Filed 8/18/14 P. v. Emory CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B251821

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA395791)
         v.

SAUNE EMORY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S.
Rubin, Judge. Affirmed.
         A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
                                     INTRODUCTION


       A jury convicted defendant Saune Emory of first degree residential burglary.
(Pen. Code, § 459.)1 In a bifurcated proceeding, defendant admitted that he had suffered
a prior conviction of a serious felony. (§ 667, subd. (a)(1).) The trial court sentenced
defendant to a total of 17 years in state prison, consisting of the high term of six years,
doubled pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)), plus five years pursuant to section 667, subdivision (a)(1).
       Before trial, the court dismissed (pursuant to § 1385) a second count alleged
against defendant of receiving stolen property (§ 496, subd. (a)). In addition, prior to
resting its case, the prosecution moved to dismiss a special allegation that defendant
committed the burglary for the benefit of a criminal street gang. (§ 186.22, subd.
(b)(1)(B).)2
       On appeal, defendant contends that his conviction should be reversed because the
prosecutor told the jury during her opening statement that it would hear evidence
regarding defendant’s gang affiliation, but she offered no such evidence during trial. He
argues this prejudicially tainted the jury so that he did not receive a fair trial. He further
asserts that the trial court erroneously instructed the jury regarding consciousness of guilt
in a manner that improperly shifted the burden of proof. Because we conclude that the
prosecutor’s statements were not prejudicial given the overwhelming evidence of guilt
and that the instructions were proper, we affirm.




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

2      The trial court previously had denied the defense motion to bifurcate the gang
allegation.

                                               2
                              FACTUAL BACKGROUND


I.     Prosecution Evidence
       At 1:30 p.m. on March 12, 2012, Kon Sok Chae received a phone call from his
wife telling him their home security alarm had been activated. Chae quickly went home.
When he arrived, he heard the security alarm going off. He listened at the front door and
heard men talking inside and rummaging sounds. He was afraid to enter, so he went to
the back of the house and shouted, “Anybody inside? Anybody inside?” He heard
someone say, “Oh, shit, let’s get out, let’s get out, get out.” Chae started toward the front
of the house and saw two young Black males running out of his house. He could see that
each of them was holding something as they ran but he could not see their faces. He tried
to chase them but they were too fast. Chae called the police. His son was with him, and
his daughter and son-in-law arrived shortly thereafter. The four of them entered the
house and saw the house in disarray. Items were strewn all over the floor, and the beds
were turned over. Chae heard a phone vibrating in the living room and saw an unfamiliar
phone on the floor. It apparently had fallen in a gap between the couch and a bay
window that had its screen removed and was standing open. His daughter picked up the
phone and showed it to him, and the screen indicated that it was “Mom” calling. He also
found a glove he did not recognize. The family discovered that a camera worth about
$6,000 was missing, as well as a laptop, various items of jewelry, and two watches
belonging to Chae’s son.
       Officers Jessica Neal and Daniel Rodriguez responded to Chae’s call. Officer
Neal noticed that the front window of the home was open and the window screen was on
the ground nearby. She walked through the home and saw that it was in disarray. She
noticed there was dirt leading from the ground floor to the upstairs.
       Detective Paul Quan investigated the cellular phone found in Chae’s home. After
obtaining a search warrant, Detective Quan viewed the phone and downloaded its
contents. There were numerous self-portraits of defendant stored in the phone. He
discovered that the telephone number assigned as “Mom” belonged to Angela Emory,


