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People v. Vilan10/24/2001
id not abuse its discretion in [forbidding his impeachment with his probationary status]." (Id. at p. 1091.) Here, as in Harris, there was no offer of proof that this witness had been threatened in connection with her probationary status or offered incentives for her pretrial statements or trial testimony.
Neither singularly, nor in combination, do the trial court's rulings on the admission or exclusion of evidence require reversal of Vilan's convictions.
3. Jury Instructions
a. CALJIC No. 2.04
The above mentioned female witness testified that she had authored a declaration in the office of Vilan's attorney sometime between January 9 and April 17, 1998, concerning the January 1998 incident. She said Vilan had told her to write it, or he was going to go to jail the next day. She said that her statement in the declaration that Vilan was nice to the victim of that incident was untrue. Her statements that it was apparent that the victim did not like Vilan and that the victim kept staring at Vilan and making remarks about him to the former's girlfriend were also not true. Also false were her statements that she accompanied Vilan, the victim and others downstairs and witnessed the physical confrontation between Vilan and the victim, which the victim began by shoving Vilan. She testified that Vilan told her what to write, "word for word."
The People requested that CALJIC No. 2.04 be given, which provides: "If you find that a defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide. [ ] This instruction applied only to the [declaration by the female witness]."
Vilan opposed the giving of this instruction below, contending, inter alia, that the declaration had not been written for the purpose of trial, but as part of Vilan's effort to oppose the People's pretrial motion to revoke his O.R. release. The prosecutor correctly pointed out that no one had testified as to why the declaration had been written, other than Vilan telling the witness that if she did not write it, he was going to jail the next day. The trial court overruled Vilan's objection to the instruction. Vilan now takes issue with this ruling.
It was for the jury to decide whether Vilan's efforts to get the witness to write the false declaration constituted an attempt by him to fabricate evidence to be produced at trial. The trial court did not prohibit the defense from presenting evidence that at the time the declaration had been written, Vilan was not aware that evidence of the January 1998 incident could be introduced at trial; therefore, evidence of his efforts did not fall within the parameters of CALJIC No. 2.04. However, he did not do this.
b. CALJIC No. 17.41.1
The jury was given CALJIC No. 17.41.1, which provides: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
In a now popular argument, Vilan contends that this instruction invades the privacy of the jury, infringes on jury nullification, violates each juror's right to an independent decision a
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