People v. JimenezPeople v. Jimenez
- Reporters:
- , , , ,
- Before:
- Capaccioli
Opinion
CAPACCIOLI, Acting P. J.
Defendant was convicted of violating his duty to stop and report an injury-producing accident (
Facts
Elizabeth L. met defendant when they both worked at Burger King in October 1989. Defendant gave her a ride home from work several times in an old brown wood-paneled station wagon in November and December 1989. On New Year’s Eve one of Elizabeth’s coworkers at Burger King had a party and Elizabeth went to the party with another Burger King employee. Defendant saw Elizabeth at the party and the two of them argued. The argument ended with defendant slapping Elizabeth across the face. Elizabeth quit working at Burger King shortly after the New Year’s Eve party and took a job as a bartender at a bar called “El Paso” in San Jose. A few days later defendant came into the bar and told Elizabeth that he was taking her home. Elizabeth refused and the bar’s bouncer intervened when defendant persisted. Defendant left the bar. On January 11, 1990, Elizabeth was tending bar at El Paso. Her shift ran from 7 p.m. to 2 a.m. Her sister Olivia was also there and Elizabeth had arranged for Olivia to take her home that evening. About 1 a.m. Elizabeth saw defendant in the bar. Defendant said that he was going to take her home. Elizabeth refused. Defendant persisted. Elizabeth told him that her sister was taking her home. Elizabeth stopped work early because she was nervous. Elizabeth, her sister Olivia and Olivia’s friend Raul left the bar at approximately 1:45 a.m. on January 12 and went out to Raul’s car. Raul’s car was parked across the street from the bar. Elizabeth got into the front passenger seat and Olivia got into the driver’s seat. Raul got into the back seat. As she was putting her seat belt on, Elizabeth saw defendant running across the street towards them. Defendant hit the windshield of Raul’s car with a tire iron and cracked it. He also hit and broke the front and back side windows on the driver’s side of the car. Olivia quickly started the car and drove away. As they were driving to Elizabeth’s residence, they felt something hit them from behind. Elizabeth unbuckled her seat belt and turned around so she could see what was behind them. She saw defendant behind them driving his station wagon with his lights off. Defendant hit their car with his car again. Elizabeth was thrown against the front dash and suffered a broken ankle and lacerations which required 25 stitches.
Defendant was charged by information with failure to stop and report (
Defendant was then charged by information with two counts of perjury (
Discussion
A. Excusal of Prospective Juror
The court conducted the voir dire of the prospective jurors. Prospective Juror Barreras told the court that she used to work with juvenile delinquents. She said: “I guess I have to say that looking at people’s background and what makes things happen, it is a very difficult thing for me to say whatever I do here will be proven to be completely, because it would be very hard for me to judge somebody and feel any doubt. If I felt any doubt, I would just have to be honest and say I will be as fair as I can and as honest as I can, but—” The following exchange then occurred. “Q [The Court]: You think that—[j[] A [Ms. Barreras]: I have so much background with people in jails, because I work with juvenile delinquents and—Q: So you are telling us as nicely as you can that you have a little bit of a prejudice, and prejudice is not necessarily a bad word, but it just means you are prejudging and somebody—[f] A: It is not a pre-judgment. I just feel like I cannot. I have to see that they are really guilty before I can. flU Q: You feel that you would have the district attorney what we call run an extra lap, that would be appropriate? A: Yes. [j[] Q: I appreciate your candor, but on the basis of your responses, I will excuse you for cause on this case. [][] Mr. Press [defense counsel]: I would object to Mrs. Barreras [being excused] for cause.[
2
]ask to inquire further, if I may. [1] The Court: Well, Mrs. Barreras, you indicated to us that you feel that as a result of your background in social work, if I can generalize, that you doubt your ability to be totally fair and
Defendant asserts that the trial court lacked the power to excuse Mrs. Barreras for cause in the absence of a challenge by one of parties. He contends that Code of Civil Procedure section 225 deprives the court of this power. Code of Civil Procedure section 225 provides that “[a] challenge is an objection made to the trial jurors that may be taken by any party to the action . . . .” “The duty to examine prospective jurors and to select a fair and impartial jury is a duty imposed on the court. . . .” (People v. Mattson (1990) 50 Cal.3d 826, 845 [268 Cal.Rptr. 802, 789 P.2d 983].) The trial court’s duty to select a fair and impartial jury impliedly includes the duty to excuse a juror for cause when voir dire indicates that the juror cannot be fair and impartial. The trial court’s duty to excuse such jurors is not obviated by the absence of a challenge by a party. We decline to hold that Code of Civil Procedure section 225 deprives trial courts of the power to perform their duties. 3
Defendant argues that if the court had the power to excuse Mrs. Barreras it abused its discretion in finding cause to excuse her. “The qualification of a juror challenged for cause is a matter within the discretion of the trial court and is seldom a ground for reversal on appeal.”
