Opinion
A125553 A125869
05-12-2011
THE PEOPLE, Plaintiff and Respondent, v. DENNIS RUSSELL DERRICK, JR., Defendant and Appellant. THE PEOPLE, Plaintiff and Appellant, v. SERGIO MARCOS MIRANDA, _Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR233143)
(Solano County Super. Ct. No. FCR233144)
A jury convicted defendants Dennis Russell Derrick, Jr., and Sergio Marcos Miranda (appellants) of the first degree murders (Pen. Code, § 187, subd. (a)) of Jose Gutierrez (Jose) (count 1) and Benjamin Gutierrez (Benjamin) (count 2) and the attempted murders (§§ 187, subd. (a), 664) of Craig Clay (count 3), Maricela Vidrio (count 4) and Andrew Soares (count 6). The jury separately convicted Derrick of evading an officer for the benefit of a criminal street gang (Veh. Code, § 2800.2, subd. (a), Pen. Code, § 186.22, subd. (b)(1)) (count 5), and separately convicted Miranda of possession of a firearm by a felon for the benefit of a criminal street gang (§§ 12021, subd. (a)(1), 186.22, subd. (b)(1)) (count 7). The jury found the murders were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and found two special circumstances: appellants were active participants in a criminal street gang and the murders were carried out to further gang activities (§ 190.2, subd. (a)(22)), and appellants committed multiple murders (§ 190.2, subd. (a)(3)). As to both appellants, the jury found that, during the commission of the murders and attempted murders, a principal personally and intentionally discharged a handgun (§ 12022.53, subds. (d) & (e)(1)). It also found that during the murders and attempted murders Miranda personally and intentionally fired a handgun which caused great bodily injury and death to Jose and Benjamin (§ 12022.53, subd. (d)), and great bodily injury to Clay.
All undesignated section references are to the Penal Code.
Solely for the sake of convenience, we refer to Jose and Benjamin Gutierrez by their first names.
For each murder (counts 1 & 2), Derrick was consecutively sentenced to life without possibility of parole, plus 25 years to life for the gun use enhancement, plus five years for the prior serious felony conviction. For the attempted murders (counts 3, 4 & 6), he was sentenced to a consecutive term of life with a minimum parole eligibility of 14 years, plus 25 years to life for the gang and gun use enhancements. For the felony evading (count 5), he was sentenced to a consecutive eight-year term.
Miranda received the same sentence as Derrick on the murder counts. For the attempted murders counts, Miranda was sentenced to a consecutive term of life with a minimum parole eligibility of 15 years, plus 25 years to life for the gun enhancements. He received a consecutive five-year sentence for possession of a firearm by a felon for the benefit of a criminal street gang (count 7).
On appeal, appellants contend their convictions for the attempted murders of Vidrio and Soares must be reversed because they are not supported by substantial evidence and the trial court erroneously instructed the jury it could base its conviction on these counts on a "kill zone" theory of liability. Miranda separately contends the court erroneously denied his request for severance. Derrick separately contends the court erred in instructing the jury with the prosecutions pinpoint consciousness of guilt instructions. We reject the contentions and affirm.
BACKGROUND
About 10:00 p.m. on May 30, 2006, Soares, Benjamin, Jose, and Clay decided to walk Clays girlfriend, Vidrio, to her home on Dover in Fairfield. They walked side by side so they could converse. According to Soares, as they approached the intersection of San Diego and San Marcos Streets, a gold Chevy Impala drove slowly, about 20 feet behind them. The car then approached the group and the driver, later identified as Derrick, asked if they were "busters." Jose said "No." The car then pulled about six feet in front of the group and stopped. The cars front seat male passenger, later identified as Miranda, exited the car, wearing a black hooded sweatshirt. Miranda was four or five feet from Soares and Jose; Craig, Vidrio and Benjamin were a couple of steps in front of Soares. Miranda raised his arm, aimed at Benjamin and fired a shot. Soares saw the guns muzzle "blasting off" and Benjamin get shot. After hearing the first shot, Soares ran about five or six houses away from the scene. He then heard two more shots. When he heard the cars tires screech and the car drive off, he went back to the shooting scene. Soares saw Benjamin, Jose, and Craig lying on the ground and Vidrio hiding behind a tree.