                                              3
defendant’s mother. An entry listed as “James” was identified as defendant’s uncle. The
phone had recorded a missed call from James around the time of the burglary.
       In late March 2012, plainclothes officers conducted surveillance at Angela
Emory’s home. On March 30, 2012, a member of the surveillance team, Officer Scott
Cook, stopped defendant and arrested him. Officer Cook searched defendant pursuant to
his arrest and found one of Chae’s son’s watches in the pocket of defendant’s jacket.
       As Officer Brent Hopkins escorted defendant from the police department to the
jail, defendant said, “Damn, you got me dead bang, don’t you?” He continued, “Fuck,
this isn’t going to be a D.A. reject, is it? I mean, this is the kind of thing where you can
bring it in and they look at it and they say, wow, this is something I can really work with,
isn’t it?” He calmly and casually said, “So my DNA and my phone were at the scene, but
that doesn’t necessarily mean I was there, right? I mean, like maybe I was there, but I
wasn’t committing the burglary. Is that something that a lawyer could work with?”
Officer Hopkins was not prompting defendant to converse and did not want to continue
the conversation. He simply said he was not the investigator and he did not know details
about the case. Nonetheless, defendant continued, saying, “I need to get myself one of
those thousand dollar lawyers or I’m looking at some serious time. . . . That’s okay, I’ll
do my time like a man. It’s better to do it in the pen than to sit here in jail.” Officer
Hopkins discussed the conversation with another officer and immediately went to speak
to Detective Quan.


II.    Defense Evidence
       At trial, defendant admitted that the cellular phone found in Chae’s home
belonged to him and that he had taken pictures of himself with that phone. He testified
that a few days before March 12, 2012, he had loaned his phone to a friend. When
defendant saw the friend again, the friend did not return his phone but gave him a watch
in its place. Defendant planned to sell the watch to buy another cellular phone. He
refused to divulge the name of the friend to whom he had loaned his phone.



                                              4
       Defendant testified that on March 12, 2012, his mother had driven him to his
grandmother’s home around 11:00 a.m., where he spent the entire day and stayed
overnight taking care of his son. His mother stayed with him until about 4:00 p.m.
While there, he used his mother’s cellular phone to call his phone to try to locate the
friend to whom he had loaned his phone.
       Defendant admitted that when he was arrested on March 30, 2012, he had Chae’s
son’s watch in his jacket pocket. He testified that he initially lied and told the police he
had bought the watch from “a smoker” (a “crackhead”) because he did not want to be
pressured to tell the police the name of his friend who had given him the watch.
       Defendant said that when speaking to Officer Hopkins as the officer escorted him
to jail, defendant was joking around and “wasn’t being too serious.” He admitted to
making all of the statements to which Officer Hopkins had testified, but he said he did so
because he thought Officer Hopkins seemed “pretty cool” and would know the law and
could probably give him an answer. He said he would man up and do the time because
he was not going to tell the police the name of his friend.
       Defendant testified that on March 12, 2012, he did not go into anyone’s home and
take anything. He admitted that he had been convicted of robbery in January 2011.


                                       DISCUSSION


I.     Prosecutorial Misconduct
       Defendant contends that reversal of the judgment is required because during
opening statement the prosecutor committed misconduct by telling the jury that it would
hear evidence that the burglary was committed in association with and for the benefit of a
criminal street gang, but then dismissed the gang allegation and failed to present any
evidence in support of gang affiliation. We conclude that defendant forfeited the issue by
failing to object in the trial court. Defendant argues that to the extent his trial counsel
failed to object or move for a mistrial on the basis of the prosecutor’s misconduct, he
rendered ineffective assistance of counsel. Even assuming without deciding that his


                                               5
counsel was ineffective for failing to object, we conclude such failure did not result in
prejudice given the overwhelming evidence of guilt, and therefore reversal of the
judgment is not required.


