1 Filed 6/5/13 P. v. Callies CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. JUDGE CALLIES, Defendant and Appellant. C071609 (Super. Ct. No. 11F05733)

A jury convicted defendant Judge Callie s of robbery and kidnapping to commit robbery. Defendant now contends (1) the trial court erred in instruc ting the jury with the last bracketed paragraph in CALCRIM No. 226 [witnesses], and (2) the abstract of judgment must be corrected to reflect a sentence of life w ith the possibility of parole, rather than seven year s to life in prison. We conclude there was no instructional error and the abstract of judgment correctly reflects the sentence imposed by the trial court.2 We will affirm the judgment. BACKGROUND Eric Scott drove into a parking space at a taco stand and bumped another car. Defendant and another man claimed the car wa s theirs and asked Scott to pay for the damage. Scott gave defendant $20 or $30, but defendant said that was not enough money. Defendant offered to go with Sco tt to a bank to get more money. Scott construed the “offer” as a demand. Defe ndant had his hand in his pocket and Scott thought defendant might have a gun. Fearin g for his safety, Scott drove with defendant to an ATM, withdrew $160, and gave it to defendant. Defendant suggested Scott’s car stereo c ould be used to make up the balance on the money “owed” for car repairs. Scott disa greed, but defendant instructed him to drive to an apartment complex. Scott realized a car was follo wing them and became more worried he would be hurt. At the apartment complex, defendant star ted taking the dashboard apart to remove the car stereo. He obtained metal cutters from his friend, Jibri Stepter, and continued trying to remove the stereo. Stepter took Sco tt’s wallet and left. Defendant told Scott to hand over his car keys; he also took Sco tt’s cell phone. Defendant then drove Scott around asking strangers for a sc rewdriver that he could use to remove the car stereo. When one man offered them a butter knife, de fendant rejected the offer by pointing his gun at the man. Eventually, defendant rem oved the stereo from Scott’s car and returned the car to Scott. Scott retu rned to the taco stand, borro wed a cell phone and called the police. Defendant testified he thou ght Scott looked like an “easy ta rget.” The car Scott hit did not belong to either defe ndant or his friend, but when defendant saw the collision he decided to con Scott out of money. He told Scott the damage could be covered by $100 to $200 and when Scot t informed defendant he only had $ 30 on him, defendant offered to go with him to an ATM. Sc ott came back from the ATM w ith $160 and defendant tried3 to convince him to include th e car stereo in the deal. According to defendant, Scott agreed and they went to an apartment complex. Stepte r followed them from the taco stand. Stepter gave defendant pruning shears and defendant used them to remove the car stereo. He then told Scott how to get back to the taco stand. Defendant denied having a gun and denied ever driving Scott’s car. Defendant acknowl edged Stepter took Scott’s cell phone and perhaps his wallet, but he did not see Stepter with a gun. Defendant admitted he was a lia r and a thief. He testified at trial that most of his prior denials were lies, but he said he was telling the truth at trial. A jury found defendant gu ilty of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1) -- count one) 1 and robbery (§ 211 -- count two). The trial court sentenced defendant to seven years to life in prison on count one, stayed sentence on count two pursuant to section 654, awar ded 356 days of pr esentence custody credit and ordered defendant to pay various fines and fees. DISCUSSION I Defendant contends the tria l court erred in instructi ng the jury with the last bracketed paragraph in CALCRIM No. 226. That paragraph st ates: “If you decide that a witness deliberately lied about something signif icant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” The attorneys and the trial judge reviewed the jury instructions before the trial judge instructed the jury. De fendant’s trial counsel expressl y agreed it was appropriate to instruct the jury pursu ant to CALCRIM No. 226 as given. Based on that agreement, the