The prosecutions gang expert testified that "buster" is a derogatory term used against Nortenos.
On cross-examination Soares said he never saw the gun pointed directly at him and did not hear any shots "come toward [him] in [his] direction." He testified, "I could say it was aimed at all of us, we were all in the same area."
According to Clay and Vidrio, when the car approached, Derrick asked if the group were Nortenos and busters. When Derrick asked, "Where are you from?" Jose responded, "Fairfield." The driver also said, "CSM on mines." The car then pulled ahead one or two houses and stopped; the group kept walking. Miranda exited the car, walked toward the group, raised his arm and fired three shots. Clay said Miranda wore a black glove on one hand. Clay saw Miranda raise the gun and shoot Benjamin in the chest; Benjamin fell to the ground. Clay then ran toward the tree where Vidrio was hiding. As Clay did so, he realized he, too, had been shot.
According to the gang expert this meant the driver was claiming his gang allegiance.
On cross-examination Clay said Miranda raised his right arm and pointed it in the direction of the group and fired. He also said the gun was pointed to the left of him, where Benjamin was standing.
According to Vidrio, after exiting the front passenger door, Miranda moved to the back of the car. He wore black gloves and held a gun in his left hand. Vidrio saw Miranda raise the gun and fire once. After she saw Benjamin fall, Vidrio ran behind the tree and then heard two more shots.
Soares called police from the crime scene. In a tape of the call played at trial, Soares said "some random car full of Mexicans,... came up... [¶]... and they shot... at us."
Benjamin was pronounced dead at the scene from a gunshot wound to the chest. Jose suffered a gunshot wound to his lower thoracic region and died the next morning. Clay was shot in the right thigh and the bullets trajectory caused severe injury to his right testis, necessitating its removal.
After hearing gunshots, Fairfield Police Officer Franco Cesar drove toward the location from where the shots were fired. He saw a Chevy Impala at the intersection of Dover and San Marcos and pursued it, joined by other officers. A high speed freeway chase ensued, ending in Vacaville, when the car crashed into a guardrail after hitting an officer deployed spike strip. Appellants were removed from the car.
A navy and black sports left-handed glove was found between the cars front passenger seat and the console. A DNA test of the inside of the glove matched Derricks DNA. A gun cleaning kit was found inside the cars trunk. A.44-magnum revolver and a right-handed athletic glove were found in the area where police had seen the car swerve. The gun had one empty chamber, three expended casings and two unfired bullets. Police found two bullets at the shooting scene, and a third bullet was removed from Jose. The two bullets found at the scene were fired by the recovered revolver.
The prosecutions gang expert, Fairfield Police Detective Steven Garcia, testified that at the time of the shootings appellants were members of CSM, a Sureno gang also known as Calle San Marcos, and the shooting scene was considered CSM territory.
The thrust of Mirandas defense was that, although he was in the front passenger seat of the car and was either a gang member or gang associate, he was not the shooter. The thrust of Derricks defense was that although he was the driver of the car, he was not the shooter and did not aid and abet the shootings.
DISCUSSION
I. Substantial Evidence Supports the Attempted Murder Convictions
Appellants contend there was insufficient evidence to support their convictions of attempted murder of Vidrio and Soares under both a traditional theory and a kill zone theory of liability. The People concede there was insufficient evidence to support the kill zone theory, but assert that there was sufficient evidence to support the traditional theory of attempted murder.
" The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citation.]" (People v. Perez (2010) 50 Cal.4th 222, 229 (Perez).)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citation.]" (People v. Ervine (2009) 47 Cal.4th 745, 785 (Ervine).)Since attempted murder requires the specific intent to kill, the defendants " "[g]uilt of attempted murder must be judged separately as to each alleged victim." [Citation.]" (Perez, supra, 50 Cal.4th at p. 230.)
