California Court of Appeal Nov 17, 2014 No. D064116Unpublished
Filed 11/17/14 P. v. Eickhoff CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064116
Plaintiff and Respondent,
v. (Super. Ct. No. SCE323042)
APRIL MERCEDES EICKHOFF,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Allan J.
Preckel, Judge. Affirmed.
Law Office of Michael P. Goldstein and Michael P. Goldstein, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted April Mercedes Eickhoff of one count of first degree residential
burglary (Pen. Code,1 §§ 459, 460) and one count of grand theft of personal property
(§ 487, subd. (a)). At sentencing in April 2013, the trial court suspended imposition of
sentence and placed Eickhoff on five years of formal probation, subject to numerous
terms and conditions set forth in the probation order. Eickhoff indicated she had
"THE COURT: I don't see any prior inconsistent statement that would invite [Sheela's] testimony regarding consistent statements prior to the inconsistent.
"[EICKHOFF'S COUNSEL]: The inconsistent statement would be the fact that the prosecution has stated that he's a liar and that he's not telling the truth; therefore, we're allowed to bring in [a] consistent statement to show prior to his motive to lie, he was telling [Sheela] that he was the only perpetrator of this crime.
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"THE COURT: That may be your interpretation. I don't share it. I don't see [Sheela's] testimony as being admissible.
"[WOODS'S COUNSEL]: Okay.
"[EICKHOFF'S COUNSEL]: So, Your Honor, can I just make a proffer as to what [Sheela] would testify? [¶] [Sheela] would testify that during their first discussion regarding their case, and every discussion thereafter, he's maintained that [Richwine] duped the other two defendants into—
"[WOODS'S COUNSEL]: You have to whisper.
"[EICKHOFF'S COUNSEL]: —duped the other two defendants into helping him remove property under the guise that they had permission to do it, and in fact, he knew—he, and only he, knew that they did not have permission to take the property.
THE COURT: All right. So offer of proof is noted. The ruling remains as given, for the reasons given." (Italics added.)
Both defense counsel then rested.
B. Evidence Code Section 791
Evidence Code section 791, which governs the admissibility of evidence of a prior
statement of a witness that is consistent with the witness's current testimony, provides:
"Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Italics added.)
12
Citing Evidence Code section 791, the California Supreme Court has explained
that "[a] prior statement consistent with a witness's trial testimony is admissible only if
either (1) a prior inconsistent statement was admitted and the consistent statement
predated the inconsistent statement, or (2) an express or implied charge is made that the
testimony is recently fabricated or influenced by bias or other improper motive, and the
consistent statement was made before the bias, motive for fabrication, or other improper
motive is alleged to have arisen." (People v. Smith (2003) 30 Cal.4th 581, 630, original
italics omitted, italics added.)
C. Analysis
As noted, Eickhoff and Woods's former codefendant, Richwine─who had pleaded
guilty to the residential burglary at issue in this case─testified at trial for the defense that
only he was responsible for that crime. Defense counsel for Eickhoff and Woods sought
to bolster Richwine's credibility by introducing─as evidence of prior consistent
statements by Richwine─the proffered testimony of Richwine's attorney, Sheela, to the
effect that Richwine had told him during their first discussion about this case and during
every subsequent discussion that only he (Richwine) was responsible for the residential
burglary.
Eickhoff challenges the court's ruling that the proffered testimony of attorney
Sheela was not admissible as evidence of prior consistent statements by Richwine. Citing
Evidence Code section 791, subdivision (b), Eickhoff asserts the court "overlooked a
basis─other than a prior inconsistent statement─for the admiss[ion] of the proffered
evidence: a charge of recent fabrication."
13
However, under subdivision (b) of Evidence Code section 791, the proffered
testimony of attorney Sheela regarding Richwine's alleged prior consistent statements
was admissible only if "the consistent statement[s] [were] made before the bias, motive
for fabrication, or other improper motive is alleged to have arisen." (People v. Smith,
supra, 30 Cal.4th at p. 630, italics added.)
