Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F02695
HULL, J.Defendants Langima’a Faulalo and Gary Bruce Ulukivaiola were convicted by a jury of murder (Pen. Code, § 187, subd. (a)) and robbery in concert (id., §§ 211, 213, subd. (a)(1)(A)) in connection with a home invasion robbery in which one of the occupants resisted and was killed. (Further undesignated section references are to the Penal Code.) The jury also found Faulalo and Ulukivaiola personally used a firearm in connection with the offenses (§ 12022.53, subd. (b)), and Ulukivaiola discharged a firearm (§ 12022.53, subd. (c)) and caused great bodily injury (§ 12022.53, subd. (d)).
On the murder count, both defendants were sentenced to life without the possibility of parole. In addition, Faulalo received an enhancement of 10 years for the weapon use, while Ulukivaiola received an enhancement of 25 years to life. On the robbery count, both defendants received determinate middle terms of six years plus enhancements, but execution of these sentences was stayed pursuant to section 654.
Both defendants appeal, requesting that we conduct an independent review of the affidavit used to support a search warrant issued for the residence where defendants were living and the evidence presented at a hearing conducted in connection with that affidavit. They further contend: (1) the trial court erred in admitting evidence of incriminating statements made by one of the home invaders to his girlfriend; (2) the accomplice instruction given by the court was improperly limited to one person; (3) the instructions erroneously permitted the jury to use one accomplice’s statements to corroborate the testimony of another accomplice; (4) the instructions improperly permitted accomplice testimony to be corroborated by the accomplice’s own pretrial statements; (5) the court erred in giving a flight instruction; (6) the court erred in admitting witness intimidation evidence; and (7) the abstracts of judgment erroneously include parole revocation fines that were not imposed by the court. The People concede the last point as to defendant Ulukivaiola only.
We reject each of defendants’ contentions, as well as the People’s concession, and affirm the judgments. On the abstracts of judgment, we conclude the trial court was statutorily obligated to impose a parole revocation fine as to each defendant and shall order that the judgments be modified accordingly.
Facts and Proceedings
Shortly after 4:00 a.m. on March 10, 2004, four armed men broke into the residence of Danny Johnson, a drug dealer, for the purpose of committing a robbery. The men were later identified as defendants Faulalo and Ulukivaiola, Ben Taholo, and Semisi Fahiua. In order to conceal their identities, two of the men wore ski masks while the other two wore either a bandana or a head band covering most of their faces.
Upon entering the residence, the intruders yelled that they were from the Sacramento Police Department. As they moved down a hallway, Johnson came out of one of the bedrooms and charged them. Taholo shot him in the leg. However, Johnson kept coming and Ulukivaiola shot him in the chest. The latter shot proved fatal.
After the shooting, the intruders bound two other residents with red tape and searched the home for property to steal. They eventually made off with various items, including several pounds of marijuana, a safe containing thousands of dollars, a cell phone, a cable TV box, a handgun, a pair of Nike shorts, and jewelry.
On March 19, 2004, police officers searched Ulukivaiola’s residence pursuant to a search warrant. Both Ulukivaiola and Faulalo were living there at the time. The officers pulled up to the home, announced their presence and directed the residents to come out. However, before the residents did so, the officers saw an individual throw a bag of marijuana and a handgun out of a side window onto adjacent property.
Inside the residence, the officers found a pound of marijuana, a roll of red tape like that used to bind the victims of the home invasion, a .40-caliber Glock pistol, a .38-caliber pistol, ski masks, a bandana, several gloves, and other items related to the robbery. Gunshot residue was found on several of the items. The officers also found a cable TV box registered to the home where the home invasion occurred. Ulukivaiola was present at the time of the search and was wearing the Nike shorts taken in the robbery.
Ulukivaiola and Faulalo were arrested. Later that day, Fahiua arrived at Ulukivaiola’s home and Ulukivaiola’s mother told him of the arrests and that the police were asking about him. Fahiua fled to Oregon, where he stayed for several weeks. However, Fahiua eventually returned to California and retained an attorney. The attorney contacted the police and informed them Fahiua wanted to turn himself in.
The day Fahiua’s attorney contacted the police, Shirley J. called the police and explained that she had been Taholo’s girlfriend and had information about the home invasion. However, she did not want to give her name. Nevertheless, Shirley eventually agreed to come in and talk to the police.
Taholo fled to Utah. With Shirley J.’s help, the police were able to locate him there. He was arrested and returned to California.
Fahiua was given use immunity and, on May 5, 2004, gave a statement to police in which he described the home invasion in detail and identified the perpetrators.
Ulukivaiola, Faulalo and Taholo were tried together for robbery and murder. However, after trial commenced, Taholo’s attorney became too sick to continue and the court declared a mistrial as to Taholo. The trial proceeded on the remaining defendants and they were convicted as noted above.
Discussion
I
Search Warrant Affidavit
On March 19, 2004, nine days after the home invasion, the police conducted a search of Ulukivaiola’s residence pursuant to a search warrant and found various items related to the offenses. The warrant was issued in part based on information obtained from a confidential reliable informant (CRI).