Here, in order for appellants to be convicted of the attempted murders of Vidrio and Soares, the prosecution had to prove appellants acted with the specific intent to kill each of them, regardless of whether Vidrio and Soares were specifically targeted or randomly chosen. (Perez, supra, 50 Cal.4th at p. 230.) There is usually no direct evidence of a defendants intent. (People. v. Lashley (1991) 1 Cal.App.4th 938, 945946.) "[I]ntent to kill or express malice... may in many cases be inferred from the defendants acts and the circumstances of the crime. [Citation.] ... The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill...." [Citation.] [Citations.] "The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooters poor marksmanship necessarily establish a less culpable state of mind." [Citation.] [Citation.]" (People v. Smith (2005) 37 Cal.4th 733, 741.)
"Whether the defendant attempted to murder more than one individual in the group he fired upon turns on whether the evidence establishes that he acted with specific intent to kill that additional person or persons." (Perez, supra, 50 Cal.4th at p. 231, fn. 5.)
Appellants argue there is no evidence that they specifically intended to kill or tried to shoot all five members of the group. In support of their argument, they assert the shooter used a gun that was single action; it had to be cocked before each trigger pull; although there were five bullets in the gun, only three shots were fired; and appellants did not announce an intent to kill all five group members.
Appellants rely on the Supreme Courts recent opinion in Perez. In that case, the defendant fired a single bullet at a distance of 60 feet, from a car travelling 10 to 15 miles per hour, at a group of seven peace officers and a civilian who were standing less than 15 feet apart from one another. There was evidence that the defendant believed he was shooting at a group of rival gang members, but no evidence he was targeting any particular individual when he fired at the group. The bullet wounded one officer. The jury convicted the defendant of seven counts of premeditated attempted murder of a peace officer and one count of premeditated attempted murder of the civilian victim. The Court of Appeal affirmed the eight counts of attempted murder, reasoning that the jury could find that " the officers proximity to each other was such that in intending to kill any of the officers defendants shooting endangered the lives of all. " (Perez, supra, 50 Cal.4th at p. 224.) The Supreme Court, reversed, concluding the evidence was sufficient to establish only one count of premeditated attempted murder of a peace officer. It concluded the evidence established the shooter indiscriminately fired a single shot at a group of persons with the specific intent to kill someone, but without targeting any particular individual or individuals. (Id. at p. 225.) It concluded there was no evidence that the defendant specifically targeted any particular individual or individuals in the group fired upon, no evidence he specifically intended to kill two or more persons with the single shot, and no evidence he specifically intended to kill two or more persons in the group, but was thwarted from firing off additional shots by circumstances beyond his control. (Id. at pp. 230-231.)
The prosecutor in Perez argued to the jury that the evidence established the defendant did not intend to kill everyone in the group and did not have " a specific target in mind " when he fired into the group. (Perez, supra, 50 Cal.4th at p. 225.)
We conclude Perez is factually distinguishable from the instant case. Here, Miranda fired three shots at the group from close range—a distance of four to five feet— giving rise to the inference that he intended to kill all of them. As argued by the prosecutor, Derricks hostile comments just prior to the shooting were directed at the whole group, and there were five bullets in the gun and five potential victims. Based on this evidence the jury could reasonably have concluded that the intent to kill all five members of the group was interrupted after the first shot was fired when Jose, Clay, Vidrio and Soares ran, preventing Miranda from shooting at Vidrio and Soares. We conclude substantial evidence supports the convictions of attempted murder of Vidrio and Soares under a traditional theory of attempted murder liability.
II. The Kill Zone Theory Instruction
Appellants contend it was error to instruct the jury regarding the kill zone theory of attempted murder because there was no substantial evidence to support that theory. They also contend the kill zone theory language in the CALCRIM No. 600 instruction given by the court was erroneous. The People agree there was no substantial evidence supporting the attempted murder convictions of Vidrio and Soares under the kill zone theory, but argue the CALCRIM No. 600 instruction was a correct statement of law and the error of instructing on the kill zone theory of liability was not prejudicial.
The court gave the jury the following attempted murder instruction pursuant to CALCRIM No. 600:
"The defendant is charged in [counts 3, 4, and 6] with attempted murder. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶]1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person.
"A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.
"A person who attempts to commit murder is guilty of attempted murder, even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder.
