PEOPLE v. KELLY (1981)

Jerry Kelly was convicted after jury trial of violating Penal Code section 288 (committing a lewd act upon a child under fourteen years), and Penal Code section 220 (assault with intent to commit rape).   His principal contention on appeal is that the trial court's instruction pursuant to CALJIC No. 2.03 was error, relying on People v. Rubio (1977) 71 Cal.App.3d 757, 139 Cal.Rptr. 750 (disapproved on other grounds in People v. Freeman (1978) 22 Cal.3d 434, 438, 149 Cal.Rptr. 396, 584 P.2d 533).   CALJIC No. 2.03 provides:  “If you find that before this trial [a] [the] defendant made false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statements as a circumstance tending to prove a consciousness of guilt but it is not sufficient of itself to prove guilt.   The weight to be given to such a circumstance and its significance, if any, are matters for your determination.”   We are of the view that Rubio court unduly limits the giving of CALJIC No. 2.03 to only those cases where a defendant's pretrial statement is inconsistent with his self-serving testimony at trial.

At trial Robin B., a twelve-year-old girl, testified she was babysitting for Greg and Regina Knight at their home when appellant, who lived in the same house, came home appearing drunk.   She struggled when he sat next to her and placed his arms around her, and the two fell to the floor, appellant landing on top.   He threatened her with a screwdriver when she began to scream, and when she continued he slapped her face and jabbed her breast.   He then removed her clothes after she refused to undress herself, and began kissing her mouth and breasts, and also jabbing his thumb inside her vagina.   This continued for about a minute, then appellant told her to go into his bedroom.   She went instead to another bedroom, escaped through a window, and fled to a nearby house where she called the police.

Officer Woodstock responded to Robin's call.   He testified that when he arrived at the house appellant told him that he had gone to bed after coming home from an evening of drinking.   He soon heard a noise, and when he looked up he saw Robin standing in the doorway clad only in a pair of socks.   She failed to answer when he asked what she was doing, but instead ran outside the door.   He then dressed himself and went to inform her mother what she had done.   Detective Clay testified that appellant told him the same story the following day.   In addition, appellant gave the same account when he testified in his own defense.

In People v. Rubio, supra, 71 Cal.App.3d 757, 769, 139 Cal.Rptr. 750, the court held that the “giving of CALJIC No. 2.03 is justified only if there exists evidence that defendant prefabricated a story to explain his conduct.”   This correctly states the existing law.   However, the Rubio court proceeded to till new ground by holding that “This instruction is not applicable in the situation where a defendant makes an explanation of behavior to the police which is consistent with his self-serving testimony at trial that conflicts with the prosecution's evidence before the jury.   In such a case, the instruction of necessity casts specific doubt on a defendant's credibility as a witness and singles out defendant's testimony as subject to more particular scrutiny than that attached to prosecution witnesses.”  (Ibid., emphasis in original.)

 We are of the view that CALJIC No. 2.03 does not, as Rubio states, “cast specific doubt on a defendant's credibility.”   It merely tells the jury the obvious, i. e., that if the defendant made a false or misleading statement before trial, they can consider such as evidencing a consciousness of guilt.   Whether the statement is consistent or inconsistent with the defendant's trial testimony is not relevant, especially since any consistency may be due to the accused's desire to mislead the jury.  (Cf. People v. Lopez (1979) 97 Cal.App.3d 117, 121, 158 Cal.Rptr. 569.)   We also disagree with Rubio's rationale that the instruction “singles out defendant's testimony as subject to more particular scrutiny than that attached to prosecution witnesses.”   The instruction does not ask the jury to scrutinize the defendant's testimony any more than the testimony of any other witness.   Rather, it is the pretrial statement of the accused regarding the charge upon which he is being tried to which the attention of the jury is directed.

