Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA043334. Charles L. Peven, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
A jury found Carlos Castro (Castro) guilty of two counts of first degree murder (Pen. Code, § 187, subd. (a)), during the commission of each of which a principal and Castro personally used and discharged a firearm (§ 12022.53, subds. (b), (c) & (e)) and a principal personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). The jury found true the allegations the murders were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that Castro committed multiple murders (§ 190.2, subd. (a)(3)). The trial court sentenced Castro to life without parole, plus 50 years to life in prison. Castro appeals the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
We conclude Castro’s contention the trial court committed prejudicial error when it failed to sua sponte instruct the jury that a defendant’s out of court statements must be viewed with caution is without merit. However, Castro correctly asserts that one of two multiple victim special circumstance findings should be stricken, and the judgment is modified accordingly. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecution’s case.
a. Facts.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304) the evidence established that at approximately 4:00 a.m. on January 25, 2003, Jose Perez (Jose) and his son, Franklin Perez (Franklin) were awakened by the sound of gunshots outside their apartment located at 9006 Columbus Street. After Jose heard a car “hit [a] wall,” he and Franklin went to a window and looked out to see someone shooting at a Mustang convertible. The car belonged to another tenant in the building, a young man named Jessie Aguilar (Aguilar). Jose and Franklin saw someone in a black jacket, with the hood pulled up over his or her head. The individual, who appeared to be approximately five feet, five inches tall, was standing between two and three feet from the car, firing shots at it. In addition to the shooter, Jose and his son saw someone standing by the entrance to the parking area, looking out toward the street. That person was also wearing a black jacket with a hood pulled up over his or her head. After the shooter finished firing numerous rounds into the car, the two individuals ran from the area.
We refer to some members of the Perez family by their first names, not out of any disrespect, but for the sake of clarity.
Jose had Franklin call 911, then went down to the parking area to investigate. There, he saw Aguilar in the Mustang’s driver’s seat. Aguilar appeared to be dying. In the passenger’s seat was Jose’s son, Steve. Steve Perez (Perez) appeared to be dead. Perez and Aguilar had been friends for a “long time” and neither young man had been a gang member.
In addition to Aguilar and Steve Perez, police officers discovered a third person, Jose Pineda, lying in front of the building next door to the apartment building at 9006 Columbus Street. Pineda had been shot in the leg. Although Castro was originally charged with the attempted murder of Pineda, the trial court determined there was insufficient evidence to support the charge and dismissed it pursuant to Castro’s section 1118.1 motion.
It was determined that Aguilar had suffered 11 gunshot wounds, three of which were to his head. The remaining wounds were in his “upper body and/or parts of the extremities.” Three of the wounds were “fatal, meaning each one could individually have caused [Aguilar’s] death.” Each of the gunshot wounds was caused by a bullet traveling from Aguilar’s left to his right side.
Perez suffered a total of five gunshot wounds, three of which were fatal. Perez’s wounds were consistent with a gun having been fired “from the driver’s side [of the Mustang] while [Perez] was in the passenger seat.”
Los Angeles Police Officer Jamie McBride (McBride) and his partner, Officer Michael Hall, were on patrol during the early morning hours of January 25, 2003. McBride heard five or six gunshots, followed by a “volley of shots.” The first five or six shots sounded as though they had been fired from one gun. However, the “volley” of shots sounded as though it had come from more than one gun. McBride and his partner drove their patrol car around the corner to Columbus Street, the area from which they had heard the shots fired. When they arrived at the apartment complex, the officers observed a Mustang that looked as though it had collided with another car or a wall of the building. The Mustang’s lights were still on and the engine was running. Inside the car, McBride observed Aguilar and Perez. Both men appeared to be dead.
b. The investigation, gang members’s interviews and testimony.
Los Angeles Police Detective Orlando Martinez (Martinez) arrived at the scene of the shootings at approximately 5:45 a.m. From inside and around the Mustang, Martinez collected 13 cartridge casings and five bullets. The casings were all “nine millimeter” and consistent with use of a semiautomatic weapon. At least one of the bullets collected was likely fired from a .38 or .357 caliber weapon. Based on this and other ballistics evidence, Martinez was of the opinion that the shooter had used at least two guns when he fired at the occupants of the Mustang.