"A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or kill zone. In order to convict the defendant of the attempted murder of [Vidrio or Soares], the People must prove that the defendant not only intended to kill [Benjamin, Jose or Clay], but also either intended to kill [Vidrio or Soares], or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill [Vidrio or Soares], or intended to kill [Benjamin, Jose or Clay], by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [Vidrio or Soares]."
A. Applicability of the Kill Zone Theory
The kill zone theory applies where a defendant intends to kill a particular target and concurrently intends to kill others within a kill zone. (People v. Bland (2002) 28 Cal.4th 313, 329-331 (Bland).)" The intent [to kill nontargeted victims] is concurrent [with the intent to kill a targeted victim]... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity.... " (Id. at p. 329.) The kill zone theory "addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted persons." (People v. Stone (2009) 46 Cal.4th 131, 138 (Stone).)
Examples of facts that might support a kill zone theory of attempted murder include "the placing of a bomb in an airliner when the desire is to kill a particular person on board, the firing of an automatic weapon at a group of people on the street motivated by the desire to kill one particular person in the group, or the use of an explosive device devastating enough to kill everyone in the group." (Perez, supra, 50 Cal.4th at p. 232, citing Bland, supra, 28 Cal.4th at pp. 329-330.) The kill zone theory does not apply where there is no evidence that the defendant used a means to kill that " inevitably would result in the death of other victims within a zone of danger. " (Stone, supra, 46 Cal.4th at p. 138.)
The Supreme Court has made it clear that the kill zone theory " is not a legal doctrine requiring special jury instructions.... Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others. " (Smith, supra, 37 Cal.4th at p. 746, quoting Bland, supra, 28 Cal.4th at p. 331, fn. 6.)
Here, the parties are correct that the kill zone theory of attempted murder was inapplicable as to Vidrio and Soares because there was no evidence that Miranda used a means to kill Benjamin and Jose that would have also killed Soares, Vidrio and Clay. The evidence established that Miranda fired three shots that hit Benjamin, Jose and Clay, respectively. No evidence established that the five members of the group were aligned in such a way that a single bullet could have struck more than one of them. Moreover, Miranda used a single-action weapon which had to be cocked and fired for each shot, rather than an automatic weapon fired indiscriminately at a group.
B. The Kill Zone Theory Instruction Was Not Legally Incorrect
Appellants contend the kill zone theory language in the CALCRIM No. 600 instruction given by the court was erroneous in that the instruction was disapproved by the Supreme Court in Stone, supra, 46 Cal.4th 131. They argue the instructions ambiguous language permitted the jury to convict them of the attempted murders of Vidrio and Soares under a kill zone theory so long as the shooter intended to kill or harm either Benjamin or Jose or Clay.
Appellants do not claim that the portion of the courts CALCRIM No. 600 instruction regarding traditional attempted murder was erroneous.
The question presented by appellants claim of error " is whether there is a "reasonable likelihood" that the jury understood the charge as the defendant asserts. [Citation.] In making that determination, we consider the language of the instruction at issue, the instructions as a whole, and the arguments of counsel. [Citation.]" (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1321.)
In reliance on Stone, appellants argue that use of the words "harm" and "anyone" in the instruction given permitted the jury to convict appellants of attempted murder if the prosecution proved the shooter intended to kill or harm anyone in the kill zone.
In Stone, the Supreme Court noted the ambiguity in the CALCRIM No. 600 instructions reference to the "intent to kill anyone within the kill zone rather than everyone, " and reference to an intent to "harm" rather than "kill" everyone in the kill zone.(Stone, supra, 46 Cal.4th at p. 138, fn. 3.) But the Stone court did not conclude these ambiguities rendered the CALCRIM No. 600 instruction erroneous. Instead, it noted, "[i]n context, a jury hearing about the intent to kill anyone within the kill zone would probably interpret it as meaning in the intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill zone." (Stone, at p. 138, fn. 3.) "Because the intent required for attempted murder is to kill rather than merely to harm, it would be better for the instruction to use the word kill consistently rather than the word harm. " (Ibid.) We reach the same conclusion regarding the instruction given here.