Here, the record shows that if Richwine made the proffered prior consistent
statements to Sheela, he did so after his implicitly charged bias or motive for fabrication
arose. That Richwine's trial testimony exculpating Eickhoff and Woods may have been
motivated by bias, as the Attorney General suggests, is apparent from Richwine's trial
testimony that Eickhoff was his friend, Woods was his former girlfriend, he and Woods
had a child together, he loved Woods, and he did not want her to be found guilty. Later,
at the conclusion of his redirect examination by Eickhoff's counsel, Richwine also
testified, "I don't want to see anybody get convicted."
The record also shows that Eickhoff, Richwine, and Woods were arrested in this
matter on August 10, 2012, and the felony complaint charging them with residential
burglary was filed five days later on August 15. Although the record does not reflect
when Sheela first discussed this case with Richwine, it does show he was a deputy
alternate public defender who represented Richwine at the preliminary hearing on August
30, 2012. Thus, it is reasonable to conclude Sheela was appointed to represent Richwine
after the felony complaint was filed on August 15, 2012, before he discussed this case
with Richwine.
14
Based on the foregoing record, we conclude that Richwine's alleged motive to
fabricate and assist his friend Eickhoff and his former girlfriend Woods existed at the
time he made any prior consistent statements to his appointed counsel. Accordingly, we
also conclude the evidence of these prior consistent statements was inadmissible under
Evidence Code section 791, and the court did not abuse its discretion in excluding
Sheela's proffered testimony.
II. CLAIM OF INSTRUCTIONAL ERROR
Eickhoff next contends the court committed prejudicial error in failing to instruct
the jury that circumstantial evidence of her mental state had to be irreconciliable with
innocence in order to justify a conviction. We reject this contention.
A. Background
After the last witness testified, during the brief discussion outside the presence of
the jury of the proposed jury instructions, neither the court nor the attorneys for Eickhoff
and Woods mentioned CALCRIM No. 224 (Circumstantial Evidence: Sufficiency of
Evidence) or CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State),
which the court proposed to give to the jury. At the end of the discussion, the court asked
Eickhoff's counsel whether he had anything else to say about the instructions. He
responded, "No, Your Honor. Thank you."
As pertinent here, the court instructed the jury under CALCRIM No. 224 as
follows:
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find a defendant guilty has been proved, you must
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be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (Italics added.)
The court also instructed the jury under CALCRIM No. 225 as follows:
"The People must prove not only that a defendant did the acts charged, but also that she acted with a particular intent or mental state. The instructions for each crime explain the intent or mental state required.
"An intent or mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to conclude that a defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
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B. Analysis
Asserting that "[t]he evidence of [her] guilty knowledge and intent was entirely
circumstantial"─and primarily relying on People v. Bender (1945) 27 Cal.2d 164
(Bender), disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101,
110─Eickhoff contends the court "committed prejudicial error by failing to instruct the
jury that it could not convict [her] unless the circumstantial evidence was inconsistent
with any rational conclusion other than guilt."4 The Attorney General responds that
Eickhoff forfeited her claim of instructional error by failing to raise it in the trial court.5
4 Specifically, Eickhoff relies on the following language in Bender: "The evidence which tends to show that defendant killed his wife is entirely circumstantial. Defendant contends that, therefore, the trial court of its own motion should have given an instruction embodying the principle (as stated in [citation]) 'that, to justify a conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.' It cannot be too strongly emphasized that such quoted statement enunciates a most important rule governing the use of circumstantial evidence. In unequivocal language it should be declared to the jury in every criminal case wherein circumstantial evidence is received." (Bender, supra, 27 Cal.2d at pp. 174-175, italics added.)