Faulalo moved to quash and traverse the search warrant and to suppress the evidence obtained in the search. The trial court conducted an in camera review of the affidavit and examined the officer who provided it. Thereafter, the court ruled there were sufficient grounds to maintain the confidentiality of the informant, disclosure of the sealed portion of the affidavit would reveal the identity of the informant, and there were no material misrepresentations in the affidavit. The court denied Faulalo’s motion.
Defendants request that we independently review the sealed portion of the affidavit and the transcript of the in camera proceeding on the motion to traverse the search warrant in order to determine if the trial court complied with the requirements of People v. Hobbs (1994) 7 Cal.4th 948, 975-977 (Hobbs). Under Hobbs, “[i]t must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant’s identity.” (Hobbs, 7 Cal.4th at p. 972.)
“If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant’s general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing. Generally, in order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made ‘knowingly and intentionally, or with reckless disregard for the truth,’ and (2) ‘the allegedly false statement is necessary to the finding of probable cause.’” (Hobbs, supra, 7 Cal.4th at p. 974.)
“Similarly, if the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (Pen. Code, § 1538.5), the court should proceed to determine whether, under the ‘totality of the circumstances’ presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was ‘a fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.] In reviewing the magistrate’s determination to issue the warrant, it is settled that ‘the warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrate’s finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.’” (Hobbs, supra, 7 Cal.4th at p. 975.)
Here, the trial court reviewed the sealed portion of the affidavit and conducted the requisite in camera hearing. Officer Kevin Patton, the affiant, was sworn and testified concerning the CRI and the need for protecting his or her identity and the content of the affidavit. Patton next testified about prior dealings with the CRI and his or her reliability. Finally, Patton testified about the information provided by the CRI to support a search of Ulukivaiola’s residence.
Back on the record, the trial court found sufficient grounds to keep the CRI’s identity confidential and to seal the portions of the affidavit that were sealed by the magistrate. The court next found there was not sufficient evidence the warrant rested on intentionally or knowingly false statements or omissions and denied Faulalo’s motion to traverse the warrant. Lastly, the court found the warrant was supported by probable cause and denied Faulalo’s motion to quash the warrant and suppress the evidence seized.
After reviewing the transcript of the in camera hearing, and both the public and sealed portions of the search warrant affidavit, we conclude the trial court followed the procedures described in Hobbs. After questioning the affiant under oath, the court concluded good cause existed to keep the CRI’s identity confidential and that the sealed portion of the warrant should remain sealed to protect the CRI. We find no error in these conclusions. We also find no evidence of material misrepresentations or omissions in the affidavit, so the motion to traverse was properly denied. Finally, we find that, when viewed together, the public and sealed portions of the affidavit demonstrate there was probable cause for issuance of the warrant. Because the affidavit provided probable cause to search Ulukivaiola’s residence, the trial court properly denied Faulalo’s motion to quash the search warrant and suppress the evidence seized during the search.
II
Admission of Taholo’s Statements to Shirley J.
Prior to trial, the People sought leave to present portions of conversations between Taholo and Shirley J. following the home invasion in which Taholo acknowledged his involvement. Defendants in turn moved to sever their trials from the others or, in the alternative, to empanel separate juries or to exclude Taholo’s pretrial statements.
The trial court concluded most of the evidence was admissible as statements against Taholo’s penal interest. However, the court also concluded the portion of Taholo’s statements in which he said someone else fired the fatal shot was not against his penal interest and ordered that portion excluded.
Fahiua was the first witness to testify for the prosecution. He described the home invasion in detail and identified the participants. Thereafter, during the testimony of Shirley J., the court gave the following admonition: “Jurors, I want to admonish you that the testimony of this witness, all of the testimony is only relevant as to Mr. Taholo, and you are not to consider it for any purpose as to the other two defendants. It is only evidence as to Mr. Taholo’s case, and it is not evidence and not to be considered as to the other two defendants.”
Shirley J. testified that in March 2004, she came to Taholo’s house and saw a large stack of money on his bed. She said Taholo appeared nervous and, when she asked where he got the money, he told her to mind her own business. Eventually, Taholo said he got the money from working. However, a few days later, Taholo told Shirley he obtained the money in a robbery. Taholo said he “went over a fence through the back yard” and that he had a gun and “was acting like FBI or police officer.” He told Shirley the victim’s name was Danny and that he fired his gun and hit Danny in the knee because Danny “was not cooperating or charging at him.” Taholo also told Shirley he wore a ski mask and that Danny’s girlfriend was “screaming and crying” and had to be tied up. Taholo said he got approximately $4,000, marijuana, and jewelry from the house. Shirley also testified she saw marijuana in a clear plastic bag and Taholo told her he got it from Danny. Finally, Shirley testified she had seen Taholo earlier with a dark blue ski mask and a semiautomatic handgun that Taholo identified as a “9.”
