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People v. Acevedo2/27/2002
g.
Ramirez then hired attorney David Candelaria for appellant. She denied Candelaria ever asked her if she was the shooter.
Candelaria testified that he informed Ramirez that appellant identified her as the shooter. He then twice asked her if she was the shooter and she did not respond.
Ramirez was never arrested and never considered a suspect based on her prior statement to police that she was not involved.
III. DISCUSSION
A. The Trial Court Erred in Instructing the Jury Pursuant to CALJIC No. 2.11.5
Appellant contends the trial court erred in instructing the jury with CALJIC No. 2.11.5. CALJIC No. 2.11.5 provides:
"There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial.
"There may be many reasons why that person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether has been or will be prosecuted. Your [sole] duty is to decide whether the People have proved the guilt of [each] defendant on trial."
It is firmly established CALJIC No. 2.11.5 "'should not be given when a nonprosecuted participant testifies because the jury is entitled to consider the lack of prosecution in assessing the witness's credibility.'" (People v. Williams (1997) 16 Cal.4th 153, 226.) Respondent concedes that Ramirez was a nonprosecuted participant and the trial court should not have given the instruction, but contends the error was harmless. Our review of the entire record, however, convinces us that it is reasonably probable the jury would have reached a result more favorable to the defendant in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. The Error was not Harmless
1. Other Instructions
Respondent contends that because the jury received CALJIC No. 2.21.1 regarding discrepancy in testimony, CALJIC No. 2.21.2 regarding the believability of witnesses who have presented false testimony and CALJIC No. 2.20, the standard instruction regarding the credibility of witnesses, the error was harmless. These instructions do help to provide the jury general guidance regarding interpreting the testimony of witnesses. However, respondent does not address the fact that in addition to erroneously giving CALJIC No. 2.11.5, the trial court erroneously failed to give CALJIC No. 3.18 (accomplice testimony). CALJIC No. 3.18 provides in part:
"To the extent that an accomplice gives testimony that tends to incriminate defendant, it should be viewed with caution." (CALJIC No. 3.18 (1999 rev.).)
As pointed out by respondent, courts often find the error in erroneously giving CALJIC No. 2.11.5 harmless in light of other instructions given. (People v. Williams, supra, 16 Cal.4th at p. 226; People v. Hardy (1992) 2 Cal.4th 86, 190-191) However, in cases finding error regarding CALJIC No. 2.11.5 harmless, the appropriate accomplice instructions either were not required or were given. (People v. Williams, supra, 16 Cal.4th at p. 226 [accomplice instruction appropriately not given; harmless error to give 2.11.5 where witnesses it applied to were not mainstays of prosecution case]; People v. Hardy, supra, 2 Cal.4th at pp. 190-191 [error harmless where jury received accomplice instruction]; People v. Carrerra (1989) 49 Cal.3d 291, 313, fn. 11 [error harmless where jury also given CALJIC Nos. 1.10, 2.20 and the accomplice instructions]; People v. Lawley (2002) 2002 DAR 849, 867 [no error where 2.11.5 erroneously given along with accomplice instruct
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