Opinion
E073048
03-05-2021
THE PEOPLE, Plaintiff and Respondent, v. BRANDON LAMAR DANCY, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott Taylor, Alana Cohen Butler and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1804146) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott Taylor, Alana Cohen Butler and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Brandon Lamar Dancy of felony domestic abuse (Pen. Code, § 273.5, subd. (a)), felony false imprisonment (Pen. Code, § 236), unlawful possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), possession of drug paraphernalia (Health & Saf. Code, § 11364), and possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1). The trial court sentenced him to four years eight months in prison. On appeal, he contends: (1) the court erred in admitting video evidence of the victim's statement to the officers; (2) there is insufficient evidence of his conviction of felony false imprisonment; and (3) the court erred in instructing the jury on adoptive admissions. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
In the early morning of July 26, 2018, Jane Doe called 911 to report defendant had punched her in the face. According to the recorded call, Doe's "ex" (defendant) was visiting her in her motel room. She left the room to go to a store. When she returned, he "was just trippin,'" and she asked him to leave. He refused to leave. When she "was trying to leave," he "was holding [her] in the room." When she started screaming "for somebody to help [her] because [defendant] threatened [her]," he told her that if she did not "stop screaming," he would "sock [her] out." She continued to scream, and defendant "socked [her] out." Doe told the 911 dispatcher that defendant "walk[s] around with a gun" "in his waist."
Officers Mercado and Wallace responded to the 911 call. Wallace was wearing a body camera, which recorded their interview of Doe. Doe again said that defendant was her "ex," and they had been together for "two years." Defendant was "mad 'cause [she] was too late or whatever" returning from the store. She asked him to leave. He refused to leave, "threaten[ed]" her, and said, "if [she] start[ed] screaming he was gonna" "sock [her] out." She then tried to leave, but he "wouldn't let [her]. . . . And he wouldn't leave." They were "tussling," he "sock[ed her]," which caused her head to "spin, and [she] fell on the floor."
During the interview with the officers, defendant called Doe's cell phone, which she handed to one of the officers. Believing Doe was on the line, defendant asked for his property. When the officer identified himself and asked defendant to return to the motel, he hung up.
Doe described defendant's physical features, provided his name and possible location, and showed the officers his picture on social media. The officers obtained defendant's DMV photograph. Doe also informed the officers that defendant "normally" carries a black gun, "a smaller nine."
On August 12, 2018, at approximately 6:00 a.m., Officer Mercado was on patrol and observed defendant leaving another motel, which was in the same vicinity where Doe's assault had occurred. The officer recognized defendant as Doe's assailant. Remembering Doe's assertion that defendant carried a gun in his waistband, the officer contacted defendant and placed his hands behind his back. Initially, defendant was cooperative; however, as the officer "tried to pat him down for weapons," defendant tensed up and pulled away. Believing defendant was reaching for his gun, the officer moved his right hand to the front of defendant's waistband, and defendant "pulled away." Both men fell to the ground, and the officer "was able to reach for the front of [defendant's] waistband, and that's when [he] located the loaded firearm in the front of his waistband." The officer grabbed "the butt of the firearm, which is the grip handle part of it, in [his] right hand and thr[e]w it towards the sidewalk where the contact was initially made, away from [defendant], away from [him], and so [defendant] [couldn't] reach it, [and] possibly use it." In the struggle, Officer Mercado's body camera was accidentally dislodged. The officer placed defendant in handcuffs and then retrieved a loaded nine-millimeter handgun, which he had taken from defendant's waistband. A body search produced a methamphetamine pipe. At the police station, a usable amount of methamphetamine was found in defendant's wallet.
During trial, a domestic violence expert testified about the cycle of violence typically seen in domestic violence relationships. He explained that in an abusive relationship, the victim usually remains with the abuser and, when the victim reports the abuse to the authorities, she often recants earlier statements because she is in a different phase of the abusive relationship.