Later in the proceedings, counsel for Taholo became too ill to proceed and the court declared a mistrial as to Taholo. Defendants moved to strike all of Shirley J.’s testimony, inasmuch as it had been admitted against Taholo alone. The prosecutor moved to allow consideration of Shirley’s testimony against the remaining defendants. The trial court granted the prosecution’s motion and denied that of defendants. The court explained the evidence was admissible as corroboration of the accomplice testimony of Fahiua and, therefore, would be allowed for that purpose only.
The court later instructed the jury as follows: “Previously the Court admonished you that the jury could not consider the testimony of Shirley [J.] about the statements allegedly made to her by Ben Taholo against the Defendant Faulalo and Defendant Ulukivaiola. At this time the Court strikes that admonition. Ms. [J.]’s testimony regarding statements made to her by Ben Taholo relating to the robbery and murder of Danny Johnson may be considered by you only as evidence of corroboration of Semisi Fahiua.”
Except as discussed in section IV below, defendants do not challenge the court’s admission of Taholo’s statements for the limited purpose of corroborating Fahiua’s testimony. Rather, they contend the redactions from Taholo’s statements were insufficient to protect their Sixth Amendment confrontation rights. They argue the redaction of a codefendant’s statement must not only eliminate any reference to the defendant’s name, but must eliminate any reference to the defendant’s existence. According to defendants, that did not occur here, because Taholo’s statements suggested somebody else fired the fatal shot and somebody else tied up the victim’s girlfriend. Defendants further argue Taholo’s statements were hearsay and did not qualify as statements against Taholo’s penal interest, because they were actually blame-shifting and were made to someone Taholo trusted. We reject both contentions.
In Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton), two defendants--Evans and Bruton--were tried jointly for robbery. Evans did not testify, but the prosecution introduced into evidence Evans’s confession in which he stated he and Bruton committed the robbery. (Bruton, 391 U.S. at p. 124 [20 L.Ed.2d at p. 478].) The trial judge instructed the jury it could consider the confession only as evidence against Evans. (Id. at p. 125 [20 L.Ed.2d at p. 478].) The United States Supreme Court held that, despite the limiting instruction, the introduction of Evans’ out-of-court confession violated Bruton’s Sixth Amendment right to cross-examine witnesses. (Id. at p. 137 [20 L.Ed.2d at pp. 485-486].)
In Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176] (Richardson), Marsh and Williams were jointly tried for murder and the prosecution introduced a redacted confession by Williams that omitted all references to Marsh and all indications that anyone other than Williams and a third person named Martin participated in the crime. (Id. at p. 202-203 [95 L.Ed.2d at p. 182-183].) The trial court instructed the jury not to consider the confession against Marsh. (Id. at p. 205 [95 L.Ed.2d at p. 184].) As redacted, the confession indicated Williams and Martin had discussed the murder in the front seat of a car while they traveled to the victim’s home. (Id. at pp. 203-204 [95 L.Ed.2d at p. 183].) However, later in the trial, Marsh testified that she was in the back seat of the car at the time. (Id. at p. 204 [95 L.Ed.2d at pp. 183-184].)
The Supreme Court held the redacted confession of Williams fell outside the scope of Bruton and was admissible (with an appropriate limiting instruction). The Court distinguished the confession in Bruton as one that was “incriminating on its face,” and had “‘expressly implicat[ed]’” Bruton. (Richardson, supra, 481 U.S. at p. 208 [95 L.Ed.2d at p. 186].) By contrast, Williams’s confession in Richardson amounted to “evidence requiring linkage” in that it “became” incriminating in respect to Marsh “only when linked with evidence introduced later at trial.” (Ibid.) According to the court: “[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 211 [95 L.Ed.2d at p. 188].)
In Gray v. Maryland (1998) 523 U.S. 185 [140 L.Ed.2d 294] (Gray), Gray and Bell were tried jointly for the murder of Stacey Williams. Bell did not testify at trial. However, the trial court permitted the prosecution to introduce a redacted version of Bell’s confession in which he said that he, Gray and a third person, Vanlandingham, participated in the beating that led to Williams’s death. The police detective who read the confession into evidence substituted the word “deleted” or “deletion” wherever the names of Gray and Vanlandingham appeared. Immediately after the redacted confession was read to the jury, the prosecutor asked, “‘after he gave you that information, you subsequently were able to arrest Mr. Kevin Gray; is that correct?’” The officer responded, “‘That’s correct.’” (Id. at pp. 188-189 [140 L.Ed.2d at p. 298].) The prosecution produced other witnesses, who said that six persons, including Bell, Gray, and Vanlandingham, participated in the beating. The trial judge instructed the jury that the confession was evidence against Bell alone. (Id. at p. 189 [140 L.Ed.2d at p. 299].)
