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People v. Acevedo2/27/2002
ent of Counsel
Respondent further contends defense counsel "argued strenuously to the jury that it should question [Ramirez's] testimony." We disagree that defense counsel's closing argument could have cured the instructional error in this case. The defense closing argument here did not "strenuously argue" Ramirez had motive to lie or should not be believed because of her involvement in the case. Counsel did state Ramirez was "sharp enough to fool the police department not to press charges against her," and that "Elizabeth [Ramirez] has never seen the inside of a jail." By these statements counsel implied that Ramirez had reason to lie and claim appellant was the shooter, however, counsel never explicitly challenged Ramirez's testimony on those grounds or told the jury it could question Ramirez's credibility because of her involvement. Rather, counsel generally painted the picture that Ramirez had a greater motive to be the shooter, because she was angry about the damage to her car. Additionally, though counsel argued that driving by the house was Ramirez's idea, counsel never told the jury that it could question Ramirez's testimony because she was an accomplice to the crime. This is most likely because Ramirez did provide some testimony that was beneficial to appellant, a factor that would have been accounted for had the jury been properly instructed with the 1999 revision of CALJLIC No. 3.18 (advising jury to view only inculpatory testimony by an accomplice with caution). Thus, though the defense closing argument did call Ramirez's credibility into question, it did not do so nearly as clearly as in People v. Hardy, relied on by respondent, where defense counsel expressly advised the jury to "'keep in mind that [the witness] does have some bias and interest in this case, and that is avoiding his own prosecution.'" (People v. Hardy, supra, 2 Cal.4th at pp. 190; see also People v. Carerra, supra, 49 Cal.3d at p. 313, fn. 11 [defense counsel "strenuously argued" jury should question relevant witnesses testimony].)
In sum, the record as a whole reveals the instructional error in giving CALJIC No. 2.11.5 was compounded by error in failing to give CALJIC No. 3.18, weak corroboration of the testimony tainted by the error, and marginal emphasis by defense counsel of the jury's reason to question Ramirez's testimony. Accordingly, we must conclude it is reasonably probable that appellant would have received a more favorable result had CALJIC No. 3.18 been given and CALJIC No. 2.11.5 not been given.
DISPOSITION
For the reasons stated, the judgment is reversed and remanded.
WE CONCUR:
Buckley, J.
Wiseman, J.
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