Defendant's sister and defendant both testified that he was at her home from 6:00 or 7:00 p.m. on July 25 until the morning of July 26, 2018. Defendant stated he knew Doe from "encounters on the streets," but he did not have a romantic relationship with her; he denied restraining, assaulting, or threatening her on the day she called 911; and when asked if he "ever" had a gun on him, he said, "No." According to defendant, on the day of his arrest, the officer approached and asked if he was on probation or parole, and he replied that he was not. The officer got out of the patrol car, took his body camera off, and told defendant that "he knew who [defendant] was" and "asked" about Doe. Defendant replied, "'I don't know.'" Defendant also testified that when he asked the officer why he had taken his body camera off, the officer put it back on and then asked for defendant's identification. Defendant stated that he complied with the command to place his hands behind his back, but the officer "attacked" him. Defendant was "shocked" that he was being "assaulted by the police" and asked, "'Why are you doing this?'" According to defendant, while the two were on the ground, the officer took off his body camera and "slid it to the curb." "That's the noise that you hear" on the video. Defendant denied possessing a gun but conceded possession of the pipe and methamphetamine. He also admitted to having been convicted of felony domestic violence in 2005. The parties stipulated that he was "'lawfully prohibited from possessing a firearm and has been so prohibited during all events discussed in this trial.'"
The body camera video contains two sounds of objects skidding over the pavement. The first, at 6:10:03, sounds like a lightweight object, and the second, at 6:10:10, sounds like a heavyweight object. Officer Mercado testified that the body camera is not made out of metal, and the sound of a heavyweight object skidding over the pavement is "the noise of the firearm sliding up against the street from when [he] threw it from the middle of the intersection towards the north sidewalk."
II. DISCUSSION
A. The Trial Court Properly Admitted Doe's Recorded Police Interview.
Defendant contends the trial court erred in admitting the police officer's body camera interview of Doe, in its entirety, because it was inadmissible as a prior inconsistent statement (Evid. Code, §§ 1235, 770) or past recollection recorded (Evid. Code, § 1237), given her testimony that she could not remember the incident or her statements to the officers. We disagree.
Defendant mistakenly references Evidence Code section 790.
1. Additional background information.
By way of pretrial motions, the prosecution sought to introduce the recordings of Doe's 911 call and the police interview. Simultaneously, defendant sought to exclude these recordings. The trial court ruled the 911 call was admissible under the spontaneous statement exception to the hearsay rule, but it concluded that the recorded interview was inadmissible testimonial evidence. However, the court noted that should Doe testify contrary to her prior statements, the recorded interview would be admissible for impeachment purposes.
The court stated: "If she does testify and testifies contrary to her statements made previously, clearly, they would be admissible as prior inconsistent statements. The hard point would be whether or not they would qualify as excited utterances, and I'm sure they were, based upon the offers of proof of counsel. I think that she was still operating under the stress of the event and the excitement of the moment. But it sounds to me as if the statements clearly were testimonial in effect, and I can't see them being admissible under Crawford [v. Washington (2004) 541 U.S. 36] and their progeny on that basis."
At trial, Doe testified she was "just friends" with defendant, never had a dating relationship with him, and did not know where he lived. She stated she was forced to appear in court. She claimed she did not recall the July 2018 incident and that listening to her 911 call did not help her remember any details. When she was shown pictures of her mouth, she said she did not recall the injury or remember speaking with the officers. The only thing she did remember was that she had smoked marijuana on the night in question. Doe admitted she wrote a letter to defendant's trial counsel and specifically stated, "'He's innocent.'" When defense counsel asked, "And when you said, 'He's innocent,' did you mean essentially that he never hit you?," Doe replied, "Yes." She later added, "Because I don't remember."
On redirect, the following exchange occurred: "Q. You don't remember anything about that night. That's your testimony; right? [¶] A. I don't remember. I honestly don't." When asked how she knew that defendant was innocent, Doe explained, "Because I don't know who—it—I don't know, so you can't blame somebody that you don't know."
2. Analysis.
"A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770. The 'fundamental requirement' of [Evidence Code] section 1235 is that the statement in fact be inconsistent with the witness's trial testimony." (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) "In normal circumstances, the testimony of a witness that he does not remember an event is not 'inconsistent' with a prior statement by him describing that event. [Citation.] But justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness." (People v. Green (1971) 3 Cal.3d 981, 988.) "When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's 'I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper." (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220; see People v. Perez (2000) 82 Cal.App.4th 760, 764 ["[A] trial witness's deliberately evasive forgetfulness is an implied denial of prior statements, which creates 'inconsistency in effect' and authorizes admission of the witness's prior statements under Evidence Code section 1235."].) We review a trial court's evidentiary rulings for abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 462.)