The Supreme Court concluded the redaction was inadequate under the circumstances, because, although the names of the other participants were eliminated, the redacted version continued to refer directly to the existence of the nonconfessing defendant. (Gray, supra, 523 U.S. at p. 192 [140 L.Ed.2d at p. 300].) The court explained: “Redactions that simply replace a name with an obvious blank space or a word such as ‘deleted’ or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resemble Bruton’s unredacted statements that, in our view, the law must require the same result.” (Id. at p. 192 [140 L.Ed.2d at p. 301].) According to the court: “Bruton’s protected statements and statements redacted to leave a blank or some other similarly obvious alteration, function the same way grammatically. They are directly accusatory. Evans’ statement in Bruton used a proper name to point explicitly to an accused defendant. . . . The blank space in an obviously redacted confession also points directly to the defendant, and it accuses the defendant in a manner similar to Evans’ use of Bruton’s name or to a testifying codefendant’s accusatory finger. By way of contrast, the factual statement at issue in Richardson--a statement about what others said in the front seat of a car--differs from directly accusatory evidence in this respect, for it does not point directly to a defendant at all.” (Id. at p. 194 [140 L.Ed.2d at p. 302].)
Defendants contend the present matter is controlled by Bruton and Gray, because the elimination of their names from Taholo’s statements was insufficient redaction. They argue Taholo’s statements to Shirley J. continued to refer to their existence by virtue of the fact Taholo said he shot the victim in the knee, inferring somebody else must have fired the fatal shot, and he found the victim’s girlfriend tied up, inferring that somebody else tied her.
Defendants read much more into Taholo’s statements than is actually there. First, unlike Gray, the court did not simply remove defendants’ names from Taholo’s statements. From what we can tell on this record, Taholo never mentioned defendants to Shirley J. Taholo merely described his participation in the robbery. He said he drove to the robbery scene in a truck, he went there to steal money and marijuana, he “went over a fence to the back,” he had a gun, he wore a ski mask, he “was acting like FBI or police officer,” he fired the gun at Danny and hit him in the knee “because Danny was not cooperating or charging at him,” Danny’s girlfriend was with Danny and was “screaming and crying,” the girlfriend was tied up, and he got approximately $4,000, marijuana and jewelry from the robbery.
Conspicuously absent from the foregoing is any reference to other participants. Taholo even said he drove to the scene, although Fahiua testified he had been the driver. Although Taholo said he shot the victim in the knee, there was no mention of any other shots fired. And, while Taholo said the victim’s girlfriend was tied up, he did not say whether he or anyone else did so. Of course, by the time Shirley J. testified, Fahiua had already testified that there were four participants in the robbery, that Taholo and Ulukivaiola had both shot the victim, and that he (Fahiua) had tied up the victim’s girlfriend.
In Gray, the Supreme Court noted that Richardson placed outside the scope of Bruton those statements that incriminate inferentially. (Gray, supra, 523 U.S. at p. 195 [140 L.Ed.2d at p. 302].) However, the court cautioned that not all such statements fall outside Bruton. According to the court: “[I]nference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton’s scope confessions that use shortened first names, nicknames, descriptions as unique as the ‘red-haired, bearded, one-eyed man-with-a-limp,’ [citation], and perhaps even full names of defendants who are always known by a nickname. This Court has assumed, however, that nicknames and specific descriptions fall inside, not outside, Bruton’s protection. [Citation.] . . . [¶] That being so, Richardson must depend in significant part upon the kind of, not the simple fact of, inference. Richardson’s inferences involved statements that did not refer directly to the defendant himself and which became incriminating ‘only when linked with evidence introduced later at trial.’ [Citation.] The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” (Gray, 523 U.S. at pp. 195-196 [140 L.Ed.2d at pp. 302-303].)
The present matter is governed by Richardson rather than Bruton and Gray. There is nothing in Taholo’s statements alone that refer directly to other participants or to defendants in particular. Only when Taholo’s statements are viewed in the light of the other evidence presented at trial is the jury able to infer defendants’ participation. Such inferential incrimination does not violate Bruton.
Defendants nevertheless contend Taholo’s statements were inadmissible hearsay that did not qualify under the exception for statements against penal interest. They argue Taholo’s statements were not against his penal interest, because they were more exculpatory than inculpatory, and were made to someone he thought he could trust.
Evidence Code section 1230 reads: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.”
“A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Cudjo (1993) 6 Cal.4th 585, 607.) The test for determining whether a statement is one against the declarant’s penal interest is an objective one--“would the statement subject its declarant to criminal liability such that a reasonable person would not have made the statement without believing it true.” (People v. Jackson (1991) 235 Cal.App.3d 1670, 1678.)
In the present matter, it cannot reasonably be doubted Taholo’s statements were against his penal interest. He admitted breaking into the victim’s home, shooting the victim in the knee, and making off with money, drugs and jewelry. Defendants argue the statements were more exculpatory than inculpatory, because Taholo minimized his participation by claiming he fired the nonlethal shot. They cite two decisions, People v. Coble (1976) 65 Cal.App.3d 187, disapproved on other grounds in People v. Fuentes (1998) 61 Cal.App.4th 956, 969, and People v. Shipe (1975) 49 Cal.App.3d 343, where the courts concluded statements that were partially inculpatory and partially exculpatory were not properly admitted under Evidence Code section 1230. However, in both cases, the statements were made after the declarant had been arrested for participating in the crime, such that the declarant’s participation was already known to the police and he was just trying to reduce his exposure. (See Coble, at p. 190, Shipe, at p. 353.) That is not the case here.