       A.     The Relevant Proceedings
       A gang expert, Los Angeles Police Officer Jonathan Miller, testified at the
preliminary hearing held in early August 2012 that defendant was a member of the
Schoolyard Crips gang and that he committed the burglary on behalf of and for the
benefit of the gang. The magistrate found there was sufficient cause to believe the gang
allegation was true and denied the defense motion to dismiss the allegation. Accordingly,
in the charging information filed in late August 2012, a special allegation pertaining to
the residential burglary count was stated against defendant pursuant to section 186.22,
subdivision (b)(1)(B), that the offense was committed for the benefit of and in association
with a criminal street gang.
       At trial, the trial court read the charges to the prospective jury, including the gang
allegation, making clear that the prosecution had the burden of proving the allegations
beyond a reasonable doubt. During voir dire, when the court asked if anyone would have
difficulty being fair and impartial, two prospective jurors indicated they would have
difficulty because they had had prior negative encounters with gang members. One said
he had been victimized several times by gang members, and if someone were in a gang
he would expect that person to be guilty. Another juror said he had been the victim of
gang violence on a daily basis for two years. The parties stipulated to excuse both
prospective jurors.
       The prosecutor then said during her opening statement: “[T]here’s another part in
this case, and you are going to hear evidence about a gang allegation. You are going to
hear evidence that Mr. Emory is a member of the Schoolyard Crips, which is a violent
criminal street gang, and that one of the things the Schoolyard Crips has been doing, one
of the trending crimes, is something called flocking. Flocking is when young gang
members go outside of their territory and commit residential burglaries in nicer, wealthier


                                              6
neighborhoods. It’s an easy way to get cash. It’s an easy way to get property. It’s an
easy way to get nice things that you either wear or you sell, because in gang culture
reputation is everything. Reputation and respect. And this is something that is recently
trending with gangs. In particular, the Schoolyard Crips are known for flocking. They
send the young gang members in to commit these burglaries, quick easy money, to fund
the gang’s activities, guns, parties, court costs, recruitment. And you’re going to hear
evidence that this residential burglary, because of certain factors, is committed for the
benefit of the Schoolyard Crip[s] criminal street gang.”
       During trial, the trial court conducted an Evidence Code section 402 hearing to
address the admissibility of evidence regarding Douglas Mucker, who was alleged to be a
fellow gang member and the man with whom defendant committed the burglary.3 The
prosecutor stated she intended to call gang expert Officer Miller to testify that he spoke
with the DNA analyst who told him that Mucker’s DNA was recovered from the glove
found at the Chae home. Officer Miller would rely on that evidence to opine that the
burglary was committed for the benefit of the Schoolyard Crips gang.
       The trial court indicated it would not allow Officer Miller to testify that Mucker’s
DNA was found on the glove because that evidence had not been provided to the defense.
In addition, the court held that Officer Miller could not testify to his conversation with
the DNA analyst because it was hearsay. The prosecutor stated that she would lose
credibility with the jury if she did not produce evidence linking two gang members to the
burglary, and as a result of the court’s evidentiary ruling proceeded to bring a motion to
dismiss the gang allegation.
       Defense counsel offered no objection when the prosecutor dismissed the gang
allegation. Nor did she bring a motion for mistrial at the close of the evidence.
Defendant’s new trial motion was the first assertion of a claim of prosecutorial

3      Defendant’s counsel argued for the first time during oral argument that the
prosecutor initiated the section 402 motion to discuss the admissibility of her proffered
gang evidence, and that this shows she knew her evidence was questionable. However,
the record clearly demonstrates that defense counsel brought the section 402 motion at
issue.

                                              7
misconduct based on the prosecutor’s references to gang affiliation during her opening
statement.
       The prosecution did not mention anything about gangs for the remainder of the
trial. Pursuant to the prosecution’s request, the court instructed the jury that “[t]he
allegation that the crime was committed for the benefit of, at the direction of or in
association with a criminal street gang no longer needs to be decided in this case. [¶] Do
not speculate about or consider in any way why you no longer need to decide this
allegation.” The court also instructed the jury that “[n]othing that the attorneys say is
evidence. In their opening statements and closing arguments, the attorneys discuss the
case, but their remarks are not evidence.”