While the instruction does single out the defendant's testimony, it does so because the principle involved (that particular conduct by the defendant indicates a consciousness of guilt) is uniquely applicable to the defendant.   Similarly, CALJIC No. 2.62 (adverse inference from failure to explain) singles out the defendant's testimony, but there again, the principle is uniquely applicable to the defendant.   Properly instructed in the language of CALJIC No. 2.03, the jury is free to conclude that the defendant made a false pretrial statement which showed a consciousness of guilt and that he followed up at trial with a consistently false statement.   The consistency or inconsistency of the pretrial statement and trial testimony is simply immaterial.

In addition, respondent's contention that the Rubio holding is “constructed out of thin air” is well taken, as the authorities on which Rubio relies—Justice Traynor's concurring opinion in People v. Albertson (1944) 23 Cal.2d 550, 581, 145 P.2d 7, and People v. Showers (1968) 68 Cal.2d 639, 68 Cal.Rptr. 459, 440 P.2d 939—neither compel such a result, nor do they lend themselves to such an interpretation.

 In Albertson, Justice Traynor discusses at length the rule that false statements by a defendant to those investigating the commission of a crime are admissible if they indicate a consciousness of guilt.   However, he does not mention any limitation on that rule where a defendant's testimony at trial is consistent with his pretrial statements, but instead suggests a different practice:  “Before evidence of false statements by a defendant may be received, the court must determine whether the falsehood is one that may be reasonably construed as implying such an admission;  otherwise evidence might be received that is in no way relevant to the issues and therefore seriously prejudicial to the defendant because it indicates to the jury that he is a dishonest person.”  (23 Cal.2d at p. 582, 145 P.2d 7.)   Such a practice would appear to provide an adequate safeguard against any undue prejudice to the defendant.

Rubio's reliance on Showers is even more puzzling.   There the defendant testified that he was looking for money in an ivy patch.   While this testimony was disputed by other evidence that no money was found in the patch, there was no pretrial statement by the defendant.   Perhaps this reliance was based on a cursory reading of that case, for Rubio's assertion that the defendant there “explained to the police that he was searching for lost money in an ivy patch where heroin was found” is simply not supported by the facts of Showers.  (Cf. Rubio, 71 Cal.App.3d at p. 769, 139 Cal.Rptr. 750 with Showers, 68 Cal.2d at pp. 642–643, 68 Cal.Rptr. 459, 440 P.2d 939.)

Finally, while Rubio has been cited in several cases, in none of these decisions was it necessary to apply Rubio's holding in order to reach their results.  People v. Brown (1978) 79 Cal.App.3d 649, 658–659, 145 Cal.Rptr. 130, purports to apply Rubio to a defendant whose pretrial statement was consistent with his testimony at trial.   As noted by the concurring opinion, however, this was unnecessary for that defendant had not appealed.

People v. Vasquez (1979) 94 Cal.App.3d 42, 156 Cal.Rptr. 235 and People v. Gutierrez (1978) 80 Cal.App.3d 829, 145 Cal.Rptr. 823 both cite Rubio in arriving at their holdings.   Unlike the situation in Rubio, however, the defendant's pretrial statement in each of these cases was inconsistent with his testimony at trial.  (Vasquez, at p. 45, 156 Cal.Rptr. 235;  Gutierrez, at p. 836, 145 Cal.Rptr. 823.)   The holdings of Vasquez and Gutierrez are thus supported by the general rule stated in People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, that false statements by a defendant regarding incriminating circumstances are admissible as tending to support an inference of his consciousness of guilt.  (Id., at p. 41, 164 Cal.Rptr. 1, 600 P.2d 468;  Showers, 68 Cal.2d at p. 643, 68 Cal.Rptr. 459, 440 P.2d 939;  Albertson, 23 Cal.2d at pp. 581–582, 145 P.2d 7 (conc. opn. of Traynor, J.);  People v. Osslo (1958) 50 Cal.2d 75, 93, 323 P.2d 397;  see People v. Underwood (1964) 61 Cal.2d 113, 121–122, 37 Cal.Rptr. 313, 389 P.2d 937.)   The citation of Rubio in People v. Green is dictum and thus not controlling since the defendant there did not testify at trial.  (27 Cal.2d at pp. 40–41, 164 Cal.Rptr. 1, 609 P.2d 468;  see People v. McFarland (1980) 108 Cal.App.3d 211, 216–217, 166 Cal.Rptr. 429;  People v. LaSalle (1980) 103 Cal.App.3d 139, 150–152, 162 Cal.Rptr. 816.)