(People
v.
Morris
(1991) 53 Cal.3d 152, 183 [279 Cal.Rptr. 720, 807 P.2d 949];
B. Instruction on Materiality of False Statements
Defendant asserts that the trial court committed reversible error when it instructed the jury that the allegedly perjurious statements were material. We find no reversible error. “Every person who, having taken an oath that he or she will testify . „ . truly[,] . . . willfully and contrary to the oath, states as true any
material
matter which he or she knows to be false, and every person who testifies . . . under penalty of perjury . . . and willfully states as true any
material
matter which he or she knows to be false, is guilty of perjury.” (
Nearly a century ago the California Supreme Court held that the materiality of false testimony in a perjury prosecution is a question “of law for the court, and not of fact for the jury.”
(People
v.
Lem You
(1893) 97 Cal. 224, 228 [32 P. 11].) In 1959 the California Supreme Court held that the giving of an instruction that certain statements were material as a matter of law was not prejudicial error.
(People
v.
Matula
(1959) 52 Cal.2d 591, 600 [342 P.2d 252].) The Supreme Court did not explain whether the instruction was not erroneous or merely not prejudicial.
(Ibid.)
As late as 1967, the California Supreme Court accepted without question in dicta that materiality in a perjury prosecution was a question of law for the court.
(People
v.
Pierce, supra,
66 Cal.2d at p. 61.) In 1986, however, the California Supreme Court noted, in dicta, that the continuing validity of the proposition that materiality was a question of law for the court was doubtful in light of modern due process requirements.
(People
v.
In 1990 the California Supreme Court held that “in a perjury prosecution based on errors or omissions in disclosure statements required by the [Political Reform] Act, materiality[ 5 ] is an element of the offense, and must therefore be determined by the jury.” (People v. Hedgecock, supra, 51 Cal.3d at p. 409.) However, the Supreme Court noted that “[w]e express no view whether in perjury prosecutions based on false testimony at a judicial or legislative proceeding the question of materiality is a jury issue.” (Ibid.) Since the Supreme Court explicitly excluded the issue before us from its holding in Hedgecock, the Supreme Court’s prior decision in Lem You continues to bind all lower courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [20 Cal.Rptr. 321, 369 P.2d 937].) Although it seems clear to this court that materiality is an element of perjury (cf. U.S. v. Taylor (N.D.Cal. 1988) 693 F.Supp. 828) whether the offense involves violation of the Political Reform Act or false testimony, we are precluded from so holding. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) 6
C. Multiple Counts of Perjury
Defendant was convicted of two counts of perjury for his testimony at his first trial that (1) he had never driven a brown station wagon and (2) he had left San Jose for Mexico in late December 1989 and had not returned until March 29,1990. “[A] charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once.”
(Wilkoff
v.
Superior Court
(1985) 38 Cal.3d 345, 349 [211 Cal.Rptr. 742, 696 P.2d 134].) The actus reus prohibited by Penal Code
D. Multiple Punishment for Perjury
Defendant asserts that Penal Code section 654 precluded imposition of punishment for both counts of perjury. We agree. “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though tiie violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639 [105 Cal.Rptr. 681, 504 P.2d 905]; see also People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817 [177 Cal.Rptr. 627].) “The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.” (People v. Bauer (1969) 1 Cal.3d 368, 376 [82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398].) “The fact that one crime is technically complete before the other commenced does not permit multiple punishment where there is a course of conduct comprising an indivisible transaction.” (Id. at p. 377.) “ ‘The defendant’s intent and objective are factual questions for the trial court; . . . there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162 [255 Cal.Rptr. 813, 768 P.2d 32] quoting People v. Adams (1982) 137 Cal.App.3d 346, 355 [187 Cal.Rptr. 505]; People v. Ratcliffe, supra, 124 Cal.App.3d at p. 818.)