       B.     Analysis
       As defendant points out, where the prosecution asserts facts during opening
statement knowing such facts cannot be proved, such statements of fact followed by no
offer of proof constitute misconduct. (People v. Purvis (1963) 60 Cal.2d 323, 346,
overruled on other grounds as stated in People v. Morse (1964) 60 Cal.2d 631, 642.)
However, Purvis is distinguishable because there the prosecutor knew when he made his
opening statement that his assertions would not be supported by evidence. The
prosecutor was therefore guilty of misconduct and bad faith, and reversal was required on
that basis. In contrast here, while the prosecutor may not have reasonably believed that
DNA evidence (linking defendant’s fellow gang member to the glove found at the Chae
residence) could be admitted by way of Officer Miller’s hearsay testimony, the trial court
did not doubt the prosecutor’s credibility in proceeding as she did. Indeed, the court
assured the prosecutor that she had not “lost any credibility with this court.” From the
record, it appears that at the time she promised the jury that it would hear gang evidence,
she fully intended to present such evidence.
       In any event, it is unnecessary for us to decide if the prosecutor committed
misconduct here. Even assuming without deciding that misconduct occurred, defendant
has forfeited this argument for purposes of appeal by failing to object at trial, either when


                                               8
the prosecutor made the opening statement or when the prosecutor moved to dismiss the
allegation. Defense counsel also did not move for a mistrial.4 “To preserve a misconduct
claim for review on appeal, a defendant must make a timely objection and, unless an
admonition would not have cured the harm, ask the trial court to admonish the jury to
disregard the prosecutor’s improper remarks or conduct.” (People v. Martinez (2010) 47
Cal.4th 911, 956.) The trial court here was given no opportunity to address the alleged
misconduct and cure any potential harm.
       Defendant contends that even if we conclude that he forfeited his claim of
prosecutorial misconduct, the claim is still cognizable on appeal under the rubric of
ineffective assistance of counsel based on defense counsel’s failure to move for a
mistrial. We conclude, however, that defendant has not demonstrated ineffective
assistance of counsel. “‘In order to demonstrate ineffective assistance of counsel, a
defendant must first show counsel’s performance was “deficient” because his [or her]
“representation fell below an objective standard of reasonableness . . . under prevailing
professional norms.” [Citations.] Second, he must also show prejudice flowing from
counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” [Citations.]’” (In re Avena (1996)
12 Cal.4th 694, 721; see Strickland v. Washington (1984) 466 U.S. 668, 687-694
(Strickland); People v. Cunningham (2001) 25 Cal.4th 926, 1003.) However, the
assessment of prejudice is not “solely one of outcome determination. Instead, the
pertinent inquiry is ‘whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.’ [Citation.]” (Avena, supra,

4       We reject defendant’s argument that his request to bifurcate the trial of the gang
allegations was equivalent to an objection to the prosecutor referring to the gang evidence
in her opening statement. Seeking bifurcation to avoid the jury hearing about gang
affiliation when considering the charged primary crime is wholly distinct from objecting
on the ground that a prosecutor made a statement in opening remarks to the jury that she
could not support with evidence.

                                              9
12 Cal.4th at p. 721.) “[T]he petitioner must establish ‘prejudice as a “demonstrable
reality,” not simply speculation as to the effect of the errors or omissions of counsel.’”
(In re Clark (1993) 5 Cal.4th 750, 766.)
       Where a defendant fails to show prejudice, a reviewing court may reject a claim of
ineffective assistance of counsel without reaching the issue of deficient performance.
(Strickland, supra, 466 U.S. at p. 697. See also People v. Jacobs (2013) 220 Cal.App.4th
67, 75-76.) We do so here. Even if we were to find defense counsel’s performance
deficient, it is not reasonably probable that a different result would have been reached.
Considering the overwhelming evidence against defendant, the prosecutor’s comments,
even if improper, could not have contributed to the verdict and would not have been
grounds for a mistrial. (See In re Crew (2011) 52 Cal.4th 126, 150.)
       Defendant contends that the only evidence connecting him to the burglary was the
fact his cell phone was found at the scene. Not so. Additional damning evidence
included the fact that Chae’s son’s watch was found in defendant’s pocket when he was
arrested. Defendant’s unsolicited statements to Officer Hopkins also supported the jury’s
finding of guilt. A reasonable inference from his statements was that he knew the case
against him was extremely strong because his cell phone was found at the scene, giving
the district attorney ample evidence with which to charge him. In his statements to the
officer, he initially seemed to be attempting to create a defense, all but conceding that he
was present at the scene but perhaps not participating in the burglary. However, he then
opined that he needed an extremely capable lawyer and vowed to “do [his] time like a
man.” His explanations that a friend borrowed his cell phone and gave him the watch in
its place, and that he was merely kidding around with Officer Hopkins, were predictably
unconvincing to the jury in light of the strong evidence against him. In addition, by
instructing the jury (1) to disregard the dismissed gang allegation and not speculate on its
absence, and (2) that statements of counsel do not constitute evidence, the court in effect
admonished the jury in a manner adequate to cure any harm from the prosecutor’s
remarks. The jury is presumed to follow the court’s instructions and disregard any
statements that were not based on the evidence produced at trial. (People v. Smith (2007)