Although Aguilar and Perez were not gang members, the neighborhood surrounding Columbus Street in Los Angeles county is home to four criminal street gangs: Langdon Street, Blythe Street, Columbus Street and Vincent Town. The apartment building at 9006 Columbus Street had been marked with the letters “V.C.T. X-3,” which stand for the gang known as the Vincent Town 13. Another local gang, Langdon Street, is a rival of Vincent Town 13. During a memorial service held for Perez, a car drove by and one of its occupants “threw the L,” or made the hand sign for the Langdon Street gang.
Detective Martinez focused his investigation of the shooting on members of the Langdon Street gang. On February 3, 2003, Martinez and two other officers, Green and Contreras, interviewed Froilan Franco (Franco). Franco was not a member of Langdon Street, but he “used to kick it,” or associate, with at least one member of the gang. Franco indicated he had been “right on the corner” when the shooting took place and that he had “seen everything.” He saw a van park on the corner and a “gang of baldies” get out. Franco recognized two of the individuals: Oscar Garibe, who Franco knew as “Tones” from the Langdon Street gang, and Castro, who he knew as “Chili.” Franco believed that Castro’s real name was Carlos. After seeing the “gang” get out of the van, Franco heard three or four gunshots and decided to leave the area. He fled through a building which opened up onto another street.
According to Franco, Garibe is approximately five feet, 11 inches tall. Castro is approximately five feet, seven inches tall. When he was shown photographs of Garibe and Castro, Franco identified both men.
At the time of trial, Franco was in state prison. Since the shooting, Franco had been “jumped” into the Columbus gang, which was on “somewhat” friendly terms with the Vincent Town gang. When he testified at trial, Franco claimed that during his interview with Martinez and the other officers, he told Martinez “some things that [he] never did see.” Franco continued, “About when I seen the car coming I seen a lot of heads. Then after that I booked. I went inside of the building. . . . [¶] And like, . . . when I give him my statement, I told him that I seen that, I seen the car pull up to the corner. I never did see that.” Franco indicated that, as soon as he heard gunshots, he “took off to the back of the building” and never came back. Franco further testified that, approximately one week before trial, he had met with Detective Martinez and informed him that he did not want to testify. Franco stated, “[M]y statement that I had given [Martinez], it wasn’t . . . you know – everything that I told him, I really didn’t see. . . . I didn’t want to get up here and say something, you know, but I’m up here now saying the truth.” Franco added that his status in prison had been affected because he had spoken with police officers. Franco had to “watch his back” because he had been branded a “snitch.”
Rene Mejia (Mejia) testified that in December of 2002, he was a member of the Van Nuys gang. At that time, Mejia lived on Orion Street, which is within territory largely controlled by the Langdon Street gang. Mejia saw Langdon Street gang members “hang[ing] out” in front of his apartment building every day. On various occasions, Mejia would converse with Castro, who was not, prior to December, 2002, a gang member. However, Castro told Mejia that “he wanted to get jumped in to Langdon Street.”
Castro succeeded in getting “jumped in” to the Langdon Street gang and, in February of 2003, he told Mejia that he had gone on a “mission” for the gang and had “shot some guys from Columbus.” Castro then showed to Mejia a black and brown .38 caliber revolver. Castro told Mejia he had only one bullet left because he had used the rest on the “guys from Columbus Street.” Castro stated he had done “the mission” in order to “get known.” Castro was a “new boodie,” or a rookie, in the gang and he wished to gain the respect of the other members.
As Castro and Mejia were talking, a car being driven by a member of another gang passed by. Castro pulled out his gun and was going to shoot at the car, but decided against it when he saw a black and white police car down the street.
Mejia, who on February 20, 2003, had been taken to the police station for possession of drugs, stated he had received no benefit with regard to his case for testifying against Castro. Mejia had, however, testified in another gang-related case, not involving Castro, about a conversation he had overheard. In exchange for that testimony, Mejia’s drug case had been reduced to simple possession, the police had assisted him when he was charged with violating his probation and the police had assisted him with resettlement costs when he moved to a new location for his protection.