Taholo’s statements were also sufficiently reliable under the circumstances. “There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 334.) “[A]ssessing trustworthiness ‘“requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.”’” (People v. Duarte (2000) 24 Cal.4th 603, 614.) “Clearly the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others. . . . However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures.” (People v. Greenberger, supra, 58 Cal.App.4th at p. 335.) “On appeal, the trial court’s determination on this issue is reviewed for abuse of discretion.” (People v. Cudjo, supra, 6 Cal.4th at p. 607.)
The present matter involves the most reliable circumstance--where Taholo made incriminating statements to a person who had been, and for all he knew still was, his girlfriend. Although defendants point to this fact as showing Taholo’s statements were not really against his penal interests, the statements speak for themselves. Because Taholo made the statements under circumstances bereft of coercion or the need to deflect responsibility, those statements were sufficiently reliable to satisfy Evidence Code section 1230.
Having concluded the admission of Taholo’s statements did not violate defendants’ Confrontation Clause rights or Evidence Code section 1230, we need not consider defendants’ argument that admission of such evidence violated their due process rights as well. Defendants’ due process argument is premised on a finding of the other violations. Furthermore, we need not consider defendants’ claim that the trial court erred in concluding Bruton had been abrogated by Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. The trial court expressly stated it was not relying on this to support admission of the evidence.
III
Exclusion of Taholo From Accomplice Instruction
Section 1111 requires corroboration of accomplice testimony. It reads in relevant part: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
The trial court instructed the jury on accomplice testimony pursuant to Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 335 as follows: “If the crimes charged were committed, then Mr. Semisi Fahiua was an accomplice to those crimes. You may not convict defendants of the crimes charged based on the testimony of an accomplice alone. You must use the testimony of an accomplice to convict the Defendant only if, one, the accomplice’s testimony is supported by other evidence that you believe, two, the supporting evidence is independent of the accomplice’s testimony and, . . . three, that supporting evidence tends to connect the Defendant to the commission of the crimes. . . . The evidence needed to support the testimony of one accomplice cannot be provided by testimony of another accomplice. [¶] . . . [¶] Any testimony of an accomplice that tends to incriminate the Defendant should be viewed with caution. . . .”
Defendants contend the foregoing instruction was incomplete, because it failed to name Taholo as an additional accomplice. Defendants argue the court had a sua sponte duty to instruct the jury to consider accomplice testimony with caution, and Taholo was an accomplice as a matter of law.
The People contend defendants forfeited this argument on appeal by failing to object to the instruction in the trial court or to request that it be modified. They further argue the instruction was not applicable to Taholo, because his statements to Shirley J. were not “testimony.”
We agree with the People that Taholo’s statements were not testimony within the meaning of the accomplice instruction. Section 1111 prohibits a conviction based on accomplice testimony unless that testimony is corroborated. The purpose of this restriction, and the cautionary instruction stemming from it, is the inherent unreliability of accomplice testimony. “[A]n accomplice has a natural incentive to minimize his own guilt before the jury and to enlarge that of his cohorts.” (People v. Brown (2003) 31 Cal.4th 518, 555.)
However, “[t]he usual problem with accomplice testimony--that it is consciously self-interested and calculated--is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence.” (People v. Sully (1991) 53 Cal.3d 1195, 1230.) Therefore, “testimony” within the meaning of section 1111 has been limited to “‘oral statements made by an accomplice or coconspirator under oath in a court proceeding and all out-of-court statements of accomplices and coconspirators used as substantive evidence of guilt which are made under suspect circumstances. The most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police.’” (People v. Williams (1997) 16 Cal.4th 153, 245.) Where out-of-court statements are not made under suspect circumstances, they need not be corroborated. (Ibid.)
As explained in the preceding section, Taholo’s statements to Shirley J. were not made under suspect circumstances and, hence, were not testimony within the meaning of section 1111. They were made without coercion and under circumstances where Taholo had no incentive to downplay his own involvement at the expense of others. Therefore, the trial court was not required to instruct the jury to view Taholo’s out-of-court statements with caution.
IV
Corroboration of One Accomplice by Another
Defendants contend the trial court erred in permitting the testimony of one accomplice, Fahiua, to be corroborated with the out-of-court statements of another accomplice, Taholo. As noted earlier, the court instructed the jury: “Ms. [J.]’s testimony regarding statements made to her by Ben Taholo relating to the robbery and murder of Danny Johnson may be considered by you only as evidence of corroboration of Semisi Fahiua.” Defendants argue this violated long-standing California law. (See People v. Rios (1985) 163 Cal.App.3d 852, 870; People v. Boyce (1980) 110 Cal.App.3d 726, 737; People v. Scofield (1971) 17 Cal.App.3d 1018, 1026.)