                                             10
40 Cal.4th 483, 517.) Thus, with or without the reference to gang involvement, the
evidence was overwhelming that defendant was guilty of burglary. Accordingly, it is
exceedingly unlikely the trial court would have granted a mistrial if defense counsel had
requested one. Defendant successfully requested pro. per. status after the jury rendered
its verdict and brought a motion for new trial based on the alleged prosecutorial
misconduct, which motion the trial court denied. Defendant has not shown there is a
reasonable probability that, but for the prosecutor’s reference to gang affiliation and
defense counsel’s failure to move for a mistrial on that basis, the result of the proceedings
would have been different.


II.    Instruction Regarding Consciousness of Guilt (CALCRIM No. 362)
       Defendant further contends that the trial court committed error by instructing the
jury using CALCRIM No. 362 regarding consciousness of guilt because the instruction
improperly shifted the burden of proof and violated his state and federal constitutional
rights to a jury trial and to due process. We disagree.


       A.     The Relevant Proceedings
       Defendant testified at trial that he loaned his cell phone to a friend, and a few days
later the friend no longer had the cell phone but gave him a watch as a replacement for
the cell phone. Defendant refused to divulge the name of the friend to whom he loaned
his cell phone and from whom he received the watch. Defendant admitted that at the
time of his arrest he told the investigating officer that he bought the watch from a
crackhead for $20.
       Defense counsel objected to the court giving CALCRIM No. 362 regarding
consciousness of guilt and false statements. He argued that the bench notes for the
instruction indicate that, pursuant to People v. Rankin (1992) 9 Cal.App.4th 430
(Rankin), it is error to give the instruction where a defendant lied to protect an
accomplice. Counsel argued that defendant testified he made a false statement to the
police because he did not want to give any names to get anyone in trouble.


                                             11
       The trial court disagreed with counsel regarding the state of the evidence. The
court reasoned as follows: “We don’t have any evidence that at the time he received the
watch that he thought it was stolen. If we did, he’d probably be charged with receiving
stolen property. He’s not at this point. Also we don’t have any information that the
defendant knew anything about this burglary at the time he was interviewed or that the
watch was stolen, so why would he make up a story? I think it’s very different than
Rankin, which dealt with an accomplice, if I remember correctly, or accessory after the
fact. We’ve got a different situation here. Had the defendant said something like, you
know, I got it from a friend that I won’t tell you the friend’s name, like he said on the
stand, I wouldn’t give this instruction. But he made up a whole other scenario about he
bought it for $20 from a crackhead or something that is really not a story to protect the
friend. He didn’t have to say anything. I think the jury has a right to evaluate that, and
I’m going to give instruction 362.”
       CALCRIM No. 362, as read to the jury, states as follows: “If the defendant made
a false or misleading statement before this trial relating to the charged crime, knowing the
statement was false or intending to mislead, that conduct may show he was aware of his
guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude
that the defendant made the statement, it is up to you to decide its meaning and
importance. However, evidence that the defendant made such a statement cannot prove
guilt by itself.”