Martinez testified that he interviewed Johnny Lemos (Lemos) on February 20, 2003. Lemos, who had been a member of the Langdon Street gang for approximately 13 years, told Martinez that Castro had committed the murders. Lemos described Castro as someone who had “been jumped into the Langdon Street Gang about a week before” the murders and whose new gang name was “Morro.” On the night of the shootings, Castro had been carrying two guns, “a nine millimeter and . . . a .38.” Castro, accompanied by fellow gang members Ramon “Greedy” Cortez and Candelario “Shadow” DeDios drove off together. Approximately 30 to 40 minutes later, Castro, accompanied by “Shadow,” returned on foot. The two men were “laughing and bragging” about the shootings. Castro stated that there had been “two people in the car that they shot at.”
At the time of trial, Lemos was in custody for a parole violation. He testified under a grant of “use immunity.” During his testimony, Lemos indicated that, during his 2003 interview with Martinez, he had “made up a whole bunch of stuff.” The prosecutor asked Lemos, “Do you recall telling Detective Martinez that a guy that had just gotten into the gang, that was new booty, left that night to go do a mission?” Lemos responded, “I lied.” The prosecutor then asked, “And it’s your testimony that you never had a conversation with Morro [Castro] . . . after he came back an hour later where he was bragging about committing a shooting where he shot two people?” Lemos again responded, “I lied.”
Detective Martinez’s partner, Detective Craig Sacha (Sacha), interviewed then Langdon Street gang member Carlos “Raccoon” Cortez (Cortez) on March 6, 2003. During the interview, Cortez told Sacha that, approximately two days after the Columbus Street shootings, “Morro,” who Cortez identified at trial as Castro, told him: “ ‘I killed those fools over there on Columbus.’ ” Cortez continued, stating that Castro told him that he and another gang member had gone “over there” and committed the shootings. When asked if he had shot the men in the car, Castro stated, “ ‘Me. Yeah I did it.’ ” Cortez also told the detective that, approximately two weeks before the shootings, he had seen Castro with a .38 caliber revolver. According to Cortez, Castro associates, or “kick[s] it with,” two gang members: “Dopey,” whose real name is Oscar, and “Shadow.”
Carlos Cortez testified at Castro’s trial. He stated he had been “jumped in” to the Langdon gang in 2002 and that his gang name was “Raccoon.” Langdon gang members are not allowed to testify against each other in court. To do so makes one a “snitch” or “rat” and, as a consequence, the individual “get[s] beat down or sometimes they get killed.” Cortez, however, did not consider himself a “snitch” in this case. Cortez remembered talking with Detective Sacha about “Morro” in 2003. However when the prosecutor asked Cortez if “whatever [he] said to Detective Sacha was made up,” Cortez responded, “Yeah. It was made up, sir.” Cortez stated he “made up” the story that Morro had told him that he, Morro, had “killed two kids on Columbus” and indicated that he had heard about the murders from other sources. Cortez indicated Morro “never told [him] nothing.” Cortez testified that he had “made up” a conversation with Morro during which Morro had told Cortez that he, Morro, committed the murders with another gang member. In short, Cortez stated that “he lied about” virtually everything during his interview with Detective Sacha. Cortez indicated his “conversation” with Morro “never happened;” it “was all made up.” Finally, Cortez denied that his trial testimony was affected by the Langdon Street gang’s view of snitches because everything he had told Detective Sacha had been “a lie,” while his trial testimony was true.
c. Expert testimony regarding criminal street gangs.
Los Angeles Police Officer Shawna Green (Green) testified as an expert on criminal street gangs. Green began working in Langdon Street Gang territory in 1999. In an average year, Green has “hundreds” of contacts with Langdon Street gang members as witnesses, victims and suspects.