The cases on which defendants rely concern the corroboration of one accomplice’s testimony with the testimony of another accomplice. Because the testimony of an accomplice is suspect, any corroborating testimony of another accomplice would likewise be suspect and, hence, inadequate corroboration. However, as explained in the preceding section, the use of Taholo’s out-of-court statements to corroborate Fahiua’s testimony is not corroborating the testimony of one accomplice with the testimony of another, because Taholo’s statements were not testimony. Taholo’s statements were not inherently untrustworthy and therefore could serve as adequate corroboration.
V
Self-Corroboration of Accomplices
Defendants contend the accomplice instructions were nevertheless deficient in failing to inform the jurors that Fahiua’s testimony could not be corroborated by his own out-of-court statements. The prosecution introduced into evidence the videotape of a police interview of Fahiua on May 5, 2004, in which Fahiua described the events leading up to and during the home invasion. The court thereafter instructed the jury: “You have heard evidence or statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] To evaluate whether the witness’s testimony in court is believable, and, two, as evidence that the information in those statements is true.”
The People contend defendants have forfeited this argument on appeal by failing to object to the instructions on this basis or to request clarification or amplification. Where a party claims on appeal that a legally correct instruction was too general or incomplete, and in need of clarification, the party must show that he requested modification, clarification or amplification in the trial court; otherwise the contention is forfeited. (People v. Valdez (2004) 32 Cal.4th 73, 113; People v. Hart (1999) 20 Cal.4th 546, 622; People v. Daya (1994) 29 Cal.App.4th 697, 714.)
Defendants contend we may nevertheless “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259.) “Substantial rights” are equated with an error resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.)
In order to determine if defendants’ substantial rights were affected by the lack of clarification in the instruction, and hence to determine if their instructional error claim is preserved for appeal, we may assume the instruction was erroneous and determine if it caused a miscarriage of justice under People v. Watson, supra, 46 Cal.2d 818, i.e., whether it is reasonably probable the outcome of the case would have been more favorable to defendants in the absence of the error.
In this regard, it is readily apparent that if the jury had been informed it could not use Fahiua’s pretrial statements to corroborate his trial testimony, the outcome would have been the same. This is because there was overwhelming corroborative evidence in the record beyond Fahiua’s statements.
Fahiua testified that Taholo participated in the home invasion. This is corroborated by Shirley J.’s testimony about statements made by Taholo admitting his involvement. Fahiua’s description of how the home invasion unfolded was also corroborated by Shirley J.’s testimony.
Fahiua’s testimony implicating Faulalo and Ulukivaiola is corroborated by the extensive evidence found at Ulukivaiola’s residence at the time of the police search. It is also corroborated by the testimony of the victims of the home invasion, who described the intruders and what they were wearing, and the ski masks and other paraphernalia found at Ulukivaiola’s residence, which contained DNA of defendants and gunshot residue.
“To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’” (People v. Avila (2006) 38 Cal.4th 491, 562-563.) There is no requirement that the corroborating evidence support each element of the crime. (People v. Lyons (1958) 50 Cal.2d 245, 257; see also People v. Szeto (1981) 29 Cal.3d 20, 27.)
In the present matter, there is overwhelming evidence other than Fahiua’s pretrial statements linking defendants to the home invasion. Therefore, assuming the trial court’s instruction to the jury--that Fahiua’s pretrial statements may be used “[t]o evaluate whether the witness’s testimony in court is believable”--may be viewed as authorizing the jury to use Fahiua’s pretrial statements as corroboration of his trial testimony, and assuming this was error, defendants’ substantial rights were not affected thereby. Hence, defendants have forfeited their claim of instructional error by failing to object to the instruction on this basis.
VI
Flight Instruction
The trial court instructed the jury on flight pursuant to Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 372, as follows: “If the Defendant Benjamin Taholo fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the Defendant fled, it is for you to decide the meaning and importance of that conduct. However, evidence that the Defendant fled cannot prove guilt by itself.”
Defendants contend this instruction was improper once a mistrial was declared as to Taholo. According to defendants, “[i]nstructing jurors that evidence of separately-tried alleged accomplice Taholo’s flight could be considered as showing a consciousness of guilt constituted an improper admonition that jurors could infer guilt by association in violation of Due Process.”
The trial court concluded the instruction was proper because Taholo’s flight, like his out-of-court statements to Shirley J., helped to corroborate Fahiua’s testimony. We agree. The court did not instruct that Taholo’s flight could be considered as evidence of defendants’ guilt, so defendants’ claim of guilt by association is unfounded. The fact of Taholo’s flight served to corroborate Fahiua’s testimony inasmuch as that testimony implicated Taholo in the home invasion just as Taholo’s statements against penal interest did.
