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People v. Rizo4/24/2002
ny . . . ." (Id., at p. 682.) "Testimony" for this purpose can include out-of-court statements of accomplices used as evidence of guilt, as well as testimony in court. But out-of-court statements only qualify as testimony if they are made under suspect circumstances. Suspect circumstances exist where the facts suggest a possible motive to lie, such as where an accomplice makes out-of-court statements to the police. (Ibid.)
On the other hand, where "` he usual problem with accomplice testimony - that it is consciously self-interested and calculated - is not present in an out-of-court statement,'" the statement is sufficiently reliable that no corroboration, and hence no instruction, is required. (People v. Williams, supra, 16 Cal.4th at p. 682.) Thus, statements by an accomplice to an undercover police officer in the course of a drug sale, without knowledge of the officer's identity, are not testimony and need not be corroborated. (People v. Jeffery (1995) 37 Cal.App.4th 209, 218.)
Defendants assert the out-of-court accomplice statements in this case were made under suspect circumstances and had to be corroborated. However, they do not explain why the circumstances were suspect, and we think the statements clearly fall within the category of nontestimony. The statements were not made to police or under any comparable circumstances suggesting the persons making them might have a motive to fabricate or make self-serving claims. They were simply statements made to the victim in the course of the events leading to the crime. As such, they were analogous to the accomplice's statements to the undercover officer in People v. Jeffery, supra, 37 Cal.App.4th 209, 218. No corroboration, and no instruction, was required.
M. Failure to Give CALJIC No. 2.71.7
Defendants assert the court should have instructed, sua sponte, pursuant to CALJIC No. 2.71.7. That instruction tells the jury that evidence of a defendant's oral statement of intent prior to the offense ought to be viewed with caution. Defendants contend the prosecution's introduction of Ivan's preoffense threats against Galvan, and Jesus's preoffense references to Krazy Crowd, required such a cautionary instruction.
CALJIC No. 2.71.7 must be given sua sponte where it applies. (People v. Lang (1989) 49 Cal.3d 991, 1021.) The court in this case, however, instructed the jury pursuant to CALJIC No. 2.71 that " vidence of an oral admission of a defendant" - which the court defined to include any statement tending to prove the guilt of the defendant making it - "should be viewed with caution." Since CALJIC No. 2.71 is a "broad cautionary instruction" which encompasses evidence of preoffense statements, failure to give the more specific instruction embodied in CALJIC No. 2.71.7 is not prejudicial where CALJIC No. 2.71 is given. (Lang, supra, at p. 1021.)
The court limited CALJIC No. to 2.71 to statements made by Jesus. As to the statements made by Ivan, no cautionary instruction was given. But even where the court fails to give either CALJIC No. 2.71 or CALJIC No. 2.71.7, the omission is not prejudicial where there is no reasonable probability the jury would have reached a different result had the instruction been given. (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) Thus, there is no prejudice where the testimony concerning the oral admission was uncontradicted and there was no conflicting testimony concerning the precise words used, their context, or their meaning. (Ibid.) That being the case with respect to Ivan's threats against Galvan, the failure to give CALJIC No. 2.71 or 2.71.7 as to those statements was not prejudicial.
N. Failure to Instruct on Evidence of Uncharged Misconduct
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