Green testified about the concept of “respect” and how important it is in gang culture. She stated, “The gang revolves around respect. . . . [A]s a gang member you are trying to prove yourself. By doing that you can gain respect in your gang by – [the] word they call [it] is . . . gang banging. What they do is they commit certain things, violence, activities consistent with gang member[ship]. Gang banging, that’s how they gain their own respect, not only in their neighborhood but they gain respect in the other rival gang neighborhoods.” “Gang banging” refers to conduct ranging from “tagging up a wall” to “doing missions,” which includes going into other neighborhoods to commit violent crimes. The more violent crimes a member commits the more he shows his commitment to his gang and the more respect he will command within the gang.
Several members of the Langdon Street gang had identified themselves to Green as members of that gang. Those individuals included Candelario “Shadow” DeDios, Johnny “Gumby” Lemos, Ramon “Greedy” Cortez, and Carlos “Raccoon” Cortez. Castro had never identified himself as a gang member, although Green had “contacted” Castro in Langdon Street territory on several occasions.
Green was consulted with regard to the 2003 murders of Aguilar and Perez. She, along with Detective Martinez and another officer, Contreras, spoke with Froilan Franco, who identified Oscar Garibe as a Langdon Street gang member who went by the moniker “Tones” and Castro as a Langdon Street associate who went by the name “Chili.” However, at trial, both Carlos Cortez and Johnny Lemos identified Castro as a Langdon Street gang member. Van Nuys gang member Rene Mejia testified that Castro had told him that he, Castro, had been “jumped into Langdon.” From this and other testimony, including that Castro had the new moniker of “Morro,” Green was of the opinion that, at the time of the shootings, Castro was a newly inducted member of the Langdon Street gang.
Green was also of the opinion that the murders of Aguilar and Perez were committed for the benefit of the Langdon Street gang. Green explained: “Based on the totality of the circumstances, you have a perfect example of a gang member going into a rival gang neighborhood and committing a violent act of a shooting, which could lead to murder. That shows that that person is down for his gang, showing that he wants to be respected in his gang and goes into a rival gang neighborhood and kills another person. That shows fear and intimidation, not only to that gang but also to that community, that a member of that gang will come and shoot and kill another person.” Although Castro shot individuals who were not members of any rival gang, his actions nevertheless showed the Langdon Street gang’s “dominance within [the] area . . . ” In addition, such conduct by a new gang member “definitely elevate[d] his status with the gang.”
2. Defense evidence.
Private Investigator Kenneth Dagdigian (Dagdigian) testified that there is a “certain language” that is spoken in prisons. For example, the expression “in the car” means one is “affiliated or accepted with the specific group” or “gang” within the prison. If one is “ ‘in the hat,’ ” it means that the individual is “marked to be killed.”
CONTENTIONS
Castro contends: (1) the trial court committed reversible error when it failed to sua sponte instruct the jury with CALCRIM 358, that a defendant’s oral, out of court statements must be viewed with caution, and (2) one of the two multiple murder special circumstance findings must be vacated.
DISCUSSION
1. The trial court’s failure to sua sponte instruct the jury that Castro’s out of court admissions must be viewed with caution was harmless error.
The prosecution produced evidence that, prior to his arrest, Castro admitted to three individuals, Rene Mejia, Johnny Lemos and Carlos Cortez, that he had committed the January 25, 2003, shootings of Aguilar and Perez. The trial court did not, however, instruct the jury that these admissions must be viewed with caution. Castro asserts the failure to so instruct the jury amounted to prejudicial error.
“When the evidence warrants, the court must instruct the jury sua sponte to view evidence of a defendant’s oral admissions or confession with caution. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 905.) The standard instruction cautioning a jury to consider with caution a defendant’s extrajudicial statements is CALCRIM 358. “The rationale behind the cautionary instruction suggests it applies broadly. ‘The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ [Citation.] This purpose would apply to any oral statement of the defendant, whether made before, during or after the crime.” (People v. Carpenter (1997) 15 Cal.4th 312, 392-393.)