Following Stone, the CALCRIM No. 600 kill zone theory instruction was revised to substitute "everyone" for "anyone," and intent to "kill" for intent to "harm." (Judicial Council of Cal. Crim Jury Instns. (2011) CALCRIM No. 600, p. 409.)
C. The Error in Instructing the Jury Regarding the Kill Zone Theory Was Harmless
We next must determine whether the error in instructing the jury regarding the kill zone theory of liability for attempted murder was prejudicial. (See Stone, supra, 46 Cal.4th at pp. 138-139 [error in giving kill zone theory instruction which did not fit facts of case not necessarily prejudicial].)
"It is error to give an instruction which, while correctly stating a principle of law, has no application to facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).)Such an error requires reversal only if "it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. [Citation.]" (Id. at p. 1130.) "[G]iving an irrelevant or inapplicable instruction is generally "only a technical error which does not constitute ground for reversal." [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.] Furthermore, instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict.... [T]he appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Guiton, at p. 1130; accord, People v. Perez (2005) 35 Cal.4th 1219, 1233.)
The thrust of Mirandas closing argument was that the prosecution failed to establish his liability as the shooter or as an aider and abettor. The thrust of Derricks closing argument was that the prosecution failed to establish his liability as an aider abettor by failing to show the gun was his and he knew the shooter had a gun and was going to shoot the victims.
In her closing argument, the prosecutor first argued that appellants were guilty of the attempted murders of Clay, Vidrio and Soares under a traditional theory of attempted murder. After arguing that Miranda intended to kill all five victims, she stated:
"The jury instruction tells you a person who attempts to commit murder is guilty of attempted murder even if after taking a direct step toward killing he abandons further efforts to complete the crime or his attempt fails or is interrupted by someone or something beyond his control.
"Thats what you have in this case. Whether he decided it was taking too long, but we know he had to pull the hammer back each time to fire again or because the victims ran, his plan was interrupted. But his intent when he got out of that car was to kill all five of those victims.
"There is more than enough evidence to find the defendants guilty of the attempted murders of all three of these victims on the theory that we just discussed.
"But as the [c]ourt instructed you, there is an alternative theory for attempted murder, and it is called the kill zone. The person may intend to kill a specific person or victim or victims and at the same time intend to kill anyone in a particular zone of harm or in a kill zone.
"So in other words, when he goes up and he fires this gun, we know these victims are standing close together. We know these bullets go through items. The bullets went through two of the victims and continued on. We know those bullets bounced off of objects. You will see in the photographs one of the bullets hit... in front of [the] house [on] San Diego and bounced off and landed in the grass.
"If the defendant intended to kill everyone there by killing one or two, then you can still find them guilty of the attempted murder.
"Its a little confusing, but I think if you focus on the instructions, you will understand that.
"An example would be if someone wanted to kill a person and they were in a car with four other people. If they just opened fire on the car because its, you know, I dont know these people, and I dont really want to kill them, but I want to kill that guy. And I want to make sure I kill him. So I will kill everybody in the car to make sure I get that guy. Thats the kill zone.
"The defendants in the case created a kill zone by their actions, by the type of [weapon] they used, by the way they fired the weapon in a reckless manner, the fact that these other victims are so close by and running away. Under either theory both defendants are guilty of the attempts to murder all three of these victims."
During deliberations the jury sent a note to the court asking, "What is [the] definition of kill zone?" The court responded, "Please refer to [CALCRIM No.] 600 which is the instruction that addresses kill zone. That is a matter for you to decide." Thereafter, the jury asked no follow-up questions. "[A] jury is presumed to understand a judges answer to its question. [Citation.]" (Weeks v. Angelone (2000) 528 U.S. 225, 234.)