       B.      Analysis
       In Rankin, supra, 9 Cal.App.4th 430, the defendant was convicted of being an
accessory after the fact to a robbery committed by William Austin, also known as
“Chill,” and of acquiring a credit card that had been taken in the robbery. Defendant used
the card three days after the robbery. When questioned by a police officer shortly
thereafter, he said that three people were involved in the use of the credit card: himself,




                                             12
Dwayne Elliott, and someone named “Chilly B.”5 (Id. at p. 434.) Later, he told the
officer that “Chilly B.” had not been involved, but said that he had lied to protect Austin.
(Ibid.)
          At trial, the defendant explained that before his first statement implicating
“Chilly B.,” Austin had implicitly threatened to kill him. Because the defendant was
concerned for his family, he went along with Austin’s plan to blame “Chilly B.” (Rankin,
supra, 9 Cal.App.4th at pp. 434-435.)
          Based on the defendant’s false statement implicating “Chilly B.,” the trial court
gave CALJIC No. 2.03, the predecessor to CALCRIM No. 362. The Court of Appeal
held that the giving of the instruction was error. The court reasoned in part:
“[Defendant’s] false statement about where he obtained the card does not really concern
his liability for using the card—he never denied he knew the card was stolen—and in any
event does not reflect a consciousness of guilt. It had the same effect as if he falsely told
[the police] he ate a chocolate rather than vanilla ice cream cone while at the mall. [¶]
More crucially, however, CALJIC No. 2.03 should never be given unless it can be
inferred that the defendant made the false statement for the purpose of deflecting
suspicion from himself, as opposed to protecting someone else. [Citation.] Only under
such circumstances does a false statement indicate a consciousness of the defendant’s
own guilt, thus becoming admissible against him.” (Rankin, supra, 9 Cal.App.4th at
p. 436, fn. omitted.)
          As reasoned by the trial court, the instant case is distinguishable from Rankin. In
Rankin, the Court of Appeal concluded that the defendant’s false implication of
“Chilly B.” did not indicate consciousness of the defendant’s own guilt regarding the

5       The Rankin opinion contains an apparent misstatement: “When Rankin was
questioned by Detective Janet Wright on October 26, he . . . insisted there were three
persons involved: himself, Austin and a ‘Chilly B.’ Although Wright knew that Austin
was referred to by the nickname ‘Chill,’ Rankin maintained that ‘Chilly B.’ was a
different person.” (9 Cal.App.4th at p. 434, italics added.) It seems clear that the
italicized name should have been Dwayne Elliott (Rankin’s friend who pled guilty to
accessory after the fact), rather than Austin, because Rankin later admitted that he had
said Chilly B. was involved in order to protect Austin. (Ibid.)

                                                13
credit card charge, because the defendant never denied that he knew the credit card he
used was stolen. In that circumstance, falsely identifying an accomplice who did not
exist in the acquisition of the card did not suggest that the defendant was attempting to
deflect suspicion from himself.
       By contrast, here, defendant never suggested that he knew the watch was stolen.
In that context, it could reasonably be inferred that by saying he obtained the watch from
a crackhead, defendant sought not to protect an accomplice or an unnamed friend (whom
he did not implicate in any crime), but to protect himself from being incriminated in the
burglary. It can readily be inferred that he “made the false statement for the purpose of
deflecting suspicion from himself, as opposed to protecting someone else.” (Rankin,
supra, 9 Cal.App.4th at p. 436.) As the trial court stated, “he made up a whole other
scenario about he bought it for $20 from a crackhead or something that is really not a
story to protect the friend. He didn’t have to say anything.”
       The fact that evidence of the statement was introduced by defendant’s own
testimony does not affect the propriety of the instruction. Defendant’s testimony was
substantial evidence that the statement was made, and the evidence at trial was substantial
evidence not only that the statement was false, but that defendant sought by the statement
to deflect suspicion from himself concerning the burglary.
       Beyond whether CALCRIM No. 362 was applicable under the factual scenario
present here, defendant asserts that the instruction is constitutionally infirm because it
provides “nonreciprocal benefits” to the prosecution. Defendant cites Wardius v. Oregon
(1973) 412 U.S. 470, in which the United States Supreme Court stated that “state trial
rules which provide nonreciprocal benefits to the State when the lack of reciprocity
interferes with the defendant’s ability to secure a fair trial” violate the 14th Amendment’s
guarantee of due process. (Id. at p. 474, fn. 6.) Defendant argues that instructions
relating to a defendant’s consciousness of guilt are constitutionally infirm because they
invite jurors to consider certain types of evidence as indicating an accused’s guilt of the
charged offense without concurrent instructions pinpointing evidence which is indicative
of his innocence. He points out that the California Supreme Court has forbidden