1 Undesignated statutory references are to the Penal Code.4 Attorney General now argues defendant’s appe llate challenge should be rejected as invited error. Defendant counters that the in vited error doctrine does not bar our review because defendant’s trial couns el did not state a “ ‘conscious, deliberate, or tactical reason’ ” for agreeing to the instruction. (Quoting People v. Collins (1992) 10 Cal.App.4th 690, 694-695.) Under the invited error doctrine, a defend ant may not challenge a jury instruction given by the trial court if defendant’s tr ial counsel made a deliberate and conscious tactical choice to request or ac quiesce in the instruction. ( People v. Thornton (2007) 41 Cal.4th 391, 436; People v. Catlin (2001) 26 Cal.4th 81, 150; People v. Collins, supra, 10 Cal.App.4th at pp. 694-695.) The deliberat e tactical purpose need not be expressly articulated as such; it can be shown by the ac tions and argument of tr ial counsel taken as a whole. ( People v. Avalos (1984) 37 Cal.3d 216, 229; see also People v. Marshall (1990) 50 Cal.3d 907, 931-932.) In closing argument, defendant’s trial counsel challenged Scott’s credibility and pointed out the inconsistencies in Scott’s pretrial statements and testimony. Trial counsel urged the jurors to consider the various fa ctors listed in CALCRIM No. 226 in deciding who and what to believe. The record demons trates that trial counsel’s agreement to instruct the jury with CALCRI M No. 226, including the brac keted last paragraph, was a deliberate tactical choice, not “m ere unconsidered acquiescence.” ( People v. Avalos,

supra , 37 Cal.3d at p. 229.) Accordingly, the invited error doctrine applies and defendant cannot challenge the instruction on appeal. In any event, the trial court did not err in giving the instruc tion. With unusual candor, defendant testified he is a liar, he lies to get what he wants, he would probably lie to get himself out of trouble, and he would lie to minimize his own criminal conduct. That testimony supported givi ng the bracketed instruction. Defendant argues the challenge d paragraph directed the ju rors that they “should” disbelieve him. But that is not true. Th e instruction merely di rected the jurors to5 “consider” not believing a witness if they find the witness deliberately lied. ( People v. Warner (2008) 166 Cal.Ap p.4th 653, 658 ( Warner ).) Defendant claims the ch allenged paragraph necessarily impaired the jury's credibility-determining function in a case wh ere the defense depend ed substantially on defendant’s testimony, adding that the paragr aph should not be given when a defendant testifies because a criminal defendant “alway s in theory has a motiv e to lie.” However, the California Supreme Court rejected ch allenges to similar instructions. ( People v. Carey (2007) 41 Cal.4th 109, 130-131 [CALJI C No. 2.21.2 does not lower burden of proof]; People v. Maury (2003) 30 Cal.4th 342, 428-4 29 [CALJIC No. 2.21.2 does not create “probability of truth” standard]; People v. Beardslee (1991) 53 Cal.3d 68, 94-95 [CALJIC No. 2.21 is correct statement of law and does not require jury to reject any testimony]; People v. Lang (1989) 49 Cal.3d 991, 1023-1024 [CALJIC No. 2.21 properly given].) Defendant argues CALCRIM No. 226 is different from CALJIC No. 2.21.2 because CALCRIM No. 226 more strongly encourages a jury to reject defendant’s entire testimony if it finds a material falseho od somewhere in his testimony. But in Warner,

supra, 166 Cal.App.4th at pa ge 658, the Court of Appeal compared the language of the two instructions and concluded they are both fa cially neutral. The court added that the instructions “apply to all witnesses who tes tify at trial” and “focus no more on the defendant's testimony than on that of any other witness.” ( Ibid .) We find the analysis in Warner persuasive and choose to follow it. Ac cordingly, defendant has not established instructional error. II Defendant next contends th e abstract of judgment must be corrected to reflect a sentence of life with the possibility of parole, rather than seve n years to life in prison. In sentencing defendant on count one, the trial court said “the defendant shall be committed to State Prison for the indeterminat e term of life with the minimum eligible6 parole of seven years.” The abstract of ju dgment states: “Defendant was sentenced to State Prison for an INDETERMINATE TERM as follo ws: [¶] . . . [¶] 6.c. 7 years to Life on counts 1.” The abstract accurately reflects the orally pronounced sentence. Nonetheless, to support his claim that the “abstract” shoul d be “corrected,” defendant argues that minimum parole eligibility is the province of the Californi a Department of Corrections and Rehabilitation and should not have been a comp onent of the senten ce imposed by the trial court. But that is not a basis to “co rrect” the abstract of judgment. There is no clerical error in the abstr act requiring correction. To the extent defendant may be challengi ng the sentence itself, he does not cite authority holding that the sentence impos ed was an unauthorized sentence ( People v. Stanley (1995) 10 Cal. 4th 764, 793), and he does not claim or establish prejudice. His contention lacks merit. DISPOSITION The judgment is affirmed.

M AURO , J.

We concur:

RAYE , P. J.

HULL , J.