Considering the instructions as a whole, the evidence presented at trial, and the arguments of counsel, we conclude it is not reasonably likely that the jury convicted appellants of the attempted murders of Vidrio and Soares based upon the kill zone theory. The jury was instructed that some instructions might not apply to the facts they found to be true, and we assume they followed that instruction. (People v. Benson (1990) 52 Cal.3d 754, 793.) Given the absence of evidence to support the kill zone theory, it is unlikely the jury utilized that theory to convict. There was, however, sufficient evidence establishing appellants specific intent to kill Vidrio and Soares, as well as Clay, Jose and Benjamin, under a traditional attempted murder theory. Although the prosecutor argued the alternative kill zone theory, she clearly argued that appellants intended to kill each of the five victims. In addition, the kill zone instruction did not undermine Mirandas defense that he was not the shooter and Derricks defense that he was neither the shooter nor an aider and abettor to the shooting. And nothing in the record establishes the jury relied on the kill zone theory. Because there is not "an affirmative indication in the record" that the jury based its verdict on the kill zone theory, the error in instructing on the kill zone theory is harmless. (Guiton, supra, 4 Cal.4th at pp. 1128-1129.) III. The Joint Trial Was Not Grossly Unfair to Miranda
Miranda contends that two inflammatory letters read to the jury during his joint trial with Derrick resulted in gross unfairness to him, requiring reversal of his convictions.
"[T]here are two levels of review when a defendant alleges prejudicial error in the denial of a motion to sever. The first level of review determines whether the trial court abused its discretion in denying the motion. If it is concluded that there was no abuse of discretion, the next level of review determines whether the failure to sever resulted in gross unfairness which denied the defendant a fair trial or due process. The first level of review focuses on what was presented to the trial court at the time it made its decision. The second level of review focuses on what actually happened in the joint trial." (People v. Greenberger (1997) 58 Cal.App.4th 298, 343; accord, People v. Mendoza (2000) 24 Cal.4th 130, 162 ["Even if a trial courts severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process. [Citation.]"].)
Here, Miranda expressly states he does not assert the trial court abused its discretion in denying his pretrial motion to sever his trial from Derricks. Thus, we only consider whether joinder of appellants trials resulted in gross unfairness to Miranda.
The first letter stated in part, "Rosalda,... [w]hen you get a chance take your digital camera and go to... [an address on] Sarah Way in Suisun City and take photos of that house, cars and license plates of all the cars there. Go to the library and look on a map to find this Calle Sarah Way. This house is where one of the victims and his familia stays so be extra careful. As for that putah... Vidrio do your best to obtain the address from Jessica cause you said one of Jessicas friends was speaking about that female a couple of weeks ago. Phone number or address we really need the address though so do your best to get it...."
The second letter stated in part: "My dearest brownie,... [w]henever you feel better and you recover full strength I need you to start going to the grocery outlet on Travis. Look for a female named [Vidrio]. Shes raza, about [18] or [19] years old. If and when you find her, dont say anything to her. I just need to know if [s]he still works there. And what she looks like. And whatever other info you can get on her. This is the bitch... that is involved in my case. The same one who wants that money. I rather have the bitch killed. Serio.... Those two straps from mugs... are very important to get. And keeping note on how much Sleepy is supposed to be putting on my books. Thats if it ever gets to that level.... Love always... Dennis."
At the close of trial the jury was instructed, "Certain evidence, specifically the letters allegedly sent to and from... Derrick, were admitted only against... Derrick. You must not consider that evidence against... Miranda." The court also instructed: "If you conclude that... Derrick tried to hide evidence, or discourage someone from testifying, you may consider that conduct only against that defendant. You may not consider that conduct in deciding whether... Miranda is guilty or not guilty."
In her discussion of the "relevant evidence" during closing argument, the prosecutor stated, "Also the letters written by... Derrick. You havent had an opportunity to see those, but they are in evidence. You will have them in the jury room. In those letters he directs his wife to conduct surveillance on the home of... Clay on Sarah Way in Suisun. You heard thats where he lived at the time of this offense. He directs her to conduct surveillance on... Vidrio, to go to her employment. Dont talk to her, just find out what she looks like. As much information as you can get about her. Get her address if you can. [^] He goes on to explain how he wants to pay her off, or in the alternative, he would rather have her killed because he considers her to be the star witness in this case because she is so confident in her identifications. She remembered as soon as she saw... Miranda she knew him. She had seen him before. And as soon as she got in there, she told the police, I can identify him. And she did. She told you, Im really positive its him."