                                             14
instructions which say that the lack of guilty conduct supports an acquittal. (See, e.g.,
People v. Green (1980) 27 Cal.3d 1, 38.)
       As stated by the Supreme Court, we recognize that “[t]here should be absolute
impartiality as between the People and the defendant in the matter of instructions,
including the phraseology employed in the statement of familiar principles.” (People v.
Moore (1954) 43 Cal.2d 517, 526-527.) This does not mean, however, that the giving of
CALCRIM No. 362 in the instant case was constitutionally infirm. “Our Supreme Court
has squarely held that CALJIC No. 2.03 [the predecessor to CALCRIM No. 362] is not
an improper ‘pinpoint’ instruction. (People v. Arias (1996) 13 Cal.4th 92, 143; People v.
Kelly (1992) 1 Cal.4th 495, 531-532.) The court explained in Kelly, ‘CALJIC No. 2.03
. . . does not merely pinpoint evidence the jury may consider. It tells the jury it may
consider the evidence but it is not sufficient by itself to prove guilt. [Citation.] Defendant
obviously does not quarrel with the emphasized language. If the court tells the jury that
certain evidence is not alone sufficient to convict, it must necessarily inform the jury,
either expressly or impliedly, that it may at least consider the evidence. . . . There was no
error.’ (Kelly, supra, 1 Cal.4th at pp. 531-532.) [¶] Although there are minor differences
between CALJIC No. 2.03 and CALCRIM No. 362 . . . , none is sufficient to undermine
our Supreme Court’s approval of the language of these instructions.” (People v.
McGowan (2008) 160 Cal.App.4th 1099, 1103-1104, fn. omitted.)
       Deliberately false statements by a defendant about matters materially related to his
or her guilt or innocence “have long been considered cogent evidence of a consciousness
of guilt, for they suggest there is no honest explanation for incriminating circumstances.
[Citation.] Moreover, permitting the jury to draw an inference of wrongdoing from a
false statement is as much a traditional feature of the adversarial fact finding process as
impeachment by prior inconsistent statements. [Citations.]” (People v. Williams (2000)
79 Cal.App.4th 1157, 1167-1168.) Indeed, “[t]he inference of consciousness of guilt
from willful falsehood . . . is one supported by common sense, which many jurors are
likely to indulge even without an instruction. In this case, such circumstantial evidence
of consciousness of guilt . . . would certainly have been argued—properly—by the


                                             15
prosecutor even without the challenged instructions. To highlight this circumstantial
evidence in the course of cautioning the jury against overreliance on it was not unfair to
defendant.” (People v. Holloway (2004) 33 Cal.4th 96, 142.)
       Nor did the instruction lighten the prosecution’s burden of proof. Indeed, “‘[t]he
cautionary nature of the instructions benefits the defense, admonishing the jury to
circumspection regarding evidence that might otherwise be considered decisively
inculpatory.’ (People v. Jackson (1996) 13 Cal.4th 1164, 1224; see also People v. Kelly[,
supra,] 1 Cal.4th 495, 531.)” (People v. Holloway, supra, 33 Cal.4th at p. 142.) Thus,
the instruction benefited defendant by informing the jurors it was up to them to decide the
meaning and importance of any evidence of false statements and, no matter what the
weight given to that evidence, the evidence could not be used by itself to prove guilt. In
addition, the instruction’s impartiality was strengthened when considered in light of other
instructions requiring the prosecution to prove each element of the crimes beyond a
reasonable doubt. We conclude there was no instructional error here.


                                     DISPOSITION


       The judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                 EDMON, J.*

We concur:



       EPSTEIN, P. J.                            WILLHITE, J.


*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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