Defendant’s only apparent criminal objective for his two false statements was to exonerate himself on the three offenses for which he was being tried at the first trial. While it is true, as the Attorney General points out, that defendant’s denial that he had ever driven a brown station wagon did not directly provide a defense to the exhibition of a deadly weapon count,
8
this statement occurred
after
defendant had already testified he had been in Mexico at the time of the three offenses so the second statement was
E. Vehicle Code Section 20001 Violation 1. Construction of the Statute; Sufficiency of the Evidence
“The driver of any vehicle involved in an
accident
resulting in injury to any person, other than himself or herself, or in death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.” (
The broad legislative purpose behind the enactment of Vehicle Code
With the Legislature’s intent in mind, we must next look at the language which the Legislature used to express this intent. “Accident”, as it is used in Vehicle Code
2. Notice
“[A] criminal statute must give fair warning of the conduct that it makes a crime ....’’ (Bouie v. City of Columbia (1964) 378 U.S. 347, 350 [12 L.Ed.2d 894, 898, 84 S.Ct. 1697].) “A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed . . . .” (People v. McCaughan (1957) 49 Cal.2d 409, 414 [317 P.2d 974].) Defendant claims that Vehicle Code section 20001 did not give him notice that his role as the driver of a vehicle involved in an injury-producing event required him to comply with the terms of the statute. We again disagree.
“The construction of a statute by judicial decision becomes a part of it, and the standard thus established may be sufficient to satisfy the requirement of due process of law that one be given adequate warning of an offense with which he may be charged.” (People v. Hallner (1954) 43 Cal.2d 715, 721 [277 P.2d 393].) Vehicle Code section 20002, a companion statute to Vehicle Code section 20001, requires a driver whose vehicle is involved in an “accident” which produces property damage to stop and disclose his or her name and address. The requirements of Vehicle Code section 20002 have been held to apply to a driver who intentionally causes the damaging occurrence. (People v. Laursen (1985) 175 Cal.App.3d Supp. 1, 7 [222 Cal.Rptr. 122].) In People v. Laursen, the court held that the statute’s use of the word “accident” extended to events which resulted from the driver’s “volitional, intended, and purposeful acts, as well as those resulting from unintentional or negligent conduct.” (People v. Laursen, supra, 175 Cal.App.3d Supp. at p. 7.) Laursen gave adequate notice to defendant that his role as the driver of a vehicle involved in an injury-producing occurrence required him to comply with the dictates of Vehicle Code section 20001.
3. Self-incrimination
Defendant asserts that holding him criminally liable for his failure to comply with Vehicle Code section 20001 violates his Fifth Amendment right against self-incrimination. The statute requires the driver of a vehicle involved in an injury-producing “accident” to stop, provide his or her name and address and render assistance to the injured person. In
California
v.
Byers, supra,
402 U.S. 424, the United States Supreme Court upheld California Vehicle Code section 20002 against an attack based on the Fifth
4. Instructions a. Definition of “Accident”
Defendant asserts that the trial court had a sua sponte duty to instruct the jury on the meaning of the word “accident.” “The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required.”
(People
v.
Anderson
(1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414 P.2d 366].) We hold herein that the Legislature used the word “accident” in Vehicle Code section 20001 to refer to an event or occurrence even though the word is commonly understood to refer to a narrower group of events. The absence of a jury instruction that “accident” had this special broader meaning could not possibly have harmed defendant since the jury could only have been more constrained by the common definition of “accident” than it would have been by the specialized meaning intended by the Legislature. Any error in failing to instruct the jury
b. Unanimity
Defendant also asserts that “the court committed prejudicial error in failing to instruct the jury that they must agree on which act constituted the ‘accident’.” This argument is utterly specious. The “accident” referred to by Vehicle Code section 20001 is not an “act” but an event which triggers consequences only if defendant was the driver of a vehicle involved in this event. The “act” prohibited by Vehicle Code section 20001 is not the “accident” but the failure of an involved driver to stop at the scene and present identification and render aid. (People v. Escobar, supra, 235 Cal.App.3d at p. 1509.) Unanimity instructions require the jury to agree on the specific act which forms the basis for their verdict. Since the act which formed the basis for defendant’s conviction was his failure to comply with the reporting requirements of the statute, no special unanimity instruction was required with respect to the “accident.”
Conclusion
The judgment is hereby modified to reflect that the concurrent term imposed for the second perjury count (count 2B) is stayed pursuant to Penal Code section 654. The modified judgment is affirmed.