5 Citing People v. Livingston (2012) 53 Cal.4th 1145, the Attorney General also asserts that Eickhoff's claim of instructional error fails on the merits because "the California Supreme Court has determined that [CALCRIM Nos. 224 and 225] correctly state the law regarding direct and circumstantial evidence and do not undermine the reasonable doubt standard or presumption of evidence." However, although Livingston did cite CALCRIM Nos. 224 and 225 with approval, it did so in rejecting the defendant's claim that CALJIC No. 2.00 (Direct and Circumstantial Evidence—Inferences) diminishes the reasonable doubt standard for direct evidence by the manner in which it differentiates between direct and circumstantial evidence. (Livingston, at pp. 1165-1166.) As Livingston did not address the same claim Eickhoff raises here, the Attorney General's reliance on Livingston is misplaced. (See People v. Jennings (2010) 50 Cal.4th 616, 684 ["'It is axiomatic that cases are not authority for propositions not considered.'"].) 17
The Attorney General also argues that, even if Eickhoff did not forfeit this claim, it fails
because "the jury was properly instructed with standard CALCRIM instructions."
We conclude Eickhoff forfeited her claim of instructional error by failing to raise
it in the superior court. "'Generally, a party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying language.'" (People v.
Here, the record (discussed, ante) shows, and Eickhoff does not dispute, that she
did not object below to the jury instructions the court gave under CALCRIM Nos. 224
and 225, nor did she request any additional language to clarify or amplify those
instructions, which she now claims were incomplete because they "fail[ed] to instruct the
jury that it could not convict [her] unless the circumstantial evidence was inconsistent
with any rational conclusion other than guilt." (Italics added.)
It is true, as Eickhoff points out, that "[t]he rule of forfeiture does not apply . . . if
the instruction was an incorrect statement of the law." (People v. Franco (2009) 180
Cal.App.4th 713, 719.) Eickhoff seeks to avoid the forfeiture rule by asserting "the
instructions were not correct in law." Her assertion is unavailing because she has failed
meet her burden of demonstrating that the challenged instructions incorrectly state the
law.
We independently review whether a jury instruction correctly states the law.
(People v. Posey (2004) 32 Cal.4th 193, 218.)
18
Here, the essence of Eickhoff's claim of instructional error is her contention that
the instructions the court gave under CALCRIM Nos. 224 and 225 (discussed, ante)
incorrectly stated the law because they did not instruct the jury it could not convict her
unless the circumstantial evidence was "inconsistent with any rational conclusion other
than guilt." As noted, similar language appears in Bender, supra, 27 Cal.2d at page 175.
It is true that neither CALCRIM No. 224 nor CALCRIM No. 225 contains the
foregoing Bender language on which Eickhoff relies. However, Eickhoff cites no
authority, and we are aware of none, that requires the use of this precise language.
Furthermore, the concept that the Bender language─"inconsistent with any other rational
conclusion" other than guilt─seeks to convey is adequately conveyed in language
contained in both CALCRIM No. 224 and CALCRIM No. 225. Specifically, the more
general instruction, CALCRIM No. 224, states in part: "[B]efore you may rely on
circumstantial evidence to find the defendant guilty, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence is that the defendant is
guilty." (Italics added.) CALCRIM No. 225, which specifically pertains to the
sufficiency of circumstantial evidence showing the defendant had the required criminal
intent or state of mind, similarly states in part: "[B]efore you may rely on circumstantial
evidence to conclude that a defendant had the required intent or mental state, you must be
convinced that the only reasonable conclusion supported by the circumstantial evidence
is that the defendant had the required intent or mental state." (Italics added.)
The pertinent phrase contained in CALCRIM Nos. 224 and 225─"the only
reasonable conclusion"─conveys the same meaning as the Bender phrase "inconsistent
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with any other rational conclusion" other than guilt. Both of the challenged standard
instructions convey to the jury that, "'to justify a conviction, the facts or circumstances
must not only be entirely consistent with the theory of guilt but must be inconsistent with
any other rational conclusion.'" (Bender, supra, 27 Cal.2d at p. 175, italics added.)
Accordingly, we reject Eickhoff's contention that CALCRIM Nos. 224 and 225
"were not correct in law," and we conclude Eickhoff forfeited her claim of instructional
error by failing to raise it in the superior court. (Guiuan, supra, 18 Cal.4th at p. 570.)