In his motion for new trial Miranda asserted the court erroneously denied his severance motion because he was prejudiced by Derricks letters and by the evidence that Derrick was older, had prison experience, and was a longstanding member of the Surenos. In denying the motion, the court stated it believed the jury followed its instruction not to consider the letters against Miranda.
Miranda argues the letters were "extremely inflammatory," suggesting that his codefendant was attempting to engage in witness intimidation or have witnesses killed. He argues that the prosecutors argument suggested that Vidrios identification of Miranda was the motive for Derricks threatening letters, resulting in Mirandas unfair "guilt by association." Miranda also relies on our Supreme Courts recent statement in People v. Letner and Tobin (2010) 50 Cal.4th 99, 152: "A prejudicial association justifying severance will involve circumstances in which the evidence regarding one defendant might make it likely the jury would convict that defendant of the charges and, further, more likely find a codefendant guilty based upon the relationship between the two rather than upon the evidence separately implicating the codefendant. (See People v. Chambers (1964) 231 Cal.App.2d 23, 29 [concluding that the defendant was probably fastened with vicarious responsibility for the long-continued brutality of [the codefendant], and that the jury likely convicted the defendant based upon a notion of joint moral responsibility rather than personal guilt]; [citations].)." He argues that Derricks letters would not have been admitted at a separate trial against Miranda and, despite the courts instructions, the jury could not reasonably be expected to disregard the letters as to Miranda.
We conclude Mirandas assertion that the joint trial was grossly unfair due to the admission of Derricks letters lacks merit. The letters did not mention Miranda and the jury was instructed that it could not consider Derricks letters and evidence that Derrick tried to hide evidence or discourage someone from testifying against Miranda. The jury is presumed to have followed the courts instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) To the extent the prosecutor encouraged the jury to consider the evidence against Miranda, we presume the jury also followed the courts CALCRIM No. 200 instruction, which provided in part: "If you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions."
Miranda also appears to argue that the extensive evidence regarding Derricks gang association presented in the joint trial was grossly unfair to Miranda. We again reject Mirandas claim of gross unfairness. The court expressly instructed the jury pursuant to CALCRIM No. 203, "You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately." Moreover, in his pretrial motion to sever, Miranda conceded he had been associated with a gang. At trial, the gang expert testified that Miranda and Derrick were each members of CSM at the time of the shooting.
Miranda has failed to demonstrate that his joint trial with Derrick resulted in gross unfairness to him.
IV. CALCRIM Nos. 371 and 372 Are Not Improper Pinpoint Instructions
Finally, Derrick contends two jury instructions given by the court were improper "pinpoint" instructions.
Pursuant to CALCRIM No. 371, the court instructed: "If... Derrick tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Pursuant to CALCRIM No. 372, the court instructed: "If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Derrick argues the giving of these instructions "deprived him of his federal constitutional right to impartiality as between prosecution and defense in the matter of jury instructions." Although his defense counsel failed to object to these instructions, the error is cognizable on appeal because the instructions affect his substantial rights. (People v. Taylor (2010) 48 Cal.4th 574, 630, fn. 13.)
Derricks instructional claim lacks merit. In People v. Tate (2010) 49 Cal.4th 635, 698 our Supreme Court rejected the argument that CALJIC Nos. 2.03 and 2.06 were impermissibly one-sided and argumentative pinpoint instructions, noting that identical challenges had been rejected many times. (Accord, People v. Stitely (2005) 35 Cal.4th 514, 555 [CALJIC No. 2.03].) In People v. Bacigalupo (1991) 1 Cal.4th 103, 127-128, our Supreme Court held the trial courts instruction on flight (CALJIC No. 2.52) was not biased or argumentative. Derrick makes no attempt to distinguish the CALCRIM versions of these instructions from those repeatedly upheld by the Supreme Court. Under the doctrine of stare decisis, we are bound by the Supreme Courts decisions. No instructional error is shown. Moreover, the subject instructions did not specify items of evidence, identify witnesses (cf. People v. Wright (1988) 45 Cal.3d 1126, 1135, fn. 5), or in any way favor the prosecution over the defense.
DISPOSITION
The judgment is affirmed.
SIMONS, J.
We concur.
JONES, P.J.
BRUINIERS, J.