CALCRIM 358 reads: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statements[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]”
Here, the prosecution presented evidence that Castro told Rene Mejia, a member of the Van Nuys gang, that he, Castro, had gone on a “mission” for the Langdon Street gang and that he had “shot some guys from Columbus.” Castro stated he had done “the mission” in order to “get known.” A short time later, Castro showed Mejia a .38 caliber revolver and stated that he had only one bullet left because he had used the rest on the “guys from Columbus Street.” There was also evidence that, after leaving with two other Langdon Street gang members, Castro returned approximately 40 minutes later and bragged to Langdon Street member Johnny Lemos that he had shot two people in a car. Finally, the prosecutor presented testimony indicating that Castro told Langdon Street gang member Carlos Cortez that he, Castro, had “ ‘killed those fools over there on Columbus.’ ” In view of this evidence, the trial court should have sua sponte instructed the jury to view evidence of Castro’s admissions with caution.
The error, however, was harmless. “The standard of review for erroneous failure to give the cautionary instruction is ‘the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.” (People v. Dickey, supra, 35 Cal.4th at p. 905, citing People v. Stankewitz (1990) 51 Cal.3d 72, 94.)
“ ‘ “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” [Citation.]’ [Citation.] “ ‘Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]’ [Citation.] [¶] Where there was no such conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, [the California Supreme Court has] found failure to give the cautionary instruction harmless. [Citation.]” (People v. Dickey, supra, 35 Cal.4th at pp. 905-906.)
In People v. Bunyard (1988) 45 Cal.3d 1189, “two witnesses, Popham and Johnson, testified concerning statements made by the defendant in soliciting them to kill his wife. ‘[The Supreme Court agreed] with the Attorney General that there was no issue of conflicting evidence in [the] case concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately. [Citation.] Defendant simply denied soliciting Popham or Johnson to kill his wife. At issue was whether Popham or Johnson were credible witnesses or had fabricated their testimony concerning defendant’s solicitations. The jury was properly instructed to view Popham’s testimony, as an accomplice, with distrust [citation], that Johnson’s prior felony conviction could be considered in weighing his credibility [citation], and that the prior inconsistent statements, inconsistent testimony, feigned loss of memory, and willfully false testimony would all bear on credibility [citations]. [The court concluded that] [t]hese instructions adequately alerted the jury to view the testimony of Johnson and Popham with caution. [The court concluded] that a more favorable result was not reasonably probable absent the error.’ [Citation.]” (People v. Dickey, supra, 35 Cal.4th at p. 906, quoting People v. Bunyard, supra, 45 Cal.3d at pp. 1224-1225.)
In the present case, “there was no issue of conflicting evidence in [the] case concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately.” (People v. Dickey, supra, 35 Cal.4th at p. 906.) Castro’s defense was that he did not “participat[e] in [the] crime;” that the witnesses’s testimony simply did not “place [him] at the scene with a gun in his hand.” Accordingly, at issue in this case, as in Bunyard, was the credibility of the witnesses. Here, the jury was properly instructed with CALCRIM 226, that the jury “alone must judge the credibility or believability of the witnesses” and that, in so judging, it could consider, among other factors: how well the witness was able to remember and describe what happened; the witness’s behavior while testifying; whether the witness understood the questions and answered them directly; whether the witness’s testimony was influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case would be decided; the witness’s attitude about the case or about testifying; whether the witness had, in the past, made a consistent or inconsistent statement; whether the witness’s testimony was reasonable in view of all the other evidence in the case; whether other evidence proved or disproved any fact about which the witness testified; whether the witness admitted to being untruthful; whether the witness had been convicted of a felony; whether the witness engaged in other conduct that reflected on his or her believability; and whether the witness had been promised immunity or leniency in exchange for his or her testimony. The jury was further instructed with CALCRIM 301, that “[t]he testimony of only one witness can prove any fact,” and CALCRIM 302, that “if [the jury] determine[s] there is a conflict in the evidence, [it] must decide what evidence, if any, to believe” and that it should not “simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses.”
With regard to eyewitness identification, the jury was instructed with CALCRIM 315, that it must determine, by evaluating certain factors, whether an eyewitness gave truthful and accurate testimony. The jury was then instructed with CALCRIM 316, that if it found a witness had been convicted of a felony, it could “consider that fact in evaluating the credibility of the witness’s testimony.” Finally, the jury was instructed with CALCRIM 318 as follows: “You have heard evidence of statements that witnesses made before the trial. If you decide that any witness made that statement, you may use that statement in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in that earlier statement is true.”