"Evidence Code section 1235 provides as follows: 'Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.'
"Evidence Code section 770 provides that: 'Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.'"
Here, there is ample evidence indicating that Doe's "I don't remember" statements were intentionally evasive and untrue. She admitted her unwillingness to testify at defendant's trial. When asked if she wanted to be there, she retorted, "Um, no." When asked, "Are you only here today because we forced you to come in?" She replied, "Yes." Doe testified that defendant was "just a friend" that she knew "from the streets." Defendant acknowledges that Doe was selectively forgetful about the incident because she "could not remember most of the events." (Italics added.) Although she remembered the motel room, and that she sometimes stayed there when defendant was present, she could not recall the incident of July 26, 2018. When presented with her 911 call, she still could not remember the incident that occurred less than nine months prior to her trial testimony on April 4, 2019. (See People v. Green, supra, 3 Cal.3d at p. 988 [two months is an indication of evasiveness]; see also People v. Sam (1969) 71 Cal.2d 194, 208-210 [two years may support true forgetfulness].) Moreover, Doe wrote a letter to defendant's trial counsel and specifically stated, "'He's innocent.'" When defense counsel asked her about the statement, "'He's innocent,' did you mean essentially that he never hit you?," she replied, "Yes." She later added, "Because I don't remember."
Doe's responses strongly support the inference that she was a reluctant witness, who had no interest in providing testimony that would harm defendant or assist the prosecution. Because of this evidence, the trial court could reasonably conclude that she was deliberatively evasive when she repeatedly stated that she did not remember any part of the incident. (People v. Green, supra, 3 Cal.3d at pp. 987, 988 & fn. 6 [A court can infer incredibility of a witness's testimony from selective forgetfulness, the interval between the events and the testimony, and other indicators of reluctance to testify.].)
Defendant asserts it is unclear why the trial court permitted the introduction of the entire video recording, even though Doe was not deemed a hostile witness. However, given Doe's reluctance to testify and loss of memory of the incident prompting her 911 call, the court must have relied on the hearsay exception for inconsistent statements. (People v. Cowan, supra, 50 Cal.4th at p. 463 ["[A] witness's deliberate evasion of questioning can constitute an implied denial that amounts to inconsistency, rendering a prior statement admissible under Evidence Code section 1235. [Citations.] Normally, the question of evasiveness arises when[, as here,] a witness claims memory loss about the subject of the questioning."].) Given her inability to recall any relevant interaction with defendant, we cannot say the court abused its discretion in admitting the entire video recording of Doe's interview to provide the jury a complete picture of the incident in question.
Notwithstanding the above, defendant argues his "case falls squarely within the holding of People v. Simmons (1981) 123 Cal.App.3d 677 (Simmons). In Simmons, after a witness made a statement to the police about the crime and signed a written statement repeating that testimony, he received a serious head injury causing amnesia. (Id. at p. 679.) At trial, the witness could not recall anything about the statement he had made to the police. "[H]e could not say the contents were true, or even that he had made any statement whatsoever to the police." (Ibid.) He did "not recall any event recorded in his prior statement, nor even making it or any circumstance surrounding its preparation." (Id. at p. 682.) On those facts, the Court of Appeal held the statements were (1) statutorily inadmissible since there was no inconsistency with his amnesia, and (2) constitutionally offensive since there was no cross-examination to satisfy the confrontation clause. (Ibid.)
Defendant's reliance on Simmons is misplaced for two reasons. First, the express finding of genuine amnesia in Simmons is inapposite to the implicit finding of inconsistency from the evasive and selective forgetfulness suffered by Doe. Second, as defendant acknowledges, "the additional holding in Simmons, that admission of such evidence also violated the defendant's federal constitutional right to confront witnesses, was abrogated by United States v. Owens (1988) 484 U.S. 554." (People v. Gunder (2007) 151 Cal.App.4th 412, 419, fn. 7 ["Simmons is not of any precedential value as it predates the controlling case of United States v. Owens."].)
Considering the evidence of Doe's deliberate evasiveness, we conclude the trial court did not abuse its discretion in admitting the testimony of the police officer's body camera interview.