VII
Witness Intimidation Evidence
Over defense objections, the prosecution presented evidence that, on December 24, 2005, shots were fired at the home of Fahiua’s parents, where Fahiua was staying at the time, and on May 5, 2004, Taholo fired shots at Shirley J. while she was near her home. The trial court ruled the foregoing evidence was relevant on the issue of credibility as to Fahiua and Shirley J. The court further concluded the probative value of the evidence was not outweighed by its prejudicial effect. (Evid. Code, § 352.) The court instructed the jury that the evidence was admitted only on the issue of credibility.
Defendants contend this was error, because there was no evidence they were involved in these incidents and no evidence the alleged intimidation affected either witness’s willingness to testify. The People counter that there is no legal requirement that a defendant be directly involved in witness intimidation for such evidence to be admissible, and the trial court properly limited use of the evidence to the issue of credibility.
“Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court.” (People v. Burgener (2003) 29 Cal.4th 833, 869.) In order to be admissible on the issue of credibility, it is not necessary that the particular threat originated with the defendant. “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. It could come from a friend of the defendant, or it could come from a stranger who merely approves of the defendant’s conduct or disapproves of the victim. It could come from a person who perceives a social or political agenda to have been advanced by the defendant’s actions. It could come from a member of the witness’s profession, religion, or subculture, who disapproves of the witness’s involvement for some reason. It could come from a zealot of any stripe, large groups of whom seem ready to rally to virtually any cause these days.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.)
Defendants contend it is necessary that the witness actually be placed in fear by the threat, such that it affects his or her willingness to testify and the content of that testimony. They cite three cases as support. However, those cases do not so hold.
In People v. Sapp (2003) 31 Cal.4th 240 (Sapp), the defendant was prosecuted for the murder of Elizabeth Duarte and others. Evidence was presented that the defendant paid James Luddon $800 to lure Duarte to his (Luddon’s) home where the defendant could kill her. At the time, Laura Norris was living in Luddon’s home. Norris testified for the prosecution that she overheard the defendant make incriminating statements and had cleaned up blood splatters the day after the assault. On cross-examination, Norris acknowledged she did not tell the police what she knew until several years later. On redirect, she explained she had not come forward earlier out of fear because Luddon and another had told her if she went to the police she would end up like Duarte. (Id. at pp. 280-281.)
The California Supreme Court rejected the defendant’s argument that admission of Norris’s testimony about the threats made by Luddon and the other violated due process. The court concluded the evidence was properly admitted for the non-hearsay purpose of showing why Norris had not come forward earlier. (Sapp, supra, 31 Cal.4th at p. 281.) As for the fact the threats had come from Luddon and another rather than the defendant, the court said: “‘It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.’” (Ibid.)
Although the court in Sapp mentioned the witness’s fear, the issue of whether the witness must be put in fear before the evidence may be admitted was not presented. Nor did the high court even state such a rule in dictum. Cases are not authority for propositions not considered therein. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
In People v. Burgener, supra, 29 Cal.4th 833, evidence of prior intimidation was admitted at the defendant’s penalty phase trial to explain why the witness had testified differently at the defendant’s guilt phase trial years earlier. The witness testified the threats originated with the defendant but had been communicated to her by another who had been in jail with the defendant. (Id. at pp. 868-869.)
The Supreme Court concluded the evidence was admissible on the issue of credibility, explaining: “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.” (People v. Burgener, supra, 29 Cal.4th at p. 869.) The court further concluded “it is not necessary to show the witness’s fear of retaliation is ‘directly linked’ to the defendant for the threat to be admissible.” (Id. at pp. 869-870.) According to the court: “It is not necessarily the source of the threat--but its existence--that is relevant to the witness’s credibility.” (Id. at p. 870.) Again, the issue of whether the witness must actually be put in fear was not presented.
Finally, in People v. Olguin, supra, 31 Cal.App.4th 1355, there was evidence presented that the witness did not voluntarily provide information to the police out of fear something would happen to his house or family because of a telephone call he received a few days after the shooting telling him “they knew where he lived and he had better watch his back.” (Id. at pp. 1367-1368.) The Court of Appeal concluded the evidence was admissible on the issue of witness credibility despite the fact the threats had not come from the defendant. (Id. at p. 1368.) Again, although the witness had in fact been placed in fear and, consequently had not come forward earlier, the issue of whether this was a prerequisite to admission of the evidence was not presented.
In the foregoing cases, the fact of the witness’s fear was relevant in explaining why the witness had not presented particular evidence to the authorities earlier. The fact that the witness had not come forward or had feigned loss of memory was used to attack the witness’s credibility, and the threat and fear it engendered was used to rehabilitate the witness. However, the existence of witness intimidation is also relevant to credibility even where the witness is not dissuaded from coming forward or testifying. A reasonable juror could readily conclude a witness who testifies against the defendant despite threatened adverse consequences is more believable than one who does not testify under such a cloud.
At any rate, there was evidence presented in this matter that both Fahiua and Shirley J. were put in fear by the threatening conduct. Following the intimidating conduct, both witnesses moved from the residences where it occurred. Shirley J. also reported the matter to the police.