 We find no error in the trial court's instruction pursuant to CALJIC No. 2.03 even though appellant's pretrial statements were consistent with his testimony at trial.

Appellant contends that the trial court considered an improper factor in imposing the upper base term.   The factor to which appellant objects is the trial court's finding that appellant committed perjury, one of the several aggravating factors set forth in California Rules of Court, rule 421(a)(6).¹

 In In re Perez (1978) 84 Cal.App.3d 168, 172, 148 Cal.Rptr. 302, the court held that a sentencing court may consider a defendant's perjury in determining the length of the sentence.   This is a proper factor to consider because it reflects upon the character of the defendant and his prospects for rehabilitation.   However, absent a separate charge of perjury and determination that defendant was guilty of that offense, a finding of perjury for purposes of imposing additional punishment or lengthening an already imposed sentence in order to punish the defendant for perjury is improper as violative of due process (at p. 171, 148 Cal.Rptr. 302).   As a procedural safeguard, “it is incumbent upon a trial judge who injects the subject of perjury into the sentencing process expressly to state the sense in which it has been considered, or such sense should otherwise clearly appear from the record.”  (Id., at p. 173, 148 Cal.Rptr. 302.)

 It appears from the record that the trial court improperly considered its finding that appellant committed perjury for the purpose of punishing him, as there was no independent determination that he was guilty of that offense.   However, this error was not prejudicial.   In addition to the perjury finding, the trial court also found that appellant used a screwdriver in committing the offense (Cal. Rules of Court, rule 421(a)(2)),² and that appellant's prior convictions as an adult or adjudications of commission of crimes as a juvenile were numerous and of increasing seriousness (Cal. Rules of Court, rule 421(b)(2)); ³  these factors were properly considered by the court.   Moreover, the court found that the circumstances in favor of aggravation far outweighed those in favor of mitigation.   Thus, it is not reasonably probable that a different base term would have been selected absent the error.  (People v. Dozier (1979) 90 Cal.App.3d 174, 179, 153 Cal.Rptr. 53;  but see People v. Roberson (1978) 81 Cal.App.3d 890, 893, 146 Cal.Rptr. 777.)

 Appellant contends that the abstract of judgment does not reflect the conduct credit of 34 days in addition to the 105 days actually served.   This contention has merit.  Penal Code section 2900.5, subdivision (d) ⁴ requires that the abstract of judgment include the total number of days credited to the defendant.   The Department of Corrections has established an administrative procedure by which to compute defendant's conduct credits.  (People v. Sage (1980) 26 Cal.3d 498, 509 (mod. at 27 Cal.3d 144a), 165 Cal.Rptr. 280, 641 P.2d 874 [as modified].

Judgment is affirmed.