Elia, J., and Bamattre-Manoukian, J., concurred.
A petition for a rehearing was denied January 22, 1993, and appellant’s petition for review by the Supreme Court was denied April 1, 1993. Mosk, J., and Kennard, J. were of the opinion that the petition should be granted.
Notes
We asked defendant to brief the propriety of the consolidation of the informations. Defendant conceded that the court did not err in consolidating the informations. We find that any error was harmless.
The parties agree that defense counsel was not objecting to Mrs. Barreras for cause but was instead objecting to her excusal for cause.
Although we find that a trial court has the power to excuse a juror for cause in the absence of a challenge by either of the parties, we recognize that this is not the accepted practice in our trial courts and therefore caution courts to use this power sparingly. (Cf. People v. Moore (1923) 64 Cal.App. 328, 329 [221 P. 665].)
Defendant incorrectly asserts that Code of Civil Procedure section 223 requires the court to permit counsel to orally examine the prospective jurors. No such requirement exists. “[T]he court
may
permit the parties, upon a showing of good cause, to supplement the examination by such further inquiry
as it deems proper . . .
.” (
The definition of materiality which applies to false testimony does not apply in perjury prosecutions under the Political Reform Act. A false statement or omission in a disclosure statement required by the Political Reform Act “is material if there is a substantial likelihood that a reasonable person would consider it important in evaluating (1) whether a candidate should be elected to, or retained in, a public office, or (2) whether a public official can perform the duties of office free from any bias caused by concern for the financial interests of the official or the official’s supporters.” (People v. Hedgecock (1990) 51 Cal.3d 395, 406-407 [272 Cal.Rptr. 803, 795 P.2d 1260], italics added.)
Even if we were to find that the trial court erred in removing the issue of materiality from the jury, the error would not require reversal. In light of defendant’s appellate concession that the removal of the materiality issue from the jury was harmless beyond a reasonable doubt and the absence of any dispute with respect to materiality at trial, the alleged error would not require reversal under the applicable error standard. (People v. Hedgecock, supra, 51 Cal.3d at p. 410; People v. Odle (1988) 45 Cal.3d 386, 410-411 [247 Cal.Rptr. 137, 754 P.2d 184].)
Defendant asserts that since only one oath was taken only one count of perjury could be charged. This argument is absurd. The actus reus of perjury is not the taking of an oath. The elements of crimes are of three varieties: actus reus, mens rea and attendant circumstances. The requirement that the false statement be made while under oath is merely a requisite attendant circumstance like the requirement for first degree burglary that the structure entered be an inhabited dwelling. Defendant’s argument is meritless.
The evidence established that the same person had committed all three offenses. Therefore, defendant’s attempt to establish a defense to the offenses involving the brown station wagon was also an indirect attempt to establish a defense to the exhibition count. Thus, the second statement, like the first statement, had but a single objective—the establishment of a defense to all three charges.
Vehicle Code sections 20001 and 20002 each require a driver involved in an “accident” to stop and disclose his or her name and address.
(California
v.
Byers, supra,
402 U.S. at p. 426 [29 L.Ed.2d at p. 16];
The four-justice plurality opinion characterized the statute as “essentially regulatory” rather than criminal and found that the self-reporting requirement was essential to the statute’s goal of promoting financial responsibility. (402 U.S. at p. 430 [29 L.Ed.2d at pp. 18-19].) Since the statute’s reporting requirements did not pose a “substantial risk of self-incrimination” and the required information was not testimonial in nature, the statute did not violate the Fifth Amendment’s guarantee against compelled self-incrimination. (Id. at pp. 431-434 [29 L.Ed.2d at pp. 19-21].) Justice Harlan concurred in the judgment only. He explained that the statute’s self-reporting requirement posed “genuine risks of self-incrimination” but that application of the privilege against self-incrimination to negate the statute’s requirements “threatens the capacity of the government to respond to societal needs with a realistic mixture of criminal sanctions and other regulatory devices.” (Id. at pp. 448-453 [29 L.Ed.2d at pp. 28-32], fn. omitted.) Since the statute’s reporting requirement was predicated on a regulated event which was not “ ‘inherently suspect’ ’’ and the information was sought for nonprosecutorial purposes, the state’s requirement of a “minimal level of disclosure” did not violate the Fifth Amendment. (Id. at pp. 456-458 [29 L.Ed.2d at pp. 33-35].)