These instructions adequately alerted the jury to view with caution the testimony of the witnesses, including their references to admissions made by Castro. Under these circumstances, there is no reasonable probability a result more favorable to Castro would have occurred had the jury also been instructed with CALCRIM 358.
Castro emphasizes that the jury’s request for a read back of certain testimony and its lengthy, two full and one partial day, of deliberations indicates this was a close case which requires a finding of prejudice. The contention is not persuasive. As one court has observed, “the length of a jury’s deliberation is related to the amount of information presented at trial.” (People v. Houston (2005) 130 Cal.App.4th 279, 301.) This case involved six days of testimony from 13 witnesses and over 70 exhibits. “The jury’s deliberation of this mass of information . . . speaks only for its diligence. Its requests for the reading back of selected testimony does not necessarily indicate that this was a ‘close’ case . . .; in fact, the jury’s time spent reviewing that testimony reduced their time spent actually deliberating. [Citation.] In short, to conclude that this was a ‘close case’ in light of the jury’s actions ‘in the absence of more concrete evidence would amount to sheer speculation on our part. Instead, . . . the length of the deliberations could as easily be reconciled with the jury’s conscientious performance of its civic duty, rather than its difficulty in reaching a decision.’ [Citation.]” (Ibid.)
Finally, Castro’s reliance on the court’s decision in People v. Bemis (1949) 33 Cal.2d 395 is misplaced. There, Bemis and a co-defendant, Hudson, were charged with burglary. While Bemis entered a plea, Hudson went to trial. As evidence of his participation in the burglary, the prosecutor relied primarily on admissions Hudson allegedly made to police officers. Hudson then testified in his own behalf. He denied having taken part in the burglary and stated that “he would have made no statement to the officers if they had not first threatened and then beaten him. He testified that after he was beaten he said: ‘Well, I guess I am guilty if you people won’t believe me when I tell you where I was and you won’t give me a chance to prove my story, I guess I am guilty.’ ” (Id. at p. 397.) Under these circumstances, the California Supreme Court determined the trial court committed prejudicial error in failing to instruct the jury “that evidence of the oral admissions of defendant ought to be viewed with caution.” (Id. at p. 398.) The court stated that “[t]he dangers inherent in the use of such evidence are well recognized by courts and text writers. [Citations.] ‘It is a familiar rule that verbal admissions should be received with caution and subjected to careful scrutiny, as no class of evidence is more subject to error or abuse. . . .’ ” (Id. at pp. 398-399, original italics.)
In the present case, there is no evidence the statements made by Castro, as related to investigators by Mejia, Lemos and Cortez, were anything but voluntary. Neither was there any evidence of coercion on the part of police regarding Mejia’s, Lemos’s and Cortez’s statements pertaining to the admissions made to them by Castro.
In addition, the Bemis court failed to indicate what other, compensating instructions could have been given. Here, as stated above, the jury was thoroughly instructed on how to assess the witnesses’s credibility and, accordingly, the reliability of their testimony regarding Castro’s admissions. Unlike the situation presented in Bemis, there is no reasonable probability a result more favorable to Castro would have occurred had there been no instructional error.
2. One of the two multiple murder special circumstances should be stricken.
The prosecutor charged a section 190.2, subdivision (a)(3) multiple murder special circumstance as to the murders alleged in each of counts one and two and the jury found both special circumstances to be true. Castro asserts one of the special circumstance findings should be stricken as duplicative. The contention has merit.
“When a defendant kills more than one person, the prosecution should allege only one multiple-murder special circumstance; to charge more than one such special circumstance would improperly inflate the seriousness of the defendant’s conduct.” (People v. Diaz (1992) 3 Cal.4th 495, 565; see People v. Sanders (1995) 11 Cal.4th 475, 537.) Accordingly, one of the special circumstances found to be true in this case must be stricken. (People v. Diaz, supra, at p. 565; People v. Jones (1991) 53 Cal.3d 1115, 1148-1149.)
DISPOSITION
One of the two multiple murder special circumstance findings is ordered stricken as duplicative. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.