III. CLAIM OF CUMULATIVE ERROR
Eickhoff also asserts the cumulative effect of both the court's erroneous exclusion
of "[Sheela's] testimony that Richwine had spoken from the beginning of his tricking his
codefendants" and its erroneous "fail[ure] to instruct [the jury] that the circumstantial
case had to exclude rational conclusions inconsistent with guilt" was prejudicial and
requires reversal of her convictions. We reject this assertion.
"If none of the claimed errors were individual errors, they cannot constitute
cumulative errors that somehow affected the . . . verdict." (People v. Beeler (1995) 9
Cal.4th 953, 994, abrogation on other grounds recognized by People v. Pearson (2013)
56 Cal.4th 393, 462.)
Here, we have concluded that both of the foregoing claims of error are unavailing.
Accordingly, we reject Eickhoff's claim of prejudicial cumulative error. (People v.
Beeler, supra, 9 Cal.4th at p. 994.)
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IV. PROBATION CONDITIONS
Eickhoff next contends that "[f]ive conditions of [her] probation [are]
constitutionally invalid." In fact, as we discuss, post, she challenges eight conditions of
her probation. We conclude Eickhoff forfeited her right to challenge these probation
conditions by failing to assert her challenges at the sentencing hearing.
A. Background
Eickhoff was on probation in another case (Super. Ct. San Diego County, 2011,
No. SCE315603) when she committed her crimes in the current case in August 2012.
Specifically, on December 15, 2011, she pleaded guilty in the prior case to a felony
charge of using the personal identification of another to obtain $8,058 in goods in
violation of section 530.5, subdivision (a). In February 2012 she was granted three years
of formal probation. Eickhoff's convictions in current case constituted a violation of her
probation, and the two cases were scheduled together for sentencing on April 26, 2013.
Eickhoff was 53 years of age at the time of sentencing in this matter on April 26,
2013. Eickhoff's counsel submitted a statement in mitigation on her behalf, informing the
court that, "after a long period of sobriety," she suffered a "relapse on her old
[methamphetamine] addiction, which caused her to make a bad series of judgment calls."
Counsel indicated that following her release from custody after her arrest Eickhoff had
been participating in substance abuse counseling and had passed "every test."
The probation report indicated that Eickhoff began drinking alcohol at the age of
15, and she last consumed alcohol on August 10, 2012, the date of her offense in this
matter.
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1. Sentencing and the eight challenged conditions of probation
At sentencing in April 2013, the court placed Eickhoff on five years of formal
probation, subject to numerous terms and conditions set forth in the probation order.
Eickhoff indicated she had discussed the conditions with her attorney and she understood
and accepted them. Specifically, the court asked her: "Do you understand and accept
probation in these cases on the conditions outlined by the Court and further discussed
with you by your attorneys?" Eickhoff replied, "Yes, Your Honor I do."
Among the numerous conditions of probation the court set forth in the probation
order, all of which Eickhoff accepted, are the following eight conditions that Eickhoff
now challenges for the first time:
(1) Term 6.b: "Follow such course of conduct as the P.O. [(probation officer)]
communicates to defendant."
(2) Term 6.e: "Comply with a curfew if so directed by the [(probation officer)]."
(3) Term 6.o: "Seek and maintain full-time employment, schooling, or a full-time
combination thereof if directed by the [(probation officer)]."
(4) Term 8.b: "Do not knowingly use or possess alcohol if directed by the
[(probation officer)]."
(5) Term 8.c: "Attend 'Self-help' meetings if directed by the [(probation officer)]."
(6) Term 8.e: "Take [A]ntabuse (if physically able, as determined by a licensed
physician) if directed by the [(probation officer)] and continue in the program until
excused. If not physically able to take [A]ntabuse, submit a written statement from
physician verifying inability to do so."
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(7) Term 8.j: "Participate in, comply with, and bear all costs associated with a
continuous alcohol monitoring device if directed by the [(probation officer)]."
(8) Term 10.g: "Obtain [(probation officer)] approval as to . . . residence."