Because one ground for admissibility is enough, we need not consider whether Doe's interview was also admissible as a spontaneous statement or as a past recollection. (See People v. Sanchez (2019) 7 Cal.5th 14, 39 ["Because one ground for admissibility is sufficient, we need not consider whether the statement to [the officer] was also admissible on the other grounds the court cited."]; see also People v. Cowan, supra, 50 Cal.4th at p. 465.)
B. Sufficient Evidence Supports the Felony False Imprisonment Conviction.
Defendant contends there is insufficient evidence to support his conviction for felony false imprisonment because the prosecution never argued, nor proved, that defendant used force or menace to keep Doe from leaving the motel room. Defendant further contends that we should reverse this conviction or, alternatively, exercise our authority and reduce it to a misdemeanor with an appropriate reduction in his sentence. We reject his contentions.
On a challenge to the sufficiency of the evidence, our task is to "determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
Here, the issue is whether the evidence supports a finding that defendant committed felony, as opposed to misdemeanor, false imprisonment. False imprisonment is "the unlawful violation of the personal liberty of another." (§ 236.) It occurs when the defendant intentionally restrains, confines, or detains another person without his or her consent for "'"an appreciable length of time, however short."'" (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) False imprisonment is a misdemeanor unless it is "effected by violence, menace, fraud, or deceit," in which case it is a felony. (§ 237, subd. (a).) "'Force is an element of both felony and misdemeanor false imprisonment.'" (People v. Castro (2006) 138 Cal.App.4th 137, 140.) In the case of felony false imprisonment by violence, the force used to accomplish the restraint must be something greater than that reasonably necessary to effect the restraint. (People v. Williams (2017) 7 Cal.App.5th 644, 672 ["Violence is '"'"the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint."'"'"]; accord, People v. Dominguez (2010) 180 Cal.App.4th 1351, 1357 [Absent the use of force that is greater than that reasonably necessary to restrain a victim, a defendant is guilty of misdemeanor false imprisonment.].) False imprisonment by menace entails "'a threat of harm express or implied by words or act.'" (People v. Islas (2012) 210 Cal.App.4th 116, 123.) "When a defendant ordered his victims to sit and when they resisted, told them '"If you don't, then I will do something,"' '[t]hese words alone, in context, constituted evidence of an implied, if not express, threat to harm them' and established menace. [Citations.] 'Threats can be exhibited in a myriad number of ways, verbally and by conduct.'" (People v. Williams, supra, 7 Cal.App.5th at p. 672.) "In determining whether there has been an express or implied threat of harm, the trier of fact 'properly may consider a victim's fear.'" (People v. Newman (2015) 238 Cal.App.4th 103, 121.)
Felony false imprisonment is punishable by imprisonment in state prison for 16 months, two years, or three years. (§§ 18, 237, subd. (a).) Misdemeanor false imprisonment is punishable by imprisonment in the county jail not to exceed one year and/or a fine of $1,000. (§ 237, subd. (a).)
The circumstances show that defendant's conduct supports his felony false imprisonment conviction. According to Doe's 911 call and statements she made to the officers, defendant was "super trippin'" at the time he was "holding [her] in the room." He "was just getting out of hand" and "started threatening [her]." He would not let Doe leave the motel room. When she "went in the bathroom and . . . was trying to gather [her] stuff, . . . he . . . [w]ouldn't let [her] leave." She decided to "scream and act . . . belligerent and crazy, . . . so somebody would . . . help [her]." Defendant threatened to "sock [her] out" if she screamed. When she did scream, he "really socked [her] out. And he left." The restraint ended only after defendant hit Doe. Until that time, she was "scared for [her] life." (See People v. Newman, supra, 238 Cal.App.4th at p. 121 [subjective fear of victim relevant in determining sufficiency of evidence of menace].)
Nonetheless, defendant argues that "Doe's recorded statements are not enough to support [his] conviction" because "the subsequent threat and punch were not designed to keep her there." He points to (1) the trial court's "skepticism" regarding the sufficiency of the evidence to support a felony conviction, and (2) the prosecutor's closing argument, which confirmed the punch was to stop Doe from screaming, not to restrain her movement. Although the trial judge personally questioned whether the evidence was sufficient to support a felony conviction, it properly concluded there was "sufficient evidence to go to the jury." The jury was instructed on both felony and misdemeanor false imprisonment. Regarding the prosecutor's statements, "[i]t is elementary . . . that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.) Thus, contrary to defendant's suggestion, the jury need not have found him guilty of only misdemeanor false imprisonment because he did not punch Doe to effect the restraint. As previously stated, menace just requires an express or implied threat of harm. (People v. Dominguez, supra, 180 Cal.App.4th at p. 1359; see People v. Islas, supra, 210 Cal.App.4th at pp. 124-127 [finding evidence supported conviction for felony false imprisonment where there was no touching].) Based on the evidence, the jury could have reasonably concluded defendant did not merely restrain Doe, but he also used menacing behavior to threaten her and place her in fear for her life or safety. This level of menace is enough to support a conviction for felony false imprisonment.
