistent is not necessarily improbable.”  (People v. Headlee (1941) 18 Cal.2d 266, 267, 115 P.2d 427;  People v. Mayberry (1975) 15 Cal.3d 143, 150, 125 Cal.Rptr. 745, 542 P.2d 1337.)

Except for Denise's own testimony and the evidence of her cries for help, defendant's exculpatory claims in his statement to Officer Walsh could have been found by the jury to have been consistent with the prosecution's evidence.   If believed by the jury, defendant would have been exonerated from any wrongdoing.   However, since the jury was instructed, in effect, to view defendant's exculpatory remarks with distrust, we cannot say on review that, absent the instruction, the jury would not have believed defendant, or at least have entertained a reasonable doubt as to his guilt.

If one believes Denise's version of events, evidence of defendant's guilt was strong.   But, since defendant's exculpatory statement was not inherently improbable and could have been believed by the jury, we cannot determine just whom a properly instructed jury would have believed.   That would require this court to make a credibility determination—a function solely in the province of the trier of fact.   We hold that absent the instructional error, it is reasonably probable defendant's exculpatory statement would have received a more favorable consideration.   Therefore, under Watson, we find the error to be prejudicial.

THE JUDGMENT IS REVERSED.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

2.   We note that this case does not raise the question of whether defendant's statement qualified as an admission, unlike the cases of People v. Perkins (1982) 129 Cal.App.3d 15, 23, 180 Cal.Rptr. 763, and People v. Aho (1984) 152 Cal.App.3d 658, 663, 199 Cal.Rptr. 671.   The propriety of the giving of CALJIC No. 2.71 here is only questioned with regard to the cautionary language.   In all other respects, defendant appears to concede that the instruction was proper.

BEST, Associate Justice.

MARTIN, Acting P.J., and ARDAIZ, J., concur.