Furthermore, the trial court admitted the witness intimidation evidence after conducting an Evidence Code section 352 analysis. Evidence Code section 352 permits the exclusion of relevant evidence where “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Williams, supra, 16 Cal.4th at p. 213.)
Beyond challenging the court’s determination that the witness intimidation evidence was probative of an issue in the case, defendants make no attempt to challenge the court’s determination under Evidence Code section 352. Therefore, we need not consider whether the court abused its discretion in this regard.
VIII
Parole Revocation Fine
Defendants contend the abstracts of judgment contain a parole revocation fine that was not in fact imposed by the trial court. They ask us to correct this clerical error. They further argue the court could not have imposed this fine due to their indeterminate sentences of life without the possibility of parole.
The People concede the fines were not imposed by the trial court. However, they contend the judgment as to Faulalo must be modified to impose a parole revocation fine, because a determinate term of 10 years was imposed on him along with the indeterminate term of life without the possibility of parole. We conclude the trial court was statutorily obligated to impose the parole revocation fine on both defendants.
Section 1202.45 reads: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. . . .” This parole revocation fine must be suspended unless and until parole is revoked. (§ 1202.45.)
Both defendants received a sentence of life without the possibility of parole on their conviction for the murder of Danny Johnson. In addition, Faulalo was sentenced to 10 years for the gun use enhancement, while Ulukivaiola received 25 years to life. On the robbery count, both defendants were sentenced to the middle term of six years. In addition, Faulalo received an enhancement of 10 years for the firearm use, while Ulukivaiola received an enhancement of 25 years to life. The terms on the robbery count were stayed pursuant to section 654. The trial court imposed restitution fines on both defendants in the amount of $10,000 pursuant to section 1202.4. The abstracts of judgment reflect identical fines of $10,000 pursuant to section 1202.45. However, the court did not in fact impose those fines at sentencing.
In People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), the defendant was convicted of first degree murder and sentenced to life without the possibility of parole plus an enhancement of 10 years. She was also convicted of second degree murder and sentenced to an indeterminate term plus an enhancement of four years. (Id. at p. 1181.) The Court of Appeal concluded a parole revocation fine was inappropriate under these circumstances. Despite the remote possibility the defendant might be pardoned on the first degree murder charge and ultimately paroled on the second degree murder charge, the court concluded “the language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fine is to be imposed. Section 1202.45 indicates that it is applicable to a ‘person . . . whose sentence includes a period of parole.’ At present, defendant’s ‘sentence’ does not allow for parole. When we apply a commonsense interpretation to the language of section 1202.45 [citations], we conclude that because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed.” (Oganesyan, at p. 1185; see also People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687.)
However, in People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), the California Supreme Court concluded the fact a defendant is sentenced to death on one count does not preclude a parole revocation fine where the defendant is sentenced on other counts to determinate terms. (Id. at p. 1075.) The court noted section 1202.45 says a parole revocation fine is required whenever a defendant’s sentence includes a period of parole. The court then cited section 3000, subdivision (a)(1), which provides that “[a] sentence pursuant to Section 1168 or 1170 shall include a period of parole . . . .” (Italics added.) The high court distinguished Oganesyan as not involving a sentence that included a determinate term.
The People contend Brasure requires that a parole revocation fine be imposed on Faulalo but not on Ulukivaiola. They argue Faulalo is subject to a parole revocation fine, because the court imposed a determinate enhancement of 10 years on the murder count. By contrast, Ulukivaiola is not subject to a parole revocation fine, they argue, because he received an indeterminate enhancement.
The People misconstrue Brasure and the relevant statutes. The question is not what enhancements were imposed but what sentences were imposed on the substantive offenses. As explained in Brasure, section 1202.45 requires a parole revocation fine whenever a sentence includes a period of parole and section 3000, subdivision (a)(1), requires a period of parole for any sentence imposed pursuant to section 1170, i.e., a determinate term. In making this determination, we look at each count separately to determine if the sentence on any one count qualifies. (Brasure, supra, 42 Cal.4th at p. 1075.)
Here, both Faulalo and Ulukivaiola were sentenced on the robbery count to a determinate term of six years pursuant to section 1170. Even though these sentences were stayed, they were nevertheless imposed. Parole revocation fines pursuant to section 1202.45 were therefore mandatory.
This court may correct an unauthorized sentence whenever it comes to our attention. (People v. Crooks (1997) 55 Cal.App.4th 797, 810.) We therefore modify the sentences of both defendants to include a parole revocation fine pursuant to section 1202.45 in the same amounts as the court imposed under section 1202.4, i.e., $10,000. Because these fines are already reflected in the abstracts of judgment, there is no need for those documents to be amended.
Disposition
The judgments of both defendants are modified to add parole revocation fines pursuant to Penal Code section 1202.45 in the amount of $10,000. As so modified, the judgments are affirmed.
We concur: RAYE, Acting P.J., BUTZ, J.