After the prosecution rested, defense counsel moved to dismiss the charge of felony false imprisonment on the grounds of insufficient evidence. (§ 1118.1.) The trial court observed, "I think the evidence is, at best, extremely thin. . . . It seems to me there's a couple of statements in, I think one being the 911 call and then another in one of the interview statements. The recorded statements from the body cam where the . . . complaining witness . . . says, um, 'He wouldn't let me leave,' but that's about it. There's no recital of the circumstances of any threat or use of threat or violence or any other manner of causing her to feel that she would not be able to leave. It might support . . . a misdemeanor charge, but I'm not sure whether it would support a felony."
"Count 2 is felony false imprisonment, which just means that he restrained her either physically, like 'No, you cannot go,' or by threat of violence. In this case, obviously, it's the latter; right? Because after he punches her, he does leave. I'm not saying he punched her to keep her there. I'm saying that when he threatened her, 'If you yell, I'm going to hit you,' and not letting her leave, that's the threat of violence. And that it was against her will, which she told officers very clearly. That was the whole reason she called."
C. The Jury Was Properly Instructed on Adoptive Admissions.
Defendant contends the trial court erred in instructing the jury on adoptive admissions (CALCRIM No. 357) because the evidence did not support the instruction. No error occurred.
1. Additional background information.
When defendant was apprehended on August 12, 2018, Officer Mercado's body camera video captured their exchange. Exhibits 3 and 3A, redacted versions of the video and audio transcript, were admitted into evidence. No issue of defendant's adoptive admissions was raised. During his testimony, he denied possessing a gun or ammunition that day. He claimed he was unaware a gun was involved until the officer mentioned it while he was sitting on the curb in handcuffs. He accused the officer of planting the gun.
Although defendant was handcuffed for officer safety, he was not subject to arrest at that point, and his rights under Miranda v. Arizona (1966) 384 U.S. 436 were not implicated.
In rebuttal, the prosecutor called Officer Mercado and played an unredacted version of the body camera video. As the video shows, Officer Mercado accused defendant of beating up his girlfriend, or ex-girlfriend, who had provided a description of him and warned that he always carried a gun in his waistband. Officer Mercado testified that defendant did not deny, nor respond to, the statement that he "carried that gun on [his] waistband every single time." However, he denied having a girlfriend or beating her up.
Defendant testified that the video recording had been edited and did not show everything that had happened. At defense counsel's request, the video was redacted to remove any references to gangs or gang membership; however, defendant refused to stipulate to that fact. Consequently, the trial court allowed the prosecution to play the unredacted video in rebuttal.
The relevant portion of the transcript provides: "MERCADO: Last time when you beat up your girlfriend at the La Sierra Apartments . . .
"DANCY: I didn't beat her up.
"MERCADO: Yes, you did. I gave you . . .
"DANCY: La Sierra . . .
"MERCADO: . . . a phone call that day. She described you exactly how you are, dude. Go ahead.
"MAN: Do ya have a paper tag back here?
"DANCY: Hey officer, did you find my glasses? I can't see without those. If—if ya don't mind. At the least, my glasses.
"MERCADO: Your sister that stays on Abbotsford—your ex-girlfriend or who—whoever she is to you—described exactly who you are. I ran you on CAL Photo ID, and she told me exactly how you carry that gun on your waistband every single time. Eh, left one -safety.
"DANCY: I didn't beat nobody up. And how is that, like . . .
"MERCADO: Huh?
"DANCY: . . . if I beat somebody up—'cause for one, I don't have a girlfriend, ya know, and I refuse to talk—to beatin' somebody up. A girlfriend I don't' got, ya know?"