I concur in the judgment.  People v. Rubio (1977) 71 Cal.App.3d 757, 139 Cal.Rptr. 750 (disapproved on other grounds in People v. Freeman (1978) 22 Cal.3d 434, 438, 149 Cal.Rptr. 396, 584 P.2d 533) and Justice Traynor's concurring opinion in People v. Albertson (1944) 23 Cal.2d 550, 581, 145 P.2d 7, can be read in perfect harmony.   In Albertson, at page 581, 145 P.2d 7, Justice Traynor observes that false (hearsay) statements by a defendant to those investigating the commission of the charged crime are admissible (as admissions) if they indicate a consciousness of guilt.   He adds:  “It has never been suggested, however, that every falsehood voiced by the defendant between the time of the crime and the trial can be admitted on this basis, for it is well known that all persons are liable to make errors in the description of past events.   Consciousness of guilt is proved, not by evidence of such slips, but by fabrications which, like devious alibis, are apparently motivated by fear of detection, or which, like devious explanations of the possession of stolen goods, suggest that there is no honest explanation for incriminating circumstances and thus are admissions of guilt.   Before evidence of false statements by a defendant may be received, the court must determine whether the falsehood is one that may be reasonably construed as implying such an admission;  otherwise evidence might be received that is in no way relevant to the issues and therefore seriously prejudicial to the defendant because it indicates to the jury that he is a dishonest person.  (At p. 582, 145 P.2d 7.)

Rubio does not strike a discordant note.   I do not understand that the Rubio court “unduly limits the giving of CALJIC No. 2.03 to only those cases where a defendant's pretrial statement is inconsistent with his self-serving testimony at trial.”  (Maj. opn., p. 210.)   In Rubio the only reference in the evidentiary record that the defendant had made a prior explanation of his behavior to the authorities which was inconsistent with his self-serving testimony at trial appeared in Rubio's cross-examination.   Rubio was asked whether he told a similar story to the investigating police and he admitted he had.   Without more of a factual showing of the prior consistent statement Rubio holds that under these circumstances it is error to instruct on CALJIC No. 2.03.  (71 Cal.App.3d at p. 769, 139 Cal.Rptr. 750.)   The error is obvious.   In Rubio, there was no opportunity for the trial court to reasonably predetermine whether the prior consistent statement was only a “slip” or a “fabrication,” implying an admission.  (Albertson, at p. 582, 145 P.2d 7.)

The instant case is like Albertson, not Rubio.   Manifestly, it was not error herein to give CALJIC No. 2.03.   When confronted with devastating incriminating circumstances, the least of which was an innocent half-clothed, disheveled and distraught seventh grader displaying an injured discolored eye, appellant gave a pitifully implausible explanation to the police at the crime scene and the following day at the police station.   The officers' testimony was admitted without objection.   The record is silent but I presume the trial court, before instructing, determined appellant was confronted with incriminating circumstances for which there was no honest explanation.   The court properly allowed the jury to evaluate the significance of such a circumstance.  (CALJIC No. 2.03, 1979 rev.)   In my opinion, the Rubio court would concur in this judgment.

Appellant fails to raise the point but it does not appear from the record that the trial court gave CALJIC No. 2.71, defining admission.   However, the trial court's failure to instruct sua sponte inter alia that evidence of oral admission must be viewed with caution was not error;  the defendant's testimony gave the same account as related by the officer.  (See People v. Beagle (1972) 6 Cal.3d 441, 456, 99 Cal.Rptr. 313, 492 P.2d 880.)

The case was not close.   Defining admissions to the jury most certainly would not have produced a more favorable result for appellant.

FOOTNOTES

1.   Rule 421(a)(6) provides:  “Circumstances in aggravation include facts relating to the crime, including ․ (6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process.”

2.   Rule 421(a)(2) provides:  “Circumstances in aggravation include facts relating to the crime, including ․ (2) The defendant was armed with or used a weapon at the time of the commission of the crime, whether or not charged or chargeable as an enhancement under section 12022 or 12022.5.”

3.   Rule 421(b)(2) provides:  “Circumstances in aggravation include facts relating to the defendant, including the fact that ․ (2) The defendant's prior convictions as an adult or adjudications or commission of crimes as a juvenile are numerous or of increasing seriousness.”

4.   Penal Code section 2900.5, subdivision (d) provides:  “It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to and release from custody prior to sentencing, and the total number of days to be credited pursuant to the provisions of this section.   The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.”

SCOTT, Associate Justice.

FEINBERG, J., concurs.