B. Analysis
In People v. McCullough (2013) 56 Cal.4th 589, 593, the California Supreme
Court recently explained that, as it had "observed on numerous occasions, '"'a
constitutional right,' or a right of any other sort, 'may be forfeited in criminal . . . cases
by the failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it.'"' [Citation.] 'Ordinarily, a criminal defendant who does not challenge an
assertedly erroneous ruling of the trial court in that court has forfeited his or her right to
raise the claim on appeal.' [Citation.] '"The purpose of this rule is to encourage parties to
bring errors to the attention of the trial court, so that they may be corrected. [Citation.]"'
[Citation.] Additionally, '[i]t is both unfair and inefficient to permit a claim of error on
appeal that, if timely brought to the attention of the trial court, could have been easily
corrected or avoided.'"
Here, as already discussed, Eickhoff, who was on probation when she committed
her current offenses, indicated at sentencing that she had discussed the new conditions of
probation with her attorney, she understood them, and she accepted them. By failing to
challenge the eight subject conditions of probation at the sentencing hearing, Eickhoff
forfeited her right to challenge them on appeal, even on constitutional grounds. (People
v. McCullough, supra, 56 Cal.4th at p. 593.)
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V. CALCRIM NO. 220
Last, Eickhoff claims that CALCRIM No. 2206 does not define the concept of
reasonable doubt in a manner that is consistent with the requirements of federal due
process. In support of this claim, Eickhoff asserts that former CALJIC No. 290 defined
proof beyond a reasonable doubt as "an abiding conviction, to a moral certainty, of the
truth of the charge." Noting that CALCRIM No. 220 defines proof beyond a reasonable
doubt as "proof that leaves you with an abiding conviction that the charge is true,"
Eickhoff complains that without the words "to a moral certainty," CALCRIM No. 220
unconstitutionally fails to tell the jurors "how convinced they must be."
We need not, and do not, reach the merits of Eickhoff's claim. As discussed, ante,
the California Supreme Court has explained that, "'[g]enerally, a party may not complain
on appeal that an instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate clarifying or amplifying
language.'" (Guiuan, supra, 18 Cal.4th at p. 570.)
6 The court instructed the jury under CALCRIM No. 220 as follows: "The fact that a criminal charge has been filed against a defendant is not evidence that the charge is true. You must not be biased against a defendant just because she has been arrested, charged with crimes, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves a defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty." (Italics added.) 24
Here, the essence of Eickhoff's claim is that the CALCRIM No. 220 instruction on
the concept of reasonable doubt that the court gave to the jury was unconstitutionally
incomplete because it should have included the phrase "to a moral certainty" to tell the
jurors how convinced of the truth of the charges they needed to be in order to conclude
that the People had met their burden of proving her guilt beyond a reasonable doubt.
However, the Supreme Court has recently held that the standard CALCRIM No. 220
instruction adequately defines the concept of reasonable doubt. (People v. Aranda (2012)
55 Cal.4th 342, 349.) As the record shows that Eickhoff did not object below to the
CALCRIM No. 220 instruction the court gave to the jury, and she did not request any
additional language to clarify or amplify that instruction which she now claims was
incomplete, we conclude she has forfeited her claim that CALCRIM No. 220 does not
define the concept of reasonable doubt in a manner that is consistent with the
requirements of federal due process. (Guiuan, supra, 18 Cal.4th at p. 570; see People v.
McCullough, supra, 56 Cal.4th at p. 593 [a constitutional right may be forfeited in a
criminal case by the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it].)
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DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
26
AI Brief
AI-generated · verify before citing
Holding. The court did not abuse its discretion in excluding a witness's prior consistent statements because they were made after the witness's motive to fabricate had already arisen, and the jury instructions regarding circumstantial evidence were sufficient.
Issues
Whether the trial court erred in excluding testimony of a witness's prior consistent statements under Evidence Code section 791.
Whether the trial court erred in its instructions to the jury regarding circumstantial evidence of mental state.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Richwine's alleged motive to fabricate and assist his friend Eickhoff and his former girlfriend Woods existed at the time he made any prior consistent statements to his appointed counsel.”
“the court did not abuse its discretion in excluding Sheela's proffered testimony.”