During closing argument, as the prosecutor began to address the legal principles of adoptive admissions, he asked if the trial court wanted to "discuss that now." Following a sidebar conversation, defense counsel noted her objection for the record but failed to specify the grounds for her objection. The prosecutor proceeded to tell the jurors that the adoptive admission instruction is based on the belief that typically people respond to an accusation with a denial; however, if they do not, the law permits their lack of response to be interpreted as an admission the statement is true. The prosecutor pointed out that when Officer Mercado accused defendant of possessing a gun and beating up his ex-girlfriend, defendant only denied the latter, claiming he neither had a girlfriend nor beat her up. In response, defense counsel argued that there are situations where silence in the face of an accusation is not always an admission. For example, she explained that when a lady on the street started yelling at her, accusing her of stealing her baby, she simply "nodded," "smiled," and declined to get into an argument when none was necessary. The jury was instructed with CALCRIM No. 357.
The parties never mentioned CALCRIM No. 357 when discussing jury instructions.
CALCRIM No. 357 (Adoptive Admissions) told the jury: "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true:
"1. The statement was made to the defendant or made in his presence;
"2. The defendant heard and understood the statement;
"3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true;
"AND
"4. The defendant could have denied it but did not.
"If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true.
"If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
2. Analysis.
"If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt." (People v. Preston (1973) 9 Cal.3d 308, 313-314; see People v. Jennings, supra, 50 Cal.4th at p. 661.)
A trial court in a criminal case has a duty to instruct on general principles of law applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 744-745, overruled on other grounds as stated in People v. Black (2014) 58 Cal.4th 912, 919-920), that is, "'"'those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.'"'" (People v. Valdez (2004) 32 Cal.4th 73, 115.) But "[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) "We review the trial court's decision de novo." (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
"'For the adoptive admission to apply . . . a direct accusation in so many words is not essential.' [Citation.] 'To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide.'" (People v. Geier (2007) 41 Cal.4th 555, 590.) "'In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (b) by words or conduct, the defendant adopted the statement as true.'" (People v. Charles (2015) 61 Cal.4th 308, 322-323.)
During his testimony, defendant denied possessing a weapon on the day of his arrest. To rebut defendant's testimony, the prosecutor introduced Officer Mercado's testimony regarding his exchange with defendant at the time of his arrest. When Officer Mercado confronted defendant with Doe's claim that he carried a gun in his waistband, defendant remained silent. In contrast, defendant quickly denied the accusations that he had a girlfriend and beat her. Given defendant's response to part of Officer Mercado's statement (denial of having a girlfriend and beating her up), but not the rest (possession of a firearm), the evidence shows that he heard and understood the statement.
The prosecution's theory that Officer Mercado's statement (defendant "carried that gun on [his] waistband every single time") was admissible to show an adoptive admission by defendant was based on the fact that defendant did not deny the accusation. Under the circumstances presented, defendant's silence was sufficient to show that he had adopted Officer Mercado's statement. During oral argument, defendant's counsel asserted the evidence failed to meet the threshold of admissibility and argued People v. McDaniel (2019) 38 Cal.App.5th 986 (McDaniel) was squarely on point.
In McDaniel, the prosecution admitted a text message exchange between the defendant and his mother. (McDaniel, supra, 38 Cal.App.5th at pp. 996-997.) The exchange provided:
"'[McDaniel]: Stop telling lies!!!
"[McDaniel]: That's why Johnny left yo nasty ass.
"'[Mother]: U r the 1 who needs to learn how 2 respect. I am ur mother and ur days r number
"'[McDaniel]: Why are you so hateful
"'[Mother]: An that is why u will b locked up 4 robberey of the stores in this area
"'[Mother]: Why do you feel u hv 2 b so nasty an fowl ur sick.'" (McDaniel, supra, 38 Cal.App.5th at pp. 996-997.)
