X hits on this document





55 / 115

concerning the crime,” they could consider such statement as a circumstance tending to prove a consciousness of guilt, though not as evidence sufficient in itself to prove guilt.  Defendant contends that the instruction lacked a proper evidentiary basis in this case, and that its giving therefore deprived him of his constitutional rights to trial by jury and due process.

In response, the Attorney General points to two statements the jury could reasonably have found deliberately false or misleading:  defendant’s statement to his attorney in the robbery case that he wanted the lunch hour on November 3, 1980, to consider the prosecutor’s plea bargain offer; and defendant’s statement, later that day, that he needed to urinate before he could be tested for gunshot residue.  We agree these statements constituted sufficient evidence to support the instruction.  

In reply, defendant first argues the instruction should not have been given because these statements “were not inconsistent with any statement appellant made at trial.”  However, the instruction applies whether or not the defendant himself contradicts his earlier statement.  (People v. Green (1980) 27 Cal.3d 1, 40, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)  As defendant acknowledges, we have approved the instruction in several cases where the pretrial statement was shown to be false only by the testimony of prosecution witnesses.  (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 141; People v. Rodrigues, supra, 8 Cal.4th at pp. 1138-1140; People v. Green, supra, at p. 40.)

Second, defendant argues that CALJIC No. 2.03 “should not be given in a case where the defendant’s testimony is consistent with his pretrial statements even though it is inconsistent with the prosecution’s case.”  We need not decide whether that is a correct statement of the law (see People v. Green, supra, 27 Cal.3d at pp. 40-41 [mentioning but not deciding the issue]) because the issue is not presented here.  Although defendant testified, he did not testify that he wanted

Document info
Document views280
Page views280
Page last viewedFri Oct 28 12:44:12 UTC 2016