On appeal, the defendant argued the trial court erred in admitting the text exchange to show an adoptive admission. (McDaniel, supra, 38 Cal.App.5th at p. 997.) The Court of Appeal agreed: "[I]n light of the distinctive nature of text messaging, the receipt of a text message does not automatically signify prompt knowledge of its contents by the recipient, and furthermore, the lack of a text response by the recipient does not preclude the possibility that the recipient responded by other means, such as a phone call." (Id. at p. 999.) The McDaniel court also noted that (1) the text exchange at issue "was not instantaneous but rather unfolded over a 20-minute period," (2) there "was no evidence as to whether and when [the defendant] read the text message in which his mother suggested he had robbed multiple local stores," and (3) the defendant "emphatically texted his mother, 'Stop telling lies!!!'" (Ibid.) Under these circumstances, the McDaniel court concluded "there was not an adequate showing that [the defendant] had in fact failed to respond to or deny his mother's indirect accusation[,] . . . a response or denial was not necessarily warranted under the circumstances[, and] there was no other evidence of [the defendant's] reaction to his mother's statement that showed adoption of it on his part." (McDaniel, supra, 38 Cal.App.5th at p. 1000.)
We find the McDaniel case to be factually distinguishable. Here, defendant's responses to Officer Mercado's statement were instantaneous, they were captured on video, and they were observed by Officer Mercado himself. Nonetheless, defendant asserts the McDaniel opinion provides the correct procedure to use in determining whether evidence may be offered as an adoptive admission. Specifically, he contends the trial court failed to make the initial determination of admissibility. We disagree.
As previously noted, the discussion regarding the use of Officer Mercado's statement occurred in a sidebar conversation and was unreported. "Considering this fact, as well as the discussions that were reported, we conclude the most reasonable interpretation of the proceedings is that the court had informed the parties it was ruling in the prosecution's favor, i.e., that the operative exchange ([Officer Mercado's statement and the lack of a response from defendant]) was admissible to show an adoptive admission by [the defendant]." (McDaniel, supra, 38 Cal.App.5th at p. 1001.) The record sufficiently supports the court's ruling and an instruction on adoptive admissions.
Nonetheless, defendant argues there is "no possible way that anything [he] said or did can be construed as an adoptive admission" because (1) Officer Mercado confronted him with "an elaborate compound accusation," (2) the video shows him shaking his head negatively in response to the officer's accusation, and (3) the officer "shut off the audio on his bodycam for 12 seconds," "just as [defendant was] offering his explanation." Assuming the trial court erred in instructing the jury on adoptive admissions, we conclude the error was harmless. Reversal is required only if it is reasonably probable defendant would have received a more favorable outcome had the trial court not given the instruction. (People v. Chism (2014) 58 Cal.4th 1266, 1299 [adoptive admission instruction that had no application to facts was harmless under standard of People v. Watson (1956) 46 Cal.2d 818, 836 because jurors were told to disregard instruction if not applicable].)
At oral argument, defendant's counsel challenged our conclusion that any error in instructing on adoptive admissions was harmless, asserting we failed to apply the "real Watson test" articulated in McDaniel. (McDaniel, supra, 38 Cal.App.5th at pp. 1005-1010.) However, the harmless error analysis applied in McDaniel was based on the Court of Appeal's conclusion that "admission of the text messages to show an adoptive admission by [the defendant] that he had robbed local stores was error." (Id. at p. 1003.) Here, we conclude there was no error in the trial court's admission of Officer Mercado's statement. Our assumption of error concerns the court's instruction on adoptive admissions, not the admission of the evidence.
CALCRIM No. 357 is cautionary. It generally protects a defendant from jurors giving unwarranted weight to an ambiguous answer or a response the jury does not find to be a denial of an accusatory statement. (CALCRIM No. 357 ["If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."]; see People v. Avalos (1979) 98 Cal.App.3d 701, 711 [error not to give cautionary instruction on adoptive admissions where defendant's response could be construed as a "tacit admission" or as a denial].) The jury was also told in accordance with CALCRIM No. 200 to disregard any instruction it found inapplicable to the facts. We presume the jury understood and followed the instructions. (People v. Smith (2007) 40 Cal.4th 483, 517-518 ["'The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.'"].)
Considering the record and the instructions, any error in instructing on adoptive admissions was harmless. (See People v. Henriquez (2017) 4 Cal.5th 1, 34 [consciousness of guilt instruction in CALJIC No. 2.03 was permissive, not mandatory; even if error because not supported by evidence, no prejudice occurred]; People v. Beyah (2009) 170 Cal.App.4th 1241,1250 [in light of permissive nature of consciousness of guilt instruction, any error in giving instruction harmless]; People v. Rankin (1992) 9 Cal.App.4th 430, 436 [same